(a) While purporting to treat LN's adductor muscles, Dr Ebtash used the fingers of his right hand to touch the left side of LN's labia minora and press on her labia for 15-20 seconds; and

(b) While purporting to treat LN's pectoral muscles, firmly rubbed both of LN's breasts with his hands for a period of 5-10 seconds.

1. Dr Ebtash admits that he engaged in a professional consultation with LN on or around the Second Occasion in a room at the Venue but otherwise denies each of these allegations, and says that the nature of the treatment alleged was neither offered nor provided.[371]
2. The Board alleges[372] that at the consultation, Dr Ebtash failed to properly inform LN, before commencing treatment, of the nature of the treatment and failed to give her an adequate opportunity to question or refuse that treatment, because:

(a) He did not advise LN that he intended to or might touch her labia minora or her breasts before touching them;

(b) He did not ask LN for permission to touch her labia minora or her breasts before touching them; and

(c) He did not explain to LN why he intended to or might touch her labia minora or her breasts before touching them.

1. Dr Ebtash denies each of these allegations, on the basis that the treatment alleged was neither offered nor provided.[373]
2. The Board alleges that there was no proper clinical justification for Dr Ebtash to touch LN's labia minora or her breasts at that consultation, and it was inappropriate for him to have touched those areas of LN's body.[374]
3. Dr Ebtash denies this allegation, on the basis that the treatment alleged was neither offered nor provided.[375]

(ii) When and where LN's treatment took place

1. LN attended the meeting between CA, the cast members and Dr Ebtash on the First Occasion.[376] She decided to see Dr Ebtash for treatment.
2. There was no evidence to suggest that LN had been told by either JL or MS that they had been treated inappropriately by Dr Ebtash on the First Occasion. We find that at the time of her treatment, LN did not know that JL or MS had been inappropriately touched by Dr Ebtash.
3. In her evidence, LN initially said that the date on which she saw Dr Ebtash was the First Occasion.[377] She was clearly mistaken about that date. LN was treated by Dr Ebtash on the same occasion as SN, MS and MT, and there is no doubt that they were all treated on the Second Occasion.
4. In addition, immediately prior to receiving treatment, LN completed a patient form (Patient Form), which she signed and dated.[378] In the course of her evidence, it was drawn to LN's attention that she had dated the Patient Form in a style which (consistent with the fact that she had been living in the United States) reflected the American protocol for recording dates - that is, with the month first, followed by the day, and then the year.[379] LN accepted that that meant that the treatment in fact occurred on the Second Occasion.[380]
5. LN was cross-examined about the fact that in the statement she made to the police she referred to having received treatment from Dr Ebtash on the First Occasion. While she acknowledged that in preparing that statement she had, with some care, identified that date as the First Occasion,[381] she had not checked the date by reference to her calendar.[382]
6. We find that LN received treatment from Dr Ebtash on the Second Occasion.
7. LN went to the Treatment Room at the Venue for treatment with Dr Ebtash.[383] LN was able to describe the layout of the Treatment Room by reference to a sketch she drew of it at the time that she made her statement to the police.[384] Located against a wall in the furthest corner of the room, diagonally opposite the doors into the room, was a make up table. Further along the same wall, opposite but closer to the doors, were two couches, placed side by side along the wall. The two couches were very close together, end to end along the wall, but were not touching.[385]
8. The treatment table was located in the middle of the room. It was higher than the couches, and there was no barrier or obstacle between the treatment table and the couches.[386]
9. When LN arrived, Dr Ebtash and Mr Maddison were in the Treatment Room. SS was being treated by Mr Maddison on the treatment table in the middle of the room. SN was lying on the couch closest to the door. He was being treated by Dr Ebtash.[387] SN was asked how close the treatment table was to the couches. He did not agree that the treatment table was very close to the couches. His recollection was that it was a bit further away.[388]
10. During the course of his treatment, SS was sitting on the edge of the treatment table and Mr Maddison was moving around the table as he treated him.[389] SN thought the only thing that would have impeded Mr Maddison's view towards LN was 'just [SS], if he was on the other side of [SS] or standing up or something... or sitting on the table'.[390]

(iii) The injuries and soreness LN reported to Dr Ebtash

1. As we have mentioned, before the treatment, LN filled in a Patient Form and indicated on the Patient Form where she had injuries, or was suffering from soreness.[391] She thought she probably completed the Patient Form in her dressing room.[392] Initially, she thought that she may have given the Patient Form to CA,[393] but later accepted that she in fact handed the form to Dr Ebtash when she entered the Treatment Room.[394] Dr Ebtash's evidence was that LN gave the Patient Form to him as she entered the Treatment Room.[395]
2. In LN's Patient Form she marked, on diagrams of the human body, where it was that she was experiencing pain. She marked the top of her inner thighs (her adductor muscles), her ankles, her neck near her left shoulder, and her left hamstring (at the top of the back of her thighs).[396] In giving her evidence, she described having noted on the Patient Form that her left ankle, her left hamstring, and her neck were sore, but did not refer to her adductors.[397] That reflected the statement LN made to the police.[398] She denied that that was a deliberate omission in either her evidence to the Tribunal or in her statement to the police.[399] She explained that she did not have the Patient Form in front of her when she made her statement to the police.[400] We accept that her failure to refer to the fact that she had identified her adductors as an area of pain was an inadvertent omission.
3. Dr Ebtash reviewed the areas of pain and injury that LN had marked on the Patient Form, and numbered those injuries based on the severity of the concern.[401] Dr Ebtash noted that LN had identified on the Patient Form that her adductors were sore,[402] and that she had identified a tight hamstring, a tight left ankle and a sore neck as other areas of soreness or injury.[403]
4. LN could not recall having told Dr Ebtash about how she had injured her neck, but accepted that she may have told him.[404]
5. Dr Ebtash said that LN 'talk[ed] about her groin adductors becoming - being very painful. She - she was having hip and groin pain, she mentions, at the front'.[405] LN denied telling Dr Ebtash that she had pain in her hip and groin.[406] Given that LN did not mark on the diagram on the Patient Form any area of pain on her lower torso, around her hip and groin, and as her soreness was in her adductors, where she had marked on the Patient Form, we do not accept Dr Ebtash's evidence that she told him that she had hip and groin pain. We find that LN did not tell Dr Ebtash that she had groin pain.

(iv) Where LN was treated in the Treatment Room

1. Dr Ebtash told LN to lie down on the couch, which was next to the couch on which SN was lying. She lay on her back,[407] with her head at the end of the couch nearest to the make up table. Her feet were nearest to the other couch. SN was lying in the same way on the other couch.[408] In his evidence, SN confirmed that the two couches were positioned very close together 'if not touching'[409] so that SN was very close to LN while she was being treated.[410]
2. In a response that Dr Ebtash provided to the Board in the course of its investigations in early 2017, prior to the commencement of these proceedings, Dr Ebtash denied that he treated LN while she was lying on a lounge, and had instead claimed that he 'treated LN on the floor'.[411] Dr Ebtash indicated in that response that Mr Maddison would be able to confirm that that was the case.[412] No mention was made of that in Mr Maddison's evidence. There is no doubt that Dr Ebtash treated LN while she was lying on the couch, and we so find.

(v) LN's allegation that Dr Ebtash touched her labia

1. LN was wearing black dance leggings and a black sports bra at the time of the treatment.[413]
2. LN's evidence was that after Dr Ebtash noted that her adductors were sore 'he then with his fingers touched my vagina.'[414] (Throughout her evidence, when LN referred to Dr Ebtash touching parts of her body, we understood her to mean that he did so through her clothing.) However, she then clarified that in referring to her vagina she in fact meant 'he touched me on the right hand side of my labia'[415] and that he touched her there for 'about 10 to 15 seconds'.[416] She said that Dr Ebtash touched her with two fingers on his right hand.[417]
3. Her evidence was that 'he pressed down there and was holding and said that my pubis symphysis [sic] ... was tight and that my adductors were pulling on my pubic bone and my pubic bone was bruised'.[418] She was clear that 'he pressed down with both his fingers [and that] it was a continuous press and then a couple of presses and then he started to talk about my pubic symphysis and my adductors pulling on my ... pubic bone'.[419]
4. It was put to LN that while she was lying on her back, Dr Ebtash raised each of her legs up some distance, possibly to a 90 degree angle, and using his hand, he palpated or pressed the inside of each thigh where her adductor muscles were, and that he did so far as the inside of her groin, immediately adjacent to her vagina and just outside of her vagina. LN denied that this had occurred. Her evidence was that her legs stayed straight on the couch, and were not lifted upwards[420] and that Dr Ebtash did not palpate up the inside of her thigh. She was firm in her recollection that she was 'right away touched on my labia, on the outside of my vagina. Right away, the very first thing.'[421]
5. There were some logical difficulties with this part of LN's evidence. If LN's legs remained lying straight on the couch, without at least one of them being elevated or bent, it is not entirely clear how Dr Ebtash would have been able to touch her labia. The more likely explanation is that in focussing on Dr Ebtash's conduct in touching her labia, LN had forgotten some of the surrounding details, such as whether he undertook any other treatment, or positioned her legs, before touching her labia.
6. LN later said that she had a clear memory of being touched on her labia[422] and that she was touched on the left hand side of her labia.[423] However, it was pointed out to her that initially in her evidence, she had stated that she was touched on the right side of her labia.[424] She was unable to explain why it was that she had referred to the right hand side of her labia, and she maintained 'it's definitely the left hand side of my vagina. I can picture­perfectly remember this moment.'[425]
7. It was put to LN that Dr Ebtash had palpated from her knee up to her pubic rami (the area adjacent, and very close to her labia) and that Dr Ebtash had touched her on her pubic rami but with no contact to her labia. LN denied that that was the case and maintained that she was touched on her labia.[426]
8. It was also put to LN that Dr Ebtash had moved the back of his right hand down her abdomen until it came into contact with her pubic bone and, at that stage he pressed on the area just above her clitoris with his thumb, and told her that he was pressing on the pubic symphysis, and mentioned that she may well have osteitis pubis. LN denied that that happened and denied that Dr Ebtash had used the back of his hand as described.[427]
9. Later in the course of her evidence, LN said that 'as [Dr Ebtash] was pressing ... on my labia, he was telling me that I had pubic symphysis, which was where my adductors attach to my pubic bone, and ... it was a bruising of my pubic bone.'[428]
10. It was also put to LN that she was incorrect about the duration for which she was touched on her labia. She stood by her estimate that she was touched for 10 to 15 seconds, because 'as [Dr Ebtash] was touching me there he was explaining that I have pubic symphysis ... my adductors were pulling on my pubic bone and I had bruising of the pubic bone. So while he was explaining this to me he was pressing there'.[429]
11. We do not consider that LN's estimate of the time Dr Ebtash touched her on the labia was a reliable estimate. Witnesses are notoriously inaccurate in their estimation of time. Common human experience is that seconds can seem much longer in times of trauma or stress. As we discuss below, LN's estimate of how long she was touched on her breasts was also 10 to 15 seconds. That supports the conclusion that 10 to 15 seconds was simply her best estimate, but it was not intended to be, and cannot be regarded as, a precise estimate.
12. LN's evidence was that before Dr Ebtash referred to it, she had never heard of the term 'pubic symphysis'.[430] It was put to LN that as Dr Ebtash touched her groin area, just above her vagina, he mentioned that that was her pubic symphysis. She denied that that was the case. She also denied that Dr Ebtash had said that she may have osteitis pubis.[431] She said that that term was not mentioned to her.[432]
13. LN was adamant that when Dr Ebtash referred to the pubic symphysis, he was not telling her the part of her body he was pressing on.[433] Her evidence was that Dr Ebtash said 'you have pubic symphysis. This means your pubic bone is bruised. Your adductors are pulling on your pubic bone'.[434] She maintained that she was 'clear on these recollections'.[435]
14. LN said that while she had had her adductors treated many times before,[436] primarily with physiotherapy, that was not the treatment that she received from Dr Ebtash.[437] She said that in the kind of treatment she had previously received, she had had her leg lifted, and the physiotherapist had treated the inside of her thigh, but 'nowhere near my vagina. They've never gone up to my pubic bone, never gone up to the top of my thigh ... no one has ever touched my private area, no.'[438] She said that when her adductors have been treated previously, the physiotherapist would release tension in her hip flexors, and before pressing her on the side of her hips and inwards (but nowhere near her vagina), would always indicate where it was that they intended to press.[439] She denied ever having been palpated up into her groin area.[440]
15. LN denied that she had ever been palpated or pressed briefly on something called her pubic symphysis, or the area of the pubic mound, just above her vagina.[441]
16. LN confirmed that she was familiar with the fact that her adductor muscles connected at around the point of her pubic bone, just above her vagina. She pointed out that during previous treatment of her adductors, she had 'never been touched on my pubic bone or on my vagina area'.[442] She confirmed that Dr Ebtash was not touching her adductors on this occasion.[443]
17. LN said that after touching her labia, Dr Ebtash asked if she could change into underwear or shorts.[444] She refused to do so. She denied that he asked her to change into shorts in the context of him telling her that her adductors needed to be stripped or treated.[445]
18. LN described her thoughts when Dr Ebtash asked her to change into shorts as being:[446]

What is happening? This is not my adductors or my hamstrings. This is my vagina, and he was explaining to me that it was pubic symphysis. I remember that clearly and then after that he had asked for me to go down to shorts. I don't recall anything about my adductors being stripped.

1. LN explained that by that point 'I was extremely uncomfortable. I - I think, in the moment, I just felt like I had to come up with an excuse, and I said that, basically ... I had my period'.[447] She said that Dr Ebtash responded that 'it sounds like a very sensitive time'[448] and moved on to treating her ankle.[449]

1. At the time that LN was being treated, SN was lying on the couch closest to the door of the Treatment Room, immediately next to the couch on which LN was being treated.[450]
2. SN described how Dr Ebtash had given him acupuncture treatment in his leg.[451] He recalled that Dr Ebtash went back and forth between him and LN, that Dr Ebtash would adjust the needles in his leg, then he would go and work on LN, and then he would return to SN and adjust the needles again.[452]
3. SN's recollection as to the position of LN's legs at the time she was being treated was vague. SN's evidence was that when he was lying on the couch with acupuncture needles in his leg, he could not see what was happening when LN was being treated.[453] He remembered seeing LN with her leg being stretched and recollected only having actually seen her being treated on one thigh.[454] He estimated that he had looked over at that stage for possibly 10 or 15 seconds.[455] SN said that at the time Dr Ebtash had been doing treatment on LN involving 'some sort of like massage on like an inner leg'[456] but that he did not have the best view of what was happening at the time, as he was on the couch.
4. Although he could not precisely recall the order of events that happened, SN recalled that when Dr Ebtash was giving some treatment to LN, he heard Dr Ebtash ask her ''Is this okay' and she said 'No', and he was like 'okay. That's okay. We will do something else then''.[457] SN said that after that, Dr Ebtash came over and concluded his treatment on SN's leg.
5. The snippet of the conversation between Dr Ebtash and LN, which SN overheard, is, in our view, consistent with the tenor of the evidence given by LN about her refusal of Dr Ebtash's suggestion that she change into shorts for treatment.
6. It was apparent from his evidence that SN did not actually see (nor did he claim to see) very much of Dr Ebtash's treatment of LN while she was lying on the couch. We accept his evidence as to what he did see. In particular, we accept his evidence that he saw Dr Ebtash doing 'some sort of massage' on LN's inner leg. This part of SN's evidence provides support for the view that although LN did not recall Dr Ebtash doing any treatment on her leg, or raising her leg, he did do so, and she simply forgot that part of the treatment because she was concentrating on the fact that he touched her labia.

1. Dr Ebtash said that he asked LN to lie on her back on the couch and he started looking at the adductor 'the same way as I examined [JL]'.[458] His evidence as to what occurred next was as follows:[459]

I got her to hold her ankles together while I tried to separate it, looking at the adductor and ... especially given that she had mentioned about weakness, I wanted to know - I wanted to see how much weakness she has got. Then I palpated and she had mentioned both adductors and she had mentioned groin pain so I looked at - I looked at both thighs as well - both adductor regions. And similar to what I had done with [JL] I will be explaining things as I go along, explaining why I was doing something or where my hand was going to land. Then I ask[ed] her the same thing 'Do you mind if I feel - do you mind if I assess your pubic symphysis?' The same treatment style. I use[d] the back of my hand, came down from the bottom of the belly button ... down to the pubic symphysis, pressing in the middle, pressing on either side, and - which she obviously presented quite painful in those regions.

1. Dr Ebtash confirmed that when he treated LN's pubic symphysis, he used the same technique that he had used with JL, namely to press on her abdomen with the back of his hand, with fingers pointing upwards, until he reached the pubic symphysis, and then he turned his hand over and made contact on her pubic symphysis with his thumb.[460] He had no doubt that his thumb was making contact with her pubic symphysis.[461] Dr Ebtash confirmed that he put medium pressure on LN's pubic symphysis for about a second.[462] He denied having told LN that she had 'pubic symphysis', explaining that that 'simply highlights a region, not a condition'.[463]
2. Dr Ebtash's evidence was that as he moved the back of his hand down LN's abdomen, his hand was in an upward cup shape (as it was when he treated JL), he moved his hand down to LN's pubic symphysis, then turned it over and pressed with his thumb.[464] He confirmed that with his hand in that position, if he were to open his fingers they would point towards LN's head and away from her vagina area, so there was no chance of his fingers coming into contact with her labia.[465] Dr Ebtash said he had no doubt that when he was pressing down with his thumb that it was pressing on the pubic symphysis, and that the only part of his body that made contact with the pubic symphysis was his thumb.[466]
3. Dr Ebtash said that he pressed LN's pubic symphysis after he had felt her adductor muscles.[467] He confirmed that in feeling her adductor muscles he did not go anywhere near her labia. He confirmed that the next thing he did was to move his hand to her pubic bone. He said he made contact with his thumb on the pubic symphysis and on either side of it.[468]
4. Dr Ebtash firmly, and unambiguously, denied that he pressed on LN's labia,[469] that he pressed her labia for 15 to 20 seconds, or that he did so for any sexual gratification.[470]
5. Dr Ebtash agreed that both JL and LN had an issue with their pubic symphysis, and that when he treated LN he treated her using the same technique he had used with JL.[471]
6. Dr Ebtash said he asked LN if she could change into some shorts but she said that she had her period.[472] (Dr Ebtash explained that the point of changing into shorts or underwear for massage work was to enable cream or lotion to be used to massage directly on the skin.[473])
7. Dr Ebtash said that the only point in his treatment of LN where he witnessed an 'uncomfortable topic - element throughout that conversation'[474] was when he asked her if she could change into some shorts.

1. Mr Maddison gave evidence that he saw Dr Ebtash treating LN on the couch. Mr Maddison said he was standing on the far side of the treatment table, and that LN's head (rather than her feet) was closest to him. Mr Maddison said there was nothing between them to impede his vision of Dr Ebtash's treatment of LN.[475] (There was no specific evidence as to whether the couch on which LN was lying had armrests on it, and we have assumed, favourably to Dr Ebtash, that the couch on which LN was lying did not have armrests on it, which might have impeded Mr Maddison's view of LN's body as Dr Ebtash treated her.)
2. Mr Maddison recalled looking up 'and seeing [LN] with her right leg flexed and knee flexed, and her leg abducted or resting on the back of the couch'.[476] Mr Maddison's evidence was that:[477]

[LN] had complained of some hip pain too, and he was assessing her inner thigh and, on her right side, palpating down what appeared to be the adductor muscles or inner thigh muscles from the knee... I also observed him pressing on what appeared to be her pubic symphysis. Because she was wearing tight leggings, anatomically it was quite easy to see where Dr Ebtash was pressing.

1. It is convenient to mention at this point that in so far as Mr Maddison claimed that he saw Dr Ebtash touch LN on her pubic symphysis, we are unable to accept his evidence. Mr Maddison's claim that he saw Dr Ebtash touch LN's pubic symphysis was not mentioned in a statement he made about six weeks after the Second Occasion. The first time Mr Maddison made the claim that he observed Dr Ebtash touch LN's pubic symphysis was in the course of his evidence. In cross-examination, Mr Maddison accepted that he had not referred to Dr Ebtash giving LN treatment on her pubic symphysis in any of the documents that he had prepared in relation to this matter.[478]
2. Furthermore, we do not accept that Mr Maddison could have seen Dr Ebtash touch LN on that precise part of her body from where he was standing. At the time, LN was lying on the couch with her head closest to Mr Maddison. In other words, her lower body and legs were facing away from Mr Maddison. Mr Maddison was standing next to the treatment table. In a statement he made, which was in evidence, Mr Maddison said that he was standing no more than nine metres away from LN.[479] Even if LN's leg was resting against the side of the couch, and even assuming that there was no physical barrier of any kind between the treatment table where Mr Maddison was treating SS and the couch where LN was lying, we do not accept that Mr Maddison would have been able to see clearly that Dr Ebtash was pressing precisely on LN's pubic symphysis, as opposed to pressing on the area of her lower abdomen, or her genitals, for example. That is particularly so when, on Dr Ebtash's evidence, he touched LN on the pubic symphysis once, for a second.
3. Mr Maddison also said that he had no difficulty hearing what was said between Dr Ebtash and LN.[480] He recalled that after Dr Ebtash:[481]

[H]ad assessed [LN] he asked her if it was okay if she changed her leggings for some shorts as he wanted to perform a treatment that would be more appropriate for her to be wearing shorts. And to this [LN] explained that she had her period and didn't - wasn't comfortable changing into any shorts... and to that Dr Ebtash actually replied 'If that's the case, then we will leave treatment for that this time'.

1. For the reasons set out below, in relation to our findings concerning the credibility of LN, SN, Dr Ebtash, and Mr Maddison, and having regard to the evidence given by the other cast members, as to LN's conduct following her treatment by Dr Ebtash, we prefer LN's evidence to the evidence given by Mr Maddison and Dr Ebtash, to the extent that their evidence differed in any respect from that given by LN.
2. Consequently, we find that on the Second Occasion, in the course of treating LN, which involved him massaging her inner leg, Dr Ebtash pressed down on the left hand side of her labia with two fingers on his right hand. Given our reservations about the accuracy of LN's estimate of the duration of that touching, we find that Dr Ebtash pressed briefly on the left hand side of LN's labia.

1. LN's evidence was that after she refused to change into shorts, Dr Ebtash then proceeded to adjust her ankle, and then adjusted her neck.[482] She said that after he did so, he started to massage her upper pectoral muscles.[483] LN said that Dr Ebtash told her that that her pectorals were tight and he massaged them, and massaged down under her arm pits as well.[484] Her evidence was that he used both hands to do so.[485]
2. LN said that after Dr Ebtash massaged into her arm pits:[486]

[H]e moved his hands back up, and then he massaged my breasts. And I was feeling very uncomfortable at this stage, and then he stopped and left and went to assist [SN].

1. LN said that Dr Ebtash had massaged her breasts with his fingers in circular motions, over her clothes, and that he touched her nipples through her clothes.[487] LN was emphatic that her breasts were massaged, including her nipples, over her clothes,[488] and that it was Dr Ebtash who had done so.[489] LN thought that this took about 10 to 15 seconds.[490] Again, for the reasons set out above, we have regarded this as LN's best estimate, but it cannot be regarded as a precise measurement of how long her breasts were massaged.
2. LN's evidence was that after Dr Ebtash massaged her breasts, he went over to SN and attended to his treatment.[491]
3. LN said that after being treated by Dr Ebtash, she moved from the couch to a chair which was next to the make up table.[492] At that point, she said that Mr Maddison came over and started talking to her about strengthening exercises for her neck.[493]
4. It was put to LN that the alleged massaging of her breasts occurred in plain sight of everyone else in the room. LN acknowledged there were other people in the room, but her evidence was that because they were not facing her on the couch, what occurred was not in plain view. LN denied that SS could see her, as he was over on the treatment table, with Mr Maddison treating him, and the treatment table was positioned in the middle of the room, which was very big.[494] LN explained that while her breasts were being massaged, SN was walking around the room.[495] (Her evidence was that she had seen SN walking around the room while the acupuncture needles were in his thighs, and after the needles were removed as well.[496])
5. It was put to LN in cross-examination that it was Mr Maddison who, at Dr Ebtash's instruction or request, had massaged her shoulder muscles, manipulated her neck and shoulder area, and then massaged the upper portion of her pectorals on each side, above her nipples and breasts.[497] LN denied that, after he treated her neck, Dr Ebtash moved away and started treating someone else, and that at that stage, she was referred to and treated by Mr Maddison. She said that 'that was later'.[498] LN maintained that Mr Maddison was working on SS and that he did not perform soft tissue therapy and manipulation of her neck, shoulders and upper pectorals, nor did he administer any treatment on her.[499]

1. Dr Ebtash confirmed that he had manipulated LN's neck and cracked it. He denied that he had massaged her pectoral muscles, or moved his hands down to her armpit, and then rubbed both of her breasts with his hands for five to ten seconds. Dr Ebtash denied doing any treatment on LN's chest or pectoral muscles.[500] He denied telling LN that her pectoral muscles were tight.[501] Dr Ebtash denied that his hands went over the tops of her nipples over her clothes, as LN had described.[502] Dr Ebtash's evidence was that he 'did not do any soft tissue work' and that after adjusting her neck, he referred the soft tissue work to Mr Maddison.[503]
2. As we explain below, the Clinical Notes made by Dr Ebtash in relation to his treatment of LN contain an entry which is contrary to the latter aspect of Dr Ebtash's evidence. The Clinical Notes indicate that Dr Ebtash did in fact do some soft tissue work on her neck and cervical spine, as well as adjusting LN's neck.

1. Mr Maddison's evidence was that Dr Ebtash left LN and went to deal with SN first, to finish off his treatment, and then he went to the treatment table where Mr Maddison was treating SS.[504] He said Dr Ebtash asked him to perform some soft tissue techniques on LN's neck and shoulders for her headache and the issues she had in her neck and upper shoulders.[505] Mr Maddison then left SS and Dr Ebtash proceeded to perform some treatment techniques on SS.[506] Mr Maddison confirmed that his recollection was that he treated LN after Dr Ebtash had finished treating her.[507]
2. Mr Maddison said that, at that stage, LN was sitting on the couch and that he performed some soft tissue techniques and gave her some stretches to be performed throughout the day.[508] He recalled that LN was seated on the 'second couch' and that when he performed the treatment techniques, that some of those techniques were in a seated position and some of them were in a laying down, face down.[509]
3. Mr Maddison confirmed that while he treated LN by placing his hands on her neck and shoulders, and down into her trapezius, he had not touched her pectorals at all.[510] He denied touching LN on her breasts, or going anywhere near her breasts, while he was treating her.[511]
4. In cross-examination, Mr Maddison gave different evidence as to his treatment of LN. Initially, Mr Maddison's evidence was that 'I recall [LN] was sat at one stage performing her stretches ... but I do not recall where that was.'[512] He later stated that while he recalled that LN was in a seated position 'I cannot remember where she was sat'.[513] He also acknowledged that 'it may be correct' that after LN had had treatment with Dr Ebtash, she went and sat on one of the chairs at the make up area.[514] He maintained, however, that he performed some soft tissue techniques on the couch while LN was lying down.[515]
5. SN recalled seeing Dr Ebtash go over to the treatment table and give some treatment to SS.[516] He was unable to recall seeing Mr Maddison treat LN around her neck and shoulders. His evidence went no higher than 'it sounds like it's something that could have happened, you know'.[517] We place no reliance on that answer, which was entirely speculative.
6. For the reasons set out later in these reasons, in relation to our findings concerning the credibility of LN, Dr Ebtash and Mr Maddison, and having regard to the evidence given by SN, and the other cast members, as to LN's conduct following her treatment by Dr Ebtash, we prefer LN's evidence to the evidence given by Mr Maddison and Dr Ebtash, to the extent that their evidence differed in respect of this aspect of LN's allegations.
7. Accordingly, we find that on the Second Occasion, in the course of treating LN, Dr Ebtash used his fingers to massage LN's breasts, including her nipples, through her clothes. Given our reservations about the accuracy of LN's estimate of the duration of that touching, we find that Dr Ebtash briefly used his fingers to massage LN's breasts.

1. There was no evidence that when Dr Ebtash touched her labia, or her breasts, that LN reacted in any way, demanded that he stop, or sought the assistance of SN, or Mr Maddison. LN did not say anything to Dr Ebtash at that stage:[518]

I hadn't said anything ... I think I went into a little bit of a shock state and I didn't have really much of a - a voice ... I remember feeling very uncomfortable right from the beginning and I am, you know, normally very sure of that sort of thing but I think I was made to feel like it was okay.

1. LN said she felt extremely uncomfortable when Dr Ebtash massaged her breasts.[519] She said that after Dr Ebtash had massaged her breasts, she sat up from the couch and tried to get SN's attention, by trying to look at him as he was walking around with acupuncture needles in his legs.[520]
2. LN said that she then moved from the couch to a chair which was next to the make up table.[521] At that point she said that Mr Maddison came over and started talking to her about strengthening exercises for her neck.[522]
3. SN also recalled that there was a point after Dr Ebtash had done some treatment on LN when Dr Ebtash left LN and went over to check on SS. At that stage, SN was still lying on the couch while he was having the acupuncture treatment on his legs. SN recalled that he looked over at LN:[523]

[S]he had a bit of a panic look on her face, and I had needles in my legs, so I couldn't really get up or do anything, but I sort of looked at her and I - I - I mouthed, like, 'Are you okay?' and she shook her head no and she - her eyes sort of swelled up with tears ... but she wasn't crying at that stage.

1. We accept SN's evidence that he saw LN with a panicked look on her face, and that she shook her head and her eyes swelled with tears when he asked whether she was okay. . There was no evidence to suggest any alternative explanation for LN's distress, other than her response to Dr Ebtash's conduct.
2. Dr Ebtash's evidence was that at no stage when he was interacting with LN was he conscious of her being in distress to any degree, or welling up with tears, or anything that might be perceived as shock.[524] He denied having seen any interaction between LN and SN, and did not see SN mouthing the words 'are you okay'.[525]
3. Mr Maddison said that he performed soft tissue treatment on LN's neck and shoulders for about five minutes,[526] that throughout that time LN 'seemed quite fine', and that throughout his observation and interaction with her, she did not appear fearful at all.[527] Mr Maddison said that after he had finished treating LN, she told him that her neck felt a lot looser, even though she still had a mild headache.[528] He said that 'she just seemed quiet and normal'[529] and while she was not laughing and joking, nor was she in tears or sad, but rather 'seemed like in a normal demeanour'.[530]
4. In so far as Mr Maddison's evidence is concerned, we note that LN's evidence was that she was in shock as a result of Dr Ebtash's conduct. Mr Maddison did not know her, and would not necessarily be in a position to notice if she was distressed, other than by some overt indication (such as weeping). Furthermore, on his own evidence, Mr Maddison was, while treating other patients, endeavouring to pay attention to what Dr Ebtash was doing, and it would not be surprising if he failed to notice any signs of distress on her part.
5. SN, on the other hand, was LN's boyfriend.[531] It is not surprising that he noticed that LN was distressed. We accept SN's evidence.
6. We find that after Dr Ebtash treated LN, she showed an expression of panic, indicated that she was not okay and her eyes swelled with tears. Her conduct was consistent with a person experiencing distress. There was no evidence to suggest any alternative explanation for LN's distress, other than a response to Dr Ebtash's conduct, and we infer that her distress was a response to Dr Ebtash's conduct.

1. SN's evidence was that after the treatment finished, he and LN walked downstairs to the dressing rooms.[532] That evidence suggested that they left together.
2. In contrast, Mr Maddison recalled that SN left the Treatment Room first, and then after Mr Maddison finished treating LN a short time later, LN left the Treatment Room.[533] SS was the last to leave.[534]
3. Dr Ebtash also said that SN left the Treatment Room first, then LN and that SS left last.
4. LN's recollection was that after her treatment was finished, she was feeling distraught, she went downstairs by herself to her dressing room, and that SN came into the dressing room a short time later.[535] However, at another point in her evidence, LN said that SN was in the dressing room when she walked in.[536] It is not surprising that a person who was feeling distraught might be confused about precisely who entered the dressing room first.
5. MT also saw LN after LN's treatment.[537] MT said that in the late afternoon on the Second Occasion, she saw LN run into her dressing room, very distressed and crying.[538]
6. Nothing turns on the minor difference in the evidence as to who entered the dressing room first. Having regard to MT's evidence, and to all of the circumstances, we are satisfied that it is more likely than not that LN left the Treatment Room on her own, that she was distraught by that stage, and that she went straight to her dressing room in that state, and we so find.
7. LN described what happened next as follows:[539]

I went into the dressing room and I was very affected by what happened. And I started crying hysterically. And then [SN] came downstairs and came into the dressing room and was consoling me and then [SS] came downstairs after he had finished and - and had asked me what happened but I didn't share any information. I was embarrassed.

1. LN said that she told SN 'right away' what had happened.[540] She said:[541]

I told him that Soroush had - first thing when [I] had lied down he had touched me on the vagina. And I was - I was just hysterical. I've explained the - the events, like I told you, of what had happened and ... I was kind of in hysterics.

1. SN said that when he saw her in the dressing room, LN 'just sort of collapsed and started crying ... She just sort of fell to the ground and started crying.'[542] SN was unable to recall LN's precise words when he asked her what was wrong, but said she told him that 'she had felt violated by the treatment that had been given to her'[543] and that 'she had been touched on her vagina'.[544]
2. MT also witnessed LN in a very distressed state when LN ran into the dressing room. MT said LN's distress was like 'she was having a nervous breakdown, like, it was really bad'.[545]
3. SN regarded LN's reaction as being both entirely genuine, and sufficiently serious to warrant him giving a warning to the other cast members who were due to have treatment with Dr Ebtash that afternoon. He said that after speaking with LN, he 'left the room because there were more people going up for treatment and I felt the need to sort of tell them to be careful and to watch out'.[546] SN said that he ran into HJ and MS and:[547]

[S]aid something along the lines of, like, 'Hey, like, [LN] just got treatment and, you know, she felt like it was inappropriate. Please be careful when you go up there. You know, make sure you avoid sort of any treatment that's happening around sensitive areas'.

1. MS recalled seeing SN in the stairwell on the way to the Treatment Room. She recalled that SN said '[b]e aware. Just be aware and be careful in your treatment.'[548]
2. Counsel for Dr Ebtash submitted that SN's reaction to his girlfriend hysterically crying on the dressing room floor - that is, his concern to warn other cast members - was not 'a logical reaction if you had seen somebody so affected detrimentally... [T]his is as far away from the sort of reaction you would expect if your girlfriend was lying in hysterics on the floor that you could expect.'[549] We are unable to accept that submission. We think it entirely understandable, once SN had ascertained from LN that her distress arose from some aspect of her treatment, that he would be concerned to warn the other cast members who were due to have treatment that afternoon.
3. MS also recalled that later that afternoon, after she and HJ saw Dr Ebtash for treatment, they 'bumped into [LN]. She was white like a ghost. I asked her how her day was and she broke down crying.'[550]
4. A little later that afternoon, LN and SN went for a walk outside to get some air because she was so upset. SN encouraged LN to tell CA about what had happened right away.[551] LN must have done so because MT recalled that later on that day:[552]

[CA] told us all kind of in private - the girls - that there's something that has happened, that this has shaken [LN]... and she's a little fragile right now, and we just need to understand. And we didn't know what it was, and afterwards we figured out that it was because of the treatment with Dr Soroush and that something happened that made her completely fall apart. And it was quite disturbing.

1. In addition, the following day, CA sent an email to Dr Ebtash in which she referred to his 'inappropriate practices' during the treatment sessions. We discuss that email later in these reasons.
2. The evidence leaves us with no doubt, and we find, that immediately following her treatment on the Second Occasion, LN was extremely distressed and emotional, and she made an immediate complaint to SN that Dr Ebtash had touched her on the vagina.
3. We find that LN also made CA aware, later on the same afternoon, that she had been touched inappropriately by Dr Ebtash in the course of her treatment. LN did not give evidence as to precisely what she told CA on that occasion. However, we note that in the statement she provided to the police, LN stated that after she and SN returned from their walk, she told CA that Dr Ebtash had touched her vagina, that she had told him she had her period, and that he had touched her breasts.[553]

(ix) Did LN consent to being touched on her labia and breasts by Dr Ebtash?

1. LN denied that Dr Ebtash had explained to her what it was he was doing, when he touched her groin area, and she denied that she consented. LN's evidence was that 'I didn't consent. I was laying there, and I was actually in shock in that moment.'[554] She went on:[555]

I knew right away - I didn't consent to this, there was no 'I am about to touch your - ' and this is - I have been treated by many physiotherapists, and there is - if there is any moment in which they would come close to a sensitive part, there is always a consent...And I will consent [to] it. There was no consent. There was no conversation of consent.

1. Dr Ebtash's evidence was that he obtained LN's consent to touch her body at every stage:[556]

And similar to what I had done with [JL] I will be explaining things as I go along, explaining why I was doing something or where my hand was going to land. Then I ask[ed] her the same thing 'Do you mind if I feel - do you mind if I assess your pubic symphysis?'

1. He agreed that he asked for permission to touch the front of LN's pelvis.[557]
2. Dr Ebtash also relied on notes he took at the time of LN's treatment, in which he noted that LN consented to various aspects of the treatment.[558]
3. Given Dr Ebtash's denials that he touched LN on the labia, or on her breasts, it is hardly surprising that there was no evidence to suggest that he did obtain her consent to touching her in that way.
4. Having regard to LN's evidence, and to the credibility findings we have made in relation to her allegations that Dr Ebtash touched her on the labia, and on the breasts, we find that Dr Ebtash did not inform LN that he intended to, or might, touch her labia or breasts, or explain why, nor did he obtain LN's consent to touch her on the labia, or on her breasts, before he did so.

1. Dr Ebtash's evidence was that when he assessed and treated each cast member he made handwritten notes in the Assessment Notes.[559] Mr Maddison also confirmed that throughout the course of the treatments provided on the Second Occasion, Dr Ebtash made brief notes on a document which contained columns with the patients' names running down the page.[560] (That description matched the description of the Assessment Notes.)
2. Copies of the Assessment Notes Dr Ebtash made on the Second Occasion were in evidence, as was a typewritten copy of each of the Assessment Notes, which Dr Ebtash made in preparation for the hearing.[561]
3. In relation to LN, the Assessment Notes stated as follows:[562]

Informed consent obtained (treatment style, risks, benefits, length, etc)

Do you have any current or past medical condition or injury we need to be aware of

Add[uctor] tendonapathy - OP [osteitis pubis] - permission to examine and assess

Ankle adj[ustment] - Ltd [limited] talus Mvt [movement] - consent to adj[ust] - discussed risks and benefits - Mark STT [soft tissue therapy]

1. Even if judged by reference to Dr Ebtash's evidence, the Assessment Notes are an incomplete record of the treatment given to LN. The notes do not refer to the fact that Dr Ebtash manipulated LN's neck, for example. Dr Ebtash explained that he did not (in making the Assessment Notes) try to make full notes of the treatment given to each patient. He said that that was due to 'inadequate time, being rushed... trying to get the first group out, given the fact that there had been potential [for more] to appear at the time, and not exactly knowing how many more... were going to come'.[563]
2. Given that the Assessment Notes are not a comprehensive set of notes, we do not place any significant weight on them as supporting the evidence of Dr Ebtash.

1. Dr Ebtash's evidence was that after treating the cast members on the Second Occasion, he made the Clinical Notes in relation to what had occurred during their treatment. In the case of the cast members he treated on the Second Occasion, the Clinical Notes were made on the back of the Patient Forms completed by each patient.[564]
2. Copies of the Clinical Notes were in evidence, as were a typewritten version of each of those Notes, prepared by Dr Ebtash in preparation for the hearing.[565]
3. In relation to LN, the Clinical Notes stated:[566]

Pain in the ankle, Achilles and thigh (add[uctors]) - groin pain - OP (Osteitis Pubis), Neck Pain - H/A (headache) and having pain / tension

- When dancing gets pain in the ankle and neck - LA based choreographer - jerky motion - neck thrown around - had facet joint injury a few weeks back - never healed, saw physio to get through the show

- Ankle mob[ilisation], Achilles and calf TRPTR [trigger point therapy]

- Thigh pain - explained OP (Osteitis Pubis) and Add (Adductor) insertion

- Mid menstrual cycle - no need to remove pants - need STT [soft tissue therapy] / stripping MM [muscles] and Acc [Acupuncture]

- TRPRT [trigger point therapy] over pants mid add and lower add [adductors]

- TRPRT [trigger point therapy] CXS [cervical / neck] - referred to Mark - TRPRT [trigger point therapy] and stretch [sic]

- Consent - adj[ust] CXS [cervical] spine and adj[ust] Ant Talus [Anterior Talus]

- Felt better in the CX [neck / cervical] region but needs more work as has chronic OP [osteitis pubis] and CXS [cervical spine] pain even before recent accident

1. Dr Ebtash initially said that he made the Clinical Notes based on his memory of what had occurred,[567] and that he did not recall referring to the Assessment Notes when made the Clinical Notes.[568] He initially said that although the Assessment Notes would have been in front of him, he was able to make the Clinical Notes by relying on his memory of dealing with the patients, because he had finished with the last patient only about 10 minutes before making the Clinical Notes.[569]
2. However, later in his evidence, Dr Ebtash revised that answer and stated that he did refer to the Assessment Notes when making the Clinical Notes.[570]

1. Dr Ebtash was asked about when he made the Clinical Notes. His evidence was that he made the Clinical Notes after he treated the cast members on the Second Occasion.
2. Dr Ebtash's evidence was that he made the Clinical Notes in relation to LN (which were written on the back of her Patient Form) shortly after he finished treating the cast members on the Second Occasion. His evidence was that immediately after the treatment sessions were finished, he gave Mr Maddison a lift back to Next Generation Health Club in Kings Park, where Mr Maddison's car was parked.[571] Dr Ebtash's evidence was that he went to the consulting room he maintained within the Next Generation Health Club in Kings Park[572] and that he made the Clinical Notes there.
3. In the course of his evidence in the Tribunal, Mr Maddison mentioned that after Dr Ebtash gave him a lift back to the Next Generation Health Club, following the completion of the treatments on the Second Occasion, Dr Ebtash told him that he was going to go inside and write up his notes.[573]
4. Mr Maddison accepted that in none of the statements he made prior to the hearing had he made mention of Dr Ebtash taking notes of his treatment of the cast members.[574] Mr Maddison's explanation was that 'I was told that Dr Ebtash had to make notes. I do not know where he made those notes, though.'[575] He was asked why he gave that evidence, and his response was that '[t]hat was just my recall of the events at the end of that sessions [sic].'[576] Mr Maddison was also asked whether the only reason he gave that evidence was that it had just occurred to him while giving his evidence. He answered:[577]

No. I had had discussions with [Dr Ebtash's] legal team and while we were talking, he kept asking me and I said, 'Was there anything else? Was there anything else?' and I said Dr Ebtash and I separated our ways and he wrote his notes.

1. The implication from Mr Maddison's evidence thus appeared to be that during discussions with Dr Ebtash's counsel, Mr Maddison had simply recalled his conversation with Dr Ebtash in relation to the making of the Clinical Notes.[578] (We have proceeded on the basis that Dr Ebtash's counsel did not disclose to Mr Maddison that the making of the Clinical Notes had become an issue in the course of the hearing.)
2. Mr Maddison was not present in the hearing room while the other witnesses, and Dr Ebtash, gave their evidence. That being the case, it is a remarkable coincidence that after such a significant period had elapsed between the Second Occasion and the hearing, Mr Maddison managed to recall the details of an otherwise innocuous conversation with Dr Ebtash about the Clinical Notes, which he had not mentioned in any statement he had previously made about the events of the Second Occasion, and that he managed to recall that conversation at a point when the timing of the making of the Clinical Notes had become significant.
3. On the other hand, Mr Maddison admitted that he had had contact with Dr Ebtash at work. While Mr Maddison denied that he had talked about this matter with Dr Ebtash after Dr Ebtash gave his evidence,[579] we are unable to accept that denial. The compelling contrary inference is that Dr Ebtash alerted Mr Maddison to this issue, before Mr Maddison gave his evidence. We find that that was what occurred.
4. In the end, even if the conversation Mr Maddison claims to have had with Dr Ebtash at the Next Generation Health Club (in relation to the making of the Clinical Notes) in fact occurred, it does not establish when the Clinical Notes were in fact made. However, Mr Maddison's evidence about this issue reflects very poorly on his credibility. We discuss that issue further in relation to our findings about his credibility and reliability below.
5. Dr Ebtash's evidence was that the Clinical Notes, which he had made on the back of the Patient Forms, were eventually scanned and saved on the computer system at his clinic. He said that was his usual procedure with such notes.[580] In response to the issue concerning the time of the creation of the Clinical Notes pertaining to the female cast members, Dr Ebtash provided the Board's solicitors with screen shots of the various files which had been uploaded to his computer database relating to the Clinical Notes.[581] These were tendered in evidence, by leave,[582] after the hearing concluded.[583] In addition, following the hearing, and by leave, Dr Ebtash filed a further statement in which he explained how the Clinical Notes came to be uploaded onto his computer database.[584]
6. In that statement, Dr Ebtash explained that the Clinical Notes were dealt with by uploading the documents to the computer system at his clinic as jpg and PDF files.[585] Dr Ebtash said that the Clinical Notes bore two date stamps because they had been photographed and then converted to PDF files: one for the date when they were photographed and one for the date when they were converted to pdf. The date in question was a date which was five days after the Second Occasion. That evidence implies that the Clinical Notes were made at some point after the treatments concluded on the Second Occasion, and prior to their upload to Dr Ebtash's computer system five days later.[586]
7. Having regard to the evidence as a whole, it is not possible to make a more specific finding about the precise date on which the Clinical Notes were made. However, given the inaccuracies in the Clinical Notes, in so far as they refer to treatment which was not given to LN, we are unable to accept that the Clinical Notes were made shortly after the treatment on the Second Occasion.
8. The more compelling inference is that Dr Ebtash made the Clinical Notes in their detailed form up to five days after the Second Occasion, and that he did so because he had by then become aware that the female cast members had complained about inappropriate practices in his treatment. As we explain below, the compelling inference is that Dr Ebtash made the Clinical Notes to protect his own position in the event that those complaints were pursued.

Can the Clinical Notes be viewed as an accurate contemporaneous record of Dr Ebtash's treatment of LN?

1. It is immediately apparent that there are some very significant differences between the Assessment Notes and the Clinical Notes in relation to LN. First, the Clinical Notes do not reflect the chronological order of the Assessment Notes. By way of example, the Clinical Notes suggest that Dr Ebtash undertook the manipulation of LN's ankle at the outset (after obtaining her history) whereas the Assessment Notes suggest that LN's ankle was treated towards the end of her treatment session. In addition, the Clinical Notes suggest that Dr Ebtash treated LN both before and after Mr Maddison treated her, whereas the Assessment Notes suggest that LN's referral to Mr Maddison for treatment was the last part of her treatment session and that she did not see Dr Ebtash again after that.
2. Dr Ebtash sought to explain the differences in the chronological order of events recorded in the Clinical Notes, as compared with the Assessment Notes, on the basis that in the Clinical Notes 'I was writing a narrative... I was not trying to highlight the chronological order of the events. I was simply describing what took place in the session.'[587]
3. Another disparity between the Clinical Notes and the Assessment Notes is that the Clinical Notes refer to treatment which is not referred to in the Assessment Notes at all. By way of example, the Clinical Notes refer to Dr Ebtash having done trigger point therapy, and an adjustment, on LN's cervical spine (as distinct from her neck). Dr Ebtash acknowledged that the Clinical Notes included matters, including LN's consent to treatment (of her cervical spine) which were not included in the Assessment Notes.[588] Dr Ebtash's explanation was that when he got back to the Next Generation Health Club and was compiling the Clinical Notes, he remembered that that had happened and put it in the notes.[589] In addition, however, we note also that this entry in the Clinical Notes is inconsistent with evidence given at the hearing, as discussed at [241].
4. There are three further, and puzzling, aspects to the Clinical Notes in relation to LN. First, the Clinical Notes refer to LN having identified pain in her Achilles tendon, and to Dr Ebtash having undertaken trigger point therapy on LN's Achilles tendon and calf muscle. Treatment of that part of LN's body was not referred to at all in the Assessment Notes. LN did not refer in her Patient Form to an injury or soreness in her Achilles tendon or calf muscle (although she did refer to an issue with her hamstring), nor did she refer to injuries or soreness of that kind in the course of her evidence. Even more puzzling, however, is that in his evidence Dr Ebtash did not mention treating LN's Achilles tendon or calf muscle.
5. If Dr Ebtash made the Clinical Notes within 10 minutes of completing treatment for his last patient on the Second Occasion, as he claimed, then it is difficult to see how he could have been mistaken about what treatment he undertook for each of the cast members he saw on the Second Occasion (bearing in mind he only saw six of them that afternoon). On the other hand, if the Clinical Notes were not made immediately after the treatment, but were made a few days later, there would be a possibility that Dr Ebtash may not recollect, with complete accuracy, the treatment given to each cast member (especially given Dr Ebtash's evidence that he saw hundreds of patients each week).
6. Secondly, the Clinical Notes are extremely detailed when compared with the Clinical Notes made by Dr Ebtash in relation to KM (which were also in evidence). That is noteworthy because the cast members were not likely to be long-term patients. There would be little point in investing the time to compose very detailed patient notes if they were only to be seen again (if at all) during the Show's run in Perth.
7. Thirdly, the Clinical Notes contain a reference to 'mid menstrual cycle - no need to remove pants'. In other words, they refer to something which did not occur (LN changing into her shorts). Dr Ebtash's evidence was that he made the note 'no need to remove pants' because it was part of his practice 'that if somebody disrobes, we write disrobed and if somebody did not remove any clothing we do record that as well'.[590] He stated that 'if you are treating someone's abductors [sic] or a region that might be of a sensitive nature, if there was a conversation carried around getting to shorts and then choosing not to - so there was a conversation carried [out] - I record that'.[591] We found that to be an unconvincing explanation for the inclusion of the observation.
8. On the other hand, if the Clinical Notes were not made immediately after the treatment sessions on the Second Occasion, but up to five days after that, then that may explain how Dr Ebtash might make errors in setting out the treatment undertaken on LN. Furthermore, as we explain below, the day after the Second Occasion, CA sent emails to Dr Ebtash referring to the cast members' complaints of inappropriate practices. The possibility of those complaints being pursued would be a reason for Dr Ebtash to make more detailed notes of the treatment given than he otherwise might, for self-serving purposes.
9. In the circumstances, we find that the Clinical Notes cannot be viewed as a completely accurate, or contemporaneous, record of what occurred, but rather must be viewed with caution, on the basis that their content may be self-serving. Accordingly, we have not given weight to the Clinical Notes as corroborating Dr Ebtash's account of his treatment with LN.
10. We have relied on the Clinical Notes to the extent that their contents cannot be regarded as self-serving for Dr Ebtash. We have relied upon the Clinical Notes, for example, in so far as they indicate that Dr Ebtash and Mr Maddison engaged in trigger point therapy on LN's cervical spine and neck. In that respect, the Clinical Notes are inconsistent with Dr Ebtash's claim that he did not do any soft tissue work on LN, but rather referred all soft tissue work to Mr Maddison. In the latter respect, the Clinical Notes are consistent with LN's evidence that it was Dr Ebtash who undertook soft tissue treatment on her neck, shoulders and upper pectorals, immediately prior to moving to massaging her breasts with his hands.
11. Our conclusions in relation to the Clinical Notes reflect very poorly on Dr Ebtash's credibility. We refer to this issue further below in our consideration of the credibility of Dr Ebtash's evidence.

(xi) Was there any clinical justification for Dr Ebtash to touch LN on her labia or breasts?

1. Dr Ebtash denied having touched LN's labia and breasts. He did not advance any clinical justification for touching LN on those parts of her body.
2. Dr Crawford's opinion was that in the absence of an appropriate clinical assessment, diagnosis and plan of management, followed by the grant of informed consent, there was no clinical justification for Dr Ebtash to touch LN in the way in which she alleged.[592]
3. Dr Crawford's opinion was that if LN was touched on the side of her vagina, as she alleged, then that action was not clinically appropriate, especially as there was no definite diagnosis on which to base any treatment, and there was no informed consent to treat.
4. Dr Crawford acknowledged that treating the adductor muscle group may involve treatment over the medial thigh up to the attachments of the muscles comprising the adductor group on the pubic and ischial rami. Dr Crawford acknowledged that 'due to the close anatomical relationships between the proximal aspect of the adductor muscle group of the thigh and the female genitalia it is not unexpected that massage of the proximal thigh adductors or palpation of this area may involve inadvertent contact with the (clothed) external genitalia in particular the labia majora.'[593] For that reason, he noted that special precautions would need to be adopted in the way that the patient's body was positioned, to ensure no such inadvertent touching of the genitals occurred.[594] However, he noted that LN's description of Dr Ebtash pressing her labia for 10 to 15 seconds, could not be regarded as an inadvertent touching of the genitals in the course of treating the adductor.[595]
5. In any event, as the circumstances described by LN in her evidence did not reflect such inadvertent touching, Dr Crawford's opinion was that the manner in which Dr Ebtash touched LN on the labia could not be regarded as being clinically motivated.[596]
6. As for the alleged massaging of LN's breasts, Dr Crawford observed that the basis for Dr Ebtash's statement to LN that her 'pecs are tight' was not clear, as there was, on the evidence, no appropriate clinical assessment on which to base that determination.[597] As for LN's allegations that Dr Ebtash massaged her pectoral muscles with both hands, and then moved his hands down and firmly rubbed both her breasts with his hands, Dr Crawford observed that 'in the absence of an appropriate history regarding any shoulder pain or, specifically, pain related to the origin or insertion of the pectoralis minor muscle it is unclear what clinical indication justifies contact with or over the breast tissue.'[598] Without evidence of some clinical basis on which Dr Ebtash had concluded that LN's pectoral muscles were tight and more evidence as to where he had touched her on the breasts, Dr Crawford was unable to find any clinical justification or clinical motivation for Dr Ebtash to touch LN in the manner alleged.[599]
7. We accept Dr Crawford's evidence, as to which there was no dispute. We find that there was no clinical justification for Dr Ebtash to press on LN's labia, through her clothing, in the manner she described, or for him to massage her breasts, including her nipples, through her clothing.

(xii) Findings as to LN's credibility and reliability

1. A number of features of LN's evidence strongly suggested that her evidence was both credible and reliable.
2. First, LN was a confident and forthright witness. For the most part, she remained composed during the course of her evidence. Occasionally, she became affected by emotion as she recounted some parts of her evidence, such as during her evidence in chief when she described how she felt when Dr Ebtash massaged her breasts; towards the end of cross­examination; and in re-examination.[600] That is not surprising given the sensitive personal nature of the evidence involved, and the stress on a witness in being cross-examined. The extent of the emotion she manifested was restrained, and it was apparent that she was endeavouring to compose herself. Nothing in LN's demeanour in giving her evidence caused us to doubt her honesty.
3. Secondly, LN had a clear recollection of the key parts of her evidence (in which she described where Dr Ebtash touched her). We have not overlooked her difficulty in recollecting some other matters, but as we explain below, we do not regard that as suggesting a lack of honesty or unreliability on her part.
4. While we took into account both of these first two considerations, in assessing LN's evidence (and indeed the evidence of all of the witnesses) we have borne in mind the limits of courtroom demeanour as a guide to a witness' credibility. Consequently, LN's demeanour as she gave her evidence has not figured greatly in our overall assessment of her evidence. Sometimes untruthful witnesses can appear confident because they have rehearsed their evidence. And sometimes truthful witnesses can appear to lack credibility if they are nervous or apprehensive, for example. We have placed far greater weight on other evidence, drawn from LN's conduct at the time, which was consistent with the truth and reliability of her account.
5. Thirdly, as we have found that LN was unaware that JL or MS had been touched inappropriately by Dr Ebtash on the First Occasion, there is no basis for concluding that LN's evidence was in some way contaminated or infected by such knowledge. Further, for the reasons outlined below, we do not accept that subsequent discussions between the female cast members about Dr Ebtash's conduct gives rise to any basis for concern that LN's evidence was contaminated, and rendered unreliable, as a result.
6. Fourthly, in the course of the treatment, LN conveyed to SN that something was wrong, and that she was upset. In addition, immediately following the treatment, she manifested genuine and extreme distress. Both of those responses strongly support the conclusion that something significant occurred during the treatment which left her feeling extremely distressed. Having regard to her evidence that she had received treatment for her injuries and soreness on many occasions in the past, including for soreness in her adductor muscles, and so was familiar with how such injuries may be treated, there is no other reasonable explanation for why LN would react in the way she did, other than as a result of inappropriate conduct. LN's immediate responses are entirely consistent with a genuine response to being touched inappropriately as she alleged. Furthermore, as counsel for the Board submitted 'one thing certain is that the level of distress that was seen by [SN] is utterly inconsistent with Dr Ebtash's version of events, and with [Mr Maddison's] assessment of [LN] after the treatment'.[601]
7. Fifthly, LN felt compelled to make up an excuse for not changing into shorts. All parties accepted that Dr Ebtash asked LN to change into shorts, but that she declined to do so. That refusal was consistent with her having been touched in a way that she regarded as inappropriate, and which she did not wish to risk continuing. As counsel for the Board submitted,[602] if LN's treatment happened in accordance with Dr Ebtash's evidence, so that he told her what he was going to do, and obtained her permission before doing so, it is difficult to understand why she felt it necessary to make up that excuse, especially as she had had many similar physiotherapy treatments before.
8. Sixthly, very soon after her treatment, and on the same day, LN reported what had occurred to CA. The tenor of that complaint was clearly that she had been touched inappropriately by Dr Ebtash in the manner she described in her evidence at the hearing.
9. Seventhly, there was no suggestion of any ulterior motive on LN's part in making these allegations against Dr Ebtash.
10. There were, however, a number of aspects of LN's evidence which caused us to scrutinise her evidence very carefully.
11. First, LN was mistaken about some aspects of her evidence. LN was wrong about the date on which she received treatment from Dr Ebtash. That was an inconsequential error which was readily explained. We have also found it unlikely that LN was correct in her estimation of the length of time that Dr Ebtash pressed on her labia. As we have observed, it is a matter of common human experience that witnesses are often very poor at estimating time.
12. More concerning was that LN did not recall every aspect of her treatment session with Dr Ebtash. However, as we have explained, we regarded that as an understandable consequence of her focus on the inappropriate touching, to the exclusion of other aspects of the treatment. In the end, these deficiencies in her evidence did not cause us to doubt the veracity of the central aspects of her evidence.
13. However, a further aspect of LN's evidence warranted careful consideration, namely the fact that in her evidence in chief, LN stated that Dr Ebtash touched her labia on the right side. She later referred to having been touched on the left side of her labia. When the issue was raised in cross-examination, LN confirmed that Dr Ebtash had in fact touched her on the left side of her labia. She confirmed that recollection with conviction, stating that she had a picture perfect recollection of the moment. Counsel for Dr Ebtash submitted that if LN had in fact been touched for the significant period of time that she alleged (that is, 10 to 15 seconds) she would be able to remember on what side of her labia she had been touched.[603] We did not regard this inconsistency in her evidence as one which cast doubt on the veracity or the reliability of her evidence.
14. Secondly, we have carefully considered the fact that LN did not, upon being touched in ways that she thought inappropriate, say anything to Dr Ebtash, or seek the assistance of SN, her boyfriend, or of SS, or of Mr Maddison. We did not regard that as a surprising response, for the reasons we discussed in considering the same issue in relation to JL's evidence. We do not regard that failure to immediately respond as undermining the credibility of LN's evidence. That is especially so having regard to her distressed response immediately after the treatment concluded.
15. Thirdly, counsel for Dr Ebtash submitted that it was unlikely that Dr Ebtash would be able to touch LN on her labia for 10 to 15 seconds without anyone else in the room seeing what had occurred.[604] As we have already explained, we regarded that time frame simply as LN's best estimate and consider that it cannot be treated as a precise measurement. Clearly the touching was brief, and took a matter of seconds. We do not regard it as implausible that touching of the kind involved could have taken place without anyone noticing. The other people in the room were occupied with other matters, and not giving LN their full attention. Further, the conduct involved took place in the course of what appeared to be an ordinary chiropractic treatment session, which meant that it could readily pass unnoticed by other parties.
16. Fourthly, LN's evidence was that Dr Ebtash touched her on the left side of her labia, and that he massaged her breasts while other persons were present in the room. We repeat the observations we made about the same issue in the context of JL's evidence (at [268]).
17. Fifthly, counsel for Dr Ebtash pointed out the discrepancies between LN's statement to the police (in which she did not recall identifying her adductors as being sore) and the fact that in her Patient Form she indicated that her adductors were sore.[605] However, we consider this to be merely an oversight, again readily explained by her focus on the inappropriate touching which took place in the treatment. We note that at the time she gave her statement to the police, LN did not have a copy of her Patient Form.[606]
18. Having taken into account all of these considerations, and, in particular, having regard to LN's emotional response and her complaints to others immediately after the treatment concluded, we are satisfied that LN's evidence was credible and reliable. Save where we have expressly indicated to the contrary, we accept LN's evidence.

(xiii) Findings as to SN's credibility and reliability

1. We accept the evidence given by SN. We found him to be a credible and reliable witness. Although he is in a relationship with LN (and was at the time of the Second Occasion), there was nothing to indicate that his evidence was in any way tailored to reflect LN's evidence. He frankly acknowledged the limits of his memory.

(xiv) Findings as to Mr Maddison's credibility and reliability

1. Mr Maddison gave evidence in an open, friendly and confident manner. However, a number of features of Mr Maddison's evidence caused us to have reservations about the credibility and reliability of his evidence.
2. First, throughout his evidence, Mr Maddison professed to have a detailed recollection, as at the date of the hearing, of the names of the cast members, the order in which they arrived and left the Treatment Room, the nature of their injuries, how they were treated, by whom, and what he was doing while the cast members were being treated by Dr Ebtash.[607] Mr Maddison claimed that his recollection extended to precisely what was said in conversations between each of the cast members and Dr Ebtash, and what was said in general conversation between the cast members, and Dr Ebtash and himself.[608] He admitted to a more limited recollection in respect of a few details (such as where LN was sitting when he treated her[609]) but in relation to the balance of his evidence, he claimed to be able to recall the events of that day, as he was giving his evidence. He claimed that the evidence he gave at the hearing was 'the things I remember from that day as we sit here'.[610] He did not agree that he was able to recall these details 'without hesitation'[611] but said that he did 'have to try to recall those events, yes, and think about those events'.[612]
3. We do not accept Mr Maddison's claim that he recalled his evidence solely from his memory of events. We regard it as inherently improbable that despite the passage of a significant period of time since the Second Occasion, he would have such an excellent and detailed recall of the events of that day. That is all the more the case because the events which took place on the Second Occasion were not events which carried any personal significance for Mr Maddison. Those events were significant for the female cast members involved, and for Dr Ebtash, and each of them could be expected to have given those events a lot of thought immediately afterwards, and in the weeks and months that followed.
4. By way of comparison, SN, another cast member who was present on the Second Occasion (but who was less directly involved) had far less clear and detailed memory of what had occurred than Mr Maddison, which is entirely consistent with the passage of time and with the lesser significance of the events for him.
5. Secondly, at the time of the hearing there was a close personal and business relationship between Mr Maddison and Dr Ebtash. That relationship took on particular significance in light of the way in which Mr Maddison's evidence painted Dr Ebtash. At the time of the hearing, Mr Maddison was working as a physiotherapist at the Wellness Place in Bassendean, and elsewhere as a personal trainer.[613] Mr Maddison initially described himself as having been employed at the Wellness Place since June 2018.[614] However, later in his evidence he said that he operated his own business from the Wellness Place in Bassendean. Mr Maddison explained that he paid a fee to the Wellness Place in order to use a consulting room, and to have the right to practice from those premises, and the administrative staff employed there helped him to manage his client base.
6. Further, Mr Maddison and Dr Ebtash had known each other, and had business ties, going back a number of years. As at the Second Occasion, Mr Maddison had known Dr Ebtash for about six years. He met Dr Ebtash because both of them were working from the premises of the Next Generation Health Club. Dr Ebtash had established a clinic for the Wellness Place located within the Next Generation Health Club.[615] Mr Maddison said that he would refer clients to the Wellness Place if they required treatment from allied health staff, and Dr Ebtash would refer clients to Mr Maddison if they required exercise training. Mr Maddison gained a financial benefit as a result of those referrals.[616]
7. In addition, it was apparent that Mr Maddison regarded Dr Ebtash as an advisor and as a friend within their business relationship. Mr Maddison described his relationship with Dr Ebtash as 'a good working friendly relationship'.[617] The way in which Mr Maddison had come to be present on the Second Occasion was because Dr Ebtash invited him along with a view to giving him experience which would assist his career. Mr Maddison said that he did not work under the direction of Dr Ebtash, but accepted that they collaborated on work ideas and advice, and that sometimes Dr Ebtash 'will advise me on things because he is more experienced and I can take that advice or leave it. It's up to my discretion'.[618]
8. The close business and friendship ties between Mr Maddison and Dr Ebtash gave rise to a risk that Mr Maddison would, consciously or subconsciously, put his evidence in a way which cast the best light on Dr Ebtash. Mr Maddison's claim that he remembered minor details of the Second Occasion, as discussed at [445] above, suggests that his evidence was affected in this way. We approached Mr Maddison's evidence with caution for that reason. By way of comparison, while SN had a close relationship with LN as her boyfriend, he frankly acknowledged the limits of his memory. We accepted SN's evidence for that reason at [443].
9. Thirdly, in the course of his evidence, it was apparent that Mr Maddison sought to put a gloss on his evidence so as to favour Dr Ebtash's version of events. By way of example, Mr Maddison was asked what he recalled 'as far as Dr Ebtash and the obtaining of consent in relation to treatment'. Mr Maddison's evidence was as follows:[619]

So during the treatments, Dr Ebtash informed - everything I heard was informed consent and asked patients if they were okay with the treatment techniques that he was about to perform and a couple of times people said that they were not happy with that consent and to that Dr Ebtash was more than happy to withdraw that treatment from that day's proceedings. (Emphasis added)

1. Similarly, Mr Maddison was asked whether any of the treatments provided on the Second Occasion could have caused any distress to anybody. His evidence was: [620]

First of all, I did not see anything at that time and date and location that I perceived to be alarming or inappropriate. Neither did I see any one of the cast or crew come across as distressed, alarmed or unhappy with anything we had performed on that day'. (Emphasis added)

1. Such sweeping statements as those italicised in the quotes above suggest an intention to portray Dr Ebtash in as favourable a position as possible. Another example of Mr Maddison's attempts to cast his evidence in the most positive light for Dr Ebtash concerned whether Mr Maddison had been watching Dr Ebtash at all times while he treated patients on the Second Occasion. He claimed that he had, and said that he was:[621]

[U]sing a mixture of my hearing and vision ... as much as I could. So when I was performing techniques on some patients, I was using just my hands, and therefore, didn't need to see what I was going and I could observe, and I could hear too what was happening.

1. However, in cross-examination, Mr Maddison accepted that the treatment he was giving patients was essentially massage, and that he was trying to do that well:[622]

I was going the best I could whilst listening or observing Dr Ebtash too because all those clients, or patients, in the room were likely to require my assistance at some time. So I was spreading my abilities and my senses. Sometimes I was massaging, I was listening and observing what Dr Ebtash was doing and trying to do so as much as possible without sacrificing my ability to massage.

1. When pressed further, he acknowledged that he was not in fact giving Dr Ebtash his full attention at all times.[623]
2. Aspects of Mr Maddison's evidence in relation to LN's treatment reflected some of these difficulties. In his evidence concerning LN's treatment, Mr Maddison initially said that he was carefully watching Dr Ebtash throughout the entire time that Dr Ebtash was treating LN and that he had no difficulty in hearing everything that was being said between them.[624] However, that cannot have been the case, given that Mr Maddison was actively treating SS at the time.[625] Furthermore, Mr Maddison eventually acknowledged that he was not, in fact, giving Dr Ebtash's activities his full attention,[626] including while Dr Ebtash was treating LN on the couch.[627] In addition, in cross-examination, Mr Maddison accepted that he did not, in fact, see every aspect of Dr Ebtash's treatment of LN, such as when Dr Ebtash worked on LN's neck and ankle[628] (Dr Ebtash and LN both confirmed that Dr Ebtash cracked her neck and her ankle).
3. We have already discussed our reasons for rejecting Mr Maddison's evidence that he saw Dr Ebtash pressing LN on the pubic symphysis.
4. Fourthly, particular aspects of Mr Maddison's evidence reflected poorly on his credit. One aspect concerned the way in which Mr Maddison came to prepare a statement for Dr Ebtash. Mr Maddison said that about six weeks after the Second Occasion, Dr Ebtash called him to tell him that he was 'under investigation for the treatments that were performed on the [Second Occasion at the Venue]'.[629] Mr Maddison said that Dr Ebtash told him:[630]

The police had made the initial investigation and he was asking me if I was able to write down my recollection of events, to which I replied 'I'm more than happy to do that', and that's when I went home that day. I went to my study and - with the door closed and - by myself recalled the events as clearly as I could ... in making that statement, which I submitted to Dr Ebtash's lawyers.

1. Mr Maddison stated that Dr Ebtash had not had any input into the content of that statement. He said that Dr Ebtash told him '[j]ust write it as clearly as you can remember, all the details ... from that day, and what was performed at the [Venue]'.[631]
2. Mr Maddison said that he was 'definitely stunned'[632] to hear about the investigation, and that he thought that because the police were involved, that meant that something serious was involved.[633] However, he claimed that he had not asked Dr Ebtash what the police were investigating because: [634]

I thought it would be best not to ask and divulge or ask for too much information ... I had been involved with multiple issues in the past and I know that it's [not a good idea] to ask too many questions when you're asked to make a statement, because that can influence your recollection of the events. So that's why I proceeded to write this without any other questions.

1. Mr Maddison thus claimed that he prepared his first statement when 'I didn't know what [Dr Ebtash] had done to whom or why this had happened'.[635]
2. Mr Maddison was asked whether Dr Ebtash told him anything of the detail of the allegations made against him. His response was:[636]

I wasn't 100 per cent sure of the actual allegations. But to my knowledge, it was something of a serious nature that - for the police to be involved and that it was either a malpractice or a yes, malpractice sort of issue where he had either conducted himself inappropriately or alleged inappropriately at that time and event, which I was there.

1. In cross-examination, Mr Maddison said that:[637]

Dr Ebtash didn't give me any details. He just said he was under investigation and the police were involved. So I understood [it] to be of a serious nature and he just asked me if I could make a recollection of the events to the best of [my] memory. So I proceeded to write this document.

1. The statement prepared by Mr Maddison was in evidence.[638] It was a detailed and formal statement of evidence of over two pages of typed text, which concluded with the following statement:[639]

During the session I was in the [T]reatment [R]oom with no more than [nine] meters between Dr Ebtash and myself and most of the time there was more than one patient also in the room. During the session I did not hear any patient become upset with any form of treatment and every patient that I talked to expressed that they now felt better than when they came in. At no time during the session did I see Dr Ebtash handle a patient inappropriately or perform any treatment without informed consent. (Emphasis added)

1. We digress to observe that the italicised text is an example of a generalised statement clearly designed to portray Dr Ebtash in the best light possible.
2. Without being told of the matters under investigation, it is difficult to see why Mr Maddison would address issues of informed consent or the possibility that patients were upset with their treatment in the course of his statement.
3. Dr Ebtash claimed that he had not told Mr Maddison of the full details of the allegations against him, because 'I wasn't aware of the full details'[640] and that the only time he told Mr Maddison the details of the allegations was 'after he finished writing his statements'.[641] Dr Ebtash said it was 'actually honest truth' that Mr Maddison wrote his statements without Dr Ebtash telling him what the allegations were about.[642]
4. We are unable to accept this part of the evidence of Mr Maddison and Dr Ebtash. It is wholly implausible that, having discovered that Dr Ebtash was the subject of an investigation by the police arising out of events on the Second Occasion at which Mr Maddison was present, and despite Mr Maddison acknowledging that he was worried about being involved in a police investigation himself,[643] Mr Maddison did not ask Dr Ebtash any questions about the matters under investigation, or what had led to the investigation. Mr Maddison's evidence in this respect reflected poorly on his credit.
5. Another aspect of Mr Maddison's evidence which reflected poorly on his credit was Mr Maddison's claim that he prepared his initial statement for Dr Ebtash, without reference to any information, or documents. We do not accept that that was the case. Mr Maddison said that in that statement he wrote down as much as he could remember at that time, which was about six weeks after the Second Occasion.[644] Not surprisingly, Mr Maddison was wrong about some details. For example, he misremembered CA's name, referring to her as 'Jessie'. When he gave evidence at the hearing he correctly referred to CA as C. Mr Maddison's explanation was that when he was discussing his evidence with Dr Ebtash's legal team, they mentioned the stage manager's name.[645] On the other hand, Mr Maddison referred to all of the other cast members by their correct names. This was despite the fact that he had never treated these patients before, saw them on the Second Occasion for at most about 10 to 15 minutes, and claimed to have prepared his statement without the benefit of any documents.[646] That he would get their names correct in those circumstances is all the more implausible given that the spelling of some cast members' names is not phonetic.
6. A further example of Mr Maddison's evidence that reflected poorly on his credit was his claim that since he had prepared that initial statement, he had not discussed this matter with Dr Ebtash at all, despite the fact that he worked with him both at the Next Generation Health Club and at the Wellness Place.[647] That evidence was inconsistent with Dr Ebtash's evidence. Dr Ebtash acknowledged that he and Mr Maddison had spoken about the allegations against him,[648] although he claimed that they had not done so on many occasions. Dr Ebtash said that they had spoken on only three occasions about the allegations against him - when Dr Ebtash received a call from the police; when Dr Ebtash was being investigated by AHPRA; and when Dr Ebtash asked Mr Maddison to provide a witness statement for these proceedings.[649] As the hearing approached, and given that they worked at the same premises, the claim that Mr Maddison and Dr Ebtash never discussed this matter was inherently implausible. We accept the submission of counsel for the Board that that evidence 'demonstrates a serious avoidance of a suggestion that the two men have spoken about this matter'[650] and that that reflected very poorly on Mr Maddison's credit overall.
7. As for Mr Maddison's unprompted mention, in his evidence, of Dr Ebtash's treatment of LN's pubic symphysis,[651] it was significant that he had not mentioned that detail in the statement he provided within about six weeks of the Second Occasion, or in any of his statements in connection with this matter.[652] Mr Maddison's evidence was that he had not discussed that with Dr Ebtash before the hearing, but he said that he had discussed that with Dr Ebtash's lawyers.[653] Counsel for Dr Ebtash invited the Tribunal to bear in mind that the first statement Mr Maddison prepared, about six weeks after the Second Occasion, was:[654]

[S]pare on detail and describes a sequence of the treatments and the events and those present. It doesn't go into detail, but it includes all that he then told [the Tribunal] ... [His statement is] powerful evidence going against collusion rather than collusion'.

1. We are unable to accept that characterisation. In our view, it was inherently unlikely that without any prompting, Mr Maddison simply recalled, during his evidence, the specific detail that Dr Ebtash touched LN on her pubic symphysis, when he had not made mention of that matter in any prior statement. Despite his denials of having discussed the matter with Dr Ebtash, we consider that there is a strong contrary inference, namely that he and Dr Ebtash did discuss it, and that Mr Maddison sought to give evidence which would assist Dr Ebtash's case. That reflected very poorly on the credibility of Mr Maddison's evidence overall.
2. Similarly, a final example of Mr Maddison's evidence that reflected poorly on his credit was the fact that he claimed to have recalled the details of the conversation with Dr Ebtash about the making of the Clinical Notes, despite not having made mention of that conversation in any of the statements he had previously made in relation to this matter.
3. As we have said, despite Mr Maddison's denials that he spoke with Dr Ebtash about Dr Ebtash's evidence prior to giving his own evidence, the compelling contrary inference is that they did discuss this matter, and in the course of that discussion, Mr Maddison was alerted to the issue concerning the making of the Clinical Notes, and proceeded to give evidence which supported Dr Ebtash's evidence as to when the Clinical Notes were made. We do not accept that aspect of Mr Maddison's evidence. Furthermore, the circumstances in which he came to give that evidence reflect very poorly on his credit overall.
4. For all of these reasons, while we do not reject Mr Maddison's evidence in its entirety, we approached Mr Maddison's evidence with considerable caution. Some aspects of his evidence were consistent with the evidence of other witnesses (apart from Dr Ebtash) whose evidence we have accepted.
5. To the extent that Mr Maddison's evidence was consistent with other uncontentious evidence, or with the evidence of witnesses whose evidence we have accepted, we have relied on his evidence. To the extent that Mr Maddison's evidence was contrary to the evidence given by LN, whose evidence we prefer, or consistent only with evidence given by Dr Ebtash, which we have rejected, we do not rely on Mr Maddison's evidence.

1. We set out our findings in relation to Dr Ebtash's credibility later in these reasons. We prefer the evidence of LN, to that of Dr Ebtash, to the extent that their evidence was inconsistent.

(d) Alleged conduct in relation to MT (ground 4 of the Application)

(i) The Board's allegations and Dr Ebtash's response

1. The Board alleges that in a consultation with MT, on or about the Second Occasion in a room at the Venue, Dr Ebtash engaged in conduct which was either inappropriate conduct of a sexual nature, or clinically inappropriate and below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.[655]
2. The conduct alleged was that Dr Ebtash:[656]

(a) Retracted MT's underwear so as to expose her pubic bone; and

(b) Massaged in close proximity to the entrance to MT's vagina.

1. Dr Ebtash admits that he engaged in a professional consultation with MT on or around the Second Occasion at the Venue, but otherwise denies each of these allegations, and says that the nature of the treatment alleged was neither offered nor provided.[657]
2. The Board alleges that Dr Ebtash failed to properly inform MT, before commencing treatment, of the nature of the treatment and failed to give her adequate opportunity to question or refuse that treatment in that:[658]

(a) He did not advise MT that he intended to expose her pubic bone or massage in close proximity to the entrance to her vagina before doing so;

(b) He did not ask MT for permission to expose her pubic bone or massage in close proximity to the entrance to her vagina before doing so; and

(c) He did not explain to MT why he intended to expose her pubic bone or massage in close proximity to the entrance to her vagina before doing so.

1. Dr Ebtash denies each of these allegations concerning informed consent, on the basis that the treatment alleged was neither offered nor provided.[659]
2. The Board alleges that there was no proper clinical justification for Dr Ebtash to expose MT's pubic bone or massage in close proximity to the entrance to her vagina at that consultation, and it was inappropriate for him to have done those things.[660]
3. Dr Ebtash denies this allegation, on the basis that the treatment alleged was neither offered nor provided.[661]
4. The Board also alleges that by retracting MT's underwear, so as to expose her pubic bone when there were other people in the room, Dr Ebtash also failed to ensure MT's privacy.[662]
5. Dr Ebtash denies this allegation, on the basis that the treatment alleged was neither offered nor provided.[663]
6. In the course of MT's evidence, she outlined that in the course of her treatment, Dr Ebtash had touched the area between her breasts. That evidence was not the subject of a specific allegation by the Board, and MT's evidence was not relied upon by the Board as a necessary step for a finding in relation to the various allegations relating to her treatment.[664] However, counsel for the Board submitted that if the Tribunal found that that touching of MT's breast area occurred, that may assist the Tribunal in resolving whether or not MT's pants were pulled down as she had stated.[665]

(ii) The circumstances leading up to Dr Ebtash's treatment of MT

1. Before she had treatment with Dr Ebtash, MT filled out a Patient Form. MT then went up to see Dr Ebtash for her treatment. When MT arrived, she had not brought her Patient Form with her, and had to go back downstairs to retrieve it.[666] She then gave the Patient Form to Dr Ebtash.[667]
2. At the time of her treatment session with Dr Ebtash, MT was wearing a training top, and shorts and underpants. She said that the shorts were made of a tight fitting material.[668] She was unable to recall exactly what the top was like but thought it was a tight training T-shirt, rather than a loose garment.[669] She was unable to recall whether it had a zipper on the front.[670] Dr Ebtash recalled that she was wearing an Adidas style sports jacket with a zip at the front.[671] Mr Maddison recollected that MT was wearing a 'jacket top'.[672]
3. The type of top that MT was wearing at the time was not significant in the determination of the key factual issues in dispute about her treatment, and we make no finding about it.
4. MT recalled that the treatment was undertaken in a room she called the 'chorus room' and the 'green room'. However, as she described the room, it was clear that in fact the treatment was conducted in the Treatment Room.[673]
5. MT was unable to recall whether other cast members were in the room when she first arrived.[674] However, Dr Ebtash recollected that after LN and SN left, and SS had also finished his treatment and left, Dr Ebtash and Mr Maddison waited on their own for a short time in the Treatment Room, before MT arrived.[675] None of the other cast members who gave evidence suggested that they were in the Treatment Room when MT arrived. Dr Ebtash did not suggest that anyone else was present in the Treatment Room at that time. Mr Maddison said that no one else entered the room when MT was being treated.[676]
6. Having regard to this evidence, we find that no other cast members were present in the Treatment Room while MT was being treated by Dr Ebtash.
7. MT recalled that Mr Maddison was present with Dr Ebtash when she arrived at the Treatment Room.[677] MT recalled that Mr Maddison was in the Treatment Room while Dr Ebtash was treating her.[678] MT remembered Mr Maddison being in the room and thought he was walking around and that, at times, he may not have been in the room at all.[679] MT could not recall if Mr Maddison left the room at a certain point, but certainly recalled him being in the area.[680]
8. MT said that she was 'pretty sure' that Mr Maddison was not within touching distance during her treatment, so as to observe what Dr Ebtash was doing.[681] MT said that she remembered 'being one on one with [Dr Ebtash] and no one was particularly observing or watching us in any way.'[682] She explained that the Treatment Room was:[683]

[Q]uite big so if there was anyone else in the room, they definitely weren't watching us. They were in another part of it. I felt that it was quite private. It was quite separated from the rest of the area.

1. It was put to MT that Mr Maddison was 'right there watching ... with the object, the visible object of learning from what was being done'. MT said that she did not remember that, and that from her recollection she was inclined to say that Mr Maddison was not watching, but that she was not certain of that and accepted that he may have been watching at that time.[684] When pressed that Mr Maddison was present while she was being treated, effectively learning by demonstration from the treatment being given to her, MT said that she 'cannot say actually' that that was the case, as she did not remember that. In the end, she acknowledged that she could not say one way or the other whether Mr Maddison was present.[685]
2. We viewed MT's inability to recall precisely where Mr Maddison was as entirely consistent with her focus on Dr Ebtash and what he was doing in the course of her treatment. She clearly accepted the possibility that he was standing nearby and observing throughout her treatment, and nothing in her evidence suggested that she was being untruthful about her recollection of whether or not Mr Maddison was present.
3. Dr Ebtash's evidence was that Mr Maddison was next to him - about 40 or 50 centimetres away[686] - throughout the duration of MT's treatment.[687] Dr Ebtash explained that Mr Maddison wanted to observe his treatment[688] and because there was nobody else in the room, it was a good opportunity for Mr Maddison to observe exactly how he went about the treatment of a patient.[689] Dr Ebtash said that Mr Maddison did not go anywhere else during the course of the treatment, nor was he asked to do anything else during that time.[690]
4. Mr Maddison said that he did not leave the Treatment Room, and that he was beside Dr Ebtash for the entire time.[691] Mr Maddison said that while Dr Ebtash was treating MT, he was observing what he did for 'the entire time of the whole treatment so I could, again, observe Dr Ebtash's chiropractic techniques and how they differed from physio techniques'.[692] He said that he was within a metre of Dr Ebtash for the entire time.[693]
5. Having regard to the totality of this evidence, we find that Mr Maddison was standing nearby to Dr Ebtash for the duration of MT's treatment.

(iii) MT's initial interaction with Dr Ebtash

1. As we found at [206] ­ [211], immediately after her treatment on the First Occasion, JL spoke with MT and told her that during her treatment Dr Ebtash had touched her genital area, below her pubic bone, around her vagina. It was not in dispute, and we find, that despite what she had been told by JL about that experience with Dr Ebtash, MT decided that she would have treatment from Dr Ebtash when he returned on the Second Occasion.
2. MT's explanation for why she went to Dr Ebtash for treatment in those circumstances was:[694]

[B]ecause I wanted to assess for myself if - if he was - he was actually a creep, or if he is - what was his credibility, if he was going to go for something like that. Because I felt somehow protective of my other cast mates and they wanted to confront him, actually.

1. MT said that the first thing she did was:[695]

I looked [Dr Ebtash] straight in the eyes and I said 'Why are you doing this for free?' And he smiled and answered 'I'm just a nice guy'.

1. Dr Ebtash denied that this was the first thing that MT said to him.[696] But he did not deny that he made that comment to MT. Dr Ebtash agreed that his reply was 'fairly flippant'.[697] MT accepted that his reply was a flippant and friendly way to diffuse her challenge to him.[698]
2. Dr Ebtash's recollection was that the first thing MT did was to tell him and Mr Maddison about her injuries.[699] Mr Maddison also recalled that the first thing MT said to Dr Ebtash was to tell him about her injuries.[700]
3. In our view, it matters not whether the first thing that MT said was to challenge Dr Ebtash's motivation in providing free chiropractic services. It was not disputed by Dr Ebtash that MT made that remark and we find that she made that remark very early in the course of the treatment session. There is also no doubt that MT went into the treatment session with a sense of suspicion about Dr Ebtash's motivations, and alert to any sign of inappropriate conduct on his behalf, and we so find.

1. The Patient Form completed by MT was in evidence.[701] In it, MT indicated that her complaints were her left elbow, and 'left sub-scap.' On the diagram of the human body on MT's Patient Form, she marked the areas where she required treatment, namely her left elbow and the top of her left shoulder near her neck.[702] We find that on her Patient Form, MT identified only her left elbow and the top of her left shoulder (that is, her scapula) as areas of injury where she required treatment.
2. However, Dr Ebtash recollected that MT told him and Mr Maddison that she had a number of injuries apart from those referred to on her Patient Form.[703] Dr Ebtash said MT disclosed that she had elbow problems, mid­back problems, neck problems, lots of tension around her mid-back 'and she was referring to her ribs and the chest region'.[704]
3. Mr Maddison recalled that MT described her problem areas as 'her elbow, her shoulder, her chest region and, with further questioning from Dr Ebtash ... she talked about her lower back and how that was an issue as well'.[705]
4. MT accepted that, in the course of treating her, Dr Ebtash asked her questions about her condition generally and she described further injuries or pain.[706]
5. We find that in the course of her treatment with Dr Ebtash, MT identified other areas apart from her elbow and shoulder where she had injuries or pain, including her chest and lower back.

1. Dr Ebtash's evidence was that initially Mr Maddison performed some soft tissue or trigger point therapy around MT's elbow, before Dr Ebtash took over treating MT's elbow.[707] In contrast, Mr Maddison said that Dr Ebtash treated MT for the entire time.[708] MT's evidence was that Mr Maddison did not treat her at all.[709]
2. Having regard to our findings as to her credibility and reliability, we prefer the evidence of MT (with whose evidence Mr Maddison's evidence was consistent in relation to this issue) to the evidence of Dr Ebtash. We find that Mr Maddison did not treat MT at all.
3. MT accepted that she was sitting on the treatment table while her elbow was treated.[710] Dr Ebtash said that he asked for permission to adjust MT's ulna, and he then did so.[711]
4. Mr Maddison was unable to recall whether MT was standing or sitting while this was going on. He merely recalled that she was upright.[712] Mr Maddison proceeded to volunteer the fact that he recalled Dr Ebtash asking for MT's consent to perform a technique on her elbow and that she consented.[713] He said that Dr Ebtash then proceeded to perform a manipulation on MT's elbow.[714]
5. MT accepted that after the treatment of her elbow, she reported immediate relief.[715]
6. Mr Maddison recalled that Dr Ebtash then 'proceeded to assess and treat [MT]'s shoulder' with a similar chiropractic manipulation technique to that which he had used on her elbow.[716]
7. MT's evidence about what Dr Ebtash did when he treated her elbow, and how she felt about his conduct, was that Dr Ebtash:[717]

[S]tarted massaging my left elbow but the way that he pulled the hand towards him, he made it so that my ... hand was resting on his body, which I didn't think was necessary and I felt peculiar right away, because you're able to massage somebody's elbow while it's hanging ... in the air without touching somebody. But he made it so that ... my hand was touching his stomach and it was massaging it.

1. MT was asked why she thought that her hand should not have touched Dr Ebtash's stomach, and her explanation was as follows:[718]

It's hard to say again because - I mean, it's not - it's just unnecessary. I've had my elbow treated many times and I felt - okay. You're able to hold up a hand and massage it while it's just in the air like this and it's not touching anything. It's possible. So why it was touching his body - like maybe it was just more comfortable for him. It was like a debate going on in my mind ... Is that normal? Is that okay?

1. However, in cross-examination, MT accepted the proposition that there was nothing inappropriate about her hand touching Dr Ebtash's body in the manner she had described, and her concern was based on the fact that she could not recall this occurring when her elbow had been treated on any previous occasion.[719]
2. It was not contended by the Board that that was clinically inappropriate, and it is apparent that while MT regarded Dr Ebtash's conduct as odd, out of the ordinary, and unnecessary, she accepted that there was nothing inappropriate about it.
3. However, having regard to MT's own evidence that she went to the treatment session with Dr Ebtash determined to see whether or not his conduct was appropriate, and having regard to MT's evidence about her feeling of unease when her hand touched Dr Ebtash's body, we find that from the outset, MT was on alert as to whether Dr Ebtash's conduct transgressed proper clinical boundaries.

(vi) Dr Ebtash's alleged exposure of MT's pubic bone by pulling down her clothing

1. After Dr Ebtash treated her elbow, MT said that he:[720]

[P]roceeded to make different assessments of my body. He... touched a little bit my shoulder and then he asked me to lay down and started also feeling my psoas, which is the - the ligament at the front of a thigh that's connecting to the abdominal region. As far as I recall, I told him that that was sore as well and he started massaging and ... treating around that area.

1. MT confirmed that she reported to Dr Ebtash that she had tightness in her psoas or her hip flexor, which is proximate to the pubic bone.[721]
2. MT described how, at this point, Dr Ebtash massaged her left hip flexor.[722] MT also accepted that Dr Ebtash was treating her psoas by palpating, massaging or manipulating the affected area.[723]
3. The evidence given by Dr Ebtash and Mr Maddison on this point was consistent with MT's evidence. Dr Ebtash said that because MT had mentioned that she experienced lower back pain, he asked her to lie on her back so he could feel her psoas.[724] Dr Ebtash explained that the psoas was located in a straight line below the navel, about two thirds of the way down the abdomen. He described the psoas as being quite deep in the abdomen, and explained that in order to treat it, it was necessary to access the lower abdominal region.[725]
4. Mr Maddison also said that MT complained of a lower back problem and 'after further questioning and assessment, Dr Ebtash assessed her lower abdominal region, over the region of the psoas muscle or upper ... hip flexors, into the abdominal cavity just above her hip bone'.[726] He described this as Dr Ebtash 'palpating and pushing into her lower abdominal region and trying to release... [the] psoas muscle which is known to refer through to the lower back ... pain'.[727]
5. Having regard to this evidence, we find that following MT's complaint of lower back pain, Dr Ebtash began to treat the area around her hip flexors and psoas muscle by using his fingers to palpate her lower abdominal region.
6. MT said that Dr Ebtash's fingers were touching her skin as he massaged the area around her psoas.[728] We note that in cross-examination, counsel for Dr Ebtash expressly did not challenge MT's evidence that Dr Ebtash's fingers made contact with MT's skin above her psoas, rather than massaging her psoas above her clothing.[729]
7. As MT was wearing shorts, in order for Dr Ebtash to have made contact with the skin in her lower abdominal region, he must have pulled down MT's shorts and underpants. That was confirmed by MT, who described what then happened as follows:[730]

He was massaging there and then he pulled down my training pants and pulled it down quite low and I was just laying on my back and then I looked down and I realised that he pulled it down quite low that my pubic bone was exposed and I felt a bit uncomfortable about that and I didn't know if it was supposed to be - if he needed to do that in order to do - to access that area. I thought that he could have done it through the training clothes. I didn't know why he had to pull them down.

1. MT described her pubic bone as:[731]

[T]he area below the belly button. Below the belly button before the genital area starts. ... Like lower than the abdominal area. The bone - the pubic bone. I don't know how better to describe it. The one that's sitting there between the legs just before the genitals start ... That's where the pubic hair grows.

1. MT was asked whether any pubic hair was exposed when her pubic bone was exposed. She stated that no hair was exposed because her pubic hair was shaved, but confirmed that if she had not been shaved, that area would have exposed pubic hair.[732]
2. Dr Crawford noted MT's allegation that Dr Ebtash had exposed her pubic bone, and observed that 'in reality what was allegedly exposed ... was the mons pubis not the pubic bone. The mons pubis is the rounded fatty eminence lying anterior to the symphysis pubis.'[733] That observation was clearly correct. We find that when MT referred to her pubic bone as having been exposed, she was not referring to the bone itself, but to the area of her body immediately above the pubic bone, namely the mons pubis, or pubic mound.
3. MT was very clear in her evidence that Dr Ebtash pulled down both her shorts and her underpants.[734] She also explained that she knew that Dr Ebtash had pulled her pants down so low as to expose her pubic bone, because she looked down and could see it.[735]
4. MT's evidence was that as her training pants were made of a thin material, even where the elastic waist band was, it was unnecessary for Dr Ebtash to have moved her pants out of the way at all, much less to have moved them down to below her pubic mound. MT's evidence was that her clothing was 'pretty tight anyway and he could have went through the thin layer of the training pants... and also he didn't ask my permission to pull them down either'.[736]
5. In cross-examination, it was put to MT that her pants, which had an elastic waistband, were pulled down to permit Dr Ebtash to directly touch her skin where her psoas muscle was, and that her clothing was moved only to permit him to have access to her psoas muscle. She said she did not know whether that was the case.[737]
6. It was also put to MT that her clothing was not pulled down as far as she had described. However, she rejected that suggestion and said:[738]

[I]t was far enough down that I felt a bit - questioning whether that was necessary and why because he was still massaging me through the clothes, so I didn't understand why he had to pull it down in order to reveal it if he was still massaging through the clothes.

1. MT also maintained her view that Dr Ebtash could have palpated the muscles through her clothing because:[739]

[I]t is completely totally possible to ... reach with the ... ligaments and the muscles through the fabric and which always happens usually in physio situations. It just goes - it's - it's tight sports clothing which is very tight around the body so you can really dig in without having to pull anything down really, actually, and that was my concern.

1. Dr Ebtash's evidence in relation to MT's allegation that he pulled down her pants to expose her mons pubis was not consistent. At times, Dr Ebtash denied that he had pulled MT's pants down so as to expose her pubic bone.[740] Dr Ebtash also said that it was not necessary to get to the pubic area to treat the psoas, so he did not need to lower MT's pants as far as she had alleged.[741] In cross-examination, he confirmed that at no time did he lower MT's pants or underpants, and that he did not do so to the extent that her pubic bone was exposed.[742] He also confirmed that in order to treat the psoas muscle, there was no need to lower the pants of the patient to the level described by MT.[743]
2. At other times in his evidence, Dr Ebtash accepted that he did not actually recall whether he lowered MT's pants.[744] However, Dr Ebtash went on to say that, at most, if a patient's pants had a thick elastic band, it would only have been necessary to move that, so as to make contact with the skin, in order to undertake trigger point therapy to release the muscle tension, but there would be no need to lower the pants.[745]
3. When asked why he had made that point, when he did not recall actually lowering MT's pants, Dr Ebtash said:[746]

All I was trying to explain was if I was going to give [MT] any benefit of a doubt of the fact that her pants was lowered down, I was explaining that that would be the only reason that she would have had a thick elastic band and only slightly lower down. But I don't recall lowering her pants down.

1. In cross-examination, Dr Ebtash was again asked whether he pulled MT's pants down and he said that 'I do not recall that. No.'[747] He explained that his reference to pulling down the elastic band was 'speculation based on [MT]'s statement'.[748]
2. Mr Maddison said that he did not see Dr Ebtash move MT's pants down, and that Dr Ebtash did not move MT's pants in any way.[749] Mr Maddison said that Dr Ebtash did not have to adjust MT's pants 'in any way or form'[750] while treating her psoas muscle, and denied that her pants were displaced to such an extent that her pubic bone became visible during the course of the treatment.[751]
3. MT's evidence as to this aspect of her treatment was very clear. Having regard to our findings (set out below) in relation to the credibility and reliability of her evidence, we accept her evidence.
4. For the reasons set out above (at [444] ­ [447]) and below, in relation to our findings as to the credibility and reliability of Mr Maddison's evidence, we are unable to accept his evidence to the extent that he denied that Dr Ebtash moved MT's pants at all, and in so far as he denied that her pants were displaced to such an extent that her pubic bone became visible.
5. As we have observed, Dr Ebtash's evidence as to whether he moved MT's pants down so far as to expose her pubic bone was not consistent. Having regard to our findings (set out below) as to the credibility and reliability of Dr Ebtash's evidence, we reject Dr Ebtash's evidence in so far as it differed from MT's evidence on this aspect of the Board's case.
6. Consequently, we find that in the course of treating MT's psoas and hip flexor muscles, Dr Ebtash pulled MT's shorts and underpants down so that they exposed her mons pubis.

(vii) The alleged touching near the entrance to MT's vagina

1. The evidence given by MT and Dr Ebtash in respect of this aspect of the Board's case was scant.
2. MT's evidence was that Dr Ebtash did not touch her on the pubic bone, but that when he exposed her pubic bone, he was touching her 'on the side of [the] hip flexor between where the leg connects to the body... on the inside of the thigh and down there, close to the genital area'.[752] MT confirmed that Dr Ebtash did not touch her genital area or vagina, but that he came 'pretty close' to doing so.[753]
3. Dr Ebtash denied having come close to MT's vagina in any part of her treatment.[754]
4. The evidence given by MT as to where Dr Ebtash touched her was imprecise. Her description that he came 'pretty close' to touching her genitals or vagina was vague. Given her evidence that Dr Ebtash touched her on the side of the hip flexor, on the inside of the thigh close to the genital area, we did not understand MT to be suggesting that Dr Ebtash touched her close to the top of her labia, proximate to her clitoris. Rather, we understood that she meant that Dr Ebtash touched her on the skin at the very top of her inner thigh, adjacent to the entrance to her vagina, but not so close as to touch her labia. (There was no suggestion in MT's evidence that Dr Ebtash touched her on her labia.)
5. However, there were difficulties with that aspect of MT's evidence. It is far from apparent how Dr Ebtash would have been able to touch MT on the very top of her inner thigh, adjacent to the entrance to her vagina, without moving her leg outwards or upwards so that he could reach that area of her body. There was no evidence that he did so. Furthermore, it is far from apparent how it would have been possible for Dr Ebtash to have lowered her shorts whilst also moving MT's leg upwards or outwards so as to gain access to the area at the top of her inner thigh adjacent to the entrance to MT's vagina.
6. In any event, MT's evidence suggested that when Dr Ebtash lowered her shorts, she was lying on her back on the treatment table, and that Dr Ebtash was palpating the skin on her lower abdomen. We understood that evidence to imply that MT's legs were lying straight and close together. If that was the case, it is not apparent how Dr Ebtash would have been able to reach the area at the top of her inner thigh adjacent to the entrance to her vagina.
7. In the end, the difficulty was that this aspect of MT's evidence was not sufficiently explored so as to permit us to clearly understand it.
8. Even accepting MT's evidence as credible and reliable, as we do, we are not satisfied that her evidence was sufficiently clear and cogent, having regard to the very serious nature of the allegations, to permit a finding that Dr Ebtash massaged in close proximity to the entrance to her vagina. We are, therefore, unable to make a finding to that effect.
9. There was no dispute that Dr Ebtash was treating MT's psoas and hip flexor muscles, which required palpation deep into her lower abdomen. In that context, as we explain below, the deficiencies in the detail of the evidence given by MT as to precisely where Dr Ebtash touched her, namely 'pretty close' to her genitals or vagina, are especially significant. That deficiency in the evidence had implications for our findings in relation to whether there was a clinical justification for Dr Ebtash touching MT in the manner she described.

1. MT said that after Dr Ebtash had finished treating her on her lower abdomen, Dr Ebtash then commenced treating her shoulder. She said that he 'was treating my shoulder kind of, but then he placed his hands around my breast area... and he was massaging me ... justifying it that my pecs were tight - my pectoral muscles.'[755]
2. MT was asked whether Dr Ebtash had touched her breasts. She sought to be very precise about her evidence in this respect:[756]

I was laying down on the [treatment] table and he was behind me. And his hands were coming from this side. And here ... this is my mammary gland, it's where they start. And this is just pectorals underneath, but he was getting like that, quite close ... So it's a little hard to say anatomically if he was touching, actually, my breasts, the mammary glands or - but all around that area, he was massaging there.

1. As she told us this, MT demonstrated with her hands where Dr Ebtash touched her. Initially she used both hands to show that he had touched the upper part of her chest area just below her collar bone. She then moved both hands down towards her breast area, but then each hand went on either side of her chest, level with her breasts.
2. MT also confirmed that on one occasion, Dr Ebtash moved both hands in between her breasts.[757] We understood that to be a reference to the area of her sternum. MT did not recall Dr Ebtash ever touching her on her nipples.[758] MT said that Dr Ebtash was moving his hands around the whole time.[759]
3. MT also recalled that:[760]

[A] couple times he mentioned to me while - during the session [while] the treatment was going on, he said 'If you are more comfortable with a female practitioner, we can get you a female physio or an osteo as well in our ... [f]rom our clinic ... So he said it more than once, and I remembered that being strange, because it meant that - it somehow signified to me that he was aware that what he was doing was uncomfortable.

1. MT did not recall Dr Ebtash telling her that there was no need to remove any part of her clothing during this part of her treatment.[761]
2. In cross-examination, MT accepted that in the statement she made to the police, she had indicated that when Dr Ebtash went to massage her chest area, she placed both hands on her breasts and kept them there.[762] MT said that she had forgotten that detail when giving her evidence in chief[763] and stated that it 'it doesn't matter if I was shielding or not on the breasts if he was touching around that area. That doesn't change the fact that he was.'[764]
3. MT confirmed that she had in fact covered her breasts when Dr Ebtash was massaging her chest around her breasts.[765] She explained that she did so 'as a protective, instinctual impulsive movement'.[766] She explained that:[767]

[I]t was a feeling of fear a little bit because I could imagine that he would - I didn't want him to touch my nipples so sensitively I just impulsively put hands there and just kept them there just in case so he doesn't touch my nipples.

1. Dr Ebtash did not recollect treating MT's pectoral muscles, but having looked at his Clinical Notes, he said that he 'stretched her pecs'.[768] He said it was likely that he would have 'felt the tension of the pecs' but that there was no need for him to touch her breast tissue for that purpose.[769] He explained that that was because his hand would have been at the very top of MT's chest, and did not come close to the breast tissue at all.[770]
2. Dr Ebtash denied having touched MT around her breasts as she had described.[771] He said:[772]

I actually recall this quite vividly about the fact that she was complaining of getting chest pain around this region. I asked her exactly where she was getting the pain. She highlights it that she's getting pain right at the insertion point around her sternum, and there is a condition I've seen many, many times with especially females... it's called costochondritis, which is an inflammation of the cartilage on either side of the rib... Now, to examine that region, you do need to get close to the body. So I asked her, I said 'What do you have under that jacket?' because she was actually wearing... like a sports jacket with a zipper at the front. I said, 'What are you wearing underneath that?' She said 'Nothing. Just my bra.' I said 'Okay. So - well, don't worry about that. Just don't take it off. Leave it as is. ... [N]ext time when you come back when we have a female practitioner, I would get them to have a look at that for you.

1. Dr Ebtash confirmed that in so far as his evidence had referred to the pain MT was experiencing in her sternum, they only discussed the treatment of that area, and he did not treat that area.[773] Dr Ebtash very clearly denied ever having touched MT on her sternum between her breasts.[774]
2. Dr Ebtash had no recollection whatever of MT putting her hands over her breasts[775] and Dr Ebtash denied 'absolutely' that MT was lying with her hands over her breasts when they were discussing her chest.[776]
3. Mr Maddison's recollection was very similar to the evidence given by Dr Ebtash. He said that at one stage as part of his assessment of MT's shoulder, Dr Ebtash 'palpated through the collarbone and upper chest region, but at no stage did he descend further than the upper pectorals or shoulder or collarbone'.[777] Mr Maddison's evidence was that Dr Ebtash did not make any contact with MT's breasts[778] and that he did not see Dr Ebtash move a hand up in between MT's breasts.[779]
4. He also said:[780]

[MT] had also stated that with her problem, she had suffered with some ... chest pain in the middle of her chest, and to that Dr Ebtash asked what she was wearing underneath her jacket top she had on, and to that she actually replied that she had her bra on underneath and no other garments, and then to that Dr Ebtash actually replied, 'That's okay, then. We will leave that for today and next time we come we can bring a female therapist and assess that for you'.

1. He said that he did not see Dr Ebtash touch MT between her breasts:[781]

Not at all because ... she was not wearing ... appropriate clothing, and it was actually a middle of the chest issue and Dr Ebtash had alluded that we could have a female therapist actually come with us next time and assess that or she could come to the rooms if she wanted to.

1. Mr Maddison denied that MT put her hands up to her chest area, to cover her breasts, while Dr Ebtash was treating her.[782] His explanation, however, was that he was not watching her hands: [783]

I was watching how Soroush was assessing and treating using his hands. I was focused more on that than her hands.

1. For the reasons outlined below, we find that MT's evidence was credible and reliable. For the reasons outlined above (at [444] ­ [447]) and below, we have reservations about the credibility and reliability of Mr Maddison's evidence, and for that reason we do not accept his evidence to the extent that it differed from MT's evidence. Further, for the reasons outlined below at [937] ­ [964], we do not accept Dr Ebtash's evidence to the extent that it differed from MT's evidence. Consequently, having regard to MT's evidence, we find that Dr Ebtash massaged the area around her breasts, including that he touched her sternum. We are not satisfied, having regard to MT's evidence, that Dr Ebtash touched her breasts themselves. We note again that this is not alleged by the Board. We find that Dr Ebtash did not touch MT's nipples, not least because she had placed her hands over her breasts.
2. Dr Ebtash also explained that Mr Maddison had performed some treatment on MT. He explained that Mr Maddison released the muscles in MT's hamstring region, as she had some issues in her lower back (as he had noted in the Clinical Notes).[784] For the reasons outlined below at [602] ­ [611], we reject this part of Dr Ebtash's evidence. We prefer the evidence of MT, with whose evidence Mr Maddison's evidence was consistent, that Mr Maddison did not treat her at all. We found at [514] that Mr Maddison did not treat MT at all.

1. Mr Maddison was asked about MT's demeanour during the treatment. His evidence was that:[785]

She seemed to be happy and giving open consent to all of the treatments that Dr Ebtash had proposed ... So she seemed to be fine and she seemed ... to be quite happy with how he performed his treatment.

1. Mr Maddison was asked whether MT was 'put out' or seemed negatively affected by anything that was said or done. His evidence was:[786]

Quite the contrary, she seemed to be thankful [for] what we did and the fact that especially her elbow was feeling a lot better and her back was feeling better after - after the treatment session.

1. MT said that she felt uncomfortable when her pubic bone was exposed.[787] However, she did not recall saying anything to Dr Ebtash at any stage in the course of her treatment to indicate that she felt uneasy about his treatment.[788] As she explained:[789]

I felt a bit confused about whether it was legitimately my imagination. I couldn't believe that he was touching me inappropriately in an inappropriate way, because he wanted to. I - I really thought, 'Could it be that it's just part of the treatment? It's really his professional way, and I'm just imagining it.' For some reason, it was hard to believe, so I didn't say anything, and I was just trying to figure it out as he was doing it. Because - because it was kind of concealed, and it was ambiguous sometimes the way that he went about things. He looked so professional and correct, and so you had to - I felt that - intimidated, somehow, and unsure about how to respond if I felt uncomfortable.

1. Later in her evidence, MT said:[790]

[L]ater on I felt that it was inappropriate because also somehow it was intimidating and it was - I was just really unsure if - if he was being inappropriate or not. It was such a fine line and I felt that because I was upfront with him from the beginning, he maybe took care to not go all the way with touching me inappropriately ...

1. MT explained at the time she felt that there was a fine line between appropriate and inappropriate treatment:

I was confused and I was unsure and only later on when I discussed the experiences with my cast mates, I realised that it was, in fact, inappropriate creepy behaviour.[791]

1. In cross-examination, MT accepted that she was a confident person who was confident of her ability and willingness to confront somebody, and had anticipated that she would confront Dr Ebtash and take action if he acted inappropriately.[792] And yet, she accepted that despite him having touched her in a way that she regarded as inappropriate, she did not confront him. She explained that that was because:[793]

[I]t was concealed in treatment. He was also treating - for real, he was also massaging the sore muscles. He was also cracking and - the wrist and - manipulating the bones and the ligaments in the way that normally you would do when you're treating somebody. So he had expertise and he was doing it. And then in between those treatments, he then would do something and quickly and not exactly so evidence it was concealed and it was hard to tell. It wasn't so completely clear, if you - if you understand what I mean.'

1. We find that MT did not say or do anything in the course of her treatment session with Dr Ebtash to indicate that she was unhappy or uneasy about how Dr Ebtash had touched her. Having regard to her evidence, which we accept, we find that that was because she was not sure that Dr Ebtash's conduct was inappropriate or not, and because she was unsure, she refrained from saying anything.

1. MT's unchallenged evidence was that after her treatment session finished:[794]

I went back downstairs, and I was discussing it with [the] other[s], like, maybe an hour later. We were preparing for a show, and I was discussing it with other girls in the cast who had treatment from him, and everybody was a bit weirded-out and shaken.

1. MT said that she had those discussions with MS, JL, LN, SN and HJ.[795]
2. We find that within an hour or so of her treatment, MT discussed Dr Ebtash's conduct during her treatment session with the other cast members.
3. MT's evidence was that after her treatment session, she talked with CA about what Dr Ebtash had done to her. She recalled that that discussion took place 'later'[796] than her discussions with the other cast members. She was unable to recall whether that discussion took place on the same day that she discussed what occurred with the female cast members, or on a different day.[797]
4. We find that MT discussed Dr Ebtash's conduct in the course of her treatment session with CA. The evidence did not permit a finding as to precisely when that discussion took place. However, there is no doubt that that discussion took place soon after MT's treatment, at some stage during the week following the Second Occasion, before the cast members decided to make a report to the police.

(xi) Did MT consent to being touched by Dr Ebtash in the manner alleged?

1. Dr Ebtash said that he obtained consent from MT to treat her psoas, and that as he treated her psoas, he explained the purpose of the treatment and what he was doing.[798] There was no evidence from Dr Ebtash that he had obtained consent from MT to pull her pants down as she had described. That was hardly surprising, given that he denied, or did not recall, pulling down MT's pants to expose her pubic bone.
2. MT said that did she not recall consenting to Dr Ebtash pulling down her pants as she had described.[799] She did not recall Dr Ebtash telling her beforehand that he was going to pull her pants down.[800] MT accepted that it may have been the case that she did give consent, and now could not remember having done so.[801] However, given Dr Ebtash's evidence that he did not pull down her pants at all, we do not accept that he did obtain her consent to do so.
3. We find that Dr Ebtash did not obtain MT's consent to pull her pants down so as to expose her mons pubis. Even if Dr Ebtash obtained consent to treat MT's psoas muscle, the evidence did not suggest that that consent included a consent to pull down MT's pants to expose her mons pubis.
4. Given that we have not found that Dr Ebtash touched MT in close proximity to the entrance to her vagina, the question of consent to that alleged touching does not arise.
5. MT confirmed that Dr Ebtash did not ask for permission to touch her chest area in the way she had described.[802] She did not recall Dr Ebtash telling her that he was going to touch around her breast area before doing so.[803]
6. We find that Dr Ebtash did not obtain MT's consent to touch her chest in the area around her breasts.

(xii) Was there any clinical justification for Dr Ebtash's conduct?

1. Dr Crawford's evidence, which was unchallenged, was that if MT had a hip flexor (muscular) problem requiring treatment (for example, using massage or soft tissue therapy), the attachments of the major hip flexors and the insertion of the psoas muscle could be accessed without exposure of the mons pubis. That was because 'trigger point therapy of the attachments of these muscles could be undertaken without direct 'skin' contact.'[804] Dr Crawford's opinion was that in the absence of an appropriate clinical assessment of this area (for which consent was required), a diagnosis of any problem identified and informed consent from the patient to proceed with a proposed treatment plan, any touching of the patient as alleged by MT was not clinically justified.[805] Specifically, Dr Crawford's evidence was that in the absence of details of an appropriate clinical assessment, he was unsure why it was necessary for MT's mons pubis to be exposed.[806]
2. We note that in providing this opinion, Dr Crawford appears to have proceeded on the basis of instructions that MT was wearing 'loose fitting shorts ... (and) ... underpants'.[807] As we have noted, the evidence was that MT was wearing training shorts made of a thin material which were tight fitting. It was not suggested that that difference between the evidence, and the basis on which Dr Crawford had given his opinion, would have made any difference to Dr Crawford's opinion that soft tissue therapy could have been undertaken through MT's clothing, without direct contact on her skin. That is particularly so, given the location of the psoas muscles and hip flexors within the abdominal cavity,[808] rather than immediately under the skin of the abdomen.
3. We note the evidence that Dr Ebtash was palpating MT's lower abdomen in order to treat her psoas and hip flexor muscles, following her report of tightness in that area. Even in light of that evidence, there was nothing to suggest that there was a clinical justification for Dr Ebtash to pull MT's pants down so as to expose her mons pubis.
4. We therefore find that there was no clinical justification for Dr Ebtash to pull MT's pants down so as to expose her mons pubis.

(xiii) The notes made by Dr Ebtash in relation to his treatment of MT

1. Dr Ebtash's evidence was that, as he did with other cast members, he made Assessment Notes while he treated MT.[809] Those notes were in evidence, as was as a typewritten version of them.[810] The Assessment Notes (as transcribed, and as explained by Dr Ebtash[811]) stated:[812]

Informed consent obtained (treatment style, risks, benefits, length, etc)

Do you have any current or past medical condition or injury we need to be aware of

- LBP [lower back pain] - Psoas [psoas muscle] + Lx - Consent to adj[ust]

- Discussed manual Trx [treatment] + STT [soft tissue therapy

• - All OK
• - Chest P[ain] - refer to [names of two female massage therapists at the Wellness Place]
• - STT [soft tissue therapy] - Elbow - Mark - discussed Sublux[ation ie a slight misalignment] of Post[erior] ulna - adj[ust] w/permission - relief'

1. It is apparent that the Assessment Notes do not reflect the entirety of the treatment given by Dr Ebtash, as to which there was no dispute. There is no reference to his having stretched MT's pectoral muscles, whereas both MT and Dr Ebtash referred to him treating her pectoral muscles.[813] Dr Ebtash's explanation for that inconsistency in the Assessment Notes was that his note taking was inadequate.[814]
2. The Assessment Notes also appear to suggest that Mr Maddison conducted soft tissue therapy on MT's elbow. However, we have found that Mr Maddison did not undertake any treatment on MT.
3. It is, therefore, apparent that the Assessment Notes cannot be viewed as a comprehensive or accurate contemporaneous record of the treatment Dr Ebtash undertook in relation to MT. For that reason, we have not placed any significant weight on them as supporting the evidence of Dr Ebtash, to the extent that his evidence was inconsistent with the evidence given by MT.

1. Dr Ebtash said that later on the afternoon of the Second Occasion, he made Clinical Notes in handwriting on the back of MT's Patient Form, in relation to his treatment of MT. A copy of the Clinical Notes was in evidence,[815] as was a transcribed version of those notes.[816]
2. As explained by Dr Ebtash in his evidence,[817] the Clinical Notes stated:

- Mark TRPTR [trigger point therapy] Ex MM [extensor muscles] Elbow - L - HTT (Hypertonic and Tender)

- Post-Ulnar - explained about the sublux[ation]

• Felt immediate relief w/adj[ustment]
• Consent acquired

- No clothing removed due to not having anything under jacket

- Explained costochondritis [inflammation of cartilage between sternum and ribs]

- Referred to [names of two female practitioners]

- Stretch pecs, TRPTR, Mid Thx (Thoracic spine), Interscap (interscapular region)

- Advised to get massage in chest and u/s [ultrasound] in the sternum region

- Mark TRPTR Thx [thoracic] and Lx [Lumbar spine]'

1. We have already made findings (at [404] ­ [406) in relation to when Dr Ebtash made the Clinical Notes in relation to LN. Those findings are equally applicable to the Clinical Notes Dr Ebtash made in relation to MT.
2. There were significant differences between the Clinical Notes and the Assessment Notes made by Dr Ebtash in relation to MT.
3. The Clinical Notes referred to chest tightness, but the Assessment Notes did not make any reference to that.[818] Nor did the Assessment Notes contain any reference to pain in the mid-thoracic ribs area or sternum (although the Assessment Notes did refer to chest pain), and there was no reference to the possibility of costochondritis, as there was in the Clinical Notes.[819] Dr Ebtash denied that he had made the Clinical Notes for a self-serving purpose, namely because he knew he had touched MT in the area of her sternum.[820]
4. Dr Ebtash's explanation was that these differences were explained by the fact that the Assessment Notes were 'relevant to getting consent and referring to [the] specific nature of consent'[821] whereas the Clinical Notes were concerned with actions undertaken.[822] That was an entirely unconvincing explanation, given that the Clinical Notes themselves referred to consent having been given for particular treatment.
5. Furthermore, the Clinical Notes do not refer solely to treatment which was given, but also contain references to things that did not occur, namely that 'no clothing removed due to not having anything under jacket'. It is far from apparent why it would be necessary to make a note of specific things which did not occur, unless Dr Ebtash was concerned about the possibility that some suggestion might arise that they had occurred.
6. Furthermore, the Clinical Notes also referred to treatment which was not mentioned in the evidence, namely that Dr Ebtash adjusted MT's lumbar spine and obtained her consent to do so. There was no evidence at all to suggest that Dr Ebtash treated LN by performing an adjustment of her lumbar spine. If the Clinical Notes were not made immediately after the treatment sessions on the Second Occasion, then that would explain how Dr Ebtash might have made errors in setting out the treatment undertaken on MT.
7. Finally, the Clinical Notes are extremely detailed as compared with the Clinical Notes in relation to KM (which we discuss below). As we observed in relation to the Clinical Notes concerning LN, that is a noteworthy difference. The inclusion of greater detail is consistent with Dr Ebtash seeking to use the Clinical Notes for a self-serving purpose, namely to be used to support his version of events, should the cast members pursue their complaints.
8. Taking all of these considerations into account, we are satisfied that the only reasonable explanation for the various differences between the Assessment Notes and the Clinical Notes is that Dr Ebtash made the Clinical Notes in relation to MT to protect his own position in the event that the complaints made by the female cast members, of which he had become aware, were pursued. And we so find. Taking into account all of these differences, we are of the view that the Clinical Notes in relation to MT cannot be viewed as a completely accurate, or contemporaneous, record of what occurred in the course of MT's treatment, and cannot be relied upon as a reliable record of what occurred because their content may be self-serving. Accordingly, we have not given weight to the Clinical Notes as corroborating Dr Ebtash's account of his treatment of MT.
9. As we observed in relation to the Clinical Notes concerning LN, our conclusions in relation to the Clinical Notes reflect very poorly on Dr Ebtash's credibility. We refer to this issue further below in our consideration of the credibility of Dr Ebtash's evidence.

(xiv) Findings as to credibility and reliability

1. MT gave her evidence in a confident, composed and disarmingly frank manner. Throughout her evidence she sought to be precise in her descriptions of what occurred, and to be clear when she was not able to clearly recollect particular details. There was nothing in her evidence to suggest that she exaggerated her evidence in any way. On the contrary, it was apparent that she was at pains to be scrupulously accurate in her answers to the questions put to her. By way of example, as we have already noted, MT acknowledged that she was unable to recollect whether other cast members were in the Treatment Room when she arrived. A further example concerned MT's evidence (which we have set out above) in relation to whether Dr Ebtash touched her on the breast, or around her breast. Similarly, in recounting her evidence about what JL told her after Dr Ebtash's treatment of JL on the First Occasion, MT was asked when this discussion took place, and she acknowledged that she was not certain. She told us that:[823]

I can't say with 100 per cent certainty if that conversation occurred with [JL] exactly on the day of - after that or was it maybe the next day or - but it was post that meeting because I don't remember exactly. What I do remember is ... is that it was after the initial meeting in that private session and before the - the treatment of everybody ... or most people in the cast. So I - I cannot ... be 100 per cent sure. I don't want to say the wrong information because I don't know if it was exactly that day.

1. In addition, there was no basis for thinking that MT made her complaints for any ulterior purpose. Like the other complainants, there was nothing to suggest she knew Dr Ebtash before these events or that she saw him afterwards.
2. There were, however, a number of aspects of MT's evidence that prompted us to carefully scrutinise her evidence as a whole.
3. First, in her evidence in chief, MT did not mention that when Dr Ebtash started to massage her pectoral muscles she instinctively reacted by putting her hands over her breasts, yet she later accepted that in the statement she made to the police she had described having instinctively covered her breasts with her hands. Counsel for Dr Ebtash submitted that that was inconsistent with a genuine recollection. He submitted that if MT had in fact been visualising the memory of what occurred, she would have recalled, from the outset, that she had covered her breasts. He submitted that that was an indication that her evidence was not reliable.[824]
4. We did not regard this omission in MT's evidence in chief as casting doubt on the credibility or reliability of her evidence overall. The manner in which MT responded when her omission was drawn to her attention was entirely consistent with her recollecting, at that point, the response she then described. We accept the submission by counsel for the Board that when that memory came back to MT in the course of cross­examination, it was akin to a 'light bulb' moment, which had the hallmarks of a recollection genuinely coming to mind.[825]
5. Furthermore, we regarded MT's description of her response when Dr Ebtash commenced massaging her pectoral muscles - namely to cover her breasts with her hands - as an entirely natural reflexive response to her concern about him massaging in an area very close to an intimate part of her body, namely her breasts.
6. Secondly, we approached MT's evidence with some caution, given her frank acknowledgment that, in light of what JL had told her about Dr Ebtash's conduct on the First Occasion, she went to see Dr Ebtash with preconceptions or an expectation that something inappropriate might happen.[826]
7. However, despite that expectation MT frankly acknowledged that during the treatment session, she was not sure whether Dr Ebtash's conduct was actually inappropriate:[827]

I wanted to risk it actually. Yes. I wanted to check. I wanted to assess and I wanted to kind of - to put, catch him red-handed and be like 'This isn't appropriate. This is what you're doing is not right and then I'm going to take action' whatever that means. But it wasn't so explicit and I couldn't tell.

1. MT's evidence as to her uncertainty at the time supports the conclusion that she was not affected by any preconception when she actually came to assess Dr Ebtash's conduct during the treatment itself. Had she been influenced by her preconceptions of what might occur, we would have expected her to conclude that aspects of Dr Ebtash's conduct, about which she was unsure, were, in fact, inappropriate. The fact that she did not leap to that conclusion in our view supports the view that her evidence of her recollection as to what occurred was truthful and unembellished.
2. Thirdly, we have taken into account the fact that MT did not make any complaint to Dr Ebtash, or to Mr Maddison, at the time of her treatment, about Dr Ebtash's conduct. Counsel for Dr Ebtash submitted that MT was a:[828]

[C]onfident, assertive woman who went up there full of preconceptions ready to confront him and yet she didn't, and yet ... having gone up there motivated to confront, having received treatment which went beyond the boundaries in the way that she described, she said nothing and then went down and started talking to others about it, fuelling the fire, but when given the chance, in her own words, to confront and react she chose not to.

1. There was no doubt that MT was a confident person, who (as we have found) had no hesitation in challenging Dr Ebtash, from the outset, about his motivations in providing free treatment to the cast members. However, we regarded MT's evidence, which we have set out above at [578] - [582], as to why she did not complain to Dr Ebtash at the time to be completely convincing. The nature of the conduct itself was ambiguous, in that it was not immediately obvious to MT that it was not clinically justified. Her failure to respond was attributable to, and entirely consistent with, the ambiguity of the conduct. In those circumstances we do not consider that her failure to immediately complain undermines the credibility of her evidence as to what occurred.
2. We have also taken into account the fact that MT only complained after discussing with the other cast members what had occurred. In circumstances where she felt uncomfortable about Dr Ebtash's conduct, but was not certain that his conduct was without any clinical justification, it was not surprising that her discovery that other cast members had had similar experiences caused her to feel more confident in her initial feeling that Dr Ebtash's conduct was not appropriate. In our view, the evidence supports the conclusion that MT's discussions with other cast members merely served to reassure her that her initial reaction - that Dr Ebtash's conduct was inappropriate - was a valid one. It does not follow, however, that by virtue of those discussions with other cast members that MT altered her evidence, consciously or subconsciously, in any way.
3. Finally, we turn to the submission by counsel for Dr Ebtash that MT's evidence was somehow contaminated by virtue of her discussions with the other cast members. We discuss that submission in further detail below. For present purposes, it suffices to say that we are not persuaded that there is any basis on which it can be concluded that MT's evidence was rendered unreliable by virtue of those discussions. Had MT's evidence been 'contaminated' by her discussions with other cast members, we would have expected her account to be similar to, if not the same as, the accounts given by the other cast members of their treatment. Yet MT's account of what occurred was strikingly different from the evidence of the other cast members, in so far as she recalled that Dr Ebtash pulled her pants down to expose her pubic bone. Furthermore, had there been such contamination, we might have expected MT to suggest that Dr Ebtash in fact touched her on the breast, rather than around the breast. The fact that she did not go that far in her evidence, and was instead concerned be precise about where Dr Ebtash touched her, militates against the conclusion that the accuracy of her recollection was undermined by the discussions she had with the other cast members.
4. Having taken all of these considerations into account, we are satisfied that MT's evidence was both reliable and credible. We accept her evidence.

(xv) Mr Maddison's credibility and reliability

1. In the course of our discussion of LN's evidence, we set out our findings as to the credibility and reliability of Mr Maddison's evidence. It is unnecessary to repeat those findings here, but they apply equally in our assessment of Mr Maddison's evidence as it pertained to MT's treatment.
2. In the course of Mr Maddison's evidence as it pertained to MT's treatment, there were further examples of the matters of concern about his evidence to which we have already referred. These provide further confirmation of the findings we have already made.
3. First, in the course of his evidence in relation to MT's treatment, Mr Maddison professed to recall very minor matters, such as the fact that when MT arrived at the Treatment Room, she did not have her Patient Form with her, and that he asked her to go and get it.[829] Given the passage of time that has passed since these events occurred, it struck us as very unlikely that Mr Maddison would have an independent recollection of such minor details as that.
4. Secondly, in other respects, Mr Maddison's recollection of very minor details accorded with Dr Ebtash's evidence. By way of example, as we have noted at [490] above, Mr Maddison claimed to recollect that MT was wearing a jacket-style top, that she told Dr Ebtash that she was only wearing a bra underneath, and that Dr Ebtash then told MT that he would leave the treatment of her chest, and a female therapist would attend on the next occasion. That evidence was strikingly similar to Dr Ebtash's evidence. In contrast, MT acknowledged that she was not entirely sure of the style of top she was wearing on the Second Occasion. We regard it as inherently improbable that Mr Maddison would have a clearer recollection of such small details than MT herself, when the events of the Second Occasion held far less significance for him at the time than they did for her.
5. Thirdly, Mr Maddison's evidence in relation to MT's treatment had the hallmarks of recitation of a witness statement, including in the use of quite formal language. By way of example, Mr Maddison gave evidence that MT had 'complained of a lower back problem and - and after further questioning and assessment, Dr Ebtash assessed her lower abdominal region, over the region of the psoas muscle or upper ... hip flexors, into the abdominal cavity just above her hip bone'.[830]
6. Fourthly, we have accepted MT's evidence that she put her hands over her breasts when Dr Ebtash began to massage her pectoral muscles. Mr Maddison denied seeing her do so, despite his claims that he was standing nearby, observing Dr Ebtash. As we have already found (in relation to LN's treatment) we are unable to accept Mr Maddison's evidence that he was watching what took place. Moreover, Mr Maddison's explanation as to why he did not see MT put her hands over her breasts was, with respect, absurd. As we noted at [573], his evidence was that he evidence that he was not watching MT's hands, but rather was watching Dr Ebtash's hands. This was despite the fact that Dr Ebtash was treating the area of MT's chest whilst MT covered her breasts with her hands. That absurd explanation in our view supports the conclusion we have otherwise reached that Mr Maddison sought to put a gloss on his evidence so as to favour Dr Ebtash's version of events.
7. As we have already found, we do not reject Mr Maddison's evidence in its entirety, but in so far as his evidence was inconsistent with the evidence given by MT, or consistent only with the evidence given by Dr Ebtash, which we reject, we do not rely on Mr Maddison's evidence.

1. We discuss the credibility and reliability of Dr Ebtash's evidence below.
2. For the reasons there set out, we doubt the credibility of his evidence, and for that reason, in so far as Dr Ebtash's evidence was inconsistent with the evidence given by MT, we prefer MT's version of events to that given by Dr Ebtash.

(e) Alleged conduct in relation to MS (ground 5 of the Application)

(i) The Board's allegations and Dr Ebtash's response

1. The Board alleges that in consultations with MS on or about the First Occasion and the Second Occasion, in a room at the Venue, Dr Ebtash engaged in conduct which was either inappropriate conduct of a sexual nature, or clinically inappropriate and below the standard reasonable expected of a chiropractor of an equivalent level of training or experience.[831]
2. The conduct alleged was that:[832]

(a) On or about the First Occasion, whilst massaging MS's shoulder in a standing position, pulled MS's body against his, so that her buttocks were pressed against Dr Ebtash's groin;

(b) On or about the Second Occasion, whilst massaging MS's shoulder and left elbow:

(i) Made fast jerking movements which caused MS's breasts to move around;

(ii) Touched MS's breast with his fingertips, in close proximity to her nipple;

(iii) Touched MS on her mons pubis, in close proximity to her clitoris.

1. Dr Ebtash admits that he engaged in a professional consultation with MS on or around the First Occasion and the Second Occasion, at the Venue, but otherwise denies these allegations, and says that the nature of the treatment alleged was neither offered nor provided.[833]
2. The Board alleges that Dr Ebtash failed to properly inform MS, before commencing treatment, of the nature of the treatment and failed to give her adequate opportunity to question or refuse that treatment, because:[834]

(a) He did not advise MS that he intended to or might touch her breasts, touch her chest in a way that would make her breasts move around, or touch her mons pubis in close proximity to her clitoris before he touched her in that manner;

(b) He did not ask MS for permission to touch her breasts, touch her chest in a way that would make her breasts move around, or touch her mons pubis in close proximity to her clitoris, before he touched her in that manner; and

(c) He did not explain to MS why he intended to or might touch her breasts, touch her chest in a way that would make her breasts move around, or touch her mons pubis in close proximity to her clitoris, before he touched her in that manner.

1. Dr Ebtash denies each of these allegations concerning consent, on the basis that the treatment alleged was neither offered nor provided.[835]
2. The Board alleges that there was no proper clinical justification for Dr Ebtash to touch MS's breasts, touch her chest in a way that would make her breasts move around, or touch her mons pubis in close proximity to her clitoris at that consultation, and it was inappropriate for Dr Ebtash to have done those things.[836]
3. Dr Ebtash denies these allegations, on the basis that the treatment alleged was neither offered nor provided.[837]

(ii) Dr Ebtash's alleged conduct on the First Occasion

1. MS agreed to have some treatment from Dr Ebtash on the First Occasion. She was treated after Dr Ebtash had treated GR, and before he treated JL.[838]
2. MS was treated in the Green Room. GR and HJ were sitting on couches in the Green Room at the time MS was treated.[839]
3. MS told Dr Ebtash that she had a recurring injury in her right shoulder and that she had pain in the shoulder at the very tip of the joint.[840]
4. Dr Ebtash's evidence was that MS complained of right or left shoulder issues, a grinding feeling in her right shoulder, and some neck problems. He asked her if she was experiencing any numbness, but she told him she was not.[841]

1. MS's evidence was that Dr Ebtash:[842]

[T]ried to massage the shoulder, but then asked if he could massage my pectoralis, which is like the top of the chest, and he went behind me ... and pressed against me very, very close, body to body, and started to manoeuvre the pectoralis muscle and jiggling it - jerking it quite heavily.

1. MS also described how Dr Ebtash stood behind her and used both hands to massage her shoulder.[843] He massaged between her clavicle and her 'pec minor', that is, between the top of her pectoral muscle on the right side, and her clavicle.[844]
2. In cross-examination, counsel for Dr Ebtash elicited more details as to how Dr Ebtash conducted this part of his treatment of MS. MS accepted that Dr Ebtash also raised her arm up and down, at right angles to her body, to test her range of movement and pain, and, with her arm extended, he applied resistance while she moved her arm.[845] MS did not dispute that Dr Ebtash then stood behind her, and felt around her trapezius at the top of either side of her neck, palpating the trapezius muscles with his thumb and fingers.[846] MS also agreed that Dr Ebtash leant very close to her, and then reached his arm around the top of her right shoulder, and manipulated the area between the trapezius and the upper part of the pectoral muscle, and palpated quite firmly in her right shoulder area.[847] She agreed that at the time that he did so, Dr Ebtash told MS that he was checking the mobility of that area.[848] MS agreed that Dr Ebtash massaged her shoulder for about 15 seconds.[849]
3. MS told us that on the occasions when she had had her shoulder treated in the past, the practitioner either stood in front of her, or she had laid down, but no practitioner had ever stood behind her to treat her shoulder.[850]
4. Dr Ebtash's evidence as to this aspect of MS's treatment was broadly consistent with MS's evidence. Dr Ebtash said that he raised MS's arm through an arc motion, and asked her to hold her arm out and applied resistance, to test whether she felt pain in any of these movements.[851] He then stood behind MS and felt her upper trapezius muscles, by palpating and squeezing them to test for tension and tenderness, and palpated the top of her shoulder to feel the articulation of the humerus bone within the shoulder joint.[852]
5. Dr Ebtash's evidence was that he customarily conducted treatment of this kind by standing behind the patient.[853]
6. There was no real area of dispute between MS and Dr Ebtash as to what occurred up to this point in her treatment. Having regard to their evidence, we find that Dr Ebtash commenced his treatment of MS by exploring the range of movement of her right shoulder, then he stood behind her, and firmly palpated her trapezius muscle, her upper pectoral muscle, and her right shoulder.

The Board's allegation that Dr Ebtash pulled MS's body towards his so that her buttocks were pressed against his groin

1. MS's evidence was that she then felt Dr Ebtash pressing the entire front of his chest area and his pelvis against her body.[854] She felt Dr Ebtash's pelvis pressing into her buttocks.[855] MS recalled that her lower back and bottom were in contact with Dr Ebtash's hip and thigh area.[856] She explained that she meant 'his entire front area'[857] from the top of his body, both of his hips and both of his thighs[858] and confirmed that his pelvis touched her buttocks.[859]
2. In cross-examination, MS rejected the suggestion by counsel for Dr Ebtash that in fact what had occurred was that, while still standing behind her, Dr Ebtash reached for her right arm, bent it at the elbow, lifted her bent arm up so that her fingers were touching her right shoulder with the palm down, and with his arms wrapped around her body, and with the right side of his torso and pelvis touching her body, cupped his hands together under her elbow and then rocked his body back, transferring his weight to his back foot, causing her body to rock back so that the back of her body was effectively in contact along the side of his body, and then gave a little thrust with his arms around her elbow, effectively moving her elbow quite quickly towards him.[860]
3. MS's evidence was that she did not remember being treated in that way. She said she did not remember her arm being bent, or Dr Ebtash's transfer of weight so that her body touched his, as his counsel had described.[861]
4. MS also gave evidence that after Dr Ebtash had treated her shoulder, he cracked her spine and her neck, by wrapping his arms around her arms (which were crossed on her chest) and applying pressure onto to the spine.[862] MS said that she remembered 'the cracking, and ... the manoeuvring of the - the arm and the shoulder.'[863]
5. MS made a statement to the police less than two weeks after the First Occasion. In that statement she referred to Dr Ebtash standing behind her, pulling on her shoulder, and pulling her body onto the front of his, so that her bottom was against his groin area.[864] MS also stated that Dr Ebtash massaged her shoulder for about 15 seconds, and that he treated her neck.[865] However, MS did not specifically mention, in that statement, that Dr Ebtash had massaged her pectoral muscles, nor did she mention that he had crossed her arms and cracked her back or her neck. When pressed on this part of her evidence during cross-examination MS accepted her neck and spine were not cracked by Dr Ebtash on the First Occasion.[866]
6. In addition, MS attributed the omissions in her statement to the police to the fact that she 'felt the inappropriate procedure was more important and I was under a lot of stress'.[867] She also confirmed that she was not asked questions by the police officer about the specifics of each step of the treatment Dr Ebtash carried out.[868] Nevertheless, MS maintained that 'I have an engraved image of him standing behind me and massaging my pec and my breast vigorously, on one or both occasions, which was incredibly inappropriate'.[869]
7. MS said she felt uncomfortable about the fact that Dr Ebtash pressed against her in the way she had described.[870] MS agreed that she felt uncomfortable because Dr Ebtash was standing very close to her, and because he was touching her.[871] As she told us, 'I never come in that close contact with ... another male in any instance, except my husband. ... I felt like it was not in the right place and I just - I just felt it was inappropriate. I felt it was too close.'[872]
8. It was apparent from her evidence that MS was taken by surprise and had no expectation that in adjusting her shoulder, Dr Ebtash would lean her body into his in such a way that her buttocks would be pressed into his groin. The compelling inference is that Dr Ebtash did not explain that procedure or seek her consent to touching her that way, and we so find.
9. In addition, MS felt uncomfortable because 'there were people around making remarks... and they brought it to my husband's attention'.[873] She later explained that it was GR who drew to her husband's attention what was being done.[874] MS said she did not hear what GR said at the time, but HJ later told her that GR remarked to him 'I know what you're thinking - It's inappropriate' - along those lines'.[875]
10. Dr Ebtash's evidence was that after he had massaged MS's shoulder, he applied a technique - known as the anterior humerus technique -[876] which involved the patient bending their arm at the elbow, with their palm over their shoulder, and in which he cupped the patient's elbow and applied an upward thrust to the elbow.
11. Dr Ebtash described this technique as suitable for patients with a form of fixation in their shoulder joint.[877] Pictures depicting this treatment technique, albeit being applied somewhat differently from the way Dr Ebtash described it being applied in MS's case, were in evidence.[878]
12. Dr Ebtash explained that in undertaking this technique on MS, he wrapped his left hand around MS's body, above her left arm, at chest level, so that his left hand was cupped under her right elbow. His right arm wrapped around her body on the other side, and his right hand also cupped her right elbow. Dr Ebtash said that the right side of his chest, the right side of his pelvis and the greater trochanter (or the top of his thigh) was then pressed against her.[879] He confirmed that the contact was with the right side of his body because he was assessing MS's right shoulder,[880] however, he explained that the patient could be supported by either the practitioner's left or right side.[881]
13. Dr Ebtash then described the next movement as being to lean the patient back onto his body, and 'apply with a thrust' to their elbow.[882] He explained that 'to be able to do that, you would usually have the weight of the patient on your back leg and, in a way, you are kind of anchoring yourself with the - with the side of your thigh against the back of the patient'.[883] Dr Ebtash confirmed that:[884]

[T]he reason that you do that is the fact that you need to, kind of, take the weight of the patient, lean back a little bit and apply with a thrust. So you cannot be standing up doing this because as you go back, you're going to fall back.

1. He emphasised that 'you're never front on with the patient, you're always side on ... you are supporting the patient's weight with the side of your body'.[885] He stated that the thrust movement was done with his hands, and denied that he used his pelvis to apply the thrusting movement.[886]
2. Dr Ebtash did not deny that there was contact between his body and MS's body,[887] but denied as 'absolutely not correct' MS's evidence that she felt her body touching the front of his body.[888] His evidence was that in this technique, the patient's body touched the side of his upper torso, and their bottom touched the side of his pelvis at his hip.
3. Dr Ebtash was unable to recall whether he had undertaken any other treatment of MS on the First Occasion, although he thought he may have done 'some soft tissue work, some mobilisation of her neck because she had complained of that as well'.[889]
4. Dr Ebtash recalled that he treated MS for no more than 10 minutes on the First Occasion.[890]

1. Clearly, MS did not have a comprehensive recollection of what occurred in this part of her treatment on the First Occasion. She did not explain how it was that Dr Ebtash came to be in the position where he pressed his chest and pelvis against her back and buttocks. Her description did not suggest that this movement was part of his treatment of her shoulder.
2. However, MS's recollection that Dr Ebtash wrapped his arms around her arms (which she thought were crossed on her chest) to pressure onto her spine, and her recollection that he cracked and manoeuvred her arm and shoulder, are consistent with aspects of the anterior humerus technique described by Dr Ebtash.
3. In any event, Dr Ebtash's own evidence was that in his application of the anterior humerus technique, he leaned MS's body against his torso.
4. In that respect, the only dispute on the evidence as to this part of the events was whether MS's back and buttocks were leaning against the front of Dr Ebtash's chest, and his groin, or against the side of his torso down to his hip and his thigh.
5. It was not put to MS that she could have been mistaken about which part of Dr Ebtash's body came into contact with hers, but in any event, we are not persuaded that she was. It is very likely that MS would have been acutely aware of such intimate contact between her buttocks and Dr Ebtash's groin.
6. Furthermore, as MS told us, GR saw Dr Ebtash treating her, and drew it to her husband's attention as being inappropriate.
7. For the reasons set out below, we found MS to be a credible and reliable witness. Because of our reservations in relation to Dr Ebtash's evidence (as explained below) we have preferred MS's evidence to Dr Ebtash's evidence, to the extent that there was any inconsistency between their accounts.
8. Consequently, we accept MS's evidence and we find that in performing the anterior humerus technique to adjust her shoulder, Dr Ebtash leaned her body back onto his, so that her back and buttocks were in contact with the front of his chest and his groin respectively.

MS's reaction to Dr Ebtash's conduct on the First Occasion

1. MS acknowledged that her husband HJ was present throughout her treatment on the First Occasion, and she believed that he saw what was happening. However, he did not say anything or raise any issue about what Dr Ebtash was doing, and nor did she.[891]
2. Dr Ebtash's evidence was that after he treated MS on the First Occasion, she was 'extremely happy ... with the outcome of the adjustment'.[892]
3. We find, therefore, that MS did not make any complaint to Dr Ebtash, or to HJ (or GR who was also present) about Dr Ebtash's conduct.
4. Furthermore, after the First Occasion, CA asked MS if she wanted more treatment from Dr Ebtash and she agreed.
5. MS also agreed that the treatment from Dr Ebtash had helped her shoulder, and that had informed her decision to seek further treatment on the Second Occasion.[893]
6. MS's reason for deciding to have further treatment with Dr Ebtash on the Second Occasion, notwithstanding her concern that his conduct was inappropriate on the First Occasion, was as follows:

'I thought ... maybe it could be done in a different way, since ... he would spend a little bit more time. I - I felt, maybe - it - it happened very quick, that first time, and if it was to happen again I thought, maybe, I could try and control the situation and also I was just in a lot of pain at the time.'[894]

Whether Dr Ebtash obtained consent to treat MS in the manner alleged on the First Occasion

1. Dr Ebtash confirmed that each time he touched a separate part of MS's body he explained the reason and obtained her consent to do so.[895]
2. His evidence was that he obtained MS's consent to apply the anterior humerus technique, and that he informed her that she would be leaning on him, and that he would apply a thrust to her elbow.[896]
3. There was no suggestion at all in MS's evidence that Dr Ebtash had explained what he intended to do before performing the anterior humerus technique, or specifically, how he would lean the back of her body into the front of his. Moreover, MS's evidence as to her feeling of discomfort at the extent of the contact between her body and his are consistent with her having no warning of the extent of that intimate contact.
4. Having regard to these matters, and to our findings as to the credibility of the evidence given by MS and Dr Ebtash, we reject Dr Ebtash's evidence that he obtained MS's consent to this touching. We find that Dr Ebtash did not obtain MS's consent to his leaning her back and buttocks against the front of his chest and groin.

MS's discussions with other cast members in relation to Dr Ebtash's conduct between the First Occasion and Second Occasion

1. MS was asked whether she had discussions with any member of the cast, between the First Occasion and the Second Occasion, about feeling uncomfortable during her treatment with Dr Ebtash. Her evidence was 'not so much, because - no. No, we didn't talk about it too much, I don't believe'.[897]
2. MS denied that she had talked to anybody else about whether they felt uncomfortable with that first round of treatment.[898] However, that was not correct. Later in her evidence, MS accepted that on the afternoon of the First Occasion, JL came to the dressing room MS shared with HJ, and told them about Dr Ebtash's inappropriate conduct in treating her that afternoon. Furthermore, it was apparent that at some stage after the First Occasion, MS and her husband HJ discussed what had occurred, because he told her that GR had drawn his attention to the way Dr Ebtash treated her. Apart from JL, none of the other female cast members gave evidence that they had discussed MS's concern about Dr Ebtash's inappropriate conduct towards her, before the Second Occasion.
3. We find that MS did not discuss any aspect of Dr Ebtash's inappropriate conduct on the First Occasion with any of the female cast members apart from JL.

Was there a clinical justification for Dr Ebtash to touch MS in the manner alleged by the Board?

1. In relation to MS's treatment, Dr Crawford's opinion was that in the absence of a diagnosis, a clear plan of management and informed consent, treatment, including any touching of a patient should not proceed. In so far the treatment of MS's shoulder was concerned, Dr Crawford's view was that massaging the shoulder muscles (although it was not clear which muscles specifically were involved) may be an appropriate treatment for some shoulder problems.
2. Dr Ebtash noted that some shoulder adjustments may involve not only contact by the practitioner's hands but also parts of their body. Dr Crawford confirmed that the anterior humerus technique described by Dr Ebtash, which involved the adjustment of a patient's shoulder by cupping the elbow and moving it upwards, was a technique for the adjustment of the shoulder. His evidence was that that that technique could be performed from either side of the patient's body.[899] He acknowledged that that technique could also be done by the patient leaning back onto the practitioner's chest, rather than their side.[900] However, it was Dr Crawford's evidence that whichever way the technique was performed, the practitioner's pelvis would not be in contact with the patient.[901] Consequently, the contact with Dr Ebtash's groin, which MS described, was not contact which was clinically justified, in Dr Crawford's opinion.[902]
3. We accept that evidence, and consequently, we find that there was no clinical justification for Dr Ebtash to have leaned MS's back and bottom into his body so that her buttocks came into contact with his groin.

Notes taken by Dr Ebtash in relation to MS's treatment on the First Occasion

1. As we have already observed (in our discussion of JL's treatment), Dr Ebtash's evidence was that he made Assessment Notes in respect of MS and JL shortly after their treatment on the First Occasion.[903] The Assessment Notes relevantly stated:[904]

Informed consent obtained (treatment style, risks, benefits, length, etc)

Do you have any current or past medical condition or injury we need to be aware of

1. There was no specific evidence as to what these notes meant. However, having regard to the other evidence given by Dr Ebtash as to the abbreviations he used in his notes, we understand these notes to mean 'Right shoulder pain discussed - Adjustment versus soft tissue therapy / Mobilisation - risks - pain?. All OK, Adjustment - Positive response.'
2. Dr Ebtash also gave evidence that he made Clinical Notes in relation to his treatment of MS on the First Occasion, a short time after the treatment was carried out.[905] Those Clinical Notes were in evidence.[906] Having regard to Dr Ebtash's explanation of the abbreviations he used in his notes, those notes stated:[907]

... strain upper traps HTT (Hypertonic and Tender), Pecs - Hypertonic and Tender - Bilat [both sides]

Improved Rom Post Trx, review on [Second Occasion]

1. Neither the Assessment Notes nor the Clinical Notes reflect the entirety of the treatment performed by Dr Ebtash on MS on the First Occasion. Those Notes make no mention of Dr Ebtash exploring the range of movement in MS's right shoulder, or him massaging her shoulder area. Furthermore, even in so far as the Assessment Notes appear to make reference to an adjustment of MS's right shoulder, and the Clinical Notes refer to a 'release' of the 'Ant humerus' they merely confirm what was not in contest, namely that Dr Ebtash adjusted MS's right shoulder, and that that adjustment gave MS immediate relief, to which he understood her to positively respond. Neither the Assessment Notes nor the Clinical Notes assist to resolve the dispute as to what part of Dr Ebtash's body came into contact with MS's buttocks.

(iii) Dr Ebtash's alleged conduct on the Second Occasion

1. On the Second Occasion, MS arrived at the Venue at about 3.00 pm, dropped her things in her dressing room, and went to the Treatment Room with HJ. As we have already mentioned, in the stairwell on the way to the Treatment Room, MS and HJ saw SN. MS's evidence was that SN:[908]

[K]ind of gave me a look that said, 'be careful', or just 'Be aware ... in your treatment'.

1. MS elaborated on what occurred as follows:[909]

My husband and I were going up for treatment, and he just gave us a bit of - like, 'Be careful. Be aware in your treatment with Dr Ebtash.

1. She was asked whether he in fact said that, and her evidence was:[910]

I believe he just said, 'Be aware. Just be aware and be careful in your treatment'.

1. In cross-examination, MS's attention was drawn to the statement she provided to the police. In that statement, MS said that she passed SN on the stairs and:[911]

[H]e did hand signals to me, which made me think, 'beware'. ... He didn't say anything, but it is what I got from his body language. I wasn't sure if it was 'beware' from the treatment or from the physio himself.

1. MS was asked about the fact that her statement said that SN did not say anything. Her response was:[912]

'He was speaking very quietly, almost as a whisper, and - but the main thing was the hand signals.

I remember him being very quiet, not trying to declare it, and giving us hand signals and just saying 'Be aware'.'

1. SN's evidence about this was broadly consistent with MS's evidence. He recalled that he saw HJ and MS and said 'Hey, like, [LN] just got treatment and, you know, she felt like it was inappropriate. Please be careful when you go up there. You know, make sure you avoid any sort of treatment that's happening around sensitive areas.'[913]
2. We find that on the way to the Treatment Room, MS and HJ saw SN who warned them to be careful in their treatment with Dr Ebtash as LN had been treated in a way that she felt was inappropriate.
3. MS said that despite receiving that warning, she nevertheless went to the Treatment Room because she was with HJ and 'I felt I was in a safe space to go'.[914]
4. MS's evidence was that when she and HJ arrived at the Treatment Room, SS may have been there.[915] Dr Ebtash was there, and he had a male assistant with him.[916] That was Mr Maddison.
5. MS recalled that before being treated by Dr Ebtash, she did a couple of exercises with Mr Maddison, using an elastic resistance band for her shoulder, for about 10 minutes. That took place just outside of the main entrance to the Treatment Room.[917]
6. Dr Ebtash did not dispute that MS was treated by Mr Maddison, but his recollection was that she was treated by Mr Maddison after she was treated by Dr Ebtash.[918] He also recollected that Mr Maddison treated HJ while he treated MS.[919]
7. Mr Maddison's evidence was that he treated HJ first.[920] He said that he and HJ went over to one of the couches, and Dr Ebtash treated MS on the treatment table.[921]
8. In the statement MS provided to the police just over a week after the Second Occasion, she said that when she arrived at the Treatment Room, MT (not SS) was still sitting on the treatment table being treated by Dr Ebtash, so she initially went outside with the physiotherapist (that is, Mr Maddison) and did exercises with him.[922] She said that after a few minutes, she went in and saw Dr Ebtash, and HJ went outside and received treatment from Mr Maddison.[923]
9. Furthermore, in the handwritten Assessment Notes taken by Dr Ebtash during the course of the treatments on the Second Occasion, the notes in relation to MS's treatment appear before the notes in relation to HJ's treatment.[924]
10. Having regard to the totality of the evidence, we find that MS first undertook some exercises with Mr Maddison, and then received treatment from Dr Ebtash. While MS was receiving treatment from Dr Ebtash, HJ was treated by Mr Maddison.

What MS told Dr Ebtash about her injuries and treatment needs on the Second Occasion

1. Prior to going to the Treatment Room, MS filled out a Patient Form.[925] The Patient Form was in evidence. On the Patient Form, MS indicated that her complaints were her right shoulder, her neck and her back, that she had been experiencing these problems for three months, and that she experienced a 'dull achy' pain and tingling, and headaches and migraines.[926] MS recalled that when she filled in the Patient Form it asked whether she was getting pins and needles or numbness in her hands, and she stated that she was not.[927]
2. MS recalled that she also told Dr Ebtash that her shoulder was hurting, felt like it was out of place, and was pinching.[928]
3. There was no dispute about the injuries MS reported on the Patient Form. Her evidence as to what she told Dr Ebtash, which we accept, was consistent, in that she drew attention to her shoulder pain.
4. Dr Ebtash asked MS about the tingling that she reported, but based on her answers, concluded that it was a vascular issue. He accepted that in light of her report of tingling, he should have conducted a thorough neurological examination.[929] He admitted he had not done so, and said that that was because he was in a rush to carry out the treatment.[930]

Alleged inappropriate conduct by Dr Ebtash on the Second Occasion

1. MS was wearing a sleeveless one piece jumpsuit, with shoulder straps, and was wearing an oversized sweater over the top. She was not wearing a bra.[931]
2. When MS went into the Treatment Room, Dr Ebtash was standing near the treatment table in the centre of the room. She sat on the treatment table and he stood in front of her.[932] MS said that Dr Ebtash massaged her shoulders on both sides.[933]
3. In cross-examination, MS acknowledged that Dr Ebtash performed the same exercises with her arm outstretched, to test her range of movement, as he had on the First Occasion.[934] She also accepted that he bent her arm, cupped her elbow in both of his hands and applied an upward thrust of her elbow, which resulted in a clicking noise in her shoulder.[935]
4. MS also recalled that Dr Ebtash asked for permission to massage her pectoral muscle.[936]
5. MS recounted that Dr Ebtash massaged her pectoral muscles using a 'fast and... hard and jerky'[937] movement which caused her 'breast to move vigorously' and 'more than they should have'.[938] MS's evidence was that while she had had physiotherapy on her pectoral muscles many times before, she had never had treatment in that manner before and had never had a massage which caused her breasts to move in that manner.[939]
6. In cross-examination, MS rejected the suggestion that Dr Ebtash did not massage her pectorals so that her breasts were moved around.[940]
7. MS said that Dr Ebtash then poked and prodded her right breast quickly and firmly, with both index fingers, just around the nipple.[941] He did not ask for her permission to do so beforehand.[942] He gave no explanation for why he did so.[943]
8. MS said that that made her feel uncomfortable because she had never been touched in the breast area by a physiotherapist, despite having had previous treatment for muscles in her upper chest.[944]
9. In cross-examination, MS emphatically rejected the contention that Dr Ebtash had not poked around her breast area, proximate to her nipple, with his fingers.[945]
10. Dr Ebtash's evidence was that on the Second Occasion, he performed the same anterior humerus adjustment for MS as he had on the First Occasion, except that on this occasion, the technique was performed while MS was sitting on the treatment table.[946]
11. Dr Ebtash said that they then discussed MS's neck problem and he did some further trigger point therapy around her neck as well.[947]
12. He then asked MS for permission to touch her chest area.[948] Dr Ebtash could not clearly recall whether MS was lying down or sitting up when he treated her pectoral muscles, but thought that if MS was seated, he would have been standing behind her.[949]
13. Dr Ebtash did not deny that he had placed his hands at the top of MS's chest area when he treated her right pectoralis minor muscle on the Second Occasion.[950] However, he denied that he massaged her pectoral muscles so that her breasts jiggled a lot.[951] Dr Ebtash agreed that he used a firm pressure in applying trigger point therapy to the muscle, but said that that would not have caused her upper body to move,[952] and that there was 'not even a chance' that that would have occurred.[953] His evidence was that 'if there were any form of movement of her breast, it was not something that was intentionally induced by me for any reason'.[954] In short, Dr Ebtash did not deny that his massaging the muscle may have caused her breast to move, but it was implicit in his evidence that if her breast did move, any such movement would have been minimal.
14. Furthermore, Dr Ebtash said that he had not seen MS's breasts jiggle, because he was standing behind her.[955] He said he did not know at the time that she was not wearing a bra.[956]
15. Dr Ebtash emphatically denied that he poked around MS's breast, close to her nipple area.[957] His evidence was that there was no need to stand in front of MS during her treatment,[958] and that there was no reason for him to touch, prod or poke her anywhere on her breasts or around her nipple, and that that 'never happened'.[959]
16. Dr Ebtash's evidence was that while he was treating MS, her husband HJ was with Mr Maddison having some treatment on his elbow, and they were standing only about three or four metres away, towards the direction of the door of the Treatment Room.[960]
17. Mr Maddison's evidence was that he was treating HJ, and as he did so, HJ was facing towards the treatment table, and Mr Maddison was standing at a 90 degree angle next to him. Mr Maddison said that as a result he 'could just look backwards and forwards, observing anything that Dr Ebtash was doing, and, of course, I was listening the entire time to what was being performed just in case [MS] had to come to me as well for exercises or soft tissue work.'[961]
18. Mr Maddison explained that he looked over at Dr Ebtash and MS:[962]

[A]t regular intervals. Every 30 seconds or so, I would be listening to what [HJ] had to say, making an assessment, testing a muscle and while I was palpating, or feeling, I would look over to see what Dr Ebtash was doing. ... Because I was expecting that because [MS] had gone to Dr Ebtash first, there was a very good chance that he would ask me to perform some exercises in reference to what was going on with her so I was trying to pick up as much as I could from his interaction with her so that when he informed me of what needed to be done I had some understanding of why he did'.

1. Mr Maddison did not expressly say that Dr Ebtash did not vigorously massage MS's pectoral muscles so as to make her breasts jiggle, or that Dr Ebtash did not touch MS's right breast near her nipple. However, the implication from Mr Maddison's evidence in chief was that he was watching Dr Ebtash for the entire time and did not see any inappropriate conduct.
2. In cross-examination, however, Mr Maddison admitted that while he was treating HJ, he asked HJ a couple of questions and 'was focused on what [HJ] said'.[963] He maintained that he was able 'to look backwards and forwards in a timely fashion seeing what Dr Ebtash was doing'.[964] However, he eventually accepted that there were periods of time when he was not watching what was going on with MS, because he was focusing on treating HJ.[965] Ultimately, he acknowledged that he did not see everything Dr Ebtash did to MS while he was treating her.[966]
3. Furthermore, Mr Maddison had only a very limited recollection of Dr Ebtash's treatment of MS. He was unable to recall whether MS was sitting or standing while she was being treated by Dr Ebtash.[967] He could not recall what position Dr Ebtash was in when he was treating MS.[968] While Mr Maddison said that he saw Dr Ebtash treat MS's upper shoulder and lower neck, he was unable to recall what the treatment to MS's shoulder was.[969]
4. For the reasons discussed above at [444] ­ [447], and [628] ­ [633], we have a number of reservations about the credibility and reliability of Mr Maddison's evidence, which also caused us to approach his evidence in relation to MS's treatment with considerable caution. We discuss our concerns about Mr Maddison's evidence further below. In so far as Mr Maddison initially sought to convey the impression that he was watching Dr Ebtash closely for the entire duration of MS's treatment, we are unable to accept that that was the case. However, in the end, Mr Maddison accepted himself that he did not see every aspect of Dr Ebtash's treatment of MS. The conduct reported by MS was brief in duration. It is entirely possible that Mr Maddison simply did not see what occurred. From that perspective, Mr Maddison's evidence was not inconsistent with MS's evidence.
5. Having regard to the evidence given by MS and Dr Ebtash, there was no dispute, and we find, that Dr Ebtash commenced by treating MS's right shoulder, and that he performed the anterior humerus technique to adjust her shoulder by thrusting her elbow upwards. There was also no dispute, and we find, that she was sitting on the treatment table when he performed that adjustment on this occasion. There is also no dispute, and we find, that Dr Ebtash then requested, and was given, consent to massage MS's pectoralis minor muscle at the top of her chest. Finally, there was no dispute, and we find, that Dr Ebtash then undertook trigger point therapy on her pectoralis minor muscle and that he applied a firm pressure in doing so.
6. The two points of difference in the evidence therefore are whether Dr Ebtash massaged MS's pectoralis minor muscle with a 'fast and ... hard and jerky' movement which caused her 'breast to move vigorously', and whether he poked and prodded her right breast quickly and firmly, with both index fingers, just around the nipple.
7. For the reasons set out below, we found MS's evidence to be credible and reliable, and we accept it. For the reasons set out below, we have doubts about the credibility and reliability of Dr Ebtash's evidence, in so far as it is inconsistent with the evidence given by the female cast members, including MS. Consequently, to the extent of any inconsistency in their evidence, we prefer MS's evidence to that given by Dr Ebtash.
8. We therefore accept MS's evidence, and on that basis, we find that Dr Ebtash did massage her right pectoralis minor muscle with a fast, hard and jerky movement which caused her breast to move vigorously. We also find that Dr Ebtash poked and prodded her right breast quickly and firmly, with both index fingers, just around the nipple.

Touched MS on her mons pubis, in close proximity to her clitoris.

1. MS said that Dr Ebtash then asked her to lay down on the treatment table, and asked her if it was okay for him to touch her hips. She gave him permission to do so, but recalled thinking that she was not sure why that was necessary, given that her injury was to her upper body and she had not suggested, either in filling out the Patient Form, or in her discussion with Dr Ebtash, that she had any issue in her hip area.[970]
2. MS's evidence was that Dr Ebtash then:[971]

kind of poked the hips to see if they were in align[ment]. And then he poked a little bit more towards the centre where it was close to the underwear line and then gradually moved lower and below the underwear line... [t]owards the centre down to the underwear line and then lower to the pubic bone.

1. MS said that Dr Ebtash touched her in this way no more than an inch from her clitoris.[972]
2. MS described the manner in which Dr Ebtash touched her as 'kind of poking with his fingers'.[973]
3. MS recalled that while he was touching in this area:[974]

[H]e was engaging in conversation. Just kind of talking. I couldn't remember what he was saying exactly as I was just unsure of what was happening at that moment. I just know that there were hands moving and they were just poking in uncomfortable places.'

1. MS thought that Dr Ebtash may also have cracked her spine and her neck at some point on the Second Occasion, but acknowledged that she was unable to recall exactly.[975]
2. While MS was being treated, HJ was present in the Treatment Room, as was Mr Maddison. She acknowledged that there was no obstruction which would have prevented them from seeing her treatment being undertaken.[976]
3. In cross-examination, MS maintained that Dr Ebtash had treated her around her midline and proximate to her pubic bone.[977] She rejected the suggestion that her evidence about that was 'either a misremembrance or a lie' or that she had adopted that version of events 'from what others said had happened to them'.[978] She emphatically stated that 'I remember it, and it did happen.'[979]
4. Dr Ebtash's evidence was that he did not give MS any treatment below her right shoulder, her 'pec minor', her mid thoracic region and her neck.[980]
5. Dr Ebtash denied that he touched MS, as she alleged, around her hip area, or on her lower groin not far from her clitoris.[981] He said 'that just did not happen. I did not go anywhere except her neck, her shoulder, her mid-back'.[982]
6. Mr Maddison's evidence was that he did not remember Dr Ebtash treating MS's lower body.[983]
7. If Mr Maddison was, regularly but intermittently, looking over to watch Dr Ebtash treat MS, then it is difficult to envisage how he would not have seen Dr Ebtash treating MS's lower body, had that occurred. Taken at its highest, therefore, Mr Maddison's evidence implied that Dr Ebtash did not treat MS's lower body at all.
8. For the reasons already discussed, and for the additional reasons set out below, we had reservations about Mr Maddison's evidence and to the extent that it was inconsistent with MS's evidence, or consistent with aspects of Dr Ebtash's evidence which we have not accepted, we have not relied on Mr Maddison's evidence. Accordingly, in so far as Mr Maddison's evidence might, at its highest, be understood as supporting Dr Ebtash's evidence that he did not treat MS's lower body at all, we are unable to accept Mr Maddison's evidence.
9. The resolution of the question whether Dr Ebtash touched MS on her mons pubis, in close proximity to her clitoris, thus came down to a contest between the evidence of MS and the evidence of Dr Ebtash. For the reasons discussed below, we found MS's evidence to be credible and reliable. We had reservations about Dr Ebtash's evidence in a number of respects, which we discuss below, and consequently, we are unable to accept Dr Ebtash's evidence to the extent that it was inconsistent with MS's evidence.
10. On this aspect of the Board's case, therefore, we accept MS's evidence and we reject Dr Ebtash's evidence. We find that Dr Ebtash used his fingers to poke MS's lower abdomen in the area of her mons pubis, in very close proximity to her clitoris.

MS's reaction to Dr Ebtash's conduct on the Second Occasion

1. MS acknowledged that she did not tell HJ what had happened as the treatment was taking place.[984]
2. She also acknowledged that she did not say anything to Dr Ebtash at the time: '[I]t was over and I just wanted to leave the room and forget it.'[985] MS further explained:[986]

I didn't want to offend him. I didn't know how to put it. I didn't know how to ask why and how to put it into words. It's difficult to say why ... do you need to touch my pelvis, or why [do] you need to touch my breast, and I didn't ... want to be disrespectful to him.

1. Dr Ebtash and Mr Maddison both gave evidence to the effect that after MS's treatment with Dr Ebtash was completed, Mr Maddison assisted MS with some exercises to strengthen her shoulder, while Dr Ebtash treated HJ.[987]
2. Mr Maddison estimated MS and HJ were in the Treatment Room for about 15 minutes altogether. His evidence was that after their treatment was finished, they all had a casual discussion, and a laugh, and then HJ and MS thanked him and Dr Ebtash because they felt better, and then they left. He did not recall MS appearing in any way unhappy or distracted, and she 'was happy with what we performed'.[988]
3. Mr Maddison's evidence was that:[989]

I did not see anything at that time and date and location [that is, on the Second Occasion at the Venue] that I perceived to be alarming or inappropriate. Neither did I see anyone of the cast or crew come across as distressed, alarmed or unhappy with anything we had performed on that day.

1. Dr Ebtash also said that after he had finished treating HJ, he had a casual conversation with HJ and MS in which they discussed travelling, family and work, and which he described as 'extremely pleasant',[990] before they left. Dr Ebtash said that he did not detect any change in MS's demeanour.[991]
2. It was, therefore, not in dispute that MS did not make any complaint to Dr Ebtash, Mr Maddison, or HJ, about what had occurred during her treatment, either as it occurred, or immediately afterwards, while they were all in the Treatment Room.

1. Dr Ebtash's evidence was that after he and Mr Maddison finished treating MS and HJ on the Second Occasion, they checked with CA whether any other cast members wanted treatment that afternoon. She advised that no one else required treatment that afternoon. They then got into Dr Ebtash's car and drove back to the Next Generation Health Club, where Mr Maddison's car was parked.[992]
2. Mr Maddison gave evidence in almost identical terms.[993]
3. Mr Maddison recalled that it was just after 4.00 pm on the Second Occasion that they left the Venue.[994]

1. As we have already noted, MS's evidence was that after the Second Occasion, 'we started to talk a little bit about what happened to each one of us'.[995] There was, however, no evidence as to the extent of MS's discussion with other members about what happened to her.
2. In her statement to the police, MS recalled that it was not until about 5 days after the Second Occasion that she first told JL that Dr Ebtash had touched her inappropriately.[996] Two days later, she met with LN, JL and MT in CA's office, and 'we all spoke about our experiences and discussed going to the [p]olice'.[997] They went to the police the next day.
3. We discuss the evidence concerning the cast members' discussions after the Second Occasion in greater detail below at [822] ­ [848].

The notes made by Dr Ebtash on the Second Occasion

1. Dr Ebtash's evidence was that he made Assessment Notes in respect of the treatment carried out on MS on the Second Occasion.
2. Having regard to the evidence as to the abbreviations used,[998] those notes stated:[999]

Informed consent obtained (treatment style, risks, benefits, length, etc)

Do you have any current or past medical condition or injury we need to be aware of

- Better in shoulder

- Discussed pec major / minor

- Discussed Adj[ustment] - Improvement - Consent (tick)

- Discussed THX [thoracic] Pain - STT vs Adj [soft tissue therapy versus adjustment] - Mobx Thx [mobilisation thoracic]

- Discussed pain post care

1. The Assessment Notes made by Dr Ebtash clearly do not reflect the entirety of the treatment given by Dr Ebtash on the Second Occasion. The Assessment Notes make no reference to Dr Ebtash massaging MS's shoulder, including by applying firm pressure to undertake trigger point therapy on her pectoralis minor muscle at the top of her chest. The Assessment Notes cannot, therefore, be viewed as a comprehensive contemporaneous record of the treatment Dr Ebtash undertook in relation to MS on the Second Occasion. Consequently, we have not placed any weight on them as supporting the evidence given by Dr Ebtash, to the extent that his evidence was inconsistent with the evidence given by MS.
2. Dr Ebtash's evidence was that he made Clinical Notes in relation to his treatment of MS shortly after the completion of the treatments he undertook for cast members on the Second Occasion. Those Clinical Notes (as explained by Dr Ebtash in his evidence[1000]) stated:[1001]

- Better with Adj[ustment] and STT [soft tissue therapy] on [First Occasion]

- CX [cervical] better

- R[ight] shoulder better - still sublux (subluxated)

- Consent - R Ant Humerous [Right Anterior Humerus Technique]

- TRPRT [trigger point therapy] CXS [cervical spine] and THX [thoracic spine] and R Humerus Mobs [right humerus bone mobilisation]

- TRPTR [trigger point therapy] to - R[ight] Pec Minor - explained the insertion and rolling of the shoulder

- Mid THX [thoracic] Mobs [Mobilisation], no clothing removed

- Married to [HJ]

- [MS said] 'Much better'

1. We have already made findings (at [405]) regarding when Dr Ebtash made the Clinical Notes in relation to LN. Those findings are equally applicable to the Clinical Notes Dr Ebtash made in relation to MS.
2. The Clinical Notes Dr Ebtash made in relation to MS give rise to the same concerns we have already expressed regarding the Clinical Notes made by Dr Ebtash in relation to the other female cast members treated on the Second Occasion. The Clinical Notes and the Assessment Notes in relation to MS were not consistent. The Clinical Notes make reference to Dr Ebtash's treatment of her shoulder with trigger point therapy, whereas the Assessment Notes make no mention of that.
3. The Clinical Notes in relation to MS (like the other Clinical Notes made by Dr Ebtash in relation to the Second Occasion) are extremely detailed as compared with the Clinical Notes in relation to KM (discussed below). It is difficult to see why such detail (which extended to noting that MS was married to HJ) would be necessary to record, in circumstances where Dr Ebtash did not expect to have any ongoing client relationship with MS, and could therefore not be expected to have to draw on that information in the future for any clinical purpose.
4. In addition, the Clinical Notes (like some of the other Clinical Notes made by Dr Ebtash in relation to the Second Occasion) referred to something that did not occur, namely 'no clothing removed'. As we have observed elsewhere, it is far from apparent why it would be necessary to make a note of specific things which did not occur, unless Dr Ebtash was concerned about the possibility that some suggestion might arise that they had occurred.
5. Furthermore, the Clinical Notes in relation to MS go so far as to purport to quote MS as saying that she was 'much better' after the treatment. Again, it is difficult to see any reason why it would be necessary to include such detail, in quotation form, unless Dr Ebtash was concerned that there might be a complaint that the cast members were dissatisfied with the treatment.
6. The inclusion of such details in the Clinical Notes made by Dr Ebtash in relation to MS is consistent with Dr Ebtash seeking to use them for a self-serving purpose, namely to be used to support his version of events, should cast members, including MS, complain about his conduct.
7. The Clinical Notes in relation to MS cannot be viewed as a completely accurate, or contemporaneous, record of what occurred in the course of MS's treatment. Furthermore, we are satisfied that the only reasonable explanation for the differences between the Assessment Notes and the Clinical Notes in relation to MS is that Dr Ebtash made the Clinical Notes in relation to MS to protect his own position in the event that the female cast members pursued complaints about his conduct. The Clinical Notes therefore cannot be relied upon as a reliable record of what occurred because their conduct may be self-serving. For these reasons, we have not given weight to the Clinical Notes as corroborating Dr Ebtash's account of his treatment of MS.
8. As we have observed in relation to the Clinical Notes concerning the other female cast members treated on the Second Occasion, our conclusions in relation to the Clinical Notes reflect very poorly on Dr Ebtash's credibility. We refer to this issue below in our consideration of the credibility of Dr Ebtash's evidence.

Was there a clinical justification for Dr Ebtash to touch MS as we have found he did on the Second Occasion?

1. Turning first to our finding that Dr Ebtash massaged MS's right pectoralis minor muscle with a fast, hard and jerky movement which caused her breast to move vigorously, Dr Crawford's opinion was that 'massaging the shoulder muscles ... may be an appropriate treatment for some shoulder problems'.[1002] We are not satisfied that the expert evidence established sufficiently clearly that there was no clinical justification for this aspect of Dr Ebtash's treatment.
2. Turning next to our finding that Dr Ebtash poked and prodded MS's right breast quickly and firmly, with both index fingers, just around the nipple, the expert witnesses differed in their views as to whether it could ever be clinically justified for a chiropractor to touch a patient's breast. Dr Innes' view was that 'it is never appropriate for a chiropractor to touch a female patient's breast while performing a chiropractic treatment. There are no situations when a chiropractor is required to apply an intervention to the breast tissue'.[1003]
3. Dr Crawford did not agree that it was never appropriate for a chiropractor to touch a patient's breast while performing a chiropractic treatment.[1004] His evidence was that 'with regard to the anatomy of the breast and pectoralis major and minor muscles, in order to both assess and apply standard myofascial treatment to these muscles requires palpation or touching of overlying breast tissue'.[1005] However, in the present case, Dr Crawford's evidence was that he was unable to determine if Dr Ebtash's conduct actually:[1006]

[R]elated to clinical examination or palpation of the pectoralis minor muscle or not. In the absence of a clinical diagnosis derived from appropriate clinical assessment, a plan of management and gaining informed consent from the patient (to examine [or] treat), I am unable to state that touching the patient in the manner alleged was clinically justified.

1. As Dr Ebtash denied touching MS as we have found, the result was that nothing in his evidence suggested that there was a clinical justification for his conduct. In the absence of any evidence to suggest that Dr Ebtash touched MS's breast near her nipple for the purpose of examining her or treating her in some way, the expert evidence to which we have referred supports the conclusion that there was no clinical justification for his conduct, and we make that finding.
2. Turning finally to our finding that Dr Ebtash used his fingers to poke MS's lower abdomen in the area of her mons pubis, in very close proximity to her clitoris, Dr Crawford's evidence was that there was no clinical justification for Dr Ebtash to touch MS in this way.[1007] Dr Crawford's opinion was that the treatment provided to MS was not clinically appropriate, given the absence of a diagnosis, and because the treatment did not appear to have been standard treatment, and was not in keeping with previous physical treatment she had had.[1008]
3. As Dr Ebtash denied touching MS in the area of her mons pubis, in close proximity to her clitoris, the result was that nothing in his evidence suggested that there was a clinical justification for his conduct.
4. Given that MS did not report any injury or soreness which might have suggested palpation of her lower abdomen was clinically justified, and having regard to Dr Crawford's evidence, we are satisfied that there was no clinical justification for Dr Ebtash's conduct, and we so find.

1. MS's evidence was that Dr Ebtash asked for permission to massage her pectoral muscle. Neither MS nor Dr Ebtash gave evidence as to the detail or content of that consent. However, given her evidence that she consented to the massage of her pectoral muscle, we are unable to exclude the possibility that the consent she gave was an adequate permission to Dr Ebtash to massage her pectoralis minor muscle in the manner that he did, albeit that the consequence of that massage was that it caused her breast to move vigorously.
2. Turning to the balance of Dr Ebtash's conduct, Dr Crawford's opinion was that the intimate nature of contact on, or around, the breasts, or near the female genitalia, meant that the grant of consent by the patient for examination or treatment of those areas was absolutely essential, and the context and content of the discussion and any consent to proceed with treatment involving such touching required detailed documentation in the clinical records.[1009] In Dr Crawford's opinion, Dr Ebtash did not obtain a properly informed consent to touch MS as she had alleged.[1010]
3. There was no evidence that MS had consented to Dr Ebtash poking and prodding her right breast, near her nipple, or to his palpating her lower abdomen near her mons pubis, in close proximity to her clitoris. Given that Dr Ebtash denied this conduct, his evidence did not suggest any consent to that conduct, or to any treatment which might have incorporated that conduct.
4. Having regard to the totality of the evidence, the compelling inference is that MS did not give any consent to Dr Ebtash touching her right breast, near her nipple, or to touching her lower abdomen near her mons pubis, in close proximity to her clitoris. We find that no such consent was given.

(iv) Our findings as to the credibility and reliability of MS and Mr Maddison

1. MS presented as a confident witness. In giving her evidence, she clearly tried to carefully convey her actual recollection of events, for example when she described seeing Dr Ebtash assessing the alignment of JL's buttocks, and made clear that she did not see what Dr Ebtash did immediately before, or immediately after, that.[1011] There was nothing in her evidence which gave any basis for thinking that she sought to embellish or exaggerate her evidence. There was no basis for suspecting any unvirtuous motivation in her pursuit of her complaint. When challenged about her recollection in the course of cross-examination, she remained firm in her conviction that Dr Ebtash had touched her in the manner she had described in her evidence.
2. MS remained composed throughout her evidence in chief. In the course of cross-examination, she became a little affected by emotion, which was not surprising given that cross-examination, particularly about such intimate material as was involved in this case, can be a stressful experience, but MS quickly regained her composure.
3. However, there were several matters that caused us to consider, very carefully, whether MS's evidence should be accepted as both credible and reliable.
4. First, MS clearly did not recall the entirety of the events of the First Occasion or Second Occasion with complete clarity. She quite openly admitted that she did not recall some matters very well, for example, the details of the anterior humerus treatment undertaken by Dr Ebtash, which led to her buttocks being pressed against his groin. The likely explanation is that because MS was focused on the fact that Dr Ebtash's body made contact with hers, in circumstances where she clearly was not expecting that to occur, MS failed to take note of the details of the treatment Dr Ebtash was undertaking at that precise moment. Similarly, MS frankly acknowledged that she was not entirely certain about whether aspects of the treatment were undertaken on the First Occasion, as opposed to the Second Occasion.[1012] That was not surprising given the passage of time, and the fact that her shoulder was treated on both occasions, and in similar ways. Furthermore, as we discussed at [699] ­ [703], there were some differences between MS's evidence as to what occurred when she and HJ saw SN in the stairwell immediately prior to her treatment. We regarded those differences as very minor in nature, and not such as to undermine our confidence as to the clarity of her recollection that SN warned them to be careful in their treatment with Dr Ebtash.
5. Secondly, we have taken into account the fact that MS did not make any complaint about Dr Ebtash's conduct at the time when it took place. That was a particularly significant matter of concern, given that MS's husband, HJ, was nearby, throughout MS's treatment on each occasion. However, it was plain from MS's explanation (discussed at [759] ­ [760]) that while she felt uncomfortable about what Dr Ebtash had done, she felt reluctant to speak out to question his treatment, and she said herself that she did not wish to be disrespectful. As we earlier observed, in the course of our discussion of the credibility of JL's evidence, in a medical or allied health setting, where patients do not have the knowledge or training to assess for themselves whether their treatment is appropriate, not all patients will have the confidence to challenge the treatment given to them at the time. The circumstances in which Dr Ebtash's conduct occurred, namely in the course of treatment which otherwise appeared to be clinically motivated, and the brief duration of the touching clearly made it harder for MS to immediately assess whether his conduct was inappropriate and to respond. We accept the submission of counsel for the Board that the way in which Dr Ebtash touched MS reflected 'the ambiguous nature of Dr Ebtash's approach - never quite overt, concealed under potentially legitimate treatment, and [which] left women questioning themselves, not wanting to speak up and perhaps be made to look silly'.[1013]
6. Counsel for Dr Ebtash submitted that in so far as MS claimed that Dr Ebtash's conduct on the First Occasion had made her uncomfortable, the real reason for her discomfort was the fact that other people in the room (namely GR) made remarks that made her feel that way, rather than that the treatment itself made her feel uncomfortable.[1014] He submitted that that was 'an illustration of the way in which an experience can be experienced and later, unconsciously, you can feel embarrassment, humiliation in the context of other things you're told and other information you receive'.[1015]
7. There are, with respect, three answers to this submission. First, it was apparent from MS's evidence that the reaction of GR was an additional reason for her feeling uncomfortable, but it was not the only reason. She felt uncomfortable because she had not had such close contact with any man apart from her husband. Secondly, even if MS felt uncomfortable only because of GR's reaction to Dr Ebtash's conduct, that does not cast doubt on the veracity of her evidence that Dr Ebtash pulled her body into his so that her back and buttocks touched the front of his chest and his groin. The fact that a person might, on reflection, feel embarrassed about a particular incident for one reason or another does not necessitate the conclusion that their memory of the incident was inaccurate. Thirdly, the fact that GR made remarks to HJ about the inappropriate contact Dr Ebtash's body had made with MS's body, serves to confirm that it was not merely MS who regarded such intimate contact as inappropriate.
8. Thirdly, we have taken into account the fact that MS went to see Dr Ebtash a second time, notwithstanding that she felt his conduct on the First Occasion was inappropriate. However, that decision must be considered in the context of the ambiguity and uncertainty with which MS regarded Dr Ebtash's conduct on the First Occasion. In addition, it was apparent from her evidence that MS's view was that she would be 'safe' because of HJ's presence during the treatment.
9. Fourthly, we have considered the implications for the reliability of MS's evidence of the fact that she had some discussions with other cast members before and after being treated by Dr Ebtash. We have considered the 'contamination' submission advanced by counsel for Dr Ebtash in further detail below. For present purposes, it suffices to say that in so far as MS is concerned, she had not had any discussions with any other cast member about Dr Ebtash's conduct prior to her treatment on the First Occasion. There is no basis for thinking that she went to that treatment session with any preconceptions about what to expect. Further, before her treatment on the Second Occasion, MS had had a brief exchange with JL about her treatment, and she had seen SN on the stairwell who had warned her and HJ, somewhat ambiguously, to 'beware' during the treatment, but had not provided any information about what to be wary of. We do not see any basis on which such brief discussions might somehow have influenced MS's perceptions of Dr Ebtash's conduct to such an extent as to cause her to imagine that he had engaged in conduct which did not occur.
10. As for the discussions between the cast members afterwards, we are not persuaded that there is any basis for thinking that those discussions, consciously or subconsciously, affected MS's recollection of what in fact occurred on either the First Occasion or Second Occasion. Had there been some sort of subconscious contamination of MS's evidence, we might have expected that to be reflected in greater similarity between MS's evidence as to what occurred, and the accounts given by the other cast members. Yet there were very significant differences in the inappropriate touching of which MS complained, as compared with the experiences of the other female cast members. Her allegation that Dr Ebtash pulled her body into his, so that her buttocks came into contact with his groin, bears no resemblance to the accounts of the other female cast members. Further, in so far as MS's evidence that Dr Ebtash massaged her pectoral muscles so vigorously as to make her breasts move a lot, we accept the submission by counsel for the Board that that was not the kind of evidence that a person would lie about or make up, nor was it the kind of evidence that would readily be accepted as something that would result from some kind of subconscious influence as a result of being told something by someone else.[1016]
11. Finally, we have considered the reliability of MS's evidence in light of the environment in which Dr Ebtash's conduct took place. If MS's evidence is to be believed, Dr Ebtash touched her inappropriately in full view of her husband and GR, on the First Occasion, and in full view of her husband and Mr Maddison on the Second Occasion. Furthermore, on the Second Occasion, Dr Ebtash had brought Mr Maddison with him to observe his treatment as a learning experience. We accept that for the inappropriate touching of which MS complains to have occurred in those circumstances would necessarily have involved a brazen confidence on Dr Ebtash's part. However, there was nothing in the circumstances to suggest that the conduct could not possibly have occurred in that way.
12. Having taken all of these considerations into account, we are satisfied that MS's evidence was both credible and reliable. We accept her evidence.

The credibility and reliability of Mr Maddison's evidence

1. As we have already observed, in the course of our discussion of Mr Maddison's evidence, we set out our findings as to the credibility and reliability of his evidence. Those findings apply equally in our assessment of Mr Maddison's evidence as it pertained to MS's treatment.
2. In the course of Mr Maddison's evidence in relation to MS, there were two further examples of the matters of concern about his evidence to which we have already referred, and which provide further confirmation of the findings we have already made.
3. First, in the course of his evidence in chief, Mr Maddison sought to convey the impression that he was watching Dr Ebtash treat MS for the duration of her treatment, but in cross-examination he accepted that he did not actually see every aspect of her treatment. That was a further example of Mr Maddison's willingness to exaggerate his evidence, or to put a gloss on it, in order to assist Dr Ebtash's case, and which caused us to doubt the accuracy of his evidence overall.
4. Secondly, the manner in which Mr Maddison gave his evidence in relation to MS's allegations gave the impression that he was giving evidence from memory based on a formal written statement. For example, when asked how he could see Dr Ebtash treating MS whilst also treating HJ at the same time, Mr Maddison maintained that he was able 'to look backwards and forwards in a timely fashion seeing what Dr Ebtash was doing'.[1017] His reference to 'timely fashion' was an odd turn of phrase. It was reminiscent of the kind of formal language that might be used by a lawyer in drafting a legal document.
5. For these reasons, in addition to those findings we have already made in relation to the credibility and reliability of Mr Maddison's evidence, we approached Mr Maddison's evidence with considerable caution. To the extent that his evidence was consistent with other uncontentious evidence, or with the evidence of MS, we have relied on it. To the extent that Mr Maddison's evidence was contrary to the evidence given by MS, or consistent only with the evidence by Dr Ebtash, we do not rely on Mr Maddison's evidence.

1. We discuss the credibility and reliability of Dr Ebtash's evidence below. For the reasons there set out, we doubt the credibility of his evidence and for that reason, in so far as his evidence was inconsistent with the evidence given by MS, we prefer MS's evidence.

(f) Discussion between the cast members about Dr Ebtash's conduct

1. As we have already noted, there was some evidence that the female members of the cast had discussed their experiences in being treated by Dr Ebtash. It is convenient to assess the evidence at various stages: after the First Occasion but before the female cast members were treated on the Second Occasion; after the Second Occasion, prior to making complaints to the police; and in advance of the hearing.

(i) Evidence as to whether the female cast members discussed their treatment after the First Occasion but prior to the Second Occasion

1. Having regard to the evidence set out earlier in these reasons at [203] ­ [211], we find that on the First Occasion, immediately after her treatment, JL told GR, MS and HJ, and MT, that Dr Ebtash had touched her inappropriately in the course of her treatment. JL gave a detailed description to MT of how Dr Ebtash had inappropriately touched her.
2. MT said she did not recall speaking with anyone else about JL's treatment.[1018] She accepted it may have been the case that she had discussed JL's treatment with others,[1019] but there was no evidence to suggest that she had, in fact, done so. There was also no evidence to support a finding that GR, MS or HJ or MT had told any other person what they had heard from JL, prior to the Second Occasion. There is no basis for a finding that GR, MS, HJ and MT told any other cast members, including LN and SN, about JL's treatment, prior to the Second Occasion.
3. There was also no evidence to suggest that JL told any other cast members, particularly LN and SN, prior to them receiving treatment from Dr Ebtash on the Second Occasion, that Dr Ebtash had touched her inappropriately.
4. There was some evidence to suggest that prior to the Second Occasion, JL told CA that Dr Ebtash had touched her inappropriately. However, there was no evidence to suggest that CA told any of the other cast members. On the contrary, the evidence supports the conclusion that, prior to the treatments on the Second Occasion, CA did not tell the other cast members that JL had reported that Dr Ebtash touched her inappropriately. SN recounted that after LN had reported what had happened to her, he remembered talking to JL and being told by JL told that:[1020]

[S]he felt like [Dr Ebtash] had touched her inappropriately and then she told [CA] the stage manager, about it prior to the treatments having been done. ... And she told me that she had gone to [CA] and said, like, ... it seems like he had touched her in a way that she didn't feel comfortable and ... I remember sort of being a little astonished that even though [CA] had been given that information, the treatments still went ahead'.

1. We find that, prior to the Second Occasion, CA did not tell the other cast members that JL had reported that Dr Ebtash touched her inappropriately.
2. Having regard to all of the evidence, we are satisfied, and we find, that of the female cast members who were treated by Dr Ebtash on the Second Occasion, LN was not aware that JL had reported that Dr Ebtash had touched her inappropriately. MS had been told by JL that Dr Ebtash had touched her inappropriately. MT had also been told by JL that Dr Ebtash had touched her inappropriately, and JL had graphically described to her how he touched her on her genitals (over her clothing).
3. There was, therefore, no basis on which LN's perception of what occurred in the course of her treatment on the Second Occasion might have been affected by an expectation of what might occur, having regard to JL's treatment.
4. LN's evidence was that after her treatment on the Second Occasion, and before the other cast members' treatments, the only cast member whom she told that Dr Ebtash had touched her inappropriately was SN.[1021] However, as we have already observed, prior to seeing Dr Ebtash on the Second Occasion, SN had conveyed to MS that something had occurred in the course of LN's treatment, and that she should be careful.

(ii) Evidence as to whether the female cast members discussed their treatment after the Second Occasion, prior to making complaints to the police

1. LN said that on the evening of the Second Occasion, before the performance, she and SN went to see CA in her office, and LN told CA what had happened. LN's evidence was:[1022]

I was really embarrassed and I - I didn't want to share what had happened. ... I was really embarrassed that I didn't sit up or do anything right away after I had been touched and - deal with the situation.

[F]elt very uncomfortable because I didn't want to perform that evening because I was just emotionally not stable. And so we had a long conversation and I told her what happened.

1. She said she told CA that Dr Ebtash:[1024]

[H]ad touched me on the vagina and had massaged my breasts and it was very uncomfortable and unprofessional and I just explained the events of what happened. ... I remember I was crying a lot and I was upset.

1. As we have already observed, LN's complaint to CA, very shortly after her treatment on the Second Occasion, is a very significant factor in support of the credibility of her evidence.
2. Further, ss we have already mentioned, MS recalled that when she saw LN late in the afternoon of the Second Occasion, LN began crying when asked how she was.[1025]
3. As we have already mentioned, LN went to CA before the Show was due to start on the evening of the Second Occasion, and told her that Dr Ebtash had touched her inappropriately. CA then told the female cast members in private that something had happened that had shaken LN. MS's recollection was that CA had warned them all about LN 'being in a fragile state, to just be very careful and considerate of her feelings, and we agreed'.[1026]
4. MT's evidence was that at that stage, they didn't know what had happened, but that 'afterwards we figured out that it was because of the treatment with Dr Soroush and that something happened that made her completely fall apart. And it was quite disturbing.'[1027] MT said that after her treatment, she discussed what had happened with the other cast members, 'maybe an hour later. We were preparing for a show, and I was discussing it with other girls in the cast who had treatment with him, and everybody was a bit weirded-out and shaken.'[1028]
5. The evidence to which we have referred established that by the evening on the Second Occasion, and after Dr Ebtash had finished his treatment of the cast members, the female cast members had begun to hear that some of them had been touched inappropriately by Dr Ebtash in the course of their treatment.
6. A week after CA first learned of the female cast members' allegations about Dr Ebtash's conduct (and eight days after the Second Occasion on which treatment was performed by him) the female cast members went to the police to report Dr Ebtash's conduct. The four female cast members, and CA, went together to do so.[1029] Each of the four female cast members gave a statement to the police, and signed it.[1030]
7. In the course of the intervening week between CA's conversation with LN, and the cast members' visit to the police, CA spoke to the female cast members individually, and spoke to them in groups also. She agreed that there was no attempt to 'quarantine' the information they provided, and that the individuals involved, and the female cast members as a group, were able to freely communicate about those matters.[1031] There was also evidence that the female cast members had discussed amongst themselves what Dr Ebtash had done to them, in the days following the Second Occasion.
8. LN said that she talked to the other cast members the day after the Second Occasion, and asked 'if this had happened to anybody else'.[1032]
9. LN also said that after the Second Occasion, she had described to the other cast members what had occurred, and that 'they definitely - the girls all definitely knew about it. Yes. 100 per cent ... [MT] and [MS] and [JL]'.[1033] She accepted that she had described to them on more than one occasion what Dr Ebtash had done to her.[1034]
10. However, the evidence varied as to the extent to which the female cast members had discussed, in detail, what had occurred. That is hardly surprising, because their views on whether or not their discussions were detailed involved a subjective assessment of their recollections of those discussions. LN said:[1035]

I can't remember in detail. ... I can't recall speaking to the girls in detail about what happened. I think I had told them that what had happened to me was inappropriate and that I've been touched on my vagina. ... And I don't ... remember describing it in detail to - I know they know but not in detail as I did to [SN] and [CA].

1. LN agreed that there was subsequently a meeting with the female cast members, 'and we talked about ... I didn't go into detail but I remember saying what inappropriately happened to me',[1036] and later they all went to the police station together, along with CA.[1037]
2. In cross-examination, LN agreed that the female cast members had described to her what Dr Ebtash did to them in some detail.[1038] It was not clear whether she meant that each of MT, MS and JL had disclosed, in detail, what they said had occurred. LN strongly rejected the suggestion that the female cast members had 'workshopped' the information.[1039]
3. JL denied having discussed with the other female cast members what had happened to her in great detail.[1040] JL claimed that 'no one has told me what has happened at all - I don't know anything about the other girls'.[1041]
4. JL acknowledged that the female cast members had had a meeting and discussed what occurred, but denied that they had described in detail what had happened. Her evidence was that 'we talked about going to the police station and that he had touched us, but we did not go into details about what had happened'.[1042] She explained that 'we did not discuss what had happened [because] no one wanted to talk about it'.[1043] When pressed that to accept that at that meeting, there were detailed descriptions given by the female cast members as to what they said Dr Ebtash had done, JL was adamant:[1044]

I 100 per cent disagree with that. I do not know about [LN] at all. I do not know about [MT] and I do not know about [MS].

1. MT said she discussed what had happened with MS, JL, LN, SN and HJ.[1045] MT confirmed that by the time she gave her statement to the police, the other female cast members - JL, LN and MS - had described to her what had happened to them. She agreed JL had described in some detail what had happened to her, which is consistent with the fact that on the First Occasion, JL told her, in detail, how Dr Ebtash had touched her. However, MT said that neither LN nor MS had told her what had happened in great detail because they were quite shaken by what had happened. She said that 'they just said general things'.[1046]
2. MS's evidence was that 'after that day [that is, after the Second Occasion] we started to talk a little bit about what happened to each one of us.'[1047]
3. There is no doubt that the female cast members met on one occasion to discuss what they said had happened to them, and what they should do about it. The evidence of LN and JL supports the conclusion that there was a meeting of the female cast members, together with CA.
4. Having regard to all of the evidence, we find that there was one meeting involving all of the female cast members at which they discussed the fact that Dr Ebtash touched each of them inappropriately, and what they should do about that. We also find that it is more likely than not that there were informal discussions between some of them, or between some of them and CA, about Dr Ebtash's conduct. That is not surprising. Such discussions would be a natural occurrence given the small group of cast members in the Show, who worked closely with each other. However, there was no evidence about particular discussions, and there is no basis for a finding as to when, or how many, discussions may have occurred, or which cast members were involved.
5. There was no evidence to support the conclusion that the female cast members had colluded in relation to the content of the statements they gave to the police.
6. A revealing insight into the effect of these discussions between the female cast members emerged from MT's evidence. Her evidence was that those discussions with the other female cast members caused her to reflect on what had occurred, and confirmed for her that what she felt during the course of the treatment - namely, that the way that Dr Ebtash had touched her was not part of any legitimate treatment - was not misplaced or mistaken:[1048]

It was - I mean, to be honest, in [our Show] you touch every part of the body and you're really comfortable physically to be touched and on every part and so - and also when you get treated in osteo and physio sometimes they do touch you in places where, like, [a] normal person wouldn't ... - touch without permission, but you trust them. And so there was a part of me that that during the treatment with Dr Soroush was saying 'I just want to - I just want to trust and - and see what happens if I just completely trust', because this is what I'm kind of conditioned mentally to do. And then later on after analysing it, I realised it wasn't exactly right. It was peculiar and it was strange, but also having heard experiences of the other girls, I think my experience wasn't as bad. Like, I wasn't touched in those inappropriate ways as much as they were.

1. We regarded MT's evidence in this respect as entirely credible, and we accept it.

(iii) Evidence as to whether the female cast members discussed their treatment in advance of the hearing

1. JL acknowledged that at the time of giving her evidence, she was appearing in another show with LN, MS, HJ, SN and GR, but denied having discussed this case with them. She admitted she knew that other cast members such as LN and SN had given evidence, but said she knew that only because 'we had to take time off work' to give evidence.[1049]
2. However, LN's evidence was that while she spent a great deal of time with her fellow cast members at work, she had not, either before or after going to the police, discussed with them a 'great deal' what had occurred.[1050]
3. There was nothing in the evidence given by the female cast members to suggest that they had discussed their evidence in advance of the hearing so as to cast any doubt upon the truthfulness of the evidence they gave as to their recollection of what had occurred to them.

(g) Dr Ebtash's response to concerns expressed on behalf of the cast members about his inappropriate conduct

1. On the day after the Second Occasion, after having been told by the female cast members about Dr Ebtash's conduct, CA sent an email to Dr Ebtash. That email was in the following terms:[1051]

Thank you for coming to meet our company on [the First Occasion] and providing some treatment to six of them on [the Second Occasion].

Unfortunately I have received feedback and complaints ... regarding various levels of discomfort and inappropriate practices during this time. Almost all of our female company members approached me feeling unhappy throughout the treatment they received from you and some of the men echoed these sentiments. For this reason I will have to terminate our agreement here.

I believe that you have a massage table at the venue still and will need to collect it at some point. Although we had agreed that we would continue the sessions on Saturday, this is no longer appropriate... .

1. CA's evidence was that her reference in that email to 'discomfort and inappropriate practices' was a reference to the cast members' experiences:[1052]

So they felt that they were emotionally - I suppose uncomfortable. Discomfort is probably the wrong word. And inappropriate, because they felt like they had been touched in way they shouldn't have been touched, which was unprofessional and therefore inappropriate.

1. Given the nature of the allegations made by the female cast members about Dr Ebtash's conduct, it is far from clear why CA felt it necessary to refer to that conduct in such euphemistic terms. Her explanation was that she was not sure how she could communicate the allegations 'in a way that didn't provoke any sort of argument or reaction'[1053] and that she assumed that he would know what she was talking about, so that there was no need for her to go into details.[1054]
2. Dr Ebtash responded to CA's email later on the same day. He said:[1055]

That is so unfortunate and I cannot express enough my deepest apologies. If I have caused the female crew or other members of the cast some discomfort or pain ...

... I hope you can appreciate that the cast's health status is not in the top form that they hope to be and sometimes making changes to their condition can create temporary discomfort but I can assure these are very short term.

I had asked ... one of my[female] remedial massage therapist[s] to join me on Saturday as some of the female members have issues around their chest and groin which I felt would be better served by a female practitioner. Having [her] there would have also helped with the amount of soft tissue tension they carry. ...

1. Dr Ebtash claimed that he did not understand CA's emails to be suggesting that he had touched any of the cast members in a sexually inappropriate manner.[1056] Rather, his evidence was that when he read CA's email, he was worried that the cast members were in pain after their treatment, and that that might affect their performance. He said that that was why he apologised - that is, in the event that his treatment had actually caused the cast members any form of pain or discomfort.[1057]
2. Dr Ebtash denied that in fact he only responded to CA's reference to 'discomfort'. He said:[1058]

[T]here were three things that came to my mind when I received that first email. So I thought ... I thought of [SN] and his acupuncture. ... I thought of [MT] given the fact that she had chest issues and the fact that I had told her not to take her jacket off. And I thought of ... [HJ] being a little bit wary about seeing a chiropractor and having his elbow adjusted.

1. CA responded to that email the following day, by a further email in the following terms:[1059]

I accept your apology on behalf of my company, however I will continue to state that the contract between us has come to an end.

My first email stated inappropriate and unprofessional behaviour on your part and I must stress that this includes inability to follow professional protocols and procedures.

It is my duty to protect my company and I will state one last time that a professional relationship between yourself and any member of the company is now inappropriate.

1. Dr Ebtash sent CA an email in the following terms later that day:[1060]

I had no intention to follow up with any members of the cast following your first email ... as per my previous email, I was happy to provide care with pure intentions and from the goodness of my heart ... I apologise if the treatments, protocols or procedures were deemed inappropriate. I cannot say that I am not puzzled by all this but I am happy to put this matter to rest and not dwell on it.

1. Counsel for Dr Ebtash submitted that none of the emails from CA stated the nature of the allegations formally, and that 'there are [no] specifics at all in the allegations, such as we now know them to be.'[1061] We understood that to amount to a submission that nothing could be drawn from Dr Ebtash's apologies in his response to CA's emails, because those apologies were not linked to specifically particularised conduct. We accept that submission.
2. However, that is not the only relevance of Dr Ebtash's responses. In view of the very serious tone of the emails from CA, and her reference to the termination of the professional relationship between Dr Ebtash and the members of the Show, together with her use of terminology such as 'inappropriate practices' and 'unprofessional behaviour,' it is quite extraordinary that Dr Ebtash did not seek any clarification of what 'inappropriate practices' had been alleged, or even to assert that at all times all appropriate protocols were followed. It is difficult to envisage any reasonable explanation for his failure to do so, other than that Dr Ebtash well knew what were the inappropriate practices in question.
3. Dr Ebtash sought to explain his response to CA's first email on the basis that he sent that response in the early evening, which was the busiest time of day in his practice, and that having seen CA's email, he 'was shocked. I kind of carried on seeing a couple more patients, and then this was just a very quick answer that I provided without actually digesting the information to try to address every single word, every single meaning in that message'.[1062] Even accepting that to be true, it is difficult to envisage that a practitioner concerned about his or her professional reputation would not reflect further on the matter, and send a follow up email later in the evening.
4. Furthermore, Dr Ebtash's claim, in his second email, that he was 'happy to provide care with pure intentions' is strikingly incongruous with his claim to having understood CA's reference to 'inappropriate practices' as referring only to his having caused physical pain or discomfort to the cast members as a result of the treatment.
5. In our view, Dr Ebtash's responses to these emails are the sort of response that might be expected from a practitioner who understood the nature of the 'inappropriate practices' referred to, and who was content to see if an apology, and no further enquiries about the allegations on his part, might see the matter dropped.
6. Finally, we have discussed the content of the Clinical Notes in relation to LN, MT and MS, and the timing of Dr Ebtash's preparation of those. The self-serving content of those Clinical Notes is entirely consistent with those Clinical Notes having been prepared by Dr Ebtash after his email exchange with CA, and with a view to supporting his version of events, in case any of the female cast members pursued their complaints. In that respect, counsel for Dr Ebtash submitted that 'looked at carefully the content of the relevant emails is vague and general and so anodyne that it could not reasonably be inferred that it led to [Dr Ebtash] creating clinical notes to cover his tracks'.[1063] We are unable to accept that submission. For the reasons we have given, the nature and content of Dr Ebtash's responses to CA's reference to his 'inappropriate practices' permit the inference that he well knew that that term referred to his inappropriate touching of the female cast members on the First Occasion and the Second Occasion. We find that it is more likely than not that the Clinical Notes were made after Dr Ebtash received the email from CA, and that those Clinical Notes were prepared to support Dr Ebtash's version of events, if the cast members took the matter further.

(h) Alleged conduct in relation to KM (ground 1 of the Application)

(i) The Board's allegations and Dr Ebtash's response

1. The Board alleges that in a consultation with KM which took place almost a year before the First Occasion at the Wellness Place in Bassendean, Dr Ebtash engaged in conduct which was either inappropriate conduct of a sexual nature, or clinically inappropriate and below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.[1064]
2. The conduct alleged[1065] was that in purporting to treat KM for vertigo, Dr Ebtash:

(a) Stood at KM's head, and placed his hands on both of her shoulders;

(b) Moved his hands over the top of KM's breasts in the direction of her stomach; and

(c) Moved his hands from KM's stomach back towards her shoulders, and in doing so, again moved his hands across her breasts.

1. Dr Ebtash admits that he engaged in professional consultations with KM over the period of October to November 2015,[1066] but otherwise denies each of these allegations, and says that the nature of the treatment alleged was neither offered nor provided.[1067]
2. The Board alleges[1068] that Dr Ebtash failed to properly inform KM, before commencing treatment, of the nature of the treatment and failed to give her adequate opportunity to question or refuse that treatment, because:

(a) He did not advise KM that he intended to or might touch her breasts and stomach during the treatment;

(b) He did not ask KM for permission to touch her breasts and stomach before doing so; and

(c) He did not explain to KM why he intended to or might touch her breasts and stomach before doing so.

1. Dr Ebtash denies each of these allegations concerning informed consent, on the basis that the treatment alleged was neither offered nor provided.[1069]
2. The Board alleges that there was no proper clinical justification for Dr Ebtash to touch Ms KM's breasts at that consultation, and it was inappropriate for him to have touched her breasts and stomach at that consultation.[1070]
3. Dr Ebtash denies each of these allegations, on the basis that the treatment alleged was neither offered nor provided.[1071]

1. KM is a mature woman who has been a police officer for over 15 years.[1072] She is married with adult daughters, and is a grandmother.[1073]
2. Shortly before the events in question, KM developed a medical condition in which she suffered from severe and constant vertigo, which caused her to suffer severe dizziness, and associated nausea and vomiting,[1074] and had a debilitating effect on her life.[1075] Despite the vertigo, KM continued to work,[1076] but at times the vertigo was so bad that it was necessary for her to take leave from her work.[1077] KM suffered from the condition for about two and a half years.[1078]
3. Initially, KM received treatment for the vertigo from her general practitioner, who carried out a procedure called the Epley manoeuvre, which it was hoped would regularise the balance in her ear. The Epley manoeuvre involved KM sitting on a bed and being pushed backwards, then laying with her head leaning on one side, and then rolling to the other side.[1079] Immediately after the Epley manoeuvre was performed, KM would suffer very severe dizziness and nausea, although that would eventually subside.[1080]
4. KM's doctor suggested that she try the Epley manoeuvre at home, but she had difficulty undertaking it herself because of the dizziness she experienced, so she sought the assistance of her chiropractor, Dr Laurie, at the Wellness Clinic. By this point, KM had been attending the Wellness Clinic for about eight years for chiropractic adjustment of her spine,[1081] and had been seeing Dr Laurie for over two years.[1082]
5. KM asked Dr Laurie whether he could perform the Epley manoeuvre, but he did not have much experience in doing so, and so recommended that one of his colleagues treat KM.[1083] That colleague was Dr Ebtash. (It was not unusual for Dr Ebtash to assist other chiropractors at the Wellness Placed in their treatment of patients.[1084]) Dr Laurie asked Dr Ebtash to join him and KM in Dr Laurie's consulting room to discuss the treatment, and on that occasion, to also assist him with adjusting KM's neck.[1085]
6. Dr Ebtash told KM that he had often performed the Epley manoeuvre to treat vertigo and that he was confident that it would cure the vertigo from which she was suffering.[1086] Dr Ebtash agreed to see KM for the purpose of treating her vertigo, and on the basis that she would then be referred back to Dr Laurie.[1087]
7. In evidence was a copy of handwritten Clinical Notes made by Dr Ebtash in relation to his treatment of KM.[1088] There was no dispute that those Clinical Notes were made at about the time of Dr Ebtash's treatment of KM. A typed version of those Clinical Notes, which was drawn from Dr Ebtash's data base of patient records, was also in evidence.[1089]
8. The Clinical Notes indicate:[1090]

Epleys, discussed manouver [sic], dizzy afterwards, was better after trx last time

Better, epy's, R, C12, felt unwell after trx, rested, comforted pt, asked to focus on breathing

Impoprving [sic] but still has dizzy spells, epls manouver [sic], C12, feeling a bit dizzy still after trx

Better, eply's [sic], R, C1 asr, better, felt a bit nauseous after trx, rested

Muhcbetter [sic], C123, stretch cxs, felt unwell, near all off the table while doing eply's [sic], rested on the table, comforted pt and asked to focus on breathing

1. KM made an appointment to return to see Dr Ebtash so he could undertake the Epley manoeuvre. That first appointment was two days after she saw Dr Ebtash in the course of her consultation with Dr Laurie.[1091] KM recalled the date because it was her husband's birthday.[1092]
2. KM said that Dr Ebtash began by explaining the Epley manoeuvre, which was the same procedure as her doctor had undertaken, and then undertook that procedure. She described it as follows:[1093]

So I sat on the table with my feet in front of me. He would throw me back quite quickly so that my head would just lean over the end of the table. Then I would move my head either left or right - I think we did both sides ... And then I would stay in that position for a period of time. Then he came back over to me, rolled me over to either my left or my right side with my head still up in the air. I would stay in that position for a period of time, and then I moved back onto my back, where I would rest until the dizziness subsided and I was able to sit up.

1. The Clinical Notes confirm that KM saw Dr Ebtash on eight occasions for treatment for her vertigo.[1094] She saw him alone on each of those occasions. On some occasions Dr Ebtash also performed a chiropractic adjustment of her neck and back as well as the Epley manoeuvre.[1095]
2. KM's evidence was that during one of the treatment sessions she had with Dr Ebtash, the following incident occurred (KM Incident):[1096]

One incident where the manoeuvre had been completed, and I was laying on my back, and during these times, the dizziness and nausea was quite severe, so I would lay there, my eyes closed, trying to stop my head from spinning, and Dr Ebtash was standing at my head and moved his hands down the top of my breasts and then back up towards my shoulders and then down each side of my arm.

1. KM confirmed that when the KM Incident occurred, she was lying on her back on the treatment table, her arms at her sides, and Dr Ebtash was standing behind her head.[1097] She said that Dr Ebtash placed his hands:[1098]

[O]n the top of my shoulders here and moved his hands over [the] top of my breasts and then down towards - and rubbed his hands down the side of my arms.

1. As she gave this evidence, KM pointed with her hands to the tops of her shoulders, then moved her hands in a downward motion with her fingertips pointing downwards, over her breasts and then back up over her breasts, to the top of her shoulders, and then down the sides of her arms in 'almost like a continual movement'.[1099]
2. KM acknowledged that when the KM Incident occurred, she was lying with her eyes shut, and was suffering pronounced dizziness and nausea.[1100] She did not see what Dr Ebtash was doing, but merely felt his hands on her body.[1101]
3. KM denied that the nausea and dizziness affected her ability to know whether she had been touched, and explained that that was because she 'dealt with that dizziness and nausea every moment of the day'.[1102] She said that the dizziness and nausea at the time of the KM Incident was no worse than at any other time when she had been laying down.[1103] KM said that while in that dizzy state she had never experienced confusion about whether somebody had touched her.[1104]
4. KM's evidence was that Dr Ebtash did not ask for her permission to touch her in this way, nor did he explain why he was doing so.[1105] KM acknowledged that she did not say anything to Dr Ebtash at the time, and she never asked for an explanation.[1106]
5. KM was unable to specify the date on which the KM Incident occurred, but agreed that it was during one of the treatment sessions she had alone with Dr Ebtash.[1107] KM acknowledged that she did not make a note of the date on which the KM Incident occurred, and nor had she endeavoured to ascertain the date on which the KM Incident occurred.[1108]
6. In other respects, KM had a vivid recollection of the KM Incident. She recalled that on the occasion of the KM Incident, she was wearing a favourite blouse.[1109] KM said that she later discovered a rip in the blouse (which she assumed may have occurred on a subsequent occasion when Dr Ebtash adjusted her back by pressing hard on her spine while she was lying on her stomach. KM said that she tried to mend the blouse but it subsequently ripped again.[1110] Her evidence was that although she wanted to throw the blouse away, she had kept it because it was a favourite of hers[1111] and she 'refused to allow his behaviour' to compel her to throw it away.[1112]
7. KM confirmed that Dr Ebtash had not previously touched her in the way he had during the KM Incident, nor did he touch her in that way on any subsequent occasion.[1113]
8. Dr Ebtash emphatically denied that he had touched KM in the manner she alleged.[1114] He denied having touched anywhere near her breasts on any of the eight occasions on which he treated KM alone.[1115] He emphatically denied that he had taken advantage of her vulnerability when she was dizzy as a result of being treated with the Epley manoeuvre, by touching her breasts.[1116] His evidence was that the focus of his treatment was the Epley manoeuvre,[1117] and that there was no need for him to have touched her breasts, as the treatment he performed involved different parts of her body.[1118] He denied finding KM sexually attractive.[1119]
9. For the reasons set out below, having regard to the evidence concerning KM's reaction to the KM Incident, and her conduct after the KM Incident, and to the other matters to which we refer in our discussion of our findings as to the credibility and reliability of KM and Dr Ebtash, we accept the evidence of KM, and we reject the evidence of Dr Ebtash, in so far as their evidence differs in respect of this aspect of the Board's case.
10. Accordingly, we find that while KM was lying down to recover from the Epley manoeuvre, Dr Ebtash touched her by moving his hands from her shoulders down over the top of her breasts, back up towards the top of her shoulders, and then down the sides of her arms, in a continual movement.

1. KM said that when the KM Incident occurred:[1120]

I just laid there. I just didn't know - I couldn't believe that it had happened. ... I was angry because I didn't say anything. ... I'm a grown woman. I didn't say anything. And I became angrier because I'm also a police officer. Dealt with many people who have been through many different things, and I just laid there and did nothing.

1. KM confirmed that she felt angry at herself for not saying or doing anything:[1121]

I was just in disbelief that this had even occurred ... I was just angry at myself. Angry at him after, but just that - the fact that I laid there and allowed that to happen when I had two daughters of my own.

1. KM said that she had thought about the KM Incident 'every week since it occurred'.[1122] She did not report the KM Incident, or tell anyone, including the members of her family, about it. She explained that that was because:[1123]

I just put it to the back of my head. I just didn't want to deal with it. I was angry with myself, angry with the doctor. It was just easier, and I was so unwell. It was just another thing to deal with. I just put it to the back of my head and dealt with the anger.

I went home. I completed treatment. I went back to [Dr Laurie]. It was just a - something that happened. I didn't go home and make a note of it. I didn't tell anybody. I kept it to myself. That was my way of dealing with it and I continued on.[1124]

1. KM had further consultations with Dr Ebtash after the KM Incident.[1125] Her evidence was that she had continued to see him because:[1126]

I needed someone to fix [the vertigo]. I was so affected. Every aspect of my life and my work - he said that he would be able to fix it. The Epley manoeuvre would cure it. I went another couple of times after this incident because I was so desperate to be well.

... That was just - that was the overriding - to be well because I could barely walk in a straight line. I was anxious, just hoping that I wouldn't have to see him for very much longer, but the overriding thing of all this was to be well.

1. However, KM said that when she saw Dr Ebtash on these subsequent occasions, she 'would lay back and either put my arms across or - cross my arms or put them on - on my shoulder. I would be more aware - try and be more aware of my surrounding[s] - keep my eyes open'.[1127]
2. After treating KM for her vertigo, Dr Ebtash referred KM back to Dr Laurie.[1128] KM continued to see Dr Laurie for a further nine months.[1129] She was subsequently referred to another practitioner at the Wellness Place for alternative treatment for her vertigo.[1130]
3. In addition, KM also saw Dr Ebtash on two further occasions several weeks after the KM Incident, again at Dr Laurie's request and in Dr Laurie's consulting rooms, because Dr Laurie wanted assistance to undertake a chiropractic manipulation of KM's neck.[1131]
4. Dr Ebtash denied that there was anything in KM's demeanour or manner that alerted him that she had any objection to his treating her on these occasions, and that on both occasions they 'had pleasant conversations.'[1132] He also recalled having seen KM in the reception area at the Wellness Place on another occasion, while she waited to see other practitioners, and they 'held a very pleasant, professional conversation'.[1133]
5. About eighteen months after the KM Incident, KM transferred to another chiropractic clinic for treatment.[1134]
6. Dr Ebtash confirmed that KM had not made any complaint to him throughout the time that he was treating her,[1135] nor had there been any disagreement or argument between them, up to the point in time when she transferred to a different chiropractic clinic.[1136]
7. Dr Laurie did not recall KM saying anything to him that was negative, critical or concerning about Dr Ebtash's treatment of her.[1137] He was extremely surprised to hear of her allegation as, during the course of his treatment, she had only expressed positive feedback to him in relation to Dr Ebtash's treatment.[1138]
8. We find that KM did not report the KM Incident immediately after that incident took place, nor did she complain to Dr Ebtash or Dr Laurie, or make any complaint about what had occurred to her family. For the reasons set out below in relation to our assessment of KM's credibility and reliability, we accept KM's explanation for why she did not report what had occurred for some time.

(iv) How KM came to report her allegation that Dr Ebtash touched her inappropriately

1. KM said that on a date shortly after the Second Occasion, she was working as a police officer when, in the course of her work, one of her colleagues happened to draw her attention to a report that several women who were performing in the Show had reported that they had been indecently assaulted by a chiropractor.[1139] KM's evidence was that she asked for the name of the practitioner, and was told that it was Dr Ebtash. At that point, she responded '[m]y God, I think that's - he's the same one that did something to me'.[1140]
2. There was no evidence to indicate the extent to which KM was told the details of the allegations made by each female cast member about the manner in which Dr Ebtash touched them.
3. KM said that she subsequently told her colleagues what had occurred, and they encouraged her to formally report her allegation. She then met with the officer who was investigating the complaints made by the female cast members,[1141] and made a statement.
4. KM's evidence was that she made clear to the investigating officers that she did not wish to be the only person to pursue a complaint against Dr Ebtash, and that if the female cast members were not going to pursue their complaints, then she was not prepared to do so either.[1142] She explained that that was:[1143]

Because I've been through the process with many victims before. ... I didn't want to do it by myself. ... Maybe because I knew too much of how the system works, and I was not prepared to do it by myself. I hadn't made an initial complaint. ... I didn't want to go through the court process as an only victim with someone who had a huge business, a huge following, huge clientele. Just wasn't prepared to do it.

1. KM also explained that the reason she was not prepared to pursue her complaint in a prosecution, unless the female cast members also did so,[1144] was that having dealt with many victims of offences, she appreciated that proceeding with a prosecution was an emotionally draining experience for a victim, and that the court process had a huge impact on their life, which she did not want to embark on, on her own.[1145]
2. KM was subsequently advised that the female cast members were not going to pursue their complaints because they were leaving Western Australia, and it would be difficult to call them to give evidence.[1146] At that point, KM then told the investigating officer that she would sign the statement she had made to the police and gave her permission for it to be kept on file.[1147]
3. KM acknowledged that in the course of her work it was not unusual for her to give evidence in court, but she said that it was unusual for her to give evidence in the context of the present proceedings because 'I'm the victim'.[1148] She was cross-examined about her characterisation of herself in that way. Her evidence was that a person was 'a victim as soon as they make a complaint'[1149] and 'as soon as they reported an incident to police'[1150] and that it did not matter if the complaint was not proved.[1151]
4. She said that although she was a police officer, she did not view herself as a police officer during the KM Incident, but simply as 'a normal person, a wife, a mum'.[1152] She denied that her failure to pursue her complaint against Dr Ebtash was because she feared being disbelieved:[1153]

You know what, I don't really - it didn't bother me whether I was disbelieved or not. I know it happened. If I was so adamant and so strong, I would have made a complaint immediately. I did not. Chose to keep it to myself, continue on with my daily life because it was easier.

1. There was no evidence to contradict KM's evidence as to how she came to report her allegation as to how Dr Ebtash touched her on the breasts. Having regard to our findings as set out below, as to KM's credibility and reliability, we accept her evidence, and we find that she reported the KM Incident to the police after she found out, by chance, that the female cast members had alleged that Dr Ebtash had indecently assaulted them.
2. There was no evidence to suggest that KM was made privy to all of the details of the allegations made by the female cast members. She did not know cast members. She was not involved in the investigation of their complaints. We find that she was not made aware of the precise details of their allegations as to how Dr Ebtash touched them when she made her complaint or since.

(v) Was there a clinical justification for Dr Ebtash to touch KM's breasts?

1. Dr Crawford and Dr Innes agreed that touching a patient's breasts played no part in the application of the Epley manoeuvre.[1154]
2. Dr Crawford had performed the Epley manoeuvre on a few patients during the course of his chiropractic career. His evidence was that the Epley manoeuvre does not involve contact with a patient's anterior chest, nor was there any reason why a practitioner would move their hands over the top of the patient's breasts down towards her stomach and then move his hands back up over her breasts toward her shoulders in connection with performing the Epley manoeuvre.[1155] Dr Crawford's evidence was that he was unable to conclude that Dr Ebtash's conduct had a clinical motivation.[1156]
3. Dr Innes did not regard the Epley manoeuvre as within his area of clinical expertise. However, Dr Innes had done a search of the medical literature and could not find any evidence with respect to the Epley manoeuvre that indicated that contact on or near a female patient's breasts was required as part of that treatment. Consequently, he concluded that it was not appropriate for a chiropractor, at any stage of the procedure, to touch a female patient's breast or to place his hands close to a patient's breasts.[1157]
4. We accept the evidence of the expert witnesses and we find that there was no clinical justification for Dr Ebtash to touch KM on her breasts as part of, or following, the Epley manoeuvre.

(vi) Did KM consent to being touched on her breasts?

1. Dr Ebtash's Clinical Notes in relation to KM do not record that he obtained her consent to the Epley manoeuvre, or to his adjustment of her neck or spine, but there is no doubt that she consented to that treatment.
2. KM's clear evidence was that Dr Ebtash did not seek her consent to touching her breasts, nor did he explain why he intended to touch her breasts. There is no contrary evidence to suggest that KM consented to Dr Ebtash touching her on the breasts. Given Dr Ebtash's denial that he touched KM on her breasts, it was not surprising that there was no evidence to suggest that he obtained consent to touching her in that way.
3. Having regard to KM's evidence, and to the credibility findings that we have made in relation to her allegations that Dr Ebtash touched her on her breasts, we find that Dr Ebtash did not obtain KM's consent to touch her on the breasts, nor did he explain why he intended to touch her breasts, before doing so.

1. KM gave her evidence in a calm, clear and confident manner. We found her evidence compelling. Nothing in KM's demeanour suggested to us that her evidence was rehearsed, or memorised from a statement and repeated. She had a vivid recollection of what occurred in the KM Incident itself, and the events leading up to it, such as the fact that she was wearing a favourite blouse at the time, and that the first occasion on which she saw Dr Ebtash was her husband's birthday. KM listened carefully to the questions put to her, and gave precise answers. It may be that her confident approach to giving her evidence was, in part, due to the fact that, as a police officer, KM has given evidence on many occasions before. However, in our view, giving evidence as a police officer, about events in which one is not personally involved, is a very different experience from giving evidence about being touched, intimately, without consent. We viewed KM's manner as consistent with a determination to give her honest recollection of what she recalled.
2. Generally speaking, KM remained composed during her evidence. However, KM became upset and tearful at several points in her evidence. The first was when she recounted feeling angry at herself for not saying anything about the KM Incident at the time, especially as a woman with two daughters of her own. The second was when she explained that she did not see herself as a police officer in relation to the KM Incident, but simply as a normal person, a wife and a mother. Finally, KM became tearful when she explained, in re-examination, why she did not pursue her complaint in a prosecution, because of the huge emotional toll she had seen court proceedings have on victims of crime. We regarded her emotional responses as entirely consistent with the stressful experience of giving evidence, and being cross-examined, about a very private and distressing experience, to strangers in a hearing room.
3. At one point in her evidence, KM complained that she regarded Dr Ebtash as 'smirking' at her.[1158] We did not see any such expression, and we draw no adverse inference against Dr Ebtash from the concern KM voiced. However, we regarded her reaction as consistent with anger towards Dr Ebtash for the way he had made her feel as a result of the KM Incident.
4. We found KM's evidence as to how she came to report what had occurred to be particularly convincing. Having decided to say nothing about the KM Incident to anyone - even her family - KM's evidence as to her shock upon hearing about the report made by the female cast members that they had been touched by a chiropractor was entirely credible. The fact that she blurted out to her colleagues that she had also been touched by Dr Ebtash was entirely consistent with having made that shock discovery. It was also, in our view, quite inconsistent with any deliberate fabrication or recasting of her recollection of what occurred.
5. Counsel for Dr Ebtash submitted that KM's evidence should be regarded as not reliable, rather than not credible (in that she clearly believed herself to be giving an honest account, but that account could not be regarded as reliable in the circumstances).[1159] He submitted that there were a number of factors which mitigated against acceptance of KM's evidence, because it was coloured by her own view of herself as a victim.[1160] Those factors were: the fact that KM did not bother to try to identify the date on which the KM Incident occurred, notwithstanding that it was in her means to have ascertained that; the fact that she was willing to assume her favourite blouse had been ripped in the course of Dr Ebtash adjusting her back on another occasion (which was evidence of her willingness to make assumptions adverse to Dr Ebtash); the fact that KM did not make a complaint to Dr Ebtash, or to any other practitioner, at the time; the fact that she continued treatment with Dr Ebtash alone soon afterwards; the fact that she continued treatment at the same chiropractic clinic after the KM Incident; the fact that she subsequently was treated by Dr Ebtash on two further occasions; the absence of anything in her demeanour, as observed by Dr Laurie in particular, to suggest that she had any issue about Dr Ebtash; and finally the fact that she made no complaint until she heard about the complaints by the female cast members.[1161]
6. We have scrutinised KM's evidence as a whole, and these factors of it, very carefully, but we are unable to accept that these factors, alone or together, warrant the rejection of KM's evidence as unreliable, for the following reasons.
7. First, we have considered very carefully the fact that KM did not complain immediately to Dr Ebtash about the way he touched her, nor did she complain to him, or Dr Laurie, at any stage afterwards. She did not report Dr Ebtash's conduct to the police, and did not even disclose the KM Incident to her family. It might be thought that was all the more surprising given that KM is a police officer, who is very familiar with the legal system, and might be expected to have the confidence to report such inappropriate behaviour. After all, KM is a mature woman, who acknowledged that she was not of a nervous disposition, and was generally sensible and competent and, at least in her working life, regarded herself as a strong person, who was used to making important decisions.[1162]
8. On the other hand, KM's failure to report the KM Incident was hardly an unusual response for a person who has been the recipient of an unwanted sexual touching. Furthermore, KM's appreciation that the experience of giving evidence in court can sometimes be traumatic for victims, especially where allegations of non-consensual sexual touching are involved, explains entirely why she would choose to refrain from reporting the KM Incident to anyone. We found KM's explanation as to why she did not say anything to Dr Ebtash at the time of the KM Incident, and as to why she did not report the KM Incident, to be compelling, and her expression of anger at herself that she did not do so to be genuine and understandable.
9. Secondly, we have carefully scrutinised KM's evidence in light of the fact that KM saw Dr Ebtash, on a number of occasions, for further treatment after the KM Incident. However, we regarded KM's explanation that she did so because she was desperate for a cure for her severe vertigo, which she believed his performance of the Epley manoeuvre would achieve, as credible. At the same time, her evidence that in those further treatments, she took steps to protect herself against the risk of being touched inappropriately again, by putting her hands over her chest, was also credible.
10. Thirdly, we have taken into account the fact that KM said that the Epley manoeuvre caused her to experience severe dizziness. Counsel for Dr Ebtash submitted that KM's evidence could not be viewed as reliable in circumstances where the alleged touching occurred when she was lying on her back, with her eyes closed, feeling dizzy and nauseous.[1163] However, the evidence suggested that while KM experienced dizziness, and associated nausea, she was living with vertigo on a constant basis, and was managing to carry on her life, including by working, for much of the time. KM denied that the dizziness and nausea interfered with her perception of being touched. We have considered whether there is any basis to doubt the reliability of KM's evidence, in light of the evidence as to the circumstances in which the KM Incident is said to have occurred. We do not think there is.
11. Fourthly, counsel for Dr Ebtash submitted that KM believed she was a victim, and that that belief affected her evidence, such that the Tribunal could not place reliance on her evidence as to what she believed occurred to the necessary standard.[1164] Counsel for Dr Ebtash submitted that KM:[1165]

[w]as going to give evidence admitting of no doubt. She was sure in her mind when she arrived that she had been touched. She saw herself as a victim and nothing was going to detract from that view of herself. Her mind was made up that she was a victim.

1. Having considered the totality of KM's evidence, we are unable to accept this submission. There was nothing in KM's evidence to suggest that her perception of herself as a victim of Dr Ebtash's conduct affected the reliability of her recollection of the KM Incident. The fact that KM assumed that her favourite blouse had been ripped in the course of having her back treated by Dr Ebtash, on a different occasion, appeared to us to be an inference that may have been open in the circumstances. In any event, the fact that KM drew that assumption - about so insignificant an event - was hardly an adequate basis for concluding that KM's perception of herself as a victim coloured her recollection of the KM Incident. The certainty with which KM gave her evidence appeared to us to reflect the clarity of her recollection of the KM Incident, rather than a misplaced perception of herself as the victim of inappropriate conduct by Dr Ebtash, irrespective of any evidence to the contrary.
2. Finally, we turn to the submission by counsel for Dr Ebtash concerning the possibility of contamination of the complainants' evidence. We discuss that submission later in these reasons. We have found that KM was not privy to all of the details as to how the female cast members claimed to have been indecently assaulted by Dr Ebtash. Even if she was aware of some of the details of their reports of being indecently assaulted by Dr Ebtash, there was nothing in what KM said which so closely mirrored the evidence of any of the female cast members as to suggest that KM had heard their reports and subconsciously mingled their version of events into her own recollection as to what occurred in the KM Incident. Accordingly, the possibility that KM may have become aware of some of the details of the complaints by the female cast members has not caused us to doubt the credibility or the reliability of her evidence.
3. Having taken into account all of these considerations, we are satisfied that KM's evidence was both reliable and credible. We accept her evidence.

(vii) Our findings in relation to Dr Ebtash's credibility and reliability

1. For the reasons we set out below, we have doubts as to the credibility of Dr Ebtash's evidence and for that reason in so far as there was any inconsistency between KM' evidence, and his evidence, we prefer KM's account.

1. As counsel for the Board observed 'there is a vast gulf between [Dr Ebtash's] version and the version of each and every one of the complainants'.[1166] Furthermore, Dr Ebtash's evidence, including his outright denials that he touched any of the complainants in the manner they alleged, excluded any conclusion 'of a possibility that in the course of legitimate clinical treatment, he accidentally, or inadvertently, touched them'[1167] as they alleged. Consequently, this is a case in which the evidence given by each or all of the complainants, on the one hand, and the evidence given by Dr Ebtash, on the other hand, as to those facts relating to the allegations which are in dispute, cannot both be accepted.
2. Given our other findings, particularly our findings about Mr Maddison's credibility and reliability, the resolution of the factual contest in the present case comes down to the question of whether the evidence of any or all of the complainants is accepted, or whether the evidence of Dr Ebtash is accepted, as credible and reliable.
3. We turn, then, to consider the credibility and reliability of Dr Ebtash's evidence.
4. Dr Ebtash gave evidence in a very confident and clear manner. He answered questions directly and without hesitation. He was emphatic in his denial of the allegations made by the complainants. In the course of cross examination he appeared, occasionally, to become a little defensive or impatient with the questions asked by counsel. However, in the context of a case such as this, where very serious allegations about his professional conduct were being made, we did not regard that as an unusual response and draw no adverse conclusion from it.
5. We were left with the clear impression that Dr Ebtash is a person with great confidence in his own abilities as a chiropractor. However, he accepted in his evidence that he had been 'over confident' as a result of his success,[1168] and described these proceedings as a 'humbling experience'.[1169] He made admissions in relation to some of the Board's allegations such as in relation to the adequacy of the assessments he had made of the cast members' injuries, as to the adequacy of his notes.
6. Dr Ebtash's unchallenged evidence was that - apart from the complainants in this case - no other patient had ever made a complaint about his treatment.[1170] Given the busy practice that Dr Ebtash has conducted for many years, there can be no doubt that Dr Ebtash has treated thousands of patients over his career.
7. In support of his unblemished record and good prior character, Dr Ebtash also tendered written witness statements of Ms Furina[1171] and Dr Perlen.[1172] Their evidence was not disputed.
8. Ms Furina originally saw Dr Ebtash as a patient, was subsequently employed by him as a part time clinical assistant in 2005, and was the practice manager for the Wellness Place in Bassendean from 2007 to 2016. Since the present proceedings were commenced by the Board, Ms Furina has been acting as a chaperone while Dr Ebtash sees female patients,[1173] pursuant to a condition imposed by the Board on his registration as a chiropractor, pending the outcome of the present proceedings.
9. In her role as the practice manager at the Wellness Clinic, Ms Furina was the first point of contact for patient feedback and complaints. She stated that there were very few complaints, other than complaints that Dr Ebtash often ran late, because he was busy, or occasionally questioning fees.[1174] She stated that she had 'never received a complaint about unsatisfactory professional conduct by [Dr Ebtash] since coming to work for him in 2005'.[1175]
10. Ms Furina also gave evidence as to Dr Ebtash's character. Her impression of him:[1176]

[A]s both a patient and a colleague, is that he is very competent and skilled at his profession. [Dr Ebtash] comes very highly recommended by his patients. He built the Wellness Clinic, as it exists today, overwhelmingly on the strength of his reputation among his patients.

[Dr Ebtash] also has a very good bedside manner and makes the patient feel welcome and at ease.

... [H]e not only has a very high skill level, but he also ensures that his level of treatment is thorough so that those treatments are very effective. This stems from what I believe is [Dr Ebtash's] genuine care for all of his patients.

1. Ms Furina stated that when Dr Ebtash told him about the investigation by AHPRA and the present complaints 'I couldn't believe it. I was shocked; it was totally out of kilter with the man I have known for 15 years'.[1177]
2. Ms Furina stated that after the requirement for a chaperone was imposed on his registration, Dr Ebtash told his female patients why she was required to be present. Her evidence was that none of his patients refused or expressed discomfort with proceeding with treatment after being told why a chaperone was required and patients still referred new patients to him even after becoming aware of the restrictions on his registration.[1178]
3. Dr Perlen is a general practitioner who has a practice with a nutritional and environmental focus. Dr Perlen first met Dr Ebtash about 15 years ago, when he bought his chiropractic practice in Bassendean from its former owner, when Dr Perlen saw for chiropractic treatment, and with whom Dr Perlen had had a longstanding referral relationship. Dr Perlen then began referring patients to Dr Ebtash from her own practice. She also saw Dr Ebtash for chiropractic treatment.[1179]
4. Dr Perlen estimated that she would refer approximately 100 patients a year to Dr Ebtash or other practitioners in his chiropractic practice.[1180] She stated that she has:[1181]

[N]ever received any negative feedback in relation to [Dr Ebtash's] treatment. Various patients have expressed to me that his treatment was very helpful.

The only other feedback I received from my patients about [Dr Ebtash] that was not uniformly positive was that he was, and is, very busy in his practice.'

1. Dr Perlen also stated that 'no patient of mine has ever expressed any inappropriate behaviour on [Dr Ebtash's] part. To the contrary, [Dr Ebtash] has always struck me as very professional and very caring in the performance of his medical services.'[1182]
2. Dr Perlen said that from her knowledge of Dr Ebtash as a professional, as a patient and as his friend, she regarded the allegations against Dr Ebtash as completely out of character. Dr Perlen stated that she continued to have a referral relationship with Dr Ebtash and had no reservations about continuing that relationship despite her knowledge of the present proceedings.[1183]
3. Counsel for the Board confirmed that the Board accepted that Dr Ebtash was a person of otherwise good character, who had provided services competently, according to the persons whose evidence was unchallenged by the Board, and that in the presence of a chaperone he has not behaved in an untoward manner.[1184]
4. We find that prior to the conduct the subject of the present proceedings, Dr Ebtash had not been the subject of any prior complaint, or disciplinary proceedings, in relation to his professional conduct, and we accept the evidence of his prior good character. Those findings are, clearly, highly relevant to our assessment of Dr Ebtash's credibility, and to our assessment of the likelihood of his engaging in the conduct alleged, but they do not preclude acceptance of the evidence of the complainants in this case.
5. There were four aspects of Dr Ebtash's evidence which caused us to have reservations about the truthfulness of his evidence in so far as it concerned his denial of the allegations made by the complainants.
6. First, for the reasons explained at [229] - [233], we do not accept Dr Ebtash's evidence regarding the Assessment Notes he made in relation to JL. We do not accept Dr Ebtash's evidence that the Assessment Notes were made to record the conditions from which JL was suffering at the time of her treatment, or his evidence that those notes recorded the consent he obtained for his treatment of JL. We do not overlook the fact that Dr Ebtash acknowledged that the Assessment Notes were inadequate, but his willingness to endeavour to explain the content of those notes in a light favourable to his position is an indication that he was willing to give evidence which was not entirely candid.
7. Secondly, for the reasons given at [405] ­ [406], in the case of the Clinical Notes concerning each of LN, MT and MS, we have rejected Dr Ebtash's evidence that those notes were made immediately after the treatments were completed on the afternoon of the Second Occasion. We have instead found that Dr Ebtash prepared the Clinical Notes at some stage in the period up to five days after the Second Occasion and after receiving the emails from CA. The fact that Dr Ebtash was less than truthful about when he made those Clinical Notes gives rise to the possibility that he was not truthful about other aspects of his evidence.
8. Thirdly, for the reasons set out at [468] ­ [469], we rejected Dr Ebtash's evidence as to the extent of his discussions with Mr Maddison about the complainants' allegations. Dr Ebtash's evidence was that he and Mr Maddison had spoken about the allegations on only three occasions since the Second Occasion, and he claimed that he had not told Mr Maddison of the full details of the allegations made, prior to Mr Maddison preparing his first statement. It was clear that Dr Ebtash's evidence was designed to portray Mr Maddison as an independent witness, whose evidence could be relied upon to corroborate his own. The fact that Dr Ebtash was untruthful in relation to the extent of his communications with Mr Maddison also gives rise to a concern that he was not truthful about other aspects of his evidence.
9. Fourthly, in his evidence in relation to the allegation that he pulled MT's pants down, so as to reveal her mons pubis, Dr Ebtash gave inconsistent evidence. At times, Dr Ebtash denied he had pulled MT's pants down as alleged. On other occasions in his evidence, he accepted that he did not actually recall whether he lowered MT's pants. He also sought to explain why lowering the elastic waist band on a patient's pants might be necessary. That inconsistent evidence indicates that Dr Ebtash was willing to give evidence which was not truthful. It cast doubt on the truthfulness of other aspects of his evidence.
10. In addition, there were three aspects of Dr Ebtash's evidence which reflected poorly on his credit. First, for the reasons set out at some length at [238] - [242], and [405] - [416], and [862] we found that the Clinical Notes made by Dr Ebtash in relation to his treatment of the female cast members did not constitute an accurate or contemporaneous record of Dr Ebtash's treatment of each of them, although that was clearly how Dr Ebtash sought to portray them.[1185] In the case of the Clinical Notes concerning JL, we found (at [241]) that those notes were prepared for a self-serving purpose, namely to provide evidence capable of supporting Dr Ebtash's version of events in relation to his treatment of JL, in case there was a dispute about what he in fact did in the course of that treatment. We found (at [405] ­ [416], and [862]) that Dr Ebtash prepared the Clinical Notes in relation to LN, MT and MS in the knowledge that the female cast members had complained about his 'inappropriate practices', and that he wrote those notes in a self-serving way to support his own version of events, in case those complaints were pursued.
11. Counsel for Dr Ebtash submitted that the content of the Clinical Notes could be relied upon as a contemporaneous record, and that that content was important and relevant evidence in support of Dr Ebtash's credibility and honesty and accuracy as to the manner of his relevant treatments in this matter. We are unable to agree. The fact that Dr Ebtash prepared the Clinical Notes for a self-serving purpose, and his reliance on those notes as evidence consistent with his version of events, reflects very poorly on his credit overall.
12. Secondly, the evidence that Dr Ebtash called HJ over to look at JL's buttocks gave rise to concern about the propriety of his conduct. As we explained at [143] ­ [145], and [152] we regarded Dr Ebtash's explanation for doing so as being far from convincing. We were not persuaded that the evidence supported the conclusion that his conduct involved a sexual intent. Having said that, as we explained at [153], we regarded Dr Ebtash's conduct as demonstrating a complete disregard for JL's privacy and a failure to treat her with respect. For that reason, we regard Dr Ebtash's conduct in involving HJ in his examination of JL's gluteal folds as reflecting poorly on his credit.
13. Thirdly, at [849] - [861], we discussed the evidence concerning CA's emails to Dr Ebtash in which she referred to the female cast members' complaints about his 'inappropriate practices'. For the reasons given at [858] - [861], we regarded Dr Ebtash's responses to CA's emails as explicable only on the basis that he well knew the nature of the inappropriate practices to which she referred, and were sent in an attempt to avoid any further complaint by the cast members. For present purposes, we regard Dr Ebtash's responses to CA's emails as reflecting poorly on his credit overall.
14. Notwithstanding the evidence of Dr Ebtash's prior good character, the aspects of Dr Ebtash's evidence, to which we have referred, which we regarded as either untruthful or as reflecting poorly on his credit, have caused us to have serious reservations about the credibility of his evidence more broadly, and especially in relation to his denial of the allegations made by the complainants. For that reason, we accept Dr Ebtash's evidence, to the extent that it was not inconsistent with the evidence of the complainants, whose evidence we have accepted. However, to the extent that Dr Ebtash's evidence was inconsistent with the evidence of each of the complainants, whose evidence we have accepted, we prefer the evidence of each of those complainants.

(j) Dr Ebtash's contention that each complainant's evidence was contaminated by their knowledge of the other complainants' allegations

1. Counsel for Dr Ebtash submitted that the evidence of each of the complainants had been subconsciously influenced by their knowledge of the other complainants' allegations that Dr Ebtash had touched them inappropriately. As we have already observed, he expressly denied any suggestion that any of the complainants had deliberately concocted their allegations or had given false evidence.
2. In relation to the female cast members, the argument proceeded on the following lines. It was said that the female cast members had discussed what had occurred to each of them in the week prior to attending the police station, and those discussions had resulted in an 'unconscious consensus that they had all, in effect, been offended against in the manner of their treatment by Dr Ebtash'.[1186] Counsel for Dr Ebtash submitted that that consensus came about because of the fact that the female cast members were a close-knit team, who worked very closely together, and were in close contact for many hours each day.[1187] In relation to KM, the basis for the subconscious influence was said to be that it was only after she heard that the other complainants had come forward, upon which she inferentially concluded that their complaints were of a sexual nature, that she decided to come forward.[1188]
3. Counsel for Dr Ebtash submitted that the way in which the subconscious influence occurred was as follows:[1189]

[I]f you are treated physically intimately in a relatively fast-paced treatment or assessment, you are touched in various intimate parts of your body, on any view. Certainly in the case of [JL] and [LN]. You're left feeling puzzled or violated because you've never been touched in that way before. But you're not sure - it's not chiropractic treatment you've had before but you're not sure whether it's appropriate or not.

Then when you start speaking to others who question or state that they too have been touched, they think, or state, inappropriately, of course without saying anything and therefore subconsciously, it's the most natural thing in the world to revisit the way in which you were touched. In other words, you're going to subconsciously, potentially, in light of what else is said to you or you come to know, potentially feel ashamed or embarrassed.

In other words, notwithstanding your initial, ambiguous or puzzled - 'I've never been touched like that by a chiropractor before' - you can, in light of subsequent information, begin to feel in a different way and new emotions can be evinced.

... [A] misintepretation, a misimagining, can affect your memory as well.

... I'm saying human experience is full of examples, personal examples, ... where we feel one way about something and ... when we receive further information - we can see things in a totally different light. A light which may make us feel potentially ashamed or embarrassed because we acted or we spoke in a way that we didn't know all of the circumstances.

... We revise our view of both things that happen to us and things that we do all the time in light of the experiences of others and information received from others.

1. That argument might have had some persuasive force if this were a case in which it had been accepted by Dr Ebtash that the alleged touching in fact occurred, but where there was a dispute solely in relation to whether the touching was of a sexual nature. In such a case, one might be able to envisage an argument that touching which was initially perceived, by a complainant, as innocuous, might later be perceived as sexually inappropriate, in view of information from others that they were (or perceived that they were) touched in a sexually inappropriate way.
2. However, the evidence in this case did not permit an analysis of that kind. On Dr Ebtash's evidence, the touching of the kind alleged by each complainant did not occur. Accordingly, the argument advanced by his counsel amounts to an assertion that each individual complainant had been subconsciously influenced by her knowledge of the allegations made by other complainants, not merely so as to re-cast her memory of a touching that in fact occurred in a new light (namely, as inappropriate conduct of a sexual nature) but rather by subconsciously inventing an entirely new (and false) memory of a touching which did not in fact occur.
3. We do not consider that that is a matter of common human experience, and there was no evidence (expert or otherwise) to explain how that process of subconscious influence might occur.
4. We do not accept the submissions of counsel for Dr Ebtash that the complainants were subconsciously influenced in this way, and we do not regard this analysis as casting any doubt on the credibility or reliability of the evidence given by the complainants.

1. There is one final matter with which we should deal. Counsel for the Board submitted that the Tribunal was entitled to take its findings in relation to one complainant (that is, a finding that Dr Ebtash had engaged in inappropriate conduct of a sexual nature in relation to one complainant) into account in assessing the evidence as to whether Dr Ebtash engaged in the alleged inappropriate conduct of a sexual nature in relation to each of the other complainants. He advanced that submission on two bases: first, as evidence of a propensity or tendency on the part of Dr Ebtash to engage in inappropriate conduct of a sexual nature in relation to patients, without any clinical justification (tendency reasoning), and secondly, as evidence relevant to the likelihood of the alleged conduct having occurred in relation to the other complainants (coincidence reasoning).[1190]
2. Although subject to exceptions,[1191] the use of similar fact or propensity evidence in criminal cases has, historically, been prohibited, not least because of its potentially highly prejudicial effect on a jury. The concerns which arise in relation to the use of such evidence in criminal proceedings do not arise in civil proceedings. Furthermore, in tribunals such as this Tribunal, the rules of evidence do not apply.[1192] There is authority in other jurisdictions for the proposition that similar fact or propensity evidence may be admitted in disciplinary proceedings, provided it is relevant, or logically probative of a fact in issue.[1193] The use to which such evidence may be put, and the weight to be given to such evidence, may of course be a matter over which reasonable minds may differ. The extent of the similarity of different complaints, and whether a complainant's complaint was made independently of, and was unaffected by, another complainant's account, will be amongst the factors relevant to the probative force of such evidence.[1194]
3. Counsel for Dr Ebtash submitted that those reasoning processes could not, or should not, be employed in this case, because the complainants' evidence had potentially been contaminated by virtue of their discussion of the events with each other (in so far as the female cast members were concerned) and in the case of KM, because she complained only after having been made aware of the complaints made by the female cast members.[1195]
4. He submitted that if the Tribunal concluded that no complainant was independent, then the power of coincidence reasoning was 'so massively denuded'[1196] as to lack anything of the probative force for which the Board contended. In so far as the use of the complainants' evidence for tendency reasoning purposes was concerned, counsel for Dr Ebtash submitted that the Board's case was that Dr Ebtash had a tendency to disguise his sexual touching in the context of clinically justified conduct (such as by talking to the patients, tapping parts of their body, moving quickly from one body part to another, and so on).[1197] He submitted that there could be no tendency reasoning here in the absence of evidence as to how Dr Ebtash ordinarily conducted himself in a clinical setting.[1198]
5. As we have made clear in the discussion above, we have approached our analysis of whether the Board has proved its case in relation to each of the complainants without considering the allegations made by the other complainants. Having regard to our findings as to credibility, we are satisfied that the Board has adduced cogent evidence to establish each of grounds 1 - 5, quite apart from any reliance on tendency reasoning or coincidence reasoning which draws on the allegations made by the other complainants. In those circumstances, it is not necessary to explore the extent to which tendency reasoning or coincidence reasoning should be employed in this case.

(l) Summary of factual findings in relation to grounds 1 to 5 of the Application

1. It is convenient to set out, in summary, our findings in relation to the allegations made by the Board in grounds 1 to 5 of the Application.

1. We have found that in the course of a consultation which took place almost a year before the First Occasion, following his performance of the Epley manoeuvre to treat KM's severe vertigo, and while KM was lying down to recover from that treatment, Dr Ebtash touched her by moving his hands from her shoulders down over the top of her breasts, back up towards the top of her shoulders, and then down the sides of her arms, in a continual movement.
2. We have found that there was no clinical justification for Dr Ebtash to touch KM's breasts in the course of treating her vertigo with the Epley manoeuvre.
3. We have also found that Dr Ebtash did not obtain consent to this conduct, because he failed to inform KM, before commencing the treatment, of the nature of the treatment and failed to give her an adequate opportunity to question or refuse the treatment, in that he did not advise KM that he intended to, or might, touch her breasts after the performance of the Epley manoeuvre, he did not explain to KM why he intended to, or might, touch her breasts before doing so, and he did not ask KM for permission to touch her breasts before doing so.

1. We have found that on the First Occasion, Dr Ebtash touched the side of JL's left breast, through her clothing, by pressing with his fingers, four times in a very quick motion, on the left side of her left breast.
2. We have also found that on the First Occasion, Dr Ebtash touched JL, through her clothing, on her clitoris, labia majora and the outside of her vagina, using the fingers and thumb of his right hand.
3. We have found that Dr Ebtash failed to inform JL, before commencing treatment, of the nature of the treatment and failed to give her an adequate opportunity to question or refuse that treatment, because:

(a) he did not advise JL that he intended to, or might, touch her breast, or her genitals, through her clothing, before touching them, nor did he explain to JL why he intended to, or might, touch her on her breast or genitals; and

(b) he did not ask for her permission to touch her breast, or her genitals, through her clothing, before doing so.

1. We digress to observe that while Dr Ebtash obtained JL's permission to touch her pelvis, that did not constitute obtaining her consent to touch her on the genitals. Dr Ebtash did not advise JL what touching her pelvis would involve. He did not tell JL that he intended to, or might, touch her on the pubic bone, pubic symphysis or in the area of her pubic rami. However, as the inadequacy of this aspect of consent was not part of the Board's case, it is unnecessary to pursue that matter further.
2. We have also found that there was no clinical justification for Dr Ebtash to touch JL, through her clothing, on her breast, or for him to touch her, through her clothing, on the clitoris, labia majora or the outside of her vagina.

1. We have found that on the Second Occasion, in the course of massaging LN's inner leg, Dr Ebtash pressed down, briefly, on the left hand side of her labia, with two fingers of his right hand.
2. We have also found that on the Second Occasion, Dr Ebtash used his fingers to massage LN's breasts, including her nipples, through her clothes, and that he did so briefly.
3. We have also found that Dr Ebtash failed to inform LN, before commencing treatment, of the nature of the treatment, and failed to give her an adequate opportunity to question or refuse that treatment, in that:

(a) He did not advise LN that he intended to or might touch her labia or her breasts, before touching them;

(b) He did not explain to LN why he intended to, or might, touch her labia or her breasts, before touching them; and

(c) He did not ask LN for permission to touch her labia or her breasts before touching them.

1. We have also found that there was no clinical justification for Dr Ebtash to touch the left hand side of LN's labia, through her clothing, in the manner we have found, or for him to massage her breasts, through her clothing, in the manner we have found.

1. We have found that in the course of treating MT's psoas and hip flexor muscles on the Second Occasion, Dr Ebtash pulled MT's shorts and underpants down so that her mons pubis was exposed.
2. We have also found that Dr Ebtash did not inform MT, prior to commencing treatment, of the nature of the treatment, and failed to give her an adequate opportunity to question or refuse that treatment, in that he did not advise MT that he intended to pull down her pants and he did not ask MT for permission to pull her pants down so far as to expose her mons pubis, before he did so.
3. Further, we have found that there was no clinical justification for Dr Ebtash to pull MT's pants down so far as to expose her mons pubis.

1. We have found that on the First Occasion, in the course of performing a technique to adjust MS's shoulder, known as the anterior humerus technique, in which MS was in a standing position, Dr Ebtash leaned her body back onto his, so that her back and buttocks were in contact with the front of his chest, and his groin, respectively.
2. We have found that Dr Ebtash did not explain that MS's body would touch his body in that way and that he did not seek her consent to touching her in that way, before doing so.
3. We have also found that there was no clinical justification for Dr Ebtash to have undertaken the anterior humerus technique in such a way that MS's buttocks would come into contact with his groin.
4. We have found that on the Second Occasion, Dr Ebtash poked and prodded MS's right breast quickly and firmly, with both index fingers, just around the nipple. We have found that there was no clinical justification for this aspect of Dr Ebtash's conduct.
5. We found that Dr Ebtash did not obtain MS's consent to this conduct. He did not, prior to touching her right breast, inform her that he intended to, or might, touch her breasts, nor did he explain why he intended to, or might do so, or give her an opportunity to question or refuse that treatment, nor did he ask for her permission to touch her breast in that way, before he did so.
6. Finally, we have found that on the Second Occasion, Dr Ebtash used his fingers to poke MS's lower abdomen, in the area of her mons pubis, in very close proximity to her clitoris. We have found that there was no clinical justification for this aspect of Dr Ebtash's conduct.
7. We also found that Dr Ebtash did not obtain MS's consent to this conduct. He did not, prior to commencing this part of her treatment, inform her that he intended to, or might, touch her mons pubis in close proximity to her clitoris, nor did he explain why he intended to, or might, do so, or give her an opportunity to question or refuse this aspect of the treatment, nor did he ask her for her permission to touch her mons pubis in close proximity to her clitoris, before he touched her in that manner.
8. Characterisation of Dr Ebtash's conduct ­ grounds 1 to 5 of the Application
9. In order to determine whether professional misconduct has been established, it is necessary to consider the following questions:[1199]

(i) Did Dr Ebtash's conduct, as established, constitute one, or more than one, instance of unprofessional conduct?

(ii) If so, did the various instances of Dr Ebtash's conduct, considered individually, or taken together, amount to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience? That question is to be answered having regard to:

(a) The level of training or experience that Dr Ebtash had at the time; and

(b) The standard of conduct which would be reasonably expected of a registered chiropractor of that level or experience.

(a) Did Dr Ebtash's conduct, as established, constitute one, or more than one, instance of unprofessional conduct?

1. The Board alleges that Dr Ebtash's conduct in relation to JL, LN, MT, MS and KM, constituted a breach of s 9.1 and s 9.2 of the Code.[1200] Dr Ebtash denies these allegations, on the basis that he says the alleged treatment was neither offered nor provided.[1201]
2. Counsel for the Board submitted that the Board's case was principally that the conduct alleged constituted conduct amounting to indecent assaults, which took place without consent, and with no clinical justification, and for which the only reasonable explanation was that it was sexually motivated.[1202]
3. He submitted that if no finding was made about conduct of a sexual nature, then findings would be possible that the conduct involved was clinically inappropriate.[1203] So, while it was not the Board's case, he submitted that if the Tribunal concluded the conduct alleged in relation to MT and by MS was not of a sexual nature, it would be open to the Tribunal to find that it was clinically inappropriate nevertheless.[1204]
4. As we have already observed, the Code is evidence of what constitutes appropriate professional conduct or practice for chiropractors.
5. Sections 9.1 and 9.2 of the Code are in the following terms:

In professional life, chiropractors must display a standard of behaviour that warrants the trust and respect of the community. Good practice involves:

(a) Observing and practising the principles of ethical conduct; and

(b) Practitioners conducting themselves appropriately in public while representing themselves as a registered chiropractor.

Professional boundaries allow a practitioner and patient to engage safely in a therapeutic relationship.

Professional boundaries refers to the clear separation that should exist between a chiropractor's professional conduct that is aimed at meeting the health needs of patients, and a chiropractor's own personal views, feelings and relationships that are not relevant to the therapeutic relationship.

Professional boundaries are integral to a good chiropractor-patient relationship. They promote good care for patients and protect both parties. Good practice involves:

(a) Maintaining professional boundaries so that patients are not exploited financially, physically, emotionally or sexually;

(b) Never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a chiropractor's care; this includes those close to the patient, such as their carer, guardian, spouse or the parent of a child patient;

(c) Recognising that sexual relationships with people who have previously been patients are often inappropriate, depending on the extent of the professional relationship and the vulnerability of the person who was previously a patient; and

(d) Avoiding the expression of a chiropractor's personal beliefs to patients in way that exploit their vulnerability or that are likely to cause them distress.'

1. As Buss P and Murphy JA sought to emphasise in Panegyres, the question in disciplinary proceedings is not whether impugned conduct is in 'breach' of a code of conduct.[1205] That is because it cannot simply be assumed that any departure from any provision of a code of conduct will necessarily constitute the basis for a finding of unsatisfactory professional performance, unprofessional conduct, or professional misconduct, especially if the code of conduct is expressed in vague and general terms, or in terms which are properly viewed as aspirational in nature, rather than as designed to prescribe particular standards of behaviour. The terms in which sections 9.1 and 9.2 of the Code are expressed suffer from some of these difficulties.
2. In our view, however, it is clear from section 9.2(a) that chiropractors should maintain 'professional boundaries' so that patients are not 'exploited' on any of a number of basis, including 'sexually'. The term 'professional boundaries' in our view refers to the limits or parameters[1206] of the professional relationship which a chiropractor must maintain with a patient. The verb 'exploit' means to 'use selfishly for one's own ends'.[1207] And the term 'sexually' is an adverb which means 'with regard to sex or sexual activity; in a sexual manner'.[1208]
3. It is not necessary to explore all of the circumstances in which section 9.2(a) may operate in relation to the sexual exploitation of patients. For present purposes, it suffices to say that it is clear that section 9.2(a) conveys that a chiropractor must ensure that his or her relationship with a patient does not involve any interaction of a sexual nature, character or connotation, or any conduct which is otherwise undertaken for the sexual gratification of the practitioner.
4. All of the circumstances must be take into account to determine whether the practitioner's conduct has resulted in the patient being exploited in a sexual manner. Some conduct has an inherently sexual connotation. By way of example, circumstances of an inherently sexual character or connotation may be found to have existed when a person touches another a person, without consent, on an intimate part of their body, or touches a person with an intimate part of their own body.[1209] The criminal law recognises, for example, that an accused may touch a complainant in such an intimate manner that that touching will be considered inherently indecent. In those circumstances, the element of indecency will be made out by the mere application of the touch to that intimate body part, without consideration of motive or purpose.[1210]
5. Circumstances of a sexual character or connotation may also be found where a person is found to have touched a person, without consent, with a motive or purpose of sexual gratification.[1211]
6. In the context of chiropractic treatment, the expert evidence in this case confirmed that some treatment may require the practitioner to touch a patient on, or very near to, an intimate part of their body, such as a woman's breasts. If such a clinical justification exists, the conduct cannot properly be characterised as sexual in nature, and thus will not involve the sexual exploitation of the patient. However, when there is no clinical justification for touching a patient on, or very close to, an intimate part of their body, such as their breasts, or genitalia, even if that touching occurs through clothing, then the circumstances will warrant close scrutiny to determine if the practitioner's conduct can properly be characterised as sexual in nature.
7. In relation to Dr Ebtash's conduct concerning KM, JL, LN and MS (in relation to his conduct on the Second Occasion), that conduct involved touching each of those patients, through their clothing, on or near their breasts, on or near their genitals, or on or near their mons pubis in close proximity to the clitoris, using his fingers. Because it involved touching on or very near to such intimate parts of those complainants' bodies that conduct was conduct capable of having a sexual connotation.
8. In relation to Dr Ebtash's conduct concerning MS on the First Occasion, that conduct involved leaving MS's body back into his so that, through their clothing, her buttocks came into contact with his groin. That conduct involved an intimate part of Dr Ebtash's body coming into contact with an intimate part of MS's body, and was therefore conduct capable of having a sexual connotation.
9. Finally, in relation to MT, Dr Ebtash's conduct involved him pulling her pants down so far as to expose her mons pubis, that conduct by Dr Ebtash involved his exposing an intimate part of her body. We are of the view that that conduct also involved a sexual connotation.
10. As we have already noted, we have found that there was no clinical justification for any of these instances of conduct.
11. In the present case, Dr Ebtash denied the conduct alleged. There was, therefore, no basis to consider whether each of the relevant instances of his conduct in relation to the complainants might have been inadvertent or accidental. Furthermore, there was no other evidence from which an explanation for the conduct could be discerned, to contradict the conclusion that the touching was conduct of a sexual nature. In particular, because Dr Ebtash denied that the touching occurred at all, this was not a case in which his purpose or motive, for each instance of touching the complainants, arises for consideration.
12. Having taken all of the circumstances disclosed by the evidence into account, we are satisfied that each of the instances of conduct in relation to the complainants, which are summarised at [978] ­ [999], was conduct of a sexual nature, and was conduct which was prohibited by section 9.2(a) of the Code.
13. Counsel for Dr Ebtash submitted that in order to succeed, the Board had to establish not only that the alleged inappropriate conduct was of a sexual nature, but also that that conduct was sexually motivated. He submitted that that the Board had led evidence as to Dr Ebtash's sexual motivation, namely that he offered complimentary chiropractic treatment to the cast members after he had seen the Show, which contained elements of sexual innuendo, and that the Board had not advanced the case merely as one involving opportunistic conduct of a sexual nature.[1212]
14. We rejected (at [80] ­ [81]) the Board's contention that Dr Ebtash's motivation for providing complimentary chiropractic treatments was to provide him with the opportunity to touch the female cast members with a sexual intent. The fact that Dr Ebtash provided complimentary chiropractic services to the cast members, thus has a neutral role as one of the circumstances surrounding the treatment of the female cast members.
15. However, we do not accept the submission by counsel for Dr Ebtash that that finding in turn precludes a finding that the conduct in question was conduct of a sexual nature. In grounds 1 to 5 of the Application, the Board alleged that the conduct was 'inappropriate conduct of a sexual nature'. As we have explained, having taken all of the evidence into account, we are satisfied that the Board has established that the conduct was conduct of a sexual nature, quite apart from any question of Dr Ebtash's motivation for engaging in that conduct.

(b) What level of training or experience did Dr Ebtash have?

1. Our findings in relation to Dr Ebtash's training and experience are set out at [63]. Dr Ebtash has tertiary qualifications in chiropractic and is a registered chiropractor with many years of experience.

(c) What standard of conduct would be reasonably expected of a registered chiropractor of that level or experience?

1. The standard of behaviour required by section 9.2(a) of the Code is not one which will vary or change, depending on the extent of a practitioner's training or experience. In other words, the standard of behaviour required by section 9.2(a) of the Code applies, irrespective of the level of training or extent of the experience of the practitioner in question.
2. We digress to observe that in saying that, we do not mean to suggest that the extent of a practitioner's experience would be irrelevant in cases where touching of an allegedly sexual nature is involved. There may be cases where inexperience might contribute to a practitioner inadvertently touching a patient on an intimate part of their body, or doing so in the mistaken belief that that touching was clinically justified. That inexperience or, more accurately, its contribution to clumsily executed treatment or to a mistaken belief as to the requirements of particular treatment, will fall to be assessed, together with all of the other circumstances of a case, in determining whether a practitioner's conduct transgressed proper professional boundaries, so as to result in the sexual exploitation of the patient.
3. Finally, it hardly needs to be said that in any clinical circumstance where a practitioner considers that it may be necessary to touch a patient on an intimate part of their body, or where there is a risk of inadvertently touching a patient on or near an intimate part of their body, such as their breasts or genitals, it is essential that the practitioner inform the patient of that possibility, explain why it is necessary to touch that part of the body, give the patient the opportunity to ask questions, or to decline the treatment, offer alternatives where appropriate (for example, inviting the patient to use their hands to shield parts of their body from inadvertent touching, to have a chaperone present, or to have the treatment performed by another practitioner altogether), and finally to obtain unequivocal express consent to the treatment, including to the touching on or near the intimate part of the body concerned.

(d) Conclusion in relation to whether the conduct found fell within the definition of unprofessional conduct

1. In our view, for the reasons set out above, there is no doubt that each instance of the conduct we have found established in relation to each of the complainants failed to meet the standard of behaviour set out in section 9.2(a) of the Code, and thus constituted professional conduct by Dr Ebtash that was of a lesser standard than that which might reasonably be expected of him by the public or by his professional peers.
2. We therefore find that each instance of Dr Ebtash's conduct which was established by the Board constituted unprofessional conduct as defined in the National Law.
3. We turn to consider whether Dr Ebtash's conduct was substantially below the standard reasonably expected of a practitioner of an equivalent level of training or experience, so as to constitute professional misconduct.

(e) Conclusion as to professional misconduct: Did the various instances of Dr Ebtash's conduct, considered individually, or taken together, amount to conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience?

1. Counsel for the Board submitted[1213] that the allegations in grounds 1 - 5 of the Application, if proven, fall squarely within par (a) of the definition of professional misconduct in the National Law, in that the alleged conduct constitutes conduct substantially below the standard reasonably expected of a practitioner of similar training and experience; par (b) of the definition of professional misconduct, in that the alleged conduct constitutes more than one instance of unprofessional conduct that when considered together, amount to conduct substantially below the standard expected of a health practitioner of an equal level of training and experience; and par (c) of the definition of professional misconduct in that the alleged conduct constitutes conduct which is inconsistent with being a fit and proper person to hold registration.
2. In our view, it is appropriate to approach this characterisation having regard to paragraphs (a) and (b), rather than to paragraph (c), of the definition of professional misconduct.
3. We have taken the view that it is appropriate to collectively assess all of the instances of unprofessional conduct pertaining to individual complainants.
4. We are satisfied that in respect of each complainant, the instance or instances of conduct of a sexual nature, in which Dr Ebtash engaged, constituted conduct which, by virtue of the sexual nature of that conduct, was a very serious departure from the standard set out in section 9.2(a) of the Code.
5. We therefore make the following findings:

(a) In relation to KM, the Board has established that Dr Ebtash engaged in professional misconduct, in that the conduct set out at [978] constituted unprofessional conduct by Dr Ebtash which was substantially below the standard which was reasonably expected of a registered health practitioner of an equivalent level of training or experience;

(b) In relation to JL, the Board has established that Dr Ebtash engaged in professional misconduct, in that the conduct set out at [981] and [982] constituted more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard which was reasonably expected of a registered health practitioner of an equivalent level of training or experience;

(c) In relation to LN, the Board has established that Dr Ebtash engaged in professional misconduct, in that the conduct set out at [986] and [987] constituted more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard which was reasonably expected of a registered health practitioner of an equivalent level of training or experience;

(d) In relation to MT, the Board has established that Dr Ebtash engaged in professional misconduct, in that the conduct set out at [990] constituted unprofessional conduct by Dr Ebtash which was substantially below the standard which was reasonably expected of a registered health practitioner of an equivalent level of training or experience;

(e) In relation to MS, the Board has established that Dr Ebtash engaged in professional misconduct, in that the conduct set out at [993], [996] and [998] constituted more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard which was reasonably expected of a registered health practitioner of an equivalent level of training or experience.

1. Ground 6 of the Application - alleged unsatisfactory professional performance

1. In par 6.1 of the Application, the Board alleges that in respect of his treatment of each of JL (on the First Occasion), LN (on the First Occasion), MT (on the Second Occasion) and MS (on the First Occasion and on the Second Occasion), Dr Ebtash's clinical knowledge, skills and judgment were below the standard reasonably expected of a chiropractor of equivalent training or experience.[1214]
2. The Board's case, as pleaded in par 6.2, was that in each case alleged in ground 6.1, Dr Ebtash failed to:
   • Appropriately assess the patient, in breach of section 2.1(a) of the Code;[1215]
   • Formulate a reasonable management plan for treatment, in breach of section 2.1(d) of the Code;[1216]
   • Treat the patient in an area which preserved their confidentiality and privacy in breach of section 3.4(e) and (f) of the Code;[1217]
   • Communicate effectively in relation to treatment proposed and alternatives to treatment in breach of section 3.3(d) and (e) of the Code;[1218]
   • Treat the patient with respect in breach of section 3.2(a) of the Code;[1219]
   • Inform the patients of material risks of treatment in breach of section 3.3(g) of the Code.[1220]
3. In addition, in par 6.3, the Board alleged that in the case of MS 'who had flagged symptoms of tingling' on her Patient Form, Dr Ebtash failed to conduct a neurological examination of the upper and lower limbs, which was necessary because that symptom might have indicated neurological involvement.[1221]
4. Dr Ebtash initially denied the allegation that his clinical knowledge, skills and judgment were below the standard reasonably expected of a chiropractor of equivalent training or experience,[1222] and he denied failing to properly assess the cast members,[1223] failing to formulate a reasonable management plan for treatment,[1224] failing to communicate effectively in relation to the treatment proposed and alternatives to it,[1225] failing to treat the patient with respect,[1226] and failing to inform the patients of material risks of treatment.[1227]
5. However, at the commencement of the hearing, Dr Ebtash admitted all of the failures particularised in par 6.2 and 6.3 of the Application, with two exceptions. Dr Ebtash continued to deny the alleged failure to treat the female cast members in an area which preserved the confidentiality of their treatment, and their privacy. He also denied the allegation that he failed to treat the female cast members with respect.[1228]
6. In the course of the hearing, counsel for the Board indicated that he did not press ground 6.2(c) of the Application - namely the allegation that Dr Ebtash failed to treat the female cast members in an area which preserved their confidentiality and privacy - in light of the evidence that the cast members preferred to be treated in rooms at the Venue.[1229] However, he did not formally abandon that aspect of the allegation of unsatisfactory professional performance.
7. In addition, in the course of the hearing, counsel for the Board made clear that the Board's case in respect of grounds 6.1 and 6.2 was that '6.1 describes 6.2'.[1230] That appeared to be a submission that the allegation in par 6.1 was particularised or informed by the allegations in par 6.2. We also understood par 6.3 of the Application should be understood as a further particular of the allegation in par 6.1.
8. Following that clarification, counsel for Dr Ebtash conceded that by his admissions in respect of the allegations in grounds 6.2 and 6.3, Dr Ebtash necessarily admitted (rather than denied) the allegation in ground 6.1.[1231]
9. Finally, in par 6.4 of the Application, the Board alleged that in the case of KM, Dr Ebtash failed to:
   • Appropriately assess her in breach of section 2.1(a) of the Code;[1232]
   • Formulate a reasonable management plan for treatment, in breach of section 2.1(d) of the Code;[1233]
   • Treat her with respect in breach of section 3.2(a) of the Code.[1234]
10. Although not expressly pleaded to this effect, we understood that par 6.4 was intended to constitute a further allegation that that Dr Ebtash's clinical knowledge, skills and judgment, or the care he exercised, were below the standard reasonably expected of a chiropractor of equivalent training or experience.
11. Dr Ebtash denied the allegations in paragraph 6.4.[1235]
12. Counsel for the Board submitted that standing alone, the alleged clinical failings the subject of paragraph 6 of the Application (together with the allegations concerning the inadequacy of Dr Ebtash's clinical notes in paragraph 7 of the Application) would be likely to constitute unsatisfactory professional performance, as defined in the National Law.[1236]

(b) Requirements for unsatisfactory professional performance

1. In order to determine whether a practitioner's conduct constitutes 'unsatisfactory professional performance' as defined under the National Law, the following questions must be addressed:

(a) What is the practitioner's level of training or experience?

(b) What standard of knowledge, skill or judgment, or care, is reasonably expected of a health practitioner of an equivalent level of training or experience to the practitioner?

(c) Was the practitioner's knowledge, skill or judgment or exercise of care below that standard?

1. The Board relies on various provisions of the Code as indicative of the standard of knowledge, skill, judgment or care reasonably expected of a practitioner of Dr Ebtash's training and experience.

(i) What is the practitioner's level of training or experience?

1. We set out Dr Ebtash's educational qualifications and years of experience at [63]. Dr Ebtash has tertiary qualifications in chiropractic, and is practitioner with many years of experience as a chiropractor.
2. We note that Dr Crawford was especially familiar with the level of training Dr Ebtash had received at the Royal Melbourne Institute of Technology (RMIT) chiropractic programme in 2003. Dr Crawford taught in the RMIT programme at around that time, and was aware of the training provided over the five years of the course, including the clinical training in the last two years of the course. The opinions given by Dr Crawford, in relation to whether Dr Ebtash's knowledge, skill or judgment, or exercise of care, fell below the standards reasonably expected of practitioners of the same level of training and experience as Dr Ebtash, were informed by his knowledge of that training that Dr Ebtash had received.

(ii) What standard of knowledge, skill or judgment, or care, is reasonably expected of a health practitioner of an equivalent level of training or experience to the practitioner?

1. The Board's case was that a practitioner with an equivalent level of training or experience to Dr Ebtash - that is, a practitioner with tertiary qualifications in chiropractic, obtained in 2003, and many years of experience following his registration - would reasonably be expected to demonstrate the standards of knowledge, skill or judgment described in the Code.
2. We did not understand there to be any dispute that the provisions of the Code relied upon by the Board in this case identify standards of knowledge, skill or judgment, which are reasonably expected of practitioners with a level of training or experience equivalent to that of Dr Ebtash, and we find that to be the case.

(iii) Was Dr Ebtash's knowledge, skill or judgment, or his exercise of care, below the standard reasonably expected of a practitioner of an equivalent level of training or experience?

1. In the end, Dr Ebtash admitted most of the alleged particulars in paragraphs 6.2 and 6.3 of the Application, and admitted that his knowledge, skills and judgment were below the standard reasonably expected of a chiropractor of equivalent training or experience. Nevertheless, it is necessary to briefly discuss the nature of the unsatisfactory professional performance which is admitted, and to consider some examples, from the evidence, of the deficiencies in his knowledge, skill and judgment, so as to permit a proper assessment of the extent to which his knowledge, skill or judgment, was a departure from the standard of care reasonably expected in the circumstances.

(c) Alleged failure to assess each patient and to formulate a management plan

1. In so far as the Board alleges that Dr Ebtash failed to appropriately assess each patient, and his failure to formulate and implement a management plan for each patient, the Board relies on paragraph 2.1 of the Code, which relevantly provides:

The practice of any health profession has both clinical and non-clinical aspects. Certain levels of professional values and behaviours are required of all chiropractors regardless of their practice. For those in clinical practice, providing good care to patients is their primary concern.

Appropriately assessing the patient, taking into account their history (history includes relevant psychological, social and cultural aspects), views and conducting an appropriate physical examination;

(d) formulating and implementing a reasonable management plan (including providing treatment / care and advice and, where relevant, arranging investigations and liaising with other treating practitioners).

1. The Code does not define a management plan or prescribe its content. However we note that Appendix 3 to the Code refers to a 'program of care' which is said to be relevant to sections 2.1 and 2.2 of the Code. We note that the terms 'management' and 'care' are used interchangeably in the Code. Accordingly the requirements for a program of care appear intended to inform or guide to the content of a management plan.
2. Dr Innes and Dr Crawford agreed that:[1237]

[C]linical assessment is required as the initial assessment of a patient. This includes a clinical history and appropriate clinical examination. From this a working diagnosis can be derived by narrowing the list of differential diagnoses arising during the clinical assessment. A plan of management can then be developed and it is on this basis that discussion can ensue with the patient as to the treatment options recommended by the practitioner. The patient is then in a position to provide informed consent, or otherwise, to the proposed plan of management. In order to conduct an appropriate examination a patient may be required to disrobe and in such circumstances an examination gown should be offered.

1. As we have noted, Dr Ebtash admits that he failed to properly assess each of JL, LN, MT and MS, and that he failed to develop a management plan for them, as required by the Code.
2. Dr Crawford illustrated the minimum examination which would be required to comply with the Code, by reference to the injuries reported by LN on her Patient Form, namely neck pain, ankle pain and hamstring problems. His evidence was that the minimum examination for a patient presenting with those issues would include observation of, amongst other things, the neck (including posture); the ankle for deformity; the hamstring for atrophy etc; ranges of motion for the neck, lower back, hip and ankle; palpation of the neck and associated structures such as the upper trapezii, levator scapulae regions; palpation of the ankle ligaments and hamstring origin, insertion and belly; neurological examination of the upper and lower extremities with a straight leg raise to help differentiate hamstring pain from radiculopathy or somatic referred pain from the back.[1238] In other words, a thorough examination which involved an exploration of the patient's range of movement and areas of pain or tenderness, was required.
3. Having regard to the evidence discussed earlier in these reasons, there is no doubt that Dr Ebtash failed to take a proper history from each of the female cast members, of the kind contemplated by paragraph 2.1(a) of the Code, nor was there any evidence that he conducted an appropriately thorough physical examination of each patient prior to commencing treatment. The evidence suggested that Dr Ebtash's assessment and examination of each of JL, LN, MT and MS was extremely limited. In the case of JL and in the case of MS (in relation to her treatment on the First Occasion), Dr Ebtash did not require the completion of a Patient Form. His exploration or examination of each of those patients on the First Occasion was cursory at best. Dr Ebtash's treatment of each patient proceeded on the basis of the briefest indication from each patient as to her injuries or areas of soreness.
4. In so far as LN, MT and MS (in relation to her treatment on the Second Occasion) are concerned, Dr Ebtash required each patient to complete a Patient Form, but otherwise his assessment or examination of their injuries or need for treatment was extremely brief and superficial.
5. Each of the expert witnesses also expressed the opinion that Dr Ebtash failed to appropriately assess the female cast members. Having considered the accounts given by each of JL, LN, MT and MS, and the Assessment Notes and Clinical Notes made by Dr Ebtash, Dr Crawford's opinion was that Dr Ebtash did not appropriately assess JL,[1239] LN,[1240] MT[1241] or MS[1242] before treating them. Dr Innes reached a similar conclusion.[1243]
6. There was also no evidence to suggest that Dr Ebtash formulated a reasonable management plan for providing treatment, care and advice to each of the female cast members, as contemplated by paragraph 2.1(d) of the Code. Each of the expert witnesses also reached that conclusion. Dr Crawford concluded that the Assessment Notes and Clinical Notes made by Dr Ebtash did not disclose any formulation of a reasonable management plan for the treatment of JL,[1244] LN,[1245] MT,[1246] or MS.[1247] Dr Innes was of the same opinion.[1248]
7. Having regard to all of the evidence, we find that Dr Ebtash failed to appropriately assess each of the female cast members, including by undertaking an appropriate physical examination, and that Dr Ebtash failed to formulate a reasonable management plan for the treatment of each of the female cast members. We therefore find that in that respect, his exercise of knowledge, skill or judgment in relation to each of the female cast members was below the standard reasonably expected of a practitioner of his level of training and experience.

(d) Alleged failure to treat the patient in an area which preserved their confidentiality and privacy

1. In so far as the Board alleged that Dr Ebtash failed to treat each patient in an area which preserved their confidentiality and privacy, the Board relies on paragraphs 3.4(e) and (f) of the Code, which relevantly provide:

Chiropractors have ethical and legal obligations to protect the privacy of people requiring and receiving care. Patients have a right to expect that chiropractors and their staff will hold information about them in confidence, unless release of information is required by law or public interest considerations. Good practice involves:

(e) providing appropriate surroundings to enable private and confidential consultations and discussions to take place where necessary, to the exclusion of all other people;

(f) ensuring that a patient's confidentiality, privacy and standards of care are maintained even in a practice setting where there is limited aural and visual privacy.

1. As we have noted, counsel for the Board did not press this particular of the Board's allegation of unsatisfactory professional performance, but he did not formally withdraw it either. This particular of the allegation of unsatisfactory professional performance was denied by Dr Ebtash.
2. There can be no doubt that treating a patient in a room in which other people, including other patients, are present, or may enter at any time, means that the confidentiality of the patient's treatment, and their privacy, cannot be guaranteed.
3. Dr Crawford was critical of Dr Ebtash's decision to undertake treatment in the Green Room and the Treatment Room at the Venue. He was also of the view that providing treatment to sports people in an open space environment did not meet the applicable standards for maintaining confidentiality and privacy during the treatment of patients:[1249]

At the centre of chiropractic practice is the doctor-patient relationship. I fail to understand how the doctor-patient relationship can develop and flourish within the current paradigm in healthcare, namely the biopsychosocial model, in an open plan environment or clinic. The open plan concept appears to me to reduce the role of the 'doctor' to that of a technician or therapist working in a reductionistic model. I note that Dr Ebtash provided photographs of patients being treated presumably by chiropractors or chiropractic students in open plan environments and describes this as 'industry standard of sports care ...'.

In the open plan model, confidentiality, as a key issue in healthcare ethics ... is breached. Patients may be inhibited in discussing issues of a more sensitive nature in an open plan environment. Further, patients may be reluctant to divulge aspects of their health history including psychosocial and personal matters related to their clinical presentation in such an open environment.

I am unaware of any clinical data supporting the use of this style of practice in improving patient health outcomes.

1. Dr Crawford was of the view that treating the female cast members in the Green Room and in the Treatment Room was inconsistent with the requirements for confidentiality and privacy in their treatment. For example, in relation to JL, Dr Crawford opined:[1250]

JL was treated in an open area of the [Venue]. There were other people in the room as per JL's statement; it is difficult to determine exactly who was in the room at the time but Dr Ebtash apparently called [HJ] over to look at JL's lower back. This was a breach of confidentiality and privacy if JL's consent to discuss her particular clinical findings with another person were not obtained. Assessing or treating in an open, non-clinical space precludes confidentiality and privacy.

1. Dr Crawford expressed the same view about the treatment of the female cast members in the Treatment Room, when other people were present, including other patients and Mr Maddison.[1251]
2. Dr Innes was of the opinion that treating the female cast members in that environment did not allow for patient modesty and comfort to be maintained.[1252]
3. Leaving to one side a possible breach of section 3.4(e) or (f) of the Code, a decision by a practitioner to treat a patient in an environment where other people are present, with the result that the patient's privacy and confidentiality of their treatment cannot be maintained, should also be the subject of informed consent by the patient. The patient may not appreciate the implications of treatment in a room which is not private, such as that their conversation with their treating practitioner may be heard by others, and their treatment, including treatment which may involve the removal of clothing, may be seen by others. It is essential that the patient is given the opportunity, in advance, to consider these implications, and to provide or decline consent to treatment in that environment.
4. In the present case, as we noted at [82] ­ [83], the evidence established that the cast members indicated that they preferred to be treated at the Venue, and Dr Ebtash accommodated that request. Furthermore, while Dr Ebtash requested that a private area be made available for the treatments, it was the cast members who chose the rooms at the Venue where the treatments would be undertaken. In those circumstances, the evidence does not clearly support the conclusion that it was Dr Ebtash who made the decision as to where the treatment should be undertaken, so as to permit a finding that he failed to provide appropriate surroundings to enable private and confidential discussions, to the exclusion of others.
5. However, paragraph 3.4(f) of the Code contemplates that even if a practitioner does not choose the environment in which treatment is to take place, it remains incumbent upon them to ensure that the patient's confidentiality, privacy and standards of care are maintained. That might suggest that if the practitioner is unable to maintain that confidentiality and privacy, that he or she should consider whether it is appropriate to proceed with treatment at all.
6. However, as the Board did not press for a finding that Dr Ebtash had failed to meet the applicable standard of knowledge, skill, judgment or care in this respect, and as Dr Ebtash admitted to other particulars of unsatisfactory professional performance, the parties did not address the implications of the standard represented by paragraph 3.4(f) of the Code in circumstances where treatment takes place outside a practitioner's treating rooms. In those circumstances, we are not persuaded that the Board has established that Dr Ebtash's judgment, or exercise of care, in these circumstances involved a departure from the standard of conduct reasonably expected of practitioners of an equivalent level of training or experience.

(e) Alleged inadequate communication in relation to treatment proposed, alternatives to treatment and material risks of treatment

1. The Board relies on paragraph 3.3 of the Code as an indication of the knowledge, skill or judgment, or exercise of care, reasonably expected of a practitioner in relation to communication and the requirement for discussion of alternatives to treatment and material risks of treatment. That paragraph of the Code relevantly provides:

An important part of the chiropractor-patient relationship is effective communication. This involves:

(d) informing patients of the nature and relevance of all aspects of their clinical care, including examination and investigations, giving them adequate opportunity to question or refuse interventions and treatment/care;

(e) discussing with patients their condition and other available healthcare options, including their nature, purpose, possible positive and adverse consequences and limitations and reasonable alternatives wherever they exist;

(g) ensuring that patients are informed of the material risks associated with any part of a proposed management plan.

1. These standards in relation to effective communication are capable of application to all chiropractors, irrespective of their level of training or experience. They apply to a practitioner of Dr Ebtash's level of training and experience. Dr Innes' evidence was that students undertaking tertiary study in chiropractic are taught the importance of effective communication:[1253]

Chiropractic students at Murdoch University are taught to clearly explain the intervention at each consultation i.e., its nature, purpose, the outcomes and possible adverse consequences, seek confirmation that the patient understands, ask if there are any questions and obtain permission before proceeding ...

In the Code ... there is an expectation that a chiropractor will take steps to alleviate the symptoms and distress of patients ... and communicate effectively with them ...

1. Dr Crawford explained that in order to ensure that a decision about health care was made with a knowledge and understanding of the benefits and risks involved, a chiropractor would need to discuss the following matters with a patient:[1254]
   1. the nature of the procedure to be employed;
   2. the material risks inherent in such treatment;
   3. the probability of those risks occurring;
   4. the availability and nature of other treatment options, if any;
   5. the material risks inherent in such options and the probability of such risks occurring; and
   6. the risks and dangers attendant to remaining untreated.
2. Dr Crawford's evidence was that:[1255]

A risk is material if 'in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it'.

1. Dr Crawford's view was that if a diagnostic procedure or treatment required contact with parts of a patient's anatomy that are of an intimate nature, or may be perceived as such by the patient, good or appropriate practice required that the patient be provided with:[1256]

[A] detailed explanation of such contacts, the rationale for and benefit/s of the use of such contacts and the manner in which they will be used in order for the patient to make an informed decision to proceed or otherwise with the diagnostic procedure or treatment.

The [Code] (section 3.5) includes information ... that chiropractors should provide, including the need to provide more information where the risk of harm (and this includes psychological harm) is greater and likely to be more serious. This could reasonably be extrapolated to include the need for greater transparency where non-standard techniques or treatments are used that may include contacts with parts of the anatomy that are of, or potentially perceived to be of, an intimate or personal nature.

1. The evidence given by the female cast members at the hearing suggested that Dr Ebtash engaged in limited discussion of his diagnoses, proposed interventions or the possibility of other healthcare options.
2. Dr Innes' opinion was that having regard to the account given by each of the female cast members, and to the Notes made by Dr Ebtash, there was no evidence that Dr Ebtash had discussed with the female cast members the matters identified in paragraphs 3.3(d), (e) and (g) of the Code.[1257]
3. Dr Crawford was of the opinion was that Dr Ebtash did not communicate effectively with JL, LN, MT and MS in relation to the proposed treatment or alternatives to treatment.[1258]
4. We are satisfied that the Board has established that Dr Ebtash's exercise of care in relation to his communication with each of the female cast members was below the standard reasonably expected of a practitioner of an equivalent level of training and experience.

(f) Alleged failure to treat each patient with respect

1. As already noted, Dr Ebtash maintained his denial of the allegation in paragraph 6.2(e) of the Application.
2. The Board relies on paragraph 3.2 of the Code as indicating the standard of knowledge, skill, judgment or care reasonably expected of practitioners with training and experience equivalent to that of Dr Ebtash. That paragraph relevantly provides:

A good partnership between a chiropractor and the person they are caring for requires high standards of personal conduct. This involves the chiropractor:

(a) Being courteous, respectful, compassionate and honest.

1. At the outset, we note that this standard is expressed in broad and very general terms.
2. Touching a patient on or near an intimate part of their body, without their consent, and in circumstances importing a sexual connotation to the touching, implicitly involves a lack of respect. But conduct of that kind is already the subject of the allegations in grounds 1 to 5 of the Application. Similarly, failing to treat a patient in a private room, or to properly communicate with them in relation to proposed treatment, may also reflect a lack of respect for the patient. However, conduct of that kind is the subject of discrete allegations in relation to ground 6 of the Application.
3. We did not understand the Board to point to discrete conduct, not otherwise particularised in support of grounds 1 to 5, or ground 6, of the Application, as the basis for a failure by Dr Ebtash to treat the female cast members with respect. In those circumstances, we do not consider that this allegation adds anything to the other allegations of professional misconduct or unsatisfactory professional performance which we have already addressed.

(g) Alleged failure to undertake a neurological examination in light of MS's reported symptoms - paragraph 6.3 of the Application

1. The Board alleges that on her Patient Form, MS had indicated that she had symptoms of 'tingling', but that Dr Ebtash failed to conduct a neurological examination of her upper and lower limbs, which was necessary because that symptom might have indicated neurological involvement.[1259]
2. We understand this allegation should be understood as a further example of Dr Ebtash's failure to undertake a proper examination of the female cast members.
3. Dr Ebtash initially denied this allegation[1260] but at the commencement of the hearing, he admitted it.[1261]
4. Dr Crawford explained that experiencing a symptom such as tingling:[1262]

[C]an indicate neurological involvement and mandates neurological examination of the upper and lower limbs and possibly the cranial nerves given she also complained of headaches and migraines, after a thorough history, to determine possible causes of such symptoms. This does not appear to have been performed.

1. Dr Innes was also of the opinion that MS's report of tingling should have resulted in 'further questioning and a comprehensive orthopaedic and neurological examination. I can find no evidence that Dr Ebtash has conducted any sort of physical, orthopedic/neurological examination or functional assessment to this end for [MS]'.[1263]
2. We find that in failing to undertake an examination to identify whether there was a neurological issue underlying the symptoms of tingling reported by MS, Dr Ebtash failed to comply with the standards of knowledge, skill, judgment and care reasonably expected of practitioners of an equivalent level of training and experience. Given the specific symptom of tingling which was reported by MS, and the fact that that symptom indicated a possible underlying neurological issue, the failure by Dr Ebtash to conduct an examination, and thus to permit consideration of whether chiropractic treatment, or alternative treatment, was warranted, is an instance of a more serious failure by Dr Ebtash to comply with the applicable standards.

(h) Was Dr Ebtash's knowledge, skill or judgment in his treatment of KM below the standard applicable to practitioners of an equivalent level of training and experience - paragraph 6.4 of the Application

1. The Board alleges[1264] that in the case of KM, Dr Ebtash failed to:

(a) appropriately assess her in breach of s 2.1(a) of the Code;

(b) formulate a reasonable management plan for treatment, in breach of s 2.1(d) of the Code; and

(c) treat her with respect, in breach of s 3.2(a) of the Code.

1. Dr Ebtash denies each of these allegations.[1265]
2. Paragraphs 2.1(a) and (d) and 3.2(a) of the Code are set out above at [1052] and [1083] respectively.
3. Some of the opinion evidence given by Dr Crawford and Dr Innes, in relation to these allegations, concerned the inappropriate touching of KM which was the subject of ground 1 of the Application.[1266] From that perspective, the allegations in paragraph 6.4 of the Application, and in particular, the allegation that Dr Ebtash failed to treat KM with respect, did not materially add to the allegation the subject of ground 1 of the Application.
4. KM's evidence, which we have accepted, outlined how Dr Ebtash came to be involved in treating her vertigo at the request of her treating chiropractor, Dr Laurie. KM noted that Dr Ebtash explained the Epley manoeuvre, but nothing in her evidence suggested that he undertook any examination of her, to confirm the diagnosis of vertigo, or to ascertain that the performance of the Epley manoeuvre was a treatment which was appropriate in the circumstances, or that he formulated a management plan to manage the treatment of that condition.
5. Dr Crawford also noted that having regard to the Clinical Notes made by Dr Ebtash, it appeared that KM had been diagnosed with vertigo by her general practitioner, but there was no indication that Dr Ebtash had undertaken a clinical assessment to make or confirm that diagnosis.[1267] Dr Crawford's unchallenged evidence was that in the absence of any record in the Clinical Notes that Dr Ebtash had undertaken a clinical assessment of KM, he was unable to conclude that Dr Ebtash had appropriately assessed KM.[1268]
6. Furthermore, Dr Crawford's evidence was that Dr Ebtash's Clinical Notes did not include a formal management or care plan in respect of his treatment of KM for her vertigo. While the treatment which was performed was outlined, in his opinion, that did not constitute a management or care plan for her treatment, which met the requirements set out in the Code.[1269]
7. Having regard to that evidence, and to the evidence given by KM, we are satisfied that the Board has established that Dr Ebtash failed to appropriately assess KM, and that he failed to formulate a reasonable management plan for treating her vertigo with the Epley manoeuvre, and, in those respects, we are satisfied that his knowledge, skill, judgment or care was below the standard reasonably expected of practitioners of an equivalent level of training and experience.

(i) Conclusion in relation to ground 6 of the Application

1. We are satisfied that the Board has established that Dr Ebtash's conduct in relation to JL, LN, MT, MS and KM constituted unsatisfactory professional performance in that his knowledge, skill, judgment or care was below the standard expected of practitioners of an equivalent level of training or experience, in the following respects:
   • Dr Ebtash failed to appropriately assess each of the female cast members by undertaking an appropriate physical examination, of the kind contemplated by section 2.1(a) of the Code;
   • In view of MS's report of tingling symptoms, Dr Ebtash failed to conduct an appropriate examination of her as contemplated by paragraph 2.1(a) of the Code;
   • Dr Ebtash failed to formulate a reasonable management plan for the treatment of each of the female cast members, as contemplated by paragraphs 2.1(d) of the Code;
   • Dr Ebtash failed to engage in effective communication with the female cast members, in that he failed to inform them of the nature and relevance of aspects of their clinical care, to give them an adequate opportunity to question or refuse interventions and treatment, to discuss other available healthcare options, and to ensure that they were informed of the material risks associated with any part of a proposed management plan, as contemplated by paragraphs 3.3(d), (e) and (g) of the Code;
   • Dr Ebtash failed to appropriately assess KM, by undertaking an examination to confirm the reported diagnosis of vertigo and the basis or cause for that condition, as contemplated by paragraph 2.1(a) of the Code; and
   • Dr Ebtash failed to formulate a reasonable management plan, for treating KM's vertigo with the Epley manoeuvre, as contemplated by paragraph 2.1(d) of the Code.
2. Ground 7 of the Application - alleged unsatisfactory professional performance in relation to the clinical notes made by Dr Ebtash in respect of KM, JL, LN, MT, MS, SN, GR and SS

1. The Board alleges that in respect of KM, JL, LN, MT, MS, SN, GR and SS, Dr Ebtash's clinical notes were below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.[1270] We understood the reference to the clinical notes was a reference to all of the notes (Assessment Notes and Clinical Notes) made by Dr Ebtash in relation to KM, and to the cast members - that is, to both the Clinical Notes (as we have defined them) and to the Assessment Notes in relation to the cast members. To avoid any confusion, we will refer to all of these notes collectively in this section of our reasons as the Notes. We refer to records of this kind in general terms as 'clinical notes'.
2. As we have already observed, counsel for the Board submitted that the failings the subject of paragraph 7 of the Application would be likely to constitute unsatisfactory professional performance as defined in the National Law.[1271]
3. The Board alleges that in failing to maintain adequate Notes, Dr Ebtash was in breach of par 2.2(d), 9.4(a) and 9.4(d) of the Code and of the Board's 'Guidelines Clinical Record Keeping for Chiropractors'.[1272] As with the allegations in ground 6 of the Application, we understand paragraph 7.2 to inform the allegation of unsatisfactory professional performance set out in paragraph 7.1 of the Application.
4. Dr Ebtash initially denied these allegations.[1273] However, at the commencement of the hearing, Dr Ebtash admitted the allegations in ground 7 of the Application. Counsel for Dr Ebtash confirmed that Dr Ebtash accepted that the Notes were below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.[1274] Furthermore, he confirmed that Dr Ebtash agreed that the effect of his accepted default in the keeping of the Notes 'does give rise to a consideration of the breach of par 2.2(e), 9.4(a) and 9.4(d) of the Code and the Guidelines.'[1275]

(b) Were the Notes below the standard reasonably expected of a chiropractor of an equivalent level of training or experience, and thus an instance of unsatisfactory professional performance?

(i) Dr Ebtash's level of training and experience

1. As we observed at [63], Dr Ebtash has tertiary qualifications in chiropractic, and is a practitioner with many years of experience as a chiropractor.

(ii) What standard of knowledge, skill or judgment, or care, in relation to the preparation of clinical notes, is reasonably expected of a health practitioner of an equivalent level of training or experience to the practitioner?

1. The Board's case was that a practitioner with an equivalent level of training or experience to Dr Ebtash - that is, a practitioner with tertiary qualifications in chiropractic, obtained in 2003, and many years of experience following his registration - would reasonably be expected to demonstrate the standards of knowledge, skill or judgment, and to exercise the care, described in the Code and in the Guidelines in relation to clinical notes.
2. The Board relied on par 2.2(d), 9.4(a) and 9.4(d) of the Code and on the Guidelines as indicative of the standard of knowledge, skill, judgment or care reasonably expected of a practitioner of Dr Ebtash's training and experience in relation to the preparation and content of clinical notes.
3. Par 2.2(d) of the Code provides:

Maintaining a high level of professional competence and conduct is essential for the good practice of the profession. Good practice involves:

(a) Maintaining adequate records (see Section 9.4 Health records).

Maintaining clear, appropriate, factual, objective and accurate health records is essential for the continuing good care of patients. Detailed guidance on this matter is available in the Guidelines for clinical record-keeping for chiropractors published by the National Board. Chiropractors should be aware of relevant state and territory legislation in relation to health records management. Good practice involves:

(a) Keeping accurate, up-to-date, contemporaneous and legible records that report relevant details of clinical history, clinical findings and determinations, investigations, information given to patients, medication and other management details in a form that can be understood by other health practitioners;

(d) ensuring that records contain sufficient information to allow another chiropractor to continue the management of the patient and to facilitate continuity of chiropractic care.

1. The Guidelines were in evidence.[1276] They make detailed provision in relation to record keeping by chiropractors. The Guidelines are expressed in terms of the 'minimum requirements for clinical records'.[1277]
2. The general principles established by the Guidelines are as follows:

1. Clinical records can be kept in either paper or electronic format. Any electronic format should be the equivalent of any paper format and should be able to be printed. 2. Each patient should have an individual health record containing all the health information (radiographs excepted) held about them.

1. A chiropractic clinical record should be made at the time of the consultation or as soon thereafter as practicable or as soon as information (such as test results) becomes available. It must be an accurate and contemporary reflection of all consultations or interactions. If the date the record is made is different to the date of the consultation, the date the record is made and the time and date of the consultation must be noted.

1. Entries on a clinical record must be made in chronological order. 2. Chiropractic clinical records must be legible and understandable and of such a quality that another chiropractor could read and reasonably understand the terminology and abbreviations used and, from the information provided, be equipped to manage the care of the patient ... 3. If documents are scanned to the record, such as external reports, the scanning needs to be undertaken in a way that retained the legibility of the original document. 4. Chiropractic clinical records must be able to be retrieved promptly when required. 5. Chiropractic clinical records must be stored securely and safeguarded against loss or damage, including a process for secure transmission and a backup of electronic records. 6. All comments in the clinical record should be clinically relevant, respectful of the patient and be couched in appropriate clinical, objective language. 7. Chiropractors should be familiar with, and adhere to the requirements in the Board's Code of Conduct for Chiropractors that relate to record keeping. 8. Corrections can be made to a clinical record either at or after the time of original entry. The correction must be initialled, dated and tracked by the practitioner and the original entry must still be visible or digitally traceable.

1. Clause 3 of the Guidelines provides as follows:

The following information forms part of the clinical record and is to be recorded, at the initial presentation about that consultation:

1. identifying details of the patient ...
2. contact details ...

1. examinations and investigations conducted and relevant clinical findings
2. relevant diagnosis(es)/clinical impressions / working diagnosis(es), therapeutic trials or management / care plans
3. current health history ...
4. any contraindications or health alerts
5. relevant family history
6. relevant social and lifestyle history including cultural background (where clinically relevant)
7. name of the consulting practitioner.

1. Clause 4 of the Guidelines relevantly provides:
   1. Information to be recorded at a subsequent consultation or any consultation where care or advice is provided

For each presentation, clear documentation of information relevant to that consultation including the following clinical details:

1. date of the consultation
2. any change in consulting practitioner

1. name of the person providing information if not the patient eg parent, guardian

1. reason for care / consultation
2. relevant subjective information including response to any treatment, including that provided by other practitioners;
3. relevant objective information about any examination or investigation conducted and relevant clinical findings
4. the documentation of any offer of a chaperone to patients or when any such request is made by a patient
5. details of any informed consent (see Code of Conduct for Chiropractors section 3.5)
6. when there are changes to any previous consent ...
7. changes to a documented working diagnosis or therapeutic plan

1. procedures conducted, techniques used and advice / instructions given

1. items prescribed, administered or supplied for the patient
2. any referrals, letters, correspondence, clinical records, reports or any relevant communications regarding the patient
3. any unusual sequelae of treatment or changes in contra-indications or health alerts
4. any relevant diagnostic data, including accompanying reports
5. setting and context ...
6. details of anyone contributing to the chiropractic care and record.

1. We did not understand there to be any dispute that the provisions of the Code and the Guidelines relied upon by the Board, in relation to the preparation and content of clinical notes, identify the standards of knowledge, skill or judgment, or the exercise of care, which are reasonably expected of chiropractors with a level of training or experience equivalent to that of Dr Ebtash, and we find that to be the case.

In the preparation and content of the Notes, was Dr Ebtash's knowledge, skill or judgment, or his exercise of care, below the standard reasonably expected of a practitioner of an equivalent level of training or experience?

1. While Dr Ebtash admitted the allegations in paragraphs 7.1 and 7.2 of the Application, it is necessary to briefly discuss the nature of the unsatisfactory professional performance which is admitted, and to consider some examples, from the evidence, of the deficiencies in the preparation and content of the Notes, so as to permit a proper assessment of the extent to which Dr Ebtash's knowledge, skill or judgment, or exercise of care, was a departure from the standard of care reasonably expected of a practitioner of equivalent training or experience in the circumstances.
2. Dr Crawford gave evidence as to his opinion of the implications of the requirements of the Code and the Guidelines for the content of clinical notes. Two examples will suffice to illustrate the import of his evidence. In respect of MT's treatment, Dr Crawford's evidence was that the Clinical Notes were not of the standard which one would expect of a chiropractor with an equivalent level of training or experience, for the following reasons:[1278]

It is unclear which notes are 'contemporaneous': the notes on [Assessment Notes] or the [Clinical Notes].

The clinical assessment (history and examination) as recorded is inadequate. While Dr Ebtash's Clinical Notes record some history details, there is no reference in the first part outlining, for example, that [MT] has "pain' ... in the low back, which elbow is involved, the cause of the various injuries reported (acute injuries or chronic injuries), etc. There is no detailed documentation of previous treatment that [MT] had received which is significant as she reports ... having 'had lots of experience of receiving physiotherapy and chiropractic treatments and am aware of their procedures and generally know what to expect'. A significant aspect of an appropriate clinical history related to pain presentations is the presence or otherwise of referral of pain. Low back pain is referred to on the [Assessment Notes] but is not listed on the Clinical Notes ... . There is no reference to any significant other past medical history or past or current use of medications.

The annotation 'consent acquired' appears after the recording of an adjustment for both the 'post ulnar' and 'adjusted lx'. One would reasonably expect, in contemporaneous clinical notes that consent would appear after a diagnosis and plan of management.

There is no indication how the (presumably) lumbar spine was adjusted, e.g. patient position, etc. which would usually be the case with chiropractic adjustments. It is unclear which psoas was 'released' and which hamstring was treated and how, for example, in the supine or prone position.

1. By way of further example, Dr Crawford explained the deficiencies in the Notes kept by Dr Ebtash in relation to KM as follows:[1279]

The Code emphasizes that maintaining clear, appropriate and accurate health records is essential for the continuing good care of patients. Further, keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings and determinations, investigations, information given to patients, medication and other management is expected.

The Guidelines ... outlines the National Board's expectations on the appropriate standards for clinical record keeping and address how chiropractors should maintain clinical records related to their practice.

From my review the documentation provided in the brief I do not consider that Dr Ebtash's record keeping is of an appropriate standard. There is no documentation of the clinical assessment for (at least) the presentation of dizziness, including history and objective or examination findings from which one could consider a differential diagnosis. As primary contact health care practitioners by training and registration, chiropractors, I believe, are responsible for and have a duty of care to clinically assess the presenting complaints of a patient. This includes taking an appropriate history and undertaking an appropriate physical examination. In this case it does not appear that Dr Ebtash did this - at least as far as the documentation provided for review. It appears that the diagnosis of BPPV was made by [KM's] medical practitioner. It is my opinion that a registered chiropractor who graduated in 2003 from the Royal Melbourne Institute of Technology (RMIT) has the requisite skills by training to make or at least confirm this diagnosis by undertaking the appropriate clinical assessment. This does not appear to have been done based on the records provided for review. This is irrespective of Dr Ebtash being requested to see [KM] by a colleague in the same clinic. Furthermore, there is no evidence provided of informed consent being given by [KM] to undertake treatment either spinal manipulation or adjustments, or the Epley manoeuvre.

Moreover, there is no documentation regarding consent to or treatment involving touching [KM's] breasts as alleged by [KM].

Dr Ebtash's clinical notes are not of the standard which one would expect of a chiropractor with an equivalent level of training or experience.

1. We accept Dr Crawford's evidence in relation to the Clinical Notes that Dr Ebtash made in relation to KM.
2. It was Dr Crawford's opinion that the Notes prepared by Dr Ebtash in relation to the female cast members were below the standard which would reasonably be expected of a chiropractor with equivalent training or experience.[1280] We accept that evidence.
3. Dr Crawford's opinion is entirely consistent with the views we formed as to the adequacy of the Assessment Notes and the Clinical Notes as accurate and contemporaneous records of Dr Ebtash's treatment. At [238] ­ [242], [405] - [416], and [862], we found that the Assessment Notes and Clinical Notes that Dr Ebtash made in relation to the female cast members could not be regarded as a contemporaneous, accurate, or comprehensive record of his treatment of the female cast members. By way of example, the Notes do not comprehensively record the history taken, the clinical findings and determinations, the investigations undertaken or the information given to the patients. The Notes therefore cannot be regarded as adequate records (as contemplated by paragraph 2.2(d) and 9.4(a) of the Code) and do not meet the minimum requirements for clinical records, as set out in the Guidelines (including cl 2(c), cl 4(d)-(f), (h) and (l) of the Guidelines).
4. The Assessment Notes made in relation to GR, SN or SS were in evidence. We do not propose to set them out here. It suffices to say that those Notes were similar in content to the Assessment Notes made in relation to the female cast members. There was no evidence that any Clinical Notes were made in relation to GR, SN or SS. As there was no evidence as to the content of the examination or treatment of those patients, it is not possible form any view as to whether the Notes in respect of GR, SN or SS reflected what occurred during those consultations. However, there was expert evidence in relation to the adequacy of those Assessment Notes in other respects, by comparison with the requirements of the Code and the Guidelines.
5. Dr Crawford noted that the Assessment Notes contained a brief note relating to SN's treatment on the Second Occasion. In Dr Crawford's view, those notes were:[1281]

[I]nadequate, and did not include details of clinical assessment, past medical history, current medications, etc, as would be expected of a chiropractor with an equivalent level of training or experience. There is no reference to informed consent. The side of the ITB, hip and SIJ involvement is not listed which is a significant oversight.

Thus, with regard to [SN], Dr Ebtash's clinical notes were not of the standard which one would expect of a chiropractor with an equivalent level of training or experience.

1. In relation to GR, Dr Crawford noted that there was a brief note regarding GR on the Assessment Notes. In Dr Crawford's opinion, those notes were:[1282]

[I]nadequate and do not include details of clinical assessment, past medical history, current medications, etc., as would be expected of a chiropractor with an equivalent level of training or experience. It is unclear if treatment [was] provided but ... it appears that GR requested an adjustment of lumbar and SIJ [sacro iliac joints].

1. In so far as SS was concerned, Dr Crawford noted that there was a brief note relating to him on the Assessment Notes. In Dr Crawford's opinion, those notes were:[1283]

[I]nadequate and do not include details of clinical assessment, past medical history, current medications, etc,, as would be expected of a chiropractor with an equivalent level of training or experience. It appears that consent was obtained but it is unclear what was discussed as part of the consent process.

1. We accept Dr Crawford's unchallenged evidence in relation to the Notes prepared by Dr Ebtash in relation to GR, SN and SS.
2. We are satisfied, and we find, that the Board has established that in the preparation and content of the Notes made in relation to the complainants, and in relation to the Notes Dr Ebtash made in relation to GR, SN and SS, Dr Ebtash's knowledge, skill or judgment, fell below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.

1. We will hear from the parties as to the terms of the orders which should be made to reflect these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)

CITATION : CHIROPRACTIC BOARD OF AUSTRALIA and EBTASH [2020] WASAT 86 (S)

Penalty - Whether cancellation of practitioner's registration is warranted - Length of period of disqualification from applying for re-registration - Whether prohibition on providing health service to women is open and warranted - Whether reprimand of practitioner is necessary

Costs - Whether costs claimed reasonable and necessary

Health Practitioner Regulation National Law Bill 2009 (WA)

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 5, s 6, s 7, s 195, s 196, Sch 7, cl 7, cl 8(2)

Interpretation Act 1984 (WA), s 17

State Administrative Tribunal Act 2004 (WA), s 9, s 87(2)

Chen v Healthcare Complaints Commission [2017] NSWCA 186; (2017) 95 NSWLR 334

Chiropractic Board of Australia and Ebtash [2020] WASAT 86

Dental Board of Australia and Dhillon [No 2] [2017] WASAT 20

Health Care Complaints Commission v Duggan (No. 2) [2016] NSWCATOD 30

Health Care Complaints Commission v King [2011] NSWMT 5

Health Care Complaints Commission v Ng [2015] NSWCATOD 85

Health Care Complaints Commission v Safi (No. 2) [2017] NSWCATOD 102

Health Care Complaints Commission v Skandaliaris (No. 2) [2019] NSWCATOD 110

Health Complaints Commission v Tan [2016] NSWCATOD 115

Lee v Health Care Complaints Commission [2012] NSWCA 80

Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)

Medical Board of Australia and Costley [2013] WASAT 2

Medical Board of Australia and McCarthy [2020] WASAT 12 (S)

Medical Board of Australia and Singh [2017] WASAT 33 (S)

Medical Board of Australia and Veettill [2015] WASAT 124 (S)

Medical Board of Australia v Cukier [2017] VCAT 109

Medical Board of Australia v Moodley [2014] QCAT 476

Mustac v Medical Board of Western Australia [2004] WASCA 156

Panegyres v Medical Board of Australia [2020] WASCA 58

Panegyres v Medical Board of Australia [2020] WASCA 58 (S)

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302

Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24

Singh v Medical Board of Australia [2019] WASCA 51

Smith v Papamihail (1998) 88 FCR 80

1. In Chiropractic Board of Australia and Ebtash[1284] (Reasons) we found that Dr Ebtash had engaged in conduct that constitutes professional misconduct and unsatisfactory professional performance (Conduct), for the purposes of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law). These reasons should be read in conjunction with the Reasons. The same abbreviations will be used.
2. In Orders we made on 4 August 2020, we set out our findings as to the Conduct. In respect of five female patients ­ KM, JL, LN, MT and MS - we found that Dr Ebtash had behaved in a way that constituted professional misconduct pursuant to s 196(1)(b)(iii) of the National Law. In relation to KM, JL, LN and MS, we found that Dr Ebtash had engaged in one or more acts which involved touching the patient, and in the case of MT, pulling her pants down to expose her mons pubis, for which there was no clinical justification, for which Dr Ebtash did not obtain consent, which was of a sexual nature, and which was prohibited by s 9.2(a) of the Code of Conduct for Chiropractors (Code). We found that each of those acts, considered together, amounted to conduct that was substantially below the standard which was reasonably expected of a registered chiropractor of an equivalent level of training or experience.
3. We also found that Dr Ebtash had behaved in a way that constituted unsatisfactory professional performance pursuant to s 196(1)(b)(i) of the National Law. That overall finding depended on a number of separate findings. We found that in relation to JL, LN, MT and MS, Dr Ebtash's clinical knowledge, skills and judgment were below the standard reasonably expected of a practitioner of equivalent training or experience, in that he failed to appropriately assess each patient by undertaking an appropriate physical examination, failed to formulate a reasonable management plan for their treatment, and failed to engage in effective communication with each patient, contrary to the requirements of ss 2.1(a) and (d), and 3.3(d), (e) and (g), of the Code. We found that in relation to MS, who had reported symptoms of tingling which might have indicated the existence of a neurological issue, Dr Ebtash also failed to conduct an appropriate examination of the kind contemplated by s 2.1(a) of the Code. We found that in relation to KM, Dr Ebtash failed to appropriately assess her, by undertaking an examination to confirm her reported diagnosis of vertigo and the basis or cause for that condition, and to formulate a reasonable management plan for treating her vertigo, as contemplated by s 2.1(a) and (d) of the Code. Finally, we found that in relation to eight patients ­ KM, JL, LN, MT, MS, SN, GR and SS - Dr Ebtash's clinical notes were below the standard reasonably expected of a chiropractor of an equivalent level of training or experience, as contemplated by ss 2.2(e), 9.4(a) and 9.4(d) of the Code and the Board's 'Guidelines Clinical Record Keeping for Chiropractors'.
4. In these reasons we deal with the question of the penalty which should be imposed on Dr Ebtash in light of those findings, and with the question of costs.
5. For the reasons set out below, we have concluded that a global penalty should be imposed in respect of the Conduct, namely that Dr Ebtash's registration as a chiropractor should be cancelled, and he will be disqualified from seeking re-registration for four years and six months, which period takes into account the fact that Dr Ebtash was suspended by the Board, following our Orders, from 16 September 2020. Dr Ebtash will also be prohibited from providing any health service which involves consultation with, or touching, any female patient while he is unregistered. We will not make an order that Dr Ebtash be reprimanded, although both parties were of the view that such an order should be made. There will also be an order that Dr Ebtash pay the Board's costs fixed in the sum of $178,500.00.

Principles in relation to the imposition of a penalty under the National Law

1. The Tribunal's powers in relation to penalty are set out, relevantly, in s 196(2) and s 196(4) of the National Law. Under s 196(2), if the Tribunal makes a decision that the practitioner has behaved in a way that constitutes unsatisfactory professional performance or professional misconduct (as it has in this case), it may decide to do one or more of the following ­

(b) impose a condition on the practitioner's registration, including, for example ­

(i) a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

(ii) a condition requiring the practitioner to undertake a specified period of supervised practice; or

(iii) a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner's practice; or

(iv) a condition requiring the practitioner to manage the practitioner's practice in a specified way; or

(v) a condition requiring the practitioner to report to a specified person at specified times about the practitioner's practice; or

(vi) a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons;

(c) require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;

(d) suspend the practitioner's registration for a specified period;

1. Furthermore, under s 196(4), if the Tribunal decides to cancel a person's registration the Tribunal may also decide to ­

(a) disqualify the person from applying for registration as a registered health practitioner for a specified period; or

(b) prohibit the person, either permanently or for a stated period, from ­

(i) providing any health service or a specified health service; or

1. The Tribunal may make any costs orders that it considers appropriate pursuant to s 195 of the National Law and s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).[1285]
2. The general legal principles which apply to penalty in vocational disciplinary matters are well settled. The Tribunal's discussion of those principles, in the context of proceedings against a medical practitioner, in Medical Board of Australia and Singh[1286] was recently approved by the Court of Appeal in Singh v Medical Board of Australia.[1287] Those principles apply equally in the case of chiropractors who are also subject to the National Law. The following principles bear repetition.
3. First, the purpose of disciplinary proceedings is to protect the public and not to punish the practitioner, in the sense in which punishment is imposed under the criminal law. The public is protected by the making of orders which will prevent a person who is unfit to practise from practising, or by making orders which secure the maintenance of proper professional standards.[1288]
4. Secondly, the protection of the public has various dimensions. They may include the immediate need to protect the public from the practitioner's conduct, the need to bring home to the practitioner the seriousness of their conduct, and the need to deter the practitioner from future breaches. The protection of the public may also require an order which emphasises to other members of the profession, or which reassures the public, that a certain type of conduct is not acceptable professional conduct. An order of that kind may thus be regarded as akin to 'general deterrence'.[1289]
5. Thirdly, as the purpose of disciplinary proceedings is the protection of the public, the impact that an appropriate penalty will have on a practitioner guilty of misconduct, and any personal hardship to the practitioner, are necessarily secondary considerations.[1290]
6. Fourthly, of particular significance in any given case will be whether the findings of misconduct reveal that the practitioner is unfit to practise their profession. Where a medical practitioner is 'permanently or indefinitely unfit to practise, cancellation of registration rather than suspension will (at least ordinarily) be the appropriate response'.[1291] Permanent or indefinite unfitness to practice (at least ordinarily) will be a sufficient basis for cancelling the practitioner's registration, but it is not a necessary condition for cancellation. That is because the National Law does not elevate any consideration relevant to the power to cancel registration to the status of a precondition to that power.[1292]
7. However, the Tribunal also has the power, under s 196(4)(a) of the National Law, to make an order specifying a period within which a person is disqualified from applying for registration as a registered health practitioner. That power is to be exercised for the protective purposes that apply to the disciplinary proceeding generally. That being the case, all of the various aspects of the protection of the public (discussed at [11] above) will be relevant to whether the Tribunal orders a period of disqualification, and, if so, what that period[1293]uld be.1293
8. Fixing a period within which re-registration may not be sought indicates the minimum period within which the Tribunal considers the practitioner should not be able to practise his or her profession. But it also permits the possibility that an application for re-registration after that period will be considered. In determining what order to make, the Tribunal will consider all aspects of the possible orders available to it.[1294] It is a matter for the Tribunal to determine the weight to be given to the various considerations relevant to the exercise of the power to impose a disqualification period.[1295]
9. The Tribunal is able to impose a 'global' penalty in the alternative to individual penalties for each instance of unprofessional conduct. That may be appropriate in circumstances where the facts of the case are inextricably woven together or where the penalty for a less serious transgression may be subsumed by the penalty for a more serious transgression.[1296]
10. The appropriate sanction is to be considered at the time of the imposition of the sanction, and not by reference to the date of the unprofessional acts.[1297]
11. In Medical Board of Australia v Singh,[1298] the Tribunal identified twelve possible considerations in determining an appropriate penalty. Those considerations are not exhaustive. They provide a useful framework for considering the circumstances of this case relevant to penalty, and the parties proceeded on that basis. We will do likewise.
12. All of these matters are to be considered in the context of the Tribunal's findings as to liability; that is, its findings as to the seriousness of the practitioner's conduct and the practitioner's explanation for it.[1299]

1. The Board contended that the penalties which should be imposed were that Dr Ebtash be reprimanded; that his registration as a chiropractor be cancelled and that he be disqualified from applying for registration as a health practitioner for a period of five to eight years from the date of the Tribunal's final orders; and that he be prohibited from providing any health service which involves consultation with or touching any female patient, until he is returned to the register as a health practitioner under the National Law. The Board also sought an order that Dr Ebtash pay the Board's costs of the proceedings, to be assessed if not agreed.
2. Dr Ebtash has appealed the Orders made on the basis of our findings as to the Conduct. Dr Ebtash submitted that if those orders stand, the penalties which would be warranted in relation to the Conduct were a reprimand; cancellation of his registration and disqualification from applying for re-registration for a period of between one to three years; and that he be prohibited from providing any health service, which involves consultation with or touching any female patient, until he is returned to the register as a health practitioner under the National Law. Dr Ebtash did not resist an order that he pay the Board's costs of the proceedings, to be assessed if not agreed.[1300]
3. The primary issue in contention was thus the length of time for which Dr Ebtash should be disqualified from applying for re-registration as a health practitioner. His submission was that:

orders imposing a reprimand, cancellation of registration and disqualification from reapplying for registration as a health practitioner for 12 months, together with an order for payment of the [Board's] costs of the proceedings, are sufficiently adequate to reflect the findings of the Tribunal, to protect the public, to ensure deterrence and ultimately maintain public confidence in the profession.[1301]

1. Dr Ebtash also submitted that the length of disqualification which the Board submitted would be appropriate was manifestly excessive and inconsistent with relevant determinations in comparable authorities.[1302]

Findings in relation to factors relevant to penalty

1. Counsel for the Board referred to ten matters, arising from the findings of the Tribunal, that they submitted were apposite to the assessment of the proper penalty in this case. First, they submitted that it was open to the Tribunal to infer that Dr Ebtash 'took pleasure from, or was gratified by, the sexual misconduct in which he engaged' and that in the face of Dr Ebtash's outright denials, there was no alternative explanation for that part of the Conduct.[1303]
2. Counsel for Dr Ebtash submitted that there was no basis for any inference that Dr Ebtash took pleasure from, or was gratified by, the acts contributing to the finding of professional misconduct. She noted that no such finding was made by the Tribunal.[1304] Furthermore, counsel for Dr Ebtash noted that the Tribunal expressly rejected the Board's contention that Dr Ebtash had offered free chiropractic treatments because they would provide him with an opportunity to touch female cast members with a sexual intent.[1305] Furthermore she submitted that any such inference would not materially impact on the decision for the Tribunal as to the penalty to be imposed.[1306]
3. We did not make any finding in the course of the Reasons that Dr Ebtash derived sexual gratification from his touching of KM, JL, LN, MT and MS. We rejected the Board's contention at the hearing that Dr Ebtash had offered free chiropractic treatments to the cast members because they would provide him with an opportunity to touch female cast members with a sexual intent.[1307] However, we did find that the touching of the complainants' bodies was of a sexual nature.[1308] There was no innocent explanation offered, or able to be inferred, in respect of the acts which constituted the professional misconduct. From that perspective, the absence of a finding that Dr Ebtash's conduct in that respect was for his own sexual gratification makes little difference for the purposes of the penalty which should be imposed.
4. Secondly, counsel for the Board submitted that Dr Ebtash's conduct in relation to JL, LN, MS and MT was blatent and brazen, and carried out in circumstances that created plausible deniability and instilled doubt in their minds.[1309] We accepted that submission in the course of the Reasons,[1310] and it is clearly relevant in the determination of penalty.
5. Thirdly, counsel for the Board submitted that apart from the Conduct in relation to MT, all instances of Dr Ebtash's professional misconduct were serious, in that they involved the touching of intimate parts of the complainant's body, irrespective of the fact that the touching was often very brief.[1311] We accept that submission. In the course of the Reasons,[1312] we found that the instance or instances of conduct, in which Dr Ebtash engaged with respect to each of the five complainants, was conduct which, by virtue of its sexual nature, constituted a very serious departure from the standard set out in s 9.2(a) of the Code.
6. Fourthly, counsel for the Board submitted that the professional misconduct involved serious breaches of trust and of Dr Ebtash's professional responsibilities.[1313] Clearly that is so. Each of the instances of professional misconduct involved very serious breaches of the trust which each complainant had placed in Dr Ebtash.
7. Fifthly, counsel for the Board submitted that the professional misconduct had immediate adverse effects on each of the complainants (as their evidence at the hearing disclosed) and had caused them ongoing grief, as was evident from impact statements filed by KM, JL and LN.[1314] We accept that submission. KM, JL and LN each provided an impact statement in which they recounted the significant psychological impact of Dr Ebtash's conduct on their day­to­day lives.
8. KM explained how 'one moment in time [in her treatment with Dr Ebtash] changed me'. KM did not tell anyone, including her husband and adult daughters, what had occurred. She explained how her decision not to make an immediate complaint caused her to doubt her ability, and as a result she lost her self-worth and her confidence. She felt shame that she had not reported Dr Ebtash's conduct, and 'could not get past the overriding disappointment in myself and how this one incident had changed my life, my career. I became angry and extremely anxious'. KM recounted how, as a result, she had not pursued opportunities in her career, and had withdrawn from positions involving victim management, which were a 'huge step back to where I was initially'.
9. JL stated that she gets anxiety, along with anxiety attacks and depression. She explained that 'when I remember the incident on any given day, I often suffer from insomnia that evening, the incident replays in my mind in a loop and I stay awake. Sometimes during these flashbacks, I may suffer an anxiety attack'. She recounted that performing a particular part of the Show (which featured in a video played during the hearing before the Tribunal) triggers a wave of anxiety because 'it is a constant reminder of the incident'. JL also explained that she 'feels like no one understands and that I am alone'. She has days when she is upset and depressed and cannot get out of bed. JL also explained that the incident had adversely affected her sexual relationships. Further, since the incident with Dr Ebtash she cannot watch or read movies, television, books or news reports that contain sexual assaults or sexual violence.
10. LN stated that 'the conduct that happened in that room that day, I will never forget; the look of the room, the smell, the moment that Dr Ebtash approached me and violated me, I will never forget'. She explained that the effect of Dr Ebtash's conduct had been 'traumatic. I have not been the same since'. LN also recounted how she had 'dealt with a lot of shame throughout this traumatic experience. I have found it so difficult to talk about with my family. ... I have a lot of shame and regret from that day' because she did not speak up and stop the conduct 'in the moment'.
11. KM also recounted that appearing at the Tribunal to give her evidence 'was one of the hardest things I have done. I have sat in a court and given evidence many times. To sit there and speak about what occurred to me was extremely difficult'.
12. In addition, JL and LN recounted how Dr Ebtash's conduct had caused them to lose trust in other health professionals. JL stated that she is no longer able to attend medical appointments alone, and has anxiety about seeing new medical practitioners. She now makes 'all efforts to avoid seeing any new physios or chiropractors due to my anxiety'.
13. LN also reported that 'I have now developed trust issues not only with other health professionals working in and out of my field but especially males'. She stated that it had taken her over a year to even consider going to see a chiropractor, physiotherapist or massage therapist, even though she had been injured at times.
14. Sixthly, counsel for the Board submitted that the acts which collectively amounted to professional misconduct were acts which were repeated, and that the conduct could not be regarded as 'an isolated lapse or aberration'.[1315] Counsel for Dr Ebtash submitted that the Tribunal's finding reflected an isolated incident in that the complaints arose from a single point in time, with factually interrelated matters and pertaining to members of the cast of the same show.[1316]
15. We are unable to accept the latter submission. The various acts committed against JL, LN, MT and MS were committed on two occasions, a few days apart. Dr Ebtash's conduct in relation to KM occurred about 12 months before that. This was not a case of an isolated incident involving a single patient, but rather multiple incidents involving five patients.
16. Seventhly, counsel for the Board submitted that in response to emails sent to Dr Ebtash by CA, Dr Ebtash did not accept responsibility for his actions, but rather sent responses designed to avoid any further complaint by the complainants.[1317] We accept that submission, for the reasons set out at [858] ­ [861] of the Reasons.
17. Eighthly, counsel for the Board submitted that Dr Ebtash showed no remorse or empathy for his victims, and by virtue of his denial of responsibility, the complainants had had to engage in the traumatic experience of giving evidence. Counsel for the Board submitted that the absence of remorse constituted the absence of a mitigating factor.[1318] That is so. As we have noted, Dr Ebtash has commenced an appeal against the Orders. He continues to maintain his innocence. Consequently, he does not receive any mitigating benefit from an expression of remorse. As we have noted, the fact that Dr Ebtash continues to deny the Conduct means that the Tribunal does not have an explanation from Dr Ebtash as to the reason why the acts of professional misconduct occurred, and certainly no explanation which might have a mitigatory effect.
18. Ninthly, counsel for the Board submitted that Dr Ebtash was willing to give evidence which was not truthful, to prepare notes for self-serving purposes (namely to provide evidence capable of supporting his version of events in case there was a complaint or dispute about what had occurred) and to be untruthful in relation to the extent of his communications with Mr Maddison. They submitted that this underscored the lengths to which Dr Ebtash was willing to go to escape punishment for his actions; raised concerns about his honesty; and illustrated the need for personal deterrence.[1319] We accept those submissions.
19. Finally, counsel for the Board submitted that while Dr Ebtash was of prior good character, that did not override the responsibility of the Tribunal to impose a penalty that discharged its function of protecting the community and reinforcing professional standards.[1320]
20. Counsel for Dr Ebtash emphasised that, apart from the findings in this case, Dr Ebtash had otherwise been of good character.[1321] She noted that Dr Ebtash had been a health professional for 17 years and that the many references he submitted, from patients and colleagues, attested to his character, his qualities and professionalism.[1322]
21. Dr Ebtash submitted 45 character references from patients, work colleagues and present or former employees, all of whom spoke in glowing terms about his ability and professionalism as a chiropractor. However, only 14 of those references indicated that they were aware of these proceedings, and even of those 14, none of them stated what findings had been made by the Tribunal in relation to Dr Ebtash's conduct. Only nine claimed to have knowledge of the findings made against him. The remaining five references referred in vague terms to Dr Ebtash's 'recent case that is being investigated', to the 'allegations [which] were initially raised' and his explanation for why a chaperone was required to be present, to the 'fact that he is going through what he is currently going through', and to the 'difficulties faced by [Dr Ebtash] at this time'.
22. We have taken these references into account. To the extent that they do not refer to the findings made against Dr Ebtash, they nevertheless indicate that prior to this Conduct, he was a person of good character, and a chiropractor who was highly regarded by his patients. In so far as they acknowledge the findings made against him, they provide some support for the conclusion that the Conduct was quite out of character. While that provides some support for Dr Ebtash's prospects for rehabilitation, the force of that mitigating factor must be balanced against the fact that the Conduct, in so far as it was constituted by acts of a sexual nature, occurred on more than one occasion and involved five patients.
23. We turn, next, to the factors considered by the Tribunal in Singh.

(a) Is there a need to protect the public against further misconduct by the practitioner (personal deterrence)?

1. Counsel for the Board submitted that the trust placed in chiropractors was analogous to that placed in medical practitioners because of the necessity for the patient to come into close physical contact with the practitioner and to disclose highly personal information.[1323] They submitted that for a health practitioner to breach sexual boundaries with a patient was always unethical and usually harmful for many reasons, including: the imbalance of power between the practitioner and patient; the trust placed by the patient in their health practitioner and their right to expect that treatment will only be undertaken in their best interests; the safety of the patient which will be jeopardised if patients are subject to sexual behaviour which may result in emotional or physical harm; the quality of care the health practitioner provides the patients may be undermined if the practitioner loses their independence and objectivity as a result of breaching sexual boundaries; and that such a breach undermines public confidence in health professionals and may deter members of the public from seeking medical care, permitting intimate examinations or sharing personal information, because they fear potential abuse.[1324]
2. Further, counsel for the Board submitted that the Tribunal should impose a penalty that brought home to Dr Ebtash the serious consequences of his conduct, to deter him from engaging in similar conduct in the future, if he returns to practice, and that this was 'especially the case given the lack of insight implicit in [his] denial of the allegations'.[1325]
3. Counsel for the Board submitted that the protection of the public also required an order which prevented Dr Ebtash from providing any health service which involved consultation with or touching any female patient until he was re-registered under the National Law.[1326]
4. Dr Ebtash accepts that the Tribunal must ensure that a penalty is imposed which brings home the seriousness of the findings which have been made, and thus concedes that the findings lead to orders which involve and include cancellation of registration and a disqualification period.[1327]
5. Dr Ebtash accepts that the public is entitled to expect that their health practitioner will not engage in conduct, which is designed to, or will, cause them harm in any form.[1328] However, counsel for Dr Ebtash submitted that the penalty for which Dr Ebtash contends would adequately protect the public.[1329]
6. In our view, having regard to Dr Ebtash's willingness to repeat the touching of patients, of a sexual nature, without any clinical justification, some 12 months after he saw KM, and the fact that he was willing to engage in acts of a sexual nature against JL, LN, MT and MS, on two occasions, supports the conclusion that a substantial period of disqualification is required for personal deterrence in his case.

(b) Is there a need to protect the public through general deterrence of other practitioners from similar conduct?

1. Counsel for the Board submitted that the penalty imposed should convey to the chiropractic profession and all health practitioners that the professional misconduct in which Dr Ebtash engaged was incompatible with membership of a health profession.[1330] They submitted that 'chiropractors (and all health practitioners) should be made aware that sexual misconduct perpetrated on patients will result in the revocation of their registration, a lengthy period of disqualification from applying for registration, and prohibition from providing any health service involving the relevant gender while they are unregistered'.[1331]
2. In contrast, counsel for Dr Ebtash submitted that a period of disqualification of 12 months would sufficiently provide the requisite general deterrence to other practitioners.[1332] We are unable to accept that submission. Other chiropractors who may be tempted to betray the trust placed in them by their patients must be left in no doubt that such abhorrent behaviour as the acts constituting professional misconduct in this case will attract a substantial period of disqualification.

(c) Is there a need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions (even if there is no need to deter the practitioner from repeating the Conduct)?

1. Counsel for the Board submitted that Dr Ebtash's conduct and its repetition was 'so serious that nothing short of cancellation of his registration and an order preventing him from applying for registration for a considerable period could achieve that objective'.[1333] Further, they submitted that Dr Ebtash's conduct had brought the profession into grave disrepute, and its standing 'must be restored by the imposition of a penalty which is sufficiently serious to indicate that those who transgress in this way, will not be permitted to remain as members of the profession'.[1334]
2. Counsel for Dr Ebtash submitted that the conduct found by the Tribunal to have occurred could be adequately denounced, and reinforcement of the high standards of the profession could occur, by virtue of a period of disqualification of 12 months, in conjunction with the other orders Dr Ebtash accepts should be made.[1335] We are unable to accept that submission. The impact statements provided by JL and LN clearly illustrate the damage to the standing of the chiropractic profession caused by Dr Ebtash's conduct. It is important that members of the community are assured that practitioners who behave improperly will be the subject of penalties which will reinforce to practitioners that the highest standards of behaviour are expected of them.

(d) In cases involving misleading conduct, including dishonesty, can the public and fellow practitioners place reliance on the word of the practitioner?

1. While counsel for Dr Ebtash acknowledged that in its findings, the Tribunal preferred the evidence of the complainants to Dr Ebtash's own evidence denying the acts alleged, she nevertheless pointed to the character references supplied, and noted that apart from the Tribunal's findings as to the Conduct, there was no evidence of dishonesty, bad character or inappropriate practice or error by him in the past.[1336]
2. Counsel for the Board submitted that the Tribunal had expressed reservations concerning the truthfulness of Dr Ebtash's evidence, to the extent that he denied the complainants' allegations.[1337] Further, they submitted that the manner in which Dr Ebtash perpetrated that part of the Conduct which involved professional misconduct was 'inherently deceitful, in that it was cloaked in the pretence of clinical treatment in order to disguise its true nature'.[1338] Counsel for the Board submitted that the Tribunal's findings as to Dr Ebtash's credibility (including in relation to his preparation of clinical notes in a manner designed to protect his own interests) bore upon the extent to which the public and his fellow practitioners could place reliance on his word. The fact that the public and fellow practitioners could not rely on Dr Ebtash's word weighed in favour of a finding that he was unfit to practise.[1339]
3. While this was not a case where the nature of the Conduct was inherently dishonest, the circumstances in which the professional misconduct occurred, the Tribunal's findings in relation to Dr Ebtash's honesty as a witness, and his willingness to prepare self-serving clinical notes, are liable to lead fellow practitioners to doubt whether Dr Etash's word can be relied upon.

(e) Has the practitioner breached any Act, Regulations, Guidelines or Code of Conduct issued by the relevant professional body, and if so, did the practitioner do so knowingly?

1. Counsel for the Board noted that the Conduct involved breaches of various provisions of the Code and the Board's 'Guidelines Clinical Record Keeping for Chiropractors'.
2. In so far as the instances of professional misconduct were concerned, the Tribunal found that that conduct constituted a very serious departure from the standard set out in s 9.2(a) of the Code. Counsel for the Board submitted that Dr Ebtash must have been aware that his conduct was a serious breach of professional standards.[1340]
3. Dr Ebtash accepts that the Conduct is a very serious departure from the Code.[1341]

(f) Did the practitioner's conduct demonstrate incompetence and, if so, to what level?

1. Counsel for the Board submitted that the acts of professional misconduct included sexual misconduct on multiple occasions and could not be said to have been the result of a lack of professional knowledge or skill.[1342] That is clearly correct.
2. However, they submitted that the instances of unsatisfactory professional performance, especially Dr Ebtash's failure to conduct an examination of MS when she reported tingling, reflected incompetence.[1343] In respect of Dr Ebtash's failure to examine MS following her report of tingling, counsel for the Board noted that the Tribunal had found this to be an instance of a more serious failure by Dr Ebtash to comply with the applicable standards.[1344]
3. Counsel for Dr Ebtash submitted that the Conduct did not demonstrate incompetence, and that a finding of that kind could not be made out in circumstances where, judged against the entirety of his entire professional career, the Conduct reflected an isolated incident from a single point in time.[1345]
4. We are satisfied that the multiple instances of conduct amounting to unsatisfactory professional performance do raise doubts about Dr Ebtash's competence in those areas of clinical practice.

(g) Was the Conduct isolated, such that the Tribunal can be satisfied of the practitioner's worthiness or reliability for the future?

1. Dr Ebtash contends that the Conduct was an isolated incident in an otherwise unblemished and successful career.[1346]
2. With respect, that submission is without merit. As counsel for the Board submitted, while Dr Ebtash's conduct with members of the cast was isolated in a temporal sense, it involved multiple instances of conduct with JL, LN, MT and MS during that short period. Further, the instance of misconduct in relation to KM occurred on an earlier occasion 12 months before Dr Ebtash's contact with the cast.[1347] Counsel for the Board submitted that the various instances of unsatisfactory professional performance were not isolated, given the number of occasions on which Dr Ebtash engaged in conduct below the requisite standard.[1348]
3. Counsel for the Board also submitted that there had been 'the potential for repetition of the sexual misconduct if CA had not terminated the agreement with [Dr Ebtash]'.[1349] With respect, that submission is a bridge too far. By the time CA wrote to Dr Ebtash, the female cast members had begun to learn of Dr Ebtash's conduct towards each of them, and in those circumstances, we are not persuaded that they would have been willing to accept further treatment from Dr Ebtash and so to risk further incidents of misconduct on his part.

1. Dr Ebtash does not have any prior findings of professional misconduct or unsatisfactory professional performance.
2. Counsel for Dr Ebtash submitted that considerable weight should be placed on the fact that Dr Ebtash had no relevant prior disciplinary history and had had an unblemished career as a chiropractor.[1350]
3. We accept that Dr Ebtash's prior good character is a mitigating factor. However, its significance is not sufficient to outweigh the need for a substantial period of disqualification to protect the public from any risk of repetition of his conduct, and to signal to the chiropractic profession that such conduct is completely unacceptable.

(i) Does the practitioner understand the error of his or her ways, and has he or she shown remorse or insight (or if not, does the practitioner thereby demonstrate that he or she poses a risk to the community)?

1. Counsel for the Board submitted that the onus was on Dr Ebtash to prove his insight into his conduct.[1351] They submitted that Dr Ebtash's denial of his conduct was incompatible with a finding of insight and remorse.[1352] The Board accepts that Dr Ebtash's admissions in relation to his unsatisfactory professional performance may reflect insight in relation to those allegations.[1353]
2. Counsel for Dr Ebtash acknowledged that by virtue of Dr Ebtash's ongoing denial of the Conduct, he was unable to demonstrate any remorse in relation to the acts upon which the Tribunal's finding of professional misconduct was based.
3. However, counsel for Dr Ebtash submitted that there was evidence that Dr Ebtash 'accepts both the significance and seriousness of the findings made against him, and has insight into the consequences including what it means for community trust and the reputation of the profession'.[1354] The evidence to which counsel referred was twofold. First, following the Tribunal's Orders, Dr Ebtash wrote to the Board on 2 September 2020.[1355] In that letter, he stated that he regretted that 'recent events' (by which we assume he meant the Tribunal's findings as to the Conduct) had tarnished the reputation of the profession, and indicated that he was 'more than ever committed to ensure that I restore this image, as well as improving my performance to reflect my commitment to the public safety and trust'. He told the Board that he had 'used the pain of this event as a catalyst to elevate myself both as a practitioner and a person'. In that letter, Dr Ebtash also told the Board that he had been practising in the presence of a chaperone for the past four years (while the allegations against him had been under investigation and while the proceedings were underway) and that he had fully complied with the conditions on his registration. He also told the Board that he had undergone further training in Risk Management Training as well as in chiropractic techniques, that he had upgraded his clinic management system and improved his note taking process, and that he had introduced strict systems for patient privacy and obtaining patient consent.
4. Counsel for Dr Ebtash submitted that Dr Ebtash's regret at tarnishing the reputation of his profession should be given significant weight.[1356] We accept that it deserves some weight in mitigation, but when balanced against the absence of remorse or regret for his victims, the overall effect of that consideration is considerably diminished.
5. The second piece of evidence said to demonstrate Dr Ebtash's acceptance of the significance and seriousness of the findings against him was a letter to the Australian Health Practitioners Regulatory Authority (AHPRA) dated 15 September 2020, in which Dr Ebtash's solicitors accepted that the findings as to the Conduct were of an extremely serious nature.[1357] In that letter, however, they noted that Dr Ebtash had commenced an appeal against the Tribunal's decision, and sought the Board's indulgence to refrain from an immediate suspension, and instead to accept an undertaking from him not to engage in practice, with that undertaking to commence two weeks thereafter, in order to permit Dr Ebtash the opportunity to make arrangements for his practice and patients.
6. Two things may be noted about these letters. They do not contain any expression of remorse for that part of the Conduct which pertained to the 5 complainants - KM, JL, LN, MT and MS - or any regret or empathy for the harm that Dr Ebtash's actions may have caused the complainants. Secondly, the purpose of the letters was evident on the face of each of them: to seek an indulgence from the Board or AHPRA. In the case of Dr Ebtash's letter to the Board, its stated purpose was to implore the Board to permit Dr Ebtash to continue to practise as a chiropractor in the presence of a chaperone, so that he could continue to work, and to provide an income for his family. In the case of the letter from Dr Ebtash's solicitors to AHPRA, the letter set out the proposal for Dr Ebtash to provide an undertaking not to engage in practice, commencing two weeks later. Neither letter can therefore be seen as an expression of regret for the Conduct, or some of it, for its own sake, and divorced from those objectives.
7. Counsel for Dr Ebtash submitted that Dr Ebtash's insight was also demonstrated by his concessions as to penalty, and by his decision to proffer an undertaking not to practise.[1358] Counsel for Dr Ebtash submitted that after the Tribunal's decision was delivered, Dr Ebtash had taken it upon himself to improve several aspects of his practice, and that this was an indication that he had taken steps to safeguard the public from any deficiencies in his prior system of practice.[1359] We accept that submission. However, we rely on it as evidence of contrition only in relation to the findings of unsatisfactory professional performance.
8. Counsel for Dr Ebtash submitted that the evidence submitted by the complainants as to the impact of the Conduct on them, and the 'concept of causing distress and difficulties to patients by conduct found to have been committed by him, is troubling and contrary to [Dr Ebtash's] education, training and respect for patients and for the profession'.[1360] Counsel for Dr Ebtash sought to rely on the fact that upon first being advised of the complaints by the complainants, Dr Ebtash wrote to CA by email to express his deepest apologies 'if I have caused the female crew or other members of the cast some discomfort or pain'. As we explained in the Reasons at [852] ­ [861] we do not regard the apology in that email in the same light as suggested by counsel for Dr Ebtash.

(j) Does the practitioner have any special skills which it is desirable to make available to the public notwithstanding the findings as to the unprofessional acts?

1. Counsel for the Board submitted that Dr Ebtash did not currently possess any relevant special skills.[1361]
2. Counsel for Dr Ebtash submitted that the evidence demonstrated that he has been an asset to the chiropractic profession in Australia, having been involved in providing chiropractic services to sporting teams at the elite level, without remuneration, that he had been a lecturer, examiner and mentor in universities, that he had a demonstrated commitment to social responsibility in his community through support of charities, schools and community events, and that the evidence thus demonstrated that he was 'dedicated to his profession, the enhancement of its position and to supporting the next generation of chiropractors in Australia'.[1362]
3. While we accept that Dr Ebtash has experience in providing chiropractic treatment to athletes, we are not persuaded that Dr Ebtash's skills are so valuable to the community as to be capable of outweighing the other considerations that warrant the cancellation of his registration, disqualification on applying for re-registration, and a prohibition on his provision of any health services which involve a consultation with, or touching of, any female patient until he is re-registered.

(k) The practitioner's personal circumstances at the time of his or her conduct and at the time of imposing the penalty (although these are necessarily secondary to the protection of the public)

1. Counsel for Dr Ebtash submitted that on 16 September 2020, the Board resolved to take immediate action to suspend Dr Ebtash's registration indefinitely. She noted that prior to that action being taken, Dr Ebtash had offered to give an undertaking not to practise until further notice.[1363] We note that the offer of that undertaking was given, through Dr Ebtash's solicitors, the day before the Board suspended Dr Ebtash's registration, and that the undertaking offered was one which would commence a fortnight later. Counsel for Dr Ebtash submitted that the time for which Dr Ebtash will have been suspended by the time the Tribunal delivers its decision on penalty should be taken into account in determining the disqualification period.[1364] We accept that submission.
2. For completeness, we note that counsel for the Board drew to our attention that on 16 December 2016, chaperone and limitation on practice conditions had been imposed on Dr Ebtash as a condition of his registration. They submitted that immediate action of that kind was taken not as a penalty in a disciplinary case, but to protect the public while serious allegations were investigated and prosecuted, and that those conditions should not result in a reduction of the penalty imposed in the present case.[1365] We accept that submission.

(l) Any other matters relevant to the practitioner's fitness to practise, or which may be regarded as aggravating his or her conduct or mitigating its seriousness (although these are of less significance given the protective purpose of the Tribunal's jurisdiction)

1. Counsel for the Board relied on the ten factors discussed at [24] ­ [45] above as aggravating circumstances, which outweigh any mitigating effect of Dr Ebtash's p[1366]nal circumstances.1366
2. Counsel for the Board also relied on the impact statements filed by KM, JL and LN which illustrate the harm caused by Dr Ebtash's conduct.[1367] They also submitted that the Tribunal may be able to infer from the demeanour of each of the other complainants (MS and MT) in the witness box that Dr Ebtash's conduct had had a significant impact on them too.[1368] We do not doubt that Dr Ebtash's conduct affected MS and MT, but it is not appropriate for us to speculate about the manner in which, and extent to which, they were adversely affected by his conduct.
3. Counsel for the Board also relied on the complainants' impact statements as demonstrating how much damage has been done to the standing of the chiropractic profession by Dr Ebtash's conduct.[1369]
4. Counsel for the Board submitted that other than for Dr Ebtash's late admissions as to his unsatisfactory professional performance, there were no other matters which meaningfully mitigated the seriousness of his conduct.[1370] We have already made reference to the various matters raised in mitigation, which we have taken into account.

1. The Board and Dr Ebtash agreed that the imposition of a global penalty would be appropriate in this case.
2. The Board submitted that that was so because each of the instances of professional misconduct in which Dr Ebtash engaged were of a broadly similar nature; the findings as to his unsatisfactory professional performance were largely factually interrelated with his professional misconduct; it was likely that any penalty in respect of Dr Ebtash's unsatisfactory professional performance would be subsumed by the penalty for his professional misconduct; and taken together, Dr Ebtash's transgressions constituted a persistent course of serious misconduct.
3. In so far as the instances of professional misconduct were concerned, the Tribunal collectively assessed the various instances of conduct Dr Ebtash was found to have engaged in with respect to the five complainants and concluded that, considered together, they amounted to professional misconduct.[1371] That conduct has been treated globally in that sense, and any penalty imposed, even in relation to that finding of professional misconduct alone, would necessarily apply globally to all of the acts engaged in by Dr Ebtash which collectively were assessed as professional misconduct. In addition, we agree that given the seriousness of the professional misconduct, any penalty imposed in respect of Dr Ebtash's unsatisfactory professional performance will necessarily be subsumed into the more substantial penalty imposed for the professional misconduct. We do not consider this a case where there is any justification for imposing different penalties in respect of the professional misconduct and unsatisfactory professional performance. A global penalty will therefore be imposed.

Cancellation of Dr Ebtash's registration is warranted

1. Having regard to: the circumstances surrounding the Conduct, as set out in the Reasons, and as also discussed above; to the various aggravating factors including the significant adverse impact of the Conduct on KM, JL and LN; to the few mitigating circumstances, primarily Dr Ebtash's prior good character; to the need for specific deterrence in view of the fact that this was not an isolated instance of misconduct and to protect the public from the risk of Dr Ebtash repeating similar acts of professional misconduct; and to the need for general deterrence to protect the public by ensuring that other chiropractors are left in no doubt about the consequences if they choose to breach their patients' trust by engaging in acts of a sexual nature without any clinical justification; the professional misconduct in which Dr Ebtash engaged must be regarded as of a very serious kind.
2. Engaging in such conduct, which involved a gross breach of the trust vested in Dr Ebtash by the complainants, leaves no doubt that Dr Ebtash is unfit to practise. Accordingly, Dr Ebtash's registration as a health practitioner should be cancelled.
3. Dr Ebtash's prior good character, and the favourable references he provided from many patients, suggest that there are prospects of rehabilitation in his case. This is an appropriate case for fixing a period within which re-registration may not be sought. We turn now to consider cases said to be comparable which are of some assistance in determining the period of disqualification.

1. Counsel for Dr Ebtash submitted that a disqualification period of 12 months would be in line with other relevant and comparable authorities. She relied, in particular, on Health Care Complaints Commission v Skandaliaris (No. 2),[1372] Health Care Complaints Commission v Safi (No. 2),[1373] Medical Board of Australia v Cukier,[1374] Medical Board of Australia v Veettill,[1375] and Health Care Complaints Commission v Ng.[1376]
2. In contrast, counsel for the Board submitted that disqualification as a health practitioner for a period of 5 to 8 years was in line with authorities in relation to serious sexual misconduct by health practitioners.[1377] They provided a table which set out decisions in a range of cases involving professional misconduct constituted by acts of a sexual nature in relation to patients.
3. Counsel for Dr Ebtash also submitted that disqualification periods of five years had been imposed in cases involving misconduct of far greater seriousness than that in which he had been found to have engaged. She pointed by way of example to Medical Board of Australia v Moodley[1378] and to Health Care Complaints Commission v Tan.[1379]
4. When comparing penalties, care needs to be taken before assuming that the disciplinary orders in one case should be regarded as indicating what disciplinary orders should be made in another case.[1380] The infinite variations in acts of a sexual nature, the circumstances in which such conduct takes place, the circumstances of health practitioners, and those of their patients, is such that a precise correlation between one case of professional misconduct and the next is unlikely to be found. That being so, consideration of the penalties imposed in other cases is useful for the purpose of ensuring broad consistency in the penalties imposed by the various tribunals which apply the National Law, in broadly comparable cases.
5. We have reviewed the cases the parties drew to our attention. We are unable to agree that the cases on which Dr Ebtash relied are properly comparable. We regard Skandaliaris (No. 2), Safi (No. 2), Cukier and Veettill as less serious examples of professional misconduct. While they involved sexual touching in the nature of indecent assaults, they involved only one or two patients, or sexual touching which occurred on only one occasion and which was regarded as isolated in nature, or there were other factors which explained why a longer period of disqualification was not imposed. As for Ng, that case involved the digital penetration of a patient's vagina, which is a very serious instance of misconduct, but was also isolated conduct, in that it occurred on one occasion only.
6. In our view, the various acts constituting the professional misconduct in the present case are more similar to those in Health Care Complaints Commission v Tan. The conduct in Tan arose out of Dr Tan's conviction on four counts of aggravated indecent assault on four young female patients. The assaults had been committed on various dates in 2010 and 2011. Dr Tan was the patients' treating psychiatrist. His conduct was said to have been contributed to by the fact that he suffered from bipolar disorder, for which he was receiving treatment by the time of the disciplinary proceedings. Dr Tan's registration as a medical practitioner was cancelled, and he was disqualified from applying for re-registration for five years.
7. The professional misconduct in the present case is also somewhat similar (but only in very broad terms) with Health Care Complaints Commission v Duggan (No. 2),[1381] and Medical Board of Australia v Moodley.[1382] Both cases involved some instances of more serious conduct, including sexual penetration without consent or clinical justification, but fewer patients than in the present case. The complaints in Duggan related to incidents involving three female patients in late 2009 and early 2010. The complaints alleged clinically unwarranted touching of the pelvic and pubic regions of all three patients, and vaginal penetration of two of them, in association with extremely poor, or non-existent, history taking, consent and treatment documentation practices. Each of the women reported feeling uncomfortable and distressed about what had occurred. Dr Duggan's registration as an osteopath was cancelled, and he was disqualified from seeking re-registration for 6 years. He was also prohibited from undertaking any other health services until he was re­registered.
8. In Moodley, Dr Moodley was convicted of nine offences of unlawful and indecent assault which were committed between 2003 and 2009 on six female patients. One of the complainants was 17 years of age, and the remainder were between 34 and 40 years of age. Most of the indecent assaults were committed when Dr Moodley was examining each patient as she lay on an examination table, and he rubbed his erect penis against the patient's body through their clothes. On one occasion, he was performing a pap smear and, while his fingers were inserted into the patient's vagina, Dr Moodley rubbed his penis up and down her back for a minute or so. On three other occasions, he rubbed his penis along the patient's bottom and then told her to stand and bend while he rubbed his penis or genitals against her bottom from behind. None of the conduct involved penetration or skin on skin contact. Dr Moodley's registration was cancelled and he was disqualified from applying for re-registration for a period of five years. The Tribunal noted that on the basis of comparable cases, a total period of suspension of up to 15 years might have been supported, but it determined that a period of five years would serve the protective purpose of the legislation.
9. The serious nature of the professional misconduct in which Dr Ebtash engaged, together with the other factors discussed above, including the penalties imposed in broadly comparable cases, warrant a substantial period of disqualification from practise, in the interests of protecting the public. We consider that the appropriate period of disqualification is five years. However, Dr Ebtash should be given credit for the period since 16 September 2020 within which he has been unable to practise, as a result of the Board's suspension of his registration in light of the Reasons and Orders. In order to give credit for that period, the period of disqualification from applying for re-registration, commencing from the date of the Tribunal's final orders, will be four years and six months.

A prohibition on providing any health service to women while de­registered is open, and warranted

1. Counsel for the Board submitted that in addition to orders cancelling Dr Ebtash's registration and disqualifying him from applying for registration for a substantial period, the Tribunal should also prohibit Dr Ebtash from providing any health service which involves consultation with, or touching, any female patient, until he is re-registered as a chiropractor.
2. They submitted that such a course was open, because on its proper construction, s 196(4)(a) and (b) is capable of a conjunctive rather than disjunctive operation.[1383]
3. The Tribunal has taken different views in relation to this aspect of the operation of s 196(4). In Medical Board of Australia and McCarthy[1384] the Tribunal said:
   1. The Board further seeks an order under s 196(4)(b) of the National Law that the Practitioner be prohibited from using any title or a specified title and from providing any health service or a specified health service.
   2. The text of s 196(4) of the National Law includes an 'or' between paragraphs (a) and (b) of that section. It also uses 'or' between the sub-paragraphs of paragraph (b) (specified title or specified service). While the Tribunal notes that under s 7 of the 2010 Act, the Interpretation Act 1984 (WA) does not apply to the National Law, the Tribunal nonetheless considers that paragraphs (a) and (b) of s 196(4) must be read disjunctively. We consider that this is the proper conclusion to be drawn from the statutory text. To the extent that it is relevant, this interpretation is consistent with the part of the explanatory notes to the Health Practitioner Regulation National Law Bill 2009 (WA), quoted by the Board in its submissions; BRS at para 18. That relevantly provides that, if the Tribunal orders the cancellation of a person's registration, the Tribunal 'may also decide to disqualify the person from applying for registration ... , or prohibit the person from using a specified title or providing a specified health service' (Tribunal's emphasis).
   3. The Tribunal accordingly finds that it is not open to it to make orders under both paragraph (a) and paragraph (b) of s 196(4) of the National Law because of the use of the word 'or'.
   4. It is therefore unnecessary for the Tribunal to consider the effect of the word 'or' where it appears in subparagraph (i) of paragraph (b) of s 196(4).
4. However, in Dental Board of Australia and Dhillon[1385] the Tribunal imposed a period of disqualification on a dental practitioner. In addition, the Tribunal made an order prohibiting the practitioner from using the title 'Doctor' or providing any health service, until he was returned to the register of health practitioners.[1386] In reaching that conclusion, however, the Tribunal did not undertake any analysis of the proper construction of s 196(4) and in particular whether it should be construed as permitting the Tribunal to make only one of the various orders separated by the word 'or'. Rather, the Tribunal simply appears to have proceeded on the assumption that that construction was open.
5. Furthermore, counsel for the Board submitted that prohibition orders had been made in conjunction with disqualification orders made under the National Law by tribunals in other States.[1387]
6. It is not clear whether those other cases were drawn to the attention of the Tribunal in McCarthy. No reference is made to any of them in the judgment, which tends to suggest that they were not drawn to the Tribunal's attention.
7. We are, with the greatest respect, unable to agree with the conclusion reached by the Tribunal in McCarthy. Moreover, we regard it as plainly wrong, for three reasons.
8. First, we do not regard the question as being whether the word 'or', as used in s 196(4), has a disjunctive meaning, but rather whether it has a wholly disjunctive operation ­ that is, whether it conveys that the Tribunal may only make one of the kinds of orders set out in that subsection, rather than any one or more of those orders.
9. Secondly, the operation of the Interpretation Act 1984 (WA) including s 17,[1388] is excluded in relation to the National Law.[1389] General principles of statutory interpretation must be applied.
10. While the ordinary meaning of the word 'or' can, and often does, indicate a disjunctive operation of two or more provisions, whether it has that meaning will depend on its proper construction, in its context.[1390]
11. The following contextual aspects in relation to s 196(4) may be noted. That subsection applies in two situations: when the Tribunal has cancelled a person's registration under the National Law, or when a person does not hold a registration under the National Law (so that, implicitly, there is nothing that may be cancelled). In either case, and irrespective of whether 'or' has a disjunctive meaning in s 196(4), the Tribunal may disqualify the person from applying for registration as a registered health practitioner for a specified period, or prohibit the person from providing a health service, or any specified health service, or using any title. Disqualification from applying for registration for a specified period will preclude an application for re-registration, or an application for initial registration in the case of a person who has never been registered, but it may also prohibit an application for registration as a health practitioner in a different health profession than that in which the person previously was registered. So, too, an order prohibiting the person from providing a health service or specified health service, or from using a title, may reinforce that the person is not entitled to provide a health service, or hold themselves out as entitled to provide a health service, which they were previously registered to provide. However, such an order may also prohibit a person from providing a health service which is different from the health profession in which they previously practised.
12. In our view, the latter consideration is of some significance. Under the National Law, a person obtains registration in a health profession. The term 'health profession' is defined by reference to a list of professions. The term 'health services' has a broader meaning. While it includes services provided by registered health practitioners, it also includes a variety of other services, including mental health services, community health services, health education services, welfare services, and 'services provided by dieticians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists'.[1391]
13. Clearly, more than one of the kinds of orders contemplated by s 196(4)(a), (b)(i) and (b)(ii) may be capable of being imposed by the Tribunal in any given case.
14. Thirdly, the interpretation of a provision of the National Law that will best achieve the purpose or object of the National Law is to be preferred to any other interpretation.[1392] The objectives of the National Law include 'to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered' and 'to facilitate access to services provided by health practitioners in accordance with the public interest'.
15. In our view, the interpretation of s 196(4) which best achieves those objects of the National Law is an interpretation which gives the Tribunal the power to make more than one of the orders in s 196(4), so as to tailor the penalties imposed for the protection of the public. By way of example, it is not difficult to envisage that a chiropractor or physiotherapist whose registration was cancelled might be able to transfer relatively easily into the provision of health services as a masseuse. Had the cancellation of the practitioner's registration resulted from professional misconduct towards patients then the protection of the public would clearly be best served if the Tribunal was also able to make an order preventing the practitioner from working in a health service where a risk to the safety of patients might exist. The conclusion that the word 'or', when it appears in s 196(4), should be understood to permit the Tribunal to make one or more of the different orders referred to in that subsection is more likely to achieve the purpose of the National Law and should be preferred.
16. For completeness, we note that the explanatory notes for the Health Practitioner Regulation National Law Bill 2009 (WA) may be taken into account in the interpretation of an ambiguous provision of the National Law.[1393] The explanatory notes in respect of cl 196 of the Bill relevantly provided:

If the tribunal decides to cancel a person's registration under the National Law, or the person does not hold registration under the National Law, the tribunal may also decide to disqualify the person from applying for registration as a registered health practitioner for a specified period, or prohibit the person from using a specified title or providing a specified health service. To clarify, a specified title is not limited to the titles protected under this law (such as under clause 113).

1. Unlike the Tribunal in McCarthy, we do not regard the explanatory notes to indicate that s 196(4) is to be given a wholly disjunctive operation (so that the Tribunal is empowered to make one and only one of the orders set out in s 196(4)). Rather, we consider that the explanatory notes simply reflect the terms of the subsection, and do nothing to resolve the ambiguity in it.
2. In our view, it is appropriate in the present case to make an order under s 196(4) in the terms sought by the Board. That will protect the public from the risk of repetition of conduct of the kind in which Dr Ebtash engaged in relation to the complainants. The order will prohibit Dr Ebtash from providing any health service which involves consultation with, or touching any female patient during the period of his de-registration as a chiropractor.

1. Counsel for the Board submitted that the Tribunal should signal its disapprobation for Dr Ebtash's conduct by imposing a reprimand, in addition to any other penalty.[1394]
2. Alternatively, counsel for the Board submitted that the Tribunal should reprimand Dr Ebtash as a signal of its disapproval for his unsatisfactory professional performance.[1395] (That submission was inconsistent with the Board's submission that a global penalty was appropriate in this case.)
3. We do not accept that a reprimand is necessary or appropriate in this case. It is not necessary because the Tribunal's condemnation of Dr Ebtash's conduct could not be more clearly conveyed than by the imposition of the far more substantial penalties we have identified, and also by these reasons, which explain the basis on which we have imposed those penalties.
4. A reprimand is also not appropriate because, in our view, it is a penalty suitable for cases at the least serious end of the spectrum of disciplinary conduct. That much can be discerned from the nature of a reprimand itself, and from the content and structure of s 196(2) and (4). Those subsections list the penalties which may be imposed on a practitioner. The first mentioned penalty in s 196(2)(a) is a 'caution or reprimand'. A 'caution' is 'a warning'[1396] or a charge to a person 'to take heed'.[1397] In a legal setting it is sometimes used in phrases similar to 'get off with a caution' in which case it means 'to escape any greater punishment than a stern warning'.[1398] It is in the latter sense, in our view, that the term 'caution' is used in s 196(2) of the National Law. A 'reprimand' is 'a severe reproof, especially a formal one by a person in authority'[1399] and 'a sharp rebuke, reproof, or censure, esp. one given by a person or body in authority'.[1400] It has also been used in English law to refer to 'a formal or official rebuke given by a judge, magistrate, or police officer to an offender'.[1401] It is thus a public censure for conduct. Under s 196(2)(a) therefore, the Tribunal may issue a 'caution' or a 'reprimand', that is, a formal and stern warning or rebuke to the practitioner involved which signals the need for them to refrain from such conduct in the future.
5. However, such a penalty will have no practical impact on the practitioner's conduct of their profession. Penalties with that practical impact are referred to in s 196(2)(b) ­ (e). It can be seen that the list of penalties in s 196(2)(a) ­ (e) involve a graduated increase in the practical magnitude of their impact on the practitioner, from the imposition of a condition on registration, which may require the practitioner to do or refrain from doing something, to a fine up to a maximum of $30,000, to suspension of the practitioner's registration for a specified period, to cancellation of the practitioner's registration. Viewed in that context, the issue of a caution or reprimand should be understood as the least penalty which may be imposed for a finding of professional misconduct, unprofessional conduct or unsatisfactory professional performance.
6. Understood that way, to impose a reprimand in a case where a far more serious penalty is also to be imposed appears incongruous. We are aware that in other cases, reprimands have been given, in conjunction with other more substantial penalties. However, our view is that in such cases, the significance of the reprimand is subsumed in the impact of the other more substantial penalties imposed.

1. The Board seeks an order that Dr Ebtash pay its costs. A copy of the accounts rendered to the Board are attached to the affidavit of its solicitor Ms M Naylor dated 28 October 2020. These accounts indicate that the Board's solicitors have rendered fees of $233,899 (inclusive of disbursements and GST) to the Board in relation to these matters.
2. In summary, the invoiced amounts in the invoiced periods, being 31 March 2018 and 30 September 2020 are:
   • legal fees, comprising of solicitor fees (Tottle Partners) and counsel fees (Mr Vandongen), totalling $204,485.03; and
   • disbursements totalling $29,047.65.
3. The Board does not seek recovery of all of those fees from Dr Ebtash. Rather, it seeks recovery of $106,459.65 in relation to its solicitors' fees, disbursements of $29,652.65 and disbursements to counsel of $57,080.10. The disbursements claimed are inclusive of the GST paid.
4. Dr Ebtash does not resist the making of an order that he pay an amount of costs to the Board. He submits, however, that the amount claimed is wholly excessive and that no more than $98,043.70 inclusive of counsel fees and disbursements should be allowed.
5. Counsel for Dr Ebtash argues that the ultimate hearing from 12 August to 20 August 2019:
   • did not involve a myriad of different issues requiring determination;
   • was not of great technical or legal complexity;
   • involved primarily the resolution of a factual contest; and
   • whilst involving several witnesses, covered a short span of time.

1. In assessing costs, the Tribunal takes a 'robust and broad-brush approach', and bases its determination on what reasonable allowance should be made for the work necessarily done to bring the proceedings to a conclusion.[1402]
2. Although the assessment of costs involves a relatively broad and robust approach, the Tribunal must be satisfied that the costs claimed are reasonable and necessary.[1403] The Tribunal must also be satisfied that the costs claimed are not excessive.[1404] Any costs awarded are compensatory and not punitive in nature.
3. An assessment of costs should be approached in a broad fashion and should not descend into an inquiry into small items of expenditure.[1405]
4. As is set out in the Board's submissions, we acknowledge that what is sought by way of costs by the Board is not the full costs paid by it.

1. Dr Ebtash filed a schedule of costs which he submitted the Tribunal should allow as the reasonable and necessary costs in the proceedings.
2. Dr Ebtash submits that the Board conducted the proceedings in such a way as to incur substantial and excessive costs disproportionate to the matters in issue.
3. In support of this allegation Dr Ebtash asks us to compare the fees he was charged with those charged by the Board.
4. Dr Ebtash contends that we should not have regard to what was actually charged by the Board as this could result in in an overassessment, or inaccurate assessment, of what was reasonable and necessary.
5. Further, Dr Ebtash submits that it would be unjust and inequitable for him to pay costs at a higher level than he himself incurred in the proceedings, and the Board's claim represents an excessive and crushing claim.

1. The relevance to the Tribunal in relation to what the Board has paid in legal fees is to provide evidence to us that what is being sought by way of a costs order by the Board is a recovery of fees that have been incurred by the Board. It is trite law that a party may not recover in a costs order more costs than it has actually incurred.
2. In respect of disbursements, we must know what disbursements have been incurred ­ a disbursement is unlikely to be allowed without an appropriate invoice being produced.
3. The amount allowed under the three applicable Costs Determinations are $407 and $418 for a senior practitioner and $308 and $319 for a junior practitioner. Given that two scales are involved and the work was completed by junior and senior legal practitioners, we are satisfied that allowing the amount of $368.50 for all non-counsel legal work covered over the period is reasonable and sensible.
4. In applying the above principles, and having regard to the matters outlined in the Board's and Dr Ebtash's submissions and our own knowledge of the proceedings, we have undertaken an assessment of the costs sought by the applicant.

1. Dr Ebtash submits we should only allow $25,000 for counsel's fees. Dr Ebtash made no specific submissions as to why we should not allow senior counsel's fees in full (being $52,195). Mr Vandongen SC has rendered a fee note for 94.9 hours of work. On the amount suggested by Dr Ebtash this would equate to an allowance of $263.43 per hour.
2. We allow counsel's fees in full. We are mindful that although the rate Mr Vandongen SC has charged is greater than that allowed under the Tribunal's Costs Determination, it is less than the rate allowed under the Supreme Court Determination (being $682 per hour and a daily rate of $6,820 per day). Mr Vandongen's fees appear to us to be modest given the length of the hearing, the number of witnesses involved and the various issues that needed to be addressed.

1. In respect of general disbursements, the applicant is seeking payment of $18,783.23 together with expert witness fees of $10,264.42, being a total of $29,047.65.
2. Dr Ebtash asserts we should only allow $15,000 for general disbursements. The only submission made by Dr Ebtash as to why we should not allow the general disbursements in full is that it was not necessary to call expert evidence.
3. The Board being a regulator has an obligation to present its case in a manner that enables the Tribunal to meet its main objectives, as set out in s 9 of the SAT Act:

(a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and

(b) to act speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and

(c) to make appropriate use of the knowledge and experience of Tribunal members.

1. We do not consider the reference in para 12(b) of Dr Ebtash's submissions[1406] to the Tribunal's finding against the Board to be altogether a correct interpretation of [152] of the Reasons. We found:
   1. Having regard to the expert evidence, we cannot exclude the possibility that Dr Ebtash's conduct in touching JL's gluteal folds was part of a postural screening examination and thus that it was clinically justified. Furthermore, while Dr Ebtash's explanation for why he called HJ over to look at JL's buttocks was not convincing, MS's evidence as to what Dr Ebtash said when he invited HJ to look at JL's buttocks tends to support Dr Ebtash's explanation.
   2. Nevertheless, it was highly inappropriate for Dr Ebtash to have invited HJ to look at JL's buttocks in this way. From MS's description of his response, HJ appears to have felt the same way. We are satisfied, and we find, that Dr Ebtash's conduct in this respect showed complete disregard for JL's privacy, and failed to treat her with the respect to which she was entitled.
2. We consider the evidence given by the experts to have been of assistance to the Tribunal in determining this matter. The experts gave their evidence between 3.43 pm and 4.30 pm on Monday 18 August 2019. They were asked a variety of questions by the Tribunal including about the method of delivery of treatment referred to in Dr Ebtash's evidence in chief.
3. We find that it was reasonable and appropriate for the Board to call the experts.
4. We find the reasonable and necessary general disbursements incurred by the Board to be $29,047.65 and allow their costs in full.
5. With respect to the solicitor costs we consider that the reasonable costs should be allowed as follows:

1. We have considered the time claimed for this item and do not consider it unreasonable. The application covers six separate grounds and is detailed by the nature of the allegations.
2. We allow seven hours as claimed.

1. According to Tribunal records the mediation went for two hours. We consider an allowance of three hours for the preparation, two hours for the attendance and 30 mins for consultation with the client at the end of the mediation, being a total of 5.5 hours, to be reasonable.
2. We allow 5.5 hours for this item.

1. This is not contested by Dr Ebtash. We allow three hours for this item.

1. Dr Ebtash does not challenge that allowance should be made for the filing of the substituted application, he only challenges the time claimed. On consideration of the substituted application we consider five hours to be reasonable.
2. We allow five hours for this item.

1. The time claimed is for the proofing of, and the preparation of, witness statements for six people. This equates to 3.5 hours per witness. We consider this to be reasonable.
2. We allow 21 hours for this item.

1. We consider 2.5 hours to be reasonable.
2. We allow 2.5 hours for this item.

1. Items 7 and 8 are not challenged.
2. We allow 0.4 hours in respect of item 7 and three hours in respect of item 8.

1. We consider significant time was involved in relation to these orders (from checking the computer printout of the time charged to the Board). We consider 10 hours to be reasonable.
2. We allow 10 hours for this item.

1. This related to the time taken to arrange for the six overseas witnesses to give their evidence via video conference. Dr Ebtash does not say why only six hours should be allowed. Again we can see that significant time was spent with respect to this item.
2. We allow 15 hours for this item.

1. We have already found it was reasonable and necessary to call the two experts to give evidence. The time claimed for this item number includes work that was necessary to brief the experts and file their joint expert report.
2. We allow the 11 hours claimed for this item.

1. We note the hearing, travel and conferral time for the directions hearing before the Tribunal to be approximately two hours. We consider an allowance of 2.5 hours for preparation to be reasonable.
2. We allow 4.5 hours for this item.

1. We do not accept Dr Ebtash's submission that only the time spent at hearing should be allowed for in respect of Ms Naylor's costs. The time other than hearing time charged by Ms Naylor is reflective of her carrying out work both before and after the set hearing times.
2. Allowing a daily rate to account for this is common practice as set out in the cost determinations across the various jurisdictions and in particular in the Tribunal's Costs Determinations.
3. We also consider it reasonable for an instructing solicitor or junior counsel to be in attendance with his or her senior counsel throughout the proceedings. Whilst it is no longer considered mandatory for senior counsel to appear with junior counsel it is not unreasonable for them to do so. In Tribunal proceedings it is not uncommon for the role of instructing solicitor to be blurred with that of junior counsel.
4. In this matter the organisation of witnesses was necessary throughout the hearing. The six witnesses were giving evidence in different time zones and from different countries. Ms Naylor's presence aided the efficient conduct of the hearing.
5. We find it was both reasonable and necessary for the senior solicitor who had carriage of the matter to be in attendance. As two of the days could not be regarded as more than half days we have allowed for six days.
6. We allow 60 hours for this item.

1. We consider the 5.5 hours claimed to be reasonable.
2. We allow 5.5 hours for this item.

1. We have reviewed the penalty submissions in this matter and consider it reasonable to allow 10 hours for their preparation and filing.

1. This is a claim for 85 hours of work for general getting up.
2. Dr Ebtash's substantive submission in respect of this item and the costs more generally is that he conducted the hearing as 'leanly' as possible, and the Board has proceeded in such a way as to incur substantial and excessive costs disproportionate to the matter in issue.
3. Dr Ebtash submits that the costs he has incurred in defending the proceedings shows that the costs incurred and now claimed by the Board are excessive. In these circumstances, we do not consider it to be of any assistance for us to compare the costs incurred by the Board and those paid by Dr Ebtash. This is particularly so when the costs sought by way of a costs order is less than half the costs actually incurred by the Board.
4. To determine what is reasonable and necessary, we look to what work was carried out by the Board and assess whether: firstly, the work was necessary and or reasonable; secondly, whether the time claimed to do that work is reasonable and, thirdly, the rate charged for that work.
5. We are satisfied and find that the work undertaken by the Board for which a claim is made is reasonable and necessary.
6. We are satisfied and find that the time claimed for this item is necessary and is reasonable.
7. We allow 85 hours for the general getting up as set out in item 21.

1. We have considered the affidavit and attachments in support of the Board's claim for costs and consider a reasonable time to prepare the affidavit would be five hours.
2. We allow five hours for this item.

1. We consider the reasonable and necessary time to be allowed is 265.3 hours, at the rate of $368.50 per hour, which equals $97,763.05 (rounded to $97,763).
2. In addition, we allow general disbursements of $29,047.65 (rounded to $29,047) and counsel fees of $51,690 (includes unbilled time of $539). Together with the non-counsel legal fees of $97,763, the total comes to $178,500.00.
3. Dr Ebtash is to pay the Board's costs fixed in the sum of $178,500. Those costs should be paid within 28 days or within such further period as the parties may agree.

1. Pursuant to s 196(2)(e) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law) the respondent's registration is cancelled.
2. Pursuant to s 196(4)(a) of the National Law the respondent is disqualified from applying for registration as a health practitioner for a period of four years and six months, commencing from the date of these orders (which period takes into account the period in which the respondent's registration has been cancelled since 16 September 2020).
3. Pursuant to s 196(4)(b) of the National Law, until such time as the respondent is returned to the register of health practitioners under the National Law, the respondent is prohibited from providing any health service which involves consultation with, or touching, any female patient.
4. The respondent is to pay the applicant's costs of these proceedings, fixed in the sum of $178,500, within 28 days or such further period as the parties agree.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[1] Exhibit 1.4; Respondent's Written Outline of Opening Submissions [25].

[2] The National Law is set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (HPRNLWA Act), and applies as a law of Western Australia: s 4(1) of the HPRNLWA Act.

[4] Substituted Response par 7.1 and 7.2.

[5] Order made by Deputy President Judge Sharp on 20 August 2018, and varied by Acting President Judge Sharp on 18 February 2019, pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA).

[6] Respondent's Written Opening Submissions [6].

[11] Respondent's Written Opening Submissions [8].

[12] It was clear that the reference to clinical notes in ground 7 was a reference to both the Assessment Notes and the Clinical Notes (as we have described them): ts 739; 1-20.

[13] Respondent's Written Opening Submissions [31]-[33].

[14] Exhibit 1.18 (Dr Innes) and Exhibit 1.20 (Dr Crawford).

[15] Exhibit 2.7 (Dr Innes) and Exhibit 2.8 (Dr Crawford).

[20] The Board is a National Board for the purposes of the National Law: see reg 4 of the Health Practitioner Regulation National Law Regulation 2018 (WA) by which the Board is continued as a National Health Practitioner Board for the chiropractic profession.

[21] The Tribunal is a responsible tribunal for Western Australia for the purpose of the National Law: see HPRNLWA Act, s 6.

[22] National Law s 193(1) and s 193(2).

[26] Par (a) of the definition of 'unprofessional conduct'.

[27] Par (c) of the definition of 'unprofessional conduct'.

[28] Par (f) of the definition of 'unprofessional conduct'.

[29] Panegyres v Medical Board of Australia [2020] WASCA 58 at [147]- [148] (Vaughan JA, Buss P and Murphy JA agreeing on this point).

[31] Panegyres v Medical Board of Australia [2020] WASCA 58 at [149] (Vaughan JA, Buss P and Murphy JA agreeing).

[32] Panegyres v Medical Board of Australia [2020] WASCA 58 at [150]- [157].

[37] Panegyres v Medical Board of Australia [2020] WASCA 58 at [17-18].

[38] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J); and cf Vella v Commissioner of Police (NSW) [2019] HCA 38; 93 ALJR 1236 at [42] (Bell, Keane, Nettle and Edelman JJ) in relation to proof of facts to establish unlawful conduct.

[39] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ); Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J).

[40] See, eg, Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479.

[41] See, eg, the discussion in White v Johnston [2015] NSWCA 18 at [53]- [130] (Leeming JA); and Dean v Phung [2012] NSWCA 223 at [48]- [67] (Basten JA).

[72] ts 50, 151, 234. MT was not present at the meeting: ts 168.

[101] ts 685. The transcript indicates that Mr Maddison said that the stage manager's name was K, but this is an error in transcription. He in fact correctly referred to CA by her first name.

[105] Substituted Response par 2.1, 2.2.

[155] Cf Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[194] The temporal bone behind the ear - see Exhibit 10; ts 671.

[201] Exhibit 2.1; ts 313, 351, 479-480.

[220] Exhibit 1.11 (p11 of the Response to Complaint). The photograph in question is Fig 2.

[253] ts 625-626; Exhibit 1.11 (p11) and Exhibit 8.

[343] See, eg, exhibit 1.11 (p 99) in relation to JL.

[371] Substituted Response par 3.1, 3.2.

[564] See, eg, Exhibit 1.11 (p967-97) in relation to MS.

[565] See eg Exhibit 1.11 (p94 and p95), ts 568 (in relation to MS's treatment on the First Occasion).

[581] Screenshots of Non-Contemporaneous Clinical Records.

[585] Statement of Soroush Ebtash [3].

[586] Respondent's Supplementary Submissions [5].

[608] See, eg, ts 686, 687, 700 (changing into shorts).

[657] Substituted Response par 4.1, 4.2.

[808] Exhibit 10; see also Exhibit 1.20 (p21)

[833] Substituted Response par 5.1, 5.2.

[906] Exhibit 1.11 (p94-95 of Bundle).