Health Care Complaint Commission v Vo

Orders sought by the HCCC and the practitioner 10The HCCC sought that the Civil and Administrative Tribunal (the Tribunal) make an order cancelling the practitioner's registration, and that he be precluded from applying for re-instatement to the register of medical practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) for a period of two years. 11The practitioner, while admitting unsatisfactory professional conduct and professional misconduct in respect of Patient A, and apologising to the Tribunal, the patient, and the profession, sought orders permitting him to retain his registration. He did not oppose the continuation of the present conditions on his registration. The practitioner did not seek to have the proceedings conducted as "two Stage" proceedings. Rather, he sought that the Tribunal make findings about the complaints and impose appropriate protective orders at the conclusion of the hearing. 12During the course of the hearing an application was made on behalf of the practitioner that we restrict publication of his name. The basis of that application was to protect the practitioner's children from any adverse publicity which may flow from the publication of these reasons. We refused that application, and indicated we would give our reasons at the same time as publication of these reasons. We provide our reasons for dismissing the application at the conclusion of these reasons.

Issues in dispute and structure of these reasons 13 The issues to be determined by the Tribunal were essentially directed to: (1)whether the practitioner's expressed remorse for his conduct in respect of Patient A was genuine; (2)whether the practitioner's behaviour in respect of Patient A was a result of impairment; (3)the weight to be attached to and reliability or otherwise of Patient B's evidence, and that of his close friend Ms MB; (4)the weight to be attached to and reliability or otherwise of the practitioner's evidence about his consultations with Patient B; (5)reconciling the practitioner's clinical notes with Patient B's evidence; (6)assessment of the practitioner's past conduct, his conduct with Patient A and whether that conduct demonstrates it is likely he engaged in similar conduct with Patient B; (7)whether the health and safety of the public can be adequately addressed by permitting the practitioner to remain registered, but with his registration subject to conditions; (8)if the Tribunal determines that the practitioner's registration should be cancelled- what is an appropriate period before he may apply for re-instatement; (9)should the practitioner pay the HCCC's costs of and incidental to the proceedings, or are there circumstances which would disentitle the HCCC to its costs. 14We will first refer to the transitional provisions of the relevant legislation. After setting out some relevant background information, and the provisions of the National Law applicable to inquires such as the present one, we will examine the evidence, both documentary and oral, adduced at the hearing to address the issues we have now identified. In the course of that examination we will discuss the expert evidence of Dr Martine Walker (Dr Walker) and Dr Hani Bittar (Dr Bittar) the experts relied by the HCCC, and the report and oral evidence of Dr Keith Chee (Dr Chee). Dr Chee is the practitioner's current treating psychiatrist.

The transitional provisions 15As a consequence of the enactment of the Civil and Administrative Tribunal Act, Schedule 1, Division 2, cl 3 the Medical Tribunal was abolished effective on 31 December 2013. The Medical Tribunal's functions were taken over by the Tribunal. Pursuant to the transitional provisions in the Civil and Administrative Tribunal Act (see Schedule 1, Div 3 Sub-Div 2, cl 7 (2) and (3)) the matter is now in the Tribunal for finalisation. Clause 7 (3) (b) provides the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had the Civil and Administrative Tribunal Act and the relevant amending Acts not been enacted, continue to apply. As a consequence the law to be applied is the National Law in force up to 31 December 2013.

Background 16The following matters, unless noted to be an allegation, are established to the requisite civil standard. 17The practitioner was born in Vietnam in 1965. He is married and has two children who were aged 16 and 13 at the date of the hearing. He presently practises from rented premises in Campbelltown NSW as a solo general practitioner. 18In the period 2000-2001 he was a Cardiology Registrar and worked in Victoria. During this period he was physically separated from his wife who remained living with their then infant daughter in NSW. 19On 23 January 2002 the practitioner was convicted in the Geelong Magistrates Court on a charge described as "Go equipped to steal/cheat". No offence was recorded and the practitioner was subject to a bond of 12 months' duration. The practitioner asserts the offence involved shoplifting, and that he was depressed at the time of the offence. 20On 29 January 2002 the practitioner falsified an unfavourable report by his cardiology superior, Professor Black. He discontinued his cardiology training and returned to NSW. 21During the period from 2002, when the practitioner was employed at Primary Health Care, he was subject of a Professional Services Review because of over-servicing. He entered into a "section 92" agreement with Medicare and repaid the sum of $50,000. 22In 2005 the practitioner was subject to a further Professional Services Review Committee referral as a result of his Medicare billing practices. 23On 20 August 2010 Patient B attended the Campbelltown Police Station. Patient B is recorded as reporting the practitioner had, about five months previously, during a consultation, asked him to remove his pants and underwear, directed sexually explicit questions to him, masturbated him, smelt his penis and asked if he could suck his penis. Patient B is recorded as advising the police that he "is a bisexual who is currently in a relationship with another male and he does not want his family to become aware of the fact". The COPS report goes on to note "The victim did not want to provide police with a statement about this matter because of the above fact. This is because the victim does not want to go to court about the incidents". 24On 14 June 2011 the Professional Services Review Committee issued a draft determination. The Committee's recommendations included recommendations that the practitioner be reprimanded, and that he repay the sum of $149,602 to the Commonwealth. The draft determination was confirmed in a final decision handed down on 7 August 2012. 25On 24 June 2011 Medicare acknowledged receipt from the practitioner of $150,000 by way of repayment. 26On 1 July 2011 Patient A first consulted the practitioner. Patient A sought testing for sexually transmitted diseases. He presented with genital warts which the practitioner treated using Cyrox equipment. At the time of this consultation Patient A was accompanied by his partner. The practitioner asked her to leave the consulting room when he examined Patient A. The practitioner asserts during the consultation Patient A's penis became erect and that he asked the practitioner whether he would like to perform oral sex on him. The practitioner asserts he thought this was a joke. 27Patient A was contacted by the practitioner by SMS and returned for a follow up visit on 3 July 2014. He was again accompanied by his partner, Ms HB. After requesting Ms HB to leave the consulting room the practitioner again treated Patient A's genital warts. The practitioner asked inappropriate questions about the patient and Ms HB's sex life. It was on this occasion that the practitioner fellated Patient A. Patient A recorded the consultation on his iPhone, and videoed that part of the consultation when the practitioner performed fellatio on him. 28Immediately after the consultation Patient A attended Campbelltown Police Station and engaged in a formal record of interview with the police. Patient A later signed a formal statement. Ms HB also gave a statement to the police. 29The practitioner, of his own volition, attended at the police station the same day. He obtained legal advice from a solicitor whilst at the police station, and engaged in a recorded interview with police. The practitioner asserted to the police that it was Patient A who instigated the oral sex, and that he was blackmailed by Patient A after they engaged in consensual sex. The recording made by Patient A on his iPhone was retained by the police. It discloses that the practitioner was the instigator of the oral sex. No charges were laid by the police against the practitioner. However, on 4 July 2011, the Campbelltown Detectives wrote to the Council about the incident involving Patient A. 30On 25 July 2011 the Council suspended the practitioner's registration. In the reasons published in respect of the orders made at the hearing the delegates noted three prior complaints against the practitioner. One complaint, which was not pursued, was asserted to be by a senior psychologist to the effect a staff member reported a patient disclosing that the practitioner "had fondled his genitals and tried to perform oral sex". It was noted by the Council that this complaint had been referred to the HCCC for investigation. 31At the s 150 proceedings held on 25 July 2011 the practitioner asserted that, on 29 June 2011, he received correspondence from the Commonwealth Bank of Australia (CBA). The CBA is asserted to have required the practitioner to repay a loan advance of $250,000 within 2 weeks. 32From early July 2011 the practitioner consulted Mr K Judge (Mr Judge). Mr Judge is a social worker. He ceased consulting Mr Judge when the latter became unavailable. At an unknown date the practitioner commenced seeing Ms Ana Catarino, (Ms Catarino) a clinical psychologist. Ms Catarino asserts she has known the practitioner for about 15 years and he has referred patients to her. 33In September 2011, at the request of the Council, the practitioner was examined by Dr Murray Wright, (Dr Wright) psychiatrist. The practitioner saw Dr Wright again in September 2013 and on 10 February 2014. 34On 1 November 2011 the suspension on the practitioner's registration was lifted. 35On 21 November 2011 the practitioner wrote to the HCCC. In his letter the practitioner asserted on the second occasion he saw Patient A that "he again asked me to perform fellatio on him". 36In December 2013 the practitioner again appeared before the Medicare Participation Review Committee. 37The practitioner commenced seeing his general practitioner, Dr Waseem S Guirguis (Dr Guirguis) in July 2011. He was continuing to consult Dr Guirguis at the date of the hearing. 38The practitioner has consulted Dr Keith K-Y Chee, Consultant Psychiatrist as his treating psychiatrist since 2011.

The National Law and relevant legal principles 39Section 3 of the National Law sets out the objectives and guiding principles of the law, as those objectives and principles apply to the national registration scheme. Section 3A of the National Law, in force at the date of the hearing, sets out the objective and guiding principle to be applied by a Tribunal in New South Wales conducting an inquiry into a complaint and, if appropriate to do so, when making protective orders. The relevant parts of s 3, for the purposes of this hearing, are as follows: (2) The objectives of the national registration and accreditation scheme are-- (a) 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 ... (e) to facilitate access to services provided by health practitioners in accordance with the public interest; and ....... (3) The guiding principles of the national registration and accreditation scheme are as follows-- (a) the scheme is to operate in a transparent, accountable, efficient, effective and fair way; ... (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 40Section 3A, which has particular relevance in the circumstances of this matter, provides as follows: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 41It is relevant at this point the Tribunal records that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association (1980) 104 CLR 186).

The onus or burden of proof 42The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, that the standard of proof is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336.

Unsatisfactory professional conduct and professional misconduct 43Complaint One in the first complaint asserts the practitioner is guilty of unsatisfactory professional conduct as set out in s 139B(1) of the National Law. 44The relevant provisions of that section for the purposes of this matter are follows: "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- ... (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. ... (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 45Complaint 2 asserts the practitioner is guilty of professional misconduct under s 139E of the National Law. That section provides as follows: For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 46The second or "Amended Complaint" which deals exclusively with Patient B also relies on s 139B(1) (a) and (l) and s 139E of the National Law.

The evidence in respect of the Complaint concerning Patient A 47Patient A did not give evidence before us. He was not required for cross examination and his statement is unchallenged. The practitioner records a different version of events in his statement concerning Patient A. Ms Mathur, counsel for the HCCC, submitted in her final submissions that we should have regard to the complaint concerning Patient A as it is relevant to the question of propensity evidence. We deal with that topic later in these reasons. 48As we must be independently satisfied of the establishment of the complaint, we now give some brief consideration to the evidence in support of this complaint. 49The HCCC did not assert that the Practitioner's sexual conduct with Patient A was non consensual. However, the HCCC referred to and placed weight on the practitioner's denial that he was the instigator of the oral sex on 3 July 2011. 50In his formal police statement Patient A said he consulted the practitioner for blood tests and explained that he had a genital wart. After treatment of Patient A's wart he states that, after putting the machine used for the Cyrox treatment to one side, "he [the practitioner] started looking at my penis from up and down and then at my balls and he said 'You have a nice dick'". Patient A says he did not know how to respond in English and he was confused by the practitioner's statement but thought he should humiliate the practitioner. Patient A said at the second consultation, which occurred two days, later when the patient attended, at the practitioner's request, to obtain pathology results, "I knew I should not allow him to do what he was planning to do ...". Patient A put his iPhone in his pocket and recorded the consultation. After treating the patient's warts the practitioner commenced fellating Patient A. Patient A said: Because my jumper was pulled up, I tried to put my hand in my pocket to take the telephone out but the way he was doing it, like, he was doing it as if he wanted, you know, to do - I can't describe it, it's so disgusting, but I thought I would just let go just a bit in order to be able to take the phone out and really take a photo of what he is doing. 51Patient A said, after he stopped the practitioner by pushing him back, the practitioner said "I'm prepared to give anything to you if you don't tell anyone". Patient A went to the waiting room and spoke to his partner, Ms HB. They then attended Campbelltown Police Station and made formal statements. 52The recording from Patient A's iPhone and a transcript and video of that recording was in evidence before us. It discloses the practitioner telling Patient A "I like Lebanese men, good men", and that immediately after the treatment of Patient A's genital warts the practitioner said "Smell nice". Thereafter the practitioner instigated a conversation with Patient A about aspects of his sexual behaviour with Ms HB. The recording explicitly discloses the practitioner instigated the oral sex performed on Patient A. 53In his statement at [4] the practitioner says: I apologise to [Patient A], the Medical Tribunal, the medical profession and my patients and family for my behaviour, of which I am ashamed. Without in any way attempting to excuse my behaviour I will further in this statement attempt to explain some of the circumstances which led to this aberrant behaviour. 54In his statement the practitioner set out details of his upbringing in Vietnam, and the great difficulties his family experienced when the Communist regime came to power. He also recites the hardships and horrors experienced when he travelled to Australia on a refugee boat as a teenager, as well as the challenges he faced learning English, obtaining his Higher School Certificate, and university education. That evidence was not subject to challenge and we accept it in its entirety. 55The practitioner explains the difficulties he experienced during his cardiology training and how he consulted a psychiatrist for a period of six months, and that he took Cipramil for about 9 to 12 months. 56The practitioner referred to the proceedings arising out his Medicare complaints of over servicing. He asserts that, about this time, he had marital difficulties principally arising out of a conflict with his wife about the raising of their children, and her pursuit of coaching of the children to enable them to achieve well academically. 57The practitioner refers to his treatment for major depression by his psychiatrist Dr Chee, his attendance on Dr Wright, and his social worker Mr Judge. 58The practitioner commenced his oral evidence with an apology. He sought to explain his statement to the police that Patient A had instigated the oral sex as a mistake. We were unable to accept that evidence. We are satisfied that the practitioner well knew that he had instigated the sexual activity. This aspect of the practitioner's evidence gave us significant concern about the sincerity of his apology and the credibility of his evidence.

The expert evidence of Dr Martine Walker in respect of Patient A 59Dr Walker provided a report on behalf of the HCCC. She was not required for cross-examination. 60In her report dated 10 February 2012 Dr Walker referred to the "Good Medical Practice: A Code of Conduct for Doctors in Australia" noting this document outlines "the expectations of Australian medical practitioners with respect to their relationships with patients". We note that 3.2.6 of the Code is as follows: Recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients physically, emotionally, sexually or financially. 61Dr Walker opined: Peer general practitioners would be of the opinion that any sexual contact between a doctor and patient, regardless of whether consent seems to have been given is a betrayal of the trust implicit in the doctor patient relationship. As such in my opinion [the practitioner's] behaviour in performing fellatio on [Patient A] falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invites my strong criticism. 62Dr Walker also found aspects practitioner's conversation with Patient A about his partner (performing cunnilingus on her) had no relevance to his treatment of the patient and attracted her strong criticism. 63Dr Walker strongly expressed her criticism of the practitioner's behaviour in performing fellatio while treating Patient A's genital warts, regardless of whether this was consensual or not. She found the practitioner's conduct to be "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and invites my strong criticism". 64We had no hesitation in accepting, in their entirety, the unchallenged opinions expressed by Dr Walker in her report. Those opinions coincide with our assessment of the evidence and the practitioner's conduct as disclosed in that evidence in respect of Patient A. 65We are independently satisfied that the complaints of unsatisfactory professional conduct and professional misconduct are established to the requisite civil standard in respect of Patient A. We will later address, by reference to the expert evidence, the issue of whether this conduct is explicable because the practitioner was suffering an impairment in 2011. 66

The evidence of the practitioner's treating psychiatrist 67Dr Chee provided a report dated 13 July 2014. He also gave oral evidence before us by telephone. In his report Dr Chee does not refer to the complaint in respect of Patient B, and it was not initially clear to us whether the practitioner had disclosed this complaint to his treating psychiatrist. 68Dr Chee's evidence does not impact on our findings in respect of the complaint involving Patient A. His evidence is, however, relevant to our assessment of the evidence in respect of Patient B and appropriate protective orders. We will return to aspects of his report and oral evidence when addressing those topics later in these reasons. 69Dr Chee set out in his report the background stressors experienced by the practitioner, and explained that there have only been infrequent occasions when the practitioner has, since 2011, experienced a deterioration in his mood. 70Dr Chee noted that he had discussed the practitioner's sexual orientation, and the practitioner denied he had homosexual inclinations. He notes: He [the practitioner] cannot understand how he came to perform oral sex on the male patient that day, except for the contributors listed above. He now discusses it as an act he finds abhorrent, and particularly given that he had just been consulted by the patient about the possibility of sexually transmitted diseases in the man. He denies any sexual attraction towards the male patient whatsoever. In retrospect, it was a completely illogical and impulsive act. 71Dr Chee opined that the practitioner had suffered a Major Depressive Illness which is now resolved and that he no longer suffers from anhedonia. In his report he describes the practitioner's diagnosis as "cautiously optimistic".

The evidence in respect of the Complaint concerning Patient B 72The complaint in respect of Patient B was amended to insert different date periods during which the practitioner is asserted to have engaged in inappropriate conduct with Patient B. The document is described in the index to Volume 3 of the HCCC's documents (which became exhibits before us) that it was "approved 13 June 2014". No objection was taken to the late amendment to the complaint by Mr Lynch, counsel for the practitioner. On 20 February 2014 an order was made for the two complaints to be consolidated and heard together. 73The particulars of this complaint are relevant to properly understand the allegations made against the practitioner, his response to them, and the evidence of Patient B, and that of his friend Ms MB. The complaint refers to Patient B attending 15 consultations between 12 August 2008 and 19 August 2010.The particulars of the amended complaint are as follows: (1)During a consultation with the practitioner between 17 September 2009 and 19 August 2010 (inclusive) the practitioner performed a clinical examination on Patient B without wearing gloves, which was not clinically warranted in that the practitioner: (i)placed Patient B's testicles in the cup of his hand and "jingled" them whilst Patient B was lying on the examination table; (ii)placed his hand around the shaft of Patient B's penis and repeatedly pulled the foreskin down whilst Patient B was lying on the examination table; (iii)knelt in front of Patient B whilst Patient B was standing, naked from the waist down and placed his face centimetres from Patient B's genitalia; and (iv)whilst in this position sniffed Patient B's penis; (v)whilst in this position offered to suck Patient B's penis. (2)On one or more separate occasions with the practitioner between 17 September 2009 and 19 August 2010 (inclusive) the practitioner asked questions of Patient B that had no clinical basis namely: (i)what the patient's sexual orientation was; (ii)whether or not Patient B watched pornography; (iii)whether Patient B masturbated his brothers; (iv)whether Patient B was interested in Asian men; (v)whether Patient b liked rough sex. (3)On one or more separate consultations with the practitioner between 17 September 2009 and 19 August 2010 (inclusive) and after Patient B had informed the practitioner that he was gay, the practitioner asked questions of Patient B that had no clinical basis and/or were inappropriate, namely: (i)whether or not Patient B "swallowed", Patient B assuming this was in reference to performing the act of fellatio; (ii)(whether Patient B was a "taker" or a"giver", Patient B assuming this was in reference to his preferred sexual position when engaging in homosexual sex; (iii)how large his penis became during an erection; (iv)whether Patient B liked rough sex. (4)During a consultation with the practitioner between 17 September 2009 and 19 August 20010, where Patient B may have presented with back pain, the practitioner performed a clinical examination on Patient B without wearing gloves, which was not clinically warranted in that the practitioner: (i)placed Patient B's testicles in the cup of his hand and "jingled" them whilst Patient B was lying on the examination table; (ii)placed his hand around the shaft of Patient B's penis and pulled the foreskin down once or twice, whilst Patient B was lying on the examination table; (iii)knelt in front of Patient B whilst Patient B was standing unclothed from the waist down and placed his face centimetres from Patient B's genitalia; and (iv)whilst in this position sniffed Patient B's penis; (v)whilst in this position, informed Patient B that he wished to examine whether he could get a blood flow or an erection by moving his shaft up and down, to which Patient B said "no".

Patient B's statement and oral evidence 74Patient B is a young homosexual male presently aged 23 years. In addition to Patient's B's report to the police on about 19 August 2010, he provided two statements dated respectively 30 March 2012 and 5 October 2012 which were relied on by the HCCC. Patient B was rigorously examined by Mr Lynch, counsel for the practitioner, over the course of the first and second day of the hearing. 75In his first statement Patient B relates first consulting with the practitioner when he was about 16. In his oral evidence he said at that time he was accompanied by his mother. He next relates consulting the practitioner at his present consulting rooms in the first few months of 2010 for a chest infection. He says during this consultation the practitioner asked him about his sexual preference and that he told him he was gay. He then reports the practitioner asking him to pull down his pants and underpants. 76Patient B goes on to assert: [The practitioner] conducted a hernia test on me. He asked me to bend over and he held my testicles in his hand and told me to cough. He walked around to the front of me and pulled my foreskin back on my penis. He didn't tell me what he was going to do or what the examinations were for. ... he asked if I was "a top or a bottom" which is a reference to sexual positions. He asked me "Do I swallow" and asked how big my penis got when I was erect. He asked if I masturbated. [The practitioner] asked me if I liked Asian men. I said no. He asked if I liked men older or younger. 77Patient B thereafter relates to seeing the practitioner on a number of other occasions because of abdominal pain and he asserts on each occasion he "did the same sort of examination of hernia - he held my testicles and asked me to cough, and pulled back my foreskin". He goes on to record feeling uncomfortable and says "But because he was a doctor I thought it was ok." Patient B asserts 'he thinks" last time he saw the practitioner, that his shirt was off, and that the practitioner starting playing with his nipple, again asked him to drop his pants and then got down on his knees so his face was in line with Patient B's genitals. Patient B relates "he pulled my foreskin back and started playing with my penis ... [the practitioner] put his face near my penis and he said to me 'do you want me to give it a suck'". Patient B asserts he said no, pulled up his pants and left. He records feeling "dirty and ashamed he had done that to me". 78Patient B records that, after the last consultation, he told a friend about what had occurred and she told him he should make a complaint. The friend later accompanied him to the police station where he made a report. The report bears two dates namely 19 and 20 August 2010. 79Patient B's second statement was made after he was shown the practitioner's clinical records of his consultations. In his oral evidence Patient B reported feeling under pressure when being interviewed by the HCCC to recollect precisely on which dates certain events had occurred. 80In the second statement Patient B records that "I am pretty sure the first time [the practitioner] did anything to me that I considered inappropriate was at the consultation dated 24 February 2010". He relates he was complaining of a headache and stomach pain. Following an examination of his stomach he reports the practitioner told him to pull his pants down so that he could look at his penis. He says that the practitioner conducted a hernia examination with him lying on the examination couch, that he was not wearing gloves that he jiggled his testicles and "he then took his left hand and put it around the shaft of my penis and made a downward movement to pull my foreskin down and up". At the conclusion of this examination Patient B records that the practitioner asked him to stand up, that the practitioner knelt in front of him "pulled back the foreskin of his penis and sniffed my penis with his nose". He says "When [the practitioner] sniffed my penis I was really uncomfortable", that he had no advance warning of what the practitioner did, nor was he given any medical reason for it. Patient B says that the practitioner then asked him would he like him to suck his penis. Patient B asserts the practitioner asked personal questions when he was standing up. In this statement he added to the evidence in his earlier statement about the practitioner asking him whether he masturbated. He stated that the practitioner asked whether he masturbated his brothers. 81Patient B asserts at this consultation that the practitioner moved his hand with the palm open around his pectoral area, asked whether he worked out at the gym. Patient B says he was referred for a chest X-ray, and when he attended the X-ray facility he told the receptionist, who was aged about 40, words to the effect "the doctor played with me". He asserts the receptionist said "no don't worry about it. He was probably just doing a normal procedure". He says he accepted the receptionist's advice. However, he says he subsequently told his friend Ms MB what had occurred and that she advised him to report the doctor's conduct. He says he told Ms MB "I felt bad because in the back of my mind I was worried if he had kids and lost his job, I would feel guilty. So I didn't report it". 82Patient B saw the practitioner the following day about an ingrown toenail. He says he took a couple of friends with him because he was afraid to go to the consultation alone. 83In respect of two consultations that occurred respectively on 4 May 2010 and 9 August 2010, Patient B confirms that he took Ms MB with him to those consultations. Patient B says, by reference to the clinical notes, that it was in May 2010 when he attended complaining of back pain that further inappropriate behaviour occurred. At this consultation he relates the practitioner telling him to lie on the examination bed, and to pull his trousers and underpants down to his thighs. He says "I was feeling very nervous and scared when I started to pull my pants down". He then relates the practitioner cupping his testicles and jiggling them in the palm of his hand. He says the practitioner, who was not wearing gloves, "pulled his foreskin down once or twice". The practitioner requested Patient B to stand up. As in his first statement, he records the practitioner putting his face close to his penis and sniffing it. He goes on to say that "The practitioner then said he wanted to see if he could get a blood flow or an erection up by moving the shaft up and down. At this time [the practitioner] had taken the shaft of my penis in his hand. I said 'No' and I pulled up my underpants and trousers". Patient B says the practitioner did not say anything when he started dressing, but gave him a script after which Patient B left and immediately went to Ms MB in the waiting room. 84In respect of a consultation on 9 August 2010, Patient B in his second statement, reports going to see the practitioner because he was worried he may have caught a sexually transmitted infection. He explained that he went to the practitioner because he first tried three other general practitioners practising in Campbelltown but there was a waiting time to see them. He records he also took Ms MB with him to this consultation. He says he knew that the practitioner would conduct a genital examination because he had a discharge from his penis. He asserts the practitioner's conduct at this consultation was "reasonable" apart from inappropriate questioning of him. He records, at this consultation, the practitioner asked if he liked "rough sex", whether he was a "giver" or a taker" and if he "swallowed". At subsequent consultations on 12 August and 19 August 2010 Patient B says he was accompanied by Ms MB and nothing inappropriate happened on these occasions. 85The COPS report, which is annexed to Patient B's first statement refers to inappropriate behaviour by the practitioner which occurred "some 5 months ago (unsure of the exact date)". 86As earlier noted, Patient B was extensively cross-examined by Mr Lynch. Patient B was a poor historian, and his answers in cross-examination deviated in some details from his evidence in his statements. He did explain that he had experienced problems following an appendectomy suffering abdominal pain. He denied telling the practitioner at the consultation on 12 August 2008 that he was gay but said this happened at the second or third consultation, when he was alone in the consulting room and it was the first question the practitioner asked. Early in his cross-examination he conceded he could not remember what happened on any particular day he saw the practitioner saying "I don't remember the day or when I went to see [the practitioner] or what I went to see him for. I just remember what happened on the occasions he did it twice to me". 87While Patient B asserted he was referred by the practitioner for a chest X-ray, his records reveal the referral was for an abdominal X-Ray on 18 September 2009. The records also disclose a genital examination was conducted on the previous day, 17 September 2009. The records further disclose that on 29 October 2009 the practitioner proposed to conduct a rectal examination, but Patient B refused this examination. 88Patient B also conceded in cross-examination that what he meant in his statement that the practitioner had moved his hand up and down the shaft of his penis was that the practitioner had pulled back his foreskin. In re-examination he was unable to clarify when the practitioner pulled back his foreskin whether or not the practitioner's hand was on the shaft of his penis.(transcript 29 July 2014 p 96). 89Towards the end of Patient's B's lengthy cross-examination in respect of the consultations, which Mr Lynch acknowledged had occurred four or five years previously, Patient B answered the majority of questions put to him saying "I can't remember" or "I can't recall". However, he remained firm in his general account of the asserted abuse. When questioned about whether he was an active or passive participant in sexual intercourse the following exchange occurred: Q. You don't remember what words he used precisely do you? A. I do remember just most of it, yes. I do remember him asking me if I was a top or a bottom. I do remember him asking me if I watch gay porn. I do remember him asking if I masturbated. I do remember him if - asked if I measured my own penis. I do remember him asking me if I swallowed. I do remember him asking me if liked Asian men. I do remember him asking me if I liked older men. I do remember him asking me inappropriate questions like that that will scar me for life and what he did to me scarred me for life. Q. He never asked you-- A. Yes he did. Q. Let me ask the question please. He never asked you any of those questions you've just referred to? A. Yes he did. I would not lie. I would not put myself through this. 90Patient B maintained in his oral evidence his assertion that the practitioner had conducted two genital examinations on him when inappropriate behaviour occurred. 91Patient B did consult the practitioner on 9 August 2010 according to the clinical notes and Patient B's statement. Patient B acknowledged on this occasion he had a discharge from his penis and that he knew the practitioner would conduct a genital examination. On 10 August 2010 the clinical notes disclose Patient B attended the practitioner's surgery after "a recent sexual encounter with another man, condom broke". Under the heading "Examination" the practitioner recorded "urethritis, no rash, no in". The notes also record "advise, educate re safe sex". As earlier noted, Patient B in his second statement said, when he was examined by the practitioner on 9 August 2010, that the practitioner did not act improperly except for asking inappropriate questions. He concedes at this examination the practitioner wore gloves. 92Patient B gave evidence that he was scared to reveal his sexuality and first told a close friend he was gay when he finished the HSC in 2008. When his friend accepted his disclosure, he told other friends but not his parents. He said he had only revealed his sexuality to his family last year by first telling his mother. 93Patient B was challenged about why he had returned to see the practitioner after the alleged incidents. He said that that he wanted to get results of blood tests, that he was afraid to go by himself, and took Ms MB with him to subsequent consultations. The practitioner's own evidence corroborates Patient B's evidence that he was accompanied by a friend or friends when he attended for consultations. Patient B was challenged as to whether he had asked Ms MB to leave the consultation room when she accompanied him to an appointment, or whether it was the practitioner who requested she should remain outside. 94Patient B explained in answer to a question posed by Mr Lynch that, about eighteen months after he made his report to the police, he received a letter from the HCCC to which he responded by telephoning the HCCC. He explained when he attended the offices of the HCCC and was shown the clinical notes relating to his attendances on the practitioner he felt "pressured to come up with, when I doing, writing my statement felt pressured to come up with a timeframe and dates and I don't remember any dates, I just remember what occurred with the consult". He was however adamant saying "I remember I clearly remember what he did that is what sticks out in my mind". At another point in his cross-examination Patient B said: "What he did to me did happen". He explained that he had agreed to go to the police as suggested by Ms MB "so he couldn't do it - what he did to me couldn't do to other people" (transcript 28 July 2014 p 57). 95Patient B in answer to questions posed to him by Mr Lynch denied that the practitioner had asked him whether he was the active or passive partner when he engaged in sexual intercourse. Rather, he said the practitioner asked him if he was "a top or bottom", looked at gay porn, masturbated, measured his penis, liked older men and or Asian men". 96Towards the end of Patient B's cross examination on the first day of the hearing he was visibly distressed, but notwithstanding his express wish not to return the following day, he did return and was subject to further cross examination. 97Patient B presented as an unsophisticated, somewhat immature and insecure young man. He explained that he has problems with written English and literacy. He was, however, firm in his evidence that the practitioner had sniffed his penis, played with his nipple, and offered to suck his penis. He responded to the following questioning denying he was untruthful or that he had deliberately omitted a significant details from his statement: Q. It's not true where you say he asked me something like: "Would you like me to suck your penis"? A. That is true. Q. Was something like that was it? A. I remember him asking me and he asked if he wanted me - sorry, I remember him asking if he want - sorry I can't get the words out. PRINCIPAL MEMBER Q. Just take your time? A. I remember him saying do you want me - would you like me to give it a suck. Q. Why didn't you say that in your statement? A. Because I - that's why I know he asked me that. I don't know how to - sometimes I don't know how to write down what I'm thinking. I have trouble writing from my head to - I have trouble writing sometimes and that's why sometimes it doesn't make sense when I write. Q. Didn't [the practitioner] give you some advice about safe sex in August 2010? A. I don't recall. Q. He didn't ask you if you were into Asian boys? A. He did. Q. He didn't ask you I suggest whether you masturbated with your brothers? A. He did. Q. He didn't ask you whether you liked rough sex? A. Yes he did. 98Notwithstanding Patient B's non responsive answers to many questions posed to him in cross-examination, particularly on the final day of his evidence, his failure to recollect with any precision dates of consultations, and specifically when the alleged particular conduct occurred, we found him to be a truthful witness. We note that the events occurred some four to five years prior to this hearing, and his statements were prepared some two years after the events in question. We did not find Patient B sought to embellish his evidence, and that the answers he provided were given honestly and to the best of his ability.

Ms MB's statement and oral evidence 99Ms MB has been a friend of Patient B for about six years. They met through mutual friends at school. She reports attending medical consultations with Patient B. In her statement, which is dated 12 October 2012, Ms MB explains that in 2010 she went to the practitioner's surgery with Patient B and that the practitioner asked her to leave the room. She reported Patient B leaving the doctor's room at the end of the consultation, grabbing her hand, looking distressed and that he pulled her out of the surgery waiting area. She reports that when Patient B got into her car he said "the doctor was just like stroking and smelling my penis". She says he also said the practitioner was "asking me about what positions I liked". 100Ms MB records that she told Patient B he should make a report to the police. She said she drove him to Campbelltown Police Station and "We went inside and we were only there for a short period of time before [Patient B] wanted to go outside. She records telephoning her mother and asking for advice. 101Later in her statement Ms MB reports going to the police on a second occasion in about March or April 2010 and that she and Patient B were separately interviewed for about one hour. We note that the police records disclose this attendance was not in March or April 2010, but on 19 or 20 August 2010 shortly after Patient B's last consultation with the practitioner. 102In her oral evidence Ms MB explained that she had provided information to the HCCC over the telephone. She had been driving her car, pulled over and spoke to a HCCC representative, who then prepared the statement which she signed. The statement reflects language which we find Ms MB used when speaking to the HCCC representative. 103Ms MB's statement is corroborated, in part, by a statement of her mother, Ms DB. 104Ms MB gave her oral evidence is a confident manner. Despite rigorous cross-examination she was not shaken in the general tenor of her evidence. We accept that she did attend consultations with the Patient B, that Patient B did report inappropriate sexual conduct by the practitioner to her immediately after a surgery consultation including that he reported the practitioner had "stroked his penis, asked if he liked oral and what positions he liked". She reported that she had been present at the commencement of a consultation, and that the practitioner had gestured to her to leave the room. We further accept that she accompanied Patient B to the police station when he made a statement in August 2010. 105Although there is a discrepancy in her statement, and that of Patient B about whether they went into the Police station on the day Ms MB was present when alleged inappropriate behaviour occurred, or only went to the car park, we found her evidence credible and believable. We note that in her oral evidence in cross-examination Ms MB said on the first occasion she and Patient B attended the police station they just sat in the carpark. We accept her recollection about dates is poor, and that she may have confused her first attempt to take Patient B to the police in about May 2010 with the reporting on 19 or 20 August 2010. We accept she is mistaken about the date of the latter attendance at the police station, which we note occurred some two years before she made her statement to the HCCC in the circumstances we have outlined, and nearly four years prior to the giving of her oral evidence. 106Notwithstanding the deficiencies we have highlighted in Ms MB's evidence, she presented as a forthright and honest witness. We accept her as a witness of truth.

Concessions made by the practitioner in respect of his treatment of Patient B and his oral evidence 107In respect of Complaint 1 particular 1 the practitioner states: I admit this allegation when I examined the patient's genitals as per recorded on 17 September 2009. This is an expected part of the examination of a patient who presented with abdominal [sic] of unclear origin. The glove was not worn because the genital examination was only a very brief part of the general examination. The genital examination lasted for no more than few seconds. I considered my examination clinically warranted. 108The practitioner also concedes particular (ii) in part. In his oral evidence he clarified his concession saying that, whilst he conducted a genital examination without gloves, he did not examine Patient B's testicles in the manner described in the amended Complaint. He explains that at two consultations the patient presented with urethritis. He acknowledges that he pulled the patient's foreskin back. He says he wore gloves at these two consultations and pulling back Patient B's foreskin was clinically warranted. In his oral evidence the practitioner described being certain that the patient presented on one occasion with classic symptoms of a sexually transmitted disease. This consultation occurred on 9 August 2010. Later pathology tests did not support the practitioner's provisional diagnosis. 109The practitioner denied sniffing Patient B's penis, offering to suck his penis, asking about his sexual orientation except at the first consultation, questioning him about pornography, masturbating his brother, having an interest in Asian men or liking rough sex. 110In relation to the third paragraph of the amended Complaint, the practitioner agreed he had asked the patient, who presented "with a symptom of possible sexually transmitted disease" in the context of recent unsafe sex whether he was an active or passive partner. He also explained that, on 12 August 2010, when he says Patient B complained of a sore throat, he asked him if he performed oral sex on his partner, not whether he swallowed. 111The practitioner denied all other allegations set out in the amended Complaint. 112In his oral evidence the practitioner asserted that he had, in accordance with his usual practice, asked Patient B about his sexuality at his first visit, and this was recorded in his computer records. A copy of a photograph of the screen of the practitioner's computer was tendered in evidence. It discloses under the heading "sexuality" the word "homosexual". There is, however, nothing to indicate when this computer entry on the Medinet system maintained by the practitioner was made, and we gave little weight to this exhibit which we note was not produced until the second day of the hearing. The practitioner re-iterated his denial of Patient B's allegations in his oral evidence in chief. 113The practitioner also explained that he believes when he is under extreme stress he tends to act "out of character" and said his clinical psychologist, Ms Catarino, gave him a "long list of bizarre behaviour" a number of which behaviours he identified himself as suffering. He said "some of them I believe involve unusual sexual acts and so on" (transcript 29 July 2014 p 139).

The expert evidence of Dr Hani Bittar in respect of Patient B 114The HCCC relied on an expert report by Dr Bittar, undated, asserted to have been received on 9 January 2013 and a letter dated 14 June 2014 in response to questions posed to the doctor by the HCCC. Dr Bittar was not required for cross-examination. 115In commenting on the examinations of Patient B by the practitioner on 24 February 2010 and 4 May 2010, as described by the patient, Dr Bittar opined: Some aspects of [the practitioner's] examination to [Patient B's] abdomen and genitalia for hernia are not consistent with acceptable clinical practice standards (eg) standing behind the patient, putting his hand on top of the patient's buttocks, cupping his testicles, retracting his foreskin, sniffing his penis and moving it up and down. In my opinion, in doing so, [the practitoner's] examination departs significantly from the expected standard of a practice of a medical practitioner of an equivalent training and experience and would invite my strong criticism. 116He also opined that the failure of the practitioner to wear gloves during the first two identified consultations was a significant departure from expected standards and invited his strong criticism. 117In respect of the allegations of asking Patient B about sexual positions and activities, Dr Bittar explained that he could understand questions about the patient's sexual orientation, and preference as a giver or receiver in the context of the STI check, but he said he could "not justify" questions about preferred positions, preference towards Asian males or the other aspects of questioning reported by Patient B. In respect of the allegation of sniffing Patient B's penis and offering to suck it, unsurprisingly, Dr Bittar opined if this evidence is true that: I find [the practitioner's] behaviour totally unacceptable and a significant departure from the expected standard of practice of a medical practitioner of an equivalent training and experience and would invite my strong criticism. 118Appropriately, at the time of preparing his report, Dr Bittar noted he was hampered in that he did not have a response from the practitioner to Patient B's allegations. 119In his letter dated 14 June 2014, Dr Bittar said if Patient B complained of a sore throat that asking if he performed oral sex was justified to exclude causes of this complaint such as oral Herpes. 120He also opined that oral examination of testicles and external genitalia is justifiable in a case of abdominal pain. But he went on to explain: I am not sure if the correct way of examining testicles is to put them in the cup of the hand and allegedly 'jingle' them and I don't accept [ the practitioner's] explanation for not wearing gloves. Verbal consent and explanation before performing the examination should have been taking (sic). 121In responding to a question concerning the practitioner's explanation of the genital examination of Patient B in [30] and [31] of his statement he confirmed his opinion set out in his earlier report. He opined: Examination of the penis: Again verbal consent and explanation should have been taken. There is no need for the examiner to put his hand around the shaft of the patient's penis and certainly no need to repeatedly retract the foreskin. A gentle grasp with 2 fingers is usually enough. In my opinion the way [the practitioner] has conducted this intimate examination on his patient falls below the standard expected from health practitioners of equivalent level of training and experience. I would consider it as a significant deviation from the standards and deserves my strong criticism. 122Subject to our factual findings set out below, we had no hesitation in accepting Dr Bittar's unchallenged opinions expressed in his report.

Propensity evidence 123Our assessment of the veracity of the evidence of Patient B, his credibility and the credibility of the practitioner became a matter of sharp focus in the respect of the amended Complaint. This was because of Patient B's poor recollection of dates and reasons for attendance on the practitioner. Additionally, there was little by way of corroborative evidence, that evidence being limited essentially to that of Ms MB, the police COPS report of 19 August 2010, and the practitioner's clinical notes. We also note a significant period of time has elapsed since the relevant consultations. The practitioner conceded many of his answers were based, not on direct recollection, but by reference to his normal practice based on his clinical notes. 124Ms Mathur submitted this was a case where the principles in respect of propensity evidence are relevant, and should be relied on by us in determining these proceedings. 125By contrast, Mr Lynch cautioned against "filling the gaps" in the evidence by inappropriate reliance on the principles in respect of propensity evidence or using that evidence in assessing the reliability of Patient B's evidence.

Relevant principles -propensity or tendency evidence 126In dealing with this topic we first note that Schedule 5D cl 2 of the National Law, which deals with the admission of evidence provides as follows: In proceedings before it, a Committee or the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit. 127Although the clause set out above deals with the "admission of evidence", it is clear that the proceedings are not strictly adversarial. The rules of evidence as found in the Evidence Act 1995 (NSW) are not applied. But those rules provide a useful and relevant touchstone both to matters of procedural fairness and natural justice. They provide guidance about the use of propensity or tendency evidence as do the authorities discussing the relevant rules. 128Propensity is defined in the Macquarie Dictionary as: (1)Natural or habitual inclination or tendency: a propensity to fault; (2)Obsolete favourable disposition or partiality. 129Tendency is defined as: (1)Natural or prevailing disposition to move, proceed, or act in some direction or towards some point, end or result. 130The relevant provisions of the Evidence Act are s 55, and s 97. The background to the enactment of these provisions, and the common law are extensively discussed and explained by Sackville J in Jacara Pty Ltd v Perpetual Trusteees WA Ltd [2000] FCA 1886. (see also R v Harker [2004] NSWCCA 427; Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 579) 131In Zaidi v Health Care Complaints Commission and Anor (1998) 44 NSWLR 82 Mason P, with whom Priestley and Powell JJA agreed, discussed similar fact evidence. In that case a medical practitioner appealed, amongst other matters, about a Medical Tribunal taking into account in respect of some particulars of a complaint of sexually inappropriate conduct, evidence given in respect of other particulars. The evidence was evidence of three women each of whom made a complaint of inappropriate sexual conduct by the practitioner. The Medical Tribunal found the likelihood of the "unrelated women of different backgrounds making false allegations against the same doctor" to be remote. 132Before the Court of Appeal the doctor asserted that the Medical Tribunal should have considered the evidence relating to each complaint separately "entirely uninfluenced by the evidence regarding other complaints except where, by analogy with the criminal law, the similar fact evidence has sufficient probative force to be taken into account". 133Mason P distinguished the situation in NSW under the provisions of the then Medical Practice Act 1992 with that applying in New Zealand and the United Kingdom where the standard of proof was the criminal standard. The President noted the distinguishing features between the jurisdictions to be the different standards of proof, the constitution of the relevant tribunals, and importantly that the Medical Tribunal was not (as is the case with this Tribunal) bound to observe the laws governing the admission of evidence and may inform itself in such manner as it thinks fit. He later distinguished features in NSW from those pertaining to Queensland. 134The President set out and adopted as correct a passage from the reasons for judgment of Mackenzie J in Purnell v Medical Board of Queensland (Court of Appeal 15 August 1997 unreported). In that passage Mackenzie J explained: One similar allegation containing the same peculiar feature or features may have considerable weight in supporting a complainant's evidence. On the other hand where acts alleged do not contain any particularly unusual features but are similar, the fact that there are a number of allegations from different persons may assist in drawing an inference that the act with which the court is concerned occurred to the required standard of proof ... Ultimately the question is whether the inference that the act complained of was committed upon the complainant can properly be drawn having regard to the standard of proof applicable to the kind of case before the tribunal. Where credibility of a complainant's evidence is in issue the fact that complaints of similar acts have been made by other persons can provide strong support of the complainant's evidence in the absence of any factors diminishing the strength of the inference logically available from the fact that they were made independently of and unaffected by the complainant's own account. 135The Tribunal is conscious of the caveats expressed by Mr Lynch about the limitations on the use of propensity or tendency evidence. We will shortly discuss and make findings about the similarities or otherwise between the independent evidence of Patients A and B and the weight to be given to their evidence. Notwithstanding Mr Lynch's submission, we may, however, assess the credibility of the practitioner by reference to his answers given in cross-examination, his demeanour in the witness box, and by reference to other documentary evidence (see Abalos v Australian Postal Commission 1990 HCA 47; 171 CLR 167)

Discussion and Findings 136We commence our discussion by referring to the practitioner's evidence in relation to Patient A. In cross-examination the practitioner, when faced with the transcript of the recording of his consultation with Patient A, and the discrepancies revealed in that transcript and his statement, said his statement reflected his true and honest belief, but now having read the transcript he accepts his statement was not accurate. He also asserted he did not intend to lie to the panel in the s 150 proceedings, and said that at the time he was very depressed. He conceded when pressed by Ms Mathur that he had said to Patient A "You have a beautiful dick and I want to suck it". He attributed his behaviour on the morning of 3 July to "an anger feeling. I just wanted to destroy everything" and "I just like to punish my wife on that morning". He also conceded that one reason he committed fellatio on Patient A was that he was of the belief he would never have to see him again (transcript 30 July 2014 p 167). 137Later in his cross-examination the practitioner agreed (as is clear in the iPhone recording and the transcript of it) that in his consultation with Patient A the practitioner asked the patient "did you fuck her last night", and had suggested to Patient A he needed to suck his partner's "cunt". He conceded the language used in this consultation was highly unprofessional. 138We were unable to accept the practitioner's explanation that the position he adopted before the police, at the s 150 proceedings, in his letter to the HCCC dated 21 November 2011 was a genuine mistake. We note he made no attempt to clarify this position in his statement, and only retreated from his position when he read the transcript of the iPhone recording.

Credibility of the practitioner's evidence and that of Patient B 139The practitioner maintained his denials about Patient B's allegations throughout his cross-examination. He did admit that he had not worn gloves when he conducted a genital examination of Patient B on 17 September 2009. He acknowledged it would be prudent to wear gloves and apologised for his practice if it was not regarded as satisfactory. He also conceded that when he pulled down Patient B's foreskin that his fingers could be touching the shaft of the patient's penis. He agreed that he may have pulled back Patient B's foreskin more than once. 140The practitioner said he had found Patient B to be an unusual patient who presented many times with multiple complaints. He conceded, however, that he had referred him to a specialist for his recurrent abdominal pain following removal of his appendix. 141The practitioner denied he liked Lebanese men, although he conceded he had made such a statement to Patient A. We note Patient B is of Lebanese heritage. He also agreed that he had not made any record in his clinical notes of asking Patient B whether he was an active or passive participant in sexual intercourse notwithstanding this is something he asked Patient B who, he said, presented with classic text book symptoms of a sexually transmitted disease. 142Mr Lynch referred to the HCCC serving its brief of evidence in June 2013, but noted that the amended Complaint had expanded the particulars, and in the case of particular 3, had significantly expanded the complaint. He submitted we should find Patient B to be an unreliable witness. He submitted not only would we find that Patient B had deficiencies in recollection, but his oral evidence contradicted prior statements, and that he had made false statements. He submitted that we should find Patient B was not a witness of truth, and an insecure individual. On this basis he submitted we should accept and prefer the evidence of the practitioner. 143We do not propose to canvas in any detail Mr Lynch's submission about the expanded width of the complaint. There was no opposition to the amendment of the complaint by the HCCC before us, or prior to the hearing. Insofar as Mr Lynch submitted that there could be procedural unfairness to the practitioner, by reason of it being unclear on which particulars the HCCC relied we found proved, we accept the submissions of Ms Mathur on this topic. We are conscious of the difficulties for a practitioner that Basten JA highlighted in Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [27]-[31] and in Lucire v HCCC [2011] NSWCA 99. The conduct particularised in the amended Complaint is not, as Ms Mathur pointed out, asserted to be in respect of four discrete dates, or events, but rather the particulars refer to specific conduct "on one or more separate consultations" of the fifteen consultations that Patient B had with the practitioner. We are satisfied from the practitioner's evidence that he was well aware of the nature of the complaints brought against him as particularised in the amended Complaint. 144Mr Lynch submitted it was improbable that, if the practitioner had engaged in the conduct asserted by Patient B on one consultation, he would return to the practitioner for future consultations. We accept, on its face, the fact that Patient B would choose re-present to the practitioner, if the alleged inappropriate conduct had occurred, appears improbable. But it is not in dispute that Patient B did not attend, with one exception, any consultation with the practitioner after the examinations the subject of the amended Complaint unless he was accompanied by friends including Ms MB, and he had an explanation as to why he attended in August 2010 when he thought he may have contracted a sexually transmittable disease. The practitioner himself confirmed Patient B brought friends to consultations. 145While it may be said Patient B's actions in continuing to attend the practitioner are difficult to reconcile with his assertions about the practitioner, and the effect of his conduct on him, we do not reject his evidence on this basis. First, his evidence disclosed an insecure, and somewhat unsophisticated, immature young man with frequent consultations in the light of his presenting and ongoing symptom of abdominal pain following his surgery. Second, immediately after the first consultation, when Patient B thought the practitioner behaved inappropriately, he was persuaded or reassured by a mature receptionist at the X-Ray facility that the doctor's behaviour was probably normal. We accept he relied on and accepted the advice given by the receptionist. Third, he attended the practitioner, as a matter of convenience, in August 2010 because there were not lengthy delays to see the practitioner. Fourth, and of considerable significance, Patient B ensured after the first incident, save and except for one August 2010 consultation, he did not attend a consultation unless accompanied by a friend or friends thereby ensuring that inappropriate conduct should not occur. 146We accept that Patient B is a poor historian and his second statement is unreliable in quoting dates on which the asserted inappropriate consultations are said to have occurred. We note that Patient B only referred to being "pretty sure" of dates in his second statement. We also accept as cogent and reliable his evidence that he felt pressured at the HCCC to come up with dates when providing that statement. His oral evidence and details in his second statement are more consistent with the first inappropriate behaviour having occurred in September 2009 rather than February 2010. We have balanced that deficiency in the HCCC's case with the totality of the evidence particularly Patient B's oral evidence. 147We repeat our assessment of the veracity of Patient B's evidence from our observations of him in the witness box. We also take into account the fact that, without any knowledge of Patient A, or for any motive other than to protect other patients, this young man at a very vulnerable time in his life, when he was afraid to disclose his sexual orientation to his family, went to the police and made a report. He had no motive other than to protect the public in doing so. It defies belief that he would have made a report, which involved disclosing his sexuality, and details about an intimate examination unless his statements were true. We accept that the Police COPS report does not appear, on its face, to refer to more than one incident of inappropriate sexual behaviour by the practitioner. However, in assessing this evidence, we take into account that the COPS report is not a formal statement, read over and signed by Patient B. It may, or may not accurately record what he disclosed about his sexuality (i.e. that he was bisexual) or fully and accurately record all Patient B reported. 148Much was made of Patient B being untruthful or that he was a somehow extraordinary patient. The former submission was based on Patient B's Facebook entry. Patient B candidly acknowledged he had maintained a Facebook page, and that he had made an entry referring to himself as a doctor in a southern suburb. He said this was a joke. We note the entry refers to Patient B obtaining medical qualifications at a technical college. We accept Patient B's evidence that the Facebook entry, was intended to be read by his friends, as a joke. If anything, the Facebook entry reflects his immaturity. 149A submission was made by Mr Lynch that Patient B was an extraordinary patient akin to a hypochondriac. We infer this submission is made to support a finding that he was an unreliable witness. If this assertion is accurate, it may be inferred that this was why the practitioner chose Patient B as the target of his inappropriate behaviour. The assertion was not put to Patient B, nor was it put to the practitioner that he had targeted Patient B because of he was somehow extraordinary. We do not place any weight on this submission. 150We have already set out our assessment of Patient B's credibility, and that he was an honest and believable witness. Our assessment of his evidence is to be contrasted to that of the practitioner whose evidence we were unable to accept as truthful. We are satisfied he lied to the police and to the Council. We are comfortably satisfied, independent of any tendency evidence, that Patient B's evidence, which we have set out extensively earlier in these reasons, together with that of Ms MB, is to be preferred to that of the practitioner. Their evidence establishes the particulars in the amended complaint except 1(ii) and 4(ii) to the requisite civil standard. We accept as a result of Patient B's answers to questions posed in cross-examination in respect of these particulars that we could not be satisfied to the requisite standard that they are established. 151We are fortified in our assessment that the complaints in the amended Complaint are established having regard to the evidence of Patient A. Neither Patient A nor Patient B had any knowledge of the other or their respective statements. Patient B's complaint to the Police pre-dates Patient A's consultation of 3 July 2011. Both are young Lebanese men who presented to the practitioner with problems which resulted in them undergoing genital examinations. Each independently reported the practitioner used unprofessional language when speaking to them (using the words "suck, "fuck" "cunt", and "dick" with Patient A, and "top or bottom", "dick", "porn", and "suck" and "giver or taker" with Patient B. Each reported the practitioner offering to fellate them, saying words "you have a beautiful dick and I want to suck it" (transcript of iPhone recording with Patient A) and "Do you want me to give it a suck" (Patient B's statement dated 30 March 2012). 152The practitioner denied in cross-examination that he used unprofessional language when speaking to Patient B. We do not accept his evidence on this topic. It is inconsistent with the language he used with Patient A and as reported by Patient B. The independent and unchallenged evidence of Patient A lends strong support, or put another way, compelling weight, to the particulars in the amended Complaint being accurate. 153In summary, we are satisfied that complaint one of the amended Complaint is established. That conduct is, as Dr Bittar opined, "totally unacceptable". The conduct established by that complaint is of such serious nature that it justifies the suspension or cancellation of the practitioner's registration. We are therefore satisfied that the complaint of professional misconduct is also established. In reaching this conclusion we also take into account the practitioner's conceded unprofessional conduct and professional misconduct admissions in respect of Patient A.

Protective orders 154Regardless of whether the practitioner's conduct with Patient A was consensual, it was a serious breach of ethical standards and was grossly inappropriate conduct for a professional. It constituted a flagrant breach of the Code of Conduct for Doctors in Australia. His conduct in respect of Patient B was similarly deliberate, unprofessional and highly improper. He exploited a relationship of trust with his young and vulnerable patient. It is not surprising that Patient B now has no trust in male medical practitioners. 155We accept the practitioner was, in the relevant time period, affected by financial problems caused, in part, by his own conduct because of inappropriate Medicare billing practices. We also accept that he was experiencing extreme marital disharmony, and did not have an appropriate work/life balance. He has a history of inappropriate behaviour when stressed as demonstrated by his shoplifting charge and falsification of his supervisor's report when a cardiology registrar. We accept he has been diagnosed as suffering depression. He is a man who is vulnerable to act in unpredictable and bizarre ways. Although he denies he is homosexual, as Dr Wright explains in his report, his conduct with Patient A (and Patient B) lacks a cogent explanation. 156It is the practitioner's case that he has now successfully practised with conditions since the s 150 proceedings and has not posed a risk to the public. He relies on two professional referees as to his good character. It is his position that he should be able to practise, subject to conditions, on the basis, he is presently fit to practise medicine. He relies on authorities, such as HCCC v Della Bruna [2014] NSWCATOD 31, in respect of the principles set out at [89] - [91] of that decision.

Dr Chee's oral evidence 157It is appropriate at this point we refer to Dr Chee's oral evidence. Dr Chee was asked whether the opinion he expressed in his report about the practitioner's progress would vary if the practitioner had not been frank with him about his conduct with Patient B and the second complaint was proved in whole or part. Dr Chee said in response to questions posed by Ms Mathur: Q. In addition to during a consultation asking questions of the patient such as what his sexual orientation was, whether he watched pornography, whether he masturbated his brothers, whether he was interested in Asian men. Whether he liked rough sex, whether he swallowed, whether he was a taker or a giver. How large his penis became during erection and whether he liked rough sex. If one assumed for a moment that that complaint is proved in part or in whole-- A. Yes. Q. --can you indicate what your opinion would be with respect to Dr Vo's ability to be frank and honest in therapy? A. Sure, look if that was - that was true, then I agree that - that he is probably and not as if there were no ugly circumstances like..(not transcribable)..at that time, like what happened the day or two before this second incident, then I agree that one would highly suspect that he is either bisexual homosexual, that's one issue. And secondly, that the risk of offending is much higher than I had previously supposed and that he has not obviously revealed everything to me in therapy. Q. And the fact that he may not have revealed everything to you in therapy, what do you say in terms of the impact that therapy could have in the future then with respect to Dr Vo, given he's been three years in therapy? A. That's right, so I think the impact of therapy is that therapy is not effective with this man. 158We agree with and accept the oral opinion expressed by Dr Chee. 159In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA with whom Basten and Emmett JJA agreed, after discussing s 3(2) (a) and s 3A of the National Law (which we have set out earlier in these reasons) said at [35 ]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 160Here the practitioner, while apologising for his conduct in respect of Patient A, has steadfastly denied any inappropriate conduct with Patient B. We do not find the practitioner has been frank with this Tribunal or Dr Chee, and his prognosis must be guarded. His conduct in respect of Patient A and B was deliberate and serious. It breached the high standards expected of a health professional. Not only do we find that there is a risk, without proper treatment with full disclosure to his treating professionals, that the practitioner may engage in further episodes of bizarre unprofessional behaviour, but the conduct in which he engaged is so serious that cancellation of his registration is warranted to both act as a deterrent to other practitioners, and to maintain the confidence of the public in the profession. 161In short, the principle, as explained in Della Bruna at [91], that generally cancellation of a practitioner's registration is not appropriate unless the practitioner is probably unfit to practise at the time of the hearing and likely to be so for the foreseeable future, is relevant. This is because, for the reasons earlier enunciated, we are satisfied the practitioner is presently unfit to practice, and likely to be unfit to do so for the foreseeable future. 162Accordingly we are satisfied the only appropriate order is that the practitioner's registration should be cancelled.

Period before the practitioner can apply for a review of the cancellation of his registration 163The conduct engaged in by the practitioner showed a complete disregard of ethical standards and was in breach of the Code. We have found the practitioner to be untruthful, and can place no weight on his expressed remorse for his actions, other than his remorse for the consequences of those actions on him, his wife, and his children. 164Dr Chee cogently expressed the view that if the practitioner had not been truthful with him then the therapy engaged in to date had not been of any benefit to the practitioner. 165We are satisfied that a significant period of time should elapse before the practitioner may apply for a review of the cancellation of his registration. During that period he may seek appropriate treatment after full disclosure of his actions to any treating specialist. 166We agree with the HCCC that a period of two years is an appropriate period before the practitioner may again apply for re-instatement. This period reflects the seriousness of the practitioner's conduct, his lack of genuine remorse and insight into his conduct at the date of the hearing, and a period of time in which he may seek appropriate treatment.

Relevant legal principles 167The relevant principles to be applied in respect of costs applications in disciplinary proceedings are subject of well known appellate authority (see Ohn v Walton (1995) 36 NSWLR 77). 168These proceedings under s 139B and s 139E require the hearing of an inquiry into the complaint or complaints made. Schedule 5D cl 13 (a NSW provision of the of the National Law) provides: The Tribunal may order the complainant (if any), the registered health practitioner or student concerned, or other any of person entitled to appeal (whether as of right or because leave to appear has been granted) at any inquiry or an appeal before the Tribunal to pay the costs to another person as decided by the Tribunal. 169Clause 13 (2) and (3) provide a regime for obtaining a costs certificate from the Tribunal, and for the costs order to be enforced and judgment obtained in the District Court. 170The question of the power to award costs is subject of discussion by Meagher JA, with whom Basten and Emmett JJA agreed, in Health Care Complaints Commission v Do albeit in the context of an appeal under s 162 A of the National Law. After referring to the power in s 175B of the National Law which has national application by reason of s 201, his Honour noted, in respect to the power to award costs: That is a provision having national operation pursuant to s 201 it should not be subject to local rules. It should be treated as conferring an unfettered discretion on the Tribunal. 171His Honour then referred to the decision of the Court of Appeal in Health Care Complaints v Philipiah [2013] NSWCA 342 as follows: In Health Care Complaints Commission v Philipiah [2013] NSWCA 342 the Court accepted that "[a]s a general rule, costs of proceedings before the Tribunal should follow the event": at [42]. Noting that the mere impecuniosity of the losing party was not a justifiable reason for departing from that "rule", the Court also accepted "that there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings" including the possibility that the Commission was only partly successful, referring to Lucire v Health Care Complaints Commission (No 2) [2011] NSWCA 182 at [48]-[52]. Lucire dealt with a provision in the Medical Practice Act 1992 (NSW), Sch 2, cl 13, which also conferred an open power. Whatever the true extent of the power conferred on this Court in respect of costs of this appeal, it is appropriate to adopt the same approach as would have been adopted in the Tribunal, namely that there was an unfettered discretion, although the compensatory principle militated in favour of a successful party obtaining an order for costs.

Discussion and conclusion costs 172In these proceedings the HCCC has established both complaints asserted against the practitioner. There are no justifiable reasons advanced on behalf of the practitioner that would see departure from the usual compensatory rule as applicable. Accordingly, we are satisfied it is appropriate to make an order that the practitioner pay the HCCC's costs of and incidental to the proceedings. If agreement as to the quantum of costs cannot be agreed, the costs may be determined by this Tribunal.

Conclusions 173At the commencement of these reasons we identified issues requiring resolution. As a result of our findings we conclude: (1)the practitioner's expressed remorse, in respect of Patient A is not genuine; (2)that although stresses impacting on the practitioner may have exacerbated his propensity for bizarre behaviour, his conduct in respect of Patient A was deliberate and intentional; (3)we accept and prefer the evidence of Patient B and that of Ms MB to the practitioner; (4)that we do not accept the evidence of the practitioner about the manner in which he carried out genital examinations of Patient B, save and except the August 2010 consultation, or the language he used with Patient B. We did not find the practitioner to be a witness of credit; (5)that our acceptance of Patient B's evidence was not seriously impacted by the discrepancies in his evidence and the practitioner's clinical notes particularly given the time lapse between the consultations, Patient B's statements and the hearing; (6)the striking similarities between the practitioner's conduct with Patient A and that asserted by Patient B support a finding that the conduct as asserted by Patient B occurred; (7)in order to properly ensure the health and safety of the public the practitioner's registration should be cancelled; (8)the appropriate period before the practitioner can be apply for re-registration is a period of two years; and (9)it is appropriate that the practitioner pay the costs of the HCCC of and incidental to these proceedings.

Operative date of the orders 174The practitioner's counsel submitted, in the event that we ordered the practitioner's registration be cancelled, that the operation of the order be delayed for approximately three weeks to enable the practitioner to organise an orderly transfer of his patients to other practitioners, and to take any other necessary steps to wind up his practice. 175This delay of cancellation of the practitioner's registration was not opposed by the HCCC. 176We are mindful that the practitioner is a sole practitioner with a significant number of patients. Consistent with the principles in s 3A, and having regard to the existing conditions which we propose shall remain in force until the operation of our final orders in this matter, we are of the view that issues relating the health and safety of the public are best met by the type of order proposed by Mr Lynch for the reasons he enunciated. This is particularly necessary to ensure any vulnerable patients with urgent health needs are able to be transferred from the practitioner's practice to another general practitioner within their locale.

Non publication order sought in respect of the practitioner's name and identifying details 177On behalf of the practitioner Mr Lynch sought an order restraining publication of the name of the practitioner such order to extend until the conclusion of the Higher School Examinations in 2015. The application was opposed by the HCCC. 178The Tribunal made a non-publication order in respect of the names of the practitioner's teenage children. The practitioner's daughter, who is in year 11 was, at about the time of the hearing, to sit for examinations. 179The Tribunal accepts that the practitioner is a devoted and loving father and that he and his wife place significant emphasis on education, and wish both their children to achieve academically to the fullest extent of their potential. The practitioner's desire to shield his children from the consequences of his behaviour is readily understandable to the Tribunal. 180Several things must be noted about this application. First, but of little consequence, it was not made until the second day of the hearing notwithstanding these proceedings have been on foot since August 2012. Second, and of much greater significance, it was not supported by any evidence, particularly evidence that either child suffers any psychological or other condition which could be adversely affected by publication of these reasons. Third, it was not clear whether the practitioner had taken any steps to tell his teenage children about these proceedings, the likely outcome, or taken any steps to provide assistance, such as professional counselling for them, to deal with the consequences of his conduct. 181Both counsel assisted the Tribunal with provision of relevant authorities on this topic (Health Care Complaints Commission v Gow (NSWMT unreported 21 October 2008), Merrilyn Walton v Alexander Sergevich Momot & Anor (NSW Court of appeal 17 April 1997) and Health Care Complaints Commission v Dr A [2012] NSWMT 10). 182In Walton Handley JA, with whom Priestley JA and Grove AJA agreed, dismissed an appeal from the Chairperson of the then Chiropractors and Osteopaths Tribunal who had refused to make an order suppressing the name of a practitioner. The appeal was determined by reference to legislation which provided that proceedings should be open to the public. That is the case with proceedings in this Tribunal (see s 49 (2) of the Civil and Administrative Tribunal Act and s 165K of the National Law). Handley JA explained: The general principle provided for in s 46 (3) is that the Tribunal will sit in public. If the Tribunal sits in public the details of proceedings, including the names of the complainant and the practitioner, may become known to interested members of the public and the media, who will be entitled to publish details of the proceedings including the name of the practitioner. This being the prima facie method by which the Tribunal should conduct its proceedings as laid down by the Act, it follows that something special, exceptional, or out of the ordinary, must be established before the Tribunal can made an order avoiding such result. 183His Honour went on to note that the Tribunal could have ordered that it sit in private (as now provided in s 165K of the National Law), or that the Tribunal could make a suppression order. His Honour concluded, by reference to authority, that the policy he had just explained "reflects the general principle that the administration of justice under our system is carried on in public". 184While noting that the object of disciplinary proceedings is not intended to be punitive to the practitioner, but protective of the public, the former Medical Tribunal in Health Care Complaints Commission v Gough determined the protective nature of the jurisdiction outweighed the adverse consequences which may be suffered by a former practitioner, who was terminally ill, if his name was published. 185Different considerations arose in Health Care Commission v Dr A. In that case there was expert evidence before the Tribunal. That Tribunal found special and exceptional circumstances, namely that one of the practitioner's teenage children, who had a history of an admission to a Psychiatric unit following a serious suicide attempt, could likely be very adversely affected by publicity about her father's conduct. 186In this case there was simply no evidence to indicate any serious or exceptional circumstances which would warrant the suppression of the practitioner's name. While the Tribunal must be mindful of Australia's obligations under the UN Charter on the Rights of the Child and take those obligations in account when appropriate to do so (see Re Tracey [2011] NSWCA 43), the jurisdiction being exercised by the Tribunal is not primarily concerned with the best interests of these teenage children, but the protection of the general public. While we have much sympathy for the practitioner's children, who are likely to be upset by the cancellation of their father's registration, and any adverse publicity as a result of these proceedings, balancing relevant factors, we are not satisfied on this application, made without any supporting evidence, their interests outweigh the interests of open justice.

ORDERS (1)The registration of Dr Kelvin Thuc Minh Vo (the practitioner) on the register of practitioners maintained by the Australian Health Practitioner Regulation Agency (AHPRA) in conjunction with the Medical Board of Australia shall be cancelled twenty-one days from the date of this order. (2)AHPRA is requested to record Order 1 of these orders on the register. (3)The practitioner may not re-apply for re-instatement to the register for a period of two years. (4)The names of Patients A and B set out in the Schedules to the Complaints and the names of the of the practitioner's children shall not be published to any person except the parties to these proceedings. (5)The practitioner shall pay the costs of and incidental to the proceedings of the Health Care Complaints Commission as agreed and failing agreement liberty to restore before the Tribunal for assessment. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2014