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.