Health Care Complaints Commission v Balafas

Dr Balafas's qualifications and career

1. In 1999, Dr Balafas completed a Bachelor of Medicine/Bachelor of Surgery. He was registered as a medical practitioner on 1 February 2001. In 2008, he became a Fellow of the Royal Australian College of General Practitioners.
2. From 2004 to 2007, Dr Balafas states that his professional and personal life were disastrously affected by his use of drugs - pethidine, morphine, diazepam and fentanyl. He continued to practise during those years but his registration was subject to protective conditions. He became a part owner of the Bondi Medical Practice in 2005 and commenced general practice there in January 2009. The consultations which are the basis of the two applications took place in the second half of 2009.
3. In 2010, Dr Balafas's registration was cancelled because of drug use and a breach of the conditions on his registration. Between 2010 and 2013 he was not practising but says he retained ownership of the Bondi Medical Centre during his absence from practice. In 2013, the Tribunal reinstated his medical registration subject to practice and health conditions. From 2013 to 2015, Dr Balafas worked under supervision in a general practice in Brookvale, NSW. In November 2015, after the conditions on his registration were modified, Dr Balafas resumed practising from the Bondi Medical Centre.

Issues

1. There are three main questions: has the Commission proven the factual basis of each allegation; is Dr Balafas guilty of unsatisfactory professional conduct; and, if so, is he also guilty of professional misconduct. We will set out the principles relating to each of these issues before addressing the allegations in detail.
2. In these kinds of proceedings, the protection of the health and safety of the public must be our paramount consideration: National Law, s 3A. Only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner should be registered: National Law, s 3(2)(a).

Principles

1. The Commission has the burden of proving the alleged facts to the civil standard of proof which is on "the balance of probabilities". When making findings of fact we should take into account matters including the nature of the cause of action or defence, the subject matter of the proceedings and the gravity or seriousness of the allegations. The allegations against Dr Balafas, especially that he asked Patient A to turn over on to her stomach, placed his fingers in her vagina for a few minutes and then rubbed her clitoris twice, are extremely serious. We should not be reasonably satisfied that something so serious has happened or that Dr Balafas had a particular motivation, if the allegation is only supported by "inexact proof, indefinite testimony or indirect inferences". Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34. While we are not bound by the rules of evidence or the principles in Briginshaw v Briginshaw, those principles remain relevant: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127].

Credibility of Patients A and B

1. No-one else was present at the consultations with Patient A or Patient B. Dr Balafas denies the most serious aspects of Patient A's version of events. For Patient B, we have accepted Dr Balafas's denials where there is any inconsistency in the versions of events.
2. The reliability of Patient A's recollection and her credibility in general are key issues in these proceedings. Dr Balafas accepts that Patient A is a sympathetic witness who was unshaken in her evidence that she had been the victim of sexual misconduct. However, he says that for various reasons, Patient A's beliefs about what happened during the consultation are mistaken. We address these submissions as they arise below.

Credibility of Dr Balafas

1. Whether Dr Balafas recalls what happened in the consultation with Patient A, and if so whether he is telling the truth about that recollection, are critical questions. Dr Balafas says that, apart from remembering Patient A's name, he does not have an independent recollection of her or the consultations in 2009. His responses are said to be based solely on his clinical notes.
2. During re-examination, Dr Balafas was asked about his physical state. He said that, "Giving evidence I feel very anxious and very upset…because of the allegations against me" and "The allegations of the sexual nature is extremely- is extremely troubling and very very depressing for me and it's made me very depressed and unwell".
3. The hearing finished on Friday 14 May 2021 and the Tribunal reserved its decision. Dr Balafas applied for the Stage 1 proceedings to be re-opened to admit new evidence from his treating psychiatrist, Dr Michael Atherton. Dr Balafas consulted Dr Atherton on the Monday after the hearing had concluded. Dr Atherton's evidence was said to be relevant when assessing Dr Balafas's demeanour and as an explanation for his poor cognitive functioning during cross examination. The Commission submitted that this evidence was not relevant, but that if it was admitted it should be given limited weight.
4. The Tribunal granted the application to re-open the proceedings and to admit certain new evidence: Health Care Complaints Commission v Balafas (No 3) [2021] NSWCATOD 176. The admitted evidence is the redacted briefing letter to Dr Atherton dated 17 May 2021, a redacted report from Dr Atherton dated 17 May 2021, a redacted briefing letter to Dr Atherton dated 9 June 2021 and a redacted report from Dr Atherton dated 14 June 2021. The versions of these documents are those provided to the Tribunal in an email from Dr Balafas's solicitor dated 17 November 2021.
5. Also in evidence are Dr Atherton's clinical notes produced on 28 June 2021, including the session on 4 December 2020 (before the Stage One hearing) and the session on 17 May 2021 (three days after the Stage One hearing). A transcript of the Stage One hearing (including Dr Balafas's evidence on 13 and 14 May 2021) and the audio recording of Dr Atherton's oral evidence in interlocutory proceedings on 3 September 2021 were also before the Tribunal.
6. The Commission had no objection to the Tribunal giving weight to Dr Atherton's diagnosis of Dr Balafas in January 2020 as having an "adjustment disorder with depressed mood and anxiety depression". That opinion is consistent with Dr Balafas's evidence in re-examination, that he was feeling "very anxious and very upset" and "very depressed and unwell". We are satisfied that when giving evidence at the hearing, Dr Balafas did have those feelings.
7. We also give weight to Dr Atherton's retrospective diagnosis of an evolving Major Depressive Disorder in the weeks preceding the Stage One hearing. That evidence was that: "Dr Balafas has a severe mental health condition which has manifested over the past 6 to 7 weeks in the lead up to the HCCC hearing and as a result of the stress caused by this process, which he feels he has no control over. This condition is Major Depressive Disorder - Severe severity with Melancholic Features which is now in a period of response to medication. It was characterised by low mood, poor sleep, intense anxiety and agitation, early morning wakening, diurnal mood variation, poor concentration with an impact on his cognition, suicidal ideation and loss of appetite and loss of weight."
8. Dr Atherton listened to the audio recording of Dr Balafas giving evidence at the Stage 1 hearing. Below are some of the opinions he gave in his report of 14 June 2021: "It is not long into the questioning before he appears confused and struggles to follow the line of questioning and the directions of the HCCC barrister. … A long period of time was taken exploring some of his amendments of the notes and he was clearly shaken by this angle of questioning… There were numerous examples of challenging questions but Dr Balafas appeared to lose his train of thought and he seemed unable to follow what the actual questions were. . . . when challenged on some of the very distressing allegations he was mixing his words and using odd words out of place such as "defensive" compared to, one presumes, 'defensible'…He took time to read information but even when reading it reported that 'I am confused here, clearly I am confused here' when trying to interpret some of the information from a number of years ago at a Section 150 hearing… On some occasions, Dr Balafas struggled to read and there was lots of deep sighs and long breaths. His recall for events in 2017 appeared poor and when he is taken back over his record-keeping he becomes defensiveness [sic] and there is agitation in his voice. On the second day of the hearing he sounded extremely tired and again his memory appeared poor. He was sighing frequently and the tiredness was again evident from the sound of his voice in the recording. There was a tendency to go over material which he had already been questioned about and he was again confused about numbers and paragraphs and seemed to have difficulty staying on track with numerous 'can you repeat the question' requests. It again appeared combative at times which from my understanding and knowledge of Dr Balafas, is out of character. He continued to sigh heavily and was unable to respond to the level of questioning or the complexity of some of the questions, in a manner I would have expected from his usual presentation."
9. We accept Dr Atherton's opinion that Dr Balafas's mental state may have impacted on his ability to prepare for the hearing as "his concentration was reduced, his sleep was poor and he was experiencing significant anxiety". We have taken that opinion into account when assessing his evidence. We agree that Dr Balafas's mental state had an impact on the manner in which he gave evidence, but not that it had a material impact. When making factual findings, we have not taken Dr Balafas's demeanour into account. That includes any agitation, inflexibility, deep sighs and argumentative traits he displayed.
10. As to his cognitive functioning during the hearing, Dr Atherton expressed the view that: ". . . as the Hearing proceeded, it is my opinion, that his Mental Health deteriorated significantly to the point where he was performing extremely poorly on cognitive testing at the time of my assessment on 17th May 2021, and this would surely have been evident during the trial also."
11. It was not evident to us while Dr Balafas was giving evidence that his cognitive functioning was materially impaired. Nevertheless, when assessing Dr Balafas's credibility we have not taken into account any confusion in understanding questions, difficulty following references to the evidence, mixing of his words, slowness in responding or lack of concentration when answering questions.

Unsatisfactory professional conduct

1. After making factual findings, we must decide whether what happened amounts to unsatisfactory professional conduct as defined in the National Law. For Complaint One relating to Patient A, and Complaint One relating to Patient B, the Commission alleges that Dr Balafas is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. Section 139B(1)(a) defines unsatisfactory professional conduct to include: 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.
2. When deciding whether Dr Balafas is guilty of unsatisfactory professional conduct under s 139B(1)(a) we must do so against the standard reasonably expected of a practitioner of an equivalent level of training and experience. Throughout these reasons we will refer to that standard as the relevant standard. Dr Balafas was well trained and very experienced at the time of the consultations with Patient A and Patient B in 2009.
3. As well, or alternatively, the Commission alleges that Dr Balafas is guilty of unsatisfactory professional conduct under s 139B(1)(l) in that he has engaged in "improper or unethical conduct". The kind of conduct described in s 139B(1)(a) relates to Dr Balafas's "knowledge, skill or judgment" whereas s 139B(1)(l) identifies "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". However, the same conduct can amount to unsatisfactory professional conduct under s 139B(1)(a) or s 139B(1)(l) of the National Law: Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [59]-[66]. As well, an accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct: Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102].
4. The words "improper" and "unethical" are not defined in the National Law. They have an ordinary English meaning. Dictionary definitions provide a guide to that meaning. As the Tribunal held in Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [31]: "The Macquarie Dictionary defines 'improper' as 'not in accordance with propriety of behaviour, manners etc or abnormal or irregular' (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as 'contrary to moral precept; immoral; in contravention of some code of conduct'. As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to 'the practice or the purported practice of the practitioner's profession'."

Professional misconduct

1. The third issue is whether Dr Balafas is guilty of professional misconduct. That depends on whether Dr Balafas's "unsatisfactory professional conduct" is "of a sufficiently serious nature to justify suspension or cancellation of his registration". Professional misconduct is defined in s 139E of the National Law: 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.
2. If we find Dr Balafas guilty of professional misconduct, we have power to suspend or cancel his registration although we are not obliged to do so: National Law, s 149C(1)(b).

Expert evidence

1. The Commission obtained an expert report from Dr Gary Deed dated 3 September 2020. Dr Deed is a general practitioner practising in Brisbane. He is an adjunct Senior Research Fellow at Monash University and has a particular interest in diabetes. He was asked his opinion as to whether any departure from the relevant standard was significantly below that standard.
2. Dr Balafas obtained three expert reports from Dr Mark Henschke, dated 29 November 2019, 5 June 2020 and 30 October 2020. Dr Henschke is a general practitioner currently employed by the Rural Clinical School of the University of NSW, Faculty of Medicine. He is based in Coffs Harbour. He was asked to consider whether Dr Balafas's conduct departed from the relevant standard and, if so, to what extent. It was suggested that he express his opinion in terms of the departure attracting his "mild", "moderate" or "severe" criticism. Dr Henschke was not asked to provide an opinion on the basis of Patient A's account of events. When comparing his opinions with those of Dr Deed, Dr Henschke considered Dr Deed's opinion that conduct is "significantly below the standard" to be equivalent to his opinion that the conduct attracted his "severe criticism".

3 July 2009 consultation - Complaint One

1. Complaint One against Patient A relates to Dr Balafas's conduct during a consultation on 3 July 2009. It is alleged that Dr Balafas failed to obtain Patient A's informed consent before conducting a pelvic examination. He denies that allegation. It is also alleged that Dr Balafas failed to conduct the pelvic examination in an appropriate manner in circumstances where he: 1. told Patient A to remove all of her clothing and gave her a gown; 2. told Patient A to lie on her back; 3. moved Patient A's face with his hand so she faced the wall while the fingers of his other hand were in her vagina; 4. placed his fingers in Patient A's vagina for a long period, longer than clinically indicated, while she was lying on her back; 5. told Patient A to lie on her stomach; 6. placed his fingers in Patient A's vagina for about a few minutes while she was lying on her stomach; 7. rubbed Patient A's clitoris twice; and 8. did not offer a chaperone.
2. Patient A agreed to a Pap smear and, at Dr Balafas's request, removed all her clothing and put on a robe in preparation for that procedure. In his reply, Dr Balafas states that asking Patient A to remove all her clothing does not mean that the examination was inappropriate. He admits that he did not offer Patient A a chaperone but says that that does not amount to inappropriate conduct.
3. After completing the Pap smear, Dr Balafas agrees that he conducted an internal examination while Patient A was lying on her back. Patient A had reported discomfort on the lower right hand side of her abdomen which she attributed to treatment for appendicitis in 2007. Dr Balafas states that the internal examination was for the purpose of exploring that discomfort. However, on other occasions, he also mentioned that it was appropriate to do such an examination to identify the position of the cervix before doing a Pap smear. He denies moving Patient A's face with his hand so she was facing the wall while the fingers of his other hand were inside her vagina. He also denies placing his fingers in Patient A's vagina for a long period, longer than clinically indicated, while she was lying on her back.
4. Patient A alleges that Dr Balafas then asked her to lie on her stomach. Dr Balafas denies making that request. While she was on her stomach it is alleged that Dr Balafas placed his fingers in Patient A's vagina for "about a few minutes" and then rubbed her clitoris twice. Dr Balafas denies those allegations. While he says he does not recollect any of the consultations he had with Patient A, he says that he has never conducted a pelvic examination in the manner she describes. He denies engaging in inappropriate behaviour of a sexual nature towards Patient A.
5. Dr Balafas denies that the limited conduct to which he has admitted means that he is guilty of unsatisfactory professional conduct.

Telephone call with Patient A in November 2016 - Complaint Two

1. The second complaint is about record keeping and relates to a telephone conversation Dr Balafas had with Patient A on 16 November 2016. Patient A telephoned Dr Balafas at the request of NSW Police. She had made allegations to the Police about Dr Balafas's conduct and the police had arranged for the telephone conversation to be recorded. This complaint relates to the fact that Dr Balafas did not document any information regarding that telephone conversation. That failure is alleged to constitute a breach of cl 6 to Sch 4 of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW). If the conduct is a breach of that provision, it amounts to unsatisfactory professional conduct: National Law, s 139B(1)(b). Dr Balafas denies that he breached those provisions, but accepts that he should have made a record of the telephone conversation.
2. Dr Balafas's responses to this complaint affect his credibility in relation to the particulars in Complaint One that he denies.

Conduct amounts to professional misconduct - Complaint Three

1. Complaint Three is that Dr Balafas is guilty of professional misconduct under s 139E of the National Law in that he has: "i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in 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 the suspension or cancellation of the practitioner's registration"
2. The Commission alleges that the particulars of Complaint One and Complaint Two, individually or in combination, justify a finding of professional misconduct. Dr Balafas denies that he is guilty of professional misconduct. There is no dispute, however, that if we find that he placed his fingers in Patient A's vagina for a few minutes while she was lying on her stomach and/or that he rubbed her clitoris twice, that conduct amounts to professional misconduct.

Issues relevant to recollection and credibility

1. Before determining whether the complaints in relation to Patient A amount to unsatisfactory professional conduct and professional misconduct, we need to decide what happened. First, we focus on the events after the consultation, then on the consultation itself. The main questions that potentially relate to Dr Balafas's credibility based on the events after the consultation are: 1. Were there two or three consultations with Patient A? 2. Why did Dr Balafas change Patient A's clinical notes before sending them to the Commission in February 2017? 3. Did Dr Balafas speak to Patient A on the phone in August 2016 and ask her why she wanted a copy of her clinical notes? 4. Did Dr Balafas have the clinical notes in front of him when he spoke to Patient A in November 2016? 5. Did Dr Balafas recall Patient A, and did he have any memory of the consultation with Patient A in 2009? 6. Why did Dr Balafas tell the Medical Council that he had told Patient A in the November 2016 telephone call that her allegations were totally wrong when in fact he had been apologetic and conciliatory?
2. The questions that potentially relate to Patient A's credibility based on the events after the consultation are: 1. Why did Patient A go back for a second appointment if her version of what happened in the first appointment is correct? 2. Why didn't Patient A mention critical aspects of the consultation to her relatives and did their beliefs about what had happened influence her? 3. Was Patient A mistaken because of her inexperience with Pap smears or her limited English? 4. Did the internet search make Patient A unduly suspicious of Dr Balafas? 5. Why didn't Patient A tell her psychologist the most serious aspects of the pelvic examination? 6. Did Patient A's anxiety affect her recollection about what had occurred? 7. Do Patient A's references to a camera or flip phone, in circumstances where that allegation was not part of the complaint, affect her credibility? 8. Why did Patient A tell Dr Balafas in the November 2016 phone call that he asked her to turn on to her back, when the complaint states that he asked her to turn on to her stomach? 9. Why did Patient A take nine years to report the full details of what she alleged happened?
3. As well as the evidence given by Dr Balafas and Patient A, we will address these issues in the context of other available evidence including the clinical notes, amendments Dr Balafas made to those notes, evidence from Patient A's relatives, the clinical notes of Patient A's psychologist, file notes and emails disclosed by the Commission to Dr Balafas's lawyers, Patient A's statement to the NSW Police, an alleged phone call between Dr Balafas and Patient A on 16 August 2016, the recording and transcript of a phone call between Patient A and Dr Balafas on 16 November 2016, the transcript of proceedings before the Medical Council in February 2017 and Dr Atherton's evidence.
4. These are not the only issues that are potentially relevant to the credibility of Dr Balafas and Patient A. We address other credibility issues when making findings about Complaint One.

Clinical notes

1. Dr Balafas recorded the following information in the clinical notes for the 3 July 2009 consultation with Patient A. We have added the words in square brackets to explain the various abbreviations: "3/7/09 FBC [full blood count] UEC [Urea, Electrolytes, Creatinine] check TFT [thyroid function test] PMHX [past medical history] Hypothyroidism OCP [oral contraceptive pill] on Yasmin 1 YR For repeat Script - 6 months Discussed Gardasil Vacc + PAP STI's [sexually transmitted infection] [Gardasil vaccine Sticker] 1st YR student Architecture Pap + cervix looks normal PV [per vaginal] N [normal] No Adnexal mass Cervix low LIF [left iliac fossa] Tenderness? to RV [review] ? U/S [ultra sound] Br [breast] to be R/V [reviewed]"
2. Based on these notes and Patient A's evidence, it is uncontroversial that Patient A made an appointment at the Bondi Medical Centre to obtain a repeat prescription for the contraceptive pill and to check her thyroid function. Dr Balafas asked her a few questions about her medical history and she told him that she had been on the pill since she was 16 years old because of polycystic ovarian syndrome. She also mentioned that she had had hypothyroidism from about the same age and had been taking thyroxine. Patient A disclosed to Dr Balafas that she had discomfort on the lower right hand side of her abdomen which she attributed to treatment through a laparoscopy for appendicitis in 2007.
3. Dr Balafas says that he wanted to obtain a full blood count and that it was his usual practice to take the blood himself. He asked Patient A when she had last had a Pap smear. She said that it had been in Brazil some time before 2007. Dr Balafas suggested that he do a Pap smear and Patient A agreed. She also agreed to have the first Gardasil vaccination for Human Papillomavirus (HPV). A second injection is generally given after one or two months and a third injection after six months. Patient A does not remember Dr Balafas telling her that he would also do a pelvic examination or the reason for such an examination.
4. Dr Balafas conducted a Pap smear and recorded that Patient A's cervix looked normal. He also conducted an internal pelvic examination and recorded that he could not detect any adnexal mass (growths that form on the ovaries and connective tissues around the uterus) but that the tenderness should be reviewed. In his notes he queried the need to conduct an ultrasound. Finally, he noted that Patient A's breasts were to be reviewed. After the examination, there was a brief discussion about the timeframe for the Pap smear results.

Subsequent appointments

1. There are no particulars in the complaint about the second or any subsequent appointments. However, what happened during the second appointment and whether there was a third appointment may be of some relevance to both Patient A's and Dr Balafas's credibility.
2. A few days after the first appointment, Dr Balafas rang Patient A and said that he would like to discuss the results of some tests and that she should make another appointment. There is a handwritten entry on the same page as the entry of 3 July 2009, for 23 July 2009. "Results look ok generally Currently on thyroxine ­100mg 125mcg T3 low For ↑ thyroxine 150mcg (indecipherable) Gardasil 2nd Thursday. + 6 weeks (indecipherable) ↑ thyroxine to 150 mcg [Gardasil vaccine sticker] Check TFTS 6 weeks +Final Gardasil"
3. We understand this entry to indicate that the results (presumably from the blood test and the Pap smear) "look OK generally". "T3 low" refers to low levels of a hormone made by the thyroid gland which would have shown up in the blood test. Dr Balafas decided to increase Patient A's thyroxine dose from 125mcg to 150mcg. He wrote "for ↑ thyroxine 150mcg", and then further down the page "↑ thyroxine 150mcg" again. There is no evidence about whether he wrote a script for the increase at the 23 July 2009 consultation. The Gardasil vaccine sticker suggests that Dr Balafas gave Patient A a second Gardasil injection on 23 July 2009. The notes also suggest that he flagged that he would check Patient A's thyroid function (TFT's) and administer the final Gardasil injection in six weeks.

Why did Patient A go back for a second appointment if her version of what happened in the first appointment is correct?

1. Patient A says she felt apprehensive about making a second appointment. However, because she had received the first Gardasil vaccine at the 3 July 2009 consultation, she wanted to stay on schedule with those vaccinations and follow up on the thyroid function tests. Patient A says that she was so afraid of what could happen during a second appointment that she took a baby in a sling to that appointment. She was working as a nanny at the time. She gave her version of what happened in the complaint form: "When I got into the consultation room Dr Balafas asked a couple of questions and asked how the pain in my lower abdomen was going. I told him that it was OK and that there was no pain. Dr Balafas asked me if I wanted to check it one more time and I said no. I impressed that I had to leave and tried to hurry the consultation. The consultation then finished and I left and never returned to the Bondi Medical Practice."
2. Dr Balafas submits that the fact that Patient A returned for a second appointment undermines her credibility about what she says happened at the first appointment. There were other general practitioners she could have seen at the Bondi Medical Centre. She had seen a number of other general practitioners since arriving in Australia in early 2007. Medicare records reveal that she had attended another general practitioner, Dr Sawrikar, on 17 July 2009. Patient A could not recall the reason for that appointment.
3. The reasons Patient A gave for returning for a second appointment and the measures she says she took to prevent any further physical contact are plausible. She thought she needed to see Dr Balafas again to obtain test results and to receive a second Gardasil injection. We accept her evidence that she took a baby with her because she was extremely apprehensive about the prospect of a further physical examination. Patient A's account of what happened at the second appointment and her evidence that it was short is supported by the clinical records as they were originally made. In all the circumstances, the fact that Patient A returned for a second appointment does not undermine her credibility as to what happened at the first appointment.

Changes to clinical records

1. Dr Balafas admitted adding another date - 3 September 2009 - and several other words and phrases to the handwritten clinical record before sending them to the Health Care Complaints Commission on 13 February 2017. Dr Balafas wrote the new date adjacent to the words "Gardasil 2nd".
2. Dr Balafas bulk billed Medicare for three consultations with Patient A. The first and second consultations, on 3 July and 23 July 2009, were charged as Level C consultations lasting between 20 and 40 minutes. Dr Balafas billed Medicare for a Level D consultation, lasting more than 40 minutes, on 3 September 2009. Although he does not independently recollect a third consultation, Dr Balafas says there must have been one if he billed Medicare for it. When asked how he knew where to put the date on the page, Dr Balafas said he could see that he increased the dose of Thyroxine on 23 July 2009 during the second consultation. He added the word "have" before "↑ Thyroxine to 150mcg". He says that was to make it clear that he had increased the dose of Thyroxine to 150mcg at the previous consultation. He asked rhetorically why he would write twice for the same consultation that he would increase the dose of Thyroxine. In our view, the reason Dr Balafas made these changes was to give the impression that there had been three consultations.
3. Dr Balafas added the word "today" before "Thursday". That entry relates to the administration of the second Gardasil vaccine. He gave no explanation for that addition. Both 23 July 2009 and 3 September 2009 were Thursdays. The addition of the word "today" is consistent with wanting to make it look as if he had administered the second Gardasil injection on 3 September 2009. That was the reason he added that entry.
4. Dr Balafas also made a change to the 3 July 2009 clinical notes. Above the entry "? U/S" (query ultrasound) he wrote "endocervical swab". Initially Dr Balafas said that those marks on the copy he had been given did not look like words he had written. However, when shown a clearer copy, he agreed that he had added those words. He says he did so to make it clear that an endocervical swab was taken as set out in the pathology report. When asked why he needed to add those words when it was clear from the pathology report, Dr Balafas maintained that he did so to give an accurate and correct record. In our view, Dr Balafas made the change because he had failed to record it in the notes and he knew that all the tests performed should be listed in the patient's clinical records.

Were there two or three consultations?

1. The original copy of the clinical records was destroyed after seven years so we only have photocopies of those records. Adding a date and other words and phrases to Patient A's clinical notes is not part of any complaint against Dr Balafas but it may be relevant to his credibility. The Medicare records suggest that there was a lengthy third consultation of approximately 40 minutes. At the bottom of the page of clinical notes is a Gardasil sticker indicating that Patient A was vaccinated on 23 July 2009 or, if there was a third consultation, on 3 September 2009. The first Gardasil vaccination was given on 3 July 2009. The second was due one to two months later - sometime between the beginning of August and the beginning of September. If it was given on 23 July, it was a few weeks early. If it was given on 3 September 2009, it was within the range of acceptable dates.
2. Other than administering the second Gardasil vaccine, the revised notes, adding the date of 3 September 2009, do not reflect any other activity at a third consultation. The notes merely record Dr Balafas's intention to check Patient A's thyroid function and administer the final Gardasil injection in six weeks. It does not take 40 minutes to administer the Gardasil vaccine. Dr Balafas acknowledged that it was possible that there were only two consultations. He said it could have been his error in reading the notes. Patient A conceded that it was possible that there was a third consultation, but she does not remember it.
3. The evidence which supports a finding that there was a third consultation are the Medicare records, the repetition of the increase in Thyroxine and the fact that 3 September 2009 was within the one to two month range for administering the second Gardasil vaccine. Patient A also conceded that it was possible that there was a third consultation. However, the evidence against that finding is more persuasive. First, Patient A's recollection is that she returned on only one occasion with a baby strapped to her in a sling. This memory is specific and is likely to be reliable. Secondly, doctors are trained to record the date as the first entry on the clinical notes. It would be unusual for a doctor not to write down the date of an appointment. Thirdly, Dr Balafas cannot account for a third consultation of 40 minutes and acknowledges that it is possible that there were only two appointments.
4. We are not suggesting that Dr Balafas is deliberately being untruthful. The likelihood is that he now has no clear memory of whether there was a third consultation. In any case, none of the particulars in the complaint relate to a third consultation. The finding that there was no third consultation makes it unnecessary to address Dr Balafas's submission that Patient A's version of events is less credible because she does not remember a third consultation.

Why did Dr Balafas change Patient A's clinical notes before sending them to the Commission in February 2017?

1. When the Commission requested his notes in February 2017, Dr Balafas retrieved them from an on-site storage area. He did not contact his insurer or his supervisor, even though his registration was subject to a supervision condition at the time. His evidence was that he made the additions to the notes because he was trying to understand the "flow" of what was going on and to make the notes as accurate as possible. He said that he was not trying to deceive anyone and did not think at the time that he was doing anything wrong.
2. One reason Dr Balafas added the date of a third consultation was because of the Medicare record of a consultation on that date. But that does not explain why he made all the other changes. In our view, he was attempting to ensure that the notes put his conduct in the best possible light from a clinical perspective and reflected the Medicare records. Those motivations do not support a finding that he is not telling the truth about what happened in the consultation.

Disclosures by Patient A to family members

1. Patient A's evidence is that she told her husband on the evening of 3 July 2009 that the consultation was unusual and inconsistent with her previous experiences. She said that she did not want to tell her husband everything because she felt uncomfortable and ashamed about what had happened.
2. Patient A's husband provided a statement in which he said that she had told him that the doctor had asked her to undress, that she didn't want to go back there and that she did not want to talk about it. He reported other conversations in which Patient A had told him that the doctor had touched her breasts. Patient A denies that she ever told her husband that Dr Balafas had touched her breasts. He also said that she had told him that he touched her "down there . . in the same way that I touch her sexually".
3. Patient A says she told her mother and her brother about the consultations. Her mother, who lives in Brazil, provided a statement. She says that a few days after the consultation in mid-2009, her daughter phoned her to say she found the doctor's behaviour strange. Later she disclosed to her mother that he had asked her to take off all her clothes.
4. In 2015 Patient A's brother was living in Australia. He states that Patient A told him that the doctor had asked her to take off all her clothes. His understanding was that there was a kind of gynaecological procedure during which he pushed her face away so that she couldn't see what was happening properly. That evidence is consistent with Patient A's evidence that she told her brother that Dr Balafas asked her to take off all her clothes for the Pap smear.

Why didn't Patient A mention critical aspects of the consultation to her relatives?

1. Patient A did not mention to her mother or brother that she had been given a gown to wear throughout the examination. She did not mention that Dr Balafas had left the room on the two occasions when she was asked to remove her clothing. Dr Balafas submits that, in the absence of that information, it is understandable that her relatives thought something of a sexually inappropriate nature had occurred. Their beliefs then reinforced Patient A's belief about what had happened.
2. In our view, Patient A's failure to mention these details to her relatives does not undermine the accuracy or reliability of her version of events. We are satisfied that Patient A told her husband, mother and brother some of the details of what had happened during the consultations but that she did not tell them everything. She did tell her husband that Dr Balafas had touched her "down there . . . in the same way that [her husband touches] . . . her sexually". Not telling all the specific details is understandable given Patient A's evidence that she felt uncomfortable and ashamed about what had happened.

Did the internet search make Patient A unduly suspicious of Dr Balafas?

1. After the second appointment, Patient A says she wanted to see if anyone else had complained about Dr Balafas so she looked up his name on the internet. She read something about Dr Balafas and drugs but did not see any reference to other complaints. Dr Balafas submits that that information is likely to have made Patient A more suspicious that his conduct had been improper.
2. The information Patient A saw online would not have alleviated Patient A's concerns about what had happened. However, we accept Patient A's evidence that she was never "suspicious" that Dr Balafas's conduct had been improper. She always knew that was the case even though she did not report the specific details to her family. The fact that Patient A looked up Dr Balafas's name on the internet is consistent with her having had a traumatic experience and wanting to see if anyone else had complained.

Was Patient A mistaken because of her inexperience with Pap smears or her limited English?

1. Dr Balafas accepts that Patient A is a sympathetic witness who was unshaken in her evidence that she had been the victim of sexual misconduct. However, he says that Patient A's beliefs about what happened during the consultation are mistaken. The explanation for that mistaken belief is that she was a young woman in her twenties and had only had two Pap smears previously. Both were performed by her aunt who is a gynaecologist in Brazil. Misunderstandings may have occurred because of Patient A's relatively basic English at the time and Dr Balafas's admitted deficiencies in communication.
2. We are not persuaded that any of these factors had a material effect on Patient A's understanding of what happened during the consultation. She had had two Pap smears before and knew what to expect. She was not familiar with internal pelvic examinations but her evidence was explicit. Neither Patient A's less than perfect English at the time nor deficiencies in Dr Balafas's communication skills affected her understanding of what happened.

Why didn't Patient A tell her psychologist the most serious aspects of the pelvic examination?

1. On 18 June 2016, Patient A consulted a psychologist. At that time, she was worried about a friend who had mental health issues. She expressed anxiety about becoming mentally ill herself. The psychologist diagnosed her with Generalised Anxiety Disorder (GAD). At the consultation on 27 June 2016, the psychologist wrote (at page 14) that: "triggers: thought that she is going crazy (hearing or seeing things that aren't there) PP: anxiety - specific to fears that she is going crazy/going to get psychosis, depression and end up not functioning, losing mind and in hospital"
2. Patient A gave evidence that she could not remember saying those words to the psychologist. Looking at the notes does not trigger any memory of having beliefs at that time that she was going crazy. In our view, the notes are likely to be an accurate record of the gist of what Patient A told the psychologist. It is plausible that Patient A does not recall everything that she disclosed during those sessions. It is also plausible that she does remember saying words to that effect but is attempting to avoid the inference that she was mentally unstable at the time. Even if that is the case, it does not undermine the reliability of her evidence about what happened during the consultations with Dr Balafas.
3. By the fourth session, the psychologist reported that Patient A was feeling calmer. During the fifth session on 13 August 2016, Patient A reported that she had been sexually abused by Dr Balafas. The psychologist's notes state: "That in 2008, she was sexually abused by a GP at the Bondi Junction medical centre. His name was Dr John Andrew Balafas. She went in for some blood tests and the doctor asked when she last had her Pap smear. She said maybe 1.5-2 years ago. He asked if she wanted to get it now and she agreed. He asked her to undress. She took off her pants but left her top on. When he came back to the room he asked her to take off her top as well. She felt uncomfortable but obliged. He proceeded to do the Pap smear and entered her with the probe. But then after that he put his hand in her and moved it around. She stated that it lasted up to 30 minutes. She felt uncomfortable and knew it was not right, but froze and didn't know what to do."
4. Patient A says that she does not know if she was referring to the internal examination or the entire consultation when she reported that it lasted up to 30 minutes.
5. The psychologist did not record anything about Dr Balafas asking Patient A to lie on her stomach or rubbing her clitoris twice. Dr Balafas submits that the version Patient A gave to the psychologist is likely to be a more accurate account than the version she ultimately gave to the police and the Commission. The version of events given to the psychologist on 13 August 2016 was not "inaccurate", it was merely a partial description of what had happened.
6. At the fifth counselling session, Patient A is recorded as saying she has "tried to forget it". When questioned about this statement, Patient A said that she could not forget it even if she wanted to. Again, that is consistent with her having had a traumatic experience.
7. The psychologist advised Patient A to report the matter to the police and make a complaint to the Commission. She told Patient A that they would make the complaints together. On 27 August 2016, Patient A provided a five page statement to the NSW Police about what she said had happened during the consultations with Dr Balafas in 2009. She complained to the Commission on the same day. For the first time, Patient A gave a full account of what is now alleged in the complaint.

Did Patient A's anxiety affect her thoughts about what had occurred?

1. Dr Balafas submits that at the time she made the complaint, Patient A was seriously anxious and depressed and that may have affected her thoughts about what had occurred. Patient A had previously seen a psychologist in 2012 but did not mention Dr Balafas at that time. There was no expert evidence about the effect of anxiety or depression on Patient A's memory of traumatic events. In any case, it is not suggested that Patient A was delusional. We reject the submission that her state of mind at the time affected her recollection.

Why did Patient A take nine years to report the full details of what she alleged happened?

1. Patient A says that she was not "emotionally ready" to report the conduct to NSW Police and the Commission before August 2016. She kept her concerns about Dr Balafas's conduct to herself. She also says that in 2009, while she could understand English well, she was afraid that people would question her credibility if her English was not perfect. She gained confidence after speaking with her psychologist who supported her to make a complaint. Patient A told the Tribunal that she had written down the details of what had happened straight away but threw the paper in the bin. After that she says she wrote down the details about twice a year between 2009 and 2016. On each occasion, she threw the piece of paper away.
2. The delay in reporting the matter for some nine years is a significant consideration when assessing the reliability of Patient A's evidence. Contemporaneous evidence is the best evidence because memories can fade or change with time. Patient A's evidence is reliable despite the considerable passage of time because immediately after the consultation, she told her husband some of the details of what had happened - that she had to fully undress, that she did not want to go back and did not want to talk about it. Later she told him that Dr Balafas had touched her "down there . . . in the same way that [her husband] touched her sexually." She said she wrote down her memories regularly in an attempt to cope with the trauma. It was not until her English was close to perfect and she had developed a trusting relationship with her psychologist (at the fifth consultation) that she was emotionally ready to disclose the most serious details of what had happened. That chain of events is plausible and does not undermine the reliability of her evidence or her credibility to any material extent.

Do Patient A's references to a camera or flip phone, in circumstances where she did not include that allegation, affect the reliability of her memory?

1. In her original police statement of 27 August 2016, Patient A stated that: "Dr Balafas inserted his fingers into my vagina. I remember thinking this was very unusual and I thought he might have been trying to take a photo of my vagina. I felt very uncomfortable about this and chose not to look so I didn't see a camera or how many fingers he had inserted."
2. There is no other reference to Patient A thinking Dr Balafas may have been trying to take a photo of her vagina in any of her three statements and it is not included as a particular in Complaint One.
3. On the second and third days of the hearing, lawyers for the Commission disclosed to Dr Balafas's lawyers file notes of conferences with Patient A. In those file notes there was a reference to Patient A thinking that Dr Balafas was holding a grey flip phone. Lawyers for the Commission advised that Patient A was available to be re-called to be questioned about this material. She was re-called and gave further evidence on the third day of the hearing, 12 May 2021.
4. The Tribunal was provided with the following summary of Patient A's statements given during a conference with the Commission's solicitor on 20 December 2019. The solicitor summarised Patient A's responses to certain questions about a camera or a phone as in the following Table which is in evidence before the Tribunal (MFI 1). When I was on back On back I think I saw him holding something I don't think I am sure Said to someone else you saw him holding something Don't know if I can say it Not sure Actually it was in police statement Yes Why did you think he was holding something? When I looked I saw something Looked like Motorola grey phone Could it have been Speculum No Speculum is transparent Don't think so Could be metal speculum Raised my head Looked like a phone Black screen

1. In relation to the first entry, Patient A stated in oral evidence that she meant that she was not entirely sure that Dr Balafas was holding something. She was trying to explain to her solicitor about something that she had a vague memory of. She denies that she mistook the speculum for a phone.
2. In a later file note dated 5 May 2021, also marked for identification, the following abbreviated information was put to Patient A: If I would tell you that, then that's not 100 true Impression I saw a flip phone You say think trying to take a photo When I tried to move, he stopped me from looking down where he was Didn't see camera From his position and moving strange I don't understand why this is happening Vague memory of grey flip phone That's why you say think Yes

1. Patient A stated that what she meant by the first entry was that she could not be 100% sure if there was a camera. She has a vague memory of seeing a grey flip phone. She did not tell anyone she saw a camera or a flip phone. According to Dr Balafas, Patient A's references to phones and cameras indicate that her mind was clouded by stress and/or that she has reconstructed the events and is thinking that things occurred which plainly did not.
2. Neither version suggests that Patient A thought something had occurred which plainly did not occur. If there was a phone, those comments are credible and rational. If there was not, the comments may suggest that Patient A was anxious and fearful. On her version of events, there was good reason for that. In our view, Patient A's credibility is not diminished by the fact that she chose not to make a formal allegation about something about which she was unsure.

Request by Patient A for her medical records

1. On 13 August 2016, the same day that she made the disclosure to her psychologist, Patient A spoke to a receptionist at the Bondi Medical Centre about obtaining a copy of her clinical notes from the 2009 consultations. She made that request by email on the same day but did not receive a reply. Patient A contacted the Medical Centre by telephone again on 16 August 2016. Patient A says Dr Balafas returned her call that day.
2. Patient A received the records that afternoon and gave them to NSW Police. Patient A sent a follow up email asking for confirmation of the date of the second appointment because she could not understand Dr Balafas's writing. She received an email confirming that the date was 23 July 2009. Dr Balafas says he has no knowledge of these email exchanges and may have been overseas at the time.
3. Five months later, Patient A set out her recollection of the August 2016 phone call in a statement to NSW Police dated 3 January 2017. "He said- 'Why do you want your medical records?' I said- 'I need to give it to another doctor.' He said- 'Is everything ok with you?' I said- 'Yeah. Everything is fine.' He said- 'Ok, I'll ask reception to email them to you.'"
4. On 23 August 2016, a week after Patient A received a copy of her clinical notes, Laverty Pathology faxed Dr Balafas a pathology report in relation to Patient A's Pap smear on 3 July 2009. Dr Balafas agrees that an employee of the medical practice would not have requested a copy of this report unless directed to do so by a doctor.

Did Dr Balafas speak to Patient A on the phone in August 2016 and ask her why she wanted a copy of her clinical notes?

1. Dr Balafas is adamant that he did not speak with Patient A on 16 August 2016 or instruct a receptionist to email Patient A her notes. He agrees that the usual procedure when a patient requests medical records was for the receptionist to refer that request to the relevant doctor. However, Dr Balafas insists that no-one brought this particular request to his attention. He does not know how it came about that an employee requested a copy of Patient A's pathology report. He says that the first request he received for Patient A's medical records was from the Commission.
2. Dr Balafas's denial was based partly on the assertion that he speaks politely and would never have used the words Patient A attributes to him in the police statement - "Why do you want your medical records?" Depending on how that question is asked, it is not necessarily an impolite question. In any case, it is not suggested that these were the exact words Dr Balafas used. Patient A was recalling the conversation five months after it had taken place.
3. We are satisfied that Dr Balafas did have a conversation with Patient A to the effect outlined above and that he instructed a receptionist to forward the records to her. Patient A had no reason to say that she had spoken to Dr Balafas if she had not spoken to him. She is also likely to remember calling him given that it was part of the police investigation. The receptionist is highly unlikely to have forwarded a patient's notes or clarified the date of the second consultation without express instructions from Dr Balafas.
4. It was suggested that Dr Balafas's solicitor did not give him copies of the emails between the Medical Centre and Patient A or that Dr Balafas may have forgotten about the phone call. Dr Atherton's opinion was that Dr Balafas's mental state before the hearing affected his ability to prepare for the hearing. Given these possibilities, we are satisfied that Dr Balafas did not remember these events. His denial that they took place does not undermine his credibility.
5. We are satisfied that the phone call took place as outlined by Patient A, that Dr Balafas instructed his receptionist to email the notes and that he looked at the notes for the purpose of clarifying the date of the second appointment. Having looked at the notes, he decided to request a pathology report in relation to the Pap smear. He received that report on 23 August 2016.

Telephone call putting allegations to Dr Balafas

1. On 16 November 2016, three months after Patient A had requested the clinical notes, she telephoned the Bondi Medical Centre and left a message for Dr Balafas to ring her. After calling a second time, Dr Balafas returned the call and spoke to Patient A. NSW Police had arranged to record the call as part of the criminal investigation. The audio record and transcript of the phone call is in evidence before the Tribunal.
2. In response to her allegations about the internal examinations, Dr Balafas apologised to Patient A if she had felt uncomfortable. He said he could not recall putting his hand on her face and telling her to be quiet and to be still. Later in the call, the following edited exchanges occurred. Of particular note are the passages in italics where Patient A alleges that Dr Balafas asked her to turn on her back. In evidence she said that she meant to say turn on her stomach. Secondly, the number of times Dr Balafas refers to changing position is relevant. Thirdly, of particular significance are Dr Balafas's statements that he recalled Patient A. "[Patient A]: And after that happened, you asked me to turn on my back. Dr Balafas: Right. [Patient A]: And you continued to do the same thing while I was on my back . . . . . . Dr Balafas: . . . I can't recall but if I examined you and there was some tenderness or if, sometimes if we can't get the Pap smear from the normal angle we can do it from a different position on the side. [Patient A]: But there was no speculum anymore, nothing. The speculum was gone and you had the swabs and you asked me to turn on my back so, you know, I don't know why, I can't figure out why . . . Dr Balafas: Well, in some cases where we are examining somebody and either we can't get the Pap smear or there are symptoms which are somebody's got some tenderness or we can't feel the ovaries or the uterus properly in the normal position they can be examined in a side position and I must have thought at the time that you, I can't recall exactly but there would have been some symptoms I wanted to clarify a bit better. But most definitely if I made you uncomfortable I did not intend to do that, it was part of the examination and I apologise if I made you uncomfortable. I really had no intent to do that and I believe that… if I'd examined you from a different position then it was because I wasn't adequately able to examine you from the correct position. [Patient A]: And when I was lying on my back you took your fingers out of my vagina and you actually touched my clitoris area twice and at that point I started moving on the table… I don't know whether you realised what you had done, then you told me "we are done" when I started to physically express how uncomfortable I was with that situation. I have never had a pap smear when a doctor has touched my clitoris area before. Dr Balafas: Um I wouldn't have done that but when you examine sometimes, the way that you examine, the thumb sits upright and sometimes it might brush against that area . . . [Patient A]: it was not a brush. I'm sorry, it was not a brush. . . . I was on my back you couldn't even see anything. You know, I was lying on my back at that point when you did that so . . Dr Balafas: . . . it is important to examine to make sure that one finds the cervix correctly and that there is no visible abnormality of the cervix, umm I may have at the time I would have asked you if there was any tenderness in the pelvis at all and that's may be why we changed positions because I wanted to try to examine from a different angle. When you examine you can sometimes brush up along the clitoris and I . . . [Patient A]: It was not a brush, it was a deliberate movement, it was a deliberate movement and it was twice. And why was I naked? Why was I fully naked? Dr Balafas: Well because when we do these exams we also examine the breasts as well, ummm, and that's why we do that. . . . [Patient A]: . . . I just wanted to call you and ask if this is something that . . if you remembered something, if you had any recollection of me or the appointment I had. Dr Balafas: I recall you, I recall you and I really didn't mean to do anything to make you uncomfortable. Honestly if I would have I mean it does sound strange about touching the clitoris but I would have been possibly brushing in the way you would have been examined. I didn't mean to make you uncomfortable and I apologise for making you uncomfortable. . . . Dr Balafas: . . .I always examine just to make sure that there's no unusual ovarian masses or unusual anatomy right? Sometimes when we can't get adequate examination or testing from the normal position we can change to a different position. We routinely do breast checks as part of the pap smear that's considered routine . . ." (Emphasis added.)
3. Towards the end of the call, Dr Balafas said, "What can I do to make up to you for umm . . ." Patient A replied that she would have to think about it.

Why did Patient A tell Dr Balafas in the November 2016 phone call that he asked her to turn on to her back, when the complaint states that he asked her to turn on to her stomach?

1. Despite saying to Dr Balafas in the phone call that he touched her clitoris twice while she was lying on her back, Patient A says she is absolutely sure that she was on her stomach when that happened. What she meant to say to him was that he asked her to turn on to her stomach and that she was lying on her stomach at the time he touched her clitoris. Patient A attributed this 'mistake' to being nervous during the phone call and confused because these positions are expressed differently in Portuguese which is her native language.
2. When Patient A was recalled to give evidence about this and other matters, she said that in Portuguese, when telling someone to lie down, you say which side of the body, the frontside or the backside, should be facing the person, not which side of the body is on the bed. When she told Dr Balafas that she was lying on her back, she meant that her back was facing him. She says she is 100% sure that Dr Balafas asked her to turn over and that she was lying on her stomach when he put his fingers in her vagina and rubbed her clitoris twice. That version is consistent with all the accounts Patient A gave to the NSW Police and the Commission, both before and after the November 2016 phone call.
3. Dr Balafas says that he found the phone call "strange" but accepts that Patient A "was seeking clarification about her memory of the consultation and there must have been some kind of misunderstanding". Dr Balafas submits that Patient A's allegation that he asked her to turn over and lie on her stomach is not credible because it was given for the first time in a conference with the Commission's solicitors and counsel on 5 May 2021. The solicitor also referred to that account in two subsequent emails. For that reason, the allegation put to Dr Balafas in the phone call, that he touched her clitoris while on her back, is more likely than that he touched her clitoris while on her stomach. That account is also said to be more consistent with the version of events Patient A gave to her psychologist on 13 August 2016.
4. We are satisfied that although Patient A said in the phone call that Dr Balafas had asked her to turn on her back, she meant to say that he asked her to turn on to her stomach. We accept her explanation as to why she said, "turn on my back", for example, instead of "turn on my stomach".
5. Dr Balafas's responses to Patient A during this phone call persuade us that he understood that she was suggesting that he had examined her in more than one position. She used the word "turn" more than once. Dr Balafas gave various reasons for her being "in a side position"; "changing positions"; examining her "from a different angle" and changing "to a different position". None of Dr Balafas's hypothetical explanations as to why he would examine Patient A in a different position from on her back have any clinical foundation.
6. The side position is only used to facilitate locating the cervix for a speculum examination. Patient A alleged that Dr Balafas requested her to change positions after the speculum examination had been performed. She told Dr Balafas that he touched her clitoris when "there was no speculum anymore", "the speculum was gone and you had the swabs and you asked me to turn on my back . . ." Despite that clarification, Dr Balafas continued to give reasons as to why he would ask a patient to change positions while conducting a Pap smear.

Did Dr Balafas have the clinical notes in front of him when he spoke to Patient A?

1. Because of the relevance of the following passage to Dr Balafas's credibility, we have amended the transcript provided by the parties to add the word "Yeah" spoken by Dr Balafas but not included in the agreed transcript. That amendment is in italics: "[Patient A]: [first name deleted] speaking. Dr Balafas: [first name deleted] its John Balafas here. I'm returning your call. [Patient A]: Yep. Um, I wanted to ask you a couple of questions about an appointment I had with you in July . . . Dr Balafas: Yeah, [Patient A]: . . .in 2009. I don't know if you have my medical history there? Dr Balafas: Yeh, hold on. Yes. What are the questions?"
2. In oral evidence Dr Balafas characterised Patient A's opening comment as a double barrelled question and said that he was "thrown by the question". In fact, there was only one question - did he have her medical history there? Dr Balafas responded to the first statement - "I wanted to ask you a couple of questions about an appointment I had with you in July . ." by saying "Yeah". Then, in response to the question as to whether he had her medical history, he said, "Yeh, hold on, Yes". This response, including pauses, took about five seconds.
3. Dr Balafas denied that he had the clinical notes in front of him when speaking with Patient A on the phone in November 2016. Despite clearly telling Patient A that he did have her medical history, we are satisfied that he did not have the notes in front of him. His hesitancy during the call, and his evidence at the hearing that he was thrown by the question, suggest that he was attempting to convey the impression that he had the notes when he did not have them. However, he had read them three months earlier.
4. The finding that he did not have the notes in front of him is supported by the fact that Dr Balafas phoned Patient A two days later and left a voice message saying that he wanted to discuss the 16 November 2016 conversation. Dr Balafas's evidence about this phone call during the hearing before the Medical Council under s 150 of the National Law was that he had looked at Patient A's clinical notes after the phone conversation on 16 November 2016 and attempted to ring her back to clarify what had happened, but she did not answer.
5. We accept Dr Balafas's evidence that no other patient has ever called him and said they wanted to talk about a consultation. He did not know that Patient A was going to telephone him and he was not prepared for it. We find that he had looked at the clinical notes in August 2016 and, in November 2016, he remembered, in general terms, what he had written in those notes. That finding is supported by the fact that he told Patient A during the November 2016 phone call that there were some symptoms justifying an internal examination: "I can't recall exactly but there was some symptoms I wanted to clarify a bit better."
6. We infer from this comment that Dr Balafas knew there were some symptoms he wanted to clarify because he had looked at the clinical notes.

Did Dr Balafas recall Patient A and did he have any memory of the consultation with her in 2009?

1. A significant issue going to Dr Balafas's credibility is whether he recalled Patient A even though the consultation had taken place nine years ago. If he did, that suggests that something out of the ordinary occurred during the consultation. If nothing unusual had happened, it is unlikely that Dr Balafas would have any independent recollection of Patient A or the details of the consultation. For the following reasons, despite his denials, we find that Dr Balafas did recall Patient A. For the reasons we give later, he also recalled that he had engaged in the sexual misconduct she outlined in the telephone call.
2. Dr Balafas's evidence to the Tribunal was that he remembered Patient A's name, but nothing about the consultations. He said that her name is the same as the name of a friend of his and he remembered it for that reason. He said he did not recognise Patient A when he saw her giving evidence at the hearing. However, Dr Balafas could not give a plausible explanation as to why he told her expressly and definitively during the telephone conversation that he recalled her. "[Patient A]: . . . I just wanted to call you and ask if this is something that . . if you remembered something, if you had any recollection of me or the appointment I had. Dr Balafas: I recall you, I recall you and I really didn't mean to do anything to make you uncomfortable."
3. In the hearing before the Medical Council under s 150 of the National Law, Dr Balafas maintained that he had no recollection of Patient A: "Dr Newbury: Just tell us, I guess, what you remember of this patient. Dr Balafas: I don't remember this patient specifically. I - I can-- .I refer -- by looking at the notes I can appreciate what happened. Dr Newbury: There - are you saying you have absolutely no recall - Dr Balafas: Actually, no recollection of this patient."
4. During the November 2016 phone call, Dr Balafas said several times that he could not recall various details of the consultation. After Patient A told Dr Balafas that she felt uncomfortable because of the time his fingers were in her vagina, he said, "Okay, I'm sorry if you were uncomfortable. I would have . . .I can't recall the reason I had seen you but we would have discussed just your health in general." (Emphasis added.) On approximately eight occasions during the call, Dr Balafas said words such as "I can't recall" or "I can't imagine" which are consistent with him either not having a recollection or wanting to convey to her that he did not have a recollection of the consultation.
5. Dr Balafas submits that because he returned Patient A's call in between a busy list of patients, and without knowing its purpose, we should accept his denial that he recalled her. He submits that there is no inconsistency between the overall sense of what he told Patient A during the telephone call and his evidence to the Medical Council. On both occasions he says he used language reflecting no independent recollection of the consultations.
6. Despite his consistent denials, and the many years that have elapsed since the consultation, we find that Dr Balafas's answer to Patient A during the phone call that he recalled her is the truth. We are satisfied that, when Patient A contacted the Medical Centre to obtain her notes, Dr Balafas looked at the notes and remembered Patient A and what happened in the consultation. He decided that it was in his best interests to say that he had no independent memory of the consultation. He could then deny any wrongdoing and speak only in general terms about his usual practice. However, when confronted with a direct question from Patient A as to whether he had any recollection of her or the consultation, he answered honestly. He recalled her.

Why did Dr Balafas tell the Medical Council that he had told Patient A in the 2016 telephone call that her allegations were totally wrong when in fact he had been apologetic and conciliatory?

1. Dr Balafas's claim that he had no independent recollection of the consultation with Patient A is further undermined by the way he described his response to the November 2016 phone call to the Medical Council delegates in February 2017. Three months after speaking to Patient A, Dr Balafas was asked if there was anything he would like to add. He gave the following response: "This patient contacted me in December of last year [the date was actually 16 November 2016] and there was a message left at the reception to call back [name deleted] and a note was left at my desk. I didn't get to it, I think until the next day, it was around about the beginning of December and the patient - and [name deleted] spoke to me on the phone and you know, put forward the - you know the - the nature of the -or outlined the complaint to me and - I said to her, "That is totally - that's totally wrong, I would never have done that." I said "But I don't recall you, I'd have to have a look at your notes just to see what the nature of the consultation was. You know, that sounds outrageous, I - did not possibly happen" and she then said to me, "Okay, well thank you for your time." And that's it and then hung up and I thought that was just very, very strange." (Words in brackets added.)
2. A review of the transcript of the phone call confirms that Dr Balafas did not tell Patient A that her allegations were totally wrong or outrageous. He did not say that he did not recall her or that he would have to look at her notes. While not admitting to any of the allegations, he repeatedly apologised to Patient A if he had made her feel uncomfortable. He even asked, towards the end of the telephone conversation, if there was anything he could do to make up to her.
3. Dr Balafas gave a totally false impression to the Medical Council of his response to Patient A's allegations. In our view, he did so in an attempt to convey the impression that he had not engaged in any wrongdoing.

Failure to obtain informed consent for pelvic examination - Complaint One, particular 2

1. The Complaint alleges that Dr Balafas failed to obtain informed consent before conducting a pelvic examination. Patient A's evidence is that she did not know why any of this was happening. She said Dr Balafas did not communicate the medical basis for digitally penetrating her vagina. Dr Balafas denies this allegation.
2. A code or guideline, approved by a National Board, is admissible as evidence of what constitutes appropriate professional conduct or practice for the health profession: National Law, s 41. In 2009, when the consultation occurred, the relevant code was the Code of Professional Conduct produced by the New South Wales Medical Board. Under the heading "Maintaining trust with and providing information to patients", the Code points out that "successful relationships between doctors and patients depend on trust." To establish and maintain trust, doctors should: "f) give patients full information about their condition and treatment, outlining the risks and benefits, and prognosis… h) wherever possible, check that the patient . . . has understood the information given and the course of action proposed, and that they consent to it, before you provide treatment or investigate a patient's condition."
3. Dr Balafas says that he would have explained to Patient A in the consultation room that he was going to do a pelvic examination. Although nothing is recorded in the notes, he would have assumed that Patient A knew what was meant by a pelvic examination, because "pelvis" is a common word. He would have picked up any non-verbal cue that she did not understand what he meant. Dr Balafas suggests that "non-verbal cues" is not an expression that was used in 2009 and that there has been a shift in the way doctors think about communication. In 2009, the model was more "doctor centric" than "patient centric". Dr Balafas says he would have done his best to explain the procedure but accepts that there were some deficiencies in his communication because Patient A did not understand what he intended to do. He speculates that those deficiencies may have contributed to the way Patient A responded to the examinations and the fact that she was upset when giving evidence.
4. Dr Balafas says he does not separately document informed consent. We do not criticise him for failing to do so. We also appreciate that Dr Balafas would not be able to remember the precise details of what he told Patient A in 2009. However, even if he told her that he was going to do a pelvic examination and looked for non-verbal cues that she did not understand, that is not sufficient to obtain informed consent in the circumstances of this case. Patient A was a new patient in her 20s from a non-English speaking background.
5. Dr Balafas's inability to articulate what he would tell a patient when seeking to obtain informed consent demonstrates a lack of knowledge and skill on that issue. Dr Atherton's opinion is that Dr Balafas's considerable anxiety and stress interfered with his cognitive capacities when giving evidence and that may provide an alternative explanation for the way he answered some questions. Even if his cognition was impaired to some extent, we are not persuaded that any such impairment affected his ability to answer questions truthfully or in accordance with his knowledge and skills. The question about informed consent was a straightforward one about basic knowledge and skills that every medical practitioner should possess. How did he obtain or how would he have obtained informed consent from Patient A? We are satisfied that if Dr Balafas had indeed obtained informed consent, he would have been able to articulate how that would have been done.
6. Dr Balafas should have explained that he proposed to insert his fingers into her vagina to investigate the reported pain in her abdomen. He should then have asked her if she agreed to him doing that. We accept Dr Balafas's oral evidence as to what he said and did, but find he did not adequately explain the reasons for an internal pelvic examination or obtain Patient A's informed consent for that procedure.
7. Dr Henschke's opinion was that Dr Balafas's failure to explain to Patient A why he was doing an internal vaginal examination understandably caused her distress. That communication failure was not in accordance with accepted standards and warrants moderate criticism. In his supplementary report, Dr Henschke agreed with Dr Deed that Dr Balafas did not explain the practice and procedure for a pelvic examination and did not obtain informed consent to proceed with that examination. His judgment fell below the relevant standard. When questioned about this opinion, Dr Henschke confirmed that implied consent is not sufficient.
8. Patient A, who was 22 years old at the time, consulted Dr Balafas for the first time to get a prescription for the pill and to check her thyroid function. In our view, based on the evidence, Dr Balafas's judgment in conducting an intimate pelvic examination without her informed consent is significantly below the relevant standard. That conduct is in breach of s 139B(1)(a) of the National Law.

Request to remove all clothing when no breast examination conducted - Complaint One, particular 3(a)

1. This allegation is that Dr Balafas failed to conduct a pelvic examination in an appropriate manner in circumstances where he told Patient A to remove all her clothing and gave her a gown. Patient A said she felt very uncomfortable because previously when she had had a Pap smear in Brazil, she had only undressed from the waist down.
2. Dr Balafas admits that he asked Patient A to take off all her clothes but says that he did so because he intended to do a breast examination as well as a Pap smear and an internal pelvic examination. He did not do a breast examination. He wrote in the clinical notes "Br to be r/v" meaning that he would follow up when the patient returned for another consultation.
3. Dr Balafas denies that this conduct amounts to unsatisfactory professional conduct. He submits that because he did not explain why he had asked her to remove all her clothing, Patient A mistakenly believed that the examination was not for a proper purpose. We do not accept that account. Patient A was alarmed by the fact that Dr Balafas requested that she remove all her clothing especially when he did not conduct a breast examination. She repeatedly mentioned that fact to her relatives. Dr Balafas did not explain to Patient A why she needed to take all her clothes off. Patient A's concern about being naked under the robe was understandable. It did not lead her to develop any mistaken belief about what happened.
4. After the initial conversation, Dr Balafas directed Patient A to another room where he gave her a robe to change into. Patient A's evidence was that the gown had sleeves like a big shirt and opened at the front. In fact, the robe is intended to be worn tied at the back. Patient A does not recall whether Dr Balafas gave her any instructions about how to put the robe on. Dr Balafas left the room. Contrary to Dr Balafas's submission, the fact that he did so is not necessarily inconsistent with having a sexual motivation for the examination.
5. Patient A removed her pants and her underpants, but not her shirt or jacket. She put the gown on so that it tied at the front. When Dr Balafas returned, he asked her to take off all her clothes. He left the room again and when he returned Patient A was sitting on the examination bed wearing only the gown. She remembers that it was tied around the waist at the front. Dr Balafas gave evidence that it was his recollection that the gown was tied at the back.
6. If a patient has tied the gown at the front, Dr Balafas says that he would ask her to put it on the right way. He would provide a modesty sheet and ask the patient to lift the gown and the sheet to do the Pap smear. He would then cover the lower half of her body and ask her to sit on the edge of the bed. He would ensure that her breasts were not exposed during the Pap smear and that the bottom half of her body was not exposed during a breast examination.
7. Dr Balafas says that the reason he asked Patient A to remove all her clothing was that he intended to examine her breasts. He says that in 2009 it was routine practice after doing a Pap smear to examine a woman's breasts to check for lumps or other indications of cancer. He would have asked any patient to completely undress before putting on a gown. He says he does not remember what he told Patient A about the breast examination or why he did not do a breast examination on 3 July 2009.
8. Two issues arise which go to Dr Balafas's credibility. Did he have a good reason to conduct a breast examination and did he obtain informed consent?

Did Dr Balafas have a good reason to do a breast examination?

1. It is relevant to Dr Balafas's credibility that he said his practice was to do a breast examination in a woman in her early 20's presenting for a prescription of the pill. If he decided to do a Pap smear, he would also do a breast examination regardless of whether there was any family history. Dr Henschke's opinion is that a breast examination was not justified in this situation because the chances of finding pathology in a 22 year old asymptomatic woman is so low it does not warrant putting her through such an intimate examination. We agree. Dr Balafas did not have a good clinical reason for conducting a breast examination.

Did Dr Balafas explain why he intended to do a breast examination and obtain Patient A's informed consent?

1. Dr Balafas said that he would have told Patient A the reason for conducting a breast examination at the beginning of the consultation. He would have mentioned the risk of breast cancer and that it was a good idea to have a breast check. He agreed that he did not tell his patients what the research said about the efficacy of breast examinations in detecting cancer or the incidence of breast cancer in young, asymptomatic women.
2. When asked what words he would have used to obtain informed consent, Dr Balafas could not express what he would actually have said. All he said was that, "It's part of a gynaecological work up to examine the breasts." This response is an indication that Dr Balafas did not adequately obtain informed consent from Patient A to perform a breast examination. Although not part of the complaint, Dr Balafas did not tell Patient A what was involved in a breast examination or give her the opportunity to say she did not want one.
3. Dr Henschke's opinion was that Dr Balafas's failure to explain to Patient A why he had asked her to fully undress caused significant distress and is not in accordance with accepted standards. Despite his denial, we are satisfied that Dr Balafas did not tell Patient A what the reason was for performing a breast examination, nor did he obtain her informed consent. Dr Henschke's opinion was that if Dr Balafas did decide to conduct a breast examination and a Pap smear, he can understand why a doctor would ask the patient to fully undress.
4. Dr Deed's opinion, as expressed in his report of 3 September 2020, was that a patient should not be asked to remove all her clothing for the purpose of a Pap smear or pelvic examination. If Dr Balafas intended to do a breast examination, he should have waited until he had completed the pelvic examination and then allowed the patient to cover herself with the clothing for the lower half of the body before asking for consent to do a breast examination. That approach would address concerns about modesty and vulnerability. In his view, Dr Balafas's conduct in asking Patient A to remove all her clothing was significantly below the relevant standard.
5. Dr Deed modified this evidence during cross-examination. He was asked to assume that Dr Balafas conducted a Pap smear and an internal examination when the top half of Patient A's body was covered by the gown. He said that that practice was inappropriate and not best practice because a patient should only be asked to remove clothing on the part of the body that was being examined. However, Dr Deed was of the opinion that asking the patient to undress completely was not significantly below the relevant standard if the top half of her body was covered.
6. The circumstances of this consultation are significant. Patient A was a young woman in her 20s and this was the first time she had consulted Dr Balafas. We agree with Dr Henschke's opinion that a breast examination was not justified because the chances of finding pathology in a 22 year old asymptomatic woman is so low it does not warrant such an intimate examination. Secondly, Dr Balafas did not obtain informed consent to conduct the breast examination. Although these allegations are not part of the complaint, they are relevant to an assessment of the appropriateness of requesting that Patient A undress completely.
7. Dr Balafas admits that he asked Patient A to take all her clothes off and gave her a gown. There was never any suggestion that the top half of her body was exposed. Asking Dr Deed to assume that the top half of Patient A's body was covered during the examination is not relevant to an assessment of Dr Balafas's judgment in asking her to fully undress. Dr Henschke's opinion was that if Dr Balafas did decide to conduct a breast examination and a Pap smear, he can understand why a doctor would ask the patient to fully undress. While asking Patient A to take all her clothes off demonstrates that Dr Balafas's judgment is below the standard reasonably expected of a practitioner of an equivalent level of training or experience, it is not significantly below that standard. That conduct is not in breach of s 139B(1)(a) of the National Law, nor is it unethical.

Why didn't Dr Balafas do a breast examination?

1. When responding to the Medical Council, Dr Balafas said that he may have run out of time to do the breast examination. He had already taken blood and given the Gardasil injection. He did not have a convincing answer when the Medical Council delegate pointed out that he must have intended to do a breast examination even after he had taken blood and given the injection because he asked Patient B to take off all her clothes. "Medical Council delegate: . . . then - and you're saying you had the intention of doing a breast check, that would have meant that you had the intention of doing the breast check even though you'd already taken the blood and had the long discussion. Dr Balafas: Yes, but I may not have got to it, time might have been (indistinct) or yeah, just didn't - I didn't do it and I documented it, there was - I didn't touch her breasts. So you know, and I - often I would do that for completeness."
2. Dr Balafas also speculated that he may have had a full waiting room or "something else may have interfered" with his workload. During cross-examination he agreed that he had no idea how many patients were in the waiting room.
3. At the beginning of the consultation Dr Balafas must have thought that he had enough time to perform all three examinations: the Pap smear, the pelvic examination and the breast examination. At the s 150 hearing before the Medical Council, Dr Balafas estimated that a Pap smear would take between 30 seconds and a minute and a pelvic examination would take 10 seconds. When it was put to him in cross-examination that a breast examination would only take a few seconds, Dr Balafas said that all he could think of was that he had run out of time.
4. In our view, Dr Balafas's speculations as to why he did not conduct a breast examination are not convincing. The time it would have taken does not explain why he didn't do it, especially when Patient A was already lying on the bed with only the gown covering her. Nor is it plausible that he was concerned by time pressures. He had planned to do all three examinations. We are satisfied that the real reason was that Patient A "tensed up" and "got very nervous and fidgety". Those are the words she used in her statement to police. It was at that point that Dr Balafas abruptly stopped and said words to the effect of, "We are finished." Dr Balafas realised that what he was doing had caused a reaction. That is the reason he stopped the pelvic examination and decided not to do a breast examination.

Pap smear

1. While Patient A was lying on her back, Dr Balafas conducted a Pap smear using a speculum. The complaint does not allege that Dr Balafas failed to obtain informed consent or that there was anything untoward about the way he conducted that examination. Patient A denied being nervous during this part of the examination and said that she trusted Dr Balafas.

Absence of a chaperone - Complaint One, particular 3(h)

1. Dr Balafas admits that he did not offer Patient A a chaperone but maintains that that does not amount to unsatisfactory professional conduct.
2. Dr Deed's view was that, ideally, Dr Balafas should have offered a chaperone but believes that his judgment in failing to do so was not significantly below the relevant standard.
3. Dr Henschke referred to the Australian Medical Association's Patient Examination Guidelines, 2012 which state that when conducting a physical examination, a doctor should "consider having a chaperone or support person present during the examination." Dr Henschke concluded that offering a chaperone is exemplary practice, however, not offering a chaperone to Patient A was not below the relevant standard. He said that he did not feel qualified to talk about chaperones because he had never felt the need for one.
4. We agree that, by itself, Dr Balafas's failure to offer a chaperone is not significantly below the relevant standard, nor is it unethical.

Internal pelvic examination while lying on her back

1. After completing the Pap smear, Dr Balafas told Patient A that he was going to investigate the pain she had mentioned in the lower right side of her abdomen. Patient A says that she thought this was unusual and felt uneasy but did not say anything. She continued to look up, not at Dr Balafas.
2. While positioned at the end of the bed, Dr Balafas inserted his fingers into Patient A's vagina and started moving his fingers. For some of this time, Dr Balafas's hand was on Patient A's abdomen. There is no allegation that Dr Balafas was not wearing gloves at the time or that there was no clinical purpose for the examination. Patient A's reporting of discomfort on the lower right hand side of her abdomen justified the internal examination.
3. At the s 150 hearing before the Medical Council, Dr Balafas was asked whether he routinely does a bimanual examination (internal pelvic examination), Dr Balafas said: "Dr Balafas: I don't really. Unless the patient's complained of symptoms, unless there's a reason to. I - I think it's best practice to but I - I tend not to. Questioner: Why's that? Dr Balafas: Just because you know, if - I just want the least fuss as possible, you know but - and I believe that there's two schools of thought, some doctors don't like it and some doctors think you should. So - yeah."
4. When asked during the Tribunal hearing what he meant by wanting the least fuss as possible, Dr Balafas said that his medical insurer had advised him to practise defensively. He wants to "minimise exposure". He would only do an internal examination if it was clinically indicated, but he did not know what he meant when he said he wanted the least fuss as possible. It is clear to us that he meant that he does not want to become open to complaints such as the complaint from Patient A.
5. Dr Balafas went on to explain to the Medical Council delegates how he would do an internal pelvic examination and why such an examination would be justified. "Questioner: . . .So if there were symptoms and you were doing a bimanual can you just describe that to me? Dr Balafas: So bimanual would insert fingers into the vagina and with my right hand, with my left hand would feel for the uterus, would feel for any ovarian masses in the site and (indistinct) ask if there's any tenderness, see if there's any cervical tenderness. And that's the procedure (indistinct) often helps with locating the cervix because sometimes the cervix can be difficult to find in just the position of it and it can be pretty uncomfortable looking around for it with - with the speculum."
6. Dr Balafas told Patient A during the November 2016 telephone call that he would have done a Pap smear "if, for some reason I thought it had been too long or I thought it was due". He went on to give two possible reasons for doing an internal examination: to detect ovarian masses or to find out where the cervix is before you do the Pap smear. "Definitely my intention was not to make you uncomfortable but whenever we do a test like this we always examine, okay, and that's why we put the finger in the pelvis to examine, there's a reason for that and the reason is so we can find where the cervix is and we can then use the correct size speculum. Because what often happens is if you just go in with the speculum and you don't know where the cervix is it can be very very uncomfortable for someone and it can hurt them. And it's actually the correct practice to examine first and to make sure there are no ovarian masses or any unusual anatomy of the uterus or the pelvis. So it's a pretty standard practice to do that but also mainly because when you do the Pap smear if it's the wrong size speculum and often the cervix is in a different position, if you're trying to look around for it with the speculum it can be very uncomfortable for somebody."
7. It is not routine practice to do an internal pelvic examination to locate the cervix before doing a Pap smear. That can be done during the procedure if there are difficulties locating the cervix. When questioned about his response to the Medical Council, Dr Balafas said that he was "in a state of shock" during the November 2016 phone call with Patient A. He did his best to explain to her why he would have done a Pap smear and a pelvic examination. There is no complaint about the Pap smear or the fact that Dr Balafas conducted a pelvic examination.

Time taken to perform internal pelvic examination - Complaint One, particular 3(d)

1. The Complaint alleges that the internal examination lasted for a long period -- longer than clinically indicated. Patient A claims that while lying on her back, Dr Balafas had his fingers in her vagina for a long time. Patient A says she was concerned about what Dr Balafas was doing and how long it was taking. She raised her head and upper body to see what was happening. She cannot recall exactly how long, but it was longer than she expected it to last. She denied exaggerating the time.
2. At various times Patient A made statements about the length of the examinations. The psychologist's notes record that Patient A told her that the internal examination lasted "up to 30 minutes". In the police statement Patient A said, "While I was lying on my back, the digital penetration lasted for a period of ten minutes." In a note taken by one of the solicitors for the Commission, Patient A is recorded as saying in a conference on 20 December 2019 that "10 minutes was time with speculum plus that time on back, Pap smear, takes it off, does something else". That file note was not in evidence, but it was marked for identification and the relevant portion was read to Patient A. In oral evidence Patient A agreed that 10 minutes may have been the entire time she was in the examination room. The first and last part of the consultation had taken place in the consulting room.
3. Dr Balafas's evidence to the Medical Council on 28 February 2017 was that the pelvic examination is a "quick examination" and that a Pap smear would take "no more than half a minute". In a written response to questions asked by the Commission dated 19 October 2018, Dr Balafas stated that a Pap smear would take about 10 seconds. He noted that in this case it appeared to be a longer examination because Patient A reported left iliac fossa tenderness. Dr Balafas went on: "It was likely to be a careful bi-manual examination would have been conducted in those circumstances. This could take up to half a minute or so - though I can only provide a rough estimate."
4. There were inconsistencies in Patient A's evidence about the length of time the examinations took. The period of 30 minutes is consistent with the total length of the consultation. A Level C consultation, which is what Dr Balafas billed Medicare for, takes more than 20 minutes. Patient A has never said that Dr Balafas had his fingers inside her vagina for 30 minutes. In the police statement, she said 10 minutes for the internal examination, but she cannot now say how long it took, except that it felt like a long time. We accept Patient A's evidence that she was concerned about what Dr Balafas was doing and how long it was taking. She raised her head and upper body to see what was happening.
5. Dr Deed's opinion was that if the whole procedure took 10 minutes that would be an unusually long time. However, he was not sure that Patient A could accurately remember the specific time. In those circumstances he did not consider the alleged conduct to fall below the relevant standard. We note that it is not Dr Deed's role to comment on Patient A's recollection of the length of time it took.
6. There is no complaint about the Pap smear or the time taken to complete that procedure. As for the pelvic examination while lying on her back, that should not have taken more than 30 seconds. We find that, although Patient A cannot remember the exact time, it took longer than 30 seconds. That is longer than was clinically indicated. That finding is supported by Patient A's evidence to that effect and the fact that she lifted her head during the procedure partly because she was concerned about the length of time it was taking.
7. Dr Balafas placed his fingers in Patient A's vagina for a long period, longer than clinically indicated, while she was lying on her back. This conduct demonstrates that his judgment is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It was also "improper" and "unethical" given the intimate nature of the examination. Dr Balafas is guilty of unsatisfactory professional conduct as defined in s 139B(1)(a) and (l) of the National Law.

Moving Patient A's face with his hand so that she faced the wall - Complaint One, particular 3(c)

1. This particular is that Dr Balafas moved Patient A's face with his hand so she faced the wall while the fingers of his other hand were in her vagina.
2. During the pelvic examination Patient A raised her head and upper body to see what was happening. When she did so, she says Dr Balafas abruptly stopped her and said, "Be still. Don't move." With the hand that was not in her vagina, Patient A says that Dr Balafas gently turned her face towards the wall and then removed that hand. Dr Balafas suggests that this recollection was a false memory. Patient A denied that she panicked, shut her eyes and turned her face away. She was adamant that Dr Balafas had touched her face and turned her face towards the wall.
3. Dr Balafas says he has never touched a patient's face and turned it to the wall. However, he conceded that he does not recall whether or not he did so on this occasion and that it is possible. He said it was possible that Patient A moved her head to see what he was doing, but he does not recall that happening. Dr Balafas claims that he would never let a patient feel uneasy. He then corrected that answer, agreeing that there may have been occasions when patients felt uncomfortable. Dr Balafas denied saying the words attributed to him or using the tone implied by those words. He added that if there was some difficulty with the examination, he might gently request a patient to relax.
4. During the November 2016 recorded telephone call with Dr Balafas, Patient A alleged that he had put his hand on her face and told her to be quiet and be still. Dr Balafas interrupted saying, "I can't recall that." At the hearing before the Medical Council on 28 February 2017, Dr Balafas was asked about the allegation that he turned Patient A's head towards the wall during the internal pelvic examination. He gave the following response: "That's just outrageous, it's - it's not - I can't see how that's even possible if I'm - she's claiming that while I was examining her, which I did from the end of the bed, that I've somehow moved her head (indistinct) which is just not physically possible. It's just - just a lie. It's impossible really. And I most definitely did not do that."
5. This is a very different response from the response he gave to Patient A in the November 2016 telephone call. Again, the significance of that inconsistency is that it further supports our conclusion that Dr Balafas recalled Patient A and his wrongdoing but was attempting to paint a picture consistent with him being innocent of any wrongdoing.
6. Dr Balafas suggested to the Medical Council that it was impossible for him to reach Patient A's face when he was standing at the foot of the bed. He repeated that claim in evidence before the Tribunal. We assume, in accordance with normal practice when conducting a pelvic examination, that Patient A was lying on her back with her knees bent, her legs open and her hips towards the end of the bed. In those circumstances, we are not satisfied that it would have been impossible for Dr Balafas to touch Patient A's face from his position at the foot of the bed. It would have been possible for him to reach her face if she lifted her head up and he leaned forward over her body.
7. We make no finding as to whether Dr Balafas recalls this part of the consultation, but we are reasonably satisfied that Patient A's version of events is correct. She consistently made that allegation and it is something that she is likely to recall. She mentioned it to her relatives.
8. Dr Henschke says that if a patient lifted her head up, he would stop the examination and ask if there was anything wrong. He has never touched a woman on the face while she was lying on her back during an examination. He tells the patient what he is doing while conducting the examination.
9. Dr Deed's view was that it was not appropriate for Dr Balafas to touch Patient A's face and turn it towards the wall while his fingers were in her vagina. While this conduct was a departure from the expected standard, it was not significantly below the relevant standard.
10. When a patient lifts her head to see what is happening during an internal pelvic examination, a medical practitioner should not touch the patient's face, turn her head away or tell her to be still. What Dr Balafas should have done, if Patient A was showing signs of discomfort, was stop the examination and ask her if she felt comfortable with him continuing. Dr Balafas did not do that. In our view, that conduct was significantly below the relevant standard and "improper" and "unethical" particularly in circumstances where this was an intimate examination and Patient A was seeing Dr Balafas for the first time. The conduct is unsatisfactory professional conduct as defined in s 139B(1)(a) and (l).

Examination while Patient A was lying on her stomach and rubbing her clitoris twice Complaint One, particulars 3(f) and (g)

1. Patient A alleges that after examining her on her back, Dr Balafas asked her to lie on her stomach. He inserted his finger into her vagina while she was lying on her stomach "for about a few minutes". Patient A further alleges that Dr Balafas removed his fingers and moved them towards her clitoris and rubbed her clitoris twice. Patient A demonstrated the movement by stroking the fore-finger of one hand on the palm of her other hand with two definite movements. Patient A says she then "tensed up" and "got very nervous and fidgety". Dr Balafas stopped and said, "We are finished." Patient A acknowledges that she could not see what Dr Balafas was doing because she was lying on her stomach.
2. Dr Balafas states that under no circumstances would he ever ask a patient to lie on her stomach to do an internal pelvic examination. It follows that he also denies that he had his fingers in her vagina or removed them and rubbed her clitoris twice. Based on Patient A's evidence, Dr Balafas's denials, our findings about credibility and for the following additional reasons, we accept Patient A's account. Dr Balafas asked her to turn over on to her stomach, inserted his finger into her vagina while she was lying on her stomach "for about a few minutes" and deliberately rubbed her clitoris twice.
3. The fact that Patient A did not disclose those details to her family or her psychologist can be explained by the fact that her memory of that part of the consultation was the most traumatic part of the consultation. She was too embarrassed and traumatised to disclose the explicit details. Her mistake in saying to Dr Balafas in the November 2016 telephone call that he had asked her to turn on to her back is explicable for the reasons Patient A gave. We accept Patient A's evidence that this part of the so-called examination took "about a few minutes".
4. Dr Balafas sought to impugn Patient A's account of this part of the examination on several bases. We have addressed the submissions that Patient A was mistaken because of her inexperience with Pap smears or her limited English. Three further challenges to this evidence were firstly, that Patient A failed to explain how she moved from her back to her stomach on the narrow examination table. In her police statement, Patient A says that Dr Balafas told her to turn over and lie on her stomach. Patient A could easily have turned herself over, even on a narrow bed.
5. Secondly, it was submitted that there was no evidence as to how Dr Balafas was able to touch Patient A's clitoris if she was on her stomach. For example, there was no evidence that her body was arched or that she was on her knees for any period. Evidence of that kind is not needed. We are satisfied that Dr Balafas was able to touch Patient A's clitoris with his finger by sliding his hand under her body.
6. Thirdly, it was submitted that a much more plausible scenario is that Dr Balafas accidentally brushed Patient A's clitoris during the Pap smear. Both expert witnesses accept that there can be an accidental touching of the clitoris during a Pap smear. For the reasons we have already given, we accept Patient A's evidence that she was lying on her stomach when this particular allegation occurred.
7. Dr Henschke's opinion was that it is not possible to perform a pelvic examination while a woman is lying on her stomach and there is no gynaecological examination that is performed on a woman in that position. Such an examination is not justifiable. Dr Henschke would be severely critical of a doctor who intentionally rubbed a woman's clitoris during a pelvic examination.
8. Dr Deed's opinion was that asking Patient A to turn over and lie on her stomach was significantly below the relevant standard. He could not think of a circumstance where it would be appropriate to ask a patient to do so and he could not recall ever requiring a patient to do that. As to the allegation of rubbing Patient A's clitoris, Dr Deed's opinion was that, if this happened, it is significantly below the relevant standard. There should never be any deliberate rubbing.
9. We find this allegation is proven. There is no dispute that, if proven, it amounts to unsatisfactory professional conduct as defined in s 139B(1)(a) and (l) of the National Law.

Patient A - Complaint Two - inadequate records

1. The second complaint relates to a telephone conversation Dr Balafas had with Patient A on 16 November 2016. Patient A telephoned Dr Balafas at the request of NSW Police to put to him the allegations she had made about his conduct at the consultation on 3 July 2009. Dr Balafas did not record any information regarding that telephone conversation. That failure is alleged to constitute unsatisfactory professional conduct in breach of either s 139B(1)(a) or (b) of the National Law. Section 139B(1)(b) defines unsatisfactory professional conduct to include: A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
2. In this case the contravention of the National Law is said to be a contravention of cl 1 to Sch 4 of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW). That provision states that: 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following - (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment or other medical service proposed by the medical practitioner who is treating the patient.
3. Dr Balafas accepts that, ideally, he should have made a record of the telephone conversation. But he denies that his failure to do so is in breach of the record keeping provisions or that his judgment, skill or care is significantly below the relevant standard: National Law, s 139B(1)(a) and (b). The fact that he has never received any training about what to do when he receives a complaint from a patient is no excuse.
4. Dr Balafas says he was too busy to record the complaint because he was going on holidays. At the hearing, Dr Balafas asserted again that Patient A had phoned him in mid-December, when in fact it was mid-November 2016. That mistake is not significant except that he used it as a reason for not making a record and for failing to contact his insurer. Dr Balafas left on an overseas holiday on 20 December 2016. He agreed that he was not too busy to make a note of the conversation, but denied that the failure to record the conversation was because he did not want to disclose the alleged sexual misconduct.
5. Dr Balafas was subject to a supervision order at this time. He should have been aware of the importance of making a record of a conversation of this nature.
6. Dr Deed said in his report that the failure to record the complaint from Patient A was significantly below the relevant standard. He would have kept a note of the patient's concerns and entered them into her notes as a permanent record of the conversation. However, in cross-examination, Dr Deed agreed that the statutory provisions for record keeping do not expressly say that a doctor needs to keep a note of a complaint from a patient. For that reason, Dr Deed modified his opinion and said that this conduct was not significantly below the relevant standard. He clarified that that opinion did not depend on whether Dr Balafas had Patient A's clinical notes in front of him during the phone call.
7. Dr Henschke's evidence was that he would make a record of such a complaint and ring his medical defence company. It would be unwise not to document such a conversation.
8. The fact that cl 1 to Sch 4 of the Health Practitioner Regulation (New South Wales) Regulation does not refer expressly to recording complaints from patients does not mean that Dr Balafas has not contravened the provision. Dr Deed is not qualified to give a legal opinion about the effect of this provision. The complaint is information that is relevant to the patient's treatment. This failure is unsatisfactory professional conduct as defined in s 139B(1)(b) of the National Law. It is also significantly below the relevant standard and amounts to unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law.

Patient A -Complaint Three - professional misconduct

1. Complaint Three is that Dr Balafas is guilty of professional misconduct under s 139E of the National Law in that he has: "i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in 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 the suspension or cancellation of the practitioner's registration"
2. The Commission alleges that the particulars of Complaint One and Complaint Two, individually or in combination, justify a finding of professional misconduct. Dr Balafas denies that he is guilty of professional misconduct.
3. Basten JA explained the concept of professional misconduct in Health Care Complaints Commission v Chen (2017) 95 NSWLR 334; [2017] NSWCA 186 at [20]: "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome."
4. The following points are taken from the cases of Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200; Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 at [18]-[ 24] and Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3: 1. the essential task in determining whether relevant conduct is professional misconduct is a characterisation of it; 2. the characterisation requires a focus on the nature of the conduct in terms of its seriousness and not its consequences; 3. the seriousness of unsatisfactory professional conduct depends on the extent to which it departs from proper standards, though additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public; 4. characterisation of conduct is not to be determined by working backwards from a view that the Tribunal does or does not ultimately wish to suspend or cancel a Respondent's registration. Rather, the characterisation of the conduct must come first; 5. to constitute professional misconduct, the relevant conduct must be found to have the capacity to justify an order for suspension or cancellation of registration though that does not necessarily mean that such an order should be made in a particular case; and 6. "misconduct in a professional respect" (although that language is no longer used under s 139E of the National Law) means conduct that incurs the strong reprobation of colleagues of good repute and competence.
5. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638; [1997] NSWCA 264 the Court made the following observations which are particularly relevant: "Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe."
6. We have found particular 3 of Complaint One proven. Particulars 3(f) and (g) are that Dr Balafas placed his fingers in Patient A's vagina for about a few minutes while she was lying on her stomach and that he rubbed her clitoris twice. The conduct alleged in those particulars is of a sufficiently serious nature to justify suspension or cancellation of Dr Balafas's registration. There can be no other conclusion than that Dr Balafas engaged in this behaviour for his own sexual gratification. Sexual exploitation of a patient is at the highest end of the spectrum of seriousness. It is inappropriate conduct of a sexual nature and, in this case, amounts to professional misconduct.
7. The remaining particulars in Complaint One involve less serious departures from the relevant standard but are nevertheless improper and unethical. Dr Balafas performed a pelvic examination where he put his fingers into Patient A's vagina for longer than was clinically needed while she was lying on her back. He did not adequately explain why he needed to do that examination or obtain her informed consent. Patient A was naked under the gown. When she raised her head he leant over and moved her face with his hand so that she faced the wall. Patient A was a young woman who had never consulted Dr Balafas before. There are no mitigating factors. This was conduct of a sexual nature and is sufficiently serious to justify suspension or cancellation of Dr Balafas's registration. It amounts to professional misconduct.
8. Complaint Two relates to a significant departure from the record keeping requirement but, by itself, does not amount to professional misconduct.

Patient B - admissibility of evidence relating to complaints

1. The Commission made a separate application for disciplinary orders in relation to Dr Balafas's conduct towards Patient B. The details of what happened during two consultations on 29 August 2009 and 5 September 2009 are the subject of that application. Patient B first complained to the Commission in October 2009. In March 2010, following referral, the Medical Council wrote a counselling letter to Dr Balafas. Dr Balafas apologised to Patient B on 15 April 2010. The complaint was re-activated after the Commission received the complaint from Patient A.
2. An issue arose as to the admissibility of Patient B's evidence in support of this application. When the complaint was listed for hearing in December 2020, Patient B agreed to give evidence by AVL from Ireland where she now lives. The hearing was delayed for several months during which time Patient B changed her mind. Dr Balafas objected to her evidence being admitted on the basis that it was hearsay and that he would be unfairly prejudiced if he did not have an opportunity to cross-examine her.
3. The Tribunal is not bound to observe the rules of law governing the admission of evidence. We may inform ourselves of any matter in the way we think fit: National Law, Sch 5D, cl 2. Nevertheless, we are subject to the rules of procedural fairness.
4. The Commission submitted that we should follow the Tribunal's approach in previous cases where statements given by a patient who did not subsequently give oral evidence were admitted, subject to weight. In Health Care Complaints Commission v Marino [2016] NSWCATOD 37 the Tribunal found that requiring the patient to give evidence would have had an adverse impact on her health. Dr Marino admitted many of the patient's assertions and others were corroborated by documentary evidence such as mobile phone records and hospital records. In Health Care Complaints Commission v Sultan [2017] NSWCATOD 47 at [40] - [41], where Dr Sultan denied an allegation and the Tribunal would have been assisted by the patient's evidence, that allegation was found not to be proved.
5. There are two relevant differences between the present case and the two cases cited by the Commission. First, there was no medical evidence as to the reason for Patient B not giving evidence by AVL. Secondly, apart from the clinical notes and correspondence, there was very little independent evidence corroborating Patient B's version of events. A statement was provided by a friend of Patient B, but she wished to remain anonymous and was not called to give evidence. Patient B complained to her midwife but there was no evidence from her.
6. Rather than admitting Patient B's evidence and potentially giving it no weight, we decided not to admit evidence of any disputed facts. The original complaint to the Commission is in evidence, but not Patient B's statements of 21 March 2019 or 26 March 2020. There is no legislative right to cross-examine but, in the circumstances of this case, it would be unfair to deny Dr Balafas the opportunity to question Patient B about disputed factual allegations.
7. In light of this ruling, the Commission amended the complaint. The remaining particulars relate only to certain allegations about the Pap smear and the pelvic examination at the first consultation on 29 August 2009 and the breast examination on 5 September 2009. The allegation that the conduct is of a sexual nature remains.

Summary of amended complaints involving Patient B

1. Complaint One, particular 1 is that during a consultation on 29 August 2009, Dr Balafas inappropriately conducted a Pap smear without obtaining informed consent and without adequately explaining the reason for the Pap smear or offering a chaperone. Patient B had not previously consulted Dr Balafas and had not previously had a Pap smear. She told him she may be pregnant.
2. Dr Balafas denies that it was inappropriate to perform a Pap smear on a patient who is pregnant. His belief was that conducting a Pap smear was in accordance with Australian guidelines at the time. In his mind, it was also part of the desired antenatal work-up by the hospital. Dr Balafas denies the alleged conduct or denies that it amounts to unsatisfactory professional conduct as defined in s 139B(1)(a) and/or (l) of the National Law.
3. Complaint One, particular 2 is that on the same day, 29 August 2009, Dr Balafas inappropriately conducted a pelvic examination on Patient B by placing one or more fingers into her vagina. Dr Balafas denies that conducting a pelvic examination by inserting one or more fingers into Patient B's vagina was inappropriate or that there was insufficient clinical indication for doing so. In addition, it was alleged that Dr Balafas did not adequately explain the reason for doing a pelvic examination. He says that he did explain the reason for the examination but accepts that his explanation must not have been adequate. Dr Balafas denies that he failed to obtain informed consent. He admits that he did not offer a chaperone but says that the failure to do so is not unsatisfactory professional conduct.
4. Complaint One, particular 3 is that a week later, on 5 September 2009, Dr Balafas inappropriately conducted a breast examination and did not adequately explain to Patient B the reasons for doing so or obtain her informed consent. Dr Balafas denies this particular. Complaint One, particular 8 is that by reason of particulars 1-3, individually or in combination, Dr Balafas engaged in inappropriate behaviour of a sexual nature towards Patient B. Dr Balafas denies this particular.
5. Complaint Two is that Dr Balafas is guilty of unsatisfactory professional conduct as defined in s 139B(1)(b) or (l) of the National Law because he failed to maintain adequate medical records for Patient B. Dr Balafas admits that he did not record the size of a vaginal polyp and that he should have documented the size of Patient B's uterus. In relation to conversations with hospital and pathology staff, Dr Balafas says he recorded the key aspects of the advice he received from hospital staff. He admits that he incorrectly recorded Patient B's name on the hospital form. In relation to the allegation that he failed to record Patient B's refusal to undergo a pelvic examination on 12 October 2009, Dr Balafas says that he did not offer to perform a pelvic examination on that day.
6. Complaint Three is that the particulars of Complaint One and Complaint Two, individually or in combination, justify a finding of professional misconduct. Dr Balafas denies that he is guilty of professional misconduct.

Dr Balafas's version of events

1. When Dr Balafas first received the complaint about Patient B in 2009, he says he remembered the consultations reasonably well. He says he was concerned for Patient B's welfare as a young pregnant woman from a foreign country. He wanted to complete what he understood to be the proper 'work-up' preliminary to her attendance at an antenatal clinic. He says he was trying to be thorough. He examined Patient B and discovered a growth, which he described as a polyp, on Patient B's vaginal wall. He says he had never seen anything like that before or since. He sought advice from a hospital Registrar. Dr Balafas documented the Pap smear in his records, along with the polyp. He also referred to the polyp in the antenatal referral form.

Not explaining the reasons for the Pap smear and failing to obtain informed consent - Complaint One, particular 1(c) and (e)

1. Dr Balafas has no doubt that he explained the reason for a Pap smear. He denies that he failed to obtain informed consent. He says it was his practice to explain what he was going to do and check that the patient understood. However, he did admit that there were deficiencies in his communication style and techniques, particularly relating to explaining the purpose of the examinations.
2. Dr Balafas says he has changed his behaviour since 2009. When the Medical Council delegates asked him in May 2019 what changes he had made to his practice, he said: "Well, my practice would be to communicate more clearly with patients over procedures that need to be done and the reason for them and in a matter like - and I'm probably less inclined to investigate things myself, refer it straightaway and, you know, I would have - like in retrospect like referred her earlier probably to the women's hospital. So my practice has changed in clearer communication and just things like not doing breast examinations, just more defensive practice and better communicating."
3. Dr Balafas's solicitors confirmed in a letter to the Commission dated 28 October 2019, that: "Dr Balafas says that he accepted (over 10 years ago) that his communication skills were lacking in terms of explaining the purpose of each examination and checking that (Patient B) understood and accepted such explanations."
4. In his statement in the Tribunal proceedings Dr Balafas sets out the factors that may have contributed to those deficiencies. He also states that he regrets that his records for Patient B do not include more detail of the advice he gave her about Pap smears. He says it was certainly his practice to give explanations to patients and check that they were accepting of those explanations and that they consented to the examinations. However, he conceded that his efforts must have been unsuccessful because there was some significant misunderstanding. He says this was "very disappointing" and he was "genuinely sorry that Patient B had felt uneasy about her consultations".
5. Dr Deed's opinion was that opportunistic cervical screening at a first antenatal visit is clinically reasonable especially if there is no prior history of a Pap smear. In general, pregnancy is not a contraindication to performing a Pap smear.
6. Dr Henschke's opinion was that a Pap smear was clinically indicated. However, Dr Balafas's failure to adequately explain the reason for conducting Patient B's first Pap smear departs from the expected standard at the time and warrants moderate criticism. He agrees with Dr Deed that Patient B was not fully informed about the process and procedures involved in having a Pap smear. Dr Balafas's failure to obtain informed consent is conduct falling below the relevant standard.
7. Dr Balafas is at a disadvantage because, understandably, he cannot remember what he would have told Patient B so long ago and he was not able to cross-examine Patient B about her evidence. His admission only goes so far as conceding that he did not adequately explain to Patient B the reason for the Pap smear. He denies that he did not obtain informed consent.
8. Informed consent requires a medical practitioner to give the patient relevant information about the reason for the proposed examination including any risks and benefits. To give informed consent, the patient must be able to understand that information and then voluntarily agree to the examination. We are reasonably satisfied, based on Dr Balafas's evidence, that he did not adequately explain the reasons for conducting the Pap smear. Without that information, Patient B could not have given her informed consent. For an intimate examination of a young woman who was a first time patient, this conduct is significantly below the relevant standard. Complaint One, Particulars 1(c) and (e) are proven and the conduct is unsatisfactory professional conduct as defined in s 139B(1)(a).

Failing to offer a chaperone - Complaint One, particular 1(f)

1. In a letter to the Commission dated 19 October 2018, Dr Balafas said that a chaperone would have been available if requested. Dr Balafas admits that he failed to offer Patient B a chaperone but says that failure does not amount to inappropriate conduct.
2. Dr Deed's evidence was that, ideally, Dr Balafas should have offered a chaperone but that this departure was not significantly below the relevant standard. Dr Henschke referred to the Australian Medical Association's Patient Examination Guidelines, 2012 which state that when conducting a physical examination, a doctor should "consider having a chaperone or support person present during the examination." Dr Henschke concluded that offering a chaperone is exemplary practice. However not offering a chaperone to Patient B was not below the relevant standard.
3. Neither Dr Deed nor Dr Henschke considered that failing to offer a chaperone fell significantly below the relevant standard. We agree. Nor does it amount to improper or unethical conduct. Complaint One, particular 1(f) is not proven.

Inappropriate conduct of pelvic examination - Complaint One, particular 2(f)

1. Dr Balafas denies that there was insufficient clinical indication for conducting a pelvic examination. In his view, it was common in 2009 for general practitioners to conduct pelvic examinations as part of "well woman" checks. The purported reason for the pelvic examination was because there was an "obvious lesion" (polyp) which Dr Balafas said he picked up from the Pap smear. Furthermore, it was not uncommon in 2009 to do an internal examination as well as a Pap smear when a patient presented for a pregnancy test.
2. Dr Henschke's opinion was that it was not appropriate for Dr Balafas to conduct a pelvic examination on Patient B on 29 August 2009. Dr Balafas should have taken Patient B's age into account. The likelihood of finding pelvic pathology in such a young and healthy woman was extremely low. Pelvic ultrasound in early pregnancy gives a more accurate estimate of uterine size than a pelvic examination. Performing a pelvic examination on 29 August 2009 following the Pap smear warrants his moderate criticism.
3. Dr Deed's opinion was that there is no clinical indication for performing a pelvic examination in an asymptomatic patient at an antenatal assessment. Dr Henschke agreed that it was clinically inappropriate for Dr Balafas to conduct a pelvic examination on Patient B on 29 August 2009. That conduct, combined with the failure to offer a chaperone, was below, but not significantly below the relevant standard.
4. In accordance with the views of both experts, we find that there was insufficient clinical indication for conducting a pelvic examination on Patient B on 29 August 2009. However, Dr Deed and Dr Henschke differ as to the degree to which that conduct falls below the relevant standard. We do not consider the conduct to be below the relevant standard because the possible presence of a polyp is a clinical indication for a pelvic examination. In addition, in 2009, some doctors routinely performed pelvic examination after a Pap smear. For those reasons, Complaint 2, particular 2(f) is not proven.

Failure to adequately explain reason for pelvic examination and failure to obtain informed consent - Complaint One, particulars 2(b) and (g)

1. Dr Balafas's evidence was that he did explain the reasons for the pelvic examination and that Patient B gave consent. He accepts that, based on Patient B's concerns, his explanations must have been inadequate. He attempted to minimise the extent of these deficiencies by saying that he apologised in writing, not for any failures, but for his lack of impeccable communication.
2. At the s 150 hearing before the Medical Council on 2 May 2019, one of the delegates noted that Patient B was 23 years old at the time. Dr Balafas said that: "And she was a traveller and she was pregnant and so as part of the pregnancy work, the hospital (indistinct) had to be done, which was explained to her and she agreed."
3. In his statement of 12 May 2020, Dr Balafas says he has no doubt that he did obtain Patient B's consent before conducting an internal examination and he has no doubt that he explained to her the reason for doing the examination. He accepts that he should have documented that discussion and consent as a separate item in his records.
4. Dr Balafas could not articulate in sufficient detail what he would have told Patient B to obtain her informed consent. He paused and stumbled when trying to think of what he would have said. Some of his hesitancy may be explicable because of the stress he was feeling while being cross-examined but, if he was routinely obtaining informed consent, the words he used should come to him easily. Dr Balafas's inability to articulate what he would have said suggests that he did not give an adequate explanation to Patient B at the consultation in 2009. He openly admits to deficiencies in communicating the purpose of the examination. In the letter of apology he wrote to Patient B on 15 April 2010 he said: "It was always my intention to be thorough in terms of your pregnancy and general health, but it is evident from the concerns you expressed about repeated examinations that I failed to adequately explain to you the reasons for those examinations. I apologise unreservedly for this failure and the anguish that resulted for you from this. . . . I thought I explained about the pap smear although I realise on reflection I did not explain about the significance of the polyp." (Emphasis added.)
5. We repeat the passage from a letter dated 28 October 2019 from Dr Balafas's solicitors to the Commission: "Dr Balafas says that he accepted (over 10 years ago) that his communication skills were lacking in terms of explaining the purpose of each examination and checking that [Patient B] understood and accepted such explanations."
6. Dr Henschke agrees with Dr Deed that Patient B was not fully informed about the process and procedures involved in having a pelvic examination. Dr Henschke's opinion was that, especially for an intimate examination, a doctor should not rely on implied consent.
7. We are reasonably satisfied that Dr Balafas did not adequately explain the reasons for conducting the pelvic examination. Without that information, Patient B could not have given her informed consent. For an intimate examination of a young woman who was a first time patient, this conduct is significantly below the relevant standard. Complaint One, Particulars 1(b) and (g) are proven and the conduct is unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law.

Placing one or more fingers in Patient B's vagina - Complaint One, particular 2(c)

1. Dr Balafas says that the insertion of one or more fingers into Patient B's vagina was appropriate for the purposes of the examination. We agree. This particular is not proven.

Failure to offer a chaperone - Complaint One, particular 2(h)

1. Dr Balafas admits that he did not offer a chaperone but says that his failure to do so does not amount to inappropriate conduct. Neither expert witnesses considered that failure to be significantly below the relevant standard. We agree. This particular is not proven.

Inadequate explanation and lack of informed consent to breast examination - Complaint One, particulars 3(a) and (f)

1. Dr Balafas says that he would have told Patient B the reason for conducting a breast examination at the beginning of the consultation. He would have mentioned the risk of breast cancer and that it was a good idea to have a breast check. He agrees that he did not tell his patients what the research said about the efficacy of breast examinations in detecting cancer or the incidence of breast cancer in asymptomatic women.
2. At the s 150 hearing before the Medical Council on 2 May 2019, Dr Balafas was asked what words he would have used to the patient to recommend a breast examination. This is the answer he gave: "So I would have said that, you know, part of - as females you (indistinct) too much for breast cancer, it's a good idea to have your breasts examined. If you're happy to do that, I'll examine them." I would offer that to the patient and in most cases they were happy to have the examination done."
3. In cross-examination, Dr Balafas agreed that his communication skills could have been better. When pressed, he said he could not identify any gap in his skills because he could not recall the consultation.
4. Dr Henschke's opinion was that in circumstances where Patient B had not had a breast examination before, Dr Balafas should have explained to her that a breast examination was part of the routine antenatal examination requested by the Women's Hospital. He should also have explained how he would conduct the breast examination. Dr Balafas's failure to adequately explain the reason for conducting the breast examination warrants his moderate criticism.
5. For the same reasons we have given in relation to the Pap smear and the internal examination, we are reasonably satisfied, based on Dr Balafas's evidence, that he did not adequately explain the reasons for conducting a breast examination. Without that information, Patient B could not have given her informed consent. For an intimate examination of a young woman who was a first time patient, this conduct is significantly below the relevant standard. Complaint One, Particulars 2(a) and (f) are proven and the conduct is unsatisfactory professional conduct as defined in s 139B(1)(a) of the National Law.

Inappropriate behaviour of a sexual nature - Complaint One, particular 8

1. Dr Balafas submitted that there is no proper basis for an inference to be drawn that the conduct towards Patient B was for a sexual purpose. However, the allegation is not that Dr Balafas had a sexual purpose. It is that, objectively viewed, the conduct is of a sexual nature.
2. The original complaint involving Patient B focused on the necessity for repeated Pap smears, internal examinations and breast examinations, rather than on the manner in which those examinations were conducted. The Commission submits that having an insufficient clinical purpose for conducting the pelvic examination and the breast examination, as well as the lack of informed consent, would allow the Tribunal to draw the inference that the conduct was of a sexual nature. We are not reasonably satisfied that that inference can be drawn. This particular is not proven.

Failure to maintain adequate medical records for Patient B - Complaint Two, particular 1

1. Complaint Two is that Dr Balafas is guilty of unsatisfactory professional conduct as defined in s 139B(1)(b) or (l) of the National Law because he failed to maintain adequate medical records for Patient B. Dr Balafas admits that he did not record the size of a vaginal polyp and that he should have documented the size of Patient B's uterus. In relation to conversations with hospital and pathology staff, Dr Balafas says he recorded the key aspects of the advice he received from hospital staff. He admits that he incorrectly recorded Patient B's name on the hospital form. In relation to the allegation that he failed to record Patient B's refusal to undergo a pelvic examination on 12 October 2009, Dr Balafas says that he did not offer to perform a pelvic examination.
2. Dr Balafas's evidence was that when he inserted the speculum to do a Pap smear, he detected a finger like protrusion halfway down the vaginal wall. He had never seen anything like that before. Despite the extraordinary nature of the polyp, he did not record anything about its size in his clinical notes. He admits that he should have described it better. He contacted a Registrar at the Royal Hospital for Women who told him to monitor the polyp. He said he did not document the details about the polyp because it was not as urgent as obtaining a swab. We presume that he meant obtaining a swab to consider whether HSV (genital herpes simplex virus) was a possible cause of the polyp, even though that is not a cause of polyps. In his clinical notes for 12 October 2009, Dr Balafas wrote "Requires monitoring ?polyp Aetiology".
3. Dr Balafas admits that he was not thorough enough in his record keeping but submits that the deficiencies to which he has admitted should be considered in the context of otherwise reasonably thorough notes of the consultations.
4. We find that Dr Balafas breached clause 1 to Schedule 4 of the Health Practitioner Regulation (New South Wales) Regulation by failing to record the size and location of any vaginal polyp, recording insufficient information about the size of the uterus and failing to record Patient B's correct name on the antenatal referral form. The remaining particulars, that Dr Balafas failed to record sufficient information regarding any conversations with hospital and pathology staff and that Patient B refused to undergo a pelvic examination on 12 October 2009, are not proven.

Professional misconduct - Complaint Three

1. We are not satisfied that Dr Balafas is guilty of professional misconduct in relation to Patient B. The conduct alleged in those particulars is not of a sufficiently serious nature to justify suspension or cancellation of Dr Balafas's registration.

Orders 1. Dr Balafas has engaged in unsatisfactory professional conduct and professional misconduct in relation to Patient A. 2. Dr Balafas has engaged in unsatisfactory professional conduct in relation to Patient B. 3. Under clause 13 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), Dr Balafas is to pay the Health Care Complaints Commission's costs as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW).

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: 14 December 2021