(1938) 60 CLR 336.
Clyne v NSW Bar Association [1960] HCA 40
Source
Original judgment source is linked above.
Catchwords
(1938) 60 CLR 336.
Clyne v NSW Bar Association [1960] HCA 40
Judgment (55 paragraphs)
[1]
What the Tribunal decided
The Tribunal decided that the Respondent's conduct amounted to unsatisfactory professional conduct or unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of registration (i.e. professional misconduct - Complaint Five) in the following respects:
1. The conduct engaged in demonstrated that the knowledge, skill and judgment possessed and the care exercised by the Respondent was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (Complaint One).
2. The conduct in the practice or purported practice of osteopathy engaged in by the Respondent was improper and unethical (Complaint One).
3. The Respondent breached conditions on his Registration (Complaint Two).
4. The Respondent failed to comply with a 'Section 34A Notice' issued by the HCCC without reasonable excuse (Complaint Three).
5. Contravened s130(1) of the National Law by failing to provide the National Board written notice of being charged by NSW Police on 9 August 2010 with one count of Assault female and commit act of indecency <16 years pursuant to section 76 of the Crimes Act 1900 (Complaint Four).
The Tribunal has not proceeded to make a finding with respect to Complaint Six (not a suitable person within the meaning of s 144 of the National Law) as the proceedings are being held in 'two stages'. 'Stage One' proceeded on the days listed on the coversheet hereof and involved the taking of evidence and submissions. The Tribunal has proceeded to make findings with respect to the Particulars of Complaints One to Six inclusive and Complaints One to Five as set out herein. 'Stage Two' will involve providing the parties with an opportunity to place further evidence and submissions before the Tribunal in light of the findings made which will allow the Tribunal to proceed to make a finding with respect to Complaint Six and make Orders.
[2]
Introduction
The Respondent has practised as an osteopath and chiropractor for many years. He was granted Registration as an osteopath and chiropractor when it was first introduced in New South Wales (1980) by virtue of the 'grand parenting' (often referred to as 'grandfathering') provisions of the relevant legislation. The Respondent's Registration lapsed on 3 January 2013 as a result of the Respondent failing to renew and his name was administratively removed from the Register. The Respondent's formal qualifications are recorded as a Diploma in Chiropractic awarded in 1965 and a Diploma of Osteopathy awarded in 1968. Noting the provisions of s139B the Tribunal notes that the Respondent's qualifications, although obtained many decades ago, are sufficient to support registration. Further, although the Tribunal has no direct evidence regarding continuing education the Respondent may have engaged in, the requirement for it has long been required for annual registration. The Tribunal therefore judges the conduct of the Respondent at the level of an appropriately trained and experienced practitioner for the purpose of s139B. The Tribunal notes that statements made by the Respondent in the material he provided indicate he considers himself to be 'peerless' in that he is the most experienced and skilled practitioner in NSW.
Whilst holding registration the Respondent's Registration has been subject to a number of sets of conditions. The relevant conditions are recorded in Complaint Two set out below.
Evidence before the Tribunal records a Board of Inquiry held in 1991 dealing with complaints made by two women. Records also indicate that the Respondent declared on his annual renewal of registration form for the period 1998/1999 that he had been the subject of a complaint of lack of good character, professional misconduct or other matter. These early complaints have not been taken into consideration by the Tribunal for the purposes of findings in this matter. The Tribunal confines all of its findings to the matters set out in the Complaint as particularised on 31 July 2013 by the Director of Proceedings of the HCCC. It does however indicate to the Tribunal that the Respondent has had some experience in dealing with conduct complaints. The Tribunal also notes the Respondent has been involved in two criminal proceedings involving offences of a sexual nature towards female patients. Once again, this is not a matter that has been material to the findings made by the Tribunal; rather it is indicative of the Respondent's familiarity with legal proceedings.
The conduct found proven by the Tribunal includes misconduct by the Respondent of a sexual nature towards female patients over a significant period commencing in the 1970's. Whilst the Tribunal has taken care not to draw inappropriate inferences from the similarity of the Respondent's conduct towards the female patients that have made complaints, the overwhelming and compelling conclusion is that the conduct found proven is remarkably consistent.
Whilst the imbalance of power that exists between a patient and a treating practitioner creates a vulnerability in the patient, the female patients involved in this matter each had additional factors that escalated this vulnerability - for example as a result of being of tender years or suffering significant pain. The evidence before the Tribunal recorded that the Respondent engaged in what is generally described in a wider setting as 'grooming' behaviour or in writings regarding professional settings as 'slippery slope' behaviour where boundary violations escalated over time. These violations included inappropriate comments and touching. A common complaint made by patients was the inappropriate removal of underpants and touching in the genital region. The pattern of conduct is evident from a reading of the Particulars of Complaint set out below.
Another general observation the Tribunal makes is the consistency of the description of the pattern/sequence of consultations with the Respondent. Each patient (including Patient A who was only a child at the time of the consultations in the 1970's) described the usual pattern for each consultation to be of entering one of the treatment rooms and being left to remove their outer clothing (including bra where applicable) and putting on a gown before laying down on the treatment table. At some time shortly after a person (masseur), usually not the Respondent, would enter the room and undertake some preliminary massage. There may or may not have been some overlap of the presence of the masseur with the Respondent. On some occasions there was some conversation between the Respondent and the masseur. The masseur then usually left the room promptly. This pattern is consistent with the evidence that each of the Respondent's practices had at least two treatment rooms and would move from room to room providing treatment after the initial 'warm-up' massage provided by the masseur. Not only is this pattern consistent with the evidence of each witness, it is also consistent with the video footage of the execution of the police search warrant on the Respondent's Wagga Wagga Practice on 16 June 2013.
The evidence before the Tribunal records that with some patients the Respondent then engaged in boundary violations such as inappropriate conversation and/or contact with the genital region through the underwear, followed by some form of removal of the underwear, and if covering is offered it is with a small hand towel. This escalates at later consultations to direct touching of the genitalia in various ways and with one patient to the insertion of fingers into the anus.
[3]
Publication Restrictions
The Tribunal makes a non-publication order prohibiting the disclosure of the names (and any information that may tend to identify them) of all patients referred to in the schedule annexed to the Complaint made by the HCCC dated 31 July 2013 except as specifically allowed in writing by the Tribunal. The Tribunal continues an interim non-publication order made pursuant to s64(1)(c) of the Civil and Administrative Tribunal Act 2013 prohibiting publication of any evidence given before the Tribunal save for evidence recounted herein. The Tribunal continues an interim prohibited access order made pursuant to Rule 42(3)(c) of the Civil and Administrative Tribunal Rules 2014 prohibiting non-parties from inspecting or obtaining copies of any public access document held in the Registry relating to this matter unless specifically allowed in writing by the Tribunal.
[4]
The conduct of the proceedings
The Respondent appeared by telephone for each of the Directions Hearings held to prepare this matter for hearing. During these lengthy Directions Hearings the Tribunal gave reasons for declining the Respondent's application to appear at the Inquiry by telephone. These reasons included the large volume of exhibited material and the complexity of the Complaint. Due to the nature of the evidence to be given representation was made to the Tribunal by the HCCC regarding the difficulties presented by the potential for questioning of certain witnesses directly by the Respondent. The Respondent had informed the Tribunal that he was not in a position to retain legal representation due to his current financial liquidity position. At this point the Tribunal notes that the Respondent faced two separate criminal prosecutions in the District Court for criminal charges relating to two of the patients in this Complaint. In order to address the concerns raised by the HCCC on behalf of the witnesses, agreement was reached during the Directions Hearings as to the manner in which the cross-examination of these witnesses would proceed. The Tribunal also made arrangements for a screen to be in situ between the Respondent and certain witnesses. In any event, these measures fell away when the Respondent failed to appear before the Tribunal at the commencement of the Inquiry. The Tribunal telephoned the Respondent when he failed to appear (noting that the Respondent is elderly and had on numerous occasions emphasised to the Tribunal the fragile health suffered by his wife). The Respondent renewed his application to appear by telephone and the Tribunal reaffirmed its position and the matter proceeded ex parte. The Tribunal also notes that when hearing dates had to be cancelled at short notice in September 2014 and relisted in November 2014 that the Respondent was advised in writing (and he responded in writing on 3 November 2014). The Tribunal also notes that the Respondent was served with the comprehensive and extensive written outline of submissions prepared on behalf of the HCCC and no submission in reply was received from the Respondent.
An earlier preliminary matter dealt with by the Tribunal was the application made by the Respondent to stay or dismiss a number of the Particulars and Complaints. In summary this application relied upon issue estoppel, res judicata, and or autrefois acquit. The Respondent relied upon his acquittal in the prior criminal proceedings and argued that any consideration by the Tribunal of matters relating to these two patients would be an abuse of process. The Respondent also argued that he was prejudiced due to destruction of exhibits from earlier criminal proceedings and that the experts retained in the prior criminal proceedings (but not in these proceedings) were prejudiced against him.
The Tribunal's decision to dismiss this application is recorded in Health Care Complaints Commission v Black [2014] NSWCATOD 35.
Whilst the Tribunal did not have the benefit of observing the Respondent during the Inquiry, the Tribunal did have the benefit of viewing a video taken by the NSW Police Service whilst it was executing a search warrant on the Respondent's Wagga Wagga Practice in 2013. Further, the Tribunal had the benefit of hearing evidence from the police officer leading that search. One of the factors the Tribunal considers relevant to its finding that the evidence of the Respondent is to be viewed with extreme caution are the misleading statements made to police as captured on the search warrant footage.
[5]
Relevant law
The National Law clearly articulates the objectives and guiding principles to be applied by a Tribunal in New South Wales conducting an inquiry into a complaint. Section 3A, of particular relevance in the circumstances of this matter, provides as follows:
In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
It is well established law that due to the protective nature of the jurisdiction, the seriousness of the complaints, and the potential seriousness of the outcome for the practitioner that the standard of proof is on the balance of probabilities to the level of satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Such satisfaction cannot be founded on "...inexact proofs, indefinite testimony or indirect references." The HCCC bears the onus of proof.
The Tribunal has had regard to the principle enunciated in Zaidi v HCCC [1997] NSWCA 354; (1998) 44 NSWLR 82. As with this Respondent, (Dr) Zaidi was charged with criminal offences relating to alleged sexual assaults of various patients. Similarly no convictions resulted from any prosecution (Zaidi being acquitted or no-billed). The decision of Mason P (Priestley JA and Powell JA agreeing) comments that 'An acquittal by a jury turns upon failure to establish guilt beyond reasonable doubt, whereas the civil standard applies to proof in professional disciplinary matters'.
Although there were a number of appeal points dealt with in Zaidi, it was the following point which resulted in the Court of Appeal establishing principles relevant to the current matter:
Was there error of law on the face of the record or denial of procedural fairness, amenable to an order in the nature of certiorari, because the 1990 Tribunal wrongly took into account similar fact evidence given in respect of one patient as regards the complaint concerning another?
The Court of Appeal declined to follow precedents put forward by the Appellant from the United States and New Zealand to the effect that a tribunal dealing with complaints from several patients with similar feature 'is obliged to consider the evidence relating to each complaint separately, entirely uninfluenced by the evidence regarding other complaints except where, by analogy with the criminal law, the similar fact evidence has sufficient probative force to be taken into account'.
After noting the different standards of proof, the differences in the constitution of the relevant tribunals and the differences with respect of whether the rules of evidence applied in each of these jurisdictions the Court of Appeal commented 'Propensity or similar fact evidence is not excluded in criminal trials because it lacks probative value. Rather this is done for policy reasons because evidence of behaviour indicating a criminal disposition on other occasions is "excluded because a jury is likely to regard it as proving too much and is for that reason likely to proceed upon prejudice rather than proof"'.
The Court of Appeal further comments that a prudent presiding judicial officer would provide direction to the other members that they should exercise particular care considering the evidence on individual particulars separately 'unless satisfied that there was no collaboration between the several patients and that the peculiar features of one incident (if proved) lends compelling weight to the proof of another'.
Whilst noting that the Queensland provisions required proceedings of this nature to observe the rules of evidence and that the tribunal did not have the power to inform itself 'as it saw fit' (a power enjoyed by NSW tribunals exercising protective jurisdiction with respect to the health professions) the Court of Appeal adopted the following comments made in Purnell v Medical Board of Queensland, (Supreme Court of Queensland, Court of Appeal, unreported, 15 August 1997):
Ultimately the question is whether the inference that the act complained of was committed upon the complainant can be properly drawn having due regard to the standard of proof applicable to the kind of case before the court or tribunal. Where credibility of a complainant's evidence is in issue the fact that complaints of similar acts have been made by other persons can provide strong support of the complainant's evidence in the absence of any factors diminishing the strength of the inference logically available from the fact that they were made independently of and unaffected by the complainant's own account.
At this point the Tribunal notes that questions were posed to Patient A, Patient B, Patient C, and Patient D regarding whether they knew the identity or had any communication with each other. Not only did they indicate that they did not know each other, there was nothing to suggest that the patients had at any time met, spoken to each other or had any other contact.
[6]
Expert evidence
The HCCC retained two expert witnesses for the purpose of these proceedings. Dr Caroline Stone and Dr Andrew Paul. The Tribunal refers to their evidence with respect to the relevant particulars dealt with seriatim below. There are some matters of general applicability that the Tribunal now notes.
Dr Stone was asked to express a view about the Respondent's claim that he was not providing osteopathic or chiropractic treatment to the patients making complaints (and therefore his conduct was outside the jurisdiction of the National Law) - rather he was providing naprapathic treatment. Dr Stone expressed the view that unless the Respondent informed patients he was providing them with naprapathic treatment rather than osteopathic or chiropractic treatment then his conduct is significantly below the standard expected of a registered health practitioner and attracts her strong criticism.
By way of context, the Tribunal understands that naprapathy is a form of treatment that originated in the United States early in the 20th century. There are some courses based in the United States and some Scandinavian countries. The Tribunal further understands that it is not a form of treatment that attracts any form of benefit under private health insurance in Australia. There is no evidence before the Tribunal indicating that naprapathy is recognised in Australia as a treatment modality. As an aside, the Tribunal notes the evidence before it (exhibit 113) records the Respondent is the Registered Proprietor of the following Business Names: 'NAPRAPATHY THE EFFECTIVE NATURAL ALTERNATIVE ' and 'AUSTRALIAN COLLEGE OF APPLIED AND ADVANCED NAPRAPATHY'.
Whatever the standing of naprapathy, the Tribunal does have evidence that the relevant receipts provided to patients by the Respondent clearly indicated that osteopathic treatment had been provided (many receipts came into evidence having been obtained from various private health insurance funds for a significant number of patients covered by the Complaint). The Tribunal rejects the assertion made by the Respondent that the patients had altered these receipts for the purpose of obtaining a benefit or a benefit at a higher rate from their respective health insurers. The likelihood of a large number of patients engaging in the same fraudulent behaviour is very low. Examination of the receipts in evidence and the evidence from numerous patients allows the Tribunal to find that both the treatment modality and the practice location were ticked on the receipt when it was provided to them at the end of the treatment.
Another matter of general importance is the view expressed by both of the peer reviewers that a specific written informed consent is required for any internal procedure. In their view no reliance can be placed on a document signed at an earlier time, and specifically it is not relevant to later unknown procedures.
Both expert peer reviewers gave evidence that a practitioner should be aware of a patient's body language. Both expressed the view that consent for treatment could be withdrawn by a patient without any verbal communication. They expressed the view that the body language does not need to be as obvious as holding on to the 'edge of the table' or 'convulsing'. Dr Stone gave examples of making observations of the tension in the patient's hands and also stated that good practise would dictate that constant feedback should be sought from a patient if a painful and/or invasive procedure was being undertaken.
The Tribunal heard evidence from Patients A, B, C and D describing how they felt when the Respondent was touching them in their genital region. Each of these witnesses described very similar emotions of being scared/frightened and that they did not say anything to the Respondent as they felt 'paralysed' or 'froze'. Dr Stone gave evidence that this was the most common reaction made by women when such a boundary violation occurred and she had never heard of a case where the woman verbalised the withdrawal of consent.
The Tribunal also notes and agrees with the evidence of Dr Stone that any suggestion that it is unavoidable for a practitioner with large hands to 'inadvertently' touch the genital area of patients is 'rubbish' (T375-376). Dr Paul expressed a similar view (T394).
[7]
Complaint
The original Complaint made by the Director of Proceedings, HCCC was dated 31 July 2013. This Complaint was amended, with the consent of the Tribunal, so that dates accurately reflected the evidence ultimately before the Tribunal. The Tribunal notes that these dates were within the knowledge of the Respondent. It is the Complaint as amended that is considered by the Tribunal. The amendments did not change the substance of the conduct subject of complaint.
Rather than set out the lengthy Complaint (over 27 pages in length) at this point in the document, the Tribunal has placed the relevant Complaint/Particular before its consideration for ease of reference.
[8]
Evidence, Discussion and findings re Particulars/Complaints
[9]
The Complaint
The HCCC made Complaint by notice dated 31 July 2013 having consulted with the Osteopathy Council of NSW in accordance with s39(2) and 90B(3) of the Health Care Complaints Act 1993 and s145A of the National Law with six heads of complaint (Complaints One to Six).
[10]
Complaint One
The Respondent is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has:
1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of osteopathy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
2. engaged in improper or unethical conduct in relation to the practice or purported practice of osteopathy.
[11]
Background of Complaint One
The HCCC provided the following background:
The practitioner has practised as an Osteopath since the 1960s.
The practitioner was registered as an Osteopath under the following instruments:
from 1979 to 1991 under the Chiropractic Act 1978;
from 1991 to August 2002 under the Chiropractors and Osteopaths Act 1991;
from 1 August 2002 to 30 June 2010 under the Osteopaths Act 2001; and
from 1 July 2010 to 31 December 2012 under the Health Practitioner Regulation National Law (NSW).
The practitioner was subject to the following Codes of Professional Conduct:
from 1992 to 2001 - Code of Professional Conduct issued by the Chiropractors and Osteopaths Registration Board;
from 2001 to 2005 - Osteopathy Code of Professional Conduct adopted by the Osteopaths Registration Board of NSW;
from 2005 to 2010 - Osteopaths Code of Professional Conduct issued by the Osteopaths Registration Board of NSW; and
from 2010 onwards - Code of Conduct for Registered Health Practitioners issued by the Osteopathy Board of Australia.
One preliminary matter relevant to the Particulars of Complaint for each of the complainant patients referred to in this Complaint relates to consent forms. The Tribunal notes various witnesses that had worked in the Respondent's practice gave evidence regarding the issue of consent forms and consent more broadly.
Ms Thomson worked for the Respondent between 2002 and 2008. She gave evidence that she had seen a form called a 'patient clinical record' in the practice but had not seen patients filling in any other forms (T164.45-165.2) including a form headed 'Internal Manipulation' (T177.1-18). Whilst Ms Thomson was present when the Respondent discussed internal examination with another patient she had not heard any discussion (including any referral to a textbook) with Patient D. The Tribunal notes that the Respondent alleged he had a separate consent form for internal examinations as well as a pamphlet. In addition he would use a textbook to assist him to explain the procedure to the patient.
Ms Thomson also saw the Respondent writing notes in the patient clinical record forms. The Respondent usually did this after the patient left the practice. She never observed the Respondent scanning these documents (and then destroying them T177) nor did she see the Respondent taking out these forms every time the patient attended the practice (T165).
Ms Howard gave evidence that patients were asked to sign a form when they first attended but to her knowledge patients were not asked to sign further forms. Initially Ms Howard stated that all forms signed by patients went into the filing cabinet in the practice. Later in her evidence she stated that it may have been possible that the Respondent or his wife scanned these documents into the computer, although she never saw this happening (T226.39-46). Further she had not seen the patients being given the clinical record or consent form (T227.1-5). The Tribunal notes that the Respondent alleged that after a patient completed such forms they were scanned into the computer. The Respondent claimed that the original consent form was then either given back to the patient or destroyed.
Ms Howard also gave evidence that she was not aware of there being a 'shredder' in the practice. Ms Howard stated that she did observe the Respondent taking these forms out of the filing cabinet when the particular patient attended and then filling in information on the form after the patient's treatment (T215). Ms Howard did not observe the Respondent using the computer to keep patient records (T216).
The Tribunal notes the Respondent's claim that Ms Howard cleared out the filing cabinet of all patient notes that were more than ten years old or non-current and that these were then stored in the storage room attached to the practice. The Respondent stated that over time these documents were shredded and taken to the local tip - save the one box that was located by the police when executing a search warrant on the premises on 16 June 2013.
Ms Howard did recall there being a pamphlet in the practice regarding internal manipulations. This pamphlet did not include a consent form (T218.38-219.16).
Another matter of general relevance was the evidence of Ms Howard, Ms Thomson and Ms Hancock (Ms Hancock commenced working for the Respondent in mid-2010) that they had never asked a patient to remove their underpants nor had they heard the Respondent asking a patient to do so (T217, 166, 258).
[12]
Complaint One - Patient A - Background in relation to Patient A (Particular 1)
The HCCC provided the following background:
In the early 1970s, the practitioner owned and operated a clinic at 4/112 Condamine Street, Balgowlah in New South Wales.
At all relevant times the practitioner was practising as an Osteopath.
From late 1970, Patient A consulted with the practitioner for osteopathic treatment at his clinic in Balgowlah. She was approximately 12 years of age at the time.
During treatment sessions, the practitioner would treat Patient A without a chaperone or other adult present in the treatment room. Patient A's mother would remain in the waiting room.
During treatment sessions the practitioner would require Patient A to:
remove all her clothing apart from her bloomers, and wear a loose fitting garment, back to front.
lie face down on the massage table.
According to Patient A, her last treatment session with the practitioner took place in mid 1971 at the clinic in Balgowlah ("last treatment session").
[13]
Complaint One - Particular 1 - Patient A
1. While Patient A was lying on the massage table during her last treatment session at the practitioner's clinic in Balgowlah, the practitioner:
1. pulled Patient A's underwear aside and exposed her genitals:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. inserted his fingers into Patient A's vagina and continued to
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. removed his fingers from Patient A's vagina after a period of around 2 minutes.
Particular 1 relates to the alleged conduct of the Respondent with Patient A during her last treatment session. Patient A gave evidence that she (and other members of her family) had received treatment from the Respondent. At the relevant time Patient A was approximately 12 years of age. Patient A described herself as 'quite tall for her age' and this was evident from the photos she produced to the Tribunal. Patient A suffered some issues with her knees and she often accompanied her brother who suffered from more significant musculo-skeletal issues. It is not in dispute that Patient A's mother drove her to the consultations with the Respondent. Patient A's evidence is that her mother was not always in the actual treatment room.
The HCCC relies upon the evidence given by Patient A in her statement to police dated 6 May 2010, to the evidence she gave before the District Court in August 2011 and to the evidence before the Tribunal on 17 June 2014.
There is no dispute that Patient A was wearing underpants in a style known as a 'bloomer' at the times she consulted the Respondent. There is also no dispute that the other garment she wore was a loose fitting gown.
The Tribunal notes that Patient A's evidence before the Tribunal clarified that the Respondent's fingers were inserted into the lip of her vagina and only remained there for a short time (Particular 1(c)). At T307.4-10 Patient A gave evidence regarding this incident as follows:
Q. How long did that go on for?
A. It's hard to say because it felt like a long, long time but I would say it was a short time.
Q. Did you say anything to him at the time?
A. No. I was too shocked and scared to say anything and I was frozen so I couldn't say anything.
Whilst the Particular, as pleaded, records the time to be around two minutes the Tribunal is not troubled by either the over estimation of time in the Particular or the clarification provided by Patient A. Not only are such over estimations of time common, when placed in the context of the emotional reaction of Patient A at the time of this incident it is an understandable over-estimation. This evidence does not in the view of the Tribunal diminish the credibility of Patient A's evidence.
The nature of the massage/movement of the Respondent's fingers should be recorded (the Tribunal noting the similarity to the movement of the Respondent's fist on the vagina as described by Patient B). Patient A gave the following evidence (T305.37 - 306.33):
Q. Were your legs straight or were they bent?
A. They were straight. Lying on your stomach with your legs fairly straight and your ankles, when your feet are turned over, when you're lying on your stomach, your ankles go to the sides at the bottom. So then he massaged back up to the top of my inner thigh again and this time instead of stopping at my underpants, he went under my underpants and his fingers, the top of his fingers went into my vagina and he moved the outer lip of my vagina to the side.
Q. Can you say what hand he was using to do that?
A. The right hand.
Q. Did he move his fingers backwards and forwards or what did he‑‑
A. In a massaging motion. In a massaging sort of motion, like, it was you know, like, he was continuing on so it was sort of like that, like a massaging thing.
Q. So the motion that you're making is your moving your fingers around in a‑‑
A. Like that.
Q. ‑‑sort of circular or oval sort of shape.
A. Yes. It was just at the entrance to my vagina not into the inner canal.
Q. What was his other hand doing at that time, if you can remember?
A. I don't remember exactly but I only remember that hand at that point. And then when I realised what he was doing, I was frozen in fear. I couldn't move and I didn't know what to do so I tried to stop it by squeezing my bottom cheeks together. I tried to stop his hand from going in there.
Q. Did that work?
A. No.
Q. When he had his fingers inside the outer lips of your vagina, where was his thumb?
A. I don't remember, I just remember his three fingers.
Q. Are you sure it was three fingers?
A. Yes, it wasn't one finger because it was a motion that sort of went like that so it was more like that. And then he ‑ but he also used pressure to pull the outer lips to one side as well.
Q. How was he applying that pressure? Was it with those three fingers or was it‑‑
A. Yes, with those three fingers in that massaging moment, yeah, in the massaging movement.
During the criminal proceedings the degree of penetration of the vagina was taken to have been the insertion of three fingers. Both experts giving evidence in that matter agreed that this would have caused some form of physical trauma. The clarification of the nature of the action of the Respondent addresses this evidence. The Tribunal notes the evidence of Dr Stone (T362.33-363.1) that the type of movement described by Patient A would not cause the same tissue distress (i.e. bleeding, bruising or destruction of the hymen) as would the repeated movement of three fingers in the vaginal canal.
The Tribunal also notes not only the Respondent's denial of the entirety of the conduct towards Patient A but the Respondent's evidence that his practice was not in the location reported by Patient A. There is evidence before the Tribunal that the Respondent's practice in Balgowlah relocated somewhere around 1970. From the extensive records placed before the Tribunal by the Respondent (including copies from documents such as the Pink Pages obtained from the National Library) the relocation amounted to a move around the corner of Condamine Street and Sydney Road Balgowlah, only a matter of metres.
The Respondent also asserted that as Patient A was being treated for 'knock-knees' he would only have been massaging the outer thigh area and therefore would not have contacted the vaginal region. Patient A gave evidence that both sides of her thighs were massaged by the Respondent. Dr Paul gave evidence that the treatment for knock knees was for both the adductor and abductor muscles to be massaged (i.e. both the inner and outer thigh) (T389.43-392.10).
The Tribunal finds Patient A to be a witness of truth. She did her best to recall events that occurred not only when she was still a child but also a number of decades ago. Patient A's evidence was substantially consistent, with appropriate concessions being made.
As set out above the Tribunal must be reasonably satisfied that the conduct occurred before finding a Particular established. The Respondent's position in the evidence before the Tribunal is denial of the conduct (the same position he took in the criminal proceedings). A credibility issue obviously arises. The challenge involved in resolving credibility issues when there has been a significant period of time pass between the events and the time evidence is given is well understood. The age of Patient A at the time of the events is also a factor the Tribunal has not ignored. The Tribunal has been assisted in the resolution of this credibility issue by the principles set down in superior court decisions such as Zaidi (ibid). The discussion of relevant law set out above includes a summary of the principles flowing from Zaidi.
All of the conduct complained of by Patient A is of an identical nature to that described by a number of other patients. As the balance of this decision document records that the Tribunal has found these patients to also be witnesses of truth and prefer their evidence to that of the Respondent.
The Tribunal accepts the submissions made by the HCCC with respect to Particular 1 and considering all of the evidence, the Tribunal is reasonably satisfied that the conduct set out in Particular 1 is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to each of Particular 1(a), Particular 1(b) and Particular 1(c) of Complaint One. Further the Tribunal is of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal therefore makes a finding of professional misconduct. The Tribunal would be of this view even if it was considering each of these Particulars (1(a), 1(b) and 1(c)) individually.
[14]
Complaint One - Patient B - Background in relation to Patient B (Particulars 2 - 13 inclusive)
At all relevant times the practitioner was practising as an Osteopath.
From November 1994 to May 1995, Patient B consulted with the practitioner for osteopathic treatment at his clinic at 4/112 Condamine Street, Balgowlah in New South Wales.
During treatment sessions the practitioner would require Patient B to:
remove all her clothing apart from her underwear and bike shorts, and to wear a gown that was open at the back
lie on the massage table face down.
At no time did the practitioner arrange for a chaperone to be present during his treatment of Patient B.
Patient B was receiving treatment from the Respondent as a result of injuries she suffered in a motor vehicle accident in October 1994 when she was about 27 years of age. Patient B initially sought treatment for these injuries from another health practitioner and about six weeks later she sought treatment from the Respondent (upon referral from a male friend) for the significant levels of pain she still experienced. Patient B described the pain as impacting upon her ability to attend to normal activities including work and she was 'desperate' to find treatment that gave her relief from this pain. Patient B stated that she did obtain some benefit from the Respondent's treatment. Patient B adopted both the evidence she gave before the District Court and the statement (dated 8 June 1995 - exhibit 26) she made to police (which she adopted before the Tribunal - T 268.14).
Patient B gave evidence that as she was accustomed to wearing G-string type of underpants she would take an old pair of shorts (which she described as 'bike pants') with her to consultations. When the Respondent asked her to remove all her clothing, except her underpants, she would remove her clothing, and then put on her bike pants over her G-string and put on the gown provided. The Tribunal notes this accords with the description of the attire of Patient B during consultations provided by the Respondent in correspondence with the HCCC and Tribunal.
Patient B also gave evidence in person before the Tribunal on 16 June 2014. As noted above the Tribunal also had the benefit of earlier statements made/evidence given by Patient B. The Tribunal found Patient B to be a witness of truth.
The Respondent had provided the Tribunal with material suggesting that Patient B should not be believed on the basis of an alleged history of illegal drug use. The Tribunal is not of the view that the evidence supports this allegation made by the Respondent. The Tribunal accepts the evidence given by Patient B that she occasionally used marijuana on a social basis (T279) and is not of the view that this renders her evidence unreliable.
The Tribunal also notes the Respondent's assertion as to the unlikelihood that the conduct as described by Patient B occurred on the basis of the frequent presence of students/interns. The Tribunal accepts that the Respondent would have had a number of students/interns present at his practice from time to time. Indeed, the Tribunal had evidence before it that from time to time the Respondent operated his own training courses (including recently providing Ms Thomson with a 'Naprapathic Massage Therapy' qualification and providing some type of mentoring to Ms Ashlee Hancock). The evidence is not sufficient to allow the Tribunal to make a finding that the Respondent was constantly observed whilst treating patients and therefore did not have any opportunity to conduct himself in the manner set out in the complaints.
The Tribunal notes the evidence of Patient B regarding her reaction to the conduct of the Respondent. At T 266.36-38 Patient B stated 'It was embarrassing and I was shocked and bit speechless, bit stunned'.
Patient B gave evidence that at no time did the Respondent have prior discussions with her regarding any of the conduct set out in Particulars 2, 3, 4, 5, 6, 7 & 11. Patient B also gave evidence that at no time did the Respondent obtain her consent for the conduct set out in Particulars 2, 3, 4, 5, 6, 7 & 11. The Tribunal is of the view that there was no clinical reason for the conduct set out in Particulars 2, 3, 4, 5, 6, 7 & 11. The Tribunal notes that the evidence of the experts (Dr Stone and Dr Paul) is consistent with this view.
[15]
Complaint One - Particulars 2(a) & (b) - Patient B
1. (2) In the week commencing 11 December 1994, during the course of providing osteopathic treatment to Patient B, the practitioner:
1. pulled down Patient B's bike shorts and underwear to below her buttocks, separated the cheeks of her buttocks and exposed her anus:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. placed his hand on Patient B's vagina, over her clothing, for approximately 5 seconds:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
The Tribunal accepts the evidence given by Patient B with respect to Particular 2(a) (see in particular T266.24-34). The Tribunal notes the evidence of Patient B regarding the reason proffered by the Respondent for the conduct set out in Particular 2(b) (see T265.22-33):
Q. After he was massaging your stomach, what happened?
A. I remember him telling me that I ‑ he said I had I think a compacted bowel and a dropped uterus and that was pressing on my bladder, something like that.
Q. What did he say should be done about those things?
A. He asked me to do some pelvic floor exercises, I ‑ know the name at the time, I don't think he used those words, but he put his hand on my vagina and asked me to pull my lower abdominal muscles in and up.
Q. When you say he put his hand on your vagina, are you talking about over your clothes?
A. Over the bike shorts, yes.
The Tribunal notes the material put before the Tribunal by the Respondent indicated he was utilising a form of treatment to reposition Patient B's uterus. The Tribunal is of the view that there was nothing in the clinical presentation of Patient B that would give rise to concerns regarding the position of her uterus. Further, none of the conduct described by Patient B would represent treatment for re-positioning a uterus.
The Tribunal accepts Dr Paul's moderate criticism of the conduct set out in Particular 2(a) (T396.40) and the severe criticism of the conduct set out in Particular 2(b) (T397.9).
The Tribunal is reasonably satisfied that the conduct set out in Particular 2(a) and 2(b) is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to each of Particular 2(a) and Particular 2(b) Complaint One. Further the Tribunal is of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal therefore makes a finding of professional misconduct with respect to Complaint One - Particular 2.
[16]
Complaint One - Particular 3(a) - Patient B
3. On or about 5 January 1995, during the course of providing osteopathic treatment to Patient B, the practitioner:
1. removed Patient B's bike shorts and underwear from her right leg:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
Patient B gave evidence that on 5 January 1995 she was upset and distressed as she had just been involved in another motor vehicle accident. The conduct of the Respondent on this occasion represents an escalation of the boundary violation (removal of one of Patient B's legs from her bike pants and underwear). When Patient B informed the Respondent that not only was he causing her pain with the 'treatment' but it was also being applied to an area in which she was not suffering any pain the Respondent told Patient B that he had to 'treat the front as well as the back' (T269.44). The Tribunal accepts the evidence given by Patient B regarding Complaint 3 (see particularly at T268.36-269.20 &, T269.30-44).
The Tribunal accepts Dr Paul's moderate criticism of the conduct set out in Particular 3(a). The Tribunal is reasonably satisfied that the conduct set out in Particular 3(a) is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to each of Particular 3(a) of Complaint One.
[17]
Complaint One - Particular 4(a) - Patient B
4. On or about 8 January 1995, during the course of providing osteopathic treatment to Patient B, the practitioner:
1. removed Patient B's underwear and touched the outside of the right lip of her vagina with his fingers approximately three times:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
In her oral evidence Patient B provided further details of the occasions on which the Respondent touched the outside of the right lip of her vagina (which she clarified as the right lip of her vulva - T270.27-35). These occasions all post-date the incident on 5 January 1995 and represent a further escalation in the conduct of the Respondent.
The Tribunal notes Dr Paul's moderate criticism of the conduct if the Respondent was providing treatment of the round ligament otherwise he expressed strong criticism (T39711-39). The Tribunal is not persuaded by anything in the evidence regarding Patient B's clinical presentation that supports treatment being provided to the round ligament and is strongly critical of the Respondent's conduct.
The Tribunal is reasonably satisfied that the conduct set out in Particular 3(a) is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to Particular 3(a) of Complaint One. Further the Tribunal is of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal therefore makes a finding of professional misconduct.
[18]
Complaint One - Particular 5(a) & (b) - Patient B
5. On or about 17 January 1995, during the course of providing osteopathic treatment to Patient B, the practitioner:
1. removed Patient B's underwear and touched the right lip of her vagina with the fingers of his right hand:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. placed his fist against Patient B's vagina in a sweeping motion:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
Patient B provided details of the conduct of the Respondent on 17 January 1995 at paragraphs 22 and 23 of her statement dated 8 June 1995 (exhibit 26) and in her oral evidence before the Tribunal as recorded at T276.41-277.9.
The Tribunal notes Patient B gave evidence about the response made by the Respondent when she informed him he was causing her pain (T277.11-17) as follows:
Q. Did you say anything about that hurting?
A. Yes, I did say that it hurt ‑ whenever I said something hurt, because most of the treatments hurt, especially the kind of sexually kind of confronting ones, he would say, now, now [Patient B], do you want to get better.
Q. How did that make you feel?
A. Well, meant that I had to shut up and tolerate it. If I wanted to get better.
The Tribunal accepts Dr Paul's strong criticism of the conduct.
The Tribunal is reasonably satisfied that the conduct set out in Particular 5 is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to each of Particulars 5(a) & (b) of Complaint One. Further the Tribunal is of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal therefore makes a finding of professional misconduct.
[19]
Complaint One - Particulars 6(a), (b) & (c) - Patient B
6. During consultations with Patient B in 1995, in the course of providing osteopathic treatment to Patient B, the practitioner:
1. extended one finger of his right hand and touched the outside lips of Patient B's vagina around the area of her clitoris on approximately four occasions:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. touched both lips of Patient B's vagina with the knuckles on his right hand whilst massaging Patient B's right inner thigh on numerous occasions:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. on approximately five occasions, performed the action described at 6(b) above with such force that he separated the lips of Patient B's vagina.
Patient B provided details of the conduct of the Respondent at paragraphs 24 and 25 of her statement dated 8 June 1995 (exhibit 26).
The Tribunal accepts Dr Paul's strong criticism of the conduct set out in Particular 6 (T398).
The Tribunal is reasonably satisfied that the conduct set out in Particular 6 is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to each of Particular 6(a), Particular 6(b) and Particular 6(c) of Complaint One. Further the Tribunal is of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal therefore makes a finding of professional misconduct with respect to each Particular.
[20]
Complaint One - Particular 7(a) - Patient B
7. On or about 21 March 1995, during the course of providing osteopathic treatment to Patient B, the practitioner responded to Patient B's complaint of a lump on the right side of her sternum above the breast area, by:
1. immediately commencing treatment of this area by massaging both of Patient B's breasts, not including the patient's nipples:
1. without conducting an examination or making any attempt to diagnose the breast lump;
2. without prior discussion;
3. without consent being obtained;
4. without any clinical reason to do so.
Patient B showed the Tribunal the location of a lump on her chest which she said is the same as when she brought it to the Respondent's attention. The Tribunal notes the lump is well away from any breast tissue (both from a medial and superior perspective) and more in line with the sterno-costal junction.
Patient B provided details of the Respondent's conduct at paragraph 26 of her statement (exhibit 26). Patient B's oral evidence was consistent with this account.
The Tribunal notes the progressive nature of the boundary violations of the Respondent represented by this conduct.
Dr Stone gave evidence to the effect that if a lump was located under breast tissue then touching the breast may be clinically indicated. If this was the case then the procedure should be explained in detail to the patient and informed consent gained. Dr Paul gave evidence that the massaging of breasts without consent, prior discussion or clinical reason would merit strong criticism. The Tribunal accepts the strong criticism expressed by the peer reviewers.
Even if the lump had been located within breast tissue and some sort of lymphatic drainage was required there is no explanation for the Respondent engaging in the massage of both breasts.
The Tribunal is reasonably satisfied that the conduct set out in Particular 7(a) is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to Particular 7(a) of Complaint One. Further the Tribunal is of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal therefore makes a finding of professional misconduct.
[21]
Complaint One - Complaint 8 - Patient B
8. The practitioner repeated the conduct described at 7(a) above during four subsequent treatment sessions with Patient B.
Patient B gave evidence regarding the further occasions on which the Respondent massaged both of her breasts during consultations at paragraph 26 of her statement (exhibit 26) and in her oral evidence before the Tribunal at T273.30-34. The Tribunal accepts the evidence of Patient B.
Dr Stone gave evidence that the routine massage of a non-diagnosed breast lump is contra-indicated. There is nothing in the evidence before the Tribunal that suggests there was an appropriate clinical examination or diagnostic attempt made by the Respondent. As noted above the Tribunal had the benefit of seeing the location of the lump. It is the view of the Tribunal that there was no rationale for touching the breast tissue. The Tribunal accepts Dr Stone's strong criticism of the conduct set out in Particular 8.
The Tribunal is reasonably satisfied that the conduct set out in Particular 8 is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to Particular 8 of Complaint One. Further the Tribunal is of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal therefore makes a finding of professional misconduct.
[22]
Complaint One - Particular 9(a) - Patient B
9. On and from the fifth treatment session following 21 March 1995, the practitioner extended his treatment to include:
1. massaging of both Patient B's breasts and nipples:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
Patient B gave evidence regarding the massage of her breasts by the Respondent extending to include touching of her nipples at paragraphs 26 and 27 of her statement (exhibit 26) and in her oral evidence at T273.11-14. The Tribunal notes that whilst Patient B states she was embarrassed by this conduct she found it to be less intrusive than the touching of her vaginal area.
Once again the Tribunal notes this as an incremental escalation in the boundary violations committed by the Respondent.
In the circumstances where the Tribunal is of the view that there is no clinical reason for the Respondent to be touching Patient B's breast, any contact with her nipples is significantly below the standard expected and attracts strong criticism.
The Tribunal is reasonably satisfied that the conduct set out in Particular 9(a) is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to Particular 9(a) of Complaint One. Further the Tribunal is of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal therefore makes a finding of professional misconduct.
[23]
Complaint One - Particular 10 - Patient B
10. The practitioner's advice to Patient B on 13 April 1995 that she should seek a referral to have an x-ray of the breast lump described at paragraph 7 above was delayed and provided outside of a standard therapeutic encounter.
Patient B gave evidence that the Respondent did not give her any indication as to what he thought may be the nature of the lump on the bone near her sternum (T280.27-29). The Tribunal notes that Patient B attended a significant number of consultations between the time she first brought the lump to the Respondent's attention (on or about 21 March 1995) and the time the Respondent offered to provide her with a referral for an x-ray (13 April 1995). The Respondent did not discuss referral for an x-ray (or consultation with a medical practitioner) during any of the intervening consultations. It is nearly too obvious for the Tribunal to observe that delaying appropriate diagnosis puts patients at risk.
Patient B gave evidence that the Respondent rang her whilst she was at work on 13 April 1995 and offered to provide her with a referral for an x-ray of the lump if she came in to his practice that afternoon. Patient B stated that she thought it was unusual for the Respondent to telephone her. The Tribunal notes that this telephone call came after the consultation of 10 April 1995. Details of what occurred during this consultation are set out in Particular 11. Patient B stated that she had been thinking she would not consult the Respondent again as the treatment session on 10 April 1995 had been so distressing.
The Tribunal also notes that the telephone call to Patient B also followed a social visit to Patient B's home by a masseur (Mr JM) who worked for the Respondent to Patient B's home. Patient B gave evidence that the purpose of the dinner invitation was to discuss Mr JM's recent overseas holiday as Patient B was considering travelling to the same destination. Patient B gave evidence that after dinner Mr JM asked to have sexual intercourse with her and she declined resulting in Mr JM leaving her residence.
Patient B gave evidence that Mr JM had called her following this dinner and indicated that both he and the Respondent were concerned about her.
The Tribunal accepts Dr Stone's view that the delay in providing advice to Patient B regarding further investigation of the lump is below the standard expected of a registered health practitioner. The Tribunal notes Dr Paul's evidence that it would be appropriate to recommend Patient B for further investigations (T399.8-19).
The Tribunal is reasonably satisfied that the conduct set out in Particular 10 is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to Particular 10 of Complaint One.
[24]
Complaint One - Particular 11(a) - Patient B
11. On or about 10 April 1995, during the course of providing osteopathic treatment to Patient B, the practitioner:
1. placed a small white towel over Patient B's genital area and rubbed a grey metal vibrating object of approximately 20cm in length back and forth over her vagina:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
Patient B gave evidence that she arrived at her consultation on 10 April 1995 'quite upset' and 'teary'. Not only was her pain becoming worse despite the motor vehicle accident happening some six months earlier she had just had a 'fight' with her mother.
Patient B confirmed the evidence she provided in paragraph 28 of her statement (exhibit 26) in her oral evidence before the Tribunal. Patient B gave evidence that with no prior discussion or consent the Respondent removed her underwear, placed a small towel over her genital area and then 'rubbed' a metal vibrator 'slowly back and forth over [Patient B's] vagina while he just was silent and stared at me, which was something that he had never done before and was out of character' (T274.12-14). Elsewhere in her evidence Patient B stated that the Respondent usually talked throughout the consultation.
The Tribunal accepts the opinion expressed by both Dr Stone and Dr Paul that the conduct set out in Particular 11(a) is significantly below the standard expected and attracts their strong criticism.
The Tribunal is reasonably satisfied that the conduct set out in Particular 11(a) is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to Particular 11(a) of Complaint One. Further the Tribunal is of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal therefore makes a finding of professional misconduct.
[25]
Complaint One - Particular 12 - Patient B
12. On 16 May 1995, while the practitioner's masseuse provided a massage to Patient B, the practitioner entered the treatment room and made an inappropriate comment in the presence of Patient B to the effect of, "I think her hip problem is due to that final squeeze she does whilst sitting on her boyfriend's face." The practitioner then proceeded to laugh in the presence of Patient B.
The Tribunal notes that it is not in dispute that the masseur referred to in this Particular is Mr JM. As detailed above, Mr JM had dinner at Patient B's residence in April 1995 and had asked her to have sexual intercourse with him (a request that Patient B declined). Patient B's evidence regarding the conduct set out in this Particular is found in paragraph 35 of her statement (exhibit 26) and at T276.1-5.
Patient B described in her evidence how she was 'horrified' by this comment and how difficult it was for her to make a response given she was lying face down on the treatment bed at the time.
The Tribunal prefers the view of Dr Stone that this conduct is significantly below the standard expected and it attracts strong criticism. The Tribunal notes that Dr Paul considered the conduct to be below standard and attracted his moderate criticism. The Tribunal explored Dr Paul's opinion that the comment could be seen as a 'very bad joke' or even an 'inappropriate joke' (T400.39-43). The Tribunal is of the view that the comment 'I think her hip problem is due to that final squeeze she does whilst sitting on her boyfriend's face' made by the Respondent to Mr JM in the presence of Patient B cannot be seen as a 'very bad joke' or even an 'inappropriate joke' as suggested by Dr Paul. The Tribunal has taken care to characterise this conduct without regard to the entirety of the conduct of the Respondent. On the face of it, a comment of this nature offends not only professional boundaries but ordinary social sensibilities.
The Tribunal is reasonably satisfied that the conduct set out in Particular 12 is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to Particular 12 of Complaint One. Further the Tribunal is of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal therefore makes a finding of professional misconduct.
[26]
Complaint One - Particular 13 - Patient B
13. On 18 May 1995, in the course of providing osteopathic treatment to Patient B, the practitioner made an inappropriate comment to Patient B, upon her complaining of the intrusive nature of the treatment, by saying words to the effect of, "No it isn't love, only if I slip."
This Particular relates to another comment made by the Respondent to Patient B. Patient B gave evidence about this Particular at paragraph 36 of her statement (exhibit 26). In her oral evidence before the Tribunal Patient B described how she complained to the Respondent that his massaging in her genital region was causing her pain and that she found it to be intrusive. The Respondent replied with words to the effect of 'No it isn't love, only if I slip'. Patient B stated that this comment 'helped' her make the decision that she would not return to the Respondent for any further treatment.
Both Dr Stone and Dr Paul were of the view that the conduct attracted strong criticism.
The Tribunal is reasonably satisfied that the conduct set out in Particular 13 is established. The Tribunal finds the Respondent engaged in conduct that demonstrated that skill and judgment possessed as well as the care exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and is improper and unethical conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to Particular 13 of Complaint One. Further the Tribunal is of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Tribunal therefore makes a finding of professional misconduct.
[27]
Complaint One - Particulars 14 & 15 - Background to Patient C
The HCCC Complaint included the following background:
At all relevant times the practitioner was practising as an Osteopath.
From October to November 2009, Patient C consulted with the practitioner for osteopathic treatment at his clinic at 64 Churchill Avenue, Kooringal Heights, Wagga Wagga in New South Wales.
During treatment sessions the practitioner would require Patient C to:
remove all her clothing apart from her underwear, and wear a gown that was open at the back
lie on the massage table face down.
[28]
Complaint One - Particular 14 - Patient C
14. During the course of providing osteopathic treatment to Patient C in 2009, the practitioner made inappropriate comments in the presence of Patient C when he recounted a conversation with another patient who was becoming a nun. The practitioner stated to Patient C that he had said to the patient concerned, "I suppose a root is out of the question", and proceeded to laugh in Patient C's presence. Patient C replied to the practitioner, "That will get you into trouble if you're not careful." The practitioner replied with words to the effect, "It already has and I got away with it… Who will the judge believe."
Patient C consulted the Respondent at his Wagga Wagga practice. At the relevant time she was approximately 39 years of age. There does not appear to be any dispute that the Respondent was working as an osteopath and chiropractor from rooms on the ground floor of his home. There also is no dispute regarding the general pattern of female patients being required to remove all their clothing apart from their underwear and put on a gown upon entering the treatment room. Patient C gave evidence regarding the usual procedure adopted when entering the treatments room at around T55. Patient C also gave evidence regarding the usual flow of a treatment consultation (see around T58-59). The Tribunal has the benefit of viewing the video of the police executing a search warrant on these premises to gain an understanding of the layout of the practice premises.
Patient C gave oral evidence before the Tribunal on 11 June 2014. She also provided a statement dated 19 October 2010 (exhibit 44). At paragraph 8 of her statement and T58.8.18 Patient C gave of the conversation as set out in this Particular. Patient C's evidence regarding her conversation with the Respondent regarding this matter is illustrative of observations made of the character of the Respondent evident from the material before the Tribunal. Patient C gave the following evidence (T58.8-25):
Q. Did he tell you about a patient who was going to be a nun?
A. Yes.
Q. Can you say what it was that he said to you about that patient?
A. He, in the conversation it came up that he said that he'd had another client that was going to become a nun and that he'd said to the nun, "I suppose a root's out of the question" and I sort of, like, was a little bit shocked that he'd said that, and I said, "You probably shouldn't be saying that, you could get into a fair bit of trouble" and he said, "I already have been". I said, "Oh, okay" and he just said, in casual conversation, I got out of it, I got off it. Who are they going to believe, me or the patient, okay.
Q. How did you feel about that conversation?
A. I was shocked that he'd even informed me that, that he'd said that and that he informed me that whatever he did he was going to get off anyway.
Q. Do you remember the last occasion when you saw Mr Black?
A. Yes.
The Tribunal found Patient C to be a witness of truth. The Tribunal is reasonably satisfied from the evidence of Patient C that the conduct set out in Particular 14 occurred as set out in the Particular. Neither peer reviewer was asked to comment on this behaviour. The Tribunal notes that Patient C's clear evidence was that whilst the Respondent spoke frequently about other patients he did not use their names. Whilst not discounting the possibility of identification without the use of names, this conduct is not as serious a breach of confidentiality as it may be if names were used. However, the Tribunal is of the view that a conversation of this nature is conduct significantly below that expected of a registered health professional, that it demonstrates a lack of care exercised and judgment possessed by the Respondent and that it is also improper conduct in the practice or purported practice of osteopathy. The Tribunal makes a finding of unsatisfactory professional conduct with respect to Particular 14 of Complaint One.
[29]
Complaint One - Particulars 15 (a), (b), (c) & (d) - Patient C
15. On 19 November 2009, during the course of providing osteopathic treatment to Patient C, while the patient was lying on her back on the massage table, the practitioner:
1. attempted to pull down the patient's underwear from the front:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. when Patient C attempted to stop the practitioner from removing her underwear by grabbing hold of them, the practitioner inappropriately said words to the effect, "[do] you want to get fixed, don't you".
2. the practitioner then proceeded to remove the patient's underwear and placed a towel over her exposed genitals:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. the practitioner thereafter massaged Patient C's inner thighs and, as he was doing so, the practitioner brushed Patient C's vagina with the palm of his hand on a few occasions:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
Patient C gave evidence regarding this Particular at paragraph 12 of her statement (exhibit 44) and at T59.36-60.9. Part of the evidence given by Patient C to the Tribunal that goes to the matters set out in Particular 15. The Tribunal' notes it also illustrates conduct of the same nature noted and complained of by other female patients. The following evidence is particularly illustrative of this point (T59.36-61.6):
Q. Then what happened?
A. Then I had to lie onto my back, where he did my legs and brought my knees up to my chest line, and did ‑ no, sorry, I'll go back. Sorry. I was on my back, and he was doing my legs, and he'd gone up around where my underwear was, and grabbed the rib of my underwear, and he started pulling them down, and I thought he was just going to be doing some work on my lower abdomen area. And then he kept pulling on my underwear and, to a stage where I thought, that's a little bit too far. So I've gone to grab them, to stop him, thinking what are you doing and then he said to me, "Well, you want to get fixed, don't you?" and I was like, why, is this appropriate or not, what do I do. So I let them go, and then he pretty much pulled my underwear off, and then he just‑‑
Q. Stop, stop. When you say he "pretty much pulled my underwear off"?
A. He pulled my underwear off. Sorry, he pulled my underwear off, and just threw them over onto the chair, which was opposite myself, but behind him.
Q. Was there a towel covering your private parts at that point?
A. No, I was exposed.
Q. Did you say anything to him?
A. I was pretty much frozen, I was like, didn't do anything.
Q. When you say "frozen", I don't want to put words into your mouth, can you describe what that felt like?
A. At that point, I'd pretty much, just lying there with my eyes closed, what the hell was he doing and just lied there.
Q. Then what happened?
A. At that point, he grabbed from, from the table, I think it was the table, somewhere, he just grabbed, there was little hand towel. That you buy from a shop, which is a hand towel you dry your hands on and he placed that over my groin area.
Q. You saw that happen, did you?
A. Yes, I opened my eyes and then I closed them again.
Q. Then what did he do?
A. He went on to massaging my legs, my thigh area, my inner thighs, and on a couple of occasion I felt, whether it was the inside of his forefinger, or the base of his palm, brush past my vagina. I'm not sure‑‑
Q. When you say, "brush past", what do you mean by that?
A. Well, his palm, I could feel his palm actually pass over my vagina area. It pretty much, if he was any closer, he would have been, fingers or whatever, could have gone internally, if he'd slipped.
Q. How many times would you say, or can you say, you felt his fingers or his palm, brush over your vagina area?
A. Two to four times.
Q. How did you feel at that time?
A. Just so embarrassed, and, and insulted, and invaded. If I had the strength, I would have like to have got up and walked out, but, I just, for some reason, I couldn't.
Q. Were you able to say anything to him?
A. No.
Q. Then what happened after that, did he continue massaging your thighs, or legs, or?
A. Yes. Well, he'd also done, where he'd lifted my knees up to my chest and done the circular motion, as well, so that left me quite open. He didn't at any point in time, that I could feel, that he'd gone out of his way to put the towel there to cover me, to make me feel comfortable. I was very uncomfortable, in, in how he was going about it.
Later in her evidence Patient C confirmed that the Respondent made no attempt to secure the towel so that it covered her appropriately (T67.18-21).
The 'pattern' of escalation of boundary violations, vulnerability of patient (in this case due to significant pain) and the nature of the boundary violations is demonstrated. Patient C gave evidence that she did not know any of the other patients included in the Complaint.
As stated above, the Tribunal found Patient C to be a witness of truth. The Tribunal is reasonably satisfied from the evidence of Patient C that the conduct set out in Particular 15 occurred as described. The Tribunal notes that neither peer reviewer was asked to comment specifically on Particular 15(a). Given the views they expressed regarding removal of underwear, the Tribunal is of the view they would concur that attempting to pull down the front of a patient's underwear is significantly below the standard expected and attracts strong criticism. The Tribunal notes the peer reviewers considered the evidence set out in Particulars 15(b), (c) and (d) to each be significantly below the standard expected and to attract their strong criticism. The Tribunal agrees with Dr Stone's comments regarding the size of the practitioner's hands not being relevant to the question of whether or not touching of the vagina will occur while massaging the inner thigh. The Tribunal notes that the Respondent indicated in the material put before the Tribunal that the large size of his hands meant that touching in this area whilst the inner thigh was being massaged would result at times. Dr Paul accepted that there may be an occasion of accidental touching but it could not be accidental if done with the palm of the hand on a 'few occasions' as described by Patient C. The Tribunal accepts the views expressed and finds the conduct in each of these Particulars ((a), (b), (c) and (d)) demonstrates a lack judgment possessed and care exercised by the Respondent in the practice of osteopathy is significantly below the standard reasonably expected of a practitioner of the same level of experience and training and that it is unethical and improper conduct in relation to the practice or purported practice of osteopathy. The Tribunal is further of the view that viewed together the conduct set out in Particulars 15 (a), (b), (c) & (d) is of a sufficiently serious nature to justify suspension or cancellation of registration. The Tribunal therefore makes a finding of professional misconduct with respect to the conduct set out in Particular 15. Not only is the conduct of such seriousness on the mere face of it, the element of duress or exploitation of Patient C's vulnerability due to the pain she was suffering and her understandable desire to gain relief from the pain she suffered is, in the Tribunal's view, an aggravating factor.
[30]
Complaint One - Background of Patient D - Particulars 16 - 20 inclusive
The HCCC Complaint provided the following background:
At all relevant times the practitioner was practising as an Osteopath.
From August 2007 to 2009, Patient D consulted with the practitioner for osteopathic treatment at his clinic at [omitted by Tribunal], Wagga Wagga in New South Wales.
During the period August to December 2007, Patient D was pregnant and experiencing severe lower back and hip pain.
During treatment sessions the practitioner would require Patient D to:
remove all her clothing apart from her underwear, and wear a gown that was open at the back.
lie on the massage table face down.
Patient D also received treatment in the Respondent's Wagga Wagga Practice. At the relevant time (August to December 2007) she was pregnant and approximately 32 years of age. Patient D was suffering from severe pain in her lower back and hip.
Patient D gave evidence before the Tribunal on 12 June 2014 and provided a statement to police dated 2 November 2010 (which became exhibit 5 in this matter). Patient D stated that she started to see the Respondent more frequently during her pregnancy due to a significant increase in her pain.
Patient D gave evidence that during treatment sessions she would remove her clothing (apart from underwear) and place a gown on before lying face down on the treatment table.
[31]
Complaint One - Particulars 16 (a) & (b) - Patient D
16. Between August and December 2007, in the course of providing osteopathic treatment to Patient D, the practitioner:
1. slid his fingers inside Patient D's underpants and rubbed the outside of her vagina whilst massaging her inner right thigh and groin area:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. made inappropriate comments in the presence of Patient D of a sexually explicit nature as follows:
1. the practitioner told Patient D that he had had sex with his wife on the bonnet of a car;
2. referred to Patient D's shorts as a "bit of a passion killer".
The statement (exhibit 5) of Patient D at paragraphs 11, 15 and 16 provides details of the matters set out in this Particular.
Patient D gave the following evidence before the Tribunal regarding the conduct set out in the Particulars and also regarding the nature of the type of conversations the Respondent generally engaged in during treatment sessions with Patient D:
T137.14-138.4 (Particular 16(a))
Q. Then do you remember an occasion some time between that visit in August and the end of that year when Mr Black was performing a deep tissue massage on the inner part of your right thigh?
A. Yes.
Q. Can you tell the Tribunal what happened on that occasion?
A. On that occasion it was probably the first time I sort of was worried, I suppose, where he was massaging the inner thigh and he sort of ‑ he would always use some sort of oil, obviously to stop it rubbing on my skin and his hand sort of slipped inside my underpants. It was very brief. I, yeah, I was quite stunned but I thought ‑ I didn't do anything or say anything because I was so embarrassed but I just thought maybe it was an accident.
Q. What did you feel at that time?
A. I felt his fingers rub over my vagina, just skim over the top and then straight back out again.
Q. Were you able to say anything to him?
A. No, no, I was just ‑ I couldn't. I sort of was stunned and embarrassed and it was, yeah. I didn't want to think about it.
Q. In your statement you say that he completed the massage and you were very tense. When you say you were very tense, are you talking physically tense or psychologically tense or a mixture of both?
A. I felt both. I can remember tensing up straight away and just, you know, oh my goodness sort of thing and in my head was just racing 1000 miles an hour.
Q. Can you describe what sort of conversations you had with Mr Black while he was treating you?
A. Over the ‑ just generally over the whole time?
Q. Just generally?
A. I know often there was inappropriate conversations or what I felt was inappropriate. Sometimes it was in relation to his wife, sometimes it was in relation to other sexual innuendo. I felt very uncomfortable, so usually I would change the conversation to be about his cars or he had an old army type car that he was fixing up at the time. So to try and prevent those conversations I would initiate a conversation along that line.
………
T138.6-28 (Particular 16(b)(i))
Q. Do you remember an occasion when he said something to you about having sexual relations with his wife?
A. On the bonnet of his car.
Q. Yes, do you remember when that was?
A. No, not specifically but I definitely remember it.
Q. How did that make you feel hearing that?
A. I was disgusted because I thought you are supposed to be a professional setting and why ‑ I don't need to hear anything about what's happening with you. I couldn't comprehend why he was even speaking about it or why it would come up.
Q. Did you take steps to ensure that that sort of conversation wouldn't happen again, I mean apart from changing the subject?
A. I didn't know how to broach it. I didn't know what to say or what to do. So that's why I would always make the conversation as much as I could about something else and when I did it, it would be because a topic was on that, you know, the cars or a trip to Sydney or whatever it be, it would tend to stay on that track rather than diverting off into the other conversations or I would talk about his family or something like that and the grandchildren. But it was like I was rushing to get a topic started before he could go down that line. Because if I just left it open, the conversation would always turn to something revolting.
……
T151.16-30 - Particular 16(b)(ii)
Q. Was there ever any occasion when you didn't take those shorts or tracksuit pants off?
A. Yeah, I remember a specific time I had on a pair of ‑ they were black or navy shorts with about two or three white stripes on the side. They had a drawstring waist. I remember specifically wearing them because I thought they're loose, so he won't have to take them off and I could have my treatment without moving anything and that was to try and protect myself. I remember him pulling my shorts off and that was really difficult because I had the drawstring waist and they were tied up and it was with quite a fair bit of force he had to get them off and his comment was, "Geez, they're a passion killer, aren't they?".
Q. How did you feel about that?
A. Once again it didn't surprise me, to be honest, which was sad but I was quite disgusted because I thought, well, you don't make comments like that to people. I just thought he doesn't know why I'm really wearing them.
The Tribunal notes the Respondent denied commenting about sexual matters that occurred between he and his wife to Patient D in a letter dated 15 August 2010 to the HCCC (exhibit 99).
The Tribunal found Patient D to be a witness of truth. The Tribunal is reasonably satisfied from the evidence of Patient D that the conduct set out in Particular 16 occurred as described. The Tribunal notes its acceptance of Dr Stone's comments regarding the size of the practitioner's hands not being relevant to the question of whether or not touching of the vagina will occur while massaging the inner thigh contrary to the Respondent's view. The Tribunal finds the conduct in Particulars (a) and (b) demonstrates a lack of judgment possessed and care exercised by the Respondent in the practice of osteopathy is significantly below the standard reasonably expected of a practitioner of the same level of experience and training and that it is unethical and improper conduct in relation to the practice or purported practice of osteopathy. The Tribunal is further of the view that the conduct detailed in Particulars 16(a) and 16(b) when considered together is of a sufficiently serious nature to justify suspension or cancellation of registration. The Tribunal therefore makes a finding of professional misconduct with respect to the conduct set out in Particular 16. Once again there is the aggravating factor of the severe pain suffered by Patient D and her desire to receive treatment to alleviate suffering.
[32]
Complaint One - Particular 17(a) - Patient D
17. During a number of consultations in 2008, in the course of providing osteopathic treatment to Patient D, the practitioner:
1. removed Patient D's underpants and placed a small towel over her exposed genitals:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
The Tribunal observes that the pattern of the Respondent's behaviour complained of by Patient D follows that of Patient B and Patient C in that it involves incremental escalations of boundary violations. The conduct described in this Particular involves the removal of underpants by the Respondent and the 'covering' of the genital area with a small hand towel. Patient D set out her evidence regarding this incident at paragraph 17 of her statement (exhibit 6), in her statement of 2 November 2010 (exhibit 5) and also gave the following oral evidence before the Tribunal (T138.47-139.33):
Q. So in 2008 do you recall an occasion when Robert Black did something unusual before he started treating your groin area?
A. Yeah. What was different then was I would always wear underpants and he took them off. There was no explanation as to why or what was going on. My gown was down. So it's not that he could see anything but he just put his hands up and just pulled then down from either side of my hip. Then he sort of placed a towel ‑ it was like a, I suppose, a handtowel size roughly, over my groin area.
Q. Did he say anything to you before he pulled your underpants off?
A. No.
Q. Did he say to you anything about the treatment that he was proposing to do with your underpants off?
A. No, definitely not.
Q. Did he say anything to you suggesting that you might like to take off your underpants yourself?
A. No. No, he just did it.
Q. Did he give you any warning that this was about to happen?
A. None.
Q. How did you feel when he did that?
A. I know the word "shock" keeps coming up and I don't really know what other word to describe but I was sort of in dismay, I suppose, and I think I was just in so much pain at the time and I had been seeing him for such a long time that you sort of trust that what they are doing is what needs to happen. I don't know. So as much as you are feeling so vulnerable, you don't say anything because he's the professional, he's the one that is supposed to do the right thing and do what's needed to get you better. So as much as I was in shock and wasn't happy, I trusted him, I suppose. I did. I trusted that ‑ I don't know, maybe that's what had to happen for him to massage my hip better. I don't know.
The evidence of Patient D illustrates both the trust that is reposed in treating practitioners and the shock and confusion suffered by patients when boundary violations occur.
As noted above the Tribunal found Patient D to be a witness of truth. The Tribunal is reasonably satisfied from the evidence of Patient D that the conduct set out in Particular 17(a) occurred as described. The Tribunal notes both Dr Stone and Dr Paul are of the view that removing the underwear of a patient is significantly below the standard of conduct expected. Both concur that if removal of underwear is clinically appropriate then the practitioner must first have explained the procedure, the reason why the removal of the underwear is necessary and obtained the patients consent. Both peer reviewers were of the view that unless the patient was disabled or otherwise incapacitated then the patient should be asked to remove their own underwear. The Tribunal finds the conduct in Particular 17(a) demonstrates a lack of judgment possessed and care exercised by the Respondent in the practice of osteopathy is significantly below the standard reasonably expected of a practitioner of the same level of experience and training and that it is unethical and improper conduct in relation to the practice or purported practice of osteopathy. The Tribunal is further of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of registration. The Tribunal therefore makes a finding of unsatisfactory professional conduct with respect to Particular 17(a) noting the aggravating factor of the severe pain suffered by Patient D and her desire to receive treatment to alleviate suffering.
[33]
Complaint One - Particular 18(a) & (b) - Patient D
18. During one particular consultation in 2008, in the course of providing osteopathic treatment to Patient D, the practitioner:
1. reached up under the gown worn by Patient D and removed her underpants:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. placed approximately two fingers of his right hand inside Patient D's vagina and used his left hand to push on Patient D's lower stomach and hip bone:
1. without wearing a glove on his right hand;
2. without prior discussion;
3. without consent being obtained.
Patient D gave evidence regarding the conduct set out in this Particular at paragraphs 21, 22, 24, 25, 26 & 27 of her statement (exhibit 6) and in her oral evidence before the Tribunal on 12 June 2014.
Patient D's oral evidence regarding Particular 18 included the following:
T.134.29 - 37
Q. I wonder if you could have a look at ‑ I'm going to ask [Patient D] to have a look at the internal manipulation consent form, which is the document that Mr Black gave, as can be seen on the video, Detective Culgan during the search warrant. Did Mr Black ever show you that document?
A. No, definitely not.
Q. Did he ever explain to you anything that he called internal manipulation or visceral manipulation?
A. Never, no.
T.140.24 - 143.18
Q. At that time what were you wearing?
A. My underpants and a gown.
Q. Go on?
A. Then I can't remember if he took my underpants before he put a hot pack on my groin area, across this right side or whether he did it after. I don't remember that. But he did get the hot packs and bring them in. He put a towel down so it didn't burn and then put the hot packs on. On that occasion the door was left open. He went and then sat back at his computer, which was when you walk out the door his back would be to me. So he would be working on the computer there. He would just say, "Is that okay or is it too hot?" That was probably about 15 or 20 minutes. Then he came back in and continued with some stretching from there and some more massage because of the heat to try and loosen the ligaments and things, I think, and the muscles. Yeah, and stretches from there.
Q. Then what happened after that?
A. After that with the stretches and everything he ended up inserting his fingers into my vagina.
Q. Can you tell the Tribunal were you lying on your back at that time?
A. Yes, I was on my back.
Q. Were you wearing underpants at that time?
A. No.
Q. Who took the underpants off?
A. Robert. I never, ever took my underpants off.
Q. Did he move your legs so that they weren't straight in front of you?
A. Yeah, they were often ‑ he would do stretches so my leg was out to the right. Sometimes he would put my foot up on his chest and push my leg back towards me to stretch my groin area. Another one he would do was put both my feet together on the bed and I would bend my knees and he would push my knees down to stretch the front of my groin. So, no, my legs weren't together at that time.
Q. Before he put his fingers in your vagina, did he say to you anything about why he was touching you in that way?
A. No.
Q. Why he was going to touch you in that way?
A. No, definitely not.
Q. Did he ask you if you minded if he touched you internally?
A. No. Robert just did what he wanted. He never asked or explained what he was going to do. He just did it.
Q. Did he say anything to you before he took your underpants off on that day?
A. No.
Q. Did you say anything to him when he put his fingers inside you?
A. No.
Q. Can you say to the Tribunal how many fingers he put‑‑
A. I think it was two.
Q. But you were lying down, so‑‑
A. I couldn't see. It was just you feel.
Q. Did he say anything to you while his fingers were inside you?
A. I don't think so. I don't know when it was. I do remember something being said about ‑ I don't know if it was that occasion or not but I remember a conversation about my uterus pulling to the right‑hand side and so whether it was on that occasion or not, I'm not sure. I don't remember but I do remember having that type of conversation, yeah. I don't know if it was that time or not, sorry.
Q. You have described how on the previous occasion when he first removed your underpants you were feeling tense both physically and psychologically. Can you describe to the Tribunal how you were feeling on this occasion?
A. I felt numb. I think I was in shock, to be honest. I was in pain.
Q. Were in pain from his fingers or in pain because you were in pain from your general problems?
A. Pain because of my problems but it was probably more pain because as he had his fingers inserted in me, he was pushing with his left hand from my hip area across to my belly button, I suppose you would say. That's probably where I was feeling the pain. It was quite painful as he was pushing across. So I sort of ‑ I don't know, I was just, yeah, that numb pain feeling I didn't ‑ I just couldn't believe it. I couldn't believe nothing had been explained. It just happened. I wasn't aware, I wasn't ‑ yeah, I don't know, it just happened.
…
Q. Before he put his fingers inside you did you see him put gloves on?
A. No. He was just working in that area. Like just working on my leg and groin and inner thigh and he didn't even leave the table where I was or reach for anything. So I'm assuming ‑ I don't feel like there was any gloves because he didn't move away and his hands were there. So it's not like he went and came back. I didn't see his hands but it didn't feel like there were any gloves and I don't know how he could have got a glove from the way things happened.
Q. Did you at any time on that occasion see him remove gloves?
A. No, I didn't.
Q. So when he was pressing down on your stomach and he had his fingers inside you and you were feeling pain, did he ask you how you were feeling?
A. No.
Q. Was there any conversation happening?
A. I don't think so but that's where I'm not sure, if that was a time when he said he was pushing my uterus back into the right spot. So that's where I just don't properly remember if that was a time or not but apart from that, no.
Q. Whichever time it was when he said he was pushing your uterus back into the right spot, had you asked him why he was doing that, is that why he gave you that explanation?
A. I think I might have said that it was hurting and so that's why the explanation occurred because of the pain. Unless I did say why, I'm not sure there but I think it was more that, oh, that really is hurting. That's when he said, whatever time it was, that he was pushing my uterus, it was out of alignment and needed to be pushed back into the right spot.
Q. Did he make any comment about the pain? Did he say anything like, "I will stop doing that if it's hurting you" or, "I'm sorry it's hurting you. It will just be one second more and then it will be right", did he say anything about the pain?
A. No, he didn't say anything about the pain at all. He just lightened the pressure slightly but there was no discussion or talk about it.
Q. When he had two fingers inside you, what hand was that?
A. That was his right hand.
Q. Can you remember where the rest of his hand was?
A. It seemed as if it was his index finger and his middle finger. With his thumb sort of like this and his other two fingers bent.
MS HARTSTEIN: So for the record, the witness has her thumb at right angles to her first two fingers and then the other two fingers bent in towards her palm.
Q. Could you feel the palm of his hand?
A. On my inner thigh, sort of on my right leg.
During the interview with the HCCC investigators on 9 November 2011 the Respondent described the preparation required for undertaking an internal manipulation to include requiring the patient to empty their bowel and bladder, washing the area, if the patient is female then they should be two week post menses for the movement of the uterus to be 'more successful', consent from the patient as well as having a 'female with you'. The Tribunal notes that Patient D did not describe any of these as preparations requested by the Respondent prior to undertaking the internal manipulations upon her.
During this same interview the Respondent confirmed that he had clinical records of having performed some internal procedures on Patient D including a technique whereby two fingers were inserted into her vagina and the other hand was placed onto the abdomen to move the fundus of the uterus 'to correct a slight ptosis and lateral deviation'. The Respondent asserted that Patient D would have the original of the consent document which he would have scanned into his computer. He stated he no longer had access to this form due to the computer difficulties he experienced. The Respondent explained that when he informed police during the execution of the search warrant that he had forwarded Patient D's consent form to the HCCC (when in fact he had not done so) it was a 'mistake' on his part which might have been a result of 'pressure or tension' of having to treat patients whilst six police were walking around the practice. The Respondent stated that the police 'down here' planted evidence and 'six of them have been rissoled off the Force'. The Tribunal notes that DSC Culgan, who led the team of police executing the search warrant, remained a member of the NSW Police Service as at the time he gave evidence before this Tribunal and there is no evidence before the Tribunal that would indicate that the search was done in anything other than a totally professional manner. Whilst taking care not to place too much on demeanour, the Tribunal observes that the Respondent appeared to be remarkably calm during the search process apart from the time the police officers approached and opened the draw in which the notes regarding Patient D were stored together with pornographic material. This accords with the evidence given by DSC Culgan to the Tribunal regarding his observations of the Respondent throughout the search process.
The Respondent also stated during this interview with HCCC investigators that Patient D always wore tracksuit pants whilst he was providing treatment to her and that when the internal procedures were undertaken either 'Mischelle or Megan' were present in the room with him.
Both Dr Paul and Dr Stone express the view that obtaining informed consent is absolutely crucial prior to any internal visceral manipulation. Dr Paul states that extreme caution and due process must be observed so that no impropriety can be construed from the procedure. Both express the view that the conduct is significantly below the standard expected. The Tribunal had the benefit of hearing detailed evidence from Patient D regarding this conduct. The Tribunal has formed the view that the contact described by Patient D does not constitute any treatment that would properly be considered as osteopathic and is without clinical foundation.
As noted above the Tribunal found Patient D to be a witness of truth. The Tribunal is reasonably satisfied from the evidence of Patient D that the conduct set out in Particulars 18(a) and 18(b) occurred as described. The Tribunal concurs with Dr Stone's strong criticism of the Respondent's conduct. The Tribunal finds the conduct in Particulars 18 (a) and (b) each demonstrates a lack of knowledge, skill and judgment possessed and care exercised by the Respondent in the practice of osteopathy that is significantly below the standard reasonably expected of a practitioner of the same level of experience and training and that it is unethical and improper conduct in relation to the practice or purported practice of osteopathy. The Tribunal is further of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of registration. The Tribunal therefore makes a finding of professional misconduct with respect to the conduct set out in Particular 18. The Tribunal finds the conduct in Particular 18(b) would alone constitute professional misconduct. Once again there is the aggravating factor of the severe pain suffered by Patient D and her desire to receive treatment to alleviate suffering.
[34]
Complaint One - Particulars 19 (a) & (b) - Patient D
19. During another consultation in 2008, in the course of providing osteopathic treatment to Patient D, the practitioner:
1. removed Patient D's underwear:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. placed two fingers on Patient D's vagina and asked her to squeeze her pelvic floor muscles while he did so:
1. without prior discussion;
2. without consent being obtained.
Patient D gave evidence regarding Particular 19 at paragraph 28 of her statement (exhibit 6) and in her oral evidence before the Tribunal. Patient D clarified at T144.20-26 that whilst once again the Respondent removed her underwear on this occasion it was a separate occasion when he inserted his fingers into her vagina rather than placing two fingers onto her vagina as set out in this Particular.
At T143.20-45 Patient D gave the following evidence regarding Particular 19(b):
Q. At about that time in terms of the course of treatment from Robert Black, that is after the birth of [omitted], did you have a discussion with him about pelvic floor exercises?
A. Yes. I don't know how it came up or what happened. I just remember Robert putting his hand on me and asking me to squeeze and he‑‑
Q. Let me stop you. When you say "on me"?
A. On my vagina.
Q. On the outside of your vagina?
A. Yeah, on the outside.
Q. Not on the inside?
A. No.
Q. Sorry to ask?
A. That's okay.
Q. He asked you to squeeze?
A. Yes.
Q. Squeeze what?
A. He did it in three spots. So he did my urethra or whatever you call it. Then the vagina and then my anus and he asked me, put his fingers just on the outside and asked me to squeeze tight and he said that, yeah, "We need to continue working on your pelvic floors after having children".
At this point the Tribunal also notes the following evidence given by Patient D that further illustrates the confusion she experienced as a result of the Respondent's boundary violations (T144.3-16):
Q. Did you have other conversations about pelvic floor muscles after that?
A. No. I can remember thinking that it was my third child and I had never had a doctor do that. I remember thinking that, thinking why does that ‑ he's an osteopath, he's not even a doctor. So why does he need to ask that question or get me to do that. I thought maybe it had something to do with the pain on my right. I don't know, I didn't know.
Q. How did you feel about that?
A. I just didn't understand.
Q. When he was touching you there, on that occasion when he was talking about pelvic floor exercises, how were you feeling?
A. Embarrassed. Hot. Like just nervous, sweaty palms. I just remember, yeah, feeling that, uncomfortable, very uncomfortable feeling.
There was evidence before the Tribunal that the procedure described by Patient D is not a recognised pelvic floor testing procedure (see for example around T376). The Tribunal notes that the Respondent provided information regarding what appears to be a test associated with assessing the strength of the pelvic floor muscles. Such an assessment is usually performed prior to prescribing Kegel exercises. However, accepted testing and exercises do not involve insertion of the practitioner's fingers into the patient's vagina.
As noted above the Tribunal found Patient D to be a witness of truth. The Tribunal is reasonably satisfied from the evidence of Patient D that the conduct set out in Particular 19 occurred as described. The Tribunal concurs with Dr Stone's strong criticism of the Respondent's conduct. The Tribunal finds the conduct in Particulars 19 (a) and (b) each demonstrates a lack of knowledge, skill and judgment possessed and care exercised by the Respondent in the practice of osteopathy that is significantly below the standard reasonably expected of a practitioner of the same level of experience and training and that it is unethical and improper conduct in relation to the practice or purported practice of osteopathy. The Tribunal is further of the view that the conduct is of a sufficiently serious nature to justify suspension or cancellation of registration. The Tribunal therefore makes a finding of professional misconduct with respect to the conduct set out in Particular 19. The Tribunal considers the conduct set out in Particular 19(b) considered alone constitutes professional misconduct. Once again there is the aggravating factor of the severe pain suffered by Patient D and her desire to receive treatment to alleviate suffering.
[35]
Complaint One - Particulars 20(a), (b) & (c) - Patient D
20. During a single consultation in 2008 or 2009, in the course of providing osteopathic treatment to Patient D, the practitioner:
1. reached up under the gown worn by Patient D and removed her underwear:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. placed his thumb inside Patient D's anus:
1. without prior discussion;
2. without consent being obtained;
3. without any clinical reason to do so.
1. placed his fingers inside Patient D's vagina:
1. without wearing a glove;
2. without prior discussion;
3. without consent being obtained.
4. Patient D gave evidence that by the time this conduct occurred her appointment time had moved to an appointment at the commencement of the lunch break. Due to financial pressures experienced by Patient D the Respondent offered to provide her treatment at a reduced rate or fee free, nominating appointment times at the commencement of the lunchbreak. Patient D gave evidence that after the masseur had provided her the initial massage the masseur would leave the Respondent's practice leaving only the Respondent in the practice premises. Evidence from three of the masseurs who had been employed by the Respondent confirmed a pattern of leaving the practice during the middle of the day (mostly only working either a morning or an afternoon shift). The Tribunal notes that the conduct described in this Particular is consistent with the pattern of escalation of boundary violations evident described by other patients. Once again the Tribunal notes it has taken care to consider the Particulars without regard for the overall pattern of the Respondent's conduct.
Patient D gave evidence regarding this Particular at paragraphs 34, 40, 41, 42 and 43 of her statement (exhibit 6) and in her oral evidence before the Tribunal. Significant parts of the oral evidence of Patient D are recounted below as it not only details the conduct as set out in the Particulars but has also assisted the Tribunal in the characterisation of the conduct.
Patient D gave the following evidence (T145.24 - 147.46):
Q. After that occasion was there yet a further occasion when he did something untoward in your genital area?
A. Yeah, there was another occasion when the same basically process would happen, where he would remove my underwear, do the massage and the stretches and things like that. He inserted his thumb into my anus and pushed down on my coccyx.
Q. From inside?
A. From inside, yes.
Q. Was that painful?
A. It was excruciating.
Q. When he was doing that were you lying on your back?
A. Yeah.
Q. Did he say to you beforehand that you needed treatment from the inside of your coccyx?
A. No.
Q. Did he ever say anything about why he was about to do that to you?
A. No, never.
Q. Did he ever ask you whether you wanted him to treat your coccyx?
A. No.
Q. On that occasion can you say roughly how long he left his thumb in your anus?
A. I think it was around 20 seconds. That's a pretty rough guide though but I just remember it happening and, yeah, the pain. The pain was unbelievable and I told him it really hurt. Yeah and he lessened the pressure but he didn't pull his thumb out straight away. It stayed there for longer but the pressure wasn't as hard.
Q. Which hand was it?
A. His right hand.
Q. Where were his fingers?
A. At that time I'm not sure whether his fingers were sort of out straight or whether they curved up. I'm feeling like they were curved and he was pushing down, standing over me and yeah, pushing down. Pushing my spine down towards the bed. It's what it felt like.
Q. On that occasion was he wearing a glove?
A. Not ‑ I can't be 100% sure but I don't think he was.
Q. On that occasion also did his fingers touch your vagina at all?
A. After he had his thumb in my anus, yes, he inserted his fingers in my vagina.
Q. How many fingers?
A. It felt like two.
Q. Did he say anything to you before he did that?
A. No.
Q. Is it possible from the way you were feeling that that could have been an accident?
A. Definitely not.
Q. Why do you say that?
A. Because they were in too far for it to be an accident. He did the same with his left hand again on my uterus, like on my stomach to push it across. So I don't see how it could be an accident.
Q. On that occasion did he say anything to you about why he had one hand, the fingers of one hand inside you and why he was pressing on your stomach with the other?
A. No, he didn't say anything about it. It just happened.
Q. How were you feeling about that?
A. I was in pain. So I think I was even teary at the time because of the pain. I just remember like a tear coming down the side of my face. I was in shock and I think because of the fact that it happened again and the fact that he not only did that, he put his thumb in my anus and there just was never an explanation or reason or ask these things, it just happened and I couldn't believe it happened again, I suppose.
Q. I'm sorry to keep asking the same questions again and again but on that occasion when he was ‑ he took his thumb out from your anus and put his fingers in your vagina, did he put a glove on?
A. I can't see how he could have put a glove on. I didn't see him reach across to a desk or anything. So I'm not definite but I don't recall him taking a glove off. I don't ‑ or seeing him like you take it off and put it in a bin. I don't remember seeing ‑ I remember not seeing it, sorry. Like I can't remember seeing his hand but I can't remember seeing him take a step to put anything in the bin or on the bench or he was just at the table.
Q. Did you ever see him obtain gloves from anywhere in that room?
A. No.
Q. Did you see him reach over to the table to obtain any equipment like oil or anything?
A. Yeah, at times there was. He would reach across to get oil from the table or he would go across and have his ‑ there was like a machine that he would put on his hand that would massage. So he would leave like where I was on the table to get that sort of thing or he would go across there to get like the handtowel off the table. Those types of things, yeah.
Q. But you don't recall seeing him ever get a glove?
A. No, never.
Q. During the whole of that experience did he ever give you any explanation at all for what he was doing?
A. Never. Never said anything about it.
Q. Did you ask him for an explanation at all?
A. I think I did. Well, when I ‑ once again when I said about the uterus and he would say because it was out of alignment. So when that discussion occurred I don't remember but I do remember that discussion. Like a discussion about that and he must have said something, I'm assuming, about I just recall something about because of the hip pain and the lower back pain, that's why he had to push my coccyx back, because he thought that that would help. That that's what needed to happen.
Q. Did it help?
A. I walked out of there in agony and I was in a lot of pain for days and couldn't go to the toilet properly. I don't feel that that helped at all, no.
The Tribunal notes Patient D was unable to state definitively that the Respondent was not wearing a glove at the time of these internally invasive acts. The Tribunal has been mindful of the requirement of Briginshaw not to make findings on '...inexact proofs, indefinite testimony or indirect references.'
The Tribunal also notes the evidence of Megan Thomson regarding an occasion on which she observed the Respondent with Patient D. Ms Thomson gave evidence to the Tribunal by telephone on 13 June 2014. Ms Thomson was one of the masseurs employed by the Respondent between 2002 and 2008. Ms Thomson works as a naprapathic massage therapist. The HCCC submitted that the evidence of Ms Thomson is unreliable. The Tribunal notes Ms Thomson gave evidence that she remembered Patient D lying on the treatment table with hot packs on her groin with the Respondent in the room wearing gloves. Ms Thomson made the assumption that the Respondent was preparing to undertake an internal examination on Patient D. Under cross-examination Ms Thomson was unable to explain why Patient D still had the hot packs on at a time when the Respondent already had gloves on nor why she referred to 'gloves' when she could not actually recall whether he had one or two gloves on at the time. Ms Thomson gave evidence that she did not remain in the room and did not witness any internal examination. Ms Thomson gave evidence that she assumed the Respondent removed the patient's underwear prior to applying heat packs so that the underwear did not get wet - although she never removed a patient's underwear or witnessed such removal. Ms Thomson gave evidence that the usual pattern of her work in the Respondent's practice in the period of time 2002 to 2008 was to work from 9am until midday. She would then leave the practice and go home. She understood that Ms Howard came in later in the afternoon and worked providing massage. There was no overlap between them and there was a period of time from around midday when there was no masseur present in the practice (T162.21-35).
The Tribunal has drawn inferences from the evidence of Patient D regarding matters such as the evidence that she never observed the Respondent wearing gloves and her observation of the absence of boxes of gloves in the practice. However, even if the Tribunal is wrong in drawing this inference, the balance of the matters set out in the Particular would be sufficient to establish unsatisfactory professional conduct of a sufficiently serious nature to warrant findings of professional misconduct.
As noted above the Tribunal found Patient D to be a witness of truth. The Tribunal is reasonably satisfied from the evidence of Patient D that the conduct set out in Particular 20 occurred as described. The Tribunal notes Dr Stone's view that even if the Respondent's contention that he had obtained Patient D's consent to performing a coccyx adjustment externally was accepted, penetration of Patient D's anus is indefensible no matter the size of his fingers. Whether the Respondent knowingly or 'accidently' allowed his finger to penetrate Patient D's anus attracted the strong criticism of Dr Stone and she considers it to be conduct significantly below the standard expected. The Tribunal concurs with Dr Stone's strong criticism of the Respondent's conduct. Similarly, Dr Paul considers that the size of a practitioner's hands is not an acceptable explanation for contact let alone penetration of the anus. The Tribunal finds the conduct in each of Particulars 20 (a), (b) and (c) demonstrates a lack of knowledge, skill and judgment possessed and care exercised by the Respondent in the practice of osteopathy that is significantly below the standard reasonably expected of a practitioner of the same level of experience and training and that it is unethical and improper conduct in relation to the practice or purported practice of osteopathy. The Tribunal is further of the view that the conduct found in Particular 20 (b) and (c) are each of a sufficiently serious nature to justify suspension or cancellation of registration. The Tribunal therefore makes findings of professional misconduct with respect to the conduct set out in Particulars 20 (b) and (c). Once again there is the aggravating factor of the severe pain suffered by Patient D and her desire to receive treatment to alleviate suffering.
[36]
Complaint Two
The Complaint Two as put before the Tribunal and background provided reads as follows:
[37]
COMPLAINT TWO
The Respondent is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has:
1. contravened (whether by act or omission) a condition to which the practitioner's registration is subject;
[38]
BACKGROUND OF COMPLAINT TWO
The Osteopathy Council placed conditions on the practitioner's registration in 2010 and 2011.
On 16 September 2010, the Osteopathy Council placed the following conditions on the practitioner's registration:
1. the practitioner is required to have a female chaperone present at all times when treating a female patient;
2. the practitioner must cease conducting internal examinations and procedures per vagina and rectum;
3. the practitioner must cease requiring female patients to remove their underwear.
On 1 March 2011, the Osteopathy Council placed the following further condition on the practitioner's registration:
1. the practitioner must not treat children under the age of 18 years.
On 5 April 2011, the Osteopathy Council placed the following conditions on the practitioner's registration:
1. the practitioner must not treat patients between the ages of 11 and 18 inclusive;
2. the practitioner must cease conducting internal examinations or procedures per vagina and rectum;
3. the practitioner must cease requiring female patients to remove their underwear;
4. the practitioner must have a registered or else official approved chaperone present at all times when treating patients between the ages of 0 and 10 inclusive;
5. the practitioner is required to have a registered or else official approved chaperone present at all times when treating a female patient;
6. the practitioner must forward to the Osteopathy Council within 7 days of the end of each calendar month a report of all patients in the above target groups, including chaperones present;
7. the practitioner must ensure chaperones understand their required role to be present at all times during treatment of target patients;
8. the practitioner must notify all other practitioners on site of the conditions of the practitioner's registration and provide to the Osteopathy Council a copy of the conditions signed by each of those practitioners;
9. the practitioner must authorise the exchange of information and records between the Medicare and the Osteopathy Council.
On 24 October 2011, the Osteopathy Council varied the conditions of the practitioner's registration to include the following conditions:
1. the practitioner must cease conducting internal examinations or procedures per vagina and rectum;
2. the practitioner must cease requiring female patients to remove their underwear;
3. the practitioner is required to have a chaperone present at all times when treating a female patient or a patient 0-18 years of age inclusive. The chaperone must be either a registered health professional approved by the Osteopathy Council or an adult family member of the patient;
4. the practitioner must forward to the Osteopathy Council within 7 days of the end of each calendar month a report of all patients in the above target groups, including chaperones present;
5. the practitioner must ensure chaperones understand their required role to be present at all times during treatment of target patients;
6. the practitioner must notify all other practitioners on site of the conditions of the practitioner's registration and provide to the Osteopathy Council a copy of the conditions signed by each of those practitioners;
7. the practitioner must authorise the exchange of information and records between the Medicare and the Osteopathy Council.
The evidence before the Tribunal records the various conditions placed upon the Registration of the Respondent by the Osteopathy Council of NSW in 2010 and 2011 (as set out above). The Tribunal notes the evidence also contained details of similar (but not identical) conditions placed upon his Registration as a Chiropractor by the Chiropractic Council of NSW over approximately the same period of time. The Tribunal has not had regard to whether the conditions placed on his Registration as a Chiropractor were breached, but notes that the evidence reveals there can be no doubt that the Respondent understood his Registration was subject to conditions during this period of time.
The Particulars of this Complaint relate to breaches of the above conditions by the Respondent. As detailed below the Tribunal has found many of these Particulars established. The Tribunal is of the view that those not established were without foundation and/or should not have been placed before the Tribunal. Rather, the Tribunal has applied the Briginshaw standard and noted that a number of the patients involved were unable to be contacted to give oral evidence before the Tribunal and/or did not sign the statements that had been prepared from their interviews.
The Tribunal also notes at this point that it did not require all of these witnesses for cross-examination. Given the large numbers of patients involved in the Particulars of Complaint Two the Tribunal only sought to cross-examine a sample of these patients in the interests of efficiency and expediency. The Tribunal received sufficient evidence to be reasonably satisfied with respect to a significant number of the Particulars.
The Tribunal accepts the HCCC submission that the evidence reflects the contempt the Respondent showed for the Conditions placed on his Registration by the Osteopathy Council of NSW.
The Tribunal notes the terms of s139B(1)(c)(i) provides that unsatisfactory professional conduct includes 'A contravention by the practitioner (whether by act or omission) of a condition to which the practitioner's registration is subject'. The Tribunal accepts the submission of the HCCC that there is no authority contra to this position. The HCCC relied upon the following passage from Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [73]:
When conditions are imposed, …., those conditions must be scrupulously observed, as observed in Re Dr. Than Le (supra). It is even more serious when dishonesty intervenes …
Although exercising jurisdiction under the Medical Practice Act 1992 the provisions relating to the breach of conditions remain the same in substance to that now provided in the National Law. The Tribunal notes the Medical Tribunal in the matter of Re Dr Than Le (20 September 2001 at 46, para 95) commented:
Particularly when imposed in a disciplinary context, such restrictions are not lightly imposed nor may they be treated lightly. Any practitioner whose registration is subject to conditions could not reasonably hold any view of those conditions other than that they must be scrupulously observed. Repeated wilful breaches of conditions are treated by the Medical Tribunal as a most serious finding against a practitioner, 'containing as it does a grave criticism of the standard of the practitioner's conduct'.
[39]
Particulars of Complaint Two - Particulars 1 - 10 inclusive - Conditions imposed on 16 September 2010
1. On or around 9 December 2010, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient E without a chaperone present.
2. On or around November 2010 to March 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient F without a chaperone present.
3. On or around Christmas 2010, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient G without a chaperone present at all times.
4. On or around Christmas 2010, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient H without a chaperone present.
5. In early 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient I without a chaperone present.
6. In early 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient J without a chaperone present.
7. In February 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient K without a chaperone present.
8. On 2 February 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient L without a chaperone present.
9. In January and May 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient M without a chaperone present.
10. In February and May 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient N without a chaperone present.
Particular 1 of Complaint Two relates to Patient E. Patient E provided a signed statement (exhibit 63) confirming she had consulted the Respondent for osteopathic treatment on 9 December 2010 and that no one else was present in the room ([4]) and the door closed. This is a breach of Condition 1 placed on the Respondent's registration on 16 September 2010. The Tribunal is satisfied that Particular 1 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct. The Tribunal also notes evidence from Patient E's health insurance provider records a benefit was paid for this service as treatment from an osteopath (exhibit 70).
Particular 2 of Complaint Two relates to Patient F. Patient F provided a signed statement (exhibit 55) and also gave evidence by telephone to the Tribunal on 19 June 2014. Patient F confirmed she had consulted the Respondent for osteopathic treatment on a number of occasions around November 2010 and March 2011. Patient F had been receiving regular treatment from the Respondent for a period of about six or seven years. On rare occasions Ms Hancock was also in the room with the Respondent when she was receiving treatment ([3] & [4]). Patient F also recalled that the door of the treatment room was always closed when she was receiving treatment from the Respondent. Although Patient F had seen Mrs Black in the practice when she had 'popped down for something' she had never been formally introduced to her (T432.24-27). The documentation from Patient F's health insurer regarding these occasions of service are located in exhibit 68. The Tribunal finds the lack of a female (or any) chaperone when treating a female patient is a breach of Condition 1 placed on the Respondent's registration on 16 September 2010. The Tribunal is satisfied that Particular 2 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct.
Particular 3 of Complaint Two relates to Patient G. Patient G provided a signed statement (exhibit 58) and also gave evidence by telephone to the Tribunal on 19 June 2014. Patient G confirmed she had consulted the Respondent for treatment around Christmas 2010. Patient G had been receiving treatment from the Respondent for a period of about ten years. Patient G recalled that the door of the treatment room was always closed when she was receiving treatment from the Respondent (T425). The documentation from Patient F's health insurer regarding this occasion of service are located in exhibit 70 and record osteopathic treatment was provided. Patient G recalled that on occasion the 'young girl' who had provided the preliminary massage stayed in the room for some of the time the Respondent was providing treatment to her (during the actual manipulation). Patient G had made the assumption that the young girl had remained in the room as she must have been interested in a chiropractic career. Patient G is certain that there was no discussion with the Respondent about a chaperone being required ([5]). Patient G gave evidence that she had never met Mrs Black. The Tribunal finds the lack of a female (or any) chaperone for the entire time that he was treating a female patient is a breach of Condition 1 placed on the Respondent's registration on 16 September 2010. The Tribunal is satisfied that Particular 3 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct.
Particular 4 of Complaint Two relates to Patient H. Patient H provided a signed statement (exhibit 61). Patient H confirmed she had consulted the Respondent for about four years and received treatment just prior to Christmas 2010. Patient H stated that there was no one else in the room with her, apart from the Respondent, when he was providing treatment ([5]). Patient H also stated that the Respondent did not have any conversations with her regarding the need to have a chaperone present whilst he was providing treatment ([6]). The Tribunal finds the lack of a female (or any) chaperone when treating a female patient is a breach of Condition 1 placed on the Respondent's registration on 16 September 2010. The Tribunal is satisfied that Particular 4 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct.
Particular 5 of Complaint Two relates to Patient I. Patient I provided a signed statement (exhibit 62). Patient I confirmed she had consulted the Respondent for osteopathic treatment in early 2011 just before she returned to work after her holiday. Patient I had been receiving treatment from the Respondent 'on and off' for a period of about three years. Patient I stated that she was in the room alone with the Respondent when she was receiving treatment ([4] & [54]). Patient I also recalled that there was no conversation with the Respondent regarding a chaperone. The documentation from Patient I's health insurer regarding these occasions of service are located in exhibit 68. The Tribunal finds the lack of a female (or any) chaperone when treating a female patient is a breach of Condition 1 placed on the Respondent's registration on 16 September 2010. The Tribunal is satisfied that Particular 5 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct.
Particular 6 of Complaint Two relates to Patient J. Patient J provided information to the HCCC investigator regarding the treatment she had received from the Respondent. The statement that was then prepared by the HCCC and forwarded to Patient J was never signed and returned (annexure E to exhibit 50). The unsigned statement records that treatment was provided to Patient J by the Respondent without anyone else being present in the room. She was unaware of any chaperone requirements although she observed that the door to the treatment room was slightly ajar which she thought was a bit 'weird'. Whilst the Tribunal does not have any doubt regarding the accuracy of the statement prepared by the HCCC the Tribunal is of the view that it is unnecessary in the context of this Complaint to proceed to make a finding with respect to this Particular. The Tribunal does however note that the content of the statement is consistent with evidence of other witnesses who did give evidence before the Tribunal and/or provided a signed statement.
Particular 7 of Complaint Two relates to Patient K. Patient K also provided information to the HCCC investigator regarding the treatment she had received from the Respondent. The statement that was then prepared by the HCCC and forwarded to Patient K was never signed and returned (annexure G to exhibit 50). The unsigned statement records that usually treatment was provided to Patient K by the Respondent without anyone else being present in the room, however there was someone in the room treatment on occasions when the Respondent was providing them with instructions. Whilst the Tribunal does not have any doubt regarding the accuracy of the statement prepared by the HCCC the Tribunal is of the view that it is unnecessary in the context of this Complaint to proceed to make a finding with respect to this Particular. The Tribunal does however note that the content of the statement is consistent with evidence of other witnesses who did give evidence before the Tribunal and/or provided a signed statement.
Particular 8 of Complaint Two relates to Patient L. Patient L provided a signed statement (exhibit 60). Patient L also gave evidence by telephone to the Tribunal on 19 June 2014 (T407). Patient L confirmed she had consulted the Respondent for osteopathic treatment on 2 February 2011 (although the health insurance records it as 7 February 2011 - a matter that the Tribunal does not consider relevant to the finding in relation to this Particular). Patient L stated that she was in the room alone with the Respondent when she was receiving treatment ([4]). Patient L also stated there was no conversation with the Respondent regarding a chaperone ([5]). The documentation from Patient L's health insurer regarding this occasion of service are located in exhibit 68. The Tribunal finds the lack of a female (or any) chaperone when treating a female patient is a breach of Condition 1 placed on the Respondent's registration on 16 September 2010. The Tribunal is satisfied that Particular 8 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct.
Particular 9 of Complaint Two relates to Patient M. Patient M provided a signed statement (exhibit 51). Patient M also gave evidence by telephone to the Tribunal on 19 June 2014 (T438). Patient M gave evidence she had consulted the Respondent for osteopathic treatment in both January and May 2011. Patient M stated that on the last occasion she received treatment from the Respondent she was in the room alone with the Respondent and could not see out of the door (T442.41-443.3). When she arrived for her consultation there was no one in the reception area and she could not hear anyone there whilst she was receiving her treatment from the Respondent. The documentation from Patient M's health insurer confirms an occasion of service occurred on 13 January 2011 (exhibit 68). It maybe that Patient M is confused about there having been an occasion of service in May 2011 as she mentions a male masseur. Her evidence was that there were two male masseurs she had received treatment from in the Respondent's practice - the one later in time being younger than the one earlier in time. The Tribunal only has evidence regarding a male masseur called 'Iggy' having worked in the Respondent's practice until about June 2010. In any case the Tribunal is reasonably satisfied as to the absence of a chaperone for the January 2011 consultation and accepts the HCCC submission that the failure to prove the second date does not detract from the proof of the other occasion. The Tribunal finds the lack of a female (or any) chaperone when treating a female patient (Patient M on 13 January 2011) is a breach of Condition 1 placed on the Respondent's registration on 16 September 2010. The Tribunal is satisfied that Particular 9 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct.
Particular 10 of Complaint Two relates to Patient N. Patient N provided a signed statement dated 29 August 2011 (exhibit 54). Patient N also gave evidence by telephone to the Tribunal on 17 June 2014 (T325). Patient N confirmed she had consulted the Respondent for osteopathic treatment in February and May 2011, consulting him on four occasions over a two year period. Patient N stated that although she recalled each consultation was much the same as the others she had specific recall about the consultation in May 2011. Not only had it occurred just a few months earlier than the time she was giving her statement, it was also memorable as she was pregnant at this time and had also been informed by one of her clients that the Respondent had conditions on his registration that required him to have a female present whilst he was providing treatment. Patient N stated that there was no one present during this May 2011 consultation (just as it had been on earlier occasions). At T327 Patient N gave evidence that one of her clients (a nurse) had provided her with the information regarding the conditions on the Respondent. Patient N stated 'she sort of had access or something to be able to look up his file and that's when she found out that he had restrictions on him…. To have someone in there, a female chaperone in the room'. At this point the Tribunal notes that access to the Register of Health Practitioners is publically available and accessed through the AHPRA (Australian Health Practitioner Regulation Authority) website. The Tribunal also notes that the evidence before it indicates that the conditions on the Registration of the Respondent were recorded on this publically available Register at this time. Patient N stated that she had not ever felt uncomfortable with the Respondent and she had returned for treatment despite being aware that the Respondent had conditions on his Registration as the consultation included a massage which she had not received when she had treatment from chiropractors. The documentation from Patient N's health insurer regarding these occasions of service are located in exhibits 68 and 74. The Tribunal finds the lack of a female (or any) chaperone when treating a female patient is a breach of Condition 1 placed on the Respondent's registration on 16 September 2010. The Tribunal is satisfied that Particular 10 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct. The Tribunal cannot leave Particular 10 of Complaint Two without noting that the Respondent provided a document to the Council on 8 June 2011 purporting to record the person who acted as a chaperone for female patients during the month of May (page 35 - exhibit 83). Patient N is recorded as having attended on 9 May 2011 (this accords with the records provided by the health insurer) at 3pm and next to that entry is the initials "AH' and a signature 'A Hancock' at the bottom of the page.
[40]
Particulars of Complaint Two - Particulars 11 - 21 inclusive - Conditions imposed on 5 April 2011
1. 11 On 15 June 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to at least two female patients without a chaperone present.
12. On 16 June 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient O without a chaperone present.
13. On 4 August 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient P without a chaperone present.
14. On or around9 December 2010, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient Q without a chaperone present.
15. On or around 5 May 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient R without a chaperone present at all times.
16. In or around February and April 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient S without a chaperone present at all times.
17. On or around 10 October 2010 and 16 December 2010, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient T without a chaperone present at all times.
18. In or around January 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient U without a chaperone present.
19. On or around 22 February 2011, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient V without a chaperone present.
20. In or around December 2010, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient W without a chaperone present.
21. On or around 19 November 2010, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient X without a chaperone present.
Particulars 11 to 21 inclusive relate to alleged breaches of the conditions placed upon the Registration of the Respondent by the Council on 5 April 2011.
Particular 11 relates to two female patients that received treatment during the time that the police were executing a search warrant on the practice premises on 15 June 2011. These patients were not identified by name to the Tribunal; however, the video taken by police shows these two female patients. Ms Hancock gave evidence that she was unable to identify either of these patients when she was shown the video whilst she gave evidence to the Tribunal via skype on 16 June 2014. Ms Hancock was in the Respondent's practice on 15 June 2011 and is clearly depicted in the video. The video was shown to Ms Hancock by DSC. Culgan whilst she gave evidence in her solicitor's office.
At T245.28-30 Ms Hancock agreed that the video recorded a female patient having been in a treatment room in the practice alone with the Respondent.
The police video came into evidence as exhibit 48. DSC Culgan also gave evidence before the Tribunal. DSC Culgan gave evidence of having observed that the Respondent was in a treatment room with two different female patients unchaperoned during the time the search warrant was being executed (see around T105-127). DSC Culgan also gave evidence that he did not witness the Respondent providing any information to female patients about the need for a chaperone.
The Tribunal finds the lack of a female (or any) chaperone when treating two female patients on 15 June 2011 to be a breach of Condition 5 placed on the Respondent's registration on 5 April 2011. The Tribunal is satisfied that Particular 11 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct regarding each of the occasions of providing treatment unchaperoned on 15 June 2011.
Particular 12 of Complaint Two relates to Patient O. Patient O provided information to the HCCC investigator regarding the treatment she had received from the Respondent. The statement that was then prepared by the HCCC and forwarded to Patient O was never signed and returned (annexure A to exhibit 50). The unsigned statement records that the treatment provided to Patient O on 16 June 2011 by the Respondent occurred without anyone else being present in the room. Whilst the Tribunal does not have any doubt regarding the accuracy of the statement prepared by the HCCC the Tribunal is of the view that it is unnecessary in the context of this Complaint to proceed to make a finding with respect to this Particular. The Tribunal does however note that the content of the statement is consistent with evidence of other witnesses who gave evidence before the Tribunal and/or provided a signed statement.
Particular 13 of Complaint Two relates to Patient P. Patient P provided a signed statement (exhibit 64). Patient P stated she had consulted the Respondent for osteopathic treatment on 4 August 2011 which is confirmed by the records of her health insurer (exhibit 76). Patient P stated she did not have a clear recollection of the consultation and whilst she was certain Ashlee Hancock was not in the room at the end of the consultation there was a point earlier in the consultation when both the Respondent and Ms Hancock were in the room. Whilst on the balance of probabilities the Tribunal would find that a chaperone was not present throughout the entirety of the consultation as required by Condition 5 placed on the Respondent's registration on 5 April 2011 the Tribunal is not satisfied to the requisite standard that Particular 13 of Complaint 2 is established.
Particular 14 of Complaint Two relates to Patient Q. Patient Q provided information to the HCCC investigator regarding the treatment she had received from the Respondent. The statement that was then prepared by the HCCC and forwarded to Patient Q was never signed and returned (annexure B to exhibit 50). The unsigned statement records that when she last saw the Respondent for treatment (being 9 December 2010 from the health insurer's records - exhibit 68) she initially received a massage from a female member of staff who then remained in the room for some time after the Respondent entered the room. Patient Q recalled that the door was ajar but was unable to say how long the female member of staff remained in the room - although she had left the room when the treatment with the Respondent finished. Whilst the Tribunal does not have any doubt regarding the accuracy of the statement prepared by the HCCC the Tribunal is of the view that it is unnecessary in the context of this Complaint to proceed to make a finding with respect to this Particular.
Particular 15 of Complaint Two relates to Patient R. Patient R provided a signed statement (exhibit 59). Patient R confirmed she had consulted the Respondent for treatment a few months prior to the time she was interviewed on 23 August 2011. The records from Patient R's health insurer record the consultation occurred on 5 May 2011 (exhibit 68). A further document, the record provided by the Respondent of chaperones for each female patient (part of exhibit 83), records a consultation on 5 May 2011 at 4.30pm. This document records Mrs Black as the chaperone. Patient R stated that the person who provided her with the initial massage left prior to the Respondent entering the room. Whilst Patient R cautiously added that it was possible that someone entered the room when she was face down on the table there was no one else in the room when she got up from the table. The Tribunal finds the lack of a female (or any) chaperone when treating a female patient is a breach of Condition 5 placed on the Respondent's registration on 5 April 2011. The Tribunal is satisfied that Particular 5 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct.
Particular 16 of Complaint Two relates to Patient S. Patient S provided a signed statement and also gave evidence by telephone to the Tribunal on 19 June 2014 (T412). Patient S stated she had been consulting the Respondent since 2000 until as recently as approximately three weeks prior to giving her evidence. Patient S described having back and neck problems and the Respondent providing her with treatment. Patient S described the treatment she received to her neck on the last occasion she consulted the Respondent (i.e. in late May or early June 2014 - a time when the Respondent was not a registered health practitioner) in detail to the Tribunal (T417-419). The Tribunal formed the view that the treatment described by Patient S was a manipulation of the cervical spine as defined in s123 of the National Law. The Tribunal referred this matter to the relevant authorities for further action as this Tribunal does not deal with regulatory offences nor was this a matter that formed part of the Particulars of Complaint. It was open to the Tribunal to lay a further complaint in relation to this conduct, but did not consider this necessary in the circumstances. The evidence of Patient S allows the Tribunal to be reasonably satisfied that there was no chaperone present in the room during the treatments provided by the Respondent in and around February and April 2011. The Tribunal finds the lack of a female (or any) chaperone when treating a female patient (Patient 3 on 22 February and 1 April 2011) is a breach of Condition 1 placed on the Respondent's registration on 16 September 2010. The Tribunal is reasonably satisfied that Particular 16 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct.
The Tribunal notes by way of background Patient S also gave the following evidence regarding her understanding of why she was not now able to make a claim on her health insurer for services provided by the Respondent (T41733.43):
Q. As far as you know right now, there's no point in Mr Black giving you a receipt because the health fund won't give you any money back, is that the case?
A. No, it's not that. He's not ‑ I understand he hasn't paid up his dues or something, I don't understand it, but we know that. When you go, you do not get a receipt. I know that.
Q. Is that because he told you or there's a sign?
A. Yes, he told me. He told me that he's not doing it anymore, and he still takes on a few people. I don't know how many he takes on, that's his business, but, you know, I ‑ yes, I do pay him.
Particular 17 of Complaint Two relates to Patient T. Patient T provided a signed statement (exhibit 52) and gave evidence by telephone to the Tribunal on 17 June 2014. Patient T stated she had been receiving treatment from the Respondent for a period of about 8 to 10 years. Although Patient T was able to say she was in the treatment room alone with the Respondent on occasions she was unable to say whether this was the case for the consultation that occurred on 10 October 2010 or 16 December 2010. The evidence of Patient T is not sufficiently clear or certain to establish Particular 17.
Particular 18 of Complaint Two relates to Patient U. Patient U provided information to the HCCC investigator regarding the treatment she had received from the Respondent. The statement that was then prepared by the HCCC and forwarded to Patient U was never signed and returned (annexure C to exhibit 50). The unsigned statement records that the treatment provided to Patient U in January and early February 2011 (confirmed by the records from the health insurer - exhibit 76) by the Respondent occurred without anyone else being present in the room. Whilst the Tribunal does not have any doubt regarding the accuracy of the statement prepared by the HCCC the Tribunal is of the view that it is unnecessary in the context of this Complaint to proceed to make a finding with respect to this Particular. The Tribunal does however note that the content of the statement is consistent with evidence of other witnesses who did give evidence before the Tribunal and/or provided a signed statement.
Particular 19 of Complaint Two relates to Patient V. Patient V provided information to the HCCC investigator regarding the treatment she had received from the Respondent. The statement that was then prepared by the HCCC and forwarded to Patient V was never signed and returned (annexure D to exhibit 50). The unsigned statement records that the treatment provided to Patient U on 22 February 2011 (confirmed by the records from the health insurer - exhibit 68) by the Respondent occurred without anyone else being present in the room. Whilst the Tribunal does not have any doubt regarding the accuracy of the statement prepared by the HCCC the Tribunal is of the view that it is unnecessary in the context of this Complaint to proceed to make a finding with respect to this Particular. The Tribunal does however note that the content of the statement is consistent with evidence of other witnesses who did give evidence before the Tribunal and/or provided a signed statement.
Particular 20 of Complaint Two relates to Patient W. Patient W provided a signed statement (exhibit 53) and also gave evidence by telephone to the Tribunal on 23 July 2014 (T460). Patient W confirmed she had consulted the Respondent for treatment in December 2010. Patient W gave evidence in an extremely clear and forthright manner. Her evidence was that the treatment occurred in the treatment room with the door closed with no one else apart from the Respondent present. Patient W confirmed her general view of the conversation engaged in by the Respondent and confirmed the specific conversation she recorded as having with the Respondent as occurring during a consultation some time prior to December 2010 as set out in paragraph 7 of her statement (exhibit 53). In paragraph 7 Patient W described the Respondent's conversation as 'a bit robust and aimed at a broadminded female'. The Respondent had recounted to her an incident where a female patient had a tampon string hanging out of her underpants. Patient W considered that the Respondent's demeanour during the December 2010 consultation was more professional than on previous occasions. The Tribunal finds the lack of a female (or any) chaperone for the entire time that he was treating a female patient is a breach of Condition 1 placed on the Respondent's registration on 16 September 2010. The Tribunal is satisfied that Particular 20 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct.
Particular 21 of Complaint Two relates to Patient X. Patient X provided a signed statement (exhibit 57). Patient X recalls consulting the Respondent in November or December 2010 (confirmed as 19 November 2010 by the records from the health insurer - exhibit 68). Although Patient X's general recollection was that she was in the room by herself for most of the occasions of service provided by the Respondent there was a level of uncertainty as to what occurred in the November 2010 consultation. She did recall overhearing a conversation between the Respondent and the young female masseur wherein the Respondent said she was naïve to think that a male ringing for an after-hours massage only wanted a massage (paragraph 5). The Tribunal is not satisfied to the requisite standard to proceed to make a finding with respect to this Particular. The Tribunal does however note that the content of the statement is consistent with evidence of other witnesses.
[41]
Particulars of Complaint Two - Particular 22 - Conditions imposed on 24 October 2011
22. On 14 March 2012, the practitioner breached the conditions of his registration by providing osteopathic treatment to Patient Y without a chaperone present.
Particular 22 of Complaint Two relates to Patient Y. The Particular alleges the conduct is a breach of the conditions imposed on the Registration of the Respondent by the Council on 24 October 2011. Patient Y provided a signed statement (exhibit 65) and gave evidence by telephone to the Tribunal on 17 June 2014 (T335). Records provided by Patient Y's health insurer record she consulted the Respondent on 14 March 2012. Patient Y gave evidence in a mildly hostile manner. Her issue centred on the fact that she did not have any concerns relating to the treatment she had received from the Respondent. Later in oral evidence Patient Y confirmed that the Respondent's niece was a friend of hers and she had heard some information about the seizure of documents from the Respondent's premises through her (T344). Patient Y stated the Respondent was not a member of a club with which she was associated. At paragraph 5 of her statement Patient Y stated that when the masseur left the room the Respondent entered alone and left the door slightly ajar whilst he treated her. At T336 Patient Y stated that the masseur sat on a chair where she could see into the room and at T339 she stated the door was 35 to 45 degrees opened. At this point the Tribunal notes two matters of significance to the finding to be made with respect to this Particular without having to resort to directly making any finding regarding the reliability of Patient Y's evidence. First, the Tribunal has had the benefit of seeing the layout of the Respondent's practice premises in detail on the police search warrant video. Having the benefit of this evidence the Tribunal is able to find that a person sitting in the reception/office area of the practice could not see the Respondent and patient clearly. At best they may be able to partially see the patient's feet and lower legs. Secondly, the Tribunal accepts the evidence of Dr Stone that the chaperone must understand their role if chaperoning is to occur, they must be actually in the room and the patient must be notified of the presence of the chaperone (T353-354). The Tribunal finds the lack of a female (or any) chaperone present in the room whilst he was treating Patient Y is a breach of Condition 3 placed on the Respondent's registration on 24 October 2011. The Tribunal is also reasonably satisfied that the Respondent failed to ensure that the chaperone understood the role she was to perform and is in breach of Condition 5 placed on the Respondent's registration on 24 October 2011. The Tribunal is satisfied that Particular 22 of Complaint 2 is established and makes a finding of unsatisfactory professional conduct.
The Tribunal notes that Ms Hancock gave evidence (via Skype) that she did not really know what 'act as a chaperone' meant nor did she understand her job as a chaperone (T242), although the Respondent had said to her that it required her to be in the room.
Patient Y also gave evidence that she was advised by Ms Hancock in about mid-2013 that the Respondent was not working and was in the process of retiring. Ms Hancock advised her that she could still attend the practice for the purpose of obtaining a massage 'without having my back cracked into place' however she may not be able to make a claim from her health fund for that service. This contrasts with the evidence of Patient S who gave evidence that the Respondent was still providing manipulations in mid-2014.
[42]
Material from the Respondent
The Tribunal notes that the Respondent did not address each of the Particulars of Complaint Two despite being provided with an opportunity to do so. Before leaving this Complaint the Tribunal notes part of a letter from the Respondent dated 18 September 2011 (exhibit 85) addressed to the Osteopathy Council of NSW (after the completion of the criminal trial in relation to Patient A) which may provide some insight into the Respondent's view of the conditions placed upon him:
I now require the Osteopathy Council to remove all restrictions that were placed on my practice because of this fabricated allegation of forty years ago forthwith, or show reasons why in the Supreme Court. …
You the Osteopathic Council have twenty eight days to comply with removing the restrictions from my practicing certificate in treating females in your targeted group or we move to litigation in this matter.
I have been advised to give the Osteopathic Council the outcome of my trial and time in which to remove the restrictions placed on my practice because of this lying piece of filth. You have placed restriction after restriction illegally on my practice in treating female patients including signed forms and further restrictions on normal operating procedures. You did your best to inhibit and harass a practitioner who has had a career for over forty six years, based solely on this lying pathological hysteric. You then carried on about chaperones, were they approved by the Osteopathy Council? Did they understand their obligations? Then I had to submit forms at the end of each month signed by the chaperones that were in attendance. The entire obligation imposed on me by you and your cohorts from the HCCC was because of a fabricated litany of lies concocted by a pathological hysteric who is a lawyer. What a great client you had, she must be an absolute disappointment to the Osteopathic Council committee.
In a letter dated 6 October 2010 (exhibit 80) the Respondent stated that he considered that the conditions imposed upon his Registration restricted his practice to the level of mediocrity prevalent in most modern osteopathic practices in NSW and accused the Council of bias against him based upon the fact that he had been a leading witness against some of their 'friends' in malpractice cases.
The Tribunal notes that the conditions were not placed upon the Respondent's Registration as a result of the complaint of one female patient.
By way of a summary the Tribunal has found Particulars 1, 2, 3, 4, 5, 8, 9, 10, 11, 15, 16, 20, and 22 of Complaint Two established, each constituting unsatisfactory professional conduct. Jumping ahead to the section of Complaint 5 dealing with the Particulars of Complaint Two the Tribunal finds that the conduct of the Respondent in relation to Particulars 1, 2, 3, 4, 5, 8, 9, 10, 11, 15, 16, 20, and 22 considered together amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration and makes a finding of professional misconduct. This finding would be made by the Tribunal on the basis of any three of the above Particulars being considered together as it indicates a blatant disregard for the conditions placed upon him.
[43]
Complaint Three
Complaint Three of the Complaint made by the HCCC dated 31 July 2013 relates to alleged contraventions of the legislative provisions for notices to be issued by the HCCC under s34A of the Health Care Complaints Act 1993.
[44]
Complaint Three - Background
The Complaint Three as put before the Tribunal and background provided reads as follows:
[45]
COMPLAINT THREE
The Respondent is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has:
1. contravened section 34A(4) of the Health Care Complaints Act 1993; and/or
2. engaged in conduct that demonstrates the care exercised by the practitioner in the practice of osteopathy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (particulars 4 and 5 only).
[46]
BACKGROUND TO COMPLAINT THREE
If the Health Care Complaints Commission ("the Commission") is of the opinion that a person is capable of giving information or producing documents (including medical records) that would assist in the investigation of a complaint, the Commission may by notice in writing given to that person, require them to provide information or produce documents to the Commission. This power is conveyed by Section 34A of the Health Care Complaints Act 1993 and as such the written notice is referred to as a "Section 34A Notice".
A person who is required to provide information or documents pursuant to a Section 34A Notice must not, without reasonable excuse, fail to comply with the requirement.
[47]
PARTICULARS OF COMPLAINT THREE
1. On 3 August 2011, the Commission issued a Section 34A Notice to the practitioner, requiring him to produce to the Commission by 29 August 2011 clinical records of all patients, staff members, chaperones, appointments and billing information in relation to all the practitioner's female patients treated since 20 September 2010. The practitioner failed, without reasonable excuse, to comply with the requirements set out in the Notice by 29 August 2011 or at any later time.
2. On 18 October 2011, the Commission issued a Section 34A Notice to the practitioner, requiring him to produce to the Commission by 9 November 2011 clinical records in relation to specific patients treated by the practitioner on specific dates between September 2010 and July 2011. The practitioner failed, without reasonable excuse, to comply with the requirements set out in the Notice by 9 November 2011 or at any later time.
3. On 10 January 2012, the Commission issued a further Section 34A Notice to the practitioner, requiring him to produce to the Commission by 3 February 2012 the same clinical records as set out in the Section 34A Notice dated 18 October 2011. The practitioner failed, without reasonable excuse, to comply with the requirements set out in the Notice by 18 October 2011 or at any later time.
4. In the alternative to Particulars 1 - 3, the practitioner failed to create and/or maintain adequate clinical records for the patients named in the Notices to whom he provided osteopathic treatment between September 2010 and January 2011.
5. By his conduct as set out at Particular 4, the practitioner breached the Osteopathy Board of Australia's Code of Conduct for Registered Health Practitioners, in particular standard 8.4.
Complaint Three relates to the failure of the Respondent to comply with s34A(4) Notices issued by the Health Care Complaints Commission (HCCC). Section 34A(4) of the Health Care Complaints Act 1993 provides for the HCCC to issue a written notice to any person it is of the opinion is capable of giving information or producing documents (including medical records) that would assist in the investigation of a complaint. The Tribunal notes that investigative powers such as Section 34A Notices assist the HCCC to effectively investigate allegations relating to health care providers.
Particular 1 of Complaint Three relates to the Section 34A Notice issued by the HCCC on 3 August 2011 (exhibit 109). The covering letter clearly informed the Respondent that failure to comply without reasonable excuse may constitute unsatisfactory professional conduct and attract a penalty of $2,200. The material requested in the Notice is set out above. In the opening paragraph of the Notice there is reference to its investigation of a complaint that he had breached the conditions placed upon his registration by the Osteopathy Council of NSW requiring a female chaperone to be present whilst he was providing 'osteopathic and/or chiropractic services'. Items 5 and 6 of the Notice requires the appointment book for consultations with patients to whom he was providing 'osteopathy or chiropractic services' as well as all documents relating to invoices and bills issued to patients for such services since 20 September 2010.
The Respondent replied to the HCCC on 12 August 2011 (exhibit 110). The Respondent advised the HCCC that he had already informed the Osteopathy Council that his criminal matter was before the District Court on 15 August 2011 and he needed to make preparations for representing himself. The letter continues 'You and the Council ignore this simple plea to give me some time to prepare a robust defense [sic] of this matter by once again making demands on my time, and further trying to disrupt my preparation'. The Respondent states that he had already had his staff 'record the receipts' from his practice; however, he would not supply the requested material until he had an answer to a 'legal question' as to what constitutes an 'Osteopathic manipulation or treatment'. Later in this same letter the Respondent noted that he had asked this same question of both the Osteopathy Council of NSW and the Chiropractic Council of NSW and had not received an answer.
The Respondent also stated in this letter to the HCCC that he had already informed the Osteopathy Council of NSW that his 'clinic diaries' had been seized by Wagga Wagga police. He also stated that the police had seized the hard drive of his 'personal' computer and that the external hard drive 'used by my practice as a backup file' had failed. The Tribunal notes that the Respondent does not account for the actual practice computer as opposed to his 'personal' computer. The Tribunal also observes that the search warrant video shows that the hard drive of a computer was located by police when they searched a storage area attached to the Respondent's practice premises. The Tribunal further observes that this computer had post-it notes with contemporary information written on them and it did not show any signs of being covered by dust like the other stored items.
The Respondent also stated in his letter to the HCCC that Ms Howard had removed from the filing cabinet all clinical forms relating to patients that were either not current or where the files were more than 10 years old and they were placed in the storage area attached to the practice. Over time these files had been shredded and the only remaining files had been removed by the police when they executed the search warrant. The Tribunal notes that a box of documents in the mouldy and damp condition described by the Respondent is shown on the search warrant video. The Tribunal also notes that no clinical files were found in the Respondent's filing cabinet by police. The only clinical record located in the practice where some clinical notes and papers regarding Patient D which were located in a draw of the desk in the office/reception area of the practice interspersed with pornographic material.
The Respondent details in this letter the likely contents of his clinic diary and asserts that he 'may be incriminating' himself by indicating on his receipts which modality he is utilising for a particular patient unless he is provided with a 'clear legal definition on what constitutes an Osteopathic manipulation' from either the HCCC or the Osteopathy Council.
The HCCC responded to the Respondent's letter of 12 August 2011 in its letter dated 23 August 2011 (exhibit 111). The letter from the HCCC seeks to clarify exactly which documents the Respondent asserts are in the possession of the police and those he asserts are no longer in existence. The HCCC reminds the Respondent of the Code of Conduct requirement for Registered Health Practitioners in relation to patient records. The HCCC declines to provide a legal definition of osteopathic treatment on the basis that it does not consider it is the role of the Commission to set standards or legally define the nature of treatment. Taking into account the criminal matter the HCCC extend the time for compliance with the Notice to 23 September 2011.
This same letter notes a further complaint had been received (from the Chiropractic Council of NSW alleging breaching of conditions) and encloses a further Notice (23 August 2011 Notice). Apart from seeking contact details for female patients treated since 16 September 2010, their clinical records and details of the chaperones present during their treatments the Notice also requests details of the staff employed by the Respondent since 16 September 2010.
In a letter dated 7 March 2011 the Respondent states that copies of some of the documents requested in the S34 Notice are in the possession of the Osteopathy Council of NSW and suggested that the HCCC obtain copies from it. With respect to the clinic diary the Respondent states it is a 'personal diary' as well as a diary that records patient appointments and asserts that the HCCC therefore have no 'legal right' to the diary nor does he have 'any legal obligation to comply with your fishing expedition'. The Respondent explained that when he had sought 'courts' to have people produce documents under subpoena he was 'knocked back' on the basis of it being a 'fishing expedition'. The Respondent then offered to supply the HCCC with details of appointments for any specifically named patients. The Respondent also asserted that he does not hold copies of pathology or radiology reports for any patients on the basis that these belonged to the patients. The Tribunal will not deal with the clinical ramifications of this practise save to say such reports are integral to proper clinical records if they relate to the treatment being provided.
As to hard copies of clinical records, the Respondent (in the letter of 15 September 2011 - exhibit 112) asserts that the 'hard copies' of current clinic operating files are essential to running his clinic. The letter continues:
If I was to yield to your demand to produce to you my entire clinic file on female patients which I have in my possession, you would be directly responsible for placing the health and safety of those same people in jeopardy, one of the very reasons the HCCC was created.
The Respondent goes on to state that if the HCCC paid for photocopying and staff overtime he would provide 'photocopies' of these records. At this point the Tribunal notes when police entered the Respondent's practice premises on 15 June 2011 they were only able to locate documents that may fall in the category of patient clinical records for one 'current' patient (Patient D). There was a box of 'mouldy and damp' patient record documents which the Respondent stated were awaiting destruction as they were over ten years old or not current. The Tribunal is unable to reconcile the Respondent's statement as at 15 September 2011 that he was unable to part with the original clinical files he had been 'keeping since May 2011' when these documents were not produced to police in June 2011. The Tribunal notes that the police specifically asked the Respondent to produce such records in accordance with the terms of the search warrant and the Respondent advised that no hard copy documents existed and the electronic copies were on failed electronic devices. Further, the Tribunal notes that a thorough search by police failed to find any records that could fall in to the description provided by the Respondent (apart from the records of Patient D).
Ultimately the Respondent either did not supply the documents requested in the time frame stipulated (as extended) or at all. The Tribunal finds the Respondent did not comply with the S34 Notice served upon him by the HCCC in accordance with the relevant legislative provisions and that he did not provide a reasonable excuse for such failure. The Tribunal finds Particular 1 of Complaint Three established and in accordance with s 139 B of the National Law finds the Respondent guilty of unsatisfactory professional conduct.
Particular 2 of Complaint Three relates to a S 34A Notice issued by the HCCC on 18 October 2011 (exhibit 114). The Notice required the Respondent to produce documents and to appear before HCCC Investigators to answer questions on 9 November 2011. In the covering letter for this Notice the HCCC addresses some of the issues raised by the Respondent in his letter of 15 September 2011, in particular it reinforces the provisions relating to S34 Notices operate 'despite any other law'.
The Tribunal notes the S34 Notice includes requests for treatment records of a number of female patients for specific consultations from late 2010 into 2011.
The Respondent attended the interview with the HCCC Investigators on 9 November 2011 (transcript at T98). At the commencement of the interview the Respondent informed the investigators that he could only remain for one hour as his wife had been diagnosed with cancer the week before and was having a procedure that day. The Tribunal notes that the Respondent gave evidence that over the years osteopathic and chiropractic adjustments/manipulations had 'merged' and that 'both professions have stolen, blatantly, from each other'. The Tribunal observes the disconnect between this view and the Respondent's repeated requests to be supplied with a definition of osteopathic services.
The HCCC personally served the Respondent with a further letter on 20 December 2011 (exhibit 115) which noted that the Respondent had not supplied the documents requested in the 18 October 2011 Notice. It further noted that the Respondent had not provided any explanation as to why he had not produced these documents (despite having had the additional opportunity of speaking to the HCCC investigators that interviewed him on 9 November 2011). The HCCC also advised the Respondent that they had received information from the company that had attended to repairs of his computer in July 2011 and understood that no data loss could have resulted from the repairs. The Health Care Complaints Commissioner then stated that he believed that the Respondent was capable of giving information and documents requested and extended the time for compliance with the Notice to 16 January 2012.
On 21 December 2011 the HCCC provided the Respondent with a bundle of documents which contained information that would have provided assistance in the gathering of the material requested in the Notice (schedules of claims paid by various health insurers, patient statements etc). The covering letter formed exhibit 116 in this matter. The Respondent's letter of 17 February 2012 (exhibit 120) notes that the HCCC letter dated 21 December 2011 was served upon him in late January 2012 when he returned from 'annual leave'. The Respondent's letter also advised that he had commenced working on the information required for the first person listed in the Notice and would work his way through the rest 'as time becomes available' and would be included in his Section 40 response. The Respondent also asserts that all previous correspondence he has had with both the Osteopathic and Chiropractic Councils of NSW were 'Privileged Documents' which could not be used without his permission.
The Respondent did not comply with the request for documents in the S34 Notice issued on 18 October 2011 in accordance with the relevant legislative provisions and that he did not provide a reasonable excuse for such failure. The Tribunal finds Particular 2 of Complaint Three established and in accordance with s 139 B of the National Law finds the Respondent guilty of unsatisfactory professional conduct.
Particular 3 of Complaint Three relates to a S34A Notice issued by the HCCC on 10 January 2012 (exhibit 117) requiring documents to be provided by 3 February 2012. The covering letter that accompanied this Notice enclosed further statements to assist the Respondent. The covering letter also provides the Respondent with details of the complaint made by Patient C.
The Respondent replied to the Commissioner by letter dated 30 January 2012 (exhibit 118). It is apparent from this letter that the HCCC had requested Mrs Black to provide a statement. The Respondent stated that she was too ill to comply with this request as a result of recovering from surgery for bowel cancer, suffering nervous shock from having been served with the request for a statement, the nervous shock ultimately causing pulmonary complications that warranted two days of hospitalisation and leaving her with 30% lung capacity and needing to take anti-depressant medications.
The Respondent advised the HCCC in the 30 January 2012 letter that he was unable to comply with the request of the HCCC as he was the sole carer for his wife. Further, the Respondent stated he would be unable to reply to the request unless he was provided with another statement from Patient B and photocopies of the diary that she relied upon during the criminal proceedings 'or any other diaries in which the details off the trials are recorded or relied upon'. The HCCC responded to this letter on 3 February 2012 advising the Respondent that he had all statements made by Patient B in its possession and advising it did not hold copies of Patient B's diary.
The Respondent wrote to the HCCC on 3 March 2012 (exhibit 121) in response to the 2 February 2012 letter (exhibit 120). The Respondent's letter contains another example of the Respondent seeking to assert a version of the 'Law' that is, in the view of the Tribunal, misguided at best. Relevantly, the Respondent states he was attempting to 'wade through' the pile of documents that the HCCC had provided to him but the time he had available to attend to this task was limited due to the amount of care required by his wife. The Respondent also stated that he was also attempting to locate information from the State Ombudsman, notes he had taken from Patient B's diary, 'paperwork from solicitors, barristers, courts, the HCCC, DPP hand writing experts, document examiners, ink analysis etc etc'. The Respondent ends the letter 'I will be in touch again, time permitting'.
The Tribunal has before it some scant evidence of the ill health of the Respondent's wife. The Tribunal appreciates that illness of a spouse will ordinarily require a dedication of time. As indicated, there is scant evidence as to the level of care that was required by Mrs Black. However, the Tribunal has had regard to the period of time over which the Respondent failed to comply with the S34 Notices issued, the legislative force of these Notices and the lack of genuine attempts even to provide partial compliance. In all of the circumstances the Tribunal finds that the ill health of the Respondent's wife is not a reasonable excuse for failure to comply with any of the S34 Notices issued by the HCCC.
The Tribunal also notes the HCCC wrote to the Respondent on 20 March 2012 summarising the information that had been requested by the various Notices and making the following observations:
The Respondent had explained he no longer possessed the clinical notes for Patient A as the treatment was provided 24-30 years earlier but did not provide a reasonable excuse as to why he had not produced records for the 88 other patients
Although the Respondent stated he was unable to provide clinical records due to a computer malfunction the Commission had received information that the computer repairs occurred between 1 and 15 July 2011, the repairer stating that no data loss would have occurred
The Respondent had provided limited information in his letters of 30 February 2012 and 15 March 2012 (in response to a Notice requiring compliance by 3 February 2012) regarding one patient and had not provided the evidence he referred to as having been obtained for the purpose of the criminal proceedings
The Respondent had failed to provide any of the material relating to Patient B and Patient C
The Respondent had not provided any evidence that would show his wife's illness had affected his ability to comply with the Notice
The HCCC informed the Respondent that a recent Professional Standards Committee had expressed the view that merely disagreeing with the underlying complaint does not provide a reasonable excuse for failure to comply with a S34 Notice
The HCCC noted the Respondent's request to be provided with further evidence relating to Patient B (including photocopies of personal diaries) and advised that s16 of the Health Care Complaints Act only required it to provide written notice of the making of the complaint, the nature of the complaint and the identity of the complainant
The HCCC noted the Respondent's assertion that he had spoken to all the people he had trained as naprapaths and none had been approached by the HCCC to provide an expert opinion and drew the Respondent's attention to s98 of the Health Care Complaints Act which creates an offence to intimidate or induce, persuade or attempt to persuade another person not to have discussions with the Commission concerning a complaint.
The Tribunal finds the Respondent did not comply with the S34 Notice issued by the HCCC on 10 January 2012 in accordance with the relevant legislative provisions and that he did not provide a reasonable excuse for such failure. The Tribunal finds Particular 3 of Complaint Three established and in accordance with s 139 B of the National Law finds the Respondent guilty of unsatisfactory professional conduct.
Particular 4 of Complaint Three is an alternate Particular to Particulars 1 to 3 of Complaint Three. Relevantly, this alternate must be limited to the clinical records sought in the various S34 Notices and not to invoices/bills relating to services he had provided as sought in the Notice issued on 3 August 2011 (Complaint Three - Particular 1).
The Tribunal accepts the evidence of many of the witnesses that they did not observe the Respondent making any notes. Further there is no example of appropriate clinical notes before the Tribunal despite the police having executed a search warrant at the practice and the HCCC having issued multiple S34 Notices for such documents. The clinical notes relating to Patient D located by the police are not considered by the Tribunal as 'adequate'.
Further, the alternate pleading of this Particular excludes the possibility that the Respondent failed to create and/or maintain adequate clinical records for some, but not all, of the patients named in the S34 Notices and/or that he deliberately destroyed or removed them from his practice premises.
Particular 4 is pleaded in the alternative. The Tribunal notes that if the Respondent could not access electronic copies of his clinical records then this would be a failure to maintain notes properly. The Tribunal is of the view that if a practitioner chooses to keep notes electronically then it is incumbent on the practitioner to have a fail proof system (for example, have several backups at different physical or electronic locations). Not only is it an obligation imposed by the Code of Conduct (as recorded in Particular 5 of Complaint 3), it is an essential part of professional practice. Clinical records allow for the appropriate planning of care, the continuity of care where another practitioner provides treatment, the provision of accurate reports to relevant third parties and importantly they provide the basis for evidence of the practitioner's treatment during each consultation. The Tribunal is of the view that the creation and maintaining of adequate clinical records is a fundamental obligation that accompanies the privilege of registration.
In considering whether the unsatisfactory professional conduct of the Respondent established in this Complaint amounts to professional misconduct as pleaded in Complaint Five the Tribunal has had regard to the conduct of the Respondent. Not only did the Respondent fail to comply with the Notices validly issued by the HCCC he responded in a defiant and obstructive manner. On occasion he indicated he was making attempts to comply whilst generally challenging the entire process.
Having regard to all the circumstances the Tribunal finds that the conduct of the Respondent is of a sufficiently serious nature to justify suspension or cancellation of registration and a finding of professional misconduct is made.
[48]
COMPLAINT FOUR
The Respondent is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has:
1. contravened a provision of the Health Practitioner Regulation National Law (NSW), whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
[49]
BACKGROUND TO COMPLAINT FOUR
In accordance with section 130(1) of the National Law a practitioner must, within 7 days of becoming aware that a 'relevant event' has occurred in relation to the practitioner, give the National Board that registered the practitioner written notice of the event.
In accordance with section 130(3)(a) of the National Law a 'relevant event' includes when a practitioner is charged, whether in a participating jurisdiction or elsewhere, with an offence punishable by 12 months imprisonment or more.
On 9 August 2010 the practitioner was charged by NSW Police with one count of Assault female & commit act of indecency age < 16 yrs, pursuant to Section 76 of the Crimes Act 1900, which carries a maximum penalty of 6 years imprisonment.
[50]
PARTICULARS OF COMPLAINT FOUR
1. The practitioner failed, within 7 days after being charged by police on 9 August 2010 to give the National Board written notice of this event, as required by Section 130(1) of the National Law.
The Tribunal notes the contents of the letter from the Respondent (letter dated 7 March 2011 - part of exhibit 83) to the Osteopathy Council constituting the initial response of the Respondent when the subject matter of this Complaint was raised included the following:
I am quite aware one of the provisions of my registration is I have to notify the Council of any allegations of misconduct. However, I would like to point out to you that the alleged offence was forty years ago, eight years before the Chiropractic and Osteopathic Boards were constituted by an Act of Parliament.
The Osteopathy Council has no legal jurisdiction over this matter and it will only become an issue for the Council if there is a conviction recorded in relation to the charge, then my good character is at issue. The Osteopathy Council has no retrospective powers, unless I am found guilty of the offence charged. [emphasis added by Tribunal]
This same letter then goes on to quote from Article 11 of the United Nations Charter on Human Rights which relates to the presumption of innocence and raises issues either irrelevant to the matters at hand, are critical of the process and the conduct of the HCCC or are misrepresentations or simply incorrect statements.
The Tribunal accepts the HCCC submission that this is an admission by the Respondent that he was aware of the obligation to inform the Council. The Tribunal also accepts the HCCC submission that the Respondent's explanation for why he had not contacted the Board is a 'nonsense' and also accepts that it is indicative of his inclination to interpret requirements in a way that is most advantageous to himself.
The Respondent failed to inform the Board within 7 days that he had been charged by NSW Police with one count of assault female and commit act of indecency age<16 years (pursuant to Section 76 of the Crimes Act 1900) being a 'relevant event' in accordance with s130(3)(a) of the National Law as it is an offence punishable by 12 months imprisonment or more.
The Tribunal finds the Respondent guilty of unsatisfactory professional conduct as he failed to inform the Board of the charges made against him by NSW Police on 9 August 2010. Given all of the circumstances of this matter, not in the least the nature of the criminal charge made against him and the Respondent's deliberate failure to comply with this statutory obligation, the Tribunal is of the view that this conduct amounts to professional misconduct (as pleaded in Complaint Five).
[51]
COMPLAINT FIVE
The practitioner has been guilty of professional misconduct within the meaning of section 139E of the National Law in that he has:
1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or
2. 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 suspension or cancellation of the practitioner's registration.
[52]
PARTICULARS OF COMPLAINT FIVE
The particulars and allegations identified in Complaints One to Four are repeated and relied on.
Whilst the similarity of the evidence of the patients could be overwhelming, the Tribunal has taken great care to consider each Particular individually when determining whether a matter amounts to unsatisfactory professional conduct. The modus operandi, the manner in which the underwear was removed by the Respondent, the similarity of language reported as used by the Respondent to cajole the patients into compliance, the pattern of escalation of behaviour and the nature of the inappropriate touching engaged in and the physical appearance of the patients in Complaint One are all remarkably similar if not identical.
Similarly, the Tribunal has proceeded with great care when making findings as to whether or not it considered the conduct to be of a sufficiently serious nature to warrant a finding of professional misconduct so that the similarities are only accorded a legally appropriate role.
Where the Tribunal has indicated above a finding of professional misconduct it should be noted that this finding is also relevant to Complaint Five and has only been recorded against Complaints One, Two, Three and Four for ease of reference.
The Tribunal also notes that the statutory definition of professional misconduct includes the provisions of s139E which allows the Tribunal to consider more than one instance of unsatisfactory professional conduct together when making findings of professional misconduct.
The Tribunal has made a number of findings of unsatisfactory professional conduct with respect to Particulars set out in Complaints One, Two, Three and Four.
For ease of reference and by way of summary the Tribunal makes findings of unsatisfactory professional conduct with respect to each of the following Particulars of Complaint One: 1(a), 1(b), 1(c), 2(a), 2(b), 3(a), 4(a), 5(a), 6(a), 6(b), 6(c), 7(a), 8, 9(a), 10, 11(a), 12, 13, 14, 15(a), 15(b), 15(c), 15(d), 16(a), 16(b), 17(a), 18(a), 18(b), 19(a), 19(b), 20(a), 20(b), 20(c).
By way of summary the Tribunal makes findings of unsatisfactory professional conduct with respect to each of the following Particulars of Complaint Two: Particulars 1, 2, 3, 4, 5, 8, 9, 10, 11, 15, 16, 20, and 22.
The Tribunal also made findings of unsatisfactory professional conduct with respect to Complaint Three - Particulars 1, 2 and 3.
The Tribunal made a finding of unsatisfactory professional conduct with respect to Complaint Four.
For ease of reference and by way of summary the Tribunal makes findings of professional misconduct in accordance with s139E of the National Law with respect to the following Particulars of Complaint One: 1(a), 1(b), 1(c), 2(a) & (b) considered together, 3(a), 4(a), 5(a), 6(a), 6(b), 6(c), 7(a), 8, 9(a), 10, 11(a), 12, 13, 15(b) & (c) & (d) considered together, 16(a) & (b) considered together, 17(a), 18(a) & (b) considered together/18(b) alone, 19(a) & (b) considered together/19(b) alone, 20(b) & (c) considered together
By way of summary the Tribunal makes findings of professional misconduct with respect to the following Particulars of Complaint Two: professional misconduct considering any three of Particulars 1, 2, 3, 4, 5, 8, 9, 10, 11, 15, 16, 20, and 22 together.
The Tribunal also made findings of professional misconduct with respect to Complaints Three and Four.
For the reasons set out above Complaint Five is established as indicated.
[53]
COMPLAINT SIX
The practitioner is not a suitable person to hold registration as an osteopath within the meaning of section 144 of the National Law.
[54]
PARTICULARS OF COMPLAINT SIX
The particulars and allegations identified in Complaints One to Four are repeated and relied on.
As stated elsewhere in this document, the Tribunal is not proceeding to make a finding with respect to this Complaint given the 'Two Stage' approach that has been adopted. The Tribunal will determine Complaint Six in 'Stage Two'.
[55]
Future conduct of the matter - two stage hearing
The Tribunal reserves with respect to a finding regarding Complaint 6 and the Orders that would flow from this finding and the findings made above regarding Complaints 1 to 5 inclusive.
As noted above this matter proceeded as a 'two stage' hearing. To facilitate 'Stage Two' the Tribunal orders:
1. A Directions Hearing is set for 9.30 am on 17 February 2015 for the purpose of directions regarding 'Stage Two' of the proceedings, including a finding with respect to Complaint Six.
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: 12 February 2015
The HCCC also made reference to comments made by the Tribunal in HCCC v Quirk [2007] NSWPST 5 at [75] as follows:
Registration is a responsibility not a right. Registration must be held in the most serious and high regard with those to whom it is granted.
The Tribunal considers that there is no material difference between the conditions placed on registration by a committee or tribunal and those imposed by a Council or Board.
Before dealing with the individual Particulars of Complaint Two the Tribunal notes some evidence relevant to the question of chaperonage.
Ms Megan Thomson gave evidence by telephone on 13 June 2014. Under oath Ms Thomson gave evidence that she is currently working as a naprapathic massage therapist, having worked for the Respondent between 2002 and 2008. The general pattern of work for Ms Thomson in the Respondent's practice was mornings until midday.
Ms Thomson stated that she had never been asked by the Respondent to be a chaperone although she was 'always in and around him' and she could hear what was happening in the other treatment room so if someone shouted 'stop it' she would have been able to hear (T166.27-31). Ms Thomson stated that she occasionally saw the Respondent's wife going in or out of a treatment room but could not recall her staying in a room whilst a female patient was being treated - adding that she (Ms Thomson) was so busy working that she did not have time to 'admire the scenery' (T166). Ms Thomson did not observe Mrs Black do any work on the patients or attending to other duties such as changing the linen (T164.34-39).
Ms Thomson stated that although she had seen the Respondent preparing to do an internal examination she had not seen the Respondent undertake one and was never asked by the Respondent to remain in the room (T167).
Ms Thomson gave evidence regarding the usual procedure followed during the morning appointments where she would be in one room performing the initial massage on a patient then leave that patient in the treatment room and move onto a new patient who was waiting in the other treatment room. She would sometimes be in the same room as the Respondent, in particular when there was only one patient in the practice, but usually they would cross over between the rooms as they worked through the patients during the morning.
As noted above, Ms Thomson only worked in the Respondent's practice during the morning, leaving at about midday. The masseur role was then performed by Ms Howard for the afternoon appointments.
Ms Thomson also gave evidence that she had studied naprapathic massage therapy with the Respondent and he had provided her with a qualification in this 'field'.
Ms Howard also gave evidence to the Tribunal by telephone on 13 June 2014. At the time she gave evidence Ms Howard was undertaking training to be an Assistant in Nursing. Ms Howard had worked for the Respondent for about 4 years, ending in about 2008. She worked three or four days a week commencing at about 2pm and ending at 6 or 7pm. Occasionally she worked a full day but went home during the lunchbreak (12 to 2pm). Ms Howard stated the other afternoon was covered by another masseur, Ms Megan Thomson. Ms Howard described the same work flow pattern as described by Ms Thomson (and every other witness that gave evidence on this topic). A patient would be shown into one of the two treatment rooms once it was available. After they had changed into a gown Ms Howard would perform the initial massage treatment. The Respondent would then provide them with treatment whilst she moved on to providing massage for the next patient who would be waiting in the other treatment room. Ms Howard gave evidence that the doors to the treatment room were nearly always closed for privacy reasons, and if they were open then they would only be slightly open (T218).
Ms Ashlee Hancock also gave evidence regarding the pattern of her work in the Respondent's practice. Ms Hancock gave evidence via Skype from her lawyer's office. After initially stating that she watched every patient being treated by the Respondent (T239) she then accepted that they may each have been treating different patients at the same time (each patient being in a one of the two treatment rooms) (T248), although if this happened the doors would be left partially opened (T241). Ms Hancock then stated that she was in the room most of the time whilst the Respondent provided treatment (T250). Ms Hancock gave evidence that she did not really know what 'to act as a chaperone' meant (T242.23).
The HCCC invited the Tribunal to find it cannot rely upon the evidence of Ms Hancock unless it is otherwise independently corroborated so far as is necessary in considering the matters in this Complaint. The HCCC bases this submission on the evidence before the Tribunal including the search warrant video. The Tribunal accepts this submission and prefers the evidence of the patients to that of Ms Hancock.
The Tribunal also notes that the police search warrant video records Mrs Black entering the practice part of the Respondent's premises sometime after the police arrive. The practice is located on the lower storey of the Respondent's home. Patients are able to access the practice by walking up the driveway of the home and entering via a door at the side of the home. There is also a doorway that leads upstairs to the private residence part of the premises. It is through this door that Mrs Black is seen to enter the practice during the execution of the search warrant.
One final matter of more general applicability to note is the evidence before the Tribunal regarding the nature of the service provided by the Respondent on the occasions of service recorded in the Particulars of Complaint Two. For many of the occasions of service the Tribunal has records from the health insurer for the relevant patient which states the benefit paid to the patient was for osteopathic treatment. In many instances the insurer has provided copies of the original receipts provided to the patient. Having perused these receipts the Tribunal observes that under the name of the Respondent (which is followed by qualifications recorded as D.O., D.C., N.D.) are the words 'osteopathic - chiropractic - naturopath'. The receipts relating to the Particulars of Complaint Two have a large tick over the word 'osteopath'. Other receipts provided by the health insurers (in answer to requests from the HCCC to provide information) have a large tick over the word 'chiropractor'. The Respondent urged the Tribunal to make a finding to the effect that the patients had added the 'tick' over the word 'osteopath'. The Tribunal observes the receipts also have two practice addresses printed on them (being the Balgowlah and the Wagga Wagga premises) and that there is a large tick over one of these practice locations. Not only does the Tribunal have many signed statements (supported by oral evidence in many instances) from the patients to the effect that they made no alteration to the receipts prior to lodging them with their health insurer, it would be a bizarre phenomenon if such a large number of patients made similar alterations to receipts in order to obtain the alleged increased benefit from their respective health insurers as well as using the same selection method (a large tick) to indicate the practice location. The Tribunal finds that the Respondent was providing or purporting to provide osteopathic treatments at the relevant events of service described in Complaint Two.
The Particulars of Complaint Two are broken up into three sections - each relating to a period of time when a particular set of conditions was on the Respondent's registration.