Health Care Complaints Commission v Cheng

The Standard of Proof

1. Before commencing our examination of the evidence given in the proceedings, it is appropriate to set out the relevant principles which will govern our determination of the factual issues. The principles themselves are not controversial, but their application may cause difficulty, as is the case in these proceedings.
2. It is generally accepted that we are required to be "comfortably satisfied" that the matters in the complaints have been established on the balance of probabilities. The well-known principles established in Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336 apply. At 361 - 363 Dixon J, as his Honour then was, said: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: "No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct" (Panama and South Pacific Telegraph Co. v India Rubber, Gutta Percha, and Telegraph Works Co.). In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best J. said: "I admit, where presumption is attempted to be raised, as to the corpus delicti, that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling cause that can be tried in Westminster Hall" (R. v. Burdett). It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty" (Cf. Mowatt v. Blake; Kisch v. Central Railway Co. of Venezuela Ltd.;Lumley v. Desborough). This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson; Boyce v. Chapman; Vaughton v. London and North Western Railway Co.; Hurst v. Evans; Brown v. McGrath;Motchall v. Massoud; Nelson v. Mutton; Gerder v. Evans; sed quœre as to the statement of Swift J. in Herbert v. Poland see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (citations omitted) Briginshaw involved a consideration of the proof of adultery in family law proceedings. We find the following observation of Dixon J of assistance, albeit that it is applied to considerations of adultery at 368-369: Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find.
3. We shall return to these matters when considering what weight is to be given to the evidence of the patients and the difficulties faced by the respondent because of the age of some of the complaints in the proceedings.

THE EVIDENCE

1. A great deal of documentary material was tendered into evidence which, where relevant, we shall describe during the course of these reasons for decision. This documentation included that which was available concerning each of the patients who are the subject of the several complaints made in these proceedings. Each of these patients gave oral evidence.
2. We shall commence our discussion of the evidence by referring to that which was given by and produced in relation to each patient.

Patient A

1. The circumstances of this patient came to the attention of the complainant because of a mandatory report initiated by a psychologist. The psychologist was participating in a psychological assessment of this patient when she was informed that the respondent had conducted himself inappropriately when examining the patient. The mandatory report was initiated on 20 March 2014.
2. There is in evidence a statement from this patient given to an investigator employed by the complainant dated 15 September 2014. As at that date the patient was aged 34. In that statement the patient set out the circumstances of her first encounter with the respondent. This was "around 1992", when the patient was about to turn 13. She had an asthma attack and was taken by her mother to see the respondent. Nothing untoward occurred on that occasion. Then, sometime in 1993 when the patient was going through puberty and experiencing growing pains, some lumps in her breasts, and moles on her back she went with her mother to see the respondent. Her mother left her alone with the respondent. She said the respondent asked her to take all her clothes off, and did not say why. She thought it unlikely that she was wearing a bra at age 13. She could not recall if her underpants were left on. She said that the respondent stood behind her "and reached forward around me and grabbed my breasts. He did not tell me he was going to touch my breasts and it was not like he was examining my breasts as it did not feel like he was palpating them." She recollected that it seemed as though the respondent was fondling her breasts in a squeezing and massaging motion, although at the time she was unable to describe what occurred in terms of intimacy. She said that she was shocked because she thought that the respondent was going to look at the moles on her back. She felt uncomfortable and frozen and too scared to say anything or move. She recollected that the respondent had scaly dry hands as though he suffered from some kind of eczema. She remembered that the skin on his hands was peeling. She rotated her hips to look at the respondent and noticed that he had an erection. He was wearing grey suit pants at the time. The patient then turned back around and the respondent started feeling her all over her body. She said "He touched my breasts then my back all the way down then the top of my bottom. The way he was touching me was not like an examination. It was like a sweeping mass large motion. He did not touch my front private area. The whole period he was feeling me it was about five minutes."
3. The patient said that she was very upset and crying after this consultation but she did not want to tell her mother. She remembered feeling "sick and dirty and shame and guilt. I felt angry with my mum because she had left me there." She did not tell her father because they did not have a close relationship.
4. Subsequent to this consultation the patient said she became anxious, developed eating disorders and stop trusting people and going out. She felt as though she had done something wrong and that it was her fault.
5. In about 1995 the patient became very sick with vomiting and a fever. She said that she felt scared about going to see a doctor again but nevertheless went back to see the respondent. He again asked her to take all her clothes off including her bra and underpants. He did not say why she was to do this. She said that she felt very sick and helpless but wanted to believe that there was a good reason and that her previous experience was wrong. The respondent told her that he was going to feel her glands. He told to lie on the examination table and put a folded sheet which covered her bottom half. She said that the respondent first commenced feeling her breasts in the same squeezing motion as on the previous occasion and asked whether she was tender or sore. She said he touched her breast for a good 20 or 30 seconds, up to a minute. He then moved up to her neck as though he was checking her glands. He then "worked his hands down and felt my belly. He was palpating on my belly a bit, but then was touching me in a massaging motion." The respondent then palpated her abdomen and moved his hands down towards her groin and underneath the sheet. She said his hands were on both sides of her body from the abdomen down to the groin moving in a sweeping motion. He then asked to open her legs and moved his hands around her groin area. "He then palpated my labia on both sides he felt up until the bottom of my bottom cheek. He used both hands at the one time on either side of my labia. He did not feel inside me into my vagina." She told him that she had a discharge from her vagina. The respondent then asked the patient to turn over and she was lying on her side in a foetal position. The respondent felt from the top of her hip down to her bottom using both hands at the same time and placing them on either side of the body. He massaged her right bottom cheek with both hands, asked her to lift her right leg and then felt around her bottom with both hands. He did not feel inside her genitals but put one or two hands between her legs and felt around. He then asked her to turn around and touched in the same way on the other side. She thought that in total she was being touched in this way for about five minutes.
6. The patient said that she felt very scared and was scared to question the respondent. She trusted him as a doctor and did not believe that he would do something wrong.
7. Around this time her mother was suffering from nervous breakdowns and she did not want to discuss the problems with the respondent with her parents.
8. She continued to see the respondent when she was sick and on most occasions he would touch her in the same way. She convinced herself that it was not inappropriate that he do so, and that this was a normal way of conducting an examination.
9. As she grew older, the patient discussed the respondent's conduct with a number of persons including a school counsellor and, in 1995 or 1996 with her mother. Her mother did not react in a sympathetic manner.
10. In about 1996 when she was 17 years old the patient again went to see the respondent. She had lost her virginity, was bleeding, was in pain and worried about whether she had contracted a sexually transmitted disease. The respondent again asked her to take off her clothes, and again conducted a bodily examination in the same way as previously described. During the course of this examination he put gloves on and inserted his fingers into her vagina, "and swept around my vagina and pushed down." She said that he had inserted two fingers and it felt as though he had inserted them the whole way. Following this examination, the respondent had a "sex education talk" with the patient. Between the ages of 17 and 21 the patient continued to see the respondent. She said that in some consultations, but not all, the respondent would touch her in the same way as he had previously done by getting her to undress, touching her by using both hands to massage her breasts, touching her tummy and groin, including her labia. She said "he would not always touch inside my vagina when (sic) did the physical examinations. He only conducted the internal examination when I told him I had discharge or other vagina symptoms. During internal examinations he put gloves on and moved his hands in between my legs and then into my vagina with one or two fingers. He would then take a swab."
11. Subsequently the patient attended university, commenced studying nursing and then transferred to study of exercise and sports science. She graduated from University in 2002. The respondent stopped undertaking physical examinations of the kind described around the end of 2001 or in 2002.
12. The patient married and attended on the respondent with her then husband in about 2004 when she was pregnant. She thought that the respondent was a practising Catholic and hoped that he could persuade her husband that she should not have an abortion.
13. She last saw the respondent in 2006 for acupuncture.
14. Subsequently, the patient developed emotional problems and has been under the care of a psychiatrist and psychologist. It was not until after receiving treatment for a nervous breakdown in February 2014 that she felt that she was "ready now to deal with the issue" concerning her asserted abuse at the hands of the respondent.
15. In oral evidence the patient said that she had discussed her concerns about her involvement with the respondent with a school counsellor in 1996. In October 2006 she had again discussed her experience with the respondent with a counsellor at Westmead Hospital, and again in 2012 with a counsellor at a mothercraft Centre. She made a further disclosure about this matter in 2014 when receiving treatment in a hospital following a nervous breakdown.
16. Despite the clinical notes of the respondent indicating that patient A had continued to see him between 1993 and 1995, the patient said in evidence that she had no recollection of seeing him during this period.
17. In explaining in oral evidence why she continued to see the respondent until 2006, she said that she was afraid to see anyone else. She had convinced herself that the way in which he had examined her was normal. She could not see another doctor in case she found out that other doctors dealt with examinations of this kind differently. She did not want to be exposed to this situation and felt that she had to "keep her mouth shut."
18. In cross-examination patient A was taken to the statement which she had made to the investigator. This was the first occasion on which she had given a detailed written account of her recollections. Over the years, she had given some short oral account, particularly to counsellors and others who had taken short notes. The account given to the investigator took place over a couple of months, through email, telephone and a face-to-face communication in her home. She said that she had access to journals which she had kept which relate events which "I just can't forget." She said that since the birth of the children she has undertaken an inward exploration of what happened to her. There were events which she had never forgotten.
19. Counsel for the respondent undertook a detailed cross examination of the patient's recollection of her attendances upon the respondent dating back to 1988. At that stage, she would have been eight years old. She had no recollection of seeing the respondent between the ages of eight and eleven and she said that the incident in 1992 represented her first memory of seeing the respondent. When it was put to her that there were clinical records of the respondent which indicated that she had attended frequently on the respondent during this period, and in particular 11 times when aged eleven, the patient conceded that the records might be accurate but she said that she had no recollection of attending on the respondent during this period. It was then suggested that her lack of recollection might impact upon the reliability of her memory of the incident in 1992. She responded by saying that the opposite was true. She said that she had an asthma attack while swimming on a Friday afternoon, and she recollected her mother taking her out of the pool endeavouring to obtain treatment for her from a medical practitioner after 5 PM. She remembered her mother being desperate to find a doctor because she was unable to breathe properly.
20. When asked to recollect the occasions upon which she had made complaints concerning the conduct of the respondent to the school counsellor, at the Mother Craft Centre and to a psychologist, patient A denied that she had been asked leading questions and said that she had told each of them exactly what happened and why she thought that the respondent's conduct was inappropriate. She said that she was told by each of these persons that his conduct was wrong.
21. The patient specifically recollected attending on the respondent to have the moles on her back examined. Her father had been vigilant in having her moles checked because she was doing a lot of swimming and exposed to the sun. She said she did not know how many moles she had or where they were on her back. She thought that they were probably on her neck, shoulders and upper back because these were areas not covered by her swimming costume.
22. At one point in the cross examination it was suggested to her that the respondent had referred her to a specialist for treatment of her asthma, and she must have consulted him for this purpose. She said that the respondent often gave referrals over the telephone without the need for a patient to see him, because it was so difficult to make an appointment.
23. Patient A had no recollection of the respondent removing skin lesions and inserting sutures.
24. The patient said that the examination of her breasts conducted by the respondent in 1993 was, as far as she could recollect, the first time that she had undergone such an examination.
25. In cross examination patient A was taken to some notes made by the school counsellor. These notes indicate that she told the counsellor that the respondent removed her shirt and bra each time he examined her back and that his hand had touched her left breast. There is a notation that she told the counsellor that she had left the respondent's office "and never returned again." She said that it was possible that she might have told the counsellor this, but was unable to remember what she had told the counsellor. It is clear that patient A did return to see the respondent between 1993 and 1995, and until 2006 so that prima facie this aspect of the information that she conveyed to the counsellor was incorrect. However, given the totality of the evidence before us concerning this patient, and having regard to the manner in which she presented her evidence, to which we shall shortly refer, we do not regard this prima facie inconsistency as detracting from the gravamen of her evidence concerning her involvement with the respondent.
26. Patient A had also told the school counsellor that she had seen that the respondent had an erection during her consultation in 1993. In cross examination she conceded that she had never seen a male person with an erection before the consultation in 1993 and was asked how she could tell that the respondent had an erection. She responded that in year 6 she had learnt at school about sexual reproduction and had seen a diagram of a male erection.
27. In further cross examination the respondent's counsel carefully took patient A to many details of her statement. It is clear that some of her recollections concerning some of the dates are inaccurate, and that the patient endeavoured to fix dates by reference to other events in her life. In the absence of precise and contemporaneous diary notes or the like, this is not unexceptional. It is not necessary that we discuss the evidence that she gave during the course of the cross examination because, in general terms, we are satisfied that she gave her evidence to the best of her recollection, attempting to be as accurate and honest as was possible, in a credible manner and we accept her evidence as to what occurred on each of the occasions which are particularised in that part of the complaint which concerns this patient.
28. There are, however, some matters which arose from the cross examination which are worthy of mention. Patient A was taken to the vaginal examinations conducted by the respondent, and the manner in which he conducted them. She was adamant that he used two fingers to examine her vagina, sweeping around inside. She said that by 1990 she had become very conscious of her reproductive system because "all the focus of Dr Cheng was on my vagina… He gave me the impression that my vagina discharge was very bad." She said that the respondent informed her that he always had to examine her vagina.
29. Patient A said that by 1996 she felt sure that the manner in which she was being treated by the respondent was wrong. She accepted in 2006 that he had sexually abused her and she was unable to deal with this on a personal level.
30. We enquired of patient A about the manner in which the respondent examined her breasts. Apart from the first occasion when she was standing up, and he was standing behind her, on all other occasions she was lying down. She did not remember being required to lift up her arms for the purpose of any breast examination. Furthermore, patient A said that when the respondent examined her vagina, he used his fingers most of the time. She did not remember him using a speculum for the purpose of a vaginal examination, but he did use a speculum when taking Pap smears.
31. In submissions, the respondent submitted that "In summary, the recollections of the complainant, even allowing for the effluxion of time and her young age, and her problems in clearly remembering the events, are not supported by the medical records in a way that would assist the Tribunal. It is our submission that Patient A has conflated many occasions when she saw Dr Cheng, and mistaken many of those occasions in terms of what she was seeing him for, and what occurred, and possibly what she perceived. Her reasonably limited complaint to the school counsellor in 2006 about something that allegedly occurred in 2003, became a detailed and lengthy statement in 2014, some 20 years later. That has formed the basis of the Complaint, however the Particulars alleged are not supported by the evidence."
32. We agree with the response of the complainant to this submission. Many of the matters upon which the patient was cross-examined were peripheral matters and were directed, for example, to how many times she consulted the respondent over what period and for what purposes. However, this patient does profess to have a profound recollection of a number of occasions on which the respondent conducted physical examination of her breasts and vaginal area, and these are clearly recollections which have remained with her and which have had a significant effect on her emotional well-being. We accept that this patient does, even allowing for the passage of time, retain a significant memory of what she perceived to be an invasive and inappropriate series of examinations of her body.
33. There is no evidence of any motivation for this patient to have deliberately fabricated or inappropriately exaggerated her evidence concerning the conduct of the respondent. She was prepared to subject herself to giving oral evidence and, significantly, being cross-examined in great detail about her evidence. We accept her as a truthful witness concerning her recollection of events which have clearly remained vividly in her memory over a long period of time. Even allowing for some distortion caused by the effluxion of time, we accept her evidence concerning the significant matters contained in the Particulars of Complaint One. In making these observations we are conscious that the respondent has given evidence about these matters, and we do so in anticipation of our discussion of his evidence which, by necessity, is set out later in these reasons for decision.

Patient B.

1. This patient made a number of statements which are in evidence. In addition, she gave oral evidence and was subject to cross examination. The patient was born on 20 November 1979. At the time that the matters the subject of her involvement with the respondent took place she was residing at the Minali home, an establishment operated by the then Department of Community Services.
2. There is a handwritten statement made by this patient which bears date imprinted on it of 1 December 1993. It says that on Thursday, 10 October 1993 the patient went to "the doctor" for a checkup because she was told that everyone who came into Minali must have a checkup. There is no controversy that the doctor whom she visited was the respondent. In a handwritten statement the patient said that the respondent asked her what medication she was on. She told him that she was on "the pill" and Ventolin for asthma. She said in the statement he took her blood pressure and looked into her throat. He then asked her to lie on the bed. He listened to her heart and then informed her that she had two or three stretch marks on her right breast. He then commenced examining both breasts and her stomach. As he was examining her stomach he went "further down" and pulled down her trousers suit pants and then her underpants. She said that she became really scared because she could not see why he had to pull down her underpants. He touched her three times around her pubic hair and then told her to sit up. She said she pulled her pants up and got off the table. She was told to come back the following Thursday. She came back on the second occasion and she asked him for a prescription for her puffer. He said that he had to listen to her chest. The respondent motioned to her that she should sit on the bed and then asked her to lie down. She lay down and he again examined her breasts and ended up touching her on her pubic hair. She then sat up pulled up her pants and he told her to come back again the following Thursday. He wrote a prescription for her and then she walked out.
3. The next document is a copy of a statement given by Patient B to a police officer at the Unanderra Police Station on 16 December 1993. In that statement Patient B stated that she was 14 years of age and on 13 October 1993 she went to stay at Minali. She knew this because she had written it in her diary which was at that time still in her possession. She had written in her diary that she saw a doctor, whom we know to be the respondent on 14 October 1993. She saw him alone and described the room in which he conducted his examination. She said that she went to the room about 1:45 and that it was mandatory that she had a check-up by the visiting doctor. The patient said that she was suffering from bronchitis at the time and was using Ventolin. Apart from that she had no problems and did not need any medicine. The patient described what she was wearing namely black track suit pants with a white knitted jumper and white joggers.
4. Unfortunately, part of the top of each page of the statement is missing and the original copies are no longer available. From that part of the statement which is available, it can be seen that the patient said that she was asked to sit on the bed after the respondent had used a stethoscope. As she sat on the bed she pulled her jumper back down. She then said " I layed (sic) on the bed and he pulled my shirt up to my arms again. He checked both breasts with the stethoscope, he said "stretchmarks" I knew that he meant the stretchmarks on my right breast. He didn't use the stethoscope anymore and he felt both breasts with his hands. He was pressing his hands into my breasts hard, he was hurting me. I said "what's wrong?". He didn't give me an answer. He did this for about 10 minutes. He pressed all over my breasts. He was pressing with his hands around the bottom part of my stomach. He pulled my tracksuit pants down to the top of my leg. He pulled my underpants down at the same time. He was still pushing my stomach and then he started pushing me down below my bellybutton. I was starting to freak out because I didn't know what was going on and he wouldn't explain anything to me."
5. In the statement the patient said that she was then asked to roll over onto her stomach. She said that as she rolled over the respondent put his hands on her hips and helped her to roll over. He was feeling around her kidneys, and it felt like with his hands. The respondent then pulled her tracksuit pants and underpants down to the top of her leg. He told her that she had eczma around the right cheek of her buttocks. After feeling around her back the respondent then told her to get up. She got off the bed and pulled up her tracksuit pants. He then said that he would like to see her again the following week but did not say why. He then said that he would see how the "bronchitis is going." She was not given a prescription.
6. In the statement the patient said that she "kept getting cold shivers up and down my spine because I knew something was wrong with the doctor." That night at about 7 o'clock she had a conversation with a youth worker and burst into tears complaining about the doctor. She said that he had touched her. The youth worker whose name was Dale then took her upstairs to another youth worker named Julie who in turn took her to the placements officer, Julie Dennis. Julie Dennis told her that he was a good doctor and that she should not worry and that she should keep seeing him. She did not appear to the patient to have believed her.
7. The patient again wrote into her diary the date of the second visit to the respondent namely 21 October 1993. She said she went to see him about 1:45 and described what she was wearing. She had to see the doctor by herself because the youth worker was too busy looking after another resident at the home.
8. When she went to see the respondent he asked how she was feeling. She said that she was "just fine." She was not feeling sick and she did not need any medication. The respondent then took her blood pressure and asked to lie on the bed. He pulled her grey jumper and shirt up to underneath her arms. She was wearing a bra which he pulled to the side and pushed her breasts all over. "It was like a sharp pain every now and then. He pushed my breasts for 4 to 5 minutes." He then asked her to sit up. She then informed the respondent that she was almost out of Ventolin. He asked whether she had enough for another week. He told her to come back in a week's time and he would then give her a prescription. She did not complain about her examination on the second occasion because she thought that no one would believe her.
9. The respondent then said that she again went to the respondent on 28 October 1993 at 5 to 2 pm. She only wanted a prescription for Ventolin. She asked the youth worker Julie to come with her and she sat in the room.
10. There is in evidence statements by two youth workers and the placement officer at the Minali home. Each of them corroborated the fact that firstly patient B saw the respondent at the home, Minali Children's Shelter on the afternoon of 14 October 1993 and secondly that she was visibly upset during the late afternoon of that day and complained about the examination given to her by the respondent. The complaints involved him pressing each breast with his hands and touching her in the pelvic area.
11. The patient gave a further statement on 2 December 2014 to an investigator employed by the complainant. In that statement the patient indicated that missing words from the top of the statement given to the police were to the effect that when she first saw the respondent on the first occasion he lifted up her jumper and shirt and listened to her chest with a stethoscope. She said "I would have had a bra on at that time. When he checked both breasts with the stethoscope I remember that my breasts were exposed. I can't remember if it was taken off or lifted up, but I just remember the feeling of being exposed. Dr Cheng was listening to my chest, like he was listen to my heartbeat. It was on the breast tissue that he was pressing down hard. I remember it just hurt." She also said that he was listening right across the top of the chest and also moved underneath her breasts with the stethoscope.
12. In that statement the patient also said that the respondent touched her breasts. He did not tell her why he was touching her, and whether and why he was performing a breast examination. He touched one breast at a time with both hands. When he made the comment "stretchmarks" she thought that she might have cancer. She said that the respondent's hands were not cupped "they were flat and it was like he was performing a breast examination. It was the finger part of his hand that was touching my breast, not his palm." Significantly, in that statement the patient then said "I think that Dr Cheng touched my nipples." She then said that she was concerned that the examination went on for "way too long." She stated that she had not told the respondent anything about her breasts or about any lumps.
13. In this statement the patient repeated that the respondent when examining her moved down from her breasts onto her stomach. He pulled her underpants and track pants down to the pubic bone line with both hands and he continued to touch down along the pubic bone line and bottom stomach. She said that he did not touch her genitals. In that statement the patient also said that the respondent pulled her pants down below her hips about an inch below the pubic bone line so the top part of the buttocks was exposed. He did not touch her buttocks but was feeling around her lower back before he told her to get up. Significantly, also, in that statement the patient said that the respondent did not examine her throat during the examination.
14. In describing the second examination the patient said in that statement that the examination of the breasts "was the same sort of examination as the first time. I don't believe he touched my nipple, but I don't remember." She said that the respondent listened to her chest but did not check her throat.
15. After the consultations with the respondent the patient said in the statement that she recollected discussing her experience with the respondent with two other girls who were resident at the home. They described their experience with the doctor and one of the girls said that he was "creepy." Nothing further came out of that conversation.
16. The patient gave a final statement to the investigator retained by the complainant on 13 May 2015. At that stage she was 35 years old. She referred to the previous statement in which she had said "I think that Dr Cheng touched my nipples." She said that this was incorrect and that she meant to say "I don't think that Dr Cheng touched my nipples."
17. In her oral evidence, patient B attested to the accuracy of the contents of the statements which we have summarised above. She gave her evidence in a cogent, clear and straightforward manner. She readily conceded that there were areas of detail about which she was no longer clear because of the lapse of time, but she did not appear to us to be attempting to actively reconstruct anything which she did not sincerely believe had occurred. We accept her as being a witness who has endeavoured to the best of her ability to be as accurate and as fair and honest as possible and that her evidence represents her sincere belief about what had occurred, albeit a long time in the past.
18. Patient B was adamant that at no time did she ask the respondent to examine her breasts. Even when the respondent told her that she had stretchmarks on her breast and she was concerned by this she did not express her concern, nor did he endeavour to explain what those marks represented. Although the respondent made a comment about the presence of eczema on her buttocks, she was unable to see any evidence of this condition.
19. In cross-examination patient B confirmed that she had given evidence in police committal proceedings in 1994 at the Burwood local Court. She said that she had no recollection of the details of any evidence given by her at the time. She had no recollection of demonstrating how the respondent had examined her breasts. It was put to her that she had never complained of abdominal pain on the first occasion she had seen the respondent when giving evidence in the local Court. She repeated that she had no recollection of what evidence she had given on that occasion.
20. Patient B was cross-examined about the statement given by her on 2 December 2014, when she referred to what she would have expected from a breast examination. She confirmed that she was referring to what she would have expected with the knowledge that she had then. In 1993 she did not know what to expect from a breast examination because she had never had one before.
21. Patient B was also taken specifically in cross examination to the material in her statements where there was reference to the respondent touching her nipples. She said that there was a difference between being touched unintentionally or incidentally, whilst an examination was being conducted and being touched intentionally or specifically. She said that the reference to touching her nipples in the statement of 2 December 2014 was to an unintentional rather than intentional touching. Significantly, when asked why she had changed her account of this matter in her latest statement, she said that she wanted her statement "to be fair and accurate." We regard this as confirmation that this witness has sought to ensure that her evidence was as accurate as possible in all the circumstances.
22. Patient B was cross-examined concerning the amount of detail contained in her 2014 statement when compared with that contained in her original statement made in 1993. She responded that in 2014 she was asked by the investigator to go over the gaps in the police statement previously given, especially where parts of that statement had been cut off at the top and the bottom of each page. She said that she told the investigator "things that I vaguely remembered". When pressed as to whether the material in the 1993 statement was more accurate than the 2014 statement if there were any differences in the content, she responded that she could not answer. In her original statement she had not given as much detail because she was not asked questions, and composed the statement herself. In 2014 she was an adult and more articulate. She readily acknowledged the difficulty in recollecting in 2014 events which had occurred in 1993.
23. Patient B was cross-examined at some length about whether the respondent had examined her throat. She said that she was unable to say when giving evidence in 2016 whether he had done so. She confirmed that it was possible that the respondent had made some enquiries about any allergies, had asked her about her medication, being Ventolin and the contraceptive pill, and that she had told him that her tonsils and adenoids had been removed. She also conceded that at the time that she first saw the respondent she had smoked cigarettes, but no longer did so. She denied discussing her use of the contraceptive pill with the respondent. However, it would have been reasonable to suggest at that time that she was going through hormonal changes, normal for her age.
24. Patient B conceded that in 1993 she sometimes had a wheezy chest from her bronchitis or asthma condition. She denied any discussion with the respondent about whether she was suitable for the medication Becotide, and denied also that he examined her abdomen on each of the three occasions she saw him.
25. This patient had given evidence in Burwood Local Court in criminal proceedings brought against the respondent. The proceedings were dismissed. The respondent suggested that the evidence of this patient had not been accepted, but did qualify this suggestion by reference to the obvious differential standard of proof. In our opinion, in the absence of any suggestion in those proceedings that this patient had, in some way, been untruthful, the fact of the dismissal of those proceedings is not relevant to our assessment of the evidence of this patient.
26. The respondent pointed to a number of deficiencies and inconsistencies in the evidence of Patient B. For example, in endeavouring to explain why she could not remember the evidence that she had given in the Local Court, she said that there had been a bomb threat at the court that day. However, the respondent was adamant that no such incident occurred. There were also inconsistencies between information given by this patient to the police, and to the investigator retained by the complainant. These inconsistencies extended to matters such as whether the respondent had touched her pubic hair on one particular occasion, the manner in which he had conducted the breast examinations, and whether the patient had been confused about whether the respondent had conducted a breast examination or a "chest/abdominal" examination. With respect to this last suggested area of confusion, the complainant in submissions referred to a hand written statement of this patient given on 31 October 1993 with the contents of her police statement of 16 December 1993. Both those statements refer specifically to an examination by the respondent of her breasts following comments by the respondent to her concerning stretchmarks on her right breast. We agree with the submission of the complainant in this regard that the patient was "clearly describing a manual examination of the breasts when she is unclothed" in both statements.
27. We accept the evidence of this patient concerning the essence of the physical examinations which were conducted by the respondent. We accept that the evidence of this patient is clearly based on the intimate, invasive and personal nature of those examinations as recalled by her, even after many years as to what, in general terms occurred. We were impressed by the attempt by the patient to be as truthful as possible in recalling these matters, despite the passage of time, including her readiness to acknowledge her inability to remember many matters of detail which were peripheral to the examinations conducted by the respondent. In particular, we accept that this patient was not, on her evidence, suffering from painful and lumpy breasts as was suggested by the respondent. Furthermore, there is, as we have observed, corroborative evidence of complaints made at the time by this patient concerning the conduct of the respondent.
28. We take the same approach to the evidence of this patient as we did with Patient A. We are comfortably satisfied that we can accept her evidence concerning the Particulars of Complaint Two referable to this patient, and in doing so we are again mindful of the evidence given by the respondent, which we shall refer to later in these reasons for decision.

Patient C

1. This patient made a complaint to the New South Wales Medical Board concerning the respondent by letter dated 2 March 1994. She said that she had hurt her right shoulder whilst bushwalking sometime late in 1993. The pain in her shoulder persisted so she went to a doctor to be referred for x-rays. In her letter of complaint she said that she attended on the respondent who gave her a referral for x-rays but also said that he wished to examine her. He asked her to undress and lie on the table. She said that she undressed to her underwear and he asked her to remove her bra so that he could feel her heartbeat. The patient said she was suspicious at the time but allowed him to continue the examination. She claimed that the respondent "pressed down on all parts of my torso, he then continued to my pubic bone. My panties were in the way it seemed so he started pulling them down. I was extremely uncomfortable at that point so I just stopped him there and got up." She said that she then dressed and the respondent asked her if she needed a medical certificate. She thought this was an odd question because she had been working but "was curious to know how crooked he was. So I asked for the following couple of days off work." She enclosed a copy certificate of sickness dated 23 November 1993 indicating that the patient was suffering from sinusitis and was unfit for normal duties for the following two days.
2. In her letter the patient said that she was prompted to complain because others who were "more docile and lacking assertion skills" may have suffered harm at the hands of the respondent. She also thought that he was dishonest and unfair in being so willing to readily issue a medical certificate for unfitness for work.
3. The patient provided a typed statement dated 4 August 1994, which she annexed to a statutory declaration given in connection with her complaint and attesting as to the truth of the allegations. In general terms, this statement is consistent with the handwritten material in the complaint which we have summarised above. However, it also refers to a weight loss program which was advertised in the surgery which the patient discussed with him as well as the fact that she had "a slight cold." In this statement the patient said that the respondent asked to take measurements for the purpose of the weight loss program. He told her that she had big hips in relation to her other measurements. At no time did she complain to the respondent that she was so unwell as to be unable to work.
4. This patient also made a statement to an investigator employed by the complainant dated 20 October 2014. At that stage the patient disclosed that she was then 47 years old, and a "psych examiner" in the Australian Regular Army. In that statement the patient referred to the examination conducted by the respondent while she was lying down, after he had completed the examination of her breast. She said that when examining her stomach that he was not wearing gloves "and he pressed down along my gut from one side to the other. He then proceeded down to my pubic bone and moved my undies down. I remember that I could see the top of my pubic hair. It felt like he was going to go further. I was very uncomfortable with what he was doing and had already been uncomfortable with the breast examination he had done so in the middle of the examination, while Dr Cheng was still examining me, I just got up and got dressed." She also said that after the examination "I felt violated and I felt stupid and embarrassed that I allowed it to happen. I attended to see Dr Cheng for a head cold and he was doing a breast examination and pulling down my underwear. I was so embarrassed I didn't tell anyone what had happened."
5. In her oral evidence this patient confirmed that the contents of her statements were true and correct. She said that when she first saw the respondent the main reason was the condition of the shoulder. She did have a head cold and sore throat but was not coughing. She did not say that she had been feeling sick.
6. She did have a discussion with the respondent concerning the weight loss program. The respondent took some measurements using a tape measure before she lay on the examination table. She was standing and had taken off all her clothes other than her underwear. The respondent measured her waist, hips and, she assumed, her chest. She did not recall being weighed.
7. She said that while she was sitting on the bed the respondent examined her chest and took her bra off. She then lay down. He then used his hands to examine her breasts. She understood that the respondent was conducting a breast examination because he was pressing with his hands. She had made no complaint involving her breasts. The respondent then pressed into her stomach and tried to push her underwear down. She saw her pubic hair, and the respondent's hand was in her pubic hair. She then got up off the table. She was adamant that the respondent did not give her any medication or any diagnosis. He made no mention of sinusitis. He did not give her any documents about a weight loss program.
8. In cross examination the patient agreed that she had discussed two issues with the respondent when she consulted him, namely pain in the shoulder and symptoms of a cold - a cough, blocked nose and headache for about four days. She denied that she discussed any desire to lose weight from her tummy area.
9. The patient was unable to recall the respondent discussing acupuncture or a weight loss program. She did not recall being prescribed an antibiotic and she denied being given a medical certificate. She disagreed that he recommended bed rest. The patient did recall being offered a medical certificate without any discussion as to why; he only asked her how long she needed it for. She said that she recalled this because she thought that it was odd for a doctor to ask how many days off she needed and this indicated "alarm bells" for her.
10. When asked about the circumstances pertaining to her consultation with the respondent, Patient C said that she had gone to see the respondent for her shoulder and a cold, and she had allowed herself to have "a chest examination and get naked and he was only interested in looking at my vagina." She expressed outrage at what had occurred. This patient refused to accept the proposition put in cross examination that the breast examination was relevant to the fact that she was suffering from a cold.
11. Patient C said that she did not recollect that the respondent examined her shoulder. He looked down her throat but not at her head or in her ears. It was possible, however, that the respondent had checked the glands in her neck. When pressed further about these matters in cross examination, the patient said that it was possible that the respondent had checked the range of her shoulder, but denied that he had tapped on her chest or suggested bed rest for two days.
12. In submissions, the respondent asserted that the evidence of this patient could not be accepted because of some inconsistencies and some deficiency in her recollection. It was said that her testimony was given 23 years after the examination by the respondent, and care should be exercised in accepting what she now says about her recollection. By way of example, this patient was unable to recollect whether the respondent examined her shoulder, which was the principal reason for her attendance at his surgery. We agree with the response of the complainant that in all the circumstances it is entirely feasible that the focus of attention of this patient would have been, and was, her sense of personal invasion caused by the manner in which the respondent conducted his physical examination of her.
13. The respondent was critical of the evidence of this patient in that in her original statement in 1993 she made no mention of a breast examination, but in her statement to the complainant made in 2014 she referred to a breast examination, by use of a stethoscope. Furthermore, in the course of her oral evidence she said that the respondent had also used his hands to examine her breasts. Even though no complaint is made of the carrying out of a breast examination in the proceedings, the respondent highlighted this evidence as indicating that the patient's recollection could not be trusted and her evidence should be rejected.
14. This patient was clearly emotionally upset by the experience which she had during the consultation with the respondent as set out in her statements and in her oral evidence. There is no reason to believe otherwise than that she has endeavoured to recall events as accurately as possible. Notwithstanding her strong feelings of outrage, she gave her evidence in a cogent, clear, measured and compelling manner. Any demonstrated inconsistency does not, overall, detract from acceptance of the recollection of this patient that she felt violated and angry during and after the examination conducted by the respondent and the reasons therefor.
15. We take the same approach to the evidence of this patient as we did with Patient A. We are comfortably satisfied that we can accept her evidence concerning the Particulars of Complaint Three referable to this patient, and in doing so we are again mindful of the evidence given by the respondent, which we shall refer to later in these reasons for decision.

Patient D

1. This patient made an online complaint to the complainant concerning the respondent on what appears to have been around 6 pm on 3 September 2012. In the details of the complaint the patient said that she had reasonable grounds to accuse the respondent of professional misconduct because of "his inappropriate physical conduct during my medical consultation with him on Monday, third of September, 2012."
2. In her details of the complaint, the patient said that she attended on the respondent to request "a doctor certificate and antibiotics to treat my flu symptoms." She said that during the course of the consultation the respondent asked her many general health questions and that she come back for a blood test. He then discussed with her, her eating habits and she told him that she suffered from stomach aches because of her irregular diet. She told the respondent that she was suffering from dizziness, headache and a dry cough as constituting her flu symptoms. The respondent asked her to lie down on the examination bed. She thought that he was going to examine her stomach, but he pressed on it once only "and then suddenly moved upwards and lifted/pulled my bra up and slipped his hand underneath to supposedly examine my breast. It came as a sudden shock to me because I previously did not complain about any sought (sic) of chest or breast discomfort. I also did not expect him to rudely lift my bra and just slid his hand underneath." After the respondent had done this, he told her that he was checking for lumps and that he would teach her how to detect any irregular lumps on her breast. He did not discuss this with her before conducting the examination nor did he ask for her consent to do so. The respondent told her that he had detected a lump and that she should put her own hand on it and feel it for herself. It was at that stage that she realised he was not wearing gloves during the examination.
3. The patient commented in her complaint that although the respondent said that he had detected a lump in her breast he made no further comment about it, nor did he refer her for any x-ray or other investigations. She said that she believed that there was no reason for the respondent to have asked her to lie on the examination bed and furthermore he made no further comments about her stomach problem. Even though her temperature reading was said to be normal and there was no diagnosis of fever the respondent told the patient that she was "very warm" and asked her whether she had drunk something warm in the morning.
4. The patient thought that it was inappropriate for the respondent to have spent 20 - 30 minutes of "irrelevant examination" when all she had come for was a flu diagnosis and prescription for medicine, and she felt that she had been sexually harassed during the course of the examination. She also felt confused because the respondent had told her that she had low blood pressure, a lump in her breast and that she should have a blood test because the dizziness might be a symptom of "amnesia."
5. The patient made a written statement to an investigator employed by the complainant on 12 August 2014. In that statement she said that she was then aged 23 and worked as an English tutor. The statement elaborates on some of the detail contained in the complaint document which we have earlier summarised. The patient names another practitioner as her regular doctor, and indicates that she had previously attended on the respondent with her mother when she was 12 or 13 years old.
6. In terms of the consultation on 3 September this later statement indicates that the respondent took her blood pressure which was said to be a bit low. There is further elaboration on what occurred during the course of the examination when she was lying on the bed in the consulting room. The patient confirmed that the respondent was not wearing gloves. He rolled up her sweater to just below her breast, touched her stomach, first with one hand and then the other and then with both hands "around the sides." This was said to last for a few seconds and he moved his hands then straight to her breasts. Without explaining what he was doing and why, he pulled her bra to her upper chest so that her sweater and bra were both sitting above her breasts. She said she remembered the respondent touching her right breast using both hands and then moving to her left breast using both hands and then moving back to her right breast. "He pressed down hard using his four fingers and it didn't feel like it was a breast examination. It felt like he was not being precise when he was touching. I felt at the time that it was sexual harassment and that he was trying to make it not look like sexual harassment." She also said that whilst touching down on her right breast with all his fingers his hand touched her nipple. It was at that stage that he said that he felt a lump. He grabbed her left hand and put it on her right breast and asked whether she could feel a lump. She replied in the negative and moved her hand back to her side. After touching her left breast, he then touched her right breast again in the same way. He also asked at the same time whether she had her periods at that stage. She said that she did not reply because she did not know what the respondent might have done next. The respondent then pressed on her stomach and asked whether she felt any pain. She replied in the negative and a short time later he told her that he had finished.
7. At the conclusion of the consultation the respondent told the patient that she should come back for a blood test because of her dizziness and low blood pressure. She then asked the respondent for a referral letter to check out a lump on her head. He declined to do so saying that he would give her one on the next occasion that she saw him. He prescribed antibiotics for her and gave her a medical certificate. He did not discuss the breast examination or the lump that he said that he had found.
8. After she left the respondent's rooms the patient reflected on what had happened and decided to initiate a complaint.
9. The patient made a further statement to the complainant's investigator on 19 January 2015 to deal with some of the material in her earlier statement. She said that the respondent had used a stethoscope during the examination to listen to her chest before she lay down on the examination table. When she moved to the examination table he did not give her a sheet or towel to put over her top. On reflection, the patient said that she did not think that the respondent had touched the nipple of her right breast contrary to what was in her earlier statement.
10. In this further statement the patient elaborated on the physical examination conducted by the respondent of her right breast. She said that when he was touching the breast "he pressed down on the right side on my right breast with his left hand and at the same time used his right hand to press down on the left side of my right breast. Dr Cheng didn't apply pressure, but it was more like a gentle touch that felt quite uncomfortable. He used the four fingers on each hand."
11. The patient also corrected the order in which the respondent had conducted the examination as shown in her earlier statement. She said that the respondent first touched her right breast using both hands and then moved to her left breast. She did not think that he touched her left breast with both hands. The respondent then moved back to her right breast using both hands and it was at that stage that he said that he had felt the lump. He had also said that the lump was quite small.
12. The respondent had never told her that he would show her how to do a self breast examination and never did so. This was the first occasion on which any medical practitioner had examined her breasts.
13. In her oral evidence Patient D said that when she saw the respondent she had the flu, with a runny nose and a dry cough. She was adamant that she did not complain about any problems with her breasts or any lump in the breasts. She denied that the respondent told her that he would show her how to examine her breasts, and denied that he did so. She said that on the second occasion that she saw him he touched a nipple of her breasts. He never asked to examine her breasts. She herself was unable to feel any lump in the breast and she was not referred by the respondent for an x-ray. She regarded his examination as being "unprofessional."
14. In cross examination patient D said that the respondent took her blood pressure while she was sitting up and said that it was a bit low. He said her temperature was normal, but that she felt warm. While she was lying on the examination table and the respondent was examining her she said that she could not remember whether he had a stethoscope in his hand or not. She denied that whilst examining her in the area below her breasts the respondent sometimes had the heel of his hand on her chest but that his fingers were on a stethoscope.
15. Patient D was referred in cross examination to the first formal statement that she made and asked to compare it with her complaint. It was put to her that the material in her original complaint was more accurate because the formal statement was given later. She denied that this was the case, saying that at the time that she compiled her original complaint she felt emotional. She recalled more details at the time of her formal statement because she was asked to provide more detail by the investigator. She said that she sat down and went through everything that happened and wrote it down in detail. She was then asked to clarify further matters in the second formal statement.
16. When asked how long the original consultation lasted she said that it felt something like 20 to 30 minutes. When asked if it could have lasted 17 minutes she agreed that this may have happened.
17. Patient D said that the respondent had never given her any advice about her low blood pressure and had never suggested that she come back to have it rechecked. When discussing her weight, he did not take any measurement of her height. She denied that the respondent had asked her to breathe in and out whilst examining her. No examination was carried out of the area under her arms.
18. In submissions, the respondent said that the statement obtained by the complainant in 2014 contained additional information to that contained in the complaint lodged by this patient. In evidence the patient had said that the statement was more accurate. The respondent asserted that the greater significant detail would have been expected to be mentioned in the initial statement and that this raised doubts about the accuracy of the recollection of this patient. We reject this submission. There is no indication in any of the evidence that the later elaboration of the earlier information impact adversely on the truthfulness of the evidence given by this patient.
19. This patient gave her evidence in a quiet, measured manner, and did not appear to be embellishing or exaggerating her recall of her involvement with the respondent. We accept her evidence as representing an accurate account of what occurred. We take the same approach to the evidence of this patient as we did with Patient A. We are comfortably satisfied that we can accept her evidence concerning the Particulars of Complaint Four referable to this patient, and in doing so we are again mindful of the evidence given by the respondent, which we shall refer to later in these reasons for decision.

Patient E

1. This patient was born on 4 February 1985. She lodged a written complaint concerning the respondent with the complainant in writing dated 11 May 2013. In that complaint she referred to three visits to the respondent. The first occurred on Friday, 3 May 2013. She said that she explained to the respondent that she had been bitten by a mosquito on the calf of her right leg in a malaria prone area about a week previously and had since developed a rash on her stomach, and her chest had been feeling heavy, especially when she tried to breathe deeply. She said that she had experienced some sharp pain in her lungs on and off for the previous week. She also explained that she had been taking malaria tablets prescribed by another doctor during and after her time away. In her complaint, she said that the respondent told her to sit on the bed and he looked at her stomach rash and asked whether there was a rash anywhere else on her body. She said that she had seen one small patch on the front of the right thigh, but noted that when she went to show this to the respondent it was no longer there. He asked to see the site of the mosquito bite so she pulled her pants down completely, but there was no evidence of it. She said that the respondent then "went ahead and started lifting the sides of my underwear to check my bottom and front. I noticed that he did not have gloves on. He also did not ask for my permission to search inside my underwear." The patient then said that the respondent asked her to lie down on her back and he covered her legs and stomach with a sheet and started to check her chest. She said that he "went to listen to my chest from the front. He started lifting the bottom of my bra to gets to somewhere else (he didn't say what he was trying to do and where he was trying to listen, he just started pulling upwards to the point of yanking to try and lift the underwire over my breast but didn't succeed). He went to go undo the back of my bra and couldn't so he asked if I could undo the back" by gesturing. She undid the hooks and he lifted her bra off completely so that it sat on the top of her chest. After listening to her breathing for a while the respondent told her that he thought that there was more fluid in her right lung. She complained that the sheet that had covered her stomach was of a stretchy slippery material, and kept falling off.
2. After she dressed the respondent asked her to go to a room across the hall for an ECG. He did not tell her why it was necessary. He did not explain to her what was to happen. She asked whether the procedure would hurt. The respondent required her to unclip her bra again and lie down and he placed pads on both of her legs and lifted off her bra so that he could place a pad beside her left breast on the outer side of the body. The patient then said that the respondent "fiddled with the connections a bit" and after a while told her that the results were clear, except that he was able to see from the results that she was stressed. The patient complained that during the procedure the respondent was standing close to the bed and that his body was close enough to be touching her right arm.
3. Apart from having been under some stress at work, she said that she found her involvement with the respondent stressful because she did not understand the nature of the test being conducted, why she needed to be physically exposed for a length of time and why he was touching her.
4. The patient then dressed and waited for the respondent. He returned a few minutes later and took some blood from her without using gloves. The respondent then made arrangements to see the patient when the blood tests came in the following Monday.
5. In her complaint the patient referred to the visit on the following Monday, 4 May 2013. The respondent said that the blood test revealed that she had low iron, slightly high cholesterol and a high white blood cell count which indicated an infection. There were no signs of infection by malaria. He again took her blood pressure and temperature. The respondent asked her to lie on the bed again and was told by the patient that the rash had almost completely faded but had moved up into her belly button. The respondent then went to check her chest, pulling her top up. She said she realised he wanted to "do the same check as the last visit because he seemed to be trying to work out how to "get in", touching the wire edges of my bra. So I asked if he needed me to undo the back again and he said yes so I unclipped the back and my bra was lifted off again by him so that it sat on the top of my chest. He proceeded to check my chest, particularly around my outer left breast."
6. The respondent then required the patient to undergo another ECG examination, again requiring her to take off her bra. She felt that a sheet which had been placed over her was covering everything except her nipples. The respondent went to start taking the pads off at the conclusion of the examination, but the patient proceeded to do this herself. The patient then said that the respondent "checked my chest again with the stethoscope, pushing the left side of my left breast upwards with his fingers to get beside the breast tissue. He then pointed out something in the top side part of my left breast, pushing it with his fingers and saying something like "is that a lump? The pill can cause these things" and I said no because I do a self check all the time." The respondent then proceeded to check her back and the side of her chest again with the stethoscope.
7. The respondent referred the patient for a chest x-ray. She was not required to expose herself in any way during this procedure and she recollected that a previous medical practitioner had never asked her to take off her bra. Because she had been concerned about the conduct of the respondent she conducted an Internet search of the respondent and found a "PDF document from HCCC detailing a past indiscretion" of the respondent. This caused her to become angry with herself in not challenging the respondent's conduct.
8. The patient returned to the respondent on Wednesday, 6 May 2013 for the x-ray results. He told her that they showed that that there was no fluid. He told her that he had performed an ECG twice "to check for any changes." The respondent then motioned to her to get on the bed again. She refused. The respondent then ignored her walked behind her lifted up her top from the back and listened to her back for what felt like 10 seconds. When the respondent returned to his chair he would not look at her when he was speaking. He then prescribed an antibiotic for her.
9. In her complaint the patient said that she was concerned that the respondent had used his authority as a doctor to take advantage of her. He had not asked for her consent to check what she regarded as her "particular sensitive areas" especially inside her underwear and that he had no regard for her sensitivity. She thought that the examinations conducted by him were unnecessary and repetitive and, at the least, there was no need to expose her nipples and she could have been given a garment to wear to limit any exposure. She complained that the respondent had not informed her about what he was doing or going to do next and why the examination was necessary. Furthermore, she complained that he had not opened a package of syringes in front of her, disposed of waste syringes in front of her, nor had he washed his hands or used gloves at any time.
10. Patient E gave a written statement to an investigator employed by the complainant on 26 September 2014. This statement confirmed the details given in the form of complaint which we have summarised above. In this statement the patient described in a little more detail the circumstances pertaining to the first examination, when she was asked to lie down so that the respondent could examine her. She said that she was lying down with her pants around her ankles and both her hands were behind her head. Whilst lying down and her legs were separated a little, the respondent then "used two fingers and lifted my underwear up and looked at my vagina for about 3 to 5 seconds. He then lifted the other side of my underwear and looked at my vagina again. I can't remember which side he lifted up first, but the second time he looked, it was not as long." Even though the patient described herself at that point as being "mortified" she made no complaint. The respondent had not explained what he was doing and she presumed that he was looking for a rash.
11. In her statement, in describing the second consultation the patient referred to an examination of her chest conducted after the second ECG. Whilst listening to her chest she said that the respondent "used a finger or 2 to lift my left breast up so he could get to the side of the breast tissue and put the stethoscope there to listen to my chest…….As (he) was using his finger to lift my left breast up, he started pushing a certain spot on the very left part of the tissue on the left breast. This was halfway in between where the nipple is and where the side back starts where the bulk of the breast tissue is. Dr Cheng pushed down a couple of times, there was a bit of prodding and he said words to the effect "is that a lump?"." The patient told him that there should not be a lump there because she undertook self checks constantly.
12. The patient also said that during one of the ECG examinations her nipples went hard. She looked at the respondent's face "and I saw glee on his face. Dr Cheng smiled a little bit and he was glad and happy about it. It was like there was a sparkle in his eyes. Dr Cheng was looking at my body when I saw this reaction."
13. This patient gave oral evidence in a cogent, clear manner and it seemed to us that she was concerned to ensure that her evidence was as accurate as possible. In her oral evidence, patient E said that the statements that she had given were true and correct, and that her recollection at the time of giving the first statement would have been more reliable than a later statement.
14. Patient E clarified her reference in her statement to the respondent lifting her underpants. She said that he lifted the crotch area of her underpants on both sides but at different times. She had made no complaint of pain or rash in that area and the respondent did not asked permission to examine her in that area. The respondent did not say why he would administer an ECG. When referring to the second visit, the respondent did not explain to her the site of the lump which he said he had found in her breast. He did not show her how to conduct a breast examination and he did not give any reason why she needed a second ECG.
15. In cross-examination it was put to this patient that she had made no mention in her first statement of the respondent looking at her vagina. She said that this is what she referred to when she said that he looked at "her front and her back".
16. Patient E was adamant that on the occasion of the first ECG her nipples were showing and that the respondent looked at her body and particularly at her nipples.
17. Patient E gave more details under cross examination about her complaints and symptoms when she first saw the respondent. She said that she had been unwell at the time with sharp chest pains which came and went and a rash. She might have referred to shortness of breath. She said that she did not mention having a fever, heart palpitations, or nausea. She did not recollect whether the respondent asked whether she had abdominal pain but did remember him listening to the side of the rib cage with his stethoscope. He told her that there seemed to be more fluid in the right lung. She had complained about pain on the right side. She said the respondent took blood and said that she would have to come back so that he could check for malaria. She told the respondent she had been taking anti-malaria medication but was unable to remember the name of it while giving evidence.
18. The patient said that she could not recall whether she had been given a new prescription for an oral contraceptive at the first consultation, but said that she did ask for one. She recalled being given a prescription for antibiotics at the time of the third consultation. She did not recollect being given a medical certificate that day as she attended after work.
19. Under cross examination this patient was adamant that the respondent was looking at her vagina and was not looking further up her thigh.
20. Patient E said that the respondent had listened to her chest on the first and second occasions when she was lying on the examination bed. He had only listened to her chest when she was sitting up on the third occasion.
21. The respondent did not describe to her any changes found on the second ECG. He did not mention conducting a second ECG at the first consultation. There was no discussion as to what blood tests would be taken by him and why. The patient did not discuss with him or request any blood test for sex hormones. The only information conveyed to her by the respondent concerning the result of the blood tests was that they showed high cholesterol and a high white blood cell count and no sign of malaria.
22. This patient gave oral evidence in a cogent, clear manner and it seemed to us that she was concerned to ensure that her evidence was as accurate as possible. In her oral evidence, patient E said that the statements that she had given were true and correct, and that her recollection at the time of giving the first statement would have been more reliable than a later statement.
23. The respondent submitted that the evidence of Patient E was prejudiced by the fact that she had carried out an Internet search of the respondent's name and had found material about him. However, it was her evidence that she had only conducted this search after her first consultation with the respondent and because she was concerned about his behaviour. We agree with the submission of the complainant that the fact that this patient carried out that Internet search confirms her concerns about his behaviour, rather than detracting from the reliability of her evidence.
24. The respondent was also critical that the statement given by this patient to the complainant contained much more detail, particularly of a sexual nature, than that which was contained in her original complaint. Again, we reject this criticism because, as the complainant asserted, it is only natural that a statement taken by an investigator retained by the complainant would contain more detail than a form of complaint which a patient had drafted herself within days of her consultations.
25. We take the same approach to the evidence of this patient as we did with Patient A. We are comfortably satisfied that we can accept her evidence concerning the Particulars of Complaint Five referable to this patient, and in doing so we are again mindful of the evidence given by the respondent, which we shall refer to later in these reasons for decision.

The evidence of the respondent

1. The respondent gave oral evidence including extensive cross examination. The respondent conceded that in general terms he had no particular recollection of the consultations of each of the patients whose circumstances are the subject of these proceedings, and his evidence concerning these consultations was based almost totally on his clinical notes. We should not be taken to be at all critical of the respondent in making these observations. The allegations which he is now confronting occurred, in the case of some patients many years ago and he is therefore at a forensic disadvantage in dealing with them. We shall take these matters into account in determining the factual findings that are appropriate to be made.
2. The respondent offered a number of explanations for his behaviour and conduct as alleged by the patients, based upon his reading of his clinical notes. We shall refer to these explanations when examining the circumstances of each of the patients in the context of considering the several Complaints and Particulars thereof.
3. We note that on two previous occasions the respondent's conduct had been the subject of investigation. On each occasion, both of which occurred in 1995 the respondent was advised that he should improve his communication methods to avoid any further complaints being made concerning treatment which he afforded to his patients. The question of communication extended to the proffering of an explanation for any physical examination to be conducted and the obtaining of appropriate consent depending on the nature and extent of the examination and whether it involved any matters of intimacy. The respondent said that he reacted to this advice by endeavouring to allocate more time for each patient, but that this was ultimately not successful. He had done nothing further to attend to rectification of these matters. The concessions made by the respondent extend to the circumstances of patient D which occurred in 2012. The respondent has conceded that he did not give sufficient prior explanation before conducting an abdominal examination or a breast examination. The concessions also extended to the circumstances of patient E in that the respondent conceded that he had not given prior sufficient explanation before inspecting her vagina or vulval area, lifting her underwear, asking her to unclip her bra, conducting a cardiogram and conducting the further cardiogram.
4. This is indicative of persistent behaviour by the respondent the effect of which has been to cause adverse discomfort and concern to these patients. Seen in the context of the totality of the conduct of the respondent as conceded by him, it represents a lack of insight which, as we shall shortly discuss, can only be explained by reference to the intimate physical nature of the examinations inappropriately conducted by the respondent.
5. Furthermore, as conceded by the respondent, there was no justification for at least two intimate examinations which the respondent conceded were carried out by him, namely on patients C and D.

The Expert Evidence

1. The complainant retained Dr Norman Walsh and the respondent retained Dr Craig Lilienthal to provide expert opinions. Both are experienced general practitioners and both have experience in providing expert professional opinions in disciplinary proceedings. Both experts were given access to a large volume of material, but Dr Lilienthal had been asked to base his opinion on the version of events as provided by the respondent. We do not make this observation in any critical sense; obviously the factual circumstances and background which pertain to these proceedings and which should properly form the basis of an expert opinion could only be ascertained after the Tribunal has had an opportunity of considering the evidentiary material and making relevant findings. Although each of the experts differed in certain respects, ultimately these differences, relevantly, were in matters of degree only. We now proceed to consider that expert evidence with respect to each of the patients the subject of the complaints brought in these proceedings. In doing so, we are conscious that the evidence given by the respondent with respect to events which occurred many years ago was limited to that which he could recollect by reference to his clinical notes. Accordingly, many of the comments made by both experts are based on their acceptance of relevant portions of the evidence of the patients, in addition to the concessions made by the respondent as notated on the Amended Complaint set out above, the respondent's clinical notes and certain documentation prepared by the respondent in connection with the investigation of the complaints.

Patient A

1. In his evidence, the respondent said that he had no independent recollection of what occurred. He said that his notes indicated that he had conducted a chest examination, and that this would not have included a breast examination. He said that if it was not in his notes than it did not occur. In cross examination he was taken to a Medicare claim for acupuncture, but conceded that there was no reference to acupuncture shown in his clinical notes. In circumstances where there may arguably be ambiguity as to whether "chest" includes also the breast of such a young person, we do not accept that any omission to refer to the details of this particular consultation in the clinical notes is determinative of what occurred on that occasion.
2. Dr Walsh was highly critical of the conduct of the respondent as described in Particulars 1 (a) and (b). This criticism was shared by Dr Lilienthal on the basis that it could not be lightly inferred that in some way the mother had given consent and that that consent continued during the course of the examination conducted in her absence. The patient was of very tender years, should have been assessed by the respondent as vulnerable and he should have conducted himself with great care. In particular, he should have carefully explained to the patient what he was intending to do in the course of the consultation, the examinations that he was to conduct and obtained her consent to any part of the examination which necessitated her exposing any intimate parts of her body. There was no necessity to ask the patient to remove any part of her clothes.
3. Assuming that this patient is to be believed that her breasts were examined in the manner described and parts of her body touched as described, the experts agreed that such conduct as referred to in Particulars 1 (c) to (e) was entirely inappropriate. There was no clinical indication for examination of the breasts of a person of this age, and if the respondent had detected visually any suspected abnormality whilst examining her body, any physical touching should have been confined to that part of the body which was the site of the abnormality.
4. With respect to Particular 2, both experts expressed the opinion that there was no medical reason for the respondent to perform a breast examination with the symptoms disclosed in the clinical notes, namely vomiting and fever, nor would there be any medical reason to ask a patient to remove her clothing including her underwear for the purpose of any examination where she had presented with these symptoms. Furthermore, there was no medical reason for the respondent to perform any of the examinations described in sub paragraphs (c) to (j). The respondent maintained that the patient had presented with lumpy breasts. Both experts were of the opinion that in those circumstances there would be no justification to carry out a physical examination of her breasts in a patient aged 15, and in any event specific consent should have been obtained to do so.
5. With respect to Particular 3, Dr Walsh was highly critical of the respondent for conducting a vaginal examination, especially without obtaining specific consent after first explaining what it was that he was attempting to do and why. Much of the controversy between the experts concerning this Particular revolved around why the examination was conducted. Dr Lilienthal thought that the respondent may have been seeking to ascertain whether any foreign body such as a tampon or condom had been left in the vagina. The situation was clarified when the respondent gave evidence. He thought that he could have been conducting an examination for the purpose of ascertaining whether there was any trauma, infection, or tearing following the unprotected sex. If there had been trauma with resultant irritation, the area would have been located if the patient had felt pain during the course of the vaginal examination. Likewise, any blood would have shown on his gloves. However, as the respondent conceded in evidence, he would have been unable to detect the source of the blood, whether vaginal or from the cervix.
6. In his evidence, Dr Lilienthal said that if the respondent had suspected the presence of a foreign object such as a tampon, a history should first be taken to justify this possibility. In any event, he said that a speculum examination should have been conducted initially before any manual vaginal examination. With respect to this Particular we proceed on the basis that the respondent should have first examined the patient using a speculum, prior to undertaking a vaginal examination, if necessary, with his fingers. To this extent, the conduct of the respondent in carrying out a manual vaginal examination was not undertaken for a proper clinical purpose and in a standard manner as alleged in this Particular. However, we accept that it might conceivably have been necessary to undertake a manual vaginal examination provided that an examination using a speculum had first been conducted, and assuming that the results of that examination warranted further investigation.
7. We reject the opinion expressed hypothetically by the respondent based on his clinical notes that a speculum investigation was not appropriate. He said that with a speculum he can only view the cervix clearly and he needed to examine the vaginal wall. Accordingly, he chose to use his fingers to conduct an internal examination to feel for a tear or signs of trauma. The site of any tear would have been very tender and the site of any trauma would have been swollen because of bruising. If there was any bleeding this would show on his glove, although he did concede that if there was blood he would not have been able to identify the site. He then said that he did not think that the presence of blood was the main feature of the examination. We prefer the expert opinion expressed by doctors Walsh and Lilienthal.
8. Overall, there are many features of the respondent's interaction with this patient which both experts characterised as being significantly below the standard expected of a medical practitioner of the respondent's qualifications and experience. Primary concerns include the admitted lack of explanation and lack of consent as well as the unnecessary intimate physical examinations which he conducted.

Patient B

1. For present purposes, we need only focus on the allegations that the respondent failed to give any prior explanation of the examination which he was to conduct, and obtain any consent, especially as this young vulnerable patient was unaccompanied. The respondent sought to justify his examination of the patient's breasts because she had suffered from asthma, had recurrent abdominal pain, lumpy breasts and was taking oral contraception.
2. Dr Walsh was highly critical of the respondent for having examined this patient without a parent or guardian being present. He was also critical of the use by the respondent of two hands to carry out the breast examination. Dr Lilienthal said that it is not unusual for an orthodox examination to be carried out using two hands simultaneously, so as to complete the examination more efficiently. However, he would only use one hand in examining a developing breast as it may be assumed was the case in connection with this 13-year-old girl.
3. Dr Walsh was highly critical of the respondent's conduct in performing an abdominal examination, and especially in the way that he went about it in exposing parts of the patient's body. Again, the controversy between the experts revolved around whether or not it was appropriate for an examination to be conducted of this patient without another person being present. In the absence of any suggestion in the evidence that the respondent made any enquiry concerning the patient's circumstances nor sought to explain what he intended to do, it is not necessary for us to investigate this further aspect. When advised that this patient was a ward of the State, had arrived at the institution the day before the examination, was less than 14 years old and was being seen for the first time without anyone else being present, Dr Lilienthal said that it was important that the respondent should have ensured that another person was present. He agreed that in the circumstances of this vulnerable person the conducting of an intimate examination in the absence of any other person was significantly below the appropriate standard. In stating this Dr Lilienthal said that he did not necessarily agree that it was inappropriate for the breast examination to have been conducted. However, Dr Walsh was adamant that there was no necessity to carry out a breast examination in a patient of this age because breast cancer was not clinically possible. He said that "lumpy breasts due to benign hormonal mastopathy occurs very frequently in this age group and does not require hands-on assessment, merely an adjustment of the oral contraceptive pill." We accept this opinion as representing orthodox medical knowledge.
4. Dr Lilienthal commented on the further examination of the patient's breasts at the second consultation referred to in Particular 3. He said that there was "no clinical reason for a practitioner to examine or touch a patient's breasts at a second consultation unless there had been a positive finding at a prior examination that required follow-up." There is no such evidence. The respondent denied that he had examined the patient's breasts on the second occasion because his clinical notes made reference to "chest" and this did not include breasts. To the extent that this evidence represents an extrapolation by the respondent from the manner in which his clinical notes were couched, and noting that in many respects they were unduly brief, as the respondent conceded, we prefer to accept the evidence of the patient about this matter.
5. Dr Walsh was highly critical of the abdominal examination carried out by the respondent as referred to in Particular 3. There had been no relevant findings at the previous two consultations concerning pain in the lower abdomen to warrant a further examination on this occasion. We agree with this observation.

Patient C

1. Dr Walsh was highly critical of the respondent in requesting this patient to remove her outer clothes in order to perform a physical examination of her shoulder. Dr Lilienthal disagreed but noted that the respondent should have explained the reason for requesting the clothes to be removed. He agreed with Dr Walsh that there was no direct need to listen to the heartbeat of the patient who had presented with symptoms of a shoulder injury, and upper respiratory tract infection and concern for her weight. Certainly, it was not necessary for this patient to remove her bra. Both experts agreed that it would not have been necessary to press down in the area of the pubic bone such that the respondent's hands would have been in the patient's pubic hair. This was assessed as being significantly below the relevant standard. Finally, the respondent should not have attempted to measure the iliac crest of the patient whilst she was standing up. It was also inappropriate for the respondent to have pulled her panties down and this behaviour was significantly below the relevant standard.
2. In his evidence, the respondent sought to justify his conduct of an abdominal examination because the patient was "quite sick." However, his clinical notes said that she had a cough, a blocked nose and other symptoms referable to an upper respiratory tract infection. He said that he may have wanted to exclude a bowel upset in the colon area. When pressed about this matter in cross examination he said that he had no real recollection of the examination, he was forced to rely on his clinical notes and he could not supply any satisfactory clinical need to undertake an abdominal examination.
3. In his oral evidence the respondent conceded that there was no clinical reason to undertake a breast examination of this patient with the symptoms which she presented. He further conceded that he did not seek her permission to examine her breast, that he had moved her clothing without permission, and that he could have examined her chest by moving her bra and using a stethoscope. He would have been able to listen to her chest without her lying on the examination table.

Patient D

1. Both experts were of the opinion that there was no necessity in the circumstances for the respondent to have conducted a breast examination of this patient. To do so was significantly below the relevant standard. Furthermore, if the respondent had detected a lump as he asserted, he clearly failed to take any action to investigate the condition of the patient further.
2. In evidence, the respondent admitted that he now knew that telling a young woman that she had a lump in her breast would be confronting. He conceded that he should have ordered tests and that he should have explained to her that the lump could have been the result of a hormonal change. He was definite that he could feel a lump and denied that this evidence was given to justify touching her breast.

Patient E

1. Dr Walsh was of the opinion that there was no clinical justification for the "furtive intimate examination" conducted by the respondent when he sought to ascertain whether she was suffering from a vulval rash. Furthermore, he thought that there was no reason to examine the patient's chest. Her symptoms were consistent with a viral infection and there was also no need to perform a cardiogram. Certainly, there would have been no need to conduct a further cardiogram three days after the first one.
2. The controversy between the experts related to the necessity to remove the bra of a female patient undertaking a cardiogram to enable the electrodes to be fixed. We do not regard this as a matter which requires consideration in the context of these proceedings.
3. Dr Lilienthal said that it was inappropriate for the respondent to have conducted the examination in the vaginal area to look for a vulval rash before asking the patient how far the rash extended. On the basis that no such request had been made, he thought that the respondent's conduct was significantly below the relevant standard.
4. The respondent conceded in evidence that he did not ask the patient whether he could examine her groin area and he regretted that he had not done so. He conceded that he understood that there was a need for an explanation because of prior communications from the complainant about another matter.
5. The respondent denied carrying out a breast examination, and said that he was examining the chest because of chest pain and shortness of breath which had lasted for about a week. He conceded that he had not asked the patient for her permission to move her bra above her breasts. He said it was his normal practice to remove the bra from the breasts before conducting an examination of this kind. He had conducted the further chest examination because the patient still had shortness of breath and chest pain and he had checked this with his stethoscope after carrying out the second ECG.
6. He denied finding any lump on the third visit by this patient.
7. There was discussion during the course of the evidence concerning a report by the respondent that there had been "tethering" of the patient's skin in the breast area which was a serious matter. In the course of giving evidence the respondent indicated that he should not have used that word in describing what he had seen, and that it did not constitute tethering in a clinical sense. We need not pursue this matter further.

The status of the expert evidence

1. In submissions, counsel for the respondent emphasised that the conduct complained of commenced in 1993 and extended over two periods of time, namely between 1993 and 1995 and 2012 to 2013. We shall shortly discuss the provisions of section 139B of the Act. For present purposes it is necessary that we highlight that in order to determine whether the respondent is guilty of unsatisfactory professional conduct we must determine whether his conduct is "significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience." This will involve the determination of that standard, and whether the conduct of the respondent was significantly below it. It was submitted that there is simply no evidence before this Tribunal as to what was the relevant standard which historically applied in the period 1993 to 1995.
2. We observe that neither of the experts were directed either in examination in chief or cross examination to a consideration of whether any different standard applied in 1993 to that which now applies.
3. The respondent submitted that even though this Tribunal has wide powers and a wide discretion in the conduct of enquiries of the kind which we are presently considering, "that power would not extend, for example, to making its own enquiries into such matters as the standards applicable in 1993, if that matter has not been adduced or produced by the parties. It is our submission that there is no document put before the Tribunal that clarifies the standard applicable before 2012 in relation to the complaints concerning the conduct of clinical examination." The complainant responded that the material placed before both experts included the dates upon which the conduct allegedly occurred, and in expressing their opinion they must be taken to have had regard to the relevant dates. We agree that we are entitled to consider these proceedings on the basis contended for by the complainant, particularly as no questions of any kind were raised by either party concerning any possible variations in applicable standards over this time period.
4. Furthermore, there are features concerning the clinical practice of medicine and the ethical basis upon which it is to be conducted that are clearly within what might be described as "matters of common knowledge" of the kind referred to in Health Care Complaints Commission v Schmidt [2016] NSWCATOD 145 at [144] and following. The Particulars of the Complaints dating back to 1993 concern matters such as the examination of young female persons conducted without anyone else being in attendance, and an adult female, in all cases requiring the patient to remove clothes and expose sensitive parts of the body without clinical reason, without explanation and without obtaining consent. No suggestion has been made by or on behalf of the respondent that conduct of this kind was permissible in 1993. We proceed on the basis that we are entitled to have regard to the evidence of the experts to assist us in determining whether there has been unsatisfactory professional conduct by reference to conduct which is "significantly below" the standard which applied during the course of the time period covered by these proceedings.

Findings on the evidence

1. In the course of our review of the evidence, and in particular the evidence given by each of the five patients of the respondent, we have examined the veracity and reliability of that evidence as it concerns the matters which are the subject of these proceedings. We are unable to conclude that any of these patients has acted out of malice or for any other reason which would disclose some motivation for exaggerating or manipulating their narration of what occurred during the course of their consultations with the respondent. We acknowledge the forensic difficulties which confront the respondent in dealing with the evidence of these patients. They profess to have a clear recollection of the significant matters that they experinced, and the respondent, by reason of the effluxion of time, has substantially been forced to respond concerning his conduct by reference to such material as is contained within his clinical notes. If this were a case involving one female patient only whose evidence was vehemently rebutted by the respondent, we would be faced with a more difficult decision in making factual findings. However, these proceedings involve the circumstances of five female patients, all of whom have expressed anger and concern about the conduct of the respondent, and none of whom appear to either know each other or to have colluded in any way concerning their evidence. An evaluation of all of the evidence concerning all of the patients demonstrates that the respondent has engaged in a course of conduct involving inappropriate examinations conducted in an inappropriate manner which we conclude was udertaken for sexual gratification. The aggregation of the evidentiary material reinforces the acceptance of the evidence of each individual patient.
2. It must follow from our consideration of the evidence of each of the patients in the context of the expert opinions to which we have referred, and taking into account the evidence of the respondent, against the background of the documentation to which we have referred that we can be comfortably satisfied that each of the Complaints and each of the Particulars of complaint has been made out.
3. It was unnecessary for Patient A to have removed all of her clothes, and it was unnecessary for the respondent to have carried out the physical examinations in the manner in which he did. In the absence of any valid clinical purpose for the manner in which he conducted the examinations, the only possible inference in all the circumstances is that the respondent did what he did for sexual gratification. There can be no other reason why he would have conducted himself in this manner. In so concluding, we acknowledge that minds may differ about the clinical necessity for some parts of the examinations, such as the vaginal examination of Patient A on the second occasion. Even allowing for an element of doubt in favour of the respondent in this regard, the overwhelming circumstances point to conduct for sexual gratification. We make the same findings concerning the conduct of the respondent when examining Patient B. In addition to the inappropriate exposures of the breasts of this very young and vulnerable person, it was entirely inappropriate for the respondent to have conducted the abdominal examination when her only complaint related to bronchitis. Again, the nature and extent of the conduct of the respondent leads inevitably to the conclusion that his behaviour was motivated by sexual gratification. Even though Patient C was an adult and, on the evidence, a mature woman, nevertheless she reported strong feelings of violation and personal intrusion by reason of the inappropriate conduct of the respondent. Again, we consider that this conduct was of a sexual nature. With respect to Patient D, the failure of the respondent to diagnose, further investigate or review the possibility of a lump in her breast in circumstances where it is clear that there was no such lump, are indicative that the respondent's examination was conducted for sexual gratification rather than any appropriate clinical purpose. The same circumstances apply to Patient E. Furthermore, the manner in which he raised her underwear to expose her vaginal area and his decision to conduct a second ECG when this could not be clinically justified is again indicative of a course of conduct motivated by sexual gratification.
4. Indeed, in its totality the inappropriate conduct of the respondent as we have described it could only have been motivated by sexual gratification because he was unnecessarily and inappropriately exposing sensitive parts of the bodies of these five patients without their explicit consent, and inappropriately touching them.
5. We find also that by reason of these matters both individually and in the aggregate that the respondent is guilty of unsatisfactory professional conduct.

Professional Misconduct

1. It is now necessary to determine whether the respondent is guilty of professional misconduct as asserted by the complainant.
2. By reason of the definition contained in section 139E which we have set out above, it is necessary to determine whether the unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or there is "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." This directs attention to a consideration of those circumstances which would justify suspension or cancellation of registration. Whilst this involves the exercise of a value judgement having regard to all of the relevant factual circumstances, it must be undertaken in the context of the statutory regime which applies to these proceedings.
3. It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction there are a number of matters to which we must have regard. They have been most recently, succinctly, referred to in the judgement of Meagher JA in the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said;
4. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
5. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted."
6. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest."
7. We should make it clear that in determining whether the conduct of the respondent may be characterised as professional misconduct justifying cancellation or suspension of registration, such a characterisation is not necessarily determinative of any consequential appropriate protective orders. Our concern for present purposes is to determine whether or not the conduct is such that cancellation or suspension is warranted. In determining this matter we have regard to the protection of the public, the maintenance of public confidence in the integrity of the profession, and the deterrent effect both on the respondent and on other medical practitioners.
8. We have already concluded that the misconduct of which we have found the respondent guilty carries with it sexual connotations of a most serious kind. The background to which the conduct of the respondent is to be considered is succinctly and appropriately summarised by the following extract from the judgement of the New South Wales Court of Appeal; "Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest."( HCCC v Litchfield (1997) 41 NSWLR 630 at 638)."
9. It is entirely uncontroversial that a medical practitioner must not physically, emotionally, or sexually exploit a patient. All of these patients were female, and two of them were particularly vulnerable because of their very young age and lack of adult support.. A medical practitioner, such as the respondent, who has, as we have found, deliberately and intentionally carried out inappropriate examinations in an inappropriate manner for sexual gratification is clearly guilty of professional misconduct. We repeat, there can be no motivation for the manner in which the respondent exposed and viewed the bodies of these patients, including sensitive areas, and touched them in circumstances where there was no adequate or appropriate clinical reason for doing so, other than sexual gratification. We find that in the aggregate the conduct of the respondent constitutes professional misconduct.

Order

1. The proceedings are stood over for stage 2 hearing to determine what protective orders should be made on 17 and 18 May 2017. 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: 06 April 2017