Health Care Complaints Commission v CNU

Ground 1 of The Complaint

1. This Ground reads: 1. the practitioner of [address] being a medical practitioner registered under the National Law is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and / or 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine.

BACKGROUND TO GROUND ONE 1. At all relevant times, the practitioner practised as a general practitioner at [a group practice at Sydney]

PARTICULARS OF GROUND ONE 1. On 30 December 2013, during a consultation, the practitioner failed to observe professional boundaries whilst performing a vaginal examination with two fingers on [N] in that he: 1. inappropriately rubbed [N]'s clitoris with his thumb; 2. inappropriately rubbed [N]'s stomach under her shirt; 3. while performing the acts referred to in (a) and/or (b) above: 1. inappropriately asked [N] "does this feel good?; 2. had his eyes closed. 1. By reason of any of the matters referred to in 1 above, the practitioner engaged in inappropriate conduct of a sexual nature towards [N]

Ground 2 of the Complaint

1. Ground 2 is: 1. the practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.

BACKGROUND TO GROUND TWO 1. As per Ground 1.

PARTICULARS OF GROUND TWO 1. Ground One and the particulars thereof are repeated and relied upon both individually and cumulatively.

The Evidence

1. The evidence comprised the following: 1. Complaint dated 9 July 2015 and amended complaint filed 23 November 2015; 2. Certificates of Registration Status: 3. Notification by AHPRA received at the Commission on 7 February 2014; 4. Commission statement from N of 14 May 2014 annexing: 1. Police statement from N of 30 December 2014 2. NSW Police Listening Device Transcript 1. NSW Police statement from N's sister of 17 October 2014 2. Statement of Ragini Mishra Lewis. Legal Officer, HCCC sworn 31 August 2015 3. Letter of 14 April 2014 from Avant Law to the Commission forwarding response of 10 April 2014 from the practitioner: 1. Letter of 6 May 2014 from the Commission to the practitioner; 2. Email correspondence between Commission and Avant Law, 7 May - 17 June 2014; Medical record provided by the practitioner of consultation on 29 December 2013 1. Letter of 4 September 2014 from Avant Law to the Commission: 1. Email correspondence between Commission and Avant Law; 2. Section 34A notice issued 9 September 2014 3. Section 34A response of 12 September 2014 from Avant Law 1. Section 40 letter of 24 October 2014 from the Commission to the practitioner; 2. Edited Expert Reports provided with Section 40; 3. Email of 27 October 2014 from Avant Law re redacted expert report; 4. Letter of 30 October 2014 from the Commission to Avant Law 5. Expert report of Dr Jitendra Parikh dated 19 October 2014; 6. Dr Parikh's curriculum vitae 7. Medical Records of N from [the group practice]: 1. Section 34A Notice requesting full record 2. Email from Commission to ldameneo dated 17 June 2014 3. Letter from Idameneo to Commission dated 25 July 2014 1. Appointment schedule of 29 December 2013 for the practitioner; 1. File Note of 24 October 2014 1. Exhibit A1 - transcript of evidence of the practitioner in proceedings on 13 October 2015; 2. Exhibit 1 - photographs of interior of [the group practice]; 3. Exhibit R2 - arrival times and other details in respect of patient seen by the practitioner on 29 December 2013; 4. Transcript of Supreme Court evidence of respondent on 13 October 2015. 5. Statement of the practitioner of 20 October 2015; 6. Report by Dr C Lilienthal of 20 October 2015; 7. References for the practitioner by: 1. Dr S Sulieman of 8 November 2015 with letter from Avant Law of 20 October 2015; 2. Dr T Schindler of 28 October 2015 with letter from Avant Law of 28 October 2015; 3. Dr N Bashir of 25 October 2015 with letter form Avant Law of 28 October 2015; and 4. Ms K Skipworth with letter from Avant Law of 20 October 2015. 1. Oral evidence of N on 23 November 2015; 2. Oral evidence of the practitioner on 23 November 2015; 3. Oral evidence of Dr Lilienthal; 4. Oral evidence of the practitioner on 24 November 2015.

Attendance Records at the Medical Centre

1. Exhibit R2 are attendance records for patients who saw the practitioner at the medical centre on the day he saw N.
2. The attendance records include the time arrived at the medical centre on 29 December 2013, the number of minutes she waited before her consultation with the respondent commenced, and similar details for the next patient who saw the respondent that day.
3. For the sequence of patients that included N and the next patient after N the figures are: Patient Arrival time Wait time (mins) Consultation start time M 10:44am 49 minutes 11:33am S1 10:54am 31 minutes 11:25am S2 10:56am 27 minutes 11:23am Patient E 11:00am 36 minutes 11:36am Patient G 11:00am 55 minutes 12:06pm N 11:16am 47 minutes 12:03pm Next patient 11:18am 53 minutes 12:11pm

1. According to these records, the consultation by the respondent with N lasted for about 5 minutes, however, there is a disparity in respect to the start times in that the start time for patient G seems to be after the consultation with N has commenced.
2. It appears that the record for patient G is incorrect as both G and N did not testify that there was any interruption to the consultation. It appears that the consultation was from 12.03pm to 12.11pm; about 8 minutes.
3. The evidence in the records of the practice is that N's date of birth is 31 October 1996 and she was 17 at the time of the relevant consultation. In her statement to the police, N said that when she arrived at the medical centre the receptionist informed her that there were 5 doctors on duty and that there were 32 patients waiting to see a doctor.
4. Exhibit R2 also discloses that the respondent saw his first patient that morning at 10:00am and his 24th patient at 12:44pm, so that the average time that he spent with the first 23 patients he saw in that period was about 7 minutes.
5. The medical records of N prior to the subject consultation are in evidence and, according to the records N first attended the medical centre on 14 July 2010 when she was 13 years of age.
6. At a consultation on 5 December 2010, she complained her heavy periods and more heavy and more frequent periods and at her request she was prescribed a contraceptive pill. She was 14 years of age at the time.
7. On 17 September 2011 N attended with various complaints including dysuria and various pathological tests of her urine were ordered, which did not demonstrate infection.
8. Further laboratory tests were ordered on 6 October 2011. She was not quite 15 years of age at the time. She informed the doctor that she had been sexually active since the previous year. She was concerned about whether she was pregnant and the tests for this proved negative.
9. Tests were ordered for chlamydia and gonorrhoea. On 18 October 2011 the doctor wrote and asked her to attend regarding the results. On 25 October 2011 the diagnosis of chlamydia was discussed and a prescription of antibiotics was provided.
10. She returned for follow up checks on 11 December 2011 and the diagnosis of chlamydia was discussed. Antibiotics were prescribed and the plan was repeat urine testing after the antibiotics. She requested a "routine health check" and raised issues about immunisations, and problems with her foot. She said that she wanted a routine health check because she was trying to improve her life. Specifically raised was a lump on the back of her heal and sore skin on her foot following a burn. In relation to immunisations, she said that she wanted a check-up as she thought that she might need some. A cervical swab, urethral swab and urine sample were taken and sent for laboratory tests. Numerous other tests were ordered.
11. She said that she also needed to have a check at her next review regarding her contraception requirements. She had turned 15 years of age 7 weeks before.
12. On 30 March 2012 she underwent a pap smear and the result was normal. The pathology result noted: "Sexually active for 3 years. Strong family history of cervical cancer." She also requested and was provided with a contraceptive pill prescription. She said that she needed the contraception for period control. She told the doctor that she had a new partner and that they used condoms most times. She was advised about condoms and the doctor stressed that the pill would be no protection against sexually transmitted diseases.
13. During that appointment, N told the doctor that she had been sexually active since the age of 12 years and her mother had been aware of this. The doctor recorded "normal looking cervix" and "smear taken". The doctor also discussed with her sexual activity, the need for it at such a young age, and the consequences. The doctor noted "not willing to engage". The cervical smear result was "normal". The record does not disclose who informed her of the result.
14. The next attendance at the surgery was on 9 April 2012 and was the first occasion that the practitioner attended on her. He gave her a repeat prescription of her contraceptive pill. On that occasion she also consulted with the respondent in relation to other health issues, including a burn injury He also advised her regarding dressing of the burn, provided a certificate for her to have time off work and a nursing request, prescribed a cream and an ointment and gave her some analgesic pills for the pain from the burn because she said she had no money to buy them.
15. On 5 May 2012 she attended the Centre as a result of injuries to her ankle and an armpit in a fall on stairs. She also obtained a further contraceptive prescription.
16. N attended at the surgery on 3 June 2012 and on that occasion saw the practitioner. She raised various health issues and one was that her former boyfriend had told her the last week that he had a sexually transmitted disease. She said that she was not sure if he was joking and requested tests for chlamydia. Tests were ordered and proved clear. A further smear was taken to test for Chlamydia.
17. N attended on 17 June 2012 and again saw the practitioner. She expressed concern about a vaginal discharge (recorded as "yellow and purulent") and dysuria. She said she had used a vaginal thrush cream "with no effect". The practitioner advised her "needs swabs". He recorded "offered chaperone or lady dr ---declines. Swabs taken - healthy v/v".
18. The respondent took swabs ordered pathology tests. He prescribed antibiotics and asked to see her in 48 hours. She returned to see him on 24 June 2012 for the results, which were clear for chlamydia and also for gonorrhoea.
19. On 8 August 2012 she attended and saw a doctor. At that time she was 15 years of age. She complained of a "thick yellow discharge - fishy smelling". She said that she had only 1 occasion of sexual intercourse since the previous swab was taken. The Doctor noted "is on period at moment . reassured. Advised likely bv. See if no better abd swab after period".
20. When N attended on 20 October 2012 she was almost 16 years of age. She expressed concerns about having a sexually transmitted disease and wanted testing. She said that she had a new boyfriend. The doctor she saw ordered tests including for pregnancy, HIV, and hepatitis. She returned to the medical centre on 26 October 2012 to review the results of the tests. The available results were clear. The doctor recorded "apparently had stopped the pill last month" and that "she had unprotected sexual intercourse around 14 October 2012". Results for chlamydia and gonorrhoea had not yet been received, but the doctor told her they would be available in 3 days.
21. She did not attend the Centre again until 7 December 2012. Meanwhile the results for chlamydia and gonorrhoea were apparently clear.
22. She next attended on 20 March 2013 and made enquiry "about resuming sexually activity". She said that she had (previously) been diagnosed with chlamydia. She was given advice to use condoms.
23. On 1 April 2013 she saw the practitioner. The issues that she discussed were a dizzy spell that day, an injury she had sustained from a fall, giddiness, a blackout in the shower, recurrent blackouts, chest pain, a graze to her forehead, chest pains, and continuing consultations with a cardiologist on referral by another doctor. She was given a specialist referral and advised to go to a hospital because of her chest pain.
24. On 2 April 2013 she attended and again saw the practitioner. The issue that she discussed was the result of her hospital attendance the day before and a plantaer wart.
25. She next attended the medial centre on 4 November 2013 and again was attended by the respondent. The complaints raised concerned pain in the left foot and ankle after a slip / fall. She was provided an off work certificate and a prescription for panadeine forte tablets. An X-ray disclosed no obvious fracture. The respondent advised her "both back slab and elevation" and arranged to have a review in a week's time.
26. When she did return 9 days later, she saw a different doctor.
27. N attended the Centre on 5 December 2013 and apart from issues concerning her foot and ankle she requested an "STD check-up". She said she had only 1 male sexual partner over the past 12 months. She was 17 years of age at the time of the consultation.
28. N said that her reported partner had cheated on her. She requested an STD screening, including HIV testing and was advised about this and about the post window period before she could be cleared of HIV infection. The doctor who saw her ordered various pathology tests in relation to hepatitis, chlamydia and other sexually transmitted diseases and it appears from the medical record that the tests included "PCR (urine, cerv/ureth swab)". It appears a cervix swab was taken, but the record does not indicate whether a speculum was used. Those results were negative and she was informed of this when she attended on the next occasion on 15 December 2013. She complained then of a vaginal discharge with smelling. The record states that a single vaginal swab was taken and does not state whether or not a speculum was used. The doctor prescribed medication and advised that she have a repeat test in 3 months "post window period". He then discussed contact tracing. It was suggested that she have a review in 3 days time (18 December 2013), for the results.
29. There was a phone call to her on 18 December 2013 asking her to come back for antibiotics. She said she probably couldn't come that day and would probably come on 19 December 2013. The pathology tests disclosed at that she had chlamydia. She did not attend the centre again until Sunday 29 December 2013.

Medical Record written by the practitioner on the computerised medical record for the patient on 29 December 2013

1. The medical record made by the practitioner on the day is: 29-Dec-2013 c/a LIF pain [the practitioner's initials] worst on micturition has had Chlamydia in past--worried of same Vaginal discharge++ Bowel opening regular LMP not sure but one week ago afebrile not pale abd soft LIF tenderness, no Rebound no Cross tenderness Speculum exam done--declined Chapperone (sic) Diff to visualise cervix initially but managed after lifting the pelvis Bimanual palpation and Cervical Exitation negative, no Ovarian masses palpable Copious vaginal discharge with fishy odour, not purulent Endocervical swab taken- Tinidazole review one week for results 29-Dec-2013 Rx: 4 - Tinidazole 500 mg (Fasigyn) [the practitioner's initials] OBx: New Pathology Form , C.trachomatis PCR(cery swab) 29-Dec-2013 IBx: Chlamydia Per (Chm-0) [the practitioner's initials]

Evidence of N's Boyfriend

1. N has said in a statement she made to the police the day after the alleged assault "…when I left the medical centre I got into the car with my boyfriend" (who will in these reasons be referred to as "S") "who was waiting in the car park for me. I told [S] what had happened in the doctor's rooms and asked if it was normal. [S] told me to tell my mum…"
2. There was no statement in evidence by S. The solicitor employed by the Health Care Complaints Commission has provided an affidavit in which she says "that there was a conference with her, N and counsel for the Health Care Complaints Commission on 1 April 2015 and that N informed them that her boyfriend had driven her to the medical centre on the day of the alleged incident and that S and N were no longer in a relationship, however he was willing to give the HCCC a statement in her matter".
3. In the solicitor's evidence she said in the week of 7 April 2015 she phoned S numerous times on his mobile number provided by N. She says "each time the phone rang before going onto a voicemail message requesting that a short 10 second message be left. On each occasion I left my name, telephone number, where I was calling from, and that it related to [N]".
4. She says that she informed N by telephone that she had not had any response from S. She repeated her attempts to contact S on 2 occasions and each time leaving her name, telephone number, where was she calling from and what the call related to. She made another 3 such telephone calls on 27 April 2015. "Each time the phone rang out and went to a voice message. On each occasion I left my name, telephone number, where I was calling from and what the call related to".
5. When she swore her (undated) affidavit, some time after 27 April 2015, she said she had received no response from the boyfriend. Nor was there any other evidence at the hearing that he had ever responded.

30/12/2013 - Statement by N to Police

1. It appears that it was not until the following day that a police statement was taken from N. The allegations made by N in that statement are that the practitioner informed N that the results of her tests showed a bacterial infection and its name, he asked about problems since the swabs, she told him of problems with pains "when going to the bathroom" and still some discharge and then:

".. he said he wanted to have a feel of my stomach He told me to lie down on the bed, so I laid down on the bed in the room on my back and [the practitioner]was standing on my right side, he began to feel around my stomach area as he was doing this I could feel him also lightly touching the top of my vagina on the outside of my clothes I could feel his fingers touching a (sic) rubbing the top of my vagina , this went on for about two (2) minutes, I was concerned as it has never happening (sic) before during these type of examinations…"

And later after further conversation and she at his request she took off her pants and lay on her back:

"I saw him put blue gloves on and rubbed (sic) lubricant which was in a white toothpaste type tube onto my vagina, he then put a clamp thing inside my vagina. I could feel him take a swab. I felt similar to the last time had swabs (sic) taken… then felt the clamp come out of my vagina and said he wanted to feel my ovaries. I did not say anything. I then felt him insert 2 fingers into my vagina and then with his thumb I could feel him playing (rubbing) my clitoris with his other hand under my shirt feeling my stomach. At first it felt like he was examining my stomach, but then he was just rubbing it, this continued for about six (6) to seven (7) minutes.

She said that he said to her "does this hurt?" and she replied "No". She said that he then said "does this feel good?" and she responded "What?" and looked at him and his eyes were shut and he appeared to have a smile on his face, but showing no teeth or a smirk"

She said "Excuse me?" and his eyes then opened and he said "does this hurt?" to which she replied "No". She then said that she felt him remove his fingers from her vagina and he told her to get dressed".

She said that before these events, the doctor had looked at his computer and told her that she had a bacterial infection. "He said the name of it but I cannot remember". He asked her if she had any problems since the swabs and she told him that she had pain sometimes when she goes to the bathroom and still some discharge. He told her that he wanted to have a feel of her stomach. She said that as he was doing this, she could feel him also, "lightly touching the top of my vagina on the outside of my clothes I could feel his fingers rubbin (sic) the top of my vagina, this went on for about two (2) minutes. I was concerned with this as it has never happening (sic) before during these types of examinations.

She said he asked her "does this hurt?" and she said "slightly hurting".

She said that he then asked if he could look at the discharge and asked if she wanted a female doctor to do that, but she declined the offer. He asked her to remove her pants and he prepared the items for the examination. She got onto the bed and lay on her back and he came over to the bed and closed the curtain behind him. He then put on the gloves.

1. She annexed to her police statement of the prescription he gave her to have dispensed for the infection.

24/1/2014 - Recorded conversation between N and the respondent using listening device

1. By arrangement with the police, N attended the medical centre on 24 January 2014. On arrival she was wearing a listening device provided by the police, and after speaking with the receptionist she was called by the doctor, and after some conversation about hurt fingers, she said that she was there to obtain the results of the tests. He informed her that the tests were clear and the result was that she did not have chlamydia. He advised her to use protection and also spoke to her about "gardnerella, a common vaginal thing. It's not an STI. But women tend to get it a lot and basically you come and get a script for ….it's something which gives you, can leave a lot of discharge and it will have like a fishy smell. But stop worrying. It's not an STI".
2. He advised her about the burns and exercising her fingers to avoid scarring. She said that she asked him what the examination was for on 29 December 2013. He said it was a speculum examination.
3. The conversation then proceeded as follows:

[Respondent] Like, you know how you put the thing, O.K. So you put that thing in and you open it wide. It's very uncomfortable actually.

[Respondent] I used that to get a swab done. How can I get any without it?

N Oh, O.K. All right. And what, what was the urn, the rubbing of the clitoris for?

[Respondent] No, I asked you if you felt any pain. Oh, look, I don't know. I don't know where you, because this is a bit uncomfortable and it hurts sometimes. And ah didn't ask you to put your, your hands under the bum to lift the thing. O.K. Well, what I might get you to do is next time if you're not comfortable with me if you have to have any examination done I might get a female doctor in there to examine you. O.K.

[Respondent] Because I don't know. I think you not comfortable with that, with, so this is, I mean, I generally don't, even the girls know I don't even do pap smears. I try to get the other lady doctors to do it for you. 'Cause you O.K. to do it when I ask you if you want to, we need to do a swab. And you have had a history of Chlamydia. We need to do a swab. The other doctor unfortunately didn't even do a swab for you last time. He took a swab but he took a vaginal swab. He didn't do an endocervical swab. An endocervical swab and a vagina swab is two different things. I'll explain it to you. O.K. Urn, and that's ah, that's your cervix from inside. O.K. And that's your vagina. So this whole thing goes right in there and it's, it's pretty uncomfortable because it has to go right deep in there and open it up whole thing. And then I took a swab from here. The other doctor that did the swab it's called a vaginal swab. He just takes from outside. Did you do it yourself or he did it for you?

[Respondent] Yeah, it's just from outside. And well, you can um, Gardnerella is the bug you pick with that but not Chlamydia. Normally I mean you've had Chlamydia before and, I don't know, he should have done both at the same time but urn, that looks like you were not comfortable with me last time. And you think I might have done something so I wouldn't do any swabs on you or anything in the future. If you've got anything to do with ah, ah, you've got two options. I can call in ah, what they call a chaperone or nurse to be with me or what I can do is get you to go and see a lady doctor. Hopefully there is some most of the time. O.K. Um, yeah.

N Urn, how do you like, do the ovaries like, check the ovaries?

[Respondent] Ah, ovaries you urn, you do a manual examination. Didn't you have pain last time? …look on the…. You had pain on this side. O.K. So you check it with your fingers. O.K. That, yeah, let me, I guess I might have manual, by manual what we call these two fingers go right deep very, very deep and press on both sides. That's very painful and very uncomfortable also. And you do it on both sides and that's to check if you've got ah, ah, ovaries infection, ovary cyst and all these things. I'm not sure if I did a pelvic, yes, I did it last time. Yeah, you had left ….. for some tenderness, yeah. Yeah, I did both actually speculum and left ….. …. I've written here your, your cervix was very hard to see so I was, I was probably a bit rough. Sorry

[Respondent] O.K.? But in future I wouldn't like to do any examinations on you because you're not comfortable. O.K.? So - -

2/2/14 - Notification - Complaint - by the Joint Investigation Response Team ("JIRT")

1. This document was prepared and dispatched by a member of JIRT based at Lakemba. It was prepared in response to a report to NSW Child Protection. As at 29 December 2013 N was only 17 years of age and a child.
2. It included the following: 1. Description of alleged conduct of respondent - "while conducting genital examination inserted 2 fingers into patient's vagina. GP then proceeded to rub patient on the clitoris for 1 - 2 minutes. GP asked patient if these actions "felt good?". Patient left clinic following assessment and sought advice from a family member who is a registered nurse as to whether this was an appropriate part of examination. Following advice that behaviour was inappropriate, patient made formal complaint with [police station].

14/05/2014 - N's Statement to Health Care Complaints Commission

1. In this statement N says:

"In preparing for the consultation with the practitioner wearing the Listening Device the police gave me a copy of my statement to review so that I would know what to ask the doctor. I recall when I was reading it I felt the time frames I had stated were not accurate. I wanted to mention this to the Police but at the time I was concerned this might make my complaint less believable.

At paragraph 12 of the Police statement I state, 'I could feel him also lightly touching on top of my vagina outside my clothes. I could feel his fingers touching a (sic) rubbing the top of my vagina, this went on for about two (2) minutes.' I would like to add that it felt like his fingers were between my legs and well below my underwear line. I describe this as taking place for about two minutes but in reality and upon reflection it was probably only fleeting and I'm not sure whether it was intentional, in that it didn't feel like he was doing it for long.

At paragraph 14 of the Police statement I state 'he then put a clamp thing inside my vagina' I would like to clarify that I did not see the clamp prior to my examination but I felt him insert it in my vagina. When I returned wearing a Listening Device on 24 January 2014, I recall the practitioner said to me he put something in my vagina and I challenged as I him thought that he hadn't. now recall that as reflected in my Police statement of 30 December 2013, he did insert an instrument. I made the error when talking to him as I was nervous about wearing the Police Listening Device. NOT IMPLEMENTED: support for w:pict - without v:imagedata Also in paragraph 14 of my Police statement I states that '...then with his thumb I could feel him playing (rubbing) my clitoris, with his hand under my shirt feeling my stomach at first it felt like he was examining my stomach but then he was just rubbing it, this continued for six(6) to seven(7) minutes.' I would like to clarify that whilst rubbing my clitoris the practitioner was rubbing my stomach at the same time. He was wearing gloves. I thought it was an examination as initially I could feel the practitioner press down on my stomach but then he was just rubbing my stomach.

I knew the practitioner was rubbing my clitoris as I could feel it being touched. It did not feel like he touched it accidently as it felt continuous and deliberate. I described in my Police statement that this took place for six to seven minutes. To clarify it felt like he touched my clitoris for this long. Upon reflection I think that this time frame is too long. It felt like a really long time but in reality I don't know exactly how long it occurred for. It was not fleeting and was long enough for me to become concerned that his actions were not appropriate and were making me feel uncomfortable"

17/10/14 - Sister's Statement as to what disclosure N made to her on 29/12/2013 in telephone call

1. The statement by the solicitor was not taken by the police and made by her until 10 months after the alleged assault. The sister was 20 years of age when she made the statement. Her evidence is that N was crying when she called her on her mobile.
2. She says that the conversation proceeded:

"[N] Said to me, "I need help, I went to the doctors to have a pap-smear and he did other things to me",

[N] said, "After the pap smear was done, He (the doctor) started rubbing my clit and asked me if it felt good, It felt like it went on forever", and she asked me if that was correct thing, "does this happen during a pap smear?", by [N] referring to her clit I knew she was referring to her vagina (clitoris),

I said, "no it does not, what doctor did you go to?" [N] said "My normal doctor at [medical centre], [name} or similar" NOT IMPLEMENTED: support for w:pict - without v:imagedata I said, "where are you now'?"

I was having trouble hearing [N] as she was extremely upset crying on the phone

I said, "Just head home and I will come over and talk to you about it"

23/11/2015 - Oral Evidence of N

1. At the time of giving her oral evidence, N was 19 years of age. Her cross examination could not be described as aggressive.
2. In cross examination N contradicted her sister's evidence. She denied that her sister advised her to go home and that she would come and talk with her about the allegations. She said her sister advised her to go to the police.
3. She was asked whether she made the statement to the police in response to police questions or just "narrated it". She did not appear to understand the question, but said, "I told [police officer] what happened and he asked some questions" and she answered them.
4. When asked whether the police statement was an accurate record of the conversation between her and the police, she asked for the question to be repeated. When it was repeated she answered "yes". She said that she was provided with a copy. She said she then had further contact with the police before 24 January 2014. Then, she said that she was unsure. When asked how long it was before 24 January 2014 that the police suggested the use of a listening device, N referred to her statement and then answered "possibly a week".
5. She was asked whether the police told her that they could get approval for a listening device to be put on her, and after a considerable pause she said "yes". She said that they had told her the reason for that. When asked what the reason was she did not respond.
6. It was put to her that the reason was to get the doctor to say something that would incriminate him. After a considerable pause she denied the proposition. Then she said "they said it was to get the truth about what happened".
7. She said in cross examination that she made another statement to the police. When asked if she signed it, she said she didn't. The question was repeated and then she said "I don't think so". A complaint was made to the HCCC and they then contacted her about making a statement. When she was asked whether that statement was the statement dated 14 May 2014, she asked for the question to be repeated. Eventually, after further questions, she said that it was.
8. When she was asked whether the practitioner had previously carried out an intimate examination on her, she answered "he may have". It was put to her that she had a number of genitalia examinations before 29 December 2013. She asked for the question to be repeated. It was repeated but referred to the examinations being by doctors. She confirmed the proposition.
9. She conceded that when she said in paragraph 14 of her statement to the HCCC that "I think I have had a previous internal vagina examination and a couple of pap smears" she was unsure as to how many. She said that she distinguished between pap smear examination and a vaginal examination. When it was put to her that before 29 December 2013 she had many pap smears, she answered "2 or 3".
10. It was put to her, that on those occasions the doctor inserted into the vagina a speculum and she responded "is that the thing they insert to take swabs?" She was then asked "on 24 January he showed you a speculum?" and she confirmed that this was correct. She then conceded that she had had previous swabs for a pap smear and a speculum was used.
11. After she was questioned further, she conceded that in the previous examinations a speculum had been used. It was put to her that the practitioner did 2 different examinations. She was then less than 30 minutes into her cross examination, N suddenly left the witness box and the hearing room. Before N left she appeared distressed. Later the panel was informed that it appeared N had left the building and her legal representatives did not know if she would return. It was some time before she was located and returned to the Tribunal premises. Later the hearing resumed.
12. N subsequently conceded in cross examination then that there were 2 different types of examination that the practitioner performed on 29 December: "one with speculum and one manual". She said that she had previously experienced the speculum examination on other occasions, and then said that she hadn't experienced the other examination previously.
13. She identified photographs of parts of the medical centre. She testified the large number of waiting patients were seated, but when asked where in the reception/waiting corridor area, she said she couldn't recall. But then she said "probably" not outside the practitioner's room, but near the reception. This appeared to be reconstruction rather than recollection. Then she said she couldn't remember if the seats outside the consulting room used by the doctor were occupied on the day by other patients. She identified a photograph which she said could have been the room where the consultation occurred and it included a desk, a computer and an examination couch in the room, with a curtain to go around the couch.
14. When she was asked how long she was in the consultation with the doctor she said she didn't know. She was asked if it was about 8 minutes and she said "I can't say". When asked what she told the doctor she answered "some". She said she asked for the results of the last consultation "and I did have some pain - on the lower stomach". She said "I think I told him it was painful when I urinated".
15. When it was put to her that she told him that she had a lot of vaginal discharge, she answered, "I may have. I'm not sure". She said that she didn't dispute that.
16. When asked whether she had said something about sexually transmitted diseases, she said "I can't recall. I could have". She said there could have been discussion of previous diagnoses of chlamydia.
17. It was put to her "you said that you had had it previously and worried you might have it again?" and she replied "I don't quite remember, but more than likely. I would have". She was asked whether she told him her bowels opened regularly and she answered, "I could've. It's difficult to remember the precise conversation". She couldn't recall whether they had conversed about her last menstrual period. It was put to her that they did and she said "I can't remember".
18. She conceded the doctor told her it would be necessary for him to perform an examination of her stomach. She denied that he told her that he had to feel around her "tummy area".
19. It was then put to her "He did tell you that and you accepted that". She replied "he told me what he was going to do but didn't explain exactly". Then it was put to her "or is it that you don't recall what he said?" to which she replied "I'm pretty sure he didn't explain it - completely".
20. She conceded that she had no previous problems communicating with him on other occasions. She agreed that after he told her what he was going to do she had agreed to it. On his instruction she got on the couch, and lay on her back.. It was put to her that she then exposed her stomach. She replied "I don't remember - he may have asked me. I don't remember".
21. She said she recalled that the doctor touched her stomach and was feeling around her stomach and lower abdominal area - the lower part of her stomach. She said that when he was doing that she took notice of his face. She was asked whether he was looking at her. She replied "I don't remember. I was looking partially at the doctor and what he was doing or the ceiling".
22. She was asked whether there was any conversation between her and the doctor during the examination of that part of her body and she answered "not that I recall".
23. She conceded that he asked "does this hurt?". When asked were there any other words used, her answer was "I don't recall". It was put to her that he asked her "How does it feel?" and she replied "I recall him asking if it was sore, like 'does this hurt?'"
24. She said that something concerned her "a bit" and when asked what it was she said "When he was doing my stomach his hands were lightly touching my vagina". She was asked whether that caused her some alarm, and she answered "Not immediately, but it did later".
25. When asked if there was any conversation after this examination, she said "I can't quite remember, but I know he said that he had to do a manual one - looking at the discharge". She said she was not sure whether the discharge smelt. She said "It may have been. Could have been a fishy smell".
26. It was put to her that he told her that he needed to carry out an internal vaginal examination and that this was to check about infection and also to check her ovaries. He said that he didn't mention checking her ovaries. It was put to her that he said that he needed to take swabs and she replied "I don't remember". When it was put to her that he said to her that he had to feel the ovaries by inserting 2 fingers into the vagina she confirmed that that was so. When asked if there was any other conversation prior to the internal examination, she answered "Yes. He asked me to get on the bed and prepare while he got ready. He also asked about whether I wanted a female doctor or a chaperone. I did not want a chaperone".
27. Then she said when she got on the examination couch that there was a curtain around it. He said that he had prepared the equipment and came to the couch with the equipment. She said then he asked her to lie on her back and pull her legs up. When asked what was the next thing she could recall she said "I can't remember".
28. When it was put to her that he next thing he did was to insert the speculum in her vagina and she was asked, if she remembered, she answered "yes".
29. She agreed that he then inserted the speculum in her vagina. It was put to her that when she went to the consultation on 24 January 2014 she had suggested to him that he had not used the speculum, he told her that she was wrong and later explained what happened. She claimed that she had told the police that. She was asked to read her police statement and identify any other errors. She read the statement and replied "No".
30. She conceded that when she saw the practitioner on 24 January 2014 she told him that he had not used the speculum on 29 December 2013.
31. She was asked that after he inserted the speculum on 29 December if there was any conversation. She said "Not that I can recall".
32. She was asked whether she recalled him asking her to re-position herself. She replied "No. I don't recall him having to move the speculum around". She said she didn't see him take a swab on 29 December. It was put to her that after she moved he took a swab and put it in a container, but she did not agree.
33. She said that after she had the speculum examination he put 2 fingers in her vagina. She said "I hadn't had that before" but it "didn't come as a shock to me" and she conceded that there "was a degree of discomfort in that".
34. She said that there was conversation about the discomfort, but she couldn't recall it. She then said "He did use the word 'feel'". Then she said that he said "does that feel good?" It was put to her that he did not say "Does that feel good?". She responded "He did".
35. When asked when she observed his eyes closed when he was doing the "internal" examination.
36. She said that it is alleged that he had "a grin" on his face. She conceded more often when she observed his face he did not have a smile on it. But she also testified that she couldn't recall any time he was looking at her while doing the examination.
37. It was put to her that she was uncertain as to the times. She replied "I'm clear on the times". She conceded that she does not maintain the estimate of 6 - 7 minutes that she had told the police as the period during which he was rubbing her clitoris. She conceded that she has changed her evidence and said that it was 2 minutes. It was put to her that she is now saying "more like fleeting - a light touch of rubbing".
38. She said that the word "fleeting" was a word that she used meaning "a light touch". She was asked where she was looking when he had his fingers inserted in her vagina. She answered "at the beginning I was looking where he was. Then it got really uncomfortable so I looked at the ceiling".
39. In re-examination she was asked what she meant when she said "when she got uncomfortable" she looked at the ceiling. She replied "when he started to touch my clitoris. I felt uncomfortable…. I know it was wrong".
40. After the examination, he asked her to get dressed and left her on the couch with the curtain around it. He went to his desk where his computer was located. They had a conversation at his desk. It was put to her that he then gave her a prescription. She denied that, even though she had said that he did in her police statement of 30 December 2013 and the prescription was annexed to the statement..
41. It was put to her again that he gave her a prescription. She replied "not that I recall. He told me not to drink alcohol so probably it was an antibiotic. He didn't tell me what caused it. I never knew previously of gardinella". She said after she got the prescription she left.
42. When asked about what she told her sister afterwards, she said that she did tell her sister that she had a pap smear. Said that she didn't want the family to know. She said she asked her sister whether the touching of the clitoris occurs with pap smears and her sister said it doesn't. She said did recall the doctor telling her that he had to feel her ovaries.
43. She was asked if she had any genital examinations other than those already disclosed and she said "possibly. I don't remember".
44. It was put to her that she had the wrong impression of what the doctor did that day and she firmly answered "No".
45. It was put to her that he "didn't act improperly" and she responded "I know for as fact that he did".
46. N was not an impressive witness. At times she appeared to have a hearing problem or a problem understanding even very simple questions. She was slow in responses at times. When she left the tribunal during her cross-examination, she appeared to be quite distressed, but this could have been consistent with her complaints being true and might have been consistent with her complaints being uncertain, reconstruction, exaggerated or false.

10/04/2014 - The Practitioner's Response to Section 34A Notice of 2/4/2014

1. The Health Care Complaints Commission served on the practitioner or his solicitors Section 34A notice dated 2 April 2014. The noticed if not in evidence but the solicitors for the practitioner replied on 10 April 2014 the following information was provided "as provided by the notice":

"I performed a vaginal examination' on [N] at a consultation on 29 December 2013. As that part Of that examination, I performed a bimanual examination during which I inserted two fingers into her vagina and used my other hand to palpate her lower abdomen, I did not rub [N]'s clitoris at any stage during the examination I performed that day and I did not ask her "Does this feel good?". My eyes were not dosed during the examination and [N] did not say "excuse me?' during the consultation. I may have asked [N] "Does this hurt?" at some stage during the examination.

I do not have a detailed recollection of my consultation with [N] on Sunday 29 December 2013 and the information provided below, Is based on my clinical records and my usual practice.

[N] attended on 29 December 2013 complaining of excessive vaginal discharge, abdominal pain and some discomfort on micturition. She was concerned about having an infwction, particularly chlamydia, as she had had this infection in the past.

I discussed with [N] the need, initially, for an abdominal examination to investigate her abdominal pain. I explained the examination to her. [N] agreed to this examination. NOT IMPLEMENTED: support for w:pict - without v:imagedata I conducted an abdominal examination on [N]. I performed this examination with [N] lying on the examination bed on her back. [N] was partially undressed, exposing only her abdomen. I palpated the whole abdomen and noticed she had some tenderness in the left iliac fassae .

I then explained to [N] that she needed an internal vaginal examination so I could check for sepsis and also check her ovaries for any masses. I explained the examination to her and I asked [N] if she would like a chaperone to be present during the examination, which she declined.

[N] removed her underpants and I positioned her in the Lithotorny position for the examination.

I then, performed a speculum examination. According to the notes I had difficulty visualising the cervix and asked [N] to reposition her lower body. I turned the speculum around with the handle part facing upwards so I could visualise the cervix. I took an endocervical swab for chlamydia testing.

I then proceeded to perform bi-manual palpation of the uterus and ovaries. To perform this examination, I Inserted two fingers deep in the vagina and used my other hand to palpate the lower abdomen. I also moved the cervix to check for tenderness (cervical excitation).

I do not consider my notes regarding the consultation with [N] on 29 December 2013 are overly brief.

I attach a copy of my CV detailing my qualifications, training and experience as a general practitioner.

I produce a copy of my appointment list for 29 December 2013.

1. The Health Care Complaints Commission wrote again to the practitioner on 6 May 2014 by email, enclosing a copy of the computerised record of the consultation of 29 December 2013, and offering the respondent had the opportunity to clarify whether those were the medical records on which he based his response provided of the Commission, and if not, to provide a copy of any other notes and explanation as to why they were not captured in the medical records.
2. The solicitors replied by email on 17 June 2014 that they were endeavouring to provide a complete copy of the Centre's medical records for N.
3. The complete record of the consultation on 29 December 2013 was provided subsequently, as was the Centre's complete medical record for N.
4. There was some delay occasioned by the fact that the practitioner, after the consultation on 24 January 2014, had on the medical centre's computer system classified records of the medical records of N as "confidential". His explanation for that conveyed by letter of 12 September 2014 was:

"During the consultation with the practitioner on 24 January 2014, [N] raised a number of sensitive issues regarding the examination of the practitioner performed on her, during the previous consolation on 29 December 2013. the practitioner marked [N]'s records confidential following the consultation on 24 January 2014, to restrict access to the records and to ensure the records were not copied without him being notified".

1. On 24 October 2014 the Health Care Complaints Commission wrote to the practitioner advising that an expert had been engaged and had reported to the HCCC. It stated in the letter:

Based only on the version as provided by [N], the expert stated that it was inappropriate for the practitioner to rub [N's] clitoris with his thumb during the vaginal examination on 29 December 2013. The expert found that this conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and in the light of the expert's strong criticism.

Based only on the version as provided by [N], the expert found the practitioner's comment to [N] asking 'does this feel good' in circumstances where he had his fingers in her vagina with one hand and rubbing her stomach with the other hand, whilst his eyes were closed was inappropriate. The expert found this conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and invited the expert's strong criticism".

1. The HCCC invited the practitioner to respond within 28 days.
2. A copy of the expert's report was enclosed, but parts of it had been redacted. The solicitor for the practitioner via email on 27 October 2014 asking for a complete copy. The response was not to provide a complete copy and said the redacted material does not have any impact on the substance of the grounds for the Commissions' proposed action.

20/10/2015 - Evidence by the Practitioner- the relevant parts

1. The practitioner qualified as a doctor of medicine in 1997 and has continuously worked since then - first as a medical practitioner in Tanzania until 2003 when he migrated to Australia, then as an intern at Gold Coast Hospital in paediatrics and surgery, then from September 2003 to January 2004 as a Junior House Officer at Ipswich Hospital in Queensland, then from January 2004 at Nambour General Hospital in Emergency Medicine, Night Ward on-call, Orthopaedics and Paediatrics. He passed the Australian Medical Council exams in April 2004. He then worked as a Junior EM and Registrar at Australian hospitals until December 2008 when he obtained his Fellowship with the Royal Australian College of General Practitioners. He then worked as a General Practitioner at Australian hospitals from January 2009. He has been a general practitioner in the present group practice since January 2012.
2. There are 17 doctors who work in the practice. On week days there are usually at least 10 doctors working and 6 - 8 doctors on weekends.
3. He says that he received notice of the complaint in a letter from the Commission dated 14 March 2014 and after reviewing the medical records of the patient for the purpose of preparing a response to the complaint, marked his electronic entries of the consultation on 29 December 2013 and 24 January 2014 as "confidential". He said "I did so to restrict access to the records, other than with permission from me. Given the sensitive nature of the matter, I did not want a copy of the records to be released, unless I was made aware that a request had been made".
4. In relation to the procedures for performing vaginal and bi-manual examinations, and the consultation with N on 29 December 2013 he says in his statement:

36. At the time I performed the subject examination on [N], my usual practice for performing an intimate examination on a female patient was as follows. My procedure varies depending on what the examination is for and whether a swab is needed because of discharge, for a Pap smear, or for a lesion. I advise the patient that I initially need to conduct an internal examination and take some swab samples. I ask the patient if they would prefer to see a female doctor for the examination. If the patient says no, I then offer to arrange for a chaperone to be present. When the patient requests a chaperone, if the patient did not attend with someone suitable to act as chaperone, I ask the practice nurse to act as chaperone. If the practice nurse is unavailable, I ask one of the receptionists to act as chaperone.

37 If the examination is for a routine Pap smear I advise the patient to see a female doctor as I do not generally do routine Pap smears. On occasions my regular patients refuse to see another doctor and I will perform a Pap smear on these patients if necessary.

38 I then ask the patient if they have had any previous internal examinations or tests like swabs or Pap smears taken. If the patient has previously had such examinations, I assume the patient has some understanding of what is involved in the examination.

39 If a swab is to be taken, I show the patient the speculum and tell them it will be inserted deep in the vagina and opened up. I advise the patient that if she feels any pelvic pain or tenderness while I am doing this, she should tell me. I advise the patient that I will then insert two fingers into the vagina and at the same time feel the abdomen, namely performing bi manual palpation for any mass, swelling or tenderness.

40 I ask the patient to lie down on the examination bed. I then give her a sheet to cover herself and I ask her to take off her pants or skirt and underwear. I then close the curtain around the examination bed and allow time for the patient to get undressed. I ask from outside the curtain if the patient is ready, before opening the curtain.

41 Firstly, I examine the patient's abdomen by palpation, feeling for any mass or tenderness. While performing this examination I look at the patient's face to see if she is experiencing any tenderness or discomfort. I ask the patient if she feels pain during the examination. Then I ask the patient to bend her legs so her feet are on the examination couch. I insert a speculum and adjust the light for better vision. If I have difficulty visualising the patient's cervix, I ask her to put two fists under her buttocks to lift up the cervix, or sometimes, I place a small pillow under the patient's lower back. I also turn the speculum upside down at times, with the handle and holding clasp on top, instead of on the lower side. I then take the swabs and remove the speculum.

42 NOT IMPLEMENTED: support for w:pict - without v:imagedata I f the presentation is for pelvic and or vaginal pain, or if there is an infective looking discharge, I will proceed to perform a bimanual examination. I do this by inserting the index and middle fingers of my gloved right hand into the patient's vagina. Lubricant is applied to these fingers prior to insertion. The thumb of this hand is pressed in towards my palm. Initially, I locate and assess the patient's cervix. I then palpate the uterine fundus with my two fingers, while using my gloved left hand to push the uterus down externally. I then locate and palpate the patient's ovaries with my two fingers, while using my gloved left hand to palpate the ovaries externally.

43 On occasions during the bimanual examination my thumb may come into contact with the patient's clitoris, particularly if the patient has a deep vagina or the organs are difficult to locate and palpate.

44 I look at the patient's face during the examination to see if she Is experiencing any tenderness or discomfort. I ask the patient if she feels pain during the examination. I also talk to the patient during the examination explaining my findings, for example saying "everything looks good".

45 On occasions, I make a comment along the lines of sorry this is not pleasant or is uncomfortable to try and make the patient feel comfortable while I am performing the vaginal and, or bimanual examination.

46 On completion of the examination, I close the curtain and ask the patient to get dressed. I then return to my desk and write in the patient's records.

47 When the patient dresses and returns to sit at my desk, I discuss the examination findings and management plan. I then give the patient any necessary prescriptions and I ask the patient to return to get her results.

48 Since 14 January 2015, my procedure for performing intimate examinations on female patients has changed, in that on all occasions I perform such examinations on a female patient, I am required to have a Medical Council of NSW approved chaperone present continuously. I am also required to inform the patient of the necessity of a chaperone being present continuously and I am required to ask each female patient or her carer, to sign the Patient Log/Chaperone Report".

49 [N] has been consulting doctors at the Practice since 14 July 2010.

I saw [N] for the first time on 10 January 2012 when she presented complaining of right sided plantar warts.

I saw [N] again on 1 April 2012 when she complained of having had a dizzy spell and blacking out.

I next saw [N] on 3 June 2012. On 3 June 2012 [N] attended complaining of right ankle trauma. During this consultation [N] told me that her ex-boyfriend had informed her the previous week that he had an STI. [N] was not sure if her ex- boyfriend was joking. She requested tests for chlamydia. She had no symptoms at that stage.

I advised [N] that I would arrange for chlamydia and gonorrhea testing to be performed on a urine sample. I gave [N] a request form for the testing and a specimen jar. I advised [N] to hand the urine sample to the pathology collection centre.

[N]'s urine specimen tested negative for chlamydia and gonorrhea.

I next saw [N] on 17 June 2012. [N] was again complaining of a plantar wart on her right foot. She also complained of dysuria and frequency. [N] had right upper quadrant pain but no fever. She thought she may have a kidney infection. [N] stated that she had a yellow purulent vaginal discharge. She was unsure of where she was up to in her menstrual cycle. [N] told me she had used cream for thrush with no effect. She was otherwise well.

I performed cryotherapy on [N]'s plantar warts. I advised her to return in two weeks for review of the warts.

With regard to her complaints of dysuria and frequency, I advised [N] that I would need to take swabs for STD testing. I offered [N] a chaperone while I was taking the swabs or suggested she see a female doctor to have the swabs taken. [N] declined the chaperone and the suggestion she see a female doctor. I proceeded to obtain an endo-cervical swab and a vaginal swab during a speculum examination. The swab was sent to the pathology lab for testing. I did not perform bi-manual examination or an abdominal examination at this consultation.

I advised [N] to commence antibiotics and prescribed Cephalexin capsules for her. I reassured [N] and advised her to complete the course of antibiotics. I advised [N] to return in 48 hours if her symptoms continued.

The swab result was negative for chlamydia and gonorrhea.

I saw [N] again on 1 April 2013, when she complained of having had a dizzy spell that day.

I saw [N] again on 4 November 2013 with left foot and ankle pain following a fall. I saw [N] later the same day with the results of an X-ray of her left ankle and foot which showed no bony injury

62 I next saw [N] on 3 December 2013 with the results of an ultrasound performed on her ankle.

63 My next consultation with [N] was the consultation which is the subject of the present complaint, on Sunday 29 December 2013. Sundays are usually very busy at the practice. There were other doctors working at the practice that day, although I cannot now recall how many there were.

64 At this consultation, [N] attended complaining of left iliac fossa pain. The pain was described as being worse on micturition. [N] advised me that she had a lot of vaginal discharge. [N]was concerned that she had had chlamydia in the past and was worried she may have it again. [N] advised me that her bowels opened regularly. She was unsure of when her last menstrual period was. I noted that [N] was afebrile and she was not pale.

65. I reviewed [N]'s recent records and noted that she had been seen by one of my colleagues at the practice on 5 December 2013. At this consultation, [N] attended the practice requesting an STD check. An endocervical swab was taken and investigations ordered. (This was what was referred to as the "genital swab" and may or may not have been take with a speculum).

66. [N] was seen by another colleague at the practice on 15 December 2013, to obtain her test results. [N]'s tests were negative for STDs. [N] also complained of a smelly vaginal discharge. A vaginal swab was taken at this consultation, which showed a heavy growth of Gardnerella vaginalis.

67. At the consultation on 29 December 2013, I advised [N] that I needed to perform an abdominal examination to investigate her abdominal pain. I explained to [N] that I needed to have a feel of her tummy. [N] agreed to this. asked [N] to lie on her back on the examination bed. [N] exposed her abdomen for this examination. I palpated [N]'s abdomen. I looked at [N]'s face while performing the examination to observe any signs of discomfort or tenderness. I found [N] had some tenderness in the left iliac fossa.

68 As [N] had tenderness in her left iliac fossa, I decided that an internal examination was also required.

While [N]was still lying on the examination couch, I explained to her that I needed to perform an internal vaginal examination to check for sepsis and to check her ovaries for any masses. I advised [N] that I needed to take a swab while using a speculum for the examination and also to have a feel of her ovaries by inserting two fingers in the vagina. I asked [N] if she would like a chaperone to be present for the examination. [N] declined a chaperone. I asked [N] to remove her underpants. I then left [N] alone, closing the curtain around the bed and prepared the equipment for the examination.

I returned to [N] and I positioned her in a lithotomy position for the examination. I then performed a speculum examination. I was initially unable to visualize the cervix and I asked [N] to reposition her lower body to assist with the examination. I moved the speculum around, so that the handle part was facing upwards so I could properly visualize the cervix. I then took an endocervical swab for chlamydia testing. I then proceeded to perform a bimanual palpation of [N]'s uterus and ovaries. I inserted two fingers deep into [N]'s vagina and used my other hand to palpate her lower abdomen. I also moved the cervix to check for tenderness. There was no cervical excitation and no ovarian masses were palpable. I noted that [N] had copious vaginal discharge with a fishy odour, but no pus.

I watched [N]'s face while performing the bimanual examination, looking for any signs of tenderness or discomfort.

I did not intentionally touch [N]'s clitoris during the examination I conducted. It is possible I inadvertently touched [N]'s clitoris while performing the bi-manual examination. I did not rub [N]'s clitoris.

Following the examination I advised [N] to return in one week for the results of the tests. I gave [N] a prescription for Tinidazole to treat her gardnerella. I advised [N] to take two tablets twice a day for one day. I also advised [N] not to drink alcohol while she is taking the Tinidazole.

I sent [N]'s swab sample to pathology to be tested for chlamydia.

I cannot now recall whether I asked [N] to sign the pathology request form, or whether I signed it on her behalf.

This consultation with [N] was billed to Medicare as a standard consultation.

[N] returned to see me on 24 January 2014. I explained the results of the swab to [N] at this consultation and assured her that she did not have chlamydia. [N] advised me that her vaginal discharge had cleared by that stage. I emphasized with [N] the need to use protection when she was having sexual intercourse. [N] then requested an explanation of what examination I had performed at the last consultation. I explained to [N] that I had performed a speculum examination - initially and subsequently, bimanual palpation. [N] told me that I had touched her clitoris and it did not feel good. I apologized to [N] if I had been rough or if I had touched her clitoris. I advised [N] that she would have a chaperone present on the next occasion or preferably would go to a female doctor for internal examinations or for any female related problems in the future.

On review of [N]'s medical records from the practice, I note although [N] has a Pap smear and a few swabs taken previously by doctors at the practice, it appears she may not previously have had a bimanual examination. In the circumstances, I should have explained to [N] in more detail the nature of the examination I planned to perform.

At no time during my consultation with [N] on 29 December 2013, did I ever have any intention to sexually assault her, nor did I carry out any act with any intention of gaining sexual gratification to myself.

1. In his statement the practitioner denied the following: 1. Inappropriate rubbing [N]'s clitoris with his thumb; 2. Inappropriately rubbing [N]'s stomach under her shirt; 3. Inappropriately asking [N] "does this feel good?"; 4. He had his eyes closed.
2. He denied the complaints

23 & 24/11/2015 - Oral Evidence of Practitioner

1. In his oral evidence the practitioner specified that 29 December 2013 was a "very busy day". He said that he saw 66 patients that day and maybe some others didn't wait. He said that it wasn't a normal day and was very busy. He said he had no recollection of calling the patient. He said that when he was carrying out the speculum examination it was "technically a little bit difficult". He said that he had to reposition the patient to put her fists under her buttocks and turn the speculum "the other way around".
2. He said that the wait period on the computerized listing of patients (Exhibit R2) is calculated until doctor opens the patient's file "just before the consultation". He said that "FA" beside N's name on Exhibit R2 indicates that she had not requested to see a particular doctor just the "first available". He said that he doesn't have an independent recollection of when he opened N's file on that day. He agreed with the proposition that he doesn't have an independent recollection of what happened in the consultation. He relied upon his usual practice and the medical record. He denies that there was any error in his statement. He said of his response of 10 April 2014 to the HCCC he set out the matters to the best of his recollection. He relied upon his notes and also his usual practice. He said he checked it before he sent it.
3. He said that he subsequently agreed to conditions that were imposed on his registration that he sees female patients only with a female chaperone. The female chaperone had usually been a registered nurse.
4. He said that although he told several doctors in the practice immediately that the condition had been imposed, he told the others of the allegations "within 2 months of the complaint". He also told other doctors in the practice.
5. He said that he told one of the doctors who had been his "buddy" doctor when he first entered the practice first and told him the details of the complaint.
6. When asked whether he departed from his standard procedure on 29 December 2013, he replied "not so far as I recall".
7. He said that on one occasion previously he had taken a vaginal swab from N on 17 June 2012. He repeated that his usual practice is that if a female needs a vaginal examination he would raise the option of a female doctor or a female chaperone. It was put to him that the description of what happened on 29 December 2013 did not include him offering N a female doctor. He said that was his usual practice and "I did do it". In her evidence N said he did offer her a female doctor or chaperone. He said that the omissions to in his statement did not mean that he didn't offer the option. He insisted that he did.
8. When asked, he said that there was nothing else that he had left out.
9. When asked to communicate where in the medical record that he stated that he asked N whether she had previously had a bimanual examination, he conceded that it didn't appear. He said "I may have asked her, but it is not documented".
10. He was asked if he tells a patient who is to have a speculum examination the detail that "the speculum will be in deep and opened up". He said that if patient has had a previous speculum examination, he does not. He said he that if the patient has had a previous speculum examination he does not tell them to tell him if they feel any pain or discomfort.
11. He said that his usual practice is to offer the patient a sheet for cover and he would have done that. When asked why it is not detailed in his entry for 29 December 2013 in the medical record, he said "because it's my usual procedure".
12. He said that he thinks that he asked N to put her fists under her buttocks. But it was not in the notes. He said it was necessary for her to lift her pelvis and that going by his usual practice and his notes he did it.
13. He also said that he talks to patients through the examinations to tell them the results. He said that although not noted, he would have done it on this occasion. When asked why he had left it out of the description of his usual practice, he said "I don't know".
14. He was asked "do you say that you discussed the results after she dressed?" He replied "I don't have any recollection of the actual examination. I would have". He said that it was not his practice to close his eyes while he was doing an examination. He said that he usually watches the patient to ensure that he is not causing pain or discomfort. He said that if the patient said that he had his eyes closed, she was wrong because he would be watching to observe whether "the patient's in pain or suffering pain or tenderness".
15. He said that he had no recollection at all of touching her clitoris. He conceded that it was possible to touch it when doing the bimanual examination and trying to touch her ovaries on the side. He was asked "would it be by finger or thumb?" and he replied, "I wouldn't have …. could be …. could be the base of my hand" and then he agreed that it could have been his thumb.
16. He said that when he told her he wanted to feel her stomach, she laid down on the couch and he examined her. He denied that he touched her on the outside of her clothes. He said he moved to the lower abdomen. He denied that he touched her below her underwear. He said that he would have asked her "does this hurt?".
17. The cross examination continued on 24 November 2014. In the witness box whilst in cross examination he also answered questions from members of the panel.
18. In his oral evidence on 24 November he said that he asked N to take off her pants and moved away to the end of the bed to get the items ready for the examination. It was put to him that he didn't actually close the curtain at that stage and he replied "No. I would have". He said that he opened the curtain to enter and then closed it behind him. He put on the blue gloves. He put on lubricant on the fingers (of the gloves), and on the speculum, but not the vagina. He said that he then inserted the speculum. He said he tried to get the speculum in place and then he eventually moved it into her after repositioning her and the speculum. Then, using the speculum, he took a swab.
19. Then he told her that he was going to do a manual examination and inserted his 2 fingers in her vagina. He denied that he then rubbed or played with her clitoris. He said that when his fingers were inserted, he palpated and he was palpating the abdomen (up under her shirt) and asked her if it was hurting. He said that he was not sure whether she said "No". He denied that he said "does this feel good". He denied that she said "What?" He repeated that he usually watches his patient's face when he is palpating. He said that he couldn't say whether he smiled at any time. He said that he could not recall her saying "Excuse me". He said that he had his eyes open and he has no recollection of her saying "Excuse me".
20. He said that he would have asked her whether it hurt at least 3 times. He said that when he took out his fingers, he told her to get dressed and he went out to his desk. He said when she was dressed she came out and sat on the seat near the desk.
21. He was asked whether at the prior consultations they had usually had friendly conversations and he answered "I don't know". He said that he asked about alcohol use and problems with alcohol and prescriptive medicines. He prepared a prescription and printed it out. He said that he told her what it was for and that it was part of his normal practice.
22. He couldn't recall whether she signed anything. He said a medical standard consultation does not require a patient to sign. Also for pathology that was being ordered, he would be able to sign.
23. He conceded that he had no prior problems with N and had never had problems with her treatment. He said that he could not recall having any argument or cross words between them.
24. His statement included the description of the visit by N on 24 January 2014. In cross examination he said that he had a recollection of that. He said he does remember the consultation and he relied upon his recollection in the notes. He said "I recall that when she came in and challenged me about the speculum examination and also told me she didn't think it was good that I touched her clitoris. I think she asked me why I touched her clitoris and she did not feel good".
25. He was asked about what his practice was in relation to preparing a record of the consultation and he said that he gets the patient history and enters it into the record whilst the patient is present. Sometimes he does it all at once but it's a short consultation then the patient is usually present.
26. It was suggested to him that in relation to this consultation he made notes, then did the examination, and then further notes. He said "I can't say, but possibly. Generally I would put the history part first and the rest later."
27. With regard to the notes of 24 January, he was asked whether he could recall how they were taken. He answered "I would have put the notes in straight the patient was there - there is a gap in the report - the patient has a different complaint raised". There is a gap between the discussion about the swab results and the notes about N asking about the examination on 29 December.
28. He considered that it wasn't part of that consultation to discuss the burn on [N]'s hand. When asked why that was not in the notes he said "It was not her presenting complaint". He was asked about the transcript of the recorded conversation of 24 January and generally agreed with the transcript, but he said that although she had a bandage on her hand and had a burn, she didn't want him to deal with that.
29. He said he doesn't see more females because "there are 3 or 4 (female) doctors there and most of the female patients prefer to see female doctors". He said that he would do a bimanual examination about once every 2 or 3 months.
30. He was asked about how he marked the entries for the new consultations as confidential and he said that there was a tab on the computer that allowed him to do that. When asked why he said that he was "shocked that she asked about touching her clitoris and she denied the speculum use. I was concerned that she might ask for them so the records could not be copied and sent elsewhere eg taken to lawyers". He also said that sometimes patients go to a second doctor and get copies of the consultation record for that purpose. He said that the procedure is "there has to be a formal request with an authority signed by the patient".
31. It was put to him that he didn't actually mark the consultation records "confidential" immediately after the consultation on 24 January. He said that he did do it on 24 January.
32. He conceded then that it was wrong for him to say in paragraph 31 of his statement that he marked them confidential after the letter from the HCCC in March 2014. He said "yes….my error".
33. It was said to him that the system that he described "doesn't protect the patient". He replied that the patient can get a copy from the practice manager and this can be given to others with the authority of the patient. He said that "certainly the practice manager can release a copy".
34. It was put to him that the records were "sensitive to you; not the patient" and he replied "maybe to both. But certainly for the patient".
35. It was put to him that he didn't want a copy released "unless you were made aware" and he answered "not necessarily". He was asked why he then at paragraph 31 of his statement that he marked the entries as confidential so to restrict access to the records, "other than permission from me. Given the sensitive nature of the matter, I did not want a copy of the records to be released, unless I was made aware that a request had been made".
36. He replied "it is normal practice". He denied that he did it because he wanted to be aware of any request made.
37. Counsel for the HCCC asked him in cross examination whether he had ever made up a story to protect himself. He answered "no". He was also asked whether he was sure of that answer and he answered "yes".
38. The answers were true. However he did concede when he was asked, that he had made up a story to protect his wife and told the police an untrue story to protect his wife. As it transpired, his wife had been charged with a criminal offence regarding personal injury to other persons. He and his wife had conspired by telephone to tell the police that there was a different explanation for the injuries. He later told police the truth and gave evidence in the Supreme Court in the prosecution case against his wife.
39. When asked further questions about the evidence that he gave in the Supreme Court, he said that he was offered an independent barrister and advised that he could object to giving evidence against his wife. He said the judge told him that he could do this as well. Asked why he did give evidence, he was tearful as he told the tribunal it was obvious that he didn't tell the truth to the police. "I conceded that we told untruths to the police and to the department of Community Services". When asked why he did it he said "I was trying to protect my wife and children".
40. In answer to questions from one of the panel, there was a possible explanation as to why the patient appeared to have been recorded as seen by the respondent during the period of the consultation with N on 29 December 2013. He said that if a patient waits and then leaves without seeing him or changed his / her mind and saw another doctor within the practice when called, that would be ticked off by reception. However, the latter explanation does not appear to have been recorded in respect to the other particular patient because the Y shown on the record is used to indicate that the patient actually commenced the consultation with the practitioner. It appears that the other patient may have waited, but left at 12.06pm.
41. In answer to questions from the panel, he said that there is a continuing problem regarding confidentiality of records. He instanced the problem where a psychologist makes his advice confidential and the doctor cannot access that.
42. In re-examination, he said that on 29 December he informed N of the result of her previous swab and based on his notes "I would have told her. I gave her a prescription for Gardenella".
43. He answered further questions to the panel and said that before examining [N] on 29 December 2013 he had a provisional diagnosis of pelvic inflammatory disease (PID) but also it could have been pregnancy. When he was asked how he ruled out pregnancy, he said "I think I asked her about her periods". He conceded though that he should have done a urine test.
44. He was asked about the practice of obtaining a trans-vaginal ultrasound at what stage would he consider referral for that. He said "if I had any suspicion of a mass or something like that. Also, if it was chlamydia again". When asked how often he feels the ovaries, he answered "if there is enlargement". He said the practice has had ultrasound for 2 years or so and they would want a radiologist to come in to do ultrasound per vagina and then report on it. He was asked about the timeframe at the moment for a trans-vaginal ultrasound and said "if I need something urgently it can be sent across the road to imaging and it is sent straight back. The practice has the use of the ultrasound of the practice".

Evidence of Colleagues of the Practitioner

1. There was evidence in the practitioner's case by 3 general practitioners and an enrolled nurse. None of these witnesses were required for any cross examination. All of the practitioners work in the same practice as the practitioner and have read the complaint. All of the doctors had been working in the same practice as the practitioner since 2012.
2. One of the doctors has been practicing as a GP for 33 years. Another has been practicing for 31 years and has a diploma of the Royal Australian College of Gynecology. The third doctor had been practicing as a GP since 2004 and has a Diploma in Child Health and is a Fellow of the Royal Australian College of General Practitioners. The doctors all testify to the allegations being inconsistent with all that they know of the practitioner. They have found him to be hardworking, caring, reliable, and thorough. He is regarded as an excellent clinician. They regard him as a person of integrity and of excellent character. He has an excellent reputation amongst his patients and in the community. He is married with 4 daughters. He is strongly religious and has high moral standards. He has treated the daughter of one of these doctors and another says that he would have no hesitation for the practitioner to be his children's doctor.
3. The enrolled nurse completed her Certificate V in Health (Nursing) in November 2008 and has been working in the nursing profession since then. She has been working in various health areas and has worked with the practitioner from February 2015 to July 2015 as an Enrolled Nurse and prior to that worked at the Medical Centre as the Enrolled Treatment Room Nurse and often assisted him. Her evidence is that the practitioner shows compassion, respect and dignity towards his patients and the patients praise him.
4. These witnesses' evidence is that the practitioner is a person of excellent character and reputation.

Conclusions

1. The evidence does not disclose any motive for N to invent a false allegation.
2. There are some objective matters that suggest that the conduct the subject of the complaints is unlikely to have occurred: 1. The fact that there has been no evidence of any prior complaint at all against the practitioner; 2. The evidence of his character, including that of colleagues that work with him and are aware of the allegations; 3. The practitioner had attended on N on other occasions but no concern arose from his conduct on any such occasion; 4. The practice was at the time very busy including about 32 patients waiting and the Practitioner seeing 66 that day; 5. The limited time taken for the consultation (about 8 minutes only); 6. The time taken by activities other than the examinations during the consultation, including initial greeting, conversation about the purpose of N's attendance and questions the doctor asked, informing N of the results of the former test, including in the patient record the description of the consultation so far, instructing N about positioning on the couch and removal of underwear, and preparing the equipment for the examinations. After the examinations there was the time taken for the doctor to withdraw himself and the equipment, then make the further entries in the medical record, produce the prescription for the antibiotic, sit with N and advise her of the plan, and escort her from the consulting room; and 7. The fact that even when she consulted the doctor on 24 January 2014 in the privacy of his consultation room and confronted him about the allegations, he denied them.
3. There are other matters that cast doubt on the allegations. They are: 1. The inconsistency in N's statement made the day after the alleged conduct with the length of time of events during the consultation. 1. The consultation was only about 8 minutes; 2. In her first statement the day after the alleged events, she claimed that "I could feel his fingers touching and rubbing the top of my vagina, this went on for about 2 minutes". 3. The allegation that the rubbing of her clitoris with his thumb was for 6 or 7 minutes. 1. Her failure to recall on 24 January 2014 that there had been a speculum examination at the time of the alleged offences; 2. Her failure to recall later that the practitioner gave her a prescription at the end of the consultation for the gardnerella, even though she said so and attached it to her written statement made the day after the consultation; 3. What appears to be her lack of awareness of the purpose of the bi-manual examination and how it occurs; 4. The fact that notwithstanding that she had a copy of her police statement of 30 December 2013 in her possession, at the hearing she had significant difficulty remembering conversion that she had said in her statements occurred at the consultation on 29 December 2013; 5. Her retraction 5 months after the alleged conduct of the allegation in her statement of 30 December 2013 of him touching and rubbing the top of her vagina through her clothes lasting for 2 minutes; 6. Her retraction 5 months after the alleged conduct of the allegation in her statement of 30 December 2013 of the rubbing of her clitoris with his thumb was for 6 or 7 minutes and saying "it was more like 2 minutes". 7. The failure to raise with the practitioner on 24 January 2014 or to include in her statement to the HCCC the allegation made on 30 December 2013 that "I could feel his fingers touching a (sic) rubbing the top of my vagina"; and 8. Her statement in later evidence to saying it was "fleeting" and that she didn't know if it was intentional.
4. N did not present in her oral evidence as having a good memory. She was often vague or uncertain. She did not present as having a reasonable recollection of the consultation on 29 December 2013.
5. There were some issues concerning the credibility of the practitioner. But many of these were obviously problems of recollection that would be expected to arise in recollecting details of a consultation so long ago. On the evidence it was not till 26 days after the consultation that she raised with him on 24 January 2014 questions about his conduct on 29 December.
6. The tribunal found that generally the practitioner presented a much more reliable witness than N.
7. The conclusion of the Tribunal is that none of all the particulars of complaint one is established on the balance of probabilities and therefore both complaints fail.

Non Publication Order

1. The practitioner seeks an order preventing publication of the name or other identifying information of himself or his children. He is not seeking that there be a prohibition on publication of the decision, or the reasons.
2. There is the likelihood that publication of information that identifies him with the unproved allegations will damage his reputation and his earning capacity as a doctor. It could be the source of considerable discomfort and embarrassment for him, his wife and their daughters. Similarly if publication identifies N, she is likely to suffer considerable embarrassment and discomfort.
3. None of the alleged misconduct has been established. There is power under section 64 of the Civil and Administrative Tribunal Act 2013 to prohibit the publication of such details. The evidence regarding the consultation between N and the practitioner is of private matters what should be confidential. An order should be made to limit publication.

Costs

1. The practitioner by letter of 17 December 2015 to the Tribunal (a copy of which was sent to the HCCC) seeks an order for the HCCC to pay his costs. The HCCC has not filed any submission opposing the application.
2. Clause 13 of Schedule 5D to the National Law gives the Tribunal power to make such an order. The general principle is that costs follow the event (HCCC v Phillpiah [2013] NSWCA 342) and there is no circumstance that requires a departure from that.

Orders

1. Accordingly in addition to the orders of 24 November 2015 the orders are: 1. Broadcast or publication of the name or other identifying information of the respondent or the patient who raised the complaints is prohibited; and 2. The Applicant must pay the Respondent's costs of or incidental to these proceedings as agreed and in default of agreement each party has leave to relist the proceedings for further orders for determination of the amount of costs payable. 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 May 2016