Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 | Case summary

NCAT Occupational|2022-02-17|Before: Dr J

Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2021/00221186 Publication restriction: Pursuant to s 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the persons set out in the Schedule to the complaint of the Health Care Commission in relation to Dr Daniel, together with any information tending to identify those persons, is prohibited.

Agreed Facts

At the commencement of the hearing, Counsel for the parties invited the Tribunal to receive a "Statement of Agreed Facts" which had been provided to the Tribunal on 20 December 2021. The Statement of Agreed Facts records that: 1. in 1983 the Respondent completed a Bachelor of Medicine and Surgery course at Alexandria University in Egypt; 2. in 1998 the Respondent obtained the Australian Medical Council Certificate; 3. on 4 February 1999 the Respondent was first registered as a Medical Practitioner in Australia; 4. in 2004 the Respondent became a Fellow of the Royal Australian College of General Practitioners; 5. in 2006 the Respondent opened the Wolli Creek Family Practice with his wife, Medical Practitioner A; 6. on 14 March 2018 the Medical Council of NSW imposed conditions on the Respondent's registration; 7. the Respondent first treated Patient A on 22 June 2015, his last appointment with Patient A being on 6 September 2017; 8. the practice's medical records for Patient A record that she attended the practice on 58 occasions between 22 June 2015 and 6 September 2017; 9. the Respondent provided Patient A with 24 Medical Certificates during 2016 and 19 Medical Certificates during 2017; 10. on multiple occasions, practitioners other than the Respondent saw Patient A at the practice; 11. on 22 November 2018 the Respondent's registration was suspended, effective from 22 November 2018; 12. the Respondent failed to maintain appropriate medical records of his treatment of Patient A from 22 June 2015 to 6 September 2017 in accordance with the 2016 Health Practitioner Regulation (New South Wales) Regulation 2016.

Statutory Framework

The statutory framework governing the proceedings is not in doubt and requires only brief reiteration. S 139B(1) of the National Law defines "unsatisfactory professional conduct" to include 139B(1)(a): "(a) conduct that demonstrates the knowledge, skill or judgement possessed or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience,"
And (l): "(l) any other improper or unethical conduct relating to the practice or the purported practice of the practitioner's profession.
The first of the disputed Complaints by the Applicant is pursuant to s 139B(1)(a) of the National Law. Both disputed Complaints are also pursuant to s 139B(1)(l) of the National Law.
The terms "improper" and "unethical" conduct are not defined in the National Law and have been given their ordinary meaning by the Tribunal (Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; [1998] 194 CLR 355). The Macquarie Dictionary definition of "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" was adopted in Health Care Complaints Commission v Ross [2019] NSWCATOD 153, at [59].
In R v Byrnes & Hopwood [1995] HCA 1; (1995) 183 CLR 501, a case involving criminal prosecutions of company directors, the High Court accepted, at [24] that "improper" was an "indefinite term, not commonly used in the criminal law" and, at [25] that, although "not a term of art", the issue of impropriety needed to be determined by reference to "the particular duties and responsibilities of the particular officer whose conduct is impugned", which is not "subjectively" determined, but by reference to a "range of considerations that may be taken into account".
The Dictionary definition of "unethical" as "contrary to moral precept; immoral; in contravention of some code of professional conduct" was adopted in Ross, at [59], and in Health Care Complaints Commission v Little [2016] NSWCATOD 146.
We do not understand there to be any issue that, if the Tribunal is comfortably satisfied that the Respondent committed the acts alleged by Patient A, which the Respondent denies, such conduct would be improper and unethical.
S 139E of the National Law defines "professional misconduct of a registered health practitioner" to mean: "(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration."
The Applicant submits that a finding of professional misconduct will be found in reliance upon either of those provisions.

Proof

The Applicant as complainant bears the onus of proof in this matter.
In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10).
It has been accepted in proceedings such as these, and particularly where, as here, the allegations could amount to criminal conduct (and where the consequences include the potential deregistration of the practitioner) that the principles identified in Briginshaw v Briginshaw (1938) HCA 34; [1938] 60 CLR 336 apply, and the Tribunal must be mindful of the nature and seriousness of the allegation to be proved, with the result that the Tribunal must be "comfortably satisfied" that the allegations are made out on the balance of probabilities. In the circumstances of this case, the caveat expressed by Dixon J (as Dixon CJ then was) that "reasonable satisfaction" should not be "produced by inexact proofs, indefinite testimony, or indirect inferences" resonates, particularly with respect to Complaint 1.
In Bronze Wing International Pty Limited v SafeWork NSW [2017] NSWCA 41, at [126], to which Counsel for the Respondent referred the Tribunal, the Court of Appeal found it unnecessary, on the facts of the case, to "examine in any detail the way in which the principle in Briginshaw supplemented by s 140 of the Evidence Act 1995 (NSW) applies to fact finding in a tribunal to which the rules of evidence do not apply.", for the reasons which the Court recorded.
After quoting from the decision of the High Court in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) HCA 66; [1992] 67 ALJR 170 at 171, the Court of Appeal recorded that the "strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision making in NCAT where the rules of evidence do not apply" should not "be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT". In determining the disputed issues of fact with respect to the first and second Complaints, the Tribunal I am mindful of those statements.
Gautam v Health Care Complaints Commission [2021] NSWCA 85 ("Gautam"), involved an appeal by a medical practitioner against orders made against him by the Tribunal pursuant to the provisions of the National Law relied upon by the Applicant in these proceedings. Payne JA, at [85] recorded that the Tribunal "cited Briginshaw, and expressly noted that it had to be "comfortably satisfied" that the complaint had been established on the balance of probabilities having regard to the potential seriousness of the consequences" for the respondent medical practitioner, and accepted [87] that the Tribunal's formulation "correctly encapsulates the test and is commonly used in the context of proceedings such as the present", as his Honour noted that Basten JA did in Kumar v Legal Services Commission [2015] NSWCA 161, at [60].
In Gautum, Leeming JA said, at [24] that, in cases such as the present, which Payne JA described, at [83] as involving "starkly conflicting narrative accounts", the fact finding exercise should "commence with objectively established matters, against which the credibility and reliability of testimonial evidence can be assessed", and that the resolution of issues involving credibility will usually "require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation". His Honour also endorsed the "appropriateness of reasoning, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events" in those circumstances.
As is not in doubt, only two, and in some instances three people, know the truth with respect to the Applicant's disputed Complaints - Patient A, her partner, Person B, and the Respondent. There is some, but limited, corroboration for each person's version of the critical events. The last of the events alleged by the Applicant which are the subject of the Applicant's complaints occurred in September 2017. Patient A first formally complained about the Respondent's conduct twelve months later. The disputed events which give rise to some of some of Applicant's complaints occurred more than three years earlier.
In Watson v Foxman (1995) 49 NSWLR 315, McLelland CJ in Equity considered in detail [319] the "fallibility of human memory", and process of conscious and unconscious reconstruction of what occurred, or what was said in a conversation. In Blatch v Archer (1774) 98 ER 969, to which his Honour referred, Lord Mansfield CJ recorded that: "All evidence is to be weighed according to the proof it was in the power of one side to have produced, and in the power of the other to have contradicted."
In G v H (1994) HCA 48; (1994) 181 CLR 387, at [8] Brennan and McHugh JJ said: "When a Court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party's ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce evidence in response."
In Ho v Pal (2001) [2001] NSWCA 168; (2001) 51 NSWLR 572 Hodgson JA said at [14] that: "In deciding facts according to the civil standard of proof, the Court is dealing with two questions: not just what are the probabilities on the limited material which the Court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision."
In A v N [2012] NSWSC 354, Ward J (as Ward P then was) embraced the Judgment of McLelland CJ in Equity in Watson in which His Honour said at [318]: "Human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then again often subconsciously, constructed. All this is a matter of ordinary human experience."
Her Honour also embraced McLelland CJ in Equity's statement at [349] that: "Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … obtained or established independently of the nature and consequence of the fact or facts to be proved" including 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: Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kind can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action … in the absence of some reliable contemporaneous record or other satisfactory corroboration.""
Her Honour added [350]: "Where evidence is given long after the occurrence of the events in question, the witness "may put their own gloss or interpretation on events in which they were emotionally involved and that, by now, those perceptions will be reinforced in their minds so that they will be convinced of the truth of those perceptions", and that, not only "do memories fade with time", but "impressions of events may be accepted as fact"."
In Coote v Kelly [2013] NSWCA 357 at [51], the Court of Appeal acknowledged that "memory is all too fallible". In M v The Queen [1994] HCA 63; 1(1994) 181 CLR 487 at [534] McHugh J referred to the "everyday experience of the courts that honest witnesses are frequently in error about the details of events".
The authorities urge caution with respect to making findings of material fact in reliance upon demeanour (Jones v Hyde (1989) HCA 20 at [351], [352]; 63 ALJR 349, Fox v Percy [2003] HCA 22, (2003) 214 CLR 118, at 20).
In Campbell v Campbell [2015] NSWSC 784, at 74 and 141, Sackar J referred to the "notoriously crude and inaccurate methodology of demeanour as an indicator of the probability of truth".
The Tribunal's determination of disputed issues of fact is informed by the authorities to which I have referred.
I accept, as submitted by his Counsel, that the Respondent bears no onus of establishing any alternate hypothesis to the case of the Applicant, the burden of proof to the comfortable satisfaction of the Tribunal of the allegations in support of each disputed Complaint remains with the Applicant.

Complaint 1

Amended Complaint 1 asserted that: "The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that the practitioner has: (i) engaged in conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of [sic] profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine."
The particulars of Amended Complaint 1 alleged that: "1 Between on or about 14 October 2015 and on or about 7 June 2017 Patient A attended consultations with the practitioner for pain relating to her right hip and back. On or about 5 separate consultations regarding treatment of Patient A's right hip and back, that practitioner: (a) stood behind Patient A with his body pressed against Patient A's back; (b) wrapped both his arms around the stomach area of Patient A; and (c) touched the sides of Patient A's body with his hands, and said words to the effect of, "Does it hurt when I touch you here". 2 By reason of the actions set out in particulars 1(a) to 1(c) above, the practitioner: (a) engaged in steps without clinical reason or appropriate explanation when treating Patient A's right hip and back; and/or (b) engaged in inappropriate behaviour of a sexual nature towards Patient A. 3 Around late 2015 or in 2016, Patient A attended a consultation with the practitioner for abdominal pain. During this consultation, the practitioner: (a) directed Patient A to remove her top, lift up part of Patient A's bra, and partially expose her breasts. Patient A did what the practitioner directed her to do; and (b) touched underneath Patient A's exposed breasts and said words to the effect of, "Does this hurt?" 4 By reason of the actions set out in particulars 3(a) and 3(b) above, the practitioner: (a) engaged in steps without clinical reason or appropriate explanation when treating Patient A's abdominal pain; and/or (b) engaged in inappropriate behaviour of a sexual nature towards Patient A. 5 Around November 2015 Patient A attended a consultation with the practitioner in relation to pins and needles that Patient A said she felt in her arm. During this consultation, the practitioner: (a) touched the sides of Patient A's breasts over her bra; and (b) directed Patient A to sit on his lap, which Patient A did. 6 By reason of the actions set out in paragraphs 5(a) and 5(b) above, the practitioner: (a) engaged in steps without clinical reason or appropriate explanation when treating Patient A's pins and needles in her arm or her neck or other neurological reflexes considered; and/or (b) engaged in inappropriate behaviour of a sexual nature towards Patient A."
By his Reply, the Respondent denied each of the particulars of this Complaint.
In support of this Complaint the Applicant relied upon documents produced by the South Eastern Sydney Local Health District (HCCC 1 Tabs 24 and 24(a)). Those documents record that Patient A's first contact with that service was a "self-referral" made by her on 8 October 2018, which resulted in an "initial face to face appointment with SAS Counsellor" on 10 October 2018. The Service recorded Patient A as reporting: "Inappropriate touching for some time. Made [Patient A] sit on his lap, inappropriate touching. Made her take pants and shirt off to check movements, etc. when not related to reason she was there. End of last year escalated to digital penetration. Didn't go back. Has not reported to police or any other organisation. On medication for anxiety, anxiety got worse after S/A. Has had some counselling in the past related to mental health."
The reference to "digital penetration" relates to Complaint 2 and will be addressed in the course of determining that Complaint.
The Sexual Assault Service documents record a number of subsequent telephone and face to face appointments with Patient A, the last of those being a face to face appointment on 20 August 2019, when the Service recorded having discussed with Patient A "HCCC and police process at length" and "explained difference court processes and possible outcomes".
On 25 October 2018 Patient A made a complaint to the HCCC on the latter's website using the "online forum" which was available there. Patient A's complaint to the HCCC is Annexure A to her statement on 9 April 2021 (HCCC 1 Tab 12). In the part of the HCCC's "Complaint details" inviting a "summary of your complaint", Patient A stated: "I saw Dr Ramez from 22/06/2015 to 06/09/2017 during this time I was undergoing the recovery from a full hip replacement. I was diagnosed with MS and had ongoing medical health issues amongst other medical concerns. During the course of this period as Dr Ramez's patient I found that his familiarity with me became increasingly inappropriate. It started with simple touching of the arm to having me bend over in front of him while he held me from behind and placed his body against me while using his hands and arms to manipulated [sic] me into pushing back against his waist area. On other occasions he would ask me to lie on the examination bed and lift my top and/or discard my pants while he massaged me with his hands quite low towards my groin area without asking if I wished for a third party to be present or if I was uncomfortable with his examination. These types [sic] examinations continued and included me having to remove my pants fully and often discard my bra and underwear. The above would occur when I would see Dr Ramez for ailments such as headaches, backaches and stomach issues. At times I would request my partner [Person B] to accompany me to see Dr Ramez as at the times when she did accompany me the above examinations would not occur in such a physical way."
The remainder of Patient A's complaint details involve Complaint 2 and will be referred to in the context of the determination of that Complaint.
Patient A made a statement to NSW Police, which is Annexure B to her statement of 9 April 2021 (HCCC 1 Tab 24). The first page of the police witness statement has a typed date of 20 November 2018. At the foot of each page of the statement the date "25th February 2019" is typed under the signature of Patient A and the police officer who witnessed Patient A's signature on the statement. It emerged in cross-examination that, for the reasons then given by Patient A, the statement commenced to be prepared on 20 November 2018 but was not ultimately concluded and signed by Patient A until 3 months later, on 25 February 2019.
In her police witness statement, after referring (paragraphs 3 and 4) to her the full replacement of her right hip in March 2015, and subsequent rehabilitation and treatment, Patient A referred to the circumstances in which she came to attend the Respondent's medical practice (paragraphs 5 and 6). Patient A then said: "7 The first time I met Doctor Daniel he was nice and personable. I told my partner (Person B) about Dr Ramez Daniel and told her that if she needed to see a doctor she should see him. From this point on, I saw Dr Daniel on average three (3) times a week for ongoing medical care and to get medical certificates for my work as I was unable to work due to still recovering from my hip replacement. 8 Around the second or third consultation, Dr Daniel started touching and rubbing my arm when I would see him. He would do this by touching my hand first and running his hand up and down my arm whilst he was speaking to me. I did not think anything of this at first. I thought this was showing me his caring compassionate side, however after seeing Dr Daniel for two (2) months he started touching me more which started to make me feel uncomfortable. 9 Around September 2015, when I was seen Dr Daniel for issues surrounding pain in my right hip and back area, Dr Daniel would ask me to stand and would stand behind me with his body touching my back. Dr Daniel would ask me to place my arms straight up in the air and then he would proceed to wrap both his arms around my stomach area. Whilst he was doing this he would say words to the effect of, "If I touch you here does it hurt?" I would answer Dr Daniel. After this he would bend me to one side with a bit of force which hurt as soon as I bent to that side. He would proceed to touch up and down the sides of my body with his hands and say words to the effect of, "Does it hurt when I touch you here?" This happened on 5 occasions that I can remember, however, I cannot remember the exact dates. When this would happen, I would feel so uncomfortable. It felt like I was being touched inappropriately which would make me feel sick. I did not say anything to him at the time it was occurring, as I did not know what to do and I believed he was a doctor and knew what he was doing. 10 I continued to see Dr Daniel after these incidents. In late 2015, I was having pain within my stomach. I made an appointment to see him. When I was in the consultation, Dr Daniel asked me to lay down on the bed in his consultation room. I laid down and Dr Daniel asked me to take my top off. I took my top off and Dr Daniel asked me to loosen my pants and lift up my bra. I thought this was odd, however I accepted what he asked me to do and thought he was going to do a thorough examination. I lifted my bra slightly with my breasts being exposed. I loosened my pants by undoing the belt I was wearing, undoing the top button and unzipping my zipper. 11 Dr Daniel walked over to where I was lying on the bed and placed both hands on the bottom of each of my breasts. He would push fingers up underneath my breast and say words to the effect of "Does this hurt?" I do not remember what I said back. Dr Daniel walked to the end of the bed and tugged at my pants. My pants moved slightly exposing the top of the pubic area of my vagina. I was not wearing underwear at the time. Dr Daniel placed a hand on each side of my hip area and with four fingers together starting pushing down with some force onto my skin. He started at my hip area and moved along my pants line continually pushing down as he moved his hands across my skin. As he reached my pubic area over the pubic bone, he pushed down and rested his hands on my pubic area and said words to the effect of, "I think it's just stomach issues". I felt really uncomfortable and uneasy about what he was doing. I did not understand why he needed to do what he did. He did not need to tug at my pants or touch me there as he did not explain what or why he was doing it. He did not prescribe me with any medication that day. 12 In November 2015, I started having pins and needles in my left hand. I did not pay much attention at first however the pins and needles started going up my left arm which started to worry me. I made an appointment to see Dr Daniel. Dr Daniel started again bending me to one side. He would run his hands up and down the sides of my body and he started touching the sides of my breasts over my bra. This made me feel uncomfortable each time it occurred. I did not know why he was doing this. It was also around this time that Dr Daniel would ask me to stand. I would stand up and Dr Daniel would sit down on the seat I was sitting on and then asked me to sit down on top of his lap. I thought this was strange, but I would sit down on his lap as I thought he was trying to help me as he is a Doctor. Dr Daniel would manipulate my arms and body. I thought this was odd, I did not know why I needed to sit on his lap for. Dr Daniel said this was to help me stretch. This would happen on almost every occasion that I saw Dr Daniel he would either make me sit on his lap or stand behind me."
In her statement of 9 April 2021 (HCCC 1 Tab 12), having referred to the earlier statements made by her, the substance of which I have recorded earlier, Patient A said: "9 The reason I kept seeing Dr Daniel, even with these incidents of touching me and making me feel awkward and believing that his contact of me was not relevant to my treatment, was because Dr Daniel would readily give me medical certificates so that I would not have to go to work;"
Patient A then stated that the "ease with which" she was able to obtain prescriptions for Aropax was a reason why, notwithstanding her allegations, Patient A continued to see the Respondent (paragraph 11). Patient A further said that the "preferential treatment" afforded her by the Respondent "in that he would see me without much time and ahead of other patients who had been waiting" was a reason why she continued to see the Respondent notwithstanding her allegations (paragraph 12). Patient A further said (paragraph 13): "I knew when I saw Dr Daniel I may face the risk of him inappropriately touching me in ways that did not seem relevant to my reason for being there and his treatment of me. However, that cost regrettably outweighed the benefit for me readily obtaining a work certificate and repeat Aropax without question".
Patient A stated (paragraph 14) that she was "working at Open Colleges but because of my anxiety and depression at the time I was seeing Dr Daniel, I did not have the mental energy or strength to return to work and really wanted those medical certificates that would excuse my attendance". Having referred to her "anxiety and depression" (paragraph 15) and the referral made by the Respondent, Patient A referred (paragraph 15) to having seen a psychologist who was "in the same medical centre" but not feeling "comfortable disclosing to her what Dr Daniel did to me because they were in the same practice. For the same reason I did not return to her" (paragraph 16).
Patient A further stated that "since these incidents with Dr Daniel and my last appointment with him in September 2017, my mental health deteriorated and significantly so. I lost my job at Open Colleges (which was my job during the relevant time I was seeing Dr Daniel)". No documents, or other evidence to which we have been referred support that allegation.
With regard (paragraphs 13 and 14) to the Respondent's referral of her in January 2016 to Professor Jon Pollard with respect to a Multiple Sclerosis diagnosis, Patient A said: "15 I continued to see Dr Daniel on a regular basis, however I started bringing my partner [Person B] to consultations as I did not feel comfortable being alone in the room with him. [Person B] would come to most of my appointments, however there were occasions that she was unable to make it. It was on those occasions that Dr Daniel would start "Stretching or manipulating my body" as he would call it. He would again either bend me from side to side whilst touching up and down the sides of my body with his hands. Or he would sit down on my seat and ask me to sit on his lap and he would wrap his arms around my body. This increasingly made me feel more and more uncomfortable. When Dr Daniel was bending me over and standing behind me I could feel his groin area touching my buttocks. I cannot say whether he had an erection at this time, but I could feel his groin area against me."
Patient A stated (15A) that she had a consultation with the medical practice of Dr B "at some point within 2016" in order to obtain a "second opinion with my Multiple Sclerosis". Dr B had seen Patient A on numerous occasions prior to June 2015. Patient A said that when she saw Dr B "I told her that Dr Daniel was really handsy and he made me sit on his lap. [Dr B] showed some concern and gave me the details for Health Care Complaints Commission and then focused on the Multiple Sclerosis".
Patient A's police statement with respect to the matters raised in Complaint 1 concluded (paragraph 16) "I went back to seeing Dr Daniel. I was hesitant, but did not have any other doctor to go to."
In the course of careful and probing cross-examination, Patient A did not resile from the substance of her allegations. Nor did Patient A embellish her allegations, or try to advocate in support of them. As is not in doubt, Patient A first made her allegations in a statement thirteen months after the last of the conduct alleged against the Respondent had occurred, and three years after the first of the conduct alleged against the Respondent pursuant to this Complaint could have occurred.
The cross-examination of Patient A was understandably directed to the reliability or accuracy of her recollection of events. Patient A was asked about the allegation in her statement (HCCC 1 Tab 12B) that the Respondent acted in the manner alleged by her on "5 occasions" that she could remember, which Patient A explained (Transcript 14 February 2022 p37 lines 16-17) were the 5 occasions when "the condition that I saw Dr Daniel for was the right hip and back area that I had pain in". In further cross-examination the following exchange occurred (Transcript 14 February 2022 p37 lines 12-35): "Q I think in your evidence just now you referred then at the end it says "This happened on 5 occasions that I can remember" do I understand your evidence correctly that you're saying that the 5 occasions what condition did you see doctor for, for those 5 occasions that you're referring to [in her statement HCCC 1 Tab 12B)? A Those 5 occasions was the condition that I saw Dr Daniel for was the right hip and back area that I had pain in. Q Did it happen, are you saying, more than that? A Yes, that particular method that he used to examine me happened on more occasions. Regardless of the - what the issue was that I went to see him. It happened when I perhaps had a headache or if I had a - even a sore throat and felt fluey that would happen on those occasions as well. Q Are you if at all possible able to give a number to the total number of occasions? A No, I can't recall how many times it happened. Q Are you able to give a timeframe in which that happened, noting that your first appointment was on 22 June 2015 and your last appointment was 6 September 2017? A It happened a number of times that entire period. Or it happened many times throughout that entire period, it would be a regular thing that he did if, if he wasn't putting me on the examination bed, that's how he would often examine me, if I was alone."
In view of the amendment of the Complaint, the relevant dates with respect to these allegations are 14 October 2015 to 6 September 2017.
Patient A confirmed (Transcript 14 February 2022 p51 line 45 to p52 line 1) that she had not spoken to her partner, Person B, "about what to put in the document" when she made her complaint to the HCCC. And said that she was "not sure she even knew that I was actually going to go to the site".
Patient A was also asked (Transcript 14 February 2022 p56 line 19-33): "Q You'll appreciate I take it that there's a difference between what is said in this written statement and the evidence that you've given today about how your police statement came into existence, correct? A Absolutely, yes. Q Is what you're saying that you don't know which of those two different versions is true as you sit here today? A It's a difficult time to recall there was a lot happening as I confirmed earlier my mental health was not really good at the time so I'm not sure. It was, it's the timeline of things and what happened in what order is, is difficult for me to really - absolutely confirm, I wouldn't want to do that. Q Just returning to my question, does that mean as you sit here today you can't confidently say which of those two versions of events is correct? A I wouldn't like to, no. I can't confidently say that."
I do not consider the inconsistencies which emerged in the cross-examination of Patient A with respect to the circumstances surrounding the making of her statement to police adversely impact upon the credibility of Patient A, or the reliability of her recollection of disputed events. If Patient A and her partner, Person B, had colluded to provide consistent statements, it is improbable that their statements would have contained the discrepancies or omissions which were revealed during the cross-examination upon which the Respondent understandably relies.
Patient A was asked why she continued to see the Respondent for as long as she did in view of her subsequent allegations against him, and the time when the Respondent was first alleged to have acted inappropriately. One of the reasons given by Patient A (Transcript 15 February 2022 p9 line 3-9) was that it was: "easier to obtain the, the telephone scripts because they need to call and make a request for that from whoever. Not, not all practitioners would do that so it's - you can't really go to random doctors and ask for them, they don't, they won't necessarily provide you with the authority script, so it was easier to see Dr Daniel who knew the process and was able to do that without, without any question, because he understood what the process was and had been there before, so that's, that's why I did see him on a regular basis."
Although the logic of that explanation is problematic in view of subsequent cross-examination of Patient A, I accept that Patient A believed that to be the case.
Patient A was asked (Transcript 15 February 2022 p10 line 10-21): "Q What would you say was the most important part of the reason you were seeing Dr Daniel? A The ease of being able to see him, I guess. I felt - Q You would attend - I'm sorry, I didn't mean to interrupt, I thought you'd stopped, please go on. A It, it was just easy, easy to see him. Q From time to time during the period 2015 to 2017, you were seeing doctors at Wolli Creek and also at least two medical centres in Marrickville. Did you have trouble getting in to see doctors from time to time, did you? A Yes."
Patient A was then asked (p10 line 40-48) whether she would "show up at the practice without an appointment and ask to see the next available doctor, or you would specifically ask to see Dr Daniel?" To which she replied, "I would ask to see Dr Daniel." Patient A was then asked: "Q Why would you specifically ask to see Dr Daniel rather than just, if you didn't have an appointment, asking to see the next available doctor? A Because it was Dr Daniel - or often the choice was Dr Daniel or his wife, and I would prefer to see Dr Daniel."
Patient A was asked whether when she attended "To your knowledge, were they the only two doctors who were working?" To which she replied, "A majority of the time, yes."
When asked why Patient A "wouldn't attend and see the next available doctor that wasn't Dr Daniel [Dr H], for example, did that ever occur to you?" Patient A replied "I didn't, I didn't feel comfortable seeing Dr H [Dr Daniel's wife] at all. I, I actually like to see Dr Daniel, I trusted him, a very personal man, I actually really liked him and I did trust him as a doctor" (p11 line 8). Why Patient A did not feel "comfortable" seeing Dr H was not explained.
Patient A's recollection of the times she saw the Respondent was tested in cross-examination. Patient A was reminded of her statement (HCCC 1 Tab 12B para 7) that, from the time she first saw the Respondent she saw him "on average 3 times a week". Patient A was reminded (Transcript 15 February 2022 p12 line 35), and accepted, that 3 consultations per week with the Respondent over the period from June 2015 to September 2017 would have totalled approximately 300 consultations. As the Agreed Facts record, Patient A saw the Respondent on 58 occasions between June 2015 and September 2017.
Patient A was asked (p12 line 41) "Do you think you consulted with Dr Daniel anything even remotely close to 300 times?" to which Patient A replied, "It feels like it but, you know, I'm not, I'm not sure how many times I actually saw him". When asked whether there was "any reasonable possibility" that she had consulted Dr Daniel "anything even remotely close to 300 times", Patient A said that she was "not sure" and did not know "how many times I saw him", adding (Transcript p13 lines 8-8) that it "does feel to me like I saw him hundreds of time so it, it may be the case".
Patient A's written and oral evidence was that she "liked" the Respondent and "trusted" him and, as is not in doubt, continued to see the Respondent despite the inappropriate conduct of which she complained. Patient A was asked (Transcript p14 line 14-25): "Q Wouldn't you, you'd agree with me, wouldn't you, that there were times when you saw Dr Daniel when you were either physically or emotionally unwell and Dr Daniel displayed compassion and sympathy towards you, didn't he? A No. Q You don't agree with that proposition, that never happened? A I don't agree with that statement, no. Q Not once during the time that you saw Dr Daniel did he display compassion and sympathy towards your physical or mental wellbeing, is that what you're saying? A That's what I'm saying."
When challenged, Patient A was able to explain, consistently with her statements, what she alleged that the Respondent did to her during consultations. Patient A was asked to recall her recollection of the first time the conduct alleged by Patient A occurred. The following exchange occurred (Transcript 15 Feb 2022 p16 line 5 to p17 line 7): "Q What I'm asking you about and what I'd like you to take my following questions as meaning is your actual recollection of the first time this happened and what happened on that specific occasion, do you understand what I mean by that? A Yes. Q On that specific occasion, how did this part of the medical consultation begin? Dr Daniel asked you to stand up, is that right? A I couldn't say on this, on that specific occasion. Q Why not? A Because it was a regular thing. My memory, when these things happen, those things would happen, my memory of those things are certainly, because it was performed on more than one occasion, could certainly blend. I couldn't say the very first - I don't have a photographic memory of the very first time. Q Is the very first time something that stands to you because it was unusual? A No, I don't - I couldn't say that. Q Do you think at that time did you think at the time that it was unusual? A Yes. Q Had a doctor done that - A I thought every time Q Had a doctor ever touched you or asked you to behave in that way during a consultation previously? A Never before, never after. Q Sitting here today, do I understand your evidence to be that you are unable to give me any details or specifics about what specifically occurred on the first occasion that you say Dr Daniel touched you in that way because you don't have a clear memory of it is that right? A I, I don't know. Q You see in paragraph 9 [HCCC1 Tab 12B] going over onto the next page, the paragraph continues and you say that it happened on [not transcribable] you can remember, do you see that? A Yes. Q Do you maintain that that is true and correct? A As we discussed this before, those 5 occasions were the 5 occasions that I believe that I, that I can remember that were in relation to my hip and back. The other times that he did it were on other occasions, so he did do it on more than 5 occasions, it was around 5 occasions that he did it because of a particular ailment I guess that that I I brought to him. Q What that sentence should read, is this correct, is, "This happened on many occasions, but on 5 of those I recall that I had seen him for a particular complaint", is that what you say it really means? A You could put that in, yes."
Patient A was asked how many times in total she alleged that the Respondent had behaved in the manner described in paragraph 9 of her police statement (Transcript p17 lines 26-28). Patient A was unable to say. When asked whether (line 37) she was able to give "any estimate whatsoever" of how many times in total the Respondent acted in the manner alleged by Patient A, Patient A replied that she could not. Patient A reiterated that the feeling of being "touched inappropriately which would make me feel sick" was "from the very first time it happened" (p17 line 41 to p18 line 3).
Patient A was asked (Transcript 15 February 2022 p21 lines 15-20): "Q In terms of the 14 October 2015 attendance on Dr Ramez Daniel where you complained of back pain, did you believe that that is the time that you were describing in your police statement as the first occasion in which he stood behind you and wrapped his arms around you and did those things that you describe in your police statement do you think that's when that occurred? A I couldn't say, to be honest, I'm not sure."
Pursuant to the Amended Complaint, 14 October 2015 commences the period in which the Respondent is alleged to have acted in the manner which give rise to this Complaint.
Patient A was asked (Transcript 15 February 2022 p22 line 48 to p23 line 7): "Q Why did you return to see Dr Daniel after the first occasion you say that this behaviour towards you made you feel sick? A Because I trusted he knew what he was doing, I trusted him as a doctor and I liked him as a person. Q So, within a couple of months of seeing him on a handful of occasions, you formed that impression towards him which was sufficient to overcome the fact that you felt he was engaging towards you inappropriately in a way that made you feel sick, is that right? A Absolutely absolutely."
Patient A agreed that one of the reasons she suggested had led to her continuing to see Dr Daniel, despite "these incidents of touching me and making me feel awkward" was because he would "readily give me medical certificates so that I would not have to go to work" (Transcript 15 February 2022 p23). Patient A also agreed that another reason why she would see Dr Daniel in preference to another GP at the practice related to the ease of obtaining Aropax prescriptions from him, the difficulty associated with obtaining such prescriptions from other doctors having been suggested earlier by Patient A in her evidence. Patient A agreed that the third matter was that to which she had also earlier been referred, being the ease of securing an appointment with Dr Daniel, or "dropping in" to see him without an appointment.
Patient A was cross-examined with respect to her allegation that the Respondent asked her to sit on his lap during consultations. Patient A was shown her HCCC Complaint (HCCC 1 Tab 12A). Having confirmed that she alleged that "on multiple occasions Dr Daniel asked you to sit on his lap during consultations" (Transcript p26 line 12), Patient A was invited to look at "the entirety of that complaint document" and indicate anywhere in it where it was alleged that there were "multiple occasions or any occasions when Dr Daniel asked you to sit on his lap" (Transcript p26 line 15-16) to which Patient A replied (line 17) "I can't see that I've said that in this, in this document". Patient A rejected the suggestion that she had not made the statement in the document because "it never happened", and stated (line 21) that "it did happen on more than one occasion" but that she was unable to recall how many occasions, her ultimate estimate (line 27) being "more than 3" but she was "not sure how many".
Patient A was then asked (line 29-34) : "Q So, on more than 3 occasions, possibly many more, you say that Dr Daniel asked you to sit on his lap during consultations, and do you say that at the time that was happening, you thought that it was inappropriate? A Yes. Q Did it make you feel uncomfortable? A Of course yes."
Patient A was cross-examined with respect to her allegations that she complained to fellow employees at Open Colleges about the conduct of the Respondent. Patient A reiterated (Transcript p30 line 3-5) that there were four people who worked for Open Colleges to whom she had complained.
Patient A was cross-examined with respect to the identity of employees of Open Colleges to whom she said that she had complained. Patient A was unable to give "any assistance at all" about what she "actually said" to any of those persons when pressed for detail in cross-examination (Transcript p30-31).
As I have earlier recorded, the emails between Patient A and employees of Open Colleges do not support Patient A's allegations. The emails do not make them untrue, they simply do not assist the Applicant's case.
Patient A was cross-examined about her discussions with her partner, Person B, about the Respondent's conduct. The following exchange occurred (Transcript p39 line 48 to p41 line 7): "Q At any stage did you say anything to your partner [Person B] about feeling uncomfortable about the way that Dr Daniel was behaving towards you? A Yes. Q When did you first say that to her? A I can't recall. Q What did you say to her? A I can't recall exactly. Q Are you able to give us any estimation of whether it was early on when you first started seeing Dr Daniel, whether it was in 2016 or 2017? A No I can't recall. Q As you sit here today, you've just got no idea at all of the first time that you spoke to Person B about that, is that right? A That's correct. Q You don't know what you said, you don't know when you said it, is that right? A That's correct. Q Do you know what she said back? A No, I can't recall. Q Did you discuss it with her on more than one occasion? A Yes, I did. Q Do you recall what she said to you on any of the occasions you discussed it with her? A I think once she said that, because she too was fond of Dr Daniel and she said, "Perhaps we should give him the benefit of the doubt, that maybe that's the way he was trained to do things", on one occasion. Q What was she responding to? What had you said to her that prompted her to say, "Maybe that's the way he's trained to do things"? A I don't recall exactly. I would have just told her what - how, how he conducted the examinations. I do not recall exactly what I said. Q Are you avoiding answering my questions about what you said to [Person B] and when because you're concerned that your answers might be inconsistent with other material in your evidence? A No, not at all. Just the - I can honestly say the dates and times of things are, are, are not something that I, I can recall. And telling her or speaking to her about it, you know, generally, as I said, I just explained to her what happened, how he examined me, and I, I can't say exactly what I said when I said it on those dates. I do recall her saying that once about giving him the benefit of the doubt. Other than that, I can't recall it. I know we had other conversations, they were similar but I can't recall what was said and when, certainly not when. Q Did Person B ever say to you, "Look, just what you're saying to me, you know, doesn't sound right, and if you're not comfortable, you should stop seeing that doctor and see someone else", did she ever say anything like that? A I don't recall. Q You can't recall one way or the other whether she - A Yeah. Q -- advised you or suggested that you stop seeing Dr Daniel? A Yeah, I can't recall if she did or not."
Patient A was asked about when she first told Dr B that the Respondent was "really handsy" and had made her sit on his lap, but could not "recall what I said exactly" (Transcript p41 line 31). Patient A was asked (p41 line 34): "Q Are you able to tell us anything that you said to [Dr B] about the conduct of Dr Daniel, any of it? A Only that I, I recall saying that he was handsy and I did mention to her that he made me sit on his lap. I can't recall anything else I said to her. I can't recall what she said to me. Q Do you believe that you told Dr B all of the aspects of Dr Daniel's conduct that were worrying or concerning to you at the time that you saw her in 2016? A I don't, I don't think I told her all of the aspects. Q Why not? A I, I can't recall."
Patient A alleged that she had complained about the Respondent's conduct to Dr B. Patient A confirmed that Dr B was a doctor who she was "very comfortable with" (p41 line 50) and with whom she had a "longstanding previous doctor/patient relationship" (p42 line 3). Dr B is a female doctor.
Patient A was unable to recall what Dr B said, or what her reaction was to hearing her allegations about the Respondent's conduct (Transcript p42). Dr B has no recollection of Patient A making complaints to her about the conduct of the Respondent. (HCCC 1, Tab 27). Whilst I accept that Patient A believes that she told Dr B about the Respondent's conduct, the evidence does not establish that she did so. I refer below in more detail to Dr B's statement.
Patient A was cross-examined about consultations during which the Respondent is alleged to have inappropriately required her to remove her underwear. In the course of cross-examination of Patient A on her statements, it was suggested to Patient A (p46 line 4 to p47 line13) that: "Q Dr Daniel never asked you to take off your bra or underwear for an examination at all, did he? A He did. Q How many times did that happen? A I can't recall how many times. Q Was it more than once? A Yes. Q On more than one occasion Dr Daniel required you, what, to strip fully naked in his consultation room is that what happened? A It may be one or the other. It was never fully naked. There was - I may either had to remove my pants or at times remove my top and bra. Q Where it says "Often discard my bra and underwear", it really should read "bra or underwear", is that right, because it was one or the other but never both? A - it - yes. Q Where it says "often", "often discard my bra and underwear", were you trying to convey that that was a regular occurrence that happened many times? A Definitely an occurrence that happened on more than one occasion and close to many times. Q But you're unable to assist us, sitting here today, with what you meant in terms of number by the word "often", is that right? So where it says, "these types of examinations continued and included me having to remove my pants fully and discard, often discard my bra and underwear", meaning sometimes that would happen on different occasions, on more than one occasion? On those occasions either the top part of your body would be naked or the bottom part of your body would be naked in Dr Daniel's consultation room, is that right? A That's correct. When I say "naked", often my pants would need to be just pulled down to my ankles, or my top lifted just sitting above my neck. And then at other times, completely discarding my bra and top. Other times, completely pulling down my underwear. And at times me having needed to discard it, put it to the side, however you want to say. Q In case it's not clear, I just want to suggest to you that Dr Daniel never ever asked you to completely remove your pants or underwear or bra. You disagree with that proposition, I rather take it? A He asked me to remove my pants and or my bra on more than one occasion. Q Would you just review for me, please, your Health Care Complaints Commission statement and your police statement and tell me if you can find anywhere where there is a reference, apart from 6 September 2017 to Dr Daniel requiring you to completely remove your bra or your underwear? A I can't see where I've confessed that information. Another, another point, I can't see where I've said that. Q It's not in either of those statements because it didn't happen, did it? A It did happen. Q Why isn't it in your lengthy and detailed police statement if it happened? A I can't say. I'm not sure."
Patient A reiterated that at the time she thought the Respondent's conduct was inappropriate or unprofessional but (Transcript p47 line 47-50) "wasn't sure, and again I trusted him, I did trust him as my doctor. And as somebody I was, although it made me feel completely uncomfortable and it did feel wrong, I just, I wanted to believe, I wanted to believe so much that he was doing the right thing by me".
Patient A was asked (Transcript p48 line 28): "Q You didn't think that when that was happening that it was inappropriate or unprofessional, is that what you're saying? A I think it may have been, but again I, I wanted to believe that he was, what he was doing was for my benefit."
Properly, the evaluation of the Respondent's alleged conduct is not suggested to be informed or influenced by Patient A's subjective view of it. I apprehend the thrust of the submissions of the Respondent to be that, had the Respondent done the things alleged by Patient A, she would have been in no doubt that he had acted inappropriately and unprofessionally, and would have ceased to continue to see him. In view of Patient A's explanation for continuing to see the Respondent, which I accept, I do not accept that her doing so militates against finding Patient A's allegations proved.
Patient A's partner (Person B) was also a patient of the Respondent's practice, and made a statement to police in late 2019 (HCCC 1 Tab 15). Preparation of the statement commenced on 12 October 2019 and was completed on 23 October 2019 when Person B signed the statement and the police officer who prepared the statement witnessed her signature on it.
In her statement, Person B said (paragraph 4) that in August 2015 "I found Wolli Creek Family Practice", which was the Respondent's medical practice. Person B proceeded to say: "5 I cannot remember the exact date or timeframe, but I know in early 2017, [Patient A] raised a concern with me that she had about Dr Daniel. [Patient A] told me that during one consultation that she attended with Dr Daniel for treatment of her shoulder. [Patient A] told me that Dr Daniel had made her sit on his lap facing away from him while he manipulated her shoulder. She said he made her turn and twist while she was sitting on his lap. [Patient A] told me that she was really uncomfortable with the way Dr Daniel had treated her on this occasion. She did not think this was a right way of treating her because she never had to sit in a doctor's lap for any form of treatment. 6 When [Patient A] told me, I could tell from the way she was acting that she was anxious and upset by what had happened. I tried to explain to [Patient A] that maybe there was an actual medical reason for him to do what he did. [Patient A] was willing to consider this explanation. 7 There were multiple appointments that [Patient A] had with Dr Daniel that I would attend with her. I would come in the consultation room with her while she was being treated. Dr Daniel was sometimes really touchy feely with [Patient A]. When [Patient A] would be sitting in the consultation chair Dr Daniel would be at his desk and would reach over whilst talking to [Patient A] and touch her arm and shoulder several times. On occasions he has done this to me also, but he was also more touchy feely with [Patient A]. 8 On one occasion I was in the consultation with [Patient A] that she was having with Dr Daniel about her shoulder injury. Dr Daniel asked [Patient A] to stand in front of him facing away from him. Dr Daniel made [Patient A] bend forward and twist from side to side while trying to manipulate her injured shoulder. The front of Dr Daniel's body was touching the back of [Patient A's] body while he was doing this. 9 On the way home from this consultation [Patient A] and I talked about what had happened during the consultation. [Patient A] felt uncomfortable again by the way Dr Daniel had treated her. We didn't talk much more about it after this, it wasn't a really involved discussion it was more just a general discussion about how strange the appointment had been. 10 I thought the treatment on this occasion was a bit strange, but again I didn't know if this was the way Dr Daniel had been trained to treat a shoulder injury. 11 After these consultations [Patient A] and I agreed that we would only go and see Dr Daniel together."
The balance of Person B's statement relates to Complaint 2 and will be considered in the course of determining that Complaint.
Person B was cross-examined with respect to her conversations with Patient A about the conduct of the Respondent relied upon in support of this Complaint. Person B confirmed that, before she made her statement to police she had "discussed it with Patient A" (Transcript 16 February 2022 p10 line 29). Person B confirmed that she had discussed with Patient A "going to make a statement to the police before it happened", and that, "we would have discussed doing it and making that decision on a few occasions before we actually done it" (Transcript p10 line 38-45).
Having regard to some of Patient A's allegations, it is significant that Patient A and Person B did not discuss, potentially regularly, her concerns about the Respondent's conduct, given the number of consultations Patient A had with the Respondent, and the time over which they occurred. It is not insignificant that Person B does not appear to have counselled Patient A to cease seeing the Respondent until after the latter's consultation with the Respondent on 6 September 2017.
Person B was cross-examined (Transcript p11 line 28-39) about her statement to police (HCCC 1 Tab 12B para 5) that "In early 2017" Patient A raised "a concern with me that she had about Dr Daniel". Person B was asked (Transcript p11 line 32): "Q That was the only occasion that the conversation that you recall in that paragraph, was the only occasion that you discussed that conduct with Patient A? A No. Q You discussed that incident on several occasions with her. Is that right? A Yes. To the best of my recollection it wasn't the only time we talked about it, no."
As is not in doubt, by mid-2017, Patient A had been seeing the Respondent for more than 18 months from the time when it is alleged that the first of the inappropriate conduct relied upon in support of this Complaint occurred.
In further cross-examination (Transcript p15 line 6-16) the following exchange occurred: "Q The discussion that you recall in paragraph 5 of your statement, which you've already been asked some questions about, was that the first time that Patient A raised with you any concern about the conduct of Dr Daniel? A To my recollection, yes. Q I take it that's the case because if there had been an earlier discussion you would have - A I would have included it. Q --- included in your police statement. Is that correct? A That's correct."
If conduct of the kind alleged by Patient A had been occurring, for not less than 18 months by that time, had occurred, it is significant that Patient A did not mention it, or her concern about it, to her partner of many years, or, if she did, that Person B had no recollection of her doing so. The evidence establishes that, other than to the extent to which I have referred, whatever the Respondent did during many consultations over a period of 18 months, did not cause Patient A to complain to her partner about it.
In relation to the Respondent's alleged touching of Patient A, Person B was asked (Transcript p17 line 27-45): "Q You describe that you [sic] would reach over and touch her on the arm. I take it that you mean reach over across the corner of the desk? A That's correct. Q You say that Dr Daniel has also done that with you from time to time. Is that right? A That's correct. Q Did you believe, when you saw Dr Daniel doing that to Patient A, that he was trying to show some sympathy or compassion for her situation at that time or to comfort her? A No, no. That's not quite correct because my recollection of context wasn't a sympathetic sort of touch. It was just - I assumed he was being sort of affectionate in a - sort of guy. He was a nice guy. We liked him and it just seemed to be a gesture of affection rather than sympathy. Q Your belief was that it was part of Dr Daniel's personality in the way that he would engage with you and Patient A as his patients? A That's correct."
Person B was cross-examined with respect to the consultation at which she was present during which the Respondent was alleged to have "manipulated" Patient A's body "in certain ways" (Transcript p18 line 18). During the course of that cross-examination the following exchange occurred (Transcript p21 line1-26: "Q Is it possible that at some time during that consultation, Dr Daniel stood in front of Patient A and observed her movements? A I don't recall. Q I take it when you say that what you mean is you don't remember one way or another? A I don't remember. I don't remember seeing that, no. I don't remember seeing that. Q You don't remember seeing but also - A Him standing in front of her. Q If you could just let me finish my question, please. A Sorry. Q You don't remember seeing that but you also wouldn't say, I take it, that it didn't happen, would you? A Can you repeat that question. Q Yes. When you say, "I don't recall that", what I'm really asking you is, if what you are saying is, "I don't remember one way or the other" or what you are saying is, "It did not happen"? A That's not correct, no. Q Right. A I remember it happening."
Person B was then asked (Transcript p21 line 43): "Q You'd agree with me, wouldn't you, that you don't recall everything that happened during that consultation, correct? A Again, a disingenuous question but that would be correct."
Details of the consultation emerged more clearly from the following exchange (Transcript p23 line 5 to p24 line 4): "Q You didn't actually see, during that consultation, Dr Daniel's body touching the back of Patient A's body, did you? A That's a - at some point, yes I did because I remember he was moving her around. Q I appreciate you say that he was moving her around but I was asking whether you actually saw directly his body touching the back of her body and I'm talking about while they were standing up, you understand? A Yes, I understand that and my answer to that would be, yes I did. Q How long was that happening for? A It wasn't long, no. It was - the entire process. Q What part of Dr Daniel's body do you say was touching what part of Patient A's body. A Aside from his hands which were directing her so occasionally there were - occasionally there was contact with his chest to her body and also with his hips to her body. Q I think you were - I made a mistake but I think you were about to say a moment ago, Person B that the whole thing didn't last very long or take very long. Is that what you were going to say? A It was - that's correct. Q How long did this standing up process, however you would describe it, examination, manipulation, whatever it was, how long did that last? A It wouldn't have been - it would - it wouldn't have last [sic] long. It was within a minute. It was quite quick, yeah. Q It was quite quick some time less than a minute but I take it it would be hard for you to be confident of? A It would hard being confident of an exact time, no. Q I take it from the evidence that you've given that you're not suggesting that during the whole time Dr Daniel's body was touching Patient A's -- A Not the entire time, no. Q Right. A It was contact. It wasn't the entire time, no. Q So. A Not to my recollection. Q Did it depend on the way that Patient A's body was moving or being manipulated -- A Manipulated. Q At any given time as to whether their bodies came into contact. Was that your perception? A Perception, yes."
The Tribunal asked Person B (Transcript p32 line 36): "Q My question was that obviously if Dr Daniel was not positioned behind the patient, if he was positioned to the side or to the front of the patient, whether the contact would have occurred, in your opinion? A In my opinion it wouldn't have occurred if he was in either of those positions."
Person B was asked by the Tribunal with respect to the Respondent touching a patient on the arm during consultations (Transcript p32 line 46 to p33 line 4): "Q I think you said that it wasn't sort of signs of sympathy. That it was actually more signs of affection. Do you remember the context exactly of what was being said or what was occurring when these touches were occurring? A If my memory serves me it was less about what was wrong with us at the time of how we were. It was more - it wasn't in discussions about what we were feeling or our medical symptoms it was like talking about general day to day life type things so it wasn't in a medical context."
In response to questions from the Tribunal (Transcript p33) Person B said that she did not recollect the Respondent having indicated to Patient A what was about to occur prior to the "particular physical examination" which forms part of this Complaint. In further cross-examination (Transcript p35 line 15-22) with respect to the question of the physical manipulation consultation, Person B was asked: "Q Prior to that physical interaction, what did he say to her? A I don't remember. Q During that physical examination, what did he say to her? A I can't - I couldn't tell you. I don't remember."
As with Patient A, the issue with respect to the evidence of Person B is less, with respect to her veracity, than the reliability of her recollection. Person B did not embellish her version of events. Nor did she attempt to advocate for her partner. Person B candidly acknowledged deficiencies in her recollection of events. No motive for Person B misspeaking the truth emerges from her oral evidence. Person B's understandable loyalty to and support for Patient A did not, in my view, divert her from doing her best to give truthful evidence.
A series of colour photographs (HCCC 1 Tabs 21 and 22) show, accurately there is no doubt, the interior of the Respondent's consulting room (Tab 21) and the reception area of the Respondent's practice and locations within the practice of his consulting room, that of Medical Practitioner A (Dr D's wife) and Medical Practitioner C. I do not understand that either party asserts that the photographs materially advance the Applicant's Complaints, or the Respondent's response to them. I am satisfied that the photographs neither materially advance this complaint nor present any obstacle to its acceptance, if the Tribunal were otherwise comfortably satisfied that it was made out.
Dr B, who had seen Patient A prior to, and after, Patient A regularly attended the Respondent's practice, referred Patient A to the Clinical Research Unit for Anxiety and Depression at St Vincent's Hospital in late 2016 and received a report from [Dr M] of that Unit dated 9 November 2016 (HCCC Tab 25A), the original of which appeared at that Tab in redacted form. By agreement, the unredacted report was inserted in place of the redacted report on 15 February 2022.
For the purpose of this Complaint, it is sufficient to note that, in her consultation with Dr M, on a date which is not apparent, but clearly was some time shortly prior to 9 November 2016, nothing is recorded as having been reported by Patient A which could advance the present Complaint. I do not understand the Respondent to assert that anything recorded by Dr M in his report would advance any claim that the reliability of Patient A's evidence was adversely impacted by any symptoms Dr M observed or any conditions which he diagnosed.
Dr B provided a statement on 12 August 2020 (HCCC 1 Tab 27) in response to a notice given to her by the Applicant (HCCC 1 Tab 26) pursuant to s 34A of the Health Care Complaints Act 1993. In her statement, Dr B said: "1 I do not recall [Patient A] speaking to me about an incident involving Dr Ramez Daniel. 2 I cannot provide any further information."
Dr B was not required for cross-examination on her statement.
Dr B's statement does not support Patient A's version of events with respect to the allegations made by her in the paragraph 15 of her police witness statement.
Exhibit HCCC 2 comprises an email from Patient A to officers of an entity known as Open Colleges and a reply from Open Colleges to Patient A of 24 October 2018. In her email, Patient A stated: "What I am looking for and I am hoping there is a record of, is; 1 The date I first spoke to [E] along with [S] (TL at the time) about a doctor I was seeing who's [sic] professional conduct was in question because of inappropriate physical contact during examinations and; 2 Also the second time I spoke to both her and possibly Samantha a second time when I discuss the same doctor and my experience of a sexual assault?"
The responding email from Open Colleges, sent by Person "E" said: "I have taken some time to go back through my records and the only meeting I can find where we may have discussed this was on 14th June 2017. This was a meeting with yourself, myself and [Person G] when we were discussing your workers compensation claim at the time and your treating doctor was Dr Ramez Daniel. I can not confirm that we discussed this in this specific meeting but I remember talking about it with you and Samantha and I don't have any other meetings with the three of us coming up in my search history."
It is not in doubt that, if the conduct alleged in support of Complaint 2 occurred, that was on 6 September 2017, some months prior to the meeting to which Open Colleges referred. This evidence does not advance this Complaint. Nor, having regard to the terms of the email from Open Colleges, does it necessarily militate against acceptance of Patient A's allegations. Patient A may or may not have raised her concerns about the Respondent during her discussions with employees of Open Colleges.
The Applicant relied upon the Respondent's response dated 22 July 2020 to the Applicant's letter to the Respondent's solicitors of 23 June 2020 (HCCC 1 Tabs 11 and 10 respectively). Relevantly for present purposes, the Respondent said in his responding letter: "2 Consultations with [Patient A] 2.1 I do recall [Patient A] but cannot now recall what happened at every consultation. I have set out below my version of events. This is based on the medical record and my recollection. I have also referred to my usual practice when describing physical examinations. Whilst examinations vary from patient to patient, I have described what I ordinarily do unless there is some particular reason that I have to vary from this routine. 2.2 I have included my clinical notes in this response. 2.3 I do recall [Person B], [Patient A's] partner, would attend many consultations with [Patient A]. [Person B] was also a patient of the practice. I did not treat [Patient A] differently when [Person B] was not present as asserted."
There followed 42 pages of clinical notes of the Respondent's practice related to Patient A and the Respondent's commentary with respect to them. In view of his admissions with respect to the inadequacy of his clinical notes, the Respondent's reliance upon them is of little assistance to him.
The Respondent replied to Patient A's police witness statement dated 25 February 2019 (HCCC 1 Tab 11, p46) and said with respect to that statement: "3.1 The practice records indicated that [Person B] attended the practice first on 29 May 2015, not [Patient A]; 3.2 That he "did not start touching or rubbing [Patient A's] arm" as described in paragraph 8 of her statement and that his reasons for "touching a patient" include: performing an examination - [Patient A] may have misunderstood a neurological examination; to assist with patient mobility - I will offer my hand for assistance; and reassurance: by touching/tapping the side of the patient's upper arm. I do not hold a patient's arm, but do sometimes offer what I hope is a reassuring pat or brief touch;"
The Respondent also stated: The Respondent denied that he conducted examinations in the way asserted by Patient A in paragraph 9 of her statement, adding that "I would never wrap both my arms around a patient's stomach area as described. I would never bend a patient side to side with force. I do palpate the spine to check for tenderness. My usual practice for performing an examination of the back is described above; my usual practice for performing an examination of the hip area is also described above." (HCCC 1 Tab 11 p21-22 para 2.56, HCCC 1 Tab 11 p39 para 2.91). "I never asked [Patient A] to remove her top" as described in paragraph 10, "did not ask her to lift her bra. I may have asked her to loosen her pants if they obstructed an abdominal examination. I have described above my usual practice for performing an abdominal examination" (HCCC 1 Tab 11 p17-18 para 2.47).
The Respondent denied that he had performed an examination as described by Patient A in paragraph 11, and "did not place my hands underneath her breasts or tug at her pants as described. I did not place my hands on her pubic area". The Respondent denied that he had performed an examination as described in paragraph 12 of Patient A's statement and "did not touch the sides of her breasts over her bra. I did not ask [Patient A] to sit on my lap" and "at no point do I ever ask a patient to sit on my lap and perform stretches". The Respondent denied that he had performed the examinations described in paragraph 15 of Patient A's statement and "did not stand behind [Patient A] with my groin touching her buttocks. At no point did I ever stretch the patient or put her on my lap during these consultations. Checking her range of motions as part of an examination of her back in the manner described above is routine. I never wrapped my arms around the patient's body" and denied that he had performed any examination as described in paragraphs 17 to 20.
The Respondent replied to "the unsigned statement of [Patient A] dated 23 July 2019". As that statement is not in evidence, I have no regard to the Respondent's response to it, but record that nothing said by the Respondent in response to the statement could either advance the present complaint, or in any way adversely impact upon the Respondent's resistance to it.
The Respondent referred to the statement of Person B, and denied that he had ever asked Patient A to sit on his lap, or that he was "touchy feely" with Patient A, any touching of her being "for one of the reasons explained previously". The Respondent reiterated that he had not performed an examination as described by Person B in paragraph 8 of her statement and that "the front of my body did not touch the back of the patient's body as described".
The Respondent stated that with respect to Person B's alleged conversations with Patient A in mid-2017 that "From 1 June 2017 onwards, [Patient A] attended me for consultations on 13 occasions and [Person B] attended me for consultations on 5 occasions".
The Respondent was closely cross-examined. In cross-examination the Respondent (Transcript 16 February 2022 p41 line 27-42 at 33) was asked about the claims of Patient A and Person B with respect to his touching Patient A's arm "not in relation to any kind of examination or treatment". The Respondent stated (line 41) "It didn't happen". The Respondent was then asked: "Q Hypothetically speaking, if a gesture like that did occur, knowing the recommendations that Medical Council have given you, what do you say about the appropriateness or inappropriateness of that conduct? A Absolutely inappropriate."
The Respondent was asked (Transcript p 41 line 49 to p42 line 1): "Q Do you remember Person B described an examination that she saw you conduct where your hands, chest and body had made contact with Patient A. Do you recall that evidence that Person B gave?"
The Respondent agreed that he recalled the evidence, but denied (Transcript p42 line 4-5) "giving that examination" or (line 7-9) that it was "possible that you conducted an examination in the way that Person B observed". Asked (line 11) "Why do you say it's not possible when you don't recall the examination?" the Respondent replied (line 12-14) "Because basically this is not possible for medical examination to a patient and that she - if I could say that generally speaking and number 2 of course, my practice I don't do this at all".
The Respondent was then asked (Transcript p42 line 19) "Do you recall ever examining Patient A for her shoulder?" to which he replied (line 20-22) "I have to look to the medical records but for my recalling, sorry, it's very hard to recall. Very hard to recall do you mind I'll check that's on the progress notes?" Counsel repeated the question of whether the Respondent recalled (line 24-25) "giving evidence today, ever conducting an examination of Patient A's shoulder?" to which the Respondent replied "No".
The Respondent was then asked (line 28-29) "Person B described seeing your hands on Patient A's wrist and manipulating her body in relation to a purported shoulder examination?" The Respondent initially stated "No", then when asked (line 32) "Do you recall giving that examination?" answered "I don't recall".
The Respondent was then asked how he would conduct a shoulder examination. The Respondent gave a detailed account of how he would do that (Transcript p42 line 36 to p43 line 9). Counsel then asked (line 11-12) "I heard you say in that answer you'd ask the patient to do the range of movement?" to which the Respondent replied "Yeah". Counsel then asked "I take it from that answer you'd ask the patient to move their body in a certain way, wouldn't you?" The Respondent provided a detailed answer to that question (line 17-24). Counsel then asked (line 26-27) "That's because the patient can move their body without the need for you to have your hands on them, doesn't it?" To which the Respondent replied (line 28-30) "No 'cos I just I need to see the patient's actual movement. What's restricted. You can't ask the patient. You cannot pull it because you're going to hurt the patient. I mean, if there's something. I don't think so … it's the way I do the examination I ask the patient I hold it."
The Respondent agreed that there was "No need for your hands to be on someone's wrist in relation to a shoulder examination" (line 40-42).
The Respondent agreed (Transcript p44) that he saw Patient A for "hip issues" and "back issues". It was suggested to Patient A (Transcript p45) that Patient A saw him "around 5 times in relation to back pain". The Respondent was reminded (Transcript p45-46), by reference to his clinical notes, that back pain was discussed during consultations with Patient A on 4 October 2015, 30 May 2016, 5 September 2016, 2 November 2016, 1 May 2017, 7 June 2017, some 6 occasions. The Respondent confirmed (p46) that he relied "absolutely" on his medical records to come to the number of consultations which she suggested she had seen the Respondent in relation to back pain.
The Respondent was cross-examined with respect to what he did during those consultations. The following exchange occurred (Transcript p48 line 40 to p49 line 28): "Q I suggest when you examined Patient A in relation to her back pain issues, you stood behind her with your body pressed against her back but you would disagree with that suggestion, wouldn't you? A No. Q You agree that for that examination you stood behind Patient A with your body pressed against her back? A No, I said. No, I - it hasn't been done. Hasn't been done. Q I suggest when you conducted an examination of Patient A in relation to her back pain issues, you touched the side of her body with your hands, didn't you? A That's - this is done, as I'm saying again, it's my policy when I usually do examine patient's back. That's what I'm saying. If it's according to the history do you want or do you want me to answer about this case and this consult patient. Q When you conducted those examinations, you said, "Does it hurt when I touch you here?" to Patient A, didn't you? A No. Q Is it your evidence you never said to Patient A when examining her back does it hurt when I touch you here?"? A This is what I'm saying. In the policy of my examination of any patient's back, as I did mention before, after I do my inspection I do here ask the patient, "Where is the most highlight part of the body on the back which is hurting?" whenever the patient mention whenever in which area so I tell them, "Okay. What I'm gonna do, I'm gonna try to palpate" which is being pressed on the spine or the back or whatever, that's why I'm explaining to the patient, alright? "If it's something, it hurts, let me know". And as I'm saying, to put it as a scale from 1 to 10. "If you feel any pain 10 to - say 10 if it's less say 1". And that's - this is the way when I do it on the patient so of course, I mean, if it's going to mention when I press all this on the patient, I say, "Okay here is it tender and what about in this area and in this area?" Q You agree you have said to Patient A, "Does it hurt when I touch you here?"? A I said I usually do it to any patient when I do the back examination and if I did back examination to Patient A and then it's possibly I did press it after telling her to scale the pain and tell me if it hurts or not."
In cross-examination with respect to his admittedly deficient clinical records, the Respondent repeatedly, and necessarily, referred to his "usual practice". It is not in issue that the first knowledge which the Respondent had of any complaints by Patient A was after 25 October 2018, 13 months after the Respondent's last consultation with Patient A, and 3 years after the first occasion on which the Respondent is alleged to have conducted himself inappropriately during a consultation. The Respondent admitted (Transcript 16 February 2022 p53) having treated Patient A "on occasion for abdominal pain". The Respondent admitted (p53 line 36-40) that "The medical record doesn't set out how you examined Patient A's abdomen" and asked "You mean I should write, you know, like I did stand, you know, ask the patient, you know, and then after that I did palpate the areas?" The Respondent was reminded of what he had said in his statement (R1, para 2.47) that his usual practice was in that regard. The Respondent rejected (Transcript p54) any suggestion that, during the course of an examination of Patient A's abdomen he directed her to "remove her top", or "lift up part of her bra", "touched underneath her breasts" and agreed that none of those steps would be appropriate for an abdominal examination.
The Respondent was asked (Transcript p55) about consultations with Patient A in relation to "pins and needles, and numbness in her fingers", which he agreed had occurred in about November 2015. The Respondent recounted in detail his "usual practice" for an examination in those circumstances (Transcript p55 line 31-48), after which (Transcript p56 line 26-33) the following exchange occurred: "Q My question is, these phrases, my usual practice, I would have done, I may have also checked, you said these phrases because you don't specifically recall how you examined Patient A on November 26 2015? A That's what I did mention initially. I remember the consultation but not in details. Number 2, I mention it hasn't been documented the sensation testing and that's the reason I'm telling you … (not transcribable) … I could tell you I did check the sensation or I did not because it hasn't been recorded on the medical records."
The Respondent rejected (Transcript p57) any suggestion that he had "directed Patient A to sit on your lap", agreeing that doing so would constitute "the crossing of professional boundaries".
It was suggested to the Respondent (Transcript p58 line 3-4) "If you direct them [patients] to do something for the purpose of an examination, you'd have an expectation that they would follow that direction?" to which the Respondent replied "Once we have good rapport between the patients and the doctor and the trust and of course and they trust me, you know, asking what's my question, what to do it, yes. That's if they're going to follow it. If they understand and they're happy what about I say."
The Respondent agreed that he felt he had "built up a rapport with Patient A" and that from his "perspective" that her "feelings of trust" were not misplaced, the Respondent stating (Transcript p58 line 14-17) "She's been coming to the clinic for two and a half years or something like that and this is usually my personal policy to all my patients. If I lose the trust from any patients, it's not something right".
In the course of questions from the Tribunal, the Respondent was asked (Transcript p70 line 42) with respect to the components of a routine shoulder examination "You would be there doing more touching than just giving the patient to demonstrate the range of movement. You would also be touching them on the arm in terms of doing a passive range of movement, doing other special tests for the shoulder as well?". The Respondent replied (Transcript p70 line 46 to p71 line 13) in detail, during the course of which the Respondent stated that, having obtained the patient's consent to do so, he would "press" or "move" parts of the patient's body involving "normal touching you have to touch the patient". The Respondent was then asked (Transcript p71 line 15-18): "Q I understand it but my question was, apart from the palpation, obviously for tenderness, for checking the patient to do an active range of movement, would you do, obviously those other components of a shoulder examination beyond that that I just asked -- A Yeah, a professional just to do the classic movement, flexion, extension, rotation and see what's the sort of range. Q You wouldn't do a passive range of movement for the patient? A No. For the shoulder, no. Q No? A I do this only for the hip."
The Respondent explained that after obtaining the patient's consent he "rotated then after that to the other side. In the femur have them holding that's the knee and holding the foot and just to do the rotation … but the shoulder, no. Because shoulder they can do it by themselves." In re-examination the Respondent reiterated (Transcript p72) that he had never touched Patient A, other than for a "medical examination".
The Respondent's statement referred to the "report of the expert reviewer". I do not consider that reference to the expert report is appropriate unless it is established that the factual allegations upon which this Complaint is based are established, this being a case in which the real issue is whether the alleged conduct is established to have occurred, rather than how it should be categorised if it did.
As his report (HCCC 1 Tab 18) makes clear, Dr Howle, a General Practitioner with more than 40 years' experience, was asked to assume that Patient A's version of events was accepted. Although Dr Howle's unchallenged evidence would assume significance if the conduct alleged by Patient A were established, I do not perceive that it either advances or inhibits acceptance of those claims.
The Respondent's statement of 14 December 2021 (R1 Tab 2) is in identical terms to the letter written by him to the Applicant on 23 July 2020, the contents of which I have recorded earlier in detail. I do not perceive that anything differing from or additional to what was then stated by the Respondent found expression in his statement of 14 December 2021.
The Respondent relied upon a statement of Medical Practitioner A dated 14 December 2021 (R1 Tab 3). Medical Practitioner A has been married to the Respondent for many years and has worked with the Respondent at the Wolli Creek Family Practice since 2006, and was working in that practice at all times which have relevance for present purposes.
Medical Practitioner A set out details of her consultations with Patient A. The focus of Medical Practitioner A's statement was Complaint 2 and will be referred to in the consideration of that Complaint.
Medical Practitioner C made a statement on 28 January 2022 (R1 Tab 9). Medical Practitioner C worked at the Respondent's practice from June 2016 for 4 to 6 days a week until mid-February 2018. Medical Practitioner C also saw Patient A on a number of occasions, the details of which were annexed to his statement. Much of Medical Practitioner C's statement engages with Patient A's allegations with respect to events of 6 September 2017, and will be considered in the context of the determination of Complaint 2.
In his statement, dated, obviously erroneously, 10 March 2013, Medical Practitioner C referred to the "complaint received 9/2/2018" against the Respondent (R1 Tab 9 p15). In the course of his statement, Medical Practitioner C stated that the Respondent "respects his female patients, and treats them in a very civilised and courteous manner. I have never heard or seen him act inappropriately, or received a complaint about Dr Daniel acting unprofessionally with a female patient. All his patients - males and female - love him and [sic] majority of them refuse to see any other GP in the practice but him".
Medical Practitioner C further stated that the complaint made against him "does not reflect the type of conduct that I would consider Dr Daniel would condone or engage in with female patients and goes against what he stands for".
Although not specifically asserted to be such, Medical Practitioner C's evidence is, in effect, in the nature of "character" evidence, and relied upon to suggest the improbability of the conduct alleged by Patient A having occurred. In the circumstances, and having regard to the authorities, I do not consider that such evidence materially advances the asserted "unlikelihood" of the Respondent having committed the acts alleged against him or misspeaking the truth about them.
Person H, who commenced working as a Medical Receptionist in the Respondent's practice in or about 2008, provided two statements (R1 Tab 11 and Tab 12). The latter statement refers primarily to matters alleged in support of Complaint 2 and will be considered in the determination of that Complaint. The statement of Person H of 13 March 2018 (R1 Tab 11) recorded that "for over 10 years" during which she had at that time been working in the practice Person H had observed the Respondent to be: "nothing short of professional in all his interactions with staff, colleagues and patients. I have received no complaints regarding Dr Ramez Daniel's conduct with any female patients. I do not recall any event involving a female patient upset after a consultation with Dr Ramez Daniel. The allegations [by Patient A] in the letter do not correspond with the type of conduct I have observed Dr Ramez engage in with female patients. He has always been completely professional and I have never had a concern about the manner in which he conducts himself with female patients."
I understand that evidence is relied upon to militate against acceptance of Patient A's complaints. Having regard to the period over which Person H has had ample opportunity to observe the Respondent's conduct as a medical practitioner, and the absence of demonstrated reason to reject, or discount her evidence, as partisan or on any other basis, Person H's inability to recall "any event involving a female patient upset after a consultation" with the Respondent is entitled to be accepted. The weight appropriate to Person H's evidence in the context of this Complaint is limited, as Patient A has not alleged that, prior to 6 September 2017, the discomfort which the Respondent's conduct allegedly caused her would have been apparent to anyone employed by the practice, for the reasons which Patient A gave for continuing to consult with the Respondent despite his alleged conduct. Additionally, in Person H's role as a receptionist, she is unlikely to have been in a position to observe Dr Daniel's conduct in consultations with female patients.
At the close of evidence, Counsel for each of the parties made cogent and comprehensive submissions. Counsel for the Respondent identified (Transcript 17 February 2022 p23) a difficulty in the proceedings arising from the fact that "the complaint to HCCC was made over a year after the alleged incident (on 6 September 2017) and three years after when Patient A first saw Dr Daniel, and also in circumstances where this hearing has happened four and a half years after the last alleged incident". As the authorities to which I have earlier referred make clear, the passing of time is more conducive to the fading of memory than to its enhancement.
The passing of time is relevant to both the accuracy of Patient A's, and Person B's recall of disputed events, and to that of the Respondent and Person H, given that the first time that the Respondent, or Person H, had any reason to reflect upon the former's consultations with Patient A was in November 2018. Logically, if allowance is to be made for the fading of Patient A and Person B's recollections of events with the effluxion of time, in the absence of convincing reasons for not doing so, the same allowance should be made for the impact of time on the accuracy of the Respondent's and Person H's recollections of events. As Patient A's evidence confirmed, nothing of the kind which she alleges occurred in her consultations with the Respondent ever occurred in any consultation with other medical practitioners, either before or after the time in which she was a patient of the Respondent. In those circumstances, the uncertainty of recollection of Patient A was asserted to be significant, and to militate against findings her allegations proved to the requisite standard.
The concessions made by the Applicant with respect to Patient A's difficulty of recollecting "what words were used, in which specific appointment it occurred", and whether and when, she saw Medical Practitioner B, were appropriate. The issue is whether, whilst supportive of her credibility, the cumulative effect of the inability to remember material, as opposed to immaterial details, adversely impacts the accuracy of Patient A's recollection of disputed events, and militates against being satisfied to the requisite standard that the allegations against the Respondent are established.
To the extent that it might be asserted by the Respondent that there has been any "collusion" between Patient A and Person B, I do not agree. It would be unsurprising if, during the years when Patient A was seeing the Respondent, and in the year after she ceased to be a patient of his, Patient A and Person B had discussed what Patient A said had happened to her. Prior to the making of her complaint to the HCCC, Patient A did not complain, other on occasion to Person B, to anyone about the Respondent's conduct. It was submitted on behalf of the Applicant, that Patient A's and Person B's "lack of recollection … does not mean they are not credible or reliable on the facts" which go to the heart of this complaint. I do not find Patient A or Person B to have been other than essentially honest in giving evidence. The accuracy of their recollections is the issue.
The fate of this Complaint and Complaint 2 ultimately turns on the reliability or accuracy of the recollection of Patient A and, to a lesser extent, Person B. It was submitted (p24) on behalf of the Applicant that Patient A during cross-examination was "unassuming, modest, listened to the questions posed to her and answered what she could and could not recall". Her evidence in its totality was submitted to be "unblemished" in circumstances where Patient A had ample opportunity to present less impressively. I accept each of those descriptions of Patient A's evidence, but, with respect, that does not mean that Patient A could not have an honest but mistaken belief about what may have happened to her.
Counsel for the Applicant submitted, accurately, that Patient A did not resile from the substance of her allegations, and submitted (p24) that during parts of her cross-examination Patient A's "body language changed. Head down, shifting in her seat more, pausing, breathing heavier, taking longer to speak … signs of visible distress and was emotionally affected." Making due allowance for the reality that all witnesses who were cross-examined during the hearing of these proceedings did so by AVL, those submissions are consistent with my observation of Patient A at times during her evidence. Again, with respect to Counsel for the Applicant, whilst that is supportive of finding that Patient A was an essentially honest witness, that does not preclude being unable to find her recollection established to the requisite standard.
Counsel for the Applicant submitted (p28) that the Tribunal's assessment of Patient A's credibility and reliability would inform its decision, but "it's not a puzzle that has been definitely answered or refuted, and it may be a mystery that, Members of the Tribunal, you simply can't reconcile. But, in my respectful submission to you, it doesn't negate the reliability and credibility of what she says occurred inside the consultation room." As earlier recorded, the reliability of Patient A's recollection of disputed events is pivotal to the evaluation of the Applicant's Complaints. The tribunal's task is not to attempt to definitively answer any "puzzle", but to determine whether the Applicant has proved its case to the requisite standard.
As the authorities confirm, in the search for the probable truth in a case like this, reference to surrounding circumstances which do not go directly to the allegations against the Respondent may be instructive. I agree that, as submitted by the Applicant, the failure to recall minute detail with respect to disputed events is not inimical to either the credibility or reliability of a witness' version of those events. It would be surprising, and excite submissions with respect to those topics if, after all this time, Patient A, or Person B, purported to totally and accurately recall the minutiae of Patient A's version of disputed events, or to be entirely consistent in their recollections of disputed events.
The Applicant anticipated, accurately, (p29) that Counsel for the Respondent was likely to rely upon Patient A's reasons for not returning to the Respondent after 6 September 2017 "in circumstances where she may have turned her mind to improper behaviour by him". Patient A's evidence was that she continued to consult the Respondent after he acted inappropriately in October 2015 for a number of reasons, including his facilitation of Aropax prescriptions for her, the ease of getting appointments to see the Respondent, and his willingness to provide medical certificates for the purpose of Patient A's employment. I will return to that topic when considering the submissions on behalf of the Respondent, but observe that the issue is complex.
Counsel for the Applicant submitted (p29 line 38-43) in this context that Patient A's "evidence was very raw" when she described why she went back to the Respondent, by saying "I trusted he knew what he was doing, I trusted him as a person, I liked him as a person. I wanted to believe, so much, that he was doing the right thing by me". It was then submitted that "Maybe she said these things… because he had already crossed professional boundaries, touching her arms, giving signs of affection, causing her to think like this."
I accept the evidence of Patient A with respect to her reasons for continuing to see the Respondent, despite her allegations with respect to his conduct. Patient A's ceasing to attend the Respondent's surgery after 6 September 2017, when, if her allegations are established, the Respondent's misconduct escalated greatly, provides support for accepting Patient A's reasons for not ceasing to see the Respondent sooner.
I accept that, subject to the matter to which I will shortly refer, the fact that third parties' notes of complaints made by Patient A may be at variance with Patient A's allegations, does not necessarily mean that Patient A did not make the allegations, particularly with respect to matters of detail which do not go to the heart of the allegations themselves. I am accordingly cautious about a minute forensic assessment of discrepancies, inconsistencies or omissions in statements which are not pivotal to Patient A's allegations. Ultimately, i do not understand that the Respondent suggests that such an investigation should be undertaken in any event.
Counsel for the Applicant made submissions in support of her contention that the Respondent's denials of misconduct would not be accepted. The Respondent was submitted to have been "not honest", because of his repeated reliance upon his "usual practice" or what he "may have done", or "would have done" and asserted continuing to "distance himself from the allegations as much as possible". Counsel for the Applicant relied upon the Respondent's asserted "distancing" of himself from Patient A's allegations by denying "that he touched Patient A in a reassuring way, despite him saying it was a practice that he did in his written statement" (p30).
The evidence in relation to this topic, which the Tribunal sought, unsuccessfully, to clarify, is somewhat confusing, in part because, with respect to him, and allowing for the involvement of AVL, the Respondent regularly appeared to misunderstand questions asked of him, or the nuances involved in such questions. I am not persuaded that the adverse findings with respect to the credibility of the Respondent urged by the Applicant in reliance upon his demeanour are appropriate. I accept that, as his evidence makes clear, the Respondent necessarily touched Patient A during the course of some consultations. The Respondent was steadfast in his denial that any touching was ever inappropriate.
The evidence with respect to "reassuring" touching from Patient A, Person B and the Respondent is ultimately unclear. Despite Patient A's repeated statements with respect to her regard for the Respondent, she rejected any suggestion that he had ever touched her arm in a reassuring way. This is ultimately a matter which is relevant to whether, having regard to all the evidence, Patient A's allegations are established to the requisite standard of proof.
Counsel for the Applicant made detailed and cogent submissions (p30 line 46 to page 31 line 47) with respect to the Respondent's unresponsive suggestion that Patient A was a "very, very difficult patient", in which, by careful and detailed analysis of Patient A's clinical notes, it was submitted that, far from being a difficult patient, Patient A was shown by the Respondent's records to be "a compliant patient, concerned for her health, trusting of her doctor".
Hopefully without unfairly oversimplifying Counsel for the Respondent's submissions, I perceive the crux of them to be that the cumulative effect of the matters to which Counsel referred with respect to the evidence of Patient A, and successful resistance of the challenges with respect to the reliability of the evidence of the Respondent, precluded the Tribunal from being comfortably satisfied that Patient A's allegations were established.
Counsel for the Respondent relied on the evidence of Patient A (Transcript 17 February 2022 p35) with respect to the number of times she had seen the Respondent, specifically with respect to Complaint 2, but also, I apprehend, in the context of this Complaint. With respect to her, Patient A's estimate of possibly having had 300 consultations with the Respondent, when the evidence was agreed to establish 58 consultations was "grossly wrong". I accept that Patient A was genuinely mistaken with respect to the number of times she saw the Respondent, and that such mistaken beliefs do not necessarily impact on the reliability of her recollection of disputed events. However, particularly given the time period involved, the fivefold magnitude of Patient A's mistaken belief raises questions about the reliability of her recollection of the events with which this Complaint is concerned.
Counsel for the Respondent submitted (p37) that: "The Tribunal does not need to understand or explain why Patient A might be wrong about the various things she complained about, it just needs to say, and it should say, that it can't be satisfied that happened because the evidence doesn't support them overall."
As the submissions of Counsel for both parties confirm, although Complaints 1 and 2 are to be evaluated separately, matters emerging during cross-examination with respect to the disputed allegations pursuant to Complaint 2 may inform, and influence, the findings which are made with respect to this Complaint. Thus, it was submitted by Counsel for the Respondent (p37) that: "Even if you accept Person B's evidence that at some point Patient A told her that something distressing had happened and she shouldn't go back to see Dr Daniel, all that corroborates is that Patient A told Person B something, it doesn't corroborate that anything in particular actually happened, particularly if you don't accept Patient A's evidence as accurate because it is inconsistent with various other evidence. She may have told Person B any number of different things, in the same way as I am going to point out some of the things she said to other people that are inaccurate."
I accept that contention with respect to corroboration, particularly as I do not understand Person B to suggest that Patient A ever told her what had actually caused her distress on 6 September 2017. I accept the evidence of Patient A and Person B that there was a telephone conversation on the afternoon of 6 September 2017, after Patient A had seen the Respondent, that Patient A was distressed during that conversation, and that, irrespective of what was then said, Person B left work early to return home to comfort Patient A because of it. That evidence neither assists nor impedes the prospects of this Complaint being established. Its ultimate significance remains to be considered in the context of the evaluation of Complaint 2.
It was, properly, conceded by the Respondent (p38) that it was open to the Tribunal to find that Person B said to Patient A "Don't go back to see Dr Daniel" or words to that effect and that "there's an absence of evidence of any other reason for her [Patient A] to be upset" on 6 September 2017. I would make those findings even without the concession. They accord with my view of the evidence of Patient A and Person B.
Counsel for the Respondent placed some, but appropriately limited, emphasis on the circumstances surrounding the making of Patient A's statements in October 2018 and February 2019. Given that Patient A was to a significant extent in the hands of others, as she explained in her evidence, with respect to the making of those statements, nothing arising from the making of the statements adversely impacts Patient A's evidence with respect to their contents.
Counsel for the Respondent made a number of submissions (Transcript p39-40) in reliance upon the absence of evidence from Dr B with respect to making complaints to her and the absence of any evidence that Dr B completed a "mandatory notification about inappropriate behaviour by another health practitioner" or made a note of either the discussion or disclosure asserted by Patient A. In the absence of corroboration by Dr B, or her medical records, or any independent source of a relevant notification by Dr B, I am not satisfied that Patient A made any specific allegations of misconduct to Dr B.
Not dissimilar observations, albeit no question of mandatory reporting arose, apply with respect to Patient A's alleged conversations with employees of Open Colleges. Counsel detailed (p40-41), accurately, the evidence with respect to that issue. I do not find that Patient A manufactured her evidence in this regard but, particularly having regard to the time when Patient A first sought the information, and the content of the emails provided by the relevant Open Colleges personnel, I am unable to find that Patient A complained to any of those persons, or to the other employees of Open Colleges to whom she referred in cross-examination. She may or may not have.
As predicted by Counsel for the Applicant, the Respondent emphasised Patient A's asserted reasons for continuing to consult the Respondent, and the absence of objective basis for them (p43-44). Inherent in the Respondent's submissions was the suggestion that, had the Respondent misconducted himself as Patient A alleged, she would not have continued to see him for all, or any of the reasons which she proffered for doing so.
Although I do not accept that Patient A "kept going back because I didn't have anywhere else to go", having regard to the cross-examination of Patient A's attendances at other medical practices, I accept that Patient A may have genuinely believed that to be the case. The fact that Patient A could go to other doctors, and did, is also relevant in that Patient A does not suggest that she made any complaint about the Respondent to any of those doctors.
It was also submitted that the Respondent did not "distance himself" from any conduct alleged against him, and should not be criticised for continuing to deny that he acted in any inappropriate way. In circumstances where the Respondent has always denied Patient A's allegations, I do not consider that his doing so during cross-examination adversely impacts his credibility. As the authorities make clear, the Applicant must prove its case to the comfortable satisfaction of the Tribunal- the Respondent does not have to prove anything.
With respect to whether Patient A was "difficult or not", Counsel for the Respondent submitted (p45-46), that having regard to the matters which he identified in some detail, Patient A "certainly wasn't a model patient, particularly in relation to the severe issues relating to her mental health and her Multiple Sclerosis" and that "objectively" the Respondent's statements about her "seem to be reasonably borne out by the material".
The objective material is inconclusive as to whether Patient A was difficult or not, and I do not consider that, whether Patient A was or was not materially difficult impacts upon the evaluation of this Complaint.
As observed earlier, Patient A suggested additional reasons for continuing to see the Respondent. The first of them related to the asserted ease with which Patient A could obtain prescriptions for Aropax. The evidence establishes that Patient A obtained, without apparent difficulty, prescriptions for Aropax from other medical practitioners. Patient A's statement that she was influenced to continue to see the Respondent because of his willingness to provide medical certificates for the purpose of her employment also does not withstand objective scrutiny, given her concession that she was not refused such a certificate by any other member of the Respondent's practice.
Patient A's evidence that she could see the Respondent without an appointment by simply attending the surgery can be accepted, but, the evidence does not suggest that Patient A could not as readily have seen any other member of the Respondent's practice if she attended without an appointment. Although of relatively minor significance, Patient A's evidence that, notwithstanding what she alleged he was doing to her, she preferred to see the Respondent, and reasons for doing so, rather than seeing his partner, Dr A (a female practitioner) is considered relevant to evaluating this Complaint.
I am not comfortably satisfied that the allegations made in support of this Complaint have been established. The conduct alleged by the Applicant may or may not have occurred. The reasons for my inability to be comfortably satisfied that the Applicant has discharged the onus of proof which it bears have largely been indicated in my consideration of the submissions of Counsel for the parties, and do not involve finding that Patient A or Person B lacked credibility, but rather that their evidence lacked the requisite degree of reliability or accuracy.
Although Person B corroborated Patient A's allegations with respect to the Respondent's conduct during consultations when she was present, the uncertainty of recollection and absence of material detail emerging from Person B's cross-examination limits the extent to which Person B effectively corroborates the evidence of Patient A.
Whilst contradictions, inconsistencies and forgetfulness of the kind admitted with respect to the evidence of Patient A and Person B enhance the credibility of each of those witnesses, the cumulative effect of those matters is to raise questions about the accuracy or reliability of their recall of disputed events. Patient A's largely unexplained silence for 13 months after her last consultation with the Respondent, and inadequate explanation for why, against the background of silence extending from October 2015, Patient A decided in October 2018 to make a complaint, combined with the passage of time suggests, consistent with human experience as the authorities have consistently recognised, that her recollection of events may be inaccurate.
Within the inconsistencies, one inconsistency in the evidence of Patient A is concerning, that being different versions of what underwear Patient A alleged that the Respondent directed her to remove - bra and underwear or, as Patient A's oral evidence clarified, bra or underwear. Whilst that is not decisive of the issue, it is a circumstance which, when taken into account with the other matters, is material to my determination. Patient A's inability to recall dates with respect to this complaint, even to a year or a month in a number of instances, is understandable but, when the reliability of recollection is challenged, is also a matter of significance. Again, although not decisive, Patient A's belief that she could have seen the Respondent up to 300 times in a period of 27 months, when it is not in doubt that she saw him not more than 58 times, is a relevant consideration.
An uncertainty which I cannot and do not need to attempt to resolve, relates to the reasons why Patient A continued to see the Respondent after she alleged that he had commenced to act inappropriately during consultations. As submitted on behalf of the Respondent, Patient A's explanation for continuing to see the Respondent with respect to prescriptions for Aropax, inability to be able to access another doctor and the Respondent's readiness to provide certificates for the purpose of Patient A's employment were all shown to lack an objective foundation. As I have earlier recorded, Patient A may believe that, but when the issue for determination involves the application of an objective standard, that evidence assumes significance. It may be that Patient A continued to see the Respondent for the reasons which she suggested, but the evidence, and Patient A's own frank admissions, do not establish that she could not have obtained that assistance from any other member of the Respondent's practice.
Why, given that she alleged that the Respondent had been physically abusing her, Patient A stated a preference to continue to see him rather than his female partner in the practice, is also relevant to evaluating the likelihood that, in the period leading up to 6 September 2017, the Respondent misconducted himself in the way alleged by Patient A.
I accept that Patient A wanted to believe, and continued to believe, that the Respondent must have been doing the right thing, at least until prior to the consultation on 6 September 2017. I do not criticise Patient A for that, or discount the weight which I give to her evidence on that basis. The common experience in disciplinary proceedings involving medical practitioners is very much in accordance with the explanation given by Patient A for continuing to see the Respondent until 6 September 2017. The evidence with respect to the Respondent touching Patient A during a consultation at which she, Person B and the Respondent were present does not persuade me that any such touching was malign.
Patient A's failure to state in her initial Complaint that the Respondent asked her to sit on his lap during consultations, and her inability to explain how she forgot to include it in the first statement are matters to which I have had regard. So is Patient A's inability to recall the first time when the Respondent allegedly engaged in inappropriate conduct during a consultation with him in view of her consistently stated reaction to that conduct. Patient A's inability to recall, prior to 6 September 2017, whether Person B had ever suggested to her that she stop seeing the Respondent is a matter to which I have also had regard. I have earlier recorded that Medical Practitioner B and former colleagues of Patient A at Open Colleges did not confirm that she had complained to them in the terms asserted by Patient A, or in any terms like those terms.
As I have earlier recorded, and making allowance for her willingness to continue to trust the Respondent, I have difficulty with the absence of discussion of Patient A's allegations with Person B, particularly in view of the more serious of them, and Person B's evidence that the Respondent had behaved inappropriately during consultations at which she had been present.
For the foregoing reasons, which involve no finding adverse to the credibility of Patient A or Person B, I am not able to be comfortably satisfied that this Complaint is established. Although I have not engaged with each particular of this Complaint in these reasons, I have considered whether any particular of the Complaint should be found established notwithstanding the findings which lead me to conclude that other particulars cannot be upheld. The uncertainty which leaves me unable to be satisfied that some particulars of this Complaint have not been established is in my view fatal to the whole of the Complaint. Although how Counsel conducted the case is not determinative, both Counsel's submissions approached the particulars of this Complaint globally.

Complaint 2

Complaint 2 asserted: "The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of profession."
The particulars of this Complaint alleged that: "1 On 6 September 2017, Patient A attended a consultation with the practitioner for treatment of recurring headaches. During this consultation the practitioner asked Patient A about bladder leakage issues and purported to show Patient A how to treat the issue. The practitioner: (a) directed Patient A to remove her pants and underwear and lay down on the bench in the consulting room; (b) wearing latex gloves, inserted his fingers inside Patient A's vagina for approximately 1 second; (c) removed his fingers and went to pick up some gel; (d) having changed gloves, and reapplying gel to those gloves, the practitioner again inserted his fingers into Patient A's vagina and moved them around for about 2 to 3 minutes; and (e) removed his fingers from Patient A's vagina and said words to the effect of "If I do this on a regular basis this will help with the [bladder leakage] problem". 2 By reason of the actions set out in paragraphs 1(a) to 1(e) above, the practitioner engaged in inappropriate behaviour of a sexual nature towards Patient A."
In his Reply the Respondent denied each and every act alleged and particularised in this Complaint.
The records of the Southern Sydney Sexual Assault Service (HCCC 1 Tab 24) of 8 October 2018 record Patient A as asserting on "End of last year … digital penetration. Didn't go back. Has not reported to police or any other organisation". "Progress note" dated 10 October 2018 stated that the "touching" which Patient A complained of prior to 6 September 2017 "escalated and culminated in digital penetration late last year".
In her details of complaint to the HCCC of 25 October 2018 (HCCC 1 Tab 12, Annexure A) Patient A stated: "In my last appointment on 06/09/2017, I went to see Dr Ramez about a continues [sic] headache I was having and was unable to attend work for. After consulting me about the headaches and providing me with a sick leave certificate for that day, I was about to leave when Dr Ramez asked me if I ever [sic] issues with light bladder leakage to which he [sic] I responded yes. He then advised me that he would show me how to resolve this issue. I would just need to discard my pants and get onto the examination table. It advised it would be easier if I bent and spread my legs. He then washed is [sic] hands put on medical gloves and came over to me and digitally penetrated me with two fingers, this came as a slight shock, he then removed his fingers and turned to apply get. At this time the surgery receptionist knocked once and entered the room to see me lying on the examination bed with my legs spread and bent while he was applying the get. He became very agitated and yelled at her about coming in and locked the examination room door and returned to continue with his examination. He again penetrated me with his fingers and advised that this practice if [sic] would assist in resolving the light bladder leakage if continued regularly. Once he finished and removed his fingers, he allowed me to get dressed and leave."
In her police witness statement (HCCC 1 Tab 12 Annexure B) Patient A recorded her allegations with respect to the conduct of the Respondent on 6 September 2017 and said: "17 I made an appointment with Dr Daniel for the 6th of September 2017 as I was having re occurring headaches. I was concerned as I thought this might be an issue with my multiple sclerosis. I told Dr Daniel that I was having re occurring headaches. Dr Daniel did not examine me at all but wrote a doctor's certificate. Dr Daniel handed me the certificate and as I was getting up to leave, Dr Daniel said words to the effect of "Are you having problems with your weeing when you don't want to?" I thought this was an odd question. I responded with words to the effect of, "yes sometimes" Dr Daniel said words to the effect of, "I'll show you how to fix that. Get on the table and pull your pants including your underwear all the way down". 18 I reluctantly got onto the bench undid my pants, by undoing my belt, undoing the button on my pants and unzipping my pants. I pulled down my pants as well as my underwear. I laid down on the bench and had both my legs bent with my feet on the bench. I felt uncomfortable. Dr Daniel said words to the effect of, are you embarrassed? I am a doctor". I said words to the effect of, "well umm". As I was saying this, Dr Daniel walked to the sink area and was washing his hands. Dr Daniel placed latex gloves on. As Dr Daniel turned round and walked towards me, he said words to the effect of, "can you move your legs wider". I did this hesitantly and as I did Dr Daniel placed his left hand on my right upper thigh area and with two fingers inserted them inside my vagina for one (1) second or so. Dr Daniel pulled his fingers out of my vagina and turned around and walked to the bench area and picked up some gel. As Dr Daniel was walking back to where I was laying the receptionist knocked on the door and opened it the receptionist saw me on the table and saw Dr Daniel standing near me. Dr Daniel became angry and yelled at her saying words to the effect of, "you don't just walk in, I have patients in here". Dr Daniel grabbed the curtain and tried to pull it however it did not move. The receptionists [sic] face was shocked as her mouth was slightly and was staring in my direction with wide open eyes before she shut the door."
In oral evidence it became clear that Patient A was alleging that the receptionist's mouth was slightly "open or agape".
Patient A described (paragraph 19) the receptionist "to be 25 to 30 years old with Blond hair. She was [sic] Caucasian appearance with freckles on her face. She was 160cm tall, medium chubby build. I am unsure of what she was wearing". Patient A further alleged (paragraph 20) that: "Dr Daniel changed the latex gloves he was wearing and walked over to me. I was concerned about what was going to happen. Dr Daniel again placed his left hand on my right upper thigh area and put gel on his fingers and with two fingers inserted them inside my vagina and moved them around. Dr Daniel moved his left hand to my pubic area and said words to the effect of, "Clench" I clenched my vagina. I could feel his fingers moving in my vagina. This lasted for about 2 to 3 minutes. I became agitated. I did not understand why he needed to do this. It did not seem reasonable that this should have occurred. Once Dr Daniel took his fingers out of my vagina he said words to the effect of, "If I do this on a regular basis this will help with the problem". I felt violated. I put my underpants and pants back on and walked out of his room."
Patient A then said: "21 I did not say anything to Dr Daniel about what had happened as I was in shock. I felt betrayed by Dr Daniel. As soon as I walked out of the practice, I called [Person B] straightaway. I asked her to come home. As soon as she arrived home I told her what had happened. [Person B] told me that she would assist me in putting a complaint through the Health Care Complaints Commission."
Patient A further said: "22 A couple of days later, I tried to get back to normal and I went into work. I was really struggling with what had happened involving Dr Daniel, so I asked to speak with my manager [Person SG]. I told her what had happened to me. [Person S] organised for me to speak with the human resources officer, I believe her name was [Person A]. I spoke with [Person A] and [Person S] about what had happened, they told me if I needed any support to let them know."
After recording the steps which she subsequently took with respect to her allegations, Patient A said (paragraph 26) "From the whole experience I feel violated and angry about what has happened. I feel weak about what Dr Daniel has done to me. I'm upset with myself that I did not say something earlier or did not try and stop this from occurring", and (paragraph 27) "At no time did I give Dr Ramez Daniel permission to conduct an internal examination of my vagina or the exterior of my vagina. At no time did Dr Ramez Daniel discuss with me or request an examination of my vagina. I have never presented to Dr Daniel's surgery with any issues relating to my vaginal area or bladder issues".
In cross-examination of Patient A with respect to Complaint 2 the following exchange occurred (Transcript 15 February 2022 p55 line 16 to p56 line 24): "Q As I understand it, you say that on 6th September 2017 after providing you with a medical certificate for headaches, Dr Daniel asked you something about bladder or continence issues, is that right? A That's correct. Q What do you say that Dr Daniel said to you at that time? A I think he said something about, "Do you have problems weeing when you don't want to?" Q Was that in response to something you had said or was that completely out of the blue so far as you were concerned? A Completely out of the blue. I was about to leave, I was happy to leave because he hadn't touched me at all during that examination to that point. Q What did you say back to Dr Daniel, if anything? A I, I told him yes, that I had. Q What do you say happened next? A He then told me - he said, "I could show, I'm going to show you how you can fix that", I think, and that I should get up on the table. Q Do you say, sitting here today, that you've got a clear recollection of this consultation and that discussion? A I have a fairly clear recollection of what happened around that, around that event after he asked me about the bladder leakage in that term. I, I can't say our, our conversation beforehand, what that was about, but certainly after I can. Q You can remember the part of the consultation that relates to what you say was the inappropriate conduct but not much else, is that right? A Yeah, that's true. Q What do you say happened after that conversation with Dr Daniel about urinary leakage? A I believe - as I said, he, he told me he knew - he, he was going to show me how I could fix that and asked me to get on the table. Then he asked me to pull my pants down and he said all the way, and I, I did pull my pants down, after he said take them off, I did, and I'm not sure if I was wearing underpants or not that day but I took my pants off. And he, and then he said something about, "Are you uncomfortable? Because I'm a doctor, I'm" - I didn't know how to answer this 'cos I was - I just said, well - and then he went to wash his hands, I think, and then he, he put gloves on and then he, he grabbed my, one thigh and he said, "Can you open your legs?" I think. And then he, and then he put 2, 2 fingers inside me and then, and then he took them out and he went to - I saw that he went to get some gel or something from the table, I think it was gel. And then the receptionist opened the door and moved in, she didn't come all the way in, it was just the door opened. And he was quite upset and he, he yelled at her something like, "Don't, don't just knock and come in, I have patients in here", and she was quite shocked. And then he went to move the curtain, and when he went to move the curtain, it didn't, it didn't move at all, it just sort of sat there and, and then she had left by this time. And then he had put the gel on and turned around then penetrated me again with his 2 fingers, and then he took them out. And I was, I was really - I was, I was so upset at this time, I was really agitated and angry. And I think he was saying something like, "This is what you do. If you do this every day", or something, that, "It will help with the, help with your problem". And then it's a bit fuzzy. I, I think I put my pants back on and I, I just kind of got my stuff and left. I was really upset and I, I can't recall, to be honest, what I did after that, I, I think I rang my girlfriend and asked her to come home or something."
Patient A was unable to say whether "the person who came into the consultation room was the same person who she saw at reception when she attended for her appointment" (Transcript p57 line 36-44). Nor could Patient A say whether the person who came into the room during her consultation was the same person she saw at reception when she left the practice.
Patient A said that she knew that the person who she said entered the consultation room was a "regular member of the reception staff" but did not know her name, and described her as "I think she had blonde hair, she was medium of height, a voluptuous body. That's all I can remember. Maybe she had light, light skin, a Caucasian with freckles". When asked whether this person was the only one she could recall who fitted that description, Patient A stated that there were other people, but she did not recall what they looked like and would not be able to recognise them on the street (Transcript 15 February 2022 p58 line 36-50). Patient A described the layout and features of the consultation room reasonably accurately. As noted earlier, nothing relating to the physical features of the consultation room, or other physical features of the medical practice rooms, advances either party's version of disputed events.
Cross-examination of Patient A with respect to what otherwise occurred during the consultation on 6 September 2017 confirmed that her recollection of what preceded the Respondent's alleged digital penetration of her was vague. If Patient A's version of the end of the consultation is substantially accurate, it is unsurprising that she would have little recollection of the uneventful portion of the consultation which preceded it. Patient A acknowledged that she had no recollection of going to the front reception desk and booking an appointment for the following day to have blood taken immediately after her consultation with the Respondent on 6 September 2017 concluded (Transcript p63), her "belief" being that "it did not happen". Again, if Patient A experienced the digital penetration alleged by her, it is unsurprising that she would not recall making an appointment immediately after the consultation. It is not disputed that Patient A did not keep the appointment.
The undisputed evidence of Patient A and Person B is that, shortly after she left the Respondent's surgery on 6 September 2017, Patient A had a conversation with Person B.
Cross-examination of Patient A revealed (Transcript p63 line 50 to p65 line 5): "Q When you left the practice, I think you said that your best recollection was that you'd called your partner, is that right? A Yes. Q What did you say to her? A I asked her to come home, I wanted to - I just had to talk to her about something, that's what I can remember. Q What did she say to you? A I can't, I can't recall. Q When you asked her to come home, do you know where she was? A I think she was, she might have been at work, I'm not sure. Q Did you go straight home? A I, I think I did. To be honest, I'm not sure, I can't remember. Q How did you get home on 6th September 2017 from Dr Daniel's practice to your house? A I may have walked or I may have driven. Q When you got home was your partner there? A I can't recall. Q At some point did you have a conversation with your partner that day at home? A Yes. Q What did you say to her? A I believe I told her what happened with Dr Daniel. Q When you say, "I believe I told her what happened", what I'm interested in is what you actually said to her. A I can't recall the exact words. I told her about the incident of him asking me about the, whether I had problems weeing when I didn't want to, and his penetrating his fingers into my vagina. I can't recall exactly what I said but I know that I spoke to her about it, and those two things were certainly things I said to her. I'm not sure in what - I, I just - that was what I was talking to her about but I can't recall the exact conversation. Q As I understand it, you say that you had previously said to your partner that Dr Daniel engaged in conduct with you that you considered inappropriate and made you uncomfortable, is that right? A That's correct. Q On this occasion when you say that you said to her these things, what did she say? A I can't really recall at the moment, I'm not sure. Q You've got no recollection whatsoever about what she said in response to you disclosing to her that you had just been physically sexually assaulted by a doctor? A Yeah, right at this moment I can't recollect what she said. Q Nothing, you can't remember any of it. A No, I can't."
The statement of Person B (HCCC 1 Tab 15) with respect to this Complaint records (paragraph 12) that, not long after the events set out in earlier paragraphs of her statement in what "would have been mid-2017" she recalled that Patient A "came home one time after seeing Dr Daniel and said that… she could no longer see him anymore because she was just too uncomfortable with the way he was treating her. [Patient A] didn't go into detail at this time about what had happened, but she just said she could no longer go. [Patient A] was in tears when she was saying this. She made me promise I would never see him again. I told her I wouldn't, and we didn't speak anymore about it this time as she was too upset. I could tell that something had happened, but I did not want to press her as she was noticeably upset".
Person B stated (paragraph 13) that after "this happened" she "looked into how to report the inappropriate behaviour of a medical practitioner" and provided certain information in that regard to Patient A but that "at the time though she was not comfortable pursuing it".
Person B stated that, in what must have been about October 2018, when Patient A "decided to pursue the complaint through the HCCC", Patient A "started talking to me more about what had happened with Dr Daniel" (paragraph 14). Person B then stated (paragraph 15) that "[Patient A] told me about a time when she had attended a consultation with Dr Daniel and he conducted a pelvic examination. She told me that he had digitally penetrated her during this examination. [Patient A] told me that she had gone in for an upset stomach and at no time had Dr Daniel told her he was going to conduct an internal examination."
Person B stated (paragraph 16) that Patient A "went on to tell me that she had discussed with Dr Daniel her Irritable Bowel Syndrome" and that Patient A "had also been suffering, from time to time, with a problem urinating", and that Patient A told her that "she was not even at the Medical Practice to see him for that, but Dr Daniel had still proceeded to conduct an internal examination of her vagina".
Person B was cross-examined with respect to her conversations with Patient A after she had seen the Respondent on 6 September 2017. In cross-examination, Person B confirmed that the conversation 6 September 2017 which she had said in her statement she thought was in "mid-2017" that "today I don't remember the timeframe" (Transcript p24).
Person B confirmed her recollection of Patient A "coming home distressed" after her consultation with the Respondent on 6 September 2017. Person B confirmed that she had been telephoned at work (Transcript 16 February 2022 p25) by Patient A who "asked me to come home, which I did and then we discussed it at home" (p25 line 22-24). Person B clarified that there was no discussion with Patient A of what happened during the consultation on 6 September 2017 on the telephone. Cross-examination of Person B then followed (p26 line 16-44): "Q Is there a reason that there is no reference to that phone conversation of Patient A calling you in distress referred to in paragraph 1 of her [police] statement? A I didn't think it was particularly relevant the actual phone call. I thought the discussion we had at home about the details about why she was upset was more relevant than her contacting me saying, "Come home". Because she didn't give me any details on the telephone call. Q Was she in tears when you say she called? A Yeah. Q You didn't think it was relevant --- A Probably. Q You didn't think it was relevant to tell the police or include in your signed police statement that the first discussion --- A It's a call --- Q The first discussion you had with Patient A about these events, which had left her in distress, was when she called you and asked you to come home early from work. You didn't think that -- A I was -- Q -- relevant? A As you recall I said I didn't have a conversation about what had happened all I - she called me in tears and said, "Come home". That was our discussion. It had nothing to do with what had happened that - I didn't find out until after I came home so why you think that is relevant to this - we didn't discuss her consultation on the telephone she made a request and I came home so I'm not sure why you think that me not including that on the statement is relevant."
With respect to paragraphs 15 and 16 of her police statement, Person B was asked whether (Transcript 16 February 2022 p28 line 36-43): "Q Sitting her today, do you have a recollection of that … what Patient A said to you on that occasion and what you said to her? A No. Not an absolute recollection, no. Q When you say "not an absolute recollection" does that mean you remember some of it or you don't really remember the detail at all? A I remember the conversation happening. I don't - I can't - I couldn't completely recall the detail, no not now."
The Tribunal asked questions of Person B with respect to Patient A's disclosures after the consultation on 6 September 2017 (Transcript 16 February 2022 p34 line 29): "Q You came home and she was in tears and she was anxious but it doesn't seem the case that she told you what had happened during that consultation on that occasion. Is that correct? A That conversation in particular, when I came home we saw each other for the first time after she called me to come, it was - she was really upset and not making too much sense at that time. Q I understand. A So, it was - it was basically her saying, "I'm not going to see him again. You can never see him. Promise you will never see him again". It was along those lines. There was - it didn't - there was very little detail during that conversation about what had happened. That came out over time later. Q Over several conversations. Is that right? A The detail probably one conversation but we didn't talk about it much because it would upset her. Q I understand. A Basically, it would have been over a conversation that more detail came out but the gist of that first conversation was, "I can't go see him again and promise me you'll never see him again by yourself"."
I have earlier referred to the evidence of Dr B and the email exchange (HCCC 2). Having regard to the timeframe, unlike in the context of Complaint 1, Dr B's evidence does not have any bearing on the acceptance of Patient A's allegations pursuant to this Complaint.
Person H provided a statement to the Applicant dated 16 June 2020 (HCCC 1 Tab 14) by which time Person H had worked in the medical practice "for approximately 12 years". Person H referred specifically to Patient A's allegations with respect to the events of 6 September 2017 and said (paragraph 8) "The alleged incident was approximately 3 years ago, so I do not recall every detail. However, I do recall that around the time of the incident, we had a number of staff helping at the Wolli Creek Family Practice. This included a receptionist named [Person G] and an older female receptionist named [Person J]", and that there was "one receptionist, two or three doctors and a nurse on duty at all times" (paragraph 9).
Person H was unable to recall "which nurse was on duty at the time of the alleged incident, however I recall that there has been a change of nurses" (paragraph 11). Person H stated that (paragraph 12) "On the day of the alleged incident, I worked a full day and was the only receptionist on duty. I can be sure that I worked a full day, as upon learning of the allegations against Dr Daniel, I checked the practice records, which confirmed I did all the billings that day, in addition to being recorded on my timesheet."
Person H stated that (paragraph 13) "I would always knock on the doctor's door and wait until I heard an "okay" before entering" and that she did not recall "working on a day where something happened that was out of the ordinary, such as the alleged incident" (paragraph 14). Person H did not remember "specifics" about Patient A or any "interactions I had with her" but, having looked through the practice records, stated that she had booked a blood test for Patient A after her appointment with Dr Daniel on 6 September 2017. Person H's statement is consistent with an email from her to the Respondent's solicitors of 19 November 2018.
In oral evidence (Transcript 15 February 2022 p82 line 40), Person H confirmed that she had been employed by the Respondent's practice for "14, maybe almost 15 years" as a receptionist. Person H was cross-examined with respect to the number of support staff at the practice in September 2017, and their physical descriptions and age. Person H's descriptions of employees Persons SJ and JF (Transcript 15 February 2022 p84) eliminated each of those persons as having been present at the time of Patient A's consultation with the Respondent, independently of the roster which was subsequently received in evidence.
In cross-examination of Person H on 15 November 2021, the following exchange with respect to the events of 6 September 2017 occurred (transcript p89 line 44- p90 line 24): Q. …you say, "I do not have any recollection of Dr Ramez agitated or yelling at me". When you wrote this as at November 2018, are you saying it may have happened but you don't remember, or it didn't happen at all? A. I, I don't remember that day. I would most likely remember if something like that happened. I don't feel that that happened but I- yeah, I don't- that didn't, that didn't happen to my knowledge if that's the best way of putting it. Q. You said in your evidence that you don't remember that day. A. Yeah, I. I feel like I would remember if something like that happened but it feels like it's just an ordinary day to me. Q. How can you say it feels like it was an ordinary day to you? A. Because nothing extraordinary happened on that day for me to remember it. Q. Do you remember anything that happened on 6 September 2017? A. No. Q. If you can't remember anything that happened on 6 September 2017, why do you say you're sure that something like that wouldn't have happened? A. Because I feel like I would remember it if something did. Like, to me, if I got yelled at, I would remember. Q. In terms of knocking on Dr Daniel's door and possibly entering without being given permission, is it possible that hat could have happened without you remembering? A. if, yeah, if the doctor doesn't tell me that they didn't say okay, maybe, but yeah, not to my knowledge that that's happened.
Nothing emerging from the close and careful cross-examination of Person H provided any basis for rejecting her evidence that, had she entered the consultation room, and been yelled at by the Respondent, Person H would have remembered that. Despite her longstanding employment by the Respondent's practice, Person H revealed no partisanship during her cross-examination. As the passages of her cross-examination recorded above suggest, Person H made appropriate concessions and impressed as an honest witness. Contrary to Patient A's honest belief, I am unable to find that Person H entered the room during the Respondent's consultation with Patient A on 6 September 2017.
Person H's evidence with respect to what occurred when staff changed shifts, that "It was always done by way of adjustments to the timesheets" (Transcript 15 February 2022 p92 line 40-41) is consistent with what would be expected having regard to the evidence that what staff were paid was based upon what was recorded in the timesheets. Nothing to which the Tribunal has been referred persuades me that the timesheets involved any conscious or unconscious inaccurate recording of staff movements on 6 September 2017.
The Tribunal asked Person H a number of questions with respect to what was, aptly, described as "a puzzle" (p93 line 42 to p95 line 30 to p96 line 26): "Q Person H, I'm just wondering if you could assist me with a puzzle. We have a description of a person, a female person who worked on this day on 6th September 2017 and she is a person who worked largely only in the mornings, okay? She's 1.6 metres or 160 centimetres tall, so she's not that tall but not that short. She's 25 to 30 years of age. She has freckles and she's a little bit chubby or curvaceous and she's Caucasian. Of all of the female staff that worked there, and I would like you to cast your mind to pathology staff, nurses, reception any sort of fill in staff, does that strike a chord with you? Would you know who that person might be? A Not that exact description. Like, there are people that maybe fit a couple of the characteristics, - maybe -- Q Tell me. A Like, 1.6, I don't know about height. What colour hair? Q Blonde. A Blonde. [Person JF] was blonde but she was significantly older. [SJ] has always had brown hair. I was blonde and I'm not that tall, anywhere near that tall. Q So, you're nowhere near 1.6? A No, I'm like 150 centimetres, maybe a little bit higher with heals. [Person MG] is Asian. Q How about pathology collectors? A See, they change all the time, they'll just send us who they can send out, so it could be male, it could be female. Q Would there be like a reasonably consistent person that might come out say for a 3 month period, you might see that person all the time, or how does that work? A That has happened where we have had regular people - but it's rare. Sometimes - especially back then, they would just send us a different - I remember them sending us a different person every day until we complained, then they sent us a regular person. But then they, they have left frequently as well 'cos it's a calamity. Q [Person SB], how old is she? A She'd be very similar to my age, so maybe like 34, 33, 34, 35, like that. Q How tall is she? A I don't know. Q Is she a wee bit taller than you? A Yes, she's definitely taller than me. Q Is she a little bit curvaceous? Sorry they're not my descriptive terms it's what we've heard, okay? A Yeah she's, she's reasonably fit, and I think actually at that time, I don't know, she was pregnant possibly or just had - yeah, I, I - it was a very long time ago. Q What sort of hours did she work? Did she work? Did she mainly work in the morning? A She - I can't, I can't remember when she worked but it would, it would either - be some days we work all the day, other days we would do 5 hours each, so she could have done a combination of both as well. Whereas [Person JF] would only do half days unless there was no one to fill in for her. Q You mentioned that there was a nurse before [Person MG]? A Yes. Q What did she look like? A So, she was short. She had like light brown hair. A little bit curvaceous, but she was pretty short. Q Shorter than you or as short as you? A Maybe just a touch taller than me. Q A touch taller? A I remember her being taller, yeah. Q Was she Caucasian? A Yes. Q Did she have freckles, can you remember? A No, but she wore glasses. Q The age, sorry did you tell me her age? A She was younger so - Q Younger than you? A Yeah. Yeah, so this was 5 years ago, maybe she'd be in her early twenties. Q Early twenties what was her name? A [Person TB]."
Person H was cross-examined before the practice timesheets with respect to 6 September 2017, and the days preceding and following that date were produced. The combination of the timesheets for all of the persons identified by Person H, combined with her descriptions of them and their ages, do not enable me to find that any of those persons was, or may have been, the person who Patient A alleged entered the room during her consultation with the Respondent.
Having regard to all of the evidence, including the evidence of Medical Practitioners A and C, I am not comfortably satisfied that any person entered the room during the Respondent's consultation with Patient A on 6 September 2017. Finding that Patient A was mistaken about this requires careful consideration and appropriate weight in the evaluation of whether this Complaint has been proved.
Patient A does not suggest that she screamed, ran or otherwise hastily exited the consultation room, or made any complaint to anyone at the practice on 6 September. In the absence of any reason for rejecting Patient A's evidence with respect to how she felt after the alleged digital penetration, and accepting that other patients may have reacted very differently, I draw no inference adverse to the Applicant's case in reliance upon Patient A's silence. It does however preclude finding that her allegations have thereby been corroborated in a material respect.
The Respondent's letter of 23 July 2020 engaged with the allegations made in this Complaint. As with Complaint 1, the Respondent's statement of 14 December 2021 (R1 Tab 2) is in the same terms as that letter.
In his statement, the Respondent reproduced, accurately, what the practice records recorded with respect to his consultation with Patient A on 6 September 2017. They recorded the consultation commencing at 13:37:09, or approximately 1.40 p.m. that day. Against the entry on the practice records "History", nothing was recorded. Against the term "General" "Lethargy, with weakness" was recorded. Against the term "Examination", nothing was recorded. Under the heading "General", blood pressure and pulse were recorded. Under the heading "Actions" pathology was requested, certain medication was "ceased" and a prescription for Aropax was added. The notes record "letter created - re medical certificate 2" and "letter printed - re medical certificate 2". That is consistent with Patient A's evidence.
The Respondent added (page 53 para 2.06): "This was my last consultation with [Patient A]. The computer generated progress notes indicated I opened the patient file at 13:37:09. It is my usual practice to open the patient record before I call the patient in, to have a look at previous notes or results that were pending".
The Respondent further commented (2.07): "My notes show that she complained of lethargy and weakness. I took her BP and pulse. I thought her ongoing lethargy could be related to her underlying MS and anxiety and depression. I explained that I wanted her to get some bloods done so we could look for a possible organic cause for her symptoms and a management plan generally. My notes reflect that there was a change to her medication and so I believe we discussed her mental health, the effects of the Efexor and why she wanted to switch back to Aropax. I wrote a request for pathology and a prescription for Aropax 20mg with instructions to take 2 tablets in the morning as she had not started Efexor and wanted to continue the Aropax. I also provided a medical certificate to cover that day and 7 September 2017."
The Respondent further commented (2.108) that Patient A "then left the room and went to reception to do the Medicare billing. Person H was the only receptionists on duty that day and has stated that the software shows the billing transaction occurred at 2.00 p.m. that day, that is, 23 minutes after I opened her patient record. The practice record also shows that [Patient A] booked an appointment for 9.15 a.m. the next day to have her bloods taken to be sent to pathology. That was never actioned".
The Respondent replied (page 55 para 3.10) to Patient A's allegations and stated that "I did not ask [Patient A] questions regarding urine incontinence and I did not perform an examination as described in these paragraphs. I have never performed a vaginal examination on her and I have never tried to teach her pelvic floor exercises".
In cross-examination (Transcript 16 February 2022 line 26-27) the Respondent conceded that Patient A was "correct" in suggesting that there was a "shift change of receptionists at around 2.00 p.m.". Each of Patient A's allegations with respect to the consultation on 6 September 2017 was put to the Respondent in cross-examination (16 February 2022 p59). With respect to each allegation, the Respondent replied "no".
The Respondent agreed (line 40) that "there's a practice in the medical or the family clinic of the receptionist or a person on occasion approaching the consultation while you may have a patient" (Transcript 16 February 2022 p59 line 37-39). When asked (line 42) "When you're having a consultation with a patient your door is shut?" the Respondent answered (line 43-48): "If I'm going to do an examination and if it's like the patient by itself, I mean, I don't do it, no. If I'm going to do it - it's only on one condition, I put it if I'm going to ask the patient, "Please to be examined" and she needs to get some of her clothes, you know like bra or something like that, and she have a sheet, I put the curtain and I tell her, "Just do that to cover" and when she's ready I'll go back and I'll start my examination. This is the time when I put the curtain."
Although, as Counsel for the Applicant reminded the Respondent (line 50), her question "wasn't in relation to the curtain", but that, having volunteered the information he did, the Respondent did not say anything about offering the patient a chaperone. Counsel re-asked (p60 line 7) "Do you shut the door or is the door shut?" to which the Respondent replied "Absolutely shut" (line 8).
The Respondent said (Transcript p60 line 10-12) "Absolutely" when asked "If a staff member wishes to speak to you while you have a patient in your consultation room, they presumably would need to knock on the door?" the Respondent agreed. The Respondent was asked "While you were examining the patient on the bed and you hadn't given the staff member permission to come in, you would be frustrated by that, wouldn't you?" to which the Respondent replied "Yes" (p60 line 25-58). It was then suggested to the Respondent (line 30-31) "You would be wanting to protect the privacy of the patient on the examination bed, wouldn't you?" to which he replied "Absolutely" (line 32).
The Respondent agreed that he would tell the staff member to leave in those circumstances and said (line 41-46): "They would leave by themselves because this - you mention as imagination that could happen between and staff member do not because my experience in - like in my whole - beginning from clinic in 2006, it never happened but if you imagine that something could happen, I think that would be my reaction, alright, of course. "Why did you not knock on the door?" and send big apologies to my patient."
As is not in doubt, this is not a case in which there are any admissions with respect to the conduct alleged by Patient A. Neither Patient A nor the Respondent's versions of events provides scope for finding that something short of the conduct alleged by Patient A occurred, or that anything of the kind alleged by her could have occurred which had a medical justification.
The Respondent's evidence in cross-examination consisted essentially of denials of Patient A's allegations with respect to the consultation on 6 September 2017. Neither party suggests that, at the end of the consultation, and prior to the alleged digital penetration of Patient A, the Respondent did anything inappropriate, or that the consultation was out of the ordinary, save to the extent that Patient A asserts that, unusually, the Respondent did not try to touch her inappropriately.
In circumstances where the Respondent did not assert an independent recollection of this consultation, and relied on deficient clinical notes, other than in the very limited instances in which the Respondent unresponsively volunteered information, the scope for effective forensic cross-examination of the Respondent was limited, as is usually the case when a person accused simply denies the allegations and does not either try to turn them back on the accuser, rationalise them, or advocate some alternate version of events. Just as the task of Counsel for the Applicant was limited by the Respondent's ability to simply answer questions with respect to the critical issues, and volunteer nothing which excited further forensic examination, so is the task of evaluation also thereby made more difficult. This is not said critically of the Respondent, or, as I have hopefully made clear, Counsel for the Applicant.
In her statement (R1 Tab 3), Medical Practitioner A stated that she had been present at the practice on 6 September 2017, and had been shown Patient A's statements, complaint to the HCCC and police witness statement (R1 Tab 4 p64 paras 18-19). It is not in dispute that, as Medical Practitioner A said in her statement (p64 para 22), her consultation room was next to that of the Respondent, and that, at the time he saw Patient A on 6 September 2017, Medical Practitioner A was seeing another patient in her adjacent consultation room. That evidence is not controversial.
Medical Practitioner A referred to the "practice roster" which she was "in charge of" (p65 para 24). The practice roster was attached (Annexure D) to Medical Practitioner A's statement. Those records are found behind Exhibit R1 Tab 4 at pages 71-74.
Medical Practitioner A asserted (paragraph 24), accurately, that Person H "was the only receptionist that worked at the practice on Wednesday 6 September 2017, having worked that day from 9.00 a.m. 7.00 p.m." The practice records refer to Person H, at p71. At p72, the practice records for Person GA appear. They suggest that Person GA was in attendance at the practice on 6 September 2017 from 9.00 a.m. to 5.00 p.m.
The practice records (p73) do not reveal another employee, Person GJ, as having been present at the practice on 6 September 2017. The records (at p74) confirm that another employee, Person JF, was not present at the practice at that time.
Medical Practitioner A stated (paragraph 25) that Person H would have been approximately 30 years old in September 2017 and she "is of Caucasian appearance and at that time may have had blonde or brown hair. Her height is roughly 155cm to 165cm." In terms of Person G (paragraph 26), the practice nurse who was working on 6 September 2017 from 9.00 a.m. to 5.00 p.m., Medical Practitioner A stated that "her place of origin is the Philippines. She has light brown skin and black hair. She is of medium height".
Medical Practitioner A stated (paragraph 30) that Person H's account of the practice adopted by staff wishing to enter the doctor's consulting room was "consistent with the training I provided and the conduct of staff at the practice". Medical Practitioner A further stated that (paragraph 31) if the Respondent had "yelled at a staff member, patient or anyone at the practice I would have recalled such an unusual event and I would have spoken to him about it at the time too". I accept that, had she heard such yelling, Medical practitioner a would have so reacted.
Medical Practitioner A is the wife of the Respondent and his partner in the medical practice. Nothing emerging from her evidence suggests to me that Medical Practitioner A's evidence was vitiated by those relationships. Medical Practitioner A was cross-examined on 17 February 2022. Medical Practitioner A was reminded of her statement that she had "never heard Ramez yell at a staff member" (Transcript 17 February 2022 p6 line 8) and that, if he had yelled at a staff member, patient or anyone at the practice, she would have recalled such an unusual event (line 11-13).
Medical Practitioner A had seen five patients between 1.00 p.m. and 2.00 p.m. on 6 September 2017. Patient A made an appointment at around 2.00 p.m. that day for blood tests the following day, which she did not keep. It is uncontroversial that the Respondent's consultation with Patient A occurred between approximately 1.40 p.m. and 2.00 p.m. on 6 September 2017.
In cross-examination, Medical Practitioner A was taken through the details of the patients she saw, and the times at which she saw them that day, which revealed consultations commencing at 1.32 p.m., 1.40 p.m., 1.59 p.m. and 2.01 p.m. Medical Practitioner A agreed that, in those circumstances, she was likely to have been with a patient at the time that Patient A was either in the room next door to her with the Respondent, or at the reception desk booking the blood test.
When asked whether, during her consultations with two named patients "Your door was shut during the appointments for both those patients?" Medical Practitioner A replied "Yes, this is what we normally do" (Transcript 17 February 2022 p9 line 23-26) (her 1.32 p.m. and 1.40 p.m. appointments). Medical Practitioner A was asked (p9 line 33-35): "Is it possible, with a printer printing off scripts, the door closed, perhaps speaking to the patient at the time, that you just wouldn't have heard your husband yelling at a patient?"
Medical Practitioner A replied (line 36-40): "Well, if, if he was yelling, that definitely should be heard in my room. As I told you, we do have a common, common room, it is gyprock so it's bad sound. But, of course, if he's talking not really loud I wouldn't, I wouldn't hear but if he's yelling - and I assume that was loud - then, then I would have heard it in my room."
Medical Practitioner A's knowledge of the staff timesheets was tested in cross-examination (Transcript 17 February 2022 p10), that process revealing that Medical Practitioner A was familiar with the records, how they were compiled, and the use made of them in the practice. Although she had previously seen Patient A on occasion, Medical Practitioner A did not remember seeing Patient A at the practice on 6 September 2017 (Transcript 17 February 2022 p11 line 19-22). Nothing turns on that.
The Tribunal asked Medical Practitioner A (17 February 2022 p 12 line 15-17) "In your experience, what sort of volume of things could you hear from your partner's consulting room?" to which Medical Practitioner A replied (p12 line 18-20) "It's a bit hard to say. If it's definitely loud - but louder by conversation I just, you know, I wouldn't hear from my room. But if it's really loud or the patient laughing loud, I would hear it from my room".
The Tribunal asked Medical Practitioner A (17 February 2022 p12) whether, in the case of the patient she saw at 1.32 p.m., inferentially until 1.40p.m., ear syringing was normally done by the nurse in the treatment room, and that Medical Practitioner A would (p12 line 35-36) "see the next consult until she's done" but that she might "pop down to the treatment room" to "make sure it was all clear" after starting her next consultation. When asked (p12 line 50-51) "There is a possibility you could have been down at the treatment room at the relevant time, between 1.30 and 2 o'clock?" Medical Practitioner A replied (p13 line 2) that she was "Not sure".
The statement of Medical Practitioner C (R1 Tab 9) dated 28 January 2022 engages with the events of 6 September 2017. Medical Practitioner C annexed "progress notes" for the patients which he saw at the surgery on that day between 12.54 and 14.03. During his consultation with one of those patients (P8 para 16 Tab 9), between 13.21 and 14.03, Medical Practitioner C consulted with the Respondent "about the management of this patient" (paragraph 17). Medical Practitioner C referred, accurately there is no dispute, to his consultation room being "directly opposite the consultation room" of the Respondent. Medical Practitioner C (paragraph 18) had "no recollection of anything unusual happening on Wednesday 6 September 2017". Neither on that nor any other day could Medical Practitioner C recall the Respondent having "yelled or raised his voice at a staff member or any person at all" (paragraph 20), adding that "if he had, I would recall as it would be out of character for him to raise his voice".
In cross-examination (17 February 2022 p17) Medical Practitioner C confirmed that his consultation room door was shut when a patient was with him, and that his consultation room was "directly opposite" that of the Respondent and "separated by a metre … a corridor, a metre or something like that" (p17 line 27-28).
Medical Practitioner C was asked (p18 line 12) whether he actually recalled, referring to notes in the records for Patient NS that, during his consultation with that patient on 6 September 2017, Medical Practitioner C consulted the Respondent about "the management of this patient". Medical Practitioner C replied (line 13-20): "I actually do that. I, I can recall it now, because that is - I'm very good in skin diseases, and sometimes - and they are very small occasion, or very, sort of, rare occasions that I can talk with somebody else about the patients. So that's one of the occasion that I can remember, that I got him to have a look at the patient and he thought that it's dermatitis. I actually didn't think that it was dermatitis, and I decided, then, to refer him to a dermatologist, which is [Dr Y]. So I, I, I have a, a clear recollection of this certain consultation."
Medical Practitioner C explained that when he consulted with the Respondent that patient was still with him, that he called the Respondent (p18 line 27-29) "from the phone and he came in, had a look at the patient and he said to me, "oh, it's dermatitis, give him Elocon" and I didn't think that it is". Medical Practitioner C could not recall whether the patient "came with his mum or, or something like that" (p18 lines 41-42).
Medical Practitioner C said in response to the question (line 26-27) "How long between the telephone call - after that call - did Dr Daniel come into your room?", "I assume it's probably a few minutes" (p19 line 28). Medical Practitioner C confirmed that he thought that is what happened because of the "pattern" whereby, "when we talk with each other, when doctors talk with each other, we come in few minutes" (p19 33-35).
Medical Practitioner C assumed that it was "3 to 4, 5 minutes, something like that" between his phone call to the Respondent and the latter's entry to his consultation room (p19 lines 41-42). Although Medical Practitioner C had consulted with Patient A previously, there is no suggestion that he did so on 6 September 2017. In cross-examination Medical Practitioner C had no recollection of seeing Patient A at the surgery premises on 6 September 2017 (Transcript p21 line 3-4).
In response to questions from the Tribunal (p21-22) Medical Practitioner C confirmed that it "might have been about 23, 24 past 1 o'clock, 1.00 p.m. that you commenced the consultation?" with the patient whose condition prompted him to call the Respondent (Transcript 17 February 2022 p21 line 27-29). Medical Practitioner C confirmed that it was likely that he would have been "escorting the child and his or her mother from your room back to reception … shortly before 2 o'clock" (p21 line 44 to p22 line 9).
It is possible, but unlikely, that it was during the Respondent's consultation with Patient A that the interruption to it for the purpose of the Respondent going to Medical Practitioner C's consultation room and discussing the condition of the patient who Medical Practitioner C was then seeing occurred. Neither Patient A nor the Respondent suggested that the Respondent left the room during his consultation with Patient A.
Although at times appearing to be somewhat excitable, nothing emerging from the cross-examination of Medical Practitioner C, or anything relating to him, provides a basis for not accepting his evidence. I accept, as I do the evidence of Medical Practitioner A, and Person H, that, had the Respondent shouted at anyone during his consultation with Patient A, it is likely that Medical Practitioner C would have heard him doing so.
In view of the evidence to which I have referred, I do not find Patient A's allegations with respect to any person entering the room during her consultation on 6 September 2017 proved. I do not find that Patient A fabricated her allegations. Her mistaken belief with respect to this issue was significantly relied upon by the Respondent as militating against finding Patient A's allegations of digital penetration on 6 September 2017 established to the requisite standard, and requires consideration in our evaluation of this Complaint.
It is unnecessary to reiterate the submissions of Counsel for the parties with respect to the reliability of the recollection of events of Patient A or Person B, or their submissions with respect to the reliability of the evidence of the Respondent. The matters to which I have earlier referred remain relevant to the evaluation of this Complaint. My findings with respect to Complaint 1, inform the evaluation of the present complaint. The issue is ultimately whether, unlike with respect to Complaint 1, the evidence relied upon by the Applicant in support of this Complaint is sufficiently reliable to comfortably establish that this Complaint is made out.
It was submitted on behalf of the Applicant (17 February 2022 p24 line 47 to p25 line 2) that: "Patient A's evidence was honest and reliable in relation to the events of 6 September. Compare that with Dr Daniel's evidence. He does not recall much of the consultation. He told you, Members of the Tribunal, he did not do vaginal examinations so it could never have occurred as alleged. In my respectful submission, this is an attempt by him to distance himself from the possibility of the allegation in Complaint 2."
As I have earlier recorded, the first time that the Respondent had any need to attempt to recall the consultation on 6 September 2017 was almost 14 months later. I do not believe that the Tribunal has been directed to any evidence which establishes that, as at September 2017, the Respondent did "vaginal examinations". That does not mean that he could not have done what Patient A alleges that the Respondent did on 6 September 2017. I respectfully disagree that the Respondent attempted to "distance himself from the possibility of the allegation in Complaint 2" by repeatedly denying the allegations made to him. As is not in doubt, this is not a case where there is suggested to be the potential for misinterpretation of a clinical procedure. If Patient A's allegations are made out, the Respondent committed a sexual assault upon her. In circumstances where the Respondent denies that anything of the kind occurred, I do not see his consistent and unequivocal denials of guilt, of themselves, as "distancing" himself from the allegations. As I have earlier recorded, the evidence of the Respondent with respect to "touching" Patient A in the context of Complaint 1 was less than convincing.
I accept the submission (p25 line 4-11) of Counsel for the Applicant that, if the Respondent did to Patient A what she alleges on 6 September 2017, it would be "understandable, if also likely" that her recollection of surrounding events would be vague, or as Counsel put it "shock clouds peripheral detail". In evaluating this Complaint, I do not consider that uncertainty of recollection with respect to "peripheral detail" militates against acceptance of Patient A's allegations. In cross-examination, Patient A remained quite definite about the Respondent's alleged digital penetration of her on two occasions during that consultation. As with her evidence with respect to Complaint 1, nothing emerging from Patient A's cross-examination with respect to this complaint provides a basis for doubting her honesty.
It is not able to be seriously in doubt that, if this Complaint is made out, the Respondent is guilty of unsatisfactory, unethical and improper conduct amounting to professional misconduct. The issue is whether Patient A's allegations are made out to the comfortable satisfaction of the Tribunal.
I agree with the submission of the Applicant (17 February 2022 p25 line 26-35) that Person B corroborates Patient A's evidence in a material respect. It is not suggested that Patient A's distress on 6 September 2017 was, or could have been referable to anything unrelated to her consultation with the Respondent earlier that day. The Respondent denies that anything happened during the consultation. The Respondent's case is necessarily that nothing happened during the consultation which would or could or should have caused Patient A to become distressed.
The evidence of the Respondent suggests no basis upon which Patient A would have ceased to continue to consult him as her medical practitioner. It is not in doubt that Patient A did not see the Respondent again after 6 September 2017, or that she did not keep the appointment for her blood test the next day. No reason for ceasing to continue to consult the Respondent was suggested to Patient A. in cross-examination.
It is likely that, had the Respondent yelled, at anyone, during his consultation with Patient A someone would have heard it, even allowing for the distractions which Counsel for the Applicant elicited from Medical Practitioners A and C and Person H. That does not mean that the Respondent did not yell at someone during the consultation, but that, if he did, none of the persons who might reasonably be expected to have heard it did so. I am unable to find, save possibly with respect to Medical Practitioner C, that any male or female member or employee of the medical practice entered the room during the Respondent's consultation with Patient A on 6 September 2017. The documentary evidence, the reliability of which has, sensibly, not been challenged, militates against such a finding, as does the detailed evidence of Person H with respect to the ages and physical features of each of the female staff members who might have had occasion to enter the Respondent's consultation room.
The significance of Medical Practitioner C's evidence perhaps first became fully apparent during his cross-examination. That is not said critically of Counsel for either party. Although not suggested by Counsel for either party, it is possible that, although mistaken as to the circumstances in which the Respondent's consultation room was entered, and the sex and identity of the person entering, it was the entry of Medical Practitioner C to which Patient A was in reality referring. Even if that were so, that would not enhance the reliability of Patient A's recollection with respect to the interruption to the consultation given that Medical Practitioner C is undoubtedly male, and Patient A suggested that the person entering the consultation room was female.
I agree that it was a "reasonable inference" that whatever discussion the Respondent and Medical Practitioner C had on 6 September 2017 preceded the Respondent's consultation with Patient A on that day, given that neither Patient A nor the Respondent suggested that their consultation was interrupted by another medical practitioner.
The difficulty with the submission of the Applicant in reliance upon the reality that there was a change of shift of staff at the practice at 2.00 p.m. is the effective elimination, by the evidence of Person H, and the staff timesheets, of any of the female staff members of the practice who could have entered the room during Patient A's consultation with the Respondent on 6 September 2017 having done so. Ultimately, albeit advanced on a different basis, the submission that whether any female member of the practice staff entered the room during Patient A's consultation with the Respondent on 6 September 2017 is "not a puzzle that has been definitively answered or refuted, and it may be a mystery that, Members of the Tribunal, you simply can't reconcile", is readily reconciled- the evidence to which I have referred fails to establish that any female, or other person entered the Respondent's room during the critical consultation.
The more difficult issue is the contention of the Applicant (17 February 2022 p28) that the inability to find that anyone entered the consultation room during Patient A's consultation on 6 September 2017 "doesn't negate the reliability and credibility of what she [Patient A] says occurred inside the consultation room". That obstacle to finding this Complaint made out must be considered in the light of my reasons for rejecting Complaint 1 and the other matters to which I shall refer.
I have earlier referred to the submissions of Counsel for the Respondent with respect to the asserted "raft of detail that undermines Patient A's evidence". Counsel for the Respondent submitted that the only receptionist working at the relevant time on 6 September 2017 was Person H, a person who Patient A would have "checked in with when she arrived and who was on the desk when she left" (p35). In view of Person H's evidence, I draw no inferences from the failure of Patient A to fail to accurately identify Person H as a person who she saw on that day. A number of witnesses for the Respondent who had previously seen Patient A did not recall having seen her at the practice on 6 September 2017.
Counsel for the Respondent submitted (p36 line 30-38): "I don't know about the professional experience of the Member of the Tribunal and my learned friend, but if I saw another barrister yelling at a staff member, I'd remember it and I'd say something to them, because it's not appropriate in a professional workplace as a way of raising a grievance with somebody. It would stand out in your mind, it would be upsetting for [Person H]. She says it didn't happen, and you'd accept that. It's a very significant difficult [sic] with the evidence of Patient A because she says it happened, and it did not. If you can't accept her about that, then why would you accept her about anything that occurred on 6 September 2017."
When the Tribunal raised the possibility that Patient A was "honestly mistaken", as I find that she was, Counsel for the Respondent submitted that if Patient A was honestly mistaken: "she's very seriously mistaken because she's included that statement of fact in her police statement and maintained that position in her evidence as something that definitely happened. If it's a mistake of fact, it's a very significant one, and that undermines what she says about the other matters, because if she's mistaken about something as clear as that, one of the few clear things she did remember, then why would you accept the other clear things she remembers? … why she maintains that it's correct when it's patently not is a different question, and it raises this issue; I don't need to prove by Patient A has said things that are wrong."
I accept that the Respondent does not have to prove why Patient A has said things which are not established by the evidence. I also accept that Patient A's mistake is a significant mistake of fact, for the reasons advanced on behalf of the Respondent.
It was also submitted to be significant that Patient A described the Respondent as having yelled loudly enough to have been heard in reception, notwithstanding that neither Medical Practitioner A nor Medical Practitioner C, both of whom were in close proximity to the Respondent's consultation room, have any recollection of hearing anything, which, given that it would be, at least, unusual, could be expected (p37). In view of the evidence with respect to closed doors, and the activities in which members and employees of the practice were engaged at the relevant time, it is possible that loud noises in the Respondent's room may not have been heard by them.
It was submitted that, the evidence of Person B corroborating that "Patient A told Person B something" does not corroborate "that anything in particular actually happened, particularly if you don't accept Patient A's evidence as accurate because it's inconsistent with various other evidence" (p37).
I accept that Person B's evidence corroborates Patient A having been distressed on the same day and within, it appears, a relatively short time of her consultation with the Respondent. I cannot accept that what Person B said that Patient A told her should be relied on as evidence of the truth of what Patient A said, notwithstanding that the Tribunal is not bound by the rules of evidence. In circumstances where the standard of proof is comfortable satisfaction, it would be unsafe to rely upon what Patient A may have said to Person B as evidence of the truth of those statements, particularly as the evidence of Patient A and Person B with respect to what Patient A did say on 6 September 2017 is not sufficiently detailed or precise to be able to make a finding as to what Patient A did say at that time. As noted earlier, the evidence with respect to when thereafter, and in what terms and circumstances Patient A complained to Person B is unclear on the evidence. So is the evidence with respect to why Patient A decided more than 13 months after the consultation to make her complaint about it.
It was conceded, properly, on behalf of the Respondent that the evidence permitted a finding that Patient A said to Person B on or about 6 September 2017 "I don't want you to go back. I'm not going back to see Dr Daniel, you shouldn't go back either and that she [Patient A] was distressed."
It was also, and properly, admitted that there was an "absence of evidence of any other reason for her to be upset" other than something which occurred during Patient A's consultation with the Respondent on 6 September 2017. Had that concession not been made, I would have made that finding, there being no evidence, or suggestion to Patient A in cross-examination, that she ceased to see the Respondent as her medical practitioner after 6 September 2017 for any reason other than Patient A's belief that something happened during that consultation.
I do not accept that Person B's omission to include matters of detail surrounding the telephone call from Patient A on 6 September 2017 militates against acceptance of her evidence with respect to the matters which were conceded to be able to be found on the evidence. I accept Patient A's evidence that it took her a considerable time before she could complain to Person B, or anyone else, about the conduct of the respondent on 6 September 2017.
Albeit in the context of Complaint 1, the submission on behalf of the Respondent (Transcript p42 line 39-43) assumes relevance with respect to this Complaint. It was there submitted: "It's completely bizarre as to why this person, who had significant experience with dealing with health professionals, and had never been treated this way by anyone, but says that from almost immediately Dr Daniel was treating her inappropriately. It's inexplicable as to why she would keep going back."
Patient A gave a reason why she continued to see the Respondent after she alleged that he acted inappropriately from October 2015 until just prior to her consultation with him on 6 September 2017. As is not in doubt, immediately after the consultation on 6 September 2017, which involved allegations of significantly more serious conduct than Patient A alleged she had previously experienced, she did exactly that, and ceased "going back".
In my view, the difficulties associated with Patient A's asserted reasons for continuing to see the Respondent prior to 6 September 2017 do not create obstacles to acceptance of her allegations with respect to the consultation on 6 September 2017.

Consideration

As Basten JA explained in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112, at [46], "Where the legal test to be applied involves an evaluative judgement, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation (to provide reasons) must recognise that constraint". His Honour's statement was approved by Bell P (as Bell CJ then was) in New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, at [75].
Whilst the decision must be judicial, and not arbitrary, and not impermissibly influenced by considerations of demeanour, ultimately, in the circumstances of this case, it is a matter of deciding whether, notwithstanding what I have found to be deficiencies in the evidence in support of the Applicant's case, both with respect to this Complaint and Complaint 1, and heeding the caution identified by Dixon J in Briginshaw, the Tribunal is able to be comfortably satisfied that Patient A's allegations are made out.
Whilst the circumstances in which Patient A came to recount in the detail which she did on 25 October 2018, the details of the Respondent's alleged misconduct on 6 September 2017 are less than clear, nothing emerging from the cross-examination of Patient A or Person B persuades me that their evidence should not be accepted with respect to this Complaint on that basis.
In her police statement (HCCC 1 Tab 15B paras 13-16), having referred to the conversation she had with Patient A on 6 September 2017, Person B said: "13 Just after this happened I went online to the Health Care Complaints Commission (HCCC) website and looked into how to report the inappropriate behaviour of a Medical Practitioner. I provided this information to [Patient A] at the time though she was not comfortable pursuing it. I could tell [Patient A] just wanted to forget about it. 14 [Patient A] started seeing a doctor at Marrickville. After a number of consultations with a new doctor, [Patient A] decided to pursue the complaint through the HCCC about Dr Ramez Daniel. It was around this time that [Patient A] started talking to me more about what had happened with Dr Daniel. 15 [Patient A] told me about a time when she had attended a consultation with Dr Daniel and he conducted a pelvic examination. She told me that he had digitally penetrated her during this examination. [Patient A] told me that she had gone in for an upset stomach and at no time had Dr Daniel told her he was going to conduct an internal examination. 16 [Patient A] went on to tell me that she had discussed with Dr Daniel her Irritable Bowel Syndrome. She had also been suffering, from time to time, with a problem urinating. She told me she was not even at the Medical Practice to see him for that, but Dr Daniel had still proceeded to conduct an internal examination of her vagina. From what [Patient A] had told me I am not sure he actually asked whether she was okay for him to conduct this examination. After [Patient A] told me this I knew that this was the time she had returned home from seeing him where she was really upset."
The Tribunal does not have clinical notes or other evidence from any medical practitioner to whom Person B was inferentially referring. Patient A has been unwavering with respect to the details of the alleged sexual assault on 6 September 2017. Although the allegations themselves were not particularly detailed, they were sufficiently detailed for Patient A to have given materially inconsistent accounts in October 2018, and in her oral evidence three and a half years later. She did not do so. As I have earlier observed, no motive for Patient A misspeaking the truth with respect to the consultation was asserted or emerged during the hearing of the proceedings. Nor does the evidence establish that Patient A had any medical or psychological condition which predisposed her to imagining or misunderstanding what was happening to her, and nothing of that nature was suggested to her in cross-examination. As I have earlier observed, in circumstances where the Respondent simply denied all wrongdoing, without elaboration, it is unsurprising that his Counsel was able to submit that his evidence with respect to the consultation on 6 September 2017 did not reveal significant inconsistencies or contradictions.
In my view, two matters assume particular significance in evaluating where the truth probably lies with respect to the consultation on 6 September 2017. The first is an obstacle to finding the allegations proved, and involves the evidence with respect to the asserted interruption of the consultation. It has not been established that the consultation was interrupted by anyone. All of the possible female suspects were eliminated by the combination of Person H's evidence, and the staff timesheets which were maintained by the practice, and prepared at a time when there was no reason to record other than accurately when staff worked. The accuracy of the records was not sought to be impugned in any event. Even if, as appears possible, but unlikely, Medical Practitioner C interrupted the consultation, that does not assist Patient A's version of events given that she at all times suggested that the interruption was by a female.
I accept, as Counsel for the Respondent submitted, that this evidence, in conjunction with the matters which led me to be unable to be satisfied that Complaint 1 was made out, militate against acceptance of proof of Complaint 2 to the requisite standard. Conversely, if the Respondent did what Patient A says that he did during this consultation, common-sense and experience of life suggest that a measure of erroneous recollection of surrounding circumstances is to be expected from Patient A. Importantly, Patient A's recollection of the critical events has not been shown to be contradictory, inconsistent or lacking in detail.
The second matter, which supports Patient A's version of the critical events of 6 September 2017, is the fact that Patient A became very distressed after the consultation, in circumstances where no reason for her doing so, other than because of something which occurred during her consultation with the Respondent was ever suggested. Whereas, as is not in doubt, Patient A continued to attend upon the Respondent after she alleged that he repeatedly engaged in inappropriate conduct during consultations prior to 6 September 2017, after that consultation, which involved far more serious allegations than Patient A made with respect to previous consultations, Patient A did not again attend upon the Respondent. She did not attend for her blood test at the practice the next day, and insisted that Person B not see the Respondent again. In the absence of any other explanation, it is difficult to suggest that those circumstances should not weigh heavily in favour of finding this Complaint proved.
Ultimately, the issue is whether the matters favouring the Applicant's case to which I have referred sufficiently outweigh the deficiencies in Patient A's evidence which the Respondent successfully asserted in the context of Complaint 1, and her erroneous belief that a female interrupted the consultation on 6 September 2017 to comfortably establish the Respondent's guilt.
I am comfortably satisfied, giving due weight to the factors militating against so finding, that this Complaint is made out. I am comfortably satisfied that the conduct of the Respondent alleged by Patient A happened, notwithstanding the matters to which I have referred which militate against so finding. The single most influential factor in my view is the conduct of Patient A, corroborated in the manner which I have earlier identified by Person B, very shortly after the consultation, and her failure to return to the practice after that day. That circumstance is particularly significant in view of the fact that, apart from whatever happened during the consultation, no reason for Patient A being so distressed, and not continuing to see the Respondent after this consultation emerges from the evidence.
Counsel for the parties did not specifically address whether the conduct alleged pursuant to this complaint was of a "sexual nature". Section 61I of the Crimes Act 1900 (NSW) provides that any person who knowingly has "sexual intercourse" with another person without the person's consent is guilty of a "sexual assault". Section 61HA(1)(a)(i) of the Crimes Act defines "sexual intercourse" to mean "the penetration to any extent of the genitalia or anus of a person by any part of the body of another person". That definition is instructive for present purposes, and, to the extent that it might be necessary, supports finding that the conduct of the Respondent was of a "sexual nature".
The conduct alleged by Patient A which I have found established was not for a legitimate medical purpose, or asserted to have been if, contrary to the Respondent's denials, it was found proved. In the circumstances recorded in these reasons, I am comfortably satisfied that the conduct was of a "sexual nature".
I am mindful of the principles with respect to inconsistency between verdicts in criminal cases (Daaboul v R [2019] NSWCCA 191; (2019) 100 NSWLR 682, at [248]), and the reality that, unlike the Tribunal, in such cases the court is bound by the rules of evidence, and applies the criminal standard of proof. In MFA v The Queen [2002] HCA 53; (2002) 213 CLR 606, at [34], Gleeson CJ, Hayne and Callinan JJ accepted that the fact that a jury reaches a different verdict in respect of different counts does not lead to any assumption of inconsistency, and that, where a jury is unable to reach a verdict on a charge of sexual assault, it ought not be assumed that the jury did not find the complainant credible, particularly when a guilty verdict has been returned on another account. In Fisher v R; R v Fisher [2021] NSWCCA 91, Adamson J, at [177] reiterated that statement of principle. Brereton JA and Fullerton J did not disagree with her Honour.
I am satisfied that no inconsistency attends finding Complaint 2 established after dismissing Complaint 1. There are two particular reasons why that is so. The first is that the two complaints do not arise from a common substratum of facts- the allegations with respect to Complaint 2 formed no part of the evidence relied upon in support of Complaint 1. As my reasons record, the deficiencies in the evidence which led me to find that Complaint 1 should be dismissed have been taken into consideration, in favour of the Respondent, in my evaluation of Complaint 2. The second reason is that, as my reasons for dismissing Complaint 1 record, I would not do so in reliance upon any adverse finding with respect to the credibility of Patient A.
As is not in doubt, my findings with respect to Complaint 2 establish unsatisfactory professional conduct and improper or unethical conduct. It does not seem to be disputed that those findings would support a finding of professional misconduct. Irrespective of whether that is so, I am comfortably satisfied that the Respondent is guilty of professional misconduct. The conduct which I have found proved readily falls within the "category of unsatisfactory professional conduct" which is "sufficiently serious" to constitute professional misconduct (Chen v Health Care Complaints Commission [2017] NSWCA 186, per Basten JA, at [20].

Complaint 3

Complaint 3 alleged that the Respondent was guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that he has contravened a provision of the National Law.
The particulars of Complaint 3 provide: "1 For his care of Patient A from 22 June 2015 to 6 September 2017, the practitioner failed to document information known to him, relevant to Patient A's diagnosis or treatment, contrary to sch 4, cl 1(2)(a) of the 2016 Regulation including: (a) information concerning the patient's medical history; (b) results of any physical examination of the patient; (c) information obtained concerning the patient's mental state; (d) the results of any test performed on the patient. 2 During the course the care and treatment of Patient A from 22 June 2015 to 6 September 2017, the practitioner failed to document a plan of treatment for Patient A contrary to sch 4, cl 1(2) of the 2016 Regulation, concerning a diagnosis of: (a) multiple sclerosis; (b) lethargy; (c) anxiety and depression; (d) abdominal pain. 3 During the course of the care and treatment of Patient A from 22 June 2015 to September 2017, the practitioner: (a) failed to adequately manage and/or arrange follow up for treatment of the patient's diagnosis of multiple sclerosis; (b) failed to include adequate documentation when referring Patient A to a psychologist. 4 The practitioner's overall record keeping for his care and treatment of Patient A from 22 June 2015 to 6 September 2017 lacked sufficient information to allow another medical practitioner to continue management of the patient's case, contrary to sch 4 cl 3(2) of the 2016 Regulation. 5 The practitioner's overall record keeping for his care and treatment of Patient A from 20 June 2015 to 6 September 2017 lacked an appropriate level of detail, contrary to sch 4 cl 3(1) of the 2016 Regulation. 6 For his care of Patient A from 22 June 2015 to 6 September 2017, the practitioner issued 54 medical certificates, without further investigation and management of Patient A's underlying condition or condition(s)."
By his Reply, the Respondent admitted the allegations particularised in Complaint 3 and admitted that such conduct amounted to unsatisfactory professional conduct.
As the Applicant does not rely upon proof of this Complaint in support of a finding of professional misconduct, it is unnecessary to refer at this stage of the proceedings to the expert opinion evidence of Dr Howle, although reference to that evidence, and any cross-examination of Dr Howle may become appropriate in the context of the Stage 2 determination.
Although I respectfully disagree with the findings of the majority with respect to a number of particulars of Complaint 1, I do not perceive that the orders which I would make differ from those of the majority.
The orders which I would make are that: 1. Unsatisfactory professional conduct is established 2. Improper and unethical conduct is established 3. Professional misconduct is established 4. The proceedings are to be listed for a Stage 2 hearing on such dates as the Registry fixes for that purpose 5. Costs are reserved
AITKEN SM, YEO SM, LOVROVICH GM: We have had the considerable benefit of reviewing the draft judgment of his Honour A/Judge Coleman in preparing our reasons for decision. We agree with much of his Honour's judgement and will outline in the following Reasons where we have respectfully arrived at different conclusions.
We agree with his Honour's introduction, agreed facts, and statutory framework (paragraphs 1-21). We also note paragraphs 22-28 and 29-40 of his Honour's reasons, which relate to proof. In our decision, our findings of fact are based upon the standard of proof applicable, which is proof on the balance of probabilities, on the basis of evidence of integrity. We take this to be the same as proof to 'comfortable satisfaction'. Where we have found a fact to be proven, it can be taken that we have reached a level of persuasion in relation to that fact to the applicable standard of proof.
We note section 3A Objective and Guiding Principle of the National Law: "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration."
In addition, we note that the Tribunal is bound by the Civil and Administrative Tribunal 2013 (CAT Act). Section 38 (2) of the CAT Act states: "(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice."
When considering "the paramount consideration" of the National Law together with section 38 (2) of the CAT Act, it is plausible that the manner in which a Tribunal under the National Law may conduct itself may be different to that of other jurisdictions. Accordingly, any judgement that may have been provided in another jurisdiction, may have limited or negligible application in relation to considerations under the National Law.
In respect of the Tribunal members, there is significant experience that each member brings to the Tribunal. For example, the two general practitioner members bring significant practical insight not only into the policies, procedures and practice of general practitioners, but also into the presentation and behaviour of patients, including patients with mental illnesses such as anxiety and depression, as is the case with Patient A. In the process of evaluating the evidence from a patient with mental illness, the Tribunal brings into focus the "paramount consideration" of the National Law and in so doing expands its assessment and understanding of the evidence which has been provided and which may not correlate directly or be entirely consistent with evidence accepted in another jurisdiction which has as its guiding principles, matters other than the "paramount consideration".
In our view, the "paramount consideration" of the National Law influences the factors to be taken into account by the Tribunal, in that the protection of the health and safety of the public becomes its primary function. The corollary in any understanding of what is included in "the public" is that there can be no partitioning of what is meant by "the public". That is to say, that no definition of "the public" can exclude persons with mental illness. Where a complainant has a mental illness, it is important to understand the person's limitations in their recall of the events that they have found distressing. Where a person has suffered trauma, such as in a sexual assault, it is important to consider what has been found to be consistent in other victims' responses and recall. In this respect, the professional and community members assist in the inquiry and assessment of the evidence.
In reference to the assessment of the evidence for complaint 1, we have arrived at different conclusions to that of his Honour.
In relation to the evidence concerning Dr B, we agree with the information contained in paragraphs 56, 85, 86, 110, 112 and 113. However, we disagree with the conclusions that his Honour has made in paragraphs 87, 114 and 177.
Regarding Dr B's failure to recall Patient A informing her of allegations against Dr Daniel, it is entirely conceivable that Patient A made reference to her concerns to Dr B and that Dr B did not make a note of these allegations in her medical record and as a consequence was unable to recall that this occurred.
It was clear from Patient A's evidence that she believed that she had made this disclosure to Dr B. The extent of this disclosure was limited as it only contained reference to Dr Daniel being 'handsy' and her sitting on his lap. Patient A could not recall what Dr B had said in response. It is open to conclude that with this limited information, Dr B did not recognise the significance of the concerns that Patient A was raising, or did not think they were sufficiently concerning to mandate recording them or reporting them to the appropriate authorities.
Based on the absence of recall by Dr B, no additional weight can be placed on Patient A having reported her concerns at this time, beyond Patient's A own recall of having done so. Similarly, Dr B's absence of recall does not militate against finding the allegation proven.
We disagree with his Honour's conclusion at paragraphs 87, 114 and 177 that Dr B's evidence renders it improbable that Patient A complained to Dr B about the conduct of the Respondent. Dr B's evidence does makes it improbable that Patient A made very thorough, specific and detailed allegations to Dr B of inappropriate conduct by Dr Daniel. Patient A's own evidence would indicate that the concerns she expressed to Dr B were not framed in this way. It would appear likely that Dr B would recall the allegations if they had been egregious, in her view, based on the details provided, or if she had recorded some reference to them in her notes.
In relation to the evidence concerning Person B, we agree with the information contained in paragraphs 61, 84, 92, 93, 95, 97, 99, 101, 102, 103, 104, 105, 106 and 107. However, we disagree with the conclusions that his Honour has made in paragraphs 96, 100 and 193.
In terms of paragraph 96, we disagree with the conclusions. Both Patient A and Person B gave clear evidence about how they viewed Dr Daniel's conduct before the incident on 6 Sept 2017. Patient A reported feeling uncomfortable with it, but was trusting of him as a doctor and giving him the benefit of the doubt. Person B thought it was unusual but assumed that this was the way he was trained to conduct an examination. It was also clear that their thinking changed when the inappropriate behaviour escalated on the final visit.
We disagree with the conclusion his Honour draws at paragraph 100 that the lack of disclosure by Patient A to her partner (Person B) for a period of 18 months is surprising and does not fit with this evidence. In a situation where Patient A was uncomfortable with Dr Daniel's conduct, but had the conflicting response of trying to trust in him as a doctor as well as Person B's 'reassurance' described in paragraph 84, it is plausible for her to not raise her concerns for this period of time. Additionally, there are many reasons why a person may conceal or delay revealing conduct of this nature.
We disagree with his Honour's conclusion at paragraph 193, that based on the absence of discussions between Patient A and Person B, that Patient A's evidence in relation to Dr Daniel's inappropriate conduct cannot be accepted. It is reasonable to accept why they were not having regular discussions about the issue, or why Person B did not counsel Patient A to cease seeing Dr Daniel.
In relation to the evidence concerning Patient A's disclosure to her employer Open Colleges, we agree with the information contained in paragraphs 53, 54, 81, 82, 115, 116, 117 and 177. However, we assign little if any weight to this evidence as it does not materially relate to the complaint or the particulars. In addition, there may be innumerable reasons why an employer may not record or recall a complaint from an employee that did not relate to their employment; and therefore this evidence cannot be used to suggest any unreliability or lack of accuracy on the part of the evidence provided by Patient A.
We agree with his Honour's conclusions regarding the evidence of Person H at paragraphs 151 and 152. However, limited weight can be attached to Person H's inability to recall any events where a female patient was upset after a consultation with the Respondent. We additionally note that in Person H's role as a receptionist, she is unlikely to have been in a position to observe Dr Daniel's conduct in consultations with female patients. Person H does not claim to have observed Dr Daniel's conduct with female patients, but would have been reliant on observations of those patients outside the consulting room.
At paragraph 170, his Honour considers the inability of Patient A to recall with any degree of precision the number of consultations that she had with the Respondent over the period from 22 June 2015, until their last consultation on 6 September 2017.
In her evidence, Patient A estimated that she saw the Respondent on 300 occasions, and under cross-examination said (Transcript p13 lines 8-8) that it "does feel to me like I saw him hundreds of times so it, it may be the case".
This estimation is far in excess of the number confirmed by the medical record, namely that 58 consultations were recorded during this period. Patient A's estimation was made without access to the Respondent's medical records.
We accept that Patient A was genuinely mistaken with respect to this, but the inability to calculate the correct number of consultations does not materially affect the reliability of her recollection of the events with which these complaints are concerned.
We disagree with his Honour's conclusions at paragraphs 183 and 184 concerning Patient A's reasons for continuing to see the Respondent despite her concerns.
Patient A stated that the first reason was the ease in obtaining Aropax prescriptions or medical certificates from Dr Daniel. While the evidence indicates that Patient A did obtain prescriptions from other practitioners, and she conceded that she was not refused such a certificate by any other member of the Respondent's practice, this fact alone does not provide any information about the 'ease' of obtaining prescriptions or certification.
"Ease of obtaining" a script or medical certificate does not come down to the simple binary of receiving or not receiving a medical certificate. When you have been seeing a doctor many times, such doctor may provide a medical certificate with very little questions asked. Conversely, when it is from a doctor who isn't your regular doctor, a patient is likely to face a more protracted process as they try to establish whether or not you need a medical certificate. This process of clinical assessment and decision-making would be likely perceived by the patient as more burdensome. It would be reasonable for Patient A to consider that obtaining these items from Dr Daniel would be easier than from other doctors, if he is the doctor she is seeing the most frequently.
The second reason indicated by Patient A was that she found it easier to see the Dr Daniel as she could see him without an appointment by simply attending the surgery. The evidence presented did not suggest that Patient A could not, as readily, have seen any other member of the Respondent's practice if she attended without an appointment.
The third reason, as explained by Patient A in re-examination (transcript 15 Feb, p96 line 30 - p97 line 8), was that Dr Daniel was the only doctor who was prepared to phone for an Authority to prescribe for Aropax. This meant that Patient A could get double the amount in each dispensing for the same price, with the usual maximum number of repeats. So there was clearly an ease of convenience both in frequency of requesting prescription and in attending the pharmacy, as well as saving money. We note that this point was also covered within the Applicant's submissions.
It can be seen that, although Patient A perceived an ease of access to the Respondent, on top of an ease of convenience and economy, there was still an element of patient preference in her continuing to see Dr Daniel as opposed to the other practitioners in the practice. It is clear from her evidence that she had initially 'liked' the Respondent over the other practitioners in the practice. This point is also made by his Honour at paragraph 191.
In paragraph 187, his Honour was critical of Patient A's 13 month silence in relation to the making of the complaint. It is not uncommon for persons who have experienced assault to delay making the complaint or indeed to not come forward at all, for various reasons and for extended periods of time. We refer to paragraphs 44 and 46 of his Honour's decision that outline Patient A's contact with the Sexual Assault Service. We note that once she made contact with the Sexual Assault Service on 10 October 2018, Patient A made her complaint to the HCCC shortly thereafter on 25 October 2018. We are not critical of Patient A for not coming forward to make the complaint before October 2018.
In respect of paragraphs 187 and 191, as to her silence concerning the Respondent's conduct from 2015 until 6 September 2017, it is clear that Patient A was indeed concerned about Dr Daniel's conduct, as expressed to her partner Person B, but was uncertain about what the correct medical procedure was in relation to examinations. We cannot expect any patient to be familiar with what constitutes correct medical procedure and for this reason the trust between patient and doctor is paramount.
In paragraph 188, his Honour refers to Patient A's Police statement concerning the removal of her underwear. Paragraph 88 contains an excerpt of the oral evidence provided by Patient A concerning the removal of her underwear during consultations with Dr Daniel. We see no material inconsistency which bears upon the reliability or accuracy of Patient's A evidence on this point.
As to paragraph 190 and Patient A's preference in seeing Dr Daniel rather than a female doctor at the practice, this is not a material consideration in the assessment of this complaint.
At paragraph 301, in relation to Complaint 2, we note that his Honour accepts that "common-sense and experience of life suggest that a measure of erroneous recollection of surrounding circumstances is to be expected from Patient A." We agree with this statement concerning Complaint 2 but would contend that this approach also applies to the assessment of Complaint 1.
As to paragraph 194, we are comfortably satisfied that during the hearing evidence was adduced by Counsel from the witnesses which effectively tested each of the particulars in Complaint 1.

Particulars 1 & 2

Particular 1 alleges: 1 Between on or about 14 October 2015 and on or about 7 June 2017 Patient A attended consultations with the practitioner for pain relating to her right hip and back. On or about 5 separate consultations regarding treatment of Patient A's right hip and back, that practitioner: (a) stood behind Patient A with his body pressed against Patient A's back; (b) wrapped both his arms around the stomach area of Patient A; and (c) touched the sides of Patient A's body with his hands, and said words to the effect of, "Does it hurt when I touch you here".
Particular 2 alleges: 2 By reason of the actions set out in particulars 1(a) to 1(c) above, the practitioner: (a) engaged in steps without clinical reason or appropriate explanation when treating Patient A's right hip and back; and/or (b) engaged in inappropriate behaviour of a sexual nature towards Patient A.
Patient A gave evidence in both her statements and under cross examination that on five occasions that Respondent performed examinations relating to her hip or back in the manner described in Particular 1. Her partner, Person B, was present for one such examination, and the conduct she witnessed is in accord with this description, and corroborates Patient A's evidence. As mentioned previously, the evidence given by both Patient A and Person B was candid and unembellished. They acknowledged any defects in their recollection. This is also noted in his Honour's reasons for decision at paragraphs 58 and 108.
The number of examinations of this nature, related to her back and hip pain, recalled by Patient A, correlated well with the consultations documented in the medical record. The Respondent agreed, under cross examination, that Patient A's evidence around the number of examinations was consistent with the records.
The Respondent's evidence was based on his available medical records and his 'usual practice' when it came to examinations of the hip and back. He did not have an independent recollection of the consultations in question. Paragraph 135 of his Honour's decision contains an excerpt from the cross examination of the Respondent wherein he initially denied that he would ever touch a patient during this type of examination. However, when pressed, Dr Daniel did admit that he "palpated" the backs of patients. The description of his examination technique sought to minimise the extent of physical contact that he would have with a patient.
On balance, we are comfortably satisfied that this conduct did occur. We find Particular 1 to be proven.
The evidence indicated that there was no reason why the examination as described at Particular 1(a), where the Respondent's body was pressed against Patient A's back, would be clinically necessary. Person B stated in evidence that the contact need not have occurred if the practitioner had positioned himself differently. The evidence as to whether an appropriate explanation was provided to Patient A by the Respondent was unclear.
Given the lack of an appropriate reason for the actions set out in Particular 1, we find Particular 2 to be proven.

Particulars 3 & 4

Particular 3 and 4 alleges: 3 Around late 2015 or in 2016, Patient A attended a consultation with the practitioner for abdominal pain. During this consultation, the practitioner: (a) directed Patient A to remove her top, lift up part of Patient A's bra, and partially expose her breasts. Patient A did what the practitioner directed her to do; and (b) touched underneath Patient A's exposed breasts and said words to the effect of, "Does this hurt?" 4 By reason of the actions set out in particulars 3(a) and 3(b) above, the practitioner: (a) engaged in steps without clinical reason or appropriate explanation when treating Patient A's abdominal pain; and/or (b) engaged in inappropriate behaviour of a sexual nature towards Patient A.
The Applicant relies on Patient A's police statement, the details contained in her report to the HCCC and the evidence given to this Tribunal regarding the conduct alleged in Particulars 3 and 4. Person B was not present for the consultations where this examination occurred and her evidence therefore does not assist us.
Patient A admitted, under cross examination, that several inconsistencies existed between the description of events contained in her written complaint and the police statement. The written complaint refer to multiple occasions where her bra and/or pants were fully removed. None of this was referred to in her police statement.
The conduct alleged in Particular 3 points to the Respondent lifting up part of Patient A's bra and partially exposing her breasts during the completion of an abdominal examination. The Respondent is said to have touched the area underneath the breasts during the examination. The Respondent denies this conduct.
As part of an abdominal examination, exposure of the abdomen from the lower part of the chest beneath the breasts to the groin may have taken place.
Due to the inconsistencies in Patient A's accounts of how this examination took place, we cannot be comfortably satisfied that the allegations made in this particular have been established.
We find Particular 3 not proven, and, as a consequence, we find that Particular 4 is also not proven.

Particulars 5 & 6

Particulars 5 and 6 allege: 5 Around November 2015 Patient A attended a consultation with the practitioner in relation to pins and needles that Patient A said she felt in her arm. During this consultation, the practitioner: (a) touched the sides of Patient A's breasts over her bra; and (b) directed Patient A to sit on his lap, which Patient A did. 6 By reason of the actions set out in paragraphs 5(a) and 5(b) above, the practitioner: (a) engaged in steps without clinical reason or appropriate explanation when treating Patient A's pins and needles in her arm or her neck or other neurological reflexes considered; and/or (b) engaged in inappropriate behaviour of a sexual nature towards Patient A."
The allegations recorded at Particular 5 are presented in Patient A's Police statement at paragraph 12. She was cross examined regarding this.
Patient A reported the allegations of being made to sit on the Respondent's lap to the Southern Sydney Sexual Assault service on 8 October 2018 (excerpt reprinted at paragraph 43 of his Honour's decision). Person B in her statement indicated that Patient A discussed this particular conduct with her in early 2017.
At paragraph 192, his Honour refers to Patient A's omission of particular 5 a) and b) from her complaint to the HCCC and her inability to explain why she had forgotten to include this. There are a number of possible reasons why this part of the complaint was omitted from Patient A's initial complaint to the HCCC. However, the reason for the omission is not materially linked to the particular, especially where Patient A has made this complaint to the Police service, the Sexual Assault Service and to Person B.
The Respondent denies touching the sides of Patient A's breasts over her bra, or directing Patient A to sit on his lap.
On the balance of the evidence before us, we are comfortably satisfied that Particular 5 is established. We find that Particular 5 is proven.
The conduct alleged in Particular 5, namely the touching of the outside of the breast, and the directing of a patient to sit on the practitioner's lap, during the process of an examination for pins and needles in the arm, would not be clinically justified. The Respondent accepted that conduct of this type would be crossing sexual boundaries, as by its very nature it was conduct of a sexual nature.
We find that Particular 5 and 6 are proven.

Complaint 2

In reference to the assessment of the evidence for complaint 2, we have arrived at the same conclusion as his Honour. However, we have a different assessment in relation to the evidence concerning whether or not any other member of staff interrupted this consultation.
In Patient A's complaint to the HCCC dated 25 October 2018 and in the Police statement, she refers to "the receptionist" coming into the consultation time at the relevant time (HCCC 1 Tab 12 Annexure B): "At this time the surgery receptionist knocked once and entered the room to see me lying on the examination bed with my legs spread and bent while he was applying the gel. He became very agitated and yelled at her about coming in and locked the examination room door and returned to continue with his examination. He again penetrated me with his fingers and advised that this practice if [sic] would assist in resolving the light bladder leakage if continued regularly."
At paragraphs 277, 279 and 300 his Honour refers to the evidence of Medical Practitioner C and determines that, if anyone interrupted the consultation with Patient A it was probably Medical Practitioner C. In contrast to his Honour's view that, if anyone interrupted the consultation, it was Medical Practitioner C, we agree with paragraph 279 in his Honour's decision which states that it is a "reasonable inference" that the conversation that Medical Practitioner C had with the Respondent would have preceded the consultation with Patient A. Logically speaking, if the conversation between Medical Practitioner C and Dr Daniels occurred before the consultation with Patient A, then Medical Practitioner C could not be the person who interrupted the consultation. In addition, there is no suggestion from either the Respondent, Medical Practitioner C or Patient A that a male person or that Medical Practitioner C interrupted the consultation; especially as Patient A had previously consulted with Medical Practitioner C and would have likely been able to identify him.
We note at paragraph 259 his Honour refers to the evidence of Medical Practitioner A. Medical Practitioner A outlined the consultation that she was attending to at the relevant time and stated that her patient had been referred to the nurse for an ear syringing and conceded that she may have "popped down to the treatment room to make sure that it was all clear." If this is the case, then Medical Practitioner A would not have been in the room next door to the Respondent at the relevant time.
We refer to paragraph 228 which quotes the oral evidence of Person H concerning which members of staff fit the physical description given by Patient A of the person who she says interrupted the consultation. From Person H's oral evidence it seems possible that there may be a few different members of staff who may fit the description offered by Patient A. Person H described a pathology collector and the nurse who may have been working at the relevant time and may fit Patient's A description of the intruder. (15 February 2022 Transcript page 94 line 1 to 50 and page 95 line 1 to 30.)
In relation to paragraphs 225 and 226 we are not completely convinced of Person H's denial that she interrupted the consultation. It is plausible that if Person H interrupted the Respondent during any consultation that she may have no reason to remember anything about it. Concerning paragraph 226, we disagree with this conclusion as we are not comfortably satisfied that no one entered the room during the consultation with Patient A. We accept the evidence of Patient A, that the consultation was interrupted by a person entering the consulting room.
Accordingly, we disagree with the finding in paragraph 269. Patient A gave compelling and consistent evidence which far outweighed the lack of recall from Medical Practitioner A, Medial Practitioner C and Person H, who may not have been expected to have heard or remembered anything.
In relation to paragraph 286 of his Honours decision, reference is made to Patient A's description of the Respondent having "yelled loudly" at the person who interrupted the consultation. The degree to which the Respondent raised his voice is a subjective matter. It is possible that Dr Daniel did indeed raise his voice in disapproval. Patient A being next to the Respondent may have perceived the increase in his voice as significant, particularly as she was in a vulnerable position and feeling distressed. Medical Practitioner A gave evidence that there was poor acoustic insulation between offices and it is probable that Dr Daniel may have routinely spoken quietly for this reason. For this reason any increase in the volume of his voice would have been noticed by Patient A. We note the Applicant's submission (transcript 17 February 2022 page 27, line 11-14): '… this is a small clinic, sound travels, Ms Hurst had said she can hear the traffic when she's just outside the consultation room, which tends to muffle the noise from the consultation room when she's standing at the door.' Given, also, her sense of embarrassment at being seen in this compromised position, Patient A assessment of how much louder Dr Daniel's voice became may be relative to her nearness as well as her shock at seeing someone enter the room.
The particulars of this Complaint alleged that: "1 On 6 September 2017, Patient A attended a consultation with the practitioner for treatment of recurring headaches. During this consultation the practitioner asked Patient A about bladder leakage issues and purported to show Patient A how to treat the issue. The practitioner: (a) directed Patient A to remove her pants and underwear and lay down on the bench in the consulting room; (b) wearing latex gloves, inserted his fingers inside Patient A's vagina for approximately 1 second; (c) removed his fingers and went to pick up some gel; (d) having changed gloves, and reapplying gel to those gloves, the practitioner again inserted his fingers into Patient A's vagina and moved them around for about 2 to 3 minutes; and (e) removed his fingers from Patient A's vagina and said words to the effect of "If I do this on a regular basis this will help with the [bladder leakage] problem". 2 By reason of the actions set out in paragraphs 1(a) to 1(e) above, the practitioner engaged in inappropriate behaviour of a sexual nature towards Patient A."
We note that the evidence concerning the person who interrupted the consultation and Dr Daniel having yelled at that person do not form part of the particulars and according we do not give this evidence any substantial weight.
On the balance of the evidence before us, we are comfortably satisfied that Particulars 1 and 2 are established. We find that Complaint 2 is proven.
We agree with his Honour's judgement concerning Complaint 3. We find that Complaint 3 is proven.
In our opinion, the allegation of professional misconduct has been proven on the balance of probabilities to the Briginshaw standard. Dr Daniel's misconduct is sufficiently serious to potentially warrant the suspension or cancellation of his registration.

Orders 1. The Respondent is guilty of professional misconduct. 2. The Respondent is guilty of unsatisfactory professional conduct. 3. The proceedings are to be listed for a Stage 2 hearing on such dates as the Registry fixes for that purpose. 4. Costs are reserved.

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

Amendments 14 September 2022 - Coleman SC ADCJ - added at paragraph one. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2022

(2019) 100 NSWLR 682

Health Care Complaints Commission v Daniel

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Cases Cited (40)

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