Health Care Complaints Commission v Dowla

The relevant law

1. As noted above the HCCC assert that the practitioner's conduct is either unsatisfactory professional conduct under s 139B (1) (a) and/or under s 139B (l). It is not particularised which of the particulars are asserted to fall under s 139B (1) (a) and/or s 139B (1) (l).
2. Those two provisions are as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
3. As noted by Basten JA in Fraser v Health Care Commission [2015] NSWCA 421 at [7]-[8] the failure to identify which particulars are alleged to constitute a breach of a particular section of the National Law can be procedurally unfair to a practitioner and cause difficulties for a tribunal in making findings. However, no issue of procedural unfairness was asserted by the practitioner. We found the issue of which particulars are asserted in respect of which sub-section is not as clear in this case as was found by the Court of Appeal in King v Health Care Complaints Commission No 2 [2011] NSWCA 353. We have accordingly made findings attributing the conduct to either s 139(1) (a) or s 139 (1) (l) as seems appropriate.
4. The HCCC further assert that the background and particulars set out in support of the complaint of unsatisfactory professional conduct, are relied on: 1. Individually and cumulatively to ground a finding of professional misconduct; and 2. Complaint One Particulars 1(b) 1(e) 2 and 3 are relied on individually 3. to support a claim of professional misconduct.
5. Professional misconduct is defined in the National Law as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means - (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
6. The Tribunal is informed and guided in its deliberations by the objects and principles of the National Law as found in s 3 and s 3A. The latter NSW provision is framed as follows: 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note. This section is an additional New South Wales provision.
7. The Tribunal is required under s 165M to publish reasons at the conclusion of its inquiry, and to record its material findings of fact. Section 165M is as follows: 165M Tribunal to provide details of decisions [NSW] (1) As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to - (a) the parties; and (b) the Council for the health profession in which the practitioner or student is registered (regardless of whether it is a party). (2) The statement of a decision must - (a) set out any findings on material questions of fact; and (b) refer to any evidence or other material on which the findings were based; and (c) give the reasons for the decision. (3) The Tribunal may also provide the statement of a decision to the persons the Tribunal thinks fit. (4) Unless the Tribunal has ordered otherwise, the Tribunal is to make publicly available a statement of a decision given by it under this section if the decision is in respect of a complaint that has been proved or admitted in whole or in part. (5) This section applies to a decision on an inquiry that is conducted into a complaint referred to the Tribunal under this Law where the subject-matter of the complaint is admitted in writing to the Tribunal.
8. Although the rules of evidence do not apply to the admissibility of evidence, the Tribunal must observe the rules of natural justice and procedural fairness. The Tribunal may inform itself as it sees fit (see Schedule 5D cl 2 of the National Law).
9. The authorities in professional disciplinary proceedings have set out well established principles to be observed in the hearing of such matters. First, it is uncontroversial that the onus of proof is that of the HCCC. It is well established that the applicable standard of proof is that discussed in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw) (see Fraser v Health Care Complaints Commission).
10. In this case, where allegations of behaviour, if proved, are asserted to constitute inappropriate conduct of a sexual nature, it is relevant that we set out from Briginshaw matters germane to the onus of proof. In Briginshaw the High Court was required to determine whether the proof of adultery in divorce proceedings required proof to the criminal standard (beyond reasonable doubt) or to the civil standard (on the balance of probabilities).
11. Latham CJ explained some of the difficulties faced by a trier of facts in the following way at 343-344: There is no mathematical scale according to which degrees of certainty of intellectual conviction can be computed or valued. But there are differences in degree of certainty, which are real, and which can be intelligently stated, although it is impossible to draw precise lines, as upon a diagram, and to assign each case to a particular subdivision of certainty. No court should act upon mere suspicion, surmise or guesswork in any case. In a civil case, fair inference may justify a finding upon the basis of preponderance of probability. The standard of proof required by a cautious and responsible tribunal will naturally vary in accordance with the seriousness or importance of the issue - See Wills' Circumstantial Evidence (1902), 5th ed., p. 267
12. Dixon J referred to the level of certainty required in the following passage at 361-362: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency
13. Dixon J also explained at 368-369: Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find.
14. Although in this matter we are not dealing with a case of adultery which, at the time Briginshaw was determined, had serious societal significance and was one of the limited grounds for obtaining a divorce, Dixon J's discussion of what must be proved to establish adultery has some resonance when dealing with disputed issues of sexual abuse, particularly where the parties involved assert very different versions of crucial events. Our findings have importance for the patient, for other female patients of the practitioner, and potential consequences for his right to practice.

(a) Statement by Patient A's sister

1. Patient A's statement reveals her sister was the first person she told about her consultation with the practitioner. However, in her evidence before us, Patient A said she was distressed after leaving the practitioner's premises and she had telephoned her partner. No statement was obtained from her partner. However, during her video evidence in these proceedings Patient A offered to call him to corroborate her evidence that she had spoken to him on her mobile phone from Blacktown Station in a distressed state after her consultation with the practitioner. We will refer to this evidence later when discussing Patient A's own evidence.
2. Patient A's sister provided a written statement made on 15 March 2016. She gave evidence before us and was cross-examined by Senior Council for the practitioner. Patient A's sister relates her usual practice at the relevant time of speaking regularly to her sister or that her sister sent text messages to her. She recollects that in early to mid-December she spoke to Patient A, who seemed very distracted. After encouraging her sister to tell her what was wrong, she says Patient A started to cry. Patient A then told her sister about her consultation with the practitioner.
3. Patient A's sister recorded: I don't recall her exact words but she explained when she was called into the doctor's room from the waiting area, she walked towards the doctor and another male. She said words to the effect "they were both looking me up and down and talking to each other possibly in another language". [Patient A] said she felt they were judging her because she had a break-out on her face and she was wearing comfortable clothes. She explained to me that this made her very uncomfortable before she even went into the room. I can't remember how she told me exactly, but she said the doctor told her she didn't have carpal tunnel and at some point he asked her if she had any other issues with pain. [Patient A] told him about her pain on her surgical caesarean scar. [Patient A] said the doctor told her to get on the bed. She told me she was confused why he needed to have a look at her on the table when she was there for her hands, but it was my impression from what she said that she felt intimated so did not ask him why.
4. Patient A's sister recounts that Patient A told her: [Patient A] said the doctor was pushing around on her stomach and down her thigh. I can't recall whether she said she was dressed, she may have said something about the doctor pulling her pants a bit low to look at her scar. She said he wasn't examining her like a normal doctor but instead he was rubbing or massaging her thigh. She used the words 'very inappropriate' in describing how he was doing this. [Patient A] said something about the doctor moving his hand from one thigh to the other and in doing so he moved his hand across her private area. [Patient A] said he was purposely touching in her inappropriately. [Patient A] said she felt 'too scared' to say anything or get up and that, words to the effect 'all I wanted to do was cry'.
5. Patient A's sister explains that Patient A also related that she "knew" that the practitioner was masturbating because "his arm was moving rapidly under the desk" and because "the chair was bouncy".
6. Patient A's sister suggested Patient A telephone a lawyer and get some advice. Later the same day Patient A's sister spoke to her again and confirmed she had had a telephone conversation with a lawyer and that someone was coming to her house to speak to her.
7. In answer to questions posed in cross-examination, Patient A's sister explained that she had a telephone conversation with her sister on the day of her appointment with the practitioner, but prior to the appointment. In the conversation Patient A explained she was lost and flustered.
8. Although Patient A's sister confirmed that Patient A had told her she was "ogled" by the doctor and another man, she qualified her evidence noting that she was relying of her memory as she had not had a lot of contact with her sister between their conversation and making her statement. She also explained she had undergone significant surgery.
9. Patient A's sister confirmed that Patient A had told her that the practitioner had pulled down her pants to look at her scar. Patient A's sister was firm in her evidence that at no time did Patient A tell her that the practitioner had put his hands down her pants, or under her pants, or that he had touched her under her pants [transcript 10.12.2018 p 23]. Patient A's sister also confirmed that Patient A had made previous allegations of sexual abuse. Patient A's sister confirmed, in her opinion, that Patient A could be quite manipulative.
10. As we will confirm when discussing the particulars of the complaint, we found Patient A's sister to be an impressive witness. We gave significant weight to her evidence.
11. (a) Statements by the patient.
12. Setting out the salient matters in Patient A's various statements necessarily involves some repetition of facts. We discern, however, that it is important we do so because of the submissions made on behalf of the practitioner of inconsistencies in her evidence.
13. Patient A participated in an interview at her home with a solicitor on 8 December 2015, one week after her consultation with the practitioner. The interview notes are detailed. Patient A reported after she was told the results of her nerve conduction tests that the practitioner told her she did not have carpal tunnel syndrome. Patient A is reported as saying she was very nervous about the results because she did not want to have an operation.
14. Patient A reported that the practitioner stared at her in a way that made her feel uncomfortable, She is reported to have said "I felt very nervous" when she explained about pain she suffered radiating from her c-section scar. She is recorded as being asked by the practitioner where she had pain and that "I rubbed my hands down each leg from the end of the c-section straight down the front of my thighs to about half way down my shins".
15. Patient A is then recorded as saying the practitioner took her over to the surgical bed, that he told her to hop up on the bed and lie down and that he then asked her to "show him my c-section scar". The notes record: I am very shy and I felt very nervous so I just pulled my underpants down to just below the scar, so you could see the scar. I apologised to him because I had shaved my pubic hair and I was embarrassed about the tiny ingrain spots which had grown back. I was embarrassed and I didn't want him to think it was a sexually transmitted disease, that it was just where I had shaved.
16. Patient A reports states that the practitioner then rubbed her scar and that he seemed pretty professional but I felt uneasy. She is then recorded as saying: He then pulled my pants out from my body towards the ceiling and put one hand down inside my underwear and continued to hold my pants out from my body with the other hand. He moved his hand in a diagonal direction from the end of my c-section scar towards the front of my thigh. As he did so he rubbed over the skin directly above my clitoris and then moved in a diagonal motion towards my left thigh and then rubbed his hand down my leg to just above the knee. He then moved that hand back in the same motion and same places until his hand was back on the right side of my c-section. He then rubbed his hand straight down my leg but at the same time he also brushed his hand over the skin above my clitoris. He then moved his hand up and down my leg very softly and very slowly two times. He then said something life "finished" and pulled his hand out. He then walked back to the desk and indicated to me to sit in the chair in front of the desk. [our emphasis]
17. Patient A reported that the practitioner then asked her a number of questions. The report goes on to note: At this time his right hand was under the desk and his chair seemed to be jerking up and down. I thought our consultation was finished and I was feeling really uncomfortable
18. The record of interview records that Patient A said the practitioner then asked her what she was studying and after she reported that she wanted to create apps "so I can sell them and try to create apps for other people, he asked if I could create an app for him". She records further conversation about apps and that the practitioner then gave her a piece of paper on which he wrote his mobile telephone number.
19. Patient A is then recorded as saying when the practitioner first started asking her personal questions "I noticed his chair seemed to be jerking up and down. I felt he was pulling himself off". The interviewer goes on to record Patient A saying: He just kept staring at me. It was freaky, When he had rubbed me, I felt violated and upset.
20. Later the interviewer records Patient A's history of being sexually harassed at High School, and that when she was estranged from her mother as a 15 year old teenager she lived for about three weeks with a couple and their three children from the Mormon church. However she returned to live with her mother but after her mother had "kicked" her out of the house she returned to the Mormon couple's house. At the time the husband told her his wife and children had gone to Queensland, but that she could stay the night. Patient A reported that the husband had raped her the next day. Patient A's mother made a report to the police, but Patient A said she got scared and decided not to do anything about it.
21. Patient A's interview then referred to problems she experienced after smoking "pot" and being involved in an abusive relationship. Patient A is recorded as saying "[the practitioner's] violation has now brought everything back to me"
22. The record of interview also notes: I saw a GP at my medical centre on 8 December 2015. I didn't discuss any medication. I am on duramine [sic] trying to lose weight. It's not working. I spoke to her about everything that has happened to me. I broke down. I told her everything that has happened to me. She just put me out the door. She asked me if I felt suicidal. I told her every time I feel suicidal I think about my kids.
23. The solicitor's file notes also record a telephone conversation with Patient A on 8 December 2015. In that conversation Patient A is recorded as saying that the practitioner asked her to remove her underwear, that she felt so uncomfortable that she just lowered "them" enough to show the scar. The file records "He then rubbed each thigh. He then brushed against her vagina". The file note contains a diagram which appears to indicate arrows on the front of each thigh pointing downwards and across the pubic region.
24. The HCCC received a handwritten complaint from Patient A on 8 January 2016. In her oral evidence Patient A explained that her partner had assisted her with spelling of some words she set out in the complaint. Patient A referred to arriving attending the "Hereward Specialist Medical Center" on 1 December 2015. She referred to being taken to the practitioner's room after she had undergone nerve conduction studies. She reports the practitioner told her the results of her nerve conduction tests. Patient A explained to the practitioner that "my doctor wanted me to ask him about the pain I am having across my c-section scar and that I have shooting pains down my legs from each end of the c-section". Patient A records she stood up and using her hands showed the practitioner over her pants where she experienced the shooting pain.
25. As in other reports of the consultation, Patient A refers to the practitioner examining her c-section scar. In her complaint Patient A says during the examination of her c-section scar that the practitioner said that he "believes there to be little scarring beneath the c-section scar".
26. Patient A then records: …without any warning or permission given, [the practitioner] lifted both my pants as well as my underwear with his hand rubbing my vagina as he made his way to my inner thigh. He then slowly rubbed back up and down my inner thigh with his fingertips. Then with his fingertips he slowly touching my vagina as he moved his fingertips to my other thigh. Whilst he was performing these indecent acts he was asking me where the shoot pain was and generally acting as if what he was doing was ok. I was froze-up and to nervous to say something. I was trying not to cry. After he was done he pulled his hand out of my pants and pulled the bottom of my shirt back over my lower stomach.[original spelling and grammar]
27. Patient A states she then went back to the chair and that the practitioner returned to his chair behind the desk "and told me that everything seem to be fine". Patient A then records "He started asking me inappropriate and personal questions like am I single, am I close to my family, if I have friends, if I am working, what do I do in my spear [sic] time". Patient A records that after she answered the practitioner's questions he said something along the lines of "so you're all alone at home". Patient A states this remark made her even more nervous. She also states: Throughout these exchanges I couldn't help but notice the movement of his chair which was noticeably jerking up and down. When I first noticed this I realized that at least one of his hands were below the desk. I cannot say for sure where the other hand was as I quickly averted my eyes not wanting to see anything else. I truly believe that [the practitioner] was masturbating while asking me questions.
28. Patient A then records that, as she got up to leave, "he asked me if he could give me his number. When I asked why he said that I could make him an app". Patient A states when she left the building she broke down crying. She went on to explain the practitioner's actions had made her feel as though nowhere was safe. She concluded her complaint stating "I have been anxious and scared every day since and I can hardly bring myself to go the local shopping center [sic] out of fear that I might have to have any kind of interaction with a man and on a daily basis I'm have [sic] attacks".
29. On 16 March 2016 two officers from the HCCC attended on Patient A at her home to obtain a statement from her.
30. Patient A's evidence in her statement varies in some details from her sister's recollection of their telephone conversation in mid-December 2015 and her report as recorded by Dr Bagherian. Patient A relates that prior to her consultation with the practitioner she saw two males "who looked like they were 'oogling' me". She explains that she was wearing a t-shirt with a low cut scoop neck and that was made of thin material that was almost see through". She says this made her self conscious.
31. Patient A's report of the consultation is broadly consistent with the recording made by the solicitor who interviewed her on 8 December 2015 up to the point of the practitioner's examination of her c-section scar. She says that the practitioner "lifted my jeggings" and put pressure on her c-section scar. She says "I felt uncomfortable that he had lifted up my jeggings and could see into my underwear". After apologising [about her ingrown hairs] Patient A says "[the practitioner] then put his other hand inside my jeggings and under my underwear and out through the leg hole of my underwear. As he did this he swiped his hand against the top of my vagina with his fingers". She then records the practitioner making a slow rubbing motion on her inner thigh "that an intimate partner would make". She says as the practitioner did this he said "so you get the pain along down here". She goes on to explain that the practitioner moved his hand back up my inner thigh and across to the inner thigh of my right leg. She reports "in so doing he slowly rubbed the top of my vagina again, using his finger tips and said "and here". She says after she responded "yes, yes" that the practitioner then pulled his hand out from underneath my jeggings".
32. Patient A again records the practitioner asking her questions and whilst he was doing so she noticed the movement of his chair, which she described as "quite springy" and of the practitioner "jerking up and down". She explained "I can't recall if one hand or both hands were under the desk. ….It immediately occurred to me that the type of movement that [the practitioner] and the chair were making was consistent with someone masturbating. I didn't want him to know that I knew what he was doing and I tried to look away".
33. Patient A relates after she called the solicitors following advice from her sister to do so, a female lawyer, Kathryn Myers, came to her house and took down her story. Patient A states at this time she "didn't go into the story in detail".
34. In answer to questions posed by Senior Counsel for the practitioner, Patient A explained: WITNESS: It's when I look at doctors and people in a professional manner I never ever, ever, feel uncomfortable ever. I've had children, I've had to be exposed by having children with male doctors, I've you know, I've had male doctors for years even as a young girl like, teenager, young adult, I've had to have vaginal swabs, breasts like examined and all this kind of stuff and I've never once felt mistreated by a doctor [transcript 10.12.2018 p 41].
35. Patient A denied she had any concern about a debt of $20,000 saying the debt "was invisible to me" [transcript 10.12.2018 p 43]. She also agreed that she may have told her sister that the practitioner was one of the two men she described as 'ogling' her when she arrived at the practitioner's premises. When challenged about whether the man was the practitioner Patient A said "Well he could have been standing in the hallway. Like do you know what the place looks like" [transcript 10.12.2018 p 57]. However, when pressed by Senior Counsel, Patient A said she could not answer the question as the events had occurred three years ago.
36. Patient A confirmed that the practitioner had not asked her to remove her clothes and she had pulled down her pants which were jeggings (leggings made of fabric which looked like denim).
37. Patient A confirmed that, at all times up until the completion of the practitioner's examination of her c-section scar, his manner had been completely professional. She also gave evidence that immediately after leaving the practitioner's rooms, that she was crying and that she telephoned her partner.

(a) the first proceedings

1. As earlier noted, after the hearing, at which we admitted into evidence parts of the transcript of the first hearing provided by the HCCC, without objection by the practitioner's lawyers, we received the sound files of Patient A's evidence in the first proceedings.
2. There is no material difference in Patient A's version of her consultation with the practitioner in the HCCC statement and that of the practitioner up to the point at which she was on the examination couch, and the practitioner had examined her C section scar at her request save for Patient A's suggestion that the practitioner may have been ogling her in the corridor outside the consultation room.
3. Patient A's oral evidence in the first proceeding was, after the practitioner concluded his palpation of her c-section scar, that his hand was inside her pants, that he rubbed her inner left thigh, then moved his hand swiping it across her vulva (not her vagina) to the inner right thigh while asking her where it hurt [transcript 13 September 2017 p 29]. Patient A agreed she could feel what the practitioner was doing but she could not see him. Patient A said that when the practitioner was examining her c-section scar she was holding her jeggings with both hands.
4. Both Patient A and the practitioner agree that after her physical examination she returned to the chair in the consulting room and that the practitioner asked her questions. Patient A agreed she could not see the practitioner's body below his desk, but she maintained he was not writing notes but rather appeared to be masturbating.

(b) these proceedings

1. As explained above, Patient A's sister gave oral evidence in these proceedings. She was an impressive witness who gave her evidence in a straightforward manner. She made appropriate concessions. Importantly, she confirmed that Patient A did not report to her that the practitioner had put his hands down her pants or under her pants, and at no point did Patient A tell her that the practitioner had touched her underneath her jeggings..
2. Patient A's sister confirmed that she had encouraged Patient A to speak to someone about the consultation including a lawyer who would not charge such as a Legal Aid lawyer. She also conceded that she had told Patient A she could contact a lawyer who would act for her on a "no win, no fee" basis.
3. Patient A's sister agreed that Patient A could be a manipulative person because of her mental health difficulties.
4. We note that Patient A's report to her sister of being upset by the practitioner examining her c-section scar is inconsistent with Patient A's evidence in these proceedings of requesting the practitioner to examine her c-section scar, and that the consultation was normal or professional up to the time that examination concluded. We also note Patient A's sister did not record Patient A complaining that the practitioner had touched her inner thighs, but rather that he was rubbing or massaging her thigh.

Patient A's oral evidence in these proceedings

1. Patient A confirmed she had been prescribed Duromine for weight loss, and was taking the antidepressant Citalopram at the time of the consultation. She also agreed she was prescribed Lyrica, but said she did not always take the latter drug which was prescribed for her hand pain and that it had an adverse impact on her.
2. Patient A also confirmed that in 2015 she had a diagnosis of depression, and that she had also been diagnosed, on various occasions including 2015, with bipolar affective disorder [transcript 10 December 2018 p 39].
3. Patient A was upset during her cross-examination which could not be completed on the first day of the hearing. When requested by the Presiding Member to make herself available the following day or days she said: WITNESS: I would like that one, I would like to think about it because, it's just - it's just so hard for me because of - I know you are trying to figure everything out, but what has happened has happened and it's hard to be cross-examined like this and to be made out like I'm mental or you know, all this kind of stuff. I'm - look, I can't, I can't do this again, it's too much. He has sexually assaulted me and now I have to sit through this. I can't do that. It's too hard. I don't think I could handle it, I just don't think I can handle it.
4. As noted above, although the practitioner's counsel in their submissions assert correctly that these are discrete new proceedings, we have before us, without objection on behalf of the practitioner, the transcript of Patient A's evidence in the first proceedings. We have regard to that evidence also taking into account the submissions made on behalf of the practitioner that other evidence, in particular the firm's evidence, (Exhibit B) was either not available in the first proceedings or was not pursued by the practitioner's then legal representative in cross-examination of Patient A.

(a) the neurologists

1. We had the benefit of reports by two expert neurologists. Professor Bruce James Brew was retained by the HCCC. Professor Brew is a specialist neurologist. He is eminently qualified to give expert evidence in this matter. Professor Brew provided two reports for the HCCC. The practitioner relied on an expert report by Dr Paul Darveniza. Dr Darveniza is a specialist neurologist and is Associate Professor, School of Medicine, Notre Dame University, Sydney campus. He is also eminently qualified to give expert evidence in this matter.
2. Professor Brew's opinions are based on the assumption that the version of events given by Patient A is correct. We will refer to the experts' opinions when considering the particulars of the complaints as set out in the Amended Complaints.

(b) the psychiatrist

1. The practitioner also relied on a report by Dr Richard Furst, a Consultant Forensic Psychiatrist. Dr Furst gave oral evidence before us and was cross examined by Mr Britt for the HCCC. Dr Furst was provided with copies of Patient A's medical records obtained under Summons, including records from Blacktown Mental Health. Having reviewed the records Dr Furst opined: Taken together, those assessments make it more likely than not [Patient A] met criteria for the following diagnoses in the early months of 2016: Post-traumatic Stress Disorder Borderline Personality Traits
2. Dr Furst was asked to respond to questions posed by the practitioner's lawyers including the effect of Patient A's mental health and /or mental illnesses on the veracity of the complaint.
3. As became apparent from his cross-examination, Dr Furst based his opinion on a Medline search. He candidly admitted he had not read all of the papers referred to in his report, but in some cases had only read the abstract of an article. He agreed he had not personally conducted any studies relating to the rates of false denials in relation to sexual assault allegations. He had not interviewed Patient A or spoken to her.
4. It is unnecessary for us to discuss Dr Furst's report and evidence in any detail. We did not find the studies on which he based his report had sufficient correlation to the facts in issue in this case to be of any probative value to us. The opinions he expressed were all based on those studies some of which were reported in articles he had not even read. We were unable to place any weight on Dr Furst's report.

The Practitioner's evidence

1. In these proceedings the practitioner relied on his statement of 12 October 2018.
2. It is unnecessary that we repeat all the practitioner's evidence in detail.
3. The practitioner explains that he initially had no recollection of Patient A, but after reviewing his electronic file he was able to recollect the consultation. We pause to note that the practitioner was promptly notified of the complaint by the HCCC on 21 January 2016, not long after the consultation.
4. The practitioner says he recalls Patient A seemed "a little anxious". He relates showing Patient A the referral letter which did not request examination of her c-section scar, but because the patient seemed concerned about this he agreed to examine her. After examining Patient A's wrists while she sat on the side of the bed, her says she lowered her jeggings and he palpated her c-section scar whilst asking her questions. The practitioner denies lifting up Patient A's jeggings, putting his hand inside her jeggings, or putting his hand through the leg hole of her underwear. Nor, he says did he swipe his hand across the top of her vulva or touch her sexual organs.
5. At para 60 of his statement, the practitioner explains that he then examined Patient A's lower limbs being her legs and middle and outer thighs. At para 64 he says: While I was examining her reflexes, because I found the reflexes to be normal, I examined the upper part of the thigh to explore if the pain was radiating towards any particular nerves such as the lateral cutaneous nerve or ilioinguinal nerve; because, if it was, I would have advised her to get a referral for investigation of that pain …
6. The practitioner states at para 65 "During this part of the examination, Patient A's jeggings remained on and my examination was conducted on top of the jeggings". While the practitioner was asking Patient A questions he says he "traced lightly with his finger on top of her jeggings the path on her outer thigh and mid-thigh of her right leg, which was closer to me". He then states at para 68 that he traced his finger lightly over the outer part of her right [query left] thigh. He denies touching Patient A's inner thigh.
7. Following his clinical examination, including questioning of Patient A during the examination, the practitioner says he returned to his desk, and asked a number of questions to her designed to confirm his preliminary diagnosis of Somatic Symptom Disorder. He says he wrote notes using a fountain pen held in his right hand. He denies masturbating.
8. At para 76 the practitioner says he gave his mobile phone number to the patient "as a way of encouraging her to make 'apps' so as to promote her mental wellbeing; not to maintain social contact".

Other witnesses relied on by the practitioner

1. The practitioner relied on a statement and oral evidence by the nurse who acted as his chaperone after he agreed to the imposition of a chaperone condition on his registration. The nurse reported the practitioner had, at her request, told her of the allegations made by Patient A and that he said they were not true. She also reported that, in about June 2017, she noticed when the practitioner was writing with his right hand his left hand would tremor. She said the practitioner explained his tremor was because he has Parkinson's disease. She asked the practitioner if Patient A could have mistaken his tremors for masturbation and that he had replied "maybe".
2. The practitioner also relied on a statement and oral evidence from his secretary who worked for him for seventeen years from 2000 until her retirement in 2017.
3. The thrust of the secretary's evidence went to the manner in which the practitioner prepared his reporting letters to referring doctors. While there is no dispute that the relevant letter in this case was produced using "auto-text", typed in part by an overseas typing service and contained errors, the errors are not the subject of the complaint in this matter.

(a) the disputed particulars

1. The particulars in the amended complaint are as follows: 1. On 1 December 2015 during a consultation with Patient A, the Practitioner: (a) lifted Patient A's pants (jeggings) up and away from her stomach, exposing her pubic area and in doing so failed to: i. obtain Patient A's consent ii. provide an appropriate cover to preserve Patient A's modesty;
2. In the submissions lodged on behalf of the HCCC paras 1 to 5 set out general principles to be applied in assessing the credibility of a witness. We agree with those principles.
3. Patient A's evidence is that she pulled her jeggings down sufficiently to expose her c-section scar, and that she explained she was embarrassed because she had ingrown hairs from shaving her pubic hair.
4. We accept that by reason of her c-section scar, being a lower segment caesarean scar, that it was necessary for Patient A's jeggings to be lowered to just above her pubis. The practitioner says that he did not need to obtain Patient A's consent to the examination of her c-section scar because he was examining the scar at her specific request, although it was not a matter that her referring GP had requested. We accept that the practitioner did not provide a modesty sheet for Patient A and that as noted by Professor Brew, it would have been best practice for him to do so. Although the practitioner was examining Patient A's c-section scar at her request, it would have been prudent for him to explain the procedure he proposed to adopt (palpation of the scar and examination of lower limbs). However, given the framing of this particular, we are not satisfied it is established. Patient A's own evidence is that she lowered her pants to permit examination of her c-section scar.

Particular (b), (c), (d) and (e)

1. It is convenient we deal with these particulars as a group. (b) put his hand inside Patient A's pants and underpants, touched his hand in a swiping manner against Patient A's vulva or near Patient A's vulva and failed to: i. obtain Patient A's consent to do so; ii. have a valid clinical indication or reason for doing so; (c) touched Patient A's thighs whilst his hand was on the inside of her underpants and failed to obtain Patient A's consent to do so; (d) rubbed Patient A's thighs in a slow rubbing motion whilst his hand was on the inside of her underpants and failed to obtain Patient A's consent to do so; (e) rubbed patient A's vulva or near Patient A's vulva slowly using his fingertips whilst his hand was on the inside of her underpants and failed to: i. obtain Patient A's consent to do so; ii. have a valid clinical indication or reason for doing so.
2. These particulars go to the essence of the complaint against the practitioner.
3. The position advanced by Senior Counsel for the practitioner at the hearing was that Patient A has given deliberately false evidence. That position was ameliorated somewhat in the written submissions lodged on behalf of the practitioner.
4. At para 41 of the practitioner's submissions it is noted: The respondent does not submit that this means [Patient A] cannot be believed per se. However, in the context of these proceedings, in this case, Patient A's troubled and unfortunate past is one integer of a factual matrix that she brings when she attended the Consultation.
5. It is submitted on behalf of the practitioner that Patient A's evidence should be rejected on a number of bases. First, it is submitted that Patient A had considerable difficulties because of her pre-existing health conditions, that she was on "heavy" medication and had manipulative behaviour. Second, it is asserted Patient A was upset on the day of the consultation having got lost and been flustered and upset by a skin breakout and by forgetting to wear an undershirt. Third, it is asserted her account is unrealistic and bizarre and there was no evidence of grooming or flirting. Fourth, that Patient A conversed sensibly with the practitioner after the consultation when speaking about apps. We find these submissions have considerable weight. It is relevant that both experts agree that although the practitioner's examination of Patient A, as reported by the practitioner, was perfunctory or cursory it was not unreasonable in the circumstances of Patient A's complaints. We further accept that Patient A's sister, who we found to be an impressive witness, described Patient A as "manipulative".
6. It is further submitted that there is no evidence that Patient A was distressed when she left the practitioner's premises, and that her telephone records obtained under Summons to do not corroborate her assertion that she telephoned her partner, or that he telephoned her immediately after the consultation.
7. At para 24 of the submissions it is asserted "Her later accounts are contradictory and variable; usually becoming more sinister as time progressed to suit her need". Criticism is also made of Patient A's failure to make herself available for the continuation of her cross-examination at this hearing. Reference is made to the decision in Health Care Complaints Commission v Kingston [2018] NSWCATOD 28 and we are urged to adopt the position of the Tribunal in that matter namely, that we should give less weight to Patient A's evidence because she did not make herself available to complete her cross-examination.
8. It is further submitted that we should give less weight to Patient A's evidence in the first proceedings because "[the practitioner] was hampered by poor preparation and poor disclosure; and the cross examination by [the practitioner's former legal representation was wholly unsatisfactory]". There is simply no evidence before us to support a submission that the practitioner was hampered by poor preparation. Certainly the manner in which he answered the HCCC's correspondence was unsatisfactory, but the fault for that lay with the practitioner.

Discussion

1. We accept that Patient A is a vulnerable woman who has an unfortunate past history of abuse and mental illness. We do not however accept the submission made on behalf of the practitioner that her versions of events have deliberately become more sinister over time. We have given careful consideration to the fact that Patient A reported her concerns about the practitioner's behaviour to her sister, the solicitors and her general practitioners within a short period after the consultation. But we find there are a number matters relating to her evidence which cast doubt on its reliability.
2. We accept that Patient A was flustered and upset when she reached the practitioner's surgery. We found her evidence that she was "ogled" by the practitioner before the consultation was unreliable and inherently improbable. Her evidence on this topic was inconsistent. In her statement prepared with the assistance of two officers from the HCCC she refers to two men who appeared to be professionals, not to the practitioner. Patient A made no mention of being "ogled" in the comprehensive account she gave to the solicitor at interview at her home on 8 December 2015 very shortly after the consultation. However, in cross-examination before us she inferred that one of the persons who "ogled" her had been the practitioner. We note that the solicitors' records which formed Exhibit B were not available at the first hearing.
3. We also found inconsistencies in the patient's evidence about the practitioner's demeanour during the consultation. In her evidence before us Patient A agreed that up to and including the palpation of her C-section scar the practitioner's behaviour had been normal and professional. However, that evidence is inconsistent with the version she reported to the solicitors on 8 December 2015 in both her face to face interview and her telephone consultation. In both cases she described the practitioner as "flirtatious" and "overly nice" referring to "the tones in his voice and the way he touched my hands". It is also inconsistent with the evidence she gave in the first proceedings where Patient A described the consultation up to and including the examination of her c-section scar as a normal consultation (see Exhibit A tab 20 p 24).
4. However, we are not satisfied that it is established to the requisite standard that Patient A was lying when she said that she telephoned her partner after the consultation. We were provided with a table produced by Vodafone. We found it largely unintelligible. While the telephone records for Patient A's mobile phone do not appear to corroborate her evidence, the letter from Vodafone explains that the provider's records only disclose calls made from one mobile phone to another mobile phone operated by the same provider. The evidence is equivocal and it would be unsafe for us to reject this aspect of Patient A's evidence.
5. The practitioner's submissions are predicated on the basis we should draw an adverse inference because of the failure to call Patient A's partner to corroborate her evidence about the telephone call. While it would have been of benefit to us to hear Patient A's partner's evidence, we do take into account that Patient A indicated in her oral evidence before us that he was present in her house and could give evidence via AVL.
6. We also found Patient A's denial that her financial situation was not of concern to her to be inconsistent with her medical records. The records of the Blacktown Mental Health Service record on 17 October 2016 "She said she went into 'deep depression' because she had no money". Earlier she reported to the same service on 3 February 2016 that she had spent $20,000 in a month. On 14 February 2016 Patient A is reported as telling the service that she had a debt of approximately $20,000 "and can't see clear of it".
7. We also find Patient A's evidence about her trust in the medical profession up to the consultation with the practitioner is inconsistent with her reporting to the Mental Health Service.
8. The practitioner's evidence was challenged by the HCCC because he did not address in his reply to the HCCC's letter dated 29 February 2016 point 4 of the allegations made against him by Patient A namely that "You touched her inner thigh". The practitioner explained in his statement that he had drafted a response in narrative form to the HCCC's letter and provided it to his insurer, Avant. He acknowledged he should have responded individually to each of the eight assertions made in the HCCC's letter.
9. The HCCC's submissions particularise a number of discrepancies between the practitioner's evidence in the first proceedings and his statement in these proceedings. We find the points made in para 35 (l) to (s) are of minor nature and do not demonstrate significant inconsistency in the practitioner's evidence particularly given the period of time which has elapsed since the first hearing and these proceedings. We also found the practitioner's evidence that when he was first contacted by the Medical Council of NSW about the complaint he had no immediate recollection of Patient A is inherently plausible and consistent with an unremarkable consultation.
10. The HCCC submissions point out that in his reporting letter the practitioner makes no mention of examining Patient A's thighs, but does give evidence that he did so in the first proceedings. We accept that the reporting letter does not accurately reflect the practitioner's consultation or tests conducted but contained errors not corrected from use of an auto-cue. However, significantly, the practitioner did report that he suspected Patient A's symptoms were functional and there was evidence to suggest somatoform pain disorder. He recommended she be referred to a psychologist. It is highly unlikely the practitioner would have made such a recommendation if he had engaged in sexually inappropriate behaviour with the patient.
11. The HCCC submits there are inconsistencies between the practitioner's statement at para 66 and his evidence in the first proceedings about his examination of Patient A's thighs. It is clear that the practitioner did not address the HCCC letter at point 4 relating to the touching of Patient A's inner thighs. However, in his oral evidence adduced in chief in the first proceedings the practitioner answered the question "Did you conduct any other examination" (after the examination of the c-section scar) as follows: Yes I was - at that time after doing the, the, the reflexes I went to the upper part of the, of the thigh to- because at that time I found that he - the, the description of pain and the reflexes being normal, it was not sounding very neurological in nature, so I was trying to explore more if her pain was directed towards the - or radiating towards any particular nerves, such as lateral cutaneous nerve or inguinal nerve because that could be relevant. If I found in the history or, or in the examination that there was a possibility of some nerve getting entrapped in the caesarean scar then I would have advised her to get a referral for investigation of that pain, because this particular referral was not about it….So at that time I was talking to her about the pain from the caesarean scar going into the thigh and to the legs. Q. Okay. And during that process do you - were either you or she saying anything? A. Particularly asking if "The pain is going around outer thigh, or mid thigh I was pointing the fingers and she was responding. Q. Okay. Did you do that under or over the jeggings? A. The jeggings were still on, it's not under.
12. In the first proceedings Patient A agreed in cross examination that as she was laying down she could not seeing what the practitioner was doing, and that during the time he was touching her thighs that he asked her if she could feel pain, and that she responded to his questions.
13. As we earlier noted, Professor Brew's opinions set out in his reports are predicated on him being asked to assume Patient A's version of events is correct. In relation to the assertion that the practitioner slowly rubbed Patient A's left and right inner thighs Professor Brew opined: Rubbing the inner thighs may be possibly relevant to determine the nature of the pain radiation, but given the area involved the patient would have to be informed first and asked for permission.
14. Professor Brew was also asked to comment on the clinical justification for the examination conducted by the practitioner with reference to Patient A's presenting symptoms and the location of her pain. He responded as follows: Given the description of [Patient A's] pain provided by her, it would be reasonable for a competent neurologist to examine the area, namely that involved with the C-section and thighs. She stated that the pain was not just in the area at either end of the C-section scar but that it also involved the thighs. However, as noted above, the examination of such an area would require express permission from the patient and there would have to be definite preservation of modesty by the appropriate use of a towel.
15. Professor Brew in his oral evidence opined that a sensory examination of the thighs over clothing would be less than satisfactory, but agreed it could be called a perfunctory examination. Dr Darvenzia did not cover this aspect of his evidence in his report. However, in his oral evidence he said was in broad agreement with Professor Brew and that an examination conducted over the jeggings would be a cursory one.
16. We have had careful regard to both the transcript of Patient A's evidence in the first proceedings, and her evidence before us and particularly to the more contemporaneous documents in Exhibit B. We have balanced Patient A's very prompt reporting of the practitioner's asserted conduct to her sister, the solicitors, her general practitioner and the HCCC with the content of her statements, and the practitioner's evidence.
17. Patient A did not present as a sophisticated witness, albeit we had some constraints in examining her demeanour via the AVL facility. At times she engaged with senior counsel for the practitioner in a combative manner. We do not, however, accept the submissions made on behalf of the practitioner that she deliberately refused to continue her cross-examination because she knew her credit was likely to be impeached. We are satisfied that, understandably, having been subject to cross-examination in the first proceedings, she was reluctant to be further involved in these proceedings.
18. Patient A has a long and unfortunate history of abuse and mental health diagnoses. On her own evidence, she was nervous immediately prior to her consultation with the practitioner. We are satisfied that, in her nervous state, and without an explanation by the practitioner that he would touch her thighs, that Patient A has misinterpreted his actions and in reconstructing events has embellished those events to have a sexualised context.
19. We found, as particularised above, discrepancies in her evidence about the consultation and in particular her description to the lawyers on 8 December 2016 of the practitioner being flirtatious, and her very different evidence in her statements and before us that the practitioner's behaviour was normal up to and during the examination of her c-section scar.
20. We note that Patient A agreed in cross-examination that she had demonstrated to the practitioner where she felt pain as being the front of her legs and her outer thighs (transcript 10.12.2018 p 65). We are satisfied that she was in a stressed state prior to the consultation, did not receive a full or adequate explanation of the type of examination the practitioner would conduct, did not receive an explanation for her perceived pain, and left the consultation in a distressed state. Patient A referred to the practitioner's questions which he posed to her to obtain a social history when he suspected a somatoform conditions, as inappropriate questions. These factors, may have contributed to her perceptions of the consultation being improper and sexual in nature.
21. By contrast, although the practitioner's early responses to the HCCC and to the preparation of his documents for the first hearing were inadequate, we generally found him to be a credible witness. Although we note it is not part of the particulars of the complaint, that we agree with both Professor Brew and Dr Darveniza that the examination of Patient A's thighs was perfunctory or cursory. The practitioner ultimately made an appropriate concession that he should not have provided his mobile telephone number to Patient A regardless of his motive for doing so in the first place.
22. In summary, for the reasons set out above, we could not be satisfied to the requisite standard that the particulars (b) (c) (d) and (e) are established.

Particular 2. 2. On 1 December 2015 the Practitioner engaged in an inappropriate sexual act in the presence of Patient A in that he masturbated under the desk whilst speaking with her.

1. Patient A's evidence, at its highest, is that the practitioner may have been masturbating when sitting at his desk after he had examined her.
2. Patient A in her cross-examination agreed that the practitioner had written notes during the consultation. She agreed she did not see the practitioner unzip or unbutton his trousers. At the first hearing, Patient A denied seeing the practitioner writing notes, although she conceded she had said her in her statement that she did not want to see what he was doing and she had looked away.
3. The practitioner denies masturbating. His evidence is that when he returned to his desk after examining Patient A that, using a fountain pen, he used his right hand to record he answers to questions he posed. He agreed in cross-examination that all the details about the patient's answers are not all fully set out in his handwritten notes although many are recorded in his reporting letter to the general practitioner. There is evidence that he currently has a diagnosis of Parkinson's disease and has a tremor in his left hand. However, it is not established that his tremor was in evidence in 2015.
4. We find that Patient A's evidence on this topic is unreliable. She did not look at the practitioner, and she was unable to see below the desk. We are not satisfied that this particular is established to the requisite standard. We find the practitioner's denials credible and cogent.

Particular 3 3. On 1 December 2015 the Practitioner asked Patient A questions concerning her personal life whilst masturbating under the desk.

1. We find that the practitioner did ask Patient A questions about her partner, her occupation, living arrangements, and alcohol consumption and smoking habits. He discussed with her the TAFE course she was undertaking. We accept that the former questions were designed to elicit a social history relevant to whether the patient's pain was psychosomatic particularly having regard to the negative results of the nerve conduction studies. However, we are not satisfied that these questions were posed when the practitioner was masturbating. We accept the practitioner's evidence that at the relevant time he was making a hand written recording of the patient's answers to his questions. We accept that he may have been tapping his left foot while writing.

Particular 4. 4. On 1 December 2015 the Practitioner failed to observe appropriate professional boundaries in that he wrote his mobile phone number on a piece of paper, gave it to Patient A, and asked her to contact him if she developed a mobile phone application or "app".

1. The practitioner concedes that he provided his mobile telephone number to the patient. However, in his Reply the practitioner does not concede his behaviour was significantly below the expected standard of a practitioner of his experience and expertise. In his statement at para 78 the practitioner records the fact that Patient A's mobile phone number was in the clinical records, and if he had wanted to maintain social contact with her he could have accessed her phone number from the records.
2. The practitioner provided an explanation that, until this complaint, he had provided his mobile number to a number of patients to encourage them to contact him by text if they came from his cultural background or for medical reasons. He said he had requested Patient A only to contact him by text so other patients would not be disturbed during a consultation, and so there would be a record of the communication and why he needed to call back.
3. It is not in dispute that the practitioner gave his mobile telephone number to Patient A and invited her to text him if she developed an app. The practitioner said he had a practice of providing his mobile phone number to patients for social reasons.
4. It was asserted on behalf of the practitioner that if his motive had been sexual or to have an ongoing relationship with Patient A, he could have accessed her mobile phone number from her clinical records. There is merit in that submission. The practitioner now accepts that his prior practice is not appropriate.
5. It is the practitioner's evidence that since this complaint he has not provided his mobile telephone number to any patient.
6. In his report, Dr Darveniza explained: In general, I rarely give my mobile phone number to patients. If information is urgently required by a patient about results of an investigation or direction about management I obtain their mobile number and ring them.
7. Later in his report Dr Darveniza said: Having said that I do know from speaking to a number of colleagues over the years some do give their mobile number to patients as a matter of service. Personally I think that this is unwise and open to occasional abuse. It is noted that the use of such a mobile number should be very restricted to medical matters only and not provide contact for purposes such as "apps" or anything else.
8. Dr Darveniza opined that the practitioner's conduct in providing his mobile phone number to the patient was inappropriate. We agree with the matters and opinions set out in Dr Darveniza's report. He is critical of the practitioner's conduct which attracted his moderate criticism.
9. In his supplementary report, Professor Brew described the practitioner's conduct in providing his mobile telephone number to Patient A as below the standard, but not significantly below the standard.
10. We agree with the opinions expressed by both Dr Darveniza and Professor Brew that the practitioner's conduct in providing his mobile telephone number lacked prudence. It was not provided for a medical reason. However, we are not satisfied that the conduct was significantly below the standard such as to constitute unsatisfactory professional conduct as defined in s 138 (1) (a).
11. We turn then to consider whether the conduct was "improper" under s 138 (1) (l). We note that neither expert was asked to comment on whether the practitioner's behaviour in providing his mobile telephone to Patient A constituted improper conduct as set out in s 138 (1) (l) of the National Law.
12. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190 the Tribunal discussed the words "improper" and "unethical". The Tribunal said at [30]-[31]: The words "improper" and "unethical" are not defined in the National Law but have been considered in a number of Tribunal decisions. The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B (1) (l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession".
13. We are satisfied that the practitioner's conduct in providing his mobile phone number to Patient A constituted abnormal or irregular conduct in the practice of medicine. We contrast this with the situation where a mobile telephone number is provided by a practitioner for a legitimate medical reason. Accordingly, we are satisfied that particular 4 is established and the practitioner's conduct can be classified as unsatisfactory professional conduct.

Conclusions - summary

1. In concluding our findings we turn to the questions posed at the commencement of these reasons.

The reliability of Patient A's version of events. This requires assessment of:

Has Patient A's reporting of the complaint been broadly consistent?

1. We did not find Patient A's reporting of the complaint to have been broadly consistent as set out earlier in these reasons.

The timing of the reporting of the complaint, and the persons to whom the complaint was made.

1. We accept there was no undue delay by Patient A in telling her sister about her complaint, and that she followed her sister's advice to contact a lawyer. She also made a report to her general practitioner and the HCCC.

The veracity and reliability of Patient A's evidence. This requires consideration of whether, by reason of her mental health diagnoses, her complaint is reliable. It also requires consideration of whether her evidence is deliberately false (as asserted by the practitioner's senior counsel in his submissions) or whether she has unconsciously or mistakenly misinterpreted the practitioner's actions.

1. We did not find Patient A's evidence to be deliberately false. However, her vulnerabilities and her mental health history make it likely that, without a detailed explanation by the practitioner of his proposed examination. she has unconsciously or mistakenly misinterpreted the practitioner's clinical examination, particularly his touching of her thighs.

Our assessment of Patient A's demeanour when giving evidence by AVL.

1. Patient A presented at times as a combative witness. We accept the submission made by the HCCC that Patient A did not make herself available for cross-examination on the second day of the hearing for broadly similar reasons to those set out by the tribunal in HCCC v Kingston [2018] NSWCATOD 28 at [43]. There the Tribunal said: We agree in part with this submission, for the reasons the respondent gives. There is absolutely no explanation from the applicant, nor could there have been, for the witness's failure to appear on the second day when he was to be cross examined and must have known it. We do not however agree that the witness must have known that his further evidence would not assist "his case". It is by no means a mere technical matter that the proceedings here have been brought by the applicant itself, not by patient A. It is more correct to say, we think, that he must have known that his evidence-in-chief would likely be undermined in significant respects by cross-examination, and chose not to take that risk by his failure to attend. However he was clearly distressed by cross-examination on day one and our impression was that he did not subject himself to further cross-examination on day 2, so as to avoid further distress. We think this was the main reason, rather than it being a purely rational decision to avoid having his evidence undermined.

The weight to be given to Patient A's evidence in earlier proceedings.

1. While it was submitted on behalf of the practitioner we should give little or no weight to the evidence in the first proceedings as these proceedings are being heard "afresh", we observe that the transcript of parts of the earlier proceedings were tendered before us without objection. As we are able to inform ourselves as we see fit (see Schedule 5D cl 2) and we do not discern any procedural unfairness to the practitioner who was well aware of the evidence in the transcript, and provided a much more comprehensive statement in these proceedings than his evidence in the first proceedings in us having regard to Patient A's evidence.

The reliability of the practitioner's version of events. This requires assessment of:

The nature of Patient A's complaints and the appropriateness of the type of examination conducted by the practitioner. Relevant to this aspect of the practitioner's evidence is our assessment of the expert evidence.

1. We have made findings accepting the evidence of both Professor Brew and Dr Darveniza that the practitioner's examination was unfortunately perfunctory. Although not particularised and unnecessary for us to determine, we nevertheless consider that Patient A did not receive a full and proper explanation about the type of examination the practitioner would conduct, and in particularly his soft touching of both her thighs.

The practitioner's reporting to Patient A's general practitioner.

1. We find that the practitioner's assessment of the patient and his diagnosis was undoubtedly correct. We note that the errors in his reporting letter dictated using auto-cues and not corrected before dispatch to the general practitioner are not part of the complaint before us.

The practitioner's response to the complaint when raised with him by the HCCC in January 2016.

1. The practitioner's response to the HCCC was less than adequate. However, we accept he was genuine in his evidence when he said he had overlooked the question relating to the touching of Patient A's thighs in his narrative response denying her allegations which were directed to conduct of a sexual nature.

The practitioner's version of events as set out in his two statements.

1. As noted above, the practitioner's statement before us is detailed and far more extensive than the statement before the first Tribunal. However, notwithstanding the very careful list of matters referred to in the HCCC's submissions we were not satisfied those matters diminished the overall thrust of the practitioner's evidence.

Our assessment of the practitioner's demeanour when giving evidence at the hearing.

1. We found the practitioner's initial response to the complaint when raised by the Medical Board of shock, disbelief and denial of the assertions was consistently maintained throughout his evidence. He was subject to an intense and thorough cross-examination by Mr Britt for the HCCC, but overall we generally found him to be an honest witness who made candid admissions before us including revealing his diagnosis of Parkinson's disease, and his imprudent conduct in self treating his condition.

Professional misconduct

1. As we have not found the particulars of Complaint 1 established, other than particular 4, it follows that we are not satisfied that the practitioner's conduct is of sufficiently serious nature to warrant his suspension or cancellation of his registration, and professional misconduct is not established.

Future hearing of this matter

1. As noted at the commencement of these reasons, the parties requested the matter be heard in two stages. We accept that the parties will wish to make submissions as to any protective orders the Tribunal should make and as to costs.
2. To that end, this matter will be listed for directions on 16 August 2019 at 9.30a.m. to consider whether the matter can be completed "on the papers" or for the fixing of a hearing date to complete the matter.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 July 2019