Health Care Complaints Commission v Hanna - [2017] NSWCATOD 165 - NSWCATOD 2017 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Hanna

[2017] NSWCATOD 165

NCAT Occupational|2017-10-19|Before: Dr J

View original source

At a glance

Source facts

Court

NCAT Occupational

Decision date

2017-10-19

Before

Dr J

Catchwords

[1938] HCA 34 Clyne v NSW Bar Association (1960) 104 CLR 186

Source

Original judgment source is linked above.

Catchwords

[1938] HCA 34 Clyne v NSW Bar Association (1960) 104 CLR 186

Judgment (24 paragraphs)

[1]

Background

We were provided with a very extensive chronology prepared by the practitioner's solicitors. No challenge was made by the HCCC to the accuracy of the chronology and we accept as factually accurate that document.
Given the differences between Patient A's statements and her sworn oral evidence and that of the practitioner it is useful that we set out some of the background material as it provides a context for assessing the evidence of each witness. We pause to note however, that while we were provided with a log of all telephone calls from the practitioner's mobile phone and that of Patient A, not all text messages could be retrieved from the practitioner's phone. Nor it appears were photographs taken of all texts received from Patient A on the practitioner's Nokia phone from June 2014. This was because the unchallenged evidence of the expert who examined the practitioner's Nokia mobile phone opined it lacked sufficient storage capacity resulting in some messages being deleted. Further, although a schedule was prepared by the practitioner's solicitors (and admitted into evidence without objection) of the content of the majority of 137 text messages received from Patient A the date and timing of the receipt of the vast majority of texts was not established. Finally, some texts were deleted from Patient A's phone. Although her phone was provided to an employee of the HCCC who took photographs of text messages, it was not submitted for forensic examination and possible retrieval of messages as was the practitioner's phone. This made making findings and drawing inferences relying on text messages difficult. Young J writing extra-judicially (see Fact Finding made Easy (2006) 80 ALJ 454) quoted from the judgment of Lord Pearce in Onassis v Vergottis [1968] 2 Ll.Rep 403 at 431. There his Lordship discussed the issue of credibility. We have borne his Lordship's discussion in mind when determining credit issues in this matter. His Lordship said: "Credibility" involves wider problems than mere "demeanour" which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly, and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or overmuch discussion with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination more active. For that reason, a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point, it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability.

[3]

Counsel's submissions

The principal issue in dispute in this matter was one of credit of Patient A and the practitioner. Ms R Mathur (Ms Mathur), counsel for the HCCC, asserted Patient A was a credible witness, and her complaint of sexually non-consensual conduct by the practitioner was supported by her subsequent report to her general practitioner and the NSW Police.
Ms Mathur submitted that it would be entirely consistent with the nature of the relationship between the practitioner and Patient A to infer that the developing relationship from coffee meetings meant that they would want to prolong their meetings. Accordingly, she submitted that we should be satisfied that the practitioner asked Patient A in about June to make appointments at 4.45pm. She further submitted that we should find the practitioner touched Patient A's breast and this happened naturally as part of their intimate relationship.
She further submitted that it would be unremarkable for a man in the situation of the practitioner and Patient A to have an erection. We accept that although the practitioner reported having a low libido to his treating specialist this does not exclude the fact he may have had an erection.
Ms Mathur referred to the "cooling off" in the relationship between the practitioner and Patient A after August from the tone of the text messages, and submitted that "the warmth and love has gone". She submitted that this caused Patient A to feel used and led to her report to the Police.
Mr Griffin asserted that Patient A's version of disputed events should not be believed because her evidence was unreliable and that she had a history of being untruthful. In support of this submission he relied on Patient A's evidence about prior motor vehicle accidents being inconsistent with her medical records. He also submitted we should have concerns about the veracity of the complaint because of Patient A's delay in reporting the conduct, particularly in circumstances where she regularly saw a psychologist at the Campbelltown Community Health Centre but made no report to the psychologist.
Mr Griffin directed our attention to Patient A's statement that, as a result of the practitioner's actions, she had lost trust in male doctors and would be unable to consult male doctors in the future. He pointed out that Patient A's more recent medical records disclose attendances on male general practitioners in the general practice.
Three motives were advanced by Mr Griffin for Patient A's sexual assault claims against the practitioner: 1. resentment towards him for the distress she suffered as a result of the way her treated her; 2. his refusal to provide her with a report to support her motor vehicle claim; or 3. monetary compensation.
Mr Griffin directed our attention to the practitioner's concessions relating to his inappropriate conduct in engaging in a romantic relationship with Patient A while maintaining his therapeutic relationship with her, his otherwise good character and the esteem with which he is regarded in the medical profession as evidenced by his referees. He submitted that the practitioner should be believed on his oath.

[6]

Relevant law and principles

The definitions of unsatisfactory professional conduct and professional misconduct are set out respectively in s 138B and s 139E of the Health Practitioner Regulation National Law (the National Law). In this case the HCCC brings its claim under s 138B (1) (a) and (l) and s 139E. Section 138B (1) (a) and (l) are as follows: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-- (a) 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) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E is as follows: 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.
The purpose of orders made at the conclusion of disciplinary proceedings is to protect the public (see Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40). The importance of protection of the public is enshrined in the objects provisions of the National Law (see s3 and s 3A). Section 3A, a New South Wales provision, is in the following terms: 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.
It is not in dispute that the HCCC bears the onus of proof of the complaints. The standard of proof is to the level of satisfaction described in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66). Given the nature of the contested evidence in this matter it is useful we set out the seminal statements from Briginshaw. The facts for determination in Briginshaw were whether or not a party had committed adultery (being one of the necessary grounds to establish the parties' marriage could be dissolved). At the time of the decision the question of establishment of a ground for separation was a matter of considerable significance as the necessary finding would involve a change in a person's status. Rich J said: The phrase "satisfy itself, so far as it reasonably can" obviously reflects the influence of the common expression "reasonable satisfaction." In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. But to say this is not to lay it down as a matter of law that such complete and absolute certainty must be reached as is ordinarily described in a criminal charge as "satisfaction beyond reasonable doubt." A petition for dissolution of marriage is not quasi-criminal, whatever the grounds (Mordaunt v. Moncreiffe[24]; Branford v. Branford[25]; Sims v. Sims[26]; Tickner v. Tickner [No. 2]
Dixon J explained: 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
We are conscious that the standard of proof does not involve a third standard. Given the serious nature of the matters in issue in these proceedings we were conscious of the need to reach a level of reasonable satisfaction on the disputed particulars particularly those asserting unwanted sexual conduct by the practitioner.

[7]

Patient A's statement oral evidence and supporting documentation.

Although it will be necessary for us to revisit in our discussion of the identified sub-issues parts of the contested evidence, we think it "sets the scene" if we first record or summarise the important parts of the contested evidence.
Patient A said she first discussed her reporting of the practitioner's asserted improper sexualised conduct in grabbing her vagina outside her clothes with her sister. The first record of a report of Patient A's relationship with the practitioner occurred on 23 February 2015 when her complaint is recorded in her general practitioner's notes as "been stressed upset as she was exposed to sexual harassment by [the practitioner]."
After her report to her general practitioner, Patient A attended Macquarie Fields Police Station and a typed report was prepared which she signed (the Police report). At [8] of her HCCC statement Patient A says she began receiving calls on her mobile from the practitioner and that "after a while he would text me and ask me to come and visit him at the clinic after hours so we could have coffee". At [9] Patient A states that she and the practitioner "kissed a few times after coffee very briefly. He would try and kiss me very passionately and I would always try and push him back as I was happy for just a little kiss". At [12] Patient A recites seeing the practitioner in September 2014 at Liverpool. She says "When it was time to leave I stood up and shook his hand. He then placed one of his hands between my legs and held it there for a moment. His hand was on the outside of my pants up against my vagina. I pushed his hands away and moved back. I said 'No, you're gonna make me upset'. He didn't say anything". Patient A reports at [14] that she had gone back to the practitioner's rooms after hours "in September as well and confronted him". In this statement Patient A makes no mention of being touched on the breast by the practitioner, or being held against his body when he had an erection.
On 6 March 2015 Patient A's general practitioner recorded that she had "spoken to another soliceter [sic] today and advised her that she has a case". The general practitioner also recorded "explained to her that I need to do reporting she still refusing. Can't get to Dr D'Zousa the psychiatrist doesn't deal with legal matters".
On 11 March 2015 Patient A set out her history of her relationship with the practitioner in a hand written statement that was annexed to the formal complaint lodged with AHPRA by her general practitioner on 12 March 2015. In this statement Patient A refers to the practitioner asking her to come to the clinic after hours or to make a late appointment. She also refers to one incident where she says the practitioner tried to take off her shirt when they were kissing and that he pushed her towards him and she felt his erection, and that she was scared. She also records on one occasion he put his hand on her breast. She asserts the practitioner said "Do you wanna make me wait so long to see your breast". She says she responded saying "Who told you that I'm going to let you see my breast and I laughed". Patient A also refers to the practitioner touching her vagina during a consultation after she had undergone an MRI of her back. She records in this statement "he come close and hugged me and I hugged him back. I was standing up after we hugged. I was intending to leave the clinic and standing next to the door inside he suddenly put his hand on my virgina [sic] and squeezed". Patient A says she was so upset at the practitioner's behaviour that she subsequently went to see him at the clinic and asked him "what exactly do you want from me". She records the practitioner said "I don't want anything from you".
On 15 April 2015 Patient A was contacted by the police. She advised she did not wish to pursue a complaint against the practitioner. The police records (the COPS report) disclose that Patient A reported meeting the practitioner at his surgery about once a fortnight and "During these meeting they would consensually intimate kissing and hugging each other". The records further disclose "It became apparent to the victim [Patient A] that [the practitioner] was wanting a relationship with the victim which she did not want and attempted to distance herself by not attending or replying". In this statement Patient A is noted to have only made her report some six months after the incident (touching on the vagina) and "had only told her sister in France recently". The report concludes: In April 2015 [Patient A] was contacted by Detectives where she stated that she has sought further legal advice and states that she does not wish to continue pursuing the matter. Also at this time she acknowledged and believed that she had been in a relationship with [the practitioner]
On 1 July 2015 Patient A provided a statement to the HCCC (the HCCC statement). She records that the practitioner called her and asked to see her "not as a patient", and said he wanted to see her to have coffee. At [37] Patient A says that the practitioner told her to make an appointment on 22 May 2014 at 4.45pm "so nobody would be there". At [46] Patient A relates that, at the conclusion of her appointments, the receptionist was not always there when she left, or if she was there, the practitioner told her to leave, wait for the receptionist to leave and then come back. She reports waiting in her car on these occasions to 10 to 15 minutes and then going back into the clinic. In this statement Patient A repeats her allegation that the practitioner touched her breast and repeats the conversation set out in her handwritten statement provided to AHPRA.
In the same statement at [49]-[50] Patient A relates visiting the Campbelltown clinic she "thinks" around the end of June 2014 for a 4.45pm appointment. She says she waited in her car for about 15 minutes after which the practitioner called her and she parked in the car park behind the clinic. Patient A says that the practitioner opened the back door and hid behind the door. Patient A says that the practitioner asked her to sit on his lap which she did. She records: Then he put his arms around me and held me. I was playing with his shirt buttons. I opened up one button and I reached in and took out his necklace. The necklace has a cross and charm on it with his name. It said A+. I said "is it your blood group". He said it was a present. I re-buttoned his shirt. He said I "could open all the buttons".
At [51] Patient A said as she could feel the practitioner getting excited she got off his lap and sat on the opposite chair. At [52] she records that as she was leaving through the back of the clinic, where she observed files, the practitioner hugged and kissed her. She says he "lifted me up in the air and as he brought me back down to the ground, he did it very slowly so that my body was sliding against his. I could feel he had an erection". Patient A goes on to say the practitioner pulled up her shirt and rubbed the skin on her back. She asserts he said "you have a beautiful body and beautiful skin" and that after feeling the practitioner still had an erection she pulled her shirt down. The practitioner is asserted to have then said "you have a sexy body" to which she replied "I know". Patient A says she went to her car and was "really shocked by what had happened".
At [55] Patient A says the incident when she asserts the practitioner touched her vagina occurred on 25 August 2014 after she had kissed him on the cheek and said "I missed you".
Patient A goes on to record receiving further text messages from the practitioner and that he told her he would return to Australia on 2 October which was her birthday. On 2 October the practitioner sent her a birthday greeting by text and said that her present was ready for her.
At [60] Patient A says that her next appointment was on 29 October 2014 when she said to the practitioner "What do you want from me" and he replied "I don't want anything from you". She says she told him she was not looking for a sexual relationship. She records that the practitioner did not apologise or discuss "what he did to me" and that "He stared to say I 'used' him. I didn't respond".
Patient A records that after November 2014 she received text messages from the practitioner but she deleted them "as they were very personal".
At [69] the practitioner records being told by the police to contact the practitioner to "see if I could get him to admit what happened". She says she called him and he asked how she was and how was her family. Patient A records "I did not feel comfortable talking to him". Patient A finally records seeing the practitioner in February 2015 when she was referred to him following her motor vehicle accident. This consultation, she records, was a normal consultation.
In her oral evidence in answers posed in cross-examination Patient A said she told her sister about the incident when she asserts the practitioner had held her against him when he had an erection about 2 weeks after the incident and that her sister had been shocked.
Patient A denied she had ever told the practitioner that she loved him, although she admitted she had "feelings" for him. She did not concede she had three motor vehicle accidents. She attributed an accident on 3 May 2011 to her ex-husband, and the second on 4 July 2014 to "maybe my daughter" but she said she was not really sure. Patient A denied she had made up allegations against the practitioner in order to sue him for compensation in the District Court.

[11]

Did the practitioner initially invite Patient A to have coffee with him?

The disputed particular is pleaded as follows: Particular 3 In March 2014 the practitioner failed to maintain appropriate professional boundaries in that he inappropriately contacted Patient A by telephone and asked to see her "not as a patient" and invited her to have coffee with him.
The corroborating objective evidence on this topic does not assist in determining this allegation. There is no record of the content of the practitioner and Patient A's telephone conversations or text messages in the early period of their relationship. Although the first telephone contact was initiated by Patient A, the next series of mobile calls are from the practitioner's mobile phone to Patient A. While this evidence gives some limited support to Patient A's statement that it was the practitioner who initially pursued her and who instigated their meeting for coffee the patient's own phone records disclose on a number of occasions in early March where she was the initiator of both telephone calls and text messages to the practitioner.
The practitioner denied using the words "not as a patient". While we do not find the practitioner's evidence in respect of the words said to be deliberately untruthful, we find it is likely that at least words imputing a similar meaning were said before the parties agreed to meet for coffee.
Ms Mathur submitted that accepting the practitioner's statement that he was attracted to Patient A during her February consultation with him, it is likely that he was the instigator of the coffee meeting.
Given the practitioner's concession that his conduct in contacting Patient A by telephone was inappropriate, we find he may have suggested a coffee meeting. We are satisfied that part of the particular is established. However, given our findings about the unreliability of much of Patient A's evidence, discussed below, we are not satisfied to the Briginshaw standard that this particular insofar as it attributes the precise words "Not as a patient" to the practitioner is established.

[13]

Did the practitioner ask Patient A to kiss him in his car at the beginning of May 2014.? Around the end of April/beginning of May 2014, the practitioner and Patient A met for coffee and following the coffee meeting, walked to the practitioner's car where he asked her to kiss him.

The practitioner disputes kissing Patient A in his car, but rather says he kissed her in her car and the kissing was mutual. In the COPS report Patient A describes engaging in "consensually mutual kissing and hugging each other" and that she and the practitioner engaged in tongue kissing.
The practitioner's initial statement dated 28 June 2016 was less than frank. He downplayed any physical contact between himself and Patient A referring to receiving a friendly hug from Patient A at a coffee meeting, and that she had kissed him once in a public place. While he referred to one kiss in Patient A's car he described the "gifts, hug and kiss (x2) as totally innocent".
Again the practitioner's statement of 8 August 2016 was less than honest. In that statement he described the relationship as "completely platonic".
In his statement dated 8 August 2017 (and filed after he was served with the HCCC's evidence) the practitioner explained at [39] he had found it hard to be truthful about his relationship with Patient A to himself and his family and that he had broken his own moral code. But he said "the false allegations about sexual touching made me angry and resentful and that clouded my ability to properly analyse my professional errors of which there are many". In an answer posed to him in cross-examination the practitioner conceded in his statement to the Medical Council he had not wanted to describe his kiss as an intimate kiss. We are satisfied that the practitioner was lonely, had been very unwell, that he found Patient A very physically attractive and he became infatuated with her. We find his early evidence on the nature of his relationship with Patient A was avoidant, minimised the true nature of their relationship and was inaccurate.
However we are not satisfied all the facts asserted in this particular are established. This is because we had regard to Patient A's conflicting evidence about the kissing between herself and the practitioner. In particular, we observe that the COPS report discloses that Patient A told detectives in that when she went to the practitioner's clinic in September 2014 to confront him about touching her on the vagina that, at that time ,"he asked politely for the first time if he could kiss her on the cheek, which she allowed" (our emphasis). We also have regard to the report in the same statement that the detectives record Patient A stating that in addition to meetings for coffee, she would come to the practitioner's surgery about once a fortnight where they engaged in "consensually intimate kissing and hugging each other".
We find the practitioner generally to be a more reliable historian than Patient A and that they first kissed in Patient A's car not his car. In reaching this finding we had regard to Patient's A clear confusion about dates and venues. We are not satisfied on the evidence that the practitioner asked Patient A to kiss him, but we accept they did engage in kissing then, and on other occasions, and the kissing was mutually desired and was intimate and passionate in nature. While this particular as pleaded is not proved, the findings we have made confirm the appropriateness of the practitioner's concession of both unsatisfactory professional conduct and professional misconduct. Our findings accord with the expert evidence of Professor John Watson.
By seeing the patient outside his clinic and engaging in a relationship involving passionate kissing and hugging while maintaining a therapeutic relationship with her, the practitioner knew well he was breaching the code of conduct. He puts his own very real needs for affection and gratification above the needs of a very vulnerable younger woman with complete disregard for the consequences of his action.

[14]

Around June 2014 did the practitioner ask Patient A to make future appointments at 4.45pm so that they could be alone in the practice? Particular 8 Around June 2014, the practitioner inappropriately asked Patient A to make future appointments at 4.45pm so that they could be alone in the practice

This particular is strenuously denied by the practitioner who maintains that his only contact with Patient A, other than scheduled appointments, text and phone contact, was coffee meetings at either of two named coffee shops or in his or Patient A's car. He asserts Patient A asked for 4.45pm appointments to coincide with her daughter being home from school. On behalf of the practitioner it is asserted that Patient A's stated reason for late appointments is corroborated by the timing of her appointments at the general practice. The vast majority of these appointments were late afternoon/early evening appointments.
Patient A asserts in her typed HCCC statement at [37] the practitioner told her to make an appointment with his receptionist at 4.45pm so that no-one would be there. However, at [41] she refers to meeting with the practitioner after this appointment, not in his clinic, but for coffee and then engaging in kissing in his car. Further, in her HCCC statement, Patient A does not refer to any meeting at the clinic after 4.45pm separately from a scheduled appointment.
In her initial Police Statement Patient A said: In between our coffee dates I would visit the clinic about once a fortnight and we would just talk and spend time together. At the end he would hug me and kiss me when saying goodbye. These kisses were open mouthed and I agreed to them as I thought he was a good man who cared about me.
At [12] Patient A refers to visiting the practitioner in September 2014. She states "On this occasion I visited him during the day instead of after hours" and then goes on to record being touched on the vagina. At [14] she refers to going "back to his clinic after hours in September as well and confronting him".
Patient A also says that after an appointment on 18 June 2014 she had to make another appointment and the practitioner asked her to make it at the end of the day. At [45] Patient A says when she saw the practitioner for appointment there would be a receptionist at the desk, but there was not always a receptionist when she left. She further says that if the receptionist was there she would go and sit in her car for 10 to 15 minutes and then go back in. Patient A does not specify whether the location was Campbelltown or Liverpool.
At [49] Patient A refers to seeing the practitioner for her 4.45pm appointment at Campbelltown. She goes on to say: After the receptionist left he called me on my mobile and asked me to park my car in the car park behind the Clinic. I went inside and asked him why he was hiding. He didn't say anything.
Patient A goes on to describe the room he led her out of as being "out the back of the Clinic" which "has all files".
In making findings about this particular we are assisted by independent records. We first record the undisputed records from both Campbelltown and Liverpool which disclose the dates and times of Patient A's consultations during the relevant period. They are as follows: 19 February 2014 11.00am Liverpool 22 May 2014 2.00pm Campbelltown *** 18 June 2014 5.00pm Liverpool 30 June 2014 5.00pm Liverpool ** 31 July 2014 2.30pm Campbelltown 18 August 2014 11.15am Liverpool * 25 August 2014 unknown Liverpool **** [The practitioner is overseas from 8 September 2014 to 2 October 2014] 13 October 2014 3.30pm Liverpool (failed to attend) 29 October 2014 10.15am Liverpool 9 November 2014 10.15am Liverpool 24 November 2014 3.00pm Liverpool

[15]

The appointment at which Patient A's MRI scan was discussed. ** Series of text messages re appointment 19 June 2014 Patient A sends text "Good Morning Dr. Thanks for BB [bulk billing] yesterday. Plz if us can describe any medication for me cz I'm in so much pain n if you can text it for me I'll let Dr [obliterated] prescript for me thank u" 19 June 2014 The practitioner texted Patient A "Tdo not worry about the money with pleasure if I 2n help we need to talk abovt the form to be filled in and what else we going to do I am in campbel room call me if v can2" 21 June 2014 the practitioner texted Patient A "Good morning I hope u ok and not in pain". 21 June 2014 Patient A texted the practitioner "Hi thank yuou for asking. Actually I just wake up I'm taking to much pain killer which makes sleep n [obliberated] s much pain n it's moving to my right side I don't know why I'm feeling so bad" 26 June 2014 the practitioner texted Patient A "Call her and ask her the patient at 4.45p.m. 21 June 2014 Patient A responded "ok". 27 June 2014 Patient A texted the practitioner "Hi sorry to bother you. Hope you ok today just wana let you know that I called Liverpool today but z receptionist didn't give me an appoint she said is fully booked" 28 June 2014 the Practitioner texted Patient A "Good morning sorry I was not able to see my messages yesterday on Monday I'll talk to my secretary ann she will call us for sure with pleasure 671n673 my mesrdi" 29 June 2014 Good morning could you plz call ann my secretary tomorrow after 9am to ten am to fix the booking have t nice day 6ss." *** Text and phone messages around 5pm appointment **** Appointment to obtain referral.

The only text message which was before us and which was transcribed relating to appointments at 4.45pm is the practitioner's text to Patient A on 26 June 2014 in which he said "Call her and asked the patient at 4.i45pm". The "her" is a reference to the practitioner's secretary.
An examination of the log of telephone calls and text messages does not reveal any telephone calls or messages on any appointment date around 5pm at Campbelltown except 22 May 2014. We accept on that afternoon the practitioner had a 6 second telephone call to Patient A's mobile number, that she sent a text to him at 4.33pm and thereafter they each texted each other at regular intervals minutes apart concluding with a text message from Patient A to the practitioner at 5.07pm. However, in her HCCC statement at [41] Patient A explains that she and the practitioner met for coffee after the appointment on 22 May 2014. The text and telephone messaging is consistent with the practitioner and Patient A arranging to meet for coffee rather than supporting an inference that a late appointment occurred at the practitioner's request on that occasion.
The practitioner had 11 consultations with Patient A in 2014. Discounting the consultation in February 2014 7 of the 11 appointments are much earlier in the day than 5pm. Further, other than the day of the appointment on 22 May 2014, there is not any record of a text message or messages or telephone calls between the practitioner and Patient A indicative of an arrangement to come to the practitioner's rooms later on those days.
The patient's assertion of the practitioner's suggestion of late appointments is, however corroborated by her description of the back room of the clinic at Campbelltown containing files. We also have some regard to a text sent by Patient A on an unknown date (21/137) in which she texted "Hi. I;m outside if you wanna talk I can now". This particular is based on the practitioner asking for late appointments after June 2014. Her evidence is, however, further corroborated by the fact two appointments after June occurred at 5pm and the practitioner's text message sent on 26 June 2014.
In reaching our findings on this particular we refer to our earlier observation that Ms Ford's evidence of the general practice of closing the rooms and setting the alarm at Campbelltown is not determinative of the issue as the two relevant appointments were at the Liverpool rooms.
Although we are unable to precisely date message 66/137 downloaded from the practitioner's phone it clearly indicates that, at the time that message was sent, an invitation to meet, if the practitioner had finished seeing patients, was instigated by Patient A not the practitioner. She said: "What time you finish I wanna come afternoon I'm so crazy I need you".
This particular as pleaded infers a motive to the practitioner for suggesting late appointments. We find that the practitioner did, at least on one occasion suggest a 4.45pm appointment as confirmed by his text message. Two inferences can be drawn from this evidence. Patient A's request for an appointment with the practitioner was made in circumstances where she had been told by his secretary that he was fully booked. In these circumstances it is plausible to infer the practitioner suggested Patient A should ask his receptionist for a 4.45pm appointment being an appointment at the end of his fully booked scheduled list. The second inference that may be drawn is that given the practitioner's admitted infatuation with Patient A his motive in suggesting a 4.45pm appointment in his text message, and the subsequent 5pm appointments at Liverpool were so he could see her for an extended period of time.
We observe however not all appointments after June 2014 were at 5pm. That fact however may be consistent with the practitioner's statement that by July 2014 when Patient A exhibited anxiety because of the rejection of her disability support pension claim by Centrelink he commenced having concerns about the relationship, that he was being used, and the relationship was having adverse impact on his health.
We found some support for the practitioner's reporting that Patient A asked for afternoon appointments when her daughter finished school in Patient A's general practice records. The vast majority of Patient A's appointments with her general practitioner occurred in the late afternoon/early evening.
We found the independent evidence supporting this particular to be equivocal. Ultimately, having regard to our more generalised credit findings discussed below, we were not satisfied this particular was established to the Briginshaw standard.

[16]

While in the practitioner's car following a coffee meeting did the practitioner "inappropriately" touch the top of Patient A's breast on the outside of her clothes? Particular 9 In June 2014 whilst in the car following a coffee meeting. the practitioner inappropriately touched the top of Patient A's breast on the outside of her clothing

Patient A, in her handwritten statement to AHPRA, asserts that the practitioner put his hand on her breast, but she took it away. She asserts the practitioner said "do you wanna make me wait so long to see your breast". She asserts she replied "Who told you that I am gonna let you see my breast" and that she then laughed. However in her signed Police Statement Patient A makes no mention of either being touched on the breast, or held against the practitioner when he had an erection.
While the practitioner admits intimate kissing with Patient A he vehemently disputes that he touched her breast.
The photographs taken from the practitioner's phone disclose Patient A sent sexually suggestive messages to the practitioner. Those messages were "I'm good in bed" (23/137) "Hmmm I'm so happy now. I wish us were here with me lying next to me"(55/137) and "I'm at a restaurant. Everyone look at I'm wearing black short actually very short black dress I look do sexy. I wish you can see me now" (66/137). "What time you finish I wanna come afternoon I'm so crazy I need you" (63/137) and "Big kiss I'll kiss it next time. I'll let you taste my kiss last time yours next time is mind Mwah good night buby" (70/137). If we were able to be satisfied of the date of these messages they may give context to an inference that some sexualised behaviour by the practitioner would have been welcomed, or at least not rejected, by Patient A as inappropriate. We are, however, satisfied that the vast majority of text messages sent by the practitioner to Patient A from June 2014 are of a very different tone to those of Patient A and are more consistent with his version of the nature of the relationship between them.
We are unable to accept Patient A's assertion that the practitioner deliberately touched her on the breast. She does not mention this conduct in her signed Police Statement made immediately after she made the complaint to her general practitioner, nor does she mention in that statement being held by the practitioner when he had an erection. We do not discount that there may have been some brief touching of Patient A when the practitioner leaned over in the car to kiss her but are not satisfied this particular of "inappropriate touching" is established to the Briginshaw standard.

[17]

On 30 June 2014 at Campbelltown did the practitioner ask Patient A to sit on his lap, did he rub and hold her hand, kiss and hug her as she attempted to leave and lift her up in the air and press his erection against Patient A as he slowly brought her back down to the ground?. Following a consultation on 30 June 2014 the practitioner: (a) asked Patient A to sit on his lap; (b) held and rubbed Patient A's hand (c) kissed and hugged Patient A as she attempted to leave (d) lifted Patient A up in the air and pressed his erection against Patient A as he slowing brought her back down to the ground.

Patient A's handwritten statement annexed to her general practitioner's complaint refers to the practitioner on one occasion trying to take off her shirt when they were kissing and hugging and telling her she had a beautiful body and skin and that "he pushed towards him with horney, when I felt like he was that excited I scared and I left the clinic because when he pushed towards him he let me feel his organs and tried to swipe it on me it was so scary and like aggressive."
In her HCCC statement Patient A refers to meeting for coffee again after the appointment on 22 May 2014 and engaging in kissing in the practitioner's car. In light of that evidence, and the replies provided to the practitioner's solicitors it is clear the pleaded incident did not happen on 30 June 2014 when Patient A's appointment was a Campbelltown nor on 22 May 2014 when they met for coffee and engaged in kissing outside the clinic in a car.
Patient A goes on to describe an incident at the Campbelltown clinic towards the end of June 2014 when she had a 4.45pm appointment. We pause to note no appointment occurred at Campbelltown at 4.45pm on any occasion. She describes sitting on the practitioner's lap and playing with a necklace which has a cross and charm which has his name and blood group on it. She again describes hugging and kissing and being lifted up.
In her handwritten statement faxed to the HCCC at page 5 Patient A refers to coming to the clinic and the practitioner hiding behind the door. She does not however in this statement refer to sitting on the practitioner's lap or him touching up against her. Nor does she mention this incident in her signed Police Statement.
Two matters provide some corroboration to Patient A's statement about what occurred at Campbelltown, albeit not on 30 June 2014. First, the practitioner conceded in cross-examination that he has a cross and charm with his name and blood group on it which he always wears. Secondly, and the patient's description of files at the back of the Campbelltown clinic accords with the photo of the premises in evidence before us.
While we accept it is probable that on some occasion Patient A sat on the practitioner's lap, unbuttoned his shirt buttons, played with his cross and chain and that the practitioner could have had an erection which she felt when they hugged, that conduct did not occur at Campbelltown on 30 June 2014.
We gave weight to the fact that if the conduct described in particular 10 (d) was uninvited or non-consensual conduct it was an event of potential significance. In those circumstances it is highly unlikely that Patient A would not have reported this to the Police on 2 March 2015 or referred to it in her handwritten statement provided to the HCCC on 30 June 2015. While not diminishing in any way the wrongfulness of the practitioner engaging at all in this relationship with a vulnerable patient, we are unable to find that the pressing his erection against Patient A as described in particular 10 (d) is established.
Finally, and of more significance no appointment occurred on 30 June 2014 at Campbelltown and the appointment on 22 May was followed not by a visit by the patient to the practitioner's rooms but a coffee meeting. We are not satisfied this particular is established in full, although we accept that the conduct described in particulars (a), (b) and (c) did occur at some point in the relationship.

[18]

Around 18 August 2014 did the practitioner during a consultation, and after Patient A kissed him on the cheek as she was leaving touch her vagina through her clothing and squeeze it? Particular 11 Around 18 August 2014, during a consultation, Patient A kissed the practitioner on the cheek and as Patient A was leaving, the practitioner touched Patient A's vagina through her clothing and squeezed it

Patient A refers to this incident in each of her statements. In her typed HCCC statement Patient A says the touching occurred at a consultation of 25 August 2014 when the practitioner was looking at her MRI results. She described kissing the practitioner on the cheek at the end of her consultation, telling him that she missed him and that he then touched between the legs over her clothing and squeezed her vagina. In her Police statement, Patient A says she went to see the practitioner in September 2014, that she had not seen him for three or four weeks and that "We spoke a bit on the MRI on my back". She then reports "When it was time to leave I stood up and shook his hand. He then placed one of his hands between my legs for a moment. His hand was on the outside of my pants up against my vagina. I pushed his hand away and moved back". She does not report kissing and hugging the practitioner or any squeezing of her genital area.
At [14] of the Police Statement, Patient A states she went back to the practitioner's clinic "after hours" in September 2014 and "confronted him". She says she said "What do you want from me?" and the practitioner replied "I don't want anything from you". Patient A reports she then said "I don't want a sexual relationship with you" and the practitioner replied "I don't want that either women are hard to understand".
The practitioner's records disclose that he saw Patient A on 31 July 2014 and did not see her again until 18 August 2014 when he reviewed her MRI results. He again saw Patient A on 25 August 2014. His report to her general practitioner of that date makes no mention of discussing MRI results. The practitioner concedes that Patient A kissed and hugged him at the conclusion of her appointment on 18 August 2014.
We find that Patient A's statement that the touching incident occurred during a consultation when her MRI results were discussed, and the fact she had not seen the practitioner for several weeks makes it probable that the appointment occurred on 18 August 2014 not 25 August 2014. On the latter occasion Patient A's text messages indicate that she was seeking a referral for ultrasound examination because of her severe back pain. While we are conscious that we do not have a transcription of all the text messages those messages which are available do not suggest any distress exhibited by Patient A after 18 August 2014. On 22 August 2014 she sent the practitioner a text saying "Good morning", and later that day texted "How are you. Busy Yeh". She again contacted the practitioner on 23 August 2014 asking "Hi how r u in this depression weather". Those messages which we do have transcribed are not suggestive of the distress Patient A reports after the asserted incident.
Even if we are wrong about the consultation date and the asserted incident is said to have occurred at the consultation on 25 August 2014 Patient A's text messages of 1 September and 3 September 2014 do not support her assertion of distress at the practitioner's behaviour. In the former text she said "Thanks for ur permission n for everything. Have a good day". In the latter text she said "Okay. 10.30 I'd like to have a coffee with you if u like. If u busy just let me know". We find these messages from Patient A are inconsistent with her stated reaction to the conduct she asserts the practitioner perpetrated on her.
We further note that in the COPS report Patient A says that she had only told her sister about the practitioner touching her vagina recently. However in her oral evidence Patient A claimed that she had told her sister about the practitioner having an erection and rubbing against her some two weeks after that occurred and that her sister had been shocked. She also referred to telling her sister about the second incident and that her sister was shocked. We found Patient A's evidence that she told her sister about the practitioner's conduct earlier than that recorded in the COPS statement to be unreliable.
Having regard to our findings about the unreliability of Patient A's evidence discussed later in these reasons, and our conclusions about her later text messages to the practitioner, we find the particular is proved as to the date of the consultation, the kissing and hugging but not the touching and squeezing of Patient A's vagina.

[20]

Is Patient A's evidence unreliable given her mistakes about dates and venues, when assessed in the light of administrative and medical records?

It is convenient we deal with the two identified issues which both go to the reliability of Patient A's evidence together.
Before us Patient A was crossed examined about her involvement in three motor vehicle accidents. She conceded she had withdrawn a claim instigated on her behalf arising out of an accident on 4 December 2014. When she was questioned about two previous motor vehicle accidents (3 May 2011 and 4 July 2014) she attributed claims being confused because of the insurance being shared between herself and her ex-husband who had a car accident and "maybe my daughter" but said she was not really sure.
The general practitioner's records make it clear that Patient A was the driver on 4 July 2014 as the records refer to her not hitting the steering wheel. We found Patient A's evidence about the motor vehicle accidents at best unreliable, or potentially untruthful.
We have also taken into account that, notwithstanding throughout the relevant period Patient A was consulting a psychologist at the Campbelltown Community Centre Mental Health Service, at no time did she make any complaint about inappropriate sexualised behaviour by the practitioner particularly after her asserted distress as a result of the incident of touching and squeezing her vagina. She attended this service on 29 August 2014. Of even more significance is the fact she saw her trusted female general practitioner on 21 August 2014. At the consultation with her general practitioner Patient A reported pain and distress at rejection of her Centrelink claim, but made no mention of a sexual assault.
We have already discussed the unreliability of Patient A's recollection of dates on which she asserts various events occurred, in particular, uninvited sexualised touching by the practitioner. We take into account that these events happened three years ago and that in those circumstances she cannot be expected to accurately recollect specific dates, and that some confusion is understandable albeit her statements were made closer in time to the disputed events. We have also considered in assessing the conflicting evidence the power imbalance between the practitioner and Patient A. We are also cognisant of the difficulties for a victim inherent in the presentation of or recounting of an historical sexual abuse claim. But in these professional disciplinary proceedings we are bound to make findings in terms of the complaints and particulars of them having regard to the serious consequences if found proved. We cannot rely on inexact proofs and must reach a reasonable level of satisfaction.
In this particular case, we accept Patient A's distress is genuine. We make this finding because of our observations of her demeanour in the witness box. We find regardless of whether or not Particulars 8, 9 and 10 are established in full or part, the practitioner's actions in engaging in the close, intimate relationship with Patient A has had an adverse emotional impact on her.
We have gained some assistance in considering the allegations when they are assessed in the light of those text messages available to us. We find the text messages exchanged between the practitioner and Patient A up to late August 2014 have an affectionate tone that is inconsistent with unwanted sexual behaviour by the practitioner perpetrated on Patient A. Although we are unable to ascribe a precise date to the messages from Patient A to the practitioner photographed from his mobile phone, a number of Patient A's text messages to the practitioner contain sexual innuendo, a characteristic not replicated in the practitioner's transcribed text messages. We have however not placed as much weight on these messages as might have been the case had we had the totality of the messages passing between the parties on known dates.
We were unable to accept as truthful Patient A's evidence about at least one previous motor vehicle accident. As we have noted above in respect of the majority of the disputed particulars, we were not satisfied in the sense described by Dixon J in Briginshaw that the particulars are established.
Mr Griffin also directed our attention to Patient A's statement that, as a result of the practitioner's actions she had lost trust in male doctors and would be unable to consult male doctors in the future. He pointed out that Patient A's more recent medical records disclose attendances on male general practitioners in the general practice.
We note that in one of her handwritten statements Patient A says "I have no trust in anyone anymore and I prefer to go to a woman doctor not a male anymore". In her handwritten statement provided to the HCCC Patient A said "[the practitioner] left me with no trust and no confidence in any male doctor anymore". We accept that Patient A has, contrary to her expressions of intent made in about 2015, consulted male general practitioners in 2016 (Dr Michael Guirguis, Dr Daniel Cheong and Dr Saad Saleh). We accept these attendances are inconsistent with Patient A's statements and diminish her credit.
We also find that Patient A was likely to have embellished her claims because of her emotional distress that the ongoing relationship with the practitioner with him providing reports for her was terminated by him. In making this finding we have relied on Patient A's general practitioner's notes of 23 February 2015 which recorded "he left her".

[22]

Discussion and conclusions

As noted in our discussion of the contested particulars above, this was not a matter where it was possible to make broad credit findings accepting the totality of the evidence of either Patient A or the practitioner.
As we noted at the commencement of these reasons, although we had comprehensive records of the date and times that text messages and phone calls were exchanged between the parties, we did not have: 1. all the messages from Patient A's mobile phone (this was clearly demonstrated from the messages sent by her to the practitioner and photocopied on his behalf but not appearing in the photocopies of text messages provided by the HCCC); 2. the ability to identify with precision the date and time the messages sent from Patient A's mobile to the practitioner and listed by his solicitor in a Schedule provided to the forensic phone examiner.
As a result, we had to treat the phone records with caution and not, in many instances, as corroborating evidence of asserted behaviour. However, as earlier noted, we found the general tone of the text messages from the practitioner to Patient A demonstrated a caring affectionate tone indicative of his evidence that he was infatuated with Patient A and wished to assist her, at least initially, with reports for Centrelink whereas a number of Patient A's text messages carried sexual innuendo. We found the extrinsic evidence that was available to us in the form of the phone messages gave more support to the practitioner's version of disputed events than did Patient A's version.
The practitioner recounts in his statement of 8 August 2017 he felt obligated to assist Patient A when she was extremely distressed when her application for a disability support pension was rejected in July 2014, and that from his perspective the romantic side of the relationship was cooling off by September 2014 and his health was impacted. He refers to selfishly not wanting to end the relationship in an abrupt way in order to protect himself. He also refers to Patient A seeking his assistance to get "some form of social security" in October 2014 when she told him that she had relationship problems with her husband and that he had left the house. We observe that Patient A's reporting to the practitioner appears inconsistent with her general practitioner's record that on 5 November 2014 she was conveyed to hospital "with her partner" but we make no findings adverse to Patient A on the topic of her separation.
The practitioner goes on to explain that he sent a text message to Patient A on 11 December 2014 because he was asking her "why she was dismissing me after all the help I provided". He acknowledges this conduct was selfish.
The practitioner explains his motive in sending a poem in Arabic (which he translates as "I gave you gold you gave me hay. I gave you the ocean and you place me on dry land") because Patient A was not responding to him. He explains his actions post September in the context of being told by his wife that she had been approached by a person in Liverpool who said that there was a female patient making a case against him and that he should be careful.
We found the practitioner's explanation of his actions post September 2014 to be consistent with his explanation in his statement and his text messages, and do not accept they are an admission of wrongdoing in the sense of having engaged in touching of Patient A's vagina on 18 August 2014.
The practitioner has appropriately made a number of significant admissions. We find those admissions are properly made and soundly based on the evidence. He engaged in an intimate personal relationship with a vulnerable patient with a complex medical history including anxiety, panic attacks, and an abusive prior relationship. He offered her support and assistance with Centrelink claims and we are satisfied that the text evidence demonstrates she looked to him for ongoing assistance and was upset when he terminated or failed to provide ongoing assistance.
We find the comments of Lord Pearce in Onassis have particular resonance about the evidence of Patient A and the practitioner, particularly Patient A, who was no doubt upset when the practitioner effectively withdrew from their previous intimate relationship and did not provide ongoing assistance and support to her.
While we are not satisfied to the Briginshaw standard that particulars 8, 9, 10 and 11 in whole are established, the particulars we have found established together with the admitted particulars disclose dishonourable conduct by the practitioner. It was conduct that demonstrated a lack of judgment significantly below the standard to be expected of a practitioner of this practitioner's long experience. It was improper and unethical conduct. We are satisfied his conduct constitutes both unsatisfactory professional conduct and professional misconduct. We make our finding of professional misconduct on the basis that the particulars found proven cumulatively justify the suspension or cancellation of the practitioner's registration.

Parties

Applicant/Plaintiff:

Health Care Complaints Commission

Respondent/Defendant:

Hanna

Legislation Cited (1)

Civil and Administrative Tribunal Act 2013(NSW)

Cases Cited (12)

Relevant principles - late amendment

The principles to be considered in determining a late application for amendment are found in the decision of the plurality of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27. As well as procedural fairness considerations, also relevant to our consideration was s 3A of the National Law which is focused on the health and safety of the public, and Cl 11 (1) of Schedule 5D of the National Law which requires the Tribunal to hear inquiries and appeals under the National Law and determine those applications expeditiously. We also had regard to s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) and in particular s 36(1) and s 36(4).
Section s 36 (1) to (4) provides as follows: (1) The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

Discussion and conclusions -proposed amendment to the complaint

In this case the amendment sought was not one occasioned by reason of late service of new or unknown material by the practitioner, or because of discovery of material not previously in the possession of the HCCC. Further, and of greater significance, clarification of the particular as to date and venue was sought by the practitioner's lawyers in a timely manner, the first request being made very shortly after the commencement of the proceedings. The HCCC confirmed reliance on the Campbelltown venue and did not dispute that the correct date was 30 June 2014. It was on this information that the practitioner relied in his preparation for the hearing. The late sought amendment, if granted, would have unfairly prejudiced the practitioner which prejudice could not be remedied without adjournment of the proceedings with attendant delay, costs and stress to the practitioner. An adjournment was also likely to have caused stress to Patient A. We note the amendment was sought during Patient A's cross-examination.
We also took into account the undisputed evidence in respect of the time of Patient A's appointments on 22 May 2017 and 31 July 2014. The timing of these appointments cast significant doubt on the utility of the proposed amendment given Patient A's assertion that the conduct occurred after an appointment at 4.45pm when she exited the Campbelltown clinic through the back door.
In determining not to permit the late amendment we also took into account that the practitioner in a Reply dated 17 August 2017 has admitted the complaints of unsatisfactory professional conduct and professional misconduct as well as the majority of the particulars pleaded. Thus reliance on this particular by the HCCC to establish unsatisfactory professional conduct or professional misconduct is not critical to its case. Protective orders will be put into place in the Stage 2 proceedings satisfying the requirements of s 3A of the National Law.
We did take into account that if the matters pleaded in Particular 10, or some of them, were established that finding or findings could impeach the credibility of the practitioner's evidence given his denial of the conduct alleged.
We balanced all of the above matters relied on by the practitioner against the potential prejudice to the HCCC if the amendment was not granted. Particular 10 is one only of four particulars relied in the alternative to constitute professional misconduct. We note the comments of Basten JA in several decisions of the NSW Court of Appeal about the necessity for care in pleadings in professional disciplinary proceedings (see Fraser v Health Care Complaints Commission [2015] NSWCA 421). (See also the authorities cited by Basten JA in Fraser namely Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [27]-[31]; Health Care Complaints Commission v Wingate (2007) 70 NSWLR 323; [2007] NSWCA 326 at [13] and Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [43]).

[1992] HCA 66

(1938) 60 CLR 336

(1960) 104 CLR 186

(2007) 70 NSWLR 323

(1992) 110 CLR 445

Cited By (2)

Health Care Complaints Commission v Sakla

Health Care Complaints Commission v Thurlow