Health Care Complaints Commission v Hasan - [2021] NSWCATOD 161 - NSWCATOD 2021 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Hasan

[2021] NSWCATOD 161

NCAT Occupational|2021-06-23

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At a glance

Source facts

Court

NCAT Occupational

Decision date

2021-06-23

Catchwords

[1938] HCA 34 Chen v Health Care Complaints Commission (2017) NSWLR 334

Source

Original judgment source is linked above.

Catchwords

[1938] HCA 34 Chen v Health Care Complaints Commission (2017) NSWLR 334

Judgment (44 paragraphs)

[1]

Introduction

On 7 July 2019, the Health Care Complaints Commission (HCCC) received a complaint from the spouse of a nurse employed in a hospital in which Dr Mahbub Hasan (the Respondent) was also employed. The complaint was about the Respondent's professional conduct. It alleged "boundary violation, discriminatory conduct, sexual misconduct." The complaint set out aspects of the Respondent's conduct towards the female spouse of the person making the complaint. That complaint gave rise to action by the HCCC which culminated in the institution of this proceeding. We have used the pseudonym "Person A", in these reasons, when referring to the nurse alleged to have been aggrieved/affected by the Respondents conduct. We have also referred to the patients whose Birthday was celebrated in the Botany Ward of the Kareena Private Hospital on 23 May 2019 by the words "patient" or "patients" rather than naming them. We have exchanged those words for the names of the patients in particular where we have set out some of the Respondents' submissions in these reasons.
The HCCC has brought a complaint against the Respondent seeking a finding of unsatisfactory professional conduct pursuant to s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) (The National Law) in that the practitioner has engaged in "improper or unethical conduct relating to the practice or purported practice of medicine."
Additionally, the HCCC seeks a finding that the Respondent is guilty of professional misconduct under s 139E of the National Law.
The Respondent opposes both complaints and seeks a dismissal of the Complaint.
The action arises from alleged interaction between the Respondent and Person A, a female employee, working in the same hospital as the Respondent between February 2019 and the end of May 2019. The Respondent denies each of the Particulars set out in the Complaint document under each of the two separate complaints.

[2]

The Statement of Agreed Facts

The parties jointly relied upon the following agreed facts which were embodied in a document marked as exhibit A2. The Respondent is referred to as the practitioner in the exhibit.
The Statement is as follows: "STATEMENT OF AGREED FACTS - 2 June 2021 1. In 2003, Dr Mahbub Hasan ("the respondent") completed a Bachelor of Medicine in Bangladesh. 2. On 22 October 2008, the respondent was first registered as a medical practitioner in Australia. 3. In 2009, the respondent completed the Australian Medical Council Certificate. 4. On 27 May 2010, was first registered as a medical practitioner in NSW. 5. On 29 May 2017, the Medical Council of NSW ("the Council") imposed conditions on the respondent's registration. 6. On 8 May 2018, the Council removed the conditions from the respondent's registration. 7. During February to May 2019, the practitioner was working as an advanced trainee in geriatric medicine for South Eastern Sydney Local Health District on secondment at Kareena Private Hospital (the hospital). 8. During February to May 2019, RN Person A was working as a registered nurse at the hospital. 9. On 23 May 2019: a. the respondent and Person A were working at the hospital. The respondent, Person A and others were standing in a room during a birthday party for a patient; b. Person A had a conversation with the respondent in a room in which he worked from time to time; c. the respondent sent text messages to Nurse Unit Manager ("NUM") Stephanie Howells; d. the respondent had a conversation with Person A and Clinical Nurse Specialist Zlata Risby in NUM Howells' office; and e. the respondent had conversations with NUM Stephanie Howells. 10. On 28 May 2019, the respondent's employment was suspended. 11. On 15 July 2019, the Council imposed conditions on the respondent's registration. 12. On 16 July 2020, the respondent's registration was suspended."
At the commencement of the hearing the parties requested that the NSW Civil and Administrative Tribunal (the Tribunal) hear and determine only whether the HCCC has made out its case as set out in its Complaint. This is often referred to in this jurisdiction as Stage 1. Stage 2 is the determination of any protective orders which should be imposed upon the Respondent if Stage 1 has been established.

[4]

Evidence of Person A.

In relation to the oral evidence of Person A, we were able to observe her give her oral evidence over about two hours. We were impressed with the way she gave her oral evidence. There was nothing about the manner in which she gave her evidence or the content thereof which suggested to us she was not being truthful in her evidence. We observed that she listened to the questions asked and answered those questions without anger or attempting to be her own advocate.
The written evidence of Person A, relied upon by the HCCC, is set out at Tab 7 of exhibit A1. It consists of a statement signed by Person A on 17 January 2020; a transcript of an interview conducted by Yvonne Hart with Person A on 24 May 2019, in the presence of Stephanie Howells (described as the support person) and a copy transcript of and interview conducted by Nouran Tawfig, Principal Investigation Manager, PPU with Person A on 5 June 2016 (signed by Person A on 6 July 2019.)
The statements and interviews conducted with Person A, referred to above, describe what Person A took to be escalating personal advances by the Respondent to her, in her workplace, which culminated in a physical assault she alleges was made upon her person on 23 May 2019. We will detail the evidence relied upon by the HCCC to support the allegations made by Person A in these reasons.
The Respondent denies each and every allegation made by Person A, at least to the extent that he deliberately conducted himself in any of the ways alleged by Person A.
Somewhat unusually in our experience, however understandable in this case, the HCCC had Person A give her evidence in chief largely orally rather than having her simply adopt as true the documents which we have described above containing her evidence.
In her written statement dated 17 January 2019 (part of Tab 7 exhibit A1) Person A states she attended upon an interview with Yvonne Hart on 24 May 2019. Also in attendance was the Nurse Unit Manager at Kareema Private Hospital. A transcript of that interview was attached to her Statement and marked as annexure "A". Person A said the contents were true and correct. She added the following: "Those notes state '[a]fter speaking with Dr Mullins, [Person A] told her husband who was also distressed by the attention [Person A] was receiving.' I want to clarify that this was not the first time I had spoken with my husband about the unwanted attention I was receiving from Dr Hasan. I had already spoken to him about it on the first day that Dr Hasan was being inappropriate towards me by his words and actions."
Person A also set out in her statement that she attended an interview with Mr Nouran Tawfiq, on 5 June 2019. She attached as annexure "B" to her statement a copy of the transcript of that interview. Person A said: "I have read the transcript and believe everything therein to be true and correct except that: (a) On page 13, where it reads "[a]nd then it's started again around March when I have been deployed to work in Botany", it should read "May" instead of "March"; and (b) My ICU NUM's name is actually 'Farhana Khan' not 'Farhner'."
Person A also added the following points: "On the bottom of page 8, top of page 9, I told Mr Tawfiq that I laughed uncomfortably when Dr Hasan asked for my house key. This does not mean that I liked how he was talking to me. I simply did not know how to react in that moment. When he touched me, my reaction was to stay stiff, because I thought that this would indicate to him that I did not like him. On page 17 of the transcript where I describe how Dr Hasan's hand squeezed my bottom, the reason I knew it was Dr Hassan's hand that did the squeezing is because I moved forward to give him space to return the phone to the patient. I then saw him move behind me and there was no one else behind me expect (sic) him. The squeeze could definitely not be mistaken for an accidental bump. When he squeezed my bum I automatically choked and my automatic response was to slap his hand away from my bum."
We will refer to the above evidence again later in these reasons as we review the cross-examination of Person A and the submission of the Respondent. As it was explained to us in oral submission by senior counsel for the Respondent, his case is that given the number of people in close proximity to Person A on 23 May 2019 when it is alleged that the Respondent squeezed the buttock of Person A, if Person A's buttock was squeezed in that moment, she could not reasonably be sure it was the Respondent who did that.
In the document which is annexure "B" to her statement, the following words of Person A are recorded which describe the conduct/behaviour of the Respondent about which Person A raised concern and eventually a complaint. The words were recorded on 5 June 2019 (misstated as 2016 on the document). The statement is a transcript of an electronic recording of an interview with Person A on that date. 1. Person A was at the time of the interview a Registered Nurse working in ICU. 2. She identified the person about whom she was making her report was Raj Hasan. 3. The first conduct of concern to Person A occurred when she was working in the separate section from ICU where she worked on her own. It has a separate nurse station. Dr Hasan was attending the patient Person A was "looking after". 4. Dr Hasan attended to review the patient. He sat next to Person A at the nurse station. Dr Hasan said to Person A "Oh you so beauty, you so lovely" and I thought he was joking. 5. Dr Hasan asked Person A "are you married?" Person A responded "Yes I am, I'm married." Dr Hasan said to Person A in response to her statement, "Can I be your side boyfriend?" Person A responded: "No, no chance doctor". Dr Hasan then continued saying to Person A "Oh you are so beauty". Dr Hasan then put his arm across Person A's waist. She stated: "like rubbing across my waist and then rubbing." She said the rubbing was on her body, her waist area. The words said by Dr Hasan and the actions described above by him occurred at a time no one else was present. That place was the "Short Stay Unit". Person A was sitting at the Nurse Station when the events described above occurred. 6. On the same day as Dr Hasan had spoken to Person A and touched her as she described, she told her husband what had happened. 7. On the same day as the conduct of Dr Hasan to Person A is described above, Dr Hasan needed to enter the ICU. He did not have a swipe card to enable him to enter the unit. Person A said she would swipe the entrance lock for him. She said to him "I have got the key I can open for you. I have the card." Dr Hasan said to her in response: "I want your house key if possible". Person A said she laughed. She said "It was very uncomfortable." She said: "It was an uncomfortable laugh so I don't know how to act even when he touched me." 8. Person A said: "So the day after I had to look after the short stay patient again, and his patient, so then we met and he is still doing the same thing." "The rubbing and touching my waist." Person A was asked: "so how often did he rub your waist?" Person A responded: "I would say that every time he had a chance, every time we met, yeah. So on that day they had a patient come to where we sit down. The patient came to the station and talked to him, ask him a question. So under the table he is poking my feet. Like kept touching my feet under the table." Person A also said Dr Hasan was "using his pen, poking my leg. Under the table so no one can see." On the day that occurred Person A told her friend Debbie what Dr Hasan had done to her. Debbie Moodie was a nurse also working in the same area as Person A. Person A said she told Debbie: "Can you sit here for a little while because this doctor, is a little bit, he is touching me." 9. Person A said she again told her husband that day what Dr Hasan had done to her. She said to him she would speak to a person named Farhner (the name is "Farhana Khan" as stated by Person A in her Statement document earlier referred to). She told her husband "I am going to tell him first to stop and then I am going to tell Farhana and to see how he goes. But after I came back, I didn't decide to look after his patient and it seemed like he stopped touching or doing things even though sometimes we worked together." 10. Person A said the touching by Dr Hasan had occurred three or four times. She said it occurred "every chance that we met." The touching by Dr Hasan occurred while Person A worked in the Short Stay Unit or the Botany Unit. 11. In around March 2019 (corrected to May in her statement), Person A said the touching behaviour of Dr Hasan to her body re-occurred. She was working two days in the ICU and two days in Botany. She said: "And every day that happened." "In Botany when we were in the patient's room, every chance when that he is speak to me he will come close and touching." She also illustrated for the questioner that he was pinching her waist. She said he was also rubbing her waist if he had the chance. When asked to say how many times the touching had occurred Person A said: "I can't really tell like how many times it happened in Short Stay because I can't really recall, I don't really want to think about that." She said: "what I can't say is every day I work with him, it happened." Person A said that she started work in the Botany Unit in May 2019 working two days per week. She said: "And every day that happened." She said: "He started to do more and more almost every day which I was thinking I have to tell him in some point when it started happening again." "Like touching and pinching my waist", "Poking his pen towards me, it made me uncomfortable." Person A did not tell her husband that Dr Hasan had started touching her again when she was working in the Botany Unit. She described how she lacked courage to tell Dr Hasan to stop touching, pinching and poking her. 12. Person A described occurrences between Dr Hasan and herself in the Botany Unit in May 2019. She said: "I want to tell him to stop by myself but I don't want to report or anything because I thought that he would understand but he didn't and on the last two weeks that is what happened. I was working in Botany on 23rd May. We have a birthday celebration for one of our patient's so a lot of staff went into the room to sing birthday for the patient. I tried to get into the room before I didn't want to stand close to him so I get inside. So the girl that followed me can stand next to me and to, so he can't get close to me but the girl she went the other way so he followed us and then he came and stood next to me so we sang birthday to the patient and he offered to take a video for them. So he took a video and after finished I was just about to get out and he walked inside to return the phone to the patient and once we crossed each other, past each other he quickly put his hand on my bum and he squeezed it. I was shocked, I was very angry, so I hit his hand. But he is very quick so I didn't have a chance to hit harder because he put his hand away and I came out of the room. I was very angry and upset. But I have to give handover to the next shift so I went to my friend to give handover for two patients and at that point, I don't want to cry in front of him so said I want to talk to him. So I went after handover, I went straight to his room. I saw that his colleague had left the office so he was there alone. So I went there, I told him that doctor what is this, it is unacceptable, I am a married woman and I am faithful for my marriage. This is not acceptable that you do that to me. And he apologised. He said that it is not going to happen again. And he apologised three times. He said it is not going to happen again. So he knew what he did. He said sorry and it won't happen again." 1. Person A then described what occurred immediately following her speaking to Dr Hasan about his conduct towards her. She said: "I went to my team leader, her name is Zlata. So I went to ask her to speak and then we talked. I told her what happened, we went to the Botany NUM's Office and we closed the door. Before that I felt that the doctor is following me. I feel that he wants to know where I am who I speak with. So because he was following and checked and asked me a few questions that is not my duty anymore. We had already done handover. And he asked some questions that not even related to my patient so I feel that he is just following me to see where I am about so I then went to speak to Sarah in the unit managers office and we told Zlata what happened and I told Zlata that I have asked the doctor to stop doing this. While we were talking Dr Raj came, open the door and then he was like saying that he was looking for Stephanie, the NUM. Then he said 'oh she is not here' and then he kind of leaving but then just for a few seconds, he open the door and he came in and he just said 'Oh (Person A) it was an accident, it is just crowded in the room', in front of Zlata. …" "and I said, I feel uncomfortable with what happened that is why I need to tell someone to be aware of this so because I am really uncomfortable with what happened and he said 'oh you did the right thing but it is really an accident' and he said 'what can I do for you' and I said: 'I just need personal space and I want to work here peacefully and I want to move on. Just professional team work with colleagues'. And he said 'That is okay, that is good, yeah' and that's the finish. 1. Person A said that Dr Hasan had then spoken to Stephanie. Stephanie was the Botany Ward Nurse Unit Manager (NUM). Stephanie then spoke to Person A. She said Stephanie had asked her to tell her what had happened between Dr Hasan and herself. Person A said she told Stephanie that it was not an accident, it was not touching "because he squeezed my bum." 2. Person A said that she had no contact with Dr Hasan outside of the workplace.
Annexure A to the statement by Person A is a notation of an interview with Person A on 24 May 2019, the day after the Birthday event in the Botany Ward, on 23 May 2019 as described by Person A above. The interviewer was Yvonne Hart. Stephanie Howells was also present as a support person. We noted the following is recorded in relation to what Person A said in that interview: 1. "[Dr Hasan] would take any opportunity to touch her. This included jabbing her in the arm with his pen, tapping her foot under the table with his foot and slipping his arm around her waist (and rubbing). [Dr Hasan] also asked her if she was married and when she said she was, he asked her if he could be her 'side boyfriend'." 2. A couple of months ago (unsure of date) Person A disclosed the incidents to DM a colleague in ICU. DM encouraged Person A to approach Dr Hasan and tell him that his behaviour was not acceptable. 3. Person A told her husband who was also distressed by the attention Person A was receiving. Person A prepared herself to confront Dr Hasan the next time he made an inappropriate comment or touched her. As she made this decision, the attention stopped for a few weeks so she thought it was over. 4. "Incident on Thursday 23 May. All staff had met in long-term patient's room to celebrate his birthday at approximately 1310 hours. There were a lot of people gathered in the room. [Person A] felt [Dr Hasan] pinch her bottom. She was so shocked she swatted his hand away. [Person A] said that she had to control herself because she was so angry but she did not want to make a scene in front of everyone. 1330 hours [Person A] gave patient handover to colleague (NW) who asked her what was wrong because she was not behaving like her normal self. At approximately 14:00 hours [Person A] saw RG leave the joint office so knew that [Dr Hasan] was in there alone. [Person A] took the opportunity to confront him as she was so angry by what he did. [Person A] told [Dr Hasan] that what he did was "not acceptable". That she was a married woman and faithful to her husband. [Dr Hasan] apologised and said that it would not happen again. He kept repeating this over and over. [Person A] left the office. [Person A] went back to look after her patients as her shift was not due to finish until 15:00 hours. She said that [Dr Hasan] noticed that she was upset. She felt that [Dr Hasan] spent the rest of the shift "keeping an eye" on her. Following her around the ward, even entering a room that was not his patient. [Person A] decided to share the incident with ZR team leader on Botany Bay Ward as she was unable to find SH NUM. [Person A] and ZR discussed the incident in SH's Office behind a closed door. While in discussion [Dr Hasan] knocked quickly and entered through the door opening, stating that he was looking for Stephanie. He walked out and left the door ajar. He re-entered the office shortly after and said "sorry, it was an accident, the room was crowded, what can I do to make it better?" [Person A] told him that she needed personal space and that she didn't want it to happen again. That she wants a happy life at work. [Dr Hasan] kept saying "sorry, it was an accident". He then left the office. He continued to approach [Person A] until the end of her shift asking her "are you ok?" 5. Person A noted the different words used by Dr Hasan when she first confronted him in his office and what he said later in the presence of ZR where he used the words "it was an accident."

[5]

Person A Oral evidence

Person A was asked questions by the HCCC.
Person A confirmed she was employed at Kareena Private Hospital since the end of 2018.
In February 2019 Person A was working in ICU and "Short Stay" in the hospital.
Person A could not recall when she first met the Respondent. She said he came with Dr Dedousis. She said the Respondent was known as Raj. She did not know him before he commenced work at the hospital.
Person A was asked whether the Respondent said any words to her. She said he told her: "Thank you so much sister you are so nice and you are so beautiful." She thought it was unusual to be addressed in that way.
She said that when the Respondent sat next to her in the short stay Ward he said: "Are you married?" Person A told him: "I am married sorry doctor you have no chance." He had then said to her: "Can I be your side boyfriend" he had then rubbed her back. Person A was asked to demonstrate how her back was rubbed which she did. She said "We were sitting next to each other at the nursing station. There was no one else present at the time." Person A said she felt uncomfortable and stiff. She said: "I didn't want to be rude we had to work together."
Person A said that on the same day she had opened the ICU door for the Respondent with her swipe key. The Respondent had said to her: "If I can have your house key." Person A said she had told her husband about the incident. She had told him: "Today a doctor sexually harassing me and he said can I be your side boyfriend."
Person A also said: "Later we had to speak to a patient. [the Respondent] poked me under the counter with a pen. She had later asked a colleague to sit with her. She did that because she felt uncomfortable with the Respondent "sitting there".
Person A had also spoken to a flatmate about the attention that responded was paying her at work. Person A resolved to tell the Respondent to stop his conduct towards her however, she said he did stop for a while and so she did not speak to him.
Person A said that the Respondent had touched her on her waist on other occasions. She estimated three or four times in the Short Stay Unit. She said that in the Botany Unit he had "poked her with a pen on the arm or body or with his feet. Tapping with his feet."
Person A said she requested a move to the Botany Bay Unit. When she was working there the Respondent again "started to poke my arm or body with a pen or tapping my feet. It happened often but I did not have the courage to tell him off." She said she did not tell anyone when it started again she was concerned her husband would be very upset.
Person A was asked about a Birthday Party incident. She said on that occasion "he squeezed my bottom." She said: "we stand next to each other and he used patient's phone to take a photo. I stepped in front of him to walk out and his hand squeezed on my bottom very fast." She said six or seven of her colleagues were in the room at the same time including the patient. She said: "I went out and stood in front of the patient's room I was upset and shaky and upset and crying. Had stopped myself shaking. I had to hand over the shift. I went to his office he was sitting at the computer. I said Dr, what you did was unacceptable you cannot do this to me I am faithful to my marriage. I love my husband you cannot do this to me."
Person A said the conversation with the Respondent had occurred about 15 to 20 minutes after the incident. She said that the Respondent in response to her words to him turned his back to her and said "I am sorry it won't happen again." He said it three times. She then left his office. After she had spoken to him she tried to finish her job. She said "I had the feeling he wanted to know where I was. He asked me "Where is Stephanie?" Then he left. She said: "I went to my team leader on that day. I asked: "Could we talk?" We went to Stephanie's office. I told her what happened. She asked me am I okay and I said I spoke to him already and wanted someone else to know. Then the respondent opened the door and asked: "Where is Stephanie?" He didn't close the door properly and he walked back in he said "I am sorry it was an accident it was crowded in the room I am sorry." Patient A said "I don't want anything I just wanted to let someone know what happened. He said "you did the right thing" and he walked out. Person A said: "I told Zlata, 'Raj pinched my bum.'"
After she had finished her shift, she was approached by Stephanie who asked to speak to her. Stephanie asked her: "What happened?" Person A said: "She showed me a text from Raj which said: 'Can we talk about (Person A)?'" Person A said Stephanie had asked her: "What happened?" Person A responded: "Raj squeezed my bum." Person A illustrated what he had done.
After she arrived home from work Person A told her husband what had occurred with the respondent.
The day after the occurrence with the Respondent, Person A had spoken to Yvonne Hart. She was shown a copy of notes taken by Ms Hart which were set out at Tab 7 of exhibit A1. She said she remembered she had signed a copy of a transcript of an interview with Mr Tawfig which was conducted on 5 June 2019.
Person A was asked to read a copy of her statement dated 17 January 2019 (Tab 7 page 232 of exhibit A1). She said the statement was correct.
Person A was cross-examined by the Respondent's Senior Counsel. She was asked about the incident on 23 May 2019.
Patient A agreed there were a number of staff who went into the room to celebrate the birthday of the long-term patient. She agreed there was a small birthday cake. She thought that the gathering had occurred about 1:30 pm because she was about to change her shift. She agreed that because of the change of shift there were more persons on the floor than normal. In addition to nurses there were other persons such as orderlies and physios who were on the floor. She agreed that there were between eight and ten people visiting around the bed of the patient whose birthday was celebrated.
Person A was shown a number of photographs which had been marked as FI1. One of the photographs showed two beds. Patient A agreed that the two beds were in the same configurations on the day of the birthday celebration as they appeared in the photograph. She could not remember whether the chair which was depicted in the photograph which showed a blue vacuum cleaner, was in that position on the day of the birthday celebration. She was shown a diagram (which became exhibit R2). She agreed the diagram reflects where the patient and her husband were on the day of the birthday celebration. She agreed some of the visitors were in the room and some were at the door. She agreed a female nurse had the patient's phone before the Respondent was given that. She agreed that nurse was in the back corner. She was where the chair is situated in the photograph which showed the blue vacuum cleaner. It was put that because the nurse could not fit in all the people to take a photograph on the phone, the Respondent said he would do it. Person A agreed the Respondent took a photo on the patient's phone. It was at that time that Happy Birthday was sung.
It was put to Person A that the Respondent had tried to take a video and said "it didn't work". After the singing of Happy Birthday, the Respondent had said "it didn't work please do it again". Person A said she did not recall that.
It was put that when the Respondent was trying to take a photo he was standing quite close to the door. Person A said he was standing near the door but in the middle of the room next to me. It was put that people were tightly packed. Patient A said: "They were not touching. Some were holding arms around the others when singing. It was a small space but it had space enough to stand near each other, but some were holding each other."
Patient A could not recall that the gathering sang Happy Birthday for a second time.
It was put that as the gathering was leaving the patient called out: "Take another photo." Patient A said she did not hear that. She was aware the Respondent tried to return the phone. She said: "When he tried to take a photo, he used both hands when he returned the phone he did it in his right hand." It was put that as the Respondent moved to go towards the patient, Person A had stepped forward. Person A said: "Yes I stepped forward and walked sideways to go out so my back was facing him." It was put that Person A and the others moved out of the room. The people behind you could not see. Person A said: "No". Person A said she had tried to leave quickly but others had to leave first. She agreed that it was at that time she felt contact with her bottom. It was put: "You were not looking behind you?" Person A said: "My head was to the side so I saw him walking behind me." It was put: "You couldn't see how his hands were positioned when he was behind you?" Person A said: "I could feel his movement so I moved forward and he was behind me." She agreed that she couldn't see if he was bumped or blocked by another person. She agreed that when she felt the touch on her bottom she swiped her hand to deflect. She agreed it was a split second. She said: "I stepped outside the door but I was very upset and colleagues asked: "Is everything okay?" and I said: "Okay" and I went off to handover.
Person A agreed she stopped on the carpet outside the room. She agreed that when she felt the contact with her bottom she turned her head around. It was put: "But you didn't see an empty room?" Person A responded: "He was there." She agreed there were other people there as well. She could not remember the names of the persons behind her. She denied that those persons must have been able to see what she said the Respondent had done to her.
It was put: "You felt the contact, you swatted it away and you walked out of the room?" Person A said: "Yes". It was put: "You said you turned your head?" Person A said "I did not turn my head around."
Person A agreed she did not say to someone "Did you see that?"
Person A said there were about 15 minutes between her leaving the room and handover. She agreed that as she left the room she had been asked by Natalie "Are you okay". She agreed that Natalie was not a witness in the case.
It was put that the contact was a split second contact, while Person A was moving and that Person A could not be certain it was the Respondent who made the contact. Person A responded: "I am". It was put that it may have been someone else. Person A said: "No".
Person A agreed she had confronted the Respondent at about 2:00 pm on that day. She agreed she was angry at the time. It was put: "You were showing you were angry". Person A said: "I don't think so. I wanted him to know he can't do that."
It was put that in the past Person A had been smiling and friendly with the Respondent. She said: "I am always that way at the work."
(We note that the Respondent's counsel informed us: "We don't dispute what she [Person A] told the Respondent.)
Person A agreed that in the meeting with Zlata Risby the Respondent had said: "You did the right thing."
It was put that Person A could not recall where she was touched. She said she recalled it was on the right side.
It was put: "Based on what you saw and heard you cannot rule out that what happened with your bottom was just jostling in the crowd." Person A said: "I disagree."
Person A agreed that at the time of the hearing her English speaking was a little better than it was in 2019.
Person A agreed that in March 2019 she had a friend at work called Deepti Kumar. She agreed that she had spoken to Ms Kumar about the possibility of complaining about the Respondent's behaviour. Person A was asked to read from page 274 of exhibit A1 which contained a transcript of an interview with Ms Kumar. Person A was asked did she say to Ms Kumar: "No I am probably going to give it one more chance because maybe I am just misunderstanding the whole situation and the person is not like that and maybe I should talk to the person first before I report it." Person A said: "I can't recall".
Person A was asked about her evidence that the Respondent had said she was beautiful. She was asked if she had protested when he said that. She said: "No".
It was put that Person A had spoken to the Respondent "with a friendly tone." She said; "I speak like that to everyone." Person A was asked to confirm she had told the Respondent she was a married person and unavailable." Person A said: "Yes".
Person A was asked: "As to the touching on the waste that you allege, did that happen at all?" Person A said: "Definitely." She agreed no one had seen it happen. It was put this occurred in a public area. Person A said: "Yes but it was kind of hidden in a wall."
It was put in relation to the alleged foot tapping that it happened because the Respondent is a "nervous type of guy". Person A said: "I don't know what type of guy he is." She agreed it could have happened just because he was foot tapping (i.e. not attempting to touch Person A). She agreed that when she felt the touch she didn't say anything to him.
It was put that her husband and Ms Kumar both said that she had to tell him to cease what he was doing to her. Person A said: "I didn't want to because I had to work with him."
In relation to her friend Debbie Moody, Person A agreed she had told her friend in March about the Respondent touching her on the waist.
Person A was asked: "When was the first time you heard the words "side boyfriend"? Person A said: "From him". She was asked whether she might be mistaken. She said: "He said it after I told him I was married." It was put that he did not say that. Person A said: "He did". She did not accept that she may have misunderstood his words "side boyfriend". She denied that she had made a mistake about the words he used to her when she said he asked for her "house key". She denied that when he asked for the house key he was "on the phone".
In re-examination Person A was asked about her statement "my head was back so I know he was behind me". Person A said: "I knew, I made a space for him. I know it was him to walk past me." She was asked what she meant by "He was just one of the persons near me". She said: "I made sure I did not walk close to him. Dr Raj followed us and he came and stood next to me." She was asked "How do you know it was a squeeze on your buttocks not a bump?" Person A said: "I know it was a squeeze."

[6]

Person A's spouse

Person A's spouse provided written and oral evidence before us. He presented himself in person. He gave his evidence in a straightforward and apparently honest manner. There was nothing about the way in which he gave his evidence or the content thereof which suggested he was not reporting relevant behaviour and words of Person A truthfully and to the best of his recollection.
In his statement, dated 17 January 2019, Person A's spouse confirmed that the attached transcript of an interview conducted by Mr Nouran Tawfiq with him on 2 July 2019 was true and correct. Person A's spouse said that he wished to add "the following point": He said: "After the incident on 23 May 2019, my wife told me that the reason she had not told me Dr Hassan's inappropriate contact had started up again was because she was worried I would come into the hospital and make a scene."
We note the following facts in the interview attached to the witness' statement which we consider germane to the determination we are to make. 1. "My wife told me straight away that since the first encounter the doctor was making inappropriate comments, remarks, even advancements." 2. She said he used words like: "okay where are you from, are you married?" and "do you have a husband?" She had told him (Person A's spouse) that she tried to keep a normal attitude but said to him: "Look I'm married and this and that you know." She said the doctor had told her: "How about I be your side boyfriend". 3. She said this thing happened a couple of times. She explained to me that the doctor, inappropriate touching, you know, touching behind the waist, you know, poking with the pen under the table where no one can see, you know, touching with the foot. 4. At the urging of Person A's spouse, Person A agreed to confront the doctor. 5. By the time that Person A was ready to confront the doctor he had stopped the behaviour and she told Person A's spouse "he stopped, he just comes to work very professionally, doesn't even acknowledge my presence." 6. There was a month or two where Person A did not report to Person A's spouse that the Respondent had been inappropriately interacting with her. Then she reported "the same thing again." 7. Person A's spouse heard nothing further from Person A again until "the day of the incident." On that day she had called him and said "Look something happened." She said: "Look I had a problem with the doctor." Person A's spouse said he attended at Person A's workplace and collected her from work. He said Person A then told him what had happened to her. 8. He said Person A told him: "There was a birthday of one of the patients apparently and so there were a couple of people gathering. My wife was there. The named doctor was there, a couple of other people, maybe family members were there and using this opportunity, as usual, the doctor gets very close, to my wife's proximity. Very close proximity and very inappropriately. . . . just grabbed her or pinched her by the bottom, you know, the buttocks basically." 9. He said: "My Misses went berserk and snapped. She just came out. She was upset and that is when she found this is way beyond appropriate and then she waited until the end of her shift which there was not long left and then went and discussed it with the team leader I believe and then later with the manager in regards to what happened. Before she did that she went to the doctor and said: 'this was absolutely inappropriate' and the doctor said: 'Sorry I didn't mean to do it, it won't happen again and how can I make it better". He kept repeating it…. My wife was actually upset and coming out looking for management and saw the doctor was in a state of panic and looking for management before my wife got the chance to talk to management. And finally he makes it to management while my wife's there and started saying: 'Oh it was an accident, I didn't mean it. It was crowded'. Person A told Person A's spouse 'It was not the first time something like this has happened and I can tell the difference between an accident and actually a bottom grab, you know.'"

[8]

Deepti Kumar

Ms Kumar gave evidence both in the form of a tendered statement (Tab 9 Exhibit A1) and oral evidence. She presented as an honest witness. She gave her oral evidence in a straightforward manner. She readily advised if her recollection was not good enough to answer the question asked of her. There was nothing about the manner in which she gave her evidence or the content thereof which raised any concern for us about the veracity of her evidence.
In her statement, which was recorded by phone on 3 July 2019, we noted the following evidence which we considered important to our determination.
Ms Kumar said she had stayed with Person A and her husband as a flatmate for a six month period.
Ms Kumar was asked if she had ever had a conversation with Person A about difficulties Person A was having at her workplace, Kareena Private Hospital. Ms Kumar said she had such a conversation. She said: "She did tell me that there was this doctor that she is uncomfortable around and of course her first approach was if anything goes wrong she is going to talk to the doctor and tell him that she is not very comfortable around him and probably talk to her manager as well. I don't remember the whole story, but she told me that there was some sort of probably pushing or groping involved, maybe."
After she had moved out of the same accommodation as Person A and her husband, Ms Kumar said she visited them one evening and whilst there Person A told her what happened at a party held at the hospital. Person A was very uncomfortable and that was reported to the management and was being investigated."
Ms Kumar was asked to try and remember the words used by Person A in her description of what had happened. Ms Kumar said Person A told her: "A doctor was trying to flirt with her in a way even though he knew that she was married, he was trying to be a bit suggestive in terms of asking her out and she was very uncomfortable with that situation." Ms Kumar said that she and Person A's husband were telling Person A that she needed to report the behaviour if she was not comfortable working at that place. She said Person A told her: "No I am probably going to give it one more chance because maybe I am just misunderstanding the whole situation and the person is not like that and maybe I should talk to the person first before I report it".
Ms Kumar said that Person A had told her about the incident with a party and she said: "I think he tried to grab her or maybe push her and that is when she went to her supervisor." She said Patient A told her she was very uncomfortable about the whole situation and was very upset about it because she has to work in that place.

[10]

Debbi Moody

Ms Moody provided both written and oral evidence. She presented as a credible witness when she gave oral evidence. There was nothing about the content of her evidence or the manner in which she gave her oral evidence which suggested to us she may have been less than candid.
In her statement, which was signed on 31 March 2020, we noted the following evidence which we considered important to our determination.
The statement attaches notes from an interview at which Ms Moody attended on 28 May 2019. She also attached a transcript of an interview she had with Mr Tawfiq on 8 July 2019. Her evidence is contained in those two statements.
In the notes which were made on 28 May 2019 we note the following.
Ms Moody had spoken to Person A in March 2019 in the early time of the Respondent's tenure at Kareena Private Hospital. Person A had disclosed to her that the Respondent made her feel uncomfortable. He was often inside her personal space and making comments like "you [and] me go out." Patient A had told Ms Moody she had said to the Respondent she was married. Patient A told Ms Moody that she had initially "laughed it off" however, she said the harassment continued and so she thought she should tell someone and chose Ms Moody to speak to.
Ms Moody recalled a time when Person A asked her to stay with her in the Short Stay Unit while she was nursing patients under the Respondent's care. Person A asked Ms Moody to remain with her while the patient round was being carried out as she did not want to be left alone with the Respondent.
Ms Moody recalled Person A had been distressed and had tears in her eyes when she was disclosing the events surrounding the Respondent's conduct towards her.
In her telephone interview conducted on 8 July 2019 we note the following, from the transcript of this interview.
Ms Moody recalled one conversation she had with Person A about the Respondent's actions towards her. She said: "We were both on shift and [Person A] was working in the short stay unit just outside the ICU which we look after as well and one day she said: 'can you stay out here because I feel really uncomfortable while that doctor is here?' Person A told Ms Moody that the Respondent: "Had been inappropriate, he was standing close to her, he was having inappropriate comments, asking him [sic] to have an affair with him". Person A became distressed and said: "What do I do because it is making me feel really uncomfortable and I don't like it."
Ms Moody thought that the conversation had taken place shortly after the Respondent commenced working at the hospital and she thought that must have been about February.
Ms Moody could not remember the name of the doctor. She knew what he looked like and she knew that he was the geriatric registrar and worked in Botany Bay Ward. She believed he was known as Raj.

[12]

Zlata Risby

Ms Risby gave evidence in both written and oral form. There was nothing about the content of her evidence or the manner in which she presented it which gave us concern about her truthfulness.
In her Statement dated 31 March 2020 Ms Risby attached a copy of notes taken from an interview she attended with Ms Yvonne Hart and Person A. She also attached a copy of a transcript of an interview she had with Mr Tawfiq on 6 June 2019. She also attended another interview with Mr Tawfiq on 27 September 2019 and attached a transcript of that interview. We noted the following evidence which we considered important to our determination in those documents.
Ms Risby is a Clinical Nurse Specialist and Team Leader at the Botany Bay Ward at the Kareena Private Hospital.
In the notes of the interview on 28 May 2019 we note: The other persons present were Yvonne Hart and Jane Early (scribe). The meeting's stated purpose was to discuss an incident which occurred on 23 May 2019. Person A had asked to speak with Ms Risby. They went into Yvonne Hart's office. Person A said that she had been made to feel very uncomfortable physically and verbally by the Respondent. She said that the Respondent had "clenched her bottom" during the gathering. She described other occasions where the responded was inappropriate to her, touching her around the waist and back in ICU. Ms Risby recalled Person A saying the Respondent had said words along the lines of: "If you weren't married I could be your boyfriend".
While Person A was disclosing details to Ms Risby, the Respondent had entered the office where they were. He proceeded to apologise repeatedly saying "no ill intent. It was an accident." Person A told the Respondent he made her feel uncomfortable when he squeezed her bottom. The Respondent denied it happening stating it was a crowded room. Person A told the Respondent that only her husband has done that to her. Ms Risby told the Respondent that his actions were not acceptable, that he shouldn't be entering people's personal space and that it was inappropriate. The Respondent left the office.
In the transcript of the interview conducted on 6 June 2019 we note the following.
On the particular day Person A had asked Ms Risby could she speak to her in private, they went to the NUM's office.
Person A appeared a little bit distressed in her expression and her voice and she told Ms Risby she was feeling extremely uncomfortable because she said the Respondent at the time and on that day, had, she felt, touched her inappropriately. When asked to explain, Patient A said he put his arms around my back and it wasn't the first time. But the most upsetting incident she wanted to raise with me, at the time, was in regards to an incident that happened on that day and it was that she felt her bottom had been squeezed and touched deliberately. Patient A was asked to explain what had happened. Ms Risby said it was an event where Person A and the Respondent were around a particular patient and there were a number of staff in the room. Person A and the Respondent were actually wishing that patient a Happy Birthday. There were lots of staff in close proximity to each other and she felt there was inappropriate touching of her bottom. She felt her bottom being clenched. Ms Risby said that Person A used the word squeezed. Person A told Ms Risby there had been other behaviour from the Respondent, not the bottom squeezing, but touching which she thought was inappropriate touching when Person A was working in intensive care and when the Respondent was attending to patients there.
Ms Risby said that during the conversation she was having with Person A in the office the Respondent knocked on the door and just walked in. He didn't knock and wait, he just knocked and came in and I said to him "Oh, we are just having a discussion." He said: "I think I need to explain that, you know, there was no harm involved or ill will in regards to any touching." Ms Risby said to him that was not how Person A perceived it. She said: "It is upsetting for her and she has come to me as the Team Leader because our NUM is not on the ward to report this. It is upsetting for her. It is not appropriate or professional for any touching in the workplace and we need to all be mindful of personal space."
Ms Risby said that Person A did voice her concerns directly to the Respondent in the room with the three of us. She said: "I do not like it and I did not appreciate it and it made me feel very, very, uncomfortable." She said: "only my husband touches me like that." Ms Risby said the Respondent had "perhaps touched her." He had suggested it was a sort of gentle touching on the back. Ms Risby said the Respondent had said: "Oh, it is only because, oh you know, it is a friendly gesture." The Respondent said he didn't mean anything by it and then Person A said: "You touched my bottom." The Respondent replied: "Oh that was not intentional because it was a crowded scene, crowded situation." Person A said: "No I felt you squeeze." She said it was not a crowd or bumping situation. The Respondent had said in response: "Well you know I don't believe I did that and it is not my intention to make you feel uncomfortable. You know, I just like to be friendly." Ms Risby said she thought he had used the word friendly quite a number of times. He had said: "You know, I don't do things like that deliberately."
Ms Risby said that Person A had told her that in ICU and also in the ward, the Respondent would often have his hand on her back when he was talking to her or going up to ask her.
Ms Risby said that when the "bottom squeeze" was said by Person A to have occurred, there were a number of staff in the room at that time. Ms Risby was there at the time.
In the transcript of the interview which took place on 27 September 2019 we note the following.
Ms Risby was asked if she had spoken to the Respondent again after the occasion when she, Person A and the Respondent had been in the office on the day Person A had alleged the Respondent had squeezed her bottom. Ms Risby said that she had not. She was asked whether she told the Respondent that Person A had accepted his apology. She said she did not recall saying that at all. She was asked whether she told the Respondent that Person A's reaction was probably cultural. Ms Risby said: "I do recall raising cultural concerns but that was in a conversation when all three of us were there." She said: "It was a general comment by me in regards to the people's personal space and saying that we had different cultures, people of different cultures on the ward. It wasn't specifically directed to Person A." She said in relation to use of the word cultural: "I may have in that context of discussing, you know, the cultural aspect of respect in the workplace, you know and personal space."
During the interview on 27 September 2019 Ms Risby said she had a copy of the notes she had made on the day of the incident in front of her.

[13]

Zlata Risby Oral Evidence

Ms Risby was taken to her statements and notes which are set out at Tab 11 of exhibit A1. She was asked whether there was anything she needed to clarify, amend or change in those documents. She said she wanted to change paragraph 4 on page 288. She had in fact done that in her statement.
Ms Risby was asked: "What was the appearance of Person A when she came to see you on that day?" Ms Risby said: "She was upset, distraught, wanting to talk." She was asked: "Did [Person A] tell you that Dr Raj had squeezed her bottom?" Ms Risby said "Yes."
Ms Risby was asked what Person A had said to the Respondent in her presence. Ms Risby said Person A had said to the Respondent: "You touched my bottom." Ms Risby said that she had also heard Person A say to the Respondent: "No I felt you squeeze."
Ms Risby was cross-examined by the Respondent's counsel.
Ms Risby agreed that the interview she had was conducted on 6 June 2019, a couple of weeks after the incident of 23 May 2019. She agreed she had a good memory of the event at that time. She agreed she had looked at some notes of a meeting.
Ms Risby agreed she was there at the Birthday Party. She could not remember if there was a Birthday cake. She could not remember if it occurred at about change of shift time but she did recall it was in the afternoon. She agreed there were up to 10 people in the room. She said it was a small room. She could not recall if the Respondent took a video of the event. She did recall that the Respondent was there. She could not recall exactly where she stood in the room. She did see Person A in the room however she said she was not standing next to her. She did not recall that the Happy Birthday song was sung twice. She said she had left early as she had other things to do. She did not recall whether the Respondent was standing next to Person A.
She agreed the Respondent had denied any intentional touching of Person A.
Ms Risby agreed that Person A had told her of the Respondent touching her back before the Respondent came into the room where they were talking. She agreed he said: "Oh it is only a friendly gesture". She said that where she had placed words in inverted commas, in the transcript attached to her statement, she was trying to relay, as best she could, the exact words spoken. She was asked whether she could have been mistaken with some of the words. She said: "No I don't believe so."
We note that in cross-examination it was not put to Ms Risby that the Respondent had not said/admitted that he had perhaps touched Person A in a "sort of gentle touching on the back" or that he had said: "Only because it is a friendly gesture."
In re-examination, Ms Risby was asked: "Did [Person A] ever say in the conversation with you that she accepted an apology?" Ms Risby said: "No she did not."

[14]

Stephanie Howells

Ms Howells provided written and oral evidence. She presented as a credible witness. There was nothing about the content of her evidence or the manner in which she presented it which gave us concern about her truthfulness.
In her statement we noted the following evidence which we considered important to our determination.
Ms Howells is the NUM for Botany Ward at Kareena Private Hospital. She signed a statement on 27 March 2020. She annexed a copy of an email she had sent on 23 May 2019 to Ms Yvonne Hart the Director of Clinical Services at the Kareena Private Hospital. She also annexed interview notes taken in relation to an interview on 27 May 2019. She said the notes reflect accurately her recollection of the interview. She also annexed to her statement, a transcript of an interview she had with Mr Tawfiq on 5 June 2019. Finally she attached a copy of a transcript of an interview conducted with her on 30 September 2019.
In relation to the email sent on 23 May 2019 to Ms Hart, Ms Howells said in the email WHS meeting means Work Health and Safety meeting. Registrar or Reg refers to Dr Mahbub Hasan (the Respondent), ICU means Intensive Care Unit and Botany refers to the Botany Ward at Kareena Private Hospital. She also referred to another name which we know to be Person A.
We note the following matters from that email dated 23 May 2019.
The email was sent at 4.29pm on 23 May 2019. The subject of the email is "Incident involving registrar Hasan Mahbub and [Person A] dated 23/5/2019 1430 hours."
Included in the body of the email are the following words: "On return from the WHS meeting I went back to my office and checked the time on my mobile. There was a message from the registrar 'need to talk'. I went to his office to see if everything was okay. He stated that [Person A] was not happy with him as she thought he had touched her. He stated that he might have brushed up against her when we were singing happy birthday to one of the patients. I went to speak to [Person A] to find out what had happened. She stated to me that from Day one of him working in the hospital, whilst she was working in ICU, he would keep asking her: "Are you married? You are so lovely. Can I be your boyfriend?" She said that one day she used her swipe card to let him into the ICU department and he whispered to her that it was her house key that he really wanted. She said on more than 10 occasions he would touch her back and squeeze her waist and touch her legs with his feet under the table so no one could see. She would tell him she was not interested and that he had no chance. She said she had confided in only one person in ICU. That person advised her to tell someone. Today working on Botany, she said that after he had sung Happy Birthday to a patient he squeezed her bottom. She stated she hit his hand away. She then went to his office and said to him that it was unacceptable what he had done. She stated that the Registrar [the Respondent] kept saying sorry and stated that it would not happen again."
We note from the notes (dated 27 May 2019) attached to the statement of Ms Howells, the following. We have used the information provided in the statement which explains what abbreviated words, or acronyms, in the notes mean as an aid to understanding the evidence.
The meeting notes are about a meeting which took place on 27 May 2019 at 3:00 pm. Ms Howells was in interview with Ms Yvonne Hart and the scribe was Jane Early.
After receiving a text from the Respondent at 2:31 pm on that day which said 'I need to talk' Ms Howells went to the Respondent's office and spoke to him. She asked: "What's happening?" He got up and closed the door. He said: "[Person A] is not very happy with me. She thinks I have touched her." Ms Howells asked the Respondent: "Why would she think that?" He said he may have brushed against her while everyone was in a patient's room singing Happy Birthday.
Ms Howells then spoke to Person A. She asked her: "What is going on? Is anything happening?" Person A explained that after singing Happy Birthday to the patient in BB7, the Respondent had "touched her bottom". She then demonstrated what type of touching it was. Ms Howells described it as "the gesture of squeezing her buttocks". Person A told Ms Howells she had hit the Respondent's hand away. Person A told Ms Howells that she had gone to the Respondent's office following the incident and told him what he had done was inappropriate and that she was a married woman. She told Ms Howells that the Respondent had said: "Sorry, it won't happen again."
Person A told Ms Howells that this was not the first time an incident has occurred between herself and the Respondent. She said: "It has been happening since the time he started here." She explained to Ms Howells that the Respondent would rub her back, put his hand around her waist and touch her foot with his foot at the SSU Desk when she was alone. She spoke of an incident when she was using her swipe card to access ICU for herself and the Respondent whispered in her ear: "It is the key to your house that I want." She also said the Respondent had asked her: "Are you married?" He had said: "You are so lovely" and "can I be your boyfriend?" Person A told Ms Howells the incidents have occurred more than 10 times although there was one month when he seemed to stop.
Ms Howells spoke to the Respondent again and he told her she could talk to Ms Risby as she knows what happened. Ms Howells said that during the remainder of the shift, the Respondent had asked her a number of times if everything was okay, and she had replied: "I think so". He had said to her: "I want you to support her. I'm worried."
Ms Howells was interviewed by Mr Tawfiq on 5 June 2016. Ms Howells was asked about her involvement in hearing about a complaint against the Respondent. We note the following words she used in the interview. She said that afternoon she had received a text from the Respondent saying "I need to talk" she went to his office. He got up and shut the door and then sat down. He said [Person A] "is not happy with me." She asked him why she was not happy. He said: "She thinks I touched her". Ms Howells said she then left the office and found Person A and conducted a conversation with her. Person A set out her interaction with the Respondent. Person A said the Respondent had started this conduct when she was working in ICU. She said he would say things to her like: "Oh you are so lovely, are you married? Have you got a boyfriend?" She said that sometimes when she was on her own, the Respondent would come up and play with her feet under the table. He would rub her leg when people couldn't see because there was nobody else around. One day he needed to be swiped into the intensive care unit with a swipe card and Person A asserted he said to her: "It is the key to your house that I really want."
Person A had told her that on 10 or more occasions the Respondent had put his arm around her he would squeeze her waist. However, on the day of the incident where a number of staff were singing Happy Birthday to the patient he said the Respondent squeezed her bottom. Ms Howells said that Person A had illustrated how that had occurred. After Person A had illustrated the squeeze she said: "I hit his hand away."
Person A said after the incident she went to see the responded and said: "Doctor I am not happy with that. I feel uncomfortable. I am a married woman." She reported that the Respondent had replied: "I am sorry". He said that more than once.
Ms Howells said she had been in the room for the Happy Birthday event she said that there would have been eight or nine people in that room including the patient and the patient's wife. She said: "We were tightly packed in there. I was touching the next person. I was shoulder to shoulder with the next person." She said the Respondent was videoing the event for the patient's wife.
After Ms Howells had spoken with Person A, she said: "I think it is important that I need to tell my manager". Person A had agreed to that. Ms Howells then said: "She was frightened, she said, because when she told her husband about it initially, about ICU when he was saying things, her husband was very, very, angry with her and she said to me: 'No man should touch me like that, only my husband'."
During the balance of the afternoon Ms Howells said the Respondent "kept coming back and forth to me that afternoon and night then and said 'Is she okay is she okay?' And I said yes fine and before he left that afternoon he came back in again, closed the door of my office and said: 'you'll look after her for me won't you, you'll take care of her.' Which I thought was a little bit strange at the time and I said: 'Yeah of course'."
When asked to recall the actual words the Respondent used to describe what had happened that upset Person A, Ms Howells said: "I might have rubbed up against her." She said: "I don't know whether they are his exact words there… They might have been 'I rubbed past her or something'." She said that the Respondent had asked her: "What is wrong with your staff down here?" Because he had a couple of little issues nothing to do with stuff like this.
Ms Howells participated in another interview on 30 September 2019, a copy of which is attached to her statement. From that interview we note the following. This interview occurred after an interview with the Respondent. Ms Howells was asked whether the Respondent was told by her that Person A had alleged that he had "squeezed her bum". Ms Howells was having difficulty remembering the incident in detail. She referred to her notes to refresh her memory.
Ms Howells was asked: "Did you say to him [the Respondent] words to the effect of "what type of person talks to her husband about a bump in a work place?" Ms Howells said: "No, that's not my words. I did not say that."

[15]

Stephanie Howells Oral evidence

Ms Howells confirmed her statement was contained at Tab 12 exhibit A1. She confirmed that she was one of the staff members standing around the room where the Birthday Party took place. She confirmed she had spoken to the respondent on that day following the incident. It was her idea to speak to Person A on that day. She confirmed that Person A had demonstrated the action which she said had been used by the Respondent upon her, by squeezing Ms Howells' bottom with her hand. She said she had emailed her boss immediately after speaking to Person A on that day.
Ms Howells was cross-examined.
Ms Howells was shown a copy of the photos at exhibit R2. She agreed the plan showed where the beds were on the day. She thought the layout may have been changed as far as chairs were concerned. She could not remember where the patient was sitting. She said when it came time to singing Happy Birthday there were "eight of us around the bed." She could not recall where the chair was. She agreed that when it came to singing Happy Birthday there was a nurse who was going to film it on a phone but the phone was handed to Dr Raj. She recalled that Dr Raj had asked for the song Happy Birthday to be sung again as he had "mucked up the photo." She said that when Dr Raj was taking the photo he was close to her and the bed. She remembered seeing Person A in the room during the singing. As she left the room she did not see Person A ahead of her. She was asked whether people were packed tightly. She answered: "There was no social distancing." She agreed she rushed out of the room after the singing.
Ms Howells agreed that the Happy Birthday singing could have taken place around the change of shift. She agreed that could have been more people around to sing Happy Birthday because of the change of shift. She recalled that Person A had a concern that her husband would be very angry if she told him about this event.
Ms Howells had paragraph 81 of the Respondent's statement read to her. She was asked if that conversation occurred. She said: "No". That conversation reported by the Respondent is as follows: "Just before I left work, I went back to Ms Howells's room. We had a conversation to the following effect: Me: 'What happened after I reported it to you?' Ms Howells: 'Do you know what she's meaning by "touching you"?' Me: 'No, she didn't tell me and I didn't ask her.' Ms Howells: 'She's saying you touched her bum.' Me: 'I did not touch her in any way! If I bump into her or touched her, it was an accident and I have already apologised to her for that.'
We note that in oral evidence the Respondent conceded that after he had spoken to Person A and Ms Risby in the NUM's office, he knew it was being alleged he had squeezed Person A's buttocks. That is consistent with the evidence of both Person A and Ms Risby.

[17]

Evidence of Dr Chris Dedousis

This witness was not required for cross-examination by the Respondent. Nor did the Tribunal members have questions for him.
In his Statement we noted the following evidence which we considered important to our determination.
Dr Debousis annexed to his statement a copy of an interview he had conducted with Mr Tawfig on 29 September 2019.
Dr Debousis was told the interview concerned Dr Mahbub Hasan (the Respondent) who was better known as "Raj". Dr Debousis said he knew the Respondent because he was his supervisor at Kareena Private Hospital during the Respondent's term there is an Advanced Trainee in Geriatric medicine.
Dr Debousis was asked if he had cause to speak to the Respondent about any particular issues. Dr Debousis said that he did and Associate Professor Gonski had spoken to the Respondent earlier in his term about complaints from nursing staff about the Respondent's interaction with them. He said the Respondent was somewhat defensive. The Respondent said he simply asked questions especially the phone number part to make himself available so she could call him about patients, something I found totally unbelievable.
Dr Debousis said: "At the first interview he was quite defensive. He just said 'no' he had nothing in store, he didn't mean anything by it, he just wanted to make himself available for any patient problems. He didn't in any way harass the nurse. He didn't say anything bad etc, and we asked him to cease and desist, don't ask questions like that. Don't ask personal questions about people's private lives etc. It is none of your business do your work, work in a professional manner and go home." Dr Debousis had said it was reported that the Respondent had asked nursing staff for their personal telephone numbers. That was part of the discussion Dr Debousis had with the Respondent, as reported above.
Dr Debousis said there was a second meeting a month or two later, with the Respondent. The second meeting where Associate Professor Gonski was present arose because of "his behaviour towards people. There were complaints from both wards regarding his interaction with staff. At one stage he was quite upset and angry at a staff member, a nurse, then he swore at her using the 'F' word which Associate Professor Gonski heard personally."
Having been told about the Birthday Party incident with Person A, Dr Debousis said he had met again with the Respondent. He reported the Respondent "said he touched nothing, he touched no one. He had a camera in his hand while the birthday party was happening. He wasn't near the person, he didn't or hadn't in the past picked on that person, touched her legs or had the need to touch her toes or anything like that. He denied most of the accusations."
In relation to the allegation that the Respondent had been touching Person A and possibly others in the workplace, Dr Debousis said the Respondent had said: "Oh yes. They come and touch me too and when they come and talk to me they touch my arm and that is when they are talking to me and asking me questions." Dr Debousis understood in response to questions that he had asked the Respondent about putting his hands on staff members, that the Respondent was "trying to explain I suppose, that he was just being social, I suppose and didn't mean anything by it and they do the same thing. They come up to him and tell him about things and touch his arm or touch his shoulder. I think he was just trying to defend himself in a way."

[18]

Evidence of Dr Stephen Phoon

This witness was not required for cross-examination by the Respondent nor did the Tribunal members have questions for him.
In his statement we noted the following evidence which we considered important to our determination.
Dr Phoon attached to his statement made 25 February 2020 a copy of a transcript of an interview he had completed with Mr Tawfiq on 22 October 2019. He made some clarifications to the first part of the interview. We noted the following in the evidence of Dr Phoon.
He was a supervisor for the Respondent as an Advanced Training Term at Kareena Private Hospital. He made notes about the meetings he had with the Respondent. He annexed those notes to his statement.
Dr Phoon had made a note on 11 April 2019 that he had an official meeting with the Respondent regarding complaints made against the Respondent in relation to trying to get hold of personal mobile phone numbers of one of the registered nurses. There was a complaint that he had told a nurse to "fuck off". When the Respondent was spoken to he denied that happened however, Associate Professor Gonski said he was around the corner and actually heard it.
During one of his meetings with the Respondent, the Respondent told him he was "appalled, horrified and there was a toxic work culture." Dr Phoon notes that: "When we went through it he couldn't actually describe details of those work cultures." Dr Phoon noted that the Respondent felt he was profiled, there was workplace bullying and racism and he was specifically asked about what that meant and he could not actually give details of it apart from the fact that these things have come up.
Dr Phoon had notes about the Birthday Party incident on 23 May. He had been told the allegations made by Person A. He said the Respondent had denied any wrong doing and if he had touched Person A it was inadvertent whilst taking photos or being bumped by someone else while singing Happy Birthday.
Dr Phoon provided notes he made in relation to a meeting with the Respondent on 24 May 2019, in relation to the incident with Person A and the alleged squeezing of her buttocks and other inappropriate action the Respondent is alleged to have visited upon her. His notes show that when confronted about the allegations made by Person A the Respondent stated he had done nothing wrong. He had never had interactions with this nurse previously. If he had touched her, it was inadvertent, while taking photos or been bumped by someone else while singing Happy Birthday. He could see that something was not right so he left a message to speak with the NUM, with his version/account. Dr Phoon noted the Respondent "strenuously denied any wrongdoing having worked hard and done nothing wrong."
Dr Phoon had other notes in relation to meetings with the Respondent however they do not relate to the complaint being considered by us.

[19]

Evidence of Yvonne Hart

The witness Ms Hart was not required for cross-examination by the Respondent nor did the Tribunal members have questions for her. She gave her evidence in statement form.
In her Statement we noted the following evidence which we considered important to our determination. The statement was made by Ms Hart on 27 March 2020. She is the Director of Clinical Services at Kareena Private Hospital. On 27 September 2019 she had an interview with Mr Tawfiq. She attached a copy of that interview to her statement and said the statement was true and correct.
On 24 May 2019 Ms Hart attended the meeting with Person A and Ms Howells. She made handwritten notes on an email sent from Ms Howells and then typed up her notes immediately afterwards. She attached a copy of those notes and marked the notes as "A".
On 27 May 2019 Ms Hart attended the meeting with Ms Howells and Jane Early as the scribe. Ms Hart was given a copy of the notes at the conclusion of the meeting and she typed a copy of the notes within 24 hours. She had discarded the handwritten notes at the time. She attached a copy of those notes and marked them at "B".
On 28 May 2019 Ms Hart attended a meeting with Ms Risby and Jane Early as the scribe. Ms Hart was given a copy of the handwritten notes from which she typed a copy. She marked that as "C" attached to her statement. She had discarded the handwritten notes.
On 28 May 2019 Ms Hart attended a meeting with Debbi Moody. She made her own handwritten notes of the meeting which she then typed a copy of on the same day. She discarded her handwritten notes. She marked that typed note as "D" attached to her statement.
From the notes of the meeting of 24 May 2019 attached to the statement of Ms Hart as "A" we note the following:
The meeting was held at 11:30 am.
Person A described her interaction with the Respondent prior to the incident on 23 May 2019. That description is consistent with the evidence of Person A which we have set out earlier.
In relation to the events of 23 May 2019 the notes record as follows: "All staff had met in the long-term patient's room to celebrate his birthday at approximately 13:10 hours. There were a lot of people gathered in the room. Person A felt [the Respondent] "pinch her bottom." She was so shocked she swatted his hand away. She said that she had to control herself because she was so angry but she did not want to make a scene in front of everyone. At 13.30 hours Person A gave patient handover to a colleague. At approximately 14:00 hours Person A saw RG [the Respondent's colleague] leave their joint office so knew that he was in there alone. Person A took the opportunity to confront him as she was so angry but what he did. Person A told [the Respondent] that what he did was "not acceptable". That she was a married woman and faithful to her husband. [The Respondent] apologised and said that it would not happen again. He kept repeating this over and over. Person A left the office. Person A went back to look after her patients as her shift was not due to finish until 15:00 hours. She said that [the Respondent] noticed that she was upset. She felt that [the Respondent] spent the rest of the shift "keeping an eye" on her. Following her around the ward, even entering a room that was not his patient. Person A decided to share the incident with Ms Risby, the team leader. She and Ms Risby discussed the incident in Ms Howells office, behind a closed door. While in discussion [the Respondent] knocked quickly and entered through the door opening, citing that he was looking for Stephanie. He walked out and left the door ajar. He re-entered the office shortly after and said "sorry, it was an accident, the room was crowded, what can I do to make it better?" Person A told him that she needed personal space and that she didn't want it to happen again. That she wants a happy life at work. [The Respondent] kept saying "sorry, it was an accident." He then left the office. [The Respondent] continued to approach Person A until the end of her shift asking her "are you okay?" Person A noted the difference in the two conversations regarding the incident. When alone, [the Respondent] apologised and said "it wouldn't happen again". When a witness was present, [the Respondent] apologised and said that it was an accident because the room was crowded."
Ms Hart annexed to her Statement a copy of the transcript of the interview she conducted with Ms Howells on 27 May 2019. She also annexed a copy of the notes she made of the interview she conducted with Ms Rigby on 28 May 2019 and a copy of the notes she made of the interview she conducted with Ms Moody on 28 May 2019.

[20]

The evidence of the Respondent

The Respondent made a statement which is included at Tab 2 of exhibit R1. From that document we note the following.
The Respondent set out detail of his qualifications and his work placements. That included that in February 2019 he commenced work at Kareena Private Hospital as a secondment from St George Hospital. His work at the Kareena Private Hospital was as an Advanced Trainee in Geriatric Medicine. His supervisors were Dr Debousis and Dr Phoon.
The Respondent said he had interactions with Person A in the wards while he worked there. He said he observed that she had a relatively heavy accent. He said: "It is likely that there were many occasions on which [Person A] was there [at the nurses station at the short stay unit] at the same time as me if we were both working on the same day."
The Respondent said he had never used the following words to Person A "You are beautiful, you are lovely, can I be your side boyfriend." He also said: "I have never asked [Person A] any questions about her personal life and we have never discussed our personal lives. At that time, I did not even know what was meant by a side boyfriend".
The Respondent said that the configuration of chairs and desks at the short stay nurses' station, was such that: "It would be difficult to put one's arms across the back of a person's waist while they were seated in the chair." The Respondent denied he had ever done that to Person A or that he had rubbed the back of her waist. He denied he ever touched, rubbed or pinched Person A's waist. He denied he had ever intentionally poked Person A's feet with his feet or poked a leg with a pen. If it occurred it was accidental.
The Respondent said when he first commenced working at Kareena Private Hospital he did not have a swipe card to enter ICU for the first few days. After that there were times when he did not have his swipe card with him because he had left it in his car or at his desk. He said it is likely that on some occasions he asked Person A to use her swipe card to let him into ICU. He denied he ever said to her words to the effect of "I want your house key if possible". He suggested that Person A may have heard him use the words "house key" in a telephone conversation with a Real Estate agent as he was at that time, in February and March, negotiating for the purchase of a property in Hornsby and also arranging for his Newcastle property to be rented.
In relation to the birthday celebration on 23 May 2019 the Respondent said that the birthday celebration was for an elderly patient who was an inpatient in the hospital at the same time as his wife.
Shortly after midday on 23 May 2019 the Respondent said he entered the room where the birthday celebration was to take place. He observed about 10 people in the room. They were all nursing staff. There were two beds, two tables and two large chairs in the room. The male patient was in one of the beds and the female patient was sitting in one of the chairs by his side. The Respondent attached a sketch plan of the room for his statement. The plan also illustrated where those in attendance, were standing at the time. Because of the position he was standing in, the Respondent offered to take a good photo and video from a mobile phone which was handed to him. He attempted to operate the mobile phone and held it in his hands while those present sang Happy Birthday. Because the video on the phone did not record on the first attempt the Respondent asked those present to sing again so that he could retake the video.
As staff members were leaving the room the Respondent said that the female patient called out to him "Raj, come here. Take a photo please." The Respondent then moved towards the patient with the mobile phone in his right hand. As he was moving towards the patient there was a flow of staff members leaving the room walking past him in the opposite direction. He does not recall if he bumped into or made contact with anybody. He accepts it is quite possible that he bumped into Person A. He also accepts that it is possible that his hand brushed Person A as he was trying to steady himself against the flow of people walking in the opposite direction.
The Respondent denied that he intentionally put his hand on Person A's buttocks. He also denied that he squeezed or pinched her buttocks.
The Respondent said he then returned to his room. Shortly thereafter Person A entered his room. She said: "I did not like the way you touched me." He said he observed she seemed angry. The Respondent said he was shocked and did not know what she was referring to. He assumed she was referring to something that it just occurred during the birthday celebration. He said to Person A: "I did not touch you in any way. If I accidentally bumped on you in anyway, I apologise for that." He said that Person A had replied: "okay". He said Person A then left his room.
The Respondent said: "When Person A left, I was still in shock. I decided it was best to report the incident so I left my room and went to Ms Howells' room. Ms Howells was not there but Person A and Ms Risby were in the room. I entered the room. I said on more than one occasion words to the following effect: "I did not touch you in anyway if I accidentally bumped you in any way, I apologise for that." I don't recall what, if anything, Person A or Ms Risby said in reply."
The Respondent said that at 2:30 pm he sent Ms Howells an iMessage from his mobile phone: "need to talk". He did not receive a response and so at 4:03 pm he sent a further text message: "Are you still around?" Around 10 minutes later Ms Howells came into his room. He closed the door behind her and had the following conversation: Ms Howells: "Is everything okay?" Respondent: "(Person A) is not happy with me. She thinks I touched her. I told her I did not touch you in any way. If I accidentally bumped on you in anyway, I apologise for that". Ms Howells : "You are kidding? Why would she think that?" Respondent: "I think she is talking about something that happened when we were at the birthday this afternoon". Ms Howells: "Oh, okay. Are you okay?" Respondent: "Yes, thanks, I'm fine. Just a bit shocked." Ms Howells : "I will go and speak with (Person A) and see what she says."
The Respondent said that later that day he saw Person A leaving the Botany Unit. He felt she may still be angry or upset. He said to her: "is everything okay?" He said she responded: "Yes, everything is okay." He said he observed that she had a smile on her face.
Before he left work on that day the Respondent said he had a further conversation with Ms Howells. He said to her: "What happened after I reported it to you?" She responded: "Do you know what she's meaning by "touching you?" The Respondent said: "No, she didn't tell me and I didn't ask her." Ms Howells said: "She's saying that you touched her bum." The Respondent replied: "I did not touch her in anyway. If I bumped into her or touched her, it was an accident and I have already apologised to her for that."
The following day the Respondent said he spoke to Ms Risby and asked: "is everything okay?" He said that Ms Risby responded: "[Person A] accept your apology. I think her reaction was probably cultural. Let me know if anything like this ever happens again." The Respondent replied: "I will."

[21]

Interview with the Respondent on 26 June 2019 (Tab 24 exhibit A1)

We have read this interview and particularly noted the following.
The Respondent acknowledged he had been provided a document and had read the allegations made against him.
The Respondent denied each and every allegation that had been made by Person A against him up to 23 May 2019. There was no suggestion how Person A may have been confused or misunderstood any of his words or actions which led to her complaint.
The Respondent denied the allegation Person A had made about his squeezing her buttock on 23 May 2019.
The Respondent was asked whether he knew of any reason why Person A would make vexatious allegations against him. He said: "No".
In relation to the occurrence on 23 May 2019 at the Birthday Party celebration the Respondent was asked: "Do you remember if you passed [Person A] on the way back to providing the phone to?" The Respondent said: "I did not cross paths with [Person A] or whoever." The Respondent said: "The whole time I was holding the phone with two of my hands." He said: "I did not bump on anyone, I did not touch anyone."
The Respondent was asked if he had a conversation with Person A on that day and he said he had. He said: "She came to me and told me she did not like the way I touched her. I told her: "I did not touch you, if I accidentally bumped on you in any way, I apologise for that. She said: "okay" and left."
The Respondent said he did not know what it was alleged by Person A that he had done to her until Ms Howells told him later that day. She told him that Person A said he had squeezed her bum. He said: "I have never touched her, never." We note the concession made by the Respondent in cross-examination that he did know from the conversation he heard between Person A and Ms Risby in the NUM's office that she was alleging he had touched or squeezed Person A's buttock. Further the evidence of Ms Risby is that the Respondent was told by Person A that he had squeezed her buttock, when he spoke to Ms Risby and Person A in the NUM's office.
The Respondent said that later that day "while she was leaving Botany Bay Unit, I was writing in the main desk, I asked her is everything okay? She replied: "everything is okay" and left.

[22]

The Respondent's Oral evidence

The Respondent identified his statement made 11 May 2021. He said the contents were true and correct.
The Respondent was cross-examined.
The Respondent described his relationship with Person A as "casual ward relationship. A working relationship. She was professional."
The attention of the Respondent was taken to a meeting he had with Associate Professor Gonski, Dr Debousis and Dr Phoon on 24 May 2019. The recording of the meeting is located at Tab 15 B Page 372 of exhibit A1. The Respondent said the meeting was very chaotic. They randomly asked him questions.
The Respondent was asked to look at Tab 26 of exhibit A1. He agreed it was a letter from his lawyer written to the Local Health District. He said he had seen the letter before it was sent, he had input to the information in the letter and he had an opportunity to explain.
The Respondent was also asked about his attendance upon the s 150 hearing a transcript of which is contained at Tab 4 of exhibit A1 and was conducted on 10 July 2019. He agreed he had attended at that hearing with his solicitor and he had an opportunity to give his response to the allegations. He has read the transcript of the s 150 hearing. There is nothing in the transcript he would wish to correct or change.
The Respondent was asked whether he had any contact with Person A outside of the workplace, to which he responded: "No". It was put that she told him she was married. The Respondent denied that. He denied he told her she was beautiful. He denied he told her he wanted to be her "side boyfriend or that he told her he thought she was lovely." He denied he had said to her "I want your house key if possible."
The Respondent was asked about his statement which appears at Tab 2 of exhibit R1. He agreed he had signed every page. He was asked whether he had typed the statement himself and he responded: "Yes with help of lawyers." He was asked did he type paragraph 45 of the statement. He said he had typed part of it. It was put that in that paragraph he set out an explanation about the use by Person A of the words "house key". He agreed that was the case. It was put that he had never mentioned that explanation, during the s 150 hearing or in his interview. He agreed.
The Respondent agreed that on occasion he would sit next to Person A at a workstation. It was put that he poked her feet with his feet. He denied that. He denied he poked her leg with a pen. He said: "If any touch it was inadvertent." He denied he touched her with a pen.
The Respondent was asked if he had touched Person A with a "gentle touching?" He said: "No. Any touch was inadvertent. It can happen when working in ICU." It was put that on approximately three occasions in the hospital the Respondent touched the back of Person A. The Respondent said: "No".
In relation to the Birthday Party held on 23 May 2019 the Respondent agreed that he was in the room at that time, he was holding a phone. He said he never consciously touched Person A on that day. It was put that the Respondent put his hand on the buttock of Person A and squeezed it. He denied that. It was put that she hit the Respondent's hand away. The Respondent said: "there was no hit that I felt on my hand."
The Respondent agreed that after the birthday celebration he returned to his office and that Person A came to that office before 3:00 pm. It was put that she said to the Respondent: "It was unacceptable what you did." The Respondent replied: "No. She told me she did not like the way I touched her" It was put: "You knew she was talking about what happened at the birthday party. The Respondent said: "I suppose that was what she was referring to." He did not recall if she said "I'm not happy with that" or "I feel uncomfortable" or "it's inappropriate."
The Respondent did not recall whether Person A had told him at that time: "I am married." He said: "It is very unlikely she said that". It was put that she was upset. The Respondent said: "She was angry. I could see it in her face." It was put: "You knew what she was talking about." The Respondent said: "I instantly apologised to her." It was put that the Respondent said: "Sorry it won't happen again." The Respondent replied: "I did not." It was put "You said: 'Sorry I didn't mean to do it.'" The Respondent said: "No". He was asked "Are you sure?" he replied: "I am sure." He denied he had said: "How can I make it better?"
The Respondent was asked if he apologised three times to Person A. He said "I may have apologised more than that. After I told her I did not touch you in any way and if I accidentally bumped you I apologise. Then she said 'okay' and left." The Respondent said he would have apologised again if Person A had remained longer. He said: "I would have. She was very upset. I could see in the demeanour in her face."
The Respondent agreed that the next time he saw Person A on that day was in Nurse Howells' room. He agreed that he had apologised to Person A in that room on multiple times.
The Respondent was asked whether he was worried at the time and he said: "Yes." It was put that he had followed Person A. He said he was looking for Sister Stephanie. He agreed that was because he was concerned.
It was put that the Respondent saw Person A talking to Nurse Risby. He said: "No. I called Nurse Stephanie on her Dect phone soon after Person A left my room, but she didn't answer. I went out to look for her and I saw nursing staff doing handover. I was looking to report it to the nurse manager, to report it myself."
It was put that when the Respondent arrived at Nurse Howell's Office and saw Person A talking with Nurse Risby, he sensed what they were talking about. He agreed. He agreed he had heard part of what they were talking about. He said he was interrupted by a call from others. He said: "I told [Person A] and Sister Risby, I did not touch you in any way. It is very likely I said that multiple times." The Respondent was asked what he did hear of the conversation between Person A and Nurse Risby. He said: "I barely heard what they were talking about. I heard touching, bum, inappropriate, bump, things like that. I am certain she mentioned what she had said to me." The Respondent said he did not hear Person A say "You touched my bottom." He did not recall her saying: "No I felt you squeeze." He understood that Person A was reporting the incident to Ms Risby.
The Respondent said he could possibly have said "It was an accident." He said he was sure she was talking about the Birthday Party. He agreed he said multiple times he may have bumped against Person A. He said: "I said that if I accidentally bumped you then I apologise for that."
The respondent agreed that Sister Howell probably came to his room about 3.30 pm. He did not recall the time. He agreed that when he spoke to Sister Howell he knew that Person A was alleging he had "touched her bum".
It was put: "So you were aware of such an allegation you touched her bum". The Respondent said "I was aware she considered she was inappropriately touched. I was not clear about the 'bum' issue was her referring to a touching on the bottom."
The Respondent agreed that when he spoke with NUM Howells he understood Person A was alleging he had touched her on the bottom. He understood it was a very serious allegation being made against him.
It was put to the Respondent that the conversation he set out in paragraph 81 of his statement did not occur. The Respondent denied that.
The Respondent denied his statement that Person A had accepted his apology was incorrect. He also denied he had fabricated his evidence that later on the day, after the Birthday Party incident he had asked Person A if she was OK and she had said "Yes everything is OK" and smiled at him.
The Respondent denied the conversation he reported as having taken place with Ms Risby, later on the day of the Birthday Party incident, did not occur. The conversation included Ms Risby saying "[Person A] accepts your apology."
The Respondent said that it was clear to him that Person A was alleging he had touched her "on the bum" when he heard those words exchanged between Person A and Ms Risby shortly after the Birthday Party incident.

[23]

Submissions of the HCCC

On the last day of the hearing the HCCC provided some of its submissions which largely addressed the oral evidence given in the hearing. We noted the following from those submissions.
We were advised to recall that the hearing was Stage 1 only.
It was submitted that the evidence provided details of the conduct complained of by Person A and we were asked to note that there was the opportunity for the conduct to have taken place.
It was submitted that Person A had complained to others including her husband, her friend at work and her flatmate, about the conduct of the Respondent.
On the day of the Birthday Party incident Person A told Miss Risby and Ms Howells about the earlier conduct of the Respondent towards her.
In the signed statement at Tab 7 of exhibit A1, Person A adopts other interviews in which she had been involved.
We were asked to take regard to the demeanour of Person A when giving her oral evidence and describing the conduct. Additionally, the description of the demeanour of Person A, by other witnesses should be accepted as confirming the voracity of her evidence.
It was submitted that there was no apparent reason disclosed in the evidence which would suggest that Person A would make a vexatious complaint. There was no benefit to Person A in reporting the contact.
The HCCC submitted that the Respondent's explanation for why the term "house key" may have been misunderstood by Person A, should not be accepted.
In relation to Particular 2 the HCCC said there was no need for us to make any findings about the allegation of the Respondent poking Person A on the arm because it was not included in the particulars of the Complaint.
It was submitted that the Tribunal should accept Person A as a truthful witness and accept that her evidence accurately described the conduct of the respondent about which she complained.
The HCCC directed us to the evidence of Ms Risby where she said he had told her he had touched Person A as a friendly gesture.
In relation to Particular 4 the HCCC submitted that many of the facts are not in contest. It is agreed that both Person A and the Respondent were at the Birthday Party. Person A confronted the Respondent shortly after the event. He had said she presented as angry. She reported he apologised to her by saying "sorry it won't happen again." Person A told Ms Risby what had happened to her. This was a direct complaint to a more senior nurse. The Respondent entered the room when Person A and Ms Risby were talking. The conversation which took place then is recorded in interviews involving Person A and Ms Risby. The version of fact offered by Person A was also recorded in a further interview with Ms Howells and Ms Hart and later Mr Tawfiq.
The Respondent's Senior Counsel also provided part of the Respondent's submissions at the conclusion of the hearing. He addressed the Briginshaw test for the standard of proof which he said needed to be applied to this determination. He submitted the Tribunal needed to apply a separate consideration to each Particular.
In relation to Particular 4, the respondent's counsel said "there is no impugning of Person A's credit on the fact that she felt a squeeze on her buttock." He said the Respondent does not dispute that Person A was present and that she was enraged.
In relation to the evidence of Person A it was conceded that there are many unchallenged facts. It was submitted that the Respondent's account of what he did at the Birthday Party has been consistent. Person A agreed that it was a "split second contact". The Respondent concedes it could have been a split second contact. It occurred in a public and crowded space. The photos which became exhibit R2 show the space and where people were assembled. The Respondent made himself obvious by undertaking the filming on the patient's phone. The contact occurred when people were leaving the area. The Respondent was moving against the crowd. It was an emotional occasion. There was jostling to a certain extent. There was no challenge to his version about where he was in the room and how he moved. The person who was originally to take the film on the phone was in the corner of the room. The mood of the occasion would lend itself to say it was bizarre to think the Respondent would use the opportunity to squeeze a bottom.
In relation to the evidence of Person A. It was submitted that she was a witness with a genuine sense of grievance. The Respondent has not attacked her credit.
It was submitted that Person A did not see who actually pinched her bottom. Her claims that she had turned her head was recounted. She changed the number of people she said were in the room. She challenged that people were physically touching in the room. She was worried about her husband urging her to object to the behaviour. She told Deepti Kumar that she was not sure about the Respondent's motivation.
The Respondent addressed matters of credit in relation to his evidence. It was put when Person A confronted him he was surprised. It had been suggested that his credit was impugned by his failure to make a further inquiry as to what it is alleged he did. However, he did make an inquiry of Ms Howells. It was suggested he disrupted the meeting between Person A and Ms Risby. It was submitted that none of that conduct amounted to an admission that the Respondent had squeezed the buttock of Person A.
In relation to the meeting with Person A in his room shortly following the Birthday Party incident it was submitted that there is no admission arising from his conduct. He said it was unintentional. The only occasion he could have done that which is alleged was in the jostling as persons attempted to leave the room. Person A came at the Respondent angry. She put to him that he had inappropriately touched her. It was submitted such an allegation must have been alarming to the Respondent. His response was: "Sorry I didn't mean to do it. It won't happen again."

[24]

The HCCC's written Submission

The HCCC commenced their submission by setting out what it sought as a finding in the current hearing. The HCCC submitted: "3. For the purpose of Stage 1, the Tribunal must consider: a. First, whether, on the evidence, the subject matter of the complaint is proven. b. Second, if unsatisfactory professional conduct is proven, whether the conduct amounts to professional misconduct. 4. The Commission seeks findings that the subject matter of the complaints is proven and that the practitioner is guilty of unsatisfactory professional conduct and professional misconduct."
The HCCC set out the following in relation to Complaint One. "Complaint One 6. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law because he has engaged in improper or unethical conduct relating to the practice or purported practice of medicine."
The HCCC then addressed Particular 1 which is set out in the Complaint. It referred to the evidence which it said supported a finding that the details in the Particular have been established.
The words spoken by the Respondent, to Person A, are set out. It is to be remembered that although the Respondent denied he had used the words attributed to him, it was not put to Person A that she had fabricated the evidence. The Respondent had a different version of words which he said Person A may have heard around her allegation that he had told her he wanted her house key if possible.
The HCCC submits there was the opportunity for the events to have occurred as stated by Person A. There is not a submission made by the Respondent that the events described by Person A could not have occurred.
The HCCC set out that the evidence of Person A, as she provided in her statements and in her oral evidence is the same. It also compared her evidence through the voice of the witnesses who spoke with Person A about her allegations, against the Respondent. It was submitted that Person A had consistently recited the allegations she had personally made about the words and actions of the Respondent which were visited upon her by him in their workplace.
In relation to Particular 4, the HCCC submitted that the Respondent had the opportunity to squeeze the bottom of Person A as she alleged. It was submitted that Person A has given consistent evidence that the respondent squeezed her bottom. She promptly confronted the respondent about the contact and then promptly reported the conduct to Ms Risby, Ms Howells, her flatmate and her husband. The HCCC submits that Person A gave a consistent account of the occurrence where she claimed the Respondent had squeezed her bottom. That can be seen in the evidence of Ms Hart and the interviews conducted by Mr Tawfiq.
The HCCC submitted the evidence of Person A should be accepted and set out the following in support of that submission: "[Person A's] evidence should be accepted The Commission submits that [Person A's] evidence should be accepted because: a. [Person A] felt her bottom being squeezed while she was in close proximity to the respondent; b. [Person A] reacted instinctively by hitting or swatting the respondent's hand away; c. [Person A] promptly confronted the respondent, only minutes after he squeezed her bottom, told him she was unhappy with how he touched her and he replied that "it" would not happen again; d. [Person A] promptly reported to Ms Risby, Ms Howells and her husband, on the same day; e. [Person A] demonstrated to Ms Howells how the respondent squeezed her bottom; f. [Person A] gave consistent accounts to Ms Kumar, Ms Hart and Mr Tawfiq that the respondent squeezed her bottom; g. [Person A] gave a consistent account in examination in chief, I step in front of him so I can walk out, in that moment we walk opposite way because I about to walk out, and he stepped in a little bit to return the phone, when my back has his front to me his hand squeezed on my bottom; h. [Person A] maintained her account in cross-examination, I tried to move fast but the thing is they had people trying to move out so we had to slow down… my head was backwards so I know he walked behind me… I can feel his movement, that's why I move forward for him… it was him… It's not touching it's squeezing my bottom and that made me very angry… I know it was Dr Raj; i. [Person A] maintained her account in re-examination, where we stand next to each other our back is against the wall so no one really stand behind us, when I step forward I make a space for him, before I move, I walk past and he can walk past him, I know it was him we walked past each other… I know it was a squeeze… I tell this on my own oath. I just telling what had happened. j. [Person A] fairly conceded that it was a split second contact; k. Contrary to the respondent's Senior Counsel's oral submissions that [Person A] was argumentative or suffered selection bias, [Person A's] oral evidence was clear, consistent and compelling; l. [Person A] has logically explained that the squeeze was not an accidental bump "the reason I knew it was Dr Hasan's hand that did the squeezing is because I moved forward to give him space to return the phone to the patient. I then saw him move behind me and there was no one else behind me expect him. The squeeze could definitely not be mistaken for an accidental bump. When he squeezed my bum I automatically choked and my automatic response was to slap his hand away from my bum." m. [Person A's] account that she felt the respondent squeeze her bottom and that it was not accidental was unshaken in cross-examination; n. [Person A] was understandably upset and angry about the respondent squeezing her bottom, she was quite shocked and shaky and was not behaving like her normal self at the handover; o. It is understandable that [Person A] was upset about the conduct because the touching had become more frequent (started to do "more and more almost every day" ); p. It is understandable that [Person A] was angry about the conduct because the touching had become more intimate (from touching her leg/foot and back/waist to squeezing her bottom); q. [Person A's] allegation that the respondent squeezed her bottom is corroborated by her allegations months previously, to Ms Moody, her husband and her flatmate, that the respondent was making unwanted advances towards her; r. The evidence that the respondent squeezed [Person A's] bottom is corroborated by the evidence that he made inappropriate personal remarks and inappropriately touched her on previous occasions; s. It is reasonable that [Person A] would initially just confide in her close work colleague, her husband and housemate about the respondent's advances and be reticent to make a formal complaint to a manager until the conduct became more overtly physical; t. [Person A] was a relatively new employee to the hospital so it is unlikely that she would wish to put herself in the stressful position of making a formal complaint against a doctor, apart from wishing for the conduct to stop."
The HCCC addressed the reasons it submitted the evidence of the Respondent should not be accepted where it conflicted with that of Person A. The submission was very lengthy and we do not include it here although we have had close regard to it.

[25]

The written Submission of the Respondent

The Respondent commenced his submission by focusing on the important issue of "burden of proof". He included the following submission which we set out in full because of the importance emphasised by the Respondent in this case. "Onus and Standard of Proof 1. The onus of proof lies at all times with the Commission. The standard is analogous to that espoused in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw). 'Comfortable satisfaction' is a common sense summary. It imposes a standard which expands with the seriousness of the allegation to be proved. This is especially relevant to Particular 4 (the Birthday Party). 2. In Health Care Complaints Commission v Rakheja [2020] NSWCATOD 156, the Tribunal said at [15]: 'The Applicant bears the onus of establishing that the impairment which was found by the previous Tribunal is no longer in existence. The test has been accepted as that in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. Although it has been described as a misnomer to consider the burden of proof in a Tribunal where the rules of evidence do not prevail: see Hayne J in FTZK v Minister for Immigration and Anor [2014] HCA 26 at [33]-[36], such standard is accepted as the appropriate test in this Tribunal for matters arising under the National Law: see Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14] and the observations of the Court of Appeal in Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 referred to therein.' 3. In Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]: 'However, the Tribunal is not bound by the rules of evidence and, strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, Leeming JA with whom Gleeson JA agreed. While we are not bound to adopt the approach set out in Briginshaw or in s 140 of the Evidence Act, that general approach may be justified. When deciding whether the evidence is sufficient to meet the civil standard of proof, we will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding.' 4. The importance of the proper application of Briginshaw for Tribunal matters has been considered by the Court of Appeal. In Gautam v Health Care Complaints Commission [2021] NSWCA 85 handed down last month, the Court of Appeal said at [85] and [86]: [85] As to ground 2, in particular ground 2(c), that the Briginshaw principle applied, the Tribunal cited Briginshaw, and expressly noted that it had to be "comfortably satisfied" that the complaint had been established on the balance of probabilities having regard to the potential seriousness of the consequences for the appellant. I do not accept, as was submitted, that the Tribunal merely gave "lip service" to the Briginshaw standard. [86] In written submissions before the Tribunal counsel for the appellant himself asserted that "comfortably satisfied" was an acceptable shorthand for the applicable test.' 5. Further, in Kumar v Legal Services Commissioner [2015] NSWCA 161, the Court of Appeal said: 'Mr Kumar denied all this, on his oath, and was cross-examined on it. But there was and is no plausible explanation inconsistent with deliberate dishonesty. The fact that the explanation was advanced for the first time on the third day of the hearing, years after the event, reinforces my conclusion. I am conscious that the finding is extremely damaging to Mr Kumar; indeed, it is destructive of his professional career and professional status and reputation. Such a finding should only be made in accordance with s 140 of the Evidence Act 1995 (NSW) and the principles in Briginshaw v Briginshaw. But I am more than comfortably satisfied that such a finding should be made.' 6. The birthday party allegation, if found, would be extremely damaging to Dr Hasan. It would potentially be destructive of his professional career and professional status and reputation."
The Respondent submitted that: 11. In short, failure to challenge renders the evidence more easily acceptable. This is notably relevant when considering Particular 4. In particular, the HCCC failed to put squarely to Dr Hasan the following matters in relation to the birthday party incident: (a) He noticed [Person A] was in the room; (b) He was aware she was standing nearby as he began to approach the [patient]; (c) He intentionally deliberately reached a hand out; (d) He intentionally squeezed her buttock; and (e) He was not blocked, baulked or jostled in any way causing him to fend off, squeeze or otherwise contact any person on the buttock.
The Respondent also submitted there was an obligation upon the HCCC to call other persons who were at the Birthday Party such as "Nurse Natalie".
The Respondent made the following further submission in relation to the requirement to ensure the evidence is sufficient to establish the fact alleged. "There is no probative evidence to support a factual finding, that is a question of law not a question of fact: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [91] per Hayne, Heydon, Crennan and Kiefel JJ: Nutek Constructions Pty Ltd v Slotwinski [2021] NSWSC 274. 16. In Liddell Coal Operations Pty Limited v Hector [2021] NSWCA 47, the NSW Court of Appeal recently considered the 'no evidence' ground in the having regard to onus of proof: In a case such as the present where the appellant is seeking to impugn the finding of fact in favour of a person bearing the onus of proof, the relevant question is whether the evidence on the point is sufficient, in the sense that it is evidence which if fully accepted could properly base the finding of fact: Ambulance Service of New South Wales v Daniel (2000) 19 NSWCCR 697; [2000] NSWCA 116 at 56 … citing Glass J in Azzopardi at 156. 17. Onus of proof was also considered in Ambulance Service of New South Wales v. Daniel & Anor [2000] NSWCA 116 at [56]: [I]n Azzopardi….a clear distinction was drawn between the situation where the finding of fact in question is made in favour of a person bearing the onus of proof, and the situation where the finding of fact is made against the person bearing the onus of proof. In the former situation, the question is not whether there is any evidence at all on the point, but rather whether the evidence on the point is sufficient, in the sense that it is evidence which if fully accepted could properly base the finding of fact. The distinction is made clear in the following passage from the judgment of Glass, JA at p.156: To the legally uninitiated there is a spurious validity in a submission that it was not open to the judge to find that the applicant was not injured since there was no evidence to that effect. If a respondent employer can argue a no evidence point, why cannot the applicant worker? The answer is, of course, that alleged insufficiency of evidence to prove a fact always raises a question of law but alleged sufficiency of evidence to the point of conclusiveness cannot, since it assumes that the evidence has been accepted. The party not bearing the onus puts an argument, which assumes against himself that the evidence has been accepted, but submits that it is not capable of establishing the fact. The party saddled with the onus on the other hand cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence. 18. In ZOI v ZOJ [2021] NSWCATAP 30 at [99], the Appeal Panel of this Tribunal said: Whether there is "no evidence" to support a factual finding is a question of law: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [90] - [91]. Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 356. Acting without evidence includes acting without probative evidence: Bruce v Cole (1998) 45 NSWLR 163 at 188-189; Skiwing Pty Ltd v Trust Company of Australia [2006] NSWCA 276 at [52]. A decision maker will make an error of law where he or she makes a decision which has "no basis in the evidentiary material or which was contrary to the overwhelming weight of that material" or draws "inferences which were not properly open": Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [23] - [24]. 19. Relevant considerations must always be considered. Relevant considerations (for example, the time and space considerations in particular 4) cannot be disregarded. Conversely, irrelevant considerations must be excluded in relation to each particular. The belated 'tendency' argument, for example, should be disregarded on this basis."
The Respondent submitted that in relation to Particular 4, the Birthday Party incident, the Tribunal should not find this proved to a comfortable level of satisfaction. The Respondent addressed the basis for that submission and in particular said: "23. His account was formally challenged, but a deliberate touch was not expressly put, and not explored. Nor was any effort made to render unlikely or improbable the sequence he describes. The details he gave (emotional feelings about [the patients]; video problems; pushing through jostling crowd; eye contact with [the patient], were simply not tested or challenged. These should be accepted without controversy. 24. The rule in Browne v Dunn is a rule of procedural fairness. The HCCC, as a matter of fairness, was required to put - but failed to put squarely to Dr Hasan - these matters: following matters in relation to the birthday party incident: (a) He noticed [Person A] was in the room; (b) He was aware she was standing nearby as he began to approach the [patients]; (c) He was not blocked, baulked or jostled in any way causing him to fend off, squeeze or otherwise contact any person on the buttock; (d) He intentionally deliberately reached a hand out; and (e) He intentionally squeezed her buttock. It would be unfair to find the contrary, especially given the contextual matters below. 25. Finally, his account is now given on oath and he was exposed to cross-examination on details if the Applicant (or Members) chose to do so. His account tells against the Commission satisfying this Tribunal to the exacting standard of 'comfortable satisfaction', especially when considered in light of the contextual matters below. Context: Conditions were ideal for an inadvertent fend-off 26. At the time of the contact, conditions were ideal for an inadvertent split-second fend-off, perhaps felt and interpreted as a split-second squeeze: (a) The relevant area was confined (exhibit R2) and crowded ; (b) Even before departure, people were pressed together; (c) A group departure occurred after the second 'Happy Birthday"; (d) The crowd jostled on the way out: Q (to Ms Howells): There was jostling and you could bump into someone without realising? A: Yes; (e) Even Person A admits being 'blocked' on the way out: Q: You were in a crowd that was stopping and starting? Sometimes you could take a step, sometimes you had to stop? A: Yes. (f) Dr Hasan was moving against the flow, toward the [patients]; (g) He was looking at the [patients]; and (h) He was nursing [the patient's] phone . None of these matters were challenged in cross-examination. 27. Just as the Applicant urges the probative weight of 'opportunity' when assessing [Person A's] evidence, so the Respondent urges the relevance and strong evidence of this opportunity for inadvertent contact. Conditions were ideal."
The Respondent then addressed in detail submissions which contended that in context, it is highly unlikely he would grab her buttock deliberately; The contact itself does not establish it was deliberate; Was it the Respondent at all?; Person A's knowledge of whether the contact was deliberate does not assist. Person A's evidence admits of significant doubt.
The Respondent addressed the question of "tendency" in response to the evidence, which was ultimately not opposed, of other conduct of the Respondent. We have not had regard to that evidence in our determination of the Stage 1 case. We consider if it ultimately is appropriate, we may have regard to that evidence should we find the HCCC case against the Respondent established at Stage 1.
The Respondent urged the following conclusion upon us. "Conclusion 65. Applying the cautious and fair approach to evidence required for a serious allegation, the facts do not establish to a comfortable satisfaction an inference of deliberate buttock-touching. Given Dr Hasan's evidence, given the context rendering accidental contact probable, given the lack of evidentiary support for Person A's account (and where other nurses could have been called) and given the lack of evidence she can provide about the Respondents intent, the correct finding must be that Particular 4 is not established."
The respondent addressed the conduct of Person A and the respondent following the Birthday Party event. It is submitted that the actions and words of the Respondent post the event do not amount to an admission, express or implied, on his part.
The Respondent emphasises that the evidence of Person A is not said by the Respondent to be a lie. Rather his case is that she was mistaken.
The Respondent in his submission then addressed in detail each of the actions and interviews conducted post the incident with the relevant persons.
The Respondent set out that: "89. It should be borne in mind here that, due to [Person A's] belief - whether erroneous or not - that the Respondent had made advances towards her previously, it is more likely that she would draw nefarious inferences from further conduct by him and presume guilt on his part. 90. In circumstances where Person A sincerely believed that the Respondent had intentionally groped her, her conduct in confronting him and then complaining to her superiors about it is entirely unsurprising. It bespeaks her belief but says nothing about the correctness of her belief."
The Respondent then set out his conclusion to the submissions. Included is the following submission. "Conclusion 91. If the Tribunal considered that Particular 4 were comfortably established, alone or with adverse findings on all or some of Particulars 1-3, a finding of unsatisfactory professional conduct under section 139B(1)(l) of the National Law would be open. 92. However, that 'unsatisfactory professional conduct' does not rise to the serious level of professional misconduct. That is so because: (a) any proved touching was spontaneous, fleeting and opportunistic; (b) the nature of the touching is to be distinguished from more objectively serious forms of sexual misconduct, such as the touching of the breasts or genitalia or penetration, or doing so in a sustained, bullying or painful way; (c) the conduct was not surrounded by aggravating features such as roughness, coercion, stalking or other conduct; and (d) Dr Hasan immediately apologised and did nothing to suppress the allegation or punish or influence Person A."
The Respondent addressed Particulars 1 to 3 in detail. He then submits: "SECTION D: CONCLUSION 112. If the Tribunal finds Particular 1 proved and the acts giving rise to Particulars 2 and 3 to have been performed deliberately, a finding of unsatisfactory professional conduct is open but not inevitable. 113. If Particular 4 is found proved, a finding of unsatisfactory professional conduct would be open. However, a further finding of professional misconduct is not the correct characterisation of that scenario. Whilst not insignificant, it was comparatively speaking at the lower end of the scale of harassment, and unaccompanied by aggravating features. A finding of unsatisfactory professional conduct enables this Tribunal ample scope to exercise its jurisdiction."

[26]

The HCCC's written Submission in Reply.

The HCCC submitted that it acknowledges it bears the onus of proof and that the Briginshaw principles are relevant. It submitted that the evidence it has provided in relation to Particular 4 establishes that Particular to the requisite standard.
In the submission the HCCC responded to the submission by the Respondent as to fact finding. In particular we set out the following aspects of the written submission: "Fact finding 4. In response to paragraphs 11 and 24 of the practitioner's submissions, a. There was no utility in putting to the practitioner that he noticed Person A was in the room and standing nearby because it was an agreed fact that they were both standing in the room and his evidence that it was possible he bumped into her; b. it is misguided to assert a failure to put to the practitioner that he intentionally/deliberately squeezed her buttock or assert a failure to suggest he was not jostled because the alleged conduct was squarely put to him in cross-examination: i. that he put his hand on [Person A's] buttock and squeezed it; ii. that she hit his hand away; iii. that she came to speak to him minutes later and told him it was unacceptable; iv. that he knew what she was talking about and was worried Person A was going to report it; v. that he heard Person A telling Ms Risby that he touched her bum, he said it was not intentional and Person A replied "No I felt you squeeze?"; vi. that he was concerned about the allegation (to which he responded "Yes someone in the workplace came to me and alleging I inappropriately touched them"); vii. that he knew what the allegation was about because he had squeezed Person A's bottom."
Again we here set out the detailed reply to the Respondent's submission in relation to Particular 4. "Particular 4 6. In response to paragraphs 22 and 23 of the practitioner's submissions, the Commission submits that: a. The allegation that the practitioner squeezed Person A's bottom was squarely put to him on several occasions, including in the LHD allegation letter and in the Commission's allegation letter; b. the formal complaint alleges the practitioner squeezed Person A's buttock and engaged in inappropriate touching of a sexual nature towards her so he cannot be under any doubt about the allegation against him; c. The allegation that the practitioner squeezed Person A's bottom was squarely put to him in cross-examination; d. In circumstances where the practitioner denied squeezing her bottom, it was unnecessary to ask further questions; e. Whether the practitioner had fond/emotional feelings towards (the female patient) is irrelevant and the Tribunal need not make a finding on that; f. Whether the practitioner volunteered to take a video and had video problems are irrelevant because those actions apparently occurred before he went to return the camera and those actions do not make it more or less likely that he took the opportunity to squeeze Person A's bottom afterwards; g. Whether the practitioner had eye contact with the patients at some point is irrelevant because it does not make it more or less likely that he quickly squeezed Person A's bottom as he passed her; h. Person A maintained her evidence that the practitioner squeezed her bottom and the Tribunal is entitled to accept her evidence; i. The Tribunal has sufficient evidence to find particular 4 proven, for the reasons set out in paragraphs 23-57 of the Commission's submissions.
The HCCC responded to paragraph 43 of the Respondent's submissions as follows: "12. Paragraph 43 of the practitioner's submissions is inaccurate. Person A's evidence clearly contradicts the practitioner's assertion of inadvertent contact: a. "the reason I knew it was Dr Hasan's hand that did the squeezing is because I moved forward to give him space to return the phone to the patient. I then saw him move behind me and there was no one else behind me except him. The squeeze could definitely not be mistaken for an accidental bump." b. "it was very fast but I know it not touching, not an accident, he squeezed it" c. (when she felt contact with her bottom), "it was him" d. "It's not touching it's squeezing my bottom" e. [You agree it was possible another person could?] No. f. [You agree you didn't see who made contact?] I know it was Dr Raj. g. [you can't rule out that contact with your bottom was jostling in the crowd?] I disagree. h. "Where we stand next to each other our back is against the wall so no one really stand behind us, when I step forward I make a space for him, before I move, I walk past and he can walk past him, I know it was him we walked past each other"; i. "I know it was a squeeze.""
The HCCC responded to Paragraph 53 of the Respondent's submissions. The HCCC submitted: "[Professional Standards Committee] decision 14. In response to paragraph 53 of the practitioner's submissions, the Commission submits that the Tribunal may use the [Professional Standards Committee] decision and there is no denial of procedural fairness in the circumstances: a. the [Professional Standards Committee] decision was served well prior to the hearing, b. the Commission explicitly informed the practitioner at that time that it would seek to rely on the [Professional Standards Committee] decision on Stage 1, c. the practitioner flagged making an objection, d. the Commission sought to tender the [Professional Standards Committee] decision at the outset of the hearing, e. the Commission agreed to defer the tender at the practitioner's request, f. the practitioner had ample time to consider whether to make any objection, g. the Commission again sought to tender the [Professional Standards Committee] decision at the conclusion of the evidence, h. the practitioner's senior counsel did not seek any additional time, i. the practitioner's senior counsel closely considered the relevant provision of the National Law, j. the practitioner's senior counsel conceded that the relevant provision creates a carve out which allows the Tribunal to use the [Professional Standards Committee] decision on Stage 1, k. the practitioner's senior counsel did not object to the tender. 15. In the circumstances, while the practitioner may make submissions about the weight to be given to the [Professional Standards Committee] decision, the practitioner cannot now belatedly object to the tender of the [Professional Standards Committee] decision because it has already been admitted into evidence without objection and formally marked as Exhibit A3."
In relation to a possible finding of Professional Misconduct the HCCC provided the following submission in reply. "Professional misconduct 19. In response to paragraph 92 of the practitioner's submissions, the Commission submits that there is sufficient evidence to prove the complaint of professional misconduct to the requisite standard for the reasons set out in paragraph 59 of the Commission's submissions. The Tribunal would place limited weight on the practitioner's submissions to the effect that the conduct could have been worse, as the conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards."
Finally, the HCCC responded to the conclusion to the Respondent's submissions. The HCCC said: "Conclusion 22. In response to paragraph 113 of the practitioner's submissions, the Commission rejects the characterisation of Particular 4 as at the "lower end of the scale of harassment". As confirmed in the leading authority cited above, conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards because to do the latter would risk the misconduct of some practitioners indirectly setting the standards to be applied by the Tribunal. Squeezing Person A's bottom without her consent is a grave departure from the proper standards expected of a medical practitioner. For the reasons set out in the Commission's submissions, the Commission seeks findings that the subject matter of the complaint is proven and that the practitioner is guilty of unsatisfactory professional conduct and professional misconduct."

[27]

Determination

The determination we have to make as a Tribunal, asked by the parties to determine Stage 1 only, is a determination of fact based upon the standard articulated by both parties' legal representatives, namely the standard set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. That standard is to be considered in the circumstance of serious allegations of conduct made against a medical practitioner, with potentially serious consequences to the practitioner's career, if established, alongside the principles of procedural fairness and natural justice. We need to take into account the reliability of the evidence which has been placed before us and apply the appropriate weight to that evidence depending upon its character, authenticity, reliability and any other matter which might add or detract from the weight to be given.
Turning then to consider the evidence which attends each of the Particulars which are relied upon for the purpose of establishing Complaint One (the Respondent was guilty of unsatisfactory professional conduct: National Law, s 139B(1)(l)) and Complaint Two (the Respondent is guilty of professional misconduct: National Law, s 139E). "Particular 1 1. Between about 2 February 2019 and 23 May 2019, whilst working with Person A at the nurses station at the short stay unit at the hospital, the practitioner: a. said words to the effect of, 'You are beautiful' and 'You are lovely'; b. after Person A said she was married, said words to the effect of, 'Can I be your side boyfriend?'; c. put his arm across the back of Person A's waist and rubbed the back of her waist; d. after Person A offered to use her swipe card to open the door to the Intensive Care Unit for him, said words to the effect of, 'I want your house key if possible'. Particular 2 Between about 2 February 2019 and 23 May 2019, whilst working with Person A at the short stay unit at the hospital and sitting next her at a table at the nurses station, the practitioner: a. poked Person A's feet with his feet under the table; and b. poked Person A in her leg with a pen. Particular 3 Between about 2 February 2019 and 23 May 2019, on approximately three occasions whilst working with Person A at the hospital, the practitioner touched and rubbed Person A's waist."

[28]

Consideration of the Evidence supporting Particulars 1 to 3

We accept the following evidence of Person A in relation to words spoken to her by the Respondent. 1. At the end of 2018 Person A commence work at Kareena Private Hospital. 2. In February 2019 Person A was working in the ICU and Short Stay part of that Hospital. 3. Between February 2019 and 23 May 2019 the Respondent was also working at the Kareena Private Hospital and during that time he worked from time to time at the same time as Person A and in the same part of the Kareena Private Hospital. 4. Between February 2019 and 23 May 2019 Person A and the Respondent were working together in either ICU or Short Stay in Kareena Private Hospital from time to time. 5. Whilst working together between those dates the Respondent said to Person A: 1. "Thank you Sister you are so nice and you are so beautiful." 2. "Are you married?" to which Person A responded: "I am married sorry doctor you have no chance." 3. "Can I be your side boyfriend?" 4. At a time when Person A opened the ICU door for the Respondent, he had asked her: "If I can have your house key."
During the period commencing in February 2019 and concluding on 23 May 2019 we find the Respondent touched the body of Person A without her permission or consent and without a valid reason. 1. That whilst sitting next to each other at the nurses station the Respondent rubbed her back with his hand. 2. The Respondent poked Person A with a pen, on the leg, under a counter where the Respondent and Person A were talking to a patient. 3. On three or four occasions the Respondent had touched Person A on her waist while they worked together in the Short Stay Unit. We accept her description that his hand was "like rubbing across my waist and then rubbing." 4. That whilst the Respondent and Person A had worked together in the Botany Unit the Respondent had poked Person A with a pen on the leg. 5. That whilst the Respondent and Person A had worked together in the Botany Unit, the Respondent had touched Person A with his feet including tapping her with his feet. 6. The actions described in paragraphs (d) and (e) occurred on more than one occasion in the Botany Unit. 7. We accept that when the Respondent touched Person A as she alleges, there were either no witnesses who could have seen that happen, or that he touched her in a manner which was not visible to others who may have been in the vicinity, such as touching her under a desk. 8. Person A told her friend Debbie Moody what the Respondent had done to her and what he had said. That occurred before the 23 May incident. On that same day she again told her husband what the Respondent had done to her touching her feet under the table and poking his pen into her leg. 9. Person A asked her friend Debbie Moody to sit at the work station with her in the hope that would deter the Respondent. 10. Person A described a period of time during which the Respondent's unwanted words and actions ceased for some time between March and May. Such a concession is not consistent with a fabricator. 11. We accept that in May 2019 the Respondent's actions of touching Person A as she alleges started again. We accept her evidence that it happened whenever they were together in a patients' room when he was speaking to her about a patient. That contact included the Respondent pinching and rubbing Person A's waist. 12. We accept that Person A worked in Botany Unit in May 2019 two days per week and that every day she was there the Respondent touched her body in the manner she has described.
We find that the actions and words of the Respondent, as we have found, towards Person A, were unwelcomed and made her feel uncomfortable.
To the extent that it is necessary to inform our conclusions on the evidence of the parties, we find that the conduct of the Respondent escalated over the time between February and 23 May 2019 so that it was reasonable for Person A to conclude by the Respondent's words and actions, that he was making an advance to her which had no connection with the work they were engaging in at the Kareena Private Hospital.

[29]

Facts and considerations which inform the conclusion we have reached in relation to Particulars 1 to 3 of Complaint One

We find the following evidence supports our conclusions above stated:

The evidence of Person A is credible and accepted by us as having been given honestly.
The evidence of the balance of the witnesses called by the HCCC in relation to the issues of fact in this hearing were credible and we have accepted their evidence.
The consistency of the evidence, both written and oral, of Person A.
The demeanour and presentation of the oral evidence of Person A.
The reporting of her concerns about the Respondent's actions and words over the time from February 2019 until 23 May 2019 and thereafter as she was required to participate in interviews.
The fact that there is no issue that the Respondent and Person A worked together during the relevant time.
Person A complained to her husband in the early stages of her interaction with the Respondent about his words spoken to her.
Although the words allegedly used by the Respondent to Person A, about which she complained, may have been repeated to different persons in slightly different ways, the words are all to the same effect or meaning and in each recitation conveying the same meaning.
Person A was reluctant to report the Respondents' behaviour towards her. She did not want to create unpleasantness in her workplace.
Person A conceded in cross-examination that the Respondent when he touched her with his feet may just have been foot tapping as a nervous action. However, we accept this behaviour occurred on more than one occasion and the proximity of the Respondent to Person A so that he could accidently touch her with his foot tapping was inappropriate.
Person A had asked her friend Ms Moody to stay with her in the Short Stay Unit while the "Patient Round" was being carried out by the Respondent as she did not want to be left alone with the Respondent.
In the evidence of Ms Risby she said the Respondent had told her he had perhaps touched her you know sort of as a gentle touching on the back and he said, "Oh it was only because you know it is a friendly gesture." It was not put to Ms Risby that such a conversation did not take place. However in oral evidence he said that he did not touch Person A's back. Any touching of Person A was inadvertent.
In a conversation with Dr Dedousis said that in a conversation with the Respondent he had denied all the allegations made by Person A in relation to the Birthday Party incident and that he had not touched her legs or her toes. However, in relation to touching Person A and possibly others in the workplace the Respondent said: "Oh yes. They come and touch me too." This is contrary to the denial the Respondent made about touching Person A in this hearing.
The Respondent concedes Person A presented as a person with a genuine sense of grievance. The Respondent has not attacked her credit.

[31]

Facts and considerations which inform the conclusion we have reached in relation to Particular 4 of Complaint One.

We accept the evidence of Person A that the Respondent did squeeze her buttock on 23 May 2019. The following facts and matters we find support that finding to the requisite standard:

The account of Person A is believable.
We accept Person A did not mistake a bump for a squeeze of her buttock.
We accept that Person A had moved forward in the room to allow the Respondent to walk behind her to return the mobile telephone.
We accept that there was no-one else behind Person A when the Respondent passed behind her.
We accept that as the Respondent moved behind Person A he squeezed her bottom.
We accept that Person A attempted to swat the Respondent's hand away at the time she felt the squeeze on her buttock.
The reaction of Person A in swatting the Respondent's hand away from her buttocks is supportive of her assertion that she had felt her buttock being squeezed.
When Person A left the patient's room in which the Respondent had squeezed her bottom, she spoke to Nurse Risby who noticed she was upset.
When Person A approached the Respondent in his room following the Birthday Party event he noticed she was angry.
The fact that Person A had been uncertain about the motives of the Respondent when she first commenced working with him and when he was making statements to her which concerned her, suggests she was not a person who "jumped to conclusions" about a person's motives being adverse to her interests.
Person A was still angry and upset about the actions of the Respondent after she had spoken to him on 23 May 2019 following the Birthday Party incident. That prompted her to raise a complaint with a person in authority above her at work (Nurse Risby).
She was able to tell Nurse Risby what the Respondent had done to her on that day and about his unwanted interaction with her since February that year.
Immediately following the Birthday Party Person A had spoken to Ms Moody. Ms Moody described her demeaner as "anxious". She had tears in her eyes. She asked Ms Moody to stay with her.
We accept the evidence of Ms Risby that in her presence Person A said to the Respondent "You touched my bottom" and "No I felt you squeeze". We find that the Respondent could not have had any misunderstanding as to what Person A alleged when he heard those words.
We accept the evidence of Ms Risby that Person A did not ever tell her she had accepted an apology from the Respondent. We therefore accept Ms Risby did not convey any such message to the Respondent.
We do not accept the suggestion/evidence of the Respondent that at the Birthday Party he held the mobile phone in two hands the whole of the time until he returned it to the patient who owned it.

[33]

What is the assessment of the Respondent's evidence and denials of wrongdoing?

There is unchallenged evidence that the Respondent had denied an accusation that he had used the word "fuck" in anger to a nurse in circumstances where one of the witnesses in the hearing, Associate Professor Gonski, was said to have actually heard him use that word. The Respondent had denied using that word at that time.
There is unchallenged evidence from Dr Phoon that when the Respondent was spoken to by Dr Phoon on 24 May 2019 about the allegations Person A had made, the Respondent said he had "never had interactions with this nurse previously."
The Respondent, in his statement at Tab 2 of exhibit R1 denies absolutely he had ever said to Person A "You are beautiful, you are lovely, can I be your side boyfriend?" The Respondent denies he ever asked Person A any question about her personal life. That denial then puts into issue the credit of each of Person A and the Respondent. It raises a question of motivation Person A may have had to make such an allegation. No suggested motivation was raised by the Respondent in evidence, nor was it put to Person A during the hearing.
The Respondent denied he had ever put his arm on the back of Person A whilst seated at the Short Stay Unit nurses' station or otherwise. He denied he had ever rubbed the back of Person A's waist, touched rubbed or pinched Person A's waist. He denied he had ever intentionally poked Person A's feet with his feet or poked her leg with a pen.
The Respondent denied he had ever said to Person A words to the effect of "I want your house key".
On 23 May 2019 the Respondent denied he had squeezed or pinched Person A on the buttock.
He denied the words attributed to him by Person A and the words she said she had spoken to him in his office. He said he used the following words: "I did not touch you in any way. If I accidently bumped on you in anyway, I apologise for that." He asserted she had responded "Okay." And left his room.
The Respondent said that when he entered the room where Person A and Ms Risby were talking, following Person A attending upon him in his office, he said: "I did not touch you in any way. If I accidently bumped you in any way, I apologise for that."
In his reported conversation with Ms Howells she said he may have brushed up against Person A at the Birthday Party event. The Respondent said he used the words "bumped up against Person A".
The Respondent said that later on the day (23 May 2019) he had seen Person A and asked "Are you Okay?" He said Person A had said "Yes everything is Okay". He said she had smiled when she said that.
The Respondent said the following day he had spoken to Ms Risby and asked her "is everything okay?" He said that Ms Risby responded: "(Person A) accepted your apology. I think her reaction was probably cultural. Let me know if anything like this ever happens again." The Respondent replied: "I will." (We note this conflicts with Ms Risby's version of the same conversation.)
In the evidence of Associate Professor Gonski we noted that when he raised with the Respondent the complaints about his interaction with nursing staff that he was going into their personal space and touching them and that he had talked to a nurse about her personal life the Respondent had "totally denied that there was an issue". He said they were overreacting. He was just being nice to them and that was the way that he communicated.
Dr Dedousis, in his evidence, referred to a discussion with the Respondent about interaction with nursing staff. The Respondent said in relation to a complaint he had asked a nurse for her phone number, he had done that to make himself available in case the nurse wanted to call him about a patient.
When challenged by Dr Debousis about touching nursing staff, the Respondent had said "Oh yes, they come and touch me too and when they come and talk to me they touch my arm and that is when they are talking to me and asking me questions."
We note the Respondent has denied, on many occasions, he interacted with Person A in the ways she alleges he did. Given the view we have taken of Person A and her witnesses, we cannot accept the denials of the Respondent. Both the evidence of Person A and of the Respondent cannot stand together. We have weighed all the evidence presented to us on each side of this case and we confidently conclude we prefer the evidence of Person A and the witnesses called by the HCCC.

[35]

Does the Respondents conduct amount to unsatisfactory professional conduct?

The HCCC asserts that if the Tribunal accepts the evidence of Person A and finds the Respondent conducted himself towards her as she alleged then that would satisfy the test for a finding of unsatisfactory professional conduct on the part of the Respondent.
In Chen v Health Care Complaints Commission (2017) NSWLR 334; [2017] NSWCA 186 ("Chen"), at [19]-[20] the Court stated: [19] The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, overservicing and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. [20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct..."
In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 ("Litchfield") at 638 the Court stated: "The Tribunal next found that the first two complaints were 'relatively minor matters'. We cannot so view these complaints on the Tribunal's findings and it was not appropriate for the Tribunal to compare them 'with many cases that are dealt with in this Tribunal'. The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal. The approach of the Tribunal in this case stood the proper principle on its head."
We have no reservations about finding that touching of the person of Person A, as she has described, by the Respondent, whilst she was in the work place, was unsatisfactory professional conduct. It is in our view "improper conduct relating to the practice or purported practice" of medicine. There cannot be, in our view, an invasion of personal space between work colleagues, as described by Person A, in the circumstances in which the Respondent and Person A worked, which can be acceptable. Person A was clearly personally confronted by the way the Respondent touched her back and her belt line on her clothing. She was actually hurt by the way he poked her with his pen. We also find the words the Respondent spoke to her, of which she has complained, were improper personal questions to be asked of a nursing staff member by a medical practitioner with whom she had to work in a professional manner. She was affronted by the words he used to her which breached acceptable personal boundaries.
The Respondent conceded in his submissions that if we accepted the evidence of Person A, then that behaviour towards her by the Respondent, would amount to unsatisfactory professional conduct. He submitted it would not amount to professional misconduct.
To make clear, we find that each of the occasions which the Respondent conducted himself in the manner complained of by Person A, would individually amount to unsatisfactory professional conduct.

Health Care Complaints Commission v Hasan

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