Health Care Complaints Commission v Kavieris

NCAT Occupational|2023-07-14

Background

The proceedings concern a male physiotherapist who was first registered as a physiotherapist in 1993. He became the principal physiotherapist at The Summit Physiotherapy ("The Summit") in 1999. Prior to that, the Respondent worked as a physiotherapist for different sporting teams and organisations, at various private clinics, medical centres and hospitals in Sydney and the United Kingdom.
As part of his practice the Respondent has since about 2005 became an enthusiastic proponent and practitioner of the method of treatment which is described as Fascio-Visceral Manipulation.
This particular method of treatment originates in France and is described as the Barral Method.
According to Dr John Panagopoulos, who was called as an expert by the Respondent in these proceedings, the Barral Method is an assessment and treatment regimen devised by French osteopath and physiotherapist, Jean‑Pierre Barral, a practitioner who has held various positions including an academic position on the faculty of Medicine de Paris Nord - Université Paris Nord.
The Barral Method is said to be a holistic, namely the whole-body perspective, regimen, which assumes the body is one interconnected mechanical unit. This connectedness is said to come from the connective tissues which surround each structure of the body, each muscle, each nerve, each joint, and each organ. The Barral Method attempts to use palpation skills to identify any mechanical restrictions in the body, and uses clinical reasoning skills to understand how this mechanical restriction may affect optimal movement of a body part.

Complaint 1 - Unsatisfactory Professional Conduct

Complaint 1 is that the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law in that the Respondent has: 1. Engaged in conduct that demonstrates the knowledge or judgement possessed, or care exercised, by the practitioner in the practice of physiotherapy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. Engaged in improper or unethical conduct relating to the practise or purported practise of physiotherapy.
In relation to s 139B(1)(a), determining whether conduct is significantly below a reasonable standard requires the Tribunal to make an objective assessment with reference to the standards of the profession generally (Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [82] per Basten J). Guidance on whether a departure from that standard is significant can be taken from the established principle that the term "may in law be taken to mean not trivial, of importance or substantial" (Re A Medical Practitioner and the Medical Practice Act (unreported, NSWMT, 3 September 2007) at [12]). The Tribunal may apply the specialist expertise of the Panel in making this determination (Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169 at [16]).
In relation to s 139B(1)(l), the terms "improper conduct" and "unethical conduct" are not defined in the National Law. They should be given their ordinary meaning (Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 at [16]-[18]).
The relevant ordinary meaning of improper includes "not in accordance with truth, fact, reason or rule; abnormal, irregular, incorrect, inaccurate, erroneous, wrong" (Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494). If a practitioner's conduct was not in conformity with the standards of professional conduct and practice it may be regarded as improper (R v Byrnes [1995] HCA 1; (1995) 183 CLR 501 at 514-515).
Unethical conduct is arguably a more serious matter than improper conduct. "Unethical" is defined in the Macquarie Dictionary as meaning immoral or contrary to moral precepts and, secondly, as relating to contravention of a professional code of conduct.

Patient A Treatment

The conduct of the Respondent in relation to Patient A, as particularised as Particulars 3, 5 and 6 in the Commission's further amended complaint is as follows: 1. At the consultation on 8 July 2020, the Respondent inappropriately performed the following techniques purporting to assess and treat Patient A's ankle injury without clinical indication to do so, namely, palpated her head and released the fascia of the broad ligament of the uterus. 2. At the consultation on 23 July 2020, the Respondent inappropriately performed techniques on Patient A purporting to assess and treat her ankle injury without clinical indication to do so, including palpating her head and examining the path of fascial tension along her posterior leg. 3. At the consultation on 4 August 2020, the Respondent inappropriately performed techniques on Patient A purporting to assess or treat her ankle injury without clinical indication to do so, including: 1. Palpating her head; 2. Palpating the anterior hip groin; 3. Palpating the iliopsoas muscle near the groin; 4. Releasing the left femoral nerve; 5. Performing neural glides.
The Respondent in his Reply to this pleaded complaint admits that at the consultation on 8 July 2020, he performed the techniques of palpating the head and releasing the fascia to assess and/or treat Patient A's left ankle injury, denies that the techniques were inappropriately performed, and denies that they were performed without clinical indication to do so.
In relation to the treatment on 23 July 2020, the Respondent in his Reply admits that at that consultation he performed techniques on Patient A to assess and/or treat her left ankle injury, and says that given the absence of clinical notes to confirm what techniques were performed on 23 July 2020 to assess and/or treat Patient A's left ankle injury, he likely performed techniques in line with his usual practice, against the background of his previous consultation, including palpating Patient A's head and examining the path of fascial tension along her posterior leg.
The Respondent denies that the techniques he performed on 23 July 2020 in respect of Patient A, including the techniques identified immediately above, were inappropriately performed and denies that they were performed without clinical indication to do so.
In relation to the treatment of Patient A on 4 August 2020, the Respondent admits that at the consultation on that day, he performed the techniques set out in the complaint to assess and/or treat Patient A's left ankle injury, denies that the techniques were inappropriately performed and denies that the techniques were performed without clinical indication to do so.
Patient A did not give evidence. The Commission relied on a complaint that she filed in writing on 16 September 2020 in which Patient A set out, in fairly brief terms, the treatment she had received and the Respondent's alleged conduct.
As is set out in the complaint in relation to Patient A, it is necessary for the Commission to prove that the conduct on the part of the Respondent on the three occasions involved inappropriately performing the admitted techniques without clinical indications to do so.
In support of the complaints the Commission relied on the evidence of an experienced physiotherapist, Ms Tracey Powell, who also provided four expert reports in total. Ms Powell is a registered physiotherapist with 38 years of experience as a physiotherapist. She has worked in private practice since 1990. The majority of her practice is musculoskeletal. This involves the assessment and treatment of males and females of varying ages with spinal and upper and lower limb conditions. She has been a peer reviewer for the Health Care Complaints Commission since 1992.
In relation to the treatment the subject of the particulars concerning Patient A, Ms Powell acknowledged that she was unfamiliar with the Barral Method of treatment. In cross-examination, she conceded that if the treatments were administered in accordance with the Barral Method, her principal complaint was that nothing else was offered to Patient A prior to the Respondent embarking on this treatment.
On the other hand, Dr Panagopoulos, in his expert report, stated that the technique of palpating a patient's head is known in the Barral Method as a general listening and, using this technique, the therapist is investigating whether there is a restriction in the body and, if so, in which region of the body. The working theory was, he said, that the whole body is interconnected and that a restriction in the body can be felt from not only directly over the restriction but from above and below the restriction.
Dr Panagopoulos went on to say in relation to releasing the fascia of the broad ligament of a patient's uterus, that the broad ligaments of the uterus are fascial folds which act as secondary support structures for the position of the uterus within the internal pelvic bowl. Dr Panagopoulos said there is evidence in the literature regarding the link between a loss of ankle dorsiflexion and altered pelvic stability. By reference to the account given in the Respondent's treating notes, which he viewed, Dr Panagopoulos believed that the Respondent's treatment of Patient A in this regard was in line with the Barral Method.
Dr Panagopoulos then concluded that from the Respondent's photographs depicting his treatment methods, which we have included above, and the placement of his hands on a model patient lying on her side as depicted in the photographs, "It would appear that Mr Kavieris performed the technique of a broad ligament release correctly". We note that this conclusion is based on the photograph which is not an actual photograph of what occurred during the consultations the subject of the complaints.
Dr Panagopoulos continued to assess whether the presentation on July 2020 was treatment and assessment of Patient A via the Barral Method and clinically indicated. Based on the description given by the Respondent of the clinical reasoning, Dr Panagopoulos was satisfied that this assessment and treatment was clinically indicated. He expressed the opinion that tightness in the posterior fascia or nervous system of the calf complex can cause symptoms around the Achilles tendon region as described by Patient A. So, he said, the Respondent investigated and assessed the symptom and any possible causes during his physiotherapy session. Dr Panagopoulos continued by saying that based on the Respondent's description of his treatment on 23 July 2020, he was satisfied that it was consistent with the Barral Method. He stated that using the Barral Method, palpating for fascial tension can be quite detailed and granular, any tight compressive clothing, for example, active wear tights, should be removed for more looser clothing, example, loose cotton shorts. That allowed the therapist to be able to feel through from superficial to deep fascial lines along the legs.
The Respondent gave a detailed account of his reasoning in a written statement filed in the proceedings for the particular treatments that he embarked on and gave a clinical justification for doing so.
The Respondent also filed detailed written submissions in countering the claims by the Commission in respect of Patient A.
In relation to the Barral Method, the rationale for Fascial Visceral Manipulation, the submission drew attention to the Respondent's explanation in the Respondent's statement: "[9] One of the techniques I use to treat my patients involves Visceral Manipulation and Fascial Manipulation. The method I follow has been developed by the Barral Institute, an international manual therapy school founded in France and headed by J.P Barral. J.P Barral is a renowned science researcher in the field of visceral / fascial mechanics, manual therapy applications including concussion. He is also a practising physiotherapist and osteopath. [10] The rationale of this treatment technique is that the body does not always reach homeostasis after trauma and physical restrictions, adhesions and stiffness in the body tissues can remain. These restrictions cause reduced movement in a localised area and the body must then find a way to compensate for this loss of movement during activities of daily living or a task. The task is completed by the body but now in a different way, and a new set of movement patterns develop. These new patterns may cause a joint to twist or muscle to contract excessively and slowly other body parts, at some distance to the original restriction, become negatively impacted. Pain, weakness and fatigue are common outcomes and are what finally motivates the patient to seek treatment."
The Respondent then argued that at first blush, it would not be obvious to the patient, or even to a physiotherapist unfamiliar with the fascial visceral release techniques, why a practitioner would need to palpate a patient's head or release the fascia of the broad ligament of the uterus, in order to treat an ankle. However, it was said that the Respondent explained in detail the rationale for his assessment and treatment of Patient A on 8 July 2020, including why it was clinically indicated for him to perform the techniques described above to assess and treat the injury. He performed the techniques in accordance with his usual practice, which was set out in detail in his evidence.
The Respondent drew attention to the explanation given by him in detail on 16 October 2020 in response to what was then an anonymous complaint concerning Patient A in relation to palpating her head and said it was an assessment technique taught for the Barral Method. The Respondent had explained it as follows: "The therapist is first required to place his/her hand at the top of the patient' head. The head is sphere-like and an anchor point for the many connective tissue bands that wrap around the body. When these tensions are not in balance, they subtly pull at the head unevenly. The therapist's aim is to detect these forces and use the head as a kind of compass for the general direction of imbalances elsewhere in the body."
The Respondent also relied upon the evidence of Dr Panagopoulos, who cited relevant textbooks, and included photographs from them to explain that: "This technique of palpating a patient's head is known in the Barral Method as a General Listening (Barral and Mercier, 1989) [referencing] Figure 5 below. The term "listening" here refers to "listening with your hands". In this technique, the therapist applies a gentle pressure to the top of the head and is feeling the slide and glide of structures both forward and back, side to side and deep to superficial. Using a general listening technique, the therapist is investigating whether there is a restriction in the body and, if so, in which region of the body? If it is in the front left part of the body, this then draws the therapist's attention to this part of the body and the therapist would go on to a more local listening, or local palpation, to further locate the exact location (as much as possible) of any restriction in this area. Using the therapist's knowledge of anatomy and physiology would allow the therapist to make a judgement on the dysfunction occurring. The working theory here, again, is that the whole body is interconnected and that a restriction in the body can be felt from not only directly over the restriction, but from above and below the restriction. It is a data collecting technique, using the hands as a tool and the therapist's combined experience of common restrictions and how they feel."
In relation to release of the fascia of the broad ligament of the uterus, the Respondent argued that he acted in accordance with his standard practice for treatment using his Barral training. As he explained in his written statement tendered in evidence: "[27] In accordance with my usual practice, I would have first examined her in standing and then sought to examine her upper and/or lower leg and of course, the ankle, to fully understand the cause of her pain and symptoms. I would have explained to the complainant that while her symptoms are confined to her ankle, ankle function is often impacted by other parts of the leg including the nerves and fascia. I would have explained to her that I need to examine these structures (and would have named some of them like the tibial and femoral nerve) in order to better understand the source of her symptoms. … [34] Noting that the complainant presented with ankle pain, I would have likely examined the core stability of her hip, activations of muscles in the lower leg and ankle pain, which can all be affected by the femoral nerve. I would have also examined her pelvic joints and fascia to understand how this was impacting ankle function. [35] I would have been mindful that the femoral nerve crosses the hip anteriorly (near the groin), the 'spiral line of fascia 'crosses low at the pelvis and the pelvic joints needed to be tested by putting my hand on the front of pelvic bones (ASIS) when the complainant was supine. I would have also noted that the illiopsoas muscle, a common muscle of dysfunction with far reaching consequences, needed to be palpated near the groin too. I would have explained to the complainant that in order to form a view as to what the issue(s) may be, I needed to test around the front of the pelvis and near the groin and this included palpating near her private parts. I would have waited to see if she was happy to proceed, including but not limited to a verbal "okay" or "go ahead" or a clear nod of the head. I would have explained to the complainant that I would minimise the time I spent palpating near her private parts. [36] If the complainant indicated to me that she was happy for me to palpate near her private parts, I would have done so with the sole view of clinically assessing that area and identifying the factors contributing to her ankle pain."
In addition, the Respondent pointed to the evidence that he has treated the femoral nerve at the groin area to affect stability on many occasions because of its important impact on ankle functions.
In relation to the particular issues presented by Patient A specific attention was focussed in submissions on the Respondent's evidence as follows: 1. The Respondent recorded that Patient A had a history of intermittent chronic pain over the anterior joint line of the left ankle (recorded in his notes as "chronic-ant gutter P I/T") and a concurrent history of tendo-achilles stiffness (recorded in notes as "TA stiffness"). She had no other significant history of injury, operations or fractures and took no medication. The Respondent recorded the type of exercise that Patient A did, that walking aggravated her left ankle, and that there was no variation of her symptoms throughout the day, and she did not have sleep disturbance. He noted that she had received prior treatments with acupuncture. 2. The objective assessment then undertaken, as revealed in the notes, involved: 1. Knee to Wall test: This showed that the ankle dorsiflexion range of motion was 5cm less on the left compared with right ("KTW v by 5cm (L) c¢ w (R)"), meaning there was reduced movement in the left ankle compared with the right one. 2. Manual palpation of the left ankle: This revealed that Patient A's ankle was tender on palpation along the medial and anterior talo-crural joint, less tender on the lateral joint line, which is consistent with talar cartilage damage, but was yet to be confirmed (referred in notes as "TOP Med-ant gutter, less lat - ? Cartilage of talus?"). 3. Observation of a moderate amount of swelling around the ankle (referred in notes as "Mod Swelling"). 4. The straight leg raise test is a measure of functional power in hip flexion and core stability: Patient A had a weak resisted Straight Leg Raise and the right side equalled the left side (meaning that both sides were weak). This was assessed with the patient supine and the straight leg actively raised to 30 degrees, while the Respondent pushed down on the ankle. A resisted straight leg raise test was performed on Patient A by applying pressure at 20-30 'deg hip flexion' (referred to in notes as "Weak resisted SLR R=L"). The rationale for performing this assessment was explained by the Respondent as follows: "If the foot is easily pushed to the bed the test is 'weak'. If the tester encounters a strong ability to hold the position by the patient, then the test is 'strong'. When 'weak' there is often a neural/fascial/muscle synergy dysfunction rather than a true muscle weakness due to muscle size or tonicity. If the stability against ground forces normally provided by the hip, in walking for example, is lacking, then these forces are compensated for or absorbed by, to some degree, at the ankle. This increases ankle joint pressures which overloads the ankle and can cause local instability and soft tissue irritation; ultimately slowing or being a barrier to healing". 5. Assessment of the broad ligament of the uterus: This ligament is confirmed as influencing the test (resisted straight leg raise) by gently compressing the ligament and re-testing. If the patient can then exert significantly more power in the resisted straight leg raise test against the tester, then it is a key structure to consider. The structure is initially identified by palpating the area of local restriction in accordance with the Fascial Visceral method (as described at paragraphs 9 to 15 of the Respondent's submission dated 16 October 2020, attached to his submission of 26 March 2021). That is, via initial standing /sitting palpation at the head then local palpation, in this case at the abdomen. The hip weakness found in the test performed on Patient A was due to fascial restrictions of the broad ligament (recorded in notes as "2ndry to tight (L) Broad lig of uterus-1ig"). 6. Based on his assessment, the Respondent determined that Patient A was suffering from an acute ankle ligament strain made worse by a pre-existing chronic ankle condition. He considered that the chronic condition was possibly not resolving due to poor local ankle mechanics and weakness of the left hip, and he determined that the weakness at the hip was affected by a restriction in the fascia of the broad ligament of uterus. The ankle failed to dorsiflex (bend) as far as it should and it was his professional opinion, based on his training and clinical knowledge, that altered ankle mechanics may also be contributing to the chronic achilles condition.
The Respondent then argued that he has fully explained the clinical reasoning for the treatment he offered. He determined that the best course of treatment for Patient A was to treat globally first using the fascial approach because he considered it to work well with chronic conditions, and as stated above, he thought that the chronic ankle condition could be adversely affecting the resolution of the recent acute ankle sprain. This approach also helped him to determine to what extent the broad ligament was responsible for the hip weakness, and ankle mechanics including ligament tenderness, by treating it first. Whatever was left over in terms of ankle disfunction, and tenderness would then be treated by him locally. He decided to treat the patient this way because in his training and clinical experience, "results were more efficiently achieved by treating global influences first".
Attention was then drawn to the evidence that after performing the treatment, Patient A was again tested for hip flexion strength (in clinical notes, this is denoted by an asterisk as something he needed to reassess) and ligament tenderness as indicated pre-treatment. The result was a much stronger resisted straight leg raise test, indicating that there was immediate improvement in hip flexor strength and core stability which would translate to less strain placed upon the ankle when walking. In the Respondent's experience, improved mechanics usually improves the chance and rate of healing. Tenderness On Palpation (along the ankle gutter) also decreased, a sign of improved local function (recorded in his notes as "//*strong" and "TOP").
Counsel for the Respondent argued that there was no contrary evidence to this latter submission. However, it was argued on behalf of the Commission that the approach put forward by the Respondent was looking backwards, in other words, the outcome did not justify embarking on an assessment of the injury.
In respect of the treatment of Patient A on 23 July 2020 it was argued that the Respondent is confident that he acted in accordance with his usual practice in assessing the progress made by Patient A and providing further treatment. It was accepted that the Respondent was not able to locate notes for this consultation, but he did his best it was said to describe the treatment he "would have" provided, which he has identified from the description given by Patient A of his examination and treatment of her ankle (the site of her injury) and also of the back of the leg. He also drew on his notes from the first and third sessions and from his general practice for treating the condition complained of. It was also accepted that it is likely that he would have performed the techniques described in the complaint, including palpating Patient A's head and releasing the fascia, and he was confident that any technique utilised was for a genuine clinical purpose, consistent with the Barral Method.
Patient A had indicated in her complaint that: "In another session he was encouraging me to take my pants off so he could feel under my knee. I rolled them up instead and then a few minutes later he said again that he needed to feel higher so I pulled them up as high as possible."
The Respondent explained his rationale for this. His evidence was that during the initial subjective examination Patient A mentioned that she suffered from a tight tendo-achilles as an additional problem, it was his usual practice to examine this at some point as it may contribute to poor ankle mechanics and so be impacting the presenting acute and/or chronic condition. His usual practice was to examine the path of fascial tension along the posterior aspect of the leg in order to address possible excess tension in the achilles tendon. This examination required removal of the pants (in which case the Respondent offers the patient a pair of shorts to change into) or that they roll up their own pants. Often the restriction is traced beyond the tendon and calf into the hamstrings. This is because the fascia of the achilles tendon is continuous with the hamstrings via the Posterior Line of fascia. The Posterior Line of fascia runs from the head down the back along the hamstring and calf into the achilles tendon and plantar fascia of the foot, so restrictions anywhere along this pathway can increase baseline tension of the achilles tendon, and so contribute to its stiffness.
The Respondent also relied on the following evidence of Dr Panagopoulos concerning the Respondent's assessment and treatment of Patient A on 23 July 2020 as clinically indicated. He explained that: "… Tightness in the posterior fascia or nervous system of the calf complex can cause symptoms around the Achilles tendon region as described by Patient A. So, Mr Kavieris investigated and assessed this symptom and any possible causes during this physiotherapy session."
Ms Powell was cross examined on this issue. She agreed that palpating the head is an accepted technique within the Barral teaching, and that examining the path of the fascial tension along the posterior leg is an accepted technique within the Barral methodology.
In relation to the consultation with Patient A on 4 August 2021 it was argued for the Respondent that in replying to this particular, he had the benefit of his notes, which he transcribed in full. He confirmed that the techniques he performed on Patient A to assess and/or treat her left ankle injury, included the five techniques, which were for a legitimate clinical purpose and done in accordance with his usual and appropriate methodology. The Respondent had described that in detail in both his written and oral evidence.
The Respondent pointed to his undertaking a Subjective and Objective, Assessment (with treatment following) Plan (referred to as "SOAP" in his records for 4 August 2020).
The Respondent's evidence was that at the start of the session, he explained to Patient A that he needed to reassess the fascia to determine if the fascial restrictions discovered in the previous session were resolved or if another had become apparent. He then palpated at the head, with the bra unclipped. His contemporaneous notes record that the palpation identified a local area of fascial tension at the left hip. The Respondent palpated the anterior hip groin to find the source of the tension. In order to do that, he requested that the pants be lowered.
The Respondent's explanation for the clinical rational for his objective assessment was that he determined that Patient A had a full range of motion (baseline test - ankle dorsiflexion) right ankle equals left. She had tenderness of the medial and lateral malleoli on palpation (Referred to in notes as " R=L some med/lat malleoli tenderness"). The fascia associated with the femoral nerve as it crosses the inguinal ligament on the left side was restricted on palpation (Referred to in his clinical notes as "Fascial restriction L fem N at groin"). The patient was affected by adverse neural tension of the lower limb, the plus sign indicates significant restriction (referred to in clinical records as "ANT LL+"). This was assessed in the slump position with the patient sitting down.
On the basis of that objective assessment, the Respondent claimed that he initiated the following treatment: 1. Theraband exercises: To improve strength of the local muscles controlling the ankle and balance /proprioception/ and reducing re-injury. 2. Fascial release of the (left) femoral nerve resulted in a strengthening of right hip abduction power (referred to in the clinical notes as "Fascial release of Fem N // strong R hip and power"). This post treatment test was done because the right hip abduction power was weak pre- treatment. The Respondent gave evidence that this test is done with the patient in right side lying with the hips and shoulders stacked and the right leg actively held at 30 degrees abduction against resistance applied by the therapists at the patient's ankle. If the patient cannot hold the position the test indicates weak abductors of the hip and possibly poor core muscle control. 3. Neural glides for the lower limb.
Dr Panagopoulos gave evidence that the techniques used by the Respondent on 4 August 2020 to assess and treat Patient A were clinically appropriate. He reviewed the clinical notes from the third session on 4 August 2020, and outlined in his report that the Respondent had noted that the initial ankle symptoms had resolved. Further: "There were full ranges of motion across both ankle joints, with some remaining tenderness across the outside and inside of the ankle bones. Mr Kavieris noted that there was a remaining restriction of the femoral nerve as it passed through the left groin region to the anterior thigh. The treatment provided during this third session are theraband exercises for ankle strength and improved balance; and fascial release of the femoral nerve and neural glides for the femoral nerve, in order to allow it to "slide and glide" within its fascial sheath as optimally as possible."
From the description and photos of the Respondent performing this technique (in Annexure 4), Dr Panagopoulos was satisfied that the Respondent performed this technique correctly. He noted that the Respondent had discerned an immediate improvement in the patient's ability to strongly abduct her leg in side-lying.
Dr Panagopoulos specifically commented on each of the five techniques and explained why they were clinically indicated.
In her oral evidence Ms Powell agreed that one of the things that a physiotherapist does to determine whether or not the tools that they're using are working is to assess and re-assess (which we understand to be pre-treatment and then post-treatment). She agreed that after the first treatment on 8 July, the Respondent noted a significant improvement in the ankle in the knee-to-wall measurement. She could appreciate why someone would continue to use that technique.
Ms Powell also accepted that palpating the head is an acceptable technique within the Barral Method. She also accepted that examining the path of the fascial tension along the posterior leg is an accepted technique within the Barral Methodology. Her criticism, however, was that nothing else was offered to Patient A.
The Commission argued that the Tribunal should place limited weight on Dr Panagopoulos' evidence because: "(a) Dr Panagopoulos was only given limited briefing material (he was not given the practitioner's section 150 evidence or the practitioner's NCAT statement); (b) Dr Panagopoulos was only given limited assumptions (he was asked to comment on the practitioner's versions but not the patient's versions); (c) Dr Panagopoulos was only asked limited questions (he was asked whether the practitioner's conduct was "consistent with performing the Barral method correctly" and "in line with the Barral method" but he was not asked whether the practitioner's conduct was significantly below the relevant standard); (d) Dr Panagopoulos was asked to accept the practitioner's versions; (e) Dr Panagopoulos was asked to accept that the practitioner practised the Barral method on Patient A and Patient B."
The Commission further argued that the Tribunal should not accept the Respondent's purported justification for palpating Patient A's head that he was performing that Barral Method because of various factors. These were that the Respondent was working as a physiotherapist, the Barral Method was developed by Mr Barral, a French osteopath, the Respondent attended some Barral courses, however, he was not a certified practitioner, has not applied for accreditation and the courses are not taught by registered physiotherapists amongst other things. It was further contended by the Commission that Barral techniques are described in unusual ways and that there was a variation between the Barral Method textbooks and the way in which the practitioner, described the techniques used.
It was also contended that the Tribunal should not accept the Respondent's purported justification for releasing the broad ligament of the uterus, asserting that Barral teaches only "one technique" and there was in fact a variation between the Barral texts, the Barral courses and how the Respondent described his techniques.
The Commission further argued, in any event, that however the Respondent chose to describe his technique, he was obliged to practise at a standard reasonably expected of a physiotherapist of an equivalent level of training and experience. The Commission in that regard relied on the expert evidence of Ms Powell.
The Commission then in the alternative submitted that the Respondent's conduct, particularly purporting to assess/treat Patient A's ankle injury by releasing her uterus without clinical indication, was improper because it is not in accordance with propriety of behaviour and has the potential to bring the profession into disrepute, or unethical because it is inconsistent with the code of conduct applicable to practitioners. The code it was argued provides that practitioners have a duty to make the care of patients their first concern and to practise safely and effectively in accordance with the current accepted evidence based on the physiotherapy profession.
In support of the complaint about the treatment on 23 July 2020, the Commission submitted that the Tribunal should not accept the Respondent's assertion, unsupported by any contemporaneous notes, that the techniques at this consultation were utilised for a genuine clinical purpose and invited us to reject Dr Panagopoulos' evidence because it is reliant on the Respondent's version of events.
In relation to the treatment of Patient A on 4 August 2020, the Commission argued that the Tribunal should accept Ms Powell's evidence that the conduct was significantly below the relevant standard. The Commission submitted that the Tribunal should not accept the practitioner's assertion that his techniques were for a legitimate clinical purpose in accordance with his usual and appropriate methodology and, again, that we should place limited weight on Dr Panagopoulos' evidence for the same reason as referred to at 60 above.
We do not accept that we should discount the evidence given by Dr Panagopoulos for the reasons put forward by the Commission. In our view, the limited material and assumptions provided to Dr Panagopoulos did not materially affect his evidence. The Commission did not explain how Patient A's versions would alter his evidence. If the conduct was clinically justified it is difficult to see how the absence of an opinion from Dr Panagopoulos as to the relevant standard is relevant. Acceptance that the Respondent was practising the Barral Method does not take the matter further when Ms Powell accepted that to be the case. We are also satisfied that Dr Panagopoulos had sufficient learning, specialised knowledge based on his research and publications to express his opinions. For these reasons we also reject the contention that the Respondent's techniques were not for a legitimate clinical purpose.
We are also of the view that some weight should be given to the post-treatment assessments which demonstrated that there was some improvement for Patient A, a matter going to whether the treatment was clinically justified.
The scope of the complaint is narrow and is underpinned by what is said to be the absence of a clinical indication for undertaking the various treatments.
In our view, the Commission has not satisfied its onus of establishing that the treatments were not clinically indicated.
Although the Respondent had to resort to his usual practice to justify the assessments and treatment his explanations appear to conform with Patient A's explanations of what was occurring. Ms Powell did not, in the end, testify that the particularised treatments were not clinically justified. Her main criticism was that Patient A was not offered alternative methods.
We are satisfied that within the Barral Method there were clinical indications which the Respondent was entitled to rely upon for the treatment he administered to Patient A.
There is no proscription that precluded the Respondent from relying on this, perhaps somewhat unusual, treatment for patients given the reasoning supported in the various texts and the evidence of Dr Panagopoulos to the effect that it is, in particular circumstances, an effective method of treatment with at least some apparent benefit.
Accordingly, the Particulars numbered 3, 5 and 6 to Complaint 1 concerning Patient A have not been made out.

Patient B Conduct

The conduct concerning the consultation and treatment of Patient B in support of the unsatisfactory professional conduct is particularised in Particular 7 of Complaint 1.
Particular 7 states that at the consultation on 12 October 2020 with Patient B, the Respondent: 1. failed to obtain an adequate and/or appropriate history about Patient B's injury before commencing assessment and/or treatment; 2. failed to conduct an adequate physical assessment of Patient B's back injury; 3. inappropriately assessed Patient B with her bra unclasped in circumstances where he did not offer that the assessment could be conducted with her bra clasped; 4. inappropriately and without prior explanation, pulled down Patient B's tights and/or underwear to expose her pubic bone; 5. inappropriately and without prior explanation touched and/or manipulated Patient B's pubic bone and/or pelvis in the purported assessment or treatment of her back injury and without prior explanation touched and/or manipulated Patient B's pubic bone and/or pelvis in the purported assessment or treatment of her back injury without clinical indication to do so; 6. inappropriately and without adequate explanation palpated and/or massaged the following areas in the purported assessment or treatment of Patient B's back injury, without clinical indication to do so: 1. abdominal area; 2. bladder; 3. uterus; 1. inappropriately and without adequate explanation palpated and/or massaged and/or manipulated Patient B's left broad ligament of uterus in the purported assessment or treatment of her back injury, without clinical indication to do so; 2. inappropriately and without adequate explanation palpated and/or massaged on and/or around Patient B's labia majora in circumstances where he flexed his fingers in different ways at the distal and proximal joint, and continued to flex or palpate his fingers with different pressure 2 or 3 times and with pause, without clinical indication to do so; 3. failed to have regard to Patient B's modesty in that he: 1. left the cubicle curtain open by more than five centimetres; 2. did not provide adequate draping during assessment and/or treatment.
In his Reply, the Respondent denies that he failed to obtain an adequate and or appropriate history about Patient B's injury before commencing assessment and or treatment and says that on 12 October 2020, he completed an initial consultation sheet on which he noted that Patient B informed him that six weeks prior, she had developed lower back pain after recovering a man from a lake in Thredbo (Particular 7(a)).
In response to Particular 7(b), the Respondent denies that he failed to conduct an adequate physical assessment of Patient B's back injury and says that he performed a physical assessment of Patient B as documented on the initial consultation sheet dated 12 October 2020 and in line with his usual practice and the application of the Barral Methodology of physiotherapy practice.
In response to Particular 7(c), the Respondent admits that he assessed Patient B with her bra unclasped. The Respondent admits that he did not make an overt offer that the assessment could be conducted with Patient B's bra clasped as his usual practice at that time was to explain why the bra needed to be unclipped, but to let the patient know they could keep their top on. If he sensed any preference to keep the bra clasped, he would have told Patient B to leave the bra clasped creates pressure around the torso, he would find a way to work around this. The Respondent denies that it was inappropriate for him to assess Patient B with her bra unclasped in the circumstances.
In response to Particular 7(d), the Respondent: 1. admits that he moved Patient B's tights and underwear so that they were lowered to the level of the pubic bone; 2. says that this was required for him to assess the potential of organ-specific fascial restrictions of the bladder and uterus which needed to be done through sensitive and advanced palpation that could not be performed through restrictive, elasticised activewear; 3. denies that he did not provide Patient B with prior explanation and says that he explained that he needed the tights to be lowered to the level of the pubic bone in order to palpate lower in the abdomen, as he felt some tension possibly coming from the bladder or uterus, which could affect the lower back pain; 4. says that he lowered Patient B's tights and underwear to the level of the pubic bone and palpated the area above the pubic bone only after he was satisfied at Patient B appeared comfortable to proceed; and 5. denies that the lowering of the tights and underwear to the level of the pubic bone was inappropriate in the circumstances.
In response to Particular 7(e) the Respondent: 1. admits that he touched and/or manipulated Patient B's pubic bone and/or pelvis in the assessment or treatment of her lower back injury; 2. denies that these techniques were performed inappropriately and without prior explanation; and 3. denies that these techniques were performed without clinical indication to do so.
In response to Particular 7(f), the Respondent: 1. admits that he palpated and/or massaged Patient B's abdominal area, bladder and uterus in the assessment and/or treatment of Patient B's lower back injury; 2. denies that these techniques were performed inappropriately and without adequate explanation; and 3. denies that these techniques were performed without clinical indication to do so.
In response to Particular 7(g), the Respondent: 1. admits that he palpated and/or massaged and/or manipulated Patient B's left broad ligament of the uterus in the assessment or treatment of the lower back injury; 2. denies that this technique was performed inappropriately and without adequate explanation; and 3. denies that this technique was performed without clinical indication to do so.
The Respondent denies Particular 7(h).
In response to Particular 7(i)(i), the Respondent: 1. admits that he left the cubicle curtain open; 2. says that he allowed a small opening of about five centimetres so as to balance the need for privacy with the need to ensure that Patient B did not feel claustrophobic in a completely closed space; 3. says that if Patient B had requested him to close the curtain fully, he would have done so without hesitation; and 4. denies that he failed to have regard to Patient B's modesty in the circumstances.
In response to paragraph 7(i)(ii), the Respondent: 1. admits that he did not provide Patient B with draping during the assessment and/or treatment; 2. says that he did not provide draping (a gown or modesty sheet/towel) because he believed that Patient B had consented to this level of exposure, the exposure was for the purpose of undertaking clinical assessment and treatment, the amount of exposure was minimal and the period of exposure was for a relatively short period of time (one to two minutes in total); and 3. denies that he failed to have regard to Patient B's modesty in the circumstances.
Patient B is a serious athlete who had been consistently attending other physiotherapists for years for other injuries.
When attending the Summit on 12 October 2022, Patient B completed a "Patient Information Sheet" and wrote "Back" in response to the question, "What area needs treatment?".
The Respondent then proceeded to assess and treat Patient B.
Patient B stated that she left the consultation with the Respondent on 12 October 2020 knowing that something was not right and that she was upset and distressed.
The next day, Patient B made contact with her regular physiotherapist to explain her concerns, realised she needed to report the Respondent's conduct, and telephoned AHPRA to make a complaint.
Three days after the consultation, on 15 October 2020, Patient B made a written complaint to the Commission.

Patient B's Evidence as to 12 October 2020 Consultation

Patient B's complaint as notified to the Commission was a summary describing her appointment with the Respondent at 1pm on 12 October 2020 as follows: "Theo started the session by asking if the woman who had referred me had explained his approach. I said she did not, that I didn't really know her very well and was referred by her through someone else. He explained that his approach is a bit different and follows a French method which looks more holistically at injury and takes the organs into account for example. He asked that my bra was un clasped (at this stage I was still in my work dress), he motioned that he would unclasp it, but I put my hands behind my back and said I would do it myself. He had me take my shoes off and stand on the floor, facing away from him while he put his hand on the top of my head. It wasn't apparent he was doing much, but I trusted he was looking at something that I was not aware of. He asked me to bend forward, backwards and to each side and stop when it started to hurt. There were other similar assessments before he left the room and gave me privacy to change into my active wear. He came back in, asked me to lie down on my back and asked me questions about my injury, including questions about any other physiological change I might have been experiencing in my bowls [sic] or reproductive area. He did an assessment of my pelvis, pulling my tights and underwear right down so that my pubic bone was exposed. He pressed on my pubic bone and explained that he needed to get a grasp around my pubic bone to assess the alignment of my uterus and bladder. He found a position that he said had purchase on my pubic bone on the left-hand side, held his hand there and asked me to turn on to my left side. He kept his hand there while I was turning. My legs were put into the recovery position with my bottom leg (left) straight, and my right leg bend [sic] at a 90-degree angle. He then navigated his other hand up through the space between my legs and placed it somewhere around my pelvis/pubic bone/vagina area. He was making some, what felt like inconsequential movements, with his hands/fingers, and I felt extremely uncomfortable. It didn't actually feel like he was doing any treatment that would have a real impact on what he was trying to achieve, which was to change the position of my uterus and bladder. Instead my experience was that his hands and fingers were very close to my vagina, and that digital penetration was a real possibility, noting that my tights were pulled down to expose my pubic bone. I asked myself if I should say something or tell him I was uncomfortable, I didn't, but I kept telling myself that if it went any further or there was any penetration that I would stop immediately. The curtain of the room was open and there was a woman at reception who could have walked in or past at any time. I also felt like I needed to trust the man that was providing the treatment. Ive [sic] been recommended him as someone who is very good at treating back injuries, so maybe this is how he gets his results. I made the appointment thinking that I wanted a second opinion and that if his approach, diagnosis and recommendation was the same as my regular physio I would not see him more than once. His approach was different, and that was ultimately why I went to see him in the first place. I told myself I had to trust the process. The above was the worst of what happened during the consult. Though there were other times where my tights were pulled half way down to expose my bottom, I was lying on my front and he was treating my ankles. He was touching my feet as a treatment but again, the treatment felt inconsequential, like what he was doing would not actually do anything to change anything in my body, but it was an opportunity to look at me lying on my front with my bum exposed. The practitioner very briefly explained to me what he would be doing, but the explanation did not adequately match his invasive techniques nor did it prepare me for the experience. His explanation of what he would be doing were perfunctory and came at the same time as he began to do the things he said he would be doing. There was little explanation of how a 'misaligned' uterus and bladder could contribute to a lower back injury, especially when I had explained how I had sustained the back injury and it having nothing to do with my uterus or bladder."

Patient B's Statements

On 19 May 2021, Patient B made a signed witness statement setting out the evidence which she was prepared to give before a Tribunal or Professional Standards Committee and stated that it was true to the best of her knowledge and belief knowing that, if tendered in evidence, Patient B shall be liable to prosecution if she had wilfully stated in it anything which she knew to be false or did not believe it to be true.
The statement was directed at what Patient B had set out in her complaint and provided further explanation and particularisation of what was there set out and what occurred at the consultation on 12 October 2020.
We extract from that statement the following paragraphs: "7. In my complaint, when I described the practitioner asking that my bra be unclasped and he motioned to unclasp it himself, he said something about braziers having the ability to alter one's posture, or words to that effect. He then moved his arms toward me to unclasp it himself, he may or may not have verbally offered to unclasp it. I immediately put my hands behind my back to do it myself, and may or may not have said words to the effect of "I'll do it". I felt very uncomfortable with a practitioner offering to unclasp my bra. My bra remained on, but unclasped. At the time this happened, I was still in my work dress. 8. In my complaint when I described the practitioner asking me to bend forward, backwards and to each side, my bra was unclasped at this time and I think I was still in my work dress. 9. In my complaint, I said Mr Kavieris then left the room and gave me privacy to change into my active wear. 10. When I had changed into my active wear and he had come back into the room, he then asked me to lie on my back on the treatment table and asked me questions about my injury. I don't recall if he ever asked me how the injury occurred but I did tell him that it occurred on 23 August (2020), when I was bending over at full stretch, pulling a drowning swimmer out of the water. He didn't ask any probing questions about this event, but asked me about my menstrual cycle and bowels. My injury was only discussed at the point where I was already on the treatment table. 11. When I was lying on my back on the treatment table, the practitioner then pulled my tights and underwear right down so my pubic bone was exposed. At the same time, he gave a very brief explanation in general terms about what he was doing. He said words to the effect that he needed to get a hold or grasp of my pubic bone to check whether my uterus and bladder were aligned. He said that women can experience pain (in their back) associated with the alignment of their bladder and uterus, and because his approach was 'different' it looked at those types of internal organs and he needed to assess or adjust the position of my uterus and bladder to see if that will make a difference to my back pain. He was saying this at the same time that he pulled my tights and underwear down to expose my pubic bone. 12. The practitioner did not explain to me that he would be pulling my tights and underwear down to expose my pubic bone, and he did not ask my consent before doing so. He did not give me the opportunity to adjust my tights and underwear myself before he pulled them down to expose my pubic area. He did not at any time offer me or provide me with a gown or drape to cover myself. 13. In my complaint, where I said the practitioner pressed on my pubic bone and placed his hands and fingers around my pelvis/pubic bone/vagina area, he was wearing gloves. He did not ask my consent before he placed his hands and fingers on my genital areas. 14. When his fingers were close to my vagina, I felt them move every couple of seconds. It felt like at first he was grasping my pubic bone, then, using just his fingers, not his whole hand, he started what I would describe as exploratory movements. What I mean by this is that he would adjust the placement of his fingers then pause. It felt like he was flexing his fingers in different ways at the distal and proximal joint. He would flex or palpitate his fingers with different pressure 2 or 3 times and pause for a couple of seconds. He was altering the pressure he was using. I don't recall how long this assessment/treatment lasted, but as it progressed, his fingers came very close to the opening of my vagina. I felt so uncomfortable, and I remember thinking to myself 'if it goes any further, if there is penetration, then I'll say something'. His fingers were what felt like on and around my vagina, to the point that I thought penetration was a real possibility. 15. He did not explain to me in any meaningful way how or why touching me in this way was actually connected to or could have contributed to my presenting complaint, being a lower back injury. It did not make any sense to me how touching me in this way was at all related to my injury. 16. The brief and general explanations given to me by the practitioner of his approach to assessing the alignment of my uterus and bladder, did not in any way prepare me for him putting his fingers and hands so close to my vagina and genital areas that I felt digital penetration was imminent. 17. In my complaint, I refer to the practitioner treating my ankles and touching my feet when I was lying on my front. Attached and marked "Annexure C" is a diagram I have drawn indicating the position the practitioner was standing in when he was holding my ankles, in relation to the placement of my body on the treatment table lying face down. 18. When the practitioner was touching my ankles and feet, I could not see his hands at this point as I was lying face down, but I felt like his fingers were moving in a 'flexing' manner. He did not provide an explanation to make me understand why him doing this was related to my injury. 19. I believe that I have a fairly good understanding of human anatomy from a layman's perspective. I felt that what the practitioner was doing and how he touched my body and genital area and body during the consultation, had no consequence on the positioning of my internal organs so as to treat my lower back injury. 20. When the practitioner told me early on in the consultation that he has a 'different' approach, in hindsight I believe he told me this in order to lay the groundwork for him to touch me in the way he did and to encourage me not to object as he had already told me his treatment would be 'different'. I felt because I was recommended to see this practitioner through a personal referral, that he and his process could be trusted, as he is a professional. However, his actions during the consultation made me feel very uncomfortable, and did not feel right. 21. I left the appointment knowing that something wasn't right, I knew immediately that I never wanted to see him again. I went home directly after the appointment, and had the overwhelming sense that something wrong had happened. That night and into the next day I became increasingly upset and distressed. That afternoon, I reached out to my regular physiotherapist, who I have been seeing for years, and as I was explaining to him what happened, I was listening to the words I was saying and realised that I was describing a situation that needed to be reported."
On 15 July 2022 Patient B made a further signed statement setting out the evidence she was prepared to give, with the same declaration as to truthfulness.
This statement was made with the aid of diagrams sourced by Patient B or provided to her by the Commission to identify with more precision what occurred in respect of the lowering of her tights and where she had been touched and the positioning of the Respondent's hands during the treatment. We do not replicate here the diagrams attached to her statement but they provide, in our view, clear evidence to describe the areas where Patient B felt the Respondent touched the specific components of her vulva.
We extract the following passages from the 15 July 2022 statement: "3. This statement is in addition to the written complaint I made to the Health Care Complaints Commission on 15 October 2020 ("my complaint") and the signed statement I provided to the Health Care Complaints Commission dated 19 May 2021 ("my original statement"). 4. In my complaint, I stated that "there were other times where my tights were pulled halfway down to expose my bottom, I was lying on my front and he was treating my ankles". The tights were pulled down to expose the majority of my buttock cheeks and it felt like where my tights were pulled to a point in line with where the widest part of my hips are. 5. In paragraph 14 of my original statement, I stated "It felt like at first he was grasping my pubic bone …". Attached and marked "Annexure B" to this statement is a diagram provided to me by the Commission, which I have marked (in red pen) illustrating where I felt the practitioner's hand was positioned when grasping my pubic bone. 6. In paragraph 14 of my original statement, I stated "I don't recall how long this assessment/treatment lasted, but as it progressed, his fingers came very close to the opening of my vagina". Attached and marked "Annexure C" to this statement is a diagram provided to me by the Commission, which I have marked (in red pen) illustrating the placement of the practitioner's fingers when they came close to the opening of my vagina. Noting that my legs were closed, his fingers were on what I would describe as the dry part of the outside of my vagina, I believe it is called the labia majora. His fingers were on and around the dry part of labia majora. The practitioner's fingers did not touch or penetrate what I would describe as the moist part of my vagina, I believe it is called the labia minora. Attached and marked "Annexure C1" to this statement is a diagram I located on the internet which labels the labia minora and labia majora as I have described in this paragraph. 7. In paragraph 14 of my original statement, I stated "His fingers were what felt like on and around my vagina, to the point that I thought penetration was a real possibility". Attached and marked "Annexure D" is a diagram provided to me by the Commission, which I have marked (in red pen) illustrating where I felt the practitioner's fingers were placed as the "treatment" progressed."

Patient B's Oral Evidence

Patient B was also cross examined at some length.
In relation to the unclasping of her bra during the consultation Patient B in cross examination accepted that the Respondent asked her at some stage during the testing to stand up and take her shoes and socks off and to unclasp her bra. She accepted that the Respondent explained to her that the bra needed to be unclasped, it could stay on but just the clasp at the back needed to be taken off and that bras have the ability to alter one's posture. Patient B could not recall anything being said like bras form a kind of band around the ribs that can restrict what the Respondent could feel when trying to find the tension points.
Patient B, however, took issue with the proposition put to her by Counsel for the Respondent that the Respondent asked her if she would unclip the bra and offered to do it for her if it was uncomfortable.
As pointed out above, the Respondent admitted that he moved Patient B's tights and underwear so that they were lowered to the level of Patient B's pubic bone.
Patient B said in cross examination that photograph labelled 57, a photograph of the manoeuvre that she was describing where the Respondent had checked the pelvis, was similar to what she had experienced, the difference being that her tights and underwear were pulled further down and that her pubic hair would have been exposed.
The following exchanges also occurred in cross examination: "Counsel: You were lying down when this - I'm going to take you through a number of different techniques that were used or manoeuvres that were used while you were lying on the bed so you can describe them. This was the first technique or manoeuvre that was used where your clothing was pushed down. Is that right? And you were lying on your back. Patient B: It was one of them. I don't recall where it was the first or subsequent. Counsel: I'm going to suggest to you that the first part of the testing that was done while you were on your back involved what you describe as the pants being pushed down to an area around your pubic bone and two fingers being used on either side of your pubic, consistent with that photograph. So the question I've got for you is do you see in the photo that's labelled 57, a gloved hand where two fingers are on that woman's pelvic area? Patient B: Yes, I do see that. Counsel: That's consistent to where you felt the fingers of Mr Kavieris when this manoeuvre took place? Patient B: Initially, yes. Counsel: You were lying on your back at that time? Patient B: Yes, I was. Counsel: You were, I take it, looking at the ceiling area at that time? Patient B: I believe so. Counsel: So you couldn't exactly see what Mr Kavieris was doing but you could feel what you believe to be sensations in that area. Is that right? Patient B: That's correct. Counsel: In relation to how your pants came to be down to an area, do you recall Mr Kavieris talking about the examination that he was conducting as it was taking place? Patient B: Yes. Counsel: He said to you something like I need to check your pelvis, do you mind if I bring the pants down a little bit further so I can check the alignment of your pelvis? Patient B: No. I don't think that's accurate to my memory. I don't recall being asked by the practitioner. Rather it was just done for me. Counsel: You've found this particular manoeuvre unusual given you hadn't experienced it all at any other physiotherapist? Patient B: Correct. Counsel: At that stage, you didn't fully understand why that particular technique would be helpful for your back. Is that right? Patient B: That's right. Counsel: But you didn't, at any time, object to that manoeuvre being carried out? Patient B: No, I didn't. Counsel: You didn't tell Mr Kavieris that you felt uncomfortable? Patient B: I did not. Counsel: Do you accept that it is difficult for you now to remember exactly where your clothing was at that time back in October 2020 when this technique … Patient B: No, I don't. Counsel: So just to be clear, I'm going to suggest to you that in fact your tights were aligned to the same level as what we see in paragraph 57. That they had - you might have thought that they were down further but they in fact were not. Patient B: I don't accept that suggestion. … Counsel: Do you accept that Mr Kavieris told you that he was going to use his hand to palpate, using the pubic bone as a landmark? Patient B: No, I don't recall that specifically. Counsel: Okay. Again, I'm trying not to draw this out for you, Madam, but I just want to put to you Mr Kavieris will give evidence at a later date and he's got to recall from his own notes and his practice what he did at that time as well. He'll give evidence that he said to you words to the effect of I'm going to use my hand - use your pubic bone as a landmark and I need to palpate in this area around the pelvis. Do you accept that he might have said something like that? Patient B: Yes, I accept he might have said something like that. Counsel: When you're lying on the back, you couldn't see it, but do you accept that you would have felt the heel or part of Mr Kavieris' hand around your pubic bone? Patient B: Yes. Counsel: Then you felt fingers palpating the abdominal area. Patient B: Initially, yes. Counsel: You recall Mr Kavieris saying to you something like I need to palpate the abdominal area and the bladder and the uterus? Patient B: I recall him saying words to the effect of - sorry, I guess I withdraw that. I recall him referring to needing to make an assessment of the lining - I beg your pardon - of the alignment of my uterus and bladder. Counsel: And I'll come to a technique that happens next when you're lying on your side. Patient B: Sure. Counsel: You don't deny that he might have told you something about the need to palpate the abdominal area and bladder and uterus? Patient B: It's a possibility. Counsel: He - you kept your underwear on for all of this technique, correct? I appreciate … Patient B: My underwear was pulled right down. Counsel: It wasn't pulled down to your ankles though, was it? You maintained … Patient B: No, it wasn't. Counsel: You kept your underwear. It wasn't pulled down to below your vaginal area, was it? Patient B: Very close. Counsel: In your first statement, you explain, as you just did, he pressed on my pubic bone and explained that he needed to get a grasp around my pubic bone to assess the alignment of my uterus and bladder. Can you see that in your first complaint? … Counsel: If you have a look at page 199, that's a photograph that shows a technique that depicts what you've just described, doesn't it? Patient B: Yes, it does. Counsel: Where you have said in your complaint, he then then navigated his other hand up through the space between my legs and placed it somewhere around my pelvis/pubic bone/vagina area, you see that in photograph 198, there's a photograph of a hand where the fingers are around the pelvis or pubic bone. That's a photograph of the technique that you describe after Mr Kavieris' hand has gone through your legs. Do you see that? Patient B: I see that. Yep, that, I would describe, as the technique he was using at the commencement of this treatment. Counsel: I'm going to suggest to you that what happened after that was that Mr Kavieris palpated with his fingers in that area around the pelvic bone. Do you agree with that? Patient B: Initially, yes, he did. … Counsel: I'm going to tell you what I anticipate he will say he said. Something like the uterus has a ligament that stabilises it from one side of the pelvis to the other. That can pull the uterus off line or pull the bones off line because it's pulling. Do you accept that he might have talked to you about the uterus being off line and the ligament that stabilises one side of the pelvis to the other? Patient B: He definitely referred to my uterus, bladder. Whether or not there were those other words in there, I cannot recall. Counsel: You don't deny that they were said but you can't recall it. Patient B: That's correct. Counsel: At that stage, you had your tights on with your underwear underneath. Correct? Patient B: Correct."
In respect of Patient B feeling the respondent making some subtle movements with his fingers she said at the time they didn't feel to her to be consequential. However, she could not understand how that could fix her back at that time.
Patient B said she did not feel at that time that she had a good understanding of how that could be changing or altering the position of her uterus or her bladder. She did trust that the Respondent knew what he was doing at that time but she did not tell the Respondent at any time that she felt uncomfortable.
Counsel for the Respondent then put questions to Patient B as to what might have been said to her by the Respondent when he was explaining the technique, but she could not remember being told something about how the ligaments can be pulled offline.
The following exchange then took place: "Counsel: Before you turned to your side, Mr Kavieris told you that he would like you to turn to your left side and that he was going to put his hand through your leg while you turned. You recall that? Patient B: Yes. Counsel: Then you turned your body over while he maintained his hand in a particular place? Patient B: Yes. Counsel: In relation to what you experienced when you were on your side, I asked you have a look at those photos and you kindly did. There are photographs at page 198 and 199. You could feel small subtle movements of Mr Kavieris' fingers while you were on your side in that position; is that right? Patient B: Yes. Counsel: I take it that when you were on your side you're looking ahead to face a wall in the practice? Patient B: I was looking ahead, yes. Counsel: You're not craning your neck or looking down while that's happening? Patient B: That's correct, that's correct. Counsel: You felt some movements that were around the position of your uterus and bladder? Patient B: Unfortunately I don't know exactly where my - at the time where my uterus was located. I would describe it on my pubic bone/pubis area. Counsel: In your first complaint you said you didn't - he was making what felt to you like inconsequential movements with his hands or fingers and you felt extremely uncomfortable. I didn't actually feel like he was doing any treatment that would have a real impact on what he was trying to achieve, which is to change the position of my uterus and bladder. So at the time of this you understood that he was trying to achieve something with this technique that involved your uterus and bladder; correct? Patient B: Correct. Counsel: But you didn't fully understand why those subtle movements would be capable of achieving that; is that right? Patient B: That's correct. Counsel: But at that time you trusted, didn't you, that his approach was a legitimate one, he was trying to help you? Patient B: Yes."
Counsel then sought to clarify with Patient B exactly what she meant in terms of what sensations she felt as follows: "Counsel: Throughout this period you were looking ahead at the wall but you were feeling things around that pelvic area; is that right? Patient B: Yes, around my labia and vaginal opening. Counsel: So if you have a look at page - sorry, at the photographs that I sent to you, page 198, you will see there finger positions of Mr Kavieris. They show his left hand in a position that is pressing down on the stomach or abdomen area. Patient B: Yes. Counsel: And his right hand, right thumb on that particular model's right pelvis. Do you see that? Patient B: Yes, I do. Counsel: What I'm going to suggest to you is that, in fact, Mr Kavieris' fingers never went lower on your pants area than what is depicted in that photograph. Patient B: That is incorrect. Counsel: You're not suggesting that you saw his fingers lower at any time. You're relying on what you tell us you felt; is that right? Patient B: I felt his fingers lower down. Counsel: You're not suggesting you saw them. You're saying that you had a sensation of them, or a feeling? Patient B: I did not see them. I felt them. Counsel: Mr Kavieris accepts that you felt uncomfortable during this technique. But he is adamant that, in fact, his fingers did not touch you anywhere on your labia majora Do you accept that you are mistaken in that regard? Patient B: No, I don't." and later: "Counsel: What I'm going to suggest - I'm not suggesting for a second that you're being deliberately untruthful, but what I'm going to suggest to you is that this was such an upsetting event for you that it has grown in your mind and that, in fact, Mr Kavieris did not touch your labia majora or any part of your actual vagina. Do you accept that is possible? Patient B: No."
In re-examination Patient B said that her tights and underwear had been pulled down such that her pubic hair had been exposed and her decency had not been maintained.
In relation to her evidence in cross examination that whilst she was lying on her back Patient B felt the Respondent "initially" palpating her abdomen area she stated that she meant that that is where that treatment started and as it progressed the Respondent's fingers were making that same movement but further down, "progressing towards my genitals and vaginal opening area". By her reference to the Respondent initially palpating with his fingers around Patient B's pubic bone she explained that that is where the treatment started then it progressed such that the Respondent's fingers and hand progressed down towards her genitals.
In re-examination Patient B said that the best way to describe how she felt was extreme discomfort. As to why she did not tell the Respondent that she felt uncomfortable, Patient B responded as follows: "There were many reasons. Upon reflection of why I didn't say anything at the time, there was an innate power imbalance between the two of us. He is a practitioner, a professional and I guess it's the practitioner/patient relationship. I didn't really feel like I had the power in the situation to be able to question his techniques and what he was doing. I felt very vulnerable in that position, being exposed in the way that I was. Unfortunately it's something that is somewhat ingrained in young women, especially when there's a power imbalance and an age gap."
Finally, in re-examination Patient B was asked about the question by Counsel for the Respondent along the lines that at the time she wrote her second statement a feeling had been growing in her that this had been something sexually untoward and she had said "yes", Patient B responded as follows: "I would say that I knew immediately that something untoward had happened. I recall very vividly walking out of the practice and knowing very strongly that I never wanted to return. There was no reception - no one at the reception, and I was quite glad of that so that I didn't need to answer any questions about repeat appointments. I didn't return to work that day. I went home immediately because I was overwhelmed with the feeling of discomfort, that something had happened. Then more so the next day when I was speaking with my regular physiotherapist and describing to him what had happened I recall listening to what I had been saying - listening to what I was saying and knowing that something very untoward had happened and that it needed to be reported."

Particular 7(a) - History

At the commencement of the consultation with the Respondent, Patient B explains that the Respondent said words to the effect that his approach is a bit different and follows a French method which looks more holistically at injury and takes the organs into account. He may also have said words to the effect that his approach comes from France, that where the pain might be is not necessarily where the problem might be, that restrictions somewhere else can affect other body parts and that the fascia wraps around bones, muscles and organs.
The Commission contends that the Respondent did not question Patient B about how her back injury occurred, what treatment she may have already received, and its outcome, or any past history involving the injured area.
Patient B did tell the Respondent that she had back pain following her efforts to save a drowning swimmer and the Respondent wrote notes including "6/52 LBP onset when recovering man from Lake (Thredbo)".
Patient B was cross examined about the extent of the history taking by the Respondent. A number of questions were put to her about what was discussed before she was physically examined by the Respondent. In most cases, she could not recall whether there had been a discussion about the matters suggested to her but also did not deny that it might have occurred.
The Commission relied on the evidence from Ms Tracey Powell in relation to Patient B as well.
Ms Powell was asked to provide an opinion on the adequacy and appropriateness of the history the Respondent took of Patient B. She expressed the opinion that the history the Respondent took from Patient B was inadequate. The basis for her opinion was that the Respondent did not question Patient B about how the injury occurred, what treatment she may have already received, and its outcome, or any past history involving the injured area. Ms Powell expressed the opinion that this fell below the accepted standard as expected of a practitioner.
Ms Powell also had regard for the Respondent's version of events about this issue. She pointed to the clinical record made by the Respondent and that it did not support the adequacy or appropriate history taking. She noted that there was nothing noted about when the injury to Patient B's back occurred, any previous treatment for that injury, or any previous history relating to the back. There are also many prompts on the record which have been left with no notation besides them. She assumed that meant that those questions were not addressed to Patient B.
Dr Panagopoulos also addressed this issue in his report. He expressed the opinion that a therapist must get enough information from the history of a patient to direct the physical assessment (i.e., so the therapist is not running a hundred tests on a patient to diagnose the issue which is time consuming and can be painful). Dr Panagopoulos said that it is likely that given Patient B's description of having lower back pain after recovering a man from a lake in Thredbo, the Respondent likely made a clinical assumption that Patient B had mechanically overloaded her back. He stated that the Respondent "likely assumed" that the man was very heavy with wet clothing, that the task was not ergonomically performed, and that the patient would have had to pull and lift him to safety. In other words, he said Patient B had to perform a task that the strength and stability systems of her body were not used to undertaking and were likely unable to tolerate.
Dr Panagopoulos does not say on what basis he formed his opinion as to what the Respondent assumed or likely clinically assumed. The Respondent gave no such evidence to support these views.
Dr Panagopoulos went on to pose the question, "Could he have asked more questions such as, how heavy was the man? What position were you in when you pulled him out?". He then answered that question, "Yes - but this extra information really does not assist him as to his next step" (which was to go on to assess the low back and pelvic region). Hence, he said, it was his opinion that the Respondent performed a limited but effective history taking for Patient B.
In her supplementary report of 10 July 2023, Ms Powell was asked to assume that the Respondent obtained a history as recorded on the Respondent's chart "64/52 LBP onset when recovering man from Lake (Thredbo)".
Ms Powell responded that Patient B had presented for a second opinion regarding her ongoing low back pain. That pain had been present for six weeks and was sustained when pulling a man from a lake in Thredbo. That information is clearly noted on the clinical record. However, given that Patient B had already been for physiotherapy treatment, it was essential for the physiotherapist to understand exactly the treatment she had already had, and her response to that treatment. The physiotherapist, she stated, must also question the patient on the behaviour of the symptoms over that six-week period.
Ms Powell further said that it is also essential for the physiotherapist to question and note any previous issues with Patient B's lower back, prior to this injury. For example, did she only have one session of treatment, had not returned as she felt it did not help? Or did she have many sessions of treatment (with the previous physiotherapist or physiotherapists?) and what treatments were offered? What was the physiotherapist's opinion of the assessment and treatment that was previously done? All of that information, Ms Powell said, will guide the physiotherapist in making decisions regarding assessment and treatment.
In cross-examination, Ms Powell said that it was very important to know the previous treatment, and the outcome of that treatment in order to move forward with working out how you are going to assess and treat that patient. The question was put to her that she could appreciate that where a physiotherapist is focused on trying to alleviate acute pain for a patient, they might neglect to write that, even though they have had that conversation? She responded that it is too important to neglect to write. It was suggested to Ms Powell that that might fall below the accepted standard, but that it was not significantly below the standard in the circumstances of this patient, given the acute pain she was in to which Ms Powell responded that she disagreed with that proposition.
Dr Panagopoulos also testified in relation to the use of visceral techniques that if a patient presented with a visceral component to their pain presentation, he would consider using a visceral manipulation technique. Importantly, he said that if there was no visceral presentation, "or any history of that", then those techniques would not come out. In order to determine whether there is or is not a visceral presentation Dr Panagopoulos said he would determine that during the history taking, at an initial stage and before he even touched a patient. That history taking would involve asking the patient questions to delve further, something like whether they had had any surgery to the abdomen or pelvis region, stuff like gallbladder removals, hysterectomies, removals of tumours from the gut, food intolerances, food sensitivities, whether there was pain in the abdomen, whether there was pain in the front of the pelvis.
It is clear that none of this history was sought by the Respondent before embarking on the visceral manipulation of Patient B.
In our view, Dr Panagopoulos' assumptions undermine his evidence, that the history taking was sufficient. However, the Respondent did ask about the patient's good health, previous operations and previous fractures.
In our view, the care exercised by the Respondent in respect of the history of Patient B's injury before commencing assessment, and before treatment, was below the standard reasonably expected of a practitioner of an equivalent level of training or experience in circumstances where Patient B was presenting for a second opinion. We are, however, not able to conclude that the care in this respect was significantly below the required standard.

Particular 7(b) - Physical Assessment

This Particular goes to the adequacy of the physical assessment made of Patient B's back injury.
It must be borne in mind that Patient B was seeking a second opinion from the Respondent.
Patient B describes in the summary of her complaint that the Respondent placed his hands on the top of her head and she was also required to bend forward/backwards and to each side. In cross examination Patient B said that she was asked to bend and move as described until the pain started.
Ms Powell was highly critical of the adequacy of the physical assessment carried out by the Respondent. She noted in her first expert report that the Respondent assessed a range of motion in standing but did not appear to palpate the area of symptoms, nor perform any neural tethering tests such as straight leg raise, prone knee bends or slumping. She expressed the opinion that the Respondent appears to mainly have performed an assessment using the Barral Method, in this case placing his hand on the top of Patient B's head.
Ms Powell expressed the view that the assessment only including active movements, observation of a pelvic "down slip" and using the Barral Method was significantly below the accepted standard. In her second expert report Ms Powell stated that the Respondent also should have completed a physical examination including observation of active lumbar spine movements and appropriate activities (for example, walking/sitting, palpation of the affected area, and examination of other joints as may have been indicated by a thorough history taking). She expressed a view that undertaking a "general tension assessment" in the absence of performing a thorough physical examination in accordance with the accepted standards of physiotherapy fall significantly below the accepted standard.
Ms Powell also pointed to the fact that Patient B was a new patient, previously unknown to the Respondent, presenting for physiotherapy assessment and treatment but no assumptions should have been made and the Respondent was obliged to complete a full standard physiotherapy assessment of Patient B. Completing a full standard physiotherapy assessment was the only way the Respondent would be able to plan his physical examination, form a diagnosis, and be alerted to any contra-indications/precautions for treatment.
In relation to the physical assessment Ms Powell said that the cursory nature of the physical examination which was heavily biased towards the Barral Method the Respondent did not properly consider other possible causes for Patient B's back pain.
The Commission argued that for the reasons set out above the Tribunal should not accept the Respondent's assertion that his assessment was in line with the "application of the Barral methodology of physiotherapy practice".
The Respondent argued that he conducted a series of tests whilst Patient B was standing, standard physio practise and MET practise. It is argued that once Patient B was supine, he proceeded to palpate the abdomen and followed the fascial tension to the broad ligament and also palpated the pubic bone and what is described as the hypothenar eminence gently against the abdomen.
Dr Panagopoulos in his report provided the opinion that "in the interests of being time efficient and because the patient was describing fairly high levels of pain, Mr Kavieris did not perform an exhaustive physical examination". The Respondent, however, does not explain his limited assessment by reference to these factors propounded by Dr Panagopoulos.
Dr Panagopoulos further stated that the Respondent "could have asked Patient B to perform a whole range of exercises and tasks and checked if they were painful" but says that by the time the Respondent had found that Patient B could not reach forward past her knees and could not bend backwards at all, and taking into account her high pain levels, the Respondent would have classified Patient B's presentation as "irritable". The Respondent makes no reference to the patient presenting as irritable. Dr Panagopoulos went on to say that in his opinion "either consciously or unconsciously" the Respondent performed enough physical assessment testing to show him that what he needed to treat on that occasion, which would allow the patient to feel better and move better as soon as possible.
In the absence of any apparent attempt (tentatively or otherwise) by the Respondent to even try some of the assessments identified by Ms Powell, or identifying in his evidence any assessment of the matters about which Dr Panagopoulos speculates were assumed, or could have been asked for assessment purposes, we are not prepared to accept Dr Panagopoulos' evidence as to the adequacy of the physical examination of Patient B.
In preference to a more thorough and adequate oral and physical assessment of the areas identified by Ms Powell and discussed by Dr Panagopoulos, the Respondent almost immediately embarked on applying the Barral Method.
We accept Ms Powell's evidence as to what was required in relation to this patient and what was in her circumstances required. The Respondent's enthusiasm for applying the Barral Method took preference over the important physical assessment identified by Ms Powell.
In our view, Particular 7(b) has been made out. The physical assessment of Patient B's back injury was not adequate and was substantially below the requisite standard required.

Particular 7(c) - Bra

The first issue is whether the Respondent did not offer that the Respondent's assessment of Patient B could be conducted with her bra clasped.
Patient B testified that the Respondent said words to the effect that her bra needed to be unclasped and that the Respondent did not ask a question of whether she would do it.
There does not appear to be any dispute that the Respondent told Patient B that bras have the ability to alter one's posture and said words to the effect to Patient B that the bra forms a kind of band around the ribs that can restrict what the practitioner feels when he is trying to find tension points.
Early into the consultation the Respondent asked Patient B to take off her shoes and stand on the floor facing away from him and to unclasp her bra which Patient B did.
The Respondent has accepted in evidence that he did not make an overt offer that the assessment could be conducted with the bra clasped.
Ms Powell in her first expert report was of the opinion that the Respondent should have explained to Patient B why he needed her bra to be unclipped and should then have asked if she consented to being assessed with the bra being unclipped. If Patient B did consent the Respondent should then have asked her to unclip it herself. If Patient B consented to undergoing the assessment with her bra unclipped but was unable to unclip her bra herself for any reason, the Respondent should then have offered to unclip it himself.
Ms Powell was of the opinion that if Patient B did not consent to having her bra unclipped for the assessment the Respondent should have done the assessment with the bra clipped. Although the Respondent did give an explanation as to why he needed the bra to be unclipped for the assessment he did not offer that he could also do the assessment with the bra remaining clipped. Ms Powell was of the view that as the Respondent did not gain consent as outlined above his conduct fell significantly below the accepted standard.
We are satisfied and find that the Respondent did not offer that the assessment could be conducted with Patient B's bra clasped.
The Respondent gave evidence that if he had sensed any preference on the part of Patient B to keep the bra clasped, he would have told Patient B to leave the bra clasped and explained that while the bra creates pressure around the torso, he would find a way to work around this but he did not detect any preference or any discomfort in the patient. It is argued that in those circumstances "given that he was practising the Barral Method" it was not inappropriate for him to assess Patient B with her bra unclasped.
We do not accept the contention that the practising of the Barral Method affects the question of whether the conduct was inappropriate where, on the Respondent's own admission, he did not offer the alternative and knew at the time that he could perform the same assessment whilst Patient B's bra remained clasped.
The Respondent argued that the Tribunal may consider that it would have been prudent for the Respondent to have offered that he could have assessed Patient B without her bra on and given that he was well motivated, practising in accordance with the Barral Method, did not detect any discomfort and assessed Patient B while she was wearing her top over her unclasped bra that his conduct was acceptable.
The Respondent's motivation and practising in accordance with the Barral method does not excuse a basic requirement to have given Patient B the offer of an alternative, namely that the assessment could be conducted with her bra clasped. That was clearly the preferable course. It is not simply a question of what we consider as "prudent".
The Respondent also accepted that he may have done some action which was misinterpreted by Patient B as him being about to unclip the bra without waiting for her response, evidence which is indicative of the Respondent not methodically taking steps to explain to Patient B precisely what he was proposing to do and the option of an assessment with the bra being clasped. The Respondent's belief that Patient B was consenting to his assessment was said to be compelling "particularly since she had come to him for a second opinion after mainstream therapy had failed to relieve her symptoms of back pain". We reject the belief or the desire to obtain a second opinion excuses the Respondent's conduct.
The question then is why did this failure lead to the assessment being inappropriate? Ms Powell's evidence referred to above is, in our view, primarily concerned with the absence of consent after the explanation that the assessment could take place with the bra clipped.
Patient B remained in her work clothes whilst the examination of bending assessments occurred. It appears that Patient B was not facing the Respondent when this occurred. Her bra was unclipped but remained on. There is an absence of evidence that Patient B's breasts were exposed in any way to the Respondent by reason of the bra being unclipped. The later assessment of Patient B occurred when she had changed into active wear.
The Commission has failed to establish that the unclipping of Patient B's bra, and the examination which then occurred, was, in the circumstances, inappropriate.
We are therefore not satisfied that Particular 7(c) has been made out.

Particular 7(d) - Pulling Down of Tights and Underwear

It is necessary to consider this particular in the context that this was the first occasion that Patient B met the Respondent and that she had very little understanding of the treatment methods the Respondent was embarking on.
In addition, Patient B experienced the pulling down of her tights and underwear by the Respondent when he was giving some explanation about needing to check Patient B's uterus and bladder for alignment. Attention was thus being directed at those intimate parts of Patient B's anatomy. Prior explanation as to why Patient B needed to be exposed in this manner was therefore important, not only as to the appropriateness of the conduct complained of, but also for the purposes of informed consent (an issue we deal with separately under a different Particular below).
The Respondent admitted that he moved Patient B's tights and underwear so they were lowered to the level of the pubic bone.
Thus, the next issue in Particular 7(d) is whether the Respondent provided Patient B with prior explanation before pulling down Patient B's tights and underwear to expose her pubic bone and embarking on an assessment or treatment of Patient B in the areas mentioned.
As is apparent from the evidence of Patient B outlined above, the Respondent pulled Patient B's tights and underwear down to the level of her pubic bone and at the same time he gave a very brief explanation in general terms about what he was doing. He did not explain to Patient B that he would be pulling her tights and underwear down to expose her pubic bone. In addition, he did not ask Patient B her consent before doing so, and did not give her the opportunity to adjust her tights and underwear herself to a level she was comfortable with, particularly as there was no attempt made by the Respondent to provide Patient B with draping to protect her modesty.
Patient B testified in relation to her pants being pulled down that she recalled the Respondent talking about the examination that he was conducting as it was taking place. She rejected the suggestion that she was asked by the Respondent if he could bring the pants down a little bit further so that he could check the alignment of her pelvis, rather "it was just done for me". This evidence was consistent with what Patient B set out in her statement of 19 May 2021 at paragraph 12 which we have quoted above.
The Respondent in his statement of 3 July 2023 stated that he was of the view that the assessment he then had in mind could not be done through restrictive elasticised active wear before lowering her tights he explained that he needed to palpate lower in the abdomen as he felt some tension possibly coming from the bladder or uterus which could affect Patient B's pain. In his statement he recorded that he would need the underwear to go a little lower to the pubic bone. He asked whether this was okay. He stated that he formed the view that Patient B agreed, however, he now acknowledges that he may have been mistaken. He says he lowered the tights and palpated the area above the pubic bone only after he was satisfied that she appeared to him to be comfortable to proceed.
In her oral evidence and by reference to the photograph provided by the Respondent depicting the manipulation undertaken (on a model after the event) Patient B said that her tights and underwear were pulled down by the Respondent so that her pubic hair was exposed. The pulling down was just done for her and she rejected the suggestion that the tights were aligned to the level shown on the photograpgh. Patient B, as appears from her evidence outlined above, maintained that her underwear was pulled right down very close to her vagina as depicted in the diagram she provided with her second signed statement.
If the Respondent was of the view that the palpating to check the alignment of Patient B's pelvis could not be done through restrictive elasticised active wear he did not explain that to Patient B.
We find Patient B's description of what occurred, and how it occurred, persuasive.
In our view, the consultation proceeded very much on the basis that the Respondent explained, although not in great detail, what he was doing as he went along or as it was taking place. It is clear that very early on he was of the view that he would apply the Barral Method and set about doing so.
The Respondent did not sit his patient down and explain to her what he had in mind, or the precise nature of what the treatment entailed before starting the assessment or treatment. He did not pause before pulling the tights and underwear down to explain to Patient B what he had in mind beforehand.
In our view, the consultation proceeded on the basis of a "running commentary".
Prior explanation that it was necessary for Patient B's clothes to be moved down to her pubic bone, or below, should occur as to allow the patient an opportunity of considering, and questioning, whether she was prepared for that level of exposure. That did not, in our view, occur. Prior explanation in a meaningful fashion would include why the examination could not be done through the active wear Patient B was wearing. This did not occur.
The Respondent merely formed a view that Patient B had agreed but now acknowledges that he may have been mistaken. His evidence is not that Patient B agreed. On the other hand, Patient B's evidence was clear and consistent and that there was no prior explanation given to her. We accept Patient B's evidence.
We are satisfied and find that the Respondent pulled down Patient B's tights and underwear to expose her pubic bone.
We are satisfied and find that that was done without prior explanation to Patient B. In the circumstances we are satisfied and find that it was inappropriate for the Respondent to act as he did. Exposing Patient B in this manner in the context referred to above was confronting. In our view, the Respondent's conduct in this regard was substantially below the standard of care required of the practitioner.
In addition, we are satisfied and find that Patient B's tights and underwear were lowered not simply to the level of her pubic bone, but below that. Dr Panagopoulos accepted that if the tights and underwear were lowered to the level of the pubic bone then it was appropriate and in line with the Barral Method. In this case, as a result of the tights and underwear being lowered beyond the pubic bone so as to expose Patient B's pubic hair it appears that Dr Panagopoulos would say that it was not in line with the Barral Method and was inappropriate.
Patient B did accept in cross examination that the Respondent gave certain explanations in very general terms to her and she did not deny that the Respondent would have explained to her "something about her pubic bone during that examination". However, there was no prior explanation of what was to occur.
The very purpose of prior explanation is to allow a patient the opportunity to question or seek further clarification. Prior explanation does not involve a "running commentary" on the part of the practitioner whilst progressing with the assessment or treatment. Explaining to a patient what the practitioner is doing does not amount to prior explanation.
Particular 7(d) has been made out.

Particular 7(e) - Touching and/or Manipulating Pubic Bone

This Particular is concerned in the first instance with whether the Respondent's touching or manipulation of Patient B's pubic bone and/or pelvis was without clinical indication.
The Respondent argues that the Commission must prove that there was no clinical indication at all that would justify the use of the Barral technique which involved the touching and/or manipulation of the pubic bone and/or pelvis. It is also submitted on behalf of the Respondent that the complaint relies on two things, namely inappropriate touching or manipulation without clinical indication and, secondly, doing so without prior explanation. It is argued that proof of one of those elements, for example, lack of prior explanation, is not sufficient to prove the complaint.
The Respondent has admitted that he touched and/or manipulated Patient B's pubic bone and/or pelvis in the assessment or treatment of Patient B's lower back injury.
We are not satisfied that the Commission has satisfied its burden of proof that that conduct was without clinical indication to do so.
Dr Panagopoulos was of the opinion that manual therapy assessment is part of the Barral Method and that the pubic bone is considered the corner stone of pelvic stability. He was of the opinion that it is a critical mechanical juncture which is exposed to high forces and these high forces are counteracted by deep stabilisation muscles such as transverses abdominus and pelvic floor muscles. Palpating the pubic bone position allows a therapist to understand the three dimensional position of the pubic bone and which muscles may possibly be tight and sore.
For her expert report of 5 October 2021 the following question was posed for Ms Powell: "Assuming [the Respondent's] version of events, please provide your opinion on the adequacy and appropriateness of his conclusion (based on his general tension assessment) that [Patient B] had fascial restrictions requiring him to locally palpate her abdomen, bladder and uterus."
Ms Powell responded by stating that she was not a practitioner of the Barral Method. However, based on the Respondent's general tension assessment, which we refer to below, and his education and training in the Barral Method, she was of the opinion that he had justified that it was appropriate for him to palpate the abdomen, bladder and uterus of Patient B.
Ms Powell's comments in her third report of 17 August 2022 that the assessment and treatment of Patient B's back complaint should not require her pubic bone (or her labia majora) to be palpated is without any underpinning reason and is not accepted insofar as it extends to Patient B's pubic bone.
In his statement of 3 July 2023, the Respondent stated that after palpating Patient B's bladder and finding it was not involved he then palpated her uterus and found it was misaligned. He was of the view, and says he explained to Patient B, that her uterus was being pulled to the left side by extra tension in a ligament on that side affecting the recovery of her initial back injury.
We accept that during the treatment and just before palpating Patient B's pubic bone or pelvis the Respondent gave Patient B some explanation as to what he was doing. The Respondent accepted that he should have explained more before doing that with the knowledge on his part, at the time, that touching her pubic bone or pelvis was not expected by a patient presenting with a back injury. The Respondent's explanation was therefore inadequate. This, however, is a matter which goes to the question of whether there was informed consent on the part of Patient B to this treatment.
Given that we accept that there was clinical indication for the touching or palpating treatment we are not satisfied that Particular 7(e) has been made out.

Particular 7(f) - Massaging Abdominal Area, Bladder and Uterus

Unlike Particulars 7(d) and 7(e), which deal with the absence of prior explanation, Particular 7(f) proceeds on the basis that there was not adequate explanation for the palpating and massaging of the areas identified and that there was no clinical indication to do so.
Based on the evidence of the Respondent and of Dr Panagopoulos we conclude that the Commission has not established that the palpating or massaging Patient B's abdominal area, bladder and uterus was without clinical indication.
Dr Panagopoulos expressed the opinion that palpating the abdominal area, the bladder and the uterus is a common assessment technique in the Barral Method and it allows the therapist to investigate whether an organ and its surrounding connective tissue is moving optimally or restricted in some way.
As to the adequacy of the explanation the Respondent in oral evidence conceded that his explanations were not adequate. The Respondent accepted that although there was explanation it clearly was not adequate so that in that sense it was inappropriate. He also acknowledged that at the time of the consultation with Patient B he was aware that Patient B would not expect to be touched on her uterus when she presented with a back injury. Notwithstanding this awareness the Respondent clearly did not give an adequate explanation for the treatment that he was embarking on. The inadequacy of the explanations is, however, relevant to informed consent.
The Commission has not established each element of Particular 7(f), and as a result, it has not been made out.

Particular 7(g) - Palpating and/or Massaging and/or Manipulating Broad Ligament of Uterus

This Particular also concerns the question of whether there was clinical indication for this treatment and whether the explanation given to Patient B was adequate.
There is no dispute that the Respondent palpated and/or massaged and/or manipulated Patient B's left broad ligament of the uterus in the assessment or treatment of the lower back. This was done by stretching the patient's left broad ligament attaching the uterus to the left pelvic bone or nominate. Patient B's legs were put into the recovery position with her bottom leg straight and her top leg bent. The Respondent told Patient B he had purchase on her pubic bone and held his hand there. He then navigated or threaded his other hand between Patient B's knees and thighs. Patient B described this as the Respondent placing his hand somewhere around her pelvis/pubic bone/vagina area and made some movements with his hands/fingers.
The Commission submitted in closing that the Tribunal should not accept the Respondent's assertion that he undertook this palpating or massaging of Patient Bs left broad ligament of the uterus in the assessment or treatment of the lower back injury with adequate explanation and clinical indication because: 1. the Respondent's assertion is inconsistent with Patient B's evidence that there was inadequate explanation; 2. the Respondent's assertion that the uterus "likely" contributed to Patient B's lower back pain is unusual given that she had recently suffered a significant back injury and did not report any uterine pain/symptoms; 3. the Respondent's assertion that his technique changed a position of the uterus and "normalises the organs neural feedback" is unusual; and 4. the Respondent's assertion that his technique "inevitably improves pain and movement" and that Patient B's misaligned uterus improved after his technique are self-serving justifications unsupported by any published research.
We do not accept that the explanation given by the Respondent for this very unusual treatment which was confronting to Patient B was adequately explained to her prior to the Respondent embarking on this treatment.
In his response to the Complaints Officer of the Commission of 10 November 2020, the Respondent stated that his usual practice is to explain what he would do as part of the assessment and treatment before proceeding but he recognised that he failed to achieve what he intended in this case. He acknowledged that he did not say enough to Patient B to prepare her for the possibility of his touching her uterus.
In our view, the Respondent did not give Patient B time to ask questions if she was unsure of what he was to do, or in fact doing. He stated that had Patient B voiced any issues with his treatment at that stage, or provided non verbal cues which would indicate that she was unhappy to proceed, or uncomfortable with what he was doing he would have provided further explanation and/or had a greater discussion with her. If Patient B still had concerns about the treatment he had proposed (in our view, more likely was embarking on) the Respondent would have used a different method of treatment, a treatment method that Patient B was comfortable with.
We are satisfied and find that the palpating of Patient B's left broad ligament of her uterus occurred without adequate explanation.
It is also clear that there was no necessity for the Respondent to embark on this invasive treatment and that alternative treatments were available.
However, in our view, the Commission's submissions are insufficient to meet the Commission's burden of establishing that there was no clinical indication for what was being undertaken.
Dr Panagopoulos expressed the view in his report that low back pain is a complex pain presentation and, in some cases, has a visceral referred pain component. He said there are rich neurological and fascial connections between the low back and the internal organs. Should a therapist find a restriction in an internal structure which is influencing the ability of the low back structures to move, then it is entirely reasonable to address this restricted internal structure.
Dr Panagopoulos further stated that palpating the broad ligament of the uterus is a common assessment technique in the Barral Method and allows the therapist to investigate whether the board ligament is tight and influencing uterus mobility or the bony pelvis.
The Respondent in his evidence explained why it was clinically indicated, in accordance with the Barral Method, to perform this technique.
It was argued that the testing conducted by the Respondent after the treatment demonstrated that Patient B's range of movement was improved as a result of the technique used by the Respondent, which suggested that the Respondent's technique of how to treat was accurate.
We accept the Respondent's and Dr Panagopoulos' evidence on this issue.
There appears to us to have been sufficient evidence and indicators to establish that the treatment of Patient B's left broad ligament of her uterus was clinically indicated. Whether in the course of this particular treatment the Respondent made contact with other components of Patient B's vulva, a separate complaint, is dealt with below.
The Respondent did not seriously challenge the inadequacy of the explanation he gave in respect of the treatment the subject of this Particular.
The Respondent was asked in cross examination about the suggestion that he manipulated Patient B's left broad ligament of her uterus without adequate explanation before he started, and he responded "I have to say that I wish I had given more explanation".
However, both elements of the Particular have not been established by the Commission.
Accordingly, we find that Particular 7(g) has not been made out.

Particular 7(h) - Palpating and/or Massaging Around Labia Majora

Patient B described the conduct the subject of this Particular in detail and rejected the proposition that she was mistaken.
On the other hand, the Respondent denies that the conduct occurred. There is no claim by the Respondent that there was any clinical indication for palpating and/or massaging on and/or around Patient B's labia majora. The Respondent does not seek to establish that there was adequate explanation for such conduct, or that it was clinically indicated.
It is thus necessary for us to assess the issue by reference to the credit of Patient B and the Respondent.
In Campbell v Campbell [2015] NSWSC 784 Sackar J at [73]-[79] considered the principles which apply to the assessment of the credit of a witness: 1. where a trial judge is faced with a stark choice between irreconcilable amounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence are all matters of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477; 2. the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] (Keane JA); referred to with approval by Leeming JA in State of New South Wales v Hunt [2014] NSWCA 47 at [56]; 3. in cases involving events which occurred long before the litigation, a court usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable, and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable facts, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd (No 4) [2010] WASC 160, per Kenneth Martin J, at [157].
In Campbell at [75], Sackar J referred to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431: "A witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
In relation to the fallibility of human memory Ward J (as her Honour was then) said in A v N [2012] NSWSC 354 at [348]: "As to the lay witnesses generally, I note at the outset that the fallibility of human memory has been explained by McLelland CJ in Eq (as his Honour then was) in an oft-quoted passage in Watson v Foxman (1995) 49 NSWLR 315 (at 318), as follows: … human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
Her Honour, at [349] further referred to the statement of McLelland CJ in Equity (at 318-319) that: "Each element of the cause of action [there for misleading and deceptive conduct though his Honour expressly noted that the principles so espoused were true also for claims based on contract and equitable estoppel] must be proved to the reasonable satisfaction of the court, which means that the court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding": Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action …, in the absence of some reliable contemporaneous record or other satisfactory corroboration."
In Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 the Tribunal stated at [105]: "We commence by making some general observations about each witness. In approaching the evidence, we have been mindful that the authorities have consistently cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on demeanour. That is because a witness may, for example, appear evasive or combative for reasons that are unrelated to the honesty or reliability of their evidence. Likewise, a witness may give evidence in an apparently forthright and persuasive manner and yet their evidence may be found to have been unreliable or, worse, dishonest. Scientific research has cast doubt on the ability of anyone, including decision-makers, to distinguish truth from falsehood on the basis of appearances: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [30-[31]. Nevertheless, as the High Court made clear in Fox v Percy at [41], demeanour evidence, if not decisive, remains relevant to the assessment of the credibility of witnesses, especially when supported or contradicted by other forms of evidence."
The Respondent has also called in aid of his case good character evidence.
Character evidence is not merely evidence as to credit but is, in terms used in s 55 of the Evidence Act 1995 (NSW), also evidence that "could rationally affect (directly or indirectly) the assessment of the probability" that the conduct (or commission of offence) occurred (see TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [35] per Gaudron J).
Evidence of good character is regarded as really baring on the probability or improbability that the Respondent committed the conduct complained of (see Attwood v R (1960) 102 CLR 353 at 359). (See, too Health Care Complaints Commission v Gao [2022] NSWCATOD 73 at [73]-[79]).
The evidence can only make it unlikely, rather than improbable, that a person is guilty of the conduct alleged (see R v Stalder (1981) 2 NSWLR 9).
Patient B gave her evidence by audio visual link. In this instance it did not, in our view, detract from or hinder our assessment as to how Patient B gave her evidence even during extensive cross examination.
As is set out above, Patient B's evidence was that the Respondent placed his fingers very close to her vagina and she explained in oral evidence that this referred to her labia majora but she did not have the anatomical words at that time.
In Patient B's oral evidence she maintained that she felt the Respondent's fingers on her labia majora and twice firmly rejected a suggestion that she was mistaken. She explained in oral evidence that while she was on her side the Respondent was palpating with his fingers around her pubic bone and then his fingers progressed down towards her genitals.
The Respondent's oral evidence was that his left fingers were on the side of the uterus pointing down towards the pubic symphysis and flexed and palpated. Patient B, however, was clear that the initial palpating progressed below her pubic bone.
We are satisfied that Patient B was a materially credible and reliable witness. She had no motive for manufacturing the critical evidence in relation to this issue. She strongly maintained the truthfulness of her evidence.
As to the manner in which she gave evidence we are of the view that she was thoughtful and measured. She did not attempt to embellish her account. The more detailed explanation given in her later statements was consistent with the summary complaint made to the Commission.
Patient B frankly conceded that she could no longer recall certain matters. None of those matters are as critical as her evidence about the extent of touching that occurred as treatment progressed.
We accept her evidence that the experience distressed her then, and it was obvious that in the witness box that, too, was the case. Patient B was an experienced user of physiotherapist services and, as she said, had a reasonable appreciation of her physical anatomy.
Patient B's conduct immediately after the conclusion of the consultation indicated, as it did to her at the time, that what occurred was not right. She was clear that the examination had, and was, going too far towards intimate components of her vulva.
Patient B met with her regular physiotherapist the very next day. Having listened to her account he was supportive of her making a complaint against a fellow practitioner, a position unlikely to have been arrived at if the account was unconvincing. Patient B said that she told her regular physiotherapist that there had been inappropriate touching of her genitals or words to that effect. She said that she told him that the Respondent's fingers were touching her genitals.
Patient B recorded her complaint to the Commission near contemporaneously, only three days after the event when clearly what occurred was still very much in her mind.
Factors which are supportive of Patient B's account include: 1. Patient B was lying on her back with her tights pulled well down to expose her pubic hair, well below what Dr Panagopoulos accepted as the appropriate level; 2. there was no draping of Patient B's exposure; 3. the Respondent's hand was between Patient B's legs extremely close to the area of contention on or across Patient B's groin.
These factors clearly facilitated the touching of the area complained of or allowed the Respondent's fingers more readily to come in contact with the area of dispute. The Respondent testified that the lowering of garments allowed access to the groin or pelvic area.
During a s 150 hearing on 13 November 2022 which led to the imposition of conditions on the Respondent's registration, a member of the Physiotherapy Board panel indicated to the Respondent by reference to his hands between the legs of "a patient" that, to her, it was one of the most intrusive techniques she had ever seen over the course of her career as a clinician.
We accept that the Respondent sought to give his evidence truthfully and he made a number of admissions or concessions in relation to the standard of care delivered to Patient B on the day.
However, it is also clear there were a number of shortcomings in the way in which Patient B was being treated. The Respondent was not adequately explaining to Patient B what was happening, he failed to provide adequate draping, he did not obtain informed consent and his clinical notes were deficient. This conduct on the day was not meeting the standards expected of him.
In addition, as is set out in some detail in the Respondent's written statement tendered in the proceedings, he was to a degree relying on his usual practice or his best recollection to describe what happened. This is in contrast to a very clear recollection by Patient B as to the extent of manipulation and touching of this area of her anatomy and recorded almost contemporaneously.
The Respondent argues that it was impossible for the touching to have occurred as alleged. Although is not entirely clear how the Respondent's hands moved from the initial position, as depicted on the photo of the model he produced, to the later manipulation and touching, we accept Patient B's evidence that the position changed from the initial palpating. We bear in mind that the Respondent had his hand between Patient B's legs and the tights were pulled well down facilitating the touching complained of.
The Respondent submits that Patient B's evidence to the effect that she was touched on or near the labia majora was mistaken. It is argued that Patient B did not see where she was touched and there is no reason not to accept the evidence of Dr Panagopoulos as to the possibility of Patient B experiencing a referred sensation.
The Respondent then submitted that there were at least nine compelling reasons why the Tribunal would conclude that the Commission has failed to prove this complaint.
In our view, Patient B's evidence in relation to this aspect of the treatment was compelling.
Patient B's initial complaint was, as stated, a summary of what happened and when it happened. The summary complaint was not a statement of evidence for a hearing.
Secondly, Patient B's two later statements were explanatory of the summary complaint and provided greater particularity of the complaint, in some cases assisted by diagrams provided to her for comment or sourced herself.
The original complaint was: "He then navigated his other hand up through the space between my legs and placed it somewhere around my pelvis/pubic bone/vagina area. He was making some, what felt like inconsequential movements, with his hands/fingers, and I felt extremely uncomfortable. It didn't actually feel like he was doing any treatment that would have a real impact on what he was trying to achieve, which was to change the position of my uterus and bladder. Instead my experience was that his hands and fingers were very close to my vagina, and that digital penetration was a real possibility, noting that my tights were pulled down to expose my pubic bone."
That account is, in our view, consistent with paragraph 14 of the first statement. Patient B went on to identify with more precision the area affected and describing it as her labia majora.
This experience did not grow in Patient B's mind. In cross examination she was adamant that she felt the Respondent's fingers lower down than depicted in the Respondent's "model" photo.
Thirdly, Patient B in our view gave her evidence in a careful way. She conceded matters where she could not remember and her evidence was given with clarity.
Fourthly, the description of the treatment as it progressed was at all times consistent including in respect of the extensive cross examination on this issue.
The description of how the Respondent's hands and fingers moved is detailed and is most unlikely to have been imagined. We accept Patient B's evidence that this is what she felt and that she was very distressed by it at the time.
Patient B's reaction to the treatment, leaving the practice, not going to work, immediately following up with her physiotherapist, are consistent with treatment which she felt at the time and was distressing to her.
Patient B's oral evidence in which she maintained that she felt the Respondent's fingers on her labia majora and twice firmly rejected a suggestion she was mistaken was, in our view, compelling.
Whilst it was not directly suggested to Patient B that her memory was distorted or her complaint was expanded over time it was suggested that her feeling that something sexually untoward had happened grew after speaking with her regular physiotherapist and over the following months. However, as Patient B explained in re-examination she knew immediately at the practice that something untoward had happened and she recalled very vividly walking out of the consultation and knowing very strongly that she never wanted to return. This evidence, in our view, is contrary to a suggestion that the feeling Patient B had about what happened grew on her.
Patient B's explanation was consistent with her first statement in which she said that she left the appointment knowing that something was not right.
We do not accept that what is described by the Respondent as gaps in Patient B's memory alters her evidence given in relation to this particular issue. If anything, this particular aspect of her treatment clearly stood out in her mind, it was an arresting moment, and was repeated clearly without any material deviation during extensive cross examination.
We do not accept that the fact that Patient B did not see where the Respondent placed his hands in order to perform the fascial release detracts from her clear and consistent evidence that the Respondent touched her on or around her labia majora. Patient B also "felt" the Respondent palpating her pubic bone, abdomen and uterus without being able to see precisely where the Respondent's fingers were placed.
We also do not accept that, as argued by the Respondent, the position of the curtain made it less likely that the conduct occurred in circumstances where the curtain was partially open, where there were no other patients, no other physiotherapist and the female receptionist had left some time during the consultation so that the Respondent had the opportunity to engage in the conduct and the consultation was not interrupted.
In our view, the fact that the Respondent was wearing gloves, due to Covid restrictions, does not make it less likely that the conduct occurred.
We do not regard the fact that the treatment continued after Patient B's feeling of the touching of her labia majora while she was lying on her side detracts from the strength of her evidence. Patient B gave a satisfactory explanation for not objecting. There was a significant power imbalance between patient and treating practitioner, a factor recognised by the Respondent. Patient B felt vulnerable being exposed in the way that she was, a very understandable position.
In our view, we carefully observed Patient B giving her evidence in relation to this issue and had no reason to conclude that it was not truthful or accurate.
The Respondent places some emphasis on Dr Panagopoulos' evidence in which he explained a theory as to the "possibility" of Patient B having perceived a sensation in the region of her labia majora absent any touching.
Dr Panagopoulos expressed this view on the basis of his understanding that the tights and underwear had been lowered to the level "OF" Patient B's pubic bone which, as we have found, was not correct.
Dr Panagopoulos did not express a view that this perceived sensation was either likely or probable. He went no further than saying he could not discount the theory as it "could happen".
Further, we also attach limited weight to Dr Panagopoulos' speculation about perceived sensation in circumstances where the actual allegation is that the Respondent palpated or massaged on or around Patient B's labia majora and Dr Panagopoulos was expressly asked in his instructions to assume that it did not occur. He therefore based his theory on an assumption which denied an evaluation of the likelihood of the Respondent proceeding, during his treatment, to palpate or massage this area in contention and paid no regard for Patient B's evidence of what occurred in assessing the likelihood that it occurred.
The Respondent points to the fact that there was no challenge to the evidence of Dr Panagopoulos on this issue. We are, however, not obliged to accept his theory because of this. There is no rule that in all cases, or even ordinarily evidence which is not the subject of cross examination must be accepted (see Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303 at [71] per Brereton JA; Amaca Pty Ltd (Under NSW Administrative Winding Up) v Roseanne Cleary as the Legal Representative of the Estate of the Late Fortinato (aka Frank) Gatt [2022] NSWCA 151 at [34]-[37] per Beech-Jones JA with whom Brereton and Mitchelmore JJA agreed). Evidence which proceeds on a false assumption (the touching did not occur) readily falls into this category of evidence which we are not obliged to accept.
The character evidence relied upon was of two kinds, a most general reference from a friend who has had many conversations with the Respondent. This referee did also say that in her experience the Respondent could be over enthusiastic about a new treatment. In our view, that opinion is borne out in this case resulting in the failures we have identified in these reasons.
The other reference was from a colleague who stated that she trusts the Respondent's manual therapy skills and that he seeks guidance and was keen to learn the correct techniques. In her experience the Respondent asks for assistance from teacher assistants in order to ensure that he was performing manual techniques correctly in regards to hand placement and pressure.
Patient B's tights and underwear had been pulled down below her pubic bone. The Respondent's arm was between her thighs leaning on her groin. The Respondent sought to depict the position of his hands as displayed on the photograph he provided (Exhibit A1, page 198). Patient B accepted that the photograph depicted where in her case the treatment started, or the initial position adopted, but was firm in her evidence, which we accept, that the treatment progressed such that the Respondent's fingers and hand progressed down towards her genitals.
We do not accept the contention that the Respondent's hands were on this occasion at all times above Patient B's pubic bone, his "usual" treatment.
The evidence of Patient B is by no means, in our view, improbable. In our view, the position is to the contrary given the factors we have set out at paragraphs 233 to 246 above. We have given some weight to the Respondent's previous good character. That evidence, such as it is, does not, in our view, prevail against the evidence of where the Respondent was in fact massaging or touching Patient B below her pubic bone or pelvis.
The character evidence referred to above may suggest that it is unlikely that the Respondent would have engaged in the treatment in this fashion but it does not establish that it is improbable.
We find that the Respondent did palpate around Patient B's labia majora as described by Patient B in her evidence and set out at paragraph 14 of her statement of 12 October 2020 as set out at paragraph [96] above and as particularised in Particular 7(h).
Dr Panagopoulos expressed the opinion in his oral evidence that there was no reason for a practitioner's fingers to manipulate, or feel, or touch, anything below the pubic bone in carrying out the technique applied by the Respondent. He would be very critical of a practitioner of the Barral technique whose fingers move down towards the vagina area of a patient.
Ms Powell in her report of 17 August 2022 expressed the opinion that the only time when it might be an accepted standard of physiotherapy practice and appropriate for a physiotherapist to palpate the labia majora, labia minor and vaginal area of a patient would be if that patient was consulting the physiotherapist regarding a problem with their pelvic floor. Patient B did not present with such a dysfunction and there was no reason for the Respondent to palpate that region. She expressed the view that touching the labia majora of Patient B was conduct that fell significantly below the standard reasonably expected of a practitioner with his training and experience.
Ms Powell also by reference to the Physiotherapy Board of Australia's Code of Conduct 1.2 expressed the opinion that in examining Patient B in the way described the Respondent failed to recognise the power imbalance in the physiotherapist/patient relationship. Clause 3.2(g) of the Code of Conduct referring to the good partnership between a practitioner and the person involves recognising that there is a power imbalance in the practitioner-patient/client relationship and not exploiting patients or clients physically, emotionally, sexually or financially.
There was no explanation given by the Respondent for this part of his conduct.
There was no clinical indication for this palpating around Patient B's labia majora. This touching was in all the circumstances inappropriate.
We are satisfied, and find, that Particular 7(h) has been made out. The care exercised by the Respondent was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. In addition, the conduct engaged in was improper or unethical.

Particular 7(i) - Modesty

The issue of having regard for Patient B's modesty has two elements, leaving the cubicle curtain open by more than five centimetres and not providing adequate draping during the assessment or treatment.
There is a dispute as to the extent to which the cubicle curtain was open. However, in circumstances where it has not been established that anyone observed or was about to observe Patient B in the cubicle so as to impact on her modesty Particular 7(i)(i) has not been made out.
The Respondent admits that he did not provide Patient B with draping during the assessment and/or treatment. There was no obstacle to him doing so.
As set out in his Reply, the Respondent believed that Patient B had consented to the level of exposure and that it was for the purpose of undertaking clinical assessment and treatment, the amount of exposure was minimal and the period of exposure was for a relatively short period of time.
We reject these explanations. The exposure was of the majority of Patient B's buttocks when she was lying on her stomach and down to her pubic hair when lying on her back or side. The exposure was not minimal. The exposure is not excused even if it was for a "relatively short" period.
Ms Powell expressed the opinion that the failure to provide adequate draping to Patient B fell significantly below the accepted standard. Dr Panagopoulos was also critical of the absence of draping in circumstances where a patient's pants were lowered so that her pubic hair was exposed.
The complaint is framed as failing "to have regard" to Patient B's modesty. The Respondent contends that the Tribunal must be satisfied that the Respondent failed to turn his mind to (have regard for) Patient B's modesty.
In our view, to have regard for modesty was to give consideration to it prior to the exposure requiring appropriate draping, whether it was necessary, could it be avoided or dealt with by appropriate draping. A patient's modesty is in our view an important issue.
To have regard for a patient's modesty also carried with it a consideration of whether the patient was in fact acceding to the exposure of her modesty.
In respect of the lowering of her tights and underwear to expose her pubic bone, and pubic hair, consideration required a positive enquiry as to whether Patient B preferred to have appropriate draping. A belief formed as to whether Patient B was, or was not, uncomfortable formed after the exposure, which occurred by the lowering of tights and underwear, does not in our view reveal a regard for Patient B's modesty.
Regard for Patient B's modesty is also not established by a view expressed by the Respondent that during his treatment of Patient B's back she did not say anything to suggest to him that she felt uncomfortable and so her tights were not pulled up until after he had completed the pelvic treatment and reassessment, or that if she had told him she was uncomfortable with her tights lowered he would have immediately covered her up. This belief imposes on the patient some form of need to have regard for her own modesty. We do not accept this approach.
The Respondent was aware in July 2020 that in order to palpate the lower abdomen, the lower abdomen needed to be exposed and he was aware that this is more exposure than conventional physiotherapy. In our view, notwithstanding this knowledge, he did not give consideration to it when treating Patient B.
We are satisfied and find that Particular 7(i)(ii) has been made out. The care exercised by the Respondent in protecting Patient B's modesty by consideration to it before acting was significantly below the requisite standard.

Particular 8 - No Informed Consent

Particular 8 of Complaint 1 is that, having regard to matters including Particulars 7(d) to (h), the Respondent failed to obtain informed consent from Patient B in relation to the assessment and or treatment he provided.
In response to Particular 8, the Respondent: 1. does not admit that he failed to obtain informed consent from Patient B in relation to the assessment and/or treatment he provided; 2. says that he had a conversation with Patient B and noted Patient B's informed consent with the letters 'IC' in his clinical records; and 3. admits that he: 1. may have underestimated Patient B's vulnerability and accepts any have underestimated Patient B's vulnerability and accepts any consented to her treatment; and 2. should have taken extra steps to ensure that Patient B fully understood and consented to the treatment.
The question of what constitutes "informed consent" has been considered in some detail in Health Care Complaints Commission v Grygiel [2021] NSWCATOD 28, applied more recently in Health Care Complaints Commission v Robinson [2021] NSWCATOD 142. We derive and adopt the following principles from those decisions: 1. A patient should be provided with information in terms of which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand the relevant information. 2. All medical treatment (except in cases of emergency) must be preceded by the patient's choice to undergo it and that extends to any aspect of physical examination which may form part of the process of the medical practitioner formulating a diagnosis. 3. In relation to proposed treatment there is an obligation for the practitioner to provide the patient with information, within reason, of alternate treatment options. 4. The nature of the treatment is relevant, particularly when it is not regarded as a standard treatment for the condition presented to the practitioner. The Physiotherapy Board of Australia Code of Conduct for Registered Health Practitioners provides in clause 3.5 that informed consent is a person's voluntary decision about healthcare that is made with knowledge and understanding of the benefits and risks involved. Good practice involves: (a) providing information to patients or clients in a way they can understand before asking for their consent; (b) obtaining informed consent or other valid authority before undertaking any examination or investigation, providing treatment (this may not be possible in an emergency); or … (f) documenting consent appropriately, including considering the need for written consent for procedures which may result in serious injury or death.
Patient B was an experienced sportswoman familiar with what may be described as "standard" physiotherapy treatment. There can be no doubt that treatment undertaken by the Respondent was of a fairly novel kind for back injuries or discomfort.
In our view, it is reasonable for a patient attending a practitioner with back injury to expect treatment of the area causing the pain, discomfort or restriction on movement. However, in this case, the Respondent almost immediately proceeded to pursue and implement his alternative form of treatment of Patient B's uterus, pelvis and ligaments to the uterus with some explanation as it was occurring.
We have found in dealing with Particulars 7 above that the Respondent: 1. pulled Patient B's tights and underwear down for the purposes of his examination without prior explanation; 2. failed to provide to Patient B prior explanation of touching or manipulating her pubic bone or pelvis; 3. failed to adequately explain to Patient B the palpating or massaging the subject of Particular 7(f); and 4. failed to provide adequate explanation of the treatment of Patient B's broad ligament of the uterus.
It is difficult to see how in the absence of prior or adequate explanation for treatment that a patient could have given informed consent.
Ms Powell in her oral evidence confirmed that a patient presenting with a back injury would not expect to have their uterus and bladder examined, but it is very important before doing any invasive technique that there is informed consent so that the patient can decide for him or herself whether or not that level of intrusion is justified. She went on to say that a physiotherapist needs to explain in a detailed way why that invasive assessment or treatment needed to be done, what extra information it is going to give and how it will benefit the patient, and offer an alternative. Ms Powell would not expect a patient to have any understanding of how releasing a uterus ligament could affect their back pain unless it was explained to them in a very detailed manner.
According to Patient B's written evidence she stated that the Respondent did not explain to her in any meaningful way how or why touching her in this way was actually connected to or could have contributed to her presenting complaint, being a lower back injury. It did not make any sense to her how "touching me in this way" was at all related to her injury. In her evidence she also said she did not understand how the practitioner palpating around her pelvic bone could fix her back. Dr Panagopoulos in his evidence suggested, although cautiously, that the practitioner's technique, hand between the legs, would be "okay" but he would expect that the practitioner would "really talk through it with the patient and explain what he's doing, why he needs to do it that way, what's to be expected" so performing that technique without explanation would be unacceptable.
The Respondent himself acknowledges that he should have taken extra steps to ensure that Patient B fully understood and consented to the treatment. In our view, the notation on the patient's notes with the letters "IC" does not accurately reflect informed consent at the requisite level.
In our view, and we find, that the care exercised by the Respondent in seeking to and obtaining informed consent from Patient B was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Accordingly, we are satisfied and find that the Commission has established Particular 8 in relation to Patient B.

Particular 9 - Clinical Notes

Particular 9 is that, contrary to clause 8.4 of the Physiotherapy Board of Australia Code of Conduct, the Respondent failed to document in his clinical notes: 1. sufficient information on 8 July 2020 about the history of Patient A's ankle injury; 2. sufficient information on 8 July 2020 to justify his diagnosis for Patient A of chronic ankle injury; 3. sufficient information about obtaining Patient A's informed consent in relation to the assessment and/or treatment he provided on: 1. 8 July 2020; 2. 23 July 2020; 3. 4 August 2020; 1. any information about any assessment and/or treatment provided to Patient A on 23 July 2020; 2. sufficient information about the assessment and/or treatment provided to Patient B on 12 October 2020, including: 1. how Patient B's injury occurred, what treatment was previously received, or any past history involving the injured area; 2. her responses to questions about her bowels and menstrual cycle; 3. her treatment goals; 4. obtaining Patient B's informed consent in relation to the assessment and/or treatment he provided.
The Respondent replied to Particular 9(a) as follows: 1. he does not admit that on 8 July 2020 he failed to document sufficient information in his clinical notes about the history of Patient A's left ankle injury; 2. he says that on 8 July 2020, he completed an initial consultation sheet on which he noted that Patient A informed him that on 4 July 2020 she had rolled her right ankle while stepping down from the last step of a flight of stairs, with her ankle rolling into inversion and eversion; 3. he says that on 8 July 2020, on further questioning, he determined that Patient A had actually rolled her left ankle so his later notes refer to the left ankle; and 4. he says that on 8 July 2020, on further questioning, he discovered that Patient A had a history of intermittent chronic pain over the anterior joint line of the left ankle and a concurrent history of tendo-achilles stiffness and that this was also recorded in his notes.
The Respondent replied to Particular 9(b) as follows: 1. he does not admit that on 8 July 2020 he failed to document in his clinical notes and does not admit that on 8 July 2020 he failed to document in his clinical notes injury; and 2. he says that, following the various assessments he performed on Patient A on 8 July 2020, which were recorded in his notes, he determined that Patient A was suffering from an acute ankle ligament strain contributed to by a pre-existing chronic ankle condition.
The Respondent replied to Particular 9(c) as follows: 1. he admits that he failed to document in his clinical notes sufficient information about obtaining Patient A's informed consent in relation to the assessment and/or treatment he provided during the consultations on 8 July, 23 July and 4 August 2020; 2. he says that his perception at the time of Patient A's consultations was that Patient A had consented to the treatments administered on those dates and that he would only have proceeded with the treatments if he believed he had Patient A's consent; and 3. he says that although he believed consent had been obtained from Patient A at each consultation, he acknowledges that his notes do not document him seeking and obtaining Patient A's consent because at that time it was not his usual process to document consent in this manner, and acknowledges that this was inadequate.
The Respondent replied to Particular 9(d) in the Reply as follows: 1. he admits that there are no clinical notes for Patient A's consultation on 23 July 2020, including no notes about any assessment and/or treatment provided to Patient A on this date, contrary to clause 8.4(e) of the Physiotherapy Board of Australia Code of Conduct; and 2. he says that he does not recall why this occurred however, has since become aware of a computer glitch which may explain the absence of clinical records for this date, and acknowledges that the absence of clinical records for this consultation does not accord with his professional obligations as prescribed by the Physiotherapy Code of Conduct.
The Respondent replied to Particular 9(e)(i) and (ii) as follows: 1. he does not admit that he failed to document in his clinical notes sufficient information about how Patient B's injury occurred; and 2. he admits that he failed to document in his clinical notes sufficient Information about what treatment Patient B previously received, past history involving Patient B's injured lower back area, Patient B's responses to questions about her bowels and menstrual cycle, Patient B's treatment goals, and sufficient information about obtaining Patient B's informed consent in relation to the assessment and/or treatment he provided.
We deal first with the complaint concerning the adequacy of the clinical notes for Patient A.
Although there are some notations on the records kept by the Respondent in relation to Patient A's clinical notes as particularised in Particular 9(a) and (b) in respect of the treatments on 8 July 2020 which point to below standard record keeping, we are not persuaded that the Respondent's conduct was significantly below the requisite standard in that regard.
The admissions by the Respondent in relation to Particular 9(c) that he failed to record informed consent from Patient A who was seeking treatment for an ankle injury relate to the following treatments: 1. palpating Patient A's head and releasing the fascia of the broad ligament of the uterus on 8 July 2020 2. palpating her head and examining half of fascial tension along her posterior leg on 23 July 2020; 3. palpating her head, palpating the anterior hip groin, palpating the iliopsoas muscle near the groin, releasing the left femoral nerve, and performing neural glides on 4 August 2020.
It is obvious that those treatments required informed consent from a female patient. The nature of the treatments also required accurate recording of informed consent as an important record.
The Respondent does not assert that he in fact obtained informed consent for those treatments. In his Reply he refers to a perception that Patient A consented, or a belief that he had obtained consent. That does not suffice to establish that he had obtained informed consent.
In closing submissions the Respondent argued that in circumstances of this matter, and given that there is no assertion that consent was not actually obtained, the Commission has not proved that the omissions on the part of the Respondent amount to unsatisfactory professional conduct. We reject that submission. The obligation rested on the practitioner, not on the patient or the Commission to prove that he had obtained consent. The obligation on the practitioner was to have proper records of what had in fact occurred and he failed to achieve that outcome.
Ms Powell in her expert evidence was of the view that the absence of documentation of informed consent fell significantly below the accepted standard of care.
Clause 8.4 of the Code of Conduct also imposes obligations on practitioners in respect of the maintenance of health records. The clause provides that maintaining clear and accurate health records is essential for the continuing good care of patients or clients and good practise involves keeping accurate, up to date, factual, objective and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients or clients, medication and other management in a form that can be understood by other health practitioners. The good practice involves making records at the time of events or as soon as possible afterwards (8.4(e)).
In our view, and we find, that the Respondent failed to document in his clinical notes sufficient information about obtaining Patient A's informed consent in relation to the treatment on the three particularised dates and that such conduct was contrary to clause 8.4 of the Code of Conduct.
We are satisfied, and find, that such omission was conduct which was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience in the care exercised in relation to this patient.
In respect of Particular 9(d) the Respondent admits that there were no clinical notes of the assessment or treatment provided to Patient A on 23 July 2020 and that that omission was contrary to clause 8.4(e) of the Code of Conduct.
The Respondent seeks to explain the omission by surmising that the absence of a note of the session on 23 July 2020 might have been caused by a computer glitch, or a full appointment schedule and running overtime, or perhaps an interruption.
We are mindful that practitioners may be busy or interrupted and that proper clinical notes may suffer as a result. However, the Respondent has not asserted that he did document any information about any assessment or treatment provided to Patient A on 23 July 2020.
The absence of documentation is also relevant to the question of whether there was informed consent actually given. Without relevant documentation as to the assessment and treatment on the day, an assessment of whether there was informed consent for such treatment and verification of that fact may not be possible.
Given the nature of the treatment which we outline above the absence of any documentation was, in our view, significantly below the standard of care required.
We are satisfied that Particular 9(d) has been established.
We now come to deal with Patient B.
We are not satisfied that the level of documentation in respect of how Patient B's injury occurred was insufficient so as to amount to unsatisfactory professional conduct.
The Respondent has, however, admitted the pleaded omissions in subparagraph 9(e)(ii), (iii) and (iv).
The question therefore is whether that admitted conduct is significantly below the requisite standard.
It must be accepted that it is important to record more information when the techniques which the practitioner intends to apply are invasive.
Ms Powell was critical of the Respondent's note taking in respect of Patient B. In cross examination the following exchange occurred: "Counsel: You are critical that there was not more information recorded in this note, correct? Ms Powell: Yeah, and there's a lot of things I'm critical about. One of the first is that Mr Kavieris says that this patient was seeing him for a second opinion, which that information doesn't appear anywhere. If this patient has already had treatment, what sort of treatment? What diagnosis was given? What was the outcome? What's happened over six weeks? As I said in one of my reports, maybe this patient was treated by the Barral method, and it didn't work. We don't know that. Counsel: You accept that any physiotherapist will have conversations with a patient which might not necessarily be recorded in notes? Ms Powell: Oh yes, I do. You can't record everything that is said. Counsel: In those circumstances, you suggest that that information should have been recorded? Ms Powell: I think it's very important to know the previous treatment, and the outcome of that treatment in order to move forward with working out how you're going to assess and treat that patient. Counsel: You can appreciate though that where a physiotherapist is focused on trying to alleviate acute pain for a patient, they might neglect to write that, even though they've had that conversation? Ms Powell: See, I think it's too important to neglect to write. Counsel: I'm going to suggest to you that that might fall below the accepted standard, but it's not significantly below in the circumstances of this patient, given the acute pain she was in."
It must be borne in mind that our assessment of this issue is in the context of the consultation as a whole and the type of invasive treatment that the Respondent was seeking to pursue. On balance, we are of the view that the Respondent should have recorded more information on this aspect of the injury and his conduct was significantly below the standard required.

Particular 10 - Sexualised Conduct

Particular 10 is that by reason of the matters referred to in Particulars 7(c) to (i), individually or cumulatively, the Respondent: 1. engaged in inappropriate conduct of a sexual nature towards Patient B; or 2. was reckless to the likelihood that Patient B could consider the conduct to be sexually motivated.
The Respondent replied to Particular 10(i) as follows: 1. he denies that he engaged in inappropriate conduct of a sexual nature towards Patient B; and 2. says there was no intention or attempt by him to act towards Patient B in an inappropriate or sexual manner.
The Respondent replied to Particular 10(ii) as follows: 1. he denies that he was reckless to the likelihood that Patient B could consider the conduct to be sexually motivated; 2. he says that this pleading is unnecessary and confusing as it imports concepts of recklessness, alongside phrases of "likelihood" and "could"; 3. he says further that the concept of recklessness: 1. imports a criminal concept and standard on which no relevant expert evidence has been adduced; 2. is not a standard referred to within the Physiotherapy Code of Conduct or National Law; 3. is a concept that is the subject of conjecture in respect of both academic and legal considerations; and 4. is inherently unclear in the form which it is pleaded.
We deal first with Particular 10(i) that by reason of any of the matters referred to in Particulars 7(c) to (i), individually or cumulatively, the Respondent engaged in inappropriate conduct of a sexual nature towards Patient B.
The complaint as so formulated raises a number of separate issues for consideration and is not without complexity.
Similar wording was recently considered by the Tribunal and the Court of Appeal leading to the decision in Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151 (Robinson (No 2)). The particulars of the complaint in that case are set out at [138].
The question for the Tribunal in that case on the referral back from the Court of Appeal in Health Care Complaints Commission v Robinson [2022] NSWCA 164 was whether a practitioner who examined the complainant's breasts without there being a valid indication to do so, but also without a sexual motivation, committed professional misconduct (as framed by Leeming JA at [22]).
It was conceded in that case that the conduct complained of was inappropriate.
Having referred to the Tribunal's earlier decision where it had been found that the Commission had failed to establish that the Respondent carried out the examination of the patient for his own sexual gratification or purpose the Tribunal in Robinson (No 2) posed the question for its determination as follows: "141. The question then left to be determined is: "If the breast examination conducted by the Respondent was inappropriate, was the conducting of that examination "sexual in nature towards Patient A"? In answering that question, is the context and circumstance of the conduct irrelevant? Is the lack of awareness of the inappropriateness of the conduct irrelevant?"
The Tribunal then proceeded in its decision as follows: "148. Following the decisions set out by us in these reasons, we conclude that to determine the above question, the "context and surrounding circumstances" of the breast examination is a relevant consideration (see: Eades, Jamnagarwalla, King, Ebtash, Sultan). It is relevant to whether the conduct was "sexual in nature". As has been stated in the decisions we have referred to, the examination of sexual organs and breasts and anus's by a medical practitioner, properly conducted for a medical purpose, are "not sexual in nature". Conversely, when such examinations are carried out without a clinical basis, they are sexual in nature and do not require the proof of an intention to have been carried out, by the practitioner, for a personal sexual gratification or purpose. It should be noted however, in the cases referred to in these reasons, where such a finding has been made, the nature of the examination and the part of the body alleged to have been the subject of examination by the practitioner, was either denied or stated by the practitioner to have been the type of examination or interaction which he would not have conducted or engaged in. Thus in those cases the practitioner had not admitted the examinations took place and that he had a good or sufficient belief at the time, that the examination was warranted and required. In the above cited cases, where the practitioners were found to have conducted examinations or actions which were "sexual in nature", the tribunals determining the cases, found against the practitioner on credit and accepted the conduct had occurred. That is not the case we are met with in this determination. … 150. In this case the Respondent has acknowledged that because he lacked the knowledge and awareness of what he now accepts is regarded by his peers as an inappropriate breast examination, he is guilty of unsatisfactory professional conduct. Given that concession, was the examination of Patient A's breasts, by him, "sexual in nature". We conclude it was not. The context and surrounding circumstances of the examination of Patient A's breasts by Dr Robinson, in this matter, we do not accept was "inappropriate conduct of a sexual nature towards Patient A". We certainly accept it was inappropriate conduct. Such is admitted by the Respondent. We do not see how the words of Particular 4 can be seen as not requiring the Tribunal to be satisfied the Respondent intended to engage in a sexual act or conduct which was "sexual in nature". We have specifically found that we were satisfied the HCCC had not established he did have the requisite intention. Had the Respondent denied he had conducted the examination of Patient A's breasts, as she has alleged, and had we accepted Patient A's evidence in preference to that of the Respondent, then this case would have fallen into the same type of circumstance which was faced by the Tribunal's in Ebtash and Jamnagarwalla and Yildirim. That is, there is no other reasonable explanation for the established conduct other than it was sexual in nature. In those cases, it was not necessary to consider the practitioners intention in relation to the offending conduct. 151. The description of "inappropriate" in relation to the examination conducted, is in our view, a sufficient descriptor. It may be that some minds would categorise the term "inappropriate" into classes which might include "highly inappropriate" to underscore the seriousness of the conduct. We do not see how describing the conduct as "sexual in nature" advances the position of the inappropriateness or the seriousness of the conduct. The description of the conduct as sexual in nature, provides for an excursion into the area of intent on the part of the practitioner, unless the conduct is denied. It raises the question of whether the words are capable of being seen as without intent or without implied intent. In the decisions considered in these reasons, courts have determined, where there is no explanation, attempted or otherwise, for an examination of a sexual organ or an intimate part of a patients' body, by a health practitioner, it is an inappropriate examination. Such examination breaches codes of conduct relating to maintaining proper boundaries between practitioner and patient and is sexual in nature. It is the context and surrounding circumstances which requires such a conclusion. 152. It can be seen that in those cases where there is no medical basis for such an examination and that the practitioner must have known that to be the case at the time of the consultation, the Tribunal made the finding of "conduct of a sexual nature". Thus, absent some extraordinary fact or event, there can be no other reasonably drawn conclusion, than that the examination was conducted for a sexual purpose of the practitioner. Some of the decisions we have set out in these reasons dealt with cases where there was no clinical or medical basis for the conduct alleged and established before a Tribunal, coupled with, other facts such as a denial that the complained of examination took place and/or that such an examination would never fall within the practice of the particular Registered Health Practitioner to perform. Thus the facts, context and circumstances of the examination are very relevant to the determination of whether it was "conduct of a sexual nature"".
We have concluded above that the conduct the subject of Particulars 7(c), (d) and (e) insofar as it related to prior explanation, (f) and (g) insofar as it related to adequate explanation was inappropriate.
We have also concluded above that in respect of Particulars 7(e), (f) and (g) the Commission failed to establish that the particularised conduct was without clinical indication.
In relation to Particular 7(h) we note that we are satisfied that the conduct which the Respondent denied occurred, there was no suggestion by the Respondent that the palpating or massaging around Patient B's labia majora was clinically indicated, and there was also no argument that the conduct, if established, was the subject of informed consent.
We adopt the careful and detailed analysis of the Tribunal in Robinson (No 2) set out above. Insofar as the Respondent's conduct was inappropriate (Particulars 7(c), (d), (e), (f) and (g)) we find that it was not of a sexual nature towards Patient B.
As appears above we did, however, find that in respect of Particular 7(h) we concluded and found that the conduct complained of was established.
Accordingly, in relation to that conduct and in reliance of the analysis in Robinson (No 2), and the cases analysed in that decision, we hold that out finding in respect of Particular 7(h) compels a conclusion that the conduct engaged in was of a sexual nature towards Patient B. The conduct was not clinically indicated, denied and was without informed consent.
As was the position in the cases referred to in Robinson (No 2), the Respondent in this case did not admit that he had a good or sufficient belief at the time that the examination was warranted and required, and it certainly was never suggested that the conduct was inadvertent. There is therefore no other reasonable explanation proffered by the Respondent for the established conduct other than that it was sexual in nature.
We are also satisfied that in the absence of any acceptable explanation for the conduct the examination of Patient B's intimate parts of her body as set out in Particular 7(h) was an inappropriate examination and went beyond maintaining proper boundaries between practitioner and patient.
Ms Powell expressed the view by reference to the Code that the conduct was clear physical, sexual and emotional exploitation of Patient B. In her oral evidence Ms Powell said that the Respondent putting his hands somewhere that the patient did not consent to, and it was a very intimate area of that patient was, in her view, the exploitation that she referred to.
The Respondent also conceded in cross examination that he knew before he treated Patient B that the potential for making a patient feel uncomfortable by touching near the uterus and bladder and the proximity of the hands near the vagina was very high.
We are satisfied, and find, that Particular 10(i) has been made out.
In relation to Particular 10(ii), the Commission has not laid out how the likelihood of what a patient could consider about treatment, or the motivation for treatment, establishes unsatisfactory professional conduct. Terms like "likelihood" and "could" are, in the context of the complaint, inherently difficult to give context to.
In our view, as this is an alternative claim to Particular 10(i), and in light of our finding in respect of that Particular, we need not further deal with it.

Complaint 1 Finding

We are satisfied that Complaint 1 has been made out. The Respondent engaged in unsatisfactory professional conduct in a number of respects. In our view, each of Particulars 7(h), 8 and 10(i) individually demonstrates unsatisfactory professional conduct.
We also find that Particulars 7(b), (d), (i)(ii) and 9 in combination, and also in combination with Particulars 7(h), 8 and 10(i) amount to unsatisfactory professional conduct.

Complaint 2 - Professional Misconduct

Complaint 2 is that the Respondent is guilty of professional misconduct under s 139E of the National Law in that the Respondent has: 1. engaged in unsatisfactory professional conduct of a sufficient serious nature to justify suspension or cancellation of his registration; and/or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficient serious nature to justify the suspension or cancellation of the practitioner's registration.
The Particulars to Complaint 2 are the particulars of Complaint 1 and are relied upon both individually and cumulatively.
Section 139E of the National Law provides: For the purposes of this Law, "professional misconduct" of a registered health practitioner means (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
In Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20], Basten JA explained: "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."
The conduct the subject of Particulars 7(h), 8 and 10(i) was serious unsatisfactory professional conduct. The conduct must be assessed in circumstances where the Respondent was seeking to apply techniques readily regarded as unusual for the particular symptoms presented by Patient B.
The techniques were clearly invasive. The Respondent was dealing with a patient who in the circumstances felt vulnerable, there was a power imbalance and an absence of full explanation as to what was to, or was occurring.
It should have been readily apparent to the Respondent that a practitioner with even a basic level of knowledge, judgment, or care would understand that particular care had to be exercised to avoid physical contact with a female patient's anatomy that the Barral Method advocates as a treating technique for palpating a patient's pubic bone or manipulation of her uterus. It is readily apparent that the techniques were invasive. Full and proper prior explanation was to be given to a patient as to what was to occur and the clinical reasons for the proposed treatment before embarking on the proposed treatment. This imperative extends to there being informed consent from the patient.
In our view, treatment advocated as part of the Barral Method, but which crosses the line by not adhering to those two imperatives cannot be excused by reason of it being taught as, or by reason of it being, "the Barral Method".
Informed consent in the circumstances is critical prior to embarking on this treatment. The Respondent was seriously lacking in that regard.
In addition, as we have found, the conduct the subject of Particular 7(h) was improper involving the touching of Patient B's sexual organs.
In our view, and we find, the unsatisfactory professional conduct referred to above in respect of Patient B was of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration.
In addition, in a number of respects, the Respondent's conduct was significantly below the standards required of him.

Complaint 2 Finding

Accordingly, we find that Complaint 2 has been made out in that the Respondent engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the Respondent's registration.

Orders 1. The Respondent is guilty of unsatisfactory professional conduct in respect of Complaint 1. 2. The Respondent is guilty of professional misconduct in respect of Complaint 2. 3. The proceedings are listed for directions in respect of the conduct of the Stage 2 hearing which must follow upon orders (1) and (2) at a date to be determined by the Registrar.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 April 2024

(2014) 226 FCAFC 93 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Theodore Kavieris (Respondent) Representation: Counsel: P Dwyer SC (Respondent)

(2020) 102 NSWLR 303

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