Health Care Complaints Commission v Kavieris

(1) Ground 1 - the Tribunal erred in fact in finding that the underwear of Patient B was pulled down below the pubic bone of the patient and to a level beyond that which was clinically required.

(2) Ground 2 - the Tribunal erred in law in finding that the conduct the subject of Particular 7(h) of Complaint 1 was proved, such finding being legally unreasonable, irrational and/or illogical in view of the finding that the Respondent sought to give his evidence truthfully.

(3) Ground 3 - the Tribunal erred in law in finding that the conduct the subject of Particular 7(h) was "conduct of a sexual nature" such that Particular 10(i) of Complaint 1 was proved:

(a) without considering or making a finding as to the intent or context of the conduct, or

(b) reasoning in a way that was legally unreasonable, irrational and/or illogical.

1. On 6 February 2025, the Supreme Court published reasons in respect of the appeal: Kavieris v Health Care Complaints Commission [2025] NSWSC 20 ("the Supreme Court Decision") and made the following orders:

(1) The Plaintiff (the Respondent) has leave to appeal in relation to that part of Ground 1 which relates to the Tribunal's conflation of the exposure of Patient B's pubic hair and the level of her pubic bone and how that conflation was applied by the Tribunal in assessing Dr Panagopoulos' evidence on perceived sensation.

(2) Ground 1 is upheld in relation to that matter.

(3) Refuse leave to appeal in respect of Ground 2.

(4) Ground 3 is upheld.

1. On 25 March 2025, the Supreme Court ordered that orders (2) and (3) of the First Decision be set aside and that Particulars 7(h) and 10 of Complaint 1, and any consequential findings of unsatisfactory professional conduct, and Complaint 2, be reconsidered by the Tribunal according to law.
2. The proceedings on remitter from the Supreme Court to carry out the orders referred to above were held on 18 November 2025.
3. These reasons must be read in conjunction with the First Decision and the Supreme Court Decision.

1. Order (1) of the First Decision, namely, that the Respondent is guilty of unsatisfactory professional conduct in respect of Complaint 1 is not set aside.
2. Unchallenged findings by the Tribunal in the First Decision and accepted in his submissions (at paragraph 161) are that Particulars 7(b), 7(d) (not including the Tribunal's erroneous conflation of some of the evidence), 7(i)(ii), Particular 8, and Particulars 9(c), 9(d) (in relation to Patient A), and Particulars 9(e)(ii), (iii) and (iv) (in relation to Patient B) were proved and amounted to unsatisfactory professional conduct.
3. The finding (at [147]) of the First Decision was that Particular 7(b) had been made out, namely, that the physical assessment of Patient B's back injury was not adequate and was substantially below the requisite standard required.
4. The finding by the Tribunal in the First Decision in respect of Particular 7(d), which was not the subject of challenge in the Supreme Court, was that the Tribunal was satisfied that the Respondent pulled down Patient B's tights and underwear to expose her pubic bone (at [180]) and that it was done without prior explanation to Patient B. In the circumstances, it was held, that the Tribunal was satisfied and found that it was inappropriate for the Respondent to act as he did and exposing Patient B in that manner in the context of the treatment was confronting. The Respondent's conduct in that regard was substantially below the standard of care required of the practitioner.
5. The failure by the Respondent the subject of Particular 7(i)(ii) was that the Respondent failed to have regard to Patient B's modesty in that he did not provide adequate draping during assessment and/or treatment of her (First Decision at [293] - [302]).
6. In respect of Particular 8, the Tribunal found (at [313]) that the care exercised by the Respondent in seeking 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.
7. In addition, in respect of Particular 7 the following findings which remain relevant were made (at [308]):

(1) the Respondent pulled Patient B's tights and underwear down for the purposes of examination without prior explanation.

(2) the Respondent failed to provide to Patient B prior explanation of touching or manipulating her pubic bone or pelvis.

(3) the Respondent failed to adequately explain to Patient B the palpating or massaging the subject of Particular 7(f).

(4) the Respondent failed to provide adequate explanation of the treatment of Patient B's broad ligament of the uterus (the subject of Particular 7(g)).

1. The Tribunal's findings and conclusions in respect of Particulars 9(c), 9(d), 9(e)(ii), (iii) and (iv) concern failures to document in his clinical notes sufficient information about obtaining informed consent in relation to the treatment of Patient A and Patient B contrary to cl 8.4 of the relevant Code of Conduct (First Decision at [329] - [330] and [335] - [336]).

1. The Court (at [81]) recorded that findings by the Tribunal in respect of Particular 7(d) in the First Decision, namely, that on 12 October 2020 the Respondent inappropriately and without prior explanation pulled down Patient B's tights and/or underwear to expose her pubic bone were as follows:

(1) first, that the Plaintiff (the Respondent) pulled Patient B's tights and underwear down to the level of her pubic bone;

(2) secondly, that this was done without prior explanation; and

(3) thirdly, additionally, Patient B's tights and underwear were lowered below her pubic bone.

1. Although the first two findings did not affect the conclusions in relation to Particular 7(d), it was the third finding that informed the Tribunal's reasoning with respect to Particulars 7(h) and 10. It was an erroneous finding and infected the Tribunal's reasoning in respect of Particular 7(h), and consequently Particular 10.
2. For those reasons it is now incumbent upon the Tribunal to reconsider Particular 7 and Particular 10 in accordance with the rulings by the Court.
3. The Court further held that the Tribunal's path of reasoning, central to the finding that Particular 7(h) was proven, was flawed as follows:

94. I accept the plaintiff's contention that this involved an erroneous conflation of where the pubic hair was exposed and the level of the pubic bone. There was no evidence that the pubic hair which was exposed was in fact lower than the pubic bone but NCAT clearly proceeded on the basis that this was so. This then led NCAT to draw an indirect inference from Dr Panagopoulos' evidence, when it stated that Dr Panagopoulos would view palpation at that lower level as "not in line with the Barral method and [as] inappropriate" (see the Decision at [182] and [244(1)]). This path of reasoning was centrally material to NCAT's finding that Particular 7(h) was proven.

95. This reasoning not only reveals the erroneous conflation described above; it could also be described as inappropriately drawing an "indirect inference" in relation to Dr Panagopoulos' evidence, contrary to the Briginshaw standard which plainly applied in this case. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362; [1938] HCA 34, Dixon J said that a tribunal's "reasonable satisfaction" that a serious allegation has been proved "should not be produced by inexact proofs, indefinite testimony, or indirect inferences".

1. His Honour also held that the reasons for discounting and not accepting Dr Panagopoulos' evidence about the possibility of Patient B having experienced a perceived sensation that her labia majora had been touched were unpersuasive.
2. The evidence of Dr Panagopoulos, to which we will come, was not the subject of cross examination by the Commission. In the First Decision we had recognised this fact but proceeded on the basis that we were, nonetheless, not obliged to accept the evidence. The Court rejected our reasoning, noted that the Commission's expert had not challenged Dr Panagopoulos' evidence and concluded as follows:

113. It should be accepted that there is no universal rule which obliged NCAT to accept this part of Dr Panagopoulos' evidence, which was neither challenged nor contradicted. But absent some good reason, his evidence on perceived sensation should have weighed in the plaintiff's favour, particularly having regard to the Briginshaw standard. NCAT gave no good or sufficient reason for not accepting that evidence. I have explained at [102] above why I consider that NCAT used illogical reasoning in discounting his evidence because of the assumption upon which it was based.

1. The Court also (at [133]) concluded that a successful challenge to the finding that Particular 7(h) was proven will inevitably flow through and vitiate the Tribunal's finding that Particular 10 was established because the two findings are intertwined as we had made clear (at [359]).
2. Further, in respect of the approach required by reason of the reasoning in the decision of the Tribunal, namely, Health Care Complaints Commission v Robinson (No 2) [2022] NSWCATOD 151, the Court held (at [142]) that the Tribunal erred in evaluating the seriousness of the plaintiff's impugned conduct in failing to consider the practitioner's state of mind. It was also necessary to consider the context and circumstances of the conduct to determine whether suspension or cancellation was justified.
3. The Tribunal was also required to consider whether the conduct was deliberate or inadvertent (Supreme Court Decision at [142]) and whether objectively the conduct has a sexual connotation. The Tribunal is not compelled to find that all contact with sexual organs or intimate parts of a person's body, which are medically inappropriate or unnecessary, and therefore inherently sexual.

1. In accordance with the direction from the Court and the reasoning in its Decision we now turn to consider afresh whether Particular 7(h) of Complaint 1 has been proven.
2. Particular 7 is that at the consultation on 12 October 2020 the Respondent 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 joints and continued to flex or palpate his fingers with different pressure two or three times and with pause, without clinical indication to do so.
3. There is no dispute that there was no clinical indication for such treatment, if it occurred.
4. Patient B's evidence was that during the treatment 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 the time of making her earlier statement.
5. Whilst Patient B was lying on her back, she could not see what was happening but said in cross examination that she accepted that she felt the heel of part of the Respondent's hand around her pubic bone. She felt fingers palpating the abdominal area. Patient B could feel the Respondent making some subtle movements with his fingers. She felt some movements that were around what she described as her pubic bone or pubis area.
6. Patient B's oral evidence was 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 lying on her side the Respondent was palpating with his fingers around her pubic bone and then his fingers, as felt by her, progressed down towards her genitalia. At the time that this was occurring the Respondent's hand was between Patient B's legs extremely close to the area of contention on or across Patient B's groin.
7. As had been set out in Patient B's complaint, and in cross examination, she said that she kept telling herself that if it went any further, or there was penetration of her vagina, that she would stop what was occurring immediately.
8. There is no dispute that Patient B did not see where the Respondent was placing his hands or fingers, but she was feeling things around her pelvic area. Counsel for the Respondent put to Patient B at the initial hearing that she was not suggesting that she saw the Respondent's fingers lower down but that is what she felt. Patient B said she "felt his fingers lower down".
9. We accept the evidence of Patient B and find that she felt the Respondent's hands and fingers very close to her vagina and considered that digital penetration was a real possibility as described by Patient B in her written evidence, and in oral evidence in the Tribunal.
10. We accept Patient B's evidence and find that while she was turned on her side Patient B felt the Respondent's hand started around her abdominal pelvis area and then progressed further down towards her genitals. She felt the practitioner's fingers around her labia and vaginal opening.
11. The Respondent denied touching Patient B in the manner which she felt and as we have found.

1. In relation to this Particular the Respondent relied on the expert evidence of Dr Panagopoulos.
2. Dr Panagopoulos was asked to express his opinion on the following:

Assuming Mr Kavieris' version of events, including the manner in which he says he performed the treatment to the broad ligament of Patient B's uterus and his denial of palpating, massaging and/or touching on or around Patient B's labia majora at any time, please provide your opinion on any other reasons (if applicable) to explain why Patient B may have felt a sensation on and/or around her labia majora during her consultation.

1. In response to this question, in his report Dr Panagopoulos explained two mechanisms by which touching an area other than the labia majora could nonetheless have had the effect of causing Patient B to feel a sensation in her labia majora. The first mechanism was via the ilioinguinal nerve, which was elaborated upon by Dr Panagopoulos as follows:

[70]... The ilioinguinal nerve carries sensory (touch) information from the skin of the labia majora back to the brain. This nerve travels from the lumbar spine at L1 level and travels through the soft tissue of the antero-lateral abdominal wall, where it supplies motor (movement) information to some abdominal muscles. It then pokes out and heads inferiorly down to the genitalia [reference to Figure 12].

[71] [Figure 13] is a photo of Mr Kavieris performing a broad ligament release on a model patient correctly, as per the Barral method. It is possible that, by applying pressure through the anterolateral abdominal wall to get deep enough to locate the broad ligament, that Mr Kavieris inadvertently stretched or pressed on the ilioinguinal nerve as it passed through the abdominal wall on the way down to the genitalia. Mr Kavieris' hands are very close to where the ilioinguinal nerve is located. If a stretch or compression of the ilioinguinal nerve occurred it is possible that this could have caused a neurological stimulation of the sensory part of the nerve, triggering a sensation in the labia majora of Patient B.

1. The second possible mechanism was through neurological stimulation or pressure on the round ligament of the uterus. In his expert report, Dr Panagopoulos wrote:

[72] ...The round ligament of the uterus is a fibro-muscular connective tissue and appears like a round band of rope. From the superior and lateral aspect of the uterus, the round ligament crosses the pelvis though [sic] the deep inguinal ring, traverses the inguinal canal and enters the labia majora, where it terminates in the soft tissue above the pubic bones (the mons pubis). The round ligament is covered by folded soft tissue and comprises the superior border of the broad ligament (Figure 6).

[73] Again, with regards to the pressure required to get deep enough to reach the broad ligament in Patient B as per Figure 13, it is possible that Mr Kavieris inadvertently caused a pull on the round ligament and Patient B felt a sensation in her labia majora. In the presence of an irritable and sensitised neuromuscular environment (6 weeks of low back pain), these possible mechanisms cannot be discounted.

1. In his oral evidence in chief, Dr Panagopoulos further elaborated upon this topic in response to a request that he explain what he meant by "neurological stimulation or pressure resulting in a sensation":

[W]e've got to look at this within the context of someone who's presenting with low back pain. I can tell you for a fact that, when a patient comes in with low back pain, they are very tight and tense around their low back and their tummy in general. That is because people are in pain and their muscles are guarding, and there's always a lot of muscle tightness in a lot of patients who've got back pain. Within the context of having very tight muscles, it is possible that, as a therapist is trying to delve into someone's abdomen to reach the depth of the broad ligament, that they are also impacting nerves that are sitting in the anterior abdominal wall. If the nerve is tight or the muscles are tight, again, it's possible that you're pulling on that nerve. If that nerve goes all the way down to the labia majora, it's possible that it stimulates a response. Now, the response is a response back to the brain of pressure. I can't discount that. That's possible and could happen.

1. As the Court noted Dr Panagopoulos' evidence on this topic was not challenged in cross examination. The Commission also did not provide any expert evidence to address the topic or challenge the opinions.
2. We are thus required to consider the weight to be attached to Dr Panagopoulos' evidence in the circumstances where it was not challenged either by way of cross examination or contrary expert evidence.
3. As the Court indicated (at [113]) it should be accepted that there is no universal rule which obliges us to accept those opinions as part of Dr Panagopoulos' evidence, which were neither challenged nor contradicted. But absent some good reason, his evidence on perceived sensation should have weighed in favour of the Respondent, particularly having regard to the standards of assessing evidence of this kind as set out in the Briginshaw standard.
4. The Commission, however, submitted that:

(a) Given that the practitioner had apparently done his usual practice about 60-70 times before performing this technique on Patients A and B, Dr Panagopoulos did not express a view on the likelihood that the practitioner would have "inadvertently" stretched or pressed on the ilioinguinal nerve or "inadvertently" caused a pull on the round ligament when treating Patient B;

(b) Dr Panagopoulos did not express a view that a perceived "sensation" was either likely or probable;

(c) Dr Panagopoulos did not express a view on the likelihood that, if the ilioinguinal nerve was stretched/pressed, it could have caused a neurological stimulation of the sensory part of the nerve, or the likelihood of triggering a sensation in the labia majora.

(d) Dr Panagopoulos did not express a view on the likelihood that, if there was a pull on the round ligament, it could have caused a sensation in her labia majora or the likelihood that if the nerve goes all the way down to the labia majora, it could stimulate a response.

(e) Dr Panagopoulos did not express a view about whether either possible perceived "sensation" accounts for Patient B's detailed explanation about how, when and where she was touched as described in paragraph 14 of her first statement: "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, ... His fingers were what felt like on and around my vagina, to the point that I thought penetration was a real possibility."

(f) Dr Panagopoulos would not do the practitioner's technique himself and his report does not mention any testing or research he has done regarding the likelihood of any perceived sensation in the labia majora from either possible mechanism.

1. The Commission submitted that, accordingly, it was open to the Tribunal to find that Dr Panagopoulos' evidence about possible perceived sensation does not outweigh Patient B's compelling evidence and that we could find that Patient B felt the practitioner touch her as she described because the practitioner actually touched her as she described.
2. In contrast, the Respondent argued that there is no good or sufficient reason to reject Dr Panagopoulos' expert opinion as to the possibility that what Patient B felt (as distinct from saw) was as a result of either inadvertent stretching or pressure on the ilioinguinal nerve, or stimulation or pressure on the round ligament of the uterus, both of which could have caused Patient B to feel "a sensation in her labia majora".
3. The Respondent also submitted that it was not suggested on behalf of the Practitioner that Patient B 'imagined' what she felt, as the Tribunal found at first instance. Dr Panagopoulos' evidence does not support any finding that what Patient B may have felt as a perceived or referred sensation was 'imagined'. That is an oversimplification and misunderstanding of the effect of his expert opinion as to the neurological pathways by which Patient B may have experienced a perceived or referred sensation.
4. It was submitted that the Tribunal could accept that Patient B was a compelling witness and gave her evidence truthfully on this point. That aspect of the Tribunal's reasons were not impugned by his Honour's judgment. The Tribunal can find that Patient B felt a sensation of being touched on the labia majora which was not the result of palpation/massage/touching on or around the labia majora, but on balance as a result of a referred sensation as described by the expert Dr Panagopoulos and summarised above at [73].
5. The Respondent argued that the Tribunal plainly cannot find that particular 7(h) is established to the relevant standard without rejecting Dr Panagopoulos' carefully reasoned opinion. The Tribunal's acceptance of Patient B's evidence does not lead irresistibly to the conclusion that Dr Panagopoulos' evidence must be rejected, or that his expert opinion as to perceived sensation is not an available possibility. Simply, both bodies of evidence can sit side by side. In fact, it is the only means by which the Tribunal can reconcile their findings in relation to Patient B's with their positive credit finding that Mr Kavieris 'sought to give his evidence truthfully', where the Tribunal is bound by that earlier finding.
6. There is no reason, the Respondent argued, to reject Dr Panagopoulos' evidence as to how Patient B may have perceived a sensation without being touched on the labia majora. None of the matters at CWS [34], individually or cumulatively, provide a reasoned or proper basis to find that Dr Panagopoulos' evidence should not be accepted.

1. Each of the two mechanisms described by Dr Panagopoulos are premised on treatment of the broad ligament and the degree of pressure applied by the Respondent during the treatment. In respect of the first mechanism, pressure through the anterolateral abdominal wall to get deep enough to locate the broad ligament. In respect of the second possible mechanism "the pressure required to get deep enough to reach the broad ligament".
2. In his statement dated 3 July 2023, the Respondent described the treatment he performed in the following terms:

I treated this restricted (or tight) structure by gently stretching it when Patient B was in left side lying. This was done by firstly anchoring both ends of the ligament where they attached, one attachment at the left uterine wall and the other at the left nominate (pelvic bone) via the iliac facia. With one hand on each end of the ligament I created a small amount of stretch of the ligament by moving my left hand away from the right, then added the extra tension required with the fingers of my left hand. This had the effect of changing the ligament's length and tension, balancing it with the corresponding ligament on the right. The force required to effect a change in tension is subtle, but the effect of the change in tension is significant.

1. That description, in our view, does not assist in specifically identifying the level of pressure applied.
2. At the re-hearing the parties were asked to identify the evidence demonstrating the pressure applied by the Respondent to engage with Dr Panagopoulos' evidence.
3. In our view, none of the evidence pointed to by the parties clearly identified the degree of pressure applied.
4. In respect of the first mechanism, Dr Panagopoulos states that it is possible that the Respondent inadvertently stretched or pressed on the ilioinguinal nerve as it passed through the abdominal wall on the way down to the genitalia. The probability or likelihood of this occurring is not explained. The Respondent in his evidence did not refer to a possibility of this occurring and he had performed this treatment on numerous previous occasions, apparently without that happening.
5. In relation to the first mechanism there is a second possibility referred to, namely that if a stretch or compression of the ilioinguinal nerve occurred, this could have caused a neurological stimulation of the sensory part of the nerve, "triggering a sensation in the labia majora" of Patient B. Dr Panagopoulos does not describe the likelihood or probability of this occurring although it was possible it could happen, he could not discount it.
6. Dr Panagopoulos' opinion also does not describe what the sensation would be. He refers to "a sensation", an imprecise phrase as to its true meaning. The evidence does not extend to "a sensation" being, or mirroring of, a feeling of fingers touching and moving progressively further down from the pubic bone as described by Patient B, and as we have found. It is also not clear whether the stretch or compression of the nerve would cause the described stimulation on an ongoing basis mirroring the feeling of fingers moving for some time (as they moved progressively further down).
7. The Respondent did not in his evidence describe any risk that he identified that he may have inadvertently stretched or pressed on the ilioinguinal nerve as it passed through the abdominal wall.
8. In relation to the second possible mechanism, Dr Panagopoulos' evidence is that it is possible that the Respondent inadvertently caused a pull on the round ligament and Patient B felt "a sensation in her labia majora". The probability or likelihood of the pull occurring is not described. Our comments in relation to the nature of the "sensation" which might have been felt by Patient B as a result of this possibility also apply to this mechanism.
9. The matters identified by the Commission, and by us above, go the weight to be attributed to Dr Panagopoulos' explained two mechanisms which the Court described as carefully reasoned evidence. However, these were matters which clearly were capable of being explored in detail in cross examination or by expert evidence on the part of the Commission to challenge the possibility of either of these two mechanisms creating "a sensation" as described by Dr Panagopoulos.
10. The opinion that a sensory sensation may have been perceived by Patient B, as opposed to a sensory sensation presenting as a feeling of fingers moving or progressively touching particular parts of Patient B's anatomy, would have been an essential question to have explored in cross examination, which it was not.
11. Contrary to the Respondent's submission it is not necessary to go so far as to reject Dr Panagopoulos' evidence to establish that Particular 7(h) has been proven. It is a question of the weight to be attached to his evidence, in favour of the Respondent, in assessing the evidence and findings of Patient B's evidence.
12. We are reluctant to attribute significant weight to Dr Panagopoulos' opinions in light of the unexplained issues identified above. However, in the absence of a challenge in cross examination, or other expert evidence, to undermine or contradict the evidence we have concluded that, consistent with the Briginshaw standard, we do not have sufficient reason to reject the opinions. In the circumstances, we are required to give the evidence such weight that we cannot conclude that Particular 7(h) has been made out.
13. That does not mean that we do not accept what Patient B felt. It is the cause of those feelings which is at issue and which cannot be excluded.
14. Our conclusion in relation to Particular 7(h) does not alter the findings made in the First Decision that Particular 8, no informed consent, had been established - First Decision [303] - [314]. Further, as noted above, the Respondent did not challenge the findings at first instance in relation to Particular 8 and has not sought to qualify that finding.
15. Particular 7(h) has not been proven to the requisite standard.

1. In light of our conclusion in relation to Particular 7(h), Particular 10(i) cannot be made out.
2. Particular 10(ii) pleads that by reason of any of the matters referred to in Particulars 7(c) to (i), individually or cumulatively, the Respondent was "reckless to the likelihood that Patient B could consider the conduct to be sexually motivated".
3. Both at first instance and in these remitted proceedings the Respondent has made a strident attack on the manner in which Particular 10(ii) is framed and has again sought that it be struck out.
4. We agree that Particular 10(ii) is poorly drafted and raises a number of obstacles in the Commission's path to proving it.
5. The Respondent further argued that:

(1) The way the Commission has pleaded Particular 10(ii) appears to (although it is not entirely clear) invite the following separate inquiries:

(a) An inquiry into the Respondent's state of mind as to what he considered, or should have considered;

(b) An inquiry as to whether or not a matter was a likely possibility in Patient B's mind;

(c) That possibility being whether or not Patient B 'could' consider the conduct to be sexually motivated.

(2) It is entirely unclear what the Particular alleges against the Respondent. It seems (although it is not clear) to invite an inquiry into the Respondent's state of mind regarding the Patient's possible state of mind.

(3) The mischief in Particular 10(ii) is that, at its heart, it is wholly focused on an inquiry into the Patient's subjective state of mind. Even putting aside the additional levels of abstraction inherent in the Particular (being the Respondent's state of mind about the Patient's state of mind), the Tribunal could not find that any Practitioner was guilty of unsatisfactory professional conduct merely on the basis of the Patient's entirely subjective perception of their experience.

1. The Respondent also argued that the question of whether conduct has a sexual connotation is an objective determination. The Respondent argued that even if a practitioner did turn his or her mind to the possibility that a patient "could" consider certain conduct to be "sexually motivated", but proceeded anyway, if a conduct is objectively clinically indicated or not otherwise inappropriate, it is entirely irrelevant what the practitioner might have thought, or not thought, about the patient's possible state of mind.
2. For the reasons expressed by the Respondent we are not satisfied that the manner in which this Particular has been formulated, and is applicable to the evidence, can be made out.
3. The matters referred to in Particulars 7(c) to (i), which must exclude 7(h), occurred during the treatment of Patient B and, relevantly, without prior explanation. The Commission has failed to establish and has not satisfied us that:

(1) unclasping Patient B's bra, which was not inappropriate, was likely to cause Patient B to come to the view that it was sexually motivated (which it was not found to be);

(2) by failing to have regard to Patient B's modesty through inadequate draping during assessment or treatment it was likely to cause Patient B to come to the pleaded consideration;

(3) the failure to offer prior explanation for the conduct the subject of Particulars 7(d), (e), (f) and (g) gives rise to a likelihood as to what Patient B could (we assume possibly) consider about the conduct;

(4) the conduct the subject of Particulars 7(c) to (i), excluding 7(h), which was not conduct pleaded as sexually motivated, or proven as sexually motivated, should be interpreted as likely to be considered as something Patient B could consider to be sexually motivated.

1. Not knowing what Patient B could consider about his treatment, it is not open to us to find that the Respondent was reckless as to such an outcome.
2. Particular 10(ii) has not been made out.
3. Accordingly, Particular 10 has not been proven.

1. We are satisfied that Complaint 1 has been made out. The Respondent engaged in unsatisfactory professional conduct in respect of his failure to obtain informed consent to the treatment of Patient B (Particular 8).
2. We also find that Particulars 7(b), (d)(i) and (ii), and 9 in combination, and also in combination with Particular 8, amount to unsatisfactory professional conduct.

1. In order to determine whether the Respondent has engaged in professional misconduct as set out in s 139E of the National Law, the Court emphasised (at [144]) that this requires an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct which may involve consideration of a wide range of matters, although each case will necessarily depend on its own facts, including the context and circumstances in which it occurred.
2. On 24 September 2020, the Respondent was made aware by the Commission of a complaint against the Respondent in respect of the treatment of another patient, namely, Patient A. In cross examination he was asked what he understood Patient's concerns to be. The Respondent stated that it was his impression, having read the complaint, that that patient was concerned about how she was handled by him physically and that she did not understand what was going on and there was a breakdown in communication.
3. In a s 150 hearing before the Physiotherapy Council of New South Wales on 13 October 2022, and when asked by the delegate at what stage of the treatment the Respondent asked Patient B for informed consent to ensure that she fully understood the nature of the treatment that she was about to receive, and how he ascertained from the patient what really mattered to her in terms of her goals, the Respondent acknowledged that he was aware that his approach was quite different and, at the time of the treatment of Patient B, he was in the middle of responding to another complaint, being the complaint from Patient A which we refer to above, in terms of the explanation to Patient B "it had to be on point about trying to be clear and have informed consent".
4. The Respondent was therefore at the time of the consultation with Patient B fully aware of a deficiency of his prior explanation to Patient A and the need to be clear to obtain informed consent.
5. Patient B, an experienced sportswoman, presented to the Respondent for treatment of a back injury on 12 October 2020. The Respondent was aware his approach to treating an injury of that kind, through the Barral Method, was quite different to what a patient may expect.
6. From the outset of his treatment of Patient B the Respondent failed, with full knowledge of his obligations, to comply with a range of his duties as a practitioner to his patient. As has been found:

(1) he failed to conduct an adequate physical assessment of Patient B's back injury;

(2) without prior consent he pulled down Patient B's tights and/or underwear to expose her pubic bone;

(3) without prior explanation he touched and/or manipulated Patient B's pubic bone and/or pelvis;

(4) he failed to adequately explain to Patient B the palpating or massaging the subject of Particular 7(f);

(5) he failed to provide adequate explanation of the treatment of Patient B's broad ligament of the uterus, the subject of Particular 7(g).

1. Having failed to adequately physically assess Patient B's back injury the Respondent therefore embarked on a treatment of the private and sensitive areas of Patient B's body without prior consent, and in the knowledge that he had already received a complaint which indicated to him that he had to be more careful and clear to get informed consent.
2. The Respondent argues that in the absence of findings in relation to Particular 7(h) and 10(i) having been established the gravity of any failure in obtaining informed consent as proven in Particular 8 is significantly reduced. The Respondent also argues that in the absence of those Particulars having been proven, the Tribunal cannot rely on the second limb of s 139E (more than one instance of unsatisfactory professional conduct) as justifying a finding of professional misconduct.
3. We do not accept this submission. In the First Decision we were satisfied that Particular 8 individually demonstrated unsatisfactory professional conduct. That conclusion (at [367]) is not challenged. We confirm that remains the Tribunal's position.
4. The Respondent's contention that we are confined in our approach to Particular 8 is rejected.
5. There are also four additional findings of unsatisfactory professional conduct, namely, Particulars 7(b), 7(d), 7(i)(ii) and 9.
6. Paragraph [308] of the First Decision referred to that conduct which was significantly below the standards required of the Respondent. If there is any doubt about that we make it clear. In respect of Particular 7(b), see paragraph [147]; in respect of Particular 7(d), see paragraph [181]; in respect of Particular 7(i)(ii), see paragraph [302]; in respect of Particular 9, see paragraph [343].
7. We also found (at [368]) that Particulars 7(b), 7(d), 7(i)(ii) and 9 in combination, and also in combination with Particulars 7(h), 8 and 10(i) amounted to unsatisfactory professional conduct.
8. As we point out above, the Respondent has not challenged the findings at first instance that Particulars 7(b), 7(d) (not including the third basis), 7(i)(ii), 8, 9(c), 9(d) and 9(e)(ii), (iii) and (iv) were proved, and amounted to unsatisfactory professional conduct.
9. We have now considered the position in the absence of Particulars 7(h) and 10 having been established. In our view, and we are satisfied that, failures on the part of the Respondent as identified in the paragraph immediately above in combination (and excluding Particulars 7(h) and 10(i)) amount to unsatisfactory professional conduct.
10. We do not accept the Respondent's submission that the Respondent's failure to obtain informed consent is significantly reduced and repeat what is set out in the First Decision at paragraphs [305] - [313]. The gravity of the conduct is sufficiently serious without consideration of those Particulars and there is no suggestion that the Respondent should have, or would have, obtained informed consent to that pleaded conduct.
11. Further, if there was a possibility of a triggering of a sensation in the labia majora of Patient B by either of the mechanisms identified by Dr Panagopoulos by the treatment of the broad ligament, Patient B should have been warned by way of a full explanation of that possibility prior to treatment. A female patient may not wish to consent to a male practitioner triggering a sensation of the kind described, particularly in the context of a treatment which, as it turned out could be most distressful for a patient.
12. It should have been readily apparent to the Respondent that 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 that treatment.
13. Given the Respondent's submission we set out the following from the Respondent's cross examination:

a. the practitioner was aware from his physiotherapy degree of the importance of informed consent;

b. the practitioner was aware since starting his own practice in 1999 that it is important to provide more information to patients when the procedure is potentially more risky;

c. the practitioner was aware since around 2014 of the Code of Conduct;

d. the practitioner was aware since 2016 that putting his fingers near a patient's uterus would potentially have emotional connections and other sensitivities attached to it, was aware it was a "strange technique" in a "delicate area", which was "out of concept for a lot of people - and even other physiotherapists. Therefore, it's also a delicate space because they can lose their faith, and so - because it seems so strange" and that it could be misunderstood;

e. before treating Patient B, the practitioner knew that patients don't expect the pelvis to be involved when treating pain in their ankle and back, knew his approach was "quite different" and "novel" from the patient's perspective and many other practitioners, knew that his method is a departure from traditional physiotherapeutic practice, more exposure than conventional physiotherapy, knew that his uterus ligament technique is potentially confronting, knew that requiring patients to lower their garments to the groin/pelvis and his hand placement could be confronting;

...

h. when treating Patient B, the practitioner knew that touching her pubic bone or pelvis was not expected by a patient presenting with a back injury, was that aware that Patient B wouldn't expect to be touched in her uterus when she presented with a back injury, noticed her abdomen was contracted as a potential sign of discomfort (but then just told her to relax and continued his technique); ...

1. This evidence, in our view, reinforces our view that the Respondent's failures in respect of obtaining informed consent was serious and is not diminished by reason of Particulars 7(h) and 10(i) not being established.
2. Further, the gravity of the failures is not diminished by reason of the fact the failure on informed consent relates to a single patient on a single occasion, or that "some explanation" was given as argued by the Respondent. It is sufficient to refer to the cross examination set out above and the clear distress caused to Patient B by embarking on the different treatment with which she was completely unfamiliar, techniques which were invasive on a vulnerable patient.
3. The nature and seriousness of the Respondent's conduct thus had consequences for the wellbeing of Patient B. She was sufficiently affected, adversely, by what occurred to seek advice from her usual physiotherapist. She felt she had to make a complaint to the Commission and, in the end, had to give evidence to try and vindicate her real concerns as to what occurred, an experience which was very stressful for her.
4. In light of the evidence we set out at paragraph [99] above it also cannot be said that the Respondent's impugned conduct, taken as a whole, was simply carelessness or undertaken with ignorance of the Respondent's obligations as a registered practitioner.
5. In our judgment the Respondent's conduct as found was of a sufficiently serious nature to justify a finding of professional misconduct and we so find.
6. We are of the view that the conduct the subject of Particular 8 alone (s 139E(a)), and also in combination with the other unsatisfactory professional conduct we identify above (s 139E(b)) are of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration.
7. It will, of course, be necessary as part of our protective jurisdiction to consider whether any orders cancelling or suspending registration are necessary.
8. Complaint 2 has been proven.

(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 the Stage 2 hearing on 9 December 2025.

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.