Stevenson ADCJ, Dr K Keenan SM, Dr C Berglund GM: By a Complaint dated 22 December 2021, the Health Care Complaints Commission ("the Applicant" or "the HCCC") sought findings that the Respondent, Dr Radakrishnan Kesavan ("the Practitioner" or "the Respondent") is guilty of unsatisfactory professional conduct and professional misconduct, as those terms are defined in the Health Practitioner Regulation National Law (NSW) ("the National Law"). By agreement between the parties, this hearing was limited to a determination as to whether the Practitioner is guilty of unsatisfactory professional conduct and, if so, whether its seriousness justifies a finding of professional misconduct.
By Complaint One, the Applicant contended, in summary, that the Practitioner engaged in conduct which demonstrates that his knowledge, skill or judgment is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Additionally, or alternatively, the Applicant alleged that the Respondent engaged in improper or unethical conduct relating to the practice or purported practice of medicine.
It is necessary that the Particulars of the Complaint be set out in full at this point in these Reasons. These Particulars read as follows:
"First consultation
1. On at least one occasion in 2017, when Patient A presented with a tender lump under her left arm, the practitioner performed a breast examination on her in circumstances which were inappropriate in that he:
a. did not provide an opportunity for Patient A to have a chaperone present during the breast examination;
b. moved his chair directly in front of Patient A with his right leg positioned between Patient A's legs;
c. lifted Patient A's left arm, and said words to the effect of, "that seems fine, just a swollen gland. But we'll check and make sure no more lumps";
d. pulled up Patient A's top so that her bra was fully exposed;
e. with both hands pulled the bottom edge of Patient A's bra downwards exposing her breasts;
f. placed both of his hands on Patient A's breasts, squeezed her breasts simultaneously and moved her breasts up and down for approximately 1 minute;
g. placed his hands on the outer edge of Patient A's breasts and pushed them together;
h. inappropriately used his hands to weigh each breast to check if one was heavier than the other.
2. In respect of particulars 1(d) and (e) the practitioner failed to provide adequate privacy or protect Patient A's modesty prior to a breast examination, in that he:
a. did not ask Patient A if she wanted to undress in private;
b. did not offer Patient A the opportunity to change behind a curtain; and
c. did not offer a modesty sheet to Patient A during the examination.
3. The practitioner failed to obtain proper informed consent from Patient A before conducting a breast examination, in circumstances where Patient A presented with a tender lump under her left arm.
Second consultation
4. On one occasion between 2017 and 2018 the practitioner performed an examination of Patient A's hyperhidrosis condition which was inappropriate in that he:
a. placed the back and front of his hands on Patient A's cheeks;
b. placed the back and front of his hands on Patient A's skin on her chest around the neckline of her singlet;
c. placed his hand on the outside of Patient A's clothing on her breasts;
d. weighed Patient A's breasts in his hand and said words to the effect of "yes they're definitely smaller".
5. The practitioner failed to obtain proper informed consent from Patient A before conducting the examination.
Third consultation
6. On one occasion between March 2017 and January 2018, the practitioner performed an examination of Patient A's hyperhidrosis condition, which was inappropriate in that the practitioner:
a. placed the back and front of his hands on Patient A's skin on her chest around the neckline;
b. placed two fingers down the front of Patient A's top between her breasts and said words to the effect of, "No that's fine. Normal temperature";
c. picked up a stethoscope and placed it under Patient A's top onto the inner edge of her breast before proceeding to move it around her breast;
d. proceeded to pull up Patient A's top;
e. placed his hands on Patient A's shoulders;
f. touched Patient A's back with his forehead and said words to the effect of, "I don't know what to do with you".
7. The practitioner failed to obtain proper informed consent from Patient A before conducting the examination nor offer a chaperone.
Fourth consultation
8. On or about January 2018 during a consultation, the practitioner performed an examination of Patient A's hyperhidrosis condition, which was inappropriate in that the practitioner:
a. placed his hands on either side of Patient A's hand;
b. with his thumb stroked the palm of Patient A's hand; and
c. with his hand touched Patient A's right leg.
9. During the consultation, the practitioner performed an examination of Patient A's weight gain, which was inappropriate in that the practitioner:
a. moved behind Patient A, placed his hands on either side of her waist and said words to the effect of, "no, no, no you're fine. I'll just check for fat";.
b. moved in front of Patient A and with his hands grabbed either side of Patient A's outer thighs;
c. with his left hand grabbed Patient A's right buttock and said words to the effect of, "no that's fine. No problem there";
d. placed his right hand on Patient A's left breast on the outside of her singlet top;
e. placed his left hand of Patient A's right breast on the outside of her singlet top and said words to the effect of, "there used to be a problem her, there's no problem here anymore",
f. placed his left hand inside Patient A's bra with his fingers touching her nipple and said words to the effect of, "let's have a look";
g. pressed his erect penis against Patient A's lower abdomen;
h. hugged Patient A and kissed her forehead.
10. During the consultation, the practitioner inappropriately said to Patient A words to the effect of:
a. "your muscles are very good";
b. "your muscles are quite tight".
11. The practitioner failed to obtain proper informed consent from Patient A before conducting the examination nor offer a chaperone.
12. By reason of Particulars 1-11 either individually or in combination, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A."
By Complaint Two, the Applicant alleged that the Respondent is guilty of professional misconduct, in that he engaged in unsatisfactory professional conduct of a nature sufficiently serious to justify suspension or cancellation of his registration. Further or in the alternative, the Applicant alleged that the Respondent engaged in more than one instance of unsatisfactory professional conduct which, when considered together, are of a nature sufficiently serious to justify suspension or cancellation of his registration. The Applicant relied upon the same Particulars set out above in support of this Complaint.
By a Reply dated 9 June 2022, the Practitioner denied all Particulars of Complaints One and Two. He disputed that he is guilty of either unsatisfactory professional conduct or professional misconduct.
This hearing was confined to a determination as to whether the Practitioner is guilty of unsatisfactory professional conduct and/or professional misconduct. This course seemed to us to be expedient, given that there are strongly disputed issues of fact which require findings to the requisite standard and having regard to the onus of proof borne by the Applicant.
[2]
The Evidence and Witnesses
The Applicant relied upon two volumes of written evidence, which included transcripts of a trial of the Practitioner in the District Court of New South Wales and witness statements prepared in the course of the criminal proceedings. This evidence also included transcripts of a police interview of the Practitioner on 5 March 2018; a telephone conversation between Patient A and the Practitioner on 1 March 2018, and an in-person discussion at his surgery on 5 March 2018. These two conversations between Patient A and the Practitioner were recorded without his knowledge, pursuant to an order of the Supreme Court of New South Wales. The Applicant relied also on an expert report and oral evidence from Dr Michael Golding.
In these proceedings, the Applicant caused to be played a video recording of the evidence of Patient A in the criminal trial. Patient A also gave evidence-in-chief and was cross-examined at this hearing.
The Respondent relied upon his statement dated 9 June 2022 and two character references. He gave evidence-in-chief and was cross-examined in these proceedings.
[3]
Background
The Respondent was born in Sri Lanka in 1972 and is currently 50 years of age. He obtained a Bachelor of Medicine/Bachelor of Surgery degree in Sri Lanka in 2000 and practised in that country until 2011, when he migrated to Australia.
The Respondent then worked at various hospitals in New South Wales until 2016, when he commenced full-time general practice. In 2018, he obtained Fellowship of the Royal Australian College of General Practitioners.
The Respondent worked as a general practitioner at Waratah Doctors for three months in 2016 and then at Aberglassyn Medical Centre from July 2016 until March 2018. When he was arrested on 5 March 2018, the Respondent was in the process of moving from this medical centre to a practice at Toronto.
In the course of his practice at Aberglassyn Medical Centre, the Respondent consulted with Patient A on numerous occasions. The medical records of Patient A (Applicant's Bundle, Tab 73) indicate that he first saw her on 27 July 2016 and that the consultations continued for approximately 18 months, until January 2018.
On 5 March 2018, the Practitioner was charged with four counts of assault with act of indecency and four counts of aggravated indecent assault - victim under authority of offender. He stood trial in the District Court of New South Wales in June/July 2019 and was acquitted of all charges. During this trial, the Respondent elected to give evidence and was cross-examined by the Crown Prosecutor.
On 21 March 2018, the Medical Council of New South Wales ('the Council") suspended the registration of the Practitioner. In October 2018, he applied unsuccessfully for a review of this decision. On 22 October 2019, following the acquittal of the Respondent, the Council set aside the order for suspension of registration. The Council imposed conditions on his right to practice, which included the following:
"2. Not to consult, examine, prescribe, treat or perform any procedures on any female.
a. The practitioner may only provide emergency medical services to such persons in compliance with section 139C(c) of the Health Practitioner National Regulation Law.
…
3. To submit to a random audit/inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of New South Wales.
…
4a. To practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. …"
Since November 2019, the Respondent has worked as a general practitioner at Toronto Doctors. He has undertaken and successfully completed a number of courses of continuing medical education.
[4]
The Applicable Law
Section 139B(1) of the National Law prescribes, relevantly for present purposes:
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following -
(a) Conduct significantly below reasonable standard
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
…
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
The National Law contains no definition of the term "improper" or "unethical" in the context of section 139B. In Health Care Complaints Commission v Boulton [2021] NSWCATOD 160, the Tribunal referred (at [86]) to the Macquarie Dictionary definition of "improper" as "not in accordance with propriety or behaviour, manners etc." or "abnormal or irregular", and of "unethical" as "1. Contrary to moral precept; immoral" and "2. in contravention of some code of professional conduct."
In Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168, the Tribunal considered the application of the term "improper conduct" in section 139B(1)(l) and stated (at [47]) that
"The High Court has noted that 'improper' is not a term of art: The Queen v Byrnes (1995) 183 CLR 501 at 514 … Brennan, Deane, Toohey and Gaudron JJ explained the concept of impropriety as follows:
'Impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position or circumstances of the case.'"
Section 139E of the National Law defines professional misconduct as
139E Meaning of "professional misconduct [NSW]
For the purposes of this Law, professional misconduct of a registered health practitioner means-
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of 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.
Sections 3 and 3A of the National Law set out its objectives and guiding principles. These sections provide relevantly as follows:
3 Objectives
(1) The object of this law is to establish a national regulation and accreditation scheme for -
(a) the regulation of health practitioners; …
(2) The objectives of the national registration and accreditation scheme are -
(a) to provide for protection of the public by assuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered; …
3A Guiding principles [NSW]
(2) The other guiding principles of the national registration and accreditation scheme are as follows -
…
(c) restrictions of the practice of the health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3B of the National Law provides:
3B Objective and guiding principle [NSW]
In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
The Applicant bears the onus of proof of each element of its Complaints on the balance of probabilities. Having regard to the seriousness of the Complaints and the potential consequences, it is appropriate that the Tribunal apply the well-known standard of proof adopted by the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 ("Briginshaw"). The standard requires that the Tribunal must be "comfortably satisfied" or "must feel an actual persuasion" that the allegations are made out on the balance of probabilities.
There was a sharp conflict between the accounts of Patient A and the Practitioner, as to events which were alleged to have occurred at the four consultations. These accounts cannot be reconciled and, accordingly, there is a need for findings to the requisite standard and with due regards to the onus of proof borne by the Applicant.
Some assistance with this task can be found in reported authorities. In Campbell v Campbell [2015] NSWSC 784, Sackar J said at [74]-[76]:
"74. …
'… where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of the witnesses and the manner in which the witnesses give evidence, is of primary importance.'
(quoting Craig v Silverbrook [2013] NSWSC 1687 at [142])
75. In Camden v McKenzie [2008] 1 Qd R 39 at [34], Keane JA (as he then was) made the observation that '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.'
76. Hallen J recently set out the relevant principles in Evans v Braddock [2015] NSWSC 249 at [70]-[77]. … [H]is Honour said:
'74. A court, in cases involving events which occurred long before litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing information that what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation …. Greater weight is usually accorded to such documents as they often 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 the that documents are other than genuine ….'"
In A v N [2012] NSWSC 354, Ward J (as Ward P then was) said at [348]:
"As to lay witnesses generally, I note at the outset that the fallibility of human memory has been explained by McClelland 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 of 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 that is a matter of human experience.'"
Her Honour then cited (at [349]) the statement of McClelland CJ in Eq in Watson v Foxman at 318-319 that:
"Each element of the cause of action … 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 Allan (1940) 63 CLR 691 at 712.
Considerations of the above kind can pose a 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."
Her Honour then said at 350:
"… [Where evidence is given long after the occurrence of the events in question] [i]t is by no means unlikely that [the witness] will have put their own gloss or interpretation on events in which they were emotionally involved and that, by now, those perceptions will be reinforced in their minds so that they will be convinced of the truth of those perceptions. Not only … do memories fade with time, but impressions of events may become accepted as fact. …
[5]
Complaint One
For convenience, we will deal separately with the Particulars relied upon by the Applicant in relation to each of the four consultations. We note that these four consultations were not fixed in time, with any degree of precision, by the Applicant. The first alleged incident was said to have occurred "on at least one occasion in 2017"; the second "on one occasion between 2017 and 2018"; the third "on one occasion between March 2017 and January 2018"; and the fourth "on or about January 2018".
[6]
First Consultation: "On at least one occasion in 2017"
On 1 February 2018, Patient A made a statement to police. With apparent reference to the first consultation, she said:
"7. I recall being in his office on one of these occasions as I was feeling generally unwell. I recall feeling fluey and I also had a small lump under one of my arms. I think it was my left arm, which was uncomfortable and I was a bit concerned about it. I think this particular time was February and March 2017 because I recall that it was before I had gone to Queensland to see my grandmother before she passed away, and she passed away towards the end of March.
8. I was sitting the chair and Dr Kesavan moved his chair around so that it was directly in front of me. He was seated slightly off-centre to me so that his right leg was positioned in between my legs.
9. At the time, I recall I was wearing a strapless bra, and I believe a T-shirt. I generally wear either a T-shirt or a singlet type top most of the time.
10. I recall lifting my left arm and Dr Kesavan felt underneath my arm. He said, 'That seems fine, just a swollen gland. But we'll check and make sure no more lumps'.
11. Immediately after saying this, and without saying anything more, Dr Kesavan pulled up the top that I was wearing, by grabbing the bottom of it and lifting it up so that my bra was fully exposed. He then grabbed hold of the bottom edge of my bra on both sides with both hands, and pulled at it so that it dropped and exposed both of my breasts.
12. I recall being quite shocked because I had never had a breast exam done by a doctor before and so I didn't really know whether what he was doing was a genuine exam or not.
13. As soon as my breasts were exposed, Dr Kesavan placed both his hands on my breasts at the same time. He started squeezing each of my breasts simultaneously and then he started moving them up and down, before he put his hands on the outer edge of each of my breasts and pushed them together. I felt very uncomfortable and I felt that the way he was touching me was like a 16 year old boy who was touching a female's breasts for the first time.
14 This went on for about a minute before I leant back in my chair to pull away from him in the hope that he would stop, and I grabbed hold of my bra and pulled it back up over my breasts and pulled my shirt back down. This caused him to stop."
Patient A stated that she informed her then partner (Person A), her mother, and two of her friends, Ms Kristy Jenkins and Dr Roslyn Fong, of these events. All four of those people gave evidence at the trial.
In evidence-in-chief at the trial, Patient A gave the following account of the first consultation:
"A. He came forward in his chair and - so he could reach me sitting in the chair - and he put both of his hands on either side of my glands on the throat to check that they were inflamed. And then he checked the gland underneath my left arm.
Q. How did he do that?
A. Just with his hand.
…
A. So 'It's definitely a lump' and that 'We should check for other lumps.'
…
Q. How did he do that?
A. From lifting my shirt while I was sitting in the chair.
Q. How did he lift your shirt?
A. Either hands on the bottom of my t-shirt - I believe it was a t-shirt, I don't really wear T-shirts or singlet tops - and lifted it up.
Q. How far did he lift it?
A. All the way up so that my bra was exposed.
…
Q. And then what happened?
A. And then I was wearing a strapless bra and he grabbed a hold of the bottom of the strapless bra and pulled it down so that my breasts were exposed.
…
A. So he put both hands on my breasts and almost, like, in a squeezing fashion and would push them together up and down - sorry.
…
A. So straightaway one hand on each.
…
Q. You say he moved them around and squeezed them.
A. Yep.
Q. How long did that action go for?
A. Felt for, like, about a minute. He was moving around all over them.
…
A. Just with his hands on my breasts and, you know, like, pushing them inward."
In evidence-in-chief at the trial, Patient A said that she told Person A and Ms Jenkins of these alleged events. She said:
"Q. Did you tell [Person A] what had happened? Do you remember the words you used to tell him?
A. That he [the Practitioner] had done a breast exam and it felt weird -like, it was a 16 year old boy playing with boobs for the first time or something like that.
Q. Did you tell anybody else about that particular occasion?
A. I would tell my girlfriend, Kristy.
Q. Again, doing the best you can, do you remember the words you said to her?
A. Probably the same thing that I said to [Person A].
In cross-examination at the trial, Patient A was asked about a consultation on 12 August 2016, at the end of which she requested a prescription for an oral contraceptive. The following exchange occurred between Patient A and counsel for the Practitioner:
"Q. Seems like he prescribed that for you during that consultation on 12 August 2016.
A. Yes.
Q. What I want to suggest happened is this, you asked him for that script, and Dr Kesavan said 'Well, look, I have never prescribed any oral contraceptive to you before and before I can do that, I need to conduct a breast examination.'
A. You would be horribly mistaken.
Q. He said, I suggest to you, that there is no chaperone available so you will have to come back on another occasion for me to conduct that breast examination.
A. You would be mistaken.
Q. You were insistent on being prescribed the oral contraceptive pill on that day.
A. I had been on that pill previously and in no - like, no matter what the contraceptive, nowhere in there has he ever asked me - and let me make that very clear to you - to perform a breast exam.
Q. You were insistent on being prescribed the pill on that day.
A. Possibly.
Q. I suggest to you that he said, 'I must perform at least a brief breast examination before I will give you a script for it.' What do you say about that?
A. That you are incorrect.
Q. That he then asked you to go and sit on the bed and remove your own clothing from the top half of your body?
A. You are incorrect."
Person A gave evidence at the trial in relation to complaints allegedly made to him by Patient A after the "first consultation". He said:
"Q. What did she tell you happened?
A. That she went for a lump in her armpit. Her breasts were examined and [Patient A's daughter] said -
Q. [Patient A's daughter] expressed concern perhaps?
A. Yeah. [Patient A's daughter] said, 'They're my Damo's, my Damo's big and my Damo won't be happy.'"
Ms Jenkins made a statement to police on 1 March 2018. In relation to the "first consultation", she said: "
"5. I recall [Patient A] mentioning something about a breast examination and she referred to the doctor as 'Dr Feelgood'. I recall her saying something to me like, 'He was inappropriate. He pushed my boobs together.'"
Ms Jenkins gave this evidence-in-chief at the trial:
"Q. What's the first time you can remember her talking to you about something happening?
A. The first time we were at the gym, if I can recall correctly, and she had been to a doctor for swollen glands which she has quite often and she said that he had given her a breast examination during that time and she used her hands and said, like, he was pushing her boobs together…"
The Practitioner was asked about this "first consultation", by a police officer in an interview conducted on 5 March 2018. He said inter alia:
"A. No, I, so ah, I can't remember the incident exactly but yeah when someone got lump in the armpit so you have to, you know, it's maybe a lymph gland, maybe it's some trouble, secondary to some problem in the breast, so I explain to her, so I need to examine her breasts, I think. So then I think she was with her daughter. Then I told her that I can't do proper breast examination, because there is no chaperone also, and her daughter is a little girl. So then, ah, I told her if she need a proper examine, then she has to come on some other day, then I, because when, when we examine the breast, we have to look at the both breast, and we have to look at the symmetry, any changes in the size, any changes in the skin, and we have to compress, I mean we have to compress over four quadrants to see if there are any lumps or any painful areas. So that's what I did. I explained [to] her what I am doing, and I did that."
At the trial, the Practitioner gave this evidence-in-chief in relation to the first consultation:
"Q. On that particular occasion, she said that you pulled her top up and her bra down. Did you do that?
A. No I haven't done that.
Q. Have you ever removed any portion of her clothing?
A. No.
Q. Have you ever adjusted any portion of her clothing?
A. No.
Q. If you needed that to occur, how would you go about it?
A. I would have asked the patient to do that…
Q. There was an occasion when you examined her breast, was there not?
A. Yes, yes I examined -
Q. No migraine or breast lump. That was what was reported by [Patient A] to you in the questions you were asking?
A. So when I was asking about I asked is there any problem in your breast. Do you have any problem in your breast? She said some pain. Then that alarmed me and then I said because that's the first time I am giving the oral contraceptive pill so someone having such a complaint, I can't give it because it can cause many problems so then I said okay I won't be able to give the script - I mean she was on that but that doesn't mean I can just give the script so I said - I explained so before that you should have a breast examination so that there was not time on that day and we did not have a chat for long so we used to get nurse once a day for those days.
Q. Once a day?
A. Sorry, once a week, once a week …. So then I said I can't give the script now, she has to come other day. Then she was keen on getting the script on that day. That's obvious because you can't miss the pill also. Then she said she's happy to go and have the breast examination without chaperone so for that purpose then I thought okay I'll go for a brief examination. If there is nothing obvious then I can give the pill and then I'd advise her if she has any concern about her breasts, she has to come some other day when the chaperone available and also I make a plan to have another breast examination. I explained her to examine her breasts every month, report to us if there is any problems…So I asked her to go to the bed and expose the chest area. Then when I turned to her she exposed her chest area and she has removed her bra. Then so there was not much time left. I had a quick inspection while she was sitting there on the bed.
Q. When you say inspection, what does that mean?
A. Looking for any changes or anything, any sort of abnormalities in the skin or in the breast or in the nipple. So for that, there should be some (not transcribable) … chest to be able to take depressing and lifting - …That took one minute or two minutes. Then in our bed - so we keep our bed a little propped at the head side so she was lying like this and I did a quick palpation so we had to palpate all four quadrant in the breast and we had to check the nipple for any separations or anything. There was no obvious finding. Then I said okay, I am happy to give you the script. If she has any concern again, she has to come back so we can organise a proper examination and breast pain is you know I mean in menstruating women, it's one of the - it's not an uncommon complaint…"
The Practitioner did not deviate significantly from this evidence in cross-examination at the trial.
Dr Golding was instructed to consider, inter alia:
1. whether a breast examination was clinically indicated; and
2. the manner in which the Practitioner conducted the breast examination.
He opined that a breast examination was clinically indicated, because Patient A presented with an auxiliary lump and a differential diagnosis would include malignancy. Dr Golding was not challenged on this opinion in cross-examination. He opined also that a breast examination "is not required before starting OCP". Dr Golding noted that Patient A had used oral contraceptive medication for the past three years at the time of this consultation.
Dr Golding concluded that the method of the breast examination was significantly below what would be expected of a practitioner with an equivalent level of training or experience. He described the appropriate procedure as follows:
"… observation of the breasts is conducted with the patient sitting directly in front of the clinician. Palpation of the breast should be performed with the patient lying down then with a systematic examination of all quadrants and essential area of each breast, following by examination of each of the axillas. Breast examination should not be performed using two hands on the breasts simultaneously."
Dr Golding expressed a firm view that a breast examination should be performed in the presence of a chaperone. Consistently throughout the criminal process and in these proceedings, the Practitioner maintained that Patient A asked for a prescription for contraceptive medication at the end of the consultation on a day when no person was available to act as chaperone. He maintained that she stated that she had some pain in her left breast, which caused him to decide to conduct a breast examination before he provided the prescription.
The Practitioner maintained also that Patient A did not wish to return when a chaperone was available and thus agreed to a "brief" examination, which he said he conducted "to check for any painful areas and lumps in her breast". He said that he found no abnormalities and thus proceeded to provide the prescription.
The Practitioner conceded that his clinical notes contain no record of consent by Patient A to a "brief" breast examination. He maintained that he was subject to time constraints, but conceded that he should have ensured that a chaperone was available or documented that Patient A declined to take up this option.
Dr Golding opined that the process by which the Respondent obtained consent for the breast examination was significantly below what would reasonably be expected of a practitioner with an equivalent level of training or experience. In forming this view, Dr Golding appeared to rely substantially on the absence of any mention of consent by Patient A in the clinical notes. He noted that the Practitioner told police that Patient A consented to a brief examination.
Dr Olga Ostrowskyj gave expert evidence for the prosecution at the trial. She described her qualifications as a subspecialty in women's health in general practice. There was no challenge to her expertise but, in cross-examination, she agreed that she described "best practice" in her evidence-in-chief. She agreed with the proposition that "commercial practice at 15 minutes is probably sometimes not. Doesn't allow the time of that best practice."
The salient points in the evidence of Dr Ostrowskyj included the following:
Weighing of the breasts in the hands of a practitioner forms no part of an examination "because it is impossible to do so".
"I've never heard of a brief exam".
A breast examination is not a necessary prerequisite for a prescription of oral contraceptive medication.
It is important for a practitioner to record a breast examination and findings.
an examination is warranted "absolutely" if a woman complains of breast pain.
As noted, the complaint alleged that these events took place "on at least one occasion in 2017". Evidence given at the trial, however, indicated strongly that the relevant consultation occurred on 12 August 2016. We do not consider that this lack of precision as to time, of itself, is fatal to the Complaint in relation to the "first consultation". It is conceivable that a witness could have a clear recollection of the occurrence of a certain event but no firm memory of a date or timeframe.
The Respondent commenced general practice in April 2016, thus he had only four months experience at the time of the consultation on 12 August 2016. Previously, he had worked in a hospital setting since qualifying as a medical practitioner. As he said, during cross-examination in these proceedings "I was in a very early stage of general practice". The Practitioner said also that he had done "very few" breast examinations.
In cross-examination in this hearing, the Practitioner said words to the effect "now I understand that notes should record informed consent for a breast examination". He said also "before Aberglassyn I worked in a hospital there were printed papers for consent and the patient ticks and signs".
Having regard to the onus of proof borne by the Applicant, we are not satisfied that the Practitioner performed a breast examination "in circumstances which were inappropriate on at least one occasion in 2017". We accept the evidence of the Respondent, to the effect that he made a clinical judgment that a brief breast examination was a necessary prerequisite to a prescription for oral contraceptive medication. We accept his evidence that Patient A insisted on this prescription toward the end of the consultation, as she conceded was "possible" at the trial.
It seems clear that the examination conducted by the Practitioner fell well short of the "best practice" procedure described by Dr Ostrowsky at the trial. His methodology also attracted criticism from Dr Golding. In our view, however, it is relevant to take into account the inexperience of the Respondent in determining whether he carried out this examination in "inappropriate" circumstances. He had been a general practitioner for only four months and had previously performed "very few" breast examinations.
For reasons which are set out in detail below in relation to "the fourth consultation", we have real and substantial doubts as to the reliability of the evidence of Patient A. We stress that we make no suggestion that she was deliberately untruthful in her evidence, either at the trial or in the present proceedings.
We consider that the Practitioner gave an inherently logical account of this consultation. We accept the evidence of the Practitioner that he asked Patient A to expose her chest area and that she then did so. Accordingly we accept his evidence that he did not remove any article of her clothing.
We accept the evidence of the Practitioner, to the effect that he told Patient A that no chaperone was available on that day. We accept his evidence that she offered informed consent to a breast examination, when he told her that he could not otherwise provide a prescription for contraceptive medication. Obviously, he failed to record this consent but it appears that his inexperience in general practice may well have contributed to this lapse.
[7]
Second Consultation: "On one occasion between 2017 and 2018"
Effectively, the allegations in relation to this consultation amounted to inappropriate touching of Patient A by the Practitioner, during the course of an examination in relation to her hyperhidrosis condition. It was contended further that he weighed her breasts in his hands, outside of her clothing, and said "yes, they're definitely smaller".
Patient A described this consultation to police in her interview of 1 February 2018 as follows:
"18. In April 2017, I had been training a lot at the gym …. I had lost about 6 kilos and part of that weight loss was noticeable in my breast size … I mentioned this, particularly about my weight loss during one of my consultations with Dr Kesevan which I believe was in April 2017.
19. During this consultation I was wearing a pair of long tights, a singlet and a crop top underneath. I was sitting down in the chair and he was also sitting and facing me at the time. We were discussing my excessive sweating and I recall saying to him, 'I feel like my thermostat is broken, and I feel like I am burning up'.
20. Dr Kesavan started placing the back of his hand on different areas of my body. He started by placing the back of his hands on my cheeks, and then on my chest at the exposed part of my skin around the neckline of my singlet. He would place the back of his hand against my skin there and then he would turn his hand over and place the front of his hand on my skin there.
21. He then used his hands and started to touch around my breasts on the outside of my clothing like he was feeling the weight of them and he said, 'Yes, they're definitely smaller'. I felt uncomfortable that he was touching me in this way. He had given no indication of the need to examine my breasts, nor had he asked if it was okay to examine my breasts."
At the trial, Patient A gave evidence-in-chief which appeared to be a description of the Practitioner's general approach to an examination in relation to her hyperhidrosis, rather than an account of events which occurred during this specific consultation. For example, she said as follows in response to questions from the Crown Prosecutor:
"Q. … [H]ow did he check your temperature?
A. So he would place his hands on my face. So, like, the back of his hands and then the front of his hands on my face, just feeling if I had a fever. And then the same on my chest, above my shirt, like in the neckline.
…
Q. So you have described him touching your face. Was it one side of your face or both, or something else?
A. No, both. He'd always moved closer so that he was in arm's reach.
…
Q. And then you mentioned he would touch both sides of your face?
A. Yep.
…
Q. Did he do anything else?
A. Yep.
Q. What did he do?
A. So he would check, you know, like, my - so check my temperature. He would also - again, because one of the reasons that I would be going there is either weight increase or weight loss. He would check my breast area to do … I believe, it [w]as on the outside of my clothes. And checked the weight. He would also try and check my torso for sweating. Because on a number of occasions he'd - you know, he'd do the thing with my hands. And then - when I say the thing with my hand, I mean check the sweating with the palm of his hand. And then, with my shirt, and check the torso, the sweating on my torso. Yeah, like, it's - it just made me really uncomfortable.
…
Q. So the underside of your breast would be resting on his palm?
A. Yes, on the outside of my clothes.
Q. Do you know how long that particular action went for?
A. It wasn't a very long time. Like, just a quick - I don't even know why he did it.
Q. Did he say anything to you while he did that?
A. It would have been that they were either smaller or bigger at the time. I am not sure which one it was, but he would make a comment.
…
Q. So you have described an occasion where that has happened. On that occasion did he put his fingers between your breasts or are you unsure?
A. I am unsure if it was on that occasion or another occasion."
In evidence-in-chief at the trial, Patient A said that she did not consent to the Practitioner placing his hands on her cheeks or the top part of her body. She said that she did not consent to the Practitioner weighing her breasts with his hands.
Patient A gave similar evidence in cross-examination at the trial. As with her evidence-in-chief, her description of the alleged actions of the Practitioner seemed to relate to his usual practice, rather than an account of a specific consultation. She agreed that she told the Practitioner that she had lost weight at the beginning of a consultation.
Dr Golding was asked to provide an opinion as to the touching which occurred during this consultation, excluding the weighing of breasts, on the basis of the version provided by Patient A. He reported as follows:
"The best way to measure the temperature of a person is to use a device specifically designed for this purpose. These are widely available in clinical practice.
It is sometimes of value to touch a patient's skin with the back of your hand when comparing two joints to see if one is hotter than the other if suspecting septic arthritis. This is the only clinical circumstance that I can think of where this type of examination might be of clinical utility.
Touching a patient's skin in this way also results in intimate contact with the patient. This contact is warranted if clinical information is obtained that will aid in diagnosis of an underlying condition. If there is no value to the information obtained, as is the case in this circumstance, then this type of examination should not be performed."
In the police record of interview, the Practitioner said of this consultation, inter alia:
"A. … So as I said, the sweating is her main problem. So, so she kept sweating all over her body, but um, she would have showed me her … pull her dress and then show that, you know, there is sweating in her tummy. Like I never pulled her dress or anything. So she, she used to say that, you know, because when somebody having sweating issue, we have to see whether they have localised sweating, like in arms or axilla armpit or somewhere or generalised. But, so then I tried to talk about that ah, I, I think I can remember, she showed me that, you know, she got sweating in the tummy and back also. But other, other than that, I can't remember that ah, I pulled her. I never did that. I never pull her.
Q. What about checking her temperature by placing two fingers down in between her breasts?
A. No I didn't. Temperature, I, I, I can't remember ever check the temperature, because she never had any problem with temperature."
In his evidence-in-chief at the trial, the Practitioner said, inter alia:
"Q. Can we move on to the second of these events, please. And that is where [Patient A] says she came to see you for hyperhidrosis, and that is the occasion when she says you checked her hands in a certain way, and weighed her breasts by holding her breasts on the outside of her clothing. Do you understand that is the complaint she makes against you?
A. Yes.
Q. Did that ever happen?
A. That never happen.
…
Q. She says you caressed her hands by a stroking fashion.
A. No. I never did that.
Q. And continued up her arm.
A. No. I never did that.
Q. Inferring some sort of sexual overtone.
A. No."
The Practitioner said further, in his evidence in-chief at the trial:
"Q. How would you deal with that if she came to see you about a weight problem?
A. I mean, so what we do, we - we - so we check the weight and so from the software we can get the BMI.
…
Q. What do you say about the technique of weighing her breasts to see whether she had put on weight or taken off weight?
A. No, I never knew that. I mean -
Q. Have you ever heard of such a technique?
A. No, no."
Dr Golding was asked to provide an opinion as to this alleged touching on the basis of the version provided by the Practitioner. He opined as follows:
"The important part of physical examination in a patient with hyperhidrosis is not to evaluate the sweating - which is determined more accurately by history - but to look for evidence of systemic disease that is associated with the condition. This includes vital signs, establishing the sweating pattern, examination of all the lymph nodes, abdomen, mouth, eyes, reflexes, thyroid, cardiovascular and respiratory system.
Dr Kesavan has said that on this occasion he did not remove or lift any of [Patient A's] clothing to inspect [Patient A]. If this is the case, then it is not possible that a reasonable examination has been performed.
In my view, the examination of exposed skin with his hand to look for sweating is consistent with what is reasonably expected of a practitioner with an equivalent level of training or experience ….
In my view, not before performing a comprehensive general physical examination is below what is reasonably expected of a practitioner with an equivalent level of training or experience …."
(emphasis omitted)
As we observed in relation to the "first consultation", the failure of the Applicant to identify a date or a precise time frame for these alleged events is not of itself fatal to Particulars 4 and 5. In our view, however, the generality of the evidence of Patient A in relation to these alleged events does not assist its reliability. Put simply, we consider that we cannot safely make findings that the Practitioner carried out the acts specified in Particulars 4(a), 4(b), 4(c) and 4(d) on any identified occasion.
The Practitioner made cogent and consistent denials that he ever directed any of these acts toward Patient A. Consequently, the evidence in relation to these Particulars amounted to a general description by Patient A of techniques allegedly adopted by the Practitioner in relation to her hyperhidrosis condition, as against his firm denials of any such conduct. Having regard to the onus of proof borne by the Applicant, we are not satisfied, and we find, that Particulars 4(a), 4(b), 4(c) and 4(d) are not established to the requisite standard. It follows that we find that the Applicant failed to establish that Patient A gave no proper informed consent as alleged in Particular 5.
[8]
Third Consultation: "On one occasion between March 2017 and January 2018"
The Applicant alleged that the Practitioner performed an inappropriate examination of Patient A in relation to her hyperhidrosis condition in that he:
placed the back and front of his hands on her chest skin around the neckline area;
placed two fingers between Patient A's breasts and said, "no that's fine, normal temperature";
pulled up the top of Patient A;
placed his hands on the shoulders of Patient A;
touched the back of Patient A with his forehead and said, "I don't know what to do with you".
The Applicant alleged further that the Practitioner failed to obtain an informed consent for this examination, nor offered a chaperone to Patient A.
In her police statement of 1 February 2018, Patient A said that this consultation occurred between April 2017 and August 2017 "and concerned her 'excessive sweating'". Patient A stated that she recalled that this consultation took place around the time when the Practitioner referred her to a neurologist, Dr Burton, and when he first prescribed oxazepam.
In her evidence-in-chief at the trial, Patient A said "I am not sure if it was at this time or if it was at another time. But he placed two fingers down between my breast[s] to check temperature as well." A short time later, Patient A said "I am unsure if it was on that occasion or on another occasion."
Patient A said further in her evidence-in-chief at the trial:
"So then with the hands on my face, and I started to wear high neck, as I said, bodysuit, so he would try and check the temperature with his hands on the same fashion as before. He checked like my heart with the - heart and the lungs or whatever it is with the stethoscope as well. So he would, you know, position that around my breasts in all different areas and comment that he couldn't hear properly through the tissue. He, as I said before, also tried to check, you know, for the sweating and tried to pull up my bodysuit, but I remember saying to him that you can't pull it up because it was a bodysuit. I also remember - so that he would - you know - stop trying to pull it up and stop trying with the stethoscope to check around the breast area. I turned so he checked on my back. …"
Patient A continued in her evidence-in-chief at the trial:
"So when I had my back to him - you know - he checked with the stethoscope I would assume in the usual way and while my back was towards him he kind of had his - he put his arms or hands on either side of my arms, shoulders and ran down and then he placed his forehead so that his skin was in contact with the skin on top of my back [because] it was lower at the back with my bodysuit, then shook his head and let out a sigh and said he just didn't know what to do with me."
Patient A was asked by the Crown Prosecutor:
"Q. … Did his fingers stay above your top line or move underneath your top line?
A. No, they went - they went underneath."
Patient A then said
"I know that his fingers went down between my breasts."
In relation to the Practitioner's alleged use of a stethoscope, Patient A said inter alia:
"A. So the circle area of the stethoscope would be towards the centre of the - like - of my chest and then he would make -
…
Q. Where did it move to, [Patient A]?
A. Pretty much around the whole area of my breasts, so like between, under - like - like under my breasts and - like - the outer side towards my ribs. …"
In cross-examination at the trial, Patient A said that she was "not sure" of the date of this consultation and that the principal investigating officer, Detective Michelle Lawson, had told her that she must provide "a time line". At this point in her evidence at the trial, Patient A said: "I could add to this list, you know, and we would be here for weeks." She said also: "other things like stroking my hand or checking sweat on my torso or you know positioning the stethoscope around my breast you know it would happen on a regular basis in his room."
In cross-examination, Patient A said that this consultation occurred in "the second half" of the period when she saw the Practitioner. In her police statement, she said that this alleged incident occurred around the time when she was referred to Dr Burton. The referral letter from the Practitioner to Dr Burton was dated 4 January 2017 (Tab 73, p 22) which clearly fell outside the "second half" of the period of the consultations.
The Practitioner was asked about these matters by Detective Lawson in his police interview, in a question of some twenty lines of text and which included multiple allegations. Perhaps unsurprisingly, he responded initially "I don't know". He then said: "when somebody have sweating issue, we have to see whether they have localised sweating, like in arms or axilla armpit or somewhere or generalised".
When asked more focussed and specific questions by Detective Lawson, the Practitioner denied that he placed two fingers "down in between her breasts". He denied that he "put [his] head on her back and said 'what am I going to do with you?'" He denied that he ever leaned on the back of Patient A.
In response to a question from Detective Lawson in relation to the allegation that he said "what am I going, I don't know what to do with you", the Practitioner said: "no I never said that. So I this, I don't, because I referred her for neurologist. I don't know but I told her about that, so I can't deal anything any more than this, so will make a referral or something".
In his evidence-in-chief at the trial, the Practitioner repeated these denials. He was asked about his alleged statement "I don't know what to do with you". This exchange then occurred between the Practitioner and his counsel:
"Q. I am corrected. 'I don't know what to do with you. I don't know what to do with you.'
A. No - no, no, no, no. I never said that word. I would have explained. So now it has come to the stage - so it can't be managed at GP level, so we'll have to get a specialist help.
Q. 'I don't know what to do with you.' You say it may have been misinterpreted by your saying what you have just said?
A. Yes.
Q. 'I can't resolve it. You need to get a specialist's opinion.'
A. Yes."
Dr Golding was asked for his opinion, on the basis that the Practitioner acted in the manner alleged by Patient A. He repeated that the best way to check for temperature is by use of a purpose-designed device and opined that he could "think of no clinical reason for performing the examination as described". Dr Golding stressed the need for a practitioner to maintain professional boundaries.
The letter of instruction to Dr Golding sought his opinion as to the appropriateness of the use by the Practitioner of a stethoscope, as described by him, for the purposes of the third incident. Consequently, Dr Golding made no reference to the version of events provided by the Practitioner as to this consultation.
Dr Golding stated that the use of a stethoscope, as described by Patient A, was "not a recognised method of clinical examination and inevitably results in boundary violations". On the basis of the Practitioner's description of his use of the stethoscope, Dr Golding opined that he outlined "some of the principles of examination". Essentially, Dr Golding offered no criticism of the methodology described by the Practitioner as to his use of a stethoscope.
As was the case with the first and second consultations, the Applicant adduced vague and imprecise evidence as to a date or time frame. We repeat that we do not consider that a lack of precise evidence as to a date or time frame is necessarily fatal to Particulars 6 and 7. In this case, however, Patient A said at least twice that she was unsure whether certain of the alleged conduct occurred at the "third consultation". Patient A said also that she was "not sure" of the date of this consultation and that the investigating police officer pressed her for a "time line".
Patient A gave evidence which clearly was inaccurate, to the effect that this consultation occurred in "the second half" of the period of her interaction with the Practitioner. This inaccuracy is established by the date of the referral to Dr Burton.
As noted above, when pressed in cross-examination at the trial as to the date of this consultation, Patient A said that she "could add to this list … and we would be here for weeks". In our view, these statements of Patient A cast doubt on the reliability of her evidence as to these alleged events. It appears that she has constructed an account of a third consultation which draws together her interpretations of various events at several times. We do not mean to suggest that Patient A gave untruthful evidence, but we have serious reservations as to the reliability of her recollection and interpretation of various actions and statements of the Practitioner.
Again, the Respondent has made consistent denials that he engaged in any of the conduct alleged in Particular 6 of Complaint 1. Of note is that he gave a cogent explanation for the alleged statement "I don't know what to do with you". As outlined above, the Practitioner said that his intention was to convey to Patient A that he had taken all steps within his knowledge and skill to address her hyperhidrosis condition and that the time had come for a specialist referral. As noted, the Practitioner referred Patient A to a neurologist.
In these circumstances, we consider that a finding cannot be made, to the requisite standard, that the Practitioner directed toward Patient A all or any of the conduct alleged in Particular 6. It follows that we find that the Applicant failed to establish that the Practitioner conducted "an inappropriate examination of Patient A's hyperhidrosis condition on one occasion between March 2017 and January 2018". Similarly, we are satisfied and we find that the Applicant did not establish that the Practitioner failed to obtain proper informed consent from Patient A, nor offered her a chaperone.
[9]
Fourth Consultation: "On or about January 2018"
The Particulars relied upon by the Applicant in support of the Complaints as to this consultation are set out in full in [3] of these reasons. In our view, these matters constitute the most serious allegations against the Practitioner. In his Reply, the Practitioner denied each and every subparagraph of Particulars 8, 9, 10, 11 and 12 of the Complaint.
In her police statement of 1 February 2018, Patient A identified the date of this consultation as 24 January 2018. She said that she made a morning appointment for herself and her daughter but rescheduled to the afternoon, when she was delayed by a meeting. She indicated that she attended the consultation alone at approximately 2.15pm on 24 January 2018. Patient A told police that she made the appointment to obtain a referral for her daughter, to discuss the results of her recent assessment by a gynaecologist, and to make arrangements for a blood test for herself.
In this police statement, Patient A gave the following account of the Practitioner's alleged touching of her hands and leg:
"36. He asked me about my sweating and I turned my hand over so that the palm was facing up and I said, 'Yes as you can see it is quite mild'. He placed one of his hands underneath the hand that I was holding out palm up, and he placed his other hand over the top of my open palm before he moved his hand to the side so that his thumb was stroking the palm area of my outstretched hand.
37. He held my hand this way for an extended period of time and the stroking of his thumb was almost like a caress and I started to feel uncomfortable. I pulled my hand away and as I did, his hand dropped down on to the top of my right leg momentarily before he brushed it lightly along the top of my leg before lifting it off."
In evidence-in-chief at the trial, Patient A said nothing about this alleged touching of her hands and leg by the Practitioner on 24 January 2018. Predictably, there was then no cross-examination in relation to these allegations.
In her police statement of 1 February 2018, Patient A said that she told the Practitioner on 24 January 2018 that she was in a new relationship and that she was "really happy". She said that she told him that "[t]he only issue that I have now is that I am tired and I have put on heaps of weight and my clothes aren't fitting. I haven't been training as much." Patient A said that the Practitioner then asked her to step onto a set of scales.
Patient A then gave the following account of this alleged incident in her police statement:
"40. As I stood on the scales I looked down and took note of the weight which was 63 point something and I read this weight out aloud. As I did this, I felt Dr Kesavan's hands on either side of my waist and he moved in behind me and looked over my shoulder to look at the scales.
41. I immediately felt uncomfortable with this and I stepped off the scales towards the side of me in order to move away from him. I ended up standing with my back towards the chair.
42. I was extremely anxious and said to him, 'See I have put on 5 kilos' and he said, 'No, no, no [you're] fine. I'll just check for fat'. He moved in closer to me and was standing in front of me when he reached down and grabbed at the outer thigh of my left leg before he moved closer and grabbed the outer thigh of my right leg. I had really started to tense up and feel very uncomfortable and my arms were down by my sides at this point. I had frozen.
43. He then reached around my right arm with his left hand and he grabbed me on the right buttock and I could hear him breathing heavily as he said, 'No that's fine. No problem there.' He continued to breathe heavily and moved closer to me before he placed his right hand on my left breast on the outside of my singlet top and then his left hand on my right breast on the outside of my singlet top and he said something like, 'There used to be a problem here, there is no problem here anymore'.
44. By this time, he was very close to me and a little off centre of me and he put his left hand inside my bra so far that his fingers were touching my left nipple. He was breathing heavily and he said something like, 'Let's have a look'.
45. I was terrified by this point because I was frozen and felt like I couldn't move and I could feel the back of my legs were up against the chair behind me. I could barely get any words out and I managed to say, 'No it's fine', as I rolled my shoulder away from him, causing his hand to come out of my top.
46. He moved more directly in front of me and put himself right up against me so that I could feel the front of him. He was breathing heavily and I could feel something hard up against my lower abdomen which I believe was his erection.
47. He then put both of his arms around me in a hugging fashion, and I could feel him breathing on my face. I was frozen in fear and he put his face in closer toward me like he was going to kiss me. I put my chin to my chest and immediately felt his lips on my forehead.
48. I slunk down into the chair behind me and all I could think of saying was, 'Can I just have the referral please' (which had already been printed off and was sitting on his desk), and I picked up my phone and keys off the edge of the desk and stood up.
49. He said, 'Get the blood test and then come back and see me'. I said, 'Ok' and I just walked out."
In her police statement, Patient A then described her response to these alleged actions. She said that she "got into [her] car and burst into tears". She stated that the father of her daughter (Person B) rang her while she was driving away and she gave this account of their conversation:
"51. "… he said, 'What's going on?'. … I said, 'I think I have just been sexually assaulted'. He said, 'What do you mean? By who? What's happened?' I then told him everything that I have outlined above about what happened immediately before he rang, and I also said, 'It's not the first time he has made me feel uncomfortable, I shouldn't have gone back there'.
Patient A then stated to police that she searched electronically for information concerning complaints in relation to doctors when she arrived home. She said that she had a lengthy conversation "with an assessment officer at the HCCC", during which she was tearful and extremely upset.
Patient A then stated that, during this phone call, she texted her friend Ms Jenkins. She said that she wrote: "Babe I need to go into police station and report the shit that just happened to me at the doctor. Are you free to come with me? I am so upset." Patient A said that she told Ms Jenkins "what had happened" on the way to the police station.
Person B gave a statement to police dated 6 February 2018. He said that he and Patient A "share custody" of their daughter, but were that not so, he would choose to have no contact with her.
Person B said that he returned a call from Patient A on 24 January 2018 and, when she answered, she was crying and hyperventilating to the extent that he had difficulty in understanding her. According to Person B, Patient A said, "I don't know what to do I think I have just been groped. It was so fucking inappropriate." He said that, at this point, the voice of Patient A was quavering and he could "hear that she was also angry".
Person B stated to police that he asked Patient A, "What do you mean by groped?" and that she replied, "well he has tried to get my breast out of my shirt." Person B said that she then continued with words to the effect, "He was standing behind but to the side of me and I could feel his lips on the top of my head. That's when I just froze and found myself shaking. He then tried to remove my breast from my bra."
Person B stated to police that he told Patient A that "there was a governing body who governs doctors and their behaviour". He stated that she replied, "He has been a bit sleazy before". Person B stated that he advised Patient A to make a report to police.
Ms Jenkins gave a statement to police dated 1 March 2018. She said, inter alia:
"5. I recall [Patient A] mentioning something about a breast examination and she referred to the doctor as 'Dr Feelgood'. I recall her saying something to me like, 'He was inappropriate. He pushed my boobs together'.
6. The next thing I remember her telling me about the same doctor was again in 2017. I think it was just after her and [Person A] split up. I recall her telling me that she was in his office and he was standing behind her, she said, 'He was inappropriate, he had his hands on my arms and put his head on my back and said, what are we going to do with you?'"
Ms Jenkins then stated to police that she received a text message from Patient A at 3:07pm on 24 January 2018. This message read: "Babe I need to go into the police station and report the shit that just happened to me at the doctor. Are you free to come with me I am so upset." Ms Jenkins stated that when she returned the telephone message, "[Patient A] was sobbing so much that she could hardly catch her breath".
Ms Jenkins accompanied Patient A to a police station on 24 January 2018 and was present when she spoke to a female detective. This officer was Detective Senior Constable Josene Bereza, who gave evidence at the trial. The matter was referred to Detective Lawson, who took a full statement from Patient A on 1 February 2018. Ms Jenkins said that Patient A was "using me to show the detective what the doctor had done to her that day. She was touching me and explaining to the detective that that was the way that the doctor had been touching her than afternoon. During this demonstration, Patient A felt my boobs and around my stomach and stood very close behind me looking over my shoulder and then she leaned her head down toward my forehead like she was going to kiss me."
At the trial, Person B gave evidence which, essentially, repeated the contents of his police statement. Specifically, he said that Patient A stated to him: "I think I have been groped". He said that, in response to his question "Can you tell me what he has done? What constitutes groping?", Patient A stated, "He stood behind me but to the side and I could feel his lips on my head - around the top of my head and then he started trying to remove my breasts from my bra."
Person B then said that Patient A had talked to him previously about a breast examination and stated that "it felt a bit sleazy" but gave no additional details. Person B said that his memory was much clearer when he made his statement to the police than at the trial. Person B said that Patient A seemed very distressed and angry, and that she said "I feel so embarrassed and he was my fucking doctor".
Ms Jenkins also gave evidence at the trial which was largely consistent with the contents of her police statement. She said that Patient A first commented to her about the conduct of the Practitioner after a consultation in relation to swollen glands. Ms Jenkins said that Patient A told her that the Practitioner conducted a breast examination and demonstrated with her hands that he "was pushing [my] boobs together".
Ms Jenkins said at the trial that, on the second occasion when Patient A described the alleged conduct of the Practitioner, she "was going through a bad time at the time. She was going through a separation with her partner … and she was quite stressed …". Ms Jenkins said that Patient A told her that "she was talking to the doctor and he leaned forward and was touching her stomach and she said she sort of leaned - turned away and he put her - his head on her back and sort of said, like with a sigh, like, 'What are we going to do with you?'"
In evidence-in-chief at the trial, Patient A said that she arranged the consultation on 24 January 2018 for two reasons, being a referral for her daughter and to arrange a blood test for herself following her appointment with a gynaecologist. She said that she told the Practitioner that she had gained considerable weight and that the gynaecologist indicated that she may have suffered a miscarriage. According to Patient A, at this point the Practitioner asked her to stand on a set of scales.
Patient A then said that the Practitioner "put his arms" on her and looked over her shoulder. She stated that he placed his arms around her waist and leaned over her shoulder, with one hand on each side of her body. She claimed that the Practitioner then said, "I'll just check for fat".
Patient A then gave this evidence as to events which she alleged then transpired at the consultation:
"A. So, I was standing - when I stepped off the scales I was standing near the chair, facing towards him with my back towards the chair, and I don't remember which side of my body he touched first, but he went from one side of my hip in my - a groping fashion, where he grabbed the side of my hip with one hand and then the other hand. And moved around to my bottom, and at that point, I froze. I am sorry. His hands were just all over me, you know, like grabbing me, checking me for fat and I couldn't move. I couldn't. I couldn't talk, I couldn't do anything ….
…
A. So he moved them around to like - to my bottom, and like just kept on getting closer each time. And then he said you used to have a problem here in my breast area, you don't have a problem here anymore. That's because in the previous … he checked the weight of my breasts, it was because they were a lot smaller.
… He tried to put his hand and did put his hand inside my singlet top, and I felt his hand go down towards the nipple, and I rolled my shoulder back to move his hand.
…
A. … I rolled my shoulder back, so his hand would come out. … And then he - he started moving closer towards me and … then he came towards me with his arms around me and … around my waist.
…
A. He was right up against me, and as I said to you before, he was coming towards me. I could also feel - and he had what I believed to be an erection. … He went to kiss me but I remember putting my chin to my chest like that he put his lips on my forehead."
In cross-examination at the trial, Patient A adhered substantially to this account of the alleged events. She denied that the Practitioner informed her during this consultation, for the first time, that he intended to leave the practice. She maintained that she first became aware of this information during a recorded conversation, either by telephone or in person.
In cross-examination, Patient A was asked:
"Q. … As at 24 January 2018 were you of the view that [the Practitioner] was the only doctor that could support your anxiety condition?
…
A. He - he remembered, like, you know, everything. I didn't want to have to go to another doctor and then try to explain it all again, you know. He had my history. Up until this day, I believed 100% that he was, you know, caring for me in the appropriate way, you know, like with, you know, adjusting my medication and all of that stuff."
Patient A was asked further in cross-examination:
"Q. You felt that he genuinely cared for you?
A. I felt like he was a good doctor, yes."
In the police interview on 5 March 2018, the Practitioner was asked about these events by Detective Lawson in a single question (question 143), which consisted of some 50 lines of text and contained multiple propositions. His response was as follows:
"A. No. So, yeah, and, she was worrying, I mean as I said she got negative impression about her body. That is one of the thing always make her anxious. So even a couple of times I, when, every time she was telling me that, so she doesn't like her body so she can't look in the mirror, because she, she, her muscles are not fit or tight. So usually I, I reassure her, every time when she has said that, I reassure her. Maybe last time also I think that incident, I think she, she would have told me she is not going to gym and she is putting on weight. So I check her weight and I go through the, the computer, you know, we can get the trend of weight and we can get how is the BMI."
The Practitioner then said:
"A. Then ah, she, she was worried about her muscle also. That, I told her, you know, 'Your muscles are very good.'"
He said next:
"A. … I reassured her she doesn't need to bother about anything. And I think she was gaining maybe four kilos or three kilos of weight, gained from the previous one. I said, 'Still it is inside the healthy range.'"
The Practitioner then said:
"A. … this is just reassurance, so I don't know whether I made that in the notes or not."
Detective Lawson then put individual and specific allegations to the Practitioner. In response to these questions, he made clear denials of the following propositions in relation to the fourth consultation:
that he would check a patient's weight by standing behind the person and placing his hands on the waist. He said, "No, no, no I haven't done that";
that he touched the breasts of Patient A at all;
that he touched the outside of the thigh of Patient A;
that he touched the buttocks of Patient A;
that he "got close to her";
that he "was heavy breathing";
that he had an erection;
that he kissed her forehead;
that he found Patient A "attractive".
The Practitioner then described to police an incident when the mother of Patient A accompanied her to a consultation. He said "I think she had a lot of problem [sic] with her partner and she was ah, you know, very worried." The Practitioner then said to police that Patient A's mother told her to hug him and that he "just tapped on her shoulder when she was leaving".
In his evidence-in-chief at the trial, the Practitioner described the events involving the mother of Patient A as follows:
A. … she was in tears and, you know, she couldn't talk at the beginning, so mum was explaining what's going on. Then I had a really lengthy chat with her and counselled her. So towards the end of the consultation she looks settled down. … [A]t the end when they're about to go out so they both were standing out there, then her mum was telling [Patient A] give a hug to doctor. Actually I didn't expect that so I'm a bit of shocked so she came towards me and hugged me so I didn't want to disappoint them --
Q. You just demonstrated with your right arm one arm around something?
A. Yeah, so she was coming closer to me then I just put my arm on the shoulder--
Q. Around her back area, is that what you're demonstrating?
A. Back area, yes."
In evidence-in-chief at the trial, the Practitioner said that Patient A told him on 24 January 2018 that she had gained weight and lost muscle tone due to a lack of gym training. He claimed that she demonstrated to him some weakness in her biceps muscle. The Practitioner said that he "checked the power and bulk of the muscle" and measured her weight. He described that his usual practice was to stand on the left side of a patient and lean down to see the number displayed on the scale. The Practitioner said that in the case of Patient A, he entered the weight into computer notes and said to her "nothing to worry about" with reference both to her weight and muscle tone.
The Practitioner said that he began to discuss with Patient A a letter from the gynaecologist, which referred to six miscarriages and one birth. He said that Patient A was "a bit distressed" during this discussion. He indicated that he ordered several blood tests.
The Practitioner stated firmly in evidence-in-chief at trial that he informed Patient A that he was leaving the practice during the consultation on 24 January 2018. He said that he had started to inform his regular patients of his proposed departure from mid-January 2018. In the case of Patient A, he said that he told her that he was leaving because he would not be in a position to follow up on the blood tests or to assist with any problems in a potential pregnancy.
As indicated above, two conversations between Patient A and the Practitioner were recorded lawfully, without his knowledge, pursuant to orders of the Supreme Court. The first was a telephone conversation on 1 March 2018 and the second an in-person meeting at the practice which took place on 5 March 2018.
In the first conversation, Patient A said that she wanted to talk to the Practitioner "about the last time I was in". She stated, "you hugged me, you know, and it, like, when you put your lips on my head and, you know, like, with the grabbing and stuff the way you were …". The Practitioner replied initially, "Yep", and then said, "Sorry [Patient A] I don't understand" and "I don't know what you are talking about".
[10]
Costs
It seems to us to be appropriate that the parties make written submissions as to costs. We will make directions that the Applicant file and serve written submissions as to costs within 14 days; that the Respondent file and serve written submissions as to costs within a further 14 days and the Applicant file and serve a reply within a further 7 days. The questions of costs will then be determined "on the papers".
[11]
Introduction
Dr J Aitken SM: I have had the considerable benefit of reviewing the draft decision of the majority in preparing my reasons for decision. I agree with much of this decision and will outline in the following reasons where I have respectfully arrived at different conclusions.
I note the introductory remarks relating to the background to the complaints ([1]-[6]), the evidence and witnesses ([7]-[9]), and background of the Respondent ([10]-[16]), and broadly agree with the details contained within them.
Her Honour has set out the Applicable Law, which relates to the standard of proof required in this Tribunal. This standard requires that the Applicant bears the onus of proof in this matter.
In health practitioner disciplinary matters, the factual content of the Complaint must be established on the balance of probabilities. This question, as to whether this level has been reached for each of the Complaints and associated Particulars, must be considered based on the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10.
Furthermore, given the seriousness of the alleged conduct, as well as the potential consequences if the alleged conduct is found proven, it is appropriate to adopt the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.
The principles established in Briginshaw indicate that the Tribunal must be mindful of both the nature and seriousness of the allegations involved, and that they are "comfortably satisfied" that the allegations have been made out on the balance of probabilities.
At [24], the majority have pointed to the fact that in this case, the narratives presented by the two significant parties, that is Patient A and the Respondent, differ markedly, with limited corroboration available related to the critical events. Relevant authorities on this issue have been outlined at [25]-[28].
Similar issues as these were dealt with in Gautam v Health Care Complaints Commission [2021] NSWCA 85. At [83], Leeming JA considered the situation where a tribunal is presented with "starkly conflicting narrative accounts". He went on to comment:
"This will often be the case in sexual harassment or sexual misconduct complaints. It is not necessary, as the appellant submitted, that the complainant's account be 'corroborated' or that, having addressed the relevant factual issues and accepted the complainant's account, separate reasons be given for rejecting the appellant's account."
As outlined, the burden of proof related to the alleged conduct rests on the Applicant. For the Respondent, no burden exists to establish an alternative hypothesis to that alleged by the Applicant.
As the majority have summarised the complaint in their reasons into four distinct "consultations", I will address my reasons in a similar fashion.
[12]
The First Consultation
The conduct that is alleged to have constituted the "first consultation" is particularised in Complaint 1, Particulars 1-3.
As is the case with this consultation, as well as the second and third consultations, there is a lack of specificity in the complaint regarding the timing of when this consultation took place. Particular 1 places this consultation as occurring "in 2017".
The medical records are unhelpful in further identifying when this consultation took place. They do not record any breast examination being undertaken by Dr Kesavan, and do not record an occasion when Patient A presented with a "tender lump under her left arm".
At [32]-[33], the majority has set out Patient A's evidence from the trial where she discussed the "first consultation", and the contemporaneous discussions she had with friends and family about the concerns she had with it.
In her statement to police dated 1 February 2018, Patient A outlined the four people she recalled disclosing her concerns regarding inappropriate breast examination to.
At the court trial, two of these witnesses gave evidence corroborating this disclosure to them. Her Honour has referenced this evidence from the trial at [35]-[37]. Importantly, the evidence from both these witnesses corroborated the version of events around the breast examination, but also the presenting complaint that led to a breast examination. Namely, that this was in relation to a swelling or swollen glands under the arm.
In her evidence before this Tribunal, Patient A indicated that she had never had a breast examination before this occasion and had initially been unsure whether this was a genuine medical examination.
Patient A went into some detail reporting how the breast examination had been undertaken. She described the way her breasts had been exposed by Dr Kesavan, by him lifting the bottom edge of her T shirt, and then pulling down on the bottom edge of the bra. The examination of the breasts included pushing on both breasts with one hand on each, using a "squeezing motion", and pushing them up and down. She indicated the examination overall lasted about one minute.
Overall, the described breast examination was consistent with her descriptions provided in her previous statements and evidence given at the trial.
Particular 1(h) describes another aspect of breast examination undertaken by the Respondent:
"h. inappropriately used his hands to weigh each breast to check if one was heavier than the other."
In Patient A's statement to police, it is unclear whether this occurred in the first consultation when a breast examination was performed for assessment of a lump after the arm, or at a subsequent consultation when concerns about weight loss by Patient A were being discussed.
Before this Tribunal, Patient A described this procedure as the Respondent placing his hands underneath the breasts so as to compare the weight of the two breasts. She said the Respondent would then comment on whether they were smaller or bigger.
The Respondent in his statement has asserted that he did perform a breast examination on Patient A, and that this occurred during the consultation of 12 August 2016 when the oral contraceptive pill was prescribed for the patient. Dr Kesavan bases this belief on his entry in the notes that in part reads:
"On OCP for last 3 years.No spotting or abnormal PV bleeding; no family history of clotting problems/DVT; no migraine or breast lumps. No excessive weight gain."
The reference to an absence of breast lumps is given in a series of negative screening history questions related to side effects or potential contraindications for the oral contraceptive pill. Additionally, it is used specifically in the same phrase as "no migraine" which is clearly a question asked of the patient. There is a specific section in this consultation note for "Examination" and there is no reference in the examination section of this consultation that a breast examination was undertaken.
Dr Kesavan gives a detailed account of what occurred in this consultation including the offers of a chaperone that he made and the patient's desire to proceed without one, how the patient removed her clothing to expose the relevant for the examination to occur, how the examination was conducted, and the follow-up advice given. This is based on his own recall as none of this information is included in the medical record note for this consultation, and he would have first turned his mind to recalling this information some 18 months later when the initial complaints were made by Patient A.
In evidence, Dr Kesavan indicated that he had limited experience in performing breast examinations on patients. This is despite his long experience as a medical practitioner, including 16 years since graduation, 5 years of general practice in Sri Lanka, 6 years of working in the Australian medical system with 14 months of emergency medicine and 4 months in Australian general practice.
The medical record note for this consultation is long and thorough. It is unusual that a significant and intimate examination, one rarely undertaken by the practitioner and which would have taken some time if we consider the offers of chaperone and positioning/exposure involved, is not referenced at all in this entry.
On balance, given that the circumstances of this consultation do not concur with the presenting issue reported by Patient A, as well as the two witnesses it was contemporaneously discussed with, it does not appear that the breast examination occurred on the date which the Respondent recollects that it did. Similarly, given the lack of any documentation of a breast examination occurring, it is difficult to accept on the balance of probabilities the Respondent's description of what transpired in the course of the consultation on 12 August 2016 truly reflects what occurred.
Dr Golding provided an expert report for the HCCC, and no alternative expert evidence was provided on behalf of the Respondent.
At [42], the majority has summarised Dr Golding's evidence in relation to the clinical indication for a breast examination. In short, his opinion was that if the breast examination was done as part of an assessment of lumps under the arm as suggested by Patient A as the reason for it occurring, then the examination would have been indicated. If the reason for the examination had been as suggested by the Respondent, that is, for the ongoing prescription of the oral contraceptive pill in a patient who had been taking it for several years, then the examination would not have been necessary.
In his report, assuming Patient A's version of events, Dr Golding is critical of the manner in which Dr Kesavan conducted the breast examination, performing the examination without having a chaperone present, and not obtaining adequate and informed consent from Patient A before performing the examination. When he views the conduct based on Dr Kesavan's version of events, he still considers his conduct was significantly below the standard expected of a practitioner of an equivalent level of training or experience with regard to performing the examination without a chaperone present, and the manner in which he performed a "brief" breast examination.
Dr Golding is critical particularly of Dr Kesavan's having "weighed" the breasts. This is not a recognised part of any breast examination and provides no clinical utility.
In evidence before the Tribunal, Dr Kesavan stated that he developed this technique of doing breast examinations involving "weighing the breasts" after observing a massive Phyllodes tumour during his time as a medical student.
The fact that Patient A referenced this singular aspect of examination that would be unique to Dr Kesavan's breast examination technique and not performed by any other medical practitioner undertaking breast examinations, and which he subsequently has acknowledged as performing as part of breast examinations, adds weight to her description of how the examination overall was conducted.
Based on the evidence, it is clear that if Dr Kesavan's evidence was taken at its best, then the Particulars relating to inappropriately performing a breast examination without a chaperone present, and inappropriately weighing each breast to see if one was heavier than the other, would themselves be substantiated, and that he would be guilty of unsatisfactory professional conduct under section 139B(1)(a). Additionally, given the nature particularly of the second component (the weighing of the breasts), this would also constitute "improper or unethical conduct relating to practice or purported practice of medicine": National Law, section 139(1)(l).
I am of the opinion that the evidence of Patient A should be accepted over the Respondent in regard to the Particulars dealing with inappropriate breast examination. Her accounts have shown consistency across several forums over several years. She made concessions about her difficulties recalling details given the time that has passed, especially in the context where she had initially raised concerns with family and friends, but not pursued a formal complaint until after the events in January 2018. Her evidence regarding the allegations of inappropriate breast examination were corroborated by her contemporaneous report of her concerns regarding the examination to family and friends.
Patient A clearly had concerns from quite early on regarding the conduct of the Respondent. Given her lack of experience with appropriate breast examinations, and the Respondent's assistance which he had been providing regarding her hyperhidrosis, she did not immediately end the therapeutic relationship or raise a complaint, beyond querying its appropriateness with family and friends. According to Patient A, this reluctance to do anything about this incident would change after the final consultation.
Dr Kesavan's evidence regarding the inappropriate breast examination lacks plausibility. The details recalled after such an extended period of time are not based in any medical record entry, and appear highly improbable. The attempt to portray the history item of no "breast lumps" as evidence that a breast examination occurred at the consultation on 12 August 2016 cannot reasonably be substantiated. Much of Dr Kesavan's evidence was self-serving and exculpatory, with no concessions for the normal lack of recall that would be expected over the course of time. Overall, I am of the opinion that significantly less weight can be placed on the evidence of the Respondent.
Relevant to considerations is the level of experience and training of the practitioner. At [51] and [54], the majority has characterised the Respondent as a practitioner with very limited experience, citing only four months of general practice experience.
As I noted at [188], the Respondent at the time of first seeing Patient A, had been a medical practitioner for 16 years since graduation in Sri Lanka. He had been undertaking general practice for 5 years in Sri Lanka before moving to Australia. He had been working for 6 years in the Australian medical system with at least 14 months in emergency medicine and 4 months in Australian general practice. If the breast examination occurred in 2017, then this would have been closer to one year of Australian general practice experience.
Given this large amount of experience, it would be expected that an equivalent practitioner would be well aware of how to perform a breast examination, how to obtain appropriate informed consent, how to use chaperones for intimate examinations, how to adequately document his examination and findings, and how to avoid sexual boundary violations.
For the above reasons, I am satisfied that the Applicant has proven Particulars 1-3 of Complaint 1 to the requisite standard.
[13]
The Second Consultation
The conduct that is alleged to have constituted the "second consultation" is particularised in Complaint 1, Particulars 4-5.
Put briefly, this relates to performing an inappropriate examination of Patient A with regard to her hyperhidrosis condition. This involved the Practitioner placing his hands on various parts of Patient A's body including her cheeks, her chest around the neckline of her singlet and the outside of her clothing on her breasts. It is also alleged that the Practitioner did not obtain proper consent before undertaking this examination.
Particular 4(d), similar to Particular 1(h), references the Practitioner weighing Patient A's breasts and saying words to the effect of, "yes, they're definitely smaller".
The time frame under which this conduct is alleged to have occurred is also quite broad, stating that it occurred on "one occasion between 2017 and 2018".
In her statement, Patient A referenced that she believed the consultation occurred around "April 2017". She reported to the Respondent that she had been having "excessive sweating" and had been feeling like she was "burning up".
She describes the examination undertaken by Dr Kesavan which involved using the back and front of his hand to feel the skin around her cheeks and neck. She then reports he proceeded to weigh her breasts and commented about their size. She says no consent was obtained for this examination of her breasts.
During his evidence to the Tribunal, Dr Kesavan was asked under cross-examination regarding his examination of Patient A's hyperhidrosis. He says that at times Patient A would show him her hands and feet to demonstrate the amount of sweating that was occurring. He also reported that Patient A had exposed her trunk to illustrate this as well. He stated that at all times he only inspected the patient's skin and the only contact that would have occurred would have been if he had turned the patient's hands over to inspect them.
He denied that he would have stroked her skin or moved her clothing in any way during this examination.
Dr Golding's report opines regarding the use of the back of the hands to examine the temperature of the skin that it would be more appropriate to use a thermometer to measure temperature, but acknowledges that this technique can be used to compare various areas of skin for their relative temperatures. Furthermore, assuming Patient A's version of events, Dr Golding concludes that this component of examination would be below the standard expected of a practitioner with equivalent level of training or experience (but not significantly so).
With regard to the weighing of the breasts and commenting on their size, Dr Golding's opinion is similar to that discussed earlier at [194].
Based on these conflicting accounts, the vagueness around the timing of its occurrence and the uncertainty of the extent of the examination undertaken, it is difficult to be convinced that these Particulars are made out.
It is probable that Dr Kesavan did undertake examination of Patient A's hyperhidrosis utilising the back and/or front of his hands to palpate the temperature and moisture on her skin on at least one occasion. This examination of itself may have been appropriate.
Separately, Particular 4(d) which relates to the weighing of the breasts, has been addressed in respect of the "first consultation". I am of the opinion that this was sufficiently established to have occurred on at least one occasion (see [197]-[204]). I am less convinced that on the available evidence that this occurred on multiple occasions.
For the above reasons, I am not satisfied that the Applicant has proven Particulars 4-5 of Complaint 1 to the requisite standard.
[14]
The Third Consultation
The conduct that is alleged to have constituted the "third consultation" is particularised in Complaint 1, Particulars 6-7.
The conduct alleged in these particulars relates to a physical examination allegedly performed by the Respondent at some point between March 2017 and January 2018. This examination was alleged to involve inappropriate touching of Patient A on the chest around the neck line and between her breasts, auscultation of her chest around her breast, lifting her top, placing hands on her shoulders and touching his forehead on Patient A's back.
It is further alleged that proper consent for these examinations was not obtained by the Respondent.
Her Honour has outlined in detail the evidence of Patient A in relation to this alleged conduct in [72]-[79].
Patient A in her evidence-in-chief stated that she thought that it had been a "genuine medical examination" at the time. She indicated that the Respondent auscultated with his stethoscope around her left breast, specifically along the left sternal edge and near the apex of the heart, which involved him pushing her breast to get to the chest wall.
Under cross-examination, Patient A confirmed her uncertainty regarding the timing of this examination, and went further saying there were multiple occasions when the Respondent would auscultate around her chest area. She said that on some of the occasions Dr Kesavan would lift her shirt to check her sweating and on some occasions she would lift it herself.
When questioned regarding the Practitioner's forehead coming in contact with her back, Patient A stated that she was seated on her chair when this occurred with the Respondent auscultating her back. She said that despite not seeing it, she knew it was the Practitioner's forehead that made contact with her back as she could feel his breath on her back.
Dr Kesavan's response to the allegations has been outlined by her Honour at [80]-[83]. In essence, he denied performing the examination in the manner suggested by Patient A.
Dr Golding's opinion is described by the majority at [84]-[86]. When taking Patient A's version of events as outlined to him, he concludes that the conduct would be significantly below the requisite standard, but when accepting the Respondent's version, is of the opinion that the conduct is at the standard reasonably expected of a medical practitioner.
I agree with the majority's conclusions regarding the "third consultation" as outlined at [91]. From Patient A's description of the alleged examination, it is clear that many aspects she relates are part of a normal physical examination that was likely carried out by the Respondent. In her own words, she initially thought the examination was a genuine medical examination, and only later came to form the opinion that there was an inappropriate aspect to it.
Given the significant doubt around whether the examination was inappropriate, and the lack of further evidence supporting Patient A's version of these events, it is difficult to be satisfied that the Applicant has proven Particulars 6-7 of Complaint 1 to the requisite standard.
[15]
The Fourth Consultation and Subsequent Events
The conduct that related to the "fourth consultation" is particularised in Complaint 1, Particulars 8-11. Particular 12 relates to all the preceding particulars of Complaint 1 and indicates that the conduct in these, either individually or in combination, amounts to inappropriate conduct of a sexual nature. I agree with the majority that the conduct outlined in these particulars represents the most serious conduct the Respondent is alleged to have engaged in.
Greater specificity is inherent in the details around this consultation. This is related to the immediate complaint following the consultation to others including the police.
It is generally agreed that the date of this consultation was on 24 January 2018. The medical records of Dr Kesavan contain the following record of the consultation:
"feeling tired.
diagnosed with DUB - seen by gynae.
on Tranexamic acid.
eating healthy.
No red flags.
Will do bloods.
Examination:
General: Weight: 63.2kg
Diagnosis: DUB
Reason for visit: DUB
Actions: Request printed: FBE; TSH; B12/folate; Iron Studies. (tiredness)"
Patient A indicated in her Police statement that her reason for attending on 24 January 2018 was to obtain a referral to a specialist for her daughter, as well as to follow up on her consultation with her gynaecologist, who had suggested her iron levels may be low, and hence she intended to obtain a pathology request for blood tests.
Based on Patient A's description of the issues she presented with on 24 January 2018, it is clear that these are quite consistent with what is recorded in the medical record entry for the consultation of that day.
The majority has clearly set out Patient A's description of the events of the consultation which are outlined in her police statement (at [93]-[97]), as well as what followed with her immediate reporting of the events to her ex-partner and friend which led to the making of the Police statement (at [98]-[111]). Following this, Patient A's evidence at trial is also set out (at [112]-[116]).
Following this, her Honour has gone through Dr Kesavan's response to the allegations. Broadly, he denies the conduct alleged by Patient A.
The Respondent's description of what occurred in the consultation was that Patient A presented with concerns about her weight and muscle bulk. He indicated that he checked the patient's weight and informed her that she was in the "healthy range" and that her muscles were "very good". These discussions and advice are not contained in the patient notes for the visit, beyond the documentation of the patient's weight.
The practitioner indicated that after this issue had been dealt with, he next discussed the patient's recurrent miscarriages and the recent letter from the gynaecologist. He stated in his evidence that the patient had actually been recalled by the practice following receipt of the specialist letter, as he wanted to follow up on the miscarriage issue. He stated that the patient was "a bit distressed" and upset during the discussions around her miscarriages. He said he did not document this distress because he felt it "was not necessary".
Under cross-examination before the Tribunal, Dr Kesavan was questioned regarding his evidence that the patient was recalled for follow up of the miscarriage issues discussed in the specialist letter. He conceded he did not know what prompted this as there were no suggestions contained in the letter regarding GP follow up and that there appeared there was no need for further specialist review.
Dr Kesavan's evidence was that the final part of the consultation was him discussing with Patient A his impending departure from the practice. He did not indicate that the patient was upset or distressed by this news.
Reflecting on the two differing versions of the clinical content of the consultation, it is clear that Patient A's version more closely aligns with the documented evidence in the medical record. The lack of reference to information about discussions around weight beyond the recording of a weight measurement, and the absence of any reference to miscarriages are clear indicators of this.
Following the consultation and Patient A's police statement, requests for Patient A's records were sent to the practice. Subsequent to this, several attempted phone calls were made to Patient A from the practice. In his evidence before this Tribunal, Dr Kesavan stated that he asked the receptionists to make the calls, but accepts that he made the first few calls himself as he was concerned for the patient's welfare. He thought that the request from the police for records was related to domestic violence, as he was aware there was an issue with this with the patient despite it not being documented at any point in her medical record.
The first contact between Dr Kesavan and Patient A subsequent to the consultation was on 1 March 2018. This was a telephone conversation between them that was recorded by a police listening device, and the amended transcript of this recorded conversation that was used at the trial was also before this Tribunal.
In this conversation, Dr Kesavan informed Patient A that he would be leaving the practice, as outlined by the majority at [148]. While I agree that it is inconclusive whether this is the first time the Practitioner mentioned his intentions to leave, Patient A's response, namely, "Oh, you are taking some time off from here?", and her follow up questions, seem to imply a lack of awareness from her of the Respondent's plans to change practices. This part of the conversation tends to add weight to Patient A's version of what transpired in the consultation on 24 January 2018.
During the recorded conversations on 1 March 2018 (telephone) and 5 March 2018 (in person), Patient A made a number of allegations to the Respondent. In the telephone conversation, she told the Respondent that "you hugged me", "you put your lips on my head", and "grabbing and stuff". In response to this, Dr Kesavan asked Patient A if she would like to come in and talk about it. She went on to say to him that he "tried to kiss me" and "had your hand up my shirt and stuff like that". She later reiterated that he had been "trying to kiss me" and that he had been "grabbing my boobs and my bum".
Dr Kesavan's response was that he did not want to discuss this over the telephone and asked for her to come in to see him. He said, "I don't, I don't mean that." She continued that he came "closer to me and you cuddled me". He continued to ask the patient to come in for a face-to-face consultation and stated, "I should not show any feelings toward my patient" and "as a doctor, I should not show any feeling toward you."
Patient A made further allegations to him about an erection saying, "I could tell you were turned on because you were, you know, I could feel it down there", and "You had an erection when you were cuddling me and you tried to kiss me".
Dr Kesavan insisted that Patient A come in, saying, "I'll explain to you, I will, I, I will answer your questions so you come".
It is clear from the transcript that Patient A made repeated and detailed allegations to the Respondent during the telephone call on 1 March 2018, and that these allegations were of serious boundary crossing violations of a sexual nature.
In his evidence before this Tribunal, Dr Kesavan stated that he did not think that Patient A was levelling allegations against him. He said that if he had he would have contacted his medical defence organisation or had someone else in the room. He said that he thought it was a misunderstanding about a time when Patient A's mother had told her to give the doctor a hug.
Following this conversation, the Respondent stated that he did not discuss the allegations with anyone else, but also denied that he did not want anyone else to know about it. No notes were made of this conversation by the Respondent, as he stated it was his usual practice before the advent of telehealth to not make records of phone conversations with patients.
It is difficult to accept this evidence from the Respondent regarding his misunderstanding of the conversation, as there are extensive allegations contained in the conversation with Patient A that go far beyond a simple hug. At the trial, the Respondent relied on his evidence as well as evidence from speech pathologists that he suffers from stuttering. This speech disorder would have no impact on his ability to understand the allegations that were made against him by Patient A during the telephone conversation.
The final interaction between Patient A and the Respondent was on 5 March 2018, when Patient A came in to discuss these issues face-to-face. Similarly, a police listening device was used and a transcript and audio recording of this were available to the Tribunal.
The consultation started with discussions regarding that the Respondent was soon leaving the practice. When Patient A turned the conversation to the events of the last consultation ("I want to talk to you, I've been, like, thinking about last time we were in."), the Respondent begins to apologise for what happened saying, "if I make you upset I apologise", and "I never meant anything. If I did inappropriate I…".
Following this Patient A began to outline her allegations, including "you tried to kiss me. You hug me and tried to kiss me", "you put your arms on me, you put your head on my back and it was like an embrace", "you were standing right there and you hugged me, it felt like you had an erection. And then you tried to kiss me", "you were grabbing me on my bum and my boobs, and you tried to take the boobs out of the bra", "the way you were grabbing my boobs is, like, I don't know how to explain it. Maybe like a 16-year-old boy that's feeling boobs for the first time", "you were checking the weight of them like this", and "with the sweating, like, when you, like, you touched me, like, stroking my hand, your hand up and down".
Throughout the discussions about the allegations, Dr Kesavan did not deny the allegations. His responses were consistently attempts to apologise for his behaviour ("if I made you feel embarrassed or feel bad I apologise"). He provided some explanations for why he felt their relationship had been quite close including saying: "I think the way you were talking with me, maybe you were, you know, talking and interacting I was very pleased and you're very pleasant woman and, you know. So, and also you … so even sometime, so when I have been down in mood so sometime I'm thinking how you are dealing with your stuff" and "when I am a bit down with my other issues, you know, I was thinking about you".
Dr Kesavan also responded that, "But, you know, this I did, I haven't done intentionally", "Yeah, I don't know I got excited um …", and "I have not intentionally done that".
Dr Kesavan made two significant final statements in the transcript. He said: "Mmm, I, you know, so I said, I haven't done intentionally … but, you know, I at the time, so you know I excited and touched, I'm, my apologies for that", and "I, I feel very bad about what I did." These two statements are the most convincing statements that Respondent was apologising for the alleged conduct, saying that he got "excited and touched", and had remorse for his conduct.
In evidence before the Tribunal, the Respondent stated that he was "100%" denying the allegations in the consultation in 5 March 2018. He insisted that his denials and body language were not captured by the listening device, and he felt he could not speak properly. He also added that he felt threatened by Patient A's body language as she got increasingly agitated. He also indicated that his saying "I'm sorry" was part of his denials.
As with the telephone recording, it is difficult to accept the evidence of the Respondent in relation to his explanations of what is contained in the transcript and recording of the consultation of 5 March 2018. It is clear that he does not at any point explicitly deny the conduct being alleged against him. This is despite being made aware of what these allegations were four days previously, and being once more detailed by Patient A in the consultation.
The Respondent's assertions that his apologies were denials are hard to support. The converse view that Dr Kesavan accepted he had become too close with Patient A, in his words, unintentionally, overstepped the boundary in his behaviour with her, and was now apologetic and felt bad for what he had done, would appear to be the easier proposition to accept.
In [139]-[146], the majority has attempted an assessment of the mental state of Patient A.
This assessment is drawn from excerpts from Patient A's medical records, as well as correspondence from a treating psychologist who Patient A saw in March 2017.
It appears in my opinion to be a flawed exercise to draw conclusions about the veracity of Patient A's evidence based on this limited information. No specific evidence in this regard was adduced by either party in this matter and limited submissions made. If taken at its best, the information considered would make a diagnosis of an anxiety disorder the most likely outcome. This would be in the context of associated psychosocial stressors, body image issues and possible depressed mood.
The presence of this disorder would make Patient A's evidence neither more nor less likely to be true.
With regard to the conclusions at [143], I would be of the opinion that little weight could be placed on the correspondence from Patient A's psychologist as its information contains little relevance to these considerations, and its timing would have little bearing particularly on the issues which occurred in the fourth consultation.
At [158], the majority has given reasons why the Respondent's evidence should be preferred over Patient A.
The first reason given is that Patient A gave unreliable evidence with regard to the events of the "fourth consultation", that which occurred on 24 January 2018. Overall, Patient A gave compelling and consistent evidence regarding this consultation. The memory regarding the prior consultations were vaguer and more non-specific, with dates in particular being hard for her to clearly identify. With this consultation though, there was an immediate reporting of the incident to others and the prompt making of a police statement about it. The immediate reporting of the incident and the consistency of the complaints she made speaks to the reliability of the evidence as opposed to any inconsistency in it.
In [154]-[157], the majority has discussed perceived discrepancies in accounts regarding the allegation that Patient A felt the Respondent's erection against her body. This is used as an example as to why Patient A's account had inconsistencies. The examples used to characterise this was police evidence at the trial about the lack of notes made about this part of the complaint, and that this specific part of the range of allegations was not recalled by either of the friends that Patient A reported the allegations to. Patient A's statement to police on 1 February 2018 contains this allegation at par 46. It is clear from both transcripts of the police recordings that Patient A was making allegations about the Respondent having an erection that she felt against her body, as in both conversations she raises this complaint with Dr Kesavan. In my opinion, this speaks to consistency in Patient A's evidence as it was part of the original description of the complaint made by her, and has been adhered to throughout.
In converse, the majority has characterised the Respondent's evidence as credible and convincing. I am of the opposite opinion for the reasons I have discussed previously.
The communication skills of the Practitioner were another factor raised. It was in evidence that the Respondent has had issues with stuttering, and it is acknowledged that English was his second language. Patient A gave evidence that she had never noticed throughout her numerous consultations with Dr Kesavan that he suffered from stuttering.
While the Tribunal had the benefit of this evidence, as well as the observation of Dr Kesavan giving evidence, it is difficult to reconcile the presence of stuttering as an explanation as to his response to the allegations made by Patient A. The Respondent would have been well aware of the nature and breadth of allegations that Patient A raised in the telephone consultation on 1 March 2018, well before their face-to-face consultation, and it is difficult to comprehend the way he handled this interaction and his responses to Patient A with this understanding.
In summary, I am of the opinion that with regard to the "fourth consultation", the evidence of Patient A should be preferred over the Respondent. In my view, she made a prompt report of inappropriate conduct by the Practitioner to two people, and then also promptly reported the matter to police. Throughout a lengthy process including giving a police statement, the two recorded conversations with the Respondent, court proceedings and finally before this Tribunal, she has given remarkably consistent evidence, including acknowledging the deficiencies in it related to problems with remembering dates with the progression of time.
In contrast, the evidence from the Respondent was self-serving and exculpatory. The detail remembered of events not recorded in medical records some years before lacks plausibility, and little concession was made to difficulties in remembering events.
Overall, I am convinced to the requisite standard that the allegations in Particulars 8-11 have been proven.
[16]
Professional Misconduct
Complaint 2 alleges that the Respondent is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
"i. engaged in unsatisfactory conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; and/or
ii. 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 suspension or cancellation of the practitioner's registration."
Particulars 9(f), (g) and (h) of Complaint 1 are relied upon individually as amounting to professional misconduct. All the particulars of Complaint 1 are relied upon individually and cumulatively as amounting to professional misconduct.
I am of the opinion that, cumulatively, the particulars I considered to have been proven would have amounted to professional misconduct. Additionally, I consider that the more serious allegations referenced in Particulars 9(f), (g) and (h) would have individually amounted to professional misconduct.
[17]
Orders of the Tribunal
1. The Complaint that the Respondent is guilty of unsatisfactory professional conduct is dismissed.
2. The Complaint that the Respondent is guilty of professional misconduct is dismissed.
3. In relation to the issue of costs:
1. The Applicant will file and serve written submissions as to costs within 14 days.
2. The Respondent will file and serve written submissions as to costs within a further 14 days.
3. The Applicant will file and serve any reply within a further 7 days.
4. The issue of costs will then be determined "on the papers".
1. Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the publication or disclosure of the names of Person A and Person B referred to in these reasons is prohibited.
[18]
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: 14 July 2023
For these reasons we are satisfied, and we find, that the Applicant failed to establish Particulars 1, 2 and 3 of the Complaint.
The Practitioner stated several times that he did not want to discuss the matters raised by Patient A in a telephone call and that he asked her to come to the practice. Patient A then referred to additional allegations and the conversation ended when a person knocked on the door of the consulting room. It was agreed that Patient A would see the Practitioner in person during the next week.
In relation to the recording of the second encounter on 5 March 2018, a very significant issue arose as to whether the Practitioner made any admissions in relation to improper conduct, on 24 January 2018 and prior occasions. Before us, counsel agreed that the preferred transcript of this meeting was that contained in Tab 45 of the material relied upon by the Applicant. The introductory and concluding comments by Detective Lawson indicate that this recording was of some 24 minutes' duration.
There is no doubt that the Practitioner said "I'm sorry" and "I apologise", and similar expressions, on multiple occasions when Patient A put to him allegations of inappropriate touching. The Practitioner said "No actually, you know, I didn't" in response to allegations put by Patient A on several other occasions during this recording. For example, when Patient A said "Do you touch everyone's butt like you touched mine?", the Practitioner responded, "No, I, I, you know, I normally … you know, I am, so what I am saying, I have not intentionally done that".
In his evidence-in-chief in the trial, the Practitioner explained why he had asked for a face-to-face meeting during the telephone call on 1 March 2018. He said: "… I couldn't understand why she is telling me these things, so I told, you know, I don't know her mental state, how she was at that time. So I did not want to, you know, say anything confronting to her over the phone. I just wanted to get her in and see how - I mean, explain."
The Practitioner said also that he shook his head from side to side while saying, "No, no, no. I am sorry. I am sorry". He said that he meant, "I mean to dismiss or deny what she is telling. So she said - so - 'you tried to kiss me, hugging, cuddling', so I tried to dismiss that. Deny that." Similarly, the Practitioner stated that he intended to deny the allegation that he had an erection when he said, "No, no, I am sorry, I am sorry."
We consider that careful regard must be paid to an agreed amendment to the transcript of this recording which was noted in an exchange between the presiding judge and counsel at the trial (Tcpt, 26 June 2019, p 473). The transcript of the meeting on 5 March 2018, with the agreed amendment, read inter alia:
"V3. Like, you don't, the way you were grabbing my bum, and you said to me, 'I'll just check for fat', and you're groping me like this, you know, and then you moved to my stomach, and then you moved to my breast, and then you step closer to me and then you hug me.
V4. Please
V3. It's what you did.
V4. Sorry.
V3. Do you know what I mean? And, like, I am cranky at the fact that you just sit there and you're like 'I am sorry, I don't know what happened'. Like, do you get what I mean?
V4. Yeah, I don't know I got excited um …
V3. You get excited.
V4. Yeah I'm not sure, because, you know, because, you know, because, I haven't done intentionally, I think.
V3. But do you understand how that then makes me feel?
V4. Yeah, I understand, yeah, I understand. I apologise."
(emphasis added)
In his evidence-in-chief at the trial, the Practitioner explained what he meant by the word "excited" in this exchange. He said:
"A. I mean, so excited means anxious or anxious or enthusiastic, you know, when we are doing something. So when you become anxious, we might do all that.
Q. What's an example of someone being excited?
A. So, I mean - so I mean, say in the word excite, and so excited when I heard this word, so something coming to my mind is say like you know so when - when I will can get a gift or something, you know, so excited about that gift. So to me, so I can remember one incident of what happened at Concord Hospital. So - so when I talking to my director so - so then he ask, 'So what is your plan for next year?' So then I said, 'Okay, I am going to leave hospital and get into a practice.' So then, 'That is a good idea. Are you excited about it?"
Q. Did you think 'excited' had anything to do with sexual arousal?
A. No. Till - till - up to this point, I don't know, because recently only I heard that. So when I was using this, I never connect excited to sexual.
Q. And she said, 'You got excited?' and you said, 'Yeah I am not sure because you know, you know, because I haven't done intentionally, I think.' What did you mean by that?
A. No - I mean, because, you know, so this point, I mean, to me is difficult to converse also with her. So I tried to say, 'I never had any wrong intention.' When I - I was seeing her as a patient, I never had any wrong intention.
Q. And then she said, 'You understand how that makes me feel?' Did you understand how that made her feel?
A. I mean, so, I mean was saying like this so I do not know how to stop her. So I tried to say something - rather than saying something against her, I tried to say something which can you know, stop her, which can calm her down."
In his evidence-in-chief at trial, the Practitioner said that Patient A became increasingly angry and noisy as this meeting progressed, to such an extent that he decided that he should end the consultation as quickly as possible. He described her presentation variously as "very angry", "sort of threatening" and "looking very furious".
At the trial, two speech pathologists, Dr Rachel Unicomb and Ms Jamie Williams, gave expert evidence to the effect that the Practitioner suffers from a stutter and uses English as a second language. Each expert had read transcripts of and/or listened to the covert recordings and the police record of interview.
Dr Unicomb said, inter alia:
"Q. If it indeed is a block that's caused by fear of stutter, then what ultimately comes out might be a different phrase, a different word or another technique used by him to camouflage his stuttering.
A. Yeah, he could definitely employ any or all of those strategies for sure.
Q. From your point of view, as an expert, do you say that impacts upon the reliability of the spoken word when it is audio only and can't be watched?
A. When it is audio only, it is very difficult for us to make an assessment that he - his stuttering is truly impacting and it is also difficult for us to assess to what level that stuttering is occurring."
Dr Unicomb described a pattern of use of "fillers" and "blocked sounds" in the speech of people who suffer from stuttering. She said: "But then in the audio-visual police interview, there were certainly a lot more that I could observe as well. So the stuttering severity seemed to me to be more severe in that recording." Dr Unicomb opined that the stuttering of the Practitioner "appears to increase from the first to the second", with reference to the telephone conversation and the face-to-face meeting on 5 March 2018.
Ms Williams said inter alia:
"Q. Is this the bottom-line Ms Williams? Your assessment of [the Practitioner] is not only does he have a problem with the speech impediment due to stuttering but on top of that and additional to that, he's got English as a second language difficulty that he deals with in terms of using techniques such as mazes? Filler words?
A. Yes."
She said also:
"It is not just a straightforward stuttering case or a straightforward English as a second language, language difficulty. Yeah, it is interesting how the two are playing out."
In our view, the psychological and/or emotional condition of Patient A may have relevance to the complaints which she now makes in relation to the Practitioner. There was no expert evidence from a psychiatrist or a psychologist, but some relevant information can be gleaned from the evidence of Patient A herself, other witnesses at the trial, the Practitioner and his clinical notes.
Patient A attended 25 consultations with the Practitioner between 27 July 2016 and 24 January 2018. The clinical notes (Tab 73) make reference to "anxiety" and/or "mental state" on at least ten of these occasions. The following list is intended to be illustrative, rather than exhaustive, of such references.
1. 19 January 2017
"c/o mood instability.
no risk of self-harming/suicidal/homicidal.
Cognition and judgment - good.
…
Reason for visit:
Emotional instability"
1. 27 February 2017
"going through a lot of psychosocial stressors.
feeling more anxious.
will do MHTP [arrow] psychologist."
1. 1 March 2017
"Known to have anxiety, related to related to multiple [psychosocial] stressors.
feeling tired; poor sleep.
mood is alright.
no risk of self-harming/suicidal/homicidal.
Cognition and judgment - good.
…
Diagnosis: Anxiety disorder."
1. 3 March 2017
"Reason for visit: Mental health care plan.
Actions: Letter written re mental health treatment plan."
1. 14 March 2018
"feeling tired; poor sleep.
mood is all right today.
no risk of self-harming/suicidal/homicidal.
Cognition and judgment - good."
1. 24 April 2017
"feeling anxious; poor sleep.
issues with her partner.
mood is low.
no risk of self-harming/suicidal/homicidal.
cognition and judgment - good."
1. 5 May 2017
"feeling better in terms of mental state.
mood is better; sleep improved."
1. 16 June 2017
"on Sertraline for anxiety.
feeling better.
still ongoing stress, from her relationship.
stable mental state.
no risk of self-harming/suicidal/homicidal.
cognition and judgment good.
Advised: psychology."
1. 23 June 2017
"been going [through] emotional disturbances due to relationship problems for more than a week.
sorting out.
her mum stays with her - supportive.
takes her meds.
sleeping all right last few days.
mood - low; affect - less reactive.
Insight - good. Judgement - good. IQ - normal.
no risk of self-harming or risk of harming others.
Plan:
Counselled
…
Psychology review."
1. 8 August 2017
"feeling anxious.
ongoing psychosocial stressors."
1. 13 November 2017
"Reason for visit:
Anxiety"
Early in 2017, the Practitioner provided a mental health plan to Patient A. On 8 March 2017, she consulted a clinical psychologist, Mr Ben Laverack, who provided a report dated 9 March 2017. A copy of this report was contained in the clinical notes of the Practitioner.
Mr Laverack reported that Patient A "presented in an anxious state". He opined that:
"… [Patient A] is currently experiencing difficulties coping with a combination of anxious and depressive type symptoms which is in correlation with your initial diagnosis. More specifically, [Patient A] reports increased irritability and frustration, decreases in cognition (concentration, memory and processing), use of negative schema (body image), hyper vigilance, persistent worry, fluctuating moods, jealousy, ongoing feelings of stress, sleep disturbances, loss of confidence and self-esteem, occasional loss of motivation, and racing thoughts. On the Depression, Anxiety and Stress scales, [Patient A's] scores fell within the severe range on the Depression scale and within the extremely severe range on the Anxiety and Stress scales."
We are mindful that Mr Laverack gave no oral evidence in these proceedings and that the contents of his report were not tested by way of cross-examination. Nevertheless, it seems to us that some weight can be placed upon his professional assessment of Patient A at this point at least in her contact with the Practitioner.
At the trial, Patient A was asked in cross-examination about her emotional state around the time of the consultation on 24 January 2018. She agreed that "there were events in your life at this time … that caused you stress that then increased your anxiety". She agreed that these events or factors included her hyperhidrosis condition, poor body image, her daughter's special needs and her relationships with the father of her daughter and her mother. She agreed that she consulted a psychologist in relation to strategies to cope with stress.
In cross-examination in these proceedings, Patient A said: "On 24 January 2018 my life was under a number of stressors - relationship breakup, anxiety issues, body image, weight fluctuation, only casual work, my special needs daughter getting into a new school." Patient A refuted a suggestion that these stressors impacted negatively on her reaction to the Respondent and his departure from the practice. She said, "It is ridiculous to say I was angry with him because he said he was leaving and I had all these stressors …".
In cross-examination at the trial, Patient A agreed that she had "problems with memory" when she consulted with Dr Burton in February 2017. She said:
"I remember telling him things like I could read a piece of paper and not be able to tell you what I had just read. …
…
So I wasn't remembering just like little things like that I normally would. Like at that time I think I was going through NDIS with [my daughter] and I was struggling to remember you know like key things that I was reading for her NDIS and things like that. …"
In cross-examination at the trial, Patient A denied that the Respondent told her that he was about to leave the practice during the consultation on 24 January 2018. She said that he informed her for the first time of his impending departure during the recorded telephone call or the consultation in March 2018. In these proceedings, she said that the Practitioner first told her that he would leave the practice during the recorded telephone conversation on 1 March 2018.
In our view, the transcript of the call on 1 March 2018 is inconclusive as to whether the Practitioner informed Patient A for the first time of his impending departure. The Practitioner said, "I am going, you know, ah, I am taking bit time off from here because I have to cover some cover, some cover up in new, around Newcastle" and Patient A replied, "Oh, you are taking some time off from there?" There followed some conversation to the effect that medical records for the daughter of Patient A should not remain at the practice after his departure. Patient A asked, "So what, when are you leaving?" and the Practitioner replied, "Ah, probably within the next one to two weeks."
During the consultation on 5 March 2018, Patient A asked, "But anyway, so you are leaving?". There followed discussion to the effect that the Practitioner had finished his training and would return to Sri Lanka for a time.
The consultation on 24 January 2018 followed an assessment of Patient A by a gynaecologist, Dr Joshi, on 12 January 2018. A report of the same date from Dr Joshi appeared in the clinical notes. In her report, Dr Joshi noted "[Patient A] is planning for a pregnancy" and made recommendations for management. Dr Joshi noted that she had made no further appointments for Patient A.
The Practitioner has given consistent evidence to the effect that he told Patient A on 24 January 2018 that he would shortly leave the practice. On 24 January 2018, the Practitioner ordered a number of blood tests and discussed with Patient A the report of Dr Joshi. His evidence was that he informed her at this time of his impending departure from the practice because he would be unable to follow up on the results of these tests, nor to assist her with a future pregnancy.
In his evidence-in-chief at the trial, the Practitioner stated that he said to Patient A: "I'm going to leave this place so I'm going to leave this place very soon so then I think because, I mean, I was about to start in the new practice [in] early February, so I was waiting for the provider number and stuff." The Practitioner said that he completed an application for a Medicare provider number on 22 December 2017 and expected a response within a maximum of six weeks.
In his evidence-in-chief at the trial, the Practitioner said:
"… I thought maybe within the next one or two weeks I might leave so then I would not be able to review this blood reports and gynaecology on that date was mentioned she was planning for a baby. In her case as she had miscarriages and stuff, there should be a lot of things to be done by a doctor when she is getting ready for pregnant. So that's what I won't be able to do those stuff."
At the trial and in these proceedings, Patient A said that she felt an erection when the Practitioner stood close to her on 24 January 2018. At the trial, she said, "It was terrifying." In these proceedings, she said, "It was extremely terrifying, it really stood out in my mind."
In these proceedings, Patient A said that she told Detective Senior Constable Josene Bereza that she felt an erection. The detective made notes of her conversation with Patient A, which contained no reference to an erection. In cross-examination at trial, Detective Bereza agreed that she noted the matters which she assessed as significant in the account of Patient A. She agreed that "at no stage did [Patient A] mention [the Practitioner] having an erection". Detective Bereza agreed further that she would assess an erection as "significant" and, it follows, she would have noted such a complaint.
In her statement of 1 March 2018, Ms Jenkins said nothing of a complaint about an erection by Patient A. Ms Jenkins said at trial that Patient A told her "that's when she thought she felt something hard touch her which she - she thought might have been an erection at the time". It became clear in cross-examination, however, that Patient A and Ms Jenkins had multiple discussions about these allegations prior to the trial.
Similarly, Person B made no reference in his police statement to a complaint by Patient A of an erection. Person B said that Patient A told him "[the Practitioner] was standing behind but to the side of me and I could feel his lips on the top of my head". Person B reported no statement by Patient A which could be construed as a complaint that the Practitioner stood near to her in such a way she could have felt an erection on the front of her body. Patient A agreed that it would be wrong to say that the Practitioner was standing behind her and to the side when she allegedly felt his lips on her forehead.
We have concluded that Patient A gave unreliable evidence of events which allegedly occurred on 24 January 2018. We made no suggestion that she gave evidence which she knew to be untruthful. We are of the view that the following considerations, taken collectively, create real and significant doubts as to the reliability of her evidence.
1. The Practitioner gave credible evidence to the effect that he attempted to address negative body image and self-esteem issues with Patient A, in terms of her weight and muscle tone.
2. The Practitioner gave credible explanations for statements which he made during the two recorded conversations with Patient A.
3. Dr Unicomb and Ms Williams gave uncontradicted expert evidence that the communication skills of the Practitioner are impaired by his stutter and use of English as a second language.
4. Patient A suffered from mental health problems throughout the time of her consultations with the Practitioner.
5. Patient A identified several stressors in her life around the time of the consultation on 24 January 2018.
6. Patient A said that she had "problems with … memory" in 2017 and she has stated consistently that she has difficulty with dates and time frames.
7. The Practitioner gave logical and credible evidence that he informed Patient A on 24 January 2018 that he would leave the practice, as he would be unable therefore to follow up and blood tests and assist her with a pregnancy.
8. Patient A made no complaint that she felt an erection to Detective Senior Constable Bereza, Person B or Ms Jenkins (in their first conversation).
9. Patient A has given inconsistent and inherently unlikely accounts of the alleged actions of the Practitioner.
For these reasons we conclude that it would be unsafe that there be a finding, to the Briginshaw standard, that the Applicant established Particulars 8, 9 and 10 of Complaint One. In our view, it is challenging to "identify the examination" to which Particular 11 refers, hence it would be unsafe that there be a finding that the Practitioner failed to obtain informed consent or offer a chaperone.
The Practitioner denied, in very strong and convincing terms, that he harboured a sexual intent toward Patient A at any time during the period 27 July 2016 to January 2018. Of itself, his denial does not preclude a finding that he "engaged in inappropriate conduct of a sexual nature toward Patient A" as alleged in Particular 12. However, we have set out above our reasons for doubt as to the reliability of the evidence given by Patient A of the alleged events. Accordingly, we find that the Applicant failed to establish Particular 12 to the requisite standard.
For all of these reasons we are satisfied, and we find, that the Applicant failed to establish that the Practitioner is guilty of unsatisfactory professional conduct. That being so, it follows that we are satisfied and find that the Applicant failed to establish that the Practitioner is guilty of professional misconduct.