Health Care Complaints Commission v Lui

The Amended Complaint

1. We here set out the Complaints numbered One to Five upon which the HCCC seeks findings. THE HCCC COMPLAINT HEREBY COMPLAINS THAT Dr Tsz Ching Lui ("the practitioner") of [Address], being a medical practitioner registered under the National Law, BACKGROUND TO ALL COMPLAINTS In 1992 the practitioner obtained his MBBS from the University of New South Wales. On 16 December 1991 he was first registered as a medical practitioner. In 1995 the practitioner commenced working in general practice. In 1996 he attained Fellowship of the Royal Australian College of General Practitioners. From 1997 to 2000 the practitioner worked at the Sydney Skin Cancer Clinic ("the Clinic"). From 2000 the practitioner established his own practice, the Wales Medical Centre in Hurstville ("the Centre") where he maintained a special interest in skin cancer. COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or 139B(1)(l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT ONE On 8 May 1997 Patient A (aged 21) consulted the practitioner at the Clinic ("the consultation") and requested the practitioner to examine some moles on her skin. PARTICULARS OF COMPLAINT ONE 1. During the consultation, the practitioner failed to provide Patient A with adequate privacy in that: a. he did not give Patient A access to a curtain, screened off area, or separate room offering adequate privacy whilst she undressed; b. after Patient A had stripped down to her bra and underwear, he failed to provide appropriate items of cover such as a gown or a sheet. 2. On 8 May 1997, the practitioner examined moles on Patient A's back using a dermatoscope instrument while Patient A was standing up. The practitioner failed to offer Patient A the opportunity to be examined lying down on her stomach to avoid body contact with Patient A, in circumstances where: a. use of the dermatscope resulted in required the practitioner having inappropriately close bodily contact with to get close toPatient A to look in the device; b. Patient A may have felt more comfortable if the examination was performed on the examination table; c. positioning Patient A on her stomach on the examination table would have provided the practitioner with better access to Patient A's back. 3. During the consultation, whilst standing directly behind Patient A and examining her back, the practitioner inappropriately brought his groin area, including his penis, into contact with Patient A's buttocks and held that position for about 10-15 seconds in circumstances where: a. the practitioner knew or was reckless as to the likelihood, that Patient A could consider the contact to be sexually motivated; b. the practitioner's technique involved gratuitous physical contact with Patient A's buttocks. 4. During the consultation, whilst standing directly behind Patient A and examining her abdomen, the practitioner inappropriately brought his groin area, including his penis, into contact with Patient A's buttocks and held that position for about 5-6 seconds in circumstances where: a. the practitioner knew, or was reckless as to the likelihood, that Patient A could consider the contact to be sexually motivated; b. the practitioner's technique of examining Patient A's abdomen from behind her was an ineffective method of examination and not evidence based; c. the practitioner's technique involved gratuitous physical contact with Patient A's buttocks. 5. The practitioner's conduct in particulars (3) and/or (4) was contrary to his obligations under the Medical Council of NSW's policy on Sexual Misconduct (4 December 1991). 6. The practitioner inappropriately engaged in the conduct in particulars (3) and/or (4) for his sexual gratification. 7. The practitioner failed to explain to Patient A the method and purpose of the examination in particular (4) prior to performing the examination and, in doing so, failed to obtain appropriate consent for the examination. 8. On 8 May 1997 the practitioner failed to conduct a complete skin examination of Patient A's breast and genitalia in circumstances where Patient A was concerned about potentially malignant lesions. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: iii. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or iv. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT TWO On 16 August 2018 Patient B (aged 27) consulted the practitioner at the Centre ("the consultation") complaining of abdominal pain and having missed her period for about three months, up to 9 August 2018. PARTICULARS OF COMPLAINT TWO 1. During the consultation, the practitioner inappropriately exposed and felt Patient B's right lower breast with his hands while she was lying down for an abdominal examination, in circumstances where his conduct was gratuitous and did not have an appropriate clinical basis. 2. During the consultation, and after the conduct in particular (1), the practitioner inappropriately exposed and palpated Patient B's right lower breast while she was standing up and he was standing behind her in circumstances where: a. the practitioner knew or was reckless as to the likelihood that Patient AB could consider the contact to be sexually motivated; b. the practitioner engaged in gratuitous physical contact with Patient AB's breast without clinical basis; c. the conduct was contrary to the Medical Board of Australia's 'Sexual Boundaries: Guidelines for doctors' (28 October 2011). 3. During the consultation, whilst standing directly behind Patient B and examining her abdomen and groin area, the practitioner inappropriately brought his groin area, including his penis, into contact with Patient B's buttocks and held that position for about 10 seconds in circumstances where: a. the practitioner knew, or was reckless as to the likelihood that Patient B could consider the contact to be sexually motivated; b. the practitioner's technique of examining Patient B's abdomen and groin from behind her was an ineffective method of examination and not evidence based; c. the practitioner's technique involved gratuitous physical contact with Patient B's buttocks; d. the conduct was contrary to the Medical Board of Australia's 'Sexual Boundaries: Guidelines for doctors' (28 October 2011). 4. The practitioner inappropriately engaged in the conduct in particulars (2) and (3) for his sexual gratification, contrary to the Medical Board of Australia's 'Sexual Boundaries: Guidelines for doctors' (28 October 2011). 5. The practitioner failed to give an explanation to Patient B prior to the examinations in particulars (2) and (3) of the method and purpose of the examinations, and in doing so failed to obtain appropriate consent for the examinations. 6. During the consultation, the practitioner failed to perform a vaginal examination and take vaginal swabs of Patient B in circumstances where: a. the practitioner was concerned about polycystic ovaries; b. the practitioner did not want to perform the examination due in part to his perceived general fear of medico-legal risk from such an examination; c. the practitioner did not refer Patient B to another practitioner for the examination or advise Patient B of the need to do so. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT THREE On 8 September 2018 Patient C (aged 28) consulted the practitioner at the Centre complaining of abdominal pain. On 10 September 2018, Patient C returned to see the practitioner for her ultrasound results and with complaints of back pain. PARTICULARS OF COMPLAINT THREE 1. On 8 September 2018, the practitioner performed an inadequate examination of Patient C's abdomen and back in that Patient C was standing and fully clothed. 2. On 10 September 2018, the practitioner performed an inadequate examination of Patient C's abdomen and back in that Patient C was standing and fully clothed. 3. During the consultation on 10 September 2018, whilst standing directly behind Patient C and examining her abdomen and groin area, the practitioner inappropriately brought his groin area into contact with Patient B's buttocks and held that position for about 10-30 seconds in circumstances where the: a. the practitioner knew or was reckless as to the likelihood that, Patient C could consider the contact to be sexually motivated; b. the practitioner's technique of examining Patient C's abdomen from behind her was an ineffective method of examination and not evidence based; c. the practitioner engaged in gratuitous physical contact with Patient C's buttocks; d. the conduct was contrary to the Medical Board of Australia's 'Sexual Boundaries: Guidelines for doctors' (28 October 2011). 4. The practitioner inappropriately engaged in the conduct in particular (3) for his sexual gratification, contrary to the Medical Board of Australia's 'Sexual Boundaries: Guidelines for doctors' (28 October 2011). 5. The practitioner failed to give an explanation to Patient C prior to the examination in particular (3) of the method and purpose of the examination, and in doing so failed to obtain adequate consent for the examination. 6. During the consultation on 10 September 2018, whilst standing directly behind Patient C the practitioner inappropriately and examineding her abdomen and back the practitioner inappropriately examined Patient C's abdomen in this position with his hands in that: a1. the practitioner first attempted to examine Patient C from behind and when Patient C moved, instead examined her from the side while pressing his body against her; a. the practitioner's technique of examining Patient C's abdomen from behind her was an ineffective method of examination and not evidence based; b. the practitioner's technique of examining Patient C from the side while pressing against her involved gratuitous physical contact with Patient C's body. COMPLAINT FOUR The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened the Health Practitioner Regulation (New South Wales) Regulation 2016 ("the Regulation"). BACKGROUND TO COMPLAINT FOUR The backgrounds to Complaint Two and Complaint Three are repeated. PARTICULARS OF COMPLAINT FOUR 1. The practitioner failed to maintain adequate records for Patient B's consultation with him on 16 August 2018 in that he failed to record: a. his differential diagnoses (schedule 4, clause 1(2)(b) of the Regulation); b. a management plan (schedule 4, clause 1(2)(c) of the Regulation); c. an outline of the information and advice given to Patient B (schedule 4, clause 1(3) of the Regulation). 2. The practitioner's records for Patient B's consultation on 16 August 2018 lacked sufficient detail, contrary to schedule 4, clause 3(1) and 3(2) of the Regulation. 3. The practitioner failed to maintain adequate records for Patient C's consultation with him on 10 September 2018 in that he failed to record: a. his opinion on the ultrasound results of 10 September 2018 (schedule 4, clause 1(2)(b) of the Regulation); b. his findings of a lump on examination of Patient C (schedule 4, clause 1(2)(a) of the Regulation); c. any differential diagnoses (schedule 4, clause 1(2)(b) of the Regulation); d. a management plan (schedule 4, clause 1(2)(a) of the Regulation); e. an outline of the information and advice given to Patient C (schedule 4, clause 1(3) of the Regulation). 4. The practitioner's records for Patient C's consultation on 10 September 2018 lacked sufficient detail, contrary to schedule 4, clause 3(1) and 3(2) of the Regulation. COMPLAINT FIVE The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: (a) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or (b) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration PARTICULARS OF COMPLAINT FIVE 1. Complaint One and the particulars therein are relied on individually and cumulatively. 2. Complaint Two and the particulars therein are relied on individually and cumulatively. 3. Complaint Three and the particulars therein are relied on individually and cumulatively. 4. Two or more of the particulars of Complaints One to Three and are relied on cumulatively. 5. Complaints One to Four and the particulars therein are relied on cumulatively.
2. The Respondent's Reply document is as follows: Complaint One i. The Respondent admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law) in that he has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised by him in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience due to his examination technique. ii. The Respondent denies that he engaged in improper or unethical conduct under section 139B(l) of the National Law, relating to the practice or purported practice of medicine. Background to Complaint One i. It is agreed as a matter of fact that on 8 May 1997 Patient A consulted the respondent at the Clinic and requested the practitioner examine some moles on her skin. Particulars 1. The Respondent declines to respond to the Particulars of Complaint One in the absence of the protection of a certificate pursuant to s 128 of the Evidence Act 1995. Complaint Two i. The Respondent admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law) in that he has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised by him in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience due to his examination technique. ii. The Respondent denies that he engaged in improper or unethical conduct under section 139B(l) of the National Law, relating to the practice or purported practice of medicine. Background to Complaint Two i. It is agreed as a matter of fact that on 16 August 2018 Patient B consulted the respondent at the Centre complaining of abdominal pain and having missed her period for about three months, up to 9 August 2018. Particulars of Complaint Two 1. The Respondent declines to respond to the Particulars of Complaint Two in the absence of the protection of a certificate pursuant to s 128 of the Evidence Act 1995. admits Particular 1(a) as a correct statement of fact. Complaint Three i. The Respondent admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law) in that he has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised by him in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience due to his examination technique. ii. The Respondent denies that he engaged in improper or unethical conduct under section 139B(l) of the National Law, relating to the practice or purported practice of medicine. Background to Complaint Three i. It is agreed as a matter of fact that on 8 September 2018 Patient C consulted the respondent at the Centre complaining of abdominal pain. On 10 September 2018, Patient C returned to see the practitioner for her ultrasound results and with complaints of back pain. Particulars of Complaint Three 1. The Respondent declines to respond to the Particulars of Complaint Three in the absence of the protection of a certificate pursuant to s 128 of the Evidence Act 1995. admits Particular 1(a) as a correct statement of fact. Complaint Four i. The Respondent admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the Health Practitioner Regulation National Law (NSW) (the National Law) in that he has contravened the Health Practitioner Regulation (New South Wales) 2016. Particulars of Complaint Four 2. The Respondent accepts the particulars 1-4 in relation to Complaint Four. Complaint Five i. The Respondent does not admit professional misconduct under section 139E of the National Law, as the conduct he engaged in was not of a sexual nature. Particulars of Complaint Five ii. The Respondent admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(a) or (b) of the National Law in that he has engaged in conduct that demonstrates the judgment possessed and the skill and care exercised by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience. The Respondent makes this admission as he accepts the criticisms that have been levelled at his examination technique and the adequacy of his records when viewing all the circumstances of this case. iii. The Respondent denies that he engaged in improper or unethical conduct under section 139B(l) of the National Law, relating to the practice or purported practice of medicine.

The documentary Evidence relied upon by the parties:

1. The HCCC documentary evidence is contained in exhibit A1. That evidence was admitted with the following restrictions: i) Tab 4 is only admitted to show what order was made by the Medical Council following the hearing on 13 November 2018. It is the order on page 10 and page 11 of Tab 4. ii) Tab 5 is admitted subject to the exclusion of page 51 line 25 to page 57 line 46. iii) Tab 5 Page 59. Line 20 to the end of page 60 is not read by the HCCC.
2. Exhibit A2 is the HCCC Amended Complaint document.
3. The Respondent's documentary evidence is: 1. Exhibit R1, a folder of 90 pages. 2. Exhibit R2, Supplementary statement of the Respondent dated 6 February 2022. 3. Exhibit R3, Affidavit of Lydia Kamaras, the Respondent's solicitor.

The Evidence in the HCCC case:

1. The HCCC relied upon the written evidence of Patient A. Her evidence is found at Tabs 6, 9, 11, 12, of exhibit A1.
2. The first evidence of a complaint by Patient A is found at Tab 6. It is a letter signed by Patient A and dated 15 May 1997. The evidence which we have noted as significant is as follows: 1. The appointment Patient A attended with the Respondent was on 8 May 1997 (some 7 days before the date of the letter). It was at the Sydney Skin Cancer Clinic. The appointment time was 12.30pm. 2. Patient A was examined by a doctor whose name she was not provided with. She was later informed by a clinic personnel that it was Dr John Lui. (We note there is no issue raised by the Respondent that it was he who was consulted by Patient A on the stated date.) 3. In discussion at the commencement of the consultation Patient A told the Respondent: "The reason why I'm here is that my brother was diagnosed with skin cancer and I have a lot of moles that I would like to have checked out." 4. The Respondent said to Patient A "Okay, I'll need you to get into your bra and undies." Patient A looked around for a place to change in private. "The partition that was at the other end of the room was not in a position where I could cover myself whilst I did change into my underwear." 5. Patient A set out details about the examination. After describing the examination whilst she lay on the examination table, she described the following, which was the main motivation for making her complaint. 6. "I was then asked to stand up and he began to examine for moles on my back, whilst doing this I felt the doctor's groin pressing on my buttocks, which he held there for at least 10 to 15 seconds. I felt very uncomfortable so I moved my pelvis forward so that I couldn't feel his groin touching me anymore." 7. Patient A then said the Respondent examined her legs and felt under her arms. She then said: "I then could feel his groin pressing on my buttocks again, I moved my pelvis forward again. He reached around with his right hand and was pressing on a mole that I have on the right side of my stomach and he was asking me whether 'that hurt or not', I replied that "No it did not hurt". I could still feel his groin pressing on me, this went on for around 5 to 6 seconds." 8. Patient A said that the Respondent told her she needed to have two moles removed. Although she made the appointment for the procedure she decided, upon leaving the clinic, she would never return. 9. Upon return to her work place she told a work colleague of her experience. The following day she rang the clinic and asked if there had been any complaints made about Dr Lui. She was informed there had not. 10. On 9 May 1997 Patient A made a complaint to Police in NSW and a statement was recorded. (That Statement forms part of exhibit A1 in this hearing (Tab 11)).
3. On 9 May 1997 Patient A signed a statement she made to NSW Police (see Tab 11). In that statement Patient A described what had occurred in her consultation with the Respondent on 8 May 1997. We have noted the following in that statement. i) Patient A described the consultation room as follows: "Within the room was a desk near the window, some chairs in one corner and an examination table. There was a folding screen behind the entrance door." ii) Dr Lui asked Patient A some questions. Patient A said: "I told him that my brother had been diagnosed with skin cancer and I wanted to get mine checked out." iii) Whilst on the examination table Dr Lui examined a mole on the inner thigh of Patient A. She said: "Whilst he was checking it, I didn't feel very comfortable". Patient A described the following: "He then made me stand up and he stood in front of me. He then moved behind me and was feeling the glands under my arms. He then reached around with his right hand and was pushing on the mole on my stomach. At this stage I could feel that he was standing behind me very close to my body. He pressed himself against me and I could feel his groin area pushing into my backside. I felt very uncomfortable with this and I tried to move my pelvis forward to avoid any contact. He was still pushing on the mole with his finger and asking me , 'Does that hurt?' I said, 'No'. I looked around to see what he was doing as I wondered why he was pushing his pelvis into my backside while he was examining a mole on my stomach. He kept pushing the mole and I felt his pelvis again and I tried to move away again." iv) Patient A said that after the consultation she went straight to work and spoke to a friend Toni Seton.
4. We note Ms Toni Seton also gave evidence in the hearing before us. She signed a written police statement dated 14 May 1997 and a statement made to HCCC dated 5 June 2019. Those documents form part of exhibit A1 at Tabs 13 and 14.
5. Patient A signed an additional Police statement on 15 May 1997 (see Tab 12). In that document we note the following evidence. i) Patient A was 24 years of age. ii) When describing the respondent's action in pressing his groin against her buttocks, in her first statement, she did not set out for how long he had pressed against her buttocks. She said: "I could feel him making contact with my backside for about ten to fifteen seconds. As stated before, I felt instantly uncomfortable with this and moved my pelvis forward immediately."
6. On 2 May 2019 Patient A signed a Statement prepared for the HCCC (see Tab 9). In that statement we note it is consistent with the statements she had made which we have referred to above. We do note the following additional matters set out in the statement: 1. Patient A is now 46 years of age. 2. The doctor began to examine my moles, firstly with his hands and then a lens instrument. 3. Whilst examining her from behind Patient A said she could feel his groin pressing against her buttocks. He held his groin against her buttocks for 10 to 15 seconds. Patient A said during that time, "I could feel his penis was erect. I wondered what the hell was going on." 4. Patient A said that after examining the back of her legs, "he then stood up again and from behind he began feeling the glands under my arms. I then could feel his groin and erect penis pressing on my buttocks again"… "he reached around with his right hand and was pressing on a mole that I have on the right side of my stomach"… "I could still feel his groin and erect penis pressing on me, this went on for around 5 to 6 seconds." 5. When she returned to her office, Patient A spoke to her work colleague Toni Seton. Ms Seton asked Patient A "how did you go?" Patient A replied: "A doctor just got his rocks off on me". When asked what she meant Patient A said: "He was sticking his dick into my bum". 6. On 8 August 1997 Patient A said she received a letter from the HCCC advising that it was declining to deal with her complaint. 7. Patient A holds the view that the respondent took advantage of her. She said: "I still recall in detail to this day the events that occurred and think about it often even now. It has taken me many years to trust a male doctor again."
7. The HCCC relied upon the evidence of Ms Seton. Her written statements are set out at Tabs 13 and14 of exhibit A1.
8. In the statement made by Ms Toni Seton to the HCCC on 5 June 2019 (Tab 13 of exhibit A1) we note the following. 1. Ms Seton was 48 at the date of the statement. She was 26 in May 1997. 2. Ms Seton was well acquainted with Patient A having known her since 1990. They worked together and from 1996 shared accommodation. 3. On 8 May 1997 Ms Seton was aware that Patient A had attended a medical appointment at about lunchtime that day. When she returned to work after that appointment Ms Seton asked her: "How did you go?" In response Patient A had told her she had "felt uncomfortable" and she commenced crying. Patient A had told her she felt uncomfortable when the doctor has asked her to "take off her clothes". Patient A told her the doctor had stood behind her and "pushed his groin up into her bottom". "She said that he had an erection and could feel his penis pushing against her bottom." "As he did so, he put his hand on her stomach, pressing on a mole and asked whether that hurt." 1. Ms Seton said: "My memory is now quite vague after that point, but I recall that she was very distraught after the consultation."
9. Ms Seton also made a statement to the NSW Police on 14 May 1997. In that we note the following: 1. Ms Seton said: "Sometime after lunch on Thursday 8th May 1997, I was at work when I had a conversation with (Patient A). She said to me 'I've just come back from the clinic.' I said 'How did you go?' She replied, "It was okay, but I had an Asian doctor who was a bit sleezy. I have to get two moles removed." I said "What happened?" She replied, "He was standing behind me checking the mole on my stomach but he had his groin up against me.' I said 'Well, what do you mean?' She said 'I could feel his dick sticking into my bum.' I said, 'My God, are you okay?' She said 'Yeah, I'm okay but every time I think about it, it makes my blood run cold.' 2. About half an hour later Ms Seton again spoke with Patient A. She noticed Patient A's eyes looked a bit red as if she had been crying. She asked: "How are you?" Patient A responded: "I can't stop thinking about that sleazy doctor. It makes me feel sick."
10. The Respondent provided a written response to the HCCC in relation to the complaint of Patient A. That response is set out at Tab 30 of exhibit A1. In that document we note the following: 1. He usually provides patients with a business card with his name on it. If he failed to do that it was probably because it was a very busy day. He extended his apology for failing to properly introduce himself to Patient A. 2. At the beginning of the consultation Patient A stated her brother had been diagnosed with melanoma at the age of 26 and so she requested a skin review. 3. Patient A was seen in the only consulting room with a partitioned area. The Respondent wrote that it was his practice to "look away and complete my records while the patient is changing." 4. "While reviewing the patient's back, I ask the patient to lean forward so that the applied oil does not drip down their back. This is the process used when I examined (Patient A)". 5. "Although it was necessary for me to be very close to (Patient A) during the examination I deny pressing my groin on her buttocks. I did not touch (Patient A) in any inappropriate manner during the course of the entire consultation".
11. The HCCC relied upon the evidence of Patient B. The written evidence relied upon is set out in exhibit A1 at Tabs 7, 20 and 42. Tab 19 is a statement by Dr Yik Chong to whom Patient B complained of the Respondent's actions towards her.
12. The first document relied upon by the HCCC in relation to Patient B is found at Tab 7 of exhibit A1. It is a AHPRA document titled "Summary of complaint or concern". It is a copy of what appears to be an online complaint made by Patient B. The complaint was made on 4 September 2018. In that statement we note the following: I. Patient B set out her name and date of birth. II. Patient B specified that she had suffered "Major psychological or emotional harm" as a result of action by a "health practitioner". The harm occurred on 16 August 2018. III. Under the heading "Please describe what occurred" Patient B entered the following: "I presented with lower abdominal pain and missed period on 16/8/2018. Dr John Lui was the doctor I consulted….After answering some questions, he then examined me on the examination bed. I was exposed from my right ribs area to the underpants area and he felt my abdomen and my lower part of my right breast. And then he stood me up, and standing behind me and started examining me from behind, Palpating the right side of the lower part of my breast. His body was up against my buttocks touching me for at least over 10 seconds. I then moved away from him feeling disgusted and afraid. When he was back in his chair, he was sitting with his leg crossed. After this incident I left quickly. After this incident I seek help and counselling from my usual GP and psychological counselling." IV. The consultation occurred at Wales Medical Centre, 277-279 Forest Road, Hurstville. The doctor was Dr John Lui.
13. At Tab 20 of exhibit A1 the statement of Patient B is set out. This is a statement made at the offices of the HCCC. It is dated 20 September 2021. We note the following in that statement. 1. Patient B is 30 years of age. English is not her first language. 2. Patient B is a patient of Dr Yik Choon Chong who is her usual GP. He works at the Wales Medical Centre, Hurstville. 3. On 4 September 2018 she made a complaint to AHPRA about Dr Lui Tsz with the help of Dr Chong. "I gave Dr Chong information about what had happened speaking to him in Mandarin which he inputted to the complaint in English. I read and agreed with what he typed into the AHPRA complaint before it was submitted. 4. Patient B said that her memory of the 16 August 2018 appointment is not as strong as it was when she made the complaint to AHPRA. However the details she did remember she included in her Statement. 5. Prior to seeing Dr Tsz on 16 August 2018 she had seen him on an earlier occasion. She recalled: "that at the earlier appointment he made me feel uncomfortable. It was the way he looked at female people including me." 6. On the day she attended the clinic she had wanted to see Dr Chong however he was not available. The only available doctor was Dr Tsz. 7. During the consultation on 16 August 2018 Patient B spoke in Mandarin to Dr Tsz. She gave Dr Tsz the reason she had attended. She said he asked her whether she had taken a pregnancy test. She told him: "I was not planning to become pregnant." 8. Patient B was asked to lie down. She said Dr Tsz examined her abdomen. She said he "touched me near to my bra (he did not ask me to undo my bra) - the lower part of my breast. He moved his hands down near my underwear. He touched my abdomen as well". …. "When he touched me on my breast and down at my underpants area I said something like, 'I think I'm okay' or 'I'm okay' to get him to stop." (We pause here to note that in her oral evidence Patient B made clear the Respondent did not examine her breast either underneath her bra or on top of it. She said it was "just below the bra".) 1. Patient B said: "Dr Tsz then asked me to stand up and he stood behind me. He hugged me from behind as he examined me. He touched my body and kept saying: 'Does it hurt?" This part of the examination was really upsetting to me and I struggle to talk about it now. At no time did he explain why he was examining me, or what he was looking for." 2. After the examination Dr Tsz sat down to write a report. "While he was writing his report I remember seeing that he had an erection and he tried to cover it. He moved his right leg over his left leg."
14. At Tab 42 the medical records for Patient B are included. The records include detail of the dates upon which Patient B consulted with the Respondent and other doctors at the Wales Clinic. It also records the record made by Respondent in relation to Patient B's consultations with him.
15. At Tab 19 the written evidence of Dr Yik Chong is set out. He made a statement on 25 May 2021. Part of that statement was struck out and part was not relied upon by the HCCC. We note the following from the evidence which remained in the statement. 1. Dr Chong worked at Wales Medical Centre between 2009 and 2010 and again between 2013 and 2020. When he worked there the Respondent "was mentoring him." He was a registrar at the time. The Respondent was the owner of the practice at that time. 2. Patient B was Dr Chong's regular patient while he worked at the Wales Medical Centre. In 2018 whilst in a consultation with Patient B she "brought up that another doctor at the Centre, Dr Lui Tsz, examined her and she felt it was inappropriate. He said Patient B: "told me that she complained to Dr Tsz of abdominal pain and he did a breast and groin examination of her which she thought was inappropriate. She told me that Dr Tsz made body contact with her, that his body was pressing against her from behind while examining her abdomen which she was also upset about. …". At the time "I brushed it off and didn't make any notes of this." Then Dr Chong said on a later consultation Patient B again spoke of the consultation with the Respondent. 3. On the second occasion Patient B spoke to him about the consultation with the Respondent he helped her fill in the AHPRA complaint form. 4. In his statement Dr Chong also stated he had another patient (Patient C) who also complained to him about the conduct of the Respondent in the course of a consultation. Dr Chong also assisted Patient C with filing a complaint with AHPRA.
16. The Respondent provided the HCCC with a response to the complaint of Patient B. See Tab 32.
17. We have read the letter provided by the Respondent to the HCCC which is dated 12 October 2018 and we note the following: 1. The letter responds to a letter from the HCCC dated 17 September 2018. The response commences with the following: "I refer to the Notice to Give Information/ Produce Documents under s21A of the Health Care Complaints Act 1993 ("the Notice") dated 25 September 2018. Pursuant to s.37A of the Health Care Complaints Act 1993, I object to providing the information and documents sought in the Notice, on the ground that the information might incriminate or make me liable to penalty." 1. The Respondent, notwithstanding the above, did provide significant information in answer to the complaint made by Patient B. This included a description of his usual practice when examining a patient. He then gave specific information in relation to the physical exam of Patient B. He wrote: "To the best of my recollection I examined Patient B in accordance with my usual practice and as clinically indicated. At no time during the examination did I touch either of Patient B's breasts. I also deny Patient B's allegation that my body was up against her buttocks." 2. The Respondent conceded that his clothing may have come into contact with Patient B during the examination however, he had no specific recollection of that occurring. 3. The Respondent wrote: "I might not have explained the reason for asking Patient B to stand up and examine her as outlined above. At the time I was grieving the death of my father who passed away on 27 July 2018 and the adequacy of my communication with Patient B may have been affected."
18. The HCCC also relied upon the written evidence of Patient C. Her evidence is found in exhibit A1 at Tabs 8, 15, 16 18. Dr Chong also referred to assisting Patient C lodge a complaint with AHPRA as we have set out above. His evidence is found at Tab 19.
19. At Tab 8 of exhibit A1 is a copy of the AHPRA online complaint form completed by Patient C. It is dated 18 September 2018. It sets out the name and date of birth of Patient C. It identifies the complaint made in relation to Dr John Lui. The complaint related to conduct of the Respondent on 10 September 2018.
20. The detail of the complaint is set out as follows: "I saw the doctor on 10 September 2018 to get my ultrasound results for abdominal pain and also to review my back pain. Both pains have settled significantly with medications. When he examined me by pressing on my back while I was standing, he was standing behind me. His body was pressing against me and I felt very uncomfortable. I felt sexually harassed by him because his body was touching my buttocks. I told him I have no pain during the examination but he persisted with the examination. After a while he examined me on the examination bed. Then he asked me to stand up again and with his body pressing against my (sic) and continue the examination. I tried to avoid and I sat down to avoid contact with him. At that stage I was afraid and just want to leave as soon as possible." (We note the text does not flow as well as it might)
21. In the AHPRA document Patient C uploaded her own handwritten document which is in the Chinese language. A translation of that document is set out at Tab 16 of exhibit A1. In that document we noted the following: I. Patient C attended the Wales Medical Centre on 8 September and 10 September 2018. She saw Dr John Lui on both visits. She had acute abdominal pain and a dull pain in her back. II. On the visit on 8 September 2018 Patient C's fiancé accompanied her. The examination was unremarkable. She said: "When he examined my back, by pressing on it, Dr Lui maintained a distance from me." III. On 10 September 2018 when Patient C returned for a follow-up consultation with Dr Lui she said "I was sexually harassed by Dr John Lui during this visit." IV. Patient C said: "He then asked me to stand up so that he could exam the area where I felt pain. I straightened my back, like I did on the previous occasion, and turned my back towards Dr Lui. However, unlike last time, Dr Lui pressed his "sensitive body part' against my buttocks. I could clearly feel that (as there was a noticeable temperature difference)… As time went by, Dr Lui maintained the same strange posture while applying pressure on my back. With his body pressing against my buttocks, he continued to press on my back even though I told him a few times that I didn't feel any pain." V. Continuing Patient C said: " I noticed in my peripheral vision that Dr Lui was standing in a 'horse riding stance' because I could see his knees on either side. It was very unusual! (I could also hear Dr Lui panting in an unusual way.) I began to suspect that it was an act of sexual harassment. …I felt extremely uncomfortable while he carried on with his examination." VI. "Dr Lui asked me to lie down on my back for him to examine my abdomen. However, he then abruptly asked me to turn over to lie on my belly." VII. Patient C set out that a further examination of her back was then conducted by Dr Lui. During that examination he stood very close to her with his body bent slightly forward. She said: "My face almost touched him."
22. On 22 February 2019 Patient C signed a statement she had prepared for the HCCC. That statement is set out at Tab 15 in exhibit A1. In that statement we note the following. 1. Patient C is 28 years of age and a university student. 2. On 8 September 2018 Patient C attended the Wales Medical Centre and had a consultation with Dr Lui at around 11.30am. Dr Lui spoke mostly in Mandarin with a Cantonese accent. She was accompanied by her fiancé to the consultation. 3. On 10 September 2018 Patient C saw Dr Lui again. The appointment was around 4.30 pm. During the consultation Dr Lui examined Patient C., she said: "While standing directly behind me, he pressed various points on my back and abdomen with his hands. His position was such that his whole genital area was pushed up against my buttocks. I was distinctly able to feel the heat from his body and he was breathing heavily, but I did not feel contact from his penis. The sensation definitely did not feel like clothing alone as I could feel the heat from his body. He was also in an unusual crouching position, and I could glimpse his knees. As he is a much taller person than me, he needed to lower himself for his groin to be level with my buttocks. He had not assumed this position when he carried out similar checks at the first consultation." 4. "Initially I thought I had misread the situation….After what felt like about thirty seconds, this consultation technique felt strange and unnatural…." 5. Patient C was asked to lie down and further examination took place of her abdomen and her back. She was then asked to stand again for further examination. For that examination Patient C said: "He moved to resume the same position as before, but this time I tried to stand side on to him deliberately. Nevertheless he crouched against me again, with his face close to mine." 6. Patient C said that she attended to see Dr Chong and told him of her complaint against Dr Lui. She said Dr Chong assisted with making the AHPRA complaint.
23. At Tab 18 of exhibit A1 is a set of hard copies of a WeChat between Patient C and a friend. The texts were exchanged on the day Patient C saw the Respondent and about which she makes her complaint. That is 10 September 2018. The Text messages show an exchange between Patient C and a friend. We note the following portions of messages attributed to Patient C. 1. "I went to see the doctor but was sexually harassed". 2. "I need to make a complaint". 3. "I went there alone today. I was too embarrassed to tell the receptionist. I wondered if I had got it wrong. Anyone would have some doubt after such an experience. So I didn't raise the issue". 4. "Ran away as soon as I could. Still don't know what the problem is after all those tests." 5. "I have seen plenty of perverts on trains in Shanghai but have never encountered one. Fxxx he is a doctor and looks like a decent person." 6. "Fxxx I promised myself never to set foot in that clinic again in my life."
24. Dr Chong, in his statement dated 25 May 2021, (Tab 19 of exhibit A1), gives evidence of an appointment made with him by Patient C and her fiancé's mother. In that he records a complaint made to him by Patient C about the conduct of the Respondent. He also records that he assisted Patient C with making her complaint to AHPRA.
25. A copy of the "Complete Record" medical records for Patient C, kept by the Wales Medical Centre are set out at Tab 43 of exhibit A1.
26. On 3 October 2018 the HCCC wrote to the Respondent enclosing a copy of the complaint made by Patient C against him (see Tab 33 of exhibit A1).
27. By letter dated 23 October 2018 the Respondent replied in the English language, to the letter of 3 October 2018 from the HCCC (see Tab 34 of exhibit A1). In that letter of response, we noted the following: 1. The letter opens with the following: In response to your letter dated 3/10/2018. File number: 18/04936. I refer to the Notice to Give Information/ Produce Documents under s21A of the Health Care Complaints Act 1993 ("the Notice") served on 11 October 2018. Pursuant to s.37A of the Health Care Complaints Act 1993, I object to providing the information and documents sought in the Notice, on the ground that the information might incriminate or make me liable to penalty." 2. The Respondent nonetheless provided information in response to the complaint by Patient C, provided to him by the HCCC. He set out a rather extensive narrative of his consultation with Patient C on 8 and 10 September 2018. In that narrative he acknowledged he had conducted an abdominal examination as well as an examination of Patient C's back on 8 September 2018. 3. On 10 September 2018 the respondent said he "conducted a physical exam of the patient". The Respondent wrote: "To the best of my recollection I examined (Patient C) in accordance with my usual practice and as clinically indicated. At no time during the examination was my body up against her buttocks, however my clothing may have come into contact with the patient's body during the course of the examination. I am now more conscious of the sensitive nature of physical examinations and my proximity to patients during examinations. I have taken this complaint very seriously and intend to engage in observation and review of my examination technique by a senior colleague. Further I accept that I may not have explained the reason for conducting the physical examinations of Patient C as outlined above. At the time of the examination, I was grieving the death of my father who passed away on 27 July 2018 and the adequacy of my communication with Patient C may have been affected."
28. The HCCC relied upon the written evidence of Dr Michael Golding who provided a report, as an expert witness, dated 21 August 2020.
29. In relation to that Report we have noted the opinion of Dr Golding in relation to each of the three patients about which his opinion was sought.

Dr Goldings Report 21 August 2020.

1. Dr Goldings report is set out at Tab 22 of exhibit A1.
2. There is no challenge, by the Respondent, to the credentials of Dr Golding as an expert witness.
3. Dr Golding set out the documents which had been provided to him. The documents which are at Tabs 23 and 24 are documents provided to him.
4. On page 1 of the report Dr Golding addressed "The Standard". This is an important concept to be defined at the commencement of the report as his opinion, as sought, requires a statement in relation to each question asked, of whether the conduct described, if found by the Tribunal to be established, is below the standard reasonably expected of a practitioner with an equivalent level of training or experience as the respondent, in this case.
5. "The Standard", as identified in the report, draws its wording from the provisions of s.139B(1)(a) of the National Law. That section is identified in the Complaint document as the section which the HCCC intends to establish the Respondent is guilty of breaching. The precise wording of the section is: "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."
6. Dr Golding also set out that during the report he refers to "The Code". That reference is to "Good Medical Practice: A code of conduct for Doctors in Australia Medical Board of Australia. An electronic link to that Code document was incorporated into the report. A hard copy of the Code was also included in exhibit A1 at Tab 38. The Report further refers to the Medical Board of Australia, Guidelines published 28 October 2011 dealing with the topic "Sexual Boundaries: Guidelines for Doctors. That document is contained at Tab 29 of exhibit A1.
7. Dr Golding was asked to provide his expert opinion in relation to each of the complaints detailed by Patient A, Patient B and Patient C.
8. The report commenced with addressing questions asked by the HCCC in relation to Patient A and Dr Golding was asked to assume that the facts provided by Patient A, in her written statements, provided to him, were accurate. In reviewing the evidence of Dr Golding, we will refer to that evidence in which he opined, the conduct was "significantly below the standard" where it is particularised in the Amended Complaint document.
9. On the basis of the acceptance of Patient A's evidence, Dr Golding was asked for his opinion in relation to the evidence of Patient A that she was not provided with privacy (from the eyes of the Respondent) to change into her underwear as she was asked to do by the Respondent in the consultation. Dr Golding opined that asking the patient to undress without providing adequate privacy is below the standard.
10. Dr Golding was asked to provide his opinion in relation to the manner in which the Respondent conducted the examination of Patient A, in particular the examination of the back of Patient A where, on her evidence, he allowed his groin to be in contact with Patient A's buttocks.
11. Dr Golding opined that "allowing his groin to come into contact with the body of Patient A is significantly below the standard". Dr Golding said: "Patient A describes an examination of the mole on her abdomen by Dr Lui who examined the mole while standing behind her and reaching an arm around her to palpate the mole on her stomach. This is not a recognised type of abdominal examination and in my view is only likely to be ineffective, but will inevitably lead to unnecessary physical contact with the patient and in my view is not consistent with s. 3.2.6 of the code: 'Recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients.' In my view, the abdominal examination is significantly below the expected standard."
12. Dr Golding was asked to opine on the Respondent's stated "usual examination technique for examining moles on a patient's skin" as described by him at the s.150 hearing on 13 November 2018.
13. The opinion provided on that request is as follows: "An examination for skin lesions should include exposure of all skin on the body. The use of a dermatoscope does require the examiner to be in close contact with the patient. An examination couch is ideal for this purpose. Standing behind a patient and asking them to lean forward while examining their back or then kneeling down behind them to examine the back of the legs is not a supported or recognised examination technique. It is not only difficult to examine adequately using these techniques but leads to contact with the patient that is inconsistent with s 3.2.6 of the Code. (the provision was repeated as above). In my view, the technique that Dr Lui describes to examine the torso and back of the legs with a dermatoscope is significantly below the standard."
14. In relation to Patient B, Dr Golding was asked to give his opinion in relation to the method of examination of Patient B's abdomen by the Respondent as described by Patient B. Dr Golding stated that examination of the abdomen from behind is significantly below the standard.
15. In relation to this last opinion, we note that in her written evidence Patient B had described the Respondent standing behind her and hugging her. In her oral evidence she described this "hug" further as the Respondent reaching around her from behind. She said it was not really a hug.
16. In relation to the evidence of Patient B that the Respondent had made contact between his groin and her buttocks during the examination, Dr Golding opined: "There is no clinical requirement to be in such proximity to the patient. Making contact with (Patient B) is significantly below the standard.
17. Dr Golding was asked to accept the Respondent's version of his examination of Patient B. Dr Golding said: "In his letter to the HCCC, Dr Lui described his method of examining the inguinal canal. This involves standing behind the patient and reaching around the patient to palpate the inguinal canals. This is not a recognised technique. I do not see any advantage to examining the inguinal canals from behind and this technique will inevitably result in personal contact between the donor and the patient which is inconsistent with s 3.2.6 of the Code. The technique is also inconsistent with s. 8.2.1. of the Code: Maintaining professional boundaries". In my opinion this technique of examining the inguinal canals is significantly below the standard."
18. Based upon the evidence of Patient B Dr Golding was asked to opine whether the Respondent provided an adequate explanation for the examination(s) he was (performing). Dr Golding referred to the evidence of the Respondent in his letter to the HCCC where he said he might not have given an explanation to Patient B as he was grieving for his father who had passed away one month earlier.
19. The evidence of Patient B was that she was not told what the Respondent had found or concluded from his examination of her.
20. Dr Golding opined: "In my view, if Dr Lui was affected by grief to this extent then he was not in a fit state to practice. This is inconsistent with s. 1.4 of the code: 'Professionalism includes self-awareness and self-reflection. Doctors are expected to reflect regularly on whether they are practicing effectively (and) on what is happening in. their relationships with patients.' In my view, the lack of explanation is significantly below the standard."
21. (We Note here that during the cross-examination of Dr Golding by the Respondent, he was referred to some evidence given by the Respondent in the s.150 hearing where he said he asked Patient B to lie down so he could check her abdomen. Dr Golding said that assuming that was said, he would not be critical of the Respondent in relation to that provision of information to Patient B).
22. Dr Golding was asked to provide an opinion on the adequacy of Dr Lui's clinical record in respect of the events he stated had occurred and of any proposed management plan.
23. Dr Golding said the Code at s. 8.4.1 requires: "Keeping accurate up to date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management. The medical notes made by Dr. Lui on 16 August include reasons for presentation and examination findings. There is no differential diagnosis, no management plan, no outline of what he had told the patient, no plan for what should occur in the future and no record of discharge instructions given to (Patient B). In my view, the medical notes of Dr Lui are significantly below the standard."
24. The question's asked of Dr Golding by the HCCC then turned to Patient C. Dr Golding was asked to accept the version of fact provided by Patient C and answer "Please provide your opinion in relation to the appropriateness of Dr Lui's manner and conduct in positioning himself to stand directly behind the patient while conducting an examination of both her back and abdomen?" This question addressed both examinations of Patient C on 8 and 10 September 2018.
25. Dr Golding answered that question as follows: "At a second examination on 10 September 2018, Dr Lui again performed a back and abdominal examination; this time while standing behind (Patient C). (Patient C) was again fully clothed during the examination. This is not a recognised method of abdominal examination and is significantly below the standard."
26. Dr Golding was asked (assuming the accuracy of Patient C's version of fact) "Please provide your opinion in relation to the appropriateness of Dr Lui's manner and conduct in making contact between his 'whole genital area' and Patient C's buttocks for a prolonged period of time to such a degree that she felt the heat emanating from his body?'" In his response Dr Golding referred to s. 8.2.1 of the Code (Maintaining professional boundaries) and s. 3.2.6 (power imbalance). He then opined: "In my view, allowing this type of contact with a patient is inappropriate and significantly below the standard."
27. In relation to methodology of examining Patient C's abdomen from behind, Dr Golding said: "In my view, abdominal examination from behind the patient is inappropriate and significantly below the standard."
28. Dr Golding was then asked to accept the version of fact provided by Dr Lui in relation to his consultation with Patient C and on that assumption, provide his opinion in relation to Dr Lui's stated "usual examination technique", for examining a patient presenting with back pain, as he described in his evidence in the s.150 hearing on 13 November 2018. Dr Golding focused his opinion on the evidence from Patient C, that the examination of her back on 8 September 2018, was conducted by Dr Lui without her having first removed clothing covering her back. He opined: "Physical examination should not be performed without removing clothing unless, in exceptional circumstance. In my view, this method of examination is significantly below the standard."
29. Dr Golding was then asked to consider the examination of Patient C by Dr Lui on 10 September 2018, as he said it occurred. Again he was asked to accept the evidence of Dr Lui given to the s.150 hearing on 13 November 2018, as to his "usual examination technique for a patient presenting with abdominal pain (and constipation). Dr Golding opined that in relation to the abdominal examination of Patient C from behind, "this is not a recognised method of performing an abdominal examination is not only ineffective, but likely to result in inappropriate contact with the patient that is inconsistent with s. 8.2.1 of the Code. …. In my view, examining the abdomen from behind is significantly below the standard."
30. Dr Golding also provided his opinion that an abdominal examination should be conducted while the patient is lying down. He said "Examination from behind is not a recognised technique for abdominal examination in any circumstance. He opined that the abdominal examination conducted by Dr Lui is significantly below the standard.
31. The next aspect of the consultation conducted by the Respondent with Patient C addressed the communication between the Respondent and Patient C during the consultation. Dr Golding was asked whether the reported communication was an adequate explanation for the examination(s) he was conducting and the techniques employed.
32. Dr Golding said: "In her complaint, (Patient C) says at no stage did Dr Lui explain what he was looking for nor what he had found. In my view, the communication with (Patient C) is significantly below the standard.
33. Dr Golding was asked to provide his opinion as to the appropriateness of the record keeping for Patient C in relation to the consultation with the Respondent on 10 September 2018. Dr Golding was critical of the records made by the Respondent in that there was no mention of the result of the ultrasound performed on (Patient C) on 7 September 2018, which was the reason for her return visit. There was no mention of the lump which Dr Lui described in his s. 150 interview, which he thought might be something more serious. There was no differential diagnosis, no management plan, no outline of what he had told Patient C, no plan for what should occur in the future and no record of discharge instructions to Patient C.
34. Dr Golding opined: "In my view, the medical notes of Dr Lui are significantly below the standard.
35. The HCCC also relied upon a part of the written reasons provided by the Medical Council delegates after the s.150 hearing. It relied only upon the written portion of pages 10 and 11 which set out the order made by the Medical Council following the hearing.
36. In relation to the transcript of the s.150 hearing the HCCC relied upon the transcript as it was set out at Tab 5 of exhibit A1 with the exception of the material which is presented between line 25 on page 51 and line 46 on page 57. Further the HCCC did not read from line 20 on page 59 to the end of the transcript.

Oral Evidence of Patient B

1. Patient B gave oral evidence. She did so with the benefit of an interpreter. We hereafter set out the oral evidence of Patient B which we considered important in the determination of the Complaint brought by the HCCC.
2. As the statement of Patient B did not contain an attestation of interpretation to her at the time of its signature by her, that document was interpreted to her by the sworn interpreter assisting the Tribunal with the giving of her evidence.
3. Whilst the statement was being interpreted, Patient B informed the court that in relation to paragraph 15 of her statement where she had stated "he hugged me from behind as he examined me" she wished to correct that to say "he put his arms around me, like in a circle, from behind as he examined me."
4. At the conclusion of the interpreting of the statement to Patient B the interpreter said: "The patient just said there is no further correction to the content". "The Patient also said: 'It's been a long time since the incident when she made this statement that you can tell from the content that she couldn't remember some of the detail too well'." Patient B confirmed that the content of the Statement was true and correct.
5. (We noted that during the course of Patient B having the Statement interpreted to her and the evidence given immediately thereafter she became distressed and tearful on a number of occasions.)
6. Patient B was asked to look at the portion of the complaint form she made to AHPRA (Tab 7 exhibit A1). That part which describes what she was complaining about was translated to her. She confirmed that the content was true.
7. Patient B was cross-examined.
8. Patient B was asked about the appointment she had with Dr Chong where he assisted her to make the on-line complaint with AHPRA. She was asked if there was another appointment she had with Dr Chong between the 16th August 2018 (the date of her consultation with the Respondent) and the date she made the AHPRA complaint on 4 September 2018. She said: I remember all the details exactly what happened, but all I can remember is after the incident I tried to book an appointment with Dr Chong as quickly as possible."
9. Patient B was asked if the first time she wrote anything about the complaint was with the help of Dr Chong. She said: "Honestly, I can't remember all the dates that clearly…I sat down with Dr Chong, I went through the incidents with him and we together filled out the form for the complaint and when he put everything in English I read it and confirmed that is what I meant."
10. It was put that Patient B had said in evidence she "can't remember details too well. Do you remember saying that?" (We note that was not her evidence. She had said she could not remember dates too well.)
11. Patient B answered the above question as follows: "What I meant was back in 2018 when the incident happened and when we were filing the complaint, I could vividly remember what just happened at the time but that statement (the statement made for the HCCC) was prepared in 2021, that was three years after the incident happened. I couldn't remember as much detail as I did back in 2018, partly because I was trying to forget about the incident."
12. Patient B was then asked very detailed questions about the sequence of events she said had occurred between she and the Respondent on the day of the incident, about which she complained. She was asked whether she went into the consultation room before the doctor. She said she could not recall exactly. She was able to remember the layout of the room describing where the doctor's desk was situated and where she sat just in front of the desk. She described how the desk was pressed against the wall on two sides (in the corner of the room). She said she was sitting next to him "not facing him directly."
13. Patient B agreed that there was conversation between she and the Respondent until he carried out an abdominal examination of her. That occurred on the examination bed. She described the position of the examination bed as being just as you enter the consultation room. "You see it directly ahead of you as you enter the room".
14. For the abdominal examination Patient B said she lowered her pants to about the top of her underpants and she lifted her top to just under her bra.
15. In her oral evidence Patient B cleared up a possible misunderstanding about her written evidence. She stated clearly that during the abdominal examination, the Respondent only touched her body in the area between the top of her underpants and the bottom of her bra.
16. Patient B was then asked about that part of the examination which occurred while she was standing. She described how he circled his right hand around her, from behind, to examine the abdomen and asked her if it hurt or not (where he was touching). Patient B said she was extremely scared at that time because she didn't know why the Respondent wanted to conduct that examination. Patient B was asked about the words she had used in her on-line complaint document where she wrote "palpating the right side of the lower part of my breast". She was asked: "Did Dr Lui touch any part of the outside of your bra during the examination?" She responded: "No, he didn't touch the bra but the lower part - so the area under the bra only".
17. Patient B was asked: "You would agree that you can't be sure if he moved around behind you because you were facing away from him?" She answered: "No, I disagree with that statement because my - he was standing behind me with his arms circled around me and my buttocks was touching his body, so if he moves I can definitely feel that."
18. Patient B was asked if she could describe what part of her buttock was in contact with the Respondent. She as it was "closer to the right buttock cheek". She was asked if at any time she turned around to look at what the Respondent was doing. She said: "No, I didn't look because I was growing numb at the spot, I was extremely scared and I just want to finish this as quickly as possible and leave."
19. Patient B was asked about interactions between the Respondent and herself after the standing position examination and while the Respondent was writing a report. She agreed he was sitting at the desk. It was put that he applied cryotherapy to a corn on her foot before she lefty the consultation. She said she could not remember that.
20. Patient B was asked about her assertion that the Respondent had an erection during the consultation. We set out here the portion of the transcript which set out that evidence. Q. Do you agree that the online complaint does not mention anything about an erection? A. INTERPRETER: I did tell the story to Dr Chong when I was discussing with him. So at the time when he finished examining me, the doctor finished examining me, he put his right left on top of his left leg. And because his right leg was on the very high position, the reason I noticed that was because usually the doctors don't cross legs when they talk to a patient. I haven't come across where the doctor like that and also in Asian culture particularly, it's rude to cross your legs when talking to someone in general. So when I saw that happen, I knew immediately what was happening. And even when we talk about crossing legs usually two legs will be very close to each other without a gap but he was leaving a gap in between with right leg up higher. That's why at the time I was immediately disgusted by such position and after the incident for extended period of time, I couldn't have sex with my husband. I was married at the time but I just couldn't do it. Q. Can I go back to the question that I asked you-- HIS HONOUR: Just one moment. Q. Before we go on, did you say you had told Dr Chong when he was helping you fill out the online complaint that you had seen Dr Lui had an erection, did you tell Dr Chong that? A. INTERPRETER: Your Honour what I said to Dr Chong at the time was because the position Dr Lui's legs they were crossed in, I immediately thought he must have an erection at the time, that's what I said to Dr Chong. Q. And just so I'm clear about this, the reason you thought Dr Liu had an erection was because of the way he had crossed his legs, is that right? A. INTERPRETER: Yes your Honour. The reason I had a conclusion at the time was because of the position his leg were crossed and obviously it wasn't a comfortable position for him and he also shows signs of disguising the erection from me and because I was married already at the time, so I knew a thing or two about the physical reaction a man can develop at certain circumstances. That's why I knew immediately and he make me feel disgusting. Q. I don't understand what you mean by he was disguising that from you. Can you tell me why you said that? A. INTERPRETER: What I meant your Honour was because I saw he put his legs on a much higher position than usually a man would cross his leg right so I come to the conclusion that it must be that he didn't want me to see the erection so he was trying to disguise that from me and obviously I wasn't looking, paying a lot of attention to his private area, I was really just had my - I get my head down and trying to complete this as quickly as possible.
21. It was put that the Respondent did not touch Patient B's buttocks. She replied with dramatic reaction. Her words were: "Everything I said and according to record are truths, something that I have experienced. I was tortured by what happened in the last few years, without experiencing it myself, how can I put it in words."
22. It was then put that Patient B was mistaken about the Respondent having an erection at any time during the consultation. The reply was: "Obviously I didn't see the erection directly but the behaviour from the doctor suggest that he was behaving abnormally. At the beginning of the consultation, he was sitting without having legs crossed. He was sitting just normally as everyone else will but after what he did to me, he started crossing legs and put the right leg on a much higher position than normally would be. It is very difficult and hard for me not to suspect he was having an erection seeing what I have seen and his - the position of the right leg on top of the left was so high and it was definitely in a very abnormal position."
23. Senior Member Fogarty asked Patient B questions. We record those questions and answers below: Q. Thank you. My next question is when the doctor examined you from behind and touched your abdomen, was his right hand under your clothing, that is on your skin or was it on the outside of your clothing? A. INTERPRETER: With the clothes on so not directly touching the skin Doctor because at the time I was already up. Q. Thank you. I really wanted just to ask this question though. Patient B, you said that even after the examination on the couch, when you stood up, prior to the further examination when you were standing, that at that stage you were very anxious that you just stayed still. What was it about that phase of the examination that made you so anxious, where you'd gone into the consulting room, had a discussion, climbed onto the - and being examined. So can you explain to me what were the aspects that made you very anxious? A. INTERPRETER: The main reason was because when I had similar checks or examinations with my GP, usually when it comes to the abdominal area or other close to private parts area, then he would usually have a female doctor come in to have the check done. Obviously wearing no gloves while checking with or freezing hand always make patients uncomfortable so that's part of the reason as well and there are other things that I can't really put into words. Just the way he did the checks make me feel it's not the normal procedure that any doctor would do because as you probably remember, I met this doctor once, a long time ago. I couldn't recall the details but when I saw her(as said) it already sort of make me nervous because the last experience wasn't that good. But I still kept on saying to myself when I was lying on the bed or on the couch that this is probably normal so I shouldn't just go paranoid about this.
24. We have considered the manner in which Patient B gave her evidence and the content of that evidence. We find that she gave her evidence in an apparently honest manner. There was nothing about the presentation of Patient B or her demeanour during the giving of her oral evidence which raised a concern about her veracity. We are satisfied that the experience Patient B had in her last consultation with the Respondent left her shaken, distressed and determined never to engage his services again. It moved her to complain to Dr Chong about her treatment by the Respondent.
25. We do find that Patient B was suspicious of the Respondent even before her consultation with him on 16 August 2018. We find that may have elevated her expectation that he would deal with her in a manner which she regarded as unsatisfactory. She was concerned when he commenced his examination of her without using gloves. His hands were cold on her body as he examined her abdomen. She was concerned there was not another person present as he examined her (a chaperone).
26. We are satisfied however she did not intend to mislead or exaggerate when she made her written complaint and statement when it appeared she was suggesting the Respondent had conducted a breast examination. She was quick to point out, with the aid of an interpreter as she gave her evidence before us that the Respondent did not examine her breast during the consultation. We also do not find she intended to exaggerate or mislead by describing the action of the Respondent in his examination of her abdomen while she was standing and while he was standing behind her as a "hug". We accept she was not attempting to describe some action of affection from the Respondent upon her.
27. We are satisfied that the Respondent conducted an abdominal examination of Patient B whilst standing behind her and reaching his right hand around her to examine her abdomen or part thereof. We are satisfied she was fully clothed at that time and the touching of her abdomen was through her clothing and not on her bare skin.
28. We are also satisfied that the Respondent did examine Patient B whilst she was standing, with him standing behind her and reaching around her body so that his hand could palpate part of her abdomen, including the right inguinal canal. So much is clearly admitted by the Respondent.
29. We are satisfied that Patient B felt the Respondent's body come into contact with her buttocks during the standing examination of her abdomen and/or her inguinal canals. We are satisfied that such contact was disturbing, confronting and distressing to Patient B. We find she was entitled, in the circumstances, to conclude that the Respondent was pressing his groin against her buttock.

Oral Evidence of Dr Chong

1. Dr Chong gave oral evidence. We noted the following from that evidence.
2. Dr Chong confirmed he made a written statement dated 25 May 2021 and that the Statement is true and correct to the best of his knowledge.
3. Dr Chong confirmed he had assisted Patient B to make a complaint to AHPRA about the Respondent. He was shown the passage of the complaint of Patient B which appears at Tab 7 of exhibit A1 (and at page 4 of that document) and he confirmed that was the complaint he assisted with.
4. Dr Chong was also asked about assisting Patient C with making a complaint to AHPRA. He was shown that part of a document which appears at Tab 8 of exhibit A1, (and on page 4 of that document). He confirmed that is what he assisted Patient C to include in the complaint.
5. Dr Chong was cross-examined by the Respondent's counsel.
6. Dr Chong confirmed that at the time he assisted Patient B to fill in a complaint form it was the second time she had complained to him about the Respondent. On the first occasion Patient B had complained to him Dr Chong said he thought she was describing a very thorough examination which had been performed on her by the Respondent. He confirmed, after consulting his records, that the first complaint Patient B made to him about the Respondent was about a consultation which had occurred on a different date to the 16 August 2018 consultation which was the subject of the complaint to AHPRA.
7. Dr Chong was cross-examined at length about the content of the statement he signed for the HCCC and relied upon in this hearing. The Respondent's counsel, as best we understood was seeking a concession from Dr Chong that Patient B had made two complaints to him about the same incident which occurred on 16 August 2018 and in relation to which Dr Chong initially took no action because he did not consider Patient B was raising a matter of concern.
8. However, Dr Chong, whilst apologising for any confusion which arose for the way in which his statement made for the HCCC may have confused the Tribunal, he was clear that there were two separate complaints made to him by Patient B. The first complaint was raised by Patient B in relation to a consultation she had with the Respondent before 16 August 2018. The second complaint made by Patient B to him was made in relation to a consultation Patient B had with the Respondent on 16 August 2018. It was that consultation which was the subject of the AHPRA complaint he had assisted Patient B to make.
9. Dr Chong said in his oral evidence: "From my memory, I remember the patient telling me before, before the incident on 16 August, she told me, I told you something like this before and you brush it off. She actually said that to me, so that's quite vivid in my memory."
10. Dr Chong was asked if he was aware of a Wechat Message group about the Respondent. He said "No." (We note that the Transcript at page 83 line 30 has the answer recorded as "No, sorry no. Yes". The Principal Members written note of the answer to that question is "No").
11. Dr Chong was then questioned about his involvement in the complaint made by Patient C to AHPRA. He was asked if the complaint was about a consultation Patient C had with the Respondent on 10 September 2018. He consulted his record and agreed. He agreed that Patient C's fiancé's mother had attended on Dr Chong on about 12 or 13 September 2018.
12. Dr Chong said he was told about the WeChat Group which spoke about the Respondent after he had helped Patient B lodge her complaint with AHPRA. However, he said he was not part of that WeChat Group and had not seen any posting about the Respondent. He did not think Patient C's fiancé's mother had spoken to him about the WeChat Group. He had told her to bring Patient C to meet Dr Chong and he would help her make an AHPRA complaint. Patient C had attended on 18 September 2018.
13. Dr Chong thought he had told Patient C that he had another patient who had made a complaint about the Respondent. He did not think he had given any detail of Patient B's complaint.
14. Dr Chong could not remember if Patient C used the words "private areas" as he had used in paragraph 10 of his statement. He also said he knew that Patient C had written her own statement in her native tongue however, he did not read that statement.

Patient A Oral evidence

1. Patient A identified a copy of a letter she wrote on 15 May 1997 (Tab 6 of exhibit A1). She identified a copy of a Statement she signed on 2 May 2019 (Tab 9 of exhibit A1). It attaches a copy of her letter of May 1997. She said the contents of the Statement were true and correct. She further identified a copy of a Police Statement she signed on 9 May 1997 (Tab 11 of exhibit A1). She said that statement was true and correct. There was a second statement made to Police which she identified as having been signed by her 15 May 1997. She said that statement is also true and correct.
2. Patient A was cross-examined.
3. Patient A agreed the consultation she had with the Respondent was on 8 May 1997. After the consultation she had returned to work and spoken to work colleague Ms Seton. She agreed she had telephoned her mother however, she could not recall if that happened the same day. If she called from her work she said it would have been the same day as the consultation. She also spoke to her mother's partner on the same phone call. He was a Police detective. She said that her mother's partner had rung her to advise he had spoken with Detective Hollinger.
4. Patient A was asked to concede that her memory today of the consultation with the Respondent is not as good as it was when she made her complaint to the HCCC and to the Police in 1997. She did not agree that was the case. She said her memory of certain parts of the consultation is still as good as it was in May 1997.
5. Patient A said she had received a copy of the Police Statement made by Ms Seton, however she could not recall who had given her that copy. It was however, in 1997 that she received it. She last read that statement in 2019 and she read it before making her HCCC Statement in 2019.
6. Before signing her statement made 9 May 1997 Patient A said she read the statement. She also knew she could add to her statement if she needed to. She did that by making another statement on 15 May 1997.
7. Patient A was asked whether she or Dr Lui went into the consultation room first on the day of the consultation. She could not recall. She was able to say, when asked what she saw as she entered the room on her left: "The examination table". She was able to say there was a doctor's desk and a window behind it. The doctor's chair faced the door. She said there was a screen against the wall on the side opposite the examination table as she entered the room (on her right). She did not remember if she went behind the screen at any time.
8. Patient A was asked about undressing so that she was in her bra and underpants for the examination. She said she undressed near/beside the screen rather than behind it.
9. Patient A was asked very specific questions about what was said by her during the consultation and also the sequence of events. In many instances she said she could not recall/remember and was unable to answer the question.
10. Questions were then asked of Patient A in relation to the events she described in her statement as occurring whilst she was standing and being examined by the Respondent. She was unable to recall where she was standing in the consultation room when that examination took place. She was asked about the content of paragraph 8 of her 9 May 1997 statement where she described the Respondent standing behind her and reaching around with his right hand to push on the mole on her stomach. She was asked where the Respondent's left hand was at that time. She said she did not know. She agreed that she could not see behind her at the time of that examination as she was looking straight ahead.
11. In relation to the statement she made to Police on 9 and 15 May 1997 there is no mention of the word "dick". It was put that it was only after she read the statement made by Toni Seton that she made the HCCC statement and "added to the account a reference to "dick" and a dick being put into your bum." She denied that.
12. Patient A agreed that in the Police statements made in May 1997 she had only referred to the respondent's "groin" and his "pelvis". She agreed that was also the case for the letter she wrote to the HCCC in May 1997.
13. In relation to the making of her Police statements Patient A agreed that as that statement was being prepared by the police officer, he asked her clarifying questions.
14. Patient A agreed that the first time she made any written complaint, in relation to the Respondent, which referred to the word "penis" is in her HCCC statement in 2019.
15. In answer to the question: "Was the reason you went to the police because you wanted to report an assault of a sexual nature by a doctor?" Patient A replied: "Yes." "Is your evidence that you did so but forgot to mention a penis at all?" Patient A said: "I think the word groin was used to be polite to be honest."
16. There were a series of three questions and answers which we noted as follows: "Q. And you attended the police on a second occasion to make a further statement to provide more detail and more accuracy, do you agree? A. I went to tell the police more memories of the incident yes. Q. But you didn't tell the detail in it that you say was the case in relation to a penis? A. I used the word groin. Q. What I'm suggesting to you is that the mention of penis in your HCCC statement is an exaggeration of what you-- A. No."
17. Patient A denied the assertion that she was mistaken about the Respondent "having pushed his penis into you at any time". She also denied she was mistaken as to the Respondent's groin or pelvis coming into contact with her at any time.
18. When pressed as to where on her "backside" the Respondent's groin was touching she said: "On the buttock". She was unable to recall if the contact was on one side of the buttock. When pressed further she said: "It was on my buttock. Sort of in the centre. Like not directly in line with my centre of my buttocks, but it was more to the centre of one of my buttocks. Not directly in the centre". Pressed further about that topic she said: "So both my buttocks were in contact with the doctor's groin but his penis from my memory was towards my anus on the right buttock."
19. In re-examination Patient A was asked the following question and gave the reply we set out here: "Q. Patient A you referred to - you were asked some questions about groin and penis or dick and my question is this. In 1997 what was the difference to you between groin on the one hand and penis on the other? A. I was trying to be polite. Using the word penis, like I know I felt and erect penis but the police wrote the statement and I don't know if that was because the police used the word groin, never used the word penis. I was a 24 year old young lady. In those days I was embarrassed."
20. The Principal member of the Tribunal asked Patient A the following questions flowing from the Police statement made by Ms Toni Seton in May 1997, to which she gave the answers appearing below (as recorded on the transcript) Q. So in her statement she says she had a conversation with you after lunch on 8 May 1997 and I think that was the day that you'd been to see Dr Lui, is that right? A. Yes. Q. And she said that you said to her, "I've just come back from the clinic" and she asked you, "how did you go"? A. Yes. Q. And that you replied, "It was okay but I had an Asian doctor who was a bit sleezy. I have to get two moles removed"? A. Hm mm. Q. Do you remember saying those words, do they sound like your words? A. I remember saying to her the doctor just got his rocks off on me. Q. We'll come to that in a minute I think? A. Sorry. Q. And she said: "What happened", and you said: "He was standing behind me checking the mole on my stomach but he had his groin up against me". Do you remember saying those words to her or words like that? A. I wouldn't have said - I remember but I wouldn't have said groin to her. I would have used the word dick. Q. Now this is in her police statement? A. Right. Q. Then she said, "What do you mean?" and she said you said, "I could feel his dick sticking into my bum". Now that word 'dick' in 1997 do you recall was that sort of consistent with how you would have described a penis at that stage? A. Yes. Q. And she says in the police statement about an hour and a half later on that same day you came back to see her, do you recall doing that? A. Yes. Q. And she asked you how are you and you said, "I can't stop thinking about that sleezy doctor it makes me feel sick"? A. Hm mm. Yes. Q. Did you say that, right? A. Yep. Q. And she said to you, "Well you just have to try and forget about it"? A. Yes. Q. And that you said, "I can't"? A. Hm mm. Q. Is that right? A. Yep. Q. And that she said "Well maybe you should do something about it" and that you said, "Well if I don't feel any better tomorrow I will"? A. Yep. Q. Is that sort of consistent with your recollection of the conversation on the day all this happened? A. Yes it is.

Oral evidence of Toni Seton

1. Ms Toni Seton was required to give oral evidence. She did so and we noted the following from that evidence.
2. Ms Seton was asked about her statement made for the HCCC and dated 5 June 2019. She said the statement was true and correct. She also agreed she had signed a Police Statement on 14 May 1997. She said that statement was also true and correct.
3. Ms Seton was cross-examined by counsel for the Respondent.
4. Ms Seton agreed that she and Patient A were flat mates in 1996 and 1997. She agreed that on 8 May 1997 Patient A complained to her about a consultation she had with a doctor. She agreed she accompanied Patient A to a police station the next day. She was aware Patient A made a statement to police that day and left that interview with a copy of her statement. She could not remember if she read that statement before making her own statement to police on 14 May 1997. She had not read the statement made by Patient A to police after 14 May 1997.
5. Ms Seton stated that the 14th May 1997 was the first time she made any record of the conversation she had with Patient A on 8 May 1997.
6. Ms Seton was asked detailed questions about the process of having her statement recorded by police. She did not remember sufficiently to answer most of the questions asked. Ms Seton denied at any time providing a copy of the statement she made to police, to Patient A.
7. Ms Seton was asked about paragraph 4 of her police statement and asked if that was a summary of what Patient A had told her after returning to work on 8 May 1997. In relation to her statement made to HCCC on 5 June 2019 Ms Seton was asked about the statement that Patient A was crying. She was asked when that had occurred. Ms Seton said she could not remember. This question was asked following the concession from Ms Seton that she had not said that Patient A was crying in her police statement. She had said she noticed Patient A had red eyes (consistent with the possibility she had been crying).
8. Ms Seton was asked about paragraph 13 of her HCCC statement. There she had said that Patient A had told her the Respondent had an erection and Patient A could feel his penis pushing against her bottom. She was taken to the Police statement made by her in 1997 and there her attention was drawn to the use of the words "groin" and "dick" which she says were used as descriptive in relation to the Respondent by Patient A. Ms Seton was asked: "Q. Are the different words used in both of those statements by you, because you aren't sure about which word was used - which word or words were used by patient A on the day?" Ms Seton answered: "Correct".

Oral evidence of Patient C

1. Patient C gave oral evidence. We noted the following from that evidence.
2. Patient C stated that the statement dated 22 February 2019, signed by her was true and correct. She confirmed that the statement had been read to her on the day she was giving her evidence, in the Mandarin language by the interpreter engaged to assist the hearing. She was also asked about a complaint she made to AHPRA on 18 September 2018. She said that document had also been interpreted to her in the Mandarin language that day (the hearing day) and she was satisfied it was true and correct.
3. Patient C was asked about a document which she attached to her AHPRA complaint document. She said she had written the document in the Chinese Mandarin language. She had written the statement on the same day as the consultation with the Respondent or possibly the day after.
4. Patient C was asked to identify a six-page copy of text messages. She said it was a copy of a conversation she had with someone called Zoe H. The words in green type are Patient C's words. The conversation occurred on 10 and 11 September 2018. (We note that document forms part of Exhibit A1 at Tab 18).
5. Patient C was cross-examined by counsel for the Respondent.
6. Patient C was asked questions about the consultation with the Respondent on 10 September 2018. She agreed the consultation occurred at about 4.30pm on that day.
7. Patient C said that she had spoken to her fiancé's parents on 10 September 2018. She was living with them at that time.
8. Patient C saw Dr Chong and at that time he told her there had been another/other complaints about the Respondent. She denied her fiancé's mother told her of a WeChat message group. She said Dr Chong had told her of a WeChat group message about the Respondent.
9. Patient C thought that she had seen Dr Chong on the same day as the AHPRA complaint was made because he helped her with making that complaint. She said in that meeting with Dr Chong he told her he was aware of other patients who had made a complaint about the Respondent. That complaint was sexual harassment. He gave no further detail to Patient C about a WeChat group message. Patient C had not become part of a WeChat Group meeting.
10. In relation to when the hand-written document Patient C had put together and which she attached to her AHPRA complaint, was created, she was not sure. However, she believed she had been asked by her fiancé's mother to write down what she remembered of the consultation before she went to see Dr Chong. She thought her fiancé's mother had been asked by Dr Chong to request that Patient C do that. She had the document she had written in Mandarin with her when she visited Dr Chong on 18 September 2018.
11. Patient C was asked for detail about the consultation with the Respondent on 10 September 2018. She said she thought the Respondent was in the consultation room when she entered. When she entered the room she saw an "examination bed" in front of her. On the right was his desk with his computer and chair. She sat on a chair just to the right of the desk. When seated she was looking towards the examination table. The Respondent's back was to the examination table when he was sitting at the desk.
12. On the earlier appointment Patient C had with the Respondent (when she was accompanied by her fiancé), she had been given a referral for an ultrasound. Her visit on 10 September 2018 was to view the result of the ultrasound. When she attended that appointment on 10 September 2018 she was still experiencing pain.
13. Patient C was asked about the examination conducted by the Respondent whilst she was standing on 10 September 2018. She agreed she was fully clothed for that examination. That examination took place in front of the chair she had been sitting in. Her back was to the Respondent. She agreed the Respondent examined her abdomen whilst he stood behind her. She could not recall which hand he had used. She remembered he was standing behind her but could not recall him moving from side to side.
14. Patient C was asked to confirm her statement that she did not feel the Respondent's penis touching her but she did feel the heat from his body. She also confirmed he was in an unusual crouching position, she said a horse riding stance. In the hearing there was discussion between the witness and the interpreter as to whether the Mandarin word she had used in her hand written document meant "horse riding stance". The Interpreter consulted a dictionary and said the translation would be "firm stance". Patient C said it was a stance like "you crouch a bit then you place your leg like that for you to be able to stand". It was put that Patient C couldn't see what else was happening behind her at the time. She said: "No, I was terrified. I just can't move."
15. Patient C was asked about the height difference between the Respondent and herself. She said she is short, even for a Chinese woman. She is 1.6 metres tall. She said the Respondent was about 1.8 metres tall.
16. Patient C was asked if the Respondent stayed in a crouching position behind her for about 30 seconds. She said she didn't count but she thought it was between 30 seconds and a minute.
17. During the examination whilst the Respondent was standing behind Patient C and pressing on her back and abdomen, he asked her if that pressing hurt on each occasion he pressed. Patient C said that although it did hurt, she told him it did not.
18. Patient C was then asked about the examination which took place on the examination table. She confirmed she was fully clothed at that time. She was asked about the "metal clinking sound" she said she had heard. She said it could have been keys however it disturbed her because she was lying on her stomach and she couldn't see what the Respondent was doing. She was concerned the sound came from a medical instrument.
19. Patient C said she was asked to stand after the examination on the bed. She said this time he examined her from the side.
20. (At that point in the cross-examination the witness became tearful and asked for a short break. We took an adjournment for 20 minutes. After the hearing resumed Patient C sought to apologise for her distress.)
21. Patient C was asked about the second examination which the Respondent performed whilst she was standing. She was taken to her hand-written statement document (for the Tribunal the English translation) and taken through what she had set out in that document. She was asked about her statement that the Respondent kept pressing and asking if it hurt. She said she could not remember if he was only pressing on her back or on her abdomen as well at that time. She confirmed he was slightly bent over towards her whilst that examination took place.
22. It was put that for the second standing examination the Respondent's body was not in contact with Patient C's body. She said: "His part under his abdomen touched me."
23. Patient C was asked to agree that the hand-written document she made was the closest in time to the consultation to all of her statements which are in evidence. She did agree.
24. There was an argument between counsel about the manner in which Patient C's Mandarin hand-written version of her account of her consultation with the Respondent might be interpreted. Patient C, in her oral evidence had said that during the second standing examination the Respondent had pressed his lower body (below the abdomen) against her so he was touching her with that part of his body. The Interpreter was asked to translate the document from the witness box. He declined to do so as he said he was not permitted to do that as part of his engagement. Ultimately it was agreed that Patient C would be asked to read aloud in the Mandarin language what she had written about that part of the examination by the Respondent. She did read it and the following fell from the interpreter. "Q. So can you read it slowly in the Mandarin language and stop periodically so that Mr Huang can translate it as you speak please? A. WITNESS: Sure..(foreign language).. A. INTERPRETER: At this time I was very vigilant with my side against Dr Lui, but he was still close physically to me. HIS HONOUR Q. Sorry, can you say that again please, interpreter? A. INTERPRETER: Very close physically to me or touching me. I don't know, this is why it's very difficult to interpret. His body against me physically. RODGER Q. Sorry, I didn't hear that last part, Mr Interpreter. A. WITNESS: His body against my body physically." RODGER: But this is the part I'm talking that was after the witness, that what I observed and it may be in contention, Patient C read out the sentence, the Interpreter interpreted the sentence then the interpreter said "very difficult to interpreter" and then Patient C said something further and the interpreter changed what he had interpreted previously. Two body-- WITNESS: Just you repeat the word that the interpreter - that hard to translate so he rephrased the word. HIS HONOUR: And what is the word Patient C that you say that the interpreter said there was-- WITNESS: Yeah so in Chinese there are two characters called ..(foreign language).. so pretty much means like his body is touching my body like he - because he's facing the wall and I'm on the side so basically like the body is touching so that's what I mean. HIS HONOUR: Right. WITNESS: Sorry I can't find the exact - yeah. HIS HONOUR: What is the word in Chinese that you used? WITNESS: ..(foreign language).. HIS HONOUR: Right just stop there. Mr Interpreter what does that word mean in English as best you can interpret? INTERPRETER: Your Honour that is very difficult to interpret these words. HIS HONOUR: Why? INTERPRETER: ..(foreign language).. his body against my body where it curls, touching or very(?) touching, or very touching, very - well against my body. HIS HONOUR: Are you saying it can be used to mean all of those things? INTERPRETER: Yes. INTERPRETER: And because you - I look up the dictionary this noon(?), I cannot find exact word. HIS HONOUR: Right. INTERPRETER: On this or a translation on these words. Even online I couldn't find - several ways of translating these words. HIS HONOUR: It can mean very close to my body, is that right? INTERPRETER: Close to my body. HIS HONOUR: Can it mean touching my body? INTERPRETER: Closely. HIS HONOUR: Can it mean touching my body? INTERPRETER: Yep. He had his body touching my body or contact my body. HIS HONOUR: His body touching my body or contacting my body. Q. So Patient C, when you wrote that word what meaning did you want it to have? A. WITNESS: Touching. Q. His body touching my body is that-- A. WITNESS: Yeah. Q. --what you meant or something different? A. WITNESS: No it means his body touching my body closely, yeah I write(?) about.
25. Patient C was asked about her assertion that at one stage in the examination the Respondent was "breathing heavier". She was asked if that was while he was in a crouching position. Patient C said: "Yes". She said it was not the only time.
26. In relation to the text exchange she had with Zoe, Patient C was asked if it was correct that at that time she "was still in a lot of pain" as Zoe stated. Patient C agreed that she was.
27. In relation to the Text messages she exchanged with Zoe and in her HCCC statement she used words to suggest she may have misinterpreted the actions of the Respondent as sexual harassment. She was asked: Q. Did you mean that you originally thought that you had misinterpreted the behaviour as sexual harassment? A. WITNESS: Yes for the first - initially in the beginning. Q. And have you still got the text messages at page 1? A. WITNESS: Yes I have. Q. When I use the words "sexual harassment" can you see that - I don't know if this is another area in the interpretation but the word "sexually harassed" is the first words that you used according to the translation in the first message to Zoe? A. WITNESS: You mean in the first message to Zoe I went to see the doctor but was sexually harassed? Q. Yes? A. WITNESS: Yes. Q. Is that a correct interpretation of your Mandarin of that message? A. WITNESS: It is. Q. So when I asked you using the term "sexual harassment", that is what I was referring to. I was trying to use your saying, the term you had used? A: WITNESS: Yes, we agree on the term. Then what is your question again, sorry? Q. So when you first sent the message to Zoe about wondering if you've got it wrong and said in the HCC statement that you initially thought you had misread the situation, it was you indicating that at first you were not sure about whether the interaction with the doctor had any sexual nature to it. Do you agree? A: WITNESS: I don't see any contradiction there so initially I thought I misunderstood until I realised it's not then I tell Zoe, like the first message is I have been sexually harassed because at that point of time I'm concerned what I've experienced then in the next text message I'm just telling her like, normally people will have some doubts like suspecting if like someone has misunderstood the situation.
28. It was put to Patient C: "Now, while giving evidence, what I'm saying to you is you are mistaken about the doctor's body pressing against you from behind at any time during that consultation?" She responded: "No mistake when he was behind about his behaviour, behind me."
29. Patient C was asked questions by Senior Member Fogarty. We noted part of the evidence which fell from Patient C in answer to those questions was as follows: "Q. So I just want to clarify. I just want to confirm that you could see the doctor's knees on both sides of your body during that examination? A. WITNESS: Yes because I glanced on both side. Because I guess at first glanced on my right hand side and I saw his knees and I think it so weird then I double check the left and I saw both knees. Q. Was that at a time when you described that he was crouching or words to that effect? A. WITNESS: Yes. That was the first standing examination he was crouched against touching me and ...(break in recording)... and also like the second standing examination as well he remain in the same pose. Q. So I know this is a long time ago and these are small details, but when you say crouching can I draw from that that would you say his feet were wider apart than yours were if he was crouching down, would that be true to say? A. WITNESS: Yes you mean wider right? Q. Yes correct? A. WITNESS: Yes.

Oral Evidence of Dr Michael Golding

1. Dr Golding was asked to adopt his report dated 21 August 2020 as true and correct, which he did.
2. He was cross-examined by counsel for the Respondent.
3. With respect to the opinion expressed by Dr Golding in relation to Patient A that not providing her with a screened or private space in which to change into her underwear, prior to examination, was contrary to the Code of conduct (3.2.6), about which he gave evidence in his report, the Respondent's counsel put six facts to Dr Golding which she asked him to assume were correct, before she asked him if he would still hold the opinion expressed in his report. The six facts were as follows:

• The examination took place in 1997.
• It took place at Sydney Skin Cancer Clinic.
• That is an approved medical facility for skin cancer diagnosis and treatment.
• There were six consulting rooms available.
• Only five of the consulting rooms had any partition. (We note our note of the evidence of the Respondent is that only one of the consulting rooms had a partition available for privacy during changing and that was the room used by the Respondent on the day Patient A consulted him).
• The Respondent was working there as a contractor.

1. Dr Golding said none of those assumptions individually or all collectively, would change his expressed opinion. Whilst he was not specifically aware of any requirements for a consultation room in an approved skin cancer diagnosis clinic in 1997 he said: "I'm not aware of what - the College requirements for skin cancer clinics in 1997. The privacy of a person who is going to be examined in 1997 required an opportunity for a person to undress themselves and be offered privacy while that was occurring." He further said that in his opinion, the fact that the Respondent was a contractor would not alter his responsibility to the patient.
2. In relation to the conduct of the Respondent which Dr Golding described as contrary to the Code s.3.2.6, he was asked in relation to the opinion expressed by him at the bottom of page 3 and the top of page 4 of his report (addressing the manner in which the Respondent performed the examination of Patient A's back, legs and stomach, accepting her evidence in relation to same) "which of the forms of exploitation set out at 3.2.6, that is, physically, emotionally, sexually or financially, were you referring to in relation to that opinion?" Dr Golding responded: A. When - a physical examination is a very privileged interaction between a doctor and a patient and it needs to be undertaken when there is a clear purpose, and a potential benefit for the person for the examination and I think that-- Q. Can I ask-- A. --..(not transcribable).. in the doctor/patient relationship. If you say to someone who's sick look I need to take your arm off and bleed you into a bucket, the first thing they'd say, oh doctor, I didn't realise I was that sick. So the 3.2.6 says there's a power imbalance where the person is going to default(?) that the doctor is asking him to do something because there's a good reason for it and it's in their interests to do so, and doing a purposeless examination of a mole from behind provides no information and no benefit to the person and in my view is a misuse of the power inherent in the patient/doctor relationship and I think it is an exploitation of the person and would say that it is a physical and emotional, at least a physical and emotional exploitation for what you - and an unnecessary examination that inevitably is going to lead to contact between the doctor and the patient with no benefit to the person at all. It may also be a sexual exploitation.
3. The cross-examination continued with the Respondent's counsel asking the following: Q. Can I ask you this then. If the contact was accidental, in your view it would not be properly considered exploitation and considered by the code, would it? A. Look, I think if you have an accidental contact from a meaningless examination, then it's the responsibility of the doctor for having performed an unnecessary examination. Each time you touch someone, you need to take responsibility for the boundary which has been crossed. Now, some touches are, putting a canula in and touching an arm is not the same as touching someone abdomen. It's certainly not the same where there's gender involved and you would need to take - the more intimate the examination, the more onus there is on the doctor to make sure that the boundaries are maintained appropriately. So touching someone's hand to look at a skin mole is not the same as touching someone's abdomen. It's not the same as touching someone's breast. There's a graduation of care and attention involved in each of those examinations. This is an abdomen and he is standing from behind to touch the mole on the person's abdomen. I just can't find any way to justify that type of examination. No benefit to the person, potential risk and if it was accidental, the risk is because of the unnecessary examination.
4. Dr Golding was asked when the code came into effect (bearing in mind that the consultation for Patient A occurred in 1997). His answer was recorded as follows: In relation to the code, are you aware of when the code came into effect? A. There has been, I think there have been a number of codes. I'm not sure of the timeline of each of them and the code, this code specifically states at the beginning that there's nothing new in this code, that it's a summary of long standing principles of doctor patient relationship so I think this code, although it may not have explicitly been, I'm not sure when the first came into being but this code says clearly in the preamble, there's nothing new in this code, it is a compilation of long standing principles of engagement or relationship between a doctor and a patient so I don't think we need to rely on the code specifically. I rely on this code as a summary of long standing medical principles of respectful interaction between a patient and a doctor.
5. We also noted the following further evidence of Dr Golding in answer to questions by the Respondent's counsel. Well I think any touching of an intimate part of a person that's not directed to a specific task in favour - to further a diagnostic intention is an inappropriate physical interaction. Whether you call it sexual or not, but here the sexual activity I think is casting a wide net. If you don't like the word sexual, inappropriate touching of an intimate part of a person without good cause is not consistent with good medical practice.
6. Dr Golding was asked what the basis was for him to distinguish between conduct which is below the standard and conduct which is significantly below the standard. He provided the following explanation: I think it's a matter of judgment. One is something that would raise an eyebrow and the other is raise both hands in the air. I mean this does come down to judgment and in practice - in clinical practice you see things you think well that's a bit unusual and then you see things you think well that is very unusual indeed, and I'm not sure l can give you much clearer guidance than that. In this circumstance the story is that because the oil is going to run down he's asking the person to lean forward, and you think well then put them on an examination couch so that you don't have to go through any possibility of contact between the - and you get the advantage of being able to use the oil without it running down the back. So it just doesn't - in my view that is significantly below a standard. It seems completely unnecessary and I think reasonable to say - well I think it's reasonable to say it's significantly outside the standard of interaction.
7. The following question was put to Dr Golding and we note his reply as follows: Q. So in relation to the opinion in relation to question 3 where you say it's significantly below the standard, is that because you're saying it has sexual overtone? A. No, I'm saying that you need to remove any possibility of there being unnecessary contact and that hasn't taken place.
8. The Respondent's counsel asked Dr Golding about his opinion expressed in relation to question 9 on page six of his report. This part of the report answered a question about the "critical justification and the appropriateness of Dr Lui's usual examination technique for examining a patient presenting with low abdominal pain near the groin area." The question addressed the examination by the Respondent of Patient B's inguinal canals whilst he was standing behind Patient B. We noted the question and answer as follows: Q. Can I ask you still in relation to opinion at 9, that is opinion 9 at page 6 to make a number of assumptions and then I'll ask you a question. Make the assumption please that the physical contact was accidental, if you could please also make the assumption that you were providing an opinion in relation to a one patient complaint and then finally make the assumption that you're providing an opinion in relation to one incident of physical contact within that consultation. Would you say that the contact upon those assumptions I've asked you to take was below standard or significantly below standard? A. And in the assumptions is the examination from behind for the abdomen? Q. Everything else the same as set out in question 9 but for the extra assumptions I've asked you to consider? A. Okay and in my opinion it would be significantly below the standard. Q. Is it the case that or do you agree that the accumulation of incidents that you have been asked to consider in the provision of this report has impacted your view in relation to this opinion at 9 being significantly below the standard? A. Not that I'm aware of.
9. Dr Golding was questioned about his conclusion to question ten (iii) on page 7 of his report. There Dr Golding had found the conduct of the Respondent in relation to his examinations of Patient B, so far as his explanations to her of what he was proposing to do, why he was conducting the examination and what he was looking for whilst conducting the examinations, was significantly below the standard. We noted his answer to the question as follows: I think it is significantly below the standard to touch the abdomen of someone without telling them what the intention of the touching is. It's a big thing - it doesn't sound like a bit thing but it should be regarded as quite an - it's an intrusive - if you weren't in the doctor/patient relationship, it's assault and if you're going to touch someone, you need to give them the reasons why you're doing it, what's going to be involved. You've got to warm your hands, you've got to make sure that - like there's quite a lot involved in it. It sounds quite a casual thing, I don't think that's the case. Q. Has that remained your view in circumstances where the patient has presented with lower abdominal pain? A. Yes. Q. Would it not be clear that the patient - why the abdomen was being touched if they presented to the doctor with lower abdominal pain? A. I think it's encumbered upon a doctor to describe what they're going to be doing and what they're looking for and what they're hoping to achieve.
10. Dr Golding was then taken to some evidence of the Respondent given to the Medical Council in the s.150 hearing. There he said: "I asked the patient to lie down to check for her abdomen". He was asked to assume that was said by the Respondent to Patient B and if so would that affect his determination that the Respondent's conduct, in relation to informing Patient B what he was about to do, was significantly below the standard. Dr Golding said: "So I think having looked at that, I took that when I was preparing this report that that was a description of the doctor's normal practice. If it in fact was what the doctor said then I would change my opinion and I've based it on a communication about what the intention was for touching the abdomen. And I would not be critical if that was the verbatim conversation with the patient."
11. Dr Golding was asked questions about his opinion given in answer to question Sixteen on page 9 of his report. There he was asked to express an opinion on the assumed fact that the Respondent had made contact with the buttocks of Patient C with the whole of his genital area. The Principal Member asked Dr Golding: " Q. Can I ask Dr Golding what your understanding is of the words "whole genital area", what did you have in mind when you read those words? A. That the groin region of the doctor was by and large - a large part of the groin area of the doctor was being felt by the patient, including the penis. I mean I think this is - the patient gave - part of the patient's complaint was that there was - she was aware of the patient felt her doctor's groin and penis."
12. Following on from the last mentioned evidence of Dr Golding he was asked the following and gave the answers as recorded: Q. So you'll see that the Patient C refers to whole genital area about halfway down the paragraph, "pushed up against buttocks"? A. Yes. Q. But then later in that same paragraph, she said "I was distinctly able to feel the heat from his body and he was breathing heavily but I did not feel contact from his penis"? A. Yes I may have misspoke, I was answering the question of what I meant - what I interpreted to mean as the whole of his groin and I think in the description of the whole of the groin, there is the sexual connotation of the penis. I don't think I was suggesting or stating that the patient did feel the penis but if you say the whole of the doctor's groin was pressing against my buttocks, the underlying elephant in that room is the penis. Q. But in circumstances where are you saying you're aware that Patient C had said that she did not feel contact from his penis? A. I don't think I've suggested that. I've said that if someone says the whole of a doctor's groin was pressing up against my buttocks then - the reason why that is significant is because it's intensely intimate and private and a penis is a part of the reason why that is such a sensitive area. Q. I guess I'm asking a slightly different question. I'm just trying to ascertain whether you were provided or when you were providing the opinion in relation to the question 16 on page 9, whether you were aware that the Patient C had indicated that she did not feel contact with the doctor's penis? A. Yes I'm aware, I was aware. I have read this statement in preparing the incident report.
13. Dr Golding was re-examined by the HCCC counsel. Dr Golding was asked about his evidence where he changed his opinion in relation to the conduct of the Respondent in the explanation given by the Respondent to Patient B for the abdominal examination he was about to perform. The counsel for the HCCC raised with Dr Golding that the question he was providing his opinion to in his report (Question Ten (iii) on page 7 of his report) was not just one abdominal examination (about which the evidence of the Respondent as given to the s.150 hearing was relied upon), rather there was a further abdominal exam of Patient B whilst she was standing. Further the question at Ten (iii) was not confined to the first abdominal examination of Patient B, rather it was at large in relation to all the physical examination carried out by the Respondent upon Patient B on 16 August 2018. That question from the HCCC gave rise to an objection by the Respondent's counsel, to which the Principal Member said the following: HIS HONOUR: Well she can make a lot of submissions but ultimately, they'll be accepted or rejected but I don't know. In fairness Ms Rodger, given this distinction that's been pointed out about in fact there were two abdominal examinations and on page 7 of the report, the question III as specifically says whether Dr Lui provided an adequate explanation for the examinations, it's clearly plural, he was performing, did you want to ask about anything said by Dr Lui to the patient in relation to the standing abdominal examination or not?
14. We note that the Respondent's counsel declined the invitation to further cross-examination Dr Golding.
15. Dr Golding was asked questions by Dr Fogarty, a Senior Member of the Tribunal. We note the question and the answer as follows: Q. What I would ask is suppose these questions. Have you ever seen any teaching protocol which would suggest an examination of a patient with abdominal pain or an abdominal mole from behind? A. No and if there were stronger alternatives to significantly below the standard, I would have used those. Q. Okay? A. It doesn't make sense. So when you're examining the abdomen, apart from the touching that has resulted according to these three patients, so forget the touching, when you're doing abdominal examinations, you're wanting to feel the abdominal organs and the reason why you lie someone on the table is so that they're relaxed and the abdominal musculature is relaxed and you're able to palpate and you get a good feeling where you can find where the tenderness is, you can feel for organs. If you're standing somebody up, the vertebrae has no inherence strength in it. The only reason the person can stand upright is that the muscles tense on the back and the muscles tense on the front, including the abdominal muscles. So by definition, if you're attempting to feel the abdomen with a person standing up, forget the other bigger picture or terrible thing which is the touching, if you're trying to legitimately trying to feel the abdomen, it's impossible to do it when you're standing.
16. Dr Fogarty asked one final question on the above topic as follows: Q. Thank you Dr Golding and just one last question which is on the same thing. You've outlined the reasons why such an examination in your view is clinically unhelpful. Can I just ask you to clarify for me what if any risks are imposed to the patient by undertaking that examination? A. Well see to encircle the patient and feel the abdomen from behind as I think I've stated will inevitably lead to unnecessary close intimate contact and will miss important diagnostic features that you might detect if the abdominal wall muscles were relaxed. So you'll miss the important signs and you'll compromise the professional relationship.
17. Dr Yeo, Senior Member also asked Dr Golding a question as follows: Q. Dr Golding, I just wanted to clarify that when you were asked in relation to the examination of the inguinal canal from behind, that the inguinal canal is distal to the abdomen. In other words, from behind you've got to reach further down beyond the abdomen in order to reach the inguinal canal. Would that be correct anatomically? A. Yes, absolutely correct, yeah. SENIOR MEMBER YEO: Thank you, I don't have any further questions. HIS HONOUR: Just so I understand what you mean by "reach further down", could you ask Dr Golding about how far down you have to reach. For example, would it be below underpants level, is it in-- WITNESS: Below the bikini line, your Honour. HIS HONOUR Q. Are we talking about the crease of where the leg meets the bottom of the abdomen? A. Yes, your Honour.

The Evidence of the Respondent

1. The Respondent relied upon a Statement dated 16 December 2021 (Tab 2 exhibit R1). In that he set out personal details such as his "CV" and detail of his current work including his work hours.
2. The Respondent then set out details of his continuing Professional Development. In particular he provided detail of CPD courses he has undertaken since the s. 150 hearing on 16 November 2018. He also set out what he had done to improve his medical record making.
3. Thereafter the Respondent addressed some of the Complaint he was meeting as brought by the HCCC. In particular he addressed Complaint 4. That Complaint dealt with the Respondent's record keeping. He admits the complaint. In relation to the Particulars to Complaint Four the Respondent said that he now understands that lacking sufficient time is not an adequate excuse for inadequate or poor record making. He agreed he should have recorded the differential diagnosis that he had considered. He should have recorded the management plan for Patient B's abdominal pain. He should have included the information and advice given to Patient B. Since the Complaint he has been recording all the advice he has provided to patients where he performs cryotherapy.
4. The Respondent admits he did not maintain records for Patient C's consultation on 10 September 2018. He identified what he saw as the inadequacy of the record making for Patient C and what he has done in relation to patient records since the Complaint was made.
5. In his statement the Respondent set out how he has practiced since the s.150 Hearing in November 2018. What he has set out largely addresses matters relevant to Stage Two.
6. In exhibit R2 the Respondent states that his first language is Cantonese. When he came to Australia for year 10 education his schooling was conducted in English.
7. Included in exhibit R1 at Tab 3 is a copy of the transcript from the s.150 hearing. The Respondent relies upon that evidence with the exception of that appearing on page 48 to the end of the transcript. In the version of the transcript the Respondent relied upon, the Respondent, with the assistance and supervision of his solicitor, has listened to the tape recording of the hearing and has filled in those parts of the written transcript which had been unable to be understood by the maker of the transcript. An affidavit was provided by the Respondent's solicitor attesting to the methodology undertaken to complete the transcript.
8. The balance of the content of exhibit R1 consists of testimonials upon which the Respondent relies. Again, these will be referable to Stage Two unless the Respondent specifically directs our attention to some part of those documents which it is asserted is relevant to Stage One. None of the makers of those testimonials gave oral evidence.
9. The Respondent gave oral evidence. In relation to that evidence we recall the opening of the Respondent's counsel when she told us that the focus of his evidence will be on the Complaint that he is guilty of professional misconduct pursuant to s.139E of the National Law. The Respondent also denies unethical and improper conduct. In particular what the Respondent asserts is that there was no sexual or gratuitous contact between himself and any of the patients the subject of the Complaints which the Respondent faces. It was submitted that accidental contact would not give rise to a finding the Respondent was guilty of professional misconduct as defined by s.139E.
10. The Respondent's counsel also brought to our attention the fact that she will rely upon the decision in Zaidi v HCCC (1998) 44 NSWLR 82. It was submitted that the Tribunal would not consider the Complaints by invoking the principle of propensity. The Respondent submitted the Tribunal would consider each Complaint as if it was a "one off" complaint and reach a conclusion as to whether the Respondent is guilty of professional misconduct on the facts of that case only. The Respondent's counsel submitted the following: "The relevant essence, of that decision being that the Court of Appeal noted that it would prudent in Tribunal proceedings for the judge to consider directing his fellow members that they should exercise particular care to consider the evidence on individual charges separately. If any incident was found to be proved it would be only then, so each incident considered separately and if any incident found to be proved only then could one incident lend compelling weight to the proof of another. Perhaps stating the obvious, proof remains the focus and not prejudice and the importance of making this opening to the Tribunal prior to any evidence being elicited is that I'll be asking from the outset that consideration be given to the possibility that the three separate and distinct complaints are reflective of a propensity to utilise poor technique rather than a propensity to engage in improper, unethical or gratuitous conduct of a sexual nature."

Oral Evidence of the Respondent

1. The Respondent provided his name and address for the record. He gave no oral evidence in chief.
2. The Respondent was cross-examined by the HCCC. We note the following matters from his oral evidence.
3. The Respondent was taken to the letter of complaint made by Patient A and dated 15 May 1997. He agreed he had read that letter when he received a copy of it in late May 1997. He said he understood the letter when he read it at that time.
4. The Respondent was asked to look at the document set out at Tab 30 of exhibit A1. He agreed it is a copy of a letter he wrote to the HCCC in June 1997. He thought he had prepared the letter with assistance of Avant. He said it was correct when he signed it. At the time he had a recollection of the consultation complained of. He said it was fresh in his mind.
5. The Respondent was asked to look at the document contained at Tab 7 of exhibit A1. That is a copy of the complaint made by Patient B to AHPRA on 4 September 2018. He was asked to look at the content of the complaint on page 4 of the document. He said he recognised it to be a complaint made by Patient B in relation to a consultation with the Respondent on 16 August 2018. He said he had received a copy of that complaint in about October 2018 and probably understood what the complaint was.
6. He was asked to look at the document at Tab 31 of exhibit A1. He said he recognised that as a letter from HCCC in relation to a complaint by Patient B. He was asked to look at the document at Tab 32 of exhibit A1 which he recognised as a copy of a letter he wrote on 12 October 2018 to the HCCC in response to the letter of complaint made by Patient B. He believed he had typed the response letter himself. He was satisfied the letter was true and correct before he signed it.
7. The Respondent was then asked: "When you were in consultation with Patient A on 8 May 1997 did you rub your penis against her back or buttocks?" In response to the question the Respondent declined to answer the question on the ground that "I may incriminate myself in relation to criminal proceedings." The Respondent sought a Certificate pursuant to s.128 of the Evidence Act in order that he could answer the question and any similar question, which answer raised the potential for the Respondent to be charged with a criminal offence.
8. Arguments were put by each counsel. The Tribunal did provide the Respondent with a Certificate pursuant to s.128 of the Evidence Act. The Certificate is as follows: "This Tribunal certifies under s 128 of the Evidence Act 1995 and by virtue of s. 38(3) of the Civil and Administrative Tribunal Act 2013 that any evidence given by Tsz Ching Lui in the hearing on 10 February 2022, in answer to any question he may be asked, the answer to which may tend to incriminate him or may incriminate him, is evidence to which subsection 128(7) of the Evidence Act 1995 applies."
9. After the Certificate was granted the Respondent denied he had acted as suggested in the question. He confirmed that it was his intention in the letter he sent to the HCCC dated 12 October 2018 to fully explain what had happened during the consultation with Patient B on 16 August 2016.
10. The Respondent was taken to page 4 of Tab 8 of exhibit A1. He recognised that as a complaint from Patient C. He received it in about October 2018. He thought he had understood the complaint. He understood she was alleging he had pressed his body against hers during the consultation.
11. He was asked to look at Tab 34 of exhibit A1. He recognised the document as one he had signed (dated 23 October 2018). At that time he had a recollection of the consultation which the letter addressed with Patient C.
12. The Respondent was asked a series of questions about his knowledge of general matters relating to the practice of medicine in 1997. One such question was: "When a doctor asked a patient to carry out an action during a consultation ordinarily the patient would comply?" the Respondent answered "Yes." He also agreed he knew in 1997 that doctors are vigilant to maintain a professional boundary in dealing with patients.
13. The following questions were asked of and answered by the Respondent. " Q. The next set of questions that I want to ask you, just to be clear, I'm asking you about whether today, sitting in the witness box, you agree with these statements. I'll start with today's date and then I'll work back, okay? I don't want to confuse you. So giving evidence today do you agree that in order to examine a person's abdomen their muscles need to be relaxed? A. Yes. Q. Was that your understanding in 2018? A. Yes. Q. Again asking you as of today, is it your understanding that when you are doing an abdominal examination you are trying to feel the abdominal organs? A. Yes. Q. And was that also your understanding in 2018? A. Yes. Q. Sitting there today do you agree that when someone is standing upright then their muscles on the front and back tense? A. Not necessary. Q. You heard Dr Golding give evidence earlier today, did you? A. Yes. Q. Do you recall he gave evidence that when a person is standing upright that in part they're using their muscles on the front and back of their body to hold themselves upright, did you hear that evidence? A. Yes. Q. Do you agree with that evidence or do you disagree with that evidence? A. I agree with some extent but I think it's not to the extent that it would tense up ...(not transcribable)... HIS HONOUR: Just one moment, please. Just one moment, please. Q. Dr Lui, did you say that you agreed to some extent but not to the extent that you can't examine their abdomen, is that what you said? A. Yes. Yes, your Honour. Yeah." Horvath: Q. My question wasn't about whether you can or can't examine their abdomen. My question was if someone is standing up then their muscles on the front and back will tense. Can you just focus on that part. Do you agree or disagree with the proposition that when someone is standing up the muscles on their abdomen and their back will become tense? A. I don't really agree because when you say they become tense it - to me it means you're contract a muscle and when someone is standing and you're contracting the abdominal muscle or the back muscle. Know what I mean? If you're going to sit up or you do hunch back then your muscle will have to go tense when you go sit up or you ...(break in audio link)... when your back muscle become tense but when you're standing the muscle can be relaxed. Q. So do I take it from that answer, doctor, that you disagree with the evidence by Dr Golding that when someone is standing their muscles will become tense, is that right? A. Yes, I - yeah, that's right, yeah.
14. The Respondent denied that examining a patient's abdomen from behind them will lead to unnecessary physical contact with a patient. He was asked: Q. In what circumstance is there a medical purpose or benefit to patients by examining their abdomen from behind when both the patient and the doctor are standing up? A. Yeah, I believe you can examine the hernia better, especially when you are trying to reduce it back.
15. The Respondent was pressed on his answer about examining a patient from behind. He was asked: Q. You heard Dr Golding's evidence earlier today, yes? A. Yes. Q. And his evidence was that the earliest sign of an inguinal - I apologise for my pronunciation, inguinal hernia is a bulge in the abdominal wall. Do you agree with that or not? A. Yes, I agree. Q. If there is a bulge in the abdominal wall, if you're standing behind the patient you won't see the bulge, will you? A. You can if you bend forward you can see it. Q. So are you talking about if you are standing behind a patient but bend around them? A. Yeah.
16. The Respondent was cross-examined about his examination of Patient A in 1997. He recalled she had told him her brother had been diagnosed with melanoma at age 26. He agreed she probably told him she had "a lot of moles". She had not previously had a skin check. He knew she was 24.
17. The Respondent denied that in 1997 he would normally have told a patient with Patient A's history that she needed to have her breasts checked for melanoma. He said: "unless there is a concerning lesion there."
18. Tab 30 in exhibit A1 (the letter of complaint from Patient A) was brought to the Respondent's attention. It was put that the Respondent did not check the breasts and genital area of Patient A because he was concerned about medico-legal matters. He said: "No, is one side is there, but the other side is not standard to check those areas unless there is an area of concern." He agreed he did not discuss with Patient A what was an "area of concern".
19. The cross-examination of the Respondent continued on Friday 11 February 2022.
20. It was put that there was no curtain around the examination table. The Respondent said there was no curtain however there was a partition stand. He agreed the partition was behind the door however he denied it was leaning against the wall. He described the gap between the petition and the wall was about one and a half the width of his hand. (The counsel for the HCCC suggested that was a 20 centimetre distance and there was no contest on that estimation).
21. It was put that he did not ask Patient A to change behind the screen. The Respondent said that he could not recall but generally the patients will go there to change. If they don't he said he would ask them to change there. The Respondent said the screen is always unfolded. He said it was a large screen on the left-hand side of the consultation room seen as you entered. He recalled that Patient A had changed behind the screen. He described the screen as long as the examination table/couch and about six feet high. He said Patient A was wrong when she said she did not disrobe behind a screen for her examination. He could not remember if he offered her a robe at that time.
22. The Respondent answered questions about the examination of Patient A. He said his answers were largely prompted by his record of the examination and his usual methodology. He agreed he had used a dermatoscope in the examination. It required the application of oil to the lesion being examined. There was a particular container used to apply the oil. He did not ask Patient A to roll onto her stomach to examine the lesions/moles on her back because had he done so it would have put oil stains on the cover of the examination table. Consequently he said he would ask patients to stand for the examination of their back.
23. Whilst examining Patient A's back the Respondent agreed he was standing close to her. He agreed he asked her to lean forward to avoid the dripping of oil being applied to her back. He looked at moles and lesions on a patient's back for up to 60 seconds each. He could not recall if his trunk was touching Patient A during the examination of her back. He said he wasn't particularly conscious of that in 1997. He is now.
24. The Respondent denied that Patient A was a vulnerable patient when he examined her. He did not think he told her what he was doing when he bent down to examine her legs from behind because he assumed she would expect him to examine her legs.
25. The Respondent could not recall if his groin touched Patient A at the time he was examining her back. He agreed it was possible. He said: "The groin does not include the genitalia". He said his groin may have touched Patient A but not his genitalia.
26. The Respondent denied that when he received notice of the complaint from Patient A in 1997 he understood she was alleging that on two separate occasions during the examination he conducted of her back he had pressed his groin into her buttocks. He said: "I understood that she complained like touch her back twice, one was when I examined a mole on her back, the other time was when I examined something on the abdomen".
27. The Respondent was taken to Tab 6 (a copy of PAS's letter to the HCCC dated 15 May 1997). He agreed she had set out twice that the Respondent was pressing his groin on her buttocks. He said that when he read that in 1997 he did not understand Patient A was meaning he was pressing his genitalia onto her buttocks. "Q. Dr Lui, when you read the complaint in 1997, you understood that Patient A was saying that you had touched her inappropriately, you understood that didn't you? A. Yes I - yeah I understood that. Q. And if your groin, trunk or legs had touched her during an examination, you wouldn't have thought that that was inappropriate, would you? A. I think in when we do examination, sometimes we could potentially touch a patient accidentally and I didn't pay too much attention at that time about this. But now I realise that this can be very serious so I will say at that time I wasn't so concerned about this. I didn't like - there's a lot of time in the examination is potentially touch other part of body and I didn't feel it was so serious but now I do understand now, this can be very serious, especially the situation where the patient cannot see and this can be interpreted as something very bad so now I do know very serious. But at that time, I thought it could be something like if you accidentally touch someone, it could be something acceptable in the course of examination. Q. You understood didn't you, in 1997 when you read the complaint, that the allegation was that one of the allegations that Patient A was making was that through your touching of her buttocks with your groin was inappropriate. You understood that that was part of her complaint, yes? A. Yes I understood that, yes. Q. You understood in 1997 didn't you, that Patient A was complaining about you rubbing your groin and genitalia against her buttocks, you understood that was her complaint wasn't it? A. No it wasn't that. Q. When you said in response to the complaint "I deny pressing my groin on your buttocks", what were you intending by the expression "groin"? A. Is what I just mentioned earlier."
28. It was put that the evidence given by the Respondent that he didn't understand Patient A was referring to the groins as including his genitalia in her complaint was false. He denied that. It was put that he had not told the Medical Council during the s.150 hearing that he understood the complaint from Patient A to be about his groin (not his genitalia) touching her buttock. He said he could not remember.
29. There were propositions then put to the Respondent which went to his motivation in adopting the methodology of examining the back of Patient A while she stood up. The following was put: "Q. The reason that you examined patient A's back in the way that you did, I suggest to you, is the following, number 1, it enabled you to put patient A in a position where she was dressed only in her underwear with her back to you, leaning forward, while you were fully clothed behind her, and you could push your groin, including your penis, into her buttocks? A. No, that's incorrect. Q. And the reason that this method of examining patient A's back was the one you chose was because it would enable you later on to say it was an accident, it must have been an accident? A. No, that's incorrect."
30. The Respondent denied he had pressed his penis into/onto the buttocks of Patient A. He denied he had an erection at the time of his examination of Patient A. He said he could not remember examining her glands under her arm but conceded he could have done that and could have done that from behind her. When asked about pressing on a mole on Patient A's abdomen from behind her, he said he could not recall that. He said: "I don't recall, but with this record it is possible that I could have examined either the lymph node in the groin or happened to be a mole there that I examined, I cannot recall." He agreed he did not in his letter to the HCCC in 1997 deny he had examined a mole on the right side of her stomach by standing behind her and reaching his right hand around and pressing on it and asking whether it hurt.
31. The Respondent was asked: "Q. Examining a mole in this way from behind, reaching around and pressing on it, is a completely ineffective method of examining a mole. Do you agree?" He did not answer the question directly and he was asked again. His reply was: "A. If there's only a mole in the stomach, I just examine the mole by standing there behind her then it is not effective, but if I were doing something already and I just want to double check before I excise her mole, then this is effective. Like this a normal way that I usually do things, like at the end I double-check all the things I want to be excised. Sometimes not even palpation, sometimes I even double check with the dermatoscope".
32. The Respondent agreed he probably didn't recommend to Patient A that she have her private areas checked for moles. He agreed he did not check her genitalia and probably didn't check her buttocks.
33. The Respondent was cross-examined on the complaint of Patient B who he saw on 16 August 2018. He agreed he commenced the consultation examination with an examination of her abdomen. She was lying down. He agreed that: "all of the anatomical landmarks in a person's abdomen are established and standardised with the person in a supine position."
34. After the examination of Patient B on the examination table the Respondent agreed he examined her while she stood upright. She was fully clothed. He stood behind her for the examination. He later said he was: "on the side and behind rather than directly behind". He denied that from behind he reached around Patient B's body with his hand to the front of her abdomen. He agreed he did reach with his arm and pressed parts of Patient B's abdomen. He agreed he asked if that hurt. He agreed he pressed the inguinal canal on Patient B. He could not remember if he had told Patient B what he was examining and why.
35. The Respondent denied there was no clinical justification for the standing examination for Patient B. He denied there "was no logical reason to repeat an abdominal examination on patient B while she was standing in front of you with her back to you and you were reaching around?"
36. The Respondent denied that the recognised technique for trying to identify when someone has an inguinal hernia is a visual check. He said that is only part of it. He agreed that you look for the recognisable bulge when the patient is coughing or under strain. He said that was part of it. He denied the reason that he performed this standing examination was simply to provide a cover for his being able to press his genitals into patient B's buttocks. He denied he had pressed his groin, including his genitalia, against the buttocks of Patient B and held it there for about 10 seconds. He denied any of that action was for his own sexual pleasure. He denied he had an erection during that examination.
37. It was put that the Respondent did not record in the notes he made of the consultation a diagnosis or differential diagnosis. He said he recorded pain. He recorded she could feel pain. He diagnosed she had corns. He agreed he should have written more. After further questioning he agreed he did not record any diagnosis in relation to the abdominal pain complaints. He insisted he recorded a diagnosis though of the corns.
38. The Respondent was asked why he had not had Patient B take a pregnancy test. He said she had such a test and it was negative. She had a period a week before the examination which had lasted four days. He thus excluded pregnancy. He also was told she was seeing other medical practitioners in. relation to gynaecological matters. He also said he did not take a pap smear from any patient unless the patient requested that he do so because he was worried about medical legal risks.
39. The Respondent was cross-examined about his examination of Patient C. He agreed he saw her on 8 September 2018 in the presence of her fiancé. He examined her abdomen and her back. She was fully clothed for the examination and he examined her abdomen and her back. She was standing for all his examinations of her on that day. He said he would usually ask a patient to lift clothing to examine the abdomen and back. He did not have a specific recollection of the subject examination on 8 September 2018.
40. Contrary to the assertion he did not examine Patient C whilst lying down on 8 September 2018 he said he had performed such an abdominal examination. He said he always does that. Once again he had no specific recollection of the particular examination of Patient C on that day. He agreed that had he only examined her abdomen as she stood on that day it would have been an entirely inadequate clinical examination. He agreed he recommended Patient C have an ultrasound.
41. On 10 September 2018 Patient C returned to see the Respondent. She had undertaken the ultrasound. She said she still had back pain. The Respondent said she had a new onset of back pain as well. He agreed her abdominal pain had abated. He said he read the report on the ultrasound.
42. The Respondent agreed he undertook a back examination of Patient C while she was standing. He denied he pressed his groin or penis against Patient C during the back examination. He denied he was panting as he undertook that examination. He denied he held himself against Patient C for sexual gratification. He denied he was squatting behind her during the examination so that his knees were on either side of her.
43. Following the back examination, the Respondent agreed he had asked Patient C to lie on the examination table and he conducted an abdominal examination. He denied there was no clinical benefit to be achieved by an abdominal examination of Patient C on 10 September 2018. He said he had found a lump in the upper left quadrant. He said he thought it could have been a spenunculi. He denied they were tiny and he could not have felt them. He agreed there was nothing in his record in relation to such a finding. He said he was not sure that he had felt a lump and so he did not record it. He denied he had fabricated that evidence.
44. Following the abdominal examination of Patient C whilst she was lying on the examination table he conducted a further examination of her standing. He examined her standing behind her. He was reaching around her from behind. He said he was still palpating for the lump he had thought he had felt in. the abdominal examination. He was pushing from the back and seeing if he could feel the lump in front with his hand. From time to time he was looking at her face as he asked if she felt pain. He was leaning around her.
45. It was put to the Respondent: Q. The way that you've described this standing abdominal examination is not a recognised method of performing an abdominal examination, is it? A. Yeah, that's correct, yes. Q. And in fact it's entirely ineffective, isn't it? A. I don't think it's ineffective. Q. There was no medical reason for you to perform the standing examination, was there? A. There was reason to do that.
46. The Respondent denied he had pressed his groin and penis into Patient C's buttocks during the examination. He denied he did that for a gratuitous purpose and not a medical purpose. He denied he invented a possible lump detection as a ruse to be able to examine Patient C from behind for his own purpose.

The Respondent was re-examined by his counsel.

1. The Respondent said that in his answer to the complaint of Patient A (his letter written in 1997) he had the assistance of Avant. The same was true in relation to the letters written to the HCCC in response to the complaints of Patient B and Patient C. In relation to the methodology of examining a hernia from behind the patient the Respondent said: "Yes, I was taught that when I examine the inguinal hernia I stand behind and to the side of the patient, and then put my arm around as if it is the patient's arm, so that you are reaching from behind and above so that you can push the hernia back. And I have this in my memory all this year and after this complaint I was - I look at a textbook and I can actually find the paragraph in the textbook which reinforce this teaching. If you don't mind I can bring this - there's a small paragraph in my textbook that I brought in with me today. It's only a few sentences, if it's okay for me to read that". The Respondent was then permitted to read a passage from page 285 of the text by Browse, first printed in 1978. "The main reason for standing at the side of the patient is to be able to press your hand in exactly the same position as the patient presses his own hand when he is reducing or supporting the hernia. He puts his hand on the lump and lifts it upwards and backwards. Tumours do the same. You can only do this if your arm comes from a position above and behind the hernia."
2. In answer to a question from the Tribunal members the Respondent said it was possible to stand both at the side and behind to conduct such an examination. He also said he had been taught by a person (presumably a training medical professional) to conduct the examination in that method.
3. In answer to a question from his counsel as to whether he would continue to conduct such examinations in that was in the future the Respondent said: "A. I wouldn't because it does cause - like misinterpretation and confusion and cause a lot of stress to the patient and to myself and is not good."
4. The Respondent was asked some questions by the Tribunal members. We noted the following responses from the Respondent.
5. The Respondent said that in response to the complaint he received from the HCCC in May 1997 in relation to Patient A he had decided to change the way in which he examined female patients. The Respondent said: "I initially changed to lie them down over the front of the bed but then I found out the problem with the oil then I changed to a new method where I use a dropper, dropper that usually we get it - we do allergy test and we extract some liquid from the bottle and then put it into the patient's forearm and then I used that dropper to extract the oil, from the dermatoscope oil, into the dermatoscope directly instead of onto the patient."
6. The Respondent said he had not changed his method of examination of a patient by standing behind the patient to examine the abdomen. He said: "I didn't know that abdominal examination was a problem so I continued the same way that I examined abdomen. So I didn't change any way that I examined abdomen, I only change the way I examine moles."
7. The Respondent said that although the letter of complaint from Patient A in 1997 included the following words he did not think to change his method of examination of the abdomen of a female patient. "I could feel his groin pressing on my buttocks again. I moved my pelvis forward again. He reached around with his right hand and was pressing on a mole that I have on the right-side of my stomach"
8. The Respondent said that whilst acknowledging that the complaint from Patient B also included a complaint about the manner in which he conducted an abdominal examination whilst standing behind the patient, it was not until he received the detail of the complaint made by Patient C in 2018 that he decided to change the manner in which he conducted that examination.

The Submissions of the Parties

1. The HCCC provided their written submission on 14 April 2022. The submission had been delayed due to the transcript not being available until shortly before that date. The Respondent provided his written submission on 2 May 2022 and the HCCC provided a written reply on 12 May 2022.

The HCCC submission of 14 April 2022

1. The HCCC commenced its submission with the following general statement: "The HCCC says that Dr Lui abused the patient's trust and took advantage of the patients performing, what superficially would appear to be routine examinations. In reality, Dr Lui either engaged in improper or unethical conduct or displayed knowledge or skill which was significantly below the standard expected of a similar practitioner."
2. The HCCC addressed each of the five complaints it makes against the Respondent and set out his response to same. We have detailed both the Complaints and the Respondent's reply to same earlier in these reasons.
3. In relation to Complaint One the HCCC submitted that although the Respondent admitted that he was consulted by Patient A on the date alleged for a skin check, he admitted unsatisfactory professional conduct (s.139B(1)(a)). He did not in his evidence state what it was that he did during the consultation which amounted to unsatisfactory professional conduct. He denied the additional complaint framed under s.139B(1)(l) of the National Law.
4. The HCCC points out that in the Reply document filed by the Respondent and dated 15 December 2021, the Respondent declined to respond to the Particulars to Complaints numbered One, Two (with the exception of Particular 1(a)) and Three (with the exception of Particular 1(a)) until he had "the protection of a certificate pursuant to s.128 of the Evidence Act 1995". We note the Respondent did accept the Particulars numbered 1 to 4 in Complaint Four (failure to maintain adequate records).
5. In its submission the HCCC stated: "Both limbs of that complaint are pressed. That is, the HCCC says that Dr Lui's conduct with each of Patients A, B & C is separately of a sufficiently serious nature to justify suspension or cancellation of his registration. Equally, when Dr Lui's acts are considered in combination, together with the breaches of the Regulations, they amount to conduct of a sufficiently serious nature to justify suspension or cancellation of Dr Lui's registration."
6. The first matter addressed by the HCCC was jurisdiction available to the Tribunal to consider a complaint which pre-dates the commencement of the National Law. We here set out the submission of the HCCC on that matter. In so doing we note the Respondent does not challenge the jurisdiction of the Tribunal to determine Complaint One which was said to have occurred in 1997. "Statutory Framework 1. Complaint 1 concerns conduct which occurred in 1997, which was prior to the commencement of the National Law. 2. Although the conduct pre-dates the commencement of the National Law (and there are no transitional provisions relevant to Complaint 1) that is no impediment to the Tribunal determining the complaint under the National Law. It of course cannot be determined under the now repealed Medical Practice Act 1992. 3. There is no provision of the National Law which precludes the Tribunal from considering complaints about events which occurred prior to 2011. The definitions of unsatisfactory professional conduct in s.139B and professional misconduct in s.139E contain no temporal element. Equally, the complaint provisions (s.144B), the disciplinary power of the Tribunal (s.149) the description of additional matters which constitute unsatisfactory professional conduct (s.139C), the mandatory notifications provisions (s.141) and the provisions identifying the grounds for making complaints (s.144), have no temporal constraints. 4. Noting that the National Law is the most recent act in a row of similar legislation, unsurprisingly, this is an issue which has previously been addressed. In Walton v McBride [1989] NSWCA 222 the Court, comprising Kirby P, Priestly JA and Hope AJA confronted the same situation when the Medical Practice Act 1987 was repealed and replaced with the Medical Practice Act 1992. 5. In McBride it was contended on behalf of Dr McBride that the Tribunal could not make findings under the 1992 Act because the conduct the subject of the complaint pre-dated the commencement of that Act. As with this case, the 1987 Act had been repealed and was of no effect, therefore Dr McBride could not be prosecuted by reference to that legislation. 6. As noted in McBride, if Dr McBride's argument succeeded then the Tribunal would not have been able to hear the complaint against him even though there have been similar successive acts which were intended to protect the public. The Court rejected that construction as being: "…not clearly stated in the legislation. It was not expressed by the Minister introducing the legislation. The Act should not be interpreted in such a way for it would strike at the achievement of its obvious purposes. 7. The Court went on to say that: The construction urged for Dr McBride postulates a lacuna in respect of complaints not pending but relating to pre-amendment conduct. Such a gap in the legislation is not to be imputed to Parliament. It can be avoided entirely if the Act is interpreted as operating in its terms, attaching its consequences for the protection of the public to the conduct of the registered medical practitioner concerned, whether that conduct occurred before or after the amendments. There is no difficulty in so construing the Act. To do so is consistent with the achievement of its objects. It is consonant with long established legal authority dealing with analogous statutory provisions." 8. Thus in McBride the Court held that Dr McBride's conduct was to be adjudged by reference to the legislation in force at the time of the hearing, notwithstanding that the legislation was not in force at the time of the conduct. In reaching this view the Court noted that it led to Dr McBride being adjudged by a more stringent test (under the 1992 Act) than was in force at the time of the conduct. 9. This Tribunal is bound to follow the reasoning of the Court of Appeal, however unlike the facts in McBride, Dr Lui is not facing a more stringent test under the National Law.
7. We have had no submission to challenge the jurisdiction of the Tribunal to hear and determine Complaint One, nonetheless, the Tribunal needs to be satisfied it has jurisdiction. We have considered the above submission and we have had regard to the decision of the West Australian Tribunal in Pharmacy Board of Australia and Hamilton [2021] WASAT 138 and the Tasmanian Tribunal in Medical Board of Australia v Dr Paul David Thompson [2020] TASPT 2. Both those decisions addressed and adopted the decision of the NSW Court of Appeal in Walton v McBride [1989] NSWCA 222. Both found they had jurisdiction to hear and determine complaints which pre-dated the legislation under which they operated at the time of the hearing.
8. On the basis of the above, we find we do have jurisdiction to hear and determine Complaint One.
9. The HCCC then addressed the meaning of the words "unsatisfactory professional conduct" as the words appear in s.139B of the National Law. It also provided submission on the words "improper" and "Unethical" as set out in s. 139B(1)(l) of the National Law. It addressed matters of statutory interpretation.
10. In relation to s.139B(1)(a) the HCCC submitted as follows: "37. Assessing whether conduct falls significantly below the standard reasonably expected for the purposes of s 139B(1)(a) involves first ascertaining the benchmark standard which is expected of practitioners in the relevant field, and then how far below that standard, if at all, the proven conduct falls.2 38. In Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [82], Basten JA, with whom McColl JA and Sackville AJA agreed, said as follows: "Reference in the statute to a standard "reasonably expected" of a practitioner of a particular level of training or experience, is clearly an objective standard to be judged according to the standards of the profession generally." However the gravity of the misconduct "is not to be measured by reference to the worst cases, but by the extent to which it departs from proper standards. If this is not done there is a risk that the conduct of the delinquents in a profession will indirectly establish the standards applied by the Tribunal": HCCC v Litchfield [1997] NSWCA 264. 39. As discussed in Attia v Health Care Complaints Commission [2017] NSWSC 1066, the standards and obligations imposed on or expected of practitioners of a particular health profession prescribed in the applicable Codes of Conduct inform "the practice of the practitioner's profession" for the purpose of s 139B(1)(a), consistent with the requirement to give an expansive meaning to such provisions when instrumentally used in protective legislation such as the National Law. Section 41 of the National Law permits the Tribunal to have regard to the Codes of Conduct when considering the standard expected. 40. A specialist Tribunal such as NCAT has greater leeway in applying its specialist knowledge: Strinic v Singh [2009] NSWCA 15 at [65]. As Street CJ (Moffitt P and Glass JA agreeing) said in Kalil v Bray (1977) 1 NSWLR 256 at 262, an expert tribunal such as NCAT "draw upon its own expert resources to resolve such questions of expert science as might emerge from the objective, or lay facts proved in evidence before it" (approved of in Qasim v Health Care Complaints Commission [2015] NSWCA 282). In doing so, NCAT must give due weight to the expert evidence but "the ultimate responsibility for forming an expert view upon which the disciplinary powers will be exercised or withheld is with the tribunal itself." 41. Whilst NCAT is not bound by the expert opinions, and is entitled to take into account the professional expertise and experience of the medical professionals sitting on the Tribunal, it would need to state why it thought it appropriate to depart from the expert evidence if it decided to do so: Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 at [51]."
11. The HCCC then addressed the term "professional misconduct" as it appears in s.139B(1)(l) of the National Law. Its submission on those words is as follows: 42. Section 139E contains a definition of professional misconduct of a registered health practitioner, and provides: 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 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. 43. In determining the issue of professional misconduct the Tribunal must determine whether "the Respondent's contraventions […] considered as a whole […] are of a sufficiently serious nature to justify suspension or deregistration". This is an evaluative decision: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [56]. If so, a finding should be made of professional misconduct irrespective of whether such an order would be made in the particular case Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 per Basten JA at [67]). 44. Whether a particular course of conduct will be regarded as misconduct is to be determined from the nature of the conduct and not from its consequences: Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200."
12. The HCCC provided extensive submission on the law relating to assessing the credit of a witness. We have read that submission and do not repeat it here.
13. In particular the HCCC directed the Tribunal's attention to issues of credit which may be thought to attach to the evidence of Patient C. The HCCC submitted that the Tribunal should not be confused about Patient C's evidence because of the possibly poor interpretation which was provided to us.
14. The HCCC turned to address the evidence of each of the three relevant patients who gave evidence before us. The HCCC set out a summary of the written evidence of Patient A which was compiled from the original complaint document dated 20 May 1997 (Tab 6 of exhibit A1); Police Statement made 9 May 1997 (Tab 11 exhibit A1); Second Police Statement dated 15 May 1997 (Tab 12 exhibit A1) and Statement made to the HCCC dated 20 May 2019 (tab 9 of exhibit A1). We have set out our own summary of that evidence earlier in these reasons. We have also addressed the oral evidence of Patient A.
15. In relation to the oral evidence of Patient A, it was put that she was a very impressive witness. She had a good memory, however, where she was unsure she readily stated so.
16. The HCCC drew attention to the evidence of Patient A in relation to the use of the word "groin" in her police statements. The oral evidence of Patient A was referred to and her word she said she used which was "dick" (referring to his penis) rather than groin. Her words to Ms Toni Seton were clearly referring to her having felt the Respondent's "dick" as well as part of his groin.
17. The evidence of Ms Toni Seton was also addressed by the HCCC which submitted her evidence (Tabs 13 and 14 exhibit A1) is corroborative of the evidence of Patient A. She referred to words used by Patient A to her on the day of the consultation Patient A had with the Respondent as (I could) "feel his dick sticking into my bum." Ms Seton also described Patient A's demeanour and appearance upon her return to the office on the day of the consultation. It was consistent with a person who was distressed.
18. The HCCC addressed the evidence of the Respondent in relation to Patient A. It addressed the document written by the Respondent in response to the written complaint he had received from the HCCC by correspondence dated 20 May 1997. That document is dated 25 June 1997 and is found at Tab 30 of exhibit A1. In that letter he stated Patient A had been consulted in a consulting room with a partitioned area. He stated he was unable to see a patient when they were changing for the examination. He denied pressing his groin against Patient A's buttock.
19. The HCCC also set out relevant portions of the Respondent's Oral evidence addressing the complaint made by Patient A. In particular it is noted the Respondent said that whilst he could not recall what part of his body was touching Patient A during his examination of her, it was possible that his trunk and legs were touching her. It was also possible that his groin (excluding his genitals) touched Patient A. (T. 295-300.25).
20. The HCCC submitted that the Respondent's evidence in relation to his consultation with Patient A, overall lacked credibility. It submitted that the Respondent's failure to concede that if he was pressing his groin against Patient A during the procedure he was performing, necessarily included his genitalia/penis, highlighted his lack of credit and obfuscation.
21. The HCCC concluded its submission in relation to the evidence of the Respondent relating to his consultation with Patient A by submitting that the evidence of Patient A should be accepted in preference to that of the Respondent where their evidence conflicts.
22. In relation to the evidence of Dr Golding addressing the consultation undertaken by the Respondent with Patient A, the HCCC submitted his evidence was not challenged to the point where the Tribunal would be reluctant to accept same. The submission was that Dr Golding's evidence in relation to Patient A's consultation with the Respondent, should be accepted.
23. The HCCC then addressed Complaint 2 which related to the consultation between the Respondent and Patient B. That consultation, which gave rise to her complaint, occurred on 16 August 2018.
24. The submission highlighted that part of the consultation where the Respondent stood behind her and examined her stomach, Patient B found that part of the consultation very distressing. Whilst standing behind her he pressed his body against her buttocks for about 10 seconds and made her feel "disgusted". Following the examination the Respondent sat at his desk and the manner in which he was sitting led Patient B to conclude he was attempting to hide an erection.
25. The manner in which Patient B gave her oral evidence illustrated that she was still traumatised by her experience with the Respondent even though it occurred four years prior. On a number of occasions whilst giving her evidence she was visibly distressed.
26. It was submitted that the evidence of Dr Chong in relation to the complaint of Patient B should be accepted as there was nothing about his evidence which would suggest he held any antagonism towards the Respondent, quite the contrary. It was clearly a difficult circumstance in which Dr Chong found himself when Patient B complained to him about the consultation with the Respondent.
27. It was submitted that although Patient B could not recall that the Respondent had treated a corn on her foot, it should not be seen as reducing the weight which otherwise ought to be given to her evidence in relation to the consultation on 16 August 2018.
28. The HCCC submitted that Dr Golding's evidence to the following effect should be accepted: "Dr Golding's evidence in relation to Patient B was that Dr Lui's examining Patient B's abdomen from behind was not a recognised technique, was inconsistent with clause 3.2.6 of the 2011 Code and was significantly below the standard, including because it involved making contact between his body and Patient B's buttocks for a prolonged period of time where there was no clinical requirement to be in such proximity. Dr Golding was asked to form an opinion on whether or not there was a clinical justification for Dr Lui examining Patient B's abdomen from behind, noting that in the interview with the Medical Council on 13 November 2018 Dr Lui said that his justification for the examination was to perform an examination for an inguinal hernia. Dr Golding's evidence was that whilst it was reasonable to examine the inguinal canal for a hernia with patients presenting with lower abdominal pain, standing behind the patient and reaching around to palpate the inguinal canal is not a recognised technique. Moreover Dr Golding said: I do not see any advantage to examining the inguinal canals from behind and this technique inevitably will result in personal contact between the doctor and the patient which is inconsistent with s3.2.6 of the Code."
29. In relation to the evidence of the Respondent answering questions about his examination of Patient B the HCCC submitted the following: "Dr Lui's oral evidence in relation to Patient B is located at T320-331: a. Dr Lui had no recollection of telling Patient B that, even though she had presented with lower abdominal pain, he needed to examine her entire abdomen which started just below her bra: T320.45; b. Dr Lui said that when he examined Patient B he was standing on the side and behind, rather than directly behind her: T321.40. He then reached from behind Patient B pressing on parts of her abdomen and asking whether it hurt, although he no longer recalled which parts of her abdomen he pressed upon: T322.20-40; c. Dr Lui said that when he was pressing on the inguinal canal he was leaning forward trying to look at her face: T322.45; a. Dr Lui maintained that, unless he performed a standing examination, then an abdominal examination was incomplete. Dr Lui repeatedly maintained (in opposition to Dr Golding's evidence) that he could not properly check for an inguinal hernia when a patient was lying supine: T323-324; b. Dr Lui rejected the contention that when he was pressing against Patient B from behind that his genitalia was pressed into her buttocks and that he did so for his own sexual gratification: T324-325; c. Dr Lui agreed that he did not record any differential diagnosis or diagnosis at all at the end of the consultation, with Dr Lui saying he could not reach a view on the diagnosis: T327. He also agreed that when he gave the Medical Council a list of differential diagnosis including polycystic ovary disease, cystic lesions, pregnancy issues that they were all differential diagnosis that he thought about later, not at the time of the consultation: T327-328; and d. finally, Dr Lui gave evidence that he did not do gynaecological examinations/pap smears because he was worried about the medico legal risks that he had heard about from other doctors: T330. Dr Lui's evidence in relation to Patient B was as unsatisfactory as his evidence was in relation to Patient A including because he again repeatedly refused to answer questions directly, for example: T327-329."
30. The HCCC submitted that the Respondent's evidence was unsatisfactory in the same manner as it was in relation to Patient A. It submitted that the Tribunal would be comfortably satisfied that Complaint 2 has been made out.
31. The HCCC addressed its submission to Complaint 3.
32. Patient C's complaint related to a consultation with the Respondent on 10 September 2018. On that occasion she attended on the Respondent unaccompanied. That differed from the earlier consultation she had with him on 8 September 2018 when she was accompanied by her fiancé. She made no complaint about the consultation which occurred on 8 September 2018.
33. The HCCC points out in its submission that, like the complaints of Patient A and Patient B, the complainant of Patient C related to an examination of her abdomen by the Respondent whilst he stood behind her. She said he pushed against her buttocks with the whole of his genital area. She said she could feel the heat from his body as he was breathing heavily. She was so disturbed by the examination that she said she lied to the Respondent six or seven times claiming she had no pain so that he would conclude the examination.
34. The HCCC submitted the evidence of Patient C was not disturbed, in terms of its acceptability, by the cross-examination of her. The HCCC pointed to the distress of Patient C which was evident during her oral evidence. It submitted there was no reason to disbelieve any of Patient C's evidence.
35. The HCCC then addressed its submission to the oral evidence of the Respondent. It noted that the Respondent denied pressing his groin and his penis against Patient C's buttocks. He denied panting and standing behind her with his legs in a partial squat as described by Patient C.
36. The HCCC made the following further submission: "When asked what the clinical benefit was to performing another examination of her abdomen, notwithstanding the clear ultrasound and the clear examination 2 days previously, he said that it was because he felt a lump in the upper left quadrant of her abdomen. The lump was not recorded on the CT, and was not a finding that Dr Lui recorded in his notes: T335-336. When pressed on this Dr Lui gave the following evidence: Q: If you have honestly felt a lump in this woman's abdomen you would have recorded it in your records, wouldn't you Doctor? A: Because I didn't - I wasn't sure if there was a lump or not, so I try hard to feel the lump, to see if there is actually a lump, and I tried to feel that with a different position and I couldn't be 100% sure there was a lump or not, so at the end I decided not to record it because I'm not - I wasn't sure. And also the lump may have just been the splenunculi which is not significant. Or it could be a bowel spasm and - or it could even be some faeces. That is not significant so I thought that I didn't record it because it is not going to make any difference. But now after this happened I think I should have record it just in case it is something serious: T336. Dr Lui's evidence in this regard was wholly incredible. Dr Lui even suggested that during his examination he was trying to push (seemingly from Patient C's back) to see if he could potentially: "push any lump forward so that his other hand could feel it": T337.15-20. As with Dr Lui's previous evidence on this topic these statements should not be accepted. They are not credible. It is the HCCC's submission that there was no medical justification for this intrusive examination of Patient C - in particular in light of the clear abdominal examination undertaken 2 days previously by Dr Lui and the clear ultrasound result."
37. The HCCC addressed the evidence of Dr Golding in relation to Patient C. In particular it's submitted that Dr Golding opined that conducting and abdominal examination from behind the patient was inappropriate and significantly below the standard. Further the HCCC submitted: "In relation to the alleged examination of a lump on the upper left side of Patient C's abdomen Dr Golding was critical of Dr Lui's conduct. He said that the way that Dr Lui described the examination from behind was not a recognised method of performing an abdominal examination, was ineffective and likely to result in inappropriate contact with the patient, which is inconsistent with clause 8.2.1 of the Code."
38. The HCCC concluded its submission on Complaint 3 by saying the tribunal would be comfortably satisfied that each particular of Complaint 3 has been established.
39. The HCCC addressed its submission to Complaint 4. In that complaint the Respondent admits the complaint. The HCCC submits the Tribunal would be satisfied the Complaint is established.
40. The last of the HCCC submission addressed Complaint Five. This complaint alleges professional misconduct by the Respondent. This is a very serious complaint because to establish the complaint it has to establish that the conduct of the Respondent was of such seriousness as to warrant the suspension or cancellation of the Respondent's registration. Alternatively, more than one finding of unsatisfactory professional conduct, such that when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
41. In relation to Complaint Five the HCCC submits as follows: "In the circumstances of the above matters and noting the relatively unchallenged expert opinion of Dr Golding, the Tribunal would be satisfied that Dr Lui's conduct amounts to professional misconduct. In evaluating the seriousness of the proved instances of unsatisfactory professional conduct, the Tribunal ought have regard to the trust placed in Dr Lui by the patients, and their families. The dissenting judgement of Priestley JA in the NSW Court of Appeal in Richter v Walton, unreported, NSWCA 15/7/93 was cited with approval by the New South Wales Court of Appeal in HCCC v Litchfield (Ibid). Priestley JA said: The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest. The existence of the advantage of the medical practitioner and the trust placed in the medical practitioner by the patient creates an obligation on the medical practitioner to restrict their services to those which are reasonably necessary in the provision of therapeutic services to patients. Moreover, as Dr Golding explained in his evidence, to touch a patient is a privilege which is not to be abused. In these cases Dr Liu has entirely failed in his obligations towards his patients and in doing so his conduct should be denounced as professional misconduct."

The Respondent's Written Submission

1. The Respondent provided his written submission on 2 May 2022. In that submission we particularly noted the following.
2. The opening paragraphs of the Respondent's submissions are, we think important. The paragraphs are concessional and realistically appreciative of how the patients who gave evidence in this case were disturbed, confronted and made apprehensive by the method of examination undertaken by the Respondent with them. It is conceded that they may have reasonably concluded the Respondent was examining them in a manner that was intended to give him sexual pleasure. We set out those paragraphs here. "Primary submission 1. In simplified terms the complaint encompasses two aspects: clinical competence and sexual purpose. It is accepted that the Tribunal may have concerns as to competence due to the examination technique utilised by the Respondent, hence the Respondent's admission set out in the Reply to the Application. 2. It is further accepted that the Tribunal may experience a visceral response to this complaint of a General Practitioner having allegedly behaved in a sexual manner toward three young female patients, however it is incumbent upon the Tribunal to put aside responses that are not based on a close scrutiny of the facts. 3. The possibility that the conduct was for a sexual purpose is insufficient to prove the portions of the complaint that allege sexual, gratuitous, improper or unethical behaviour. The Tribunal must be concerned with probabilities, not possibilities: Briginshaw v Briginshaw (1938) 60 CLR 336. 4. The complaints regarding three patients, having been heard in a single hearing, can only be relied upon in relation to the other in certain circumstances. The Court of Appeal in Zaidi v Health Care Complaints Commission 1998 44 NSWLR 82 stated that it would be prudent in Tribunal proceedings for the judge to consider directing his fellow members that they should exercise particular care to consider the evidence on individual allegations separately. If any individual incident is found to be proved to the high standard required, only then could one incident lend compelling weight to the proof of another. Such a direction is necessary to protect against unconscious bias. It is noted in this regard that no such direction was operative upon Dr Golding in the preparation ofhe report and as such the potential of unconscious bias cannot be excluded (see Dr Golding's evidence in cross-examination at T221). 5. The Respondent denies any sexual purpose, having had no such mental state or intention at any time during the consultation, but accepts that his poor examination technique has resulted in the three patients believing that they were the subject of inappropriate behaviour. 6. The Respondent accepts that any witness can be truthful, earnest, upset about an incident, distressed by giving evidence about an incident, and adamant as to what occurred. However, any witness can also be mistaken about the mental state and intention of the other person involved in the interaction. It is submitted that the patients in the present case were so mistaken. 7. The propensity of the Respondent was to use an ineffective and deficient examination technique, and was not a sexual propensity. In the particular circumstances of the present case, the Tribunal would not be satisfied of the probability of the examinations being conducted for a sexual purpose, and as such would not be satisfied of professional misconduct on the basis of improper or unethical conduct."
3. In our assessment of the evidence in this matter we have been conscious not to allow suspicion to cloud our decision making. We accept the Briginshaw decision, as referred to above, sets out the guiding principle which is to be applied in weighing evidence in this case. We understand the seriousness of the allegation that the Respondent had conducted the examinations of each of the three complainants for no legitimate medical purpose, rather he conducted the examinations for his own sexual gratification.
4. The Respondent accepted, in his submission, that "due to his examination technique of each Patient A, B and C, he is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law) in that he has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised by him in the practice of medicine, was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience. The Respondent denies that he engaged in improper or unethical conduct in relation to Patient A, B and C under section 139B(1)(l) of the National Law."
5. The Respondent then set out the following in his submission: 9. The particulars of the complaint for each of the Patients variously allege that the examination technique utilised by the respondent was "sexually motivated", "gratuitous", "inappropriately close", pursued for "sexual gratification" and contrary to Sexual Misconduct policy and Sexual Boundaries guidelines. The particulars alleged, if admitted, would amount to the criminal offences of sexual touching pursuant to s 61KD(1)(a) of the Crimes Act 1900. In proof of criminal allegations, the circumstances in which the touching was done can be taken into account in determining whether a reasonable person would consider the touching to be sexual: s 61HB of the Crimes Act. 10. As such, the Respondent was constrained from responding to the particulars in full, in the absence of the protection of a s128 certificate pursuant to the Evidence Act 1995, when filing his Reply. This constraint extended beyond the allegations of touching to include the circumstances in which it was done. This constraint was operative when the Respondent filed his Statement dated 16 December 2021. 11. Notwithstanding that constraint, the Respondent sought to admit, to the extent he was able in the absence of a certificate, the fact that his examination technique was significantly below the standard. In the statement dated 16 December 2021, the acceptance of this fact is clear at p.3 paragraph [24], [45], [46], [50] and [52] as to the respondent's review of his examination technique since the complaints, including: (i) the importance of positioning to avoid any contact with a patient; (ii) the importance of avoiding examination positions that can appear too intimate; (iii) the importance of advice, explanation and consent prior to the examination of a patient in close proximity; (iv) the importance of explaining to the patient what a physical examination will entail and the purpose of conducting the examination; (v) the attendance at courses allowing for the observation of experienced physicians performing physical examinations; (vi) obtaining feedback from experienced physicians who have observed the respondent's physical examination technique; (vii) the implementation of improved techniques and patient explanations as a result of the above observation and study. At the s 150 hearing, at which time the Respondent was protected from the use of the evidence in criminal proceedings by s 150B of the National Law, the Respondent stated that after the 1997 complaint, he changed his examination technique in relation to skin cancer examinations and acknowledged he should have been more conscious of the sensitive nature of physical examinations in all examination contexts (p.48 lines 1-12). 13. During the hearing, the Respondent, once protected by the s 128 certificate, sought to file a further statement addressing the particulars, the tender of which was refused (T257). 14. In cross-examination, the Respondent made the following further admissions as to the deficiency of his examination technique: (A) in the past he had examined the abdomen from behind but after this complaint he would change his examination (T268); (B) he had not previously been aware of incidental bodily contact from behind but he is now very cautious of this (T299); (C) he did not previously pay much attention to the risk of touching a patient accidentally and thought it might be acceptable during the course of an examination but he now realises it is very serious (T308); (D) he accepted that the standing abdominal examination was not a recognised method (T338); (E) he would not use the technique of examining from behind in the future (T345); (F) after complaints in 2018 he no longer uses the technique of examining from behind (T350); (G) he changed this examination practice because of the effect on the patient (T350). 15. The Respondent has repeatedly indicated an acceptance that his examination technique was deficient, consistent with the Reply to the Application indicating the admission to unsatisfactory professional conduct. The Respondent has consistently denied any sexual motivation consistent with improper or unethical conduct.
6. The Respondent drew to our attention the decision of the NSW Court of Appeal in King v HCCC [2011] NSWCA 353. At paragraphs [67] and [68] the following was recorded. Whilst it may be able to be assumed in other contexts that such touching almost invariably has a sexual connotation, the same cannot be assumed in the case of a medical practitioner. In that case an objective determination of whether the conduct had a sexual connotation has to be made. The approach in Harkin was adopted in R v Manson (NSW Court of Criminal Appeal, 17 February 1993, unreported) and by the Victorian Court of Appeal in Sabet v R [2011] VSCA 124. It was also adopted (by reference to the decision in Manson ) by this Court in Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241; (2010) 77 NSWLR 17. In that case Campbell JA quoted the following passage from the earlier decision of R v McIntosh (NSW Court of Criminal Appeal, 26 September 1994, unreported): "To say that the test is an objective one does not mean that the alleged act of indecency must be considered divorced from its surrounding circumstances. These circumstances may show that what otherwise would be indecent was not - for example, an examination of a woman's vagina, ordinarily an indecent act when conducted by a stranger, would not be indecent if conducted by the woman's medical practitioner for medical purposes. The 'surrounding circumstances' include the intention or purpose of the alleged wrongdoer. If the medical practitioner in the example given was conducting the examination not to treat his patient but for his own sexual gratification the examination would be an indecent act (see Manson page 3)" ( Eades at [50]; see also per Basten JA at [9]).
7. In relation to the evidence of Dr Golding the Respondent submitted the following: "24. Dr Golding's evidence as to the Respondent's examination technique being significantly below the standard was not challenged and indeed founded the admission to unsatisfactory professional conduct as set out in the Reply to the Application. 25. It is noted that Dr Golding's opinion as to significantly below the standard in relation to examinations conducted from behind were based in part on the assumptions as to bodily contact: that the Respondent's groin came into contact with the body of the patient: see for example the opinion expressed as to Patient A's allegation that the Respondent's groin came into contact with her body (T198) and the opinion expressed as to Patient C's allegation that the Respondent's genital area was in contact with her body (T225). 26. Dr Golding expressed the opinion that contact was inappropriate, and that the impropriety related to the sexual connotation of the parts of the bodies that were touching: see for example T225. 27. Dr Golding's evidence cannot assist the Tribunal in the determination of the allegations of improper and unethical behaviour as to sexual intent or motivation: that being the sole domain of the Tribunal after having heard all the evidence, observed the witnesses and made findings as to fact."
8. The Respondent then turned to address each of the Complaints and the individual Particulars set out in the complaints. In relation to the evidence of Patient A the Respondent set out some particular references to the evidence of Patient A relating to the existence of a partition, behind which she could change, and where that was positioned in the consultation room (Particular 1). The Respondent referred to submission of the HCCC and stated as follows: "The submissions of the Applicant at paragraphs [48]-[49] are adopted with regard to the reliability of the evidence of a witness after a significant lapse of time. That is, that the contemporaneous recollection of Patient A ought be accepted that the partition was on the other side of the room and did not provide cover, as opposed to being folded and leaning against the wall."
9. The Respondent made submissions in relation to Particulars 2 to 6 of Complaint One. The submissions are extensive and we don't set those out verbatim.
10. The Respondent submitted that the Particulars 2 to 6 alleged impropriety and/or sexual motivation on the part of the Respondent. At paragraph 45 of the submission the Respondent set out the following: "45. Once the s128 certificate was granted during cross-examination, the Respondent gave evidence as to examining the patient in a lying and standing position (T288). He would ask the patient to lean forward to examine the back in a standing position so that the oil would not drip (T293). It is possible that his trunk was touching the patient but he can't recall (T295). It was possible that his groin touched her buttocks (T300). It was his preference to examine a patient's back in a standing position (T299). He did not pay attention at that time to the risk of incidental body contact but he is very cautious about the issue now (T299). He denied examining the patient in order to push his groin, including his penis, into her buttocks (T312). He denied crouching down to hide an erection (T313). It is noted that this was not the evidence of Patient A and ought not to have been put as a positive proposition. He could not recall examining a mole on her stomach whilst standing behind the patient (T313). At T308 the Respondent stated as follows in relation to the impropriety of incidental touching of his groin, trunk or legs with the patient: "I think in when we do examination, sometimes we could potentially touch a patient accidentally and I didn't pay too much attention at that time about this. But now I realise that this can be very serious so I will say at that time I wasn't so concerned about this. I didn't like - there's a lot of time in the examination is potentially touch other part of body and I didn't feel it was so serious but now I do understand now, this can be very serious, especially the situation where the patient cannot see and this can be interpreted as something very bad so now I do know very serious. But at that time, I thought it could be something like if you accidentally touch someone, it could be something acceptable in the course of examination."
11. The Respondent submitted that: "Contrary to the Applicant's submission, the Respondent made repeated concessions as to bodily contact with Patient A, that the contact was serious and that he had changed his examination practice as a result of the complaint."
12. The Respondent said that given the heightened state of Patient A at the time she attended the consultation (her first skin examination) and discrepancies in her evidence the Tribunal could not be satisfied to the requisite standard that the Respondent's: "penis, as opposed to his groin or hand came into contact with Patient A during the course of the skin check for a sexual purpose, as opposed to accidental contact due to an examination technique that was significantly below the standard."
13. In relation to Particular 7 the Respondent submitted: At the hearing, it was not put to the Respondent that he did not explain the method or the purpose of the examination. Nor does the Applicant make any submission in relation to this particular. As noted above, the Respondent's application to file a response after the s 128 was granted was refused in circumstances where the Applicant did not comply with Browne v Dunn (1893) 6 R. 67 (H.L.) and when the Respondent was not able to file a response after the grant of the s 128, it is submitted that the Tribunal ought not make a finding adverse to the Respondent on this issue. With Particular 8 the Respondent submitted: "The tenor of the complaint is suggestive of an avoidance of examinations that could lead to potential allegations of sexual impropriety, albeit not pleaded directly (as it is in relation to Patient B Particular 6).In the absence of such a specific pleading, the complaint is limited to the issue of clinical competence only. It is submitted that the Tribunal would not find this particular as forming a basis for a finding of significantly below the standard, given the evidence of Dr Golding that in the context of a young female patient at first examination, that he may not conduct the intimate examination of the first occasion, but would discuss the need for an intimate examination and arrange for a further appointment for that to occur (see T210-211)."
14. The Respondent addressed his submission to Complaint Two. The Respondent addressed Particulars 3 & 4 together having submitted Particulars 1 and 2 fell away because Patient B said her breasts were not touched by the Respondent during the consultation. Particulars 3 and 4 allege sexual impropriety.
15. The Respondent set out the evidence he relied upon once he had been given the protection of a s.128 Certificate. He submitted: "Once the s128 certificate was granted during cross-examination, the Respondent gave evidence as to examining the patient from behind but to the side of Patient B (T322). The Respondent was asked if he had an erection whilst performing the standing examination (NB: this was not the evidence of Patient B) which he denied (T325). He could not recall whether he crossed his legs when he returned to his desk (T325). The Respondent gave evidence that he had been taught to examine an inguinal hernia from behind and to the side of the patient and then to put his arm around as if it is the patient's arm so that the doctor is reaching from behind and above to push the hernia back (T342). The Respondent read the relevant portion of the textbook onto the record (T344)."
16. The Respondent submitted there was inconsistency in the evidence of Patient B about her having seen the Respondent to have an erect penis. The Respondent set out a portion of the transcript of the oral evidence of Patient B as follows: "So at the time when he finished examining me, the doctor finished examining me, he put his right left on top of his left leg. And because his right leg was on the very high position, the reason I noticed that was because usually the doctors don't cross legs when they talk to a patient. I haven't come across where the doctor like that and also in Asian culture particularly, it's rude to cross your legs when taking to someone in general. So when I saw that happen, I knew immediately what was happening. And even when we talk about crossing legs usually two legs will be very close to each other with a gap but he was leaving a gap in between with right le up higher. That's why at the time I was immediately disgusted by such position (T62)"
17. The Respondent submitted that the Tribunal would note the evidence of Patient B as "being in a heightened state" at the time of the consultation with the Respondent. She was also unsure of where the Respondent's left hand was when he was pressing on her with his right hand. Further it was submitted she could not identify which part of the Respondent's body was pressed against her when she said that happened.
18. The Respondent submitted the Tribunal would not find against him in relation to Particulars 3 and 4.
19. With Particular 5 the Respondent submitted he has, in his response to the initial complaint accepted that his explanation may have been inadequate. He submitted that Dr Golding in cross-examination "tempered his criticism of the explanation given to Patient B by the Respondent prior to examining her abdomen.
20. The Respondent made submission in relation to Particular Six. This Particular was critical of the Respondent for failing to undertake an invasive vaginal examination on Patient B in combination with an ultrasound. The Respondent submitted: "It is further submitted that the Tribunal would not find this particular as founding a basis for a finding of significantly below the standard given the less invasive alternative investigative options available to a doctor, noting the questions of Dr Golding by Senior Member Dr Fogarty at T229-230."
21. In submission as a conclusion to Complaint Two, the Respondent submitted the Tribunal would not be satisfied on the requisite standard that the HCCC has established this complaint so far as the Respondent being sexually motivated by his method of examination of Patient B. It was conceded the Tribunal would find that it is "satisfied of unsatisfactory professional conduct due to the fact that the Respondent's examination technique constituted conduct that demonstrates the knowledge, skills or judgment possessed, or care exercised by him in the practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience."
22. Complaint C was addressed by the Respondent. In relation to Particulars 1 and 2 of this Complaint the Respondent declined to make any submission given his admission in the Reply document.
23. In relation to Particulars Three, Four and Six, the Respondent addressed those together. The Respondent submitted: 90. Once the s128 certificate was granted during cross-examination, the Respondent gave evidence as to examining the patient. It was put to him as a positive proposition that he pressed his penis against her buttocks (T334), in circumstances where Patient C's evidence and indeed her statement to the HCCC in September 2019 was that she did not feel contact from his penis and nor was contact form the Respondent's penis particularised in the complaint. The Respondent denied the allegation including the assertion that he did so for sexual gratification (T334). He did not recall standing in a horse-riding stance and nor did he recall panting (T335). He agreed to having conducted a second standing examination from behind to palpate her abdomen (T337) and that he may have leant forward from time to time to see her face to assess pain (T337-338). He accepted that the standing abdominal examination was not a recognised method (T338). He denied pressing his groin including his penis into Patient C's buttock during the second examination (T338) (noting again that this was not the evidence of Patient C and nor was the complaint so particularised). 94. In evidence before the Tribunal Patient C stated that during the first standing examination, she could not remember which hand the Respondent used to examine her abdomen or her back (T148). Patient C accepted that she could not see what the Respondent was doing behind her, however she did see he knees in a crouching/horse riding stance, when she moved her eyes downward and to the right rather than turning her head (T149). She said she was terrified at this point (T151). There was a significant height difference between Patient C and the Respondent (T151). 100. It is submitted that the Tribunal ought not find that the Respondent's penis was pressed against Patient C when Patient C's evidence and indeed her statement to the HCCC in September 2019 was that she did not feel contact from his penis and nor was contact from the Respondent's penis particularised in the complaint. This positive proposition was not based on the evidence of Patient C and ought not to have been put to the Respondent in cross-examination. 105. It is submitted that the Tribunal could not be satisfied to the requisite standard that the Respondent's body came into contact with Patient A during the course of the examination for a sexual purpose, as opposed to accidental contact due to an examination technique that was significantly below the standard. Applying the standard in Briginshaw, the tribunal must feel an actual persuasion of sexual purpose, noting that a reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect references.
24. In relation to Particular Five, the Respondent acknowledged that he may not have explained to Patient C what was to occur in the consultation.
25. In conclusion to Complaint Three the Respondent submitted the following: 105. It is submitted that the Tribunal could not be satisfied to the requisite standard that the Respondent's body came into contact with Patient A during the course of the examination for a sexual purpose, as opposed to accidental contact due to an examination technique that was significantly below the standard. Applying the standard in Briginshaw, the tribunal must feel an actual persuasion of sexual purpose, noting that a reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect references.
26. The Respondent submitted the Tribunal would not be satisfied on the requisite standard that the Respondent had exhibited improper or unethical conduct. It was submitted the Tribunal would not be satisfied the Respondent had sexual motive in his examination technique.
27. In submission on Complaint Four the Respondent admitted this complaint as it relates to his medical record making.
28. Complaint Five was addressed in submission by the Respondent. He denies he is guilty of Professional Misconduct. He submitted: "The Respondent denies that he is guilty of professional misconduct on the basis of improper or unethical conduct, however accepts a number of particulars of unsatisfactory professional conduct, but does not admit that they are of a sufficiently serious nature to justify suspension or cancellation."
29. As a final submission of the Respondent we note the following: 113. The Respondent accepts that his clinical competence is a live issue due to the examination technique utilised, but strenuously denies any sexual intent. 115. It is submitted that none of the three incidents would be found proved to the high standard required given the sexual nature of the complaints. As such, applying the principle in Zaidi, none of the three incidents lend compelling weight to the proof of another.
30. The HCCC provided a Submission in Reply on 12 May 2022. In that we have particularly noted the following: "The HCCC did not ask the Tribunal to rely upon the similarity of the complaints as propensity evidence. The HCCC did not make a submission that the similarity of the complaints is demonstrative of any particular propensity. The HCCC's submission is that the Tribunal will independently find each of the complaints to be established."
31. The HCCC replied to the submissions of the Respondent relating to the "Standard of Proof". It urged the Tribunal to adopt the approach it took in HCCC v Chahoud [2022] NSWCATOD 36 at 130. There the Tribunal said: "In this determination we will make findings on the foundation of the requirements of s 140 of the Evidence Act 1995 (NSW) and the guidelines established by Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Those requirements and guidelines are well established and will serve us well in the determination of this Complaint. We understand that should the Complaint be established to our satisfaction there is the potential for serious consequences to the Respondent's ability to continue to practice medicine in Australia."
32. In response to the submission that the Respondent was denied procedural fairness in that he did not have available to him the benefit of a certificate under s.128 of the Evidence Act, the HCCC denied that was the case and submitted: 16. First, subject to the ordinary procedural directions made by the Tribunal, the respondent had an unfettered right to file and serve any relevant documentary evidence upon which he wished to rely. The respondent elected to serve a reply and also to provide a statement. The contents of each were a matter for him. The respondent chose not to provide further details in his statement or his reply. There was no constraint. 17. Second, the respondent elected to give oral evidence at the hearing. No application was made to lead any evidence in chief to supplement his evidence in chief (T.237.3). Again, the respondent made that election. 18. Third, during cross-examination, the HCCC fully put every particular of each complaint to him, and it is notable that other than the submission in RS [57], which is dealt with below) there is no suggestion that the HCCC failed to comply with its obligations under Browne v Dunn. Under cross-examination (and with the benefit of a certificate under s 128) the respondent was entitled to provide any relevant evidence in answer to questions. He had an unfettered right to provide fulsome explanations about the various consultations and his motivation for his conduct. Nothing precluded the respondent from making a full disclosure of any matter relevant to the proceedings, and it is plain that the respondent frequently gave lengthy and unresponsive answers to questions without interruption. 19. Fourth, at T 257-8, the Tribunal held that the respondent could not, at that time (ie after the HCCC had closed its case) file an amended reply without the consent of the HCCC. The proposed amended reply was never provided to the HCCC, and the application was not pressed. Whilst there had been reference to a "further statement" at T 255-6, with the HCCC's position being that there would be some difficulty with such a statement having the benefit of a s 128 certificate, the application was never pressed. 20. Fifth, the respondent was not precluded from giving extensive evidence in re-examination, even where (see T342.1-5) the Tribunal did not consider that it properly arose in re-examination. 21. There can be no doubt that the respondent was accorded procedural fairness. He had every opportunity to give evidence and make submissions. At no time was he constrained from submitting evidence and any contention to the contrary ought be rejected. 22. The repeated exhortation to the Tribunal to exercise caution in making findings adverse to the respondent because of the exchange at T 257-8 (or because he wished to file an amended reply which has never been served on the HCCC) should be rejected.
33. The HCCC replied to the submission of the Respondent that his examination technique was significantly below the standard and he admitted that was the case. The HCCC submitted: 24. There are a number of difficulties with this submission: 25. First, as is summarised at AS [70] and following it is not correct to say that the respondent has repeatedly conceded that his examination technique was deficient. To the contrary: a. he repeatedly sought to justify examining Patient A's from behind to avoid getting oil on the examination couch; and b. he repeatedly sought to defended his approach of examining Patient B and Patient C from behind, explaining that he did it this way in order to check for inguinal hernia. It would be an error to assume that the examinations of Patient A on the one hand and Patients B and C simply involved poor examination technique, noting that they were entirely different examinations, for different purposes, for different patients and in different settings. As stated at the outset of these submissions, the HCCC did not ask the Tribunal to rely upon the similarity of the complaints as propensity evidence or that the similarity of the complaints is demonstrative of any particular propensity.
34. In reply to the Respondent's submission on proof of sexual intention, the HCCC submits: 28. In RS [17], the respondent submits that the Tribunal must feel an actual persuasion that the respondent had a sexual intent when conducting the relevant examinations. 29. The HCCC accepts the relevance of the statements made by the Court in King v HCCC (extracted at RS [18]) insofar as it is relevant to proof of Complaint 1, particular 6, Complaint 2, particular 4 and Complaint 3 particular 4. Those particulars allege that the respondent engaged in the impugned conduct for his own sexual gratification. Thus the question for the Tribunal is what was the respondent's intention. 30. However, the respondent's submissions are not apposite to Complaint 1 particulars 3, 4 and 5, Complaint 2 particular 3 and Complaint 3 particular 3. Those complaints do not require proof that the respondent engaged in the impugned conduct for his own sexual gratification. Rather those complaints require proof, for example, that the respondent knew "or was reckless as to the likelihood that, Patient C could consider the contact to be sexually motivated". Thus it does not require proof that the respondent had sexual intent.
35. The HCCC then addressed its submission to "Other Matters". There we noted the following in particular. 34. The submissions, at RS [52], [53], [71], [84] and [101] are groundless. There is no basis for contending that each of the Patients were in a "heighted" state, a fortiori in relation to Patient A, with the clear implication being that their evidence could not be trusted. Additionally Patient A was asked if she could "see" what was happening behind her (T105) and not whether she could discern from his body or movement where he was (cf T107.39) and stated that she turned her head sideways to see his position (T109) and finally she confirmed "So both my buttocks were in contact with the doctor's groin but his penis from my memory was towards my anus on the right buttock" (T113). 41. The submission at RS [73] overlooks that, whilst Patient B of course conceded that she could not see behind her, a person is ordinarily able to physically feel a person who is standing directly behind them and pressing their groin into a buttock. The submissions above in relation to Patient A on this topic are repeated (see T54 and T55). As the respondent's counsel submitted at T57, "No, as I understand her evidence today, she has accepted that she just cannot say what was up against her touching her buttocks because she didn't look behind her. So it will be a matter for the tribunal whether they're satisfied it was Dr Lui's body up against her buttocks." This was rejected by the HCCC's counsel as a fair summation of the evidence. Again it was not put to Patient B that she was unable to identify the part of the respondent's body touching her by other means. 45. Patient A - C independently gave clear, consistent and believable evidence about what they experienced and the Tribunal had the benefit of their written and oral evidence to support the complaints.

Determination

1. This is a determination of Stage One only. That requires us to determine if the HCCC has established its' case as presented to the Tribunal. Part of the HCCC's case is conceded by the Respondent. He admits that he has demonstrated unsatisfactory professional conduct in relation to his treatment of Patient A, Patient B and Patient C. He denies he is guilty of Professional Misconduct as defined in section 139E of the National Law.
2. We have carefully considered the evidence in this matter and we make the following findings.
3. The first thing to note in this determination is that many Particulars in the Complaints are admitted by the Respondent on the basis that he concedes he is guilty of unsatisfactory professional conduct as defined in s.139B(1)(a) of the National Law.
4. In relation to Complaint One the Respondent, in his Reply document, made the concession he was guilty of s.139B(1)(a) unsatisfactory professional conduct. He declined to address the Particulars to Complaint One until he had the protection of a s.128 Certificate. Complaint One set out the details of a consultation between the Respondent and Patient A.
5. In relation to the Particulars of Complaint One we find that Particular 1 is established where it alleges the Respondent failed to provide Patient A with appropriate items to cover herself once she was stripped to her bra and underwear. We are also satisfied that even if there was available in the consultation room a screen behind which Patient A could have changed, she understood, for some reason, that it was not available to her and there was no indication from the Respondent that she should change behind the screen. Her evidence was that the partition which suggested it was there to allow privacy for a patient to change behind, "was not in a position where I could cover myself whilst I did change into my underwear."
6. In relation to Particulars 2 to 5 we find each of those Particulars established on the evidence before us. We do not find Particulars 6 and 8 established.
7. In making the findings in relation to Complaint One we add the following.
8. The Respondent has largely admitted the complaint and the Particulars supporting same. He denies Particular 6 which alleges he conducted parts of the examination for his own sexual gratification. He conceded he was not particularly conscious of his body coming into contact with Patient A during the consultation in 1997. He agrees such a circumstance is a very serious, although not specifying why. He agrees that some body-contact could raise alarm in a patient as to the practitioner's motivation. He was not particularly aware of that matter when he consulted with Patient A.
9. Patient A was a compelling witness. She had a clear recollection of matters which disturbed her arising from the consultation even though it had occurred some 25 years earlier. She was clearly of the view that the examination took place in a manner which made her think the Respondent was conducting it, in part, for his own sexual gratification. The contact she felt to her buttocks when the Respondent touched her buttock with his groin area occurred twice. She described it as "pushing into my backside".
10. In her statement made 2 May 2019, Patient A said that when she felt the Respondent's groin against her buttock, she "could feel his penis was erect". She said she felt his erect penis against her a second time during the consultation.
11. She was so outraged by what she thought had occurred that she spoke to a work colleague and then to NSW Police in very close proximity to the date of the consultation.
12. This is not a case where we can be satisfied that there was no medical purpose in the manner in which the Respondent conducted his examination of the Patient A's moles and carried out the procedure of examining same such that it might lead to the inference that the examination must have been for another purpose. Certainly, the examination took place in an unconventional manner, however, the Respondent claimed he was conducting the examination of the moles he observed on Patient A in the manner in which he had been taught was appropriate. We cannot be satisfied, on the requisite standard, that the Respondent conducted the examination, in part, for his own sexual gratification.
13. We are satisfied that examining a mole on Patient A's abdomen whilst standing behind her is not a recognised examination method. We are satisfied that the examination of Patient A by the Respondent was conducted in a manner which was reckless in that it almost inevitably would lead to physical contact between the Respondent's groin area (including his genitalia) and the buttock of Patient A. We are satisfied that Patient A felt what she believed to be the Respondent's erect penis pressing against her buttock during the consultation. We accept Patient A considered she had been sexually abused/assaulted by the Respondent during her consultation with him. We cannot be satisfied on the evidence before us that the Respondent conducted the examination of Patient A with the intention to obtain his own personal gratification either as the only purpose of the examination or as an ancillary benefit to him whilst conducting the examination for a stated different purpose, namely, to examine Patient A's body seeking to find evidence of cancerous lesions. We are not satisfied the Respondent did have an erect penis at the time he made contact between his groin area and Patient A's buttock. To make such a finding we determine we would need further evidence beyond "it felt like an erect penis". Such a finding carries very serious consequences for the Respondent and therefore requires compelling evidence which satisfies the Briginshaw standard.
14. We note a suggestion in the submission of the Respondent that Patient A and Patient B would not have known if the Respondent's left hand came into contact with their buttocks, rather than an erect penis, during their consultations with the Respondent. We note that there is no evidence that there was any reason why the Respondent would be required to place his hand on the buttock of either patient, for any medical purpose, during either of their examinations by him.
15. We particularly noted the evidence of Patient A that "I still recall in detail to this day the events that occurred and think about it often even now. It has taken me many years to trust a male doctor again." We accept the legacy of the consultation Patient A undertook with the Respondent has had a long lasting impact on her life.
16. In relation to Particular 8 we are not satisfied that the standard required the Respondent to conduct an examination of Patient A's breasts and genitalia. We do conclude that he should have advised Patient A of the potential for lesions to occur in those areas and recommend that she examine herself and report any concerns to her GP or alternatively ask her GP to conduct the examination of those areas for her. The Particular 8 only addressed the Respondent's failure to examine rather than a failure to give advice.
17. In relation to Complaint Two we make the following findings.
18. We firstly note the Respondent in his reply admits he is guilty of unsatisfactory professional conduct as set out in Complaint Two limited to the unsatisfactory professional conduct as defined in s.139B(1)(a). He restricts that further by the inclusion of the words "due to his examination technique." He denies he engaged in improper or unethical conduct under s.139B(1)(l).
19. We note that unlike Patient A, Patient B attended upon the Respondent for a different medical complaint. She was not seeking consultation for skin lesion detection. She sought consultation because of abdominal pain. Consequently, it may reasonably be expected that his method of examination of Patient B would be different to that employed with Patient A.
20. The Respondent declined to respond to the Particulars supporting Complaint Two until he had the protection of a Certificate under s.128 of the Evidence Act.
21. Particulars 1 and 2 stated that the Respondent had exposed, felt and palpated Patient B's right Breast. During the oral evidence Patient B denied that had happened. As a consequence, those Particulars have not been established.
22. In relation to Particular 3 the allegation is that during the examination of Patient B the Respondent brought his groin area into contact with Patient B's buttocks and held that position for about 10 seconds. The Application upon which the HCCC moved was amended in the hearing on 7 February 2022 to remove the words "including his penis" from Particular 3 to Complaint Two.
23. In the submission of the Respondent, he does not acknowledge that his body either did come into contact with the patient's buttocks or that it may have done so due to his method of examination. He said in his submission: "The Respondent gave evidence that he had been taught to examine an inguinal hernia from behind and to the side of the patient and then to put his arm around as if it is the patient's arm so that the doctor is reaching from behind and above to push the hernia back (T342). The Respondent read the relevant portion of the textbook onto the record (T344)."
24. Although Patient B was emotional when giving her oral evidence, she was clearly disturbed by the method of examination conducted by the Respondent. She clearly considered the Respondent had sexual self-gratification motivating his examination procedure. As such she was of the opinion, he was seeking to hide his erection immediately following the examination.
25. We are satisfied that the Respondent's groin and genital area did come into contact with Patient B's buttocks during the examination he conducted of her.
26. We are satisfied that the Respondent "knew or was reckless as to the likelihood that Patient B could consider the contact (which occurred between the Respondent's body and hers during the consultation), to be sexually motivated."(Particular 3 (a)). We also find Particular 3 (b) and (d) established. We find the Respondent's groin area did come into contact with the buttock of Patient B during the examination he conducted of her.
27. In relation to Particular 4 we are not satisfied the HCCC has established the Respondent engaged in the manner of examination for his own sexual gratification. Such a finding would require us accepting evidence which was not available in this case. In this regard however, we note that the Respondent had received the complaint of Patient A in 1997 which should have alerted him to the possibility of female patients being offended and confronted by the manner of examination where there was contact between the Respondent's body and that of the Patient. We are concerned that in 2018, when he examined Patient B, he no longer appeared to have in his mind he needed to be careful about the manner in which he conducted a physical examination of a patient. Whilst the circumstance of the examination of Patient B by the Respondent could be seen to raise suspicion of sexual motivation in an unqualified observer, we are not satisfied the evidence, as it was presented to us, meets the standard required, as we have already addressed.
28. In relation to Particular 5 the Respondent has accepted in his submission that his explanation to Patient B about the method and purpose of the examination before it was conducted was inadequate. He said that Dr Golding "tempered his criticism of the explanation given to Patient B by the Respondent prior to the abdominal examination, when Dr Golding gave oral evidence. Nonetheless we are satisfied this Particular is established.
29. Particular 6 complains that the Respondent failed to perform a vaginal examination and take vaginal swabs of Patient B during the consultation which gave rise to the complaint. The Respondent submits that the Tribunal would not find this Particular established, particularly following the questions asked of Dr Golding by Dr Fogarty during the oral evidence of Dr Golding. On balance we do not find this Particular established. At least on a practical approach it is highly unlikely that Patient B would have consented to such an invasive procedure given her state of apprehension at the conclusion of the physical examination which had been conducted by the Respondent beforehand. We accept there were other less invasive options open to the Respondent, however, on the evidence before us none of those were taken. Clearly the Respondent did not refer Patient B to another specialist practitioner for further opinion or examination.
30. We accept the evidence of Patient B that she was so disturbed by what she thought had occurred to her during the examination (that is she was subjected to sexual abuse) she sought the help and counselling from her GP and psychologist. Patient B's anxiety was heightened, we accept, by the Respondent's failure to inform her why he was examining her as he did and also what he was looking for with his examination.
31. In relation to Complaint Three we make the following findings.
32. Firstly we note Patient C presented as a highly intelligent woman with a good command of the English language. She nonetheless used the services of an interpreter.
33. We note that the Respondent admits that he is guilty of unsatisfactory professional conduct as defined by s.139B(1)(a). He confines his admission to his examination technique. He denies he engaged in improper or unethical conduct.
34. The Respondent in his Reply document agrees that Patient C was seen on 8 September 2018 and on 10 September 2018. The Respondent otherwise declined to respond to the Particulars in Complaint Three without the benefit of a Certificate under s.128 of the Evidence Act.
35. Particulars 1 and 2 to Complaint Three allege a failure of the Respondent to conduct an adequate examination of Patient C on both 8 September 2018 and 10 September 2018. The Respondent declined to make any submission on those two Particulars given the admission he made in his Reply document, conceding he was guilty of unsatisfactory professional conduct. We do accept those two Particulars are made out on the evidence before us, in particular that of Patient C and Dr Golding.
36. Particular 3 alleges the Respondent brought his groin area into contact Patient C's buttocks and held it there for 10 to 30 seconds and that such action was inappropriate in circumstances where there was no consideration for the likelihood that Patient C could consider the contact sexually motivated. It stated the technique of examining Patient C's abdomen from behind her was ineffectual and not evidence based. The conduct was contrary to the Medical Board of Australia's "Sexual Boundaries: Guidelines for Doctors (28 Oct 2011)".
37. We find the detail in Particular 3 established. We also accept the Respondent did bring his groin area into contact with the buttock of Patient C. We accept the HCCC has established the balance of Particular 3 as we have set out. In so finding we have accepted the evidence of Patient C and of Dr Golding.
38. As with the findings in the earlier complaints, we are not satisfied that the HCCC has established Particular 4 which alleges the Respondent conducted the examination of Patient C, in the absence of her fiancé on 10 September 2018, for his own sexual gratification. Again we repeat the earlier statements that we are required to be satisfied on the acceptable standard of proof and not suspicion. Again we are concerned this examination, which took place on 10 September 2018 at a time when Patient C was not accompanied by her fiancé and after the examination of Patient B the previous month, did not enliven the Respondent to the necessity to be very careful in the examination of a patient. We acknowledge that the Respondent had not received the Complaint lodged by Patient B before 10 September 2018 when he examined Patient C.
39. In relation to Particular 5, the Respondent acknowledged he may not have given Patient C an explanation of the method and purpose of the examination. We are satisfied Particular 5 is established.
40. Particular 6 alleges that on 10 September 2018 the Respondent attempted to examine Patient C from behind and from the side while pressing his body against hers. That method of examination was ineffective and not evidence based. Further that method necessarily involved "gratuitous" physical contact with Patient C. To the extent the word gratuitous, as used in the Complaint is used to denote "unwarranted" we are satisfied that portion of Particular 6 together with the balance of the Particular has been established to our satisfaction.
41. We have relied upon the evidence of Patient C and Dr Golding in satisfying us that the Complaint Three is established as we have found.
42. In relation to this Complaint by Patient C we accept her evidence that she felt sexually harassed by the Respondent because his body was touching her buttocks. We also accept that during the standing examination Patient C felt afraid and "just wanted to leave as soon as possible."
43. In relation to Complaint Four the Respondent admits the complaint and the Particulars thereto. We are satisfied that Complaint is established.
44. In relation to Complaint Five the Respondent denies he is guilty of Professional Misconduct as defined by s. 139E of the National Law.
45. The HCCC relies upon the second portion (ii) of s.139E to establish its' Complaint. That provision requires us to be satisfied that the Respondent: "engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration."
46. Firstly, it needs to be recognised that should a finding be made against the Respondent, as above set out, that does not mean that in Stage Two determination the Respondent's registration must be suspended or cancelled. The section refers to "sufficiently serious nature" of the conduct which would justify a protective order which suspends or cancels a practitioner's registration. In support of that statement, we note the following.
47. In Heath Care Complaints Commission v Daly [2015] NSWCATOD 113 at [131] citing HCCC v King [2013] NSWMT 9 the Tribunal stated that where a practitioner is found guilty of more than one instance of unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of her registration, according to s 139E(b) of the National Law, this finding does not mean that the practitioner's registration must be suspended or cancelled. (See also See Health Care Complaints Commission v Gautam [2020] NSWCATOD 146 at [61])
48. The NSW Court of Appeal decision in Hampshire v Health Care Complaints Commission [2021] NSWCA 283 at [71], set out the following: "[71] The Tribunal correctly noted that the finding of professional misconduct did not mean that registration must be suspended or cancelled; rather, the finding could justify suspension or cancellation of Dr Hampshire's registration. After referring to authority that protective orders are not intended to punish the practitioner but to protect the public (Clyne v NSW Bar Association (1960) 104 CLR 186; [1960] HCA 40 ; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 ) and to the principles discussed by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] , the Tribunal took into account the following matters (at [175]):
49. Secondly, even if the finding is made that the Respondent is guilty of Professional Misconduct, we have heard no evidence or submission, which addresses Stage Two and the Protective Orders which could or should be made.
50. We have considered the evidence upon which Complaint Five is made. We do consider the conduct of the Respondent as very serious unsatisfactory professional conduct. We find the Respondent is guilty of professional misconduct as defined by s.139E(ii) of the National Law. We consider that to be the case because of the following.
51. All of the complainants are young women. All of the Complainants were very disturbed/distressed by the method used by the Respondent to examine their bodies. Each of the Complainants underwent examination by the Respondent for a different complaint yet each had the Respondent standing so close to them during the examination that they could feel the Respondent body against their body in a position where they could not actually see what he was doing with his groin area which was in contact with their buttock. Each clearly reached a conclusion that the Respondent was indulging himself in a sexual activity. None received any adequate explanation as to what was to be involved in the examination and why it was necessary during part of the examination for the Respondent to stand in a position where his groin was in contact with the buttock area of the patient.
52. In a somewhat contradictory circumstance the Respondent stated in his oral evidence that he had a concern for medico legal action when he was asked why he did not conduct a genital examination of one of the Complainants. Further the Respondent had been provided with details of the complaint of Patient A many years before he conducted the examination of Patient B and Patient C. He was clearly on notice that an examination of a patient which involved his groin area coming into contact with the buttock of a patient could/would lead to a complaint being made, which in fact occurred.
53. The HCCC highlighted the potential for misinterpretation of an action during a consultation, where the groin area of the medical practitioner came into contact with any part of the patient's body, particularly the buttock area, should there be a proper and appropriate reason for adopting such methodology, in a medical examination.
54. At its highest the Respondent's case is that the contact which did occur, should the Tribunal be so satisfied, was accidental. Such an approach smacks of lack of care for a patient. It has the potential to erode the patient's confidence in medical practitioners as a whole.
55. We are also very concerned that this case is not conducted on the basis of one complainant. There are three different complainants who have been so affronted by the conduct of the Respondent towards them that they have made a complaint and been prepared to follow up on that to the extent of making themselves subject to oral examination in the Tribunal. That should not be regarded lightly.
56. In the case of Patient A we are satisfied from her evidence that:

• She felt very uncomfortable when the Respondent's groin touched her buttock.
• She was so affronted that she resolved never to return to see the Respondent even though she required to have two moles excised.
• She clearly considered the Respondent had become sexually excited in the consultation ("got his rocks off" was her description).

1. In relation to Patient B we are satisfied from her evidence that:

• She suffered emotionally and psychologically as a result of the consultation. She sought help from her GP and her psychologist.
• She was left without explanation from the Respondent as to the purpose of his examination of her. ("At no time did he explain why he was examining me.")
• She felt sexually harassed by the Respondent because his body was touching her buttocks.
• During the second standing examination Patient B felt afraid and wanted to leave the consultation as soon as possible.
• Patient B said she was extremely scared at that time because she didn't know why the Respondent wanted to conduct that examination.
• Patient B felt she was "tortured by what happened."

1. In relation to Patient C we are satisfied from her evidence that:

• She felt contact from the Respondent on her buttock. It was definitely not just clothing which was in contact with her buttock.
• She felt she had been sexually harassed by the Respondent.
• She promised herself never to set foot in that clinic again.
• Patient C described herself as being "terrified" when the Respondent was standing behind her. She said: "I just can't move".
• Although when the Respondent pressed on her body with his hand it did hurt her she told him it did not in the hope that would bring the examination to an end.
• Reliving the events of 10 September 2018 so distressed Patient C whilst giving her evidence that it was necessary to take an adjournment to allow her to regain her composure.

1. In the evidence of Dr Golding, the following findings added to our determination that the Respondent is guilty of professional misconduct:

• In relation to Patient A Dr Golding opined that the method of examination of a mole on the abdomen of Patient A while the Respondent stood behind Patient A is not a recognised type of abdominal examination and in his opinion is likely to be ineffective. It will inevitably lead to unnecessary physical contact with the patient.
• Kneeling behind the legs of Patient A to examine them is not a supported or recognised examination technique.
• In relation to the Respondent examining the inguinal canals from behind the patient, "this is not a recognised technique. I do not see any advantage to examining the inguinal canals from behind and this technique will inevitably result in personal contact between the doctor and the patient which is inconsistent with s 3.2.6 of the Code. The technique is also inconsistent with s. 8.2.1. of the Code: Maintaining professional boundaries".
• With the examination of Patient C the method of examination, namely standing behind Patient C to examine her abdomen AND whilst she was clothed, "is not a recognised method of abdominal examination."
• Examining Patient C's abdomen "from behind is inappropriate".
• Examination of a patient's abdomen from behind is not a recognised technique for abdominal examination in any circumstance.
• In his oral evidence Dr Golding said that "doing a purposeless examination of a mole from behind provides no information and no benefit to the person and in my view is a misuse of the power inherent in the patient/doctor relationship. I think it is an exploitation of the person." "It is at least physical and emotional exploitation." It is "an unnecessary examination which will inevitably lead to contact between the doctor and the patient with no benefit to the person (patient) at all."
• If you have an accidental contact from a meaningless examination, then it is the responsibility of the doctor for having performed an unnecessary examination.
• An inappropriate touching of an intimate part of a patient without good cause is not consistent with good medical practice.
• Dr Golding was asked: Have you ever seen any teaching protocol which would suggest an examination of a patient with abdominal pain or an abdominal mole, from behind? He answered: "No and if there were stronger alternatives to significantly below the standard I would have used those."

1. We note much of the opinion evidence of Dr Golding was given in support of his advice that a particular part of the Respondent's consultation with the subject patients was significantly below the standard as defined by s.139B(1)(a) of the National Law.
2. In the oral evidence of the Respondent, we noted that some of his evidence defied logic. An example is found in the cross-examination of the Respondent where he agreed with the evidence of Dr Golding that the earliest sign of an inguinal hernia is a bulge in the abdominal wall. It was then put that such evidence could not be seen if the Respondent was standing behind the patient to examine the inguinal area. The Respondent denied that saying: "You can bend forward you can see it."
3. We also found the oral evidence of the Respondent that he recalled when he saw Patient A for a consultation, she changed behind the partition in his consultation room, problematic given the consultation had occurred in 1997 and he had considered the consultation, at the time, uneventful.
4. The Respondent's oral evidence that his groin area did not include his genitalia we found difficult to accept.
5. We note the Respondent's oral evidence where he accepted the "standing abdominal examination" is not a recognised method of performing an abdominal examination. He nonetheless denied it was ineffective. He asserted he had been taught to examine for an inguinal hernia by standing behind and to the side of the patient. The Respondent read onto the record a portion of a medical textbook which he said validated the method of examination of the inguinal area of a patient to check for a hernia. The portion read did state that the examination is performed "standing at the side of the patient" (not behind). It also was describing the procedure of "reducing or supporting the hernia". The quote said: "You can only do this if your arm comes from a position above and behind the hernia." In the case of Patient B the Respondent had already examined Patient B whilst she was prone on his examination bed before asking her to stand for the 2nd examination which he conducted while standing behind her. There is nothing in his evidence to suggest he observed any indication of an inguinal hernia in the examination of Patient B whilst she was prone.
6. The evidence of the Respondent that he did not change the method of examining the abdomen from behind a patient until after he received the complaint of Patient C because he did not appreciate that had been part of the complaints of Patient A and Patient C lacks credibility for us.
7. The Respondent adopted the "stand behind" examination pose to examine a mole on the abdomen of Patient A and in the examination of Patient C where he had not stated he was searching for a possible inguinal hernia.
8. For all the above reasons we consider the conduct of the Respondent to be very serious conduct and as such we do conclude that it satisfies the provisions of s.139E(ii). That is that the cumulative findings of unsatisfactory professional conduct reach a point of being so serious in its nature as to justify an order for the suspension or cancellation of the Respondent's registration. Additionally, the conclusion that this conduct of the Respondent involved three separate female patients, all presenting with different medical conditions/complaints, is an important matter to consider when determining the conduct of the Respondent amounts to professional misconduct, as we have so determined.

Orders to be made 1. The Tribunal finds the Respondent guilty of professional misconduct and unsatisfactory professional conduct pursuant to s.139E(b) and 139B(1)(a) of the National Law. 2. The Registrar is to allocate hearing dates for the determination of Stage Two in this matter, namely, to determine if Protective Orders should be imposed upon the Respondent.

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: 03 August 2022