Health Care Complaints Commission v Mohan

Health Care Complaints Commission v Mohan - [2024] NSWCATOD 134 - NSWCATOD 2024 case summary — Zoe

[3]

Person A - Particular 1 1. Between approximately April to 2 July 2022, while working night shifts at the Hospital alongside Person A, the practitioner behaved inappropriately towards Person A by: 1. invading Person A's personal space so that he was physically close to her. 2. poking Person A in the stomach with his pen. 3. grabbing Person A's pen out of her breast pocket without asking for permission before doing so. 4. pulling Person A's surgical mask down. 5. making a comment to Person A that she looked prettier without a mask on when no one else was present. 6. pulling out Person A's hair tie on approximately ten occasions. 7. making comments to Person A that she looked prettier with her hair down. 8. looking at Person A's mobile telephone over her shoulder as she was using it. 9. massaging Patient A's shoulders when she was ordering food for the team. 10. grabbing Person A's wrist and pulling her into a small medication room and: 1. standing in front of Person A when her back was up against the wall, blocking the entrance to the room; 2. pulling down Patient A's surgical mask, 3. touching Patient A's lip with his thumb; and 4. making the comment to Patient A 'you look beautiful." 1. asking Person A if she had a boyfriend. 2. asking Person A if he could see a picture of Person A's boyfriend on her mobile telephone. 3. putting his hand on Patient A's waist and pulling her into a vacant, dark hospital room. 4. asking Person A when she was next working. 5. asking Person A the following: 1. where she lived; 2. how far her house was from the hospital; 3. what her house looked like; and 4. if he could see a picture of her house on her mobile telephone

Person A said that she started work as a casual nurse at the Private Hospital in 2017 and began work as a full-time nurse there in 2021. At the end of 2021, at her request, she began working only night shifts. She said that while she was aware of the Respondent before that time, she encountered him while she and he were working weekend night shifts. She gave evidence in accordance with the particulars of Complaint 1. In relation to the Respondent grabbing a pen from the breast pocket of her uniform, she said that the Respondent was well known for not having a pen to hand and he would often ask a nurse to give him a pen, however she said that on occasion he would take the pen from the top breast pocket of her uniform without asking her and she said she felt it was inappropriate and that she had not given him permission to touch her.
Person A said that over time the Respondent's conduct towards her escalated and on occasions pulled down her mask and told her that she looked prettier without a mask. She was on her own at the nurses station at that time. On more than one occasion the Respondent removed Person A's hair tie saying that she looked "prettier" with her hair down.
There were two incidents which Person A regarded as being significant. In the first the Respondent pulled her into the medication room and her back was to the wall and the Respondent was standing in front of her. He pulled her medical mask down and touched her lip with his thumb and said "you look beautiful". Person A said that it was between 10pm and midnight and the corridor lights were off. She said however that the staff were still busy with patients. The lights were on in the medication room. Person A said that this event made her feel very scared and she immediately spoke about it to a more senior nurse, Person B.
Person A said that in this incident she was standing near the medication room. She said that the Respondent: [said] something like "come closer" I didn't understand what he meant and said, "sorry what was that?" as I walked closer towards him. [the Respondent] grabbed my wrist and pulled me into the medication room. My back was up against the wall and he was standing directly in front of me and blocking the entrance to the medication room. At that time, he pulled my mask down and said, "you look beautiful without your mask on". I just said, "oh thank you for your compliments. I need to go see my patients now".
A few weeks later, on the 2 July 2022, Person A said that she needed to call the Respondent to look at a patient in room 39 of the Hospital. Person A said that she recalled it happened shortly after handover which is usually between 9 and 9.30 p.m.
While she was waiting for the Respondent to attend, she attended to another patient in room 47 and then stood in the hall between rooms 47 and 41. Room 41 was vacant and the light was off. The Respondent arrived and put his hand on her waist and pulled her into the empty room where the light was off. Person A said: I pushed [the Respondent] away and said "what are you doing".
She said that she did not want to make a scene and she was embarrassed. The Respondent answered her question about the patient in room 39 and left without saying anything. Person A said that this incident left her shaking and scared.
Person A immediately told a co-worker Nurse Khadija who asked her whether she wanted her to speak to the Respondent. Person A refused because she was concerned that the Respondent might make her job difficult. Person A said that she was not a confrontational person and felt uncomfortable.
Person A said that this episode left her scared and she asked the other nurses with whom she was rostered on not to be left on her own.
On the same evening, Person A was ordering a pizza delivery to the ward for staff dinner. The Respondent saw what they were doing and offered to pay. She said there was no need but the Respondent insisted. Because she did not want to make a fuss, Person A said she agreed. While person A was at the computer ordering, the Respondent stood behind her and massaged her shoulders. She said to him; "I don't feel comfortable people touching me. I don't like being massaged".
Person A said that on that night she received a text message from her sister which she read. The Respondent said: "… are you texting your boyfriend. Do you have a boyfriend? Do you have a photo?"
Person A said she did have a boyfriend but in answer the Respondent's further questions told him that she did not want to discuss her personal information while at work. Person A told the Respondent that she did not want him looking at her phone and he persisted in wanting to look at the screen.
Person A said that the Respondent pulled the tie out of her hair and she asked him to stop. He said "have I annoyed you?" she said "yes". She said to him "stop harassing me" to which she said the Respondent responded "harassing? I'm not harassing you" and laughed and walked away. She said she felt horrible.
As a result of the incidents that occurred on 2 July 2022, Person A made a complaint to the Nursing Unit Manager ("NUM"), Person C who, in turn, reported it to the CEO of the hospital. She was told in response to her complaint that in future she would not be working the same shifts as the Respondent.
On 9 July 2022 Person A came to work and was shocked to see the Respondent working there again that night. On that evening, while she was sitting at the computer, the Respondent approached her from behind and asked her questions about where she lived, did she have a photo of her house and when she was next working. He loosened her hair tie. She told him "you need to stop harassing me" and she said that the Respondent brushed it off as a joke.
Person A complained to the NUM about having to work with the Respondent in spite of her complaints. She said that she no longer wanted to work at the Private Hospital and felt "quite traumatised". The Private Hospital referred her to a general practitioner and to a psychologist with whom she had a number of counselling sessions. She continued to work at the Private Hospital.
In her evidence to the Tribunal, Person A was asked about a time when she dyed her hair pink and the Respondent told her that he did not like the colour. She said that when she changed her hair colour she received many comments. She was not bothered by what the Respondent said.

[4]

Complaint 1 -Particular 2

The particulars of Complaint as relate to Person B are: 2. In 2021, over a three to four month period during night shifts at the Hospital working alongside Person B, the practitioner behaved inappropriately towards her by: 1. grabbing Person B's pen out of her breast pocket without asking for permission before doing so on approximately ten occasions. 2. Poking Person B in the shoulder with her pen on approximately ten occasions. 3. massaging Person B's shoulders on approximately five occasions. 4. asking Person B to show him sexy pictures' on her mobile telephone when no one else was present on approximately five occasions. 5. making a comment to Person B that she was "beautiful' when she was wearing blue scrubs and that she should wear those scrubs all the time. 6. trying to touch Person B's hair when she changed her hairstyle. 7. commenting when Person B changed her hairstyle that she looked "beautiful" and "sexy."
Person B is a more senior nurse to Person A and has worked at the Private Hospital casually from 2008 and then permanently from 2010.
She said that it was at the end of 2021 that she noticed the Respondent engaging in what she described as "inappropriate conduct". For example, she said on a number of occasions, at least 10, the Respondent would take a pen from her breast pocket without asking and would push the pen into her shoulder in a poking manner. She said that this occurred over a three to four month period. She said in the same period, the Respondent poked her with a pen in her shoulder or arm. She said he would ask to see "sexy photos" on her phone and did this on at least 5 occasions. On a number of occasions, the Respondent massaged her shoulders while she was working at the computer leading her to say on one occasion: If you continue to do that, I'm going to report you
She added that she told the Respondent it was unprofessional.
While Person B saw the Respondent poking the male staff with pens, she felt that it was different to the way he "joked around" with the female staff. She described his relationship with the male nurse as "jovial". However, she said that to her observation, he did not make inappropriate comments to the male staff as he did to her. Person B also said that she noted this conduct by the Respondent occurred when there were only two nursing staff around and he did not behave like that in front of other people.
Person B said that the Respondent told her she "looked beautiful". This made her feel uncomfortable and she said that she told him it was inappropriate but that he would apologise, "laugh it off and do it again". She said that on an occasion when she changed her hairstyle, the Respondent commented but not in front of other staff. She said that he also tried to touch her hair.

[5]

Complaint 2 - Particular 3

The particulars of Complaint in relation to Person C are: 3. Between 2008 and 2019 during night shifts at the Hospital while working alongside Person C, the practitioner behaved inappropriately towards her by: 1. making sexual remarks towards Person C. 2. commenting on the size of Person C's bottom. 3. slapping Person C's bottom. 4. poking Person C in her side to get her attention. 5. grabbing Person C's pen out of her breast pocket multiple times without asking for permission before doing so. 6. asking Person C to show him pictures on her mobile telephone when no one else was present.
Person C is a more senior nurse again. She had been working at the Private Hospital since 2006 and she was the NUM in the cardio-thoracic ward of the hospital.
She said that the Respondent was a "very approachable, friendly doctor" and, to her observation was very close to staff particularly in the ICU where he often worked. She also noted that the Respondent would "joke around" with staff.
However, she said that when she was still a Registered Nurse, he became "too friendly" and began to make sexual remarks to her which she regarded as inappropriate and, when passing would hit her on the bottom and say words to the effect; "it's getting bigger". He would poke her in the side in what she took to be a way of getting her attention. Although Person C told the Respondent to "go away" she was conscious of the power imbalance between doctor and nurse and felt she could not escalate a complaint. In her evidence she said that at this time she was a Registered Nurse and felt the power imbalance keenly.
She too said that the Respondent would grab a pen out of her breast pocket and ask to see photos of her on her phone which she refused. She said he would ask to see the photos on her phone when there were no others about.
Person C said that around September 2019 she was asked to be Acting NUM which meant she did not work as many night shifts and did not see as much of the Respondent as before.

[8]

Person A

For the Respondent it was submitted that the Tribunal would have concerns about the evidence of Person A because of inconsistencies in her account as recorded by those to whom she complained.
Nurse Khadija was on duty on 2 July 2022, the night that Person A contends that the Respondent grabbed her by the waist and pulled her into room 41. Person A spoke to Nurse Khadija soon after the incident. While Nurse Khadija offered to speak to the Respondent, Person A declined that offer. However, Nurse Khadija told her to make a note of what happened.
Nurse Khadija's statement (she was not called to give evidence) was brief on this point. She said: In early July 2022, Registered Nurse [Person A] approached me and made a complaint against [the Respondent]. [Person A] told me she was scared of the on-duty Doctor who was [the Respondent]. She told me he had taken her pen out of her top pocket and there was inappropriate conversation.
Attached to her statement is a copy of a message sent to someone in administration which was in these terms: Appropriately 2 weeks ago, I think it was 2nd July Saturday night LlE - RN Informed me after 2230 hrs that she was scared of on duty RMO as he has approached her inappropriately by taking the pen out of her top pocket from uniform. This was followed by asking personal questions if she has a boyfriend and tried to make physical contact
The Respondent's submissions observed that Nurse Khadija makes no mention of the two incidents that Person A regarded as being particularly significant, the incident in the medication room and that which occurred in Room 41.
There is no doubt that Nurse Khadija's statement and notes do not mention these two incidents. It was not suggested that Person A saw Nurse Khadija's email at the time it was sent.
It is important in assessing the submission that this omission would give the Tribunal concerns about Person A's evidence, to look at the entirety of the evidence in relation to this complaint.
In relation to both of these incidents, Person A made an immediate complaint to a colleague. In relation to the incident in the medication room, Person A said went straight and told Person B who was on duty that night. Person B's account of that is that sometime in June 2022: I remember [Person A] approached me 20 minutes or less and said [the Respondent] had pulled her into a treatment room and her back was up against the wall. [The Respondent] pulled down her mask and then used his thumb to touch her lips and told her she looked beautiful. I remember thinking [Person A] looked very scared. She said this was not the first time he had done this. [Person A] was in shock and as was I, as I never thought he would do something like that.
Person A made handwritten notes of the incidents as suggested by Nurse Khadija.
Her noted dated 2 July 2022 says: 2100-2200 [the respondent] pull my waist into Rm41 (vacant and dark)
Another page of Person A's handwritten notes, which is headed "? Date - before 2/7/22 event" reads: 2200-2300 - [The respondent] call me to come closer when I was talking to him regarding about a patient at nursing station. He would then grab my hand when I cam closer to him and pull me into the medication room. He would then put me against the wall and pulled down my mask, he then used this thumb to touch my lips and said that I looked beautiful without the mask on
As we have said, Person A said that there were other incidents involving the Respondent that evening which were recorded in Person A's notes made at the end of that shift. The handwritten notes also contain an account of Person A's complaints about the Respondent's conduct at other times which form part of the particulars of the Complaint.
Person A said that a few days after the incident in room 41 on 2 July 2022, she asked the NUM, Person C, to be taken off night shifts. She told Person C, what had happened.
Person C said in her statement: In July 2022, one of my staff Registered Nurse [Person A] approached me the NUM's office the morning after her shift. [Person A] was one of my junior staff and we weren't friends outside of work. I'm not really close friends with my staff. We have team building exercises and would have coffee as a team but that's it. [Person A] asked if I could take her off nightshift. I asked, 'why'. [Person A] said she didn't want to say. [Person A] eventually told me she felt really uncomfortable working with Dr Balaji. She was in tears and was shaking. I would describe [Person A] as timid, quite shy, doesn't complain much at all, works hard and doesn't like to cause a fuss. I was really quite concerned about her. I asked [Person A] to tell me what happened. [Person A] told me, Dr Balaji had pulled her into one of the empty patient rooms. It was around room 40. That area is towards the end the corridor on level 1 east. During night shift, it is quite dark. We actually use a torch as the corridor/rooms are quite dark as we want patients to go to sleep and need a torch to see. I remember [Person A] had said he pulled her hips into the room and she said, 'stop it' and quickly walked away.
In relation to the incident in the treatment room, Person C said: There were a number of incidents she had reported or told me about. [Person A] told me Dr Balaji once pinned her against the wall in the treatment room. He pulled her mask down and had run his thumb against her lip and said you look better without a mask. [Person A] was crying and shaking as she was telling me. I could tell she was quite fearful.
There is no doubt that Person A complained to Nurse Khadija about both incidents, that in the treatment room and that in Room 41, and there is no mention of them in either her statement or email to the Hospital administration. However, that does not cause the Tribunal to have concerns about the veracity of accuracy of Person A's account. We come to that view because Person A in both instances made an immediate complaint to a colleague and because of the observations by Nurse Khadija of Person A's demeanour while recounting what had happened to her, that is appearing scared, shaking and teary. These matters are, in our view, consistent with her account of what occurred and how it made her feel. Finally, and importantly, we take into account her hand written notes made, at least in relation to the incident of 2 July 2022 within hours of it occurring and in relation to the earlier incident within weeks of it happening.
We also take into account that Person A wanted to leave her employment with the Private Hospital because she said she was scared of the Respondent as a result of his actions to her. She was referred to and received treatment from a psychologist whose notes were in evidence and which note the reason for referral as being an incident of sexual harassment in the workplace. The psychologist's note of Person A's first consultation with him was on 25 August 2022, some six weeks after the incident on 2 July 2022 of which Person A complains.
Next it was submitted that the Tribunal would have concerns about the accuracy of Person A's evidence because of an apparent discrepancy between Person A's account of a conversation with Person B, and the account of Person B in relation to that same conversation.
In her statement, Person A said that she told Person B about the medication room incident. She said: … I told her what happened with [the Respondent]. She told me that he had done that something worse to her. She wasn't comfortable in telling me or reporting me what happened.
In her oral evidence Person A said words to the effect that in this conversation Person B did not tell her what her feelings were and said that what the Respondent did to her was worse but she did not say what.
Person B said in her statement after referring to Person A's complaint to her about the Respondent in the treatment room: [Person A] also told me [the Respondent] was massaging her shoulders when she was trying to order pizza. We went back to the nurses station and as we walked back, I told her that [the Respondent] used to do that to me. He used to act inappropriately towards me as well but I told him to stop. …
In her evidence Person B said that she told Person A what the Respondent had done to her including poking her with pens and taking pens out of her breast pocket. Counsel for the Respondent submitted that Person B said in her evidence that she had told Person A everything that the Respondent had done to her and submitted that Person A was incorrect in saying that Person B said that the Respondent had done worse things to her, but she did not speak about it. Person B's account does not appear to tally with what Person A said she said.
It was submitted that in two respects, Person A's account differed from Person B's; that the Respondent had done "worse things" to Person B and that she did not tell her the detail of what he did to her.
We note that the conversation between the two nurses occurred almost immediately after the alleged incident in the treatment room, which left Person A, to Person B's observation, looking scared and in shock. If Person A is incorrect and Person B did not say that the Respondent did "worse" things to her, it does not cause the Tribunal to have doubts as to her credibility. The conversation took place while Person A was clearly shaken and upset and it is hardly surprising if she is incorrect about what Person B said of her own experience.
The matters submitted do not cause the Tribunal to doubt the credibility of Person A.

[9]

Person B

In relation to Person B, it was submitted that the Tribunal might conclude that her accounts of what the Respondent did to her were exaggerated because of the way her evidence about what the Respondent did to her developed over time and because she may have been angry with the Respondent over what had been done to Person A.
After Person A made the complaint about the Respondent, Person B spoke to the NUM about the complaint. She said that she made no report about what the Respondent had done to her in the past. I didn't report what had happened to me as I didn't think it was as severe comparing with what had happened to [Person A]. I stood my ground and he ended up listening to me. I didn't work with him every day. It didn't happen all the time but he did do these things on occasion but when I stood up for myself, he backed off.
In her first statement in this matter Person B referred to inappropriate conduct by the Respondent towards her that occurred at the end of 2021. Person B referred to the Respondent grabbing a pen from her breast pocket sometimes without her consent, he would push the pen into her shoulder like a poke. She said he massaged her shoulders. She said that the Respondent asked her to show him "sexy photos" on her phone. This request occurred when she was alone with the Respondent. He told her she was beautiful. In a later statement, Person B said that the Respondent grabbed a pen from her breast pocket on 10 or more occasions without her permission and poked her with a pen on more than 10 occasions over a three to four month period. He massaged her shoulders more than five times without permission over a two to three month period and asked to see sexy pictures on her phone approximately between 5 to 7 times over a two to four month period.
There is no doubt that Person B believed Person A's account of what occurred to her and that she was angry that he had done these things to her. Tellingly in re-examination, she was asked whether in light of the events that transpired, she wished she had made a complaint, she agreed.
It is clear from Person B's statements that she was asked to record what happened to her for the purposes of a statement and it was then that she elaborated on the number of times the complained of behaviour occurred. When she first recounted what she experienced, it was in the context of making a statement about what had happened to Person A. That her recollection when prompted in making a statement caused her to recall and record the number of times the Respondent acted as she said he did, does not cause the Tribunal to find she is exaggerating what occurred to her or that she has fabricated these complaints to support Person A.
In this latter regard it is important to note that Person B said that to her observation the Respondent had a good working relationship with the staff and in particular with one male nurse, Joseph Mara. She had heard the Respondent compliment staff on their appearance, telling them that they looked nice. She agreed that he had bought dinner for staff on night duty. She did not appear to bear an animus towards the Respondent to the extent that she would lie about what happened to her to support Person A.
Further, her accounts of the Respondent's conduct, were largely the same as those about which Person A complained, and indeed in many respects the same as occurred to Person C which in the Tribunal's view tends against their being fabricated and it was not suggested that the complainants had collaborated to fabricate their accounts.
These matters do not cause the Tribunal to find that Person B either fabricated her complaint or that it was exaggerated.

[10]

Person C

Equally it was submitted that the Tribunal would approach Person C's complaints with concern because they "changed over time" in that she had not included the more serious complaint, that is the Respondent commenting on the size of her bottom and slapping it in her email of 14 July 2022 in which she referred to Person A's complaint and set out the conduct of the Respondent towards her. It was submitted that in her evidence Person C said that she intended to include everything that the Respondent had done to her. That she left out of her narrative these very serious incidents was said to impact her credibility.
The statement of 14 July 2022 was one that Person C had been asked to make in relation to Person A's complaints. She said that what Person A described had also happened to her and said that when she heard Person A's account it reminded her of working on night duty with the Respondent and his "bad behaviours" towards her which she said included poking her stomach or the side of her stomach, passing comments on her body parts, asking her to show him "sexy photos" of her on her phone. Person C said that this behaviour took place when the other nurses were not around. It made her feel uncomfortable. Ultimately, she said she told him "F off and leave me alone" and from then on she tried to avoid him. She too tried to work night shifts when he was not there.
When Person C came to make her statement in March 2023 she included the conduct of the Respondent in commenting on the size of her bottom and slapping her bottom.
In her evidence she said that she did not complain about the Respondent's conduct when it occurred because at the time she was a Registered Nurse and given the power imbalance between the doctor and nurse, did not know how to handle the situation and because of what she described as the "sensitivity of the issue". In her statement Person C said of this behaviour "… the last thing you'd want to hear is word or comments about your physique. Especially from a Doctor.".
It was suggested to her that the incidents in which the Respondent commented on her bottom and slapped it were "false memories", a suggestion denied by Person C.
We note that in her first statement she made reference to the Respondent making comments on her body parts, which does not seem to exclude his comments about the size of her bottom. Why the conduct of the Respondent in slapping her bottom as he went past was not included in her statement is unclear, however given the overall consistency of her complaints and the detail of them the Tribunal accepts that the Respondent did behave in the way she said and her failure to include it in the first statement does not persuade the Tribunal that her later recollection was a "false memory" or that she had fabricated her complaint.

[11]

The Respondent's reply to the complaints

The Tribunal accepts that it is for the Commission to prove the Complaints alleged against the Respondent and he does not have to prove anything. Here, however the Respondent has proffered to the Tribunal evidence of incidents which he said occurred and which, he said, may have operated to cause the complainant nurses to fabricate their complaints against him and thus undermine their credibility and the proof of the alleged conduct by him.
The Tribunal must then consider his assertions to determine whether the events occurred as he said and if so whether they operate to undermine the credibility of the complainants.
The Respondent was notified of the complaints made by Persons A, B and C by the CEO of the Private Hospital. The Respondent responded on 28 July 2022 and denied that allegations. It is to be observed that in the show cause letter from the CEO of the Private Hospital, while the complaints of the three nurses were set out in detail, the complainants were not identified by name. It is accepted that in relation to the complaints of Person A, broad date ranges were referred to in the complaint. On 24 July 2023 the Commission notified the Respondent of the results of its investigation into the complaints of the three nurses and on 22 August 2023, the Respondent replied to the Commissions letter dealing with the complaints.
In relation to Person A's complaints (referred in the letter as Staff member #1), the Respondent after denying the allegations said: 4.1 Although I am unable to assist the investigation with evidence as to motivation with any certainty, since being made aware of the allegations, I have given considerable thought as to who I suspect may be staff member #1, #2 and #3 and their motivation for making a false complaint against me. 4.2 As outlined in my response to the allegations made by staff member #1, I suspect that staff member #1 may be a nurse named [Person A]. I have recently been critical of [Person A] in relation to matters relating to handover. I have noticed that the staff working the day shift have been leaving matters that should be dealt with during the day to the night time staff and have not been providing a proper handover. I have also noticed that the night staff have not been requesting a proper handover and obtaining all of the relevant information at the time of handover needed to ensure the night time shift runs smoothly. 4.3 Specifically, on 2 July 2022, I raised with [Person A] that she did not get a proper hand over from the day time nurses in relation to a patient requiring dialysis and key information was missed. I was also critical of [Person A] during this shift because she touched a patient without wearing a gloves. 4.4 On 9 July 2022, I recall an interaction with [Person A] where I was critical of her in relation to a post-op patient that required insulin management. I was critical of [Person A] because the patient's sugar levels were erratic and had not been adequately managed. As a result, I had to redo the patient's chart to control the sugar levels. Upon reflection, it was probably unfair of me to criticise [Person A] for this, however, at the time I was frustrated by the situation. I expect [Person A] may have been disgruntled by my criticism of her.
In his response to a letter from the Commission dated 24 July 2023 which raised the complaints with him, the Respondent added: 3.5 I have given consideration as to why [Person A] would make these allegations against me. I refer to the reasons set out in my earlier response dated 28 July 2022 and wish to add that on multiple occasions, I had to inform [Person A] to comply with basic infection control procedures such as wearing gloves while attending to patients. I also had discussions with her because she did not get adequate clinical handovers from previous shift staff nurses which had the potential to compromise patient care. For these reasons, [Person A] may have formed an adverse view about me.
In his evidence, the Respondent said that he had complained to Nurse Khadija about Person A's lack of adequate attention to infection control. Nurse Khadija neither records nor recalls such a complaint.
As to the defects in handovers, in his evidence, the Respondent said that the fault lay with the day staff who gave inadequate handovers to the night staff, leaving it for the night staff and doctors to address problems which could have been managed during the day. He conceded as he had in writing his responses, that in that case it was "unfair" to be critical of Person A. He said he was frustrated at the situation.
In relation to the patient requiring dialysis, Person A said that this patient received specialist dialysis nursing and she performed the rest of the nursing of this patient. She said that in performing her observations she noted a black spot on the patient's toe and was concerned that given the patient's diabetes, it might be a pressure sore. The presence of the black spot had not been mentioned at handover so she called the Respondent to review the patient. She removed her gloves to make the call. When the Respondent arrived to review the patient, she showed the Respondent where the spot was while not wearing gloves. The Respondent asked her why she was not wearing gloves. He said that the black spot was nothing to worry about. Person A said that other nurses knew about the spot and other doctors had examined and she did not think it was a matter that needed to be included in handover.
Person A said that there was no criticism of her on 9 July about a patient requiring insulin management and said this was the incident that occurred on 2 July when she called the Respondent to see to the patient. She said the Respondent did not appear frustrated and to her seemed "pretty relaxed".
Person A was provided with the Respondent's comments contained in his letter of 28 July 2022 and his remarks about her conduct.
She said in relation to handovers from day staff that she had never received negative feedback from any manager or senior in relation to her handovers and said that if there had been a problem in her handover she would have expected to be notified.
In her evidence before the Tribunal, Person A said that if she makes a mistake she will try to sort it out. She has been corrected by doctors before especially when she first started work. She said it showed her how to do her job better. She agreed that on 2 July 2022 there was a discussion about incomplete information given in handover but said that the Respondent's criticism was of the day staff not of her. She agreed he criticised her for touching the patient while not wearing gloves. Person A said that the conversation did not make her feel bad or feel that she was in trouble nor did she view it as unfair criticism.
It was not suggested to Person A in accordance with the Respondent's letter of 22 August 2023, that there were "multiple occasions" on which the Respondent had cause to criticise her for failing to take basic hygiene precautions. In cross examination, the Respondent said that there was only one incident of poor hygiene control but he said it was very serious. He did not report it. In the course of giving evidence about this patient the Respondent suggested that the black spot noted by Person A was "gangrene". There was no suggestion in any of the evidence before the Tribunal that the black spot was gangrene and if it were, then the Respondent's telling Person A it was "nothing" and his failure to take this issue further, is hard to understand.
On this basis the Respondent suggested that Person A might have formed an adverse view of him and so fabricated her complaints.
Person A said: I would never make a false complaint about any person. Regardless of how critical someone is of my work performance, I would not do that. I don't believe I have had any complaints about my work performance. I am diligent, have a good work ethic and also strive to do my best.
There was no basis in the evidence to find that Person A was angry with the Respondent about his criticism of her clinical care and the Tribunal does not accept that Person A fabricated her complaints because she was angry with the Respondent.

[12]

Person B

The information about this complaint in the Private Hospital's show cause letter was that Person B who was referred to in the latter as "staff member #3": Has confirmed that staff member #1 reported your behaviour to her in early June; Recalls being subject to inappropriate behaviour by you and confronting you about this, advising that it was sexual harassment. Since that time, you have not behaved inappropriately toward her In late 2021 staff member #3 recalls that over a period of 2-3 months you would come and massage her shoulders despite being told to stop: You have asked staff member #3 to show you private photos on from her phone You have on more than one occasion touch her hair without her consent, this was whenever she changed her hair style You have also poked her with a pen on her arms for no apparent reason
The Respondent said in his answer: I recall that a nurse by the name of [Person B] has raised with me that she thought I was bullying her. She raised this after an incident where [Person B] gave a patient an incorrect dose of a schedule 8 medication. I raised the error with [Person B] in the presence of Khadija. In particular, I raised that I considered her processes with regards to verifying the medication dosages were inadequate. During a conversation with [Person B] about this, she raised that she considered I was bullying her by raising the incident and requested I refrain from speaking about the incident again.
In his oral evidence, the Respondent expanded on this criticism saying that Person B and Khadija had together given a patient the wrong dose of Endone which was in tablet form. He said that they both came to him and told him of the mistake. He said that it was not a problem in the particular circumstances. He added that on "multiple occasions" he had cause to check that Person B had given a patient the correct dose of Schedule 8 drugs.
In cross examination it became apparent that the asserted mistake in giving the Schedule 8 drug occurred only once but the Respondent said that he had on a number of occasions reminded Person B of the mistake in a "sarcastic" voice. He reserved his criticism for Person B and not Nurse Khadija who was also there according to him, and who had to be there because the giving of a schedule 8 drug requires the presence of two nurses, because he said that Person B had a history of mismanaging patients and making errors in her management of patients.
The Respondent said that where he had cause to correct a nurse about a procedure he would remind them from time to time not to repeat the mistake using a sarcastic voice. None had made complaints about him.
The Respondent said to give an incorrect dose of a Schedule 8 drug is very serious, yet he said that he did not make a report of this event. Person B denied such an event ever occurred and Nurse Khadija had no recollection of such an event. If this event did occur, the Tribunal would have expected Nurse Khadija would have a recollection of it. The Tribunal is not persuaded that this event occurred.
In relation to the allegations that Person B repeatedly mismanaged patients and made errors in the provision of Schedule 8 drugs, if that were the fact as observed by the Respondent, that he did not make a report is curious and he could not explain it other than to say that he "let it go". It is significant to the determination of this issue that it was not suggested to Person B that she had been the subject of scrutiny or criticism from the Respondent because of patient mismanagement or for repeatedly making errors in the giving of Schedule 8 drugs. We are not persuaded that Person B did act in this way nor that the Respondent had cause to criticise her.
In response to the allegation that the Respondent would ask to look at Person B's phone, the Respondent said: I generally recall that [Person B] was often on her phone while in the nursing station on Level 1 East. She was often on social media, WhatsApp and online trading platforms on her mobile phone. She would often show those around her in the nursing station posts and videos from her friends and discuss her cryptocurrency investment. After [Person B] had the discussion with me where she told me she considered I had bullied her, she did not tend to share pictures and posts with me. I did not ever ask [Person B] to see photos or anything else on her phone.
He further said that the Respondent said that he had to repeatedly tell Person B to put her phone away.
In his evidence to the Tribunal the Respondent conceded that Person B looking at her phone had not interfered with her clinical work, nor did he make a report about his concerns about her using her phone.
Person B said in her response to this criticism that while on duty, nurses are very busy and do not have a lot of down time. She said that if she did have a moment to look at her phone, she would check on her children. She denied that the Respondent had ever criticised her phone use. She said that there was one occasion on which she was discussing cryptocurrency with the Respondent and she showed him the cryptocurrency wallet on her phone.
In his letter of 22 August 2023 in response to the Commission outlining of the complaints the Respondent added that he had been considering why Person B has made the allegations against him. He said: I recall an occasion where [Person B] requested that I provide her with prescriptions and write requests for blood test for a health check-up. I declined to provide these professional services and advised to consult her regular G.P. It is possible that [Person B] may have formed an adverse view about me.
Person B denied that she had asked the Respondent to write prescriptions or requests for blood tests for her.
Nurse Khadija made a statement reflecting on the Respondent's complaints about Persons A and B. She said that she was not aware of any work performance or conduct issues raised by the Respondent against any nursing staff while she worked on the Cardiothoracic ward.
In relation to the particular matters of complaint about Persons A and C, Nurse Khadija had no recollection of the incidents to which the Respondent referred but she added: I have always followed the hospital policy of reporting any adverse complaints and/or work performance issues and/or patient handover to management by verbal handover to the After-Hours Manager. …I have no recollection of needing to forward any complaints regarding staff nor have I personally seen any work performance issues with regard to [Person C], [Person A] and [Person B]

[13]

Person C

The show cause letter from the hospital, the details of Person C's (referred to as staff member #2) complaint are that the complainant: Has confirmed that staff member #1 has reported concerns about your behaviour to staff member # 2 in recent weeks; Recalls that approximately three years ago, staff member #2 regularly worked night duty with you and was subject to unwanted attention from you. Staff member #2 reports you would poke her in the stomach or side of the stomach and comment on her body parts. You also asked if you could see sexy pictures of her on her phone; Recalls that your behaviour towards her would only occur when she was on her own and so she actively avoided you during shift and began to work on night shifts when you were not on duty; Regrets that she did not report your behaviour at the time
In his response, the Respondent said, identifying the complainant referred to as staff member #2 as Person C; I recall a conversation taking place at Level 1 East with a nurse by the name of [Person C] over 18 months ago. I assume other nurses were present, however, I cannot now say with any certainty that others were present or specifically who was present at the time. During the conversation, [Person C] informed me that she was undergoing a beauty course where she would do injections and was assisting a beauty therapist. She showed me pictures on her phone of facial cosmetic procedures performed on herself and others. I cannot now specifically recall, however, in the course of being shown these pictures I may have commented on the results of the cosmetic procedures. I did not ask to see the pictures on her phone. [Person C] then asked me if there was an opportunity for her to provide cosmetic services in my medical centres. I declined and told her that my medical centres provided general practice services only.
In his later response of 24 July 2023, the Respondent added: I have given consideration as to why [Person C] would make these allegations against me. I refer to the reasons set out in my earlier response dated 28 July 2022 and wish to add that around mid-2019 [Person C] became aware I was selling my car and expressed an interest in buying the car for an amount much less than what I was offering in the market. I explained the amount was too low and she may have formed an adverse view about me.
Person C said that she recalled having a conversation with the Respondent about a beauty course she was undertaking and said that the course covered massage, skin and laser therapy and professional makeup but did not include injectable cosmetics. She said she had no photos of the results of injectable cosmetics because she did not do that work nor had she any desire to engage in that work. She denied she had asked him if she could work in his general practice.
Person C attached a copy of her certificate of completion of the beauty course which contains no reference to injectable cosmetics.
In his 22 August 2023 response to the complaints, the Respondent did not repeat his assertion that Person C had asked to work in his general practice administering injectable cosmetics as a reason why she would fabricate a complaint against him. He could not explain why he did not remake that allegation. It was suggested to him that he did not re-make that allegation because, since the first response he had seen Person C's certificate of completion of her course which makes no reference to injectable cosmetics. The Respondent said that Person C could have done another course in administering injectable cosmetics of which he was not aware.
The Tribunal accepts Person C's evidence that she had not studied injectable cosmetics nor did she want to engage in that part of beauty therapy. We are fortified in coming to that finding by the Certificate of completion of her course which makes no mention of injectable beauty products. It follows that we do not accept that she asked, and the Respondent declined to allow her to work in his general practice.
The Tribunal does not accept the Respondent's account that Person C was motivated to construct a false complaint against him because he would not sell her a car at a low price.
The Tribunal accepts the evidence of the three complainants about the Respondent's conduct and is satisfied that the Commission has established each of them.

[14]

The Respondent's evidence

Persons B and C both said that the Respondent was a very approachable friendly doctor who was warm and kind. Nurse Joseph Mara described the Respondent as friendly but professional. He said that he and the Respondent would joke around, and the Respondent would tell jokes and place his hands on Nurse Mara's shoulders in the course of conversation which Nurse Mara did not feel was inappropriate.
The Respondent said that following the receipt of the complaints he had undertaken a sexual harassment awareness course. The course involved 5 modules all of which he completed on 27 July 2022. The Respondent said the course took some 36 hours to complete. He said that as a result of completing that course he had cause to reflect on his conduct and concluded that he had been doing nothing inappropriate. He said that he learned nothing from the course that he did not already know.
The Respondent said he perceived himself as friendly and something of a joker. He said he was keenly aware of not touching colleagues or moving into their personal space. He said to touch another person's bottom or to make comments about their bottom, would be "grossly inappropriate".
The Respondent denied that he touched colleagues, grabbed a pen from their pockets, poked them with a pen or massaged their shoulders all of which he said would be inappropriate.
He believed that he had friendly relationships at work and was very supportive of staff. He said that he had never behaved in a way in the workplace that might be misunderstood.
The Respondent did however say that he had on occasions told a female member of staff that she was "beautiful". When asked whether this was appropriate, he said no and said that it was "his mistake". When asked further about it and how the Respondent thought the recipient of the comment may have felt, he said that they would take it as a compliment. If that is the case, why the Respondent characterised that as a "mistake", is not entirely clear.
However, as we have said, the Respondent denied each particular of complaint including denying conduct that Nurse Mara said he had experienced from the Respondent but which caused him no upset.
We have considered the Respondent's suggested basis for the complainants fabricating their complaints and rejected them. It was submitted by the Commission that the show cause letter sent to the Respondent by the Private Hospital contained no identification of the complainants, yet the Respondent was able to not only identify the particular nurse to whom the complaint referred, but could recall an event which was similar to the event complained of but in which he did not behave as alleged. It was argued that the reason the Respondent could so readily identify the complainants was because he knew what he had done to them, and their complaints made their identity clear to him. For the Respondent it was argued that in relation to Person A, a range of dates was given which might have allowed him to work out who might be the complainant, which may be the case. However, in relation to the other two complainants, Persons B and C, the complaints were general with little indication of when the alleged conduct took place, yet the Respondent was able to identify the complainants. There is significant force in the submission that the Respondent well knew who the complainants were because of the way he had conducted himself around them.
In any event, the Tribunal has accepted the evidence of the three nurse complainants and on that basis found the particulars of the complaints made out.
In light of the Respondent's evidence that the course on sexual harassment had nothing to teach him and he knew what was and what was not appropriate conduct in the workplace, we find that when he behaved as the complainants said, he knew he was acting unprofessionally and inappropriately.

[15]

Unsatisfactory professional conduct

Counsel for the Respondent submitted that if the Tribunal found the complaints proved, they amount to unsatisfactory professional conduct and in three particular respects, to professional misconduct. That concession while appropriately made does not alleviate us from considering the proved particulars and their effect either in combination or separately.
Returning to the Complaints, the Commission contends that by Complaint 1 in relation to all three complainants, the Respondent is guilty of unsatisfactory professional conduct as defined by s139B(1) of the National Law in that his conduct: …demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of that practitioner's profession is significantly below the standard reasonably expected of an equivalent level of training or experience.
In contending that the Respondent is guilty of unsatisfactory professional conduct in that his conduct falls significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience.
The Commission relies on the Medical Board's guide: "Good medical practice: a code of conduct for doctors in Australia" as the benchmark against which the Respondent's conduct should be assessed in determining whether his proved conduct falls significantly below the reasonably expected standard.
The Guide in reference to "respectful culture" notes: Good patient care is enhanced when there is mutual respect and clear communication between all healthcare professionals involved in the care of the patient. Good medical practitioner involves: … 5.2.3 behaving professionally and courteously to colleagues…
Section 5.4 covers Discrimination, bullying and sexual harassment. Simply and to the point it says, "Good medical practitioner involves … "not discriminating against, bullying or sexually harassing others."
The three nurse complainants each describe conduct of the Respondent which they found upsetting and which made them feel uncomfortable and scared. In particular, Person A, the youngest of the three complaints said that she was so scared and uncomfortable when the Respondent was around that she could not concentrate on her work.
The Tribunal is well satisfied that the Respondent's conduct as proved by the particulars demonstrates conduct which falls significantly below that reasonably expected.
The Commission also contends that the Respondent is guilty of unsatisfactory professional conduct in that he has engaged in improper and/or unethical conduct relating to the practice of purported practice of his profession.
The assessment of whether a practitioner has engaged in improper or unethical conduct must be read in the context of s 139B(1) that is relating to the practice of the practitioner's profession. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190, the Court considered the dictionary meaning of both improper and unethical. The Court accepted (at [31]) "improper" as bearing the meaning "not in accordance with propriety of behaviour…" and "unethical" as "contrary to moral precept, immoral …".
In Office of Local Government v Toma [2015] NSWCATOD 21 the Tribunal held: 25. Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v UNet Limited (No 3) [2015] FCA 422 at [5] Perram J said, aptly for present purposes: The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. 26. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical conduct."
Given the nature of the Respondent's conduct the Tribunal is satisfied that it does not conform to propriety and is improper and unethical.

[16]

Professional misconduct

Complaint 2 alleges that the Respondent is guilty of professional misconduct as defined in s139E of the National Law.
Section 139E of the National Law defines professional misconduct as unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or 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.
In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19]-[20], the Court characterised professional misconduct: "19. … The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. … 20. There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be 'sufficiently serious' to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. … Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. …"
A finding of professional misconduct does not necessarily dictate cancellation or suspension of the practitioner's registration, however by its terms it clearly speaks to serious conduct.
The Commission argued that the totality of the conduct referred to in Complaint 1 amounts to professional misconduct. It was further submitted that particulars 1(j) and (m) in relation to Person A, being the Respondent grabbing her and taking her into the treatment room, removing her mask, touching her lip with his thumb and telling her she was beautiful and pulling her into Room 41 which was dark and empty and Particulars 3(b) and (c) being his remarks on Person C's bottom and slapping her bottom are, of themselves, sufficiently serious to amount to professional misconduct.
The Tribunal is of the view that Particulars 1(j) and (m) and 3(b) and (c) are of sufficient seriousness to amount to professional misconduct. As to the balance of the proven particulars while they demonstrate inappropriate and disrespectful conduct by the Respondent towards the complainants, we are not satisfied that when taken together they amount to professional misconduct.
The Respondent elected to have the Complaint determined in two stages, thus having determined the Complaint made out and that the Respondent is guilty of unsatisfactory professional conduct and professional misconduct, the balance of the hearing as to what protective orders must flow from those findings will be adjourned to another date.

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (8)