Health Care Complaints Commission v Narayan [2025] NSWCATOD 62

1. Dr Narayan is now 45. He was first registered as a medical practitioner in NSW on 4 January 2016. In 2020 he was employed as a general practitioner at Moruya Medical Centre (the "Centre") and also worked as a Visiting Medical Officer at Moruya District and Batemans Bay Hospitals.
2. He is currently working as a general practitioner on Norfolk Island with conditions on his registration.

1. Patient A was born in January 1994.
2. She came under the care of Dr Narayan at the Centre after she sustained a knee injury in January 2020.

1. The onus is on the HCCC to establish the various matters raised in the Application. To make any such finding we must be "comfortably satisfied" that the matter has been established on the balance of probabilities: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ("Briginshaw").
2. At pp 361 and 362 Dixon J stated:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

1. Dr Narayan gave evidence and was cross examined.
2. Patient A, Person B and Person C gave evidence and were cross examined.
3. Statements from two practice nurses from the Centre were in evidence. One of them was cross examined.
4. There was expert evidence from Dr Jalota, Professor Kenny and Associate Professor Greenberg. They all prepared reports which are in evidence. Only Professor Kenny was required to attend before the Tribunal to be cross examined.

1. This summary is based on Patient A's two statements (Ex A pp 209-220).
2. On 30 January 2020 Patient A tripped and fell on gravel. She sustained a fairly large laceration to her left knee and was treated at Moruya District Hospital. Gravel was removed from the wound and internal and external stitches were inserted.
3. The hospital referred Patient A to Dr Narayan at the Moruya Medical Centre (the "Centre"). She was a patient of that practice but had not previously consulted Dr Narayan.
4. Patient A saw Dr Narayan on the following day. She sat on a chair and, at the doctor's direction, put her leg onto his. He removed the bandage and cleaned and re-dressed the wound. She thought he was a nice, knowledgeable doctor.
5. Patient A returned to see Dr Narayan on 7 February 2020. He changed the dressing, cleaned it up again and bandaged the knee with waterproof dressing.
6. Patient A said she thought that it was at this stage that Dr Narayan suggested massage for her knee. Dr Narayan told her he used to be a masseuse in Fiji and said he would book her in so he could massage it for therapy to make sure she did not get a deep vein thrombosis ("DVT").
7. Patient A said she was not sure at which appointment Dr Narayan asked her to hug him. She thought it was a bit strange and she was a bit shocked. He did this for a few minutes.
8. Patient A said that on one occasion she told Dr Narayan that she was a sexual assault survivor without going into a lot of detail.
9. At her next appointment on 11 February 2020 Patient A said she was on the treatment bed when Dr Narayan removed the dressing and massaged her knee for 10 to 15 minutes.
10. Patient A said at that appointment she told Dr Narayan that she was worried about a mole on her left breast which had changed colour. When he examined the mole, he was only centimetres from her breast and she said it felt a bit different to a medical examination as he didn't really talk her through anything. After he had finished, she went into the nurses' examination room where Dr Narayan removed the mole. There was a nurse present who Patient A knew quite well. Dr Narayan told her he would do a skin check at the next appointment when he would also let her know whether the mole he had removed was a cause for concern.
11. On 18 February 2020, Patient A arrived at the Medical Centre wearing a dress. Patient A said she was lying down on the treatment table when Dr Narayan removed the dressing on her knee and started massaging her leg. He pushed her dress up and massaged further up her leg so that his hands were quite close to her pubic area. Patient A said she didn't say anything, she shut down. She had learned to disassociate during trauma she had suffered as a child. The massage lasted about 10 minutes.
12. Patient A told Dr Narayan that she was worried about a lump in her groin. She was still on the examination bed. Dr Narayan felt the lump and told her that her lymph nodes were inflamed and there was nothing to worry about. Patient A thought he was wearing gloves. She pulled her dress back down to her knees.
13. Dr Narayan then said he would perform the skin check. She stood beside the examination bed and told him she wasn't wearing a bra. He said_, "it's fine just pull it down it's fine"_. She pulled her dress down to her waist.
14. Patient A said Dr Narayan started cupping her breasts. He tweaked or played with her nipples even though she had not said anything about having any issue with her nipples and considered that there was no need for him to examine them without wearing gloves. He said, "oh they're not hard" referring to her nipples. Patient A understood him to mean that she was not aroused. She froze and made a non-committal response or noise, just waiting for it to be over which was in less than five minutes. Patient A said that, at the time, she wasn't sure whether what he was doing was a part of the medical examination. It felt slightly wrong but she tried to normalise it as he was a doctor and she thought maybe she was wrong.
15. Before she left the room, Dr Narayan asked her for a hug so she stood there while he hugged her. She did not remember whether she had hugged him back. She didn't want to be rude or show him that she was uncomfortable. He was helping her with her knee and at the time she wasn't sure if what he was doing was wrong.
16. Patient A said she had told Dr Narayan that she was in an abusive relationship, her house had just burnt down and she was not in a good state.
17. On 19 February 2020 Patient A woke up in extreme pain and saw that her left leg was very swollen. She called the Centre and asked for an emergency appointment. She saw Dr Narayan that afternoon.
18. Dr Narayan felt her calf and said he thought it was fluid. He put on a pressure bandage and sent her to pathology for an emergency scan. It revealed a DVT. By the time she returned to the Centre, Dr Narayan had gone home and she saw Dr Sacoor. He gave her medication for the DVT.
19. On 20 February 2020, Patient A went back to the Centre with Person B. Dr Narayan talked to her about the DVT. Patient A said she wasn't doing very well mentally, she was struggling and asked whether she could be referred to a psychologist or put on anti-depressants. Dr Narayan prescribed aspirin for her knee and DVT. He also gave her exercise rehabilitation.
20. On 25 February 2020 she again saw Dr Narayan. He said the skin check was fine but the DVT was quite bad and it had occurred because she had stopped taking aspirin the day before. He told her to stay on the aspirin and move as much as possible. He also said she needed another scan to make sure the DVT had resolved.
21. At the next appointment on 13 March 2020, Dr Narayan massaged her knee again. As he began moving up her leg towards her inner thigh, Dr Narayan started asking her about her sex life with her partner and whether her partner was able to give her orgasms. She said something like, "no of course not". Dr Narayan then touched the outside of her vagina.
22. When Dr Narayan finished, he kept talking about "sexual stuff". He said it was a shame her partner was unable to give her an orgasm. He said he'd had a discussion with a lesbian couple and had taught them how to give each other the best orgasms. Patient A said she was thinking "what the hell is going on". Patient A realised that Dr Narayan was acting inappropriately. He had never said anything sexual before, although she thought he had touched her inappropriately. "Then he said "I can give you the best orgasm of your life". I was like 'ok'. He again asked me for a hug and I just stood there. I then left".
23. Patient A said she left the Centre without saying anything to anyone.
24. Patient A did not turn up to a pre­ booked appointment for follow up on the scan. She received a call from a mobile number which she did not recognise. She answered it and realised it was Dr Narayan. He asked why she hadn't come in for the appointment and said he was sorry if he had made her uncomfortable at the last appointment. He asked her to come to Batemans Bay Hospital around 7pm for a free DVT scan as he was working in Emergency that night. He told her that she needed the scan done so she said she would go. Patient A said she felt more comfortable going to the hospital than the Centre possibly because there were more people there and security guards.
25. At the hospital Dr Narayan gave her big blue ALDI shopping bag and said "This is for you. l'm sorry if I made you uncomfortable or I thought I may have made you feel uncomfortable so this is for you". In the bag was a big tub of ice cream, kombucha, Dove moisturiser and chocolates. She estimated the contents would have cost more than $50. She thanked him.
26. Patient A said Dr Narayan did not scan her leg, he just felt her calf and told her it was getting better and she should keep an eye on it. When she left she felt really uncomfortable and felt as if he was trying to bribe her.
27. She later called Dr Narayan once to obtain a prescription for the medication for the DVT.
28. She did not return to the Centre until after Dr Narayan had left the practice.

1. After obtaining a Bachelor of Applied Science and a Diploma and Masters in Medical Sonography, Dr Narayan worked in medical imaging for 18 years. In 2015, he obtained a Bachelor of Surgery from the University of Notre Dame, Sydney and was first registered to practice as a general practitioner in Australia on 4 January 2016.
2. Between 4 February 2019 and 15 August 2020, Dr Narayan was employed as a GP registrar at the Centre.
3. From 24 June 2019 to 1 September 2020, he also worked at Moruya District Hospital and Batemans Bay Hospital as a VMO Medical Registrar, a VMO Medical Registrar in Emergency Medicine, the On-Call Surgical Registrar and the community based palliative care doctor for the Moruya area.
4. On 24 September 2020, the Medical Council of NSW (the "Council') suspended Dr Narayan's registration based on a complaint unrelated to these proceedings. On 16 October 2020, Dr Narayan was advised that the HCCC was investigating other complaints.
5. Three other complaints culminated in proceedings in this Tribunal. In a decision on 16 June 2023 Dr Narayan's registration was suspended for three months from 16 June 2023. After the period of suspension, Dr Narayan returned to work with conditions on his registration.
6. In relation to Patient A in these proceedings, Dr Narayan said in his statement that he had a reasonable recollection of her and his overall management.
7. Dr Narayan explained that at the Centre he saw patients in his consultation room but performed procedures in the treatment room. Treatment procedures were usually pre-booked, however sometimes he took patients straight to the treatment room for a simple wound review and a dressing change or removal, which he would perform himself.
8. Dr Narayan said that when he saw Patient A on the day after her fall, the wound appeared clean and uninfected, and the sutures were intact and unbroken. He saw from the hospital discharge summary that she had been given antibiotics to take for the first day or two and a prescription to cover the whole course of treatment. He prescribed aspirin to prevent clot formation and Panadeine Forte for mild pain relief.
9. Dr Narayan next saw Patient A on 7 February 2020 when she was still immobile with crutches. He removed the dressing and saw malodourous crusted exudate along the laceration. The lower part of the wound was oedematous (swollen with fluid) and erythematous (abnormal redness of the skin), but uninfected, which he said was not uncommon one week after a laceration injury. The sutures were intact. He decided to leave the sutures in the knee for another six days. He washed and redressed the wound.
10. Dr Narayan said Patient A told him during the consultation that she had not been taking the antibiotics she had been given at the hospital nor aspirin. He said he counselled her about the importance of medication compliance and the risks of non-compliance. He gave her a prescription for an antibiotic.
11. Dr Narayan next saw Patient A on 11 February 2020 when she was still using crutches. He removed the dressing and the laceration appeared almost fully resolved. He told her it would take another two to three weeks for complete resolution and gave her gentle knee exercises to regain full range of movement.
12. During the consultation Patient A told him she was concerned about a pigmented skin lesion in the left supra-breast anterior chest region. She was wearing a short sleeve top, and the lesion was easily accessed by pulling down her left sleeve. He examined the lesion and did not think it looked sinister, but, after obtaining Patient A's consent, he took her to the treatment room and performed a punch biopsy with the assistance of a nurse. Dr Narayan asked Patient A to come back in a week for review and for the histopathology results.
13. Dr Narayan next saw Patient A on 18 February 2020 when she was still using crutches. He took her straight to the treatment room because he anticipated her sutures may need to be taken out. He saw the wound had closed and was scabbed and the sutures were intact, although there was still some swelling. He thought there were no concerning signs, removed the sutures and redressed the wound with a bandage. He advised Patient A not to fully flex the left knee and counselled her on gentle exercises.
14. When they had returned to the consultation room Dr Narayan told Patient A that the pathology results were consistent with a benign mole which did not need to be treated. Patient A said she had other lesions she wanted examined on her back and he suggested she make an appointment for a full skin cancer screening.
15. Patient A also complained of a lump in her left groin. Dr Narayan asked Patient A to lie down on the examination table. She was wearing mid thigh length shorts or short pants. In accordance with his usual practice, he would have instructed her to pull the lower end of the shorts upwards to expose her left groin before covering rest of the area with a draw sheet. His usual practice was to tuck the edge of the draw sheet under the clothing including the edge of the underwear.
16. Dr Narayan suspected that the lump was likely to be a lymph node reacting to the laceration injury and antibiotic use, a hernia, or less likely, a clot which would require immediate treatment. He palpated along the inguinal ligament and found a lump at the mid-inguinal point. He palpated the lump with four fingers. Patient A told him the lesion was tender.
17. Dr Narayan diagnosed a reactive lymph node. He told Patient A that no treatment was required and it would likely resolve on its own but if there was any increase in pain, or other symptoms of concern, to return immediately.
18. Dr Narayan said that the immobilisation of her leg and the trauma to the left knee were two of the three primary risk factors for deep vein thrombosis ("DVT") and there was an ongoing concern that this could occur in the future.
19. Patient A came back on the next day complaining of lethargy, malaise, fever, cough, sore throat, and calf swelling. Dr Narayan concluded that the swelling of the left calf meant there was a very high probability of a DVT and urgently referred her for an ultrasound scan of the left leg. By the time the test was performed and she came back to the Centre, Dr Narayan had gone home. She was seen by another doctor, Dr Sacoor, who gave her medication.
20. Patient A came back on the next day, 20 February 2020, with Person B. This was a long consultation as Person B was worried and emotional about multiple recent adverse events in Patient A's life. Dr Narayan recorded in his notes "Long Consult ... Everyone's very emotional... Multiple adverse events ... knee injury ... now DVT ... lost her home".
21. The next consultation was on 25 February 2020. Dr Narayan said he told Patient A the results of the ultrasound and that her left knee wound looked much better with a good range of movement. He then did a skin cancer check because Patient A had mentioned she was concerned about lesions on her back.
22. Dr Narayan then described his usual practice - to give a patient a gown and instruct the patient to keep her bra and undergarments on when changing behind the curtain. He then described the manner in which he would examine the whole of a patient's body. On this examination he found some skin redness on the right buttocks.
23. Dr Narayan said that the plan was for Patient A to return in 2 weeks for a review of her DVT.
24. The next appointment was on 13 March 2020. Dr Narayan described checking Patient A's blood pressure, checking her pulse and taking her height and weight because a drop in blood pressure could indicate clot dislodgement. The left knee wound was healed and the left calf was soft and non-tender.
25. The plan was for Patient A to continue medication and be reviewed in 4 weeks.
26. Dr Narayan said he did not receive a follow up ultrasound despite having given Patient A a referral.
27. On 17 April 2020 Dr Narayan telephoned Patient A. His best recollection was that he had called her from the Centre, as that was where her phone number was in the file. He said he told her he had not received any correspondence to say she had undergone the six week ultrasound. He was also concerned to check that she had been taking her medication.
28. Dr Narayan was rostered to work in the evening at Batemans Bay Hospital. He asked Patient A to come to the hospital to follow up on the plan for management of her DVT and to otherwise assess the status of her DVT condition.
29. Patient A said she was working and Dr Narayan said he asked her to stop by when she was travelling through.
30. Dr Narayan said that he saw Patient A in a consultation room in the Emergency Department. He told her he could use a point of care ultrasound to assess the clot in her leg. He brought it in, did the test and no DVT was identified. He told Patient A that the DVT had partially resolved and she should follow up with her GP in two weeks if she had any further issues.
31. Dr Narayan brought a bag of groceries he had bought for his family to the hospital. However, he gave that bag to Patient A because she had lost her house and had probably missed dinner.
32. Dr Narayan sent a hospital discharge summary to the Centre.

1. The evidence of Patient A and Dr Narayan cannot be reconciled.
2. We now turn to consider the reliability of the evidence called by the HCCC to establish the Complaint, bearing in mind what we have already said about the onus of proof.

1. Counsel for Dr Narayan submitted that Patient A's evidence was inexact, unclear, vague, lacking in detail and internally inconsistent. It conflicted with the evidence of Person B. Accordingly, it was submitted, it could not result in an actual persuasion of the occurrence of the alleged events because reasonable satisfaction could not be reached by inexact proofs, indefinite testimony or indirect references as set out in Briginshaw.
2. These examples were used by counsel for Dr Narayan to illustrate the submission:

(1) Patient A was a wholly unreliable historian. She had wholly reimagined the chain of events leading to her admission to hospital on the day that she fell. This submission was based on the inconsistency of the evidence between Patient A (who said that she drove herself to the house of Person B, Person B drove her to the hospital and Person B stayed with her at the hospital) and the evidence of Person B (who said she did not drive Patient A to the hospital). The submission concluded:

You would not be comfortably satisfied that a massage occurred at all because you could not be comfortably satisfied that (Person B) drove her to the hospital, stayed with her and drove her home. If the hospital accompanied by (Person B) can be imagined then so can the massage, so can the breast cupping, so can the nipple tweaking and the genital touching. (Transcript p 199)

(2) Counsel for Dr Narayan submitted that there was a conflict in the evidence between Patient A and Person B as to how long Patient A had stayed at the home of Person B after her injury. Patient A said "I believe it was about 2 weeks" and Person B said "Shortly after, after the accident with her knee, she came and stayed" and "I can't remember for how long. But she came and stayed at home with us for a period of time ... She did not stay at my home for a long period either, she wasn't there for too long, perhaps a few days I think".

(3) The evidence of Patient A and Person B in relation to the occasions on which she was driven by Person B to appointments with Dr Narayan. Counsel for Dr Narayan submitted:

Again, (Patient A's) evidence about (Person B) driving her to appointments was a little unclear as to which appointments (Person B) drove to and which she didn't. (Patient A) in cross-examination said that Person B drove her to the first appointment due to her crutches. (Person B's) evidence was that she tried to help by driving her because she was unwell physically and mentally and she was worried about her. (Person B's) evidence was she probably drove her the whole time she was on crutches, even when Patient A was not staying at her home. Now Patient A says she was on crutches for two weeks.

... (Person B's) evidence was she was still driving (Patient A) when she came out upset with DVT having been detected. So we know from the notes that that must be 19 February, so it seems like it was more than two weeks that (Person B) was driving her to consults. (Transcript p 202)

(4) Patient A had forgotten that, after she had been treated for the knee injury at the hospital, she had been given antibiotics and a prescription. This information is in the hospital discharge summary.

(5) "(Patient A's) evidence did not come up to proof in terms of when she says the massage was first offered. When she said the massages actually occurred. She said in oral evidence that she was first hugged at the third or fourth appointment and she said it was about the same time he suggested he would start massaging." (Transcript p 202)

(6) Patient A had forgotten that Dr Narayan had given her a referral for the second ultrasound.

(7) Patient A gave conflicting evidence as to the order in which the events she alleged occurred on 18 February 2020. Patient A's description of lying down on the treatment table for the massage, then standing for the breast examination and then lying back down for the groin lump palpation was unlikely and definitely not probable.

1. We consider it was clear from the manner in which Patient A gave evidence that she was, on occasions, confused as to the date on which an event had occurred or the order in which events had occurred at a particular appointment.
2. In assessing the weight of these inconsistencies we take into account the short period over which the consultations occurred and the number of those consultations - 31 January 2020; 7 February 2020; 11 February 2020; 18 February 2020; 19 February 2020; 20 February 2020; 25 February 2020 and 13 March 2020.
3. In addition the consultations occurred more than five years ago.
4. In determining what occurred at each consultation, as alleged by Patient A, we accept the submission made by counsel for the HCCC that the most reliable evidence is Patient A's statement dated 7 June 2023, where she dealt with each consultation separately, by date, and acknowledged in that statement that she had been assisted by the consultation dates provided to her by the investigator for the HCCC. She told us that she had not seen the notes recently.
5. In addition, while the cross examination of Patient A broadly followed the chronology of the consultation dates, the questions about the consultations were often interrupted by other topics such as who had driven her to appointments and why she had deleted her Reddit account and propositions such as "You in fact demanded thousands of dollars, do you recall that?" (when she had said in the online complaint, "I want him to provide me with the thousands of dollars I have had to fork out due to his perverse actions") and "Were you purposely asking the doctor to do intimate examinations, that is the breast lesion examination, the groin lump examination, a skin check examination so that you could fabricate allegations against him?", which we consider made it more difficult for Patient A to orient herself to the relevant dates.
6. We decline to find that any of these inconsistencies impact on the credibility of either Patient A or Person B.

1. Next counsel for Dr Narayan made several submissions about Patient A having failed to include information in her original online complaint. We do not accept these submissions in circumstances where:

(1) Patient A was answering the following question on the form:

Provide a short summary of your complaint. It is useful to include what happened and who was involved.

(2) Patient A submitted the form on 2 March 2023. The HCCC appointed an investigator who took a full statement shortly afterwards on 9 June 2023.

1. Next, it was submitted that we should find that Patient A's daily use of cannabis impacted on her memory. Patient A denied it impacted on her memory.
2. Professor Kenny said in one of her reports that regular use of cannabis has been shown to create short-term problems with thinking, working memory, episodic memory, executive function, and psychomotor function (physical actions that require conscious thought).
3. However when giving evidence Professor Kenny accepted that this would depend on how much cannabis a person was using, agreed that she did not how much cannabis Patient A was ingesting, and did not know whether Patient A's memory was impacted.
4. There is no evidentiary basis for this submission.

1. In her statement Patient A said that Dr Narayan had bulk billed her first appointment on 31 January 2020. She was told by the receptionist that it had been done on Dr Narayan's instructions. She was bulk billed for all future appointments.
2. Patient A was cross examined at length about this issue. She said the Centre was not a bulk billing practice when she was last went there in 2012 and "they made note that they weren't a bulk billing practice". She had never been bulk billed at any other appointments.
3. Dr Narayan told the s 150 hearing that he bulk billed Patient A, it was a mixed billing practice, he was not in a position to see patients privately because he was a trainee and he bulk billed because he was the most junior staff at the Centre.
4. Dr Narayan said in his statement that the Centre was a mixed billing practice and he primarily bulk billed his patients unless he had been informed by reception staff that the patient was a private patient, a work cover patient or a foreign visitor. His usual practice was to elect the billing type for the patient at the end of the consultation. The billing type was finalised at payment by reception staff. He said he elected to bulk bill Patient A in accordance with his usual practice.
5. Patient A's evidence is consistent with the evidence of a practice manager at the Centre who said:

... Moruya Medical Centre does not have a policy to bulk bill patients because they are seeing Junior Doctors. At this point in time, Dr Narayan had already been working at Moruya Medical Centre for 12 months ... As stated on our website "Each Health Professional dictates their own method of billing and fees. Moruya Medical Centre is not a bulk-billing practice."

(Patient A's) billing history shows that she was mixed billed by Dr Narayan. One note in particular for her appointment dated 07/02/20 shows an entry by me stating (Patient A) was to be bulk billed due to losing home in fire. This was after a discussion was had with the Doctors, who all agreed to bulk bill those directly affected by ... fires.

1. Patient A said that she had included the information about bulk billing in her statement because she had found it a bit weird after everything that had happened and it did make her think that there might have been a reason why Dr Narayan was bulk billing. Initially she thought he was being nice because she had just lost her home
2. It was put to Patient A that the Medicare records showed she had paid for some of the consultations, including the first one. She said she could not recall paying for a single appointment with Dr Narayan. Patient A was then cross-examined about entries which showed that she had been bulk billed by other doctors at the Centre. We are satisfied that these were attendances paid for by the workers compensation insurer.
3. Patient A was then asked "Do you recall the practice manager ... telling you on 7 February that she was going to apply a bulkbilling to that payment because of persons affected by the fires being bulkbilled?" Patient A did not answer because she did not recognise the name of the person. We interpolate however that this question is not consistent with the evidence from that practice manager, who does not say she conveyed this information to Patient A in the above quote from her evidence.
4. Counsel for Dr Narayan says that the evidence from the practice nurse shows that it was her decision to bulk Patient A. We consider this does not accurately reflect the evidence. The practice nurse bulkbilled Patient A because she was implementing a previous decision made by the doctors.
5. Lastly, even Dr Narayan said in his statement that he bulkbilled Patient A as set out above.
6. We do not accept that this issue has any impact of the credibility of Patient A.

1. The next submission arises from the cross examination of Patient A in relation to whether she could have made a medical appointment to obtain a referral for the second ultrasound:

Q. You could have gone to a different doctor, or you could have gone to the radiology centre that you'd previously been referred to, to get the scan.

A. Unfortunately, it's actually quite hard to go to a different doctor in our area. They're very, very small and they don't take new patients on very often, as in really ever. It's generally a six week wait, unfortunately, and you do need a referral to be able to get the scan done.

Q. You had a referral to the radiology, but you didn't attend.

A. I don't recall having a referral.

Q. We just went through this evidence before that you had the radiology appointment.

A. I had the other appointment, but I didn't actually have the referral. I was meant to go see Dr Narayan to actually get it done.

Q. That's not correct, is it...?

A. It is...

Q. You already had a referral to get the DVT scan, and it's your failure to turn up to that appointment to get scanned that caused Dr Narayan to call you to come into the hospital.

A. It was my failure to turn up to the appointment with Dr Narayan.

Q. You were able to see Dr Daniel Sacoor on 19 February?

A. Yes, and that was due to the fact that I had the DVT. I had just been there. They told me quickly go up, get the scan, I'm sure it'll be fine. And I had to actually call them. He was the only doctor who was in the facility at all. (Transcript p 61 - 62)

1. It was submitted that we should infer that Patient A would have had no difficulty getting into seeing another doctor as she had been able to see Dr Sacoor without delay on 19 February 2020.
2. On 19 February 2020 Dr Narayan had sent Patient A for an ultrasound. That ultrasound showed she had a DVT. Dr Narayan says in his affidavit "I arranged for the urgent ultrasound scan to be performed that day and if a clot was diagnosed, for (Patient A) to return to the Practice immediately and for blood tests."
3. As the Tribunal observed during submissions at the end of the hearing, whenever a patient has an ultrasound showing a DVT, whoever is last in the surgery takes the phone call because the patient needs treatment on the same day.
4. Indeed it may not have been Patient A who made the appointment with Dr Sacoor. Dr Narayan in his affidavit says:

I understand that a colleague at the Practice, Dr Daniel Sacoor, received a phone call from the Radiology Department, who gave a verbal result that (Patient A) had a DVT. From the records I understand that (Patient A) returned to the Practice and consulted Dr Sacoor, who prescribed Xarelto (Rivaroxaban, an anticoagulant) 15 mg twice daily for three weeks followed by a reduced dose of 20mg once daily after three weeks.

1. The records show that Dr Sacoor saw Patient A at 4.45 p.m.
2. We do not accept this submission. We accept that Patient A believed she could not easily get an appointment with another doctor.

1. The issue about Patient A closing a Reddit account is considered in more detail later in these Reasons. For present purposes however, we do not consider this act affects the credibility of Patient A.

Why did Patient A go to the hospital on 17 April 2020?

1. Patient A was asked why she had gone to the hospital on the evening of 17 April 2020 to have her leg checked by Dr Narayan if he had previously assaulted her by cupping her breasts, tweaking her nipples and touching her genitals.
2. Patient A explained the various serious personal issues in her life at the time which were affecting her mentally together with her concern at having sustained a serious injury and then a DVT. In relation to organising the ultrasound through someone other than Dr Narayan, Patient A said she did not have the mental capabilities and mental strength to reach out to any new doctors or new facilities, it seemed too big of a hurdle to try to navigate another thing. She was not even planning on getting another scan done, she was just going to leave it. However, when Dr Narayan called she thought she would just get it done. She also felt safer at the hospital because there would be security guards and a lot more people.
3. We consider Patient A's explanation as to why she attended at the hospital on that evening is plausible. The fact she did so does not impact on the reliability of her evidence.

1. We do not consider that any of these matters impact adversely on the reliability of the evidence of Patient A.
2. We add that we found Patient A an impressive witness who readily conceded when she was not able to remember something:

Q. When?

A. That was, I believe - that appointment or the appointment after that or before that, it was around that appointment though.

Q. So you're not sure which appointment?

A. I'm not. Unfortunately the dates and times elude me, sorry (Transcript p45).

1. We found Patient A to be candid and truthful when describing what she said Dr Narayan had done or said to her.

1. We bear in mind that the onus is on the HCCC to establish the Complaints to the Briginshaw standard.
2. In relation to the reliability of the evidence of Dr Narayan we make the following findings.

1. On the third day of the hearing the following exchange occurred:

Q. Thank you. Did you hug (Patient A) at the end of this consultation?

A. Again, to the best of my recollection, I don't have a recollection of hugging the patient at the end of this consultation.

Q. That's not a matter if it occurred that you would record in the notes, is it?

A. You're correct.

Q. So in relation to this matter, the fact that there's no record of it in the notes can't assist you one way or another to recall; you accept that?

A. So if you have - so if you ask me - if you had asked the question, say, did - do I normally hug patients after their consult, the response would have been that is not a usual practice. That is outside doctor-patient professional boundaries.

Q. Well, Dr Narayan, you accept that at this time in 2020 you behaved in a way that was outside of doctor-patient normal professional boundaries in relation to at least two other patients ...?

A. Yes, so I'm answering the question at present at this point in time, that is the response I gave you. But back then, back in 2020 - back in 2019/2020 period, I was going through a lot of mental problems, mental issues dealing with my own trauma. And at the time I - as you know that the s 50 hearing at that time, I - we had concluded that I didn't have insight at - at what I was doing at the time due to all what I was going through. And as such I have been having therapy and have reached a stage in life - or I've come - I've managed a - a lot of things in life where now I have perspective and understand - I have a better understanding of what had happened at the time, and what the things that I did was not right.

Q. So do I understand from that answer that you accept that it's possible that you asked (Patient A) for a hug and hugged her at the end of this consultation?

A. So you are asking me - that question is you are asking me for my opinion or you are asking me whether at that time this could have been a possibility?

Q. I'm asking you whether it's possible based on your knowledge and understanding and recollection of that time that you hugged - asked (Patient A) for a hug and hugged her at the end of the consultation on 18 February 2020?

A. Again my response would be at that time I - at that time a lot had happened that I didn't understand and had a, say, let's put it this way, that I was not in the right frame of mind. Now a lot happened at that time or could have happened if that is what you're asking me.

Q. So you agree with this, it's possible that it happened and you just don't remember?

A. It's - again, I, I don't have memory of the particulars or incidences of what had happened at that time but if you're asking me if it's a possibility the answer - so again, see I'm giving you an answer at this point in time trying to reflect an incident way back and if you and I were standing back then and if you asked me this question then, I would say no but now when you ask me this question now where I have understanding of what has happened and what I've gone through in between, the answer to that question is you're putting a hypothetical situation in front of me, that hypothetically, yes. (Transcript pp 121 - 122)

1. Counsel for Dr Narayan submitted that this evidence was consistent with Dr Narayan's other evidence - on being pressed about a matter he could not remember, he would concede it was hypothetically possible that it had happened.
2. Counsel for Dr Narayan did not take us to any other part of the evidence where such an answer was given. And in this answer, Dr Narayan does not simply say its hypothetically possible, he expressly refers back to his state of mind at the time and then answers that, in that context, it was hypothetically possible.
3. We are satisfied that Dr Narayan conceded that, although he now does not remember having done so, he could have hugged Patient A on 18 February 2020.

1. Dr Narayan was cross examined as to whether the events recorded in his notes could have taken as long as the time allowed for in his bill.
2. Dr Narayan's clinical notes for 13 March 2020 say:

Recorded by: Dr Sharwan Narayan Visit date: 13/03/2020 Recorded on: 13/03/2020

Reason for visit:

Review Left DVT

Examination:

General:

BP (sitting): 121/80

Pulse: 75

Height: 177.5cm

Weight: 69kg BMI: 21.9

Progress

appears well today

left knee wound also healed left calf SNT

Actions:

Social history updated.

Amoxicillin/Potassium Clavulanate 875mg;125mg Tablet ceased (No longer required).

Aspirin 100mg Capsule ceased (No longer required).

Codeine 25mg/5mL Linctus ceased (No longer required).

Plan

1. Review in 4 weeks

2. Continue rivaroxaban as planned. (Transcript p 404)

1. Dr Narayan agreed that this was a fairly short clinical record.
2. The records show that Dr Narayan charged for a consultation which took longer than 20 minutes.
3. Dr Narayan said he may have spent a lot of time talking to Patient A about her injury, the DVT and the follow up and the importance of taking medication.
4. This is the consultation at which Patient A says Dr Narayan inappropriately massaged from above her left knee to along her thigh and touched the outside of her vagina, asked her inappropriate questions about her sex life including whether her partner could give her orgasms, said that it was a shame that her partner could not give her orgasms, said that he had taught a lesbian couple how to give each other the best orgasms and said he could give her the best orgasm of her life, asked her for a hug and hugged her.
5. We are satisfied that the time taken for the consultation is more consistent with the evidence of Patient A than Dr Narayan's notes.

Conduct of Dr Narayan after the events alleged to have occurred on 13 March 2020

1. It is common ground that Dr Narayan advised Patient A, after the DVT was shown on the ultrasound on 19 February 2020, to have further ultrasounds at 6 and 12 weeks to check on the progress of the DVT. In his affidavit Dr Narayan says he told Patient A that "we will then need a repeat ultrasound at the six week mark to assess the progress of the treatment and another review at the twelve week mark". His notes say "Plan ... Check USS at 6 weeks and 12 weeks".
2. It is also common ground that, on 17 April 2020 Dr Narayan called Patient A and discussed a follow up ultrasound.
3. Dr Narayan had no recollection of where and when he had made the call:

My best recollection is that I contacted (Patient A) from the Practice as I would have obtained her number from accessing her patient file at the Practice as she was a registered patient at the Practice. Otherwise I would not have access to her number outside the Practice. It is therefore most likely I contacted her at the Practice. At the interview with the HCCC, I initially thought the telephone call was approximately lunch time. This is because I generally follow up with patients during my lunch time, such that it is most likely I contacted her at lunch. However, I do not recall precisely when I contacted her during the day. (Ex 1 pp 19 - 20)

1. At the hearing, Dr Narayan was asked why he had made the call. He said:

Q. Now, did you call her because you were expecting to see her around 10 April, four weeks after your previous consultation and she didn't turn up to the appointment?

A. No, when I think about it, the reason for my call would have been because I was expecting the six weeks for the DVT scan to have been done and I was expecting the report to have come through the in-box.

Q. And you were also expecting her to attend a consultation?

A. Yes. (Transcript p 134)

Q. Okay. Thank you. The other thing I wanted to ask you about was your recall system. So you'd seen (Patient A) and you'd quite correctly, you know, decided she needed a follow up ultrasound. And I can't see any reminder in the record telling you or her that she needed those things done. So I'm wondering how you remembered six or eight weeks later that she needed the ultrasound ...

A. Yes. So, looking at the results that comes through, like as I stated, in the morning we can open the file. We go through all the ...(not transcribable)... that have come through and all the requests that we have put through has come through, and that is one way of - so one of the triggers. Oh, well no this is the patient that I ordered a DVT scan and we have the results here. That will prompt - would have prompted me that, okay we need to say - so when the results comes in, as you know we can action it where the decision, no action needed, discuss, return urgently. We click those buttons and the message goes to the reception - the front desk staff and they make appropriate bookings.

Q. And how did you remember to do ... recall (Patient A)? I don't quite understand. Because you saw her, and you gave her the ultrasound result of the initial - or somebody else gave her, Dr Sacoor saw her, how did you get triggered in your mind to do the recall?

A. Now we - so people keep, say records, say reminders differently and I used to have a little piece of, say, a not too little piece of paper, a book that was kept next to the computer that would have, okay patient A disease with, say liver cancer or something. So I have a list of patients that are high risk patients. Okay that is one way that would have prompted me. And secondly, I don't think there was anything else.

Q. So you think you had a paper with a note on it saying--

A. Yeah. So - yes sometimes - I used to sometimes keep a paper with - with the names of, say, very sick patients or people who needed urgent, say, follow up. Okay. I think we - all doctors do. We have a little sticky tape, I mean what's this, notepad, we write certain things to remind us. I'm just saying maybe--

Q. That's in general what you do, and you think, perhaps you did that for (Patient A).

A. Yes. (Transcript pp 141 -142)

Q. Actually I might just ask you, this book you talked about, booklet, that you had in front of you with the name of high risk patients, have you mentioned that elsewhere before, is it in any of your statements, I just haven't noticed it?

A. No. So your Honour, when I say a book, it's like a yellow sticky.

Q. Do you mean a Post-it note?

A. A Post-it note.

Q. Have you mentioned that anywhere before, to anyone?

A. Let me see. I can't recall. (Transcript p 144)

1. We asked counsel for Dr Narayan whether she had any submission to make about Dr Narayan's first reference to the notebook or post it note being in answer to a question from the Tribunal. She submitted that it was consistent with the conduct of Patient A who had never mentioned before giving evidence that she had stopped taking aspirin the day before the DVT on the advice of Dr Narayan.

1. It is common ground that Dr Narayan did not make any entry in Patient A's notes about the telephone call he made to her on 17 April 2020. He gave the following evidence:

Q. And can I just ask you whether it's unusual that you would make a telephone call to a patient and not record it in the patient notes at the clinic?

A. So if it's a phone consult whether I am booked to contact a phone consult with a patient, so that will be entered as a phone consult on the day. Now, if I - for this particular patient, I opened the folder to get the phone details to give the patient a call. It is right to say, I have not documented that.

Q. I'm just asking you, is that unusual or not unusual?

A. As in obtaining a patient's phone number from the folder or?

Q. No, no, just making a note that you had called the patient in the clinic file?

A. When I think about it, I should have recorded that as that I entered the - I opened the patient's file. I took this number for the - I made this call for the reason. I should have done that at the time. (Transcript p 134)

1. Dr Narayan admits that he gave Patient A a bag of groceries when Patient A came to the hospital on 17 April 2020.
2. As we have already noted, Dr Narayan said he gave the bag to Patient A because she had lost her house and had probably missed dinner.

1. After performing the second ultrasound, Dr Narayan prepared a discharge summary addressed to the principal doctor at the Centre. Dr Narayan said the discharge summary would have automatically been sent when he finished it. In cross examination Dr Narayan said he did not remember having a conversation with that doctor and did not ask him whether he had received the discharge summary because that doctor would have checked his own inbox. Dr Narayan said "it is not usual practice for us to send discharge summaries from the hospital and on the very next day go and ask the doctors "have you received the discharge summary or not?""
2. As we have already discussed, Dr Narayan's plan was for Patient A to have a third ultrasound at 12 weeks. We calculate that would have been at some time between 13 May 2020 (being 12 weeks from the first ultrasound) and 29 May 2020 (being six weeks after the second ultrasound).
3. Dr Narayan did not give any evidence in his statement about why he did not contact Patient A about the third ultrasound, as he had done in relation to the second ultrasound.
4. In cross examination he said:

Q. Wasn't it your expectation that she would continue to be your patient in relation to her DVT?

A. Yes, that was my expectation.

Q. And you didn't receive any notification that she had attended the 12 week - an ultrasound at 12 weeks review of the DVT which had been planned?

A. I don't recall receiving anything with regards to a follow up ultrasound, whether it was six weeks or 12 weeks.

Q. And you didn't contact her after the 12 week period had passed to inquire as to why she hadn't had the 12 week scan?

A. No, I didn't contact her.

Q. Is that because you knew that you had upset her with your previous inappropriate behaviour?

A. No. (Transcript p 138)

1. Counsel for Dr Narayan said that by that time Dr Narayan had been overwhelmed by another complaint. However that consultation and complaint occurred in August 2020.

1. We consider that each of Dr Narayan's explanations for this series of events is implausible. We do not accept his late evidence about being prompted to call Patient A by a post it note in circumstances where he had ample opportunity to mention it earlier. Further, if he had such a system to remind him to contact Patient A about the second ultrasound, he would also have contacted her in relation to the third ultrasound. He had no explanation for failing to record his telephone call to Patient A on 17 April 2020. His reason for giving Patient A a gift on 17 April 2020 is unsatisfactory, he had seen her on several occasions after Patient A had lost her home and had not given her a gift.
2. In our view the series of events is completely consistent with Patient A's evidence. Dr Narayan acted inappropriately at the last consultation on 13 March 2020. He contacted her on 17 April 2020, said he would do an ultrasound for free at the hospital, arranged to meet her, gave her a gift and did not record having called her in his records.

1. We do not accept Dr Narayan's evidence in relation to his conduct after the consultation with Patient A on 13 March 2020. His conduct is consistent with his having acted inappropriately when he last saw Patient A.
2. He has also not excluded the possibility that he hugged Patient A.
3. We are satisfied that these findings impact on the reliability of the whole of his evidence.

1. In late 2020 or early 2021 Patient A told Person C "There was this thing with the doctor, he said to me, I can give you the best orgasm of your life". They agreed that this was not right and that it should not be said by a trusted professional. Patient A told Person C that she thought the doctor had looked at her history in her medical file and must have thought she was an easy target.
2. Over the next twelve months Patient A told Person C that the doctor felt her breasts and rubbed his hand up her leg.
3. In around February 2022, Patient A told Person B that Dr Narayan had said to her, during one of her appointments, "I can give you the best orgasm you've ever had". Patient A also said that the doctor had told her that he had made the same comment to a lesbian couple.
4. Some months later, Patient A told Person B that she hadn't gone back to the Centre after Dr Narayan had told her he could give her an orgasm but he had called her on her mobile phone soon afterwards, saying he was contacting her for another appointment as he needed to check the DVT. Patient A had been really worried about the blood clots and, later that day, she went to the hospital to see Dr Narayan. At the moment she walked in Dr Narayan brought out a bag of gifts and said, "I think I might have offended you last time".
5. After Patient A made the online complaint she made further disclosures to Person B.
6. We are satisfied that Patient A complained to Persons B and C about Dr Narayan's conduct before lodging her complaint. The complaint to Person C was made within months of Patient A's last appointment with Dr Narayan.
7. These complaints support the truthfulness of Patient A's evidence.

1. For the Reasons we have given we prefer the evidence of Patient A to the evidence of Dr Narayan where they conflict unless there is reliable contemporaneous evidence to the contrary.

1. A Complaint made by the HCCC against Dr Narayan was heard in this Tribunal March 2023 and a decision was delivered on 16 June 2023.
2. That Complaint related to Dr Narayan's conduct in relation to one patient and two colleagues between March 2019 and August 2020. An order was made prohibiting the disclosure of their identities.
3. Clause 5 Sch 5D of the Health Practitioner Regulation National Law (NSW) (the National Law) relevantly provides:

(1) A ... Tribunal may receive and admit on production any of the following, as evidence in any proceedings-

...

(c) the judgment and findings of a tribunal (whether or not of this jurisdiction);

...

where the Committee or the Tribunal is of the opinion that the judgment, findings, verdict, certificate, decision, determination or evidence is relevant to the proceedings.

...

(2) If the ... Tribunal is of the opinion that evidence admitted under subclause (1) or (1A) is capable of establishing that a registered health practitioner has engaged in conduct that is sufficiently similar to the conduct alleged against the practitioner in the proceedings, it may rely on the evidence in--

(a) making a finding about a registered health practitioner in the proceedings;

...

1. The HCCC invites us to find that some aspects of these Complaints are sufficiently similar to these proceedings.

1. In relation to the patient, who would have been around the age of 31 in 2020, Dr Narayan admitted that on 8 August 2020 (that is shortly after he had treated Patient A) he breached proper professional boundaries during a medical consultation when:

(1) he said to her "I had a dream about you last night ... and I had to have a cold shower", "What time will you be free tonight", "I can do massage", "you will have the experience of a lifetime. Gee I didn't even have to do anything and I had the best orgasm of my life";

(2) he asked her whether she was up to date with her pap smears and made jokes about probing her while holding a long swab;

(3) he dimmed the lights, pointed to the examination bed and said "get ready for me";

(4) the patient said to him "You've just had a baby, haven't you" he answered "We can make new babies" and "life's short";

(5) He tried to kiss the patient at the end of the consultation.

1. Dr Narayan also admitted he had breached proper professional boundaries when he contacted the patient twice by telephone without a genuine clinical basis.
2. In relation to the first colleague, Dr Narayan admitted that between around mid 2019 and August 2020 he engaged in unprofessional and inappropriate behaviour by:

(1) commenting on her appearance, including stating that he liked her outfits;

(2) telling her she was always on his mind;

(3) calling her while she was at work and asking "what are you wearing", "what are you doing" and "when are we going on a date";

(4) calling her from work and telling her that he was inside a cupboard masturbating;

(5) blocking her exit through a door and commenting that a group of chairs were impractically arranged, especially if she wanted to sit on top of him and fuck him.

1. In relation to the second colleague Dr Narayan admitted that between 22 March and 10 July 2019 during a medical consultation with the colleague, he breached proper professional boundaries when he:

(1) asked her if she had received any sexual relief for her stress recently;

(2) offered to come to her house "for some midnight stress relief".

1. In relation to the second colleague Dr Narayan admitted that on 5 August 2020, he engaged in unprofessional and inappropriate conduct when he:

(1) entered the room in which she was working and said "you know if we just pull the curtains across no-one else will know we are even here";

(2) touched her on the shoulder;

(3) said to her "I can come over on Sunday and help you relieve the stress".

1. Lastly Dr Narayan admitted that he provided false and/or misleading information to his employer when he denied the claims made by the first colleague and provided false and/or misleading information to the Medical Council of New South Wales when denied the claims made by the patient and gave false and/or misleading information to the HCCC when he said he had not committed the conduct alleged by the colleagues. He said he had not admitted the conduct because he had been embarrassed and ashamed and wished to protect himself.
2. The Tribunal found Dr Narayan guilty of professional misconduct, suspended his registration for three months, and placed conditions on his registration when he resumed practice after the suspension.

1. The Evidence Act does not apply in these proceedings. The legal principles set out below apply to this Tribunal.
2. The principle applied in criminal trials, that similar fact evidence must be excluded if there was a reasonable view of the evidence consistent with innocence of the accused, does not apply to proceedings in this Tribunal (Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 90-92).
3. The determination as to whether the evidence is admissible is a two-step process. The first is to exclude collaboration between the witnesses. The second is to determine the weight to be given to the similar evidence:

The issue proof of the commission of an act on a particular person may become more certain if other witnesses testify that a similar act has been committed on them. Provided the complaints of the similar acts are made by witnesses who are truly independent of the complainant whose testimony is in issue, in the sense that collaboration between the complainant and the other witnesses and the possibility that the other witnesses' complaints are the product of suggestibility following the witnesses becoming aware of the complainant's complaint can be ruled out, it is unlikely that the various independent accounts are a coincidence. There may be some cases where other possible explanations consistent with innocence may need consideration, as in the present case where the effects of medication upon perception is an issue. If it can be excluded, the basic proposition stated above operates. The strength of the inference will depend on the facts of the particular case. The number of complaints is not of itself critical. One similar allegation containing the same peculiar feature or features may have considerable weight in supporting a complainant's evidence. On the other hand where acts alleged do not contain any particularly unusual features but are similar, the fact that there are a number of allegations from different persons may assist in drawing an inference that the act with which the court or tribunal is concerned occurred to the required standard of proof. There is no doubt a spectrum of circumstances which require consideration on a case by case basis between those two positions (Zaidi at 92).

1. Counsel for the HCCC submitted that the relevant similar behaviour is a tendency to:

(1) behave in a sexually inappropriate way towards women, including patients in his workplace in 2020 by making inappropriate sexual remarks and ask inappropriate questions of a sexual nature;

(2) engage in inappropriate touching;

(3) make inappropriate telephone calls to female patients and colleagues.

1. Counsel for the HCCC submitted that there was no evidence of collaboration by Patient A with another person in formulating her complaint.
2. Counsel for Dr Narayan submitted that the evidence of collaboration arose out of the similarity in the language used by the patient in the earlier proceedings and Patient A:

(1) The other patient consulted with Dr Narayan on 8 August 2020 which is some months after the conduct which is the subject of these proceedings. Dr Narayan admitted he said to the patient in the other proceedings, whom he knew was a lesbian, "you will have the experience of a lifetime. Gee I didn't even have to do anything and I had the best orgasm of my life";

(2) Patient A said that, at the consultation on 13 March 2020, Dr Narayan massaged up her leg towards her inner thigh and started asking her about her sex life and whether her partner was able to give her orgasms. She replied "No" and he then touched the outside of her vagina. When he finished, he kept talking about sexual stuff. He said it was a shame her partner was unable to give her an orgasm. He also said he'd had a discussion with a lesbian couple and taught them how to give each other the best orgasms. Then he said "I can give you the best orgasm of your life".

1. As evidence of collaboration, counsel for Dr Narayan made the following submissions:

(1) On 15 August 2020 the principal doctor at the Centre lodged an online Complaint which led to the earlier proceedings against Dr Narayan. In that document the following was recorded. We have not omitted any words, the complaint has been reproduced in full:

we have been approached by a patient who has been complained to by a friend of hers - that the friend was feeling inappropriately treated - sexual misconduct - verbal - not physical - and that patient apparently made a formal complaint to yourself and the police and has a recording of the incident. a work colleague of the patient that approached us - who overheard that conversation - confirmed a similar experience with the same doctor. there has been another similar formal complaint lodged at the hospital from a nurse who used to be one of the doctors patients. this is to be treated as confidential information at the request of the person's involved - we interviewed staff members and again inappropriate sexual behaviour has been identified (Ex 1 p 121)

It was submitted that this disclosed that others in the community knew about the allegations against Dr Narayan from at least August 2020, that multiple patients knew about it and it had been spoken about in the consultation room or in the waiting area because one patient heard it and joined in the conversation.

We do not accept that this complaint necessarily refers to a conversation which occurred in the consultation room or the waiting room, nor that others could hear it.

(2) Moruya was a small town and it would have been common knowledge.

Patient A, Person B and Person C agreed it was a small town but they denied that they were aware of the earlier complaints or that they were common knowledge. We accept their evidence.

There is no evidence of Dr Narayan's conduct being common knowledge in Moruya at the time Patient A lodged her online complaint.

(3) Patient A's act in closing her Reddit account meant the Dr Narayan could not explore whether the information about the earlier complaint had been conveyed to Patient A through Reddit.

1. In considering the Reddit issue we make the following findings:

(1) Patient A says in 2022 she decided to post on a legal thread to be reassured that she wasn't making a big deal out of nothing. She did it under the name "Spaceinvader". She did not name herself or Dr Narayan. She received about 600 responses confirming he had acted inappropriately and no one agreed with what he had done. A person posted the link to make a complaint to the HCCC.

(2) She was contacted by someone on Reddit who told her that there were identifiers on her post which meant someone could find out who she was and where she lived. She deleted the first Reddit post.

(3) In early March 2023 she made a second post on Reddit in which she thanked members of the "r/Auslegal" community for their supportive comments and their help in directing her to the HCCC. Annexed to her statement is a copy of that post. It is consistent with her statement about the first post:

"Just wanted to say thank you to everyone who reached out to me regarding my post - I have reported offending doctor and I truly thank all of you who responded. You directed me to where I needed to go and you gave me the confidence and backing to do it. ETA I have removed my original post as a lovely redditor alerted me to the fact that it is quite detailed and could be used to de-anonymise me". (Ex A p 219)

(4) After a post on an unrelated matter she was trolled. She was advised to delete the post. Instead, she deleted the account.

1. It was put to Patient A by counsel for Dr Narayan that she had destroyed crucial evidence in April 2024 when she was aware that there was a current investigation.
2. In relation to this cross examination we observe firstly that the existence of the post was only disclosed by Patient A in answer to the question on the online complaint form which said, "How did you hear about us?" This is consistent with the evidence of Patient A.
3. On 25 January 2024 the solicitors for Dr Narayan asked for a copy of the post about Dr Narayan's conduct. They were told it had been deleted some time ago.
4. Patient A said she did not know that the Reddit posts were important in relation to her complaint.
5. We accept Patient A's evidence as to the contents of the first post because it is consistent with the online complaint form and her second post. We think it was reasonable for her to fail to predict that the post might be used in these proceedings to suggest that she used the replies to frame her complaint against Dr Narayan. We do not consider that anything sinister arises from the deletion of the Reddit account nor is it of any probative value in determining collaboration.
6. We decline to find that these issues are evidence of collaboration.
7. The next issue relied on counsel for Dr Narayan was the matter of timing. On day 2 of the Tribunal proceedings for the earlier three complaints, Professor Kenny gave evidence before 2 pm and Dr Narayan commenced giving evidence at 2 pm. Patient A lodged her online complaint at 2.42pm, including the allegation that Dr Narayan told her about the best orgasm lesbian scenario. Counsel for Dr Narayan said there was no evidence to put as a positive proposition that Patient A spoke to somebody about that hearing but there was a real concern that the complaint was known in the community. Counsel for Dr Narayan also suggested that Patient A could have become aware of the details of the earlier patient's complaint from the s 150 hearing on 24 September 2020 in circumstances where she attended the Centre as a patient six days later.
8. We consider the submissions fanciful. There is no suggestion that the Tribunal hearing took place in Moruya. A s 150 hearing is confidential and only attended by the medical practitioner. There was no evidence of any realistic pathway for the dissemination of this information from either the Tribunal hearing or the s 150 hearing.

1. The corollary of the submission made by counsel for Dr Narayan is that the evidence from the earlier patient is sufficiently similar to that of Patient A as they both said he spoke to them about his giving each of them an orgasm.
2. We consider that this admitted conduct in August 2020 is sufficiently similar to be of considerable weight in supporting Patient A's evidence in relation to this one issue.
3. We have already accepted the evidence of Patient A in respect of this issue. This gives additional support to that finding.

1. We now turn to the Application in these proceedings.
2. In her statement and her evidence Patient A referred to a massage of her knee. We infer from the conduct of these proceedings that both parties understood this to mean the knee itself.
3. However in cross examination Patient A said:

Q. And which knee do you say was massaged?

A. My left.

Q. And what part of the knee do you say was massaged?

A. The thigh and upper thigh.

Q. So you say there was no massage to the knee?

A. Not to the actual knee itself, no. (Transcript p 38)

Q. Just one thing I'd really like to clarify, I don't fully yet understand what's involved in a massage of the knee. I understand it's your left knee and you've got a significant cut below the knee cap. Does the massage involve anything on your calf or below the knee, down towards the ankle. Just tell us the extent?

A. Not that I recall. Can I stand up?

Q. Sure, ma'am.

A. So pretty much it mainly would be kind of here. About here. And the cut itself is just there.

PRINCIPAL MEMBER BALLA: Can you tell us what you just saw because we didn't see it.

SENIOR MEMBER EYERS: Q. To me it looked like it's from above the knee to the upper thigh. So it's really a massage of your thigh and the knee actually isn't in it and the calf isn't in it.

A. Yes, correct. (Transcript p 67)

1. The HCCC asserts that Dr Narayan is guilty of unsatisfactory professional conduct in that he:

(1) engaged in conduct that demonstrates the knowledge, 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

(2) engaged in improper or unethical conduct relating to the practice or purported practice of medicine,

Dr Narayan inappropriately recommended massage therapy of Patient A's left knee to Patient A in circumstances where massage therapy:

(a) a. was not clinically indicated;

(b) b. risked delaying the healing of the wound;

(c) c. risked opening of the wound.

1. We accept the evidence of Patient A that the conversation occurred.
2. The expert evidence was predicated on the assumption that Dr Narayan intended to massage the knee itself. That was not the case.
3. There is no evidence of unsatisfactory professional conduct and the HCCC has not established Complaint One Particular 1.
4. 11 February 2020 consultation

(2) Dr Narayan inappropriately massaged Patient A's left knee in circumstances where such treatment:

(a) was not clinically indicated;

(b) risked delaying the healing of the wound;

(c) risked opening of the wound.

1. We accept the evidence of Patient A that Dr Narayan massaged her leg above the thigh.
2. The expert evidence was predicated on the assumption that Dr Narayan massaged the knee itself. That was not the case.
3. There is no evidence that massaging above the knee was harmful or contraindicated. We decline to find that the HCCC has shown that Dr Narayan was guilty of unsatisfactory professional conduct.
4. The HCCC has not established Complaint One Particular 2 (a) - (c).
5. 18 February 2020 consultation

(3) Dr Narayan inappropriately massaged Patient A's left thigh in circumstances where such treatment was not clinically indicated;

1. We accept the evidence of Patient A that the massage occurred. She said that Dr Narayan started massaging her leg and then moved further up her leg, pushed up her dress and almost touched her pubic area.
2. The expert evidence is that massaging Patient A's upper leg fell significantly below the relevant standard of care. The records showed that the knee injury was healing well, massaging the upper leg had no relevance to the knee injury and was not in accordance with any guidelines.
3. We are satisfied that Dr Narayan's conduct set out in Complaint One Particular 3 demonstrates that the exercise of his knowledge, judgment or care was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and thus unsatisfactory professional conduct.
4. The HCCC has established Complaint One Particular 3.
5. 18 February 2020 consultation

(a) conducted an examination of Patient A's breasts without:

(i) offering Patient A a chaperone for the examination;

(ii) obtaining Patient A's informed consent to conduct the examination;

(b) cupped or otherwise touched Patient A's breasts where such touching of the breasts was not clinically indicated;

(c) tweaked or otherwise touched Patient A's nipples where such touching of the nipples was not clinically indicated.

(1) he conducted a breast examination;

(2) he cupped or otherwise touched Patient A's breasts where such touching of the breasts was not clinically indicated; and

(3) he tweaked or otherwise touched Patient A's nipples where such touching of the nipples was not clinically indicated.

1. We accept the evidence of Patient A and find that the events in Particulars 4 (a) - (c) occurred.
2. The expert concluded that the appropriateness and clinical justification for cupping Patient A's breasts and 'tweaking or playing' with her nipples in the context of a skin check during the appointment on 18 February 2020 fell significantly below the relevant standard of care. It is not part of acceptable practice in conducting a breast examination. Tweaking or playing with Patient A's breasts was crossing professional boundaries.
3. We are satisfied that Dr Narayan's conduct set out in particular 4 demonstrates that the exercise of his knowledge, judgment or care was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and thus unsatisfactory professional conduct.
4. The HCCC has established Complaint One Particulars 4 (a) - (c).
5. 18 February 2020 consultation

5. During or shortly after the conduct set out in particular 4 (c), Dr Narayan said 'oh they're not hard'.

1. Patient A did say in her statement that this occurred on 18 February 2020. On cross examination she accepted it had happened on a different occasion. In circumstances where it was not suggested that it was necessary for the HCCC to show it happened on the pleaded date, we find that it did occur at one of the consultations.
2. We are satisfied that the making of such a sexually charged comment during a medical examination was crossing professional boundaries and significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and thus unsatisfactory professional conduct.
3. The HCCC has established Complaint One Particular 5.
4. 18 February 2020 consultation

(a) asked Patient A for a hug;

(b) hugged Patient A.

1. We accept the evidence of Patient A and find that the events in Complaint One Particular 6 occurred.
2. We are satisfied that Dr Narayan's conduct set out in Complaint One Particular 6 demonstrates that the exercise of his knowledge, judgment or care was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and thus unsatisfactory professional conduct.
3. The HCCC has established Complaint One Particular 6.
4. 13 March 2020 consultation

(a) massaged Patient A's left knee in circumstances where such treatment was not clinically indicated;

(b) massaged Patient A's left inner thigh in circumstances where such treatment was not clinically indicated;

(c) asked Patient A questions about her sex life including whether her partner could give her orgasms;

(d) touched Patient A's genital region in circumstances where such touching of the genital region was not clinically indicated;

(e) told Patient A that it was a shame that her partner could not give her orgasms;

(f) told Patient A that had taught a lesbian couple how to give each other the best orgasms;

(g) said to Patient A "I can give you the best orgasms of your life" or "I can give you the best orgasm you have ever had";

(h) asked Patient A for a hug;

(i) hugged Patient A.

1. We accept the evidence of Patient A and find that each of the events in Complaint One Particulars 7 (a) - (i) occurred, noting that the massage referred to in Particular 7 (a) was done to the left leg above the knee.
2. We are satisfied that Dr Narayan's conduct set out in Complaint One Particular 7 demonstrates that the exercise of his knowledge, judgment or care was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and thus unsatisfactory professional conduct.
3. The HCCC has established Complaint One Particular 7.
4. 17 April 2020 consultation

(a) called Patient A and asked her to attend Batemans Bay Hospital at around 7pm that evening for a free DVT scan;

(b) gifted Patient A, at Batemans Bay Hospital, a bag containing ice cream, kombucha, moisturiser, chocolate and potato chips.

(a) admits he called Patient A and asked her to attend Batemans Bay Hospital at around 7pm that evening for a DVT scan but does not admit the use of the term "free". In evidence he said he did not recall using the term "free" but he would advise a patient that the scan is "free" if they asked.

(b) admits he gifted Patient A, at Batemans Bay Hospital, a bag containing grocery items, including ice cream, kombucha, moisturiser, potato chips, deodorant and chocolate. As we have already said, it is the evidence of Dr Narayan that he had bought the groceries for his family but gave them to Patient A because she had lost her house and had probably missed dinner.

1. We accept the evidence of Patient A and find that the events in Complaint One Particulars 8 (a) and (b) occurred.
2. While we find Dr Narayan said that the scan would be free, we do not consider this to be unsatisfactory professional conduct.
3. We are satisfied that Dr Narayan's conduct set out in Complaint One Particular 8 (b), in the context of his conduct since 31 January 2020, demonstrates that the exercise of his knowledge, judgment or care was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and thus unsatisfactory professional conduct.
4. The HCCC has established Complaint One Particular 8 (b).

9. Dr Narayan inappropriately excluded a diagnosis of DVT in Patient A's left leg in circumstances where he did not undertake or otherwise obtain an ultrasound of Patient A's left leg.

1. This is denied by Dr Narayan. He says he did undertake an ultrasound of Patient A's left leg utilising a point of care ultrasound available in the resuscitation bay of the emergency department. The ultrasound provides a live image. No report is generated from the ultrasound.

1. Dr Narayan's evidence in relation to the ultrasound is consistent with the discharge summary which he sent that night from the hospital to the Centre.
2. It is also consistent with the report of Associate Professor Greenberg who said that it is definitely not standard practise for a report to be printed out from a point of care ultrasound.
3. Patient A conceded in cross examination that there was a very real possibility that Dr Narayan did scan her leg that night and she had forgotten because she was in such a state.
4. We find that Dr Narayan did undertake an ultrasound of Patient A's leg.
5. The HCCC has not established Complaint One Particular 9.
6. Particulars 10 and 11

10. By reason of the actions set out in Particulars 1 to 7, individually or in any combination, Dr Narayan engaged in inappropriate behaviour of a sexual nature towards Patient A and acted contrary to the Medical Board of Australia, Guidelines: Sexual Boundaries in the Doctor-Patient Relationship, 12 December 2018 ("the Sexual Boundaries Code").

11. By reason of the actions set out in Particulars 1 to 8, individually or in any combination, Dr Narayan acted contrary to clause 8.2 of the Medical Board of Australia Good Medical Practice: A Code of Conduct for Doctors in Australia, March 2014 ("the Code").

1. We are satisfied that the HCCC has established Complaint One Particulars 10 and 11. We have discussed the breaches of the Guidelines and the Code of Conduct later in these Reasons.

1. Dr Narayan failed to record in Patient A's medical records that he performed massage therapy on Patient A's left lower limb during consultations which occurred on 11 February 2020, 18 February 2020 and 13 March 2020.

2. The conduct in Particular 1, breaches Schedule 4, clause 1(4) of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW) ("NSW Regulation").

1. We have found that Dr Narayan did massage Patient A's leg on each of those dates.
2. Schedule 4, cl 1(4) of the NSW Regulation provides:

(4) A record must include the following particulars of any medical treatment or other medical service that is given to or performed on the patient by the medical practitioner who is treating the patient--

(a) the date of the treatment,

(b) the nature of the treatment,

(c) the name of any person who gave or performed the treatment ...

1. We find Dr Narayan should have and did not make a record in his notes of massaging Patient A's leg on the pleaded dates .
2. We are satisfied that the HCCC has established Complaint Two Particulars 1 and 2.

3. On 17 April 2020, Dr Narayan recorded in Patient A's medical records the words 'Bedside Ultrasound of both limbs' in circumstances where ultrasounds of the legs were not performed on 17 April 2020.

4 The conduct in Particular 3, breaches Schedule 4, clause 3(3) of the NSW Regulation.

1. We assume this is a reference to the contents of the discharge summary prepared by Dr Narayan, as there is no entry in Patient A's medical records for that day.
2. We have found that an ultrasound of the left leg was performed on that day. We assume that the reference to both limbs in the discharge summary is an error.
3. The HCCC has not established Complaint Two Particulars 3 and 4.

1. The HCCC asserts that Dr Narayan is guilty of professional misconduct under section 139E of the National Law in that he has:

(1) engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, and/or

(2) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration.

1. In Chen v Health Care Complaints Commission [2017] NSWCA186 at [20], Basten JA explained:

There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct.

1. Dr Narayan's conduct in Particulars 3, 4, 5, 6, 7 and 8 (b) is of a very serious nature and demonstrates a significant departure from accepted standards. It is sufficiently serious to justify suspension or cancellation of his registration. In arriving at this finding we take into account the following matters as indicators of the serious nature of that conduct.
2. The Sexual Boundaries Code's definition of breaches of sexual boundaries includes the conduct of Dr Narayan - he conducted physical examinations which were not clinically indicated, he made sexual remarks, he touched Patient A in a sexual way and he used words and acted in a way that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire.
3. Such conduct is a serious abuse of the trust in the relationship between doctors and patients. Trust is a cornerstone of good medical practice. Patients have a right to feel safe when they are consulting a doctor and need to trust that their doctor will act in their best interests, treat them professionally and never take advantage of them.
4. Doctors are expected to act in their patient's best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically.
5. The doctor-patient relationship is inherently unequal. Patient A was a vulnerable patient. To receive healthcare, she needed to allow Dr Narayan to conduct physical examinations. A breach of sexual boundaries in the doctor-patient relationship exploits this power imbalance.
6. Patient A had a right to expect that examinations and treatment would only be undertaken in her best interests and never for an ulterior, sexual motive.
7. Patients subjected to sexual behaviour from their doctor may suffer emotional and physical harm.
8. Members of the community should never be deterred from seeking medical care, permitting intimate examinations or sharing deeply personal information, because they fear potential abuse.
9. It is also a breach of clause 8.2 of the Code which provides:

Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves:

8.2.1 Maintaining professional boundaries.

8.2.2 Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian or spouse or the parent of a child patient. Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law.

8.2.3 Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress.

1. Section 4 of the National Law provides that the Code and the Sexual Boundaries Code are evidence of what constitutes appropriate professional conduct or practice for the health profession.
2. We find that Dr Narayan is guilty of professional misconduct.

(1) Dr Narayan is guilty of unsatisfactory professional conduct in respect of Complaint One Particulars 3, 4, 5, 6, 7, 8 (b), 10 and 11 and Complaint Two Particulars 1 and 2.

(2) Dr Narayan is guilty of professional misconduct in respect of Complaint Three.

(3) The proceedings are listed for directions in respect of the conduct of the Stage 2 hearing at a date to be determined by the Registrar.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

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.