Health Care Complaints Commission v Robinson

NCAT Occupational|2020-08-20

ghes (1980) 114 DLR (3d) Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 Richards v Rahilly [2015] NSWSC 352 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Rosenberg v Percival [2001] HCA 18 Seymour v Australian Broadcasting Commission (1979) 19 NSWLR 219 Weaver v Law Society of NSW (1979) 142 CLR 201 at 207; [1979] HCA 35 Ziems v The Prothonotory of the Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46 Texts Cited: JRS Forbes, Justice in Tribunals (5th ed, 2019, Federation Press) John G Fleming, The Law of Torts (7th ed, 1987, The Law Book Company) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) David Isaac Matzner Robinson (Respondent) Representation: Counsel: P Lowson (Applicant) R Mathur (Respondent)

Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2020/00112474 Publication restriction: Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting publication of the name of any person identified as a patient, or former patient, of the respondent, or any information which may tend to identify any such person, including the name of any psychologist treating such patient.

Introduction

The hearing in this matter was heard over a ten day period. The hearing was limited, by consent, to a determination of whether the Health Care Complaints Commission (HCCC) had established its case (Stage 1). If that eventuated, then there would be a further hearing by the Tribunal to determine the protective orders, if any, to be made in this matter (Stage 2).
Some of the Complaint pressed by the HCCC is conceded by Dr Robinson (the Respondent), however, what is denied is that he conducted a physical examination of the breasts and abdomen of a female patient (Patient A), which was not medically indicated.
The HCCC relied upon the following filed and tendered evidence in this Stage 1 hearing: 1. Exhibit A1: A folder of documents containing the Complaint document moved on by the HCCC and its supporting evidence. 2. Exhibit A2: Statement of Patient A dated 10 February 2021. 3. Exhibit A3: Statement adopted by Dr Campbell in oral evidence.
The Respondent relied upon the following tendered documents: 1. Exhibit R3: Copy Letter dated 9 May 2001 from HCCC to the Respondent advising receipt of a complaint. 2. Exhibit R4: Pages 31 to 204 of respondents bundle filed 3 August 2020. 3. Exhibit R5: Copy letter and Statutory Declaration of Rabbi Israel Franklin. 4. Exhibit R6: Copy letter dated 22 June 2020 from Michael Henley to the Respondents solicitor. 5. Exhibit R7: Copy letter dated 23 June 2020 "To Whom it May Concern" from Jasmyne Patterson. 6. Exhibit R8: Copy letter dated 24 June 2020 from Dana McClure to the Respondent's solicitor. 7. Exhibit R9: Copy email dated 25 June 2020 from Mrs Michal Rosenberg to the Respondent's solicitor. 8. Exhibit R 10: Copy letter dated 13 July 2020 from Dr Michael Diamond, Psychiatrist, to the Respondent's solicitor. (report on the respondent). 9. Exhibit R11: Copy Tax invoice from Respondent to Patient A referable to service provided 21 December 2017. 10. Exhibit R 12: Curriculum Vitae for the Respondent. 11. Exhibit R13: A collection of photographs of the Respondent's consulting rooms. 12. Exhibit R14: Statement of the Respondent dated 17 August 2020. 13. Exhibit R15: Respondent's Supplementary Bundle. Includes copy statement of the Respondent dated 9 April 2021 and documents re Orbit and Brain MRI scans.

The Complaint

The Complaint Document was filed on 9 April 2020. It contains three distinct complaints.
Complaint One alleges that the Respondent "is guilty of unsatisfactory professional conduct under s.139B(1)(a) and/or (l) of the National Law."
The Background to Complaint One is stated as: "The practitioner is an ophthalmologist and is one of two practice principles at Sydney Laser and Vision Clinic at Bondi Junction ("the Practice"). He was first registered as a medical practitioner in 1986. On 21 December 2017 Patient A (aged 19 years old) attended the Practice for assessment and management of right eye pressure following referral by her general practitioner ("the consultation"). During the consultation Patient A wore a strapless top without a bra."
The Particulars to Complaint One are as follows: PARTICULARS OF COMPLAINT ONE 1. During the consultation at the Practice the practitioner auscultated Patient A's chest underneath her clothing which was inappropriate in that: (a) no ocular abnormalities had been found; (b) there were no signs of orbital disease; (c) there was no clinical indication for the examination; (d) a chaperone was not present; (e) the practitioner failed to obtain adequate informed consent. 2. During the consultation at the Practice the practitioner inappropriately conducted a breast examination on Patient A in that he: (a) requested Patient A remove her top; (b) requested Patient A remove her bra; (c) palpated all four quadrants of Patient A's breasts behind the areola with flat fingers for approximately one minute whilst Patient A was leaning back in a reclining chair and her strapless top was pulled down beneath her breasts; (d) rubbed Patient A's nipples whilst she was leaning back in a reclining chair and her strapless top was pulled down beneath her breasts which is not an approved breast examination technique; (e) palpated Patient A's breasts a second time between two hands whilst Patient A was leaning forwards in a chair and her strapless top was pulled down beneath her breasts which is not an approved breast examination technique. 3. The conduct set out in particular 2 above was inappropriate in that: (a) no ocular abnormalities had been found; (b) there were no signs of orbital disease; (c) there was no clinical indication for the examination; (d) a chaperone was not present; (e) no ocular signs suggested metastatic breast carcinoma; (f) the practitioner failed to obtain adequate informed consent. 4. The practitioner engaged in inappropriate conduct of a sexual nature towards Patient A by reason of his actions set out at particular 2(a) - (e). 5. During the consultation at the Practice the practitioner conducted an abdomen examination on Patient A underneath her clothing which was inappropriate in that: (a) no ocular abnormalities had been found; (b) there were no signs of orbital disease; (c) there was no clinical indication for the examination; (d) a chaperone was not present; (e) he failed to obtain adequate informed consent. 6. During the consultation at the Practice the practitioner inappropriately asked Patient A whether she was presently menstruating in circumstances where the question was not clinically indicated. 7. During the consultation at the Practice the practitioner inappropriately asked Patient A whether she had ever had a pap smear in circumstances where the question was not clinically indicated. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.
Complaint Two alleges that the Respondent (the practitioner) "is guilty of unsatisfactory professional conduct under s 139B(1)(b) and/or (l) of the National Law in that the practitioner has: 1. contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2016 ("the Regulation"); 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine."
The Particulars to Complaint Two are: "1. The Practitioner contravened Schedule 4 clause 1(2) of the Regulation in that on or around 21 December 2017 he failed to record that he conducted a breast examination on Patient A in: (a) Patient A's clinical records; (b) the letter sent by the practitioner to Patient A's referring GP dated 22 December 2017."
Complaint Three alleges the Respondent "is guilty of professional misconduct under section 139E of the National Law". It alleges the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's 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 the practitioner's registration.
The Particulars relied upon to make Complaint Three are those set out in the Particulars to Complaint One, and numbered 1, 2, 3 and 4. Further Complaints One and Two and the particular Particulars thereof are relied upon cumulatively.
The evidence relied upon by the HCCC includes a statement made by Patient A to NSW Police on 21 December 2017, the same day she had attended upon the Respondent. In that Statement, signed by Patient A the following is stated: 1. The opening paragraph is an acknowledgment by Patient A that she is making the statement in circumstances where it may be tendered in evidence in a court proceeding. She acknowledges that she understands she "will be liable to prosecution if I have wilfully stated in it anything that I know to be false or do not believe to be true." 2. On the day of making the statement Patient A was 19 years of age. 3. A few months prior to 21 December 2017 she had been referred by her GP for an MRI and to see the Respondent as she had been "getting headaches on the right side of" her head. 4. She made an appointment and attended upon the respondents practice rooms at 11.15 on Thursday 21 December 2017. 5. At the time she attended upon the Respondent she was wearing "a grey jumper and a small strapless singlet underneath with high waisted jeans and boots." 6. On arrival at the Respondent's rooms Patient A completed a questionnaire, in handwriting, at the request of the receptionist. 7. Patient A was then seen by a person she described as "a female eye doctor". That person conducted some "eye and vision" checks on Patient A. That person placed "some yellow drops into both eyes" of Patient A. Patient A said the "drops made my eyes sting." She then had further "yellow drops" placed in her eyes by that same person. Patient A underwent further eye tests. She said: "My eyes felt a bit numb from the drops and they felt uncomfortable." 8. Following testing of her eyesight Patient A then waited to see the Respondent. As she waited she noticed her eyesight became "blurry" and she started to feel light headed. She tried to see the time on her mobile phone and found she could not read the time ("see the screen"). That effect caused her to feel "panicky". 9. Patient A was invited into the Respondents office after waiting sometime outside of the office. She told the Respondent that she was feeling lightheaded and was unable to read properly. He said that was a normal reaction and that her vision would returned to normal by the following day. 10. Patient A said the respondent performed some further eye tests with her. She said: "After these tests Dr Robinson looked at the MRI scans I had brought with me." She said "After looking at the MRI scans he looked at the two page medical history I had filled out when I arrived at reception." 11. Patient A said: "While he was reviewing this, he pointed out my family medical history and the fact that my grandmother had thyroid cancer. He said a long sentence that was really confusing about neurological testing and checking for cancers and then said something about doing a body examination. I don't remember the exact words, but it seemed like he was trying to scare me into doing this examination by mentioning cancer. I was feeling so lightheaded at this point that I agreed and followed him out of the office." She said: "We walked out of this office, down a small set of stairs into another office. This second office seemed to be the furthest office from the main reception area. I think it was the laser room because there were laser pictures on the walls and a big blue chair that was reclined. We didn't walk past any other people walking between the offices. I sat down in the blue chair which was on the left side of the room. Dr Robinson closed the door which was a normal door, unlike all the other doors which were all sliding doors. I was still feeling very lightheaded and not sure about what he wanted to do. Dr Robinson didn't explain anything or tell me what his examination had to do with my eye pain." 12. Patient A said the Respondent conducted some further tests/procedures with her eyes in that room. He then said to her "Can you take off your top?" Patient A said: I was feeling very uncomfortable and trying not to look at his face, but I took my jumper off leaving my singlet on. Dr Robinson used a stethoscope to listen to my breathing on my chest and on my back. At this point he was standing on my right side. Dr Robinson said: "Can you lower your top for the breast check?" Patient A said: "I lowered my top and as I did I felt a pause as Dr Robinson looked at my breasts before he walked around to my left side and started feeling my left breast. He used his left hand to massage around the side of my breast and then he was rubbing my nipple. Dr Robinson said: "Have you had a breast check before?" I said: "No." He moved my left arm so it was above my head. Dr Robinson said: "Try doing it to yourself." 13. Patient A said: "I started checking my left breast as he watched. Once I finished checking, he put his hand on my left breast again and repeated what he did the first time. After about two minutes, he leant over my body and started to massage my right breast and nipple. It felt like he was excessively rubbing my nipple and he seemed to spend a lot of time massaging. He placed my right arm over my head and watched as I started checking my right breast. 14. Patient A said there was some further conversation between the Respondent and herself and then she said: "and then (he) felt my nipple again but adding more pressure this time. Throughout the whole time I felt very uncomfortable, so once he removed his hand, I pulled my top back up. Dr Robinson said: 'stand up now. I need another angle'. I stood up thinking the examination was over, and he told me that I had to pull my top back down so he could check from another angle. I stood up and walked around to the side of the chair. I pulled my top back down and rested by arms on the armrest of the chair. Doctor Robinson stayed on my left side and started massaging my left breast again. He did this for about 10 seconds, before he walked around to my right side and started massaging my right breast. He did this for another 10 seconds. I don't remember him saying anything but I felt so uncomfortable leaning on the chair like that, that I just wanted it to be over. Dr Robinson said: 'Now lie down on the chair. I need to finish the examination.'" 15. Patient A then described the Respondent conducting an abdominal examination. She said: "He told me that he needed to check my abdomen and started massaging my stomach. My singlet was only short, so his hand was on my skin and he was using circular motions. This went on for a few seconds". 16. Patient A said "During all this happening, Dr Robinson asked me if I was on my period and whether my breasts get tender. He also asked me whether I had had a Pap smear before. I told him that I hadn't and that I was on my period. He told me that I needed to get a Pap smear". 17. Following the examination Patient A followed Dr Robinson towards the door of the room in which the examination had taken place. She said: "He stood in front of the door handle and it seemed to take him along time to open it". She said: "Looking back now I think the door had been locked and he was unlocking it." 18. Dr Robinson gave Patient A a note which set out the names of the scans which Patient A was to have undertaken at Sydney Laser Vision Clinic. She said Dr Robinson told her to make another appointment to see him and recommended she "get a Pap smear" because he said it was very important. Patient A made a further appointment as she left the consulting rooms.
The HCCC relied upon a Police Statement made by Patient A's mother. She set out what Patient A told her on the day of her visit to see Dr Robinson. She recorded the words used by Patient A when she was explaining the breast and abdominal examination, which had been carried out upon her by the respondent.
Because of the nature of the allegation made against the respondent he did not provide a written statement. It was not until he came to give oral evidence that the true nature of his response to the complaint was set out.
On 21 October 2021 Dr William G Campbell MRCP(UK), FRANZCO signed a statement which has been read by the HCCC in this hearing. From that statement we note the following in particular.
Dr Campbell has been a specialist ophthalmologists based in Melbourne since 1988. He has particular expertise in vitreoretinal surgery, medical retina and ocular oncology. There has been no challenge to his expertise to give the evidence he has provided in this hearing.
Dr Campbell proceeded to give his opinion assuming the accuracy of the facts as stated in the letter from the HCCC to him dated 22 September 2019.
The letter of instruction to Dr Campbell included details of Dr Robinson's qualifications and experience, detail of the complaint made by Patient A and detail of the evidence given by Dr Robinson during the section 150 hearing, which took place on 14 February 2018.
Part of the detail given of the explanation provided by Dr Robinson, in the section 150 hearing, included the following: "He then had a conversation with Patient A: "I said very, very clearly to her that you (Have) had a headache and heat behind your eye for a long time. The most urgent symptom - the most urgent cause, though rare, to exclude is a tumour behind your right eye. That can occur primarily or it can be a tumour that has come from another part of your body to the area behind the eye and therefore as well as doing a neurological examination which is something I do with anyone with headaches, I would also like to perform a general physical examination to exclude tumours which could metastasise to the eye."
Further detail was provided from Dr Robinson's evidence which described what occurred during the consultation, as he recalled it.
The HCCC referred to further correspondence with Dr Robinson dated 20 September 2019 where Dr Robinson provided further details about the examination of Patient A on 21 December 2017. This included that he did not wear gloves for any part of this examination. He auscultated Patient A's chest underneath her clothing. He palpated Patient A's abdomen underneath her clothing. He described where he was standing relative to Patient A during the physical examination. He noted Patient A was naked from the waist up during both stages of the breast examination.
The information from Dr Robinson also stated that Patient A did not question or object to any of the examination nor did she appear to him to be uncomfortable with any aspect of his examination at the time. He asserts that the examination was clinically justified. He felt urgency required the examination because of the impending Christmas holiday period.
The letter to Dr Campbell also noted a prior complaint made against Dr Robinson in 2001 which also involved and alleged inappropriate breast examination on a female patient. The letter stated that Dr Robinson gave the following evidence in this regard during the section 150 hearing: he was notified about the 2001 complaint at the time and was "very shocked and distressed by it". He was unable to respond to it as it was anonymous, but it did cause him to reflect upon his practice. In particular, he resolved that he "should have a chaperone" present for any future consultations involving the examination of a patient "below the clavicle" where the patient was required to undress. It is "very uncommon" for him to examine patients below the clavicle. In fact, the 2001 case and the current case of Patient A are the only two cases in which he can recall ever having done so. In hindsight, in light of the 2001 complaint, he realises that it was a "terrible lack of judgement not to have a chaperone" present for his examination of Patient A.
In his report, Dr Campbell gave his opinion as requested by the HCCC. This opinion was provided at a time when the only evidence provided by Dr Robinson in relation to the complaint was set out in the letter requesting the report. We note the following from that opinion.
In his report Dr Campbell set out his opinion as to the possible causes for the symptoms presented with Patient A. He then set out the following: "3. In cases in which there is a strong suspicion of orbital disease a neuro-ophthalmologist or orbital specialist may consider it necessary to examine the other cranial nerves not already tested in c. above. A full neurological examination includes testing peripheral sensation (touch, pressure, temperature and proprioception - position sense), limb muscle strength, reflexes, balance and hand-eye coordination. It is highly unlikely a general ophthalmologist would ever need, or have the time, to perform all this. 4. In my opinion there are no circumstances in which an ophthalmologist would be expected or required to perform a breast examination." 5. If a patient presents with signs of thyroid eye disease, such as exophthalmos or eye muscle abnormalities, an ophthalmologist might be expected to examine the thyroid. a. The thyroid is examined from behind, using the fingers to palpate for diffuse swelling of the gland or focal nodules. 6. In my opinion an ophthalmologist working in private rooms would not generally be expected or required to auscultate a patient's chest. 7. In my opinion an ophthalmologist would not generally be expected or required to perform an abdominal examination. 8. An orbital tumour is an abnormal growth or space-occupying lesion within the bony cavity surrounding the eye. It may be neoplastic, either benign or malignant, or inflammatory as in orbital inflammatory syndrome, previously known as orbital pseudotumour. 9. Depending on the pathology the most common symptoms of an orbital tumour are visual disturbance, either blurring or awareness of peripheral field loss, double vision, droopy eyelid (ptosis) and pain. The patient may also complain of prominence of the affected eye (proptosis). It should be noted a tumour is unlikely to be the cause of eye-pain in the absence of other clinical signs and symptoms. 10. An orbital tumour is normally diagnosed on the basis of symptoms, presence of clinical signs and imaging techniques. A biopsy of the lesion may be required to identify the precise nature of the lesion. 11. If there are strong grounds for suspecting an orbital tumour a general ophthalmologist would either confirm the diagnosis with imaging such as MRI scan before referring the patient to an orbital specialist, or refer the patient directly without further investigation. 12. There are two peaks in the prevalence of orbital tumours, childhood and much later in life. In a large survey of 1264 such patients (Shields et al - attached) seen at an oncology tertiary referral centre the proportion of malignant lesions in the 19 to 59 year age-group was 27%, but the vast majority of these were in the older patients. This study did not examine the prevalence in the general population but malignant orbital tumours in 19 year-old females in Australia are rare. 13. With the advent of modern radiological techniques it is being increasingly recognised that orbital tumours may occur without signs or symptoms and are discovered as incidental findings. Many of these lesions are benign. a. It is inconceivable a young woman would suffer pain behind the eye for a year from either a primary or metastatic orbital tumour and remain in perfect health, as well as presenting with no clinical abnormalities on eye examination. 14. Orbital metastases do occur in thyroid carcinoma, but they are very rare, with just a handful of cases reported in the medical literature. Breast is the commonest cancer to spread to the orbit, accounting for 29 to 70% of all orbital metastases in females. The commonest primary orbital malignant neoplasm is intraocular melanoma that has grown through the eye-wall to invade the orbit; the most frequent site of systemic metastasis of these tumours is the liver. A Pubmed literature search has failed to find any reports of splenic metastases in cases of primary orbital malignancy. Stage IV orbital lymphoma is likely to be associated with liver or spleen involvement, but this is predominantly a disease of much older patients and is typically painless."
Dr Campbell then presented, in his report, a review of the case of Patient A. In that review we particularly noted the following opinion: "In this case no ocular abnormalities had been found and there was no indication for the complete physical examination subsequently performed by Dr Robinson. In my opinion the extensive physical examination performed by Dr Robinson on a 19 year-old woman was unwarranted on the basis of a complete absence of signs of serious orbital disease. The symptom of pain behind the eye had been present for a year, so there was no urgency in investigating it. A previous MRI scan on 6 October 2017 was normal; the sinuses were included, which means it is probable the orbits were also scanned, but there is no specific mention of them in the report. If there really was a genuine suspicion of serious orbital disease, (which seems unlikely in view of the absence of clinical signs), and the first MRI did not include the orbits, the acceptable course of action would have been to organise another scan, without first performing a complete physical examination. In my opinion Dr Robinson's conduct fell significantly below the standard expected of a practitioner of his level of training and experience and I am strongly critical of that conduct. 2. Performing the further physical examination without a chaperone was at worst a deliberate omission and at best a serious oversight on the part of Dr Robinson. In either case it reflects poorly on him and his conduct was therefore significantly below the expected standard. I am strongly critical of this aspect of his conduct. There was no indication for auscultation of (Patient A's) chest and in my opinion Dr Robinson's conduct fell below the expected standard. An ophthalmologist would not generally examine a patient's chest if there were no indications for doing so. 6, 8 & 9. I consider it totally unacceptable conduct for an ophthalmologist to ask a young woman to remove her top and examine her breasts in the way Dr Robinson did, particularly when there were no ocular signs suggestive of metastatic breast carcinoma. [Patient A's] complaint that Dr Robinson was "excessively rubbing my nipples" is of particular concern, as is his instruction to her to stand up and lean forward; these are not a part of the recognised technique of breast examination, as far as I am able to determine. Moreover it takes constant practice and experience to be able to interpret the findings in breast examination and there would be little value in an ophthalmologist performing it. I can conceive of no situation in which an ophthalmologist in private practice would be required to perform breast examination in a young woman and I am therefore of the opinion that Dr Robinson's conduct was significantly below the expected standard. I am strongly critical of this aspect of his conduct. 7. It would have been reasonable to enquire if [Patient A's] headaches were related to her menstrual cycle, as there is a well-recognised association between migraine and menstruation, but the question as to whether she was menstruating at the time of the examination was, in my opinion, irrelevant and inappropriate. Dr Robinson's conduct fell below the expected standard. 10. There was no indication for palpation of [Patient A's] abdomen underneath her clothing and in my opinion Dr Robinson's conduct fell below the expected standard. An ophthalmologist would not generally examine a patient's abdomen, especially if there were no abnormal signs in the visual system. 11 Whether [Patient A] had ever had a Pap smear was irrelevant to her condition and would not have been asked by a practitioner of an equivalent level or experience; Dr Robinson's conduct was below the expected standard in this regard. 12. Dr Robinson's rationale for subjecting [Patient A] to an examination of her breasts, chest, neck and abdomen was that she may have had a malignant orbital tumour that had spread from elsewhere in her body. There was no basis for this suspicion for the following reasons: a) orbital malignancy, either primary or secondary, in a young female is extremely rare. b) examination of her eyes and orbits revealed no abnormalities. c) she remained in good health despite having had the symptom of eye pain for a year. Even if a full physical examination had been necessary it would have been more appropriate to have referred [Patient A] back to her GP for this to be done. In my opinion Dr Robinson's conduct fell significantly below the standard expected of a practitioner of his level of training and experience and I am strongly critical of such conduct."
We have included portions of Dr Campbell's report which touched on the major issue which we have to decide in this case. There were portions of Dr Campbell's report where he was not critical of conduct reported to have taken place during the consultation Dr Robinson had with Patient A. further, some of the content of Dr Campbell's report was struck out following objection and we have not had regard to, or included, any portion of the report which was so treated.
Dr Campbell further reported as follows: "14. According to [Patient A's] statement she was feeling lightheaded and uncomfortable during the consultation and subsequent examination. She maintains Dr Robinson did not really explain what was happening and she did not understand why she needed to undergo a full physical examination. She also comments that she felt scared when he mentioned the possibility of cancer. Taking her statements at face value it appears the steps taken by Dr Robinson to obtain full informed consent were less than adequate; in my opinion his conduct fell below the expected standard in this regard. 5.5 I consider my peers of good standing would hold the same view as myself on the basis of the Medical Board of Australia Guidelines (28 October 2011), as sent to me by HCCC NSW, from which I quote the following: "Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion." "In managing sexual boundaries a doctor should be aware that: inappropriate disrobing or inadequate draping for a physical examination… without adequate prior explanation… may be considered a breach of sexual boundaries." "The doctor-patient relationship is inherently unequal. The patient is often vulnerable." "Good medical practice in conducting physical examinations includes: allowing a patient to undress and dress in private.""

Oral evidence of Dr Campbell

Dr Campbell gave oral evidence in this hearing on two occasions. The first occasion was 19 August 2020. In relation to the oral evidence he gave on that occasion we noted the following.
Dr Campbell had been provided with a copy of Exhibit R4. That exhibit contained a number of articles published in relation to ophthalmic matters which Dr Robinson relied on to establish that there was a medical purpose to his breast and abdominal examination of Patient A on 21 December 2017. Dr Campbell said he had read all those articles before giving evidence. He was asked: "If hypothetically, Dr Robinson had read those articles at some time prior to 21 December 2017 is there anything in those articles that would change your view as you have expressed in your expert report". Dr Campbell said: "No I don't believe so."
Dr Campbell was asked about his knowledge of a prior complaint having been made against Dr Robinson in 2001. He was asked if he completely disregarded that previous complaint, would that change any of the opinions he expresses in his report. Dr Campbell said that it would not, because he didn't think the previous incident had any influence on his mind in relation to what happened in 2017.
Dr Campbell was cross-examined by counsel for Dr Robinson.
Dr Campbell confirmed he had read the transcript from the section 150 hearing for Dr Robinson, which took place in February 2018. He was asked to look at page 43 of the transcript. He agreed that at that place in the transcript opinions were expressed by members of the Medical Council that the examination of Patient A by Dr Robinson was gratuitous, and the examination may have amounted to an indecent assault, and that the examination amounted to a potential abuse of a position of trust. It was suggested that those views effected Dr Campbell's ability to form his own impression and express his own opinions in relation to Dr Robinson and the examination of Patient A on 21 December 2017. Dr Campbell denied that. He said he was not swayed either way by what was previously reported by the disciplinary committee.
It was suggested to Dr Campbell that his use of the words "if there really was a genuine suspicion of serious orbital disease" reflected a personal opinion that there was no such genuine belief held by Dr Robinson. Dr Campbell denied that and said: "It means that there was no clinical indication that Patient A had a serious orbital disease. There were no signs whatsoever, but if Dr Robinson believed that she really did have serious orbital disease, then he should have gone on to repeat the MRI scan including the Orbits."
Dr Campbell was asked to note that in his evidence before the section 150 hearing Dr Robinson acknowledged that metastatic tumours of the orbit in 19-year-old women are exceedingly rare.
Dr Campbell was asked questions about the article which was set out at Tab 22 in the HCCC material and which was referred to as the Shields Article. He was asked to agree that the article is a study of roughly 1264 patients in the setting of an ocular oncology service. He did agree. He was asked to look at table 13 titled "Sub-classification of 91 patients of metastatic tumours among 1264 consecutive patients with orbital lesions." He agreed that from the table 48% of the patients with metastatic tumours had the primary site being a breast carcinoma. He also agreed that on the table 8% of those with metastatic tumour to the orbit had as the primary site lung carcinoma. Dr Campbell said in relation to the table under discussion: "If you look at the column on the right hand side the median age of the patients with metastatic breast cancer and to the orbital is 60 and the range is 34 to 81".
Dr Campbell was asked about his opinion, and expressed that: "It should be noted a tumour is unlikely to be the cause of IPA in the absence of other clinical signs and symptoms". It was put to Dr Campbell that the particular opinion is not referenced. Dr Campbell responded: "There is no reference to show that a patient with metastatic tumour would have eye pain and no other symptoms. That does not appear anywhere in the medical literature so I can't give you a reference for it."
Dr Campbell was asked to look at annexure U in the folder of articles forming part of the material relied on by Dr Robinson. That article referenced "Clinical presentation of orbital metastasis". It was put that the article demonstrated in patients presenting with the symptoms, 42% reported pain as a presenting symptom. Dr Campbell responded by saying the only problem with your argument is that it doesn't say (in the article) that pain was the only symptom. "You see, if you add up those percentages you would see that many of these patients have multiple signs and symptoms and that nowhere in the paper does it say pain was the only symptom with no other findings". He agreed, to that extent, the article was ambiguous.
Dr Campbell was then taken to the article headed an Annexure E. His attention was taken to the heading "Summary', and to the statement that breast carcinoma continues to account for the majority of metastatic lesions of the orbit and ocular adnexa. Further his attention was drawn to the passage: "In 19 to 25% of cases there may be no history of cancer and thus the ophthalmologist may play a crucial role in the detection and staging of a previously unsuspected primary cancer." Dr Campbell said he accepted that was no doubt correct; however, from his own practice, "I do ocular oncology, only dealing with tumours inside the eye, and over the years I have had many cases presenting to me with some metastasis inside the eye, in the chorioid, and I have directed them to an oncologist who has found a breast cancer. So yes, I fully agree with that statement".
It was put to Dr Campbell that the articles which he read, as provided by Dr Robinson, stated that there is an unrelenting rapid onset of symptoms. Those symptoms may be progressive over weeks to months. He agreed that the articles then suggested that although generally the symptoms may be rapid, they can in fact span one day to 2 years.
Dr Campbell was asked to look at a number of different annexures to the material produced by Dr Robinson in the hearing. Dr Campbell was asked to concede that orbital cancers do appear in young people. Dr Campbell noted that Patient A was 19 at the time of the examination by Dr Robinson, and he said the study shows that orbital cancer in that age group is "pretty rare". Dr Campbell was asked to note that, again, pain was a presenting symptom. Dr Campbell said that the pain in the orbit would be caused "by infiltration of the nerve and in order for a tumour to do that it would have to be getting fairly large and it would produce other symptoms and signs such as diplopia, proptosis, pressing on the optic nerve with visual symptoms and signs."
Dr Campbell was asked to look at an extract from the Wills Eye Manual, third edition printed 1999 and in existence until 2012. Dr Campbell said that he was aware of the manual produced by the Wills Eye Hospital in Philadelphia. He said it was a training manual for people training in ophthalmology. He acknowledged that ophthalmologists who have completed their training may also look at it.
Dr Campbell was taken to a part of the manual which said: "When a metastasis is suspected, and primary tumour is unknown, the following should be performed and point B includes breast examination and palpation of auxiliary lymph nodes. In asserted contradiction to that statement in the manual, Dr Campbell was taken to the opinion he expressed: "In my opinion there are no circumstances in which an ophthalmologist would be expected or required to perform a breast examination". Dr Campbell said: "And I stand by that." When it was suggested that Dr Campbell's opinion was at odds with the textbook statement Dr Campbell said: "Well it is absolutely correct but it doesn't say in that manual who should perform it and I would put to you that an ophthalmologist is not the appropriate person to examine a woman's breasts."
In the case of Patient A, Dr Campbell said he did not believe that there was an indication for undertaking an MRI scan of the orbit as there were no clinical signs of tumour. He said "I think this is being excessively cautious. If there is no indication for doing investigation I don't think there is any reason to do it."
Dr Campbell was shown an extract from the sixth addition of Wills Eye Manual Office and Emergency Room Diagnosis and Treatment of Eye Disease. He was taken to the heading "Work Up". There, it was pointed out the manual stated that the breast examination should be undertaken by the primary physician. Dr Campbell said: "Do you understand that the primary physician is the patient's GP". It was put to Dr Campbell that arising out of the earlier version of the manual it was ambiguous in relation to which medical discipline should examine the breast of a patient presenting with possible metastasis to the orbit. Dr Campbell said: "I think there are some things that don't actually need to be spelled out. It would be obvious to most ophthalmologists that they do not do a breast examination just based on common sense principles."
In re-examination Dr Campbell was taken to some of his evidence which addressed the articles contained in Dr Robinson's material and about which he was questioned. Dr Campbell was asked: "Is it the case that an ophthalmologist, considering whether or not a person has an orbital tumour, considers both symptoms and clinical science?" Dr Campbell said: "Definitely all of them." Dr Campbell said that if pain was the only symptom, and there were no other symptoms or clinical signs, the likelihood of it being an orbital tumour would be extremely low on the list of differential diagnosis.
Dr Campbell gave further evidence in the hearing after providing a further report. We set that evidence out later in these reasons.

Oral evidence of Patient A

Patient A gave oral evidence in chief which described her attendance in consultation with Dr Robinson on 21 December 2017. That evidence was consistent with the evidence contained in her statement which we have recorded above. No submission is made on the part of Dr Robinson to challenge the accuracy of the evidence given by Patient A.
Patient A was cross-examined by the counsel for Dr Robinson to a very limited extent. We note the following from that cross-examination:
Patient A confirmed that on 21 December 2017, when she attended upon Dr Robinson in consultation, it was the first time she had experienced a breast examination by a medical practitioner. When she returned to her home and spoke to her mother about the consultation she was crying. She had asked her mother how a breast examination should be performed because she was unsure whether or not the breast examination performed on her that day was performed in the correct manner. She described to her mother how her breasts had been examined by Dr Robinson. Her mother had explained to her how a breast examination should be performed. She could not recollect exactly the words her mother had used however she said: "She basically told me the way that Dr Robinson did it wasn't correct." She said her mother had told her that the way Dr Robinson performed the examination "was more like fondling than a breast examination." Patient A could not remember how the thyroid examination took place on that day. She could not remember telling the police on that day that Dr Robinson had "massaged her thyroid." When taken to that part of the statement which said: "He then massaged my throat", Patient A said: "That's obviously a part of the examination that I forgot."
Patient A was asked whether the motion used by Dr Robinson in checking her thyroid was described by her as a massage motion. She agreed it was.
Patient A was asked in relation to the words she used, "massaged my breasts", was she describing the same action as she had illustrated in her evidence in relation to the thyroid massage. Patient A said: "Yes, he used circular motions around my breast in a massaging way."
Patient A agreed that when Dr Robinson first commenced her breast examination it was with the tops of three of his fingers being placed against her breast skin. She agreed he pressed down on her breast skin. She agreed he moved through the four distinct sections of her breast in that examination. She agreed he did that with flat fingers. She agreed he moved his flat fingers on top of her nipple and he pushed down on her nipple. She was asked to agree that he pushed down on the area immediately surrounding the nipple. Patient A said: "When he was massaging, yes, it was a pushing motion." She agreed it was a pushing motion that went in a clockwise or circular direction all the way around her nipple. She agreed that is what she described in her statement as "massaging". She was asked whether that is what she was describing when she said in her statement Dr Robinson "rubbed my nipple". Patient A said: "Yes, but there was like a rubbing motion on the nipple." She said it was "back and forward rubbing." She agreed it could be described as a pressing motion, pressing down against her skin. She agreed that for the second breast examination where she was leaning against the chair it was the same motion used by Dr Robinson in the examination.
When Patient A was instructed by Dr Robinson as to how to examine her own breasts she agreed he instructed her to use the tops of her three middle fingers. She agreed he instructed her to push down against the skin in her breast area. She agreed he instructed her to move her fingers in all of the four areas of her breast which had been referred to earlier in the questions asked of Patient A. She agreed he instructed her to push against her nipple.
Patient A was asked about her statement relating to the reaction she had to the drops which had been placed in her eye by the person she saw in Dr Robinson's rooms before she met Dr Robinson. She was asked whether her vision was blurry for the whole time she was in consultation with Dr Robinson. She said it was. She agreed that before she met with Dr Robinson she already felt panicked. She agreed she felt scared. She said: "I told Dr Robinson how I was feeling when I entered the room." She agreed she felt unstable, as she had told the police. She agreed that she "felt completely out of it, like she was going to pass out". Patient A agreed she did not use those words when she informed Dr Robinson how she was feeling, however: "I told him that I was not feeling well and that I couldn't see properly". She agreed she had not told him she was feeling scared or panicked.
It was put to Patient A that Dr Robinson informed her that he wanted to do a breast examination. Patient A said: "The way he explained going into the other room was confusing with medical terms and I didn't fully understand what I was going into. I don't believe that he said breast examination".
Counsel for Dr Robinson then read to Patient A the following extract from the evidence of Dr Robinson given at the section 150 hearing. The words read to Patient A from that transcript are as follows: "The most urgent symptom, the most urgent cause, though rare to exclude is a tumour behind your right eye. That can occur primarily or it can be a tumour that has come from another part of your body to the area behind the eye and therefore as well as doing neurological examination, which is something I do with headaches, I would like to perform a general physical examination to exclude tumours which could metastasise to the eye." Patient A was asked whether she found the description just read to her confusing. She said: "Yes, it was very long". She agreed Dr Robinson had said something to that affect. She agreed she had told the police, about that statement made by Dr Robinson to her, "I don't remember the exact words". She said she had remembered the words "neurological testing". She agreed she had sent a text to a friend telling her that Dr Robinson was "checking for cancer".
It was put to Patient A that when she saw Dr Robinson in the first consulting room she understood he wanted to check for cancer. She replied: "He said it so confusingly that in my mind I wasn't going in their understanding that it was for cancer specifically. I was just trusting him as a physician to do the examination that he needed to do but I was still confused as to what exactly it was".
It was put to Patient A that in her police statement she said that Dr Robinson had told her "that he was going to do a body examination". Patient A replied: "Yeah, he said it all so fast that I didn't understand that that's what would occur in that room; like all of that in one go". She said: "I was just following him because I didn't exactly understand what that whole sentence meant". She was asked: "But didn't you say to the police in the following sentence that you thought that that was to try to scare you into doing that examination by mentioning cancer?" Patient A replied: "Yes". She said "I didn't think it would be a breast check".
Patient A agreed that when Dr Robinson asked her to remove her top he said it was to check for breast lumps. She agreed that, in that moment, she understood what was about to happen, however she had not understood that before she arrived in the second room. She agreed that she did not indicate to Dr Robinson in the first room that she was confused as to why he was moving her to the second room. She also agreed that she did not indicate to Dr Robinson that she was scared or felt pressured in relation to moving from the first room to the second room for an examination.
Patient A agreed that Dr Robinson may have asked her where she was in her menstrual cycle. She also agreed that Dr Robinson had said to her that she should get a Pap smear. She agreed that that conversation took place after the abdominal examination. She said she had not understood why her eye doctor would be suggesting that she get a Pap smear.
In relation to the suggestion that Patient A had made in her statement that Dr Robinson had unlocked the door to the second room when the examination was finished, she agreed that it was "just a feeling she had as compared to actually seeing him unlocking the door".
It was put to Patient A that in the second part of the breast examination, when she was standing, Dr Robinson had examined each breast using two hands. She could not recall exactly whether that had occurred. It was put to Patient A that during the examination Dr Robinson did not rub Patient A's nipples. Patient A said "I think he might have. I don't remember exactly. I know he touched my breasts. I was like looking at the chair".
Patient A agreed that an ophthalmologist doing a breast examination upon her took her by surprise. She agreed that was one of the reasons she felt uncomfortable about what had transpired by way of examination.
In re-examination Patient A was asked how many times she recalled Dr Robinson examining the four areas of each of her breasts. She said "probably twice and then he made me do it to myself. And then I remember I think on the right breast he did it again, So maybe a third time. In relation to the examination of her nipple on her right breast she believed that he had circled that nipple twice with his examination. She thought he had examined the nipple for maybe five seconds.

Evidence of Dr Robinson

The importance of different aspects of the case brought against Dr Robinson changed as the evidence unfolded. As will be seen, during the oral evidence of Dr Robinson he accepted some of the complaint and the Particulars to the complaint. However, at all times, Dr Robinson has denied the physical examination he conducted of Patient A's breasts and abdomen was not clinically indicated. He has denied he conducted the examination for any other purpose, such as self-gratification.
On 20 August 2020 the Dr Robinson tendered a statement signed by him on 17 August 2020. That statement was marked as Exhibit R14. We particularly noted the following evidence set out in that exhibit: 1. The Respondent was born in November 1962 and is 58 years old at the date of the final hearing dates. 2. The Respondent completed his Bachelor of Medicine/Bachelor of Surgery at the University of Sydney in 1987. 3. The Respondent is currently the only surgeon/Mohel in NSW. 4. Between 1993 and 1995 the Respondent was an ophthalmology registrar at the Sydney Eye Hospital. In 1997 he obtained his fellowship from the Royal Australian and New Zealand College of Ophthalmologists and from the Royal Australasian College of Surgeons. He then commenced to practise with his father at Bondi Junction. 5. The Respondent, on alternate Monday and Tuesday afternoons, has an operating list at East Sydney Private Hospital. On Wednesday afternoons he does laser vision correction at the George Street Laser Centre. On Thursday afternoons he does pre- and post-operative work at the Circumcision Clinic. 6. The Respondent proposes to practise for another 10 to 15 years. 7. On 14 February 2018 the Respondent attended upon a section 150 inquiry at the Medical Council of NSW. The inquiry imposed conditions upon his registration which included that he could not have contact with any female patient unless a practice monitor was present. Further he was to subject himself to random audits of his practice by the Medical Council. The conditions included that each female patient is to sign a consent form on which was written "The Medical Council of NSW has received a complaint about Dr Robinson which is being investigated." The Respondent estimates that he has seen more than 2,700 female patients since the condition was imposed on his registration. 8. Since the complaint was notified to the Respondent, he has undertaken the following steps in relation to the matters which gave rise to the complaint: he has sought mentoring from Dr Alfred Weschler; he has undertaken consultations with Dr Michael Diamond, his psychiatrist; he has undertaken continuing professional development education; and he has undertaken a specific study in relation to appropriate professional boundaries.
There came a point in the hearing when the Respondent was taken to each of the complaints and the Particulars thereto, and asked to say whether he denied or accepted same. We noted the following evidence in relation to matters put to the Respondent. In order to assist us in following what is admitted and what is denied in the Complaint document by the Respondent, we propose to set out the Particular he is asked to address and then set out his answer.

Complaint One

Particular 1(a) "During the consultation at the Practice the practitioner auscultated Patient A's chest underneath her clothing which was inappropriate in that: (a) no ocular abnormalities had been found; Respondent's Response: We Note the Respondent denied that his auscultation of Patient A's chest underneath her clothing was inappropriate. He otherwise conceded "So I admit 1A as a correct statement of facts, that no ocular abnormalities, there was no abnormalities in the eye had been found."
Particular 1(b) there were no signs of orbital disease. The Respondent denied that allegation.
Particular 1(c) there was no clinical indication for the examination. The Respondent did not admit that.
Particular 1(d) a chaperone was not present. The Respondent admitted that fact.
Particular 1(e) the practitioner failed to obtain adequate informed consent. The Respondent denied that Particular.
Particular 2 During the consultation at the Practice, the practitioner inappropriately conducted a breast examination on Patient A in that he: (a) requested Patient A remove her top. The Respondent admitted he requested Patient A to remove her top.
Particular 2(b) requested Patient A remove her bra. We note it is a conceded fact that Patient A was not wearing a bra on the subject occasion.
Particular 2(c) palpated all four quadrants of Patient A's breasts behind the areola with flat fingers for approximately one minute whilst Patient A was leaning back in a reclining chair and her strapless top was pulled down beneath her breasts. The Respondent admitted that fact.
Particular 2(d) rubbed Patient A's nipples whilst she was leaning back in a reclining chair and her strapless top was pulled down beneath her breasts which is not an approved breast examination technique. The Respondent denied he had rubbed Patient A's nipples.
Particular 2(e) palpated Patient A's breasts a second time between two hands whilst Patient A was leaning forwards in a chair and her strapless top was pulled down beneath her breasts which is not an approved breast examination technique. The Respondent accepts he examined the breasts of Patient A as alleged, however he denies it was not an approved breast examination technique.
In relation to the opening words of Particular 2, the Respondent denied the breast examination was inappropriate. He said it was clinically indicated.
Particular 3 The conduct set out in particular 2 above was inappropriate in that: 1. no ocular abnormalities had been found; 2. there were no signs of orbital disease; 3. there was no clinical indication for the examination; 4. a chaperone was not present; 5. no ocular signs suggested metastatic breast carcinoma; 6. the practitioner failed to obtain adequate informed consent. The Respondent: (a) accepts no ocular abnormalities had been found; (b) accepts there was no sign or orbital disease; (c) does not accept there was no indication for the examination; (d) accepts that a chaperone was not present; (e) does not accept there were no ocular signs which suggested metastatic breast carcinoma; (f) does not accept that he failed to obtain adequate informed consent for the breast examination.
Particular 4. The practitioner engaged in inappropriate conduct of a sexual nature towards Patient A by reason of his actions set out at particular 2(a) - (e). The Respondent denies the allegation in this Particular.
Particular 5 During the consultation at the Practice the practitioner conducted an abdomen examination on Patient A underneath her clothing which was inappropriate in that: 1. no ocular abnormalities had been found; 2. there were no signs of orbital disease; 3. there was no clinical indication for the examination; 4. a chaperone was not present; 5. he failed to obtain adequate informed consent. The Respondent said that his responses to Particular 5(a) to (e) are the same as his responses to Particular 1(a) to (e) as the words in each of those Particulars are identical.
In relation to the opening words of Particular 5 the Respondent said: "So I accept I conducted the abdominal examination, but at the time, I thought it was clinically indicated, and therefore appropriate". He also accepted that the examination occurred on Patient A's bare skin.
Particular 6 During the consultation at the Practice the practitioner inappropriately asked Patient A whether she was presently menstruating in circumstances where the question was not clinically indicated. The Respondent said: "I deny in fact, in other words I at no stage asked whether she was presently menstruating. That question was not asked. I did ask, as I have clarified, where she was within her menstrual cycle". He asserted the question was clinically indicated and appropriate.
Particular 7 During the consultation at the Practice the practitioner inappropriately asked Patient A whether she had ever had a pap smear in circumstances where the question was not clinically indicated. The Respondent agreed he had asked the question of Patient A. He said it was clinically indicated "as a part of giving information to the patient to go to her GP and have that pap smear to screen for cancer, cervical cancer".

Complaint Two

Dr Robinson denied he did not record in the medical records for Patient A that he had conducted a breast examination. He said he recorded it as "chest, no lumps." He also denied he had failed to set out in the letter to the GP that he had conducted a breast examination on Patient A. He said: "I believe it was included my general reference that I had found no masses on physical examination, and that would have included the breast".
Dr Robinson denied he engaged in unsatisfactory professional conduct in relation to the making of a medical record for Patient A's attendance upon him.
Dr Robinson also denied he had engaged in improper or unethical professional conduct.
The counsel for the HCCC asked Dr Robinson the following question, and received the following answer from Dr Robinson following his conceding that he had conducted a breast examination upon Patient A: "Q. I should put to you the same issue in respect of Complaint 1, if you turn back to page 1. I know I have asked you, I know you have denied that you engaged in unsatisfactory professional conduct, but just to be clear, if you look at the bottom of page 1, you are denying that you engaged in conduct that demonstrates the knowledge, skill or judgment possessed or here exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and/or experience, in relation to the matters that are particularised at Complaint 1? A. Yes, so this is an important, this is an important question, and you know, as the judge has indicated at various times, there was a difference in my thoughts at the time at the end of 2017, and my position now in 2021, so the answers I have given now would indicate that at that time, I believed there was a clinical indication for all the examinations looking for this rare diagnoses, but after three years of introspection and studying, and meetings with mentor, and seeing the opinions of ophthalmologists, I now admit to unsatisfactory professional conduct, in that I understand now that the position of the profession and the medical board is that general examinations are more appropriately and more suitably performed by general practitioners, and not ophthalmologists."
In relation to the complaint that Dr Robinson did not have consent from Patient A to conduct a breast examination, he was asked whether it was reasonable to assume that a patient attending his rooms for a consultation would not expect that would entail a breast examination. Dr Robinson appeared to have difficulty addressing the question. The Principal member then asked: "Q. Dr Robinson, I think the question was fairly clear, I'm sitting in your waiting room, there for an appointment to have my eyes looked at, is it reasonable that I would expect that would involve you doing a chest examination of me, that's what you were asked, do you think that is reasonable for a patient sitting in your waiting room to think that that was what was going to happen to them? A. Yeah, I think she would be expecting an eye examination,… that would be the normal expectation, to be expecting an eye examination, you know, and I expect that she, most patients would not have been expecting a wider examination."
Dr Robinson conceded the same would be true in relation to the abdominal examination. That is, that Patient A would not reasonably have been expected to anticipate an abdominal examination when she attended upon Dr Robinson's rooms in December 2017.
Dr Robinson was asked by the HCCC: "Q. To the extent that you need to provide a patient with an opportunity to give informed consent, do you accept that there is a different level of detail required, on the one hand in respect of eye examination which a patient would reasonably expect to occur when they are consulting a specialist ophthalmologist, and the level of detail of information that you would be required to give to a patient to give informed consent to physical examinations that they would not expect you to be carrying out? A. Yeah, I accept that, and that was the reason why I gave informed consent at many times, which I think I haven't been able to express, in room 1 and in room 2, I gave the patient much information, firstly a global consent, and then before each area, before the thyroid, before the lung, before the breast, I gave the patient further full information as to why I was performing the examination, so I accept the notion that it does require more in depth consent, and that's what I believe I did provide."
Dr Robinson was asked about his experience in detecting tumours in the front of the eye. He was asked if he was able to distinguish tumours which are primary and opposed to secondary. He felt he was competent at that but said all tumours have the capacity to surprise when finally diagnosed by laboratory examination. He said that if he considered the tumour was a primary tumour, he would not undertake a physical examination of the patient. The HCCC counsel then asked him: "Q. But Dr Robinson, with Patient A, she didn't even to your knowledge have an actual tumour in her orbit, and yet you conducted this physical examination, that just undermines, doesn't it, the plausibility of your explanation as to why you conducted this physical examination? A. Not at all. I mean, hopefully I will get a chance to present some literature which is in the folder, and in that there is the statement that any patient with a suspected orbital tumour should undergo an eye examination, and a general physical examination. I can pull it out now for you, but that, that was what was in my mind, I suspected that this patient, again this patient had had pain behind the eye for 12 months. This is a very unusual patient, and a brain scan looking for cancer, this is a very highly unusual patient that I had been asked to try and sort out what is causing this pain, and what was in my mind was the possibility of an orbital tumour, the most significant in terms of severe diagnoses that shouldn't be missed, and that tumour could be primary or secondary."
In justifying his medical basis for examining the breast of Patient A Dr Robinson had referred us to an article by Venezuela which looked at the most common cause of orbital secondaries and named them as breast cancer and, leaving aside prostate cancer, the next was melanoma. Senior Member Rewell asked Dr Robinson whether, in light of that article, he had also conducted an examination for the purpose of identifying melanoma. Dr Robinson said that whilst understanding the point made by Senior Member Rewell, he was performing regional examinations of her chest and abdomen. The focus of those examinations was to define or exclude a tumour in her lung or a tumour in her abdomen. Had he seen a brown lesion he felt confident that he would be able to diagnose it has a melanoma. Had they been smaller lesions, to the point of requiring magnification, he would not have been able to detect such melanoma. Dr Robinson agreed he had not taken a history directed to melanoma when in consultation with Patient A.
In answer to some questions from the members of the Tribunal, Dr Robinson said that to the best of his recollection, in the time he has practised as an ophthalmologist he has only examined the breasts of two female patients. In 2017 when he examined the breasts of Patient A, Dr Robinson was aware that in relation to his only other examination of the breasts of a female patient since he commenced practice as an ophthalmologist had resulted in a complaint being made about that examination. That complaint had been made in 2001, and Dr Robinson said that when he became aware of that complaint it had disturbed him. Dr Robinson said: "I was certainly alarmed, and I resolved it would be a good idea to have a chaperone in a room if I was ever doing such an examination, and I am distraught that I didn't carry through with that chaperone in having one present for this 2017 examination, as that would have made the patient feel much more comfortable".
When asked why he would expose himself to the possibility of another complaint arising from a breast examination of a patient, Dr Robinson said: "All I can say is that that examination is an extremely rare examination, because I would only perform it in a situation where I was concerned of a tumour in the brain, or tumour in the orbit, so I was focused, too fixated on trying to save this patient from cancer. That, on reflection, is a terrible oversight, and I again, it's really important to note that the HCCC at that time did not write that I as an ophthalmologist had done anything wrong in examining the breasts. They acknowledged receipt of the complaint, and they sent me a letter saying, this is, I'm going to be taken no further. You know, so as far as I knew about the HCCC's view of breast examinations for an ophthalmologist, I had it black and white that they did not take it any further, so that may have reassured me, but now, knowing what I do now, I acknowledge that it was a tremendous oversight, one to perform that breast examination, and number 2 not to have a chaperone at the time."
Dr Robinson was asked if there was anything about the presentation of Patient A on the day of the consultation, which made it urgent that she have a physical examination of her chest, and that it be done immediately by him, as opposed to referring her to her own GP for that examination to take place. Dr Robinson said: "I thought this lady may not be able to get an appointment with her GP for two weeks, three weeks, and if there was that diagnosis made, if I had found a lung tumour, this is something that needed to be actioned immediately, you know". Dr Robinson was then asked: "Q. The date of the consultation was one of the motivating factors, is that right? A. That is correct, yes."
In further questions from counsel for the HCCC Dr Robinson said he had not made any enquiry of Patient A's GP to see if there was availability for Patient A to be seen by her prior to Christmas or thereafter. The consultation, it is to be remembered, took place on 21 December 2017.
During the time that members of the Tribunal were asking questions of Dr Robinson, the following question was asked and answered which subsequently gave rise to the hearing being extended. "Q. Dr Robinson, I just want to know at the MRI, again speaking from a point of ignorance, why did the brain MRI not show a picture which included behind the orbit? A. Yeah, look, it's a great question. So I didn't have the MRI scan, I only had the MRI report. So in the MRI report noted that there were no brain tumour, I should have a read of that report, somewhere here …[not transcribable]… but what I note is that in that report, there was no comment on the orbits. So the judge's question is good, so I imagine when they're taking the slices to examine the brain, some of those slices may go through the orbit, and I guess if the doctor had written no, question mark, brain tumour, question mark, orbital tumour, the radiologist would have reported specifically on the orbits, but it seems here that on the MRI report, I had the report, there was no brain tumour, but there was no mention positive or negative about the orbits. Q. But surely the person who reported on the MRI was qualified enough to know that if they saw any abnormality in the orbit that may be a tumour, they would make mention of it and not just simply ignore it because they had been asked only to look at the brain? A: Look, I would hope so. I mean, again, I'm not a radiologist, I don't know exactly which slices go through the brain, and which slices would go through the eye or orbit. So I'm sorry, I don't have any knowledge on that specific question, whether a slice of the orbit were included in the original MRI examination. Q. Are you able to read an MRI of the orbit? A. Yes, in other words, I would certainly look at it, if I had ordered an MRI of the orbit, I would certainly look at the actual scan image, as well as reading the report. Obviously the radiologist would have more expertise in diagnosing a problem in the orbit, but I, definitely in the past, I have, I can recall patients that I have ordered MRI of orbit, and it had been recorded to as normal, and I thought that the muscles behind the eye were enlarged and had sent a patient like this to an orbital expert who agreed, yes, these muscles are abnormally large, and there is a problem here. So I …[not transcribable]… some ability, and so if I order an MRI of an orbit, I would look at the scan myself, as well as reading the report" (emphasis added).
It was the assertion that he had not seen the MRI scans which led to further evidence being given by Patient A and the expert relied upon by the HCCC, Dr Campbell.
When the hearing resumed on 3 February 2021 counsel for the HCCC asked Dr Robinson the following question to which he provided his answer: "Q. You gave some evidence to his Honour yesterday, Dr Robinson, regarding the low likelihood of there being an orbital tumour, and what I'm asking you is how you weighed that low likelihood up against the intrusive and embarrassing elements of having Patient A remove her clothes and be subject to a breast examination? A. Yes, so the likelihood of a tumour in this setting is low and in my letter to the GP I have acknowledged that the most likely cause is migraine. However, the most severe or urgent diagnosis to make, or not miss, is tumour. So because of the you know, the potential sight threatening or life threatening implications of finding a tumour either a primary tumour in her body or a tumour in her orbit that is what that information made me do this examination. So although I can acknowledge it would be embarrassing, the severe consequences of not finding the tumour which could be sight or life threatening, I believe on the balance made the examination reasonable."
Dr Robinson was re-examined by his counsel. "Q. I would like to clarify your evidence yesterday […] Particular 1 of Complaint 1. Dr Robinson, do you admit or deny that auscultating Patient A's chest underneath her clothing was inappropriate? A. I admit that it was inappropriate. Q. If you move on to page 2 of the complaint to Particular 2, do you, Dr Robinson, admit or deny that it was inappropriate for you to conduct a breast examination on Patient A? A. I admit that it is inappropriate. Q. Dr Robinson, is your admission that it is inappropriate and that it was inappropriate? A. Yes. So my admission is my current thinking is that the examination is and was inappropriate. Q. Dr Robinson, with respect to Particular 3, do you admit or deny that it was inappropriate to conduct an examination, namely of the breast? A. I admit that it I admit now that it was inappropriate. Q. With respect to Particular 5, do you admit or deny that conducting an abdominal examination on Patient A underneath her clothing was inappropriate? A. I admit that it was inappropriate. Q. With respect to Particular 7, do you admit or deny that it was inappropriate to ask Patient A whether she had ever had a pap smear in circumstances where the question was not clinically indicated? A. I admit that it was inappropriate. Q. Yesterday you admitted that your conduct was unsatisfactory professional conduct insofar as sub-particular (i), namely it demonstrated that your knowledge, skill, judgment, care exercise was significantly below the standards accepted; is that correct? A. That is correct. Q. Yesterday, Dr Robinson, is it correct that you denied that your conduct was improper or unethical? A. That is correct, I denied that my conduct was improper or unethical. Q. Is it correct to say that you maintain that denial? A. Yes, I maintain that denial. Q. Is it correct that you maintain your denial that you engaged in inappropriate conduct of a sexual nature towards Patient A? A. Yes, I maintain that denial. Q. Dr Robinson, throughout your cross examination you were asked to reflect upon the impact of your physical examination, breast and abdomen and chest, on Patient A. What are your reflections on the impact your examination, your conduct, had on Patient A? A. I am very sorry for the adverse impact my examination has clearly had on Patient A. Q. Did you reflect upon that impact, did you consider that impact at the time you conducted your consultation? A. I mean, at the time I was just focused on the clinical aspect of the examination, but I now appreciate the negative impact that my examination had on the patient at that time and subsequently."

Dr Robinson's Further Evidence

Because of the oral evidence from Dr Robinson that he did not see the MRI scans, a further statement was obtained from Patient A. Further evidence was called from Dr Campbell, and further written and oral evidence was given by Dr Robinson.
In that statement Dr Robinson says the following: "I refer to the evidence I provided in these proceedings. I note that in my evidence, in summary, I stated that I did not view Patient A's MRI scan on 21 December 2017. To clarify, I do not have a conscious recollection of viewing Patient A's MRI Brain scans on 21 December 2017. In that regard, I defer to the memory of Patient A. It is possible that I did view Patient A's MRI Brain scans on this date but I simply do not recall. If I do view scans brought in by a patient in my consultation room, I do not have a light box to view scans, I hold the scans to whatever light is available in my consultation room. As I am a generalist ophthalmologist, in my mind at the time, if I did in fact view the MRI Brain scans, to me they appear inconclusive in excluding an orbital tumour. As a result and given I held this opinion, it is likely that during my evidence in these proceedings, under the stress and given I still hold this opinion, and in haste, my immediate response to the questions asked of me were that I had not viewed the MRI Brain scans. Also, the MRI Brain report did not include any mention of the orbit, in particular, it did not state that there is no orbital tumour."
Patient A provided a further statement, dated 10 February 2021, which was admitted to evidence as Exhibit A2. In that statement, which explains how she delivered the scans to Dr Robinson on 21 December 2017, Patient A said she had attended upon a radiology service on 6 October 2017 and there had brain scans taken. She returned to that place on 9 October 2017 and was handed an envelope which she was told contained her brain scan. She took that envelope to her GP on 28 November 2017. The envelope was sealed at the time she delivered it to her GP. She observed on that occasion that her GP opened the envelope which contained "black films". In that consultation with her GP she received a referral letter addressed to Dr Robinson and was handed the envelope containing the scans to take with her for her consultation with Dr Robinson.
On 21 December 2017 Patient A took the envelope with her for her consultation with Dr Robinson. Whilst in consultation with Dr Robinson she said to him: "I have MRI scans with me, do you want to look at them?" He said words to the effect of: "Yes". Patient A then handed him the envelope she had brought with her to the consultation. She said: "I recall that he opened the envelope and appeared to pull out all of the black films and rested them on his lap; there appeared to be several scans. He then briefly looked at each scan, holding each one up at eye level to get light behind it." At the conclusion of the consultation Patient A took the scans with her to her home.
Patient A attached to her statement a printed copy of the scans and the envelope which had been provided to her.
Dr Campbell provided a further report dated 13 February 2021. That report was admitted to evidence and marked as Exhibit A3.
The further report from Dr Campbell provided the following evidence which we particularly noted.
Dr Campbell said he had examined the MRI brain scans of Patient A and said he could "confirm they contain images of the eyes and orbits". He said: "I would certainly expect an ophthalmologist Dr Robinson's equivalent level of training or expertise to be able to read the scans and to determine whether: (a) the orbit and/or eye is contained in any of the scans; in fact, I would expect a first-year medical student with a basic knowledge of human anatomy to be able to identify the structures in the scans. (b) I would also expect an ophthalmologist of Dr Robinson's equivalent level of training or expertise to be able to determine whether there was a tumour or mass lesion in the orbit."
Dr Campbell opined that he would expect an ophthalmologist of Dr Robertson's equivalent level of training or expertise, having looked at the scans, not to have conducted the physical examination of Patient A's breast and abdomen, not to have ordered a further MRI of the orbit. He said: "Assuming Patient A brought the hard copy of the scans to her appointment with Dr Robinson, I would expect him to have reviewed them before conducting a physical examination and ordering another scan. I would expect him to look at each sheet of the scan, paying particular attention to the images of the eyes and orbits. In my opinion, by proceeding to conduct a breast and abdomen examination and auscultate Patient A's chest in the circumstances described, Dr Robinson's conduct fell below the standard expected of a practitioner of an equivalent level of training or experience. Dr Robinson's departure from the standard was significantly below that standard."

Dr Campbell's further Oral evidence given 26 April 2021

Dr Campbell was cross-examined by counsel for Dr Robinson. Dr Campbell was asked if he recalled whether the MRI images of the brain in relation to Patient A demonstrated that for a 5 cm area, 10 slices were taken. He said: "That's right".
Dr Campbell was asked if there was a tumour of less than 5 mm there is a possibility it would not be detected on an MRI brain scan. He agreed that was possible. He was asked if an MRI of the brain is less precise in the detection of a tumour then an MRI of the orbit. Dr Campbell said that he felt he was not qualified to answer that as he was not a radiologist. He thought the MRI slices were the same size and precision for both the orbit and the brain. He was asked to accept that if the MRI scan of the orbit contains slices at 3mm it would be more accurate in detecting a tumour of the orbit then the MRI of the brain. He agreed.
Dr Campbell agreed that with a MRI of the orbit slices through the orbit front and back, slices top and bottom and slices left and right are provided. He described it as "all three planes". He agreed that not all three planes were visible in the MRI produce to him of Patient A's brain. He agreed further that if an orbital MRI Gadolinium contrast was used it can absolutely exclude a tumour in the orbit.
Dr Campbell was asked about the radiologist's report that accompanied the MRI scans for Patient A. He was asked to confirm that there was no reference to the orbit in the report. He said: "Personally, if I looked at those scans and I read that report that would have excluded an orbital tumour to my mind."
It was put that the MRI scan of the brain would not have detected a tumour of less than 5mm in size. Dr Campbell said: "An orbital tumour of less than 5mm is highly likely to be completely asymptomatic and not cause pain".
Dr Campbell said: "On the balance of probabilities to have a well young woman with pain behind her eye, who has got no health issues at all, and a negative brain scan of the MRI scan of the brain which shows the Orbits to show no tumour it is highly unlikely that she would have a lesion that was not picked up". He further said in relation to the report from the radiologist: "I would have expected the radiologist to have looked at the whole scan, not just the brain, but the orbits as well and he did not see any abnormality, but he did not mention it in his report. But that is pure supposition on my part".
It was put to Dr Campbell that: "It leaves it ambiguous doesn't it, with respect to whether or not there has been a scrutiny of the orbit by the radiologist?" Dr Campbell said: "Well you can't say for sure that he didn't. There's more likely that he did, because they always do. The radiologist did not report a tumour, I would have looked at the scans myself and I could have seen that there wasn't any and to my mind that would have been quite sufficient to exclude an orbital tumour."
Dr Campbell was asked if he wanted to exclude an orbital tumour what MRI scan would he order? He replied: "I would specifically order an orbital MRI scan".

Dr Robinson gave further oral evidence

Dr Robinson was cross-examined about his further statement in relation to the MRI of Patient A.
Dr Robinson confirmed that he had read the radiology report which accompanied the MRI scans on 21 December 2017. He said that the report he read was part of the reason why he considered the possibility of an orbital tumour secondary to a primary tumour elsewhere.
Senior Member Rewell asked Dr Robinson: "You proceeded to order two additional scans upon this patient which obviously would have taken up the patient's time, potentially further expense inconvenience etc. My question is simply, could you have potentially avoided those two additional scans by telephoning for contacting the radiologist who reported the original MRI?" Dr Robinson responded: "I could have contacted him and asked him to comment on whether on the scans performed he could exclude an orbital tumour. Yes, I could have done that, but I believe still that those scans are not definitive, and that an orbital MRI would have been needed to be performed to definitely exclude an orbital tumour".

The evidence from Dr Robinson's supporting witnesses.

The written evidence of Dr Diamond, Psychiatrist

Dr Diamond gave evidence on behalf of Dr Robinson. He provided a statement, from which we note included the following. 1. Dr Diamond had been provided with a copy of the Complaint filed by the HCCC on 9 April 2020. He was notified that Dr Robinson admitted he had performed the examinations referred two in the complaint "albeit with an ethical purpose". 2. Dr Diamond had read the Notice of Complaint dated 9 August 2018. 3. Dr Diamond had reviewed his own report of 30 August 2019. He had seen Dr Robinson for review on 17 September 2019 and 28 April 2020.
Dr Diamond was asked to answer the following question in the letter which requested his updated report: "Whether or not you have any concerns in relation to Dr Robinson being able to continue to [practise] medicine. If you have concerns, what are they and does the imposition of conditions on Dr Robinson's registration address your concerns?"
Although this question, in its answer, may address matters which are relevant to the Tribunal deciding if Dr Robinson should be the subject of protective orders, a topic which is not being addressed in this stage of the determination, there are other aspects of the report which may be important in determining questions of fact in relation to determining whether the HCCC has established its case as set out in the Complaint document.
Dr Diamond said: "It is notable that he has dutifully embraced all of the requirements of his conditions and has methodically adapted his practice so as to be fully compliant with them. This is in keeping with his obsessive and rigid personality functioning". Dr Diamond said: "He has improved awareness of the implications of his decision-making upon patients who may not readily accept his conduct of physical examination when it is outside the usual examination performed by an ophthalmologist". Dr Diamond said: "Dr Robinson has engaged in educative material and has diligently studied this material in keeping with his obsessional personality characteristics. He has reached firm views about what is or is not acceptable conduct".
Dr Diamond addressed a more thorough examination of Dr Robinson in his report dated 30 August 2019 which is found at Tab 26 of the HCCC evidence. In that report we particularly note the following: 1. Dr Diamond saw Dr Robinson on 28 June 2018 and 24 July 2018. He noted from those occasions that Dr Robinson had consistently denied that his intentions were inappropriate or that he obtained any inappropriate or questionable gratification from carrying out the examination. It is also clear that in the course of our contact he has shifted from simply defending his decision-making and conduct to clearly expressing empathic concern for the subjective experience of the patient. He has recognised that whatever his thoughts were at the time, they were clearly not shared adequately with the patient with regard to her well-being and that what he did caused her sufficient distress to have made a notification. 2. Dr Diamond opined that in his view it would be appropriate to remove the practice monitoring condition that had been imposed upon Dr Robinson at that time. 3. Under the heading "Any other comment you may wish to make" Dr Diamond said: "There is concerned about the past history of a complaint that there's some relevance to the current complaint. It is difficult to evaluate whether or not this should be taken into account because the complaint did not result in an investigation."
Dr Diamond gave oral evidence in the hearing before us. We noted, in particular, the following evidence he gave: 1. Dr Diamond, in his report was not seeking to address the question of whether or not Dr Robinson had acted in the way alleged in the Complaint document moved on by the HCCC. 2. Dr Diamond said: "I have not found him to be demented, I have not found him to be affected by substance abuse, I have not found him to be suffering some form of psychosis. I am putting together all the assessments that I have made to assist me in providing an answer to the question that was put to me, is he likely to offend again, and I have added to that the fact that he was practising confidently and safely under the conditions of his registration that were operating at the time and so that is the backdrop to formulating my opinion". 1. Dr Diamond was asked: "Q. How confident are you, as a result of the consultations you have had with him, that you would have been able to detect some aspect of his personality which could have reflected itself in him examining this girl for his own sexual benefit? A. That's a very specific question, and the way I was limited in forming a view was because we never engaged in an exploration of the motives for carrying out the examination other than what he told me, according to his clinical assessment and what he believed at that time to be the basis upon which he carried out that examination. I can only be confident as far as the material that was elicited. My experience of dealing with other doctors in similar predicaments varies, and in some instances I would have seen somebody over a similar time period on many, many occasions, maybe in weekly therapy if they were concerned that they had acted in a way that they believed was inappropriate or compulsive or it had some sort of drive behind it that caused them great concern about their conduct, but we never engaged in that way because from the outset Dr Robinson explained what had happened as he saw it, and then we engaged in what he understood to be more appropriate boundaries between doctors and patients and how it could have been that what he did, albeit with good intent, as he saw it, could have been seen by the patient as being problematic or inappropriate. We talked about the boundary issues, we talked about his understanding of these issues, his increasing knowledge of the place of clinical boundaries in consultations. That was the nature of our interaction and on that basis it gave me the material upon which I could base an opinion in response to the questions that I was asked. Q. If it was that Dr Robinson was now developing a strategy of disguising what had actually driven him to carry out a breast examination and abdominal examination of the 19 year old girl, how long in consultations do you think you would reasonably need to be able to get some idea of whether he was being untruthful with you? A. Your Honour, it's always difficult to be adamant about the ability to detect untruth or lies. I mean, one feels, with clinical skill and experience and so on, you can make a better assessment than just a wild guess, but you know, one looks at all sorts of other parameters to see whether there is inconsistency, to see whether there's a component of discernible manipulation. One looks at the individual and you get a sense of whether this is a person who is quite sophisticated in terms of their ability to mislead, or one looks at the opposite, to see whether this is a person who is quite concrete in their thinking or lacking in guile or not sophisticated in providing a false presentation. One looks at issues of internal consistency, one looks for contradiction over time, one looks for the emergence of issues that seem to be preoccupying the individual that are clearly there to absolve them of responsibility or to mislead. There's a whole matrix or a raft of considerations that one engages with to try and address the issue of whether or not I'm being misled. But it's not infallible and I'm sure that there are instances where I have been misled and I'm sure there will be others in the future where I will be misled, and I don't think anyone has come up with a fail proof formula to exclude untruth, but I can only say that the comments that I have made in my reports were considered, they were based on the information that I had in front of me, they were based on my clinical acumen and experience, they were based on particular examination aspects, looking for evidence of personality disorder, looking for evidence of deviousness in other aspects of life, looking at somebody with regard to I've used the word guile, or without guile and seeing Dr Robinson as somebody quite sort of concrete and obsessive in his approach to things and not particularly aimed at obfuscation in a misleading way. Those are the processes that assisted me in reaching my assessment and the opinions that I have expressed" (emphasis added).
Prior to seeing Dr Robinson as a patient, Dr Diamond said he did not know Dr Robinson.
General Member Houen asked Dr Diamond the following: "Q. Dr Diamond, are you able to make a comment about whether or not there would have been a possibility that Dr Robinson may have been impulsively motivated by a sexual nature but was not something that he has acknowledged even to himself? A. I have no evidence to support that as being the case, but of course, who knows what an individual's private, internal sexual drives or preoccupations may be. But I probed to see whether there was any evidence of any other sexual preoccupation; I listened to the language he used when making comments about females or sexual matters; you know, I listened to how he related what he was facing and what had been alleged, and I didn't get the sense that his interests or preoccupations were sexually predatory or impulsively sexually predatory. I came to the view in time because I addressed this every time I saw him that he really was quite tunnel visioned in his way of looking at things. He has an idea in his head and he pursues it to its end point by going through very specific logical steps from A to B, to C, to D, and he's not somebody who appears to me to be thinking very broadly or yes, broadly, I think. The impression I got of how he functions was much more in a linear, logical progression, and really quite obsessive in his obsessional, I might say in his pursuit of a particular goal, and it didn't seem to be sexually driven, from the interaction I had with him" (emphasis added).
We have emphasised the last passage of the answer provided by Dr Diamond as we consider it important evidence which may assist us in our determination.
Counsel for the HCCC asked some further question's arising out of the earlier evidence of Dr Diamond. We note the following extract from the transcript: "Q. On the second page of your notes from 30 July at about point 5, you say that you had raised the question of a previous complaint with him. You said his recollection of that complaint was vague, given that it had happened some time ago. Did you revisit that complaint in any of the four subsequent consultations, Dr Diamond? A. Yes, it was common knowledge shared by both of us and it was an important consideration because that would have been an important factor for me to look at whether there was anything to support the idea that there's a history of predatory behaviour, or whether, if he had done that in the past, to try and make sense of it and know what its meaning was. But we got no further because it never reached a point where he was reflective about it and it was not something that I could press him on, because that really wasn't my role, to revisit a complaint previously. I was concerned about repeated behaviour and I got no indication that this was repeating behaviour over many instances. It only went as far as knowing that there was a complaint and it was not dealt with any further."
In re-examination Dr Diamond was asked a number of questions by counsel for Dr Robinson. In particular we noted the following: "Q. With respect to the motive behind the admitted conduct, you were asked a question by his Honour whether or not you, in effect, have any particular skills or strategies to ascertain whether a patient is disguising true motives, and you gave a list of markers that would lead to an opinion of disguising and a list of markers which would fall the other way. Did you find, in your six consultations with Dr Robinson, that there were any markers suggestive of him disguising the motive behind the admitted conduct? A. No, I didn't. Q. Did you at any point in time form an opinion that that presentation was designed for the purposes of obfuscation or to mislead you in any way with respect to motive behind the admitted conduct? A. No, I, I mean, I can say with a degree of confidence that when one observes those aspects of the interaction with somebody, or somebody's behaviours as part of their habitual way, it's not you can say with some with robustness that this is difficult to feign. These are characteristics of an individual, these are not affectations or a particular attitude put forward selectively. That's across the board. In all my dealings with Dr Robinson those descriptors were relevant and present. Q. Did he raise with you in those consultations the reasons why he believed there was a clinical basis for his examination? A. Yes, I asked him about that, because I was, as part of my exploration of how he accounts for that, accounts for his decision making and behaviour, and I said to him, you know, "You've had a previous notification, this occurred. Can you help me understand how you came to make this decision?" and then he told me that not long before this consultation he had seen another young patient who presented with retro orbital pain and who turned out he thought it was a sixth nerve lesion affecting the eye, and it turned out that she in fact had a recto orbital tumour. So he was had a heightened sense of awareness of something like that being a possibility, and he said that it influenced his decision to carry out the examination on the day. He also spoke about the timing, being close to Christmas, and the availability of other specialists and making a referral and getting an appointment at short notice as being influences behind his decision to carry out the physical examination. I explored that with him and that's what he told me. I think I did put that in the report, I think I actually documented that, because I thought that was important. Q. Dr Diamond, the question was with respect to nexus between traits of obsessional, concrete thinking, literal interpretation, as outlined in your 2020 report and the history you obtained in 2018 with respect to an earlier presentation of another woman with a tumour? A. I think the relevance of identifying a nexus between concrete thinking and obsessional pursuit of an idea is relevant, because for an individual such as I describe or found Dr Robinson, if there is a mindset that says that presentation can mean that pathology, it can be overriding as far as having a more circumspect and more balanced appraisal of, well, it could mean that, but is it appropriate to do that with this patient at this time in the absence of a family member, a chaperone or whatever. Just the need to get that question answered and pursue it in the way that Dr Robinson describes he behaved, I think it is relevant. I think there is a nexus to identify and it does bear consideration."
We note that Dr Robinson did not, in his evidence before us, refer to the other "young patient who presented with retro orbital pain". He did however give evidence about another patient where he had been suspicious about an aspect of an MRI scan and the report from the Radiologist. Dr Robinson had suspected the Radiologist had not recognised a particular significant portion of the MRI picture and raised that with the Radiologist. It transpired that Dr Robinson had been correct in his suspicion. It may be that the "young patient" Dr Robinson spoke to Dr Diamond about and the evidence he gave us (as above referred to) related to the same case.
Dr Diamond was asked about the particular aspect of his report in relation to the personality profile of Dr Robinson. We noted the following question and answer: "Q. Just with respect to your opinions that flow from the concrete thinking, the suggestion of mild aspects of autism spectrum disorder, is it correct to say, Dr Diamond, that those that may be on that spectrum, mild, moderate, whatever the degree, what they lack is intuition or emotional intelligence or an ability to discern appropriateness when one considers things from a patient perspective? A. I think that is something that one does observe, yes. Q. I mean, are they classic characteristics of those on the spectrum the autism spectrum, the deficiency? A. They are characteristics where one sees decision making is overridden by sequential, logical thinking as opposed to broader, more nuanced consideration where one holds competing views … one does that together, when you can hold those competing views and then make a considered decision. It tends not to happen that way with people on the autism spectrum. They tend to be much more linear and they require to go through the steps usually in a sequential way, so to speak, A to B, to C, to D, without being able to maybe size it up and go from A to D without filling in all the gaps and following the steps. Those are characteristics that I have understood to be part of the way of conducting oneself if one is on the autism spectrum" (emphasis added).
Dr Robinson relied upon a number of testimonial witnesses. Those witnesses statements were tendered during the hearing and most of the witnesses were required for cross-examination.
Exhibit R5 is a letter from Rabbi Israel Franklin. He had read the Notice of Complaint against Dr Robinson dated 9 April 2020. He served as the senior Rabbi of the Central Synagogue, Sydney from 1988 to 2000. He said "Dr Robinson is an extremely devout practitioner of the Jewish religion and is a paradine (sic) of devotion to the Jewish values of morality, ethics and the promotion of the Good. He is meticulous in his observance of safeguards that Judaism employees in preventing exposure to temptation. Given the predilection that a human might have to wrong-doing, the Jewish religion set up parameters that distance one from exposure to sexual impulse. Dr Robinson is careful not to have any physical contact (even shaking hands) with women…. In his dealings with families around Ritual Circumcision he enjoys an outstanding reputation of being a caring [d]octor [w]ho gives the extra mile to reassuring them during a rather challenging time for new parents […] I therefore find it beyond belief that Dr David Robinson would have had any physical contact with a patient for anything other than purely therapeutic, clinical reasons."
Rabbi Franklin was required for cross-examination. We noted the following evidence which he gave.
Rabbi Franklin had not discussed the complaint made against Dr Robinson with Dr Robinson.
We noted the following evidence from the transcript: "Q. When you say that you were very surprised and you found it to be totally out of character, was that response immediately followed in your mind by the belief that from your knowledge of Dr Robinson it could only have been conduct engaged in by him for a clinical or therapeutic purpose? A. Without a doubt. Absolutely without a doubt. I know Dr Robinson well over many, many years, I've had many opportunities to interact with him, and it was absolutely beyond my realm of imagination that such a possibility could exist other than for therapeutic reasons clinical reasons."
Rabbi Franklin concluded his oral evidence by saying of Dr Robinson: "But I do know one thing: that he is a highly principled young man and has been extremely committed to the faith and has been reticent at times when outside the practice of medicine of any physical contact whatsoever with any woman who is not his wife".
Exhibit R6 is a letter from Michael Henley, solicitor. In his statement Mr Henley said he had known Dr Robinson for 30 years. He had read the claim set out by the HCCC. He was shocked by the allegation made against Dr Robinson and he opined that such allegations are "so out of character to the person I would call without hesitation and honourable and ethical person". He said that during the first 20 years of his knowing Dr Robinson he was a very close friend, and could be described as his best friend. He described the friendship involving family gatherings and religious observance.
Mr Henley gave oral evidence in the hearing. We noted the following matters from that oral evidence: "Q. To the extent that that letter conveyed Dr Robinson's position on the allegation, prior to that letter had Dr Robinson had a discussion with you that wasn't covered by legal professional privilege about these examinations? A. I think Dr Robinson has been consistent in the view that he has said all the way through, and in all our conversations has said and maintained the position that you've just explained. Q. That is that he admitted the examinations but said that they were for an ethical purpose? A. That's how I understand it. Q. If after this hearing is finalised the tribunal determines that there was not a clinical purpose, would that change your reference in any way? A. Not in any way whatsoever. I want to make it clear to the tribunal that I have the absolutely highest respect for Dr Robinson. I think as I've said in my own reference, that I attend upon Dr Robinson as a patient; my wife does as well; as does my 28 year old daughter. Nothing in the allegations would dissuade me from sending my daughter to see Dr Robinson, even if that was the outcome. Nothing would change my view. I have known Dr Robinson for 30 years. He is an exceptional person, really quite an exceptional person, and this is obviously very difficult for him, but I want to make it very clear that from my own point of view nothing would dissuade me, or my respect for him would be in any way diminished, because I do believe that if he said that it was done for an ethical purpose, then that's why he did it."
Exhibit R7 is a reference signed by Jasmyne Patterson. She stated that she had worked in the same practice as Dr Robinson for 22 years. She has found Dr Robinson to be professional, respectful, considerate and friendly to all staff and patients. She had been made aware of the complaint dated 9 April 2020 and said "based on what I know of Dr Robinson, I cannot imagine that the examination would have been anything other than professional.
Ms Patterson gave oral evidence. We noted the following matters from her oral evidence:
Ms Patterson concluded her evidence by answering the following question: "Q. If the tribunal, after completing this hearing, determines that Dr Robinson did not have a clinical purpose for conducting the examinations, would that change the contents of your reference? A. No, it wouldn't. Q. Why is that? A. Because I know Dr Robinson as a person and I know that he is a very honest, decent person. So ethically I believe that ‑ I understand that he made that call as well. So no, it doesn't."
Exhibit R8 is a reference for Dr Robinson provided by Dana McClure. She had been made aware of the Notice of Complaint dated 9 April 2020 relating to Dr Robinson. She is the practice manager of the Sydney Laser and Vision Centre and has worked with Dr Robinson since 1997. She has always found Dr Robinson to maintain high levels of professional and ethical standards and is honest and respectful in his interaction with his patients.
Ms McClure was required for cross-examination on her statement. We have reviewed her oral evidence. There was nothing which we noted which detracted or added to her written evidence.
Exhibit R9 is a reference provided by Mrs Michal Rosenberg. She is a registered nurse primarily working at RHW since 2000. She had read the Notice of Complaint dated 9 April 2020. She has known Dr Robinson since 2006. She assists him before, during and after he performs circumcisions. She said: "In all my years of working with Dr Robinson, I have never witnessed any improper or sexual misconduct occur. Dr Robinson always acts in a professional manner. Over the 14 years of working with Dr Robinson, I have assisted him with many hundreds of circumcisions. I have never once seen him enter the room when the mother's breasts were exposed."
Mrs Rosenberg was required for cross-examination. We have reviewed the oral evidence which she gave and we noted the following:
Mrs Rosenberg has been working with Dr Robinson since 2006 and that has involved working with him 2 to 3 times a week. She has some social contact with Dr Robinson if they are both attending a function such as a bar mitzvah.
Mrs Rosenberg has worked with Dr Robinson in performing in excess of 4,000 circumcisions.

The Applicant HCCC Submission

The HCCC provided its final submission on 3 May 2021. In that submission in relation to s 139B(1)(l) and the meaning of the words "improper and unethical" the submission stated: "2. In Health Care Complaints Commission v Jiang [2018] NSWCATOD 78 the Tribunal discussed the words of s.139B(1)(l) as follows: 66. In relation to the terms of s. 139B(1)(l), the words "improper" and "unethical" are not defined and must be determined from the context in which they appear. As part of this inquiry, when the Tribunal has regard to the meaning of these words as set out in dictionaries (see below), and as considered in case law (also see below), it will understand the words in the context of the practice of the practitioner's profession, and thus in the context, firstly, of the objectives and guiding principles of the National Law (s. 3), but also as more specifically set out in the relevant Codes of Conduct. 67. The Tribunal in HCCC v Liu (Liu) [2016] NSWCATOD 133 considered the words "improper" and "unethical": [51] The words "improper" and "unethical" are not defined in the National Law. The Macquarie Dictionary defines improper as follows: 1. not proper; not strictly belonging, applicable, or right: an improper use for a thing. 2. not in accordance with propriety of behaviour, manners, etc.: improper conduct. 3. unsuitable or inappropriate, as for the purpose or occasion: improper tools. 4. abnormal or irregular. [52] Unethical is defined as follows 1. contrary to moral precept; immoral. 2. in contravention of some code of professional conduct. [53] The word improper was the subject of discussion by. French CJ in Parker v Comptroller of Customs (2009) 83 ALJR 494, [2009] HCA 7. The Chief Justice Said: .. . the relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong'". [54] Decisions involving professional disciplinary proceedings have adopted as relevant the discussion of the term "impropriety"' in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1 as being a breach of the standards of conduct that would be expected of a person in the position of the alleged offender (see HCCC v Phung (No 1) [2012] NSWDT 1, Health Care Complaints Commission v Fisher [2016] NSWCATOD 62). The test of whether the conduct is improper is an objective one. [55] The Words improper and unethical were considered by this Tribunal (Dr J Renwick SC presiding) in Office of Local Government v Toma [2015] NSWCATOD 21. Dr Renwick, after quoting from R v Byrnes and Hopwood, noted: 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 iiNet 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. 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... [56] We adopt the discussion of the principles set out in Office of Local Government v Toma (bold added). 68. Impropriety does not depend on a practitioner's consciousness of impropriety. It is to be judged objectively (see Liu at [54]) and does not involve an element of intent: Chew v The Queen [1992] HCA 18; (1992) 173 CLR 626 at 641: R v Byrnes [1995] HCA 1; (1995) 183 CLR 501 at 515."
The HCCC set out the details of the complaint pursued against Dr Robinson.
The HCCC submitted: "5. The Complainant's position in relation to the Complaints is as follows: Complaint One a. In relation to the sub-particulars - for example, that during the chest auscultation there was no chaperone present - the Tribunal can apply the test set out in s.139B(1)(a) and find that the knowledge, skill, care and/or judgment exercised by Dr Robinson is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and to that extent is unsatisfactory professional conduct. See for example Campbell Tab 23 at page 4 paragraph 2.. b. The Tribunal can also find, on the basis of Dr Campbell's evidence, that the physical examinations - the chest auscultation, the breast examination and the abdominal examination - was conduct that fell significantly below the standard expected - see page 4 paragraph 1 and about .8 on the page. Complaint Two In relation to Complaint 2, Clause 6 of the Health Practitioner Regulation (New South Wales) Regulation 2016 requires a health practitioner to keep medical records. Clause 2 of Schedule One mandates as follows: (2) A record must include the following-- (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. 23. Neither the medical records, nor the letter to Dr Harris, met these criteria. Complaint 3 24. Even if the Tribunal accepts Dr Robinson's version of events, and only makes findings restricted to his admissions, the conduct is sufficiently serious to amount to professional misconduct. There is no evidence that Dr Robinson undertook any kind of assessment of the intrusive nature of the physical examinations he undertook, and weighed that up against the clinical issue that he claimed to want to address. 25. If the Tribunal rejects that the breast examination a. was conducted for a sexual purpose; or b. was sexual in nature but makes other findings sought by the Complainant, the respondent's conduct falls so far below accepted standard, and/or is so improper, that it is appropriate to find that it amounted to professional misconduct." (We have added emphasis to this submission because we will address it later in these reasons.)
The HCCC then provided a useful list of items it submitted the Tribunal would consider in reaching its' determination in relation to Complaint 3: "Consideration 26. It may be useful for the Tribunal to consider the following issues:- a. Was the breast examination clinically indicated; Did Dr Robinson believe at the time that a breast examination was clinically indicated; b. If he did believe at the time that it was clinically indicated when, objectively, it was not clinically indicated, then i. Was the breast examination sexual in nature, given that a woman's breasts are inherently sexual and touching of Patient A's breasts was only appropriate if it was clinically indicated. ii. how serious is the practitioner's breach of s.139B(1)? c. Even if Dr Robinson believed it was clinically indicated, i. was it appropriate to conduct the breast examination himself ii. did he obtain informed consent to conduct a breast examination. d. If Dr Robinson failed to consider whether or not it was appropriate to conduct the breast examination, how serious an infraction is it? e. If Dr Robinson didn't believe it was clinically indicated at the time but made this up subsequently to cover up the true reasons for conducting the examinations, then this gives rise to i. Integrity issues ii. The true motive for why he conducted the breast examination."
The HCCC provided argument in its written submission to support the case that Dr Robinson ought to be found to have acted in the manner set out in the Complaint document.
In relation to the credit of Dr Robinson and the submission by the HCCC that his evidence ought not be accepted as credible the HCCC said: "Dr Robinson as a Witness 33. Dr Robinson was an unsatisfactory witness. On a few occasions his evidence was directly contradictory and/or appeared to be a simple lie. These include the following: a. Dr Robinson says he knew of the 2001 complaint. But in evidence on 2 February 2021 he relied on the fact that the HCCC had taken no further steps against him in 2001 to support his decision not to act upon the earlier complaint. But in evidence in August 2020 Dr Robinson asserted i. that he only knew of the complaint because it was given to his practice manager at the time; ii. that he was unaware that the HCCC knew of it at the time; iii. and only became aware of the HCCC knowing about the complaint after he became aware of Patient A's complaint . His earlier evidence is entirely inconsistent with his evidence in February. The evidence in February was given when being questioned by the presiding member about his failure to consider the 2001 complaint when he decided to conduct a breast examination of Patient A. b. Dr Robinson was asked by the presiding member about whether the MRI that had been already undertaken on Patient A would have disclosed an orbital tumour. In answer Dr Robinson claimed that he only saw the report, not the scans. But in her police statement Patient A states that she took the scans with her and that Dr Robinson looked at them. It was not put to patient A that this was incorrect. As the scans would have included scans of the orbit, Dr Robinson has not explained why he ordered a further MRI of the eye orbit. One explanation is that was to fortify his fictional story that he was concerned about Patient A having an orbital tumour secondary to another cancer. 34. When Dr Robinson was asked a question that he identified as possibly undermining his account of the consultation, or some aspect of his explanation regarding it, he would commence his answer with "that's a fair/good/great/perceptive question". This was particularly apparent when Tribunal Member Houen pointed out that the fact that Patient A's headaches subsided in the holidays was inconsistent with a tumour. 35. Dr Robinson maintained his position on evidence that was, basically, untenable - such as when he was questioned on whether the word "chest" is interchangeable for "breast". 36. There were many inconsistencies in Dr Robinson's evidence. For example, his case was that it was urgent to exclude a primary cancer elsewhere in the body so Dr Robinson conducted a physical examination. However: a. the physical examination would not address whether a primary tumour was present in the orbit; an MRI of the eye socket would establish the presence of both a primary and secondary tumour and would logically precede any physical examination; arguably exploration for a primary tumour elsewhere in the body would only proceed after a biopsy established that any orbital tumour was secondary. b. the second most common primary cancer in the article at Tab U was melanoma. Only after this was drawn to his attention did Dr Robinson claim to have examined Patient A for melanoma. This examination, if it occurred at all, was incomplete as it did not involve looking at any skin below the waistline of Patient A's jeans, and was entirely ineffective to exclude melanoma. c. Dr Robinson presumed there would be an unacceptable delay in obtaining an MRI and Patient A attending on her GP, but made no enquiries about either d. the next appointment with Patient A was made for 1 February 2018, nearly six weeks after the consultation - there was ample opportunity for a physical examination to occur during that time, and an MRI e. other examinations, such as the taking of blood pressure, were routinely referred by Dr Robinson back to GPs. f. Dr Robinson did not expressly record in his own notes, nor in his letter to the referring doctor, that he had concerns about a primary or secondary tumour, and had taken steps to exclude the latter by conducting a chest auscultation, a breast examination and abdominal palpitation 37. Dr Robinson assessed that the symptoms and signs with which he was presented suggested a possibility of an orbital tumour, either primary or secondary. However: a. This is disputed by Dr Campbell, whose opinion should be accepted b. Tumours of the eye orbit are rare, whether primary or secondary c. The fact that the symptoms lessened during holidays is not consistent with a tumour d. The only symptom consistent with an orbital tumour was pressure behind the eye e. Patient A had had an MRI that did not identify any issue with the orbit f. Dr Robinson's area of specialty is the front of eye, not the eye orbit g. To the extent that a secondary tumour was supposedly suspected, Patient A showed no symptoms of illness that would be associated with having had a primary tumour for at least a year that had spread to the eye h. Patient A, at 19 years old was extremely unlikely to have breast cancer, or any other primary tumour (the mean age of secondary tumour patients with breast cancer [i]n the article at Tab U was 64) i. Dr Robinson took no history from Patient A to assess the likelihood of melanoma or lung cancer j. The only family history related to thyroid cancer."

Assessment of Dr Robinson as a credible witness

We propose to commence our decision in relation to this matter by considering the credibility of Dr Robinson as a witness. We consider that his credibility is crucial to the determination of the most significant complaint made against him; namely, that he conducted a physical examination of Patient A for a purpose not being a legitimate medical purpose.
Dr Robinson's counsel provided lengthy written submissions and also addressed the Tribunal with oral submissions on the last day of the hearing. She did not address directly the question of whether we should accept Dr Robinson as a credible witness, however it was the thrust of the evidence she relied upon, that Dr Robinson is a man of high integrity and plainly honest in the giving of his evidence.
In assessing the evidence of Dr Robinson and reaching a conclusion as to the truthfulness of same we have particularly had regard to the evidence of Dr Diamond who is Dr Robinson's psychiatrist.
It seems fairly clear to us that Dr Robinson attended upon Dr Diamond at the recommendation/request of his solicitor. Dr Diamond said in his oral evidence that initially he was unsure of the role he was to undertake with Dr Robinson. However, as Dr Robinson continued to attend upon him Dr Diamond was able to obtain a clearer picture of the psychological profile of Dr Robinson. We recorded above what he had opined and in particular: "Q. Just with respect to your opinions that flow from the concrete thinking, the suggestion of mild aspects of autism spectrum disorder, is it correct to say, Dr Diamond, that those that may be on that spectrum mild, moderate, whatever the degree what they lack is intuition or emotional intelligence or an ability to discern appropriateness when one considers things from a patient perspective? A. I think that is something that one does observe, yes. Q. I mean, are they classic characteristics of those on the spectrum the autism spectrum, the deficiency? A. They are characteristics where one sees decision making is overridden by sequential, logical thinking as opposed to broader, more nuanced consideration where one holds competing views - what's the word - one does that together, when you can hold those competing views and then make a considered decision. It tends not to happen that way with people on the autism spectrum. They tend to be much more linear and they require to go through the steps usually in a sequential way, so to speak, A to B, to C, to D, without being able to maybe size it up and go from A to D without filling in all the gaps and following the steps. Those are characteristics that I have understood to be part of the way of conducting oneself if one is on the autism spectrum."
We have had the advantage of seeing Dr Robinson over a period of ten days of hearing. In the whole of that time he was visible to us on the AVL screen. We observed his giving oral evidence. We observed his manner, his words and his actions. In the earlier part of the giving of his oral evidence Dr Robinson on a significant number of occasions sought to be his own advocate, often not addressing the question he was asked but rather wanting us to focus of the very important evidence he said he wanted to present, being medical journals which contained articles upon which he wished to rely to establish there was a very clear medical reason and urgent need, in this case, to conduct a breast and abdominal examination upon Patient A.
We accept that Dr Robinson did provide some evidence which appeared to be conflicting. In particular his evidence about his knowledge of, and reaction to, the earlier anonymous complaint made by a female patient who had been the subject of the only other breast examination Dr Robinson has conducted in the entirety of his practice as a specialist ophthalmologist since 1997. We are satisfied that he was aware of the nature of the complaint raised by that patient. He was also aware at a later time that no action was taken by the HCCC on that complaint. We are satisfied that the complaint did shock and disturb Dr Robinson as it might have been expected to, and that, as a consequence, he resolved not to undertake an examination of a woman's body without having a chaperone present. Unfortunately for him the lesson learned from that anonymous complaint was not that he would cease carrying out any physical examination of patients below the clavicle. It is perhaps, for Dr Robinson, regrettable that the patient was not prepared to sign her name to the complaint. Had she done so it is probable he would have come to the realisation at that time that he has now done, that ophthalmologists are not the appropriate medical practitioners to conduct breast and abdominal examinations of their patients. He should certainly have learned from the earlier complaint, if it was not abundantly clear to him at the time he performed the examination on that unfortunate patient, that women who attend a consultation with him about their eyesight or eye function have no expectation that they will undergo a breast and abdominal examination by him.
We also have had regard to the fact that the hearing before us in 2020 and 2021 commenced almost three years after the events of the consultation on 21 December 2017. Any witness cannot be expected to have a complete recall of the minute details of the consultation after that period of time. If it were the case that there was no inconsistency in the version of evidence given by such a witness after that time, we would start to have concern about rehearsal of that evidence by the witness. At some points in the giving of his evidence we detected that Dr Robinson may have been recalling usual practise, rather than the exact events of the consultation with Patient A. That type of event is not uncommon with professionals who are alive to matters such as the requirement to have "informed consent" for every aspect of examination and treatment of a patient or client.
On our part, we were able to detect a number of failings in the actions Dr Robinson undertook with Patient A on 21 December 2017. However, we are not satisfied in this case, on the balance of probabilities, that he has been deliberately untruthful in his evidence to us.
In his submission Dr Robinson's counsel emphasised the "Standard of Proof" which it was submitted should be applied to the evidence brought against Dr Robinson by the HCCC.

Submission of the Respondent

The Respondent commenced his submission with the following concession and statement of issue: "Complaint One - care provided to Patient A 1. The respondent admits Complaint One as to unsatisfactory professional conduct pursuant to sec 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (knowledge, skill, judgment or care exercised being significantly below the standards). 2. The respondent does not admit Complaint One as to unsatisfactory professional conduct pursuant to sec 139B(1)(l) namely that his conduct was unethical or improper conduct. 3. The respondent admits his conduct was inappropriate with respect to the auscultation of Patient A's chest (Particular 1); breast examination (Particular 2 and 3); abdomen examination underneath clothing (Particular 5); inappropriateness of questions regarding pap smears (Particular 7) and admits that the failures fall under sec 139B(1)(a) regarding lack of knowledge, skill, judgement and care. 4. The respondent does not admit Particular 6. 5. The respondent denies Complaint One Particular 4 that he engaged in conduct which was inappropriate conduct of a sexual nature towards Patient A by reason of his actions in Particular 2(a)-(e). Complaint Two - Record Keeping 6. The respondent does not admit Complaint 2 regarding his record keeping and does not admit that his omissions from his records constitute a breach of Schedule 4 Clause 1(2) of the Regulation. 7. The respondent does not admit that any omission in his clinical records constitutes unethical and improper conduct. Complaint Three - Professional Misconduct 8. The respondent does not admit professional misconduct."
In "legal language" there is a difference between "not admit" and "deny". The words "not admit" are used when a respondent is not denying that the facts relied upon may have occurred, however, there is no concession that such facts meet the standard of proof necessary to satisfy the requirement of the alleged offence. The word "deny" is used to attack the alleged facts which are recited to prove the offence. In this case, the action which is alleged against Dr Robinson, and which is emphatically denied by him, is that he undertook the physical examination of Patient A's breasts and abdomen for a non-medical purpose, and that purpose was a sexual purpose for his own gratification. If that was established then it would satisfy the complaint set out as Complaint One, Particular 4. The same would follow if we found that part of the purpose of conducting the breast and abdominal examination was a sexual purpose driven by Dr Robinson's personal desires.
As can be clearly understood, should Dr Robinson be found to have acted in the manner set out in Complaint One Particular 4, the type of protective order the Tribunal would be urged to consider making by the HCCC is probably far more impactive upon Dr Robinson's future practise of medicine than that which might be reasonably anticipated by him should the Tribunal make the findings which he concedes should properly be made.
In recognition of the potential serious outcomes for Dr Robinson if an adverse finding in relation to Complaint One, Particular 4 is made, his counsel, in the submission made on his behalf, has set out an extensive submission addressing the standard of proof which should be adopted by the Tribunal when assessing and considering the evidence in the hearing.
We include here part of the submission made by the Respondent on the topic of "Standard of Proof" as it has been helpful to us in this determination: "Standard of Proof 1. Professional disciplinary proceedings are neither wholly civil nor wholly criminal in nature: they are "sui generis": Weaver v Law Society of NSW (1979) 142 CLR 201 at 207; [1979] HCA 35 at [13]. They are unique and in a class of their own. They are often characterised as "protective" rather than "punitive". But where orders sought against the practitioner are for suspension or cancellation of his or her right to practice, such proceedings are properly characterised as penal: Chief Executive, Queensland Health v Jattan [2010] QSC 92; [2010] QCA 359, esp. at [16]. Jattan was a case involving an application to deregister a pharmacist. In characterising the proceedings [1] as penal, the Queensland Supreme Court followed dicta contained in the High Court's judgment [2] in Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42. 2. Rich (at [35]) - which is, of course, binding on the Tribunal - is directly apposite: That it may be possible to characterise proceedings as having a purpose of protecting the public is not determinative. And to begin the inquiry from a priori classification of proceedings as either protective or penal invites error. It invites error primarily because the classification adopted assumes mutual exclusivity of the categories chosen when they are not, and because the classification is itself unstable. To assume mutual exclusivity of the categories is to fall into the same kind of error as was identified in the constitutional context in Actors and Announcers Equity Association v Fontana Films Pty Ltd. Just as a law may bear several characters, a proceeding may seek relief which, if granted, would protect the public but would also penalise the person against whom it is granted. That a proceeding may bear several characters does not deny that it bears each of those characters. 3. This Tribunal must have regard to the decision of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, and to the body of superior court authority in New South Wales in which Briginshaw has been considered and applied in professional disciplinary matters. 4. Briginshaw is longstanding authority for the proposition that in civil proceedings, where proof of a fact is required on the balance of probabilities, "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality." (per Dixon J at 352-3). In Briginshaw the issue of fact was whether a wife had committed adultery. Dixon J, who delivered the seminal judgment, continued: No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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. (emphasis added) 5. In similar vein, Rich J observed: The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. (emphasis added) 6. There is Full Court authority in New South Wales for the proposition that the standard of proof to be applied in medical disciplinary proceedings is either "reasonable satisfaction" or "comfortable satisfaction". Furthermore, and critically for present purposes, one of those authorities - Re Anderson and the Medical Practitioners Act (1967) 85 WN (NSW) 558 - stands explicitly for the proposition that the "reasonable satisfaction" test involves, in professional disciplinary proceedings, the application of a third, intermediate standard of proof. 7. In Re Anderson, Asprey JA said at 587: Where there is any question of misconduct in a professional sense that should not be regarded as established on a mere balance of probabilities. 8. His Honour cited in support certain dicta of the Privy Council in Bhandari v Advocates Committee [1956] 1 WLR 1442 at 1452. In the same case, Re Anderson, Sugerman JA at 577-8 quoted and then applied the relevant passage from Bhandari: [I]n every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities. 9. The third member of the Court in Re Anderson, Herron CJ, though disagreeing in the result, agreed with his brethren as to the relevant principles of law. 10. In Re Evatt; Ex Parte NSW Bar Association (1967) 67 SR (NSW) 236, the Full Court (at 238) expressed the legal position in this way: Reference in the authorities to the clarity of the proof required when so serious a matter as the misconduct (as here alleged) of a member of the Bar is to be found, is an acknowledgement that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved. [3] 11. Re Anderson has never been disapproved by the New South Wales Court of Appeal, let alone by the High Court of Australia. Indeed, the High Court has never had occasion to consider the standard of proof in medical (or any professional) disciplinary proceedings. [4] 12. For all these reasons, it is submitted that the position pertaining in the Tribunal in these proceedings, as a matter both of strict legal precedent and practical reality, is best stated by J.R.S. Forbes, in the latest (2019) edition of his authoritative textbook Justice in Tribunals, who advances the following proposition: [C]learly the standard of proof in a tribunal dealing with a serious matter should be higher than a mere balance of probabilities. … In practice "reasonable satisfaction" is a variable standard that rises as issues become more serious, the consequences of an adverse finding more onerous, and allegations inherently less probable. [5] (emphasis added) 13. The allegation against the respondent Dr Robinson could not be more serious. Complaint One Particular 4 alleges inappropriate conduct of a sexual nature towards Patient A. It was put to the respondent during cross examination that his examinations of Patient A's breasts were for a non-medical purpose. In no uncertain terms he is being accused of sexual touching, which is a crime."
We are grateful to the counsel for the Respondent for her well-researched and presented argument on the topic of "standard of proof". For our part, we do not feel a need to go past the High Court decision in Briginshaw and have found in the words of Dixon J, set out above, ample guidance for the determination of what we do understand is a very serious charge made against Dr Robinson in Complaint One, Particular 4.
The parties have each provided extensive and helpful submissions which address the Complaints and each of the Particulars. We will now set out our determination of the Complaints.

Complaint One

As set out above in the submission of the Respondent, Dr Robinson admits he has engaged in unsatisfactory professional conduct as described in s 139B(1)(a) of the National Law; however, he does not admit his conduct was unethical or improper as described by s 139B(1)(l) of the National Law. Dr Robinson admits his conduct was inappropriate with respect to: the auscultation of Patient A's chest (Particular 1); the breast examination (Particular 2 and 3); the abdomen examination underneath clothing (Particular 5); the inappropriateness of questions regarding pap smears (Particular 7); and admits that the failures fall under s 139B(1)(a) regarding lack of knowledge, skill, judgement and care. The Respondent does not admit Particular 6. The Respondent denies Complaint One, Particular 4, that he engaged in conduct which was inappropriate conduct of a sexual nature towards Patient A by reason of his actions in Particular 2(a)-(e).
Section 139B(1)(a) is as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
We propose to consider each of the Particulars on Complaint One where the Respondent has either not admitted a Particular or has denied a Particular. The first such item is found in Particular 1.

Particular 1

Here the Respondent admits that it was inappropriate to undertake the auscultation of Patient A's chest underneath her clothing. However, we find his evidence is that this is a realisation which has been appreciated by the Respondent with the benefit of schooling and personal research after the examination was conducted by the Respondent on Patient A. He has come to realise that his fellow practicing ophthalmologists regard such an examination as inappropriate for them to undertake for a variety of reasons which have been revealed to Dr Robinson since 21 December 2017, the date of his examination of Patient A. Thus, in his submission, he acknowledges that to such extent his knowledge, skill, judgment or care exercised was "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience".
In making that concession, the Respondent has not, however, conceded all of the sub-paragraphs of Particular 1. Those paragraphs are: 1. no ocular abnormalities had been found; 2. there were no signs of orbital disease; 3. there was no clinical indication for the examination; 4. a chaperone was not present; 5. the practitioner failed to obtain adequate informed consent.
Of the above sub-paragraphs, only "(d) a chaperone was not present" was conceded as having been established.
In his submission, the Respondent says, in relation to the above set out sub-paragraphs: "22. The Respondent does not admit that there were no signs of orbital disease and no clinical indication for the examination of the chest, breast and abdomen. He relies in part on the following literature in Exhibit R4 to establish that there were signs and a clinical basis for the examinations he performed. Those signs in his mind at the time were pain and pressure; present for the last 12 months, worse in the morning and sufficiently serious for Patient A's GP to refer her for an MRI scan prior to his consultation: T 208.37-41."
We have reviewed all the evidence of the Respondent and the HCCC expert evidence of Dr Campbell in relation to whether there was sufficient evidence presented to Dr Robinson when he undertook the consultation with Patient A, to justify, on medical grounds, the breast and abdominal examination he conducted upon Patient A on 21 December 2017. We have accepted the evidence of Dr Campbell that the presentation of symptoms and signs in Patient A on that day, as described in the evidence of Dr Robinson, did not warrant the examination of Patient A's breasts and abdomen.
Dr Robinson presented many published articles in medical journals, which have been the particular focus of the submission presented on his behalf. However, we are not satisfied these articles were at the forefront of his mind on 21 December 2017. Rather we find that Dr Robinson has accumulated the articles to justify his actions.
Having so found, we do accept that, in a general clinical sense, Dr Robinson was aware, through his learning both formal and through continuing medical education, of all kinds, that ocular and/or orbital tumours can occur as secondary metastasis to a primary breast cancer, or a primary cancer attached to an organ which is possibly capable of being detected through an abdominal examination of a patient.
We accept the evidence of Dr Campbell to the effect that the prospects of Patient A having a primary or secondary tumour of the ocular or orbit on 21 December 2017, given her age, sex and presenting symptoms and signs, was so remote/insignificant as to not require Dr Robinson to undertake the breast and abdomen examinations he conducted upon her.
We also do not accept that the circumstance of Patient A's presentation in the consultation conducted on 21 December 2017, was of such urgency to exclude metastasizing cancer, that it warranted Dr Robinson conducting the breast and abdominal examination he did. We find Dr Robinson took no available steps to ascertain whether, for example, she could be seen before the Christmas holiday period by her GP; nor did he attempt to contact the radiologist who had provided the report on the MRI pictures which Patient A brought with her to the consultation, to ascertain if the radiologist had been able to exclude a tumour in the orbit or elsewhere in and/or around the eye.
We also find that Dr Robinson should not have considered himself as an appropriate clinician to examine the breasts of Patient A. His experience in conducting breast examinations was very limited and largely undertaken during his medical training time. We accept the evidence of Dr Campbell as to the specialist skill required for such an examination, let alone the appropriateness of an ophthalmologist undertaking the examination no matter how experienced and skilled they may be. Dr Robinson's evidence was that, in the entirety of his practice as a specialist ophthalmologist, in private practice, he had only conducted one other breast examination, and that occurred in 2001. When asked when he had conducted a breast examination before that he said: "I don't remember exactly, but through my intern and resident years somewhere between 1987 and 1992, I imagine I would have performed physical examinations on patients including breast examination".
We cannot find that "there was no clinical indication for the examination". We cannot find that there were "no ocular abnormalities" found by Dr Robinson. We do find that there was insufficient clinical indication for the examination and that includes insufficient ocular abnormalities detected by Dr Robinson. So much is now acknowledged by Dr Robinson.

Failure to obtain adequate informed consent

In relation to the alleged failure to obtain adequate informed consent we make the following findings:
The evidence of Dr Robinson in relation to obtaining "informed consent" from Patient A to undertake the breast examination and the abdominal examination, which is highlighted by the submission of the HCCC, or recorded by us, is as follows: "Q. At that point in time, did you specifically tell Patient A, that is before she left your consultation room, did you tell her that the physical examination that you were proposing would include a breast examination? A. I think at that point, I was in the room, I told her I would be performing a general physical examination I, at that point, I didn't specify, although obviously later I obtained consent for each, each body part before I proceeded with that specific examination, but to answer your question I believe I did not enumerate the body parts or the breasts, which was your question, explicitly at that point, but I did later. Q. In relation to the situation that you were in with Patient A, did you understand at that time the nature of the relationship between a specialist doctor as yourself and a patient being a relationship of power? A. I'm not sure, I think I didn't fully appreciate it at the time, although I have done a lot of study, and I now appreciate the power imbalance inherent in that doctor/patient relationship. Q. Did you, prior to taking Patient A to the other room, consider giving her other options, other than having you conduct that physical examination? A. I didn't consider it at the time, although now, after doing much research, I acknowledge that a preferred approach would have been to refer her back to her general practitioner to do the physical examination. Q. It's more than that, isn't it, Dr Robinson, you could have said to Patient A, "You could have this rare primary tumour or secondary tumour, an MRI will most likely address that issue, I'm going to refer you for an MRI, and I'm going to refer you back to a general practitioner to check for other possible primary cancers", that's what you could have done, isn't it? A. Yes, I could have done that. Q. You could have done that, and in doing so accept that you would have been referring Patient A back to her GP, who would have had much more recent and much more frequent experience in conducting physical examinations? A. Correct. Q. Did you turn your mind at all to offering Patient A the option of a physical examination with a female doctor, rather than a male doctor? A. I didn't consider it at the time, although obviously in retrospect, that would probably make the patient feel more comfortable, examination by her female GP, I absolutely acknowledge that, and you know, I have written if a patient, same patient would appear to me, what I would do now is order the MRI, and send her to, back to her GP, because her GP was a more suitable, more experienced doctor to perform this examination, and I'm sorry I didn't consider that option at that time. Q. Is it the case that you said to her, "I'm going to check for any cancer in your body, thyroid is in the neck, so I'd like to examine your neck"? A. Yeah, that's correct. I would have said is there any family history of the thyroid cancer in your grandmother, thyroid is a gland in the neck, so I would like to examination for cancers in the thyroid gland within your neck."
Dr Robinson was asked about his evidence before the section 150 hearing. There, at page 31 of the transcript, he set out what he had said to Patient A about the examination he was proposing to undertake. The following is a quote from that evidence which was before us at Tab 25 of Exhibit A1. "Dr Robinson: Yes, I said very, very clearly to her that you had a headache and heat behind your right eye for a long time. The most urgent symptom - the most urgent cause, though rare, to exclude is a tumour behind your right eye. That can occur primarily or it can be a tumour that has come from another part of your body to the area behind the eye and therefore as well as doing a neurological examination which is something I do with anyone with headaches, I would like to perform a general physical examination to exclude tumours which could metastasise to the eye."
We note in that explanation to the patient about the examination she was about to undertake, there is no reference to a breast examination or an abdominal examination.
In the evidence Dr Robinson gave in the s 150 hearing, he was pressed about his explanation to Patient A of the examination he was about to undertake upon her. He said: "It certainly wasn't confusing although you know she (Indistinct) I gave her a clear, lucid explanation for why I wanted to do the examination. In hindsight it's something I need to work on because she obviously did not comprehend or when she made it plain she said she did not comprehend. I'm sorry."
Further in his evidence before the s 150 hearing Dr Robinson said, after taking her to the second room to conduct the physical examination, he would have said to her: "I'm going to check now for any cancers in your body. Thyroid is the neck so I'd like to examined your thyroid". He said in his evidence that: "So she consented fully and at no stage withdrew her consent, at no stage 'I don't want to go further', so up until that stage she was fully clothed."
In that s 150 hearing Dr Robinson was asked about a part of the statement provided by Patient A which stated: "'Then asked me to take off my top so he could check for breast lumps.' Is that an accurate description of what happened next?" Dr Robinson replied: "Yes and she did it, I did not undress her, she totally voluntarily did it herself". He also said he had told Patient A: "If you're comfortable I'd like you to take your top off and examine your breasts".
In terms of the clearest recollection of what Dr Robinson said to Patient A, we note that the s 150 hearing was conducted on 14 February 2018 which was two months after the consultation with Patient A on 21 December 2017. The hearing in which Dr Robinson gave evidence before us has occurred almost three years after the event.
Before us, under cross-examination, Dr Robinson was asked: "Q. Other than saying if you're comfortable I'd like you to take your top off so I can check for breast lumps, did you say anything else before she took her top off about how you intended to conduct the breast examination? A. I didn't say how I was going to conduct the examination, but at each point and this is important for consent at each point I would've said why I'm performing the examination. So we talk about thyroid and then it went to lung I would've said that the cancers in the lung can go up to the behind your eye, so that's why I'm listening to your chest auscultation and before the breast I would've said cancers start in your breast and they go to the area behind the eye, and that is why I'm doing the breast examination. Q. You say that you said that to Patient A, do you? A. That's my recollection, yes. Q. Was that before you said if you're comfortable I'd like you to take your top off or after? A. It would've been before." (emphasis added) We note in that evidence Dr Robinson used the word "would've". That suggests to us that he did not have a memory of the words he actually used, rather, he was relying upon memory of his usual and perhaps inevitable, practice. There are other portions of the evidence of Dr Robinson which we set out herein which confirm for us this conclusion. We have emphasised those words where found.
In relation to the breast examination itself Dr Robinson was asked in cross-examination the following: "Q. Dr Robinson, before the luncheon, sometime before the luncheon adjournment, I asked you questions about your capacity; your clinical capacity to undertake the physical examination including the breast examination, and you said that you felt that your training over 12 years was sufficient …[not transcribable]… that experience in 2017. I want to suggest to you that based on your answer just now that you cannot tell this tribunal honestly that you felt you were adequately experienced to look for a primary cancer in Patient A's breasts? A. What I would say is the following, so I had experience as any doctor would have had experience through medical school to learn the technique and practice the technique and through my surgical terms as an intern or a resident to examine patients. Now, as part of health screening females are encouraged to examine themselves to do self-examination; and if they find a lump to record it. This breast examination is not a complex examination that we're asking your regular patient, every female, to do on themselves. So I imagine if there was a significant lump there I would have been able to diagnose it, certainly, as good as a patient could diagnose it on themselves. That was my thought at the time, but definitely after all of these years of contemplating and going back I now realise that this physical examination including breast examination is more suitably performed by the patient's GP or another specialist, who has more experience. Q. Dr Robinson, it goes further than that doesn't it? An ophthalmologist would not normally perform a breast examination at all, would they? A. That is my clear understanding now, after speaking with my mentor and I accept the expert witness' opinion that this is not an examination that an ophthalmologist should be doing."
Further evidence given by Dr Robinson which touched upon the information he had provided to Patient A included: "A. I said that in a general way in the first room I said that it is very serious but rare, that a tumour can start in one part of the body and spread to an area behind the orbit. So I had conveyed that information to the patient in the first room. So I didn't repeat that information in the second room." Q. Did you tell Patient A at any time that she could arrange a breast examination with her GP rather than have you conduct the breast examination? A. I did not on that day, although I have subsequently realised that that would be the preferred course of action, and you know, in my submissions of how I would examination a similar patient, I said this general physical examination is not something I would ever do again, but I would refer the patient back to their GP to perform this examination. Q. Similarly, you didn't advise that her GP could do a lung auscultation or an abdominal examination, is that right? A. No, that is correct. Q. You didn't tell her at any time during the appointment that she could exclude the possibility of an orbital tumour pretty much by obtaining an MRI? A. Well, I mean, you know, I would have informed her that the purpose of the MRI of the orbit that I had ordered, and I gave her the request form for the MRI or the orbit, and also MRI of the brain, I would've spoke to her at that time that at that point I certainly would've said that this examination is designed to see if there is a tumour in your orbit, either started there, or which has spread to elsewhere in the body. I would've given the patient that information at the time, I handed her the request for to go for an MRI scan of her orbit. Q. That was at the very end of the consultation? A. Yes, that is correct. Q. You indicated in the section 150 that you had concerns because it was close to Christmas, do you recollect giving that evidence? A. I do. Q. Did you make any inquiries prior to conducting the physical examination of Patient A as to how quickly an MRI of her eye orbit could be obtained? A. I didn't make inquiry, I just gave her the request form and asked her to try to get the scan as soon as she can."
In the submission from the respondent on the issue of informed consent, particular passages of the transcript of evidence given before us were referred to. Transcript 1/2/2021 T6.32: "Q. Yes, and in what way did you deliver this sensitively to Patient A? A. Well, I said that the tumour is the most urgent thing to exclude, but it is ‑ but that diagnosis is rare; to try for the context that ‑ you know, needed to exclude it, but it's unlikely we're going to find a tumour because that diagnosis is rare; so that it was I had to, you know, calm the patient. Q. Dr Robinson did you say those words that it was unlikely that there was a tumour behind her eye? A. Again, I don't remember the exact quote that I said words to that effect of that this is the most urgent, or serious diagnosis to exclude, a tumour behind the eye; but this is a rare diagnosis. Q Is that the total of the conversation that you had with Patient A to the best of your recollection, directly about the possible tumour? A. No." Transcript 1/2/2021 T48.1-15: "Q. During this period of time when you were in the second room did you at any time say to Patient A that the risk that orbital cancer secondary to breast cancer is extremely low? A. I didn't say it then, but I had said it previously in room one where I said this is a rare cause. Q. That's not the same thing is it Dr Robinson? A. I don't understand your question. Q. Are you telling the tribunal that if you say to a patient this would be a rare cancer, that that's the same thing as saying that the risk of an orbital cancer secondary to breast cancer is extremely low? A. I think the answer to your question is no, but I thought you asked me did I say the cancer is rare in the second room, and I said no, but that's because I'd said in the first room that the examination we are performing, the physical examination, is to find a rare cancer." Transcript 1/2/2021 T7. 7-16: "Q. When you say informed consent, in terms of saying that it was something that was urgent and that needed to be excluded, and saying that it was rare, how do you say that that provided sufficient information for Patient A to give informed consent? A. As I said, I made the ‑ I gave her the following information; that the after having examined the patient's eyes, I looked at the history, I looked at that MRI report, still at that point the most likely diagnosis was migraine, but so in terms of to answer your question what I said to the patient, I'll go over it again; I said to the patient that the most urgent serious diagnosis here to exclude is a tumour and that tumour can start behind the eye, or it can start elsewhere in the body, and move to the area behind the eye. Therefore, I would like to conduct an examination, a general body physical examination, to check for tumours which could start elsewhere in the body and move to the area behind the eye." (We note in this recollection of the words Dr Robinson said he used to Patient A, he did not use the word "rare" to describe the possibility Patient A may have a tumour behind her eye.) Transcript 1/2/2021 T10. 15-18: "Q. Dr Robinson, just to remind you, you gave evidence a few minutes ago about what you said to Patient A, about the tumour possibly being starting in the orbit of the eye or starting somewhere else and travelling to the orbit of the eye, and my question was in what way do you say that that information that you gave to Patient A was sufficient for her to provide informed consent to the physical examination? A. I think that evidence is clear that was understood, was the reason to perform the examination; but this was only the first part of the informed consent process. The informed consent process continued in the second room before each stage of the examination." Transcript 1/2/2021 T38.41: "Q. In the section 150, Dr Robinson, you said that after you palpated the thyroid you said to Patient A, "If you're comfortable I'd like you to take your top off so I can check for breast lumps", is this the situation that in fact after palpating the thyroid you then auscultated Patient A's chest? A. Yes, that is correct. I mean that not everything is in the section 150, but what you are saying now is correct. There was a thyroid examination, and then a chest auscultation before the breast examination." Transcript 1/2/2021 T39.23-29: "A. I didn't say how I was going to conduct the examination, but at each point and this is important for consent at each point I would've said why I'm performing the examination. So we talk about thyroid and then it went to lung I would've said that the cancers in the lung can go up to the behind your eye, so that's why I'm listening to your chest auscultation and before the breast I would've said cancers start in your breast and they go to the area behind the eye, and that is why I'm doing the breast examination." Tab 25 p34.38; p31-34: We have already considered these passages when considering the evidence on this topic identified in the submission from the HCCC.
In the evidence of Dr Campbell we have seen his report at Part 2 par 14, where he answered the question posed by the HCCC: "Did Dr Robinson take adequate steps to obtain Patient A's consent for the physical examination he undertook on this occasion?" Dr Campbell responded in his report to that question as follows: "According to Patient A's statement she was feeling lightheaded and uncomfortable during the consultation and subsequent examination. She maintains Dr Robinson did not really explain what was happening and she did not understand why she needed to undergo a full physical examination. She also comments that she felt scared when he mentioned the possibility of cancer. Taking her statements at face value it appears the steps taken by Dr Robinson to obtain full informed consent were less than adequate; in my opinion his contact fell below the expected standard in this regard."
Part of the submission on the part of the HCCC in relation to this aspect of the complaint is that Dr Robinson did not inform Patient A of the other options for a breast examination. Those options, the HCCC said, included: having a support person present; having a chaperone present; having a female practitioner undertake the examination; having a practitioner skilled in breast examination undertake the examination.
We now turn to consider the law in relation to what is necessary to establish that a medical practitioner has "informed consent" from a patient.
In Health Care Complaints Commission v Grygiel [2021] NSWCATOD 28, the Tribunal considered the necessary information required to be provided to a patient about the examination, testing and/or treatment they were about to undergo, in order to obtain "informed consent". We now include some passages from that decision which have been helpful to us in this determination: Lack of adequate information to enable a patient to give a proper consent 255. It is convenient that we commence our discussion about Patient M1 and the other 51 patients in respect of whom it is asserted the practitioner failed to provide adequate advice of the existence of alternate treatment options to the patient to enable that patient to provide "informed consent" by reference to the authorities on this topic. Relevant Case Law 256. The High Court's seminal discussion on the topic is found Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 as follows: 14. The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However, the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors ((32) F v. R. (1983) 33 SASR, at p 191). Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. However, except in cases of emergency or necessity, all medical treatment is preceded by the patient's choice to undergo it. In legal terms, the patient's consent to the treatment may be valid once he or she is informed in broad terms of the nature of the procedure which is intended ((33) Chatterton v. Gerson (1981) QB 432, at p 443). But the choice is, in reality, meaningless unless it is made on the basis of relevant information and advice. Because the choice to be made calls for a decision by the patient on information known to the medical practitioner but not to the patient, it would be illogical to hold that the amount of information to be provided by the medical practitioner can be determined from the perspective of the practitioner alone or, for that matter, of the medical profession. Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment ((34) See Fleming, The Law of Torts, 7th ed. (1987), p 110). Rather, the skill is in communicating the relevant information to the patient in terms which are reasonably adequate for that purpose having regard to the patient's apprehended capacity to understand that information. 15. In this context, nothing is to be gained by reiterating the expressions used in American authorities, such as "the patient's right of self-determination" ((35) See, for example, Canterbury v. Spence (1972) 464 F 2d, at p 784) or even the oft-used and somewhat amorphous phrase "informed consent". The right of self-determination is an expression which is, perhaps, suitable to cases where the issue is whether a person has agreed to the general surgical procedure or treatment, but is of little assistance in the balancing process that is involved in the determination of whether there has been a breach of the duty of disclosure. Likewise, the phrase "informed consent" is apt to mislead as it suggests a test of the validity of a patient's consent ((36) Reibl v. Hughes (1980) 114 DLR (3d), at p 11). Moreover, consent is relevant to actions framed in trespass, not in negligence. Anglo-Australian law has rightly taken the view that an allegation that the risks inherent in a medical procedure have not been disclosed to the patient can only found an action in negligence and not in trespass; the consent necessary to negative the offence of battery is satisfied by the patient being advised in broad terms of the nature of the procedure to be performed ((37) Chatterton v. Gerson (1981) QB, at p 443). In Reibl v. Hughes the Supreme Court of Canada was cautious in its use of the term "informed consent" ((38) (1980) 114 DLR (3d), at pp 8-11). 16. We agree that the factors referred to in F v. R. by King C.J. ((39) (1983) 33 SASR, at pp 192-193) must all be considered by a medical practitioner in deciding whether to disclose or advise of some risk in a proposed procedure. The law should recognize that a doctor has a duty to warn a patient of a material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it. This duty is subject to the therapeutic privilege. [foot-notes omitted] [our emphasis] 257. It is to be remembered that the discussion in Rogers v Whitaker and later cases such as Chappel v Hart [1998] HCA 55 and Rosenberg v Percival [2001] HCA 18 is in the context of actions for negligence, not professional disciplinary proceedings. However, the principles enunciated remain relevant to proceedings such as these. 258. Recent decisions, including those of the United Kingdom Supreme Court, refer to the requirement for a practitioner to advise of alternate treatment options. We discuss this development in the law shortly. 259. In reaching our conclusion on this topic we are informed and guided by the experts' evidence including general background relevant to how the consent process is conducted in the MDT environment.
Further, The Tribunal said: 335. The submissions emphasise that the current Australian authorities, which are binding on us, do not impose a requirement on a practitioner to provide information to a patient of all alternative treatment options, although it is noted there are isolated obiter remarks to the contrary in the case law. The submissions note the relatively recent decision of the UK Supreme Court in Montgomery v Lanarkshire Health Board [2015] UKSC 11. 336. The position adopted by the Supreme Court in Montgomery is succinctly summarised by Lady Hale in her separate reasons as follows: An important consequence of this is that it is not possible to consider a particular medical procedure in isolation from its alternatives. Most decisions about medical care are not simple yes/no answers. There are choices to be made, arguments for and against each of the options to be considered, and sufficient information must be given so that this can be done: see the approach of the General Medical Council in Consent: patients and doctors making decisions together (2008), para 5, quoted by Lord Kerr and Lord Reed at para 77 and approved by them at paras 83 to 85. 337. We were referred to the decision of Hoeben J in Richards v Rahilly [2015] NSWSC 352. Here his Honour was considering whether there was negligence by a children's hospital in failing to advise the parents of a minor about the efficacy of a particular drug in circumstances where another drug was provided for the child. His Honour explained at [223]-[224]: The second question is even if the treatment provided by the hospital was appropriate did the hospital still depart from appropriate standards by not discussing the use of Vigabatrin with Rhiannon's parents. Some guidance on this issue is provided by Rogers v Whitaker: "There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to the patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill." (p 489) The submission runs somewhat contrary to that guidance in that if it is correct, there is no fundamental difference between diagnosis and treatment on the one hand, and the provision of advice or information on the other. Implicit in the submission is that the provision of advice should take place before a decision as to treatment is made and the patient should make the decision as to what treatment should be provided. 338. His Honour held at [225]: If the submission is correct, its implications are far-reaching. No longer would a doctor be required before embarking on treatment to warn a patient of its risks, but at an earlier point in time the doctor would be required to discuss with the patient the various treatment options, raising in relation to each its advantages and disadvantages and then allowing the patient to choose his or her particular treatment option. That, it seems to me, would involve a substantial abrogation by the doctor concerned of his expertise as a doctor and to blur the clear distinction identified by the High Court in Rogers v Whitaker between diagnosis and treatment on the one hand and the provision of information. 339. At [234]-[236] his Honour explained: In such circumstances it seems to me that a doctor is not only entitled but bound to recommend to patients (in this case the parents) that treatment which the doctor considers most appropriate in the circumstances. It is not a question of that choice involving the personal preference of the doctor but rather the doctor performing the fundamental duty for which he or she has been retained, ie to diagnose and treat. Once the doctor has recommended a treatment then it is incumbent upon him or her to explain fully to the patient the risks involved in that treatment. The submission is put in such broad terms as to make its implementation unworkable as a matter of practicality. In essence it is submitted that Vigabatrin should have been discussed because it was a "legitimate" treatment that "could have worked". It would impose an impossible burden on the medical profession if a doctor was bound to offer a patient every "legitimate" treatment option that "could work" and discuss the advantages and disadvantages of each option with the patient and then allow the patient to choose his or her option. On the facts of this case, the Hospital would have been obliged before deciding upon any treatment for Rhiannon, to have discussed all of the medications which were legitimate treatment options which could have worked (Dr Manson says at least five) and then request the parents to choose the treatment option which they preferred. Such an approach is unrealistic, involves enormous practical difficulties and unfairly imposes on patients/parents a decision which they are unqualified to make. It is quite different to the situation where a certain form of treatment has been recommended, but before undergoing the treatment the patient has the advantages and disadvantages of the treatment fully explained. Finally, the submission not only is not authorised by Rogers v Whitaker but runs contrary to that decision. An obligation to warn of a "material" risk inherent in a proposed treatment is a significantly different obligation to one requiring the provision of full information concerning a number of treatment options preparatory to the patient choosing his or her treatment. [emphasis added] 340. While it would be unrealistic to ignore the constraints of time and resources facing practitioners, these proceedings highlight the need, particularly where patients are treated in a multi-disciplinary setting, for proper consent and recording processes rather than reliance on generic consent forms. The vast majority of patients should be afforded an explanation where treatment proposed is non-standard with unknown efficacy and/or not supported by published data, and there should be sufficient place in pro forma consent forms for annotation of relevant information provided to the patient including particularly any material risk. 341. In making this observation we accept that there will from time to time be a very limited number of patients who, either by their distress at their diagnosis, or other psychological factors, may be incapable of fully appreciating explanations provided. But such patients are the minority. The days of the practitioner determining what the patient should or should not know or consent to about their treatment are long gone. Further, as recognised by the High Court in Rogers v Whitaker, it is a patient's fundamental right to make their own choice about undergoing treatment if that treatment involves a material risk. 342. We accept we are bound by the Australian authorities and note the following. First, the practitioner was not prescribing a standard treatment supported by clinical data. There were inherent risks in such a regimen. Secondly, he was on his own evidence the only practitioner in Australia prescribing a flat dose of 100mg carboplatin in the primary and adjuvant setting. Thirdly, in many instances, other established regimens supported by evidence were available for patients' treatment. We note that in Richards failure to provide adequate information to the child's parents was not considered reasonable where there were five drugs without any one having a clearly established clinical efficacy over the other. That was not the case for this cohort of patients. Fourthly, the practitioner's failure to provide adequate advice deprived patients of the opportunity of obtaining a second opinion or consulting with other members of the MDT and finally and importantly, the cohort were facing a serious diagnosis with life threatening consequences. They had a right to receive adequate information about the proposed treatment. 343. In addition, we consider in the circumstances of the patients such as those the subject of the complaint, there is a fundamental responsibility for a clinician to negotiate with the patient appropriate goals of treatment. A patient may elect to accept treatment toxicity if it will improve survival or may accept a compromise in efficacy to reduce toxicity. These very different treatment philosophies cannot be determined without the input of the patient. Clinicians have a responsibility to invite and respect patient preferences so that treatment recommendations are congruent with the patient's own goals. 344. In summary, as we later discuss when considering appropriate protective orders we found, even if the practitioner's desire was to shelter his seriously ill patients from additional stress, that did not obviate his duty to provide adequate information to his patients. In saying this, we accept Professor Clarke's opinion that some patients may be further stressed by the provision of detailed information prior to treatment. But here, as is aptly illustrated by the patients we have discussed, they were men and women well able to absorb basic information and agree to or not agree to a flat dose of carboplatin. The patient's right to know that the regimen the practitioner proposed was unusual and was not supported by meta-analysis or relevant clinical trials was paramount. Provision of that information inexorably should have led to advice that other established regimens were available.
The evidence in relation to this issue satisfies us of the following: 1. Patient A was, on 21 December 2017, a 19 year-old woman who attended upon Dr Robinson unaccompanied and pursuant to a referral from her GP. 2. The referral was to Dr Robinson to seek his diagnosis, utilising his knowledge as a specialist ophthalmologist, in relation to the presenting symptoms and signs set out in the letter of referral. 3. There was nothing which could reasonably have alerted Patient A, when she first arrived at the consultation with Dr Robinson, to the possibility that on 21 December 2017, whilst in consultation with a specialist ophthalmologist, she would be subjected to a breast and abdominal examination, whilst undressed above the waist. 4. The physical examination by Dr Robinson of a female patient's breasts and abdomen, was a very unusual aspect of the practice he had conducted as an ophthalmologist over many years (since 1997). He could recall only ever carrying out an examination of that nature on one occasion, which he acknowledged had generated a complaint against him. 5. Dr Robinson failed to understand or to contemplate the power imbalance in the circumstance Patient A found herself in when he advised her he would be proposing to undertake a physical examination during the consultation. 6. Accepting the accuracy of the evidence given by Dr Robinson in relation to the words he used to obtain what he relied upon as informed consent from Patient A, we find that consent was not based upon information which should have been provided by Dr Robinson to Patient A and which included the following: 1. She had the right to refuse the examination. 2. The physical examination he was about to undertake with her included a bare-chested examination of her breasts. 3. The physical examination he was about to conduct upon her abdomen would be undertaken on her bare skin. 4. She could ask for a chaperone to be present. 5. She could have a support person of her choice accompany her during the examination of her breasts and abdomen. 6. Given the possibility of Patient A having a tumour of the orbit, either primary or secondary in its source, was so rare, that an urgent and immediate physical examination was not necessary and she could refuse the proposed examination and attend upon her GP for same. 7. She could obtain a second opinion as to the necessity for such an examination. 1. The breast and abdomen examination conducted upon Patient A, Dr Robinson now acknowledges, should not have been undertaken by him. This realisation has been accepted by Dr Robinson having undertaken his own research and his accepting the advice of mentors and others. As such, Dr Robinson should have, in our view, advised Patient A that the breast examination was an extraordinary event for an ophthalmologist to undertake and that in the whole of his practice as an ophthalmologist he had only undertaken one other breast examination of a female patient.
We have set out above the jurisprudence we are relying upon in relation to "informed consent" to be obtained by a medical practitioner from a patient. We draw from that the following:

Except in cases of emergency, all medical treatment is preceded by the patient's choice to undergo it. We extend that position to include any aspect of physical examination which may form part of the process of the medical practitioner formulating a diagnosis.
The patient is to be provided with information in terms which are reasonably adequate for that purpose having regard to the patients apprehended capacity to understand that information. The only exception to the provision of such information will arise where there is a particular danger the information will cause harm to an unusually nervous, disturbed or volatile patient or where there is an emergency which requires the provision of medical treatment and there is no reasonable opportunity to provide the relevant information or obtain consent.
In relation to proposed treatment there is an obligation for the medical practitioner to provide the patient with information, within reason, of alternate treatment options. There are some differing views in the reported decisions, as to the extent of the information in relation to alternate treatment which needs to be provided. We extrapolate that position to include provision of information about alternate tests and investigations which might be conducted by a medical practitioner upon a patient whilst the practitioner formulates a diagnosis. This, we consider, becomes particularly requisite when the explorations sought to be undertaken by the medical practitioner are outside the area of practice undertaken, in the normal course of medical practice, by the practitioner and/or where the body of opinion amongst medical practitioners, in the same specialist area of practice, is that such an examination or testing ought not to be undertaken by a practitioner within that specialty.
"The vast majority of patients should be afforded an explanation where treatment proposed is non-standard with unknown efficacy and/or not supported by published data." We extrapolate from that proposition, that such explanations and alternatives should be provided to a patient, in relation to examinations of the patient, to be conducted by a medical practitioner as part of the process of formulating a diagnosis, where the examination "is non-standard with unknown efficacy".
"The days of the practitioner determining what the patient should or should not know or consent to about their treatment are long gone."

We have regard to the evidence of Dr Campbell that as an ophthalmologist he would not contemplate undertaking a breast or abdominal examination of a patient referred for his specialist opinion and/or treatment. We accept that such an opinion represents the view of the majority of practising ophthalmologists in Australia.
We have been referred to the "Good Medical Practice: A code of Conduct for Doctors in Australia" published by the Medical Board of Australia in March 2014. Chapter 3.5 is titled "Informed Consent". Relevant to this case the following is set out: "3.5 Informed Consent Informed consent is a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved. The information that doctors need to give to patients is detailed in the guidelines issued by the National Health and Medical research Council (NHMRC). Good medical practice involves: 3.5.1 Providing information to patients in a way that they can understand before asking for their consent. 3.5.2 Obtaining informed consent or other valid authority before you undertake any examination, investigation or provide treatment (except in an emergency), or before involving patients in teaching or research."
We conclude that the extent of the information to be provided to a patient by an ophthalmologist will depend upon the nature and extent of the examination or treatment which the ophthalmologist advises the patient is recommended for the symptoms and signs which are presenting. It is reasonable for a patient attending upon an ophthalmologist to expect their eye-sight will be tested and explored by examination of their eyes. As such the information provided about such examinations is likely to require a less expansive statement than a circumstance where that examination moves to another part of the patient's body.
In the circumstances of this case we conclude that the information provided by Dr Robinson to Patient A before he conducted an examination of her breasts and abdomen was insufficient to be able to have informed consent from Patient A to that examination.

Particular 2

Particular 2 states as follows: "During the consultation at the Practice the practitioner inappropriately conducted a breast examination on Patient A in that he: (a) requested Patient A remove her top; (b) requested Patient A remove her bra; (c) palpated all four quadrants of Patient A's breasts behind the areola with flat fingers for approximately one minute whilst Patient A was leaning back in a reclining chair and her strapless top was pulled down beneath her breasts; (d) rubbed Patient A's nipples whilst she was leaning back in a reclining chair and her strapless top was pulled down beneath her breasts which is not an approved breast examination technique; (e) palpated Patient A's breasts a second time between two hands whilst Patient A was leaning forwards in a chair and her strapless top was pulled down beneath her breasts which is not an approved breast examination technique."
In the Respondent's submission he admits "his conduct was inappropriate with respect to the auscultation of Patient A's chest (Particular1) breast examination (Particular 2 and 3); abdomen examination underneath clothing (Particular 5); inappropriateness of questions regarding pap smears (Particular 7) and admits that the failures fall under section 139B(1)(a) regarding lack of knowledge, skill, judgment and care."
Although it is not of any particular relevance given the extent of the admission made above, we do note the evidence of Dr Robinson was that he pressed rather than rubbed the nipples of Patient A. Further, we are not aware of any evidence being provided which enables us to conclude Particular 2(e) "is not an approved breast examination technique".
We note in this last aspect of the particular the HCCC have relied upon the evidence of Dr Campbell where he suggested the manner in which the examination was conducted, as described by Patient A, was not an approved breast examination technique. However, Dr Campbell had couched this statement in terms of being "as far as I know". Dr Campbell did not profess to have expertise in the approved method of examining a female patient's breasts to detect for a tumour or mass. In fact, his evidence was that such examinations would never be undertaken by him. Further, he did not include in his report, or evidence generally, any reference to medical text or other authoritative material, which set out what an "approved" method of breast examination was.

Particular 3

This Particular states: "3. The conduct set out in Particular 2 above was inappropriate in that: (a) no ocular abnormalities had been found; (b) there were no signs of orbital disease; (c) there was no clinical indication for the examination; (d) a chaperone was not present; (e) no ocular signs suggested metastatic breast carcinoma; (f) the practitioner failed to obtain adequate informed consent."
We have considered these counts earlier as we considered Particular 1. The exception is the count "(e)" above. There was no assertion by Dr Robinson that there was a particular sign which suggested it could only be referrable to metastatic breast carcinoma. His evidence was far more general than that, as we recorded same. His stated concern was that Patient A may have a primary or secondary tumour in the orbit. If it was secondary (metastasis) then one of the possible primaries was in the breast.

Particular 4

This Particular asserts: "The practitioner engaged in inappropriate conduct of a sexual nature towards Patient A by reason of his actions set out at particular 2(a) - (e)."
We have considered the evidence before us in relation to this count. This is a very serious allegation to level at a medical practitioner. Dr Robinson had this allegation squarely put to him on more than one occasion. He denied the allegation on every occasion.
In reaching our determination on this Particular we have had regard to the submission of the Respondent in relation to the "burden of proof" set out above, and our conclusion in relation to that submission.
We have observed Dr Robinson whilst he gave his oral evidence, and considered the content of same together with his written evidence. We cannot, on the evidence before us, be satisfied on the balance of probabilities, as applied by us to this allegation, that Dr Robinson conducted an examination "of a sexual nature". We understand this Particular to cover the proposition put to Dr Robinson in cross-examination that he conducted the examination to satisfy his own sexual need, that he conducted the examination to obtain gratuitous sexual satisfaction.
As we understand, part of the HCCC case is that the breast of a woman is an inherently sexual part of her body. Any touching of that part by a medical practitioner without the informed consent of the patient AND without there being a proper medical clinical purpose for touching the breast, must be seen as for an improper purpose. If the examination was not clinically indicated then the only available conclusion in such a circumstance is that the touching was to satisfy the practitioner's sexual urge, or for him to obtain sexual gratification from same.
Such a statement has some logical attraction as a generality; however, in this case we do not accept that it applies to Dr Robinson. We have made our findings about the way in which he gave his evidence and the content of same. We have concluded that we are not satisfied there was no possible medical purpose in Dr Robinson examining Patient A's breasts and abdomen. We are unable to find that the examination was conducted by Dr Robinson, either in part or in its entirety, for his own personal gratification.
We do not accept that even if there was no medical purpose in conducting the breast and abdominal examination it must follow that the only other purpose must be for sexual gratification. In this case we accept that Dr Robinson really did see the examination as warranted for medical purposes and he also was unaware, through lack of knowledge or personal awareness, that it was at that time inappropriate for him to have conducted the examination.
We accept that a breast examination by a medical practitioner, who conducts it as a result of his incorrect understanding about the medical efficacy of same, could be an examination with no real medical purpose. It could give rise to a finding of professional misconduct. That could be so even where there was clear evidence that the examination was performed for no personal sexual gratification, or like intent, of the medical practitioner.
For us to conclude that the examination was for personal sexual gratification, we would have to be satisfied, on the requisite standard, that Dr Robinson knew he should not have been conducting the examination; that he purposefully used his position as a medical practitioner to manoeuvre Patient A to a place in his rooms which was out of sight of other staff or other detection; that he purposefully provided Patient A with a vague and frightening explanation for what she was about to experience; that he used the power imbalance, of which he was aware, to manipulate Patient A for his own sexually-motivated purpose.
We have turned to the evidence of Dr Diamond to understand the personal psychological and psychiatric makeup of Dr Robinson. We have also had ample opportunity to see the manner in which he has answered the questions asked of him, and we observed a level of arrogance and perhaps superiority which we consider explain the actions Dr Robinson took with Patient A. We have observed how, to some degree, the arrogance and presentation of superiority have been significantly reduced by the realisation that he had "crossed a line" in his examination of Patient A, and that he had engaged in a medical examination which his medical peers know is not appropriate. To that extent he has had to face the inadequacy of his knowledge and experience in circumstances where he has clearly prided himself as not lacking to any extent in those aspects of his medical practice.

Particular 5

This Particular alleges: "During the consultation at the Practice the practitioner conducted an abdomen examination on Patient A underneath her clothing which was inappropriate in that: (a) no ocular abnormalities had been found; (b) there were no signs of orbital disease; (c) there was no clinical indication for the examination; (d) a chaperone was not present; (e) he failed to obtain adequate informed consent."
We have addressed these allegations in relation to earlier set out Particulars of Complaint 1, and we adopt those findings in relation to Particular 5. Although this Particular is confined to the abdominal examination, the findings we have made in relation to the breast examination are equally applicable to the abdominal examination.

Particular 6

This Particular states: "During the consultation at the Practice the practitioner inappropriately asked Patient A whether she was presently menstruating in circumstances where the question was not clinically indicated."
In relation to this allegation, the evidence of Dr Robinson is that he denied asking Patient A that question. He did admit he asked a similar question which was: "where are you in your menstrual cycle?" We accept he did ask the question in that form.
Notwithstanding the differing wordage, the question asked did address the same topic. Dr Robinson denies that it was not clinically relevant to ask the question given that he was conducting a breast examination. He has however conceded it was inappropriate to ask the question. That concession is given as part of the broader concession that it was inappropriate for him to have undertaken the breast and abdomen examination of Patient A, and any question which he asked her whilst conducting those examinations. This is cast in the accumulation of knowledge acquired by Dr Robinson since 21 December 2017 that ophthalmologists should not as part of their practice conduct such examinations.

Particular 7

This Particular is stated as follows: "During the consultation at the Practice the practitioner inappropriately asked Patient A whether she had ever had a pap smear in circumstances where the question was not clinically indicated".
This particular is conceded by Dr Robinson as having been asked and that given his subsequent acquired knowledge was inappropriate.

Complaint Two

This complaint is: "The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) and/or (l) of the National Law in that the practitioner has: i. contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2016 ("the Regulation"); ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine."
The Background and Particulars to Complaint Two are as follows: "BACKGROUND TO COMPLAINT TWO The background for Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT TWO The practitioner contravened Schedule 4 clause 1(2) of the Regulation in that on or around 21 December 2017 he failed to record that he conducted a breast examination on Patient A in: (a) Patient A's clinical records; (b) the letter sent by the practitioner to Patient A's referring General Practitioner dated 22 December 2017."
In the final written submission provided by the HCCC the following is provided in relation to the Particulars to Complaint Two. "In relation to Complaint 2, Clause 6 of the Health Practitioner Regulation (New South Wales) Regulation 2016 requires a health practitioner to keep medical records. Clause 2 of Schedule One mandates as follows: (2) A record must include the following-- (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. Neither the medical records, nor the letter to Dr Harris, met these criteria."
Dr Robinson in his submission addressed the GP Letter issue as follows: "xx) The reference in his letter back to the GP which states that 'there were no masses, nor nodes on physical examination' was his way of indicating that secondary orbital tumours had been considered and eliminated: 1/2/2021 T 43.35- T44.23. He stated this was his intention behind the words used at the time but appreciates now that there is ambiguity in the language used: 2/2/2021 T104.20-24. He strongly denied that his failure to use the word breast in his letter to the GP was to 'disguise' the fact that he had performed a breast examination and that in his clinical notes chest, no lumps can only mean no breast lumps: 2/2/21 T69.31-36."
Dr Campbell opined in his report as follows: "the obvious omission is that there is no mention of his having performed a breast examination in either his notes or the letter to the GP. Dr Robinson has written "chest clear no lumps no nodes" but the word "breast" does not appear anywhere. I consider his contact fell below the expected standard in this regard."
A copy of the letter written by Dr Robinson to the referring GP, which was dated 22 December 2017 has only one line which could possibly be a reference to the breast examination carried out by Dr Robinson upon Patient A. That line is as follows: "There are no masses nor nodes on physical examination, in particular in her thyroid region."
In the clinical notes he made Dr Robinson wrote: "Chest clear 0 lumps 0 nodes. Abdo no masses."
The HCCC submits that the notes and the letter to the GP combined do not satisfy the requirement of the Health Practitioner Regulation (New South Wales) Regulation 2016 in relation to medical records. Dr Robinson appreciates the report in the letter to the GP is ambiguous however he denies it was deliberately framed as it is to avoid disclosing he had conducted a breast examination on Patient A.
We find that the information provided to the GP by Dr Robinson was less than adequate to clearly advise that a breast and abdominal examination had been conducted upon Patient A. The clinical notes made by Dr Robinson do however give rise to a clear indication that a chest and abdominal examination was performed. As Patient A is female the context must, on an ordinary reading by a medical practitioner, mean a breast examination was conducted.
Given the very rare occurrence of Dr Robinson performing a breast examination on a female patient, and given that it is unlikely the GP who was receiving the letter from Dr Robinson would have any preconception that an ophthalmologist would conduct such an examination, we consider, it was incumbent upon Dr Robinson to specifically state that he had conducted the examination of Patient A's breasts and the reason for such examination.

Complaint Three

We now turn to set out our findings on Complaint Three. The Complaint is stated as follows: "The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration BACKGROUND TO COMPLAINT THREE The background for Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT THREE 1. Complaint One particulars 1, 2, 3 and 4 are repeated and relied upon individually. 2. Complaints One and Two and the particulars thereof are repeated and relied upon cumulatively."
This Complaint is the most serious of the complaints made by the HCCC as it accumulates into one place all of the allegations made against Dr Robinson and seeks a finding that his conduct amounts to professional misconduct under s 139E of the National Law. The consequences of such a finding point to an outcome which could include suspension or cancellation of Dr Robinson's registration. We include here, therefore, an extract from the submission of the HCCC on this Complaint, and also an extract from the submission of Dr Robinson on the Complaint.
The HCCC submitted as follows: "Complaint 3 24. Even if the Tribunal accepts Dr Robinson's version of events, and only makes findings restricted to his admissions, the conduct is sufficiently serious to amount to professional misconduct. There is no evidence that Dr Robinson undertook any kind of assessment of the intrusive nature of the physical examinations he undertook, and weighed that up against the clinical issue that he claimed to want to address. 25. If the Tribunal rejects that the breast examination a. was conducted for a sexual purpose; or b. was sexual in nature but makes other findings sought by the Complainant, the respondent's conduct falls so far below accepted standard, and/or is so improper, that it is appropriate to find that it amounted to professional misconduct. Consideration 26. It may be useful for the Tribunal to consider the following issues:- a. Was the breast examination clinically indicated; Did Dr Robinson believe at the time that a breast examination was clinically indicated; b. If he did believe at the time that it was clinically indicated when, objectively, it was not clinically indicated, then i. Was the breast examination sexual in nature, given that a woman's breasts are inherently sexual and touching of Patient A's breasts was only appropriate if it was clinically indicated. ii. how serious is the practitioner's breach of s.139B(1)? c. Even if Dr Robinson believed it was clinically indicated, i. was it appropriate to conduct the breast examination himself ii. did he obtain informed consent to conduct a breast examination. d. If Dr Robinson failed to consider whether or not it was appropriate to conduct the breast examination, how serious an infraction is it? e. If Dr Robinson didn't believe it was clinically indicated at the time but made this up subsequently to cover up the true reasons for conducting the examinations, then this gives rise to i. Integrity issues ii. The true motive for why he conducted the breast examination."
The HCCC then addressed separately the issues identified above. That included "Physical examination was not clinically indicated"; "Did Dr Robinson believe at the time that a physical examination was clinically indicated?"; "Dr Robinson did not have the clinical knowledge to conduct a breast examination"; and "Dr Robinson did not obtain informed consent to conduct the breast examination"
Dr Robinson provided the following written submission on this Complaint Three: "Complaint Three: Professional Misconduct 47. The respondent accepts that if Complaint One, Particular Four alleging inappropriate conduct of a sexual nature towards Patient A is proved, the conduct amounts to professional misconduct. 48. In the absence of proof of sexual purpose, the respondent submits that the Commission has failed to prove professional misconduct. 49. In Chen v HCCC [2017] NSWCA 186, the Court of Appeal held that "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 characterization which must depend upon an evaluative judgment made by the Tribunal": see at [20] per Basten JA (Leeming and Payne JJA agreeing). 50. That is, with respect, a correct statement of the law. But at least arguably it is ambiguous, and it is vital to understand what their Honours were and were not saying. How should sec 139E be interpreted? 51. Firstly, Chen would not prevent the Tribunal looking for guidance from previous decisions in medical disciplinary proceedings (whether decided under the National Law (NSW) or other legislation) in which the issue for determination was whether it was necessary and/or appropriate to suspend or cancel the practitioner's registration. 52. In Epstein v The Medical Board of Victoria [1945] VLR 309 at 310 it was held that "gross negligence … aggravated by lack of concern for the welfare of the patient" was required to make out the charge. In Ex parte Meehan [1965] NSWR 30 at 37 professional misconduct was not sufficient to justify suspension despite Mr. Meehan being found to be "overconfident in his own ability" and acted "ill-advisedly" rather than recklessly or with indifference." In Re Anderson (1967) 85 WN (NSW) 558 at 576-7 per Sugerman JA, at 585 per Asprey JA -even in a case when the patient died, there was not enough to justify suspension or removal that the practitioners "had no appreciation of their own lack of qualification for the task." It was held that "gross inattention to the welfare of the patient" or "inexcusable ignorance or incompetence" was required. In Pillai v Messiter [No 2] (1989) 16 NSWLR 197 at 201A per Kirby P "obstinate indifference to the consequences of one's acts" is required. Pillai v Messiter was another case in which the patient had died as a result of the practitioner's negligence. Even so, Samuels JA (with whom Clarke AJA agreed) went as far as saying that "it is not every departure - even if gross - from proper standards which amounts to [professional] misconduct" (at 210G). See also Basser v Medical Board (Vic) [1981] VR 953 ("gross negligence"); Re Mustac (2003) 36 SR (WA) 123 ("gross carelessness"). 53. Secondly, the statutory language must be scrutinised carefully. The rule against surplusage is applicable. The words "of a sufficiently serious nature" in each of ss 139E(a) and (b) must have a substantive role to play. The definition contemplates that professional conduct may be "unsatisfactory" (i.e., so seriously or conspicuously negligent as to be "significantly below" the standard) yet still not of a kind that would justify suspension or cancellation of the practitioner's registration. Accordingly, the Court in Chen cannot have been saying that any finding of "unsatisfactory professional conduct" in a given case would justify suspension or cancellation. If that were the position, there would be no need for sec 139E, and the Tribunal's power to suspend or cancel in s 149C(1)(b) could have been tied to a finding of mere unsatisfactory professional conduct. 54. That is to say, it is of vital significance that the Tribunal's power to suspend or cancel in sec 149C(1)(b) is tied to a finding of professional misconduct (not unsatisfactory professional conduct). Parliament must have done that for a reason and the Court of Appeal's reference in Chen to "no category of unsatisfactory professional conduct" being theoretically excluded from the reach of sec 139E must be understood in that light. What the Court must have been saying was that no type (i.e., kind or sort) of impugned conduct - whether erroneous diagnosis, lack of judgement, inadequate treatment, failure to warn of a material risk, faulty record-keeping, etc. - is unpunishable under s 139E. 55. The test in s 139E is tied to the "seriousness" of the practitioner's impugned conduct. Accordingly, in each individual case, whatever the type of that conduct, the focus must be on the degree to which the conduct departed from the standard. Moreover, suspension and cancellation should always be considered as alternatives. The "scale" of imaginable cases thus looms as follows: i. Cases of unsatisfactory professional conduct in which the Tribunal has found that the practitioner's conduct was "significantly below" the standard, but no more (i.e., cases of serious or conspicuous negligence) - in such cases, suspension may not always be necessary, but frequently will be; in rare cases, cancellation (with or without conditions) may even be necessary ii. Cases of unsatisfactory professional conduct in which the Tribunal has found that the practitioner's conduct was even more delinquent than "significantly below" the standard - in such cases, suspension will almost always be necessary, at a minimum; sometimes, perhaps often, cancellation will be necessary. 56. If sexual purpose is not proved than the conduct of the respondent is limited to being categorised as poor judgement and lack of skill in conducting three body examinations which are more appropriately performed by a primary physician such as the patient's GP. It is limited to conduct that the respondent has never denied, and that the respondent now accepts was an error of judgement on his behalf. 57. The conduct is limited to a single occasion and a single patient. In the absence of proof of sexual purpose, there is no nefarious thinking behind the act, no 'moral turpitude,' no ill intent, no impropriety and nothing unethical. It was an error of judgement. Arguably a gross error of judgement - but not in the category of justifying suspension or cancellation."

Determination on Complaint Three

The HCCC concluded its submission on this Complaint Three with the following: "In summary: The physical examinations were not clinically indicated. Dr Robinson was not skilled or practiced in conducting the (breast) examinations. Dr Robinson did not obtain informed consent."
As can be seen from our earlier determinations in this decision, we have not accepted there was no clinical indication which supported Dr Robinson conducting a breast and abdominal examination upon Patient A.
In relation to Dr Robinson's skill level in relation to conducting a breast examination, we understand Dr Robinson had a basic education in relation to anatomy as part of his degree training. We accept he probably also had some practical experience in conducting a breast examination in the course of his studies. He now accepts that it was inappropriate for him to conduct the breast examination, however, his case is that there was nothing improper in his conducting the examination. He effectively says that he is a trained medical practitioner in general medicine as well as his specialty of ophthalmology. He says he has the training, skill and knowledge to carry out the examination, at least to a level of being able to detect lumps or masses of significance in a breast. We accept that is probably correct.
However, he has only conducted one other breast examination since he left his training in Hospitals. It has been many years since he left that training. He must have realised, had he thought about it at the time, that his skills may now be deficient in the area of breast examination. That medical practitioners who regularly and routinely conduct breast examinations would be better placed to conduct such an examination. One such practitioner was probably Patient A's GP.
We accept therefore that Dr Robinson was not skilled or practiced in the examination of a breast as is alleged by the HCCC.
The HCCC asserts that Dr Robinson did not obtain informed consent for the breast examination. We have found that this has been established.
The Respondent submits that "In the absence of proof of sexual purpose, the HCCC has failed to prove professional misconduct". We do not necessarily accept such a conclusion as posed. We will consider this further below. We have not been able to find that Dr Robinson had a "sexual purpose" in the breast examination or the abdominal examination.
We have concluded, and indeed Dr Robinson has conceded, that he is guilty of unsatisfactory professional conduct; he has conceded he should not have undertaken the breast and abdominal examination of Patient A. He has not conceded there was no clinical indication for such an examination. Dr Campbell has opined that any clinical basis for the breast and abdominal examination was so unlikely as to amount to no clinical basis at all for same. Dr Robinson now accepts that conducting such examinations is not within the practice of ophthalmology, and that where such an examination is clinically indicated it is best undertaken by a skilled practitioner in that area. We have considered the evidence given by Dr Robinson about the timing of his consultation with Patient A, and its proximity to the Christmas holiday period, and therefore the difficulty in accessing specialist and GP medical services. We do not accept that the clinical indications relied upon by Dr Robinson, even accepting they were validly held, warrant the breast and abdominal examinations were of such urgency as to require him to undertake same.
None the less we have not been able to find that Dr Robinson was pursuing his own sexual gratification or purposes in conducting the examinations of Patient A's breasts and abdomen. The question remains as to whether, given the findings we have made, those findings "amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration". If the findings do meet that level of seriousness, then a finding of professional misconduct is required.
The Respondent concludes his submission by asserting that what he engaged in was an error of judgment, arguably a gross error of judgment, however that error of judgment is not elevated to being in a category which justifies the suspension or cancellation of his registration as a medical practitioner.
The HCCC submitted we should consider the list of questions it posed as follows: "a. Was the breast examination clinically indicated; Did Dr Robinson believe at the time that a breast examination was clinically indicated; b. If he did believe at the time that it was clinically indicated when, objectively, it was not clinically indicated, then i. Was the breast examination sexual in nature, given that a woman's breasts are inherently sexual and touching of Patient A's breasts was only appropriate if it was clinically indicated. ii. how serious is the practitioner's breach of s.139B(1)? c. Even if Dr Robinson believed it was clinically indicated, i. was it appropriate to conduct the breast examination himself ii. did he obtain informed consent to conduct a breast examination. d. If Dr Robinson failed to consider whether or not it was appropriate to conduct the breast examination, how serious an infraction is it? e. If Dr Robinson didn't believe it was clinically indicated at the time but made this up subsequently to cover up the true reasons for conducting the examinations, then this gives rise to i. Integrity issues ii. The true motive for why he conducted the breast examination."
Turning then to consider those matters, we find as follows: 1. Was the breast examination clinically indicated? We accept the evidence of Dr Campbell that the possibility of Patient A having a tumour in the orbits, either primary or secondary, was so remote as to not warrant the further investigation undertaken by Dr Robinson in a breast and abdomen examination of her. As such we accept the examination was not clinically indicated. 1. Did Dr Robinson believe at the time that a breast examination was clinically indicated? We have found that Dr Robinson did believe at the time of the investigation that it was clinically indicated. 1. Was the breast examination sexual in nature, given that a woman's breasts are inherently sexual and touching of Patient A's breasts was only appropriate if it was clinically indicated? We have concluded Dr Robinson was not motivated by sexual gratification. We do not accept that, if the examination was not objectively clinically indicated, then it must follow that any such examination of the breast or abdomen of Patient A had a sexual purpose. 1. How serious is the practitioner's breach of s 139B(1)? We conclude that the practitioner's breach of s 139B(1)(a) is serious because of the impact the examination had on Patient A and the possibility that it could have long-lasting impacts upon her mental health. Further, an examination by a medical practitioner which is not clinically indicated, may have impact upon the public's confidence in the medical practitioners at large. These latter considerations are matters best addressed in the Stage 2 portion of this hearing, after we have heard from the parties and considered their evidence and submissions. 1. Even if Dr Robinson believed it was clinically indicated, was it appropriate to conduct the breast examination himself? We have considered this matter earlier. We conclude that Dr Robinson should not have conducted the breast and abdominal examination himself, as he now concedes. 1. Did he obtain informed consent to conduct a breast examination? We have concluded the consent obtained by Dr Robinson from Patient A could not be regarded as "informed" for the reasons we have stated. We consider the balance of the questions posed by the HCCC are matters which are better addressed in Stage 2 of this hearing.
Looking then to the question of whether the conduct of Dr Robinson, which has been addressed in these reasons, is of a sufficiently serious nature to justify suspension or cancellation of Dr Robinson's practitioner registration, we conclude the conduct falls slightly short of meeting that criteria. We would therefore conclude that the Complaint Three, alleging the Respondent is guilty of professional misconduct under s 139E of the National Law, is not made out to our satisfaction.
We conclude our determination with this statement. We accept that the HCCC was justified in pursuing this case against Dr Robinson. Different minds will have different levels of suspicion and conviction about the true motivation Dr Robinson may have had in conducting the breast and abdominal examination of this young woman, Patient A. However, suspicion falls well below the level of satisfaction we need to have as the Tribunal, in order to make the finding that Dr Robinson conducted the examinations for his own sexual gratification. Our conclusion is that the level of satisfaction was insufficient to establish, on the applicable standard, a case which finds Dr Robinson conducted his examination for a purpose other than a medical purpose. That conclusion is based upon the assessment of multiple aspects of the evidence before us. The determination cannot be made upon the establishing of only one possible indicator of a non-medical purpose.

Orders

That being our determination, the order of the Tribunal will be that the matter now be listed before us to consider what protective orders ought be made based upon our findings. In order that such a process may be followed we will order the following: 1. The Tribunal having found the practitioner guilty of unsatisfactory professional conduct orders that the matter is listed for directions on 24 September 2021 to fix a hearing date for the Stage 2 hearing.

Endnotes

The precise question in Jattan was whether disciplinary proceedings against the pharmacist (which had been initiated by a "notice of proposed action" under s 24 of the Health (Drugs and Poisons) Regulation 1996 (Qld), for suspension of his endorsement to dispense controlled and restricted drugs and poisons) were proceedings "for the imposition of a penalty" within the meaning of s 30(5) of the Australian Crime Commission Act 2002 (Cth).
Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ.
See also Ex parte Attorney General (Cth); Re a Barrister and Solicitor (1972) 20 FLR 234 at 246 (ACT Full Court); Seymour v Australian Broadcasting Commission (1979) 19 NSWLR 219 at 227 per Mahoney JA; NSW Bar Association v Livesey [1982] 2 NSWLR 232 at 238 per Hope JA.
A few professional disciplinary matters have reached the High Court: Ziems v The Prothonotory of the Supreme Court of NSW (1957) 97 CLR 279; [1957] HCA 46; Clyne v NSW Bar Association (1960) 104 CLR 186; NSW Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20; Weaver v Law Society of New South Wales (1979) 142 CLR 201 [1979]; HCA 35; Barwick v Law Society of NSW [2000] HCA 2; A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1. But in none of them was the standard of proof an issue. In some cases the practitioner had already been convicted of a criminal offence (manslaughter in Ziems; aggravated indecent assault in A Solicitor); in others the finding of misconduct was based on undisputed evidence (see Evatt at [11] - overcharging; A Solicitor at [30] - failure to disclose relevant matters to the Law Society). In Barwick the issue was of a pre-trial nature.
Justice In Tribunals, supra, [12.23]. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2021

Health (Drugs and Poisons) Regulation 1996(Qld)

Health Practitioner Regulation National Law Regulation 2016(NSW)

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