Health Care Complaints Commission v Robinson

The submission of the HCCC provided for the hearing on 13 September 2022

1. In its earlier submission of 12 September 2022, the HCCC set out the following: "Justice Simpson AJA in the Court of Appeal has raised as an issue whether, if the breast examination was not clinically indicated, it follows that it was for sexual gratification (Court of Appeal judgment at [104]). The applicant does not seek to be heard further in respect of this issue, noting that the Tribunal in its first decision found that the respondent did not engage in the conduct for the purposes of sexual gratification. The determination of each of the foregoing issues will require the Tribunal to re-consider whether overall the conduct found proven amounts to unsatisfactory professional conduct that is of a sufficiently serious nature to justify cancellation or suspension of registration, and this amounts to professional misconduct. In addition the applicant invites the Tribunal to consider the impact of the respondent's conduct found proven on the reputation of the profession in determining whether or not the conduct amounts to professional misconduct, accepting that this was not a submission made in terms to the Tribunal in the initial hearing. The other findings made by the Tribunal in the first decision should remain undisturbed. Having regard to the fact that although the remitter from the Court of Appeal is in respect of the whole of the application, the Tribunal is to reconsider the application with reference to the reasons published by the Court of Appeal, it follows that the Tribunal is to revisit only those matters that are canvassed in the Court of Appeal judgment. Without being exhaustive and by way of example only, the applicant points to the following findings as matters that it is not open to the Tribunal to reconsider:- 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. [183] We do find that there was insufficient clinical indication for the examination and that includes insufficient ocular abnormalities detected by Dr Robinson. [189] 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. [212]"
2. The HCCC addressed each of the topics it submitted were required by "the remit from the Court of Appeal" as set out in its submission. It then addressed the "Re-exercise of an Evaluative Judgment". It submitted: "Re-exercise of an Evaluative Judgment - Is the conduct professional misconduct? 1. To determine professional misconduct the Tribunal must assess whether the unsatisfactory professional conduct found proven, or more than one instance of unsatisfactory professional conduct found proven taken together, is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration (s.139E National Law). 2. Whether or not the respondent's conduct amounts to professional misconduct as alleged in Complaint Three is an evaluative judgment undertaken by the Tribunal having regard to the unsatisfactory professional conduct found proven or admitted, as the case may be. 3. In the first decision at [253] the Tribunal held as follows:- 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. (emphasis added) 4. If in addition to the adverse findings already made in the first decision the Tribunal is persuaded that:- a. The breast examination was sexual in nature, thus upholding Particular 4 of Complaint One; and b. The fact that the respondent had an erroneous belief that the physical examination of Patient A was clinically justified is a further exemplar of his knowledge and judgment falling significantly below the standard expected of him; there is substance in a submission to the effect that such findings - one or both - must bring the instances of unsatisfactory professional conduct as found in Complaints One and Two within the boundaries of being sufficiently serious to justify cancellation or suspension of his registration (as to whether or not cancellation or suspension is in fact imposed remains to be determined at stage 2). 5. Even if the Tribunal adheres to the view expressed at paragraph 225 of the first decision, the fact that the respondent genuinely believed that the examinations and questioning was clinically indicated does not mitigate the seriousness of the conduct; rather it demonstrates a serious deficiency in his knowledge and judgment that justifies a finding that the unsatisfactory professional conduct he engaged in is sufficiently serious to amount to professional misconduct. That an ophthalmologist of thirty years experience believed his conduct was clinically justified demonstrates the serious nature of the unsatisfactory professional conduct engaged in - sufficiently serious to justify cancellation or suspension of the respondent's registration. Denouncement/Reputation of the Medical Profession 6. In its first decision, the Tribunal determined that consideration of whether an examination by a medical practitioner which is not clinically indicated, may impact upon the public's confidence in the medical practitioners at large were matters best addressed in the Stage 2 portion of this hearing (at [262(2)]). 7. The applicant submits that, having regard to the Court of Appeal's judgment in Health Care Complaints Commission v Do [2014] NSWCA 307 at paragraph 35 set out below, the Tribunal must consider this issue as part of its consideration of whether or not the unsatisfactory professional conduct found proven amounts to professional misconduct. 35 The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 8. The applicant accepts that this submission was not put in terms at the first hearing, but given its importance to the evaluative process, the applicant presses that this is a mandatory consideration at the point in time at which the Tribunal is considering the seriousness of the unsatisfactory professional conduct."

The written submission of the Respondent dated 12 September 2022

1. In his submission of 12 September 2022, the Respondent addressed the matters he submitted flowed from the decision of the Court of Appeal. In particular, the Respondent set out his submission under the headings: "Question One - Has Sexual Nature been proved in the absence of sexual intent?"; Question Four: The reasonableness of the belief that a breast and abdomen examination was clinically indicated?" Under that heading the Respondent addressed "Proof of professional misconduct".
2. The Respondent concluded his submission of 12 September 2022 with the following: "The question of 'Do' factors being mandated for consideration in proof of professional misconduct 1. If the Commission submits that the remit to the Tribunal requires consideration of two matters that were relevant and 'mandated' for consideration as to whether professional misconduct had been proved, being (a) the impact of the examination on Patient A, and (b) the impact of the examination on public confidence in the medical profession, [Appeal Decision [107]- [109]) the respondent submits first, that there is no authority which supports a submission that these factors are 'mandated' for consideration in proof of Complaint Three. Secondly, the respondent submits that these factors were in fact considered by the Tribunal and did not ultimately, in the general mix of all relevant matters to be considered, result in a finding of professional misconduct. Nothing said by the Court of Appeal should alter that finding. 2. It should be noted that the Commission's grounds of appeal on this point were not upheld (see Appeal Decision [107]-[109]) and we submit do not fall under the terms of the order for remittance. 3. In Health Care Complaints Commission v Do [2014] NSWCA 307, the respondent doctor had been found guilty of professional misconduct: at [2]. The Tribunal made protective orders but did not disqualify the respondent from registration for any specified period. The Commission position on appeal was that in deciding not to make a disqualification order, the Tribunal failed to consider that 'public confidence in the high standards of competence and ethical decision making expected of health practitioners should be maintained': at [26]. It was in that context that the Court made the observations at [35]. That is, while a finding of professional misconduct had been made, the protective orders did not properly consider the impact of the conduct on public confidence in the profession: at [39]-[40]. The Court found that the Tribunal did not address 'at all' the public's interest in having the respondent's conduct denounced as unacceptable: at [39]. 4. If the Commission submits that this Tribunal must now consider the impact of the impugned conduct in public confidence in the medical profession, the respondent does not agree. That submission is apt to suggest that the effect of the Court of Appeal's decision in Do is that the impact of the conduct on public confidence is a mandatory consideration at Stage 1 of the proceedings, and mandatory to consideration of whether the conduct constitutes professional misconduct. Do is not authority for that proposition. 5. As noted by Simpson AJA in the Appeal Decision at [108]. Two short responses dispose of the submission. First, the remarks in Do on which the Commission placed reliance were made in the context of an appeal against protective orders made following Stage 2 of an inquiry. They were not directed to whether the impact of the conduct of the practitioner on public confidence in the medical profession is a mandatory consideration of, or even relevant to, the s 139E determination. 6. As to the second submission of the respondent, as outlined above in these submissions, the Tribunal did not 'defer' its consideration of the impact of the examination on Patient A. The Tribunal expressly referred to her evidence regarding her experience; Dr Robinson's evidence as to how he considered she would have experienced the examination; and Dr Campbell's evidence on point; and expressly made findings which considered her experience - in particular that there was 'nothing which could reasonably have alerted' her to the possibility she would be 'subjected to a breast and abdominal examination, whilst undressed above the waist': at Tribunal Decision207. 7. The Tribunal made a further specific finding in relation to Patient A when considering whether the conduct was of a sufficiently serious nature to justify a finding of professional misconduct (that is, Complaint Three). At [262] (4) the Tribunal found: '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'. 8. The Tribunal considered the impact of the examination on public confidence in the medical profession when it stated (at [262] (4)): '…Further, an examination by a medical practitioner which is not clinically indicated may have impact upon the public's confidence [and] 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.' 9. After considering that a non-clinically indicated examination may impact upon the public's confidence in the medical profession at large, in addition to five other factors, the Tribunal concluded that the conduct fell 'slightly short of meeting that criteria' and concluded that the complaint of professional misconduct was not made out: Tribunal Decision at [263]. 10.The Tribunal's finding that the public's confidence may be impacted upon by the conduct of a medical practitioner conducting a non-clinically indicated examination constitutes a clear acknowledgement by this Tribunal of the relevance, and importance of public confidence in the profession to the determinations it was required to make. The Tribunal expressly considered that the question of public confidence in the profession was more appropriately addressed at stage 2 of the proceedings (when protective orders would be made). Conclusion 11. Whether conduct is 'sufficiently serious' to justify a finding of professional misconduct depends upon an 'evaluative judgment' made by the tribunal: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. 12. The respondent submits that there is no basis to interfere with the Tribunals original decision for the reasons outlined in this submission. The remit from the Court of Appeal has not resulted in any new evidence being lead. Absent intent, the Tribunal could not be satisfied to the Briginshaw standard that the conduct amounted to 'inappropriate conduct of a sexual nature towards Patient A'. Further, whatever the degree of unreasonableness found in the respondent's erroneous belief that the examinations were required, the finding of unsatisfactory professional conduct in this regard has not reached the level of justifying cancellation or suspension. The Tribunal's evaluative judgement of all relevant matters was open and all that is required is more detailed reasons underpinning the findings made."

The Oral Submissions of the Parties made 13 September 2022

The HCCC

1. The HCCC firstly submitted the matter which needs to be addressed is the revisit of Complaint One, Particular 4. The argument to be advanced will address the difference contended for by the HCCC that the words "Sexual in nature" can mean "something that doesn't involve finding sexual gratification or sexual motivation".
2. When it was suggested to the HCCC that the further hearing perhaps needed to reconsider Complaint Three of the original complaint because of the words of Leeming JA in paragraph [22] of the Appeal Court decision, counsel for the HCCC refuted that suggestion saying: "The reference to 'that case was not determined by the Tribunal' (in paragraph [22]) is a reference to the rest of the sentence, that is, that the Tribunal failed to determine whether, as the HCCC contended, a practitioner who examined the complainant's breasts without there being a valid indication to do so but also without a sexual motivation. That is the heart of what the Tribunal did not determine."
3. The HCCC submitted further on the content of paragraph [22] of the Court of Appeal decision as follows: 1. "What was appealed was the Tribunal's failure to deal with the argument put by the HCCC in respect of particular 4 of Complaint One. That was one of the grounds of appeal. You are right insofar as once you have correctly determined that issue, that is, once you have taken into account the clearly articulated arguments that were put before the Tribunal in relation to that matter, you then have to consider two things. If you find in our favour, therefore you find Particular 4 made out. That would be a further element of the unsatisfactory professional conduct that you would take into account when considering Complaint Three. 2. So you will have to reconsider Complaint Three, but the Court of Appeal did not find that you failed to consider professional misconduct. That was not an error that the Court of Appeal found. What it found was that in that first step, of assessing what was made out, and therefore what amounted to unsatisfactory professional conduct, that the Tribunal erred in failing to deal with an argument that was put about "sexual in nature". That is the first error that the Tribunal now needs to address in this hearing. 3. And the Tribunal may do a number of things…. I'm asking you deal with an argument that I put below which wasn't dealt with in the decision, which is, on the one hand Dr Robinson undertook a chest auscultation. That's not sexual in nature. One the other hand, Dr Robinson physically examined patient A's breasts. That is sexual in nature because a woman's breasts are inherently sexual and he did not have informed consent and he did not have objectively a clinical reason to do so, and his subjective belief is irrelevant. …..Because the question of whether or not it's sexual in nature involves consideration of whether it was clinically indicated, whether there was informed consent."
4. The HCCC submitted: 1. "We accept that we have to deal with that question of clinically indicated in addressing particular 4. But we say, you, the Tribunal, have accepted that objectively that it was not clinically indicated. You've accepted Dr Campbell when he said ophthalmologist in Australia would think it was (sic) clinically indicated to take a breast examination. That's the objective test and we say that's the test that applies. 2. So the primary point is it's an objective, and what he thinks doesn't come into the question of whether it's sexual in nature. But if you disagree on that point, we say, it's not enough that he says "I thought it was the right thing to do." You have to closely examine the reasonableness of his belief, and for all of the reasons that I put below, and some of those reasons have found their way into the decision, you didn't accept that it was urgent enough to require him to do it, for example. But I raised many issues as to why his belief wasn't reasonable, including for example that even if he thought there was a tumour in the eye orbit, it could have been a primary tumour, in which he wouldn't have been looking for primary cancers anywhere else, in the chest, in the abdomen, in the breast or anywhere. 3. The Tribunal's finding that it was not sexually motivated was not the subject of appeal. What was the subject of appeal was that the Tribunal failed to deal with the primary argument that the HCCC put, which was inappropriate conduct of a sexual nature. And don't forget Dr Robinson accepted that the breast examination was inappropriate. So tick inappropriate conduct. 4. We said we are inviting you not to find that it was sexually motivated, but simply that it was sexual in nature.
5. The HCCC then made submissions in relation to Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 (Yildirim).
6. The HCCC submitted: "It involves a physiotherapist and it involves at paragraph [2] a complaint by a patient that alleged that "the physiotherapist was doing physical manipulation work on me, reached under my underwear twice" and lifted her underwear "so that my pubic mound would have been fully visible". If you turn to paragraph [168], the Tribunal is considering Particular 7. And the Tribunal says this: "Whether by reason of one or a combination of the actions particularised and found proven, Mr Yildirim engaged in inappropriate conduct of a sexual nature towards patient 'A'." Then at paragraph [169], is set out the conduct which is in similar terms to what I took you to at paragraph [2] of the decision. And then at [170], the Tribunal says: "Whether the conduct engaged in by Mr Yildirim is inappropriate conduct of a sexual nature towards patient 'A' is a question of fact and must ascertained objectively." The Tribunal then considers a number of contextual considerations as being relevant. The first one was that there is no clinical justification, so we have in my submission the same situation here, in that the Tribunal has found that the breast examination was not clinically indicated objectively. Secondly that the movement of the underwear was not positioned in a recognised - patient 'A's body was not positioned in a recognised therapeutic position." On that point the Tribunal didn't accept that the breast examination was wrongly done, so that matter wouldn't arise here. The movement of the underwear being for 20 seconds, her body not being covered with a towel and the patient 'A' spoke up to complain on the third occasion. Now those are different matters to the many matters that I invited the Tribunal below to consider as to the circumstances. And those circumstances involved - they ranged from the fact that patient 'A' was attending for treatment of headaches. The remoteness of the likelihood of her having a primary cancer and not being unwell. The unlikeliness of her having a primary cancer in her breast at all at the age of 19, there are a range of many contextual matters that I put below.
7. The HCCC submitted: "There are many contextual matters that would support a finding that this was inappropriate conduct of a sexual nature. In these proceedings, all the Tribunal has done is found that it accepted that Dr Robinson had a belief that it was clinically indicated but the question of the reasonableness of that belief would then need to be considered on this question of sexual in nature."
8. The HCCC then addressed paragraphs [171] to [188] of the decision in Yildirim. It commenced at paragraph [175] as follows. "What appears from [175] citing Lee CJ's statement in a decision of Harkin, which is earlier cited which a criminal matter, and in [175] Lee CJ's statement that the purpose or motive for acting in this way is irrelevant, echoes and implicitly refers to the English decision of Queen v Court which he quotes at [302] - and part of that judgment is then extracted. "The assault which the prosecution seeks to establish may be of a kind which is inherently indecent. The defendant removes against her will a woman's clothing. Those very facts devoid of any explanation would give rise to the irresistible inference that the defendant intended to assault his victim in a manner which right-minded persons would clearly think was indecent. Whether he did so for his own sexual gratification or because being a misogynist or for some other reason he wished to embarrass or humiliate his victim seems to me to be irrelevant" So in that case Lord Ackner was contemplating matters other than sexual gratification involving some kind of exercise of power or control but not necessarily sexually motivated. It goes on at para [176]: "In short a person may behave in an apparently sexualised way towards another for a variety of reasons. That is the point made by Lee CJ in Harkin. The ulterior motive for doing so is irrelevant. If conduct is self-evidently sexualised due to the combination of the act and the circumstances it adds nothing to probe or speculate about the inner workings of the mind of the actor. Medical examinations or health treatments may obviously involve intentional touching or exposure of sexual organs. Whether such touching or exposure is lawful or appropriate depends on all the circumstances including, at least, the patient's condition, the objective of the investigations or treatment, the informed consent of the patient or client and the need for or desirability of the touching or exposure and accepted methodologies for carrying out the treatment or investigation in question". With respect, those are all the types of matters that I ask the Tribunal to consider when considering whether the Tribunal would find that the respondent's conduct was sexual in nature. The conduct engaged in by Mr Yildirim was not accompanied by any words of a sexual nature but in our view it was unmistakably conduct of a sexual nature. Lifting clothing or underwear off a person's body generally requires intentional effort. To intentionally lift a person's underwear so that their genitals are exposed, without their consent and without a clinical reason for doing so is prima-facie inappropriate sexualised conduct.
9. Arising from the above decision in Yildirim, the HCCC submitted: Our primary case was if it was not objectively clinically indicated then that is enough. If you don't accept that - if you accept that you are obliged to consider the respondent's subjective views, then we say you need to closely consider the reasonableness of his views that it was clinically indicated and we say it was not reasonable and therefore it remains conduct that is sexual in nature. That's in respect of Particular 4.
10. The HCCC addressed the matter raised in paragraph [114] of the Court of Appeal judgment. It submitted: The second ground of complaint was that the tribunal had not dealt with the question of the reasonableness of Dr Robinson's belief that the physical examinations were clinically indicated in the context of s 139B(1)(a). In other words, to the extent that s 139B(1)(a) says that a practitioner has engaged in unsatisfactory professional conduct, if their knowledge, judgment or skill fall significantly below that of their peers, in effect, of similar experience, that the fact that Dr Robinson thought that the physical examination of patient A was clinically indicated, in and of itself demonstrates that his knowledge or judgment was significantly below - and/or judgment, was significantly below the standard. What the Court of Appeal said was; "We agree that the tribunal didn't deal with it, the reason the tribunal didn't deal with it was because it was never put to them in those terms to deal with it and so the ground fails because you can't complain about something the tribunal wasn't asked." So I am now putting an argument that I did not put directly below and that is that in addition to all of the matters that the tribunal has taken into account in finding unsatisfactory professional conduct, that the tribunal should turn its mind to that question, whether the fact that Dr Robinson thought that it was clinically indicated to conduct the physical examination of patient A, in effect to take her down to that back room and to undertake those physical examinations of her in circumstances where objectively it wasn't clinically indicated and given the extent of Dr Campbell's evidence about that and given all of the other circumstances, that that subjective belief in fact demonstrates a lack of judgment and knowledge which falls significantly below the standard. And that if the tribunal agrees with that submission that that in and of itself would be sufficient to, we say, tip the finding of unsatisfactory professional conduct into professional misconduct given in effect that the tribunal in its decision found that it was the narrowest of margins that stopped the tribunal finding that it was professional misconduct. (emphasis added.)
11. The HCCC then referred to its written submission provided on 13 September 2022 and in particular, to paragraph [11]. It referred to the finding of the Tribunal that: "whatever the doctor's beliefs as to clinical indication, they did not in fact justify the breast and abdominal examinations."
12. The HCCC then submitted: "So that's a finding that has been made and in addition you accepted Dr Campbell's evidence that the conduct fell significantly below the standard of his peers, and I've cited some parts of Dr Campbell's report which we say were not successfully challenged in cross-examination."
13. The HCCC then addressed paragraph [23] of its' submission saying: "Paragraph 23 is really the key point in this matter that is the fact that an otherwise experienced and skilful ophthalmologist could be so wrong in his subjective belief that the physical examinations of Patient A were clinically indicated must also reflect in a finding that in so far as the respondent held a belief that the physical examinations were clinically indicated the respondent's knowledge and judgment fell significantly below the standard.
14. The HCCC then addressed paragraphs [26] to [28] of their 13 September 2022 written submission. This addressed whether the question of whether the Tribunal should consider the protection of the public and upholding public confidence in the standards of the profession as part of our determination of the Stage One determination. It submitted: "The fact that Doe said that the protection of the public and upholding public confidence in the standards of the profession. That that objective is achieved by setting and maintaining those standards and where appropriate by cancelling the registration of practitioners who are not competent or otherwise not fit to practice, including those who have been guilty of serious misconduct. The fact that it has been characterised in that way necessarily involves looking forward to the question of whether cancellation or suspension would be contemplated. And so, we certainly accept that the question of denunciation or deterrence and similar matters and upholding of the standards of the profession it certainly will be a matter to be determined in stage two but we are raising for the tribunals consideration whether it is also a matter that would appropriately be taken into account in assessing the seriousness of Dr Robinson's unsatisfactory professional conduct as found proven by the tribunal."
15. The HCCC completed its' submission on the "reputation" point, by submitting: "If the tribunal finds professional misconduct based on the other matters then it is a matter for it whether it further considers the issue of the reputation or not."

The Respondent's Oral submission

1. The Respondent provided his oral submission through his counsel.
2. The Respondent drew the Tribunal's attention to the written submission he had provided on 13 September 2022. There he addressed the topics which he said flowed from the decision of the Court of Appeal and which needed to be addressed by the Tribunal in this hearing. The Respondent submitted: "In our submission, there is no issue and there could be no criticism with a finding that in the facts and circumstances of this case, absent motivation, gratification, intent, then in this case "sexual nature" has not been proved to the requisite standard. Even taking into account the area which was touched, examining the breast. Even taking into account, as the tribunal did, that the patient was somewhat - that that was unexpected to the patient for good reason. Even taking into account a finding, that not that there was no clinical indication, but that there was insufficient clinical indication is a highly relevant factor in a determination in relation to whether or not the Commission has proved sexual nature."
3. The Respondent submitted the Tribunal had made a finding, "not that there was no clinical indication but that there was insufficient clinical indication". The Respondent submitted that was an important distinction when the Tribunal looks at the Yildirim, which it was referred to by the HCCC. The Respondent continued: "In the case of Yildirim. Paragraph 170 subparagraph 1. The facts as found in Yildirim were that there was no clinical justification. The facts as found in this case, Dr Robinson's case, is not that there was no clinical justification, rather that there was insufficient clinical justification. And that notion of insufficient clinical justification can be found in the Tribunal's decision at paras 189, 252, 2621, and 224. What is the significant of insufficient clinical basis? Firstly, I ask the Tribunal to note that the Commission never appealed that that finding by this Tribunal was irrational or unreasonable or illogical, namely the finding stands and is not in any way disturbed or interfered with."
4. The Respondent then addressed paragraph [174] of Yildirim. He submitted: "In Yildirim the physiotherapist denied the touching. As result of that, there was no explanation as to why the touching which was found occurred. 174 of note is precisely that issue, that there was no contrary explanation or clarification, namely for the touching. That is not the case in Dr Robinson's case. There is an explanation as to why the breast examination took place. It had two aspects. One aspect was a mistaken belief as to its indication, and the Tribunal found that that was an honest, albeit mistaken, belief. And secondly, the genesis of that belief in the expert evidence of Dr Diamond(?). So this case again can be distinguished because there is an explanation and that is relevant to whether sexual nature is proved."
5. The Respondent submitted the decision in Yildirim evidences a very different case to that faced by the Tribunal with Dr Robinson. That is highlighted by paragraphs [174] and [175] of the decision.
6. In paragraph [180] of Yildirim, the Respondent submitted illustrates the "absence of explanation" for the actions by the physiotherapist in the manner in which he touched and exposed, the body of his patient. He had denied touching or exposing the areas of the patient's body, about which she had made her complaint. The Respondent submitted: "We maintain our submission as we did at first instance, namely, that sexual nature does mean sexual purpose and we are fortified in that submission as a result of para 104 of the Court of Appeal decision….. We do not agree that 104 is her Honour Justice Simpson making comment as to how sexual purpose was not found in this case. Again, I highlight the point that the Commission did not appeal this Tribunal's finding that sexual purpose had not been proved. That is to say, the Commission did not appeal this Tribunal's finding on the basis that it was illogical or irrational or unreasonable to have not found sexual purpose."
7. Continuing in the submission on paragraph [104] of the Court of Appeal decision, the Respondent said: "So [104], in my submission, is being read, or should be read as your Honour has read it, namely her Honour Justice Simpson is stating it is not entirely easy to conceive in effect how you can have "sexual nature" in the absence of sexual purpose. And this appeal decision does not say to the Tribunal you can't make that finding. This decision asks the Tribunal to engage in the alternate argument which was run by the Commission, to engage with that argument and to give detailed reasons as to whether or not you'd find that in the facts and circumstances of this case, noting that breasts are inherently sexual, whether or not sexual nature has been proved. And in my submission, the submissions of the Commission either in writing or today do not in fact address that concern of her Honour Justice Simpson, namely it is not entirely easy to conceive of a situation where sexual nature towards a patient exists in the absence of sexual purpose."
8. By way of concession, the Respondent submitted: "Yes, breasts are inherently sexual but not in the practice of medicine. They can't possibly be for good reason and that's why the circumstances in which an act occurs has to be analysed. And in our submission the circumstances in this case are not limited to Dr Robinson's state of mind but do incorporate the other factors of the evidence, in particular Dr Diamond's evidence." "The evidence of Dr Diamond, namely that this examination occurred with a tunnel vision approach and because of his character profile how it's perceived by the patient was not contemplated. That in and of itself would remove it from sexual nature in the facts and circumstances of this case…. In this case absent intent in this case, "sexual nature" has not been proved.
9. The Respondent reminded the Tribunal of its finding at paragraph 264 of its decision. He submitted: "At para 264 of your decision and that is that the Tribunal found that it was not satisfied that the Commission had proved that the examination was for a purpose other than a medical purpose……The Commission argues that his state of mind is not determinative of the issue, our submission is it remains relevant at all times, even when you come to consider the Commission's argument that the touching of the breasts objectively is sexual in nature that does not mean that you remove from the equation the circumstances in which he conducted the breast examination."
10. The Respondent addressed the "reasonableness" of the conducting of a breast examination by the respondent. He submitted: "What's required now is an articulation of that consideration of reasonableness and turning then to that issue of reasonableness you can find that it was unreasonable to do the breast examination but nonetheless that does not mean it was sexual in nature and nonetheless that does not mean the seriousness of it is such to justify suspension or cancellation. And in our submission reasonableness was incorporated, must have been incorporated when you came to find that it was significantly below the standards expected. Reasonableness in our submission is incorporated in a finding that is knowledge or skill or judgment or care was significantly below the standard, namely when you made the finding of unsatisfactory professional conduct. The question then becomes was the unreasonableness of such a...(break in recording).(seriousness)..that it justifies suspension or cancellation and we say that it was not." If the Tribunal finds look it was wholly unreasonable. The next step then becomes but does it justify suspension or cancellation? No. Why? Because there was a basis for his unreasonable decision-making, there was a basis. (see the evidence of Dr Diamond) ….And in those circumstances his tunnel vision approach to eliminate a metastasized cancer, given it's a single incident, does not justify suspension or cancellation."
11. The Respondent then addressed the finding which the Tribunal had made, accepting the evidence of Dr Campbell that a person of Dr Robinson's experience and years of service would not have conducted a breast examination on Patient A as the Respondent had done. The Respondent submitted: "In my submission that's precisely why the tribunal found that his judgment was significantly below the standard and unsatisfactory professional conduct was proved, but in my submission that evidence and the question of reasonableness must have been examined and discussed and contemplated by the tribunal when they made a finding that his conduct, including his judgment based on unreasonableness of decision-making, was significantly below the standards."
12. The Respondent was asked about the words of Simpson AJA in the Court of Appeal decision contained in paragraph 114. We asked: "We are wondering whether having been led into having to consider the "sexual nature" phrase, it meant that we didn't really address a consideration of the examination outside of that sexual nature and sexual intent confine?"
13. The Respondent answered that question with the following: "And that's the criticism. The Commission's argument is that once you removed intent from the equation, you did not then engage with what does sexual nature mean, and in our submission when you engage in what sexual nature means you hear the submissions of the Commission which says that sexual nature means X, and our submission is that sexual nature incorporates, and must do, intent….. The Court of Appeal decision is not saying to this Tribunal you cannot interpret sexual nature as incorporating intent or you cannot interpret sexual nature without giving due consideration to all of the facts and circumstances of the case." So you…can accept the argument of the respondent as to what sexual nature means and thereby particular 4 fails, is not proved. What you are then left with is particular 2. Particular 2 is that the practitioner inappropriately conducted a breast examination for the reasons outlined in the sub particulars. When you come to examine whether or not particular 2 inappropriately conducted a breast examination, you look at particular 2 and you say does that in and of itself, or in combination with particulars 1, 3, 5, 6 and 7 amount to conduct which is significantly below the standards expected because it demonstrates such poor skill, knowledge, judgment. That's where the reasonableness question comes in, in our submission." "The very use of the words it's not simply sexual nature, it's sexual nature towards patient A. It's inappropriate conduct of a sexual nature towards patient A, they're the terms of particular 4 and in circumstances where you have an explanation for the conduct, where you've made certain findings in favour of Dr Robinson by way of insufficient clinical indication as compared to no clinical indication, where you've made findings that you accepted,…..the evidence given by Dr Diamond was important in assisting determinations as to proof of any aspect of the complaint. That finding is not interfered with by way of the appeal decision."
14. In relation to the remit from the Court of Appeal and in particular paragraph 114 of the Court of Appeal judgment, the Respondent was asked: "Why couldn't we change our minds, for example, about in accordance with 114, "that the extent of the unsatisfactory professional conduct being of a sufficiently serious nature to justify a suspension or cancellation of the practitioner's registration". Ms Mathur for the Respondent answered: "You can. You can change your mind on that, that was the purpose of the remit." (The Court of Appeal) is asking you - but within the confines of a re-examination of only a few issues. (1) Particular 4 has it been proved, (2) have you given due consideration, irrespective of what you find on particular 4, have you given due consideration to the reasonableness or unreasonableness of the decision making to conduct the examinations and (3)…The ultimate finding to not have proved professional misconduct, in my submission, remains sound and the Commission has not proved that it should be elevated to professional misconduct. Because this is in essence a case, at its heart, it is a case of poor judgment, that's what it is, it's a case of very poor judgment. Does very poor judgment on a single occasion in certain circumstances, justify cancellation or suspension, that's the question isn't it, does it justify cancellation or suspension when you have a sound explanation - "

Oral Submission in Reply by HCCC

1. The HCCC took up the topic of possible use of the words "sexual purpose" as interchangeable with the words "sexual nature" as used in Complaint one Particular 4. The HCCC submitted: "Particular 4 says the practitioner engaged in inappropriate conduct of a sexual nature towards patient A by reason of his actions set out in particular 2A to 2E…. This is ultimately the particular that was the subject of the appeal where it was put in the ground that the tribunal had focussed solely on the question of sexual gratification and not dealt with what was our primary argument which was that sexual gratification can be part of particular 4 but isn't necessarily so." When I read particular 4 that would appeared to be an argument that was open to the HCCC to put, that is, that Dr Robinson engaged inappropriate conduct of a sexual nature towards the patient by conducting a breast examination on her, without that sentence conveying purpose or intent, it can include, it can extend to purpose or intent but on its fact it doesn't do so."
2. The HCCC took the Tribunal to paragraphs [93] to [95] of the Court of Appeal Judgment. We pause here to incorporate those paragraphs of the Judgment. [93] The relevant established facts were: (1) that the respondent had conducted the breast and abdomen examinations of Patient A; (2) that those examinations were not sufficiently clinically indicated and were inappropriate; (3) that the respondent's conduct constituted unsatisfactory professional conduct; (4) that the respondent believed that the examinations were clinically indicated; and (5) that the respondent's conduct was not sexually motivated. [94] The question for the Tribunal was, in terms of s 139E, whether the respondent's conduct was sufficiently serious to justify suspension or cancellation of his registration as a health practitioner. That question is distinct from whether such an order should be made. [95] From the outset of the inquiry, although the Commission did not initially discount the suggestion that the respondent's conduct was sexually motivated, it propounded the proposition that the breast examinations were "inappropriate conduct of a sexual nature" whether or not the respondent engaged in that conduct for reasons of personal sexual gratification. That, the Commission said, was because: "(a) there was no clinical reason to conduct a breast examination, (b) a woman's breasts are inherently sexual and (c) so conducting a breast examination when there was no clinical reason to do so was conduct that is sexual in nature". In the Tribunal, counsel described that as the Commission's "minimum case"."
3. The HCCC addressed matters raised in the submission of the Respondent which addressed paragraph 104 of the Court of Appeal Judgment. The HCCC said that the paragraph had to be read in conjunction with paragraph [106]. We pause here to set out paragraphs 104 to 106 of the judgment. "[104]. It may be acknowledged that the proposition put by the Commission is not self-evidently correct. It is not entirely easy to conceive of "inappropriate conduct of a sexual nature" towards a nominated patient, constituted by an admittedly inappropriate breast examination with insufficient clinical indication, as other than sexually motivated. However, it was an argument clearly advanced to the Tribunal, constituted as prescribed by s 165B(2) of the National Law, and one that the Commission was entitled to have addressed by the Tribunal as constituted. [105]. Some argument in this Court was directed to authorities said to support the proposition, for example, Health Care Complaints Commission v Sultan [2018] NSWCA 303 at [99], [101]-[102], [161]; Health Care Complaints Commission v Priyamanna [2015] NSWCATOD 138 at [174]- [185] and Ford v Inghams Enterprises Pty Ltd (No 3) [2020] FCA 1784. [106]. Those authorities are of minimal, if any, relevance. The ground of appeal is not that the Tribunal wrongly decided the question. It is that the Tribunal failed to decide the question. As was acknowledged, the consequence of that ground, if upheld, is (no matter how unattractive) that the matter be remitted to the Tribunal for proper determination. The Commission has not sought to invoke the powers given to this Court by cl 29(7) of Schedule 5 of the CAT Act and conduct the appeal by way of a new hearing. Nor has any argument been advanced on behalf of the respondent that the argument advanced by the Commission is doomed to fail. That the question raised by the Commission's argument should be decided by the Tribunal, at least in the first instance, is consistent with the requirement of s 165B(2) that the Tribunal be constituted to include two medical practitioners and a lay member. The obvious purpose of these requirements is for the Tribunal to have the benefit of the special expertise and insights of members of the medical profession in the determination of issues arising out of the practice of medicine, as well as the insights of a lay member. The conclusion I have reached in relation to ground 1(a) makes it strictly unnecessary to determine ground 1(b) which, in any event, was ultimately pressed as an aspect of ground 1(a). It is unnecessary to say any more about it. Grounds 2 and 3."
4. The HCCC was asked by us what it understood Simpson AJA was referring to in paragraph 104 with the words "It may be acknowledged that the proposition put by the Commission is not self-evidently correct." The HCCC submitted that the reference was to words contained in paragraph 100 of the judgment, namely: "[100]. Later, in her submissions in reply to those made on behalf of the respondent, counsel reiterated, by reference to "Particular 4", that the respondent's conduct was "inappropriate" because there was no clinical reason to conduct a breast examination, a woman's breasts are inherently sexual, and therefore conducting a breast examination in the absence of a clinical reason to do so is "conduct that is sexual in nature" with or without a sexual motive."
5. We pause here to say that in our view the words of Simpson AJA as stated in paragraph 95 are probably a summary of what she was referring to in paragraph 104. In paragraph [95] Simpson AJA said when considering Ground 1(a) of the appeal: "it (the HCCC) propounded the proposition that the breast examinations were "inappropriate conduct of a sexual nature" whether or not the respondent engaged in that conduct for reasons of personal sexual gratification. That, the Commission said, was because: "(a) there was no clinical reason to conduct a breast examination, (b) a woman's breasts are inherently sexual and (c) so conducting a breast examination when there was no clinical reason to do so was conduct that is sexual in nature".
6. We do not seek to be contained to a determination that the words of Simpson AJA in [104] were referrable only to those set out in part of paragraph [95]. The whole of what Her Honour had said in paragraphs [91] to [104] are clearly what was exercising her mind in the statement made in paragraph [104].
7. The Tribunal asked the HCCC counsel the following question, and we here record her response. "What is the consequence of us finding that particular 4 is established? What flows from that?" LOWSON: "It makes the breast examination, his conduct in conducting the breast examination which is set out in particular 2, it elevates the serious of that because it is sexual in nature. It is different to the abdominal palpation and the chest auscultation….. For example, it was an intrusive physical examination to be conducting and, therefore, to have conducted it is reflected in two ways and I've set all of this out in the written submissions below. It either makes the degree to which his conduct fell below the standard worse; it demonstrates that his knowledge and judgment falls well below the standard because it is an intrusive examination that he should have had more pause to think about before he engaged in it or alternatively, it's unethical or improper."…. "What makes the breast examination more serious is particular 4 and it is the attribution of it being sexual in nature. Because a woman's breasts are sexual in nature whether she's outside a medical practitioner's office or inside it. If a patient is inside the medical practitioner's office and if the medical practitioner has an objectively assessed clinical indication to undertake an examination of them then he or she can do so without engaging in inappropriate conduct or arguably a criminal offence. But her breasts are her breasts whether she's outside the door or inside the door of that medical practice. They don't lose their sexual - inherent sexual nature because she crosses the threshold into a doctor. She doesn't cede control of her body because she has stepped inside the practice of a medical practitioner. And a doctor who fails to recognise the particular issues involved in conducting a breast examination without clinical indication has engaged in more serious conduct."
8. The Tribunal pressed the reason the HCCC had used the words "The practitioner engaged in inappropriate conduct of a sexual nature towards Patient A" in Particular 4 as above addressed. What meaning was the HCCC submitting the Tribunal should give to those words "sexual nature". Counsel for the HCCC submitted: "You have to look at the entire circumstance. It's more serious because it sexual, because the whole idea of why we have parts of the body that are taken out from other parts of the body is because of their intimate nature. It's because - as I said at the outset if you say to someone, someone checked my chest or checked my abdomen that's weird. But to say they checked your breasts that's upsetting, distressing, it's sexual. It leads to Patient A going what was that about? Why have I just been at a doctor's surgery who is an ophthalmologist, who just put his hands all over one of the most intimate parts of my body? Those are the issues that are implicit in sexual which are not implicit in the other parts of the body, the other physical examinations that are before this Tribunal. They are all serious, but the breasts are more serious because of their intimate nature. The reason we use sexual as a defining term here is because these are intimate parts of people's bodies that they don't normally show. They normally have clothing covering them. They don't normally take off their tops or take off their breasts except for someone intimate and close with them……And you found that there was no sufficient clinical indication. It's a matter of semantics when it comes to assessing the sexual nature of the conduct, because there wasn't a clinical indication. That's enough for the sexual nature of this physical examination to be put out in lights. There was not a positive reason why Dr Robinson had to undertake this breast examination at the time that he did in the circumstances that he did with his lack of experience in conducting breast examinations without informed consents."
9. When pressed again about what might flow from a finding that the conduct as alleged in Particular 4 was "of a sexual nature" the HCCC submitted: "If this is found to be sexual in nature, then it must be professional misconduct." (Emphasis added.)
10. The HCCC's counsel submitted: "My submissions all along have been that even without a finding in respect of particular 4, that his conduct was so bad that it merited professional misconduct……again if you don't find particular 4 made out you still have to deal with the question of the reasonableness of his belief in the context of s 139B(1)(a) - ".
11. She further submitted: "The question of clinical indication and informed consent were both important elements of this and I accept that the question of clinical indication can be difficult to wrestle with but ultimately the fact that "no clinical indication" was (the wording) in the complaint, and the Tribunal found insufficient clinical indication is, in my submission a red herring, because without positive clinical indication this physical examination should not have occurred." (Emphasis added.)
12. Towards the conclusion of the hearing on 13 September 2022, the Tribunal members asked both counsel for assistance with the words "sexual nature"; if there was a decision of former Tribunal's which addressed what those words mean, has there been an attempt to define the words by the Tribunal or the Court of Appeal when considering an appeal from the Tribunal or other court where the words are used, in relation to a civil law proceeding. Both counsel referred to the Crimes Act 1900 (NSW) and section 61HD(1)(a). Counsel for the HCCC also referred to Anti-Discrimination legislation.
13. Ms Mathur for the Respondent addressed s.61HB(1)(a) of the Crimes Act with the following submission: "MATHUR: Ms Lowson read to you (a) and (b) as to sexual touching, not sexual nature. But sexual touching means any part of the body and through anything worn, in circumstances where a reasonable person would consider the touching to be sexual. Then it goes on in subs (2) to say, "The matters to be taken into account in deciding whether a reasonable person would consider the touching to be sexual include the part of the body," tick, we've got the breasts. (b) "Whether the person doing the touching does so for the purpose of obtaining sexual arousal or gratification," cross, we don't have that. (c) "Whether any other aspect of the touching", namely the circumstances, "make it sexual," we say cross, no, because there were no words for example that accompany the touching that would make it sexual. Subsection (3), "Touching done for genuine medical or hygiene purposes is not sexual touching," and the phrase "genuine medical or hygiene purposes", "genuine" is objective. In this case we've got a genuine belief or an honest belief by Dr Robinson as found by the Tribunal. We don't have a situation, again I reiterate, of no clinical indication, but insufficient. It's not a red herring, it's a crucial aspect of the finding. That distinction is crucial in my submission."
14. In response to the above submission Ms Lowson for the HCCC submitted: "LOWSON: Your Honour, can I just say that s 61HB(2) they are in the alternative, so the matters to be taken into account they're not cumulative, they don't all have to be found. So it's whether the area of the body touched or doing the touching is the person's genital area, anal area or breasts, whether or not they're sexually developed and regardless of the person's gender or sex, or whether the person does the touching is doing it for the purposes of obtaining sexual arousal or whether any other aspect makes it sexual."
15. Ms Lowson further provided a submission addressing the Anti-Discrimination legislation she had referred to earlier. She said: "But sexual harassment is what is defined, but it's defined at s 22A of the Anti-Discrimination Act 1977 NSW, as "(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person." So the phrase "sexual nature" appears and it has been considered in that Act or in decisions under that Act."
16. The Tribunal asked the parties legal representatives to assist by providing further written submissions which addressed, inter alia, the following: "The meaning to be applied by the Tribunal to the words "Conduct of a sexual nature" as set out in Particular 4 of Complaint One filed by the HCCC on 9 April 2020". That request was incorporated into the Directions made by the Tribunal on 13 September 2022.
17. Counsel for the HCCC asked the Tribunal about the requirement for that further request in the following words which we have extracted from the transcript of 13 September 2022: "LOWSON: Can I just verify, this is underlying your request and I think it's helpful but underlying it is an ongoing concern about whether or not the HCCC's proposition, that is, that particular 4 can stand and have meaning without sexual motivation forming part of it that that's why you want us to explore it because of that issue. HIS HONOUR: Yes. LOWSON: If it does stand alone, what does that mean? What does that mean if it stands alone? When I say stands alone, if it has meaning without sexual motivation being part of it, what does that mean? Those are the two things that the tribunal is grappling with. HIS HONOUR: Exactly, yes. LOWSON: That's helpful, your Honour."

Submission of the HCCC dated 27 September 2022

1. On 27 September 2022 the HCCC provided its written submission following the hearing on 13 September 2022 and as directed by the Tribunal. In that submission the HCCC addressed the meaning to be applied to the words "conduct of a sexual nature" as set out in Particular 4 of Complaint One. At the conclusion of that submission the HCCC set out the following under the Heading "The Clinical Context" and the heading "Conclusion". "The clinical context 15. In King v. Health Care Complaint Commission [2011] NSWCA 353 Handley JA with whom McColl JA agreed, referring to digital vaginal examinations stated:- 150. These intimate examinations would only be non-sexual if they were performed, even if incompetently, for proper clinical purposes. [emphasis added] 16. In the case of a medical practitioner, whether or not a sexual connotation can be assumed or whether behaviour can be characterised as being of "a sexual nature" involves consideration of all the circumstances in which the behaviour occurs. Unlike criminal matters, the Tribunal is considering the practitioner's conduct in the context of whether the conduct falls significantly below the standard of the practitioner's peers, and as in this case, often has expert evidence about how the conduct is to be assessed, and whether it falls significantly below the standard expected. The Tribunal is conducting an inquiry, and the rules of evidence do not apply. Accordingly, while judgments from criminal and anti-discrimination jurisdictions may be useful, ultimately the Tribunal is considering a Particular of a complaint that Dr Robinson engaged in conduct that fell significantly below the standard (and has accepted Dr Campbell's evidence in that regard). The Particulars are intended to give notice to the practitioner of the elements of the conduct relied upon to make out the breach of s.139B(1)(a) or (l) - they are not statutory provisions. 17. In Yildirim, [1] which dealt with a complaint of inappropriate conduct of a sexual nature towards a patient. Considering the circumstance of conduct of a sexual nature the Tribunal said: [2] Medical examinations or health treatments may, obviously, involve intentional touching or exposure of sexual organs. Whether such touching or exposure is lawful or appropriate depends on all the circumstances including, at least, the patient's condition, the objective of the investigations or treatment, the informed consent of the patient or client and the need for or desirability of the touching or exposure, and accepted methodologies for carrying out the treatment or investigation in question. 18. The Tribunal considered that the ulterior motive of a person acting in a way which gave rise to "sexual connotations" was irrelevant. [3] 19. The case of Jamnagarwalla [4] considered whether the touching of a 12-year-old girl on her bare upper thigh, about 12cm from her vagina for up to eight seconds with no clinical or other reason for doing so constituted inappropriate behaviour of a sexual nature. The Tribunal considered that the question was one of fact. 20. Citing Yildirim, the Tribunal said that: [5] It is not necessary for the Commission to prove that Dr Jamnagarwalla was motivated by sexual gratification or that these actions were intended to arouse sexual desire for the actions to amount to inappropriate behaviour of a sexual nature. 21. In the Western Australian case of Chiropractic Board of Australia v Ebtash [6] the State Administrative Tribunal found a chiropractor to have committed professional misconduct by inappropriately touching five female patients. The Tribunal said: [7] In the context of chiropractic treatment, the expert evidence in this case confirmed that some treatment may require the practitioner to touch a patient on, or very near to, an intimate part of their body, such as a woman's breasts. If such a clinical justification exists, the conduct cannot properly be characterised as sexual in nature, and thus will not involve the sexual exploitation of the patient. However, when there is no clinical justification for touching a patient on, or very close to, an intimate part of their body, such as their breasts, or genitalia, even if that touching occurs through clothing, then the circumstances will warrant close scrutiny to determine if the practitioner's conduct can properly be characterised as sexual in nature. 22. In Ebtash, the Tribunal rejected submissions for the practitioner that in order for the Board to establish that the inappropriate conduct was of a sexual nature it had be sexually motivated. 23. The Tribunal found that the practitioner's motivation for providing certain treatments did not have a sexual intent. However, and relevantly, the Tribunal did not accept: [8] that that finding in turn precludes a finding that the conduct in question was conduct of a sexual nature. As we have explained, having taken all of the evidence into account, we are satisfied that the Board has established that the conduct was conduct of a sexual nature, quite apart from any question of Dr Ebtash's motivation for engaging in that conduct. [emphasis added] Conclusion 24. In essence the breast examination was of a sexual nature because it involved touching a part of the body that is inherently sexual, unless the breast examination was for a proper medical purpose. The applicant's position is that whether the breast examination was for a proper medical purpose is an objective test and that having accepted Dr Campbell's evidence, the Tribunal must find that the breast examination was not clinically indicated and therefore was conduct of a sexual nature. 25. Alternatively if the Tribunal rejects the applicant's submission, then the Tribunal must determine whether the fact that the Tribunal accepted that Dr Robinson believed that the breast examination was clinically indicated has the consequence that the conduct was not sexual in nature. The following extracts from the first decision are relevant:- 252 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. 258. 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. 262.. (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. (2) 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. 26. As set out in the Further Submission dated 12 September 2022 (which the applicant continues to rely on), if the Tribunal determines against the applicant and finds that the proper medical purpose is to be considered by reference to Dr Robinson's belief that the breast examination was clinically indicated, then it must scrutinise the reasonableness of that belief - because there is little doubt from Patient A's evidence that out of the whole experience it was the breast examination that she found invasive and disturbing and, to use the language of the Anti- Discrimination Act, unwelcome."
2. The Respondent, with the consent of the HCCC, was granted additional time by the Tribunal to provide his final submission. That submission was received on: 14 October 2022.

Submission of the Respondent dated 14 October 2022.

1. The submission of the Respondent is titled "The Respondent's Supplementary Submission regarding the meaning of "sexual nature" following remit from the court of appeal". (We note the direction made on 13 September 2022 required submissions to address: "the meaning to be applied by the Tribunal to the words "Conduct of a sexual nature" as set out in Particular 4 of Complaint One filed by the HCCC on 9 April 2020" which was in fact addressed in the submission").
2. During the time the parties were making their submissions on 13 September 2022 we asked if the parties were able to direct us to any decision of this Tribunal or other court or tribunal exercising civil jurisdiction, where the words "conduct of a sexual nature" had been considered. In answer to that request the Respondent set out the following in his submission of 14 October 2022:
3. As submitted previously by the respondent: 4. "… The Commission's primary and supplementary submissions which argue that ipso facto contact with the intimate area of a patient's body (in this case the breasts), is conduct of a 'sexual nature,' finds no support in the relevant authorities and in fact is contrary to relevant authorities. 5. The correct analysis of the authorities relied upon by the Commission is that context and intent are matters relevant to proof of whether conduct is 'sexual in nature'. That is particularly so where the conduct when considered in its context, is ambiguous. In such circumstances the actions, accompanying words, explanation and purpose given by the respondent directly inform proof of whether the conduct can be categorised as sexual in nature. 6. There are three key findings by the Tribunal which are directly relevant to the issue of context and intent and which we submit must result in a failure by the Commission to meet its onus of proof regarding conduct of a sexual nature. First, the Commission's failure to prove that there was no clinical indication for the examination, the Tribunal preferring to find that there was insufficient clinical indication (Tribunal Decision [189], [252], [262(1)(2)], [224]) which is a material distinction when considering the cases the Commission relies upon. Second, the Tribunal's finding that the respondent 'really did see the examination as warranted for medical purposes' and was unaware through lack of knowledge or personal awareness that it was at that time inappropriate for him to have conducted the examination': Tribunal Decision [225], [258]. Third, a failure by the Commission to prove that the examination was for a purpose other than a medical purpose: Tribunal Decision [264]. 7. The respondent repeats the submission that the Tribunal could not be satisfied to the requisite standard that there is a category of conduct which absent proof of any subjective sexual purpose or intent by the respondent may, in the context of the practise of medicine, constitute conduct of a sexual nature. The following remarks by Simpson AJA at [104] in the Appeal Decision are apposite and repeated: "It may be acknowledged that the proposition put by the Commission is not self-evidently correct. It is not entirely easy to conceive of "inappropriate conduct of a sexual nature" towards a nominated patient, constituted by an admittedly inappropriate breast examination with insufficient clinical indication, as other than sexually motivated." 8. Simpson AJA comments were not made in the context of an appeal that argued that the Tribunal's finding of no sexual intent was unreasonable, irrational or illogical. The only interpretation of paragraph [104] of the Appeal Decision is that the Court of Appeal has foreshadowed the Commission's difficulty with proof of Particular 4, absent proof of intent. We interpret paragraph [104] of the Appeal Decision as supporting a finding that sexual purpose is an integer of 'sexual nature'. The onus lies with the Commission to prove otherwise. 9. A similar sentiment as that expressed by Simpson AJA was expressed by Beazley P in Health Care Complaints Commission v Sultan [2018] NSWCA 3030 [sic] (Sultan) at [102]: "The difficulty I have with the HCCC's submissions on these grounds of appeal is that, quite apart from the case run before the Tribunal, they were based on an underlying assumption that certain conduct was "sexual in nature", because the conduct related to the touching of a sexual organ or involved a sexual reaction. 10. We interpret this passage as questioning the Commission's position that breast touching is ipso facto sexual in nature rather than what in fact is the case, namely that the Commission must prove that such an interpretation is the only available one. 11. The expression 'sexual nature' is not defined in the National Law or any other relevant legislation. The Oxford University Dictionary defines 'sexual' as 'relating to the instincts, physiological processes, and activities connected with physical attraction or intimate physical contact between individuals.' 'Nature' is defined as 'the basic or inherent features, character, or qualities of something'. The respondent accepts that the definition of each word and in combination permits a finding that the touching of breasts (or any other sexual organ) is capable of being conduct of a sexual nature, but not necessarily so. It remains an evaluative judgment on the available evidence, and to that end, an examination of context and intent are essential. The respondent then addressed matters arising from the Criminal Law which may help inform the meaning of the words: "Conduct of a sexual nature." In so doing the Respondent again referred to the words of Beasley P in the decision of Sultan. There her honour had said at [94] : "I have not found the decision in Harkin to be of particular assistance, except that it makes the point, as is self-evident, that conduct must be considered in context. In the case of an interaction between a medical practitioner and patient, context and circumstances, including the nature of and how a medical examination is undertaken, are of critical importance." [Emphasis added]
4. The Respondent submitted that the reference to "Harkin" in the decision of Sultan, as above set out, is to the decision of R v Harkin (1989) 38 Crim R 296. The Respondent submitted that: "Her honour had set out the following at paragraph [92] and [93] in Sultan: 92. Macfarlan JA, at [66], in drawing assistance from the criminal law extracted the following passage from Harkin v R (1989) 38 A Crim R 296 at 301 per Lee CJ at CL: "It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault ... if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent ... The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification." (emphasis added) 93. The HCCC emphasised the observation in Harkin which is bolded in the passage set out above."
5. The Respondent then addressed s 61KC of the Crimes Act 1900 (NSW) as follows: 'Indecency'/ 'sexual touching' in a criminal law setting 14. Section 61KC of the Crimes Act 1900 (NSW) has replaced the old offence of indecent assault. Sexual touching is defined under s. 61HB as follows: 61HB Meaning of "sexual touching" (1) For the purposes of this Division, sexual touching means a person touching another person - (a) with any part of the body or with anything else, or (b) through anything, including anything worn by the person doing the touching or by the person being touched, in circumstances where a reasonable person would consider the touching to be sexual. (2) The matters to be taken into account in deciding whether a reasonable person would consider touching to be sexual include - (a) whether the area of the body touched or doing the touching is the person's genital area or anal area or (in the case of a female person, or transgender or intersex person identifying as female) the person's breasts, whether or not the breasts are sexually developed, or (b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or (c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual. (3) Touching done for genuine medical or hygienic purposes is not sexual touching. 15. In short, s. 61HB (2) makes plain that context and intent remain matters relevant to proof of an offence of 'sexual touching'. The criminal law does not lend support to the Commission's argument that ipso facto contact with a woman's breasts is 'sexual' in nature. When considering how the objective 'reasonable' person would categorise the conduct, s. 61HB (2) requires the decision maker to evaluate context and intent before making findings of guilt on 'sexual touching'.
6. The Respondent referred to the decision in R v Zaidi 57 A Crim R 189 which he said: "highlighted the significance of the evaluation of the 'penetrators' subjective intention and context."
7. In that decision the following words of Priestly JA (with whom Allen and Badgery-Parker agreed) stating at [209] are set out as follows: "I do not see from the materials in the appeal papers that it was ever clearly brought to the jury's attention that for them to find the appellant guilty of the sexual intercourse charges, it was necessary for them to find beyond reasonable doubt that the appellant did not have, subjectively, a proper medical purpose in penetrating the patients in his examinations of them." [Emphasis added]
8. Before reviewing decisions found in Criminal Law, the Respondent submitted the following: "19. There is no basis for the disciplinary prosecution of a medical practitioner to adopt a different approach by removing intent and context when considering inappropriate conduct of a sexual nature. We note that section 3A of the National Law mandates that the paramount consideration is the protection of the health and safety of the public and note that section 3A must be read alongside section 3(3)(a) which states that "the scheme is to operate in a transparent, accountable, efficient, effective and fair way." To remove considerations of context and intent from proof of whether conduct is inappropriate conduct of a sexual nature would offend the terms of the statutory regime in which the prosecution is brought. The public is not protected by the incorrect categorisation of conduct. By removing context and intent, misguided or incompetent conduct on the part of a practitioner would be incorrectly categorised as nefarious or sexual in the absence of evidence to support such a finding."
9. The Respondent then examined cases in the Criminal Law. He set out an extensive and directed review of decisions which he submitted provided insight into the meaning which should be given to the words "conduct of a sexual nature".
10. In relation to the decision in R v Court [1988] 2 All ER 221 and R v Harkin (1989) 38 A Crim R 296. The Respondent submitted: "20. The decisions of R v Court [1988] 2 All ER 221 (Court) and R v Harkin (1989) 38 A Crim R 296 (Harkin) are of assistance in considering whether to accept the Commission's submission that the touching of a woman's breast is ipso facto inappropriate conduct of a sexual nature. Both decisions fail to support the Commission's submission as both decisions raise context and intent as relevant factors for consideration in assessing when conduct can be categorised as 'indecent'."
11. The Respondent then addressed in detail each of the decisions in Harkin and Court.
12. Having referred to the above decisions, the Respondent submitted: "29. What should be understood from a careful analysis of the above is that indecency must always import a question of intent. Sometimes, the conduct is so unequivocally sexual in nature and devoid of any possible rational explanation, that intent can be readily inferred, and accordingly, no independent positive finding is required. Alternatively, where the impugned conduct is equivocal, a positive finding of sexual intent is required to inform the indecency in that conduct. So much was said by his Honour in summarising the extracts of Court above, in Harkin where his Honour Lee CJ at CL said at [302]: Their Lordships in that case, however, were dealing with a case of the spanking of a little girl by a man of 26 years of age and they expressed a view, which I would summarise in this way, that where the alleged assault is one which is equivocal, in the sense that it may have a sexual import or it may not, then before the assailant can be convicted it must be shown that he intended it to have a sexual connotation, that is to obtain sexual gratification from it. [Emphasis added]"
13. The Respondent then submitted: "32. It would be inconsistent with the authorities to determine inappropriate conduct of sexual nature (or indecency) by a purely objective test limited only to the conduct itself and the body part examined. This is particularly dangerous in a medical practitioner-patient setting. This was identified in R v Hayward [2019] QCA 91 (Hayward), which in turn considered the cases of R v Drago (1992) 63 A Crim R 59 (Drago) and R v Jones (2011) 209 A Crim R 379 (Jones)."
14. The Respondent then revied the decisions of Hayward and Jones.
15. The Respondent concluded his submission on the Criminal Law with the following submission: "38. The respondent submits that the above analysis of the authorities in the criminal law clearly rebuts the Commission's submission that as breasts are 'inherently sexually' any touching of them has been proved to the Briginshaw standard as 'inappropriate conduct of a sexual nature'."
16. The Respondent then addressed the topic "Application of 'indecency' in disciplinary proceedings." He referred to the decision of the Court of Appeal in King v Health Care Complaints Commission [2011] NSWCA 353 (King). The Respondent submitted: "40. In King, the Court accepted that some guidance could be provided as to what constitutes 'sexual conduct' from the interpretation of indecency in criminal law. However, Macfarlan JA emphasised that 'care' needs to be taken in applying Harkin, which was a criminal case, to the case of a medical practitioner. His Honour said at [67]: It is often part of a medical practitioner's role to touch a person's genitals, breast, or anus. Whilst it may be able to be assumed in other contexts that such touching almost always invariably has a sexual connotation, the same cannot be assumed in the case of a medical practitioner. In that case an objective determination of whether the conduct had a sexual connotation has to be made. [Emphasis added] 41. As to what constitutes an 'objective determination', Macfarlan JA then quoted the following passage from R v McIntosh (NSW Court of Criminal Appeal, 26 September 1994, unreported): To say that the test is an objective one does not mean that the alleged act of indecency must be considered divorced from its surrounding circumstances. These circumstances may show that what otherwise would be indecent was not - for example, an examination of a woman's vagina, ordinarily an indecent act when conducted by a stranger, would not be indecent if conducted by the woman's medical practitioner for medical purposes. The 'surrounding circumstances' include the intention or purpose of the alleged wrongdoer. If the medical practitioner in the example given was conducting the examination not to treat his patient but for his own sexual gratification the examination would be an indecent act. [Emphasis added] 42. What is plain from the Court of Appeal's decision in King is that context is once again, essential. An objective assessment of the circumstances surrounding the impugned conduct, in the context of a practitioner-patient relationship, must necessarily include the intention or purpose of the practitioner. (Emphasis added.)
17. By way of summary (after addressing the facts in the decision of Sultan) the Respondent submitted: "45. The appellate decisions of King, and Sultan, fail to support the Commission's contention that the touching of a breast is ipso facto inappropriate conduct of a sexual nature. Both decisions in fact speak to the relevance of considering the totality of the evidence/context and intent in determining whether sexual nature has been proved."
18. The Respondent submitted that absent intent, the facts and circumstances of this case, fails to establish proof of Particular 4.
19. The Respondent then addressed decisions of the Tribunal at first instance regarding "sexual nature". The Respondent submitted: "47.The Commission directs the Tribunals attention to a number of first instance disciplinary decisions before the Medical Tribunal, which they contend support the inference that principally, sexual intent is not required to establish that conduct is of a sexual nature. A cautionary note must be made regarding what weight if any the Tribunal places on these decisions which are not binding and do not in fact lay down principles of law."
20. The Respondent then addressed the decision in Yildirim which we have referred to earlier in these reasons. The Respondent submitted: "51. Ultimately, the Tribunal in Yildirim did find that the conduct was of a sexual nature. What was key to their finding is found at [180] namely, "[d]evoid of any cogent innocent or exculpatory explanation, such as necessity, automatism or accident, it is more probable than not that Mr Yildirim's conduct was inappropriately sexual and directed, obviously, towards Patient A." At [179] the Tribunal said: The conduct engaged in by Mr Yildirim was not accompanied by any words of a sexual nature but, in our view, it was unmistakeably conduct of a sexual nature. Lifting clothing or underwear off a person's body generally requires intentional effort. To intentionally lift a person's underwear so that their genitals are exposed, without their consent and without a clinical reason for doing so, is, prima facie, inappropriate sexualised conduct. [Emphasis added]"
21. The Respondent then referred to the Tribunal's decision in Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61 (Jamnagarwalla).
22. The Respondent submitted in relation to Jamnagarwalla: "55. In Jamnagarwalla, the Tribunal interpreted the decision in Yildirim to mean that it was not necessary to prove sexual intent (expressed as sexual motivation or gratification or arousing sexual desire) for the conduct to amount to behaviour of a sexual nature: see [110]. It is respectfully submitted that such a conclusion was in error and failed to appreciate the full context in which the comments at [176] in Yildirim were made. In any event, the decision is in no way binding on this Tribunal."
23. The Respondent then set out submission in relation to the decision of Chiropractic Board of Australia v Ebtash [2020] WASAT 86 (Ebtash).
24. The Respondent submitted the decision related to a practitioner who was alleged to have touched patients through their clothing in close proximity to breasts, genitals and mons pubis. Bringing patients into contact with his groin and removing a patient's clothing to expose her mons pubis. The Respondent submitted: "57. Relevantly, the Tribunal found that there was no clinical indication for all of the alleged conduct, there was no basis to suggest it was inadvertent or accidental, and there was no evidence which explained the conduct, and which might contradict a suggestion that it was conduct of a sexual nature."
25. The Respondent further submitted in relation to the decision in Ebtash: "While the Tribunal in Ebtash expressly concluded that they were satisfied that the conduct was of a sexual nature, "quite apart" from any question of the practitioner's motivation, the use of the expression 'motivation' is in reference to the specific position contended for by the 'Board'. The Board led evidence that the practitioner's 'motivation' in providing complimentary chiropractic treatments to cast members of the show (being the patients) was to provide him the opportunity to touch them with a sexual intent. The Tribunal rejected this specific motivation. They then went on to say, in that context, that the rejection of that finding did not preclude them from finding nonetheless, that the conduct was of a sexual nature (see [1018] - [1020]). 59. Nonetheless, what is apparent from the Tribunal's reasoning process is that they considered the facts and context of the impugned conduct, in that they took into account at [1015] - [1017]: a. There was no clinical basis for any of the instances of conduct; b. The denial of the allegations meant there was no basis to consider whether it may have been accidental or inadvertent; c. The denial of the allegations meant there was no basis to consider whether there was any other explanation for the conduct; and d. The denial of the allegations meant there was no basis to consider whether there was any evidence to contradict that it was 'conduct of a sexual nature'."
26. The Respondent concluded his submission on the decision in Ebtash with the following: "61. The importance of the process of reasoning expressed by the Tribunal above, is that it reflects a position consistent with the need to examine the facts and context of the impugned conduct. The decision fails to support the Commission's contention that sexual nature can be inferred solely by reference to the touching of an intimate part of the body."
27. The Respondent then turned his attention in his written submission to a consideration of "Expressions of 'sexual nature' in other jurisdictions".
28. Under that heading, the Respondent provided the following submission which is concise and we include it here: "62. The expression 'sexual nature' is found in that form in two other areas of law, namely the Anti-Discrimination Act 1977 (NSW) and the Sex Discrimination Act 1984 (Cth). Both use it within defining 'sexual harassment', in mostly identical terms (the difference being immaterial) being that sexual harassment includes "other unwelcome conduct of a sexual nature in relation to the person harassed." 63. In the context of its meaning in the Sex Discrimination Act, the guiding authority is Poniatowska v Hickinbotham [2009] FCA 680, where Mansfield J said at [294]: The term "conduct of a sexual nature" is not defined other than inclusively in the SD Act. The content of the term "of a sexual nature" must take its meaning from its context. Its context includes s 28A(1)(a), referring to sexual advances or requests for sexual favours. Section 28A(1)(b) and (2) is intended to extend the circumstances of sexual harassment beyond the scope of s 28A(1)(a), but I think it involves some conduct which invites or otherwise explores the prospect of the object of such conduct participating or engaging in some form of sexual behaviour or which suggests that the object of such conduct may have done so or may do so, or is a person of a character empathetic to such behaviour. It is not necessary or appropriate to set the outer bounds of "conduct of a sexual nature". It does not, in my view, extend to encompass the conveying of an instruction given to another employee not to engage in sexual harassment, even if the message is conveyed in coarse and sexually explicit language. [Emphasis added] 64. Section 28A of the Sex Discrimination Act is as follows: 28A Meaning of sexual harassment (1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. (2) In this section: conduct of a sexual nature includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing. 65. In Ford v Ingham Enterprises Pty Ltd (No 3) [2020] FCA 1784 (Ford), the Court applied the reasoning in Poniatowska v Hickinbotham. The facts in Ford surrounded inter alia allegations that two co-workers act(s) had slapped the complainant on his buttocks. In applying the definition of sexual nature, they concluded that the conduct did not constitute conduct of a sexual nature. This was due to the context of the actions and the apparent absence of sexual intent. 66. The definition in Poniatowska v Hickinbotham was also embraced in the context of the Anti-Discrimination Act 1977 in Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147 (Yelda). The Commission draws the Tribunal's attention to the supplementary decision of her Honour, McCallum JA (in agreeing with the primary decision of Bell P and Payne JA), specifically where her Honour expressed the following at [125]: One of the arguments in support of ground 5(a) was that the depiction in that context of a woman feeling great because she lubricates could not amount to sexual harassment because its sexualised message was not "explicit". The sexualisation of women in the workplace often isn't. Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome. [Emphasis added] 67. Relevantly, what can be discerned from her Honour's comments above is that she is confirming that the circumstances in which conduct occurs, including accompanying conduct which might imply intent is relevant to inform whether conduct is sexual in nature."
29. The Respondent then concluded his final submission with the heading "Conclusion." Under that heading we note the following.
30. The Respondent submitted: "68. When careful consideration is given to how 'sexual nature' has been defined in decisions of the Court of Appeal in the context of disciplinary proceedings, together with the cases which were used to inform that categorisation (in the criminal law), the only finding is that an integer of 'sexual nature' is 'sexual intent.' The respondent submits that in the absence of a finding of sexual intent, the Tribunal cannot be comfortably satisfied that the impugned conduct is of a sexual nature." "…. it cannot rationally follow that, simply, as a matter of law, touching a sexual organ or intimate area of the body (e.g., breast, genitals, anus) assessed objectively and devoid of any context can prima facie establish that conduct is of a sexual nature." "The facts of this case demonstrate that the impugned conduct reflected poor judgement, skill and care." The Respondent's "exercise of poor judgement or care towards Patient A (s. 139B(1)(a)) falls under the term 'incompetence' as contemplated in the authorities outlined above, in particular the decision of King." 74. Finally, as to the discrete submission made by the Commission in the final paragraph of their submissions on the reasonableness of the respondent's belief regarding the indication for the breast examination, we note that Patient A did not give evidence that she found the breast examination invasive or disturbing. As this is the extent to which the Commission re-agitates the argument as to reasonableness of the belief, we repeat and rely on our previous submissions of 12 September 2022 from paragraph 30 to 46."

The Court of Appeal Judgment and the instruction which flows from the orders made.

1. We now turn to consider the provision of the Court of Appeal decision which instructs and guides us in this further hearing which has been directed.
2. In paragraph [22] of the decision, Leeming JA stated as follows: "Turning to the merits of the appeal, as Simpson AJA explains in more detail, the Commission complains that the Tribunal failed to determine whether as it contended a practitioner who examined the complainant's breasts without there being a valid indication to do so, but also without a sexual motivation, committed professional misconduct. That case was not determined by the Tribunal. Not doing so was an error of law. Indeed it amounted to jurisdictional error: see Petch v Director of Public Prosecutions (NSW) [2022] NSWCA 33 at [46] and [48]. On that basis the appeal should be allowed and the matter remitted to the Tribunal. I agree with the balance of her Honour's reasons."
3. Turning then to the decision of Simpson AJA, we note the following paragraphs: Ground 4 111.By ground 4 the Commission's complaint, again, is that the Tribunal failed to take into account a "relevant consideration", the "relevant consideration" on this ground being the reasonableness of the view held by the respondent that the breast and abdomen examinations were clinically indicated. 112. Counsel for the Commission did, in the Tribunal, address, at some length, the issue of whether there was any clinical indication for the breast and/or abdomen examinations. The respondent maintained that there was a clinical reason for the examinations, although, by the conclusion of the proceedings, he accepted (as did the Tribunal) that such medical indication as there was was inadequate to justify the examination. The Tribunal expressly accepted that, at the time of the examinations, the respondent believed that they were clinically indicated. It did not examine the reasonableness of that belief. Nor was it asked to do so. At no point in the written submissions made to the Tribunal was any question of the reasonableness of the respondent's belief raised. 113. It may be that some reference to the reasonableness of the respondent's belief can be read into the oral submissions. Counsel is recorded in the transcript as saying: "We're saying if it's not clinical [sic] indicated, then he should not have done it, and if his belief, if it wasn't clinically indicated, then that in itself is inappropriate. You then have to look at how serious was it. As I see it, his case is, well, I reasonably believed it was clinically indicated, so it's not as serious as you would otherwise see it. We say, no, that belief was not reasonable, and therefore it is serious. So it's on the question of the seriousness, which goes to the question of professional misconduct, rather than [unsatisfactory professional conduct], that the reasonableness issue arises, and many of the matters that we rely on the [sic] say that it wasn't clinically indicated at all are also relevant to the assessment of the reasonableness of his belief." 114. I would accept that the reasonableness of a medical practitioner's erroneous belief that a medical justification exists for a procedure may be directly relevant to "the knowledge, skill or judgment possessed" by the practitioner, all of which are factors in s 139B(1)(a) (the definition of unsatisfactory professional conduct), and therefore, by extension, whether the unsatisfactory professional conduct in terms of s 139B(1)(a) is sufficiently serious to justify suspension or cancellation of the practitioner's registration. It would take a generous approach to the submissions extracted above to interpret them as raising questions of "knowledge, skill or judgment possessed" by the respondent and it is not, therefore, surprising that the Tribunal did not address the submissions in those terms. This ground should not be upheld. That does not mean that the issue is not one that could, and should, be addressed in the new inquiry that must take place.
4. In the decision of the Court of Appeal we note the following passages as setting the parameters for this further hearing:
5. The judgment of the Court of Appeal traced through the Tribunal's findings and conclusions as set out in our earlier decision. It set out some of the findings which were necessary to consider in the determination of the HCCC's appeal. In particular at paragraph [66] of the Court of Appeal's reasons, paragraphs 259 and 264 of our judgment have been set out as follows: [66] "259 Nonetheless 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'." The Tribunal then made the following findings: "(1) ...the examination was not clinically indicated [this was a reference to both the breast and abdominal examinations]. (2) ...Dr Robinson did believe at the time of the investigation that it was clinically indicated [this was a reference to the breast examination]. (3) ...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. (4) ...[Dr Robinson'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. (5) ...Dr Robinson should not have conducted the breast and abdominal examination himself, as he now concedes. (6) ...the consent obtained by Dr Robinson from Patient A could not be regarded as 'informed' for the reasons we have stated." (The expression "breach" of s 139B(1)(a) was and is inapposite, but was borrowed directly from written submissions made by the Commission) 68. The Tribunal then observed that the balance of the questions posed by the Commission were matters "better addressed in Stage 2 of this hearing". The Tribunal went on to consider whether the established (and admitted) conduct of the respondent was of a sufficiently serious nature to justify suspension or cancellation of his registration and concluded: "...the conduct falls slightly short of meeting that criteria [sic]." The Tribunal therefore concluded that Complaint 3, of professional misconduct, was not made out to its satisfaction. 69. The Tribunal concluded its Reasons with the following: "264 ...we accept that the [Commission] 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."
6. In the above extracted paragraphs from our judgment, we accept we have confined our consideration of Complaint Three to our findings which were there set out and that it included our finding that we were not satisfied, on the requisite standard, that the Respondent had carried out his examination of Patient A for his own personal sexual gratification. We did not apply our minds fully to a consideration of whether, absent satisfaction of sexual motivation, the reasonableness of the Respondent's view that the examination of Patient A was clinically indicated, impacted on the seriousness of his conduct which was conceded by him to amount to unsatisfactory professional conduct. We did not consider whether the reasonableness of the Respondent's view, when considered with the other matters we did consider when addressing and determining Complaint Three, raised the level of seriousness to one where it was of "sufficiently serious nature to justify suspension or cancellation of the practitioner's (the Respondent's) registration.
7. As noted by the Court of Appeal in paragraph [87], the appeal was limited to the Tribunal's rejection of the Commission's case that the Respondent was guilty of professional misconduct.
8. Appeal ground 1(a) was found by the Court of Appeal to be more "properly be seen as the assertion of a failure by the Tribunal to exercise jurisdiction because it failed to advert to and deal with 'a substantial, clearly articulated argument relying upon established facts.'" From paragraph [99] of the judgment the Court of Appeal set out: Earlier, counsel had said: "...if the physical examinations were inappropriate, then in the case of the breasts, then because of the fact that breasts are intrinsically sexual, we say that the conduct was sexual in nature, and that is a different question than in respect of whether Dr Robinson was sexually motivated, they are separate issues in my submission, and again I will return to the question of sexual motivation."
9. Later, in her submissions in reply to those made on behalf of the respondent, counsel reiterated, by reference to "Particular 4", that the respondent's conduct was "inappropriate" because there was no clinical reason to conduct a breast examination, a woman's breasts are inherently sexual, and therefore conducting a breast examination in the absence of a clinical reason to do so is "conduct that is sexual in nature" with or without a sexual motive. This was a theme repeated throughout the proceedings.
10. The Presiding Member's appreciation of the point made on behalf of the Commission, expressed at the opening of the inquiry, is not reflected in the Reasons. In each of the paragraphs of the Reasons extracted above, the Tribunal equated "inappropriate conduct of a sexual nature" with conduct that is sexually motivated. That is, perhaps, most clearly seen in [223], where the Tribunal stated its understanding of the Commission's case as being that touching of a woman's breasts by a medical practitioner without adequate clinical basis: "...must be seen as for an improper purpose ... to satisfy the practitioner's sexual urge, or for him to obtain sexual gratification from same." This was the very proposition from which the Commission had been at pains to dissociate itself.
11. The same misunderstanding is evident in [222], where the Tribunal interpreted Particular 4 as: "...to cover the proposition ... that [the respondent] conducted the examination to satisfy his own sexual need, that he conducted the examination to obtain gratuitous sexual satisfaction.", in [224], where the Tribunal was not satisfied that the respondent conducted the examination: "...either in part or in its entirety, for his own personal gratification." and in [227] where, notwithstanding the Commission's express distancing of itself from an allegation of sexual motivation, the Tribunal addressed the question of sexual motivation in terms that indicated that its inability to find such a motivation was dispositive of the Commission's argument.
12. These passages demonstrate clearly that the Tribunal failed to deal with a "substantial, clearly articulated argument" advanced by the Commission. Ground 1(a) succeeds.
13. The Court of Appeal found that it was unnecessary to decide what was described as Ground 1(b), namely, as stated in paragraph 92: "Ground 1(b) asserted error of law by the Tribunal in failing to take into account a mandatory consideration, that being an objective assessment of how a patient in the position of Patient A could have perceived (or "experienced") the breast and abdomen examinations when performed by an ophthalmologist. On its face, ground 1(b) also raised a question of law, but could only succeed if the Commission was correct in characterising the consideration on which it relied as "mandatory"".
14. Paragraph [104] we have set out earlier and we do not repeat it here.
15. The Court of Appeal determined Grounds 2 and 3 of the Appeal should be rejected.
16. Ground 4 of the Appeal addressed the HCCC complaint that the Tribunal failed to take into account a "relevant consideration", namely "the reasonableness of the view held by the Respondent that the breast and abdomen examinations were clinically indicated." The Court said: "The Tribunal expressly accepted that, at the time of the examinations, the respondent believed that they were clinically indicated. It did not examine the reasonableness of that belief. Nor was it asked to do so."
17. In relation to the above extracted passage, Simpson AJA said in paragraph 114: "I would accept that the reasonableness of a medical practitioner's erroneous belief that a medical justification exists for a procedure may be directly relevant to "the knowledge, skill or judgment possessed" by the practitioner, all of which are factors in s 139B(1)(a) (the definition of unsatisfactory professional conduct), and therefore, by extension, whether the unsatisfactory professional conduct in terms of s 139B(1)(a) is sufficiently serious to justify suspension or cancellation of the practitioner's registration. It would take a generous approach to the submissions extracted above to interpret them as raising questions of "knowledge, skill or judgment possessed" by the respondent and it is not, therefore, surprising that the Tribunal did not address the submissions in those terms. This ground should not be upheld. That does not mean that the issue is not one that could, and should, be addressed in the new inquiry that must take place." (emphasis added.)
18. Clearly, if raised for consideration by the parties, the Court intended we should address the above identified issue.
19. We conclude from the decision of the Court of Appeal and in particular the passages quoted above, that we are required to determine, that which was not determined by us in our decision published 14 September 2021. We are also required to determine that which has been identified by paragraph 114 of the judgment.

Determination

1. We first turn to determine what we are required to address in these reasons. Each of the parties have made submissions setting out what is to be addressed. We have set out those submissions earlier in these reasons. We have also ourselves considered the reasons provided by the Court of Appeal in its decision. We have set out those portions of the judgment which we understand prescribe to task now being undertaken by us.
2. We firstly note the Court of Appeal required "The whole of the Application for Disciplinary Findings and Orders filed by the HCCC on 9 April 2020 to be reconsidered" with the parameters of that requirement to be restrained only by the words "in accordance with these reasons".
3. There was some difference between the parties as to what the Court of Appeal envisaged by the words "in accordance with these reasons" as above recited. As set out earlier by us, the HCCC submitted the requirement of the Court of Appeal fell within three separate areas. Those are: 1. The consideration of whether or not the breast examination that the respondent conducted on Patient A was sexual in nature (Court of Appeal judgment at [103]); 2. How the reasonableness of the respondent's belief that a chest, breast and abdominal examination were clinically indicated is relevant to the assessment of the knowledge, skill or judgment possessed by the respondent (Court of Appeal judgment at [114]); and 3. Revisiting the question of whether or not the unsatisfactory professional conduct found proven amounts to professional misconduct."
4. The Respondent set out his contention as to the matters the Court of Appeal required the Tribunal to consider as follows. We have drawn and summarised from a very detailed submission, that which we understand to be the "bones of the argument", without losing sight of important matters included in the submission: 1. Notwithstanding the decision by the Tribunal in relation to the intention of Dr Robinson in conducting the breast examination, does the conduct of itself as found (and admitted) regarding the breast examination of Patient A, nonetheless amount to proof of Particular 4, namely that the Respondent 'engaged in inappropriate conduct of a sexual nature towards Patient A by reason of his actions as set out at Particular 2(a)-(e)'? (the breast examination): Appeal Decision: [91-103]. 2. If the answer to (i) above is yes and noting the findings of the Tribunal of unsatisfactory professional conduct, does proof of Particular 4, amount to unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration to amount to professional misconduct in isolation, or in combination with other proved Particulars? 3. If the answer to (i) above is no, consideration need only be given to (iv) below. 4. Irrespective of the findings on (i) above, based on the Tribunal's finding that the respondent believed (albeit erroneously) that the breast, chest and abdomen examinations were clinically indicated, does the reasonableness of that belief (or lack thereof) inform the gravity of the unsatisfactory professional conduct (regarding conduct that demonstrates knowledge, skill, judgment and care significantly below the standards expected) so as to amount to unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration and amount to professional misconduct? Appeal Decision [114] noting [111-113].
5. In relation to the words contained in the order of the Court of Appeal, the Respondent submitted: "We understand that to mean that the issue of whether unsatisfactory professional conduct under both sec 139(1)(a) and (l) and professional misconduct under sec 139E are to be reconsidered in the context of and limited to the matters raised in the Respondent's submission. (We have set those matters out in paragraph 107 (a) to (d) above.)
6. It is common ground, that the first matter to be determined by us, is the matter we accept we had not determined in our earlier judgment, in this matter, namely: "Whether, notwithstanding our finding that the breast examination of Patient A, conducted by the Respondent, was not sexually motivated, we could, none the less find, as was stated in Particular 4 to Ground 1 of the Complaint Application, "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)."
7. To give Particular 4 its full components, we here set out Particular 2(a) to (e). "2. During the consultation at the Practice the practitioner inappropriately conducted a breast examination on Patient A in that he: 1. requested Patient A remove her top; 2. requested Patient A remove her bra; 3. 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; 4. 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; 5. 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."
8. In our earlier decision made 15 September 2021, we found at paragraphs 225 and 226 the following: 225 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. 226 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.
9. When considering this remit from the Court of Appeal we wish to note the following. 1. The HCCC was, in our view, when framing the Complaint Application it filed on 9 April 2020, entitled to view the evidence which it had at that time, suggested strongly, that the Respondent had conducted the breast and abdominal examination of Patient A, in the manner he admits occurred, for his own sexual gratification and for insufficient or no medical purpose. 2. Before the hearing commenced and really until the Respondent had given any written or oral evidence, his case had not been made known to the HCCC in any formal sense. An attempt was made by the Respondent to provide his evidence in an affidavit with the protection of a certificate given under s.128 of the Evidence Act, however, the application filed by the Respondent seeking that certificate, prior to the commencement of the hearing before us, was unsuccessful. 3. It was not until the Respondents case was closed that the true nature and extent of his response to the Application was available for the HCCC to consider. 4. It was our understanding, arising from the cross-examination of the Respondent that the HCCC was pressing its' case that the Respondent had conducted the physical examination of Patient A's beasts and abdomen for his own sexual gratification. Additionally, there was no clinical indication for that examination. (as set out in Particular 3 to Complaint One).
10. The words "inappropriate conduct of a sexual nature towards Patient A" import, at first glance, the notion of intention to carry out an action which is sexual, upon Patient A. That seems to us to be the thrust of what Simpson AJA said in paragraph 104 of the Court of Appeal judgment, namely: "It may be acknowledged that the proposition put by the Commission is not self-evidently correct. It is not entirely easy to conceive of "inappropriate conduct of a sexual nature" towards a nominated patient, constituted by an admittedly inappropriate breast examination with insufficient clinical indication, as other than sexually motivated. However, it was an argument clearly advanced to the Tribunal, constituted as prescribed by s 165B(2) of the National Law, and one that the Commission was entitled to have addressed by the Tribunal as constituted."
11. In his final submission the respondent again drew our attention to the decision in the matter of Health Care Complaints Commission v Sultan [2018] NSWCA 303 (Sultan). The respondent pointed to the use of the same words in the Complaint which had been brought by the HCCC in that case against the practitioner, namely: "conduct of a sexual nature". In that decision we have noted the following arising from the judgment of Beasley P., with whom Simpson AJA agreed. Meagher JA delivered a separate judgment.
12. The decision of Meagher JA, (as the headnote to the decision stated), concluded: "Per Meagher JA in separate reasons: (iii) The Tribunal was not rationally compelled to assume that all contact with a woman's breast which, objectively assessed, is medically inappropriate or unnecessary, is inherently sexual. Its reasoning, including as to the involuntariness of Dr Sultan's arousal and his discomfort and embarrassment after becoming aroused, was transparent, intelligible and defensible on the evidence. Thus, its conclusions were not unreasonable: [172]."
13. Because the decision in Sultan mirrors similar issues to those faced by us in this determination, we have included hereafter, larger extracts from the decision than might ordinarily be set out in the decisions of the Tribunal.
14. The decision, as delivered by Beasley P (with whom Simpson AJA agreed) included the following: Health Care Complaints Commission v Sultan [2018] NSWCA 303 Beazley P Judgment paragraph's 3 and 4 3. The HCCC, by an amended notice of appeal, has appealed pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29 against the Tribunal's finding that it was not satisfied that professional misconduct had been established pursuant to the National Law, s 139E. The appeal is on a question of law only. If the appeal is upheld, the HCCC seeks that the matter be remitted to the Tribunal for reconsideration. 4. The HCCC's amended complaint filed in the Tribunal are set out below. It is sufficient to note at this point that, as argued, the appeal concerned two central contentions: first whether, as particularised, the respondent's conduct in visiting and examining Patient A in the surgical ward at the Shoalhaven District Memorial Hospital (the Hospital) on 24 October 2013, "was inappropriate behaviour of a sexual nature towards Patient A", in the sense that it was intentionally sexual; and secondly, whether the Tribunal erred in failing to determine whether the complaints as admitted or proved taken either individually, together or in any combination were such that the respondent's conduct amounted to professional misconduct. … Facts: 12.The respondent told Patient A that he wished to check her stomach and breathing, and she agreed. At the respondent's request, the patient sat up on the bed with her back facing the head of the bed and her legs on the bed. The respondent sat directly behind her at a 45 degree angle with his feet touching the floor and carried out a respiratory examination. In conducting this examination the respondent placed his stethoscope under the hospital gown on Patient A's back. He then moved the stethoscope under her right arm to the top of her breastbone and to two or three other places down the breastbone and under the patient's breast. The respondent noticed that he had become sexually aroused, and moved away from the bed. He moved his hand in the direction of his penis. 13.Patient A went to the bathroom and stayed there for around 10 minutes. When she re-entered the room, the respondent was reading Patient A's clinical notes. He informed her that he needed to remove the cannula in her right arm and proceeded to do so. This took around five minutes. The respondent then left the room. He did not make any record of his attendance or treatment of Patient A in the hospital notes. The respondent agreed before the Tribunal that he should not have examined or treated Patient A without first obtaining approval from the surgical team. The Complaint included. 18. The Particulars to Complaint One were as follows: … (2) Sometime between 10:30 pm and midnight on 24 October 2013, in circumstances where he was not part of Patient A's treating team, the practitioner woke Patient A and: (a) informed her he wanted to check her 'breathing and stomach'; (b) proceeded to conduct a chest examination of Patient A; (c) ... (d) engaged in the conduct referred to at (a) and (b) above when there was no clinical basis or need to conduct such an examination at the time it was carried out. (3) During the course of the chest examination conducted on 24 October 2013, the practitioner failed to maintain appropriate professional boundaries in that he sat on Patient A's hospital bed, positioning himself very close behind Patient A, and: (a) used his right hand to position a stethoscope under Patient A's hospital gown beneath her bare right breast; (b) brushed his hand across Patient A's bare right breast on more than one occasion and up to five times, in circumstances where it was not necessary for him to have contact with Patient A's breast to conduct the examination; (c) became sexually aroused; (d) engaged in inappropriate behaviour of a sexual nature towards Patient A, by reason of his actions at (a) - (c) above alone or in any combination. … Further: (3) During the course of the chest examination conducted on 24 October 2013, the practitioner failed to maintain appropriate professional boundaries in that he sat on Patient A's hospital bed, positioning himself very close behind Patient A, and: (a) used his right hand to position a stethoscope under Patient A's hospital gown beneath her bare right breast; (b) brushed his hand across Patient A's bare right breast on more than one occasion and up to five times, in circumstances where it was not necessary for him to have contact with Patient A's breast to conduct the examination; (c) became sexually aroused; (d) engaged in inappropriate behaviour of a sexual nature towards Patient A, by reason of his actions at (a) - (c) above alone or in any combination. (4) On 24 October 2013, immediately following the chest examination and after having become sexually aroused, the practitioner failed to maintain appropriate professional boundaries in that he: (a) stood up and remained in close proximity to Patient A; (b) ... (c) made a movement with his hand in the area of his penis; … Further Complaint Three 20. Complaint Three alleged that the respondent had engaged in professional misconduct under the National Law, s 139E in that he had: "i. engaged in unsatisfactory professional conduct of a sufficiently serous nature to justify suspension or cancellation of the practitioner's registration, 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." 21. The Complaint was particularised in the following terms: "Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively." The respondent's pleaded response 22. The respondent admitted some, but not all, of the particulars of the Complaints. 23. The respondent admitted Complaint One, Particulars 1(a), (b), (d) and (e). He did not admit 1(c), saying that his visit to Patient A was initially "a social call" which then became a consultation. He admitted that his conduct in Particular 1 amounted to unsatisfactory professional conduct. 24. The respondent admitted Complaint One, Particulars 2(a) and (b), but did not admit 2(d). In response to that particular, the respondent admitted that there had been no need to conduct the medical examination, but did not concede that there was no clinical basis for it. However, he admitted that his conduct in Particular 2 amounted to unsatisfactory professional conduct. 25. The respondent made a general qualified admission to Complaint One, Particular 3, in that he stated he "now admit[s]" this conduct. He said that he "believed at the time" that he was carrying out the respiratory examination in accordance with proper procedure, but that in view of Dr Golding's report, he accepted that his "manner of examination was not appropriate in the circumstances and was a failure to maintain appropriate professional boundaries". Dr Golding was a specialist in Emergency Medicine and provided an expert report for the purposes of the Tribunal hearing. 26. The respondent admitted Particulars 3(a) and (c). In response to Particular 3(b), he admitted the conduct, but pleaded that he had not deliberately brushed his hand against Patient A's breast, but "may have inadvertently and briefly" done so in the course of the stethoscope examination. 27. The respondent did not admit Particular 3(d) and further responded to that particular in the following terms: "There was no intent on my part to sexualise the visit or the medical examination I conducted. I regret that I became sexually aroused but this was not the result of any intention by me to engage in any sexual behaviour. I was embarrassed by my arousal and I promptly ceased the examination when I realised I was aroused." … 31. The respondent admitted the conduct alleged in Complaint Two and its particulars and that it amounted to unsatisfactory professional conduct. The respondent did not admit Complaint Three and in further response to it maintained that it was not his "intention to seek sexual gratification from Patient A". … The appeal Although there were five separate grounds of appeal, there were, as I have said, two central issues, namely whether the respondent had a sexual motivation in visiting and examining Patient A, which was the subject of appeal grounds 4 and 5; and whether the Tribunal had failed to apply the correct legal test for professional misconduct or failed to take into account a relevant consideration, as contended in appeal ground 1. Appeal grounds 3 and 6 were also relevant to the overall determination of the appeal. Appeal ground 2 was withdrawn. 45. It is convenient to commence the determination of the appeal by reference to ground 6, which challenged the Tribunal's failure to consider the respondent's evidence that he experienced sexual gratification when he undertook the examination of Patient A. Although not directly relevant to grounds 4 and 5, it is nonetheless relevant to the question whether the respondent's conduct and reactions in undertaking the examination of Patient A on 24 October 2013 had a specifically sexual connotation. Material relevant to ground 6 also provides a context for certain submissions that were made in respect of grounds 4 and 5. … Whether the Tribunal erred in finding that Complaint One, Particulars 3(d) and 4(d) had not been made out: appeal grounds 4 and 5 63. In grounds 4 and 5, the HCCC contended that the Tribunal's finding that it was not satisfied, in respect of Complaint One, Particulars 3(d) and 4(d), that the respondent's inappropriate behaviour was sexual in nature towards Patient A, was "unreasonable, irrational and/or illogical". The HCCC emphasised that the conduct the subject of Particular 3(d) related to conduct that occurred during the course of the chest examination. The conduct the subject of Particular 4(d) concerned the respondent's conduct after the examination, but whilst he was still in the surgical ward with Patient A. 64. Before embarking upon the consideration of these grounds, it is necessary to observe that there was a dispute between the parties first, as to whether implicit in Particulars 3(d) and 4(d) was an allegation that the respondent's visit to Patient A was sexually motivated and involved sexualised conduct and secondly, whether the HCCC had conducted its Complaint before the Tribunal on that basis. The HCCC accepted that if the Court was satisfied that these Particulars involved allegations of conduct that involved the respondent having a sexual motivation or intention towards Patient A, then it would fail in respect of grounds 4 and 5, as that case had not been proved. 65.The HCCC's position on the appeal was that in order to establish that the respondent's behaviour was "inappropriate behaviour of a sexual nature", as alleged in each of Particulars 3(d) and 4(d), it only needed to establish that a "basic feature or character or quality" of the act was sexual. In this regard, it relied upon the Oxford living online dictionary definition of "nature" to mean "basic, inherent feature, character or quality". 66. …The HCCC submitted that the Particulars did not allege intentional sexual conduct and that this had not been its case before the Tribunal. In support of this, the HCCC referred to the chapeau to Particulars 3 and 4 which alleged a failure to maintain appropriate professional boundaries. ... 68. The respondent submitted that it was apparent from the way in which Particulars 3(d) and 4(d) were framed, that implicit in each was an allegation of sexual intention or motivation. The respondent submitted that this was apparent from use of the word "engaged" in each particular, together with the phrase "towards Patient A". … 87 It is clear from the Tribunal's findings at [40]-[41], set out above at [38]-[39], that it had understood the complaint made in Particular 3(d) was that the manner in which the respondent touched Patient A's breast was "sexual in nature" and that the respondent had a "sexual motivation in this examination". The Tribunal had understood Particular 4(d) to also involve a sexual intent or purpose: see reasons at [45]. The Tribunal rejected that that case had been made out in respect of either particular. The physical acts and responses: the examination, the touching of the breasts, the erection, and the moving of his hand towards his penis, were of course, admitted. The Tribunal found that the examination was conducted ineptly and was ill-advised and that the erection was involuntary and spontaneous. 88. The Tribunal held that it had not been established, in respect of that conduct, that the respondent had "engaged in inappropriate behaviour of a sexual nature towards Patient A". ... 90.The HCCC acknowledged that unless this Court accepted its contention that no element of intentional sexual conduct was involved in these particulars, appeal grounds 4 and 5 would fail. ... 93. The HCCC emphasised the observation in Harkin … 94. For myself, I have not found the decision in Harkin to be of particular assistance, except that it makes the point, as is self-evident, that conduct must be considered in context. In the case of an interaction between a medical practitioner and patient, context and circumstances, including the nature of and how a medical examination is undertaken, are of critical importance. (Emphasis added.) 95. Any medical examination involves intentional conduct. The intentional conduct particularised was "inappropriate conduct of a sexual nature towards Patient A". However, the allegation in Particular 3 was that the respondent "failed to maintain appropriate professional boundaries in that he sat on Patient A's hospital bed" and "engaged in inappropriate behaviour of a sexual nature towards Patient A" by reason of one or more of the actions particularised. The complaint in Particular 4 was the same, except that the conduct constituting the failure to maintain professional boundaries was the conduct particularised as "after having become sexually aroused". (Emphasis added.) 96. Notwithstanding the ambiguity of the wording "engaged in inappropriate behaviour of a sexual nature towards Patient A" in Particulars 3(d) and 4(d), when construed in the context of the chapeau and each of the particularised acts and reactions, there is some force in the HCCC's contention that the Complaint it brought against respondent did not plead intentional sexual conduct. (Emphasis added.) 97. However, that is not the way, or not the only way, in which the Complaint was conducted before the Tribunal. It is apparent from the HCCC's opening, set out above at [69], that the gravamen of its case advanced in these particulars was that the respondent had intended to sexualise his interaction with Patient A or had a sexual intention in undertaking the examination. There is also the absence of any response to or correction of the respondent's counsel's submission referred to above at [70]. 98. When regard is then had to the HCCC's closing submissions, there is nothing in them that dissuades me that the case as conducted was that the respondent had a sexual intent in conducting the examination. Indeed, it is to the contrary, as I explain below. It is not irrelevant that the closing submissions were in writing, so it cannot be argued that there was a slip of the tongue or any ambiguity in those submissions. 99. The sexual intent alleged was given particular emphasis in the submission that "what [the respondent] described was not a chest examination but an intimate embrace". This submission cannot be dismissed as a mere advocate's flourish. In my opinion, it demonstrates that at the front and centre of the HCCC's conduct of the Complaint before the Tribunal was that the respondent had intentionally engaged in sexual conduct towards Patient A. 100. As already stated, the HCCC conceded that unless this Court was satisfied that its case was not, or at least was not confined to, a complaint of intentional sexual conduct towards Patient A, then grounds 4 and 5 would fail. As I have indicated, I do not accept that the case as it was conducted before the Tribunal was based on the respondent's interaction with Patient A being "conduct of a sexual nature" either of itself or resulting in sexual arousal, being "inappropriate behaviour of a sexual nature". The case sought to be made before the Tribunal was of intentional sexual behaviour towards Patient A. The HCCC cannot complain if the Tribunal based its decision on the case that was actually and, indeed, emphatically run. 101. But even if the case against respondent did not involve an allegation of intentionally sexualised conduct, the Tribunal's rejection of Particulars 3(d) and 4(d) could not be said to be unreasonable, irrational or illogical, as grounds 4 and 5 allege. A medical examination may involve touching a patient's sexual organs. A breast examination is the classic example. It could not be said in that circumstance that the medical practitioner who undertook such an examination "engaged in conduct of a sexual nature". This is apparent from Dr Golding's evidence. Whilst Dr Golding was highly critical of the respondent's conduct, including that he had become sexually aroused during the examination, it is apparent from his evidence that that is not only a possibility that can occur during the course of a doctor/patient relationship, but that is something that must be managed. 102. The difficulty I have with the HCCC's submissions on these grounds of appeal is that, quite apart from the case run before the Tribunal, they were based on an underlying assumption that certain conduct was "sexual in nature", because the conduct related to the touching of a sexual organ or involved a sexual reaction. In the same vein were the HCCC's submissions that the movement of the respondent's hand in the area of his penis "was inherently sexual in nature" and its complaint that the Tribunal did not examine whether an "inherent or basic feature of that conduct was sexual", but rather had only focused on whether the respondent had "an intention or a purpose ... to produce a sexual arousal". 103. The HCCC submitted that the sexual nature of the conduct was highlighted by considering the context in which it occurred, particularly in that it followed the respondent's examination of Patient A in which he touched her breasts. However, the Tribunal's focus was understandable, having regard to the way the case was run. It would be repetitious to explain again why this was so.
15. In Health Care Complaints Commission v Jamnagarwalla [2022] NSWCATOD 61 the facts were as follows: Overview 1 The Health Care Complaints Commission (the Commission) has applied for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (National Law) in relation to a registered medical practitioner, Dr Jamnagarwalla. These reasons for decision relate to three separate proceedings which we will call Proceedings 1, Proceedings 2 and Proceedings 3. Evidence in one proceeding is evidence in each of the other proceedings. These proceedings are Stage 1 proceedings only. We will decide on any appropriate protective orders after a separate hearing. Summary of events and issues raised 2 The first proceeding relates to a consultation on 29 November 2018 with Patient A who was 12 years old. She was accompanied by her female cousin (Person A) who was 17 years old. The most serious allegation in these proceedings is that when seated in front of Patient A and examining her ears with an otoscope, Dr Jamnagarwalla inappropriately placed his left hand on Patient A's bare right upper thigh and brushed his left hand down her right leg. That conduct, as well as other conduct including staring at the bare legs of Patient A and Person A is said to amount to conduct of a sexual nature. The Commission maintains that, because of that conduct, as well as responding inappropriately when Patient A's legs started shaking, Dr Jamnagarwalla has engaged in unsatisfactory professional conduct and professional misconduct. 3 Dr Jamnagarwalla does not recall any details of the consultation and denies that he would have engaged in any of the alleged conduct. … 11 The parties filed a Statement of Agreed Facts, but there are significant factual issues in dispute. Dr Jamnagarwalla does not admit the particulars in Proceedings 1 and denies any recollection of the consultation with Patient A and her cousin, Person A. Consequently, all the allegations relating to that consultation are in dispute. Dr Jamnagarwalla admitted unsatisfactory professional conduct in Proceedings 2 and 3. One contentious issue in those proceedings is whether Dr Jamnagarwalla knew at the time that he was in breach of the condition not to treat female patients. While it is not necessary for the Commission to prove that Dr Jamnagarwalla deliberately flouted the condition, that question is relevant to the seriousness of the conduct. Dr Jamnagarwalla denied that he engaged in professional misconduct in relation to all three proceedings. 12 In cross-examination, questions can be asked which are relevant to a witness' credibility generally as well as to the reliability of particular evidence. The answers to those questions may bear on a witness' truthfulness, bias, motivation to be untruthful, perceptions or memory. 13 We accept those aspects of Dr Jamnagarwalla's evidence that are supported by his contemporaneous clinical notes or other independent documentary evidence. With minor exceptions, we have found each of the allegations that he denies to have been proven. We provide further reasons for accepting or rejecting Dr Jamnagarwalla's evidence throughout these reasons, but will deal with one issue now. … Unsatisfactory professional conduct 21 After making factual findings, we must decide whether what happened amounts to unsatisfactory professional conduct as defined in the National Law. 22 For Proceedings One, Complaint One, Particulars 1, 2, 3 and 4 the Commission alleges that Dr Jamnagarwalla is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. Section 139B(1)(a) defines unsatisfactory professional conduct to include: 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. 23 When deciding whether Dr Jamnagarwalla is guilty of unsatisfactory professional conduct under s 139B(1)(a) we must do so against the standard reasonably expected of a practitioner of an equivalent level of training and experience. Throughout these reasons we will refer to that standard as the "relevant" standard. 24 Dr Jamnagarwalla was well trained and very experienced during the period covered by the complaints. In 1997, he completed a Doctor of Medicine in Tanzania. On 26 June 2003, Dr Jamnagarwalla was first registered as a medical practitioner in Queensland and worked there between 2003 and 2005. On 14 June 2005, Dr Jamnagarwalla was first registered as a medical practitioner in NSW. Between 2005 and 2012, Dr Jamnagarwalla worked as a general practitioner in NSW. In 2008, he completed a Fellowship of the College of General Practitioners. In January 2012, Dr Jamnagarwalla started working as a general practitioner in a group practice in Sydney. 25 As well, or alternatively, the Commission alleges that Dr Jamnagarwalla is guilty of unsatisfactory professional conduct under s 139B(1)(l) in that he has engaged in "improper or unethical conduct". The kind of conduct described in s 139B(1)(a) relates to Dr Jamnagarwalla's "knowledge, skill or judgment" whereas s 139B(1)(l) identifies "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". However, the same conduct can amount to unsatisfactory professional conduct under s 139B(1)(a) or s 139B(1)(l) of the National Law: Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [59]- [66]. As well, an accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct: Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102]. … Proceedings 1, Complaint 1- consultation on 29 November 2018 Particulars of the complaint and Dr Jamnagarwalla's reply The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has: i. engaged in conduct that demonstrated the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice of medicine. 1. During the consultation, while sitting close to Patient A and Patient B, the practitioner inappropriately stared at the bare legs of Patient A and Person B and attempted to look up their skirts in circumstances where: a. The practitioner knew that Patient A was 12 years old; (admitted) b. The practitioner was told that Person B was 18 years old; (admitted) c. Patient A had not previously had a consultation with the practitioner; (admitted) d. Patient A complained of an ear ache and sore throat; (admitted) e. Patient A and Person B were both seated and wearing short denim skirts; (not admitted) f. There was no clinical indication to look at the legs of Patient A or Person B. (admitted) 2. During the consultation, while sitting close to Patient A with his legs apart, the practitioner leaned across her body to examine her ears with an otoscope and inappropriately placed his left hand on Patient A's bare right upper thigh and brushed his left hand down her right leg in circumstances where: a. The practitioner knew that Patient A was 12 years old; (admitted) b. Patient A had not previously had a consultation with the practitioner; (admitted) c. Patient A complained of an ear ache and sore throat; (admitted) d. The practitioner did not seek permission to touch Patient A's upper thigh; (admitted) e. There was no clinical indication to touch Patient A's upper thigh. (admitted) 3. During the consultation, the practitioner failed to properly respond when Patient A's leg began to shake in circumstances where: a. The practitioner did not sufficiently acknowledge that her shaking could be an indicator of potential discomfort; b. The practitioner did not sufficiently explore whether Patient A was comfortable to proceed. Not admitted. 4. By reason of the actions in Particulars 1-2 above, individually or in combination, the practitioner engaged in inappropriate behaviour of a sexual nature towards Patient A and/or Person B. Not admitted. … Factual finding and unsatisfactory professional conduct? 105 The significant evidence against the allegation in Proceedings 1, Complaint 1, Particular 2 is Dr Jamnagarwalla's testimony that he would not have placed his left hand on Patient A's bare right upper thigh and brushed his left hand down her right leg. Against that is the oral evidence of Patient A, Person A and Person B and the documentary evidence to which we have referred. Both Patient A and Person A gave direct and definite testimony about what happened. None of the circumstances we have outlined above materially detracts from their account. 106 For the reasons we have given, we are satisfied by the evidence of Patient A and Person A, that in the circumstances outlined in the complaint, and when examining Patient A's ears with either an otoscope or a thermometer, Dr Jamnagarwalla placed his left hand on Patient A's bare right upper thigh and brushed his left hand down her right leg. 107 We agree with the opinions of both the experts that this conduct is significantly below the relevant standard and is unethical. For the reasons we give below, it amounts to "inappropriate behavior of a sexual nature". 108 We find this complaint to have been proven. Does the proven conduct, in Proceedings 1, Complaint 1, Particulars 1 and 2, either individually or in combination amount to "inappropriate behaviour of a sexual nature" towards Patient A and /or Person A? 109 A code or guideline, approved by a National Board, is admissible as evidence of what constitutes appropriate professional conduct or practice for the health profession: National Law, s 41. At the time of the consultation with Patient A in November 2018, one relevant guideline was the Medical Board of Australia's publication 'Sexual Boundaries: Guidelines for doctors,' October 2011. That document defines "sexualised behaviour" as including "any words or actions that might reasonably be interpreted as being designed or intended to arouse sexual desire". Dr Jamnagarwalla challenged the categorisation of the impugned conduct as sexual in nature. 110 Whether the conduct engaged in by Dr Jamnagarwalla is inappropriate conduct of a sexual nature towards Patient A is a question of fact. We have found that Dr Jamnagarwalla touched a 12-year-old girl on her bare upper thigh, about 12cm from her vagina, for up to eight seconds, with no clinical or other innocent reason for doing so. He also inappropriately stared at the bare legs of Patient A and Person B and attempted to look up the skirt of Person A. It is not necessary for the Commission to prove that Dr Jamnagarwalla was motivated by sexual gratification or that these actions were intended to arouse sexual desire for the actions to amount to inappropriate behaviour of a sexual nature. As Britton DP said in Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 at [176] - [180]. at [176]: In short, a person may behave in an apparently sexualised way towards another for a variety of reasons. ... The ulterior motive for doing so is irrelevant. If conduct is self-evidently sexualised due to the combination of the act and the circumstances, it adds nothing to probe or speculate about the inner workings of the mind of the actor. ..." (Emphasis added)
16. As stated earlier the Respondent submitted paragraph 110 of the decision in Jamnagarwalla misstates the conclusion reached in Yildirim. The Respondent submitted: "In Jamnagarwalla the Tribunal "interpreted the decision in Yildirim to mean that it was not necessary to prove sexual intent (expressed as sexual motivation or gratification or arousing sexual desire) for the conduct to amount to behaviour of a sexual nature: see [110]". The Respondent submitted that: "Such a conclusion was in error and failed to appreciate the full context in which the comments at [176] in Yildirim were made. In any event, the decision is in no way binding on this Tribunal."
17. We do not accept the above submission, because of the words which are contained in paragraph 110 of Jamnagarwalla, above set out, as quoted from the decision in Yildirim. Those words, which we have emphasised in paragraph 110 of the decision, reflect the decision of the Court of Appeal in Sultan. The emphasis is on the requirement for conduct to be "considered in context". That important consideration is framed slightly differently in Yildirim as: "If conduct is self-evidently sexualised due to the combination of the act and the circumstances". (Emphasis added)
18. In any event the facts found in Jamnagarwalla are quite different to the findings we made in our earlier decision in relation to Dr Robinson. In Jamnagarwalla the allegations made by the patient against the practitioner were denied by the practitioner and accepted by the Tribunal. The "acts and circumstances" as found in Jamnagarwalla were quite different to the "acts and circumstances" which we have found in relation to Dr Robinson. There could be no clinical basis for the acts alleged and established against Dr Jamnagarwalla. There was no attempt to argue that the actions could have had a clinical basis in the examination of a 12-year-old female presenting with the particular complaint which the patient had in that case. In any event Dr Jamnagarwalla's evidence before the Tribunal was that he would not have acted in the manner alleged against him.
19. The Respondent then considered the decision of Chiropractic Board of Australia v Ebtash [2020] WASAT 86. The published decision is very long and we have endeavoured to set out below, that which we consider to be relevantly applicable to the current determination from that decision. 2. The Chiropractic Board of Australia (Board) seeks an order or orders, pursuant to s 196(1)(b) of the Health Practitioner Regulation National Law (National Law)[2] that Dr Ebtash has behaved in a way that constitutes professional misconduct, or alternatively unprofessional conduct or unsatisfactory professional performance. [2] The National Law is set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (HPRNLWA Act), and applies as a law of Western Australia: s 4(1) of the HPRNLWA Act. 3. There are three planks to the Board's case against Dr Ebtash. The first, and most serious, comprises allegations set out in grounds 1 to 5 of the Board's Substituted Application (Application) that in the course of chiropractic consultations with five female patients (complainants), Dr Ebtash engaged in conduct which was either inappropriate conduct of a sexual nature, or clinically inappropriate and below the standard reasonably expected of a chiropractor of an equivalent level of training or experience. In summary, the inappropriate conduct is said to have involved either touching the complainants' breasts (through their clothing) or their genitals (through their clothing), touching the complainants' body in close proximity to their genitals, or in one case, leaning a complainant back into Dr Ebtash's body so that the front of his pelvis and groin were pressing against her buttocks (through her clothing). The Board alleges that Dr Ebtash failed to obtain the consent of each complainant to the particular touching alleged. The Board also alleges that there was no proper clinical justification for Dr Ebtash to touch each complainant in this way. The Board contends that in so conducting himself, Dr Ebtash acted in breach of s 9.1 and s 9.2 of the Board's Code of Conduct for Chiropractors (Code). 4. Dr Ebtash denies that he touched the complainants in the manner alleged by the Board in grounds 1 to 5 of its Application, either in a manner amounting to inappropriate sexual conduct, or in an inappropriate clinical manner which was below the professional standard required of him. Dr Ebtash maintains that he obtained proper consent to touch the complainants in the manner in which he in fact touched them.[3] … 10. For the reasons which follow, we are satisfied that the Board has proved the allegations in grounds 1 to 5 and 6 to 7 of the Application, and we find that Dr Ebtash has engaged in conduct that constitutes professional misconduct, and unsatisfactory professional performance, respectively, for the purposes of the National Law. ... 979. We have found that there was no clinical justification for Dr Ebtash to touch KM's breasts in the course of treating her vertigo with the Epley manoeuvre. ... 985. We have also found that there was no clinical justification for Dr Ebtash to touch JL, through her clothing, on her breast, or for him to touch her, through her clothing, on the clitoris, labia majora or the outside of her vagina. … 989. We have also found that there was no clinical justification for Dr Ebtash to touch the left hand side of LN's labia, through her clothing, in the manner we have found, or for him to massage her breasts, through her clothing, in the manner we have found. ... 992. Further, we have found that there was no clinical justification for Dr Ebtash to pull MT's pants down so far as to expose her mons pubis. ... 995. We have also found that there was no clinical justification for Dr Ebtash to have undertaken the anterior humerus technique in such a way that MS's buttocks would come into contact with his groin. … Characterisation of Dr Ebtash's conduct ­ grounds 1 to 5 of the Application 1008. It is not necessary to explore all of the circumstances in which section 9.2(a) may operate in relation to the sexual exploitation of patients. For present purposes, it suffices to say that it is clear that section 9.2(a) conveys that a chiropractor must ensure that his or her relationship with a patient does not involve any interaction of a sexual nature, character or connotation, or any conduct which is otherwise undertaken for the sexual gratification of the practitioner. 1009. All of the circumstances must be taken into account to determine whether the practitioner's conduct has resulted in the patient being exploited in a sexual manner. Some conduct has an inherently sexual connotation. By way of example, circumstances of an inherently sexual character or connotation may be found to have existed when a person touches another a person, without consent, on an intimate part of their body, or touches a person with an intimate part of their own body.[1209] The criminal law recognises, for example, that an accused may touch a complainant in such an intimate manner that that touching will be considered inherently indecent. In those circumstances, the element of indecency will be made out by the mere application of the touch to that intimate body part, without consideration of motive or purpose.[1210] (Emphasis added.) 1010. Circumstances of a sexual character or connotation may also be found where a person is found to have touched a person, without consent, with a motive or purpose of sexual gratification.[1211] 1011. In the context of chiropractic treatment, the expert evidence in this case confirmed that some treatment may require the practitioner to touch a patient on, or very near to, an intimate part of their body, such as a woman's breasts. If such a clinical justification exists, the conduct cannot properly be characterised as sexual in nature, and thus will not involve the sexual exploitation of the patient. However, when there is no clinical justification for touching a patient on, or very close to, an intimate part of their body, such as their breasts, or genitalia, even if that touching occurs through clothing, then the circumstances will warrant close scrutiny to determine if the practitioner's conduct can properly be characterised as sexual in nature. 1015. As we have already noted, we have found that there was no clinical justification for any of these instances of conduct. 1016. In the present case, Dr Ebtash denied the conduct alleged. There was, therefore, no basis to consider whether each of the relevant instances of his conduct in relation to the complainants might have been inadvertent or accidental. Furthermore, there was no other evidence from which an explanation for the conduct could be discerned, to contradict the conclusion that the touching was conduct of a sexual nature. In particular, because Dr Ebtash denied that the touching occurred at all, this was not a case in which his purpose or motive, for each instance of touching the complainants, arises for consideration. 1017. Having taken all of the circumstances disclosed by the evidence into account, we are satisfied that each of the instances of conduct in relation to the complainants, which are summarised at [978] ­ [999], was conduct of a sexual nature, and was conduct which was prohibited by section 9.2(a) of the Code. 1018. Counsel for Dr Ebtash submitted that in order to succeed, the Board had to establish not only that the alleged inappropriate conduct was of a sexual nature, but also that that conduct was sexually motivated. He submitted that that the Board had led evidence as to Dr Ebtash's sexual motivation, namely that he offered complimentary chiropractic treatment to the cast members after he had seen the Show, which contained elements of sexual innuendo, and that the Board had not advanced the case merely as one involving opportunistic conduct of a sexual nature.[1212] [1212] ts 789-790. 1019. We rejected (at [80] ­ [81]) the Board's contention that Dr Ebtash's motivation for providing complimentary chiropractic treatments was to provide him with the opportunity to touch the female cast members with a sexual intent. The fact that Dr Ebtash provided complimentary chiropractic services to the cast members, thus has a neutral role as one of the circumstances surrounding the treatment of the female cast members. 1020. However, we do not accept the submission by counsel for Dr Ebtash that that finding in turn precludes a finding that the conduct in question was conduct of a sexual nature. In grounds 1 to 5 of the Application, the Board alleged that the conduct was 'inappropriate conduct of a sexual nature'. As we have explained, having taken all of the evidence into account, we are satisfied that the Board has established that the conduct was conduct of a sexual nature, quite apart from any question of Dr Ebtash's motivation for engaging in that conduct.
20. In Ebtash, it can be seen that the practitioner denied the conduct complained of. There was no attempt to establish a proper clinical basis for the conduct the subject of complaint. We have added emphasis to paragraph 1009 of Ebtash. The first sentence again emphasises that "all of the circumstances must be taken into account" when considering if "the patient is being exploited in a sexual manner."
21. The Respondent referred us to the decision of the Court of Appeal in King v Health Care Complaints Commission Complaints Commission [2011] NSWCA 353 (King). In particular, the Respondent quoted from the dissenting judgment of Macfarlan JA. The dissenting judgment addressed "(i) whether the Tribunal accorded procedural fairness to the appellant in respect of its findings of sexual misconduct".
22. Although the portion of the judgment of Macfarlan JA, as relied upon by Dr Robinson in this determination, was probably obiter to the decision required, it nonetheless addressed matters which arise in this determination now facing the Tribunal.
23. In the King decision we have noted the following passages. In the judgment of McColl JA: 12. The proposition that the vice of the Medical Tribunal's finding that the appellant was guilty of misconduct in moving his finger(s) in and out of the vaginas of patient B and patient D when that detail was not particularised in the Notice of Complaint was seized upon by counsel for the appellant when it emerged after questions from the Bench. The absence of reference to that issue in either the notice of appeal or the written submissions prior to appeal is, in my view, telling against the proposition that the appellant was not aware of the significance of those parts of patient B and patient D's statements containing those allegations. 13. Further, insofar as the appellant's original complaint is concerned, there could be no doubt, in my view, that the allegation in the Notice of Complaint that the appellant was guilty of unsatisfactory professional conduct and/or professional misconduct in that he had, inter alia, "engaged in improper or unethical conduct relating to the practice of medicine" coupled with the allegation that he "had inserted his finger(s) into [patient B's and patient D's] vagina for an extended period and contrary to recognised clinical standards" was an allegation of a sexual nature. Practically speaking, this clearly put the appellant on notice that he had to meet such a case. The elaboration of that conduct by reference to the movement of his hands in patient B and patient D's statements, was a particular of what occurred during the "extended period". 14. In my view, neither the appellant nor his legal advisors could have been under any misapprehension as to the significance of the complaints concerning the insertion of (and movement of) the appellant's finger(s) in the patients' vaginas in the context of the proceedings before the Medical Tribunal. If there was no clinical basis for that conduct, then its sexual nature was manifest: Harkin v R (1989) 38 A Crim R 296." (Emphasis added.) In the judgment of MacFarlan JA: "64. The appellant's second submission on the procedural fairness point was that none of the conduct that the Tribunal found constituted "inappropriate sexual conduct" or "sexual impropriety" (Decision [56]) was alleged in the Notice of Complaint to have been sexual conduct and that this omission precluded the Tribunal finding that it was so characterised. This submission is in my view also well-founded. As the appellant submitted, the Notice of Complaint does not allege that any of the particularised conduct of the appellant constituted sexual conduct. 65. The parties implicitly accepted on the appeal that guidance as to what constitutes sexual conduct in the present context can be obtained from decisions in the field of criminal law concerning indecent assault. 66. In Harkin v R (1989) 38 A Crim R 296, Lee CJ at CL (with whom Wood and Mathews JJ agreed) said the following: "It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas. Thus, if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case of a mature man of 38 and a girl of 11 years and nine months that should or should not be regarded as conduct offending against the standards of decency in our community. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification" (at 301). (Emphasis added.) 67. Of course care needs to be taken in applying the examples given in that passage to the case of a medical practitioner. It is often part of a medical practitioner's role to touch a person's genitals, breasts or anus. Whilst it may be able to be assumed in other contexts that such touching almost invariably has a sexual connotation, the same cannot be assumed in the case of a medical practitioner. In that case an objective determination of whether the conduct had a sexual connotation has to be made. (Emphasis added.) 68. The approach in Harkin was adopted in R v Manson (NSW Court of Criminal Appeal, 17 February 1993, unreported) and by the Victorian Court of Appeal in Sabet v R [2011] VSCA 124. It was also adopted (by reference to the decision in Manson ) by this Court in Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241; (2010) 77 NSWLR 17. In that case Campbell JA quoted the following passage from the earlier decision of R v McIntosh (NSW Court of Criminal Appeal, 26 September 1994, unreported): "To say that the test is an objective one does not mean that the alleged act of indecency must be considered divorced from its surrounding circumstances. These circumstances may show that what otherwise would be indecent was not - for example, an examination of a woman's vagina, ordinarily an indecent act when conducted by a stranger, would not be indecent if conducted by the woman's medical practitioner for medical purposes. The 'surrounding circumstances' include the intention or purpose of the alleged wrongdoer. If the medical practitioner in the example given was conducting the examination not to treat his patient but for his own sexual gratification the examination would be an indecent act (see Manson page 3)" (Eades at [50]; see also per Basten JA at [9]).
24. Once again we have added emphasis to the decision in King to highlight those portions of the judgment which have assisted us in reaching a determination in this matter.
25. The parties made submissions in response to our request to consider where the expression "conduct of a sexual nature" may be encountered in other legislation. In relation to the Anti-Discrimination Act 1977 (NSW) and the Sex Discrimination Act 1984 (Cth) each party made submissions and we have set out extracts from those submissions earlier in these reasons.
26. Drawing on all the above submissions which address that part of the HCCC case which we had previously failed to address we turn to determine that which has been returned to us by the Court of Appeal. Leeming JA stated the task we were to undertake as: "Whether a practitioner who examined the complainant's breasts without there being a valid indication to do so, but also without a sexual motivation, committed professional misconduct?" (per Leeming JA [22]).
27. The ground of appeal, which was upheld, is set out in paragraph 88 of the decision of Simpson AJA. 88. The Commission pleaded four grounds of appeal. By ground 1 it asserted: (a) that the Tribunal "failed to exercise its jurisdiction by limiting its consideration of whether the breast examination was sexual in nature to whether the breast examination was undertaken for a sexual purpose"
28. Simpson AJA stated: "93. The relevant established facts were: (1) that the respondent had conducted the breast and abdomen examinations of Patient A; (2) that those examinations were not sufficiently clinically indicated and were inappropriate; (3) that the respondent's conduct constituted unsatisfactory professional conduct; (4) that the respondent believed that the examinations were clinically indicated; and (5) that the respondent's conduct was not sexually motivated. 94. The question for the Tribunal was, in terms of s 139E, whether the respondent's conduct was sufficiently serious to justify suspension or cancellation of his registration as a health practitioner. That question is distinct from whether such an order should be made. 95. From the outset of the inquiry, although the Commission did not initially discount the suggestion that the respondent's conduct was sexually motivated, it propounded the proposition that the breast examinations were "inappropriate conduct of a sexual nature" whether or not the respondent engaged in that conduct for reasons of personal sexual gratification. That, the Commission said, was because: "(a) there was no clinical reason to conduct a breast examination, (b) a woman's breasts are inherently sexual and (c) so conducting a breast examination when there was no clinical reason to do so was conduct that is sexual in nature". In the Tribunal, counsel described that as the Commission's "minimum case".
29. The above ground 1(a) of appeal was connected to Complaint One Particular 4 of the Application pursued by the HCCC before us. That Particular is: "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)."
30. It is to be noted in the hearing before us, the Respondent conceded that "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".
31. In our earlier determination we found that the HCCC had failed to establish the Respondent carried out the examinations on Patient A for his own sexual gratification or purpose.
32. The question then left to be determined is: "If the breast examination conducted by the Respondent was inappropriate, was the conducting of that examination "sexual in nature towards Patient A"? In answering that question, is the context and circumstance of the conduct irrelevant? Is the lack of awareness of the inappropriateness of the conduct irrelevant?
33. In determining this question we keep in mind that the Particular which is under consideration, is required to be considered as it is stated in full, namely: "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)".
34. In addition to the above questions to be determined, the Court of Appeal has also stated that a proposition put in the appeal hearing and not put at the trial, is a matter which should properly be considered by the Tribunal. That proposition is as stated by Simpson AJA at paragraph 114 of her judgment: "I would accept that the reasonableness of a medical practitioner's erroneous belief that a medical justification exists for a procedure may be directly relevant to "the knowledge, skill or judgment possessed" by the practitioner, all of which are factors in s 139B(1)(a) (the definition of unsatisfactory professional conduct), and therefore, by extension, whether the unsatisfactory professional conduct in terms of s 139B(1)(a) is sufficiently serious to justify suspension or cancellation of the practitioner's registration….."
35. Thus it remains to be determined whether the reasonableness of the Respondent's erroneous belief that a medical justification existed for the procedure is directly relevant to "the knowledge, skill or judgment possessed" by him? It being the case that "all of which are factors in s 139B(1)(a) (the definition of unsatisfactory professional conduct), and therefore, by extension, whether the unsatisfactory professional conduct in terms of s 139B(1)(a) is sufficiently serious to justify suspension or cancellation of the practitioner's registration?"
36. It seems to us that a determination of each of the above questions, returned by the Court of Appeal for determination, may individually or collectively give rise to the potential of a finding that the Respondent is guilty of professional misconduct or may also "tip the balance", individually or collectively, in relation to Complaint Three of the original complaint heard by us, into a finding of Professional Misconduct (see s.139E).
37. Turning then to the first question: "If the breast examination conducted by the Respondent was inappropriate, was the conducting of that examination "sexual in nature towards Patient A"? In answering that question, is the context and circumstance of the conduct irrelevant? Is the lack of awareness of the inappropriateness of the conduct irrelevant?
38. As has been stated, the determination by the Tribunal is not bound to be contained within the precise wording of the Complaint Application, as if it was a strict pleading. If the HCCC has clearly run a case which is not entirely within the precise wording of the Particulars of the Complaint document, then that should be determined. Thus, if the precise wording of the determination required (as set out in the preceding paragraph) is not exactly that set out in Particular 4 of Complaint One in this matter, then that question is still to be determined.
39. Following the decisions set out by us in these reasons, we conclude that to determine the above question, the "context and surrounding circumstances" of the breast examination is a relevant consideration. (see: Eades, Jamnagarwalla, King, Ebtash, Sultan). It is relevant to whether the conduct was "sexual in nature". As has been stated in the decisions we have referred to, the examination of sexual organs and breasts and anus's by a medical practitioner, properly conducted for a medical purpose, are "not sexual in nature". Conversely, when such examinations are carried out without a clinical basis, they are sexual in nature and do not require the proof of an intention to have been carried out, by the practitioner, for a personal sexual gratification or purpose. It should be noted however, in the cases referred to in these reasons, where such a finding has been made, the nature of the examination and the part of the body alleged to have been the subject of examination by the practitioner, was either denied or stated by the practitioner to have been the type of examination or interaction which he would not have conducted or engaged in. Thus in those cases the practitioner had not admitted the examinations took place and that he had a good or sufficient belief at the time, that the examination was warranted and required. In the above cited cases, where the practitioners were found to have conducted examinations or actions which were "sexual in nature," the tribunals determining the cases, found against the practitioner on credit and accepted the conduct had occurred. That is not the case we are met with in this determination.
40. We note that in Sultan, the words "engaged in inappropriate behaviour of a sexual nature towards Patient A" were described by Beasley P as "ambiguous".
41. In this case the Respondent has acknowledged that because he lacked the knowledge and awareness of what he now accepts is regarded by his peers as an inappropriate breast examination, he is guilty of unsatisfactory professional conduct. Given that concession, was the examination of Patient A's breasts, by him, "sexual in nature". We conclude it was not. The context and surrounding circumstances of the examination of Patient A's breasts by Dr Robinson, in this matter, we do not accept was "inappropriate conduct of a sexual nature towards Patient A". We certainly accept it was inappropriate conduct. Such is admitted by the Respondent. We do not see how the words of Particular 4 can be seen as not requiring the Tribunal to be satisfied the Respondent intended to engage in a sexual act or conduct which was "sexual in nature". We have specifically found that we were satisfied the HCCC had not established he did have the requisite intention. Had the Respondent denied he had conducted the examination of Patient A's breasts, as she has alleged, and had we accepted Patient A's evidence in preference to that of the Respondent, then this case would have fallen into the same type of circumstance which was faced by the Tribunal's in Ebtash and Jamnagarwalla and Yildirim. That is, there is no other reasonable explanation for the established conduct other than it was sexual in nature. In those cases, it was not necessary to consider the practitioners intention in relation to the offending conduct.
42. The description of "inappropriate" in relation to the examination conducted, is in our view, a sufficient descriptor. It may be that some minds would categorise the term "inappropriate" into classes which might include "highly inappropriate" to underscore the seriousness of the conduct. We do not see how describing the conduct as "sexual in nature" advances the position of the inappropriateness or the seriousness of the conduct. The description of the conduct as sexual in nature, provides for an excursion into the area of intent on the part of the practitioner, unless the conduct is denied. It raises the question of whether the words are capable of being seen as without intent or without implied intent. In the decisions considered in these reasons, courts have determined, where there is no explanation, attempted or otherwise, for an examination of a sexual organ or an intimate part of a patients' body, by a health practitioner, it is an inappropriate examination. Such examination breaches codes of conduct relating to maintaining proper boundaries between practitioner and patient and is sexual in nature. It is the context and surrounding circumstances which requires such a conclusion.
43. It can be seen that in those cases where there is no medical basis for such an examination and that the practitioner must have known that to be the case at the time of the consultation, the Tribunal made the finding of "conduct of a sexual nature". Thus, absent some extraordinary fact or event, there can be no other reasonably drawn conclusion, than that the examination was conducted for a sexual purpose of the practitioner. Some of the decisions we have set out in these reasons dealt with cases where there was no clinical or medical basis for the conduct alleged and established before a Tribunal, coupled with, other facts such as a denial that the complained of examination took place and/or that such an examination would never fall within the practise of the particular Registered Health Practitioner to perform. Thus the facts, context and circumstances of the examination are very relevant to the determination of whether it was "conduct of a sexual nature".
44. The lack of awareness of the examination conducted by the Respondent of Patient A's breast being inappropriate, does in our view, go directly to "the knowledge, skill or judgment possessed" of the Respondent and thereby directly to the considerations of s139B(1)(a) (the definition of unsatisfactory professional conduct), and therefore, by extension, whether the unsatisfactory professional conduct in terms of s 139B(1)(a) is sufficiently serious to justify suspension or cancellation of the practitioner's registration.
45. Although the Respondent submitted that we had either directly or inferentially addressed the reasonableness of the Respondent's opinion that at the time he conducted the breast examination of Patient A it was appropriate, given the presentation of Patient A and all other circumstances surrounding the one and only consultation which the Respondent conducted with Patient A, when that reasonableness is set against the extensive knowledge, level of skill and experience which the Respondents' Curriculum Vitae clearly would indicate he had, we are satisfied that was something which we were not asked to consider and did not so consider. We say that notwithstanding that some of the language we used in our first determination might have inferred we did consider the matter.
46. The question which remains for us to determine, is the reasonableness of the Respondent's belief that the conduct of the breast examination of Patient A was appropriate. The answer to that question is couched in the consideration of the words of s.139B(1)(a), (The meaning of "unsatisfactory professional conduct" of a registered health practitioner generally [NSW] ) namely: "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."
47. The Respondent conceded that he was guilty of unsatisfactory professional conduct in relation to Complaint One. He admitted the examination of Patient A's breasts was inappropriate. He maintained that his concessions, given in the resumed hearing of the case, were based on knowledge acquired after the time of the examination of Patient A.
48. During the hearing the Respondent provided his professional and personal history which included the following: 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.
49. The question then to be determined is whether, given the above history, it was reasonable for the Respondent to hold the medical opinion that it was appropriate to conduct the subject breast and abdominal examination of Patient A, at the time it was conducted. We conclude it was not reasonable for him to hold that view. His knowledge, skill or judgment possessed at the time of the consultation with Patient A, given the level of the Respondent's training and experience, should have been sufficient to have him know that the examination he conducted of Patient A was inappropriate. As such, his conduct was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
50. The evidence before us in the earlier hearing sets out how the Respondent had become aware of the inappropriateness of the conduct he engaged in with Patient A. That can only have occurred because the Respondent has failed to stay up to date with the development of the practice of ophthalmology, a discipline in which he holds himself out to practice. That includes not only the study of relevant publications and the attendance upon conferences conducted for ophthalmologists, it also requires a necessary level of communication with colleagues in the same medical speciality, so that he might be aware of current practices and attitudes to the practice of ophthalmology. The Respondent's failure to comprehend that it was, at the time he conducted the examination, inappropriate, also reflects upon the judgment he was capable of then demonstrating.
51. As stated in the first decision we gave, Dr Campbell opined that the presentation of symptoms and signs in Patient A, on the day of the examination, did not warrant the examination of Patient A's breasts and abdomen. This was, in our view, illustrative of a serious deficiency in the "knowledge, skill and judgment possessed" by the Respondent at that time. As such it was not reasonable for him to hold the view that it was appropriate to conduct the examination as he did.
52. There remains the requirement to consider if, with our findings above expressed, our conclusion as to Complaint Three of the original application is still to remain or be replaced by our further considerations, as expressed herein.
53. In the decision given by us on 14 September 2021 we addressed Complaint Three. That complaint claimed: "The practitioner is guilty of professional misconduct under section 139E of the National Law in that 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."
54. We concluded that: "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."
55. In our determination of Complaint Three we concluded the Respondents' conduct fell slightly short of being established. That is the seriousness of the professional conduct findings, made against the Respondent when added to the admissions made by him, was determined by us, to be slightly less than the seriousness required to justify the suspension or cancellation of his registration.
56. In reaching the decision we did in relation to Complaint Three we noted our satisfaction that: 1. That there was no clinical indication which supported the Respondent conducting a breast and abdominal examination upon Patient A although the Respondent thought there was at the time.
57. We note this misstated our finding which had been "it was not clinically indicated [262]". Upon review of that finding in light of the following evidence which we recorded in our decision, we understood that the examination should not have been conducted by the Respondent. We understood that Dr Campbell's opinion was that the prospect of Patient A having a secondary tumour behind her eye was so small that the examination was not clinically indicated. We understood there to be a difference between "No clinical indication" and "Not clinically indicated" (see Ebtash, Jamnagarwalla, Yildirim, for cases where there was found to be no clinical indication said to have justified the practitioner's examinations). We set out here some of the evidence of Dr Campbell, which we recorded in our judgment, touching on that subject. (Emphasis added.) "[27]….. "I can conceive of no situation in which an ophthalmologist in private practice would be required to perform breast examination in a young woman." "An ophthalmologist would not generally examine a patient's abdomen, especially if there were no abnormal signs in the visual system." "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." "[47]….. "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. 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. [116] 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." [118] 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".)
58. In the earlier hearing we considered specific evidence and findings made by us when we addressed Complaint Three and whether the unsatisfactory professional conduct of the Respondent was serious enough to find professional misconduct. A summary of that which was considered is as follows: 1. We accepted the evidence of Dr Campbell in relation to the Respondent's assertion that there was a clinical basis to conduct the examination. We accepted that any clinical basis for the breast and abdominal examination was so unlikely as to amount to not clinically indicated. 2. We noted the Respondent now accepts that it was inappropriate for him to conduct the breast examination he did and because he did conduct the examination, he is guilty of unsatisfactory professional conduct. 3. We noted that he must (or should have) realised at the time of the breast examination, that his skills in breast examination may be deficient (given lack of practice) and that medical practitioners who regularly and routinely conduct breast examinations would be better skilled than he to conduct such an examination. 4. We had found he did not obtain the informed consent necessary to carry out the breast examination. 5. We found that the timing of the consultation with Patient A, in terms of its' proximity to the Christmas holiday period, did not give rise to an urgency for examination which could not have abided a referral to an appropriate trained and skilled medical practitioner in the area of breast examination. 6. We found we had been unable to be satisfied the Respondent was pursuing his own sexual gratification or sexual purposes in conducting the breast and abdominal examination of Patient A. 7. We found that the breach of s139B(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. 8. 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.
59. At the time we determined Stage 1, we said the considerations set out in (viii) above were matters best addressed in the Stage 2 portion of this hearing, after we have heard from the parties and considered their evidence and submissions. However, on reflection, that consideration is also relevant to the "seriousness of the conduct" found against the Respondent and/or conceded by him, in the determinations we have made that he is guilty of unsatisfactory professional conduct. It is that seriousness which needs to be judged in determining the matters posed in s139E of the Act. We will therefore in this further determination, as required by the Court of Appeal, take the matters set out in (viii) above into consideration in determining Complaint Three. It may or may not be further taken into account in the Stage 2 hearing. That will be a matter for us to determine at the conclusion of that hearing.
60. Having reconsidered the matters we addressed in our earlier decision, in relation to whether the conduct of the Respondent, found to be unsatisfactory professional conduct, has the necessary "sufficiently serious nature" about it to justify suspension or cancellation of the Respondent's registration or where there is more than one instance of unsatisfactory professional conduct, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the Respondent's registration, we conclude that it does and we find the Respondent guilty of Professional Misconduct.
61. We find that when the matters we took into consideration in our earlier decision in relation to Complaint Three, are coupled with our findings in this determination, the balance of seriousness of the unsatisfactory professional conduct is such as to tip the balance and convince us the Respondent is guilty of professional misconduct.
62. In finding the Respondent guilty of Professional Misconduct, we emphasise such a finding does not mean the registration of the Respondent will be either cancelled or suspended at the conclusion of the Stage 2 hearing which is scheduled to take place in December this year. We are yet to hear evidence and/or submissions from the parties as to the protective orders which might be imposed by the Tribunal.
63. In reaching the decision we have above, we have also considered the submission made by the Respondent as earlier set out, namely: "If the Tribunal finds look it was wholly unreasonable. The next step then becomes but does it justify suspension or cancellation? No. Why? Because there was a basis for his unreasonable decision-making, there was a basis. (see the evidence of Dr Diamond) ….And in those circumstances his tunnel vision approach to eliminate a metastasized cancer, given it's a single incident, does not justify suspension or cancellation."
64. We consider the assessment required by s139E is objective. The reasonableness of the belief held by the Respondent at the time he conducted the examination of Patient A, is to be assessed against the "knowledge, skill or judgment possessed, or care exercised, by the practitioner" …. being "significantly below the standard reasonable expected of a practitioner of an equivalent level of training or experience". In this case the Respondent was a significantly experienced ophthalmologist. He was highly credentialed. He obtained his fellowship from the RACO and the RACS in 1997 and has been practicing as a private specialist practitioner since that time. We conclude it was objectively wholly unreasonable for the Respondent to hold the view that it was appropriate and clinically required for him to undertake the examination of Patient A which he did.
65. The subjective aspects of the reasonableness of the Respondent's view that the examination of Patient A was clinically necessary and appropriate, may or may not be matters relevant to the Stage 2 hearing, which will consider protective orders. We will consider that matter, if argued, in that hearing.
66. In the submission provided by the HCCC on 12 September 2022 it made the following request: "In addition, the applicant invites the Tribunal to consider the impact of the respondent's conduct found proven on the reputation of the profession in determining whether or not the conduct amounts to professional misconduct, accepting that this was not a submission made in terms to the Tribunal in the initial hearing."
67. The HCCC relied upon Do to submit that the requirement to have regard to the above consideration is mandatory at this phase of the determination when the Tribunal is considering the seriousness of the unsatisfactory professional conduct.
68. The Respondent in his submission on the point raised by the HCCC, based upon the decision in Do, and said by the HCCC to be a mandatory consideration in the determination of a claim such as that contained in Complaint Three (professional misconduct), submitted there is no authority which supports a submission that the factors raised by the HCCC are mandated for consideration in proof of Complaint Three. He further submits that the Commissions grounds of appeal on the point were not upheld (see paragraphs 107 to 109) and do not fall for consideration under the remittance.
69. The Respondent submitted (as we have earlier set out): "In Health Care Complaints Commission v Do [2014] NSWCA 307, the respondent doctor had been found guilty of professional misconduct: at [2]. The Tribunal made protective orders but did not disqualify the respondent from registration for any specified period. The Commission position on appeal was that in deciding not to make a disqualification order, the Tribunal failed to consider that 'public confidence in the high standards of competence and ethical decision making expected of health practitioners should be maintained': at [26]. It was in that context that the Court made the observations at [35]. That is, while a finding of professional misconduct had been made, the protective orders did not properly consider the impact of the conduct on public confidence in the profession: at [39]-[40]. The Court found that the Tribunal did not address 'at all' the public's interest in having the respondent's conduct denounced as unacceptable: at [39]."
70. The Respondent submitted that the matter had been determined by the Court of Appeal at paragraph 108 of its' judgment when Simpson AJA stated: "Two short responses dispose of the submission. First, the remarks in Do on which the Commission placed reliance were made in the context of an appeal against protective orders made following Stage 2 of an inquiry. They were not directed to whether the impact of the conduct of the practitioner on public confidence in the medical profession is a mandatory consideration of, or even relevant to, the s 139E determination.
71. We accept the submission of the Respondent in relation to the issue of whether Do mandates the need to consider the reputational impact of the Respondent's unsatisfactory professional conduct in determining whether the Respondent is guilty of professional misconduct under s.139E as sought in Complaint Three in the case against the Respondent.
72. Having determined the Respondent is guilty of professional misconduct, we decline to consider further the additional matter requested by the HCCC on the basis that we consider that is better considered in the Stage 2 determination.
73. J HOUEN, GENERAL MEMBER: I join in the decision made by the Tribunal members in this matter and add the following.
74. I accept the decision in relation to Particular 4 as set out in the joint decision, however, in the special circumstances of this case, where we have found that we are not satisfied it has been established that the Respondent had an intention to act in a sexual manner towards Patient A, or that he had conducted the examination of her breasts and abdomen for his own sexual gratification or purpose, it is, in my view, still open to the Tribunal to find that Particular 4 has been satisfied and established.
75. Particular 4 stated: "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 admitted that the action of examining Patient A, in the manner which he did, was inappropriate. His evidence was, to the effect, that he did not comprehend, or understand, it was inappropriate, at the time of the examination. In my view, the words "conduct of a sexual nature" are capable of being seen outside of the requirement of intention. The words in my view do no more than to identify, that the area of the body being examined, are sexual organs. I accept the submission of the HCCC that the breasts of a woman are sexual in nature.
76. The HCCC submitted that the purpose of pursuing a finding in relation to Particular 4, was to emphasise the seriousness of the conduct. The examination was one which should not have taken place. The examination was of a part of the female body which is private in nature and, in the society in which we live, is generally covered by clothing in public. The term "sexual in nature" also in my view emphasises the intimacy of the breasts of a woman. Consequently, to be required to have breasts examined, touched, rubbed and inspected, is potentially confrontational and embarrassing for a patient in the position of Patient A. In this case, Patient A was clearly disturbed by the examination of her breasts by the Respondent.
77. I find that the establishing of Particular 4 does add significantly to the seriousness of the conduct of the Respondent in this case.
78. The seriousness of the conduct of the Respondent has been considered by us in the principal judgment. We have found that seriousness has given rise to a finding that the Respondent is guilty of Professional Misconduct. In my view, the seriousness of the unsatisfactory professional conduct of the Respondent is further added to by a finding that Particular 4 of Complaint One, is established.

Orders

1. The amended order we propose to make is as follows: 1. The Respondent is found to be guilty of unsatisfactory professional conduct (s 139B(1)(a)) and professional misconduct (s 139E). 2. The matter is to be listed for Stage 2 determination on 8 December 2022.

Endnotes

1. HCCC v Yildirim [2021] NSWCATOD 146
2. HCCC v Yildirim [2021] NSWCATOD 146 at [177]
3. HCCC v Yildirim [2021] NSWCATOD 146 at [176]
4. HCCC v Jamnagarwalla [2022] NSWCATOD 61 at [110]
5. HCCC v Jamnagarwalla [2022] NSWCATOD 61 at [110]
6. [2020] WASAT 86 (Ebtash)
7. Ebtash [2020] WASAT 86 at [1011]
8. Ebtash [2020] WASAT 86 at [1020] 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

Amendments 17 March 2023 - 17 March 2023 - Case Name corrected. "Health Care Complaints Commission v Robinson" replaced with "Health Care Complaints Commission v Robinson (No 2)". 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: 17 March 2023