These proceedings concern a complaint brought by the Director of Proceedings of the Health Care Complaints Commission (Commission) against Mr Christos Vorillas (practitioner), a chiropractor.
The matter was conducted as a Stage 1 proceeding on 26, 27 and 28 April 2023.
The practitioner is a registered chiropractor.
On 19 November 2020, the following conditions were placed on his registration:
1. Not to undertake any assessment or therapeutic intervention that involves the practitioner's hands being placed on a female patient's upper anterior thorax (between the levels of supra sternal notch and most distal point of the xiphoid process), lower pelvis and/or the upper thigh (between the levels of the anterior inferior iliac spine and mid femur).
2. To advise the Chiropractic Council of NSW in writing at least seven days prior to changing the nature or place of his practice.
3. To submit to unannounced audits of his practice and records, by an Authorised Person of the Chiropractic Council of NSW and:
a. The Authorised Person is to examine and assess compliance with conditions;
b. To authorise the Authorised Person to provide the Council with a report on their findings.
The Commission seeks protective orders under ss 149C(1)(b) of the Health Practitioner Regulation National Law (NSW) (National Law) that the practitioner's registration be cancelled and that he not be permitted to seek a review of that order for a period of two years.
In addition, the Commission seeks a prohibition order preventing the practitioner from providing health services (as defined in s 4 of the Health Care Complaints Act 1993 (NSW)) for that two year period.
[2]
The Commission's evidence
The Commission's materials include but are not limited to complaints, correspondence between the parties and with regulators, the transcript of a s 150 hearing and subsequent decision, witness statements of Patient A, Ms Hannah Boaden and Ms Boaden's husband Mr Cathal Smyth, the expert report of Prof Bonello, the Code of Conduct and Guidelines for clinical record keeping of the Chiropractic Board of Australia and the clinical records for Patient A.
Patient A, Ms Boaden and Mr Smyth were each required for cross-examination. Where relevant their evidence will be referred to below.
[3]
The practitioner's evidence
The respondent filed a Reply to the Complaint, an expert report of Dr John Kelly, character references being Ms Gregory, Ms Rose-McDermott and Mr Nick Papastamatis (each of whom were required for cross examination) and his Net Promoter Scores for the period May 2020 to June 2022.
Prior to the hearing, the practitioner had not filed a statement. However, on 27 April 2023, the second day of the hearing, he filed a statement dated 26 April 2023. The Commission required the practitioner for cross-examination.
Where relevant we will refer to the oral evidence of the practitioner and his witnesses where relevant below.
[4]
The Complaints
The Commission brought five complaints to the Tribunal. The background to all complaints was as follows:
The practitioner was first registered as a chiropractor on 21 January 2011 after completing a Masters of Chiropractic from Macquarie University in 2019. Since 2014, the practitioner has been a Director and Principal Sports Chiropractor at his own practice, Kinetic Healthcare. The practitioner practices at locations on George Street in the Sydney CBD and in Narellan. He has completed postgraduate training including in Active Release Technique (ART) (soft tissue therapy), dry needling / western acupuncture, and rehabilitation and diagnostics. The practitioner is a full body certified ART provider.
Patient A attended Kinetic Healthcare in the Sydney CBD on a number of occasions predominantly for neck and back pain from 17 October 2019 until 5 November 2020.
[5]
Complaint One
Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under ss 139B(1)(a) and (l) of the National Law in that the practitioner:
1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of chiropractic is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
2. engaged in improper or unethical conduct relating to the practice or purported practice of chiropractic.
[6]
Particulars
The Particulars to Complaint One are:
1 On 17 October 2019, the practitioner failed to ensure Patient A had read, understood, completed and signed a consent form prior to commencing treatment.
2 On 13 August 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage, and rib and chest massage.
3 On 10 September 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage, and rib and chest massage.
4 On 8 October 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage and a rib and chest massage.
5 On 5 November 2020, the practitioner failed to obtain Patient A's informed consent prior to conducting a groin massage and a rib and chest massage.
6 By his conduct in particulars 1 - 5, the practitioner breached clause 3.5(c) of the Chiropractic Board of Australia Code of Conduct (March 2014).
The conduct in any of Particulars 1, 2, 3, 4, and/or 5 of Complaint One is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct.
In a Reply to Complaint dated 14 June 2022 (the Reply), the practitioner admits the facts set out in Particular 1, but says that:
he has updated the procedure at his practice to ensure patients do not see a chiropractor without first having read, understood, completed and signed a consent form on each occasion.
The practitioner denies the facts set out in Particulars 2, 3, 4 and 5 and says in relation to each of those Particulars, in summary, that he obtained informed verbal consent and explained to the patient the options available, the risks and benefits of the proposed treatment performed through thorough discussion with Patient A at the beginning of the consultation.
The practitioner denies the facts set out in Particular 6 and says that he obtained informed consent verbally on each occasion before undertaking any examination or investigation, or providing treatment.
As to Complaint One itself, the practitioner denies he is guilty of unsatisfactory professional conduct under ss 139B(1)(a) or (l) of the National Law.
[7]
Complaint Two
Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that the practitioner engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of chiropractic is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
[8]
Particulars
The Particulars to Complaint Two are:
1. On 13 August 2020, the practitioner performed a groin massage on Patient A in circumstances where appropriate diagnostic testing had not been undertaken to ensure the treatment was justified.
2. On 8 October 2020, the practitioner performed a groin massage on Patient A in circumstances where appropriate diagnostic testing had not been undertaken to ensure the treatment was justified.
3. On 8 October 2020, the practitioner performed a chest and rib massage on Patient A in circumstances where appropriate diagnostic testing had not been undertaken to ensure the treatment was justified.
4. On 5 November 2020, the practitioner performed a groin massage on Patient A in circumstances where appropriate diagnostic testing had not been undertaken to ensure the treatment was justified.
The conduct in any of Particulars 1, 2, 3 and 4 of Complaint Two is repeated and relied upon in combination as a course of conduct involving conduct amounting to unsatisfactory professional conduct.
The practitioner denies the facts set out in Particulars 1, 2, 3 and 4 and in summary says that appropriate diagnostic testing was carried out on each occasion.
As to Complaint Two itself, the practitioner denies he is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law.
[9]
Complaint Three
Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under ss 139B(1)(a) and/or (l) of the National Law in that the practitioner:
1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of chiropractic is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
2. engaged in improper or unethical conduct relating to the practice or purported practice of chiropractic placed his open hand underneath Patient A's T-shirt.
[10]
Particulars
The Particulars to Complaint Three are:
1. On 13 August 2020, the practitioner conducted a rib and chest massage on Patient A in an inappropriate manner, in that he:
1. placed his hand underneath Patient A's T-shirt;
1. on 10 September 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:
1. placed his hand underneath Patient A's T-shirt;
2. placed his hand underneath Patient A's bra;
1. on 8 October 2020, the practitioner conducted a groin massage on Patient A in an inappropriate manner, in that he:
1. placed his hand underneath Patient A's shorts;
1. on 8 October 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:
1. placed his hand underneath Patient A's T-shirt;
2. placed his hand underneath Patient A's bra;
1. on 5 November 2020, the practitioner conducted a groin massage on Patient A in an inappropriate manner, in that he:
1. placed his hand up Patient A's shorts;
2. moved Patient A's underwear to one side and touched her labia majora;
3. repeated the conduct in Particulars 5(a) and (b);
1. on 5 November 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:
1. placed his open hand underneath Patient A's T-shirt;
2. touched Patient A's right breast;
3. repeated the conduct in Particulars 6(a) and (b);
1. by his conduct in Particulars 1 - 6, breached cl 9.2(a) of the Chiropractic Board of Australia Code of Conduct (March 2014) (Code of Conduct) in that he failed to maintain professional boundaries so that Patient A was not exploited physically or sexually.
The conduct in Particulars 1, 2, 3, 4, 5 and 6 of Complaint Three is repeated and relied upon in combination as a course of conduct amounting to unsatisfactory professional conduct. The conduct in Particulars 5 and 6 are relied upon individually to amount to unsatisfactory professional conduct.
The practitioner denies all the Particulars.
In addition, the practitioner denies he is guilty of unsatisfactory professional conduct under s 139B(1)(a) or (l) of the National Law.
[11]
Complaint Four
Complaint Four is that the practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of chiropractic is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
[12]
Particulars
The Particulars of Complaint Four are:
1. the practitioner failed to make and keep adequately detailed records sufficient to facilitate the continuity of patient care in relation to Patient A, including records of:
1. the consultation on 13 August 2020, including any tests conducted and results thereof;
2. the consultation on 10 September 2020, including any tests conducted and results thereof;
3. the consultation on 8 October 2020, including any tests conducted and results thereof;
4. the consultation on 5 November 2020, including any tests conducted and results thereof;
1. by his conduct in Particular 1, the practitioner breached cll 9.4(a) and 9.4(b) of the Code of Conduct.
The practitioner admits the facts set out in each Particulars 1(a) to (d), and says in relation to each of them that he accepts that his records were not adequately detailed and could have been improved, and will be in the future.
The practitioner admits the facts set out in each Particular 2(a) in so far as they relate to cl 9.4(a) of the Code of Conduct, denies the balance of the Particular and otherwise says that his notes were held securely and were not subject to unauthorised access.
As to Complaint Four, the practitioner admits he is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the National Law.
[13]
Complaint Five
Complaint Five is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has:
1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration; and/or
2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.
The conduct in the Particulars of Complaints One to Four is repeated and relied on individually and cumulatively.
The practitioner denies that he is guilty of professional misconduct under s 139E of the National Law.
[14]
The evidence of the Commission
The primary evidence relied on by the Commission were a "Summary of complaint or concern" Patient A lodged with the Australian Health Practitioner Regulation Agency (AHPRA) on 6 November 2020, three witness statements of Patient A, the statement of Ms Boaden dated 27 April 2022 and a statement of Ms Boaden's husband Mr Cathal Smyth, also dated 27 April 2022.
[15]
Summary of complaint or concern dated 6 November 2020
The starting point is a "Summary of complaint or concern" Patient A lodged with AHPRA on 6 November 2020. In that summary, Patient A stated (paragraph breaks added for ease of understanding):
I began seeing the chiropractor in October 2019 due to some back and neck pain. Initial assessment was completed as per previous consultations with other chiropractors I had seen in the past. All treatments have been at the CBD office for Kinetic Healthcare, with the chiropractor Chris.
My first few appointments were benign in nature, with treatment always being related to my pain. Since early this year, the nature of the treatment with the chiropractor became irregular in nature. I always change into shorts for the purpose of treatment. My complaints are generally related to my upper back and neck.
Over the period of the last few months, I have received increasing unusual care, including touching high into my inner thigh/groin region and treatment under my bra. While I felt uncomfortable, I didn't mention anything, assuming that it was part of treatment.
Yesterday (November 5, 2020), I went for a regular appointment. The inner thigh of my right leg was massaged, however the chiropractor continued up the leg, inside my shorts, moved my underpants to the left and briefly touched the right side of my labia majora, then moving his hand quickly back down my leg. This occurred a couple of times in swift movements, starting on or near my labia and then moving quickly down towards the inner knee.
The chiropractor also had me lay on my left side and proceeded to place his hand directly on my right breast, by going under both my shirt and bra. This also occurred a number of times in quick succession, moving his hand over my whole breast and then continuing towards my armpit. He also did something similar on the left side but not for as long. While previous appointment has left me feeling uncomfortable, yesterday's appointment appeared to be in no way related to my chief complaint of neck and back pain.
The chiropractor did not explain the treatment, why it was necessary or what it should achieve. He didn't preface that it could be close to areas that I may feel uncomfortable with someone touching. It also seemed irrelevant to any care that was requested.
Unfortunately, I didn't say anything at the time due to being embarrassed and uncomfortable about any potential confrontation. As he is a medical professional, I would like to assume that he would treat and behave in a professional manner. I will no longer see this chiropractor. The main issue I'm concerned about is the professionalism of this treatment and the potential risk it could occur to other patients.
(emphasis added)
Patient A prepared three witness statements respectively dated 10 March 2021, 20 April 2021 and 10 October 2022.
We will summarise the content of these statements below, in so far as they are relevant to the Stage 1 proceedings. Material which is relevant to the Stage 2 proceedings will be considered in a later decision.
[16]
Statement of 10 March 2021
In summary, in this statement Patient A states that:
1. she was 34 at the time the statement was prepared;
2. she first started attending the practitioner's practice in October 2018;
3. predominantly her treatment was for neck pain, occasionally in other areas including her wrist and lower back;
4. when she first saw the practitioner the pain in her neck was "really bad" so she saw him on a weekly basis, then fortnightly then monthly;
5. the practitioner would start a consultation with "mobility questions", asking Patient A to turn left and right;
6. had concern "from the fact the overriding treatment was for the new pain I mentioned and Chris did not offer any explanation as to why he was performing such treatment";
7. there were two or three sessions prior to 5 November 2020 where Patient A felt "uncomfortable". Patient A states:
In these last few sessions, Chris worked on my groin and near my breast region. I may have mentioned that I had pain in my lower back but I cannot be sure. There were parts of me questioning the value of the treatment as Chris did not offer any explanation as to why he was working on these areas. I was starting to feel uncomfortable with the treatment.
1. when the practitioner "worked" on Patient A's groin:
I was asked to lie on my back. My legs were far apart and my feet were rotated outwards. Chris would use the palm of his hands to stroke the inside of my groin. I would describe the movement as more of a stroke that a firm massage or pressing of the inside of my leg. The movements would start from where the opening of my shorts and up to my underwear line.
12. After Chris had touched my inner thigh, I was asked to lie on my left side. I was lying facing the wall and Chris was standing to my left near my back and he started to press or massage under my t-shirt. The touching started around the position of the ribs at the fifth or six rib area and up to my breast area. On the last two occasions, Chris pushed his hand up under my bra and it made me feel very uncomfortable. Again, Chris did not explain why he was touching my rib area and did not explain the treatment he was performing on me. Once this was completed, Chris would perform a neck adjustment (lying down) and a back adjustment (sitting up) and the session would be over.
1. the practitioner did not explain to Patient A why he was touching her chest area.
Patient A then describes the events of 5 November 2020 as follows:
14. On 5 November 2020 I attended for a further [appointment] I can't recall the exact reason for attending the appointment. It was most likely to do with my neck and back pain. It started as a normal consultation where Chris left me in the room to bet changed. Chris came back into the room and I was sitting on the bed. Chris asked to me to turn left and then turn right. Chris asked me to lie down on the bed.
15. The first obvious treatment was to the groin area. Chris was standing on my right side. Chris started to work up high on my inner thigh area. My legs once again were slightly apart and rotated outwards. Chris ran the palm of his hands up my groin and under my shorts, moved my underwear to the left and briefly touched he right side of my labia majora and then moved his hand quickly down my leg. This occurred a couple of times in swift movements starting on or near my labia and then moving down quickly towards my inner knee stopping 10cm down my leg before moving his hand back up towards my labia.
16. I remember looking up at the ceiling and there was total silence. Chris did not Offer an explanation as to why he was touching my inner thigh and I have no idea why he would need to touch my labia majora. Chris also didn't explain why the treatment was necessary or what it would achieve. 17. Chris then had me lie on my side. I was facing away from him, facing the wall. Chris proceeded to push on a few of my ribs and then moved his open palm underneath my shirt and bra and touched my right breast. This also occurred a number of times in quick succession, moving his hand over my entire breast and up towards my armpit. Chris then finished off the session by adjusting my neck.
17. I did not say anything at the time as I was so embarrassed and uncomfortable about any possible confrontation. Whilst the previous consultations had left me feeling uncomfortable, this appointment appeared in no way related to my chief complaint of neck and back pain. Chris did not preface the treatment by stating that it could be close to areas that I may feel uncomfortable with someone touching. It also seemed irrelevant to any care that was requested. As Chris is a medical professional, I would like to assume that he would behave and treat patients in a professional manner.
18. I remember I made another appointment after the consultation. | was pretty agitated by this stage and what had just happened was causing me anxiety. I caught up with a friend of mine, Hannah Boaden straight after the consultation. Hannah and I have been friends for a long time. By this time I was beside myself. We sat and had a coffee and I told Hannah what had just happened. Hannah's husband is a physio and I wanted to know if what had just happened was normal. Hannah encouraged me to make a record of what had just happened.
[17]
Statement of 20 April 2021
This is a short statement in which Patient A identifies a "Confidential Patient Case History" signed by her. The third page, titled "Informed Consent Form" is unsigned. Patient A says she does not believe she was presented the consent form to sign. Patient A does not recall "actively choosing" not to sign the form.
[18]
Statement of 10 October 2022
In this statement, Patient A clarifies certain aspects of her evidence in her first statement.
First, Patient A states that every time she saw the practitioner for treatment, she was wearing a "g-string with a full gusset".
Secondly, where she states in par [15] "[t]his occurred a couple of times in swift movements starting on or near my labia", when she said "on or near" she meant that the practitioner touched her labia, and the area between her labia and the line where her underwear would run along her groin when her underwear was not disturbed.
Finally, Patient A says that she graduated with a Bachelor of Nursing in 2009, but has never worked as a nurse.
[19]
The statement of Ms Boaden
In summary, Ms Boaden states:
1. she is the best friend of Patient A, and has known her since 2005;
2. on the basis of text messages between her and Patient A attached to her statement she believes she met Patient A to have coffee on 5 November 2020;
3. on the way to the coffee shop:
[Patient A] started telling me about how she had been seeing a chiropractor and that she had just finished an appointment with him. I don't know the name of the chiropractor, but I remember asking her how it was. I distinctly remember [Patient A] replying by saying that treatment-wise he had done a good job with her back, but that something a bit weird had happened during the session, and she was not sure if he had done something inappropriate. I can't remember the exact wording of the conversation, but [Patient A] wanted to know what my thoughts were and if I thought she was overreacting. [Patient A] wasn't distressed at that point.
1. once they arrived at the coffee shop she started "pressing" and asking Patient A more questions about what had happened;
2. to the best of her recollection Patient A told her that at her appointment that day the chiropractor treated her by massaging and touching her upper and inner thighs and had actually touched her underwear and moved her underwear with his hand. The chiropractor then subsequently brushed her outer genitals;
3. she believes the chiropractor's touching of Patient A's underwear and genitals was with his hand or fingers;
4. as soon as Patient A told her that the chiropractor had moved her underwear:
13. I interjected and said What?!" and clarified what had happened. (I then asked why he had been massaging anywhere near her thighs and why he had touched her genitals as he was a chiropractor. My husband is a physiotherapist and it seemed inappropriate to me that as a chiropractor he was even touching those areas. [Patient A] explained that the chiropractor has said it was all linked to her back or her neck, or whatever area it was that [Patient A] was seeking treatment for. I can't remember the reason why [Patient A] was seeing the chiropractor.
14. I remember asking [Patient A] what she did when the chiropractor had touched her underwear and genitals and why she didn't stop him. [Patient A] said that she had tensed up, but that she hadn't done anything as she wasn't sure if it was just part of normal treatment, and she didn't want to make a big deal of anything. [Patient A] said she had assumed it was part of the treatment, but also felt that it might not have been right and wanted my opinion.
15. I remember telling [Patient A] that it was not normal or appropriate, that he shouldn't have been touching her underwear and genitals, and that if my husband had done that to someone in his work, he would be fired and deregistered as it was just not on. I remember saying that even if there had been a legitimate reason to touch those areas, the chiropractor should have at an absolute minimum asked for her consent and explained why he needed to touch there.
16. [Patient A] then told me of at least one prior incident that had happened at another session with the same chiropractor. [Patient A] probably told me the date and when it had happened, but I can't remember anymore.
17. [Patient A] said that at this prior appointment, the chiropractor had brushed his hand over her breast and nipple during her treatment. My understanding was that she had been lying down and it was just the one breast and nipple, but I can't be sure as I didn't ask whether it had been both. I asked [Patient A] why she didn't have her bra on when the chiropractor did this and she said that he had asked her to remove it. [Patient A] said that she still had her top on though. I am not sure exactly what [Patient A] was wearing when this happened, if her top was a t-shirt, shirt or blouse, as I don't believe [Patient A] told me.
18. I remember again asking what [Patient A] did when the chiropractor touched her and she said 'Nothing', that she had tensed up but had just laid there. …
1. she is not sure if the touching of Patient A's breast and nipple happened only once, or at a number of appointments with the chiropractor;
2. the one thing that "really sticks out in [her] mind" was the way Patient A was sitting and how she kept downplaying the incident;
3. after she gave her opinion to Patient A that what had happened was inappropriate, she urged Patient A to report it. Patient A was hesitant at first and said that it seemed to be a bit of a hassle. Ms Boaden told Patient A that she was a very strong-willed, independent and tough woman, and that if the chiropractor had done it to her, it was likely he would do it to other women as well. Ms Boaden recalls telling Patient A to think of other women who were not as strong as her and that she owed it to them report it in case the practitioner did it to them too;
4. she told Patient A to make a record of what had happened;
5. after that conversation with Patient A recounts her version of the conversation that she had with her husband, Mr Smyth's version of which appears above.
As noted, attached to the statement is a chain of text messages between Ms Boaden and Patient A on 5 November, 2020. Relevantly, these state:
Ms Boaden: I started to tell Cathal your chiropractor story. .. I got to him brushing your nipple and he said 'nope, I've heard enough, that's already crossed way over the line'
He reckons it's a reportable offense
He said if a physio did that and it got reported to the physio board they would take the physios registration
Patient A: Good Lord.
OK
Ms Boaden: What will you do?
Patient A: No idea. I felt pretty shit when I got back to work
But ok now. Urgh.
Ms Boaden: I'm not saying you should report him, but you should at least type it up and send it to me in case you need it later.
Cathal said he wouldnt even go up your shirt to touch near your arm pit... he said he would do it over the shirt or down your collar.
He said exactly what you said as well, if he has done it to you he will have done it to other people because most women are too embarrassed to say anything
Patient A: That's helpful. Thanks. Good to just validate that it was out of line from a professional point of view
Ms Boaden: No, it definitely was out of line... by a long way. Just type it up and date it and send it to me if you want, and at least if you ever hear of him in the news or something you have evidence that might help someone else
Patient A: Yeah true. Will do it tomorrow just to document and then work out what to do
Ms Boaden: Yeah sleep on it.
I'm like you … I would feel guilty/like an idiot reporting him. But consider it, because most women wouldn't stand up top someone like that, so who knows how many other women he has done it to/will do it to.
Patient A: True
(typographical and grammatical errors as in original; ellipses as in original)
Also attached to the statement were a chain of text messages between Ms Boaden and Patient A dated 6 November, 2020. Relevantly, these state:
Ms Boaden: Are you alright after yesterday?
Patient A: Told [my husband] Marty last night which was probably helpful. Still not sure what I'll do but we'll see.
Ms Boaden: Ah … that's good. What did Marty say?
Patient A: Literally nothing,
Ms Boaden: Hahaha, my gosh he is hilarious. No reaction at all?
Patient A: I've filled in the ahpra reporting form …
[20]
Statement of Mr Cathal Smyth
Mr Smyth is Ms Boaden's husband. In summary, Mr Smyth states that:
1. he is a physiotherapist;
2. he does not remember the date or timeframe when "the incident" occurred, but remembers Ms Boaden telling him that Patient A told his wife "that something had happened while she was getting treatment from" the practitioner;
3. his wife and Patient A were of the view that what happened was inappropriate, and they wanted his opinion from the point of view of a physiotherapist.
Mr Smyth then states:
7. Hannah told me that when [Patient A] had been getting treatment from the chiropractor, she had been lying on her back and for some reason her bra was lifted up over her breasts under her t-shirt. I'm not sure who had lifted this up or whether [Patient A] had been asked to do this by the chiropractor. Hannah said that when the chiropractor was trying to treat and palpate her shoulder, he put his hand underneath [Patient A]'s t-shirt and touched the nipple of her breast. I'm not sure exactly how he touched her nipple or if it was with his hand, arm or fingers.
8. Hannah asked me whether as a physio I thought this was appropriate. I remember telling Hannah that to the best of my knowledge, clinically there would have been no reason to have a woman's bra lifted up in that context and no reason for someone to put their hand underneath the t-shirt to get up to the shoulder.
9. I may have asked a follow-up question to Hannah about the incident, but I can't recall. I also don't recall if this touching occurred once at one session or occurred at a number of sessions.
10. To the best of my recollection, Hannah then also told me about another separate incident that had happened to [Patient A] with the same chiropractor. I was told that [Patient A] had again been lying on her back and was getting some issue around her hip or pelvis assessed or treated and that she felt the chiropractor touch her genitalia. I asked Hannah what she meant by that, and Hannah said that [Patient A] said she felt the chiropractor touch her labia. I am not sure if labia' was the specific word that was used in the conversation, but it was definitely the body part that was being referred to.
11. I remember telling Hannah that it was inappropriate and that you just don't go there as a physio, that even if someone had a groin injury, you are very conscious of where your hands are going and make sure they are not going anywhere inappropriate, like the patient's genitals.
12. I remember Hannah told me that [Patient A] was quite upset and shocked about what had happened. [Patient A] is not one who is usually touchy feely' and it is unusual for her to ever be upset.
Mr Smyth concludes by stating that he never spoked "about the specifics of the incidents again", and has never spoken to Patient A about them.
[21]
Evidence to the Chiropractic Council of New South Wales
The practitioner provided a written submission to the Chiropractic Council of New South Wales (the Council) dated 17 November, 2020.
In summary, the practitioner states:
On the 5: of November 2020, [Patient A] again attended the practice. At this time, [Patient A] reported ongoing symptoms with neck stiffness and shoulder tightness as well as tightness in her lower back. After discussing her complaints and symptoms, I again conducted a thorough assessment. A tag test (series of tests) involving turning the heal left and right, twisting the torso left right and hip range of motion tests were conducted. The results of these tests identified that [Patient A] was restricted in truncal rotation resulting in her thoracic spine to be restricted placing more tension on neck and shoulders. Furthermore, her hip range of motion tests revealed a right external rotation restriction and a left hip capsular restriction.
Based on the above findings, I determined that the areas needing to be addressed were [Patient A]'s truncal rotators and their associated structures such as the pectoral region, rib (intercostal) region and accessory breathing muscles such as the sublelavius and scalenes muscles. For [Patient A]'s lower limb, I reasoned that her right adductors were the area needing to be addressed to deal with her external hip rotation restriction in addition to treatment on the left gluteal region to deal with the restricted hip capsule. I advised [Patient A] what I found to be the issues and recommended to [Patient A] that treatment should focus on working on the adductors and hip capsule whilst treating the truncal rotators and accessory breathing muscles. During the treatment, I advised her of the areas that were going to be worked over the course of the treatment. Treatment was similar to what it had been in the past and she was advised that the treatment to be done was similar to past sessions. [Patient A] consented to the treatment.
Treatment of active release technique (ART) was done to the anterior scalenes, subclavius and both domes of the diaphragm. Soft tissue work was also conducted to the intercostal muscle group with the patient laying left side up to have direct access to the ribs. was then conducted over the pectoral muscle region, rib muscles (intercostals) and frontal neck muscles. An inner thigh (adductor ) release was also performed to deal with her hip restriction. This release had been performed in previous treatment session with [Patient A] and it was not the first time it had been performed.
During the treatment, [Patient A] was wearing her own pair of shorts and t-shirt, which she had changed into from her work clothes at the beginning of the consult. As part of clinic protocol, we ask our patients to bring their own change of clothes to wear during the treatment sessions for their own comfort. At the conclusion of the treatment, the client was left alone to change from her comfortable clothes into the clothes she wore upon attendance. A follow up appointment was made on the 3- of December. At no time during the consultation did [Patient A] mention she was uncomfortable or at unease.
In conclusion, the practitioner states:
I have read the allegations in the complaint and I respectfully deny any allegations of inappropriate touching during treatment. At no time during the consultation was any breast or pubic tissue touched or treated. I deny that I moved my hand up her leg inside her shorts and I did not move her underpants or touch her labia as alleged or at all. The complaint also says that [Patient A] was asked to lay on her left side and I allegedly placed my hand directly on her right breast by going underneath her shirt and bra. I deny this allegation and, as stated above, note that I did not touch [Patient A's] breast during treatment.
[22]
Statement dated 26 April 2020.
After setting out his professional background and a giving a short account of his treatment of Patient A prior to 5 November 2020, he then sets out his version of what occurred on 5 November 2020.
The practitioner states that Patient A reported ongoing symptoms of neck stiffness and shoulder tightness, as well as tightness in her lower back.
After discussing her complaints and symptoms, the practitioner conducted a "thorough assessment". The results of the assessments identified that Patient A was restricted in truncal rotation resulting in her thoracic spine to be restricted placing more tension on her neck and shoulders. Furthermore, her hip range of motion tests revealed a right external rotation restriction and a left hip capsular restriction.
Based on these findings the practitioner determined that the areas needing to be addressed were Patient A's truncal rotators and their associated structures such as the pectoral region, rib or intercostal region, and accessory breathing muscles such as the subclavius or clavicle area and scalene muscles (or side of the neck).
In relation to Patient A's lower limb, the practitioner reasoned that her right adductors were the area needing to be addressed to deal with her external hip rotation restriction in addition to treatment on the left gluteal region to deal with the restricted hip capsule. He advised Patient A what he had found to be the issues and recommended to her that treatment should focus on working on the adductors and hip capsule whilst treating the truncal rotators and accessory breathing muscles.
During the treatment, the practitioner advised Patient A of the areas that were going to be worked over the course of the treatment. Treatment was similar to what it had been in the past and he advised Patient A that the treatment to be done was similar to past sessions.
Patient A consented to the proposed treatment.
Active release technique (ART) was performed to the anterior scalenes (neck), subclavius (clavical) and both domes of the diaphragm (stomach). Soft tissue work was also conducted to the intercostal muscle group with the patient laying left side up to have direct access to the ribs. Treatment was then conducted over the pectoral muscle region, rib muscles and frontal neck muscles. Inner thigh (or adductor) release was also performed to deal with Patient A's hip restriction. This release had been performed in previous treatment sessions with Patient A. The treatment involved utilising a reinforced thumb contact technique, which was the same as previous as had been conducted during Patient A's past consultations.
The practitioner did not touch Patient A's underwear at any time during any consultation and did not touch her labia majora. The practitioner never provided soft tissue work to Patient A's thigh region which involved contacting her underwear or labia majora. The practitioner never placed his hand underneath Patient A's shirt. The practitioner always asked Patient A to expose her intercostal region by lifting her shirt to the level she was comfortable with and exposing the region to be worked on.
The practitioner has never touched Patient A's breast.
The practitioner does not practice open palm soft tissue work. His technique when treating the intercostal region is to use a finger point contact technique where the practitioner would place his fingers on the intercostal region whilst using an emollient (cream) on the intercostal muscles running from the rib anteriorly to posteriorly. The practitioner does not agree with the suggestion that the fifth and sixth rib region was touched. The practitioner provided treatment to the eighth to twelfth rib regions and the associated intercostal muscles.
The practitioner provided treatment up to the bra line but not on any breast tissue.
The practitioner denies the allegations in Complaint, any allegations of inappropriate touching. He says that at no time during the consultation was any breast or pubic tissue touched or treated. He denies that he moved his hand up Patient A's leg inside her shorts, and says that he did not move her underpants or touch her labia as alleged or at all.
The practitioner also denies the allegation that he placed his hand directly on her right breast by going underneath her shirt and bra.
In relation to the issue of consent, the practitioner states:
14. It is part of my usual practice to discuss the proposed treatment with the client during treatment sessions and obtain verbal consent. I deny informed consent was not obtained.
15. … I made every attempt to incorporate an informed consent protocol with this patient. My standard procedure of obtaining informed consent from a patient is not confined to having the patient sign a one-page form alone. Prior to [P]atient A being treated, I had a meaningful discussion with her about her condition and the proposed treatment, and subsequently obtained verbal consent from her. In the process of obtaining consent from [P]atient A, I also provided my diagnosis which was explained.
However, the practitioner accepts that he did not ensure Patient A signed the one-page informed consent form that was contained within her initial consultation forms, and that this was my responsibility. But he is confident that the form was provided to Patient A at the initial consultation as this is the usual practise at his clinic.
He cannot give an explanation as to why the form was not signed. He says that he noticed that Patient A did not sign the form once she came into the consultation room that day and he had meant to ensure that she signed the form by the end of the consultation. However, it lapsed from his mind as they proceeded to discuss Patient A's condition and symptoms, perform testing and then ultimately provide treatment.
The practitioner says that he regrets that he did not ensure Patient A signed the form at the consultation. However, he says that he does not rely on the written form as his only way to obtaining informed consent. He has a detailed and thorough discussion with every patient to obtain verbal informed consent throughout each of his consultations.
The practitioner denies Patient A's claim that he did not provide any explanation as to why he was working on any particular area. He says that on every occasion he consulted with Patient A she was informed as to why the areas were being treated, and she confirmed to him that she understood his treatment rationales.
In conclusion, the practitioner states:
I deny that I inappropriately touched Patient A's pubic or groin region or breasts during any of the treatment sessions I have had with patient A. I have never in any treatment throughout the entire duration of [P]atient A's consultation done what she has claimed in her statement. I never physically made contact with her underwear or labia majora or breast. The treatment provided to Patient A initially focused on complaints relating to chronic neck pain and headaches, which later developed to shoulder and back tightness with hip restriction issues due to working from home during COVID and treatment was focused on addressing these issues.
[23]
Evidence of the practitioner's character references
Ms Gregory and Ms Rose-McDermott are each patients of the practitioner. Each give positive character references of the practitioner's professionalism and his care for patients. Each stated that the practitioner takes the time at each consultation to explain the treatment that he is going to administer and the reasons why.
In summary, after cross examination by Ms Lowson for the Commission:
1. Ms Gregory agreed that the allegation that the practitioner touched another patient's breast and that he touched underneath her underpants did not match her experience with the practitioner;
2. Ms Rose-McDermott stated that if the Tribunal did find that inappropriate touching of Patient A had occurred, that would not change her view of the practitioner.
Mr Papastamatis is a chiropractor, who first met the practitioner while studying at university. He stated in his statement that the allegations against the practitioner were insulting and portray the practitioner incorrectly. He also stated that the allegations were "completely out of place" and displayed "an utter misrepresentation of who he has shown me to be for over a decade".
[24]
The expert evidence
The Commission relied on an expert report of Professor Bonello, the practitioner on a report of Dr John Kelly.
In addition to their respective reports, following a direction of the Tribunal, on 6 February 2023, the experts met by telephone and produced a joint expert statement which relevantly stated:
IN RELATION TO ISSUES OF CONSENT.
We agree on the following.
We agree that an unsigned consent form is a failure of process and is the responsibility of the practitioner to complete.
We agree that consent comes from the substance of the discussion between the patient and the practitioner.
We agree that in relation to treatment of sensitive areas in particular that there should be at least a verbal consent to proceed provided by the patient.
We agree that once informed consent has been established there is no need for it to be reviewed from visit to visit other than ensuring verbal communication has satisfied the patient's understanding of what is being undertaken.
We disagree on the following.
We find that the areas on which we disagree eventuate from the difficulties associated with the different versions of events as reported by both parties; such as the description each have provided of the extent of discussion in relation to procedures which were undertaken at various times.
IN RELATION TO ISSUES OF TREATMENT.
We agree on the following.
We agree that the use of the descriptor "groin massage" is an inappropriate term. Soft tissue work to the upper thigh and pelvic region may be entirely appropriate as long as contact is not directed above the inguinal crease line or with the genitalia.
We agree that treatment of the adductor magnus muscle is appropriate in relation to patients who present with hip joint restriction and other conditions.
We agree that treatment of the adductor magnus muscle (and other related structures) may indeed require contact along the entire length of the muscle but should not involve contact with the genitalia.
We agree that the process of examination is integral to directing treatment including the recording of objective measurements for future comparison.
We agree that not all tests performed on every occasion may be recorded.
We agree that not every consultation contains records of re-examination.
We agree that it may be appropriate to treat the rib cage and its associated musculoskeletal structures. However, treatment should never involve application of pressure to mammary tissue.
Whilst it may be appropriate and/or necessary to make skin contact under a T-shirt or existing bra strap, the hand should never be placed directly on mammary tissue for treatment purposes.
We have no substantive disagreement in relation to the issues of treatment.
IN RELATION TO THE ISSUES OF CLINICAL RECORDS.
We agree on the following.
We agree that the clinical records have poor legibility. There should also be additional detail to enable another practitioner to take over care. The legibility and content are less than reasonable standard.
The record-keeping in relation to informed consent is deficient.
We disagree on the following.
Dr Bonello is of the opinion that the failure to record informed consent falls significantly below a reasonably expected standard.
Dr Kelly is of the opinion (given the respondent's version of events) that the failure to record informed consent falls below the expected standard but not significantly.
Each expert participated in a "hot tub" on the third day of the hearing. Where relevant we will refer to their opinion evidence when we consider whether the various Complaints are established.
[25]
Fact finding
It is appropriate to note that the Commission bears the burden of proving, on the balance of probabilities, any alleged fact. In this respect, we note the following recent remarks of the Tribunal in Health Care Complaints Commission v Wilkinson [2023] NSWCATOD 156 which we found to be of assistance, particularly in relation to the events of 5 November 2020 the subject of Particular 5(b) of Complaint Three:
[26]
The proof of facts
56. In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal: Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 at [52].
57. In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), Dixon J commented at 362:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..."
58. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171 (Neat Holdings), the majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) said:
"[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (citations omitted)
59. Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact.
60. In approaching the issue in these proceedings we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126]-[127] (Leeming JA, with Basten JA at [1] and Gleeson JA at [37] agreeing); Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [85]-[87] (Payne JA, with Leeming JA at [1] and Simpson AJA at [118] agreeing).
In Gautam v Health Care Complaints Commission [2021] NSWCA 85 , Payne JA at [85] to [87] stated:
85. As to ground 2, in particular ground 2(c), that the Briginshaw principle applied, the Tribunal cited Briginshaw, and expressly noted that it had to be "comfortably satisfied" that the complaint had been established on the balance of probabilities having regard to the potential seriousness of the consequences for the appellant. I do not accept, as was submitted, that the Tribunal merely gave "lip service" to the Briginshaw standard.
86. In written submissions before the Tribunal counsel for the appellant himself asserted that "comfortably satisfied" was an acceptable shorthand for the applicable test. He described the test in the following way:
"It is submitted that in order to uphold the complaints, the Tribunal must be convinced (or at the very least comfortably satisfied) that the alleged conduct actually occurred."
87. In any event, that phrase correctly encapsulates the test and is commonly used in the context of proceedings such as the present: Kumar v Legal Services Commissioner [2015] NSWCA 161 per Leeming JA at [60] (with whom Basten JA agreed):
"[60] Mr Kumar denied all this, on his oath, and was cross-examined on it. But there was and is no plausible explanation inconsistent with deliberate dishonesty. The fact that the explanation was advanced for the first time on the third day of the hearing, years after the event, reinforces my conclusion. I am conscious that the finding is extremely damaging to Mr Kumar; indeed, it is destructive of his professional career and professional status and reputation. Such a finding should only be made in accordance with s 140 of the Evidence Act 1995 (NSW) and the principles in Briginshaw v Briginshaw. But I am more than comfortably satisfied that such a finding should be made."
We have also been assisted by the observations of the Tribunal in Health Care Complaints Commission v Ng [2015] NSWCATOD 85 where the Tribunal stated (citations omitted):
128. We found the recent discussion by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73] to [79] to be of considerable assistance. To paraphrase his Honour:
(1) Where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence is of primary importance;
(2) The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation;
(3) A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine.
…
(4) The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities.
…
(emphasis added)
[27]
Particular 1
Given that the practitioner has admitted the facts of Particular 1, we find Particular 1 established.
[28]
Particulars 2 to 5
These Particulars can be considered together. That is because we find none of them established. We have reached that conclusion as the practitioner gave in our view robust evidence about the matters alleged and was not shaken in cross-examination.
More to the point, there was no direct evidence in Patient A's statements about the events of any of the consultations prior to 5 November 2020 and no probative evidence about the events the subject of Particulars 2 to 5. What evidence there was, was elicited in cross-examination, save for the matters the subject of Patient A's third statement summarised above, and unpersuasive in relation to those Particulars.
Indeed, other than the first consultation date (being 17 October 2019) and the last consultation date (being 5 November 2020), Patient A agreed that she was "not really sure" of other consultation dates.
The cross-examination established that Patient A had little to no recollection about the events the subject of Particulars 2 to 5. Patient A said in her first statement that at each consultation the practitioner would have a conversation with her about the pain she was experiencing, and "would start a conversation with mobility questions asking me to turn left and right". Patient A agreed in cross-examination that it sounded plausible that at each consultation the practitioner would undertake the same series of movements at the end of the consultation, and that it would "seem accurate" that this occurred on every consultation she had with him.
Patient A was taken to par [9] of her statement where she stated:
Chris would start a consultation with mobility questions asking me to turn left and right. As previously stated, the main recurring pain I was experiencing was back and neck pain. I did at times attend consultations and complain about other pain such as in my wrist or lower back". And then you say, "My concern came from the fact that overriding treatment was for the new pain I mentioned, and Chris did not offer any explanation as to why he was performing such treatment.
Patient A's evidence in cross-examination was that she could not remember what "new pain" she was referring to in this paragraph, when the concern she was referencing in this paragraph arose or started happening.
Further, Patient A agreed that that it was not her evidence that the practitioner offered "no explanation" whatsoever, it was more that it was lacking in terms of what he was saying to her. Patient A's evidence said that she could not recall the conversations that would have been had with the practitioner in her consultations,
We accept the practitioner's submission that the experts' position was, in effect, if it is found that the practitioner conducted examinations with absolutely no discussion of what he was going to do or why, then informed consent was not obtained. But if it is found that he did have discussions about what he was going to do and why, then even if those discussions are not written down in his notes, the informed consent process was sufficient and the complaint is not made out.
We accept that the evidence relied on by the Commission is not consistent with a finding that the practitioner proceeded to conduct treatments with absolutely no discussion of what he was going to do or why.
In the circumstances, we do not find any of Particulars 2, 3, 4 or 5 established.
[29]
Particular 6
Clause 3.5(c) of the Code states that:
3.5 Informed consent
Informed consent is a person's voluntary decision about healthcare that is made with knowledge and understanding of the benefits and risks involved. A useful guide to the information that chiropractors need to give to patients is available in the National Health and Medical Research Council (NHMRC) publication General guidelines for medical practitioners in providing information to patients.
The NHMRC guidelines cover the information that chiropractors should provide about their proposed management or approach, including the need to provide more information where the risk of harm is greater and likely to be more serious, and advice about how to present information. Good practice involves:
…
(c) obtaining informed consent or other valid authority before undertaking any examination or investigation, providing treatment/care (this may not be possible in an emergency) or involving patients in teaching or research, including providing information on material risks
Only Particular 1 has thus far been established, the practitioner admitting that he failed to ensure Patient A had read, understood, completed and signed a consent form prior to commencing treatment. In circumstances where his obligation under the Code of Conduct was to obtain an informed consent, we find Particular 6 established in relation to Particular 1 only. The issue is not the lack of signing, that is not required under the Code of Conduct. The issue is that we understand the practitioner to be admitting that he did not ensure that Patient A understood the consent form. This being the case we do not accept that she gave an informed consent to her treatment on 17 October 2019.
[30]
Particulars 1 to 4
These Particulars can be considered together. That is because we find none of them established. We have reached that conclusion for the same reasons we gave in relation to Particulars 2 to 5 of Complaint One: namely the practitioner gave in our view robust evidence about the matters alleged and was not shaken in cross-examination. On the other hand, Patient A gave no direct evidence of these matters.
There was no direct or probative evidence in Patient A's statements about the events of any of the consultations prior to 5 November 2020 and no probative evidence about the events the subject of Particulars 1 to 4. What evidence there was in Patient A's statement, which was that there were two or three sessions prior to 5 November 2020 where Patient A felt "uncomfortable".
Otherwise, the only evidence was given in cross-examination and was unpersuasive in relation to those Particulars.
We accept the practitioner's submission that the experts' position was, in effect, that if it is assumed that the practitioner took a history and conducted tag tests before and after his treatments, he was not operating in a vacuum or proceeding to treatment in the absence of appropriate diagnostic testing.
Patient A's evidence was that prior to every consultation the practitioner undertook twisting type motions to assess her range of motion, and that on the first consultation she did a full assessment which included walking, lunges and squats. She agreed that it was possible that she did other assessments like squats at other consultations, but she did not recall.
Patiet A gave evidence of this sort of usual practice occurring on all occasions. For example, in the final appointment on 5 November 2020, Patient A stated that the appointment began as a normal consultation, "going through the mobility", and agreed that "going through the mobility" was part of a usual practice that the practitioner did on every occasion. Patient A said she "definitely" recalled the practitioner doing this at the start of the consultation, although she could not recall the finish. Patient A agreed she understood this process was to assess her range of motion.
Patient A stated that the practitioner came into the room and asked her to turn left and right and then asked her to lie down on the bed. She accepted that this would not have been the full conversation; and nor would this even be a complete discussion that she had before having any treatments done on that date.
The practitioner for his part denied the suggestion that he conducted treatments in circumstances where appropriate diagnostic testing had not been undertaken to ensure treatment was justified. It was put to the practitioner that he did not perform any tag tests at any of the final four consultations. This was denied by the practitioner, and was not consistent with Patient A's actual evidence.
It was submitted and we accept that it was the practitioner's consistent evidence that in each treatment Patient A was thoroughly assessed and treatment was always based on the physical examination findings on that day's assessment. The assessment included a history review, and a range of motion assessment and orthopaedic and functional testing: see the practitioner's statement at [25], which evidence undisturbed by cross examination.
We find that the evidence supports a finding that the practitioner did take a history and do tag tests pre and post treatment. That position is also consistent with the practitioner's evidence at the s 150 hearing. According to the expert evidence, such a process is a sufficient and appropriate diagnostic basis upon which to proceed to and base his treatments.
For these reasons we do not find any of Particular s1 to 4 established.
Given these findings it follows that we do not find Complaint Two is established.
[31]
Particulars 1 to 4
For the same reasons as set out above, we do not find Particulars 1 to 4 established by reason of a lack of probative evidence supporting the facts alleged. That is to say, the evidence is insufficient to prove on the balance of probabilities that the practitioner undertook any inappropriate placing of his hands on Patient A on 13 August, 23 September or 8 October 2020 as alleged in Particulars 1 to 4.
We note that, in relation to Particulars 1(a) and (2(a) and (b), Patient A agreed in cross-examination that any complaint she made about the practitioner putting his hand under her bra was not a reference to 13 August or 10 September 2020.
We accept the practitioner's submissions that:
1. Patient A did not give specific evidence before the Tribunal substantiating Particular 3, rather, Patient A agreed that on the "two or three prior to the final consult", any treatment of her inner thigh involved the practitioner's hands reaching the lateral or outer edge of the pubic bone insertions of the adductor muscles, and agreed any contact reached approximately the crease line between the thigh and trunk coinciding approximately with the area of her underwear;
2. as to Particular 4(a), Patient A was unable to recall the dates she had treatments to her intercostal muscles, and was also unable to recall if on those occasions she was asked to lift up her own shirt to expose that area, agreed that his was possibly what occurred agreed that it "possibly" was not the case that he put his hand under her shirt to do this and further agreed that she did not know who moved the shirt, whether it was moved at all and agreed she may have lifted up the shirt herself.
For these reasons, we do not find Particulars 1 to 4 established.
[32]
Particulars 5 and 6
However, the allegations as to what occurred on 5 November 2020 stand in a different category, namely because of the near contemporaneous complaint sent by Patient A to AHPRA on 6 November 2020.
The allegations are that on 5 November 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:
1. placed his open hand underneath Patient A's T-shirt;
2. touched Patient A's right breast;
3. repeated that conduct.
The evidence relied on by the Commission consists of the following.
First, the evidence contained in Patient A's statements summarised above.
Secondly, Patient A's complaint to the Australian Health Practitioner Regulation Agency (AHPRA) of 6 November 2020 summarised above.
Thirdly, the evidence of Ms Boaden summarised above.
Fourthly, the evidence of Mr Smyth, summarised above.
The practitioner's version of events appears in a number of documents.
First, in his response of 17 November 2020 to Patient A's complaint to AHPRA, summarised above.
Secondly, in his evidence given at the s 150 hearing. Relevantly, he "strongly denied" any inappropriate touching of Patient A.
Thirdly, in his statement summarised above.
As noted above various witnesses were cross-examined. Here we pause to consider the parties' respective submissions on the credibility of those witnesses, but particularly Patient A and the practitioner.
[33]
Commission's submissions re the practitioner
Perhaps curiously, the Commission did not submit that the practitioner was unreliable, or not forthright or credible, or lying. The Commission did however submit that Patient A's evidence and version of events should be preferred to that of the practitioner.
This was for two principal reasons. The first being the "powerful and essentially consistent evidence of [a] contemporaneous compliant", namely the complaint to AHPRA of 6 November 2020: see Gautam at [82].
The second reason was that the practitioner gave evidence which was inconsistent with and contradictory to, in particular, his evidence at the s 150 hearing, which made him a less reliable witness, giving the Tribunal a further basis to prefer the evidence of Patient A. These inconsistencies include his evidence about the use of an emollient, the use of a towel or "drapage", and whether Patient A's shorts fell down because of gravity.
There is some substance in the submission that there were inconsistencies in the practitioner's evidence as identified, but we think that the submissions are somewhat overstated.
As to the use of emollient, the Commissions criticism is that prior to the hearing, the practitioner had mentioned the use of emollient only in relation to Patient A's intercostal muscles, but at the Tribunal hearing he referred for the first time to using emollient for her adductor muscles. This discrepancy was not to put to the practitioner in cross-examination, and we found his explanations about his use of emollient, including in response to questions from the Tribunal professional members, to be appropriate. We would not criticise the practitioner for this "inconsistency".
We decline to find that the practitioner's towel evidence was a "recent invention". That is because the practitioner robustly disagreed with the proposition when put to him by the Commission's counsel in cross-examination, and because it appears that the practitioner was not asked about the issue at the s 150 hearing.
Nor do find that the practitioner's evidence about Patient A's shorts to warrant criticism.
In any event, even if we reject the evidence of a witness on one matter, it does not follow that their evidence should be rejected on all matters, which is the holistic submission that we understand the Commission to be putting.
[34]
Commission's submissions re Patient A
The Commission posed as a question for the Tribunal to consider, "was Patient A a forthright and credible witness, who made appropriate concessions?". The Commission answers that question in its submissions as follows:
Patient A presented as a credible witness who made appropriate concessions but whose evidence was firm around the events that occurred over the last three or four consultations with the practitioner.
We consider that that submission somewhat overstates matters.
We note that the Commission does not submit that Patient A was forthright. We think it a fair observation to state that Patient A had no independent recollection of the events of, in particular, 5 November 2020.
By way of example, the following exchange occurred during cross-examination:
Q. Is it also the case that at each consultation he would do that same series of movements at the end of the consultation and see whether there had been improvement during the course of the consultation?
A. I can't recall exactly but that would sound, sound you know plausible.
Q. I want to suggest to you and you can agree or disagree with me that that process that I've just asked you about was something that in fact occurred on every consultation you had with Dr Vorillas and not just the first 14 or so. Would you agree with that or disagree with that?
A. Similar to obviously other statements. I can't recall exactly you know every single appointment but that would seem accurate.
Q. During the course of consultations he would ask you a string of questions like, "Are you okay with this?" or "Is this comfortable?" or "Is this all right?" Do you agree with that?
A. I disagree with that.
Q. Do you say that he never asked you that sort of a question or it was only on those last few occasions that he didn't ask you that sort of a question?
A. I can't recall every appointment.
And we note that her counsel conceded as much on the second day of the hearing when she stated, "it's fairly plain that she has no independent recollection of any of the appointments".
That said, broadly speaking we found Patient A was attempting to assist us in our enquiries. But given her lack of independent recollection of many matters on particular consultation days, that assistance was somewhat limited.
[35]
Practitioner's submissions re Patient A
The practitioner submits that Patient A was a "demonstrably unreliable witness in a significant number of important, not trivial, respects". The practitioner submits that in the circumstances of the current case, where the primary issue in dispute in respect of complaint three involves a matter of mere centimetres several years ago, she was a witness who had a demonstrably unreliable memory about important details regarding her complaint, with no memory of any of the relevant consultations. The practitioner submits that Patient A was unable to recall at least 30 relevant matters, set out at [272] of the practitioner's submissions from (i) to (xxx).
We accept that Patient A had no independent recollection of the events in question.
The practitioner further submits that Patient A was at times an uncooperative witness who refused to make reasonable concessions and who was not doing her best to assist the Tribunal.
We consider that that submission is overstated. Patient A did not make some concessions which may have been open to her, but we do not accept that she was not doing her best to assist us in her deliberations.
[36]
Practitioner's submissions re Ms Boaden
The practitioner submitted that, for some 17 reasons, Ms Boaden's evidence undermined the Commission's case. Chief amongst the reasons were:
1. Ms Boaden was "very protective of Patient A;
2. Ms Boaden agreed that when she met Patient A, Patient A was not distressed, was a bit unsure if something inappropriate had happened; thought the practitioner was doing a good job treatment wise; was in two minds about whether what had happened was just part of a normal treatment; was not teary at the time and was hesitant to report anything, despite being urged to do so by Ms Boaden;
3. Ms Boaden gave confident evidence about a clearly factually incorrect story she claims Patient A told her, about her bra being entirely removed by the chiropractor on an unspecified former occasion that was not 5 November 2020. The practitioner submits that there is "no question" that this was a false story because Patient A confirmed such a thing simply did not happen. When this was put to Mr Boaden in cross examination that she might be wrong about this, she refused to make what was a clearly appropriate concession;
In addition, the practitioner submits that Ms Boaden gave answers that were non-responsive to the question asked of her, and which on occasion simply did not make sense. She was, it was submitted, not a witness doing her best to assist the Tribunal, and was on occasion evasive.
We agree that Ms Boaden's evidence has to be considered with care. She was we feel a partisan witness, who had an (albeit understandable) concern for her friend Patient A. She did appear to be very concerned about the outcome of the matter to a perhaps unusually heightened degree. And some of her evidence was supported by contemporaneous emails.
Nevertheless, the practitioner is correct to submit that not only was there an absence of any complaint evidence about breast contact on 5 November 2020, what evidence there was about a complaint to Ms Boaden about breast contact at another unspecified appointment was not accurate (noting that we would not accept the practitioner's characterisation of this evidence as "demonstrably false").
[37]
Practitioner's submissions re Patient A's husband
Patient A said in cross-examination that she told her husband what had happened on 5 November 2020, in respect of Particular 5(b), but his response was to say "literally nothing".
The practitioner notes that Patient A's husband was not called to give evidence, despite it being asserted in the Commission case that he was a recipient of contemporaneous complaint evidence. The practitioner submits that it would be expected that the husband would be called by the Commission rather than the practitioner, and that his evidence, as an asserted contemporaneous complaint witness, would be expected to elucidate the matter, and his absence is unexplained. In those circumstances the Tribunal should find that his evidence would not have assisted the Commission, in accordance with the principle in Jones v Dunkel (1959) 101 CLR 298.
We see no reason why we should not draw that inference, that is that Patient A's husband's `evidence would not have assisted the Commission.
[38]
Conclusion
The practitioner submits that, where the issues in contention involve fine distinctions and contests about important details in consultations several years ago, and where contact with areas of the patient's body very proximal to those complained of in the case is justified (according to the experts), it would be an erroneous step to find the Particulars of Complaint Three proved in circumstances where the principles underlying Briginshaw v Briginshaw (1938) 60 CLR 336 are relevant and have been accepted by the Court of Appeal in Gautum.
Accordingly, the practitioner submits that making serious findings with grave consequences for the practitioner based on this quality of evidence would be an error.
In summary, the practitioner submits that:
1. there is no sufficient evidence to establish Particular 5(a).
2. as to Particular 5(b), Patient A's evidence would not be preferred to the practitioner's denial of that conduct, the practitioner's evidence being consistent and undisturbed by cross examination.
Further, in describing the area of contact on 5 November 2020, the practitioner criticises Patient A for using a range of different descriptions including in par [15] of her statement of 10 March 2021 the following "the groin area", the "right side of my labia majora", "on or near my labia" and "back up towards my labia" and "between the groin and pubic region".
The practitioner submits that the variation in the choice of words Patient A was using to describe the area touched is consistent with the notion that contact was made high on the inner thigh area very proximal to the labia, but that Patient A had uncertainty about exactly where, which she also expressed to Ms Boaden, including the suggestion that the practitioner "brushed her outer genitals".
We find the submissions of the Commission as to the practitioner's reliability to be overstated. Similarly, we find the practitioner's submissions about Patient A's reliability to be overstated in some respects.
We satisfied that Patient A had no real independent memory of any of the events in question, save for 5 November 2020.
But we reject the practitioner's submission that there is no sufficient evidence to establish any of Particulars 5 and 6. The evidence is to be found in the 6 November 2020 complaint to AHPRA.
This near contemporaneous complaint is significant evidence which, consistent with the authorities, is impossible to overlook. It is evidence which in our view supports a finding of the conduct described in Particulars 5 and 6, which evidence is set out above.
The practitioner submits that it is submitted the "complaint evidence" cannot be relied upon to support the evidence of either Patient A or Ms Boaden. We reject that submission. We find the evidence compelling for the reasons enunciated by Sackar J in Campbell, that a court (here the Tribunal), in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine.
In our view, the perquisites referred to by his Honour are established in relation to the 5 November 2020 complaint. And it is evidence that is "powerful and essentially consistent" with Patient A's other evidence, notwithstanding some of the details differed: Gautam at [82].
For these reasons, we find Particulars 5 and 6 established.
[39]
Particular 7
Particular is that by his conduct in Particulars 1 to 6, the practitioner breached cl 9.2(a) of the Code of Conduct in that he failed to maintain professional boundaries so that Patient A was not exploited physically or sexually.
For the above, reasons, we have only found Particulars 5 and 6 established.
Clause 9.2(a) of the Code of Conduct provides that:
9.2 Professional boundaries
Professional boundaries allow a practitioner and a patient to engage safely in a therapeutic relationship. Professional boundaries refers to the clear separation that should exist between a chiropractor's professional conduct that is aimed at meeting the health needs of patients, and a chiropractor's own personal views, feelings and relationships that are not relevant to the therapeutic relationship. Professional boundaries are integral to a good chiropractor-patient relationship. They promote good care for patients and protect both parties. Good practice involves:
(a) maintaining professional boundaries so that patients are not exploited financially, physically, emotionally or sexually …
Given that we have found Particulars 5 and 6 established, it follows that Particular 7 is established. As the Commission submitted, the touching of a woman's breasts and genital is inherently sexual. This is also consistent with the views of Prof Bonello.
[40]
Conclusion
All that said, we accept that the conduct the subject of Complaint Three that we have found established was inadvertent. We note that at no stage was it put to the practitioner that he intentionally made contact with Patient A's labia or breast or breasts, or did so for the purpose of sexual gratification, and we do not make those findings.
[41]
Complaint Four
Given that the practitioner has admitted Particulars 1 to 4, we find Particular 1 established.
The practitioner has admitted Particular 2, in so far as it relates to cl 9.4(b) of the Code of Conduct only. He does not admit Particular 2 in so far as it relates to cl 9.4(a) of the Code of Conduct.
In the circumstances, we find Complaint Four established.
[42]
Section 139B(1) of the National Law
Section 139B(1) of the National Law includes the following definitions of the meaning of "unsatisfactory professional conduct" of registered health practitioners:
(a) Conduct significantly below reasonable standard
Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
…
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. At [21] and following the Tribunal stated:
21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30].
22. The Macquarie Dictionary offers several definitions of both words which include:
Improper
2. not in accordance with propriety of behaviour, manners, etc: improper conduct.
Unethical
1. contrary to moral precept; immoral.
2. in contravention of some code of professional conduct.
23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote:
Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both.
24. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53].
25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct.
26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances.
Whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54].
[43]
Section 139E of the National Law
Section 139E of the National Law provides:
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, professional misconduct of a registered health practitioner means -
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
[44]
Complaint One - Is unsatisfactory professional conduct established?
We have found Particulars 1 and 6 to be established.
Dr Bonello is of the opinion that the failure to record informed consent falls significantly below a reasonably expected standard.
Dr Kelly is of the opinion (given the respondent's version of events) that the failure to record informed consent falls below the expected standard but not significantly.
In the circumstances, we find Complaint One established under s 139B(1)(a) of the National Law.
It is not necessary to consider whether the conduct the subject of Particulars 1 and 6 was unsatisfactory professional conduct under s 139B(1)(l) of the National Law.
[45]
Complaint Two - Is unsatisfactory professional conduct established?
For the reasons set out above, we do not find Complaint Two established.
[46]
Complaint Three - Is unsatisfactory professional conduct established?
For the reasons set out above:
1. we have not found Particulars 1, 2, 3 and 4 to be established;
2. we have found Particulars 5, 6 and 7 to be established.
[47]
Complaint Four - Is unsatisfactory professional conduct established?
For the reasons given above:
1. We have found Particulars 1 to 4 established;
2. We have found Particular 2 to be established in so far as it relates to cl 9.4(b) of the Code of Conduct only.
As Complaint Four has been admitted, we find that Complaint Four is established.
[48]
Complaint Five - Is professional misconduct established?
The conduct we have found established is as follows:
1. under Complaint One:
1. on 17 October 2019, the practitioner failed to ensure Patient A had read, understood, completed and signed a consent form prior to commencing treatment;
2. by this conduct, the practitioner breached cl 3.5(c) of the Code of Conduct;
1. under Complaint Three:
1. on 5 November 2020, the practitioner conducted a groin massage on Patient A in an inappropriate manner, in that he:
1. placed his hand up Patient A's shorts;
2. moved Patient A's underwear to one side and touched her labia majora;
3. repeated that conduct;
1. on 5 November 2020, the practitioner conducted a chest and rib massage on Patient A in an inappropriate manner, in that he:
1. placed his open hand underneath Patient A's T-shirt;
2. touched Patient A's right breast;
3. repeated that conduct;
1. by the conduct set out in (a) and (b), breached cl 9.2(a) of the Code of Conduct in that he failed to maintain professional boundaries so that Patient A was not exploited physically or sexually;
1. under Complaint Four;
1. failed to make and keep adequately detailed records sufficient to facilitate the continuity of patient care in relation to Patient A, including records of:
1. the consultation on 13 August 2020, including any tests conducted and results thereof;
2. the consultation on 10 September 2020, including any tests conducted and results thereof;
3. the consultation on 8 October 2020, including any tests conducted and results thereof;
4. the consultation on 5 November 2020, including any tests conducted and results thereof.
1. By that conduct, breached cl 9.4(a) of the Code of Conduct.
Clearly enough, the conduct the subject of Complaint Three found established is conduct of the most serious nature. We accept that this conduct was not for any sexual gratification of the practitioner, and was not intentional. We do not find, as submitted by the Commission, that the practitioner purposefully gradually engaged in increasingly inappropriate breaching of professional boundaries in relation to either Patient A's breast of labia.
Nevertheless, given that breasts are sexual in nature, we find that the touching of Patient A's breast was sexual in nature, and can be characterised as conduct falling under s 139B(1)(l), as was the touching of her labia.
Here we note that in Liu at [55] the Tribunal stated improper or unethical conduct encompassed conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession.
We also consider that the conduct was careless or involved a lack of skill, it falls within s 139(1)(a).
In either case, we accept that the conduct the subject of Complaint Three alone is sufficiently serious to amount to a finding that professional misconduct is established.
[49]
Costs
We will reserve the question of costs until the conclusion of the Stage 2 proceedings.
[50]
Other
The matter will be listed for directions on for a Stage 2 hearing next year.
[51]
Conclusion
The Tribunal orders:
1. Complaints One, Three, Four and Five are established.
2. Complaint Two is not established.
[52]
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
[53]
Amendments
22 December 2023 - Paragraphs 18, 23, 28, 33, 184 - the phrase, 'unsatisfactory processional conduct' amended to, 'unsatisfactory professional conduct'.
22 December 2023 - Headings to paragraphs 180, 185, 186, 187 and 188 - the phrase, 'unsatisfactory processional conduct' amended to, 'unsatisfactory professional conduct'.
22 December 2023 - Heading to paragraph 189 - 'unsatisfactory processional conduct' amended to, 'professional misconduct'.
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: 22 December 2023
In relation to the standard of proof, in Ng the Tribunal observed:
131. The onus of proof is the civil standard, as explained in Briginshaw v Briginshaw (1983) 6 CLR 336 and other authorities including Forster v Hunter New England Area Health Service [2010] NSWCA 106).
132. In Forster the Court of Appeal stated:
22 In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid).
23 Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2).
…
134. In Campbell, Sackar J at [72] also referred to Evans and Braddock [2015] NSWSC 249 at [70] - [77], a decision of Hallen J. Hallen J had noted that Emmett J (as his Honour then was) stated in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48]:
When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2).
We turn now to examining whether the facts underlying the Complaints are established.
Before we do, we note that we were assisted by the detailed (and in the case of the practitioner extremely detailed and cross-referenced) submissions of the parties' counsel.
The Commission criticises the practitioner's submissions for the way he "minutely examines" the evidence of Patient A and Ms Boaden, in order to conclude that the "complaint evidence" of both cannot be relied on to support their accounts of what happened. Irrespective of this submission, the Commission notes that, in any event, it does not rely on Ms Boaden's account of what happened on 5 November 2020 in support of the allegations the subject of the complaint.