Health Care Complaints Commission v Yildirim

The Complaint

1. The Complaint consists of two individual complaints: 1. Complaint 1 alleges that Mr Yildirim is guilty of unsatisfactory professional conduct as defined in ss 139B(1)(a) and/or 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) (the National Law) and consists of seven particulars: 1. particular 1 relates to the consultation on 25 July 2018; 2. particulars 2-6 relate to the consultation on 28 July 2018; and 3. particular 7 states that by reason of the conduct described in particulars 1-6, Mr Yildirim "engaged in inappropriate conduct of a sexual nature towards Patient A". 1. Complaint 2 alleges that Mr Yildirim is guilty of professional misconduct under s 139E of the National Law.
2. Mr Yildirim denies the whole of the Complaint.

Onus and standard of proof

1. The Commission bears the burden of proving, on the balance of probabilities, the matters particularised in the Complaint: Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [3] (Leeming JA).
2. The Tribunal is not bound by the rules of evidence and, strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act [1995 (NSW)] applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127], (Leeming JA, Gleeson JA agreeing); Ng v Health Care Complaints Commission [2017] NSWSC 53 at [56]. (cf Gautam v Health Care Complaints Commission at [89] (Payne JA, Leeming JA and Simpson AJA agreeing)). Nonetheless, given the gravity of the allegations made against Mr Yildirim, in deciding whether the particulars alleged are proven, we have adopted the approach set out in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. See Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 at [3].
3. Dixon J explained in Briginshaw (at 362) that when the law requires proof of any fact, "the tribunal must feel an actual persuasion of its occurrence or existence before it can be found" and the more serious the consequences, the more they will affect the consideration. But, as has been repeatedly emphasised, the standard of proof remains the balance of probabilities, not a standard between the criminal standard of proof beyond reasonable doubt and proof on the balance of probabilities.
4. The authorities have cautioned against the use of the term "comfortably satisfied" (a phrase adopted from Rich J in Briginshaw at 350) to imply that proof to a higher standard than the balance of probabilities is required: Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 at [1].

Initiating complaint

1. In a pro forma complaint form lodged online with the Commission on 31 July 2018 at about 08:30 (the initiating complaint), Patient A wrote: I have had long term back pain issues and decided recently I needed to try get it fixed. I found Oscar via Google. My first appointment with Mr Yildirim (5pm Wednesday 25 July) was largely uneventful, other than him pulling my underwear down perhaps a little too much while massaging my glute, so I booked in for a second session the following Saturday (28 July) at 10:20am. When he was doing physical manipulation work on me, he reached under my underwear twice. These things are always hard to explain, but I was laying on my stomach and he was pulling my leg up and back, and to pull on my leg he put his hand under my underwear and also kind of lifted it so that my pubic mound would have been fully visible. He did this with both legs. Then I was laying on my stomach and he was standing behind me at my feet, massaging some part of my back or glute (I can't quite remember because I was already freaked out by then and just trying to get through it) and he pulled my underwear fully away from my vagina, and with his position behind me, he would have had a complete view of everything. He had it pulled away for so long that I did speak up and said "do you need to have my underwear pulled away like that?" and he replied "oh it was just the towel" and seemed to change the subject very quickly. There was no towel on the lower part of my body at the time, I could clearly feel that my vagina was exposed. I've never had an issue with any male medical professional before, I'm happy to have men do my Pap smears or breast exams or anything similar, but my experience with Mr Yildirim left me in tears as soon as I left the clinic. I have never felt unsafe with a male medical professional before. … The main issue(s) I am concerned about are 1: Professional Conduct: Sexual misconduct … As a result of my complaint I want: Disciplinary action against Mr Yildirim, and a refund of the two physio sessions I had with him ($79 for the first and $99 for the second). …
2. According to Patient A, she had considered making a complaint to Bodyfocus until she learned that Mr Yildirim was the principal of that practice. She claimed that she also considered complaining to the police but decided against that, knowing that it would be a case of word against word.

First consultation

1. In a statement dated 8 April 2020, Patient A's then partner, now husband (the husband), stated that when Patient A arrived home after the first consultation she described it as "good" and reported that Mr Yildirim thought her back problems could be fixed with a combination of manipulation and exercises and had recommended she undergo six further treatments.
2. The husband stated that he was a bit sceptical about the likely benefits of manipulation but did not "push the point as it at least seemed like a good starting point".
3. The husband stated that later during that conversation, Patient A said, "It's a good thing I'm not prudish …I felt a bit exposed wearing only a G-string as he gave me a gown which didn't cover my bum". In addition, he stated that Patient A made an offhand comment, "I can see why women may feel vulnerable being alone with an unfamiliar man at night". He stated that he understood that comment to be a general comment about being a woman alone at night and not directed at Mr Yildirim. He said when he asked Patient A if she thought Mr Yildirim was "creepy" or "a creep", she replied, "No".
4. The first consultation, on 25 July 2018, took place at Bodyfocus' Macquarie Park clinic which was located in an industrial estate.

Second consultation

1. The second consultation took place on 28 July 2018 at Bodyfocus' Rhodes clinic which was located in a shopping complex. Patient A and her husband arrived at the complex together and then went their separate ways. They had planned to meet up after the consultation for a Mexican meal.
2. After the active part of the treatment, while alone in a cubicle getting changed, Patient A sent her husband a series of SMS messages: Patient A: "He's showing me some exercises but can you come up to level 8 to the place. Bodyfocus Physio" Husband replied: "Okay" (A few minutes later) Patient A: "I felt really uncomfortable today" Husband: "Unsafe or hurty?" Patient A: "Unsafe"
3. The husband arrived a short time later but did not enter the clinic. He could see Patient A in the reception area. When they made eye contact he mouthed the words, "Do you want me to come in?". She replied, "No". In oral evidence, the husband said he could see that the tip of her nose was red, which in his experience was a sure sign that she was about to cry. However, the "biggest thing that stood out" was that Patient A was not looking at Mr Yildirim. According to the husband, this was most unusual as Patient A is the sort of person who looks people in the eye.
4. On leaving the clinic, the husband took Patient A's hand and they walked away. He stated that she appeared to be fighting back tears. When out of sight of the clinic he asked what had happened and Patient A "broke down in tears". When she regained her composure, she said: "He lifted my underwear right off my body when he was doing one of the manipulations and could see straight down to my vagina."
5. The husband stated that when he offered to confront Mr Yildirim Patient A said, "I just want to go home". He said that Patient A cried most of the way home, repeatedly saying, "Why did he have to do that to me?".
6. The husband stated that when they arrived home they discussed what had happened. He said that he played the devil's advocate and asked whether Mr Yildirim's actions could have been unintentional. Patient A then showed him what had happened and had him physically position himself as Mr Yildirim performing the manipulations.
7. Patient A gave a similar account.

Patient A cancels appointment for third consultation

1. At the end of the second consultation after getting dressed and messaging her husband, Patient A was shown a series of home exercises by Mr Yildirim in a room with other patients. Patient A paid for that consultation and made an appointment for a third consultation on 1 August 2018.
2. Mr Yildirim claimed that in the period between emerging from the treatment room and leaving the clinic, Patient A appeared friendly and relaxed. Patient A does not dispute that account and said she was determined to "just get through it". She claimed that when making the third appointment she had no intention of returning.
3. On 31 July 2018, Patient A rang Bodyfocus to cancel the third appointment. The clinic's electronic appointment records state, "reason for cancellation: feeling better". According to Mr Yildirim, the receptionist who made that entry later told him that in making that entry she had made a mistake and "ticked the wrong box". The receptionist supported that account.
4. The following day Mr Yildirim sent Patient A an SMS message: "Hello [Patient A], this is Oscar your physio. Hope you had a great weekend. Just got the notification that you cancelled and you are feeling better. This is great to hear. Did you get the exercise program I emailed you? If not, please let me know and I will re-send. See how you go with the exercises and ensure that you keep good posture and stay mobile when at work. Get up every 30mins or so. If you have any problems arise please do not hesitate to contact us. Have a lovely day."
5. Patient A did not respond.

Written accounts of the consultations provided by Mr Yildirim and Patient A

1. Mr Yildirim and Patient A each prepared several written accounts about the consultations.
2. The first written account of the consultations prepared by Patient A was the initiating complaint made on 31 July 2018, set out at [13] above.
3. Mr Yildirim was informed of that complaint on 10 August 2018 and responded in a letter addressed to the Physiotherapy Council of NSW dated 15 August 2018 (Mr Y's August 2018 statement). In that statement, Mr Yildirim disputed the allegations made by Patient A.
4. In a document dated 23 August 2018, Patient A responded to Mr Yildirim's August 2018 statement (Patient A's August 2018 response). In June 2019, Patient A prepared a further statement about the two consultations and attached a copy of Patient A's August 2018 response (Patient A's June 2019 statement).
5. On 13 February 2020, Mr Yildirim was interviewed by the Commission. The Commission tendered a copy of the transcript of the record of that interview in these proceedings.
6. On 27 May 2020, Mr Yildirim, through his solicitors, responded to the Commission's outline of the complaint provided under s 40 of the Health Care Complaints Act 1993 (NSW) (Mr Yildirim's section 40 submissions).
7. In March 2021, Mr Yildirim prepared a statement in which he gave a detailed account of each consultation (the March 2021 statement).

First consultation

1. Unless otherwise stated, the following summary is uncontroversial or taken from Mr Yildirim's August 2018 statement or Patient A's August 2018 response.
2. Mr Yildirim and Patient A are in broad agreement about the sequence of events during the first consultation: 1. Patient A arrived at about 17:00 and was greeted by Mr Yildirim who was then the only person at the clinic, other staff having left for the day; 2. at Mr Yildirim's request, Patient A completed a patient questionnaire; 3. Patient A gave a history of longstanding back pain, aggravated by prolonged sitting, walking and standing; 4. Mr Yildirim ushered Patient A into a treatment room and asked her to remove everything except her bra and underpants and to put on a knee-length, disposable gown, which tied at the back. He left the treatment room while Patient A undressed; 5. on returning to the treatment room Mr Yildirim conducted several assessments including a Stork test, which involved Patient A standing and balancing on one leg and Mr Yildirim standing behind her with his hands placed on her lower back; and 6. Mr Yildirim asked Patient A to lie on her back on the treatment table to determine, on his account, "the direction of the rotation". He explained that there was a forward rotation of Patient A's right hip bone which had caused a shortening of her right leg; 7. Mr Yildirim then performed the following treatments: 1. using a Theragun (a handheld massage machine), he massaged Patient A's lower back; 2. using his hands, he massaged Patient A's lower back; 3. using his hands, he massaged one side and then the other of Patient A's gluteus muscles while incorporating "hip internal and external rotation by [Mr Yildirim] manipulating [Patient A's] lower limb which was flexed at the knee" (the hip release); 4. after placing a rolled towel under Patient A's hips, he pressed down on one side of her lower back, and repeated that procedure on her opposite side (the lumbar correction); 5. while Patient A was lying on her side, he gave her lower back a "rotational stretch" and then repeated that procedure on her opposite side; and 6. he asked Patient A to stand and told her that the "right sacroiliac joint was now moving".
3. The consultation went for about 30 minutes. Mr Yildirim told Patient A that her back problems could be fixed with exercise and treatment. He recommended that she attend a further six consultations. In handwritten notes of that assessment, Mr Yildirim wrote "right sacroiliac joint fixated with an anterior rotation of the ilium", in layperson's language, the right side of the pelvis was tilted forward.
4. In the initiating complaint, Patient A described the first consultation as "largely uneventful, other than [Mr Yildirim] pulling my underwear down perhaps a little too much".

Expert evidence

1. At the request of the Commission, physiotherapist, Ms Tracey Powell, reviewed the clinical notes prepared by Mr Yildirim, which broadly accord with his account outlined at [39] above. In Ms Powell's view, the treatment described by Mr Yildirim was orthodox and consistent with "normal practice".

Disputed facts

1. Two key facts are in dispute in relation to the first consultation: 1. whether Mr Yildirim used a towel to cover Patient A's body while she was lying face down on the treatment table (particular 1(a)); and 2. whether Mr Yildirim pulled Patient A's underwear vertically away from her buttocks (particular 1(b)).

Use of towel

1. In the August 2018 statement, Mr Yildirim stated: 1. at the commencement of the treatment, Patient A was laying face down on the treatment table and he "placed a towel directly to cover her as is my usual practice"; 2. as is "my standard practice", he used a Theragun over a towelled region of Patient A's body, for reasons of "patient comfort and hygiene"; and 3. while massaging Patient A's gluteus region and performing a hip release, he covered the side of the region he was not working on with a towel.
2. Mr Yildirim repeated those claims in the March 2021 statement.
3. In her August 2018 response, Patient A stated that she "did not believe" that Mr Yildirim had used a towel when he used the Theragun and later massaged her gluteal region by hand, but this "did not make me feel uncomfortable". She disagreed with Mr Yildirim's claim that during the hip release she was covered with a towel. Patient A repeated those claims in her June 2019 statement.
4. In cross-examination, Patient A said that she "definitely recalled" no towel being used in the first consultation and that was "her consistent recollection". When asked why she wrote "agreed" in the August 2018 response, in answer to [2.1]-[2.16] of Mr Yildirim's August 2018 statement (which contained the statement, "I asked her to lay down on her stomach and placed a towel directly to cover her, as in my usual practice"), Patient A said that was a mistake. She pointed out that in other parts of the August 2018 response she expressly stated that a towel was not used. For example, in response to [2.24] of Mr Yildirim's statement, "At all times, the patient was covered with a towel other than the area exposed during massage and hip release technique", she wrote "disagreed".
5. When asked whether she had felt uncomfortable at the end of the first consultation, Patient A said "[I] didn't have any major alarm bells that would stop me from returning" but recalled thinking that being alone at the practice late in the day was "a relatively vulnerable position for a woman". She agreed, however, that she had held no concerns about any particular conduct or behaviour of Mr Yildirim.

Moving Patient A's underwear

1. In the August 2018 statement, Mr Yildirim gave this description of massaging Patient A's gluteus region: "2.19 In order to work on this area, I informed her that I had to tuck her underwear to the side to expose her gluteal region so that I could work on the muscles. I did this before moving her underwear as is my usual practice. 2.20 She indicated her consent for me to proceed with the treatment and did not object in any way whatsoever to me moving her underwear to access her glute. 2.21 I worked the left side first and when I was finished I covered that side with the towel. 2.22 I then exposed the right side using the identical technique as the left side."
2. In the August 2018 response, Patient A stated that during the first consultation she was wearing a G-string and therefore Mr Yildirim's claim of tucking her underwear to the side was "blatantly untrue". In addition, she stated that while massaging that region, Mr Yildirim pulled her G-string from in between her buttocks which "felt unnecessary but did not make me feel uncomfortable". She stated Mr Yildirim "absolutely did not tell me that he would be doing this or why".
3. In her June 2019 statement, Patient A wrote: "For the next part of the treatment, Mr Yildirim stood beside me, near my hip area, and massaged my gluteus maximus muscle with his hands. During the massage, Mr Yildirim briefly pulled my G-string upwards (that is, vertically), out of my butt crack, and away from my body. He did not tell me that he was going to do this, or why it was necessary. I wasn't overly concerned by this action, but I remember thinking to myself how vulnerable someone could be in this position."
4. In cross-examination Patient A gave this description of Mr Yildirim moving her underwear: "…As mentioned, he wasn't using a towel, so his hands were in direct contact with my skin. The top strap of my thong underwear as he was massaging above that strap, as he moved down he was pulling my underwear down because it was thong underwear, he'd also in pulling it down moved it a little from the top of my - my butt crack, sorry, I can't think of a better word for it, I apologise." Transcript of Proceedings (Tcpt), 6 April 2021, p 36 (35-40)
5. When asked why in the initiating complaint she made no mention of Mr Yildirim pulling her G-String out from her body and instead wrote that he "pull[ed] my underwear down, perhaps a little too much", Patient A stated that in that complaint she had not intended to describe the entire event in detail, as her main concern was the second consultation.
6. When taken to the description in the initiating complaint of the first consultation as being "largely uneventful" and her account of the waist band and the vertical part of her G-string being pulled out and away from her body, Patient A said at the time she had assumed that was necessary. She said she now understands that it was inappropriate because she was uncovered.
7. In cross-examination, Mr Yildirim said that he had no recollection of the type of underwear Patient A wore during either consultation. He agreed with the proposition that if a patient was wearing a G-string it would not be necessary to touch it to access the gluteal region. He said, however, it would still be necessary to move the towel "towards the mid-line to get enough space to work with".
8. Mr Yildirim agreed that during the first consultation he put his fingers under the band of Patient A's underwear, "when using the towel to drape".

Second consultation

1. While there are significant differences between their respective accounts of the second consultation, Patient A and Mr Yildirim agree on the following facts: 1. Patient A told Mr Yildirim that for the first couple of days after the last consultation she had felt "slightly better"; 2. at the commencement of the consultation, Mr Yildirim asked Patient A to remove all but her bra and underwear and to change into a disposable gown of the type provided at the first consultation; 3. after assessing Patient A using the Stork test, Mr Yildirim said her right hip joint had become fixated, that this was not unusual, would take a few sessions to correct and he would be repeating the treatment given in the first consultation; 4. for a few minutes Mr Yildirim massaged Patient A's lumbar spine and gluteal and hip region using a Theragun; and 5. at some point during the consultation Patient A made a comment about her underwear being moved.
2. The main facts in dispute are: 1. whether Mr Yildirim used a towel to cover Patient A's body; 2. whether, while massaging Patient A's mid-back and gluteal muscles with a Theragun, Mr Yildirim moved Patient A's underwear from the outside of her buttocks to the inside (particular 2); 3. whether Mr Yildirim instructed Patient A to roll onto her right side with her right leg straight and her left leg bent at the knee behind her (particular 3), then proceeded to place his left hand inside the left-hand side of her underwear and to lift her underwear away from her body (particular 4); 4. whether Mr Yildirim repeated the above actions while Patient A was lying on her left side (particular 5); and 5. whether, while massaging Patient A's back while she was lying face down on the treatment table, Mr Yildirim pulled her underwear away from her vagina (particular 6).

The underwear comment

1. Patient A and Mr Yildirim agree that during the second consultation, Patient A made a comment about her underwear (the underwear comment). However, they disagree about the context in which Patient A made that comment and the words she used.
2. Patient A claims that she wore briefs to the second consultation to give her a bit more coverage.
3. Patient A has consistently claimed that she said, "Does my underwear have to be pulled away like that?" (emphasis added). On the other hand, Mr Yildirim has consistently claimed that Patient A said, "does my underwear have to be positioned like that?" (emphasis added).
4. Patient A and Mr Yildirim gave conflicting accounts about what occurred immediately before and during the underwear comment. According to Patient A, she made that comment the third time Mr Yildirim moved her underwear in a manner she found inappropriate and when she was lying face down.
5. In the initiating complaint (set out in full at [13] above), Patient A stated: "When he was doing physical manipulation work on me, he reached under my underwear twice. These things are always hard to explain, but I was laying on my stomach and he was pulling my leg up and back, and to pull on my leg he put his hand under my underwear and also kind of lifted it so that my pubic mound would have been fully visible. He did this with both legs. Then I was laying on my stomach and he was standing behind me at my feet, massaging some part of my back or glute (I can't quite remember because I was already freaked out by then and just trying to get through it) and he pulled my underwear fully away from my vagina, and with his position behind me he would have had a complete view of everything. He had it pulled away for so long that I did speak up and said, "do you need to have my underwear pulled away like that?" and he replied, "oh it was just the towel" and seemed to change the subject very quickly. There was no towel on the lower part of my body at the time, I could clearly feel that my vagina was exposed."
6. In the August 2018 statement, Mr Yildirim stated that Patient A made the underwear comment while he was performing the "muscle release" on her right hip: "2.44 Whilst performing the muscle release on her right hip, I was standing on the left side of the patient. During the treatment on the right hip region, as I was manipulating her right hip between internal and external rotation and applying frictions to the deep glute muscles with my hands, she asked me something to the effect "does my underwear have to be positioned like that?" 2.45 Sensing that she may have felt uncomfortable with the treatment position, towel pulling her underwear toward midline, I immediately adjusted the towel to cover all of her glute region and replied with words to the effect 'sorry I will move the towel'."
7. In the August 2018 response, Patient A disputed that account and gave this description of the three occasions Mr Yildirim allegedly moved her underwear: [Responding to [2.40]-[2.43] of Mr Yildirim's August 2018 statement]: "… I was laying prone on the massage table. Mr Yildirim was standing on my right-hand side and had me bend my left leg at the knee, then brought my leg over and back over my right leg. Mr Yildirim then reached over to the front of my left hip and slid his hand under my underwear to pull my hip back. I have found a video that is similar to the action taken and included a link and screenshot as Annexure A Mr Yildirim's hand position was similar to that marked with a red circle on the screenshot, however, my left leg was pulled further back and over my right leg, with his left hand moved around to the front of my hip and under my underwear. He also momentarily moved his hand away from my body while it was underneath my underwear, which exposed my vagina." (Emphasis added) I had a full view of Mr Yildirim reaching under my underwear at my hip and the action he used in order to lift my underwear away from my vagina (specifically my pubic mound due to his position) during both these manipulations. I was wearing a robe but due to the nature of the action, in lifting my leg up and over, the robe remained on the massage table and my body was completely exposed. There was no towel used to cover my body for this. Mr Yildirim did not explain why he needed to reach under my underwear at the front of my hip in order to complete this release or obtain my consent to do so. [Responding to [2.44] - [2.45] of Mr Yildirim's August 2018 statement]: I disagree with Mr Yildirim. It is difficult to give a vivid description of what occurred at this point because I was lying face down on the massage table, however, Mr Yildirim was not moving my underwear to the side to expose my glute region, he had my underwear pulled away from the labial region of my vagina. There was no towel used and I could clearly feel that my labia were exposed to the air and not covered with my underwear. With Mr Yildirim's position, this was providing him with a full view of that region. Mr Yildirim asserts that I asked, "does my underwear have to be positioned like that?", however, I maintain that I asked him "does my underwear have to be pulled away like that?" because I could feel my vagina was exposed. Mr Yildirim did mention that he would move the towel, which was confusing to me because I knew there was no towel on me at that point."
8. Patient A gave a similar account in the June 2019 statement. In cross-examination, Patient A gave this description of the position of her body the first time Mr Yildirim moved her underwear in a manner she considered to be inappropriate: "A. Sure. I can't recall if it was the left or the right side to begin with, so my - if it was my left side I was laying on my stomach, he was on my right-hand side, so he took my left leg, he bent it perpendicular at the knee and then sort of pulled it back and over to the right-hand side, so towards him, which, as I was wearing a gown, loosely tied, the gown fell forward. He reached his hand to my hip to perform whatever the manipulation was and that's where he instead of reaching the top of my underwear went a little further underneath, and that was done on both sides." Tcpt, 6 April 2021, p 52 (8-14)
9. Later, Patient A was asked a series of questions about how her body came to be in the position it was in the first time Mr Yildirim put his hands inside her underwear: Q: "…You were lying on your stomach? A: Yes Q. If we take your right-hand side as the example, your right leg was bent at the knee, not up in the air but over your left leg, is that right? A. Yeah, so from the knee to the ankle perpendicular and then up and over back, I guess with my foot pointing back towards the bed. Q. So the initial movement was-- A. Was a bend and then it-- Q. --around 90 degrees or so up? A. Yes. Q. Then laid down across your other leg? A. Yes, up and over the other. Q. Was it then at that point your right leg effectively laid on top of your left leg, or was it down on your left leg? A. Behind my - like I said to the other side of. Not on top of but I guess my foot was on the other side of my left leg. Q. Right, were your two legs touching? A. Maybe at the thigh. Q. As I understand it you don't recall sitting here how your leg got into that position, that is whether Mr Yildirim pulled your leg into that position or asked you to move your leg into that position or a combination of both? A. No, I couldn't confidently recall. Q. As I understand it you don't recall sitting here how your leg got into that position, that is whether Mr Yildirim pulled your leg into that position or asked you to move your leg into that position or a combination of both? A. No, I couldn't confidently recall. Q. As I understand it, once your leg is crossed over in that position, you say that Mr Yildirim then pulled you further back onto your side, is that right, or is that how you got into a position that was partly on your side? A. Yes, I was in a position that was partially on my side. Q. Do you say that it was when you were in that position that Mr Yildirim put his hand inside your-- A. Yes, as my leg was on the outside and my body was tilted, yes." Tcpt, 6 April 2021, pp 56 (18) - 57(7)
10. In cross-examination, Patient A said she could not recall "lying on her stomach with her right leg bent in the air at the knee and Mr Yildirim holding that leg with his right hand and applying pressure with his other hand on her right hip". She disagreed with the proposition that she made the underwear comment while in that position: "I could feel my underwear was pulled away from my body via a hand". Tcpt, 6 April 2021, p 48 (45, 46).
11. In cross-examination, Patient A: 1. disagreed with the proposition that after she made the underwear comment, Mr Yildirim said words to the effect, "I'm sorry, I'll move the towel". According to Patient A, Mr Yildirim said, "it's just the towel" and her best recollection was that there was "no towel at all and certainly no towel on my intimate region"; 2. agreed that on three occasions Mr Yildirim moved her underwear in a manner that made her feel uncomfortable: twice when lying on her side, once while lying on her stomach; and 3. said that her best recollection of when Mr Yildirim first interfered with her underwear was in the second half of the consultation: "The instances happened …almost one after the other, so one side, other side and then the last was the - when I was laying on my stomach, and then we moved up into the other room".

Images provided by Patient A to describe the first occasion Mr Y put his hand under her underwear

1. Patient A used two different images to describe the position of her body the first time Mr Yildirim allegedly put his hand under her underwear. Patient A annexed the screenshot below, taken from a YouTube video (the YouTube screenshot) to the August 2018 response.
2. Patient A attached the photograph below to the June 2019 statement. According to Patient A it shows her and her husband attempting to re-enact the position of her body the first time Mr Yildirim allegedly slid his hand under her underwear (the re-enactment photograph). [1]
3. In cross-examination, Patient A said that the re-enactment photograph was taken around the time she prepared the June 2019 statement and while "certainly not perfect" was the "best representation" she could provide of the angles of her leg and torso when Mr Yildirim first put his hands under her underwear.
4. Patient A said that in preparing the August 2018 response she searched the internet "to try and give a pictorial representation of the position [she] was trying to describe" and the YouTube screenshot was the "best she could find". In cross-examination, she disagreed with the proposition that that screenshot approximated the position of her body when Mr Yildirim put his hands inside her underwear and pointed to the following passage from the August 2018 response: "I have found a video that is similar to the action taken and included a link and screenshot as Annexure A. Mr Yildirim's hand position was similar to that marked with a red circle on the screenshot, however my left leg was pulled further back and over my right leg, with his left hand moved around to the front of my hip and under my underwear. He also momentarily moved his hand away from my body while it was underneath my underwear, which exposed my vagina."

Extent of the movement of the underwear

1. In cross-examination, Patient A was questioned about the length of time and the distance her underwear was pulled away from her body. She said it was for "a couple of seconds, like five to 10 seconds overall" and for a distance of about five centimetres. She disagreed with the proposition that that claim was inconsistent with what she wrote in the August 2018 response - "he also momentarily moved his hand away from my body while it was underneath my underwear, which exposed my vagina" (emphasis added).
2. Later in cross-examination, Patient A said that on the third and final time Mr Yildirim pulled her underwear away from her body: "It was long enough that I felt uncomfortable enough to actually say something. So it would've been maybe - another ten seconds or so. To the point that I couldn't just wait for him to finish."
3. In cross-examination, Patient A agreed with the proposition that out of the three occasions Mr Yildirim allegedly pulled her underwear away from her body, the third was the longest. She said she was unable to give an exact estimate of time, because "I was in a state of panic". When taken to the comment contained in the June 2019 statement ─ that on that occasion Mr Yildirim pulled her underwear away for about 20 seconds ─ she said that when she wrote that statement, she believed that estimate to be accurate.

Sequence of events after Patient A made the underwear comment

1. In the August 2018 statement, Mr Yildirim stated that in the intervening period between Patient A making the underwear comment and him leaving the treatment room to allow her to get dressed, they engaged in casual conversation. In addition, he claimed that after Patient A made that comment: 1. he performed a lumbar correction (pressing down on Patient A's lower back while she was lying face down with rolled towels under her hips); 2. while Patient A was lying on her side, he gave her lower back a "rotational stretch" and then repeated that procedure on her opposite side; and 3. he asked Patient A to stand and told her that the "right sacro-iliac joint was now moving".
2. Mr Yildirim made the same claim in his March 2019 statement but gave a more detailed and technical description of both the rotational stretch and the lumbar rotation.
3. In the August 2018 response, Patient A agreed with the sequence of events described by Mr Yildirim set out at [77] above.
4. In cross-examination, Patient A said: 1. she thought she could recall Mr Yildirim placing towels under her hips and pressing down on her lower back (the lumbar correction) but could not recall at what point in the consultation that occurred; 2. she could not recall whether Mr Yildirim instructed her to lie on her side and to tuck her legs to her stomach but agreed that could have happened; and 3. she could not recall whether, at the end of the treatment, Mr Yildirim asked her to stand on one leg (the Stork test).

Mr Yildirim's account

1. In the March 2021 statement, Mr Yildirim stated that after using the Theragun on Patient A's lumbar spine, gluteal and hip region he proceeded to manually massage Patient A's lumbar spine. He stated that "before working on the glute region", he again informed Patient A that he had "to adjust her underwear a little to expose her gluteal muscle". He claimed that she did not object.
2. He stated that, as occurred in the first consultation, he then proceeded to "perform techniques using deep tissue with frictions incorporating hip internal and external rotation": "25 I proceeded to perform some manual soft-tissue techniques. I commenced with performing a general release with the patient laying fully flat on her stomach first. After this I proceeded to performing deep tissue with frictions incorporating hip internal and external rotation by manipulating the patient's lower limb, which was flexed at the knee. I was standing on the left of the patient at her hip level, as is my preferred side. From this position, I manipulated her left hip by controlling the left lower leg Whilst performing the hip release technique I use my left knuckle or hand to apply the pressure technique on the hip muscles whilst simultaneously moving the lower leg left and right with the knee bent to 90 degrees. Typically I start with left glute release, followed by the right glute release This is a particularly effective technique for releasing the hip muscles and improving the success of the sacroiliac joint correction. 26 I worked on the left side hip/gluteal muscle first and when I was finished I covered that side with the towel." 27 I then exposed the right side gluteal muscle using the same technique as the left side. I used the same technique described above on the right side gluteal muscle."
3. Mr Yildirim gave this account of what was occurring when Patient A made the underwear comment: "52 [I] was standing on the left side of the patient. During the treatment on the right hip region as I was manipulating her right hip between internal and external rotation and applying frictions to the deep glute muscles with my hands, she asked me something to the effect of 'does my underwear have to be positioned like that?' 53 From her statement I believed that she may have felt uncomfortable with the treatment position having somehow moved her underwear so I placed her leg down and immediately adjusted the towel to cover all of her glute region and replied with words to the effect of 'sorry I will move the towel' I did not stop to look what had happened to her underwear or try to adjust that, I just wanted to immediately make sure the patient was comfortable This was the same treatment technique applied to the left hip and the same as that performed during the first consultation During the hip release technique on the right side, I am standing on the left of the patient The only area that is not covered by the towel is the right glute, approximately the outer half. My left hand is performing the pressure technique to the glute muscles and my right hand is holding her right leg, performing movements to the left and right. This movement creates internal and external hip rotation. My left hand is producing the pressure, which produces the releasing effect as the hip is moving from internal to external rotation. I concluded the hip release technique shortly thereafter whilst the patient was covered with the towel. I then concluded with some gentle lumbar mobilisations as we did in the first consultation."

The lumbar manipulation

1. According to Mr Yildirim, in each consultation, he performed a "lumbar manipulation".
2. In the August 2018 statement he gave this description of that treatment: "I asked her to lay on her side so I could give her lower back a rotational stretch, which I performed".
3. In the March 2021 statement Mr Yildirim gave a more detailed and technical description of that treatment: "[I] gently pulled her right arm/shoulder up and forward to place her spine into rotation. I then gently pull the patient's left knee up towards their stomach so their hip is in some flexion and this starts to place the lumbar spine into rotation I then proceeded to explain that I would be now placing her into the lumbar stretching position and I told the patient that I was just going to tuck my left arm under her left arm and place my right arm over her left hip region From this position, my right hand is cradling the lower lumbar spinous processes and my right forearm is stabilising the left hip and applying the gentle lumbar rotation force I ask the patient to try and relax whilst I gently apply the rotational stretch to the lumbar spine. Typically I will perform a gentle sustained stretch lasting 15-20 seconds."
4. When interviewed by the Commission in February 2020, Mr Yildirim stated that during the first consultation he performed "a gentle rotation technique" but in the second consultation he performed "the manipulation as well".
5. In oral evidence, Mr Yildirim explained that by the term "manipulation" he meant the "final point in the lumbar mobilisation, which ranged from low grade to grade 5". He said that during the second consultation, he performed "a grade 4 rotation" but not a thrust, and heard an "audible pop". He said he did not get an audible pop in the first consultation.
6. In answer to questions from the Tribunal, Patient A stated that Mr Yildirim might have used the term "manipulation" in the context of the "movement he did with the towel and sort of pushing like it as I was breathing out pushing down". She said she could not recall Mr Yildirim using the words "crack", "click" or "noise". She said Mr Yildirim did not inform her of the risks of the lumbar mobilisation or suggest that there were alternative options to that treatment.

Clinical notes

1. Mr Yildirim made handwritten notes of each consultation. He claimed he made those notes during and/or shortly after each consultation.
2. Mr Yildirim entered the handwritten notes of the consultations into Bodyfocus' electronic progress notes shortly after being notified of the initiating complaint by the Commission on 10 August 2018. He claimed that his usual practice was to enter his handwritten notes into the Bodyfocus' electronic progress notes within the week. He claimed that the reason for the delay was because it had been a particularly busy week and there was a backlog of clinical notes.
3. In Ms Powell's opinion, the treatment described by Mr Yildium in the clinical notes of the second consultation was an acceptable form of treatment for Patient A's presenting condition.

Evidence of receptionist

1. Ms Chantal Davies was employed as a receptionist at Bodyfocus between May 2018 and October 2018. In a statement tendered by Mr Yildirim, Ms Davies stated that throughout the period she worked at Bodyfocus she did not see any patient who appeared to be "uncomfortable, upset or distraught at the end of a treatment session with Mr Yildirim". Ms Davies worked Monday to Friday, and on the occasional Saturday to "help out". She could not recall whether she had worked any Saturdays in July 2018.
2. In his August 2018 statement, Mr Yildirim stated that Ms Davies was working on 28 July 2018. In cross-examination, he agreed that this claim did not accord with the clinic's appointment records which recorded that the appointment made by Patient A for 1 August 2018 was made by another receptionist, Ms Selim Karakas, who usually worked on Saturdays. Mr Yildirim said he could not explain that apparent discrepancy and suggested that Ms Davies may have used Ms Karakas' log-in details.
3. After Ms Davis gave evidence, Mr Yildirim tendered an email from Ms Selim stating that she last worked at Bodyfocus on 14 July 2018.
4. Nothing turns on whether Ms Davies in fact worked on 28 July 2018 given that Patient A agreed that she appeared to be composed in the 10 minutes or so before she left the clinic.

Submissions: the Commission

1. The Commission contends that the Tribunal can be satisfied that the facts alleged in particulars 1 to 6 of Complaint 1 are established for the following reasons: 1. Patient A's account of what happened during the second consultation is supported by the SMS messages sent to her husband stating that she felt "uncomfortable … unsafe" together with her husband's account of Patient A's emotional distress on leaving the practice. While not direct evidence of what occurred during that consultation, the evidence of immediate complaint and distress nonetheless supports Patient A's account; 2. there is no evidence of motive suggestive of bad faith on Patient A's part, nor was that suggested to Patient A; 3. Patient A gave her evidence in a direct and forthright manner, made several concessions, including that her recollection of the consultations was limited. In contrast, in cross-examination it often took a series of questions for Mr Yildirim to make even the most basic concessions, and at times he gave a strong impression of being evasive. In addition, in cross-examination, while initially claiming to have a specific recollection of certain events, when tested he said "it was part of my usual practice, it's something I would have done"; 4. Mr Yildirim's claim of tucking Patient A's underwear to the side to expose her gluteal region in the first consultation cannot be accepted given his acknowledgement that it would not have been necessary to move her underwear in that way if she had been wearing a G-string; and 5. while there are some inconsistencies between the various accounts given by Patient A about the second consultation, she has given a consistent account of her underwear being moved three times in a manner she found to be inappropriate. In contrast, there are significant inconsistencies in the evidence given by Mr Yildirim and between the handwritten and electronic notes made of each consultation.

Submissions: Mr Yildirim

1. Mr Yildirim argues that the Tribunal should prefer his account of the facts in dispute. While acknowledging that Patient A made several concessions in cross-examination, he argues that it cannot be said that Patient A presented in a way that was materially different to the way he presented. He did his best to answer questions put to him.
2. With respect to the first consultation, Mr Yildirim points to: 1. Patient A's description of that consultation in the initiating complaint as "largely uneventful other than other than him pulling my underwear down perhaps a little too much while massaging my glute"; 2. Patient's A report to her husband made shortly after that consultation which was in much the same terms; 3. Patient A's failure to mention in the initiating complaint that Mr Yildirim had failed to use a towel to cover her body; 4. Patient A's failure to mention in the initiating complaint the allegation that Mr Yildirim pulled her "G-string vertically upward and away from her buttocks". Mr Yildirim argued that it could not reasonably be suggested that the action of pulling a "G-string vertically upward and away from [the] buttocks" could be mistaken for "pulling … underwear down perhaps a little too much". Mr Yildirim argues that the latter description is entirely consistent with Patient A's oral evidence of her underwear being moved down more than she was expecting, but not to the extent that it troubled her or bothered her; and 5. the statement made by Patient A in the August 2018 response, prepared a matter of weeks after the consultations, that she agreed with the entirety of Mr Yildirim's description of the first consultation contained in his August 2018 statement, including "place[ing] a towel directly to cover her".
3. Mr Yildirim contends that his account of the second consultation should also be preferred for the following reasons: 1. the inconsistencies between: 1. the sequence of treatment described by Patient A in the August 2018 response, the 2019 statement and in cross-examination. Mr Yildirim points out that in the August 2018 response, Patient A expressly agreed with his claim that after the underwear comment he performed a lumbar correction and a rotational stretch and then tested her hip movement while she was standing. In contrast, in cross-examination Patient A said that she made the underwear comment at the end of the active part of the treatment, immediately before Mr Yildirim left the treatment room. He points out that claim is inconsistent with Patient A's acknowledgement that after she made that comment, they engaged in casual conversation; 2. Patient A's claim of lying on alternate sides of her body while Mr Yildirim pulled the front of her underwear away from her body and Mr Yildirim's clinical notes of the second consultation. Those notes record the lumbar rotation as the only treatment which required Patient A to lie on her side. The lumbar rotation was markedly different to the treatment described by Patient A. Notably in that treatment Mr Yildirim stood in front of, not behind, Patient A. 1. The inherent implausibility of: 1. Patient A consenting to further treatment while lying on her stomach with her legs slightly apart, if immediately before that Mr Yildirim had twice manipulated her underwear in a manner she found objectionable; 2. Patient A being able to maintain the appearance of being calm, friendly and at ease throughout the 10 or so minutes between getting dressed and leaving the clinic, if she had been as distressed as claimed about what occurred during that consultation. This, argues Mr Yildirim, tends to suggest that her concerns about that consultation were not front and centre in her mind; and 3. Mr Yildirim inappropriately manipulating Patient A's underwear while she was in "a completely unrecognised physiotherapy position", given the multiple opportunities available to him to do so throughout the course of the consultation while she was in a recognised physiotherapy position; and 1. the stark contrast between the YouTube screenshot and the re-enactment photograph, which casts doubt on the reliability of Patient A's recollection of her underwear being moved in the second consultation.

Principles: assessment of credit

1. In Campbell v Campbell [2015] NSWSC 784 Sackar J at [73]-[79] considered the principles which apply to the assessment of the credit of a witness: 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 are all matters of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477; 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: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] (Keane JA); referred to with approval by Leeming JA in State of New South Wales v Hunt [2014] NSWCA 47 at [56]; 3. in cases involving events which occurred long before the litigation, a court 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: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable facts, 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: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157].
2. In Campbell at [75], Sackar J referred to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431: "A witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
3. In in an oft-quoted passage, McLelland CJ in Eq (as his Honour then was) in Watson v Foxman (1995) 49 NSWLR 315 at 318 at 318, discussed the reliability of human memory: "[H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."

Findings and conclusions

1. It falls to the Commission to establish the facts alleged in Complaint 1 on the balance of probabilities.
2. We commence by making some general observations about each witness. In approaching the evidence, we have been mindful that the authorities have consistently cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on demeanour. That is because a witness may, for example, appear evasive or combative for reasons that are unrelated to the honesty or reliability of their evidence. Likewise, a witness may give evidence in an apparently forthright and persuasive manner and yet their evidence may be found to have been unreliable or, worse, dishonest. Scientific research has cast doubt on the ability of anyone, including decision-makers, to distinguish truth from falsehood on the basis of appearances: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [30]-[31]. Nevertheless, as the High Court made clear in Fox v Percy at [41], demeanour evidence, if not decisive, remains relevant to the assessment of the credibility of witnesses, especially when supported or contradicted by other forms of evidence.
3. Patient A impressed us as being a thoughtful and measured witness who endeavoured to give an honest recollection of the events in question. She did not appear to attempt to embellish or colour her account. In oral evidence, she frankly conceded that she could no longer recall several matters of significance, including whether Mr Yildirim had covered her body with a towel during the second consultation. As an intelligent woman, it would have been apparent to Patient A that that issue was significant.
4. Likewise, Patient A's husband was an impressive witness. He did not attempt to embellish his account or "fill in the gaps". We consider that he gave forthright and honest evidence. Mr Yildirim did not suggest otherwise.
5. In contrast, Mr Yildirim struck us as at times as being somewhat evasive or defensive in the manner in which he gave his evidence. For example, in cross-examination he was slow to concede that he no longer had a clear memory of several key parts of the consultations and many of his claims were based on what he "would have done" or his "usual practice". In addition, on occasion he avoided answering questions directly. Nonetheless, it could not be said that overall, he presented as an especially unreliable or untruthful witness. Given that the outcome of these proceedings has the potential to destroy his career, we have taken care not to confuse apparent defensiveness with untruthfulness or unreliability.
6. Recent complaint evidence is relevant to the proof of facts in issue in sexual assault trials: Papakosmas v R [1999] HCA 37; 196 CLR 297. The same principle is applicable here.
7. While the complaint evidence of Patient A contacting her husband while she was still at the clinic and being visibly distressed within a short period of leaving the clinic does not, of itself, prove that the conduct about which Patient A complained to her husband had actually occurred, nonetheless it is powerful evidence supporting the probability of that conduct having occurred. The following evidence is relevant.
8. First, the SMS message sent by Patient A telling her husband that she "felt really uncomfortable today … unsafe". Patient A's claim that she was not troubled by being treated and examined by male health practitioners was corroborated by her husband and was unchallenged. Her complaint was made very soon after the alleged events and was the complaint of a person who was reasonably comfortable with appropriate therapeutic examination of her body by male health practitioners.
9. Second, the account given by Patient A of being extremely upset by the second consultation was corroborated by her husband.
10. Third, the husband's evidence of being told by Patient A within minutes of leaving the clinic that Mr Yildirim had lifted her underwear right off her body and could see "straight down to my vagina". As Mr Yildirim points out, that evidence only partially corroborates Patient A's account because, as the husband conceded in cross-examination, he was unsure whether his wife had complained of a single, or multiple instances of her underwear being moved. Nonetheless, his evidence is supportive of Patient A's consistent claim that her underwear was lifted off her body.
11. Fourth, Patient A's claim made in the initiating complaint of Mr Yildirim twice reaching under and then pulling her underwear away from her vagina.
12. Also relevant is the consistency of the accounts given by Patient A. As we discuss below, there are several inconsistencies between those accounts. Nonetheless, since making the initiating complaint Patient A has consistently claimed that during the second consultation Mr Yildirim moved her underwear three times in a way that she considered to be inappropriate. On that principal claim Patient A was consistent and did not move in cross-examination. Further, while the underwear comment does not prove that Mr Yildirim moved her underwear in the manner alleged, it nonetheless supports Patient A's claim of her underwear being moved in a manner she found to be objectionable, so much so that she spoke up at the time.
13. For the reasons that follow, we are not persuaded that Patient A's evidence is unreliable for the reasons advanced by Mr Yildirim.
14. First, in relation to the YouTube screenshot and the re-enactment photograph, it will be recalled that the former shows a patient lying face down; the latter shows a patient (Patient A) lying on her side.
15. Cross-examination was not the first occasion when Patient A stated that the YouTube screenshot was not an entirely accurate depiction of the position of her body, and her position vis-a-vis Mr Yildirim. In the August 2018 response, Patient A stated that while the position of Mr Yildirim's hand was similar to that of the practitioner in the YouTube screenshot, her "left leg was pulled further back and over my right leg, with his left hand moved around to the front of my hip and under my underwear". In cross-examination, she said when she prepared that response, the YouTube screenshot was the best pictorial representation "she could find". In short, she could only find an image that approximated the actual position.
16. If she had been manufacturing evidence, as Mr Yildirim implies, it would have made no sense for two such inconsistent images of such an elaborate charade to have been presented. For an untruthful witness to have manufactured evidence with such obvious inconsistencies would have been, to say the least, incompetent.
17. The more likely explanation is that given by Patient A: the YouTube screenshot was the closest approximation she could find at the time when she prepared the August 2018 response and in the re-enactment photograph she attempted to depict her best recollection of her actual position at the time of the alleged misconduct.
18. The husband's evidence tends against Mr Yildirim's assertion that Patient A's recollection of the position of her body when he allegedly placed his hand under the front of her underpants has changed over time. In cross-examination the husband said that on the day of the second consultation, Patient A demonstrated to him the position of her body: "A. Yeah, so she was - I think she was lying on her stomach and maybe like something to do with like her leg or something, but he like basically rolled her over from the hip and at that point his hand went down into her underwear and lifted it off, and from the position that she had me standing there, I could see straight down to her vagina." Tcpt, 6 April 2021, p 94 (30-35)
19. That account is broadly consistent with the depiction of Patient A's body in the re-enactment photograph and the description she gave in the August 2018 statement of her "left leg … pulled further back and over my right leg, with his left hand moved around to the front of my hip and under my underwear". The husband could not recall when that photograph was taken. It seems most likely, as Patient A recalled, that it was taken at around the time she prepared the June 2019 statement.
20. Second, we are not persuaded Patient A's evidence is unreliable because of the inconsistencies in her evidence about whether a towel was used to cover her body during the first consultation. As Mr Yildirim points out, in the August 2018 response in answer to [2.1]-[2.16] of his August 2018 statement, which contained the statement ─ "I asked her to lay down on her stomach and placed a towel directly to cover her, as is my usual practice" ─ Patient A wrote, "agreed". The reference to the towel occupied a single sentence in [2.1]-[2.16], which ran to two pages. The explanation given by Patient A in cross-examination that in writing "agreed" she had made a mistake and overlooked the reference to a towel, is consistent with the balance of the August 2018 response. In answer to [2.24] of Mr Yildirim's statement - "At all times, the patient was covered with a towel other than the area exposed during massage and hip release technique" - she wrote "disagreed". In addition, in response to Mr Yildirim's claim of using a towel during both the Theragun and manual massage of her gluteal region, she wrote "I don't believe a towel was used".
21. Third, we are not persuaded Patient A's evidence is unreliable because of the internal inconsistencies in the accounts she gave of the second consultation, in particular when the underwear comment was made and the sequence of treatments in that consultation.
22. In cross-examination, Patient A said she made the underwear comment at the end of the active part of the treatment just before Mr Yildirim left the room. This was at odds with the claim she made in the August 2018 response, that after making that comment, she and Mr Yildirim chatted casually, he then performed the rolled towel treatment, followed by the lumbar spine manipulation and finally asked her to stand "to re-test her right sacro-iliac joint". In the June 2019 statement, Patient A made no express reference to what happened between making the underwear comment and sending an SMS to her husband.
23. Further, as pointed out by Mr Yildirim, in cross-examination not only could Patient A not recall the sequence of events after the underwear comment but could not recall whether the rolled towel treatment and the lumbar spine manipulation in fact occurred.
24. We reject Mr Yildirim's submission that it is inherently implausible that Patient A could have a clear recollection of what happened when and immediately before she made the underwear comment, but not after. It is unremarkable that some three years after events which she found to be traumatic, Patient A's recollection of all aspects of the second consultation, especially those parts she was not troubled by, was imperfect. Both Patient A and Mr Yildirim agree that she made a comment about her underwear being manipulated. That is the key piece of evidence, not the exact sequence of everything else that happened at around that time or her recollection of those things. It was the manipulation of her underwear that gave rise to the complaint, and it is therefore unsurprising that this is what she remembers most clearly and that she has a fragmented recollection of the other events.
25. Fourth, we are not persuaded Patient A's evidence is unreliable because of the differing estimates she gave of her underwear being held away from her body, in terms of time and distance. Those differences being are largely of degree; no one was timing these things and the differences are marginal.
26. Fifth, we reject the argument that it is inherently implausible that had Mr Yildirim wanted to inappropriately manipulate Patient A's underwear, he would have chosen to do so after putting her body in an unrecognised physiotherapy position. That there were other opportunities available to Mr Yildirim to manipulate Patient A's underwear does not make it implausible that he chose to do so in a position that was not a recognised physiotherapy treatment position.
27. Sixth, we also reject the argument about the inherent implausibility of Patient A being shocked and distressed about what occurred during the second consultation and at the same not speaking up to complain before the third occasion her underwear was moved in a way she considered to be inappropriate and being able to maintain composure in the 10 minutes before leaving the clinic. In our view it is entirely plausible that, as claimed by Patient A, she was so shocked by events that she delayed speaking up. Similarly, it is not implausible that, as claimed, she did not want to break down in a public area and managed to hold herself together in the 10 or so minutes between sending an SMS to her husband and leaving the clinic.
28. Seventh, we also reject the argument that the change in Patients A's view of the first consultation undermines the reliability of her evidence. The second consultation has at all times been the focus of Patient A's concern. Her complaint in relation to the first consultation relates only to Mr Yildirim's failure to use a towel and her underwear being moved on a single occasion. It is plausible that following the second consultation, on reflection, Patient A revised her original view that it was unremarkable that she was not covered by a towel at the first consultation.
29. Finally, the fact that Mr Yildirim's handwritten notes of the consultations and the notes he entered in the clinic's electronic records after being notified of the complaint are largely consistent, proves little. The clinical notes are, at best, neutral documents. A clinician is unlikely to record incriminating material in clinical notes even if they are contemporaneous. The lack of reference in the notes to an event does not prove it did not happen; it proves, at most, that an event was not recorded.

Summary

1. Although only Patient A and Mr Yildirim were present during the consultations, in our view, it is more probable than not that Patient A's account of her underwear being manipulated by Mr Yildirim in the second consultation in the way she described, is reliable. While we largely accept her account of the first consultation, for the reasons we explain below, we are not satisfied that in that consultation Mr Yildirim pulled her G-String "vertically upwards and away from her buttocks".
2. Our reasons, in summary, are as follows.
3. First, much of the evidence given by both parties is uncontested, including the fact that Patient A, in the second consultation, remarked on or queried Mr Yildirim's positioning of her underwear during the treatment.
4. Second, in the second consultation before leaving the clinic, Patient A texted her husband in distress complaining she had felt unsafe.
5. Third, her husband gave uncontested evidence that when he saw her shortly after the treatment was finished, she was very distressed.
6. Fourth, although after the first treatment Patient A had agreed with Mr Yildirim's suggestion that she undergo a series of treatments, following the second consultation she cancelled the third appointment and never made any further arrangements for treatment by him.
7. Fifth, Patient A complained to the Commission about Mr Yildirim three days after the second consultation.
8. Sixth, although her recollection of peripheral details of the second consultation was somewhat fragmented and at times inconsistent, her description of the manipulation of her underwear remained highly consistent in the various versions of her evidence.
9. Seventh, both Patient A and her husband gave plausible, apparently honest accounts of their evidence. Both made reasonable concessions during cross-examination and offered credible explanations where their evidence was attacked. For example, the inconsistency between the YouTube image and the re-enactment photograph was explained in a manner that struck us as both plausible and truthful.
10. Eighth, Patient A offered a plausible explanation for the fact that she maintained her composure throughout the second consultation. If she was feeling upset and unsafe, it is hardly surprising that she would be reluctant to confront Mr Yildrium. Most importantly, however, she complained to her husband even before leaving the clinic and broke down immediately when out of sight of the clinic.
11. As we have explained above, Mr Yildirim presented less well as a witness, being at times evasive and defensive. His demeanour, however, may be explicable for innocent reasons.
12. His clinical notes did not assist him one way or the other; their evidentiary weight is neutral.
13. The most important piece of evidence supporting him, Patient A's apparently calm and untroubled demeanour at the conclusion of the treatment, was powerfully contradicted by the evidence of her immediate complaint.

Particulars 3, 4, 5

1. We find proven Patient A's claim that Mr Yildirim moved her underwear on three occasions during the second consultation in the manner she described. With respect to the first two instances, we find: 1. Mr Yildirim instructed Patient A to roll onto her right-hand side and positioned her right leg straight and bent her left leg at the knee such that it was placed behind her to rest on the table (chapeau to particular 3); 2. while in this position, Mr Yildirim placed his left hand inside the left-hand side of Patient A's underwear and lifted her underwear away from her body with his left hand, leaving Patient A's pubic region exposed (particular 4); and 3. while Patient A was lying on her left-hand side, Mr Yildirim placed his right hand inside the right-hand side of her underwear and her underwear away from her body with his right hand, leaving Patient A's pubic region exposed (particular 5).
2. Ms Powell's opinion, which is not disputed, is that the position described immediately above is not a recognised physiotherapy position and that there was no clinical indication to instruct and/or to move Patient A into that position.
3. Particulars 3, 4 and 5 are proven.

Particular 6

1. Particular 6 concerns the third occasion Mr Yildirim moved Patient's A underwear. We find that while massaging Patient A's back when she was lying face down, Mr Yildirim inappropriately pulled Patient A's underwear away from her vagina in circumstances where: 1. there was no clinical indication for Mr Yildirim to touch Patient A's underwear in that way; 2. Mr Yildirim lifted Patient A's underwear up for about 20 seconds; and 3. Mr Yildirim did not use a towel to maintain Patient A's dignity and modesty.
2. Sub-particular 6(b) reads: "[Mr Yildirim] inappropriately pulled Patient A's underwear away from her vagina in circumstances where …there was no clinical indication for [Mr Yildirim] to view Patient A's vagina". In our view the meaning of sub-particular 6(b) is ambiguous. It could be read to mean that when he pulled the underwear away from her vagina, Mr Yildirim viewed Patient A's vagina. It could be read to mean that on pulling her underwear away, Patient A's vagina was capable of being viewed. Having regard to its text and context, we adopt the first of those possible meanings.
3. We find that Patient A's vagina was exposed when Mr Yildirim pulled her underwear away from her vagina. We accept that Patient A holds the honest belief that, as a consequence, Mr Yildirim viewed her vagina. However, Patient A could not see Mr Yildirim who was standing behind her. We are not positively satisfied that Mr Yildirim in fact viewed Patient A's vagina.
4. Sub-particulars 6(a), 6(c) and 6(d) are proven. Sub-particular 6(b) is not proven.

Particular 2

1. We accept Patient A's claim that during the second consultation, while massaging her lower back and gluteal region with a Theragun, Mr Yildirim: 1. tucked her underwear from the outside of her buttocks to the inside, one side at a time; 2. did not use a towel to cover her lower back and gluteal region; 3. failed to explain why he was touching her underwear; and 4. failed to obtain consent to perform that treatment in the manner described.
2. Particular 2 is proven.

Particular 1

1. Particular 1 concerns the first consultation.
2. Notwithstanding that in the initiating complaint Patient A described the first consultation as "largely uneventful" and made no mention of a towel, we find that Mr Yildirim did not use a towel to cover her body during that consultation. While unsupported, that claim is consistent with the comment Patient A made to her husband of feeling "a bit exposed only wearing a G-string" and it being "a good thing I'm not prudish".
3. We accept that Mr Yildirim moved Patient A's G-string while massaging her buttocks. However, we are not satisfied on the balance of probabilities, as stated in particular 1, that Mr Yildirim pulled the "G-string vertically upward and away from her buttocks". That allegation is both unsupported and inconsistent with the statement made by Patient A in the initiating complaint of Mr Yildirim "pulling my underwear down perhaps a little too much while massaging my glute" (emphasis added).
4. It may be that the reason Patient A described her underwear as being pulled vertically up from her body in the August 2018 response and all subsequent accounts, is that on reflection she considered that to be a more accurate description of what occurred. Whatever the explanation, given the marked discrepancy between the two descriptions together with the absence of any supporting evidence, we are not positively satisfied that Mr Yildirim pulled Patient A's underwear vertically away from her buttocks.
5. Particular 1 rests on the premise that Mr Yildirim pulled Patient A's underwear vertically upwards away from her buttocks. It follows that particular 1 is not proven.

Particular 7

1. Particular 7 states: "By reason of Particulars 1 to 6, individually or in any combination, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A."
2. In submissions, the Commission stated that in support of this particular it relies on particulars 1, 2, 4, 5 and 6, but not 3. Citing Health Care Complaints Commission v Priyamanna [2015] NSWCATOD 138 at [182], the Commission contends that a finding that Mr Yildirim "engaged in inappropriate conduct of a sexual nature towards Patient A" was available, notwithstanding that the Commission does not allege that Mr Yildirim's conduct was motivated by sexual intent or sexual gratification.
3. In Health Care Complaints Commission v Priyamanna, the Tribunal (Boland ADCJ presiding) referred to the dissenting decision of McFarlan JA in King v Health Care Complaints Commission [2011] NSWCA 353, which considered how the Tribunal should deal with allegations of sexual assault: "65. The parties implicitly accepted on the appeal that guidance as to what constitutes sexual conduct in the present context can be obtained from decisions in the field of criminal law concerning indecent assault. 66. In Harkin v R (1989) 38 A Crim R 296, Lee CJ at CL (with whom Wood and Mathews JJ agreed) said the following: 'It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas. Thus, if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case of a mature man of 38 and a girl of 11 years and nine months that should or should not be regarded as conduct offending against the standards of decency in our community. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification'" (at 301). (Emphasis added/in the original.)
4. Mr Yildirim argues that particular 7 must fail. He contends that even if the Tribunal were to find that he manipulated Patient A's underwear in an inappropriate fashion, that does not elevate it to "conduct of a sexual nature", given that it is not alleged that he engaged in intentionally sexualised conduct or was motivated by reasons of sexual gratification. He points out that there are any number of explanations for the proven conduct, including carelessness and inadvertence.
5. In support, Mr Yildirim points to Health Care Complaints Commission v Sultan [2018] NSWCA 303 (Sultan) at [100]-[105], [169]-[172].
6. In Sultan, a doctor conducting a medical examination of a patient's breasts became aroused. It was alleged by the Commission that he was guilty of professional misconduct. The Tribunal found that his conduct had been unprofessional and reprimanded him but did not make a finding of professional misconduct. The Commission's appeal was unsuccessful in the Court of Appeal.
7. In that appeal, Beazley P at [94] expressed reservations about the usefulness of the decision in Harkin v R (1989) 38 A Crim R 296 (Harkin)(referred to at [162] above): "I have not found the decision in Harkin to be of particular assistance, except that it makes the point, as is self-evident, that conduct must be considered in context. In the case of an interaction between a medical practitioner and patient, context and circumstances, including the nature of and how a medical examination is undertaken, are of critical importance."
8. At [102] Beazley P stated that she had "difficulty" with the Commission's submission that certain conduct was inherently sexual in nature because it related to or involved touching of a sexual organ or "involved a sexual reaction".

Consideration

1. The question posed by particular 7 is whether, by reason of one or a combination of the actions particularised and found proven, Mr Yildirim engaged in "inappropriate conduct of a sexual nature towards Patient A"?
2. The conduct relied upon by the Commission in support of particular 7, is Mr Yildirim's actions: 1. in tucking Patient A's underwear from the outside of her buttocks to the inside, while massaging her lower back and gluteal regions with a Theragun (particular 2); and 2. on three occasions moving Patient A's underwear and leaving her pubic region or vagina exposed, in circumstances where there was no clinical justification for doing so (particulars 4, 5 and 6 (but not 6(b)).
3. Whether the conduct engaged in by Mr Yildirim is inappropriate conduct of a sexual nature towards Patient A is a question of fact, and must be ascertained objectively. The following contextual considerations are relevant: 1. there was no clinical justification to move Patient A's underwear in the manner described in particulars 2, 4, 5 and 6; 2. on the two occasions Mr Yildirim moved her underwear as described in particulars 4 and 5, Patient A's body was not positioned in a recognised therapeutic position; 3. on the final instance Mr Yildirim moved Patient A's underwear he lifted it away from her body for about 20 seconds; 4. in each instance Mr Yildirim moved Patient A's underwear her body was not covered by a towel; and 5. Patient A spoke up to complain on the third occasion her underwear was moved (particular 6).
4. The Commission does not contend that Mr Yildirim's conduct was motivated by reasons of sexual gratification or sexual intent. Rather the Commission asks that the Tribunal make no findings about the reason for Yildirim's conduct.
5. Before drawing conclusions, it is necessary to consider the two cases on which the parties rely, Harkin and Sultan. We agree with Beazley P's view that how behaviour is interpreted depends on circumstances. In essence, there is little difference between the principles expressed in Harkin and Sultan.
6. To understand the passage extracted above from Harkin the facts of that case are relevant. In that case, an adult man had been convicted of indecently assaulting two 11-year-old girls. The man had driven the two girls into the bush, put them on his lap and fondled their breasts. It is in that context that the passage cited above needs to be read. The key to understanding Harkin properly is the passage, "… if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give the assault the necessary sexual connotation…".
7. In other words, some behaviour speaks very clearly for itself, if there is "nothing more", and if there is no contrary explanation or clarification, the prima facie interpretation will almost certainly stand. Punching a person in the face might be one such form of behaviour. Touching or exposing another person's sexual organs without their consent is another example. Inferences are drawn from circumstances. Touching or exposing another person's sexual organs undoubtedly may give rise, prima facie, to "sexual connotations" (as it was put in Harkin) but they can be neutralised or negatived by other factors, such as informed consent in a clinical setting. In Harkin, the circumstances implied, irresistibly, that the appellant's conduct was sexualised. There was no other explanation for it nor could there have been.
8. Lee CJ's statement in Harkin that "the purpose or motive" for acting in this way is "irrelevant" echoes and implicitly refers to the English decision of R v Court [1988] 2 WLR 1071 which he quotes at 302. In that decision, Lord Ackner at 1082 said: "The assault which the prosecution seek to establish may be of a kind which is inherently indecent. The defendant removes, against her will, a woman's clothing… Those very facts, devoid of any explanation, would give rise to the irresistible inference that the defendant intended to assault his victim in a manner which right-minded persons would clearly think was indecent. Whether he did so for his own sexual gratification or because, being a misogynist or for some other reason, he wished to embarrass or humiliate his victim seem to me to be irrelevant."
9. In short, a person may behave in an apparently sexualised way towards another for a variety of reasons. That is the point made by Lee CJ in Harkin. The ulterior motive for doing so is irrelevant. If conduct is self-evidently sexualised due to the combination of the act and the circumstances, it adds nothing to probe or speculate about the inner workings of the mind of the actor.
10. Medical examinations or health treatments may, obviously, involve intentional touching or exposure of sexual organs. Whether such touching or exposure is lawful or appropriate depends on all the circumstances including, at least, the patient's condition, the objective of the investigations or treatment, the informed consent of the patient or client and the need for or desirability of the touching or exposure, and accepted methodologies for carrying out the treatment or investigation in question.
11. The conduct engaged in by Mr Yildirim was not accompanied by any words of a sexual nature but, in our view, it was unmistakeably conduct of a sexual nature. Lifting clothing or underwear off a person's body generally requires intentional effort. To intentionally lift a person's underwear so that their genitals are exposed, without their consent and without a clinical reason for doing so, is, prima facie, inappropriate sexualised conduct.
12. It is suggested that Mr Yildirim may have lifted the underwear accidentally. We reject that submission. Common sense suggests that an accidental movement of underwear would have been merely a momentary occurrence. Patient A was unable to specify exactly how long her underwear was lifted, but she gave a highly credible account that it was at least more than some seconds. If that evidence is accepted, as it is, it makes it very unlikely that the lifting was caused accidentally or inadvertently.
13. Devoid of any cogent innocent or exculpatory explanation, such as necessity, automatism or accident, it is more probable than not that Mr Yildirim's conduct was inappropriately sexual and directed, obviously, towards Patient A.
14. Particular 7 is proven.

Does the proven conduct amount to unsatisfactory professional conduct?

Judgment possessed and care exercised by Mr Yildrim

1. The Commission contends that the proven conduct the subject of Complaint 1 demonstrates that the judgment possessed and care exercised by Mr Yildirim fell significantly below the standard reasonably expected of a physiotherapist of Mr Yildirim's level of training and experience, namely an experienced physiotherapist who had been in practice for over 20 years. The Commission relies on the opinion evidence given by Ms Powell which was to the effect that the conduct described in each proven particular fell significantly below the accepted standard.
2. While Mr Yildirim denies the offending conduct, we do not understand him to dispute that if that conduct was found proven it would not amount to unsatisfactory professional conduct.
3. We find that the conduct the subject of each proven particular amounts to unsatisfactory conduct within the meaning of s 139B(1)(a) of the National Law.

Improper conduct

1. The Commission contends that in addition, the conduct the subject of Complaint 1 amounts to "improper conduct" within the meaning s 139B(1)(l) of the National Law.
2. Mr Yildirim contends that the same conduct cannot be relied upon to establish unsatisfactory professional conduct within the meaning of both s 139B(1)(a) and s 139B(1)(l).
3. In Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [159]-[160], Walton J observed that s 139B(1)(l) is not a stand-alone example of unsatisfactory professional conduct. The use of the word "other" ─ "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession" (emphasis added) ─ limits the operation of s 139B(1)(l) to conduct not falling within the definitions of unsatisfactory professional conduct in s 139B(1)(a)-(k). (See also Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [31]; Health Care Complaints Commission v Hart [2021] NSWCATOD 36 at [47]).
4. In contrast, in Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123, the Tribunal considered that as a matter of statutory construction, the same facts could establish unsatisfactory professional conduct within the meaning of ss 139(1)(a) and 139(1)(l).
5. Undoubtedly, as a matter of fact the same act or omission by a health practitioner is capable of being characterised as "improper and unethical" and also as demonstrating that the knowledge, skill or judgment possessed, or care exercised, by the practitioner fell below the relevant standard. However, that does not resolve the question of whether, having regard to the text and context of s 139(1), and in particular the opening words of s 139(1)(l), conduct found to fall within 139B(1)(a) can also be found to fall within one or more of paragraphs of s 139B(1)(a)-(k). We are not persuaded that the interpretation adopted by Walton J in Attia v Health Care Complaints Commission is plainly wrong and adopt that interpretation. Therefore, the question of whether Mr Yildirim's conduct found by us to fall within s 139B(1)(a) also amounts to "other improper or unethical conduct", does not arise.

Does Mr Yildirim's conduct amount to professional misconduct?

1. The final issue to be determined is whether the conduct found by us to amount to unsatisfactory professional conduct also amounts to "professional misconduct", that is, is it of a "sufficiently serious nature" to justify an order for suspension or cancellation. This requires that we make an evaluative judgement: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [20]. The definition of professional misconduct is focused on the nature of the conduct, not whether an order for suspension or cancellation should be made: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67] (Basten JA).
2. In evaluating whether the subject conduct is of a sufficiently serious nature to justify suspension or cancellation, circumstances that bear on the objective assessment of that conduct must be taken into account. These include the nature and duration of the conduct, any mitigating factors, and an assessment of where the offending conduct falls on the spectrum of unsatisfactory professional conduct.
3. We find the conduct found by us to amount unsatisfactory professional conduct is of a "sufficiently serious nature" to justify an order for suspension or cancellation.
4. Mr Yildirim is guilty of professional misconduct. Complaint 2 is established.

Orders 1. Mr Yildirim is guilty of professional misconduct. 2. The proceedings are listed for directions in respect of the conduct of Stage 2 hearing at a date to be determined by the Registrar.

Endnote

1. The photograph has been edited so as not to disclose the identity of Patient A and her husband. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2021