Health Ombudsman v Theodoros [2026] QCAT 3

[3] The respondent is 74 years old. He was first registered as a medical practitioner on 22 February 1977 and retired from practice in December 2021. He surrendered his registration on 3 February 2023.

[4] In December 2015, a fellow practitioner made a mandatory notification to the Australian Health Practitioner Regulation Agency in relation to some allegations against the respondent.

[5] In April 2016, immediate action was taken by the Medical Board of Australia ('the Board') and conditions were placed on the respondent's registration.

[6] The respondent's submission contains trenchant criticism of the delay, which he says is unjust or oppressive. In neither the written submissions or in oral argument has the respondent set out what steps the Tribunal should take in light of the delay and the respondent has not sought a stay of proceedings. In any event, the Tribunal is of the view that he has had sufficient notice of the allegation of sexual motivation to be properly appraised of the case he has to meet.

[7] The issue in this case relates to the frequency of certain intimate examinations including Pap smears, vaginal swabs, pelvic examinations, breast checks and skin checks. The frequency is established by medical records. In respect of a number of the allegations the respondent admits he has engaged in professional misconduct. In respect of a number of other allegations the respondent admits that he has engaged in unprofessional conduct. The applicant contends that an inference should be drawn that the examinations were performed because of the sexual motivation held by the respondent. In the absence of appropriate proof of that, the parties have agreed on sanction. If the Tribunal draws the inference suggested by the applicant, the applicant says there should be an indefinite disqualification of the respondent's registration.

[8] There are three complainants who were former patients of the respondent. For the purposes of this judgment and in accord with the nondisclosure judgment those patients will be referred to as DF, CJ and KW. Each of these patients have provided statements setting out the behaviour of the respondent and sworn affidavits verifying their statements.

[9] Although not formally complainants two other patients have also provided statements and affidavits (JB and CS).

[10] Two other patients, MD and NP, have not provided statements nor affidavits. The details of their treatments are established by documentary evidence which is for the most part admitted.

[11] The appropriateness of the respondent's treatment such as the frequency of particular procedures is the subject of expert evidence provided by Dr Ann Ulcoq in three reports.

[12] The respondent submits there are fundamental difficulties with the reports of Dr Ulcoq that would ultimately mean the Tribunal should attach little if any weight to her reports or opinions.

[13] The reports of Dr Ulcoq include reference to a document that was prepared by the applicant summarising the records of the patients referred to in the referral ('the summary table'). The respondent says errors in the summary table are repeated in Dr Ulcoq's report dated 17 May 2021.

[14] For example, the summary table records that:

(a) The respondent performed a Pap smear on CJ on 8 August 2013 and 12 August 2014 when the patient's records note a Pap smear performed on 11 August 2014;

(b) the respondent performed a Pap smear on JB on 24 June 2012 despite JB's clinical records containing no evidence of this;

(c) the respondent performed a Pap smear on JB on 24 June 2012 despite there being no clinical records of this;

(d) the respondent performed a Pap smear on CS on 7 July 2006 despite there being no clinical record of this;

(e) that two pelvic examinations were performed on CS in 2014 despite her records containing evidence of only one pelvic examination in 2014.

[15] The Tribunal, assisted by qualified assessors and taking Dr Ulcoq's reports as a whole, does not accept the submission. Dr Ulcoq has appropriate expertise to express her opinions. She has not been required for cross-examination.

[16] The respondent has not filed an affidavit and is therefore not available for cross-examination. He has called no expert testimony to contradict Dr Ulcoq's views.

[17] In addition, the statement of agreed and disputed facts says in respect of the three complainants and JB, CS, MD and NP that the parties agree that at the time of the multiple Pap smears, vaginal swabs, pelvic examinations and mole checks there was no clinical indication for the respondent performing those examinations.

[18] Section 4(1) of the Health Ombudsman Act provides that the guiding principle in administering the Health Ombudsman Act is that the health and safety of the public are paramount and section 4(2)(c) makes it clear that the main consideration for the Tribunal is the health and safety of the public. Despite the agreement between the parties it is for the Tribunal to independently determine:

(a) whether the respondent behaved in a way that constitutes either 'unsatisfactory professional conduct', 'unsatisfactory professional performance', 'unprofessional conduct' or 'professional misconduct'; and

(b) the appropriate disciplinary sanction.

[19] The applicant bears the onus of establishing the respondent has engaged in conduct that amounts to professional misconduct or unprofessional conduct. The standard of proof is the civil standard, on the balance of probabilities, with the degree of satisfaction varying according to the gravity of the facts to be proven ('the Briginshaw standard').[1] There is no argument here that the gravity of the allegations are high and therefore the degree of satisfaction must be high.

[20] The applicant submits, without demur, that it is not on the applicant to exclude any hypothesis consistent with innocence.

[21] The respondent adopts passages from Lehrmann v Network Ten Pty Limited [2024] FCA 369 where his Honour Judge Lee said that considering the balance of probabilities requires a subjective belief in the state of facts on the part of the Tribunal and that what is required is "reasonable satisfaction" on the preponderance of probabilities, such as to sustain the relevant issue.

[23] The applicant primarily relies on the frequency of the intimate examinations.

[24] The medical notes document that Pap smears were carried out on the following dates:

(a) 31 October 2013;

(b) 7 January 2014;

(c) 29 January 2014;

(d) 15 May 2014;

(e) 19 February 2015;

(f) 16 July 2015;

(g) 7 September 2015.

[25] There are also clinical records that a Pap smear was done on 10 September 2014 and 21 October 2015 but there is no pathology report, nor does it appear on the Pap smear register.

[26] Dr Ulcoq opines that there would never be a circumstance when it would be clinically indicated to perform Pap smears at this frequency. The guidelines would be to repeat in one year if low grade squamous epithelial lesion ('LSIL') was detected, refer to a gynaecologist if any high-grade lesion ('HSIL') and repeat the smear test within six to 12 weeks if unsatisfactory, that is, if the pathologist was unable to do a reading due to insufficient collection of cells or presence of infection, mucus or blood. In the past there were some grey areas about when to repeat if no ECC (endocervical cells) were found but six to 12 months might be considered by a doctor who is anxious they have not taken an adequate sample, but even factoring that in Dr Ulcoq was of the view that the frequency of these smears was unable to be explained by any clinical indication or guidelines that were current then or now.

[27] DF's medical notes document that the vaginal swabs were obtained by the respondent from DF as follows:

(a) 11 April 2013;

(b) 19 November 2013;

(c) 7 January 2014;

(d) 24 November 2014;

(e) 19 February 2015;

(f) 7 September 2015;

(g) 21 October 2015.

[28] Dr Ulcoq has opined that there is no circumstance that would clinically indicate the frequency of swabs in this patient.

[29] Dr Ulcoq says that the respondent's general explanation for the testing for STIs does not explain why he kept repeating vaginal swabs that were not for this purpose. The testing for strep infections has no clinical indication for this patient and no swabs showed this infection.

[30] The notes show that the respondent performed a pelvic examination on DF on the following dates:

(a) 31 October 2013;

(b) 7 January 2014;

(c) 29 September 2014;

(d) 15 May 2014;

(e) 19 February 2015;

(f) 15 July 2015;

(g) 7 September 2015.

[31] In Dr Ulcoq's opinion, there was no clinical reason for this patient to have a pelvic examination at this frequency. She would accept a biennial exam as part of a well-woman check.

[32] These occurred on this patient on the following dates:

(a) 24 November 2014;

(b) 19 February 2015;

(c) 15 July 2015;

(d) 7 September 2015;

(e) 21 October 2015.

[33] Dr Ulcoq believes that doing an annual breast examination on the patient to be in keeping with the respondent's peers. However, the more frequent examinations without notes documenting clinical indicators cannot be explained.

[34] These took place on 11 April 2013, 24 November 2014, 7 September 2015 and 21 October 2015.

[35] Dr Ulcoq opines that it would be reasonable to do an annual skin examination if the patient had risk factors for skin cancer. The two examinations of 7 September 2015 and a month later on 21 October 2015 were not clinically indicated as there were no clinical notes to explain why this examination needed to be repeated.

[36] These were carried out on this patient on the following dates:

(a) 9 February 2012;

(b) 12 April 2012;

(c) 26 September 2012;

(d) 9 May 2013;

(e) 8 October 2013;

(f) 12 August 2014;

(g) 4 November 2014;

(h) 28 May 2015.

[37] Dr Ulcoq was of the view that these Pap smears were not clinically indicated and/or appropriate. A Pap smear was conducted on 8 October 2013 but there is no pathology report nor does it appear on the Pap smear register.

[38] It appears that LSIL was detected on Pap smears done on 28 January 2010 and 10 August 2011 and when still present on 9 February 2012 the recommendation of the pathologist was that the patient should be referred for a colposcopy. There is no record of this being done.

[39] These were carried out on this patient on the following dates:

(a) 9 February 2012;

(b) 9 May 2013;

(c) 8 October 2013;

(d) 12 August 2014;

(e) 14 November 2014;

(f) 9 April 2015;

(g) 28 May 2015.

[40] Although there were three other swabs which were appropriate the above listed were not. Dr Ulcoq opined that the listed swabs are not explained/appropriate with normal findings on the pathology.

[41] Further she opines that the respondent's explanation for testing for STIs does not explain why he kept repeating vaginal swabs that were not for this purpose.

[42] Pelvic examinations were conducted on CJ on:

(a) 26 September 2012;

(b) 9 March 2013;

(c) 8 October 2013;

(d) 28 May 2015.

[43] The patient also had a pelvic examination on 9 February 2012 and 4 November 2013 which Dr Ulcoq considered reasonable. However there was no clinical indication for those listed above. She would accept a biennial pelvic exam if clinically indicated. The listed exams do not fit in either category.

(a) 9 February 2012;

(b) 26 September 2012;

(c) 8 October 2013;

(d) 28 May 2015.

[45] Dr Ulcoq says that if the breast checks were done as part of a biennial check or even an annual check then at least one examination in 2012 cannot be justified.

[46] Given the age and training of the respondent an annual check would be in keeping with his peers. However, the more frequent examinations without any notes documenting clinical explanations cannot be explained.

(a) 1 June 2006;

(b) 21 December 2006;

(c) 4 July 2007;

(d) 7 May 2009;

(e) 14 August 2012.

[48] These were among many more Pap smears, including six in 2012 and five in 2013. Dr Ulcoq says the listed ones at a frequency not clinically indicated, contrary to national guidelines, contrary to pathology reports, were unjustified and inappropriate.

[49] Between 2006 and 2014 the respondent performed 34 vaginal swabs, including six despite normal results. Dr Ulcoq was of the opinion that the swabs were not clinically indicated, inappropriate, unexplained by the respondent's records and unjustified.

[50] Between 2006 and 2014 the respondent performed 22 pelvic examinations on KW, including five in 2012 and four in 2013.

[51] Dr Ulcoq confirms that the pelvic examinations were not in accord with the generally accepted standards, they were not clinically indicated and their frequency was not supported by any clinical notes made by the respondent.

[52] Between 2006 and 2013, the respondent performed 20 breast examinations, including five in 2012.

[53] Dr Ulcoq says that occasions of carrying out breast examinations on KW were not in accord with generally accepted practice, were not clinically indicated and not supported by the respondent's clinical notes.

[54] Between 2006 and 2013 the respondent performed 20 skin and mole checks on KW, including five over three months in 2012.

[55] Dr Ulcoq is of the view that the checks were not clinically indicated, not supported by clinical notes, not in accord with generally accepted standards of practice and inappropriate.

(a) 2 January 2012;

(b) 19 November 2012;

(c) 17 July 2013;

(d) 23 October 2013;

(e) 5 November 2014.

[57] Clinical notes record a Pap smear on 24 June 2012 but there is no pathology report, nor does it appear on the Pap smear register. There is a record that the patient requested a Pap smear on 7 January 2015.

[58] In Dr Ulcoq's opinion it was not clinically indicated nor appropriate for the respondent to perform Pap smears more frequently or contrary to the recommendation of the reporting pathologist.

[59] Medical records show that vaginal swabs were taken 10 times between 2011 and 2014 with four taken in 2011 and four in 2012.

[60] Two appropriate swabs were taken on 25 June 2014 and 7 July 2015, but otherwise it was not appropriate to perform vaginal swabs with that frequency and without clinical indication.

(a) 13 July 2011;

(b) 2 January 2012;

(c) 24 June 2012;

(d) 19 November 2012;

(e) 23 October 2013;

(f) 5 November 2014;

(g) 7 January 2015.

[62] There were two other swabs on 15 March 2015 and 17 July 2013 which the applicant says were appropriate.

[63] In Dr Ulcoq's opinion, there was no clinical indication for the pelvic examinations as listed above.

[64] Dr Ulcoq is of the opinion that the carrying out of eight breast examinations between 15 March 2013 and 7 January 2014 cannot be justified.

[65] Pap smears were performed on this patient on:

(a) 1 February 2007;

(b) 18 June 2007;

(c) 16 October 2008;

(d) 21 January 2009;

(e) 9 July 2009;

(f) 14 December 2009;

(g) 13 August 2010;

(h) 22 December 2011;

(i) 21 June 2012;

(j) 22 January 2014;

(k) 27 November 2014.

[66] The patient had LSIL found on 16 October 2008. Dr Tran recorded a management plan of a repeat smear in six months and if LSIL was found then to refer the matter to a gynaecologist. A follow-up Pap smear on 21 January 2009 suggested HSIL and the patient was referred to a gynaecologist. A colposcopy and biopsy on 11 February 2009 showed an abnormality and plans were made for CS to be revised by a gynaecologist in one year. After three normal Pap smears the gynaecologist discharged the patient back to the GP to have biennial Pap smear tests. Despite the history, Dr Ulcoq opines the tests that were done which were outside that recommendation or any guidelines and were not otherwise clinically indicated.

[67] 14 vaginal swabs were taken from CS between 20 July 2006 and 21 June 2012, including four in 2009, two in 2008 and three in 2009. The patient had a swab on 7 July 2006 to check an infection had cleared. There are no clinical notes to explain a further swab on 20 July 2006.

[68] For the most part there is no clinical indication why these were taken and the respondent's explanation did not answer for Dr Ulcoq why this patient had them done at the frequency recorded.

[69] Records show pelvic examinations occurred three times in 2007, once in 2008, twice in 2009, once in 2010, twice in 2011, once in 2012, once in 2013 and once in 2014.

[70] In Dr Ulcoq's opinion, not all of the pelvic examination were clinically indicated. An annual biennial examination might be reasonable but there was no clinical indication from the notes available for most of the pelvic examinations.

[71] This patient had breast examinations recorded: twice in 2007 and annually in 2008, 2009, 2011, 2012, 2013 and 2014. If the checks were done as part of the biennial well-woman check, or even an annual check, then one in 2007 was not clinically indicated or appropriate according to Dr Ulcoq.

[72] Medical records show that MD had Pap smears on the following dates:

(a) 5 November 2012;

(b) 31 December 2012;

(c) 9 May 2013;

(d) 11 September 2013;

(e) 23 December 2013;

(f) 20 March 2014;

(g) 31 March 2015.

[73] Dr Ulcoq advises that her view is that these tests were done outside any guideline and it was not appropriate for the respondent to perform Pap smears more frequently or contrary to the recommendations of the reporting pathologist. Further, the respondent's general explanation of his practice for performing Pap smears does not justify the frequent performance of such examinations.

(a) 18 September 2012;

(b) 5 November 2012;

(c) 31 December 2012;

(d) 9 May 2013;

(e) 11 September 2013;

(f) 23 December 2013;

(g) 20 March 2014;

(h) 6 November 2014;

(i) 31 March 2015.

[75] Accordingly, the swabs were never more than a couple of months apart. There were two more swabs taken on 6 August 2012 and 6 September 2012 to investigate certain conditions and were appropriate in Dr Ulcoq's view. Another one on 19 October 2012 may have been reasonable but there are no clinical records for why it was performed.

(a) 18 September 2012;

(b) 31 December 2012;

(c) 9 May 2013;

(d) 11 September 2013;

(e) 20 March 2014;

(f) 6 November 2014;

(g) 31 March 2015.

[77] Once again the pelvic examinations were never more than months apart. Dr Ulcoq says that two other examinations on 6 August 2012 and 16 November 2014 may have been reasonable as part of the well-woman check. Given the training of the respondent and his age he would have been taught to do a pelvic examination as part of the biennial well-woman check despite more current guidelines not recommending this. In her opinion, there was no clinical indication for the patient to have pelvic examinations at the frequency set out above.

(a) 18 September 2012;

(b) 31 December 2012;

(c) 9 May 2013;

(d) 10 September 2013;

(e) 20 March 2014;

(f) 6 November 2014;

(g) 31 March 2015.

[79] Dr Ulcoq says that if the breast checks were done as part of the biennial check, or even an annual check then at least one extra check per year (31 December 2012, 11 September 2013, 6 November 2014) cannot be justified when there are no notes giving a clinical reason for the extra checks.

[80] This patient had numerous Pap smear tests: two in 2002, two in 2004, two in 2005, two in 2009, three in 2011, two in 2012, five in 2013, five in 2014 and four in 2015. Clinical notes record a Pap smear on 6 December 2014, but there is no pathology report and no entry on the Pap smear register.

[81] In Dr Ulcoq's opinion it was not appropriate or in accord with the guidelines for the second Pap smear in 2002, 2004, 2005, 2009 and 2012. Nor for the extra two Pap smears in 2011, the extra four in 2013 and 2014 and the extra three in 2015. The respondent's general explanation does not justify his frequent performance of Pap smear tests.

[82] This patient had two swabs in 2012, three in 2013, 10 in 2014, and six in 2015. One on 31 July 2014 was at the patient's request.

[83] Dr Ulcoq is of the opinion there is no circumstance that would justify the frequency of swabs in this patient.

[84] This patient had two pelvic examinations in 2012, three in 2013, five in 2014 and four in 2015.

[85] In Dr Ulcoq's opinion, there was no clinical condition for this patient have these exams at this frequency.

[86] This patient had breast examinations twice in 2012, twice in 2013, four times in 2014 and four times in 2015.

[87] Dr Ulcoq says that at least one in 2012, one in 2013, three in 2014 and three in 2015 were not clinically indicated nor appropriate. An annual breast exam may be explicable.

[88] The respondent says in his response that at all times he treated every patient with respect and dignity and adopted a conservative/cautious approach to managing each patient's health. He says his treatment of DF was founded on specialist advice he received from a gynaecologist dated 19 August 2011. It should be noted that this was a letter concerning a particular patient (not DF). He said DF's clinical history, including ongoing presenting symptoms clinically indicated the tests. Reported absence of endocervical cells explained some of the tests.

[89] His response in respect of the other former patients is in a similar vein.

[90] The respondent has presented no expert evidence to contradict Dr Ulcoq. This does not mean to indicate the Tribunal has accepted Dr Ulcoq's evidence simply because it was uncontradicted. The Tribunal is of the view that Dr Ulcoq's views are considered and fair and should be accepted. Indeed, the respondent in his response to the amended referral accepts that there was no clinical indication for many of the examinations but said at the time he believed there was. He was being cautious.

[91] It is difficult to accept that a cautious practitioner would either fail to send Pap smears to pathology or fail to record a result (as happened in relation to CF on 10 September 2014 and two others). If as the respondent says he believes the tests were clinically called for it is difficult to understand why when JB had an appointment for a Pap smear on 28 October 2015 and attended with her husband, no Pap smear was performed. The respondent relies heavily on a letter from a gynaecologist as a basis for the frequency of the tests on the complainants and former patients the subject of this referral. As pointed out earlier this letter related to a specific patient. The Tribunal is of the view that it is not a rational or reasonable basis for his practice of performing Pap smears at the frequency evidenced by medical records.

[92] In all the circumstances, the Tribunal is comfortably satisfied that many of the tests and examinations conducted on the three complainants and the other former patients were inappropriate, not clinically based and outside relevant guidelines.

[93] After a Pap smear performed in 2003, the respondent pulled open the curtain and started talking to DF while she was fully naked and continued talking to her while she got dressed. The respondent continued to open the curtain while DF was naked on subsequent occasions. He did not offer to leave the room while she was naked. Every time DF undressed he was in the room. The respondent provided DF with a sheet to cover herself but she was fully naked underneath.

[94] The respondent, during a Pap smear and full check, would require CJ to undress fully while he was in the room. He would then perform a breast check and mole check while she was naked on the bed for the full check. He would cover her bottom half with a sheet but her top half was fully naked during the whole process. He would then stay in the room while she dressed.

[95] After approximately four to five years from when she commenced consultations with the respondent, he commenced remaining within the screen and looking as she undressed. Although she shut the curtain for privacy, he opened the curtain and walked in without warning. Apart from laying blue towels under her while she was lying on the table, he gave her no other covering. On more than one occasion he suddenly leaned in and put his hand on her breast. He removed her bra while she was trying to cover herself up. He left the curtain open while she was getting redressed.

[96] The respondent says he performed all consultations in accordance with his usual practice, including having a patient undressed as reasonably required to conduct the test, and allowing patients to dress and undress behind a privacy screen. He says he would not open the privacy curtain while the patient was getting undressed or dressed. He says he would provide each patient a modesty sheet to cover themselves. In effect he denies these allegations.

[97] He says the complainants' memories are unreliable and untested, although it was he who chose not to cross-examine them.

[98] The Tribunal is of the view that the evidence of the three complainants, although with minor variations, is so consistent that the Tribunal accepts it in each case. The Tribunal does not rely simply on the fact that the evidence was uncontradicted but relies heavily on the consistency of the complaints. Unsurprisingly, Dr Ulcoq opines that the procedures which the Tribunal has found were adopted by the respondent in the conduct of the examinations on the complainants with a lack of privacy and complete disrobing of the patient were not appropriate and were not in accordance with standard practice at the relevant time.

[99] Each of the complainants say they were never offered a chaperone. The respondent admits that he did not offer any of the complainants a chaperone during well-woman checks. The parties agree a well-woman check refers to a patient's examination including Pap smears, pelvic examination, breast and potentially also skin checks.

[100] The respondent says in his response that it was only in 2011 that the Board suggested the use of a chaperone when conducting intimate examinations. The guidelines do not require the use of the chaperone but suggest "a doctor should explore the use of the chaperone with the patient". He further responds that each of the complainants was a long-term patient before the guidelines were introduced in 2011. In the case of DF he had been her practitioner for about 10 years, CJ for about 16 years, KW for about 10 years, and that in each case, he exercised his clinical judgement and assessment of his long-standing clinical relationship in considering whether to offer chaperone and did not consider it necessary.

[101] The Tribunal is of the view that, as a standalone matter, this may not amount to unprofessional conduct, but it can be seen as adjunct to the lack of privacy afforded to the patients.

[102] DF states that the respondent, each time she had an appointment, would greet her by hugging her and attempting to kiss her on the lips. He would tell her she was one of his "angels" and state it was great he could have this rapport with her. He also made comment on one occasion that female patients generally did not like male doctors to do Pap smears.

[103] CJ states that the respondent every time he saw her would greet her with a hug or a kiss and describe her as "[CJ] my beautiful angel". He also made the comment on one occasion female patients did not generally like male doctors to do Pap smears.

[104] KW states towards the end of the first five years of her consulting the respondent, he began to greet her with a kiss on her cheek or closed-mouth kiss on the lips. The respondent gave KW presents of Moët champagne on some appointments. She started to randomly bring her partner to general appointments (not Pap smears) and noted the respondent was professional in his discussion and did not kiss her on arrival.

[105] CS says the respondent often concluded conversations with her by kissing or attempting to kiss her on the cheek.

[106] The respondent disputes these facts but does not challenge the complaints. Further he says if he did use the term angel or a similar term, this was to put the patient at ease in the same way one might say 'mate' or 'dear'. The Tribunal finds this implausible. Particularly, the details of the use of the term angel and the comment about female patients not liking to have Pap smears conducted by male doctors speak of very similar interactions. The Tribunal accepts the patients' evidence in this regard.

[107] DF said that the respondent would frequently message her on her mobile phone asking her to come in for Pap smears and checks. He would also advise DF to ask the reception staff for a long appointment. If she did not respond within a day or so he would follow up with her. If she still did not respond, he would send further texts saying he was free on the weekend. He signed each of the texts with 'XX'. The Tribunal has copies of the texts which are often very informal.

[108] CJ said that respondent told her always to text him to make an appointment, that she should not call the front desk of the practice. The respondent signed off his texts with 'X'. Once again, copies of the text display a significant degree of informality. KW sets out in her affidavit that after about five years the respondent started to coordinate her Pap smears and other appointments by texting her. The consultations took place before the clinic was open for business. When the other staff, other than QML staff (who use the back door) were present, KW would enter through the back door. The respondent repeatedly told her not to worry about calling reception and that she should just text him. The respondent would also text about matters other than appointments. The Tribunal has copies of the texts.

[109] The respondent sent repeated text messages to JB signed off with 'XX' and 'Stan'. 54 text messages were sent in a period of two years. Sometimes he texted twice a day or every two days. On one occasion on 5 July 2015 he texted her four times in one day about making an appointment for a swab and breast check. The clinical notes for these patients generally say that the patient requested a Pap smear or swab when it is clear from the text messages that it was the respondent who initiated the consultations and exams.

[110] The respondent submits that he sent the texts. He says that at the time he thought 'XX' or 'X' meant 'cheers' and that he is now aware of the common meaning of that sign off and accordingly admits that he failed to maintain professional boundaries. The Tribunal finds the explanation unlikely and unconvincing in light of the fact that the Tribunal is satisfied he greeted these complainants with a kiss when they attended for consultations.

[111] The respondent admits the texts only show that he was acting in an avuncular manner, not a sexual manner. Of course the texts are available and constitute documentary proof and it is unlikely the respondent would write overtly sexualised messages. Dr Ulcoq is of the opinion that using text messages to initiate appointments out of normal hours, avoiding contact with the patients and reception desk and the informal nature of some of the texts all failed to maintain professional standards.

Failure to maintain accurate and adequate medical records

[112] In response to each of the complainants the respondent admits he failed to maintain accurate and adequate medical records.

[113] QML reports on 3 February 2014 and 15 May 2015 advised that the abnormal cells consistent with persisting low-grade squamous intraepithelial with an endocervical component present. The risk report recommended colposcopy/biopsy/histological examinations. There is no record of DF being referred or advised to undertake any of those procedures. Pap smears were taken on 10 September 2014 and 21 October 2015, which were either not sent to QML or the results were not recorded. The smear taken on 10 September 2014 is concerning because of the two results immediately before which showed abnormalities. It is difficult to line this up with the doctor's portrayal of himself as a cautious, overly anxious practitioner.

[114] The notes record Pap smears were taken on 8 August 2012, 3 September 2012 and 28 June 2007 but there is no record in any of these cases of a request to QML for an analysis or any record of the results. The comments made in respect of DF are appropriate here.

[115] Despite any admissions or agreements between the parties it is for the Tribunal to independently determine

(a) whether the respondent behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct; and

(b) the appropriate disciplinary sanction.

[116] Because of the potential consequences to the respondent of an adverse finding of such a serious matter the Tribunal can only find the respondent acted for sexual gratification in conducting the intermittent examinations if it is satisfied on the matter to the Briginshaw standard and the burden of proof is on the applicant.

[117] The applicant submits in its written submission at paragraph [192]-[194] that the respondent has chosen not to file evidence in relation to his conduct and there is no evidence of excusatory acts put forward in his responses and these should not be given weight. In contrast, there is uncontested testimonial and documentary evidence adduced by the applicant (and now accepted by the Tribunal) which proves the allegations referred to the Tribunal. The Tribunal accepts the applicant has proved the alleged conduct and that it constitutes professional misconduct, unprofessional conduct and unsatisfactory conduct.

[118] The respondent's counsel, in oral submissions, allows that the fact that the respondent did not produce evidence and that there were inherent difficulties in challenging the sworn evidence of the complainants when they were not cross-examined give weight to the applicant's submissions.

[119] The respondent's counsel did make submissions concerning the care and caution with which the question of sexual motivation must be approached. That is accepted. Counsel for the applicant points to the following matters:

(a) The high frequency of the examinations;

(b) The respondent acted contrary to the specific recommendations of the pathologist;

(c) The respondent actively sought out some of the patients by text message to have exams not recommended by the pathologist;

(d) The request from patients to undress completely for the purpose of exams (the Tribunal adds staying in or entering the room while patients were getting dressed or undressed);

(e) The failure to record any findings of, in particular, pelvic and breast examinations. Further, on repeated occasions the respondent either did not send the samples to pathology or alternatively did not record the results;

(f) The respondent engaging in hugging and kissing the complainants and patient CS. The applicant says this does not support a claimed conservative approach to practice;

(g) His failure to provide an explanation to the patients as to the reasons for the exams does not speak to a conservativism of approach but rather to an ulterior motive, that is, sexual gratification.

[120] The Tribunal accepts that these matters accurately reflect the evidence accepted by the Tribunal and that the behaviour is so far apart from what is appropriate professional behaviour that might be expected from a practitioner of the respondent's level of experience and training that it is difficult to come to any other view than there was a sexual motivation for the behaviour.

[121] The Tribunal is of the view that taking all the proven facts into consideration, the applicant has discharged its onus. In Naim v Medical Board of Australia [2013] VSCA 205, the court found that in the absence of a clinical purpose for an exam, the only available inference is that it was conducted for the sexual gratification of the practitioner.

[122] In this case, because of the respondent's personal circumstances, age, surrendering his registration in 2012 and his health, matters such as specific deterrence and the protection of the public from future misconduct by the respondent do not loom large. It is general deterrence which is the paramount consideration for the Tribunal, as is the need to uphold professional standards and maintain public confidence in the profession.

[123] The conduct here involved seven female patients over many years. The patients were vulnerable and trusted the respondent. The conduct is objectively at the very high end of the range of misconduct.

[124] The Tribunal finds that the respondent has engaged in conduct that amounts to professional misconduct.

[126] The respondent is disqualified from reapplying for registration indefinitely.

[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.