MEDICAL BOARD OF AUSTRALIA v RESPONDENT OR1 OF 2025

BETWEEN: MEDICAL BOARD OF AUSTRALIA Applicant AND: RESPONDENT OR1 OF 2025 Respondent

TRIBUNAL: Presidential Member J Lucy Senior Member C Sansum

DATE: 8 December 2025

ORDER The Tribunal orders that:

1. The respondent is reprimanded.

2. Each party is to bear the party’s own costs.

……………………………….. Presidential Member J Lucy For and on behalf of the Tribunal REASONS FOR DECISION Introduction 1. The applicant (the Board) brought disciplinary proceedings against the respondent, a medical practitioner, alleging that he engaged in non-consensual sexual activity with his partner, that he inappropriately prescribed medication to her and that he failed to keep adequate clinical records in respect of his treatment of her.

2. The Board did not establish the factual basis for most of its allegations concerning the respondent engaging in non-consensual sexual activity, but we were satisfied that the respondent engaged in one sexual act with his partner to which she did not consent. The Board did not make any allegation in the application for disciplinary action about the respondent’s knowledge or otherwise about his partner’s lack of consent. In these circumstances, we have found that the Board failed to prove that the respondent’s conduct was inconsistent with him being a fit and proper person to hold registration in the profession. Accordingly, the conduct in question was not professional misconduct.

3. We found that the respondent engaged in unprofessional conduct in failing to keep adequate records on a number of occasions when he prescribed medication to his intimate partner. We were also satisfied that the respondent engaged in unprofessional conduct by prescribing medication to his intimate partner which, although clinically indicated, had the effect of causing her to lactate, an outcome which the respondent desired for his own sexual gratification.

4. We have decided that the appropriate protective order is an order reprimanding the respondent.

Background

5. The respondent is currently 50 years old. He completed a Bachelor of Medicine/Bachelor of Surgery in 2003 and was first registered as a medical 1 practitioner in January 2004. Thereafter, he worked as a general practitioner.

1 Statement of Agreed Facts filed on 6 August 2025 (Statement of Agreed Facts) at [1]-[3]

6. Between June 2013 and February 2016, the respondent was an independent medical practitioner employed by a company which provided fee for service 2 general practitioner consultation services to a medical practice.

7. The respondent was in an intimate relationship with a woman, whom we will refer to as the complainant, between June 2013 and February 2016. In the course of their relationship, the respondent and the complainant engaged consensually in BDSM, which involved bondage, discipline, domination, submission and 3 sadomasochism.

8. The respondent and the complainant agreed upon a “safe word” which could be used during sexual activities. It was agreed that if either of them were to use that 4 word, the other person would immediately cease the activity in question.

9. On 21 February 2019, the Board received a notification from the complainant regarding the respondent’s conduct during their relationship.

10. On 28 June 2021, the Board took immediate action to suspend the respondent’s registration. That suspension remained in force until shortly before the final day of hearing (being 20 October 2025).

Legal framework

11. The object of the Health Practitioner Regulation National Law (ACT) (National Law) is to establish a national registration and accreditation scheme for the 5 regulation of health practitioners and of certain students.

12. The main guiding principle of the national registration and accreditation scheme is set out in section 3A of the National Law. That section provides: 3A Guiding principles (1) The main guiding principle of the national registration and accreditation scheme is that the following are paramount—

2 Statement of Agreed Facts at [5] 3 Transcript of hearing dated 18 August 2025, page 31, lines 10-12 and page 33, line 17 to page 34, line 3; Transcript of hearing dated 19 August 2025, page 178, lines 28-29 4 Statement of respondent dated 13 June 2025 at [32]; Transcript of hearing dated 18 August 2025, pages 36, line 44 to page 37, line 15 5 National Law, s 3 (a) protection of the public; (b) public confidence in the safety of services provided by registered health practitioners and students.

13. Other guiding principles are set out in section 3A(2) and include that restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an 6 appropriate quality.

14. Section 4 of the National Law provides: An entity that has functions under this Law is to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in sections 3 and 3A.

15. The Tribunal is such an entity.

16. The Board carries the burden of proof in disciplinary proceedings under the National Law. The standard of proof is the normal civil standard: on the balance of probabilities. In the context of disciplinary proceedings, the standard is to be applied having regard to the principles set out in Briginshaw v Briginshaw [1938] 7 HCA 34. The Tribunal must be “comfortably satisfied” of the facts in issue.

17. A National Board (such as the Board) is required to refer certain matters to a 8 “responsible tribunal” (that is, ACAT). Section 193 of the National Law provides: 193 Matters to be referred to responsible tribunal (1) Subject to section 193A, a National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if— (a) for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct; or …

18. The term “professional misconduct” is defined in section 5 of the National Law as follows:

6 National Law, s 3A(2)(c) 7 Medical Board of Australia v Bradshaw [2020] VCAT 584 at [95] 8 Health Practitioner Regulation National Law (ACT) Act 2010, s 8 professional misconduct, of a registered health practitioner, includes— (a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and (c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

19. The Tribunal may also find that a registered health practitioner engaged in unprofessional conduct. That term “means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner 9 by the public or the practitioner’s professional peers.” It expressly includes certain forms of conduct which are specified in the National Law.

20. Section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that a person may apply to the tribunal if an authorising law provides that the application may be made. An “authorising law” means, relevantly, a 10 territory law that provides that an application may be made to the tribunal. That is, it includes the National Law.

21. Section 39 of the National Law provides that a National Board may develop and approve codes and guidelines to provide guidance to the health practitioners it registers and about other matters relevant to the exercise of its functions. Such a code or guideline is admissible in proceedings under the National Law against a registered health practitioner as evidence of what constitutes appropriate 11 professional conduct or practice for the health profession. “Good Medical Practice: A Code of Conduct for Doctors in Australia,” 17 March 2014 edition

9 National Law, s 5 10 ACAT Act, Dictionary 11 National Law, s 41 (2014 Code of Conduct) is a code developed and approved under section 39 of 12 the National Law.

22. Under section 196(1) of the National Law, after hearing a matter about a registered health practitioner, a responsible tribunal may make a number of decisions. These include that the practitioner has behaved in a way that constitutes unprofessional conduct or in a way that constitutes professional 13 misconduct.

23. If the tribunal makes such a decision, it may then make certain protective orders, such as cautioning or reprimanding the practitioner; imposing a condition on the practitioner’s registration; requiring the practitioner to pay a fine of up to $30,000; suspending the practitioner’s registration for a specified period; and 14 cancelling the practitioner’s registration.

Non-publication orders

24. Before the hearing of the application for disciplinary action, the Tribunal made orders that: (a) The hearing is to be conducted in private. (b) The respondent is to be referred to as Respondent OR1 of 2025. (c) The complainant is to be referred to as X. (d) The witness [redacted] is to be referred to as W1. (e) The witness [redacted] is to be referred to as W2. (f) The publication of the following is prohibited: (a) The respondent’s name and the names of X, W1 and W2 (b) Any information that could reasonably lead to the identification of the respondent, X, W1 or W2.

12 Statement of Agreed Facts at [4] 13 National Law, s 196(1)(b)(ii) and (iii) 14 National Law, s 196(2) (c) Any evidence given at the hearing, or any matters contained in documents filed with the Tribunal or received by the Tribunal for the hearing. (d) The audio or written records of the proceedings. (g) There is to be no public access to the Tribunal’s file or to any audio or written records of the proceedings.

25. The Board decided not to rely on the statements of W1 or W2, so they did not give evidence at the hearing.

Application for disciplinary action

26. The application for disciplinary action contained seven grounds. By the time of the hearing, the Board no longer pressed Grounds 6 and 7. The remaining grounds were described in the application using the following headings: (a) Ground 1 — Whether between 22 June 2013 and 13 February 2016 the respondent engaged in non-consensual sexual acts with [the complainant]; (b) Ground 2 — Whether between 18 August 2015 and 4 September 2015 the respondent prescribed the following medication to [the complainant] with whom he was in an intimate relationship; (c) Ground 3 — Whether between 18 August 2015 and 4 September 2015 the respondent maintained appropriate clinical records in relation to his treatment and prescribing to [the complainant]; (d) Ground 4 — Whether on 18 August 2015, the respondent prescribed Metoclopramide 10mg (100 tablets, two repeats) to [the complainant], whilst in an intimate relationship, without clinical indication and for the purpose of his own sexual gratification; and (e) Ground 5 — Whether between 22 June 2013 and 13 February 2016 the respondent administered Temazepam to [the complainant] without her consent and/or knowledge to enable sexual compliance.

27. The substance of each ground was set out in the application under the heading for the ground, with particulars provided.

28. In the application, the Board contended that the conduct described in all of the grounds, jointly and severally, constituted professional misconduct. It did not specify in the application the protective orders it sought.

Hearing and evidence

29. A hearing was held on 18, 19, 21 and 28 August 2025. Both parties were represented by counsel.

30. The Board relied upon a book of documents. The book of documents contained, among other documents: (a) witness statements of the complaint; (b) a report dated 22 January 2024 and a supplementary report dated 3 October 2024 of Dr Harold Jacobs, an adjunct associate professor of general practice and rural medicine at James Cook University College of Medicine and a general practitioner; and (c) correspondence between the Australian Health Practitioner Regulation Agency (AHPRA) and the respondent, and between AHPRA and the respondent’s legal representatives.

31. The respondent relied upon: (a) a statement of the respondent with annexures; (b) a report of Dr Vincent Roche, an honorary associate professor at the University of Wollongong and a general practitioner, dated 21 July 2024 (within the applicant’s book of documents), a supplementary report of Dr Roche dated 22 January 2025 and a further supplementary report of Dr Roche dated 1 August 2025; (c) a letter from Dr John Deery, dated 18 August 2025; (d) the report of Dr Martin Allan, consultant psychiatrist, dated 13 March 2025; and (e) a report by Associate Professor Antonio Di Dio, a general practitioner, dated 21 April 2025.

32. Both parties relied upon a statement of agreed facts.

33. At the hearing, the complainant, the respondent, Dr Roche (an expert witness for the respondent) and Dr Jacobs (an expert witness for the applicant) gave oral evidence, including under cross-examination. The parties’ counsel also made submissions as to the factual findings we should make.

34. After the first four days of hearing, we provided the parties with a summary of our factual findings. We found that the Board had not discharged its onus of establishing the factual basis for Grounds 1(a), (b) and (d) and 5. We found that the Board had partly established the factual basis for Ground 4, but that it had not established that there was no clinical indication for the prescription of Metoclopramide. We made factual findings in respect of Grounds 2 and 3 which were consistent with the agreed facts.

35. The parties then provided us with written submissions on characterisation of the conduct and protective orders. The respondent provided a supplementary statement dated 7 October 2025.

36. A further hearing day was held on 20 October 2025 for the parties to make oral submissions on these matters.

37. The Board’s position, after considering our factual findings, was: (a) Ground 1(c) (Metsal on clitoris) amounts to professional misconduct under limb (c); (b) Ground 2 (prescribing to intimate partner) amounts to unprofessional conduct; (c) Ground 3 (clinical record keeping) amounts to unprofessional conduct; and (d) Ground 4 (prescribing for own sexual gratification) amounts to “at a minimum” unprofessional conduct.

38. The Board submitted at the hearing that, in light of the collective seriousness of the conduct of the respondent, a reprimand is appropriate as it facilitates the 15 protection of the public.

15 Transcript of hearing dated 20 October 2025, page 379 at lines 11-13; Applicant’s Submissions on Characterisation and Protective Orders at [58]-[59]

39. The respondent’s position, after considering our factual findings, was: (a) the conduct in Ground 1(c) (Metsal on clitoris) is neither unprofessional conduct nor professional misconduct; (b) the conduct in Ground 2 (prescribing to intimate partner) is neither unprofessional conduct nor professional misconduct; (c) the conduct in Ground 3 (clinical record keeping) amounts to unprofessional conduct; and (d) the conduct in Ground 4 (prescribing for own sexual gratification) amounts to unprofessional conduct.

40. The respondent submitted that the appropriate protective order was a caution.

41. Our reasons for our findings in relation to each ground, and our characterisation of the conduct the subject of each ground, are set out below.

Ground 1 — Whether between 22 June 2013 and 13 February 2016 the respondent engaged in non-consensual sexual acts with the complainant

42. The Board alleged, in its application for disciplinary action, that the respondent engaged in non-consensual sexual acts with the complainant, in the circumstances set out in the four particulars to this ground. The respondent denied that he 16 engaged in any non-consensual sexual acts with the complainant. 17

43. As the respondent submitted, only paragraph (c) of the definition of professional misconduct was capable of applying to the conduct described in this ground, because the conduct was not professional conduct. Contrary to the Board’s 18 submissions, the professional standards in the Board’s code of conduct did not apply to this conduct, because the allegations relate to conduct in the respondent’s personal capacity. The Board’s codes are “evidence of what constitutes appropriate professional conduct or practice for the health profession” (emphasis 19 added).

16 See, for example, respondent’s witness statement filed on 13 June 2025 at [37]-[39], [47] 17 Transcript of hearing dated 28 August 2025, page 335, lines 37-41 18 Applicant’s submissions on liability and protective orders at [74] 19 National Law, s 41

44. There were a number of unsatisfactory aspects to the drafting of the grounds in the application for disciplinary action and of the drafting of Ground 1 in particular.

45. Each ground was drafted so as to identify an issue (in the case of Ground 1, “Whether between 22 June 2013 and 13 February 2016 the respondent engaged in non-consensual sexual acts with” the complainant). As a matter of procedural fairness, it is desirable that a disciplinary charge or allegation is drafted as such, so that both the respondent and the tribunal know the charge the respondent has to meet. Here, it was implicit (but not explicit) that the charge for Ground 1 was that, between 22 June 2013 and 13 February 2016, the respondent engaged in non-consensual sexual acts with the complainant.

46. It was not plain whether that generalised allegation was a stand-alone charge, or whether this general charge was only made in relation to the incidents described in the particulars to Ground 1, or exactly what the charge entailed. The heading (beginning “Whether…”) was followed by a number of paragraphs. Some of these made allegations against the respondent and some did not. The application read as follows: Whether between 22 June 2013 and 13 February 2016 the respondent engaged in non-consensual sexual acts with [the complainant] 15. From approximately 22 June 2013 to 13 February 2016, [the complainant] was in a relationship with the respondent (the relationship). 16. During the relationship, [the complainant] would wake with the respondent penetrating her either anally or vaginally. 17. [The complainant] had not consented to be penetrated either anally or vaginally whilst she was asleep or drugged. 18. When [the complainant] confronted the respondent after waking to being penetrated, the respondent would sulk, be depressed, silent and angry and request [the complainant] apologise for suggesting that the respondent had performed unconsensual acts. 19. During the relationship, the respondent expressed to [the complainant] his interest in chemical bondage (defined as a sex act where Person A is impaired to unconsciousness or semi-consciousness using drugs and/or alcohol, allowing Person B to perform sexual acts upon or with them whilst Person A is in the impaired state) and exploring it as an abstract fantasy together. [The complainant] understood this to be an erotic interest of the respondent, which was indulged in fantasy. 20. During the relationship, [the complainant] and the respondent never had a discussion in which [the complainant] consented to chemical bondage or agreed to participate in chemical bondage.

47. Following these introductory paragraphs to Ground 1 in the application for disciplinary action, were four particulars of Ground 1. They were expressed as follows: A. Particulars- Non-consensual anal sex while drugged or asleep incident 21. In approximately mid-2014, [the complainant] awoke in the middle of the night and the respondent was anally penetrating her. [the complainant] had not consented to being anally penetrated in her sleep nor did she provide consent once she was awake. 22. The following day after this incident, [the complainant] discussed her distress at school with a colleague [W1]. B. Particulars- Non-consensual anal sex on New Years Day 23. On the morning of 1 January 2015, the respondent informed [the complainant] that he had been deprived of annually penetrating her. 24. When [the complainant] verbally and physically resisted, the respondent informed [the complainant] that he expected it by the end of the day and that [the complainant] could either do it right then, or that it would happen later in the day. 25. [The complainant] felt an extreme sense of distress and froze in response. 26. On thinking about a day spent in cowering in fear and containing her fear, [the complainant] subsequently verbally consented to anal sex. During the anal sex [the complainant] was expressing non-verbal signals such as lying face down wither her face in the pillow, audibly crying, lying frozen, clenching and resisting to indicate that she did not want the respondent to anally penetrate her. 27. The respondent continued despite [the complainant]'s non-verbal signals and ejaculated. 28. Following the anal intercourse and ejaculation, [the complainant] attempted to express to the respondent that the anal sex was not consensual, and [the complainant] was not comfortable with what had happened. The respondent was sullen and sulky and withdrawn for the remainder of the day; and also annoyed that [the complainant] had not been distressed at the experience and expressed that it was non-consensual. C. Particulars- Non-consensual Metsal on clitoris 29. In approximately late 2015, [the complainant] agreed to be tied to the bed by the respondent for sexual activity. 30. When [the complainant] was tied to the bed, the respondent obtained a tube of Metsal (heat rub) and applied it to [the complainant’s] clitoris. 31. [The complainant] had not consented to the respondent's application of Metsal to her clitoris. 32. Upon application of the Metsal, [the complainant] experienced intense annoyance and distress. 33. The respondent untied [the complainant] and scolded [the complainant] for making it more difficult by writhing and moving too much. 34. After being untied, [the complainant] pinned the respondent against the wall and indicated that the respondent was not to do that again. D. Particulars – Semen in yogurt 35. During the relationship, the respondent had access to yogurt that [the complainant] would eat for breakfast. 36. Following a period of having access to [the complainant’s] yogurt, the respondent informed [the complainant] that he had been inserting his semen into her yogurt. 37. [The complainant] was not aware and did not consent to the respondent inserting semen into her yogurt without her knowledge.

48. Ms Bindon, for the respondent, raised concerns with the way the allegations were framed, and the absence of any reference to the respondent’s state of mind in the allegations.

49. On the first day of hearing, Ms Musgrove, for the Board, described paragraphs 15 to 20 as “a general introductory outline of the relationship” and said that the 20 application “then … goes into the specifics under the particular grounds.” After some discussion, Ms Musgrove agreed to “deleting” paragraphs 19 and 20 of the 21 application as not being part of the ground. She clarified that the Board only 22 relied upon the particulars of Ground 1 “as stated under (a), (b), (c) and (d).”

20 Transcript of hearing, dated 18 August 2025, page 86, lines 31-33 21 Transcript of hearing, dated 18 August 2025, page 88, lines 37-41 22 Transcript of hearing, dated 18 August 2025, page 87, lines 38-39

50. On the second day of hearing, Ms Bindon submitted that “the whole problem with 23 this matter” is that “it is a criminal allegation that is being run in the tribunal.” 24 She said further that the respondent: does not have any of the protections of the criminal process, and in fact if you read the referral, it doesn’t even allege any knowledge of non-consent or reckless indifference to non-consent. It’s essentially a strict liability allegation which would expose [the respondent] to the possibility that he could be found to be guilty of this regardless of whether there was consent communicated, if [the complainant’s] evidence is accepted that in her mind she wasn't consenting. That is worse than the criminal law.

51. Ms Musgrove, for the Board, explained that there was no allegation as to the respondent’s state of mind in the application for disciplinary action, “because he didn’t make a statement to the police and he wasn’t asked, … to make a statement to the board” so an allegation about his state of mind could not be included in the 25 particulars of the application.

52. The Board’s approach to drafting the grounds, and to omitting any reference to the respondent’s state of mind, tends to suggest that the Board may have misconceived its function or failed to fully appreciate its obligations. Just as a prosecutor may not know what was in the accused’s mind at the time of an alleged crime when commencing criminal proceedings, it will generally be the case that a National Board does not know what was in a practitioner’s mind at the time of alleged conduct when commencing disciplinary proceedings. That does not mean that the National Board should not make any allegation about the practitioner’s state of mind, where that is relevant. It may be that the practitioner’s state of mind may be inferred from conduct or from the testimony of a third party.

53. A National Board is required to refer “a matter about a registered health practitioner” to ACAT if it “reasonably believes, … the practitioner has behaved 26 in a way that constitutes professional misconduct.” In order to form the belief that the practitioner has behaved in a way that constitutes professional misconduct, it is necessary to identify the conduct (or behaviour) with precision.

23 Transcript of hearing, dated 19 August 2025, page 133, lines 6-7 24 Transcript of hearing, dated 19 August 2025, page 133, lines 13-19 25 Transcript of hearing, dated 19 August 2025, page 136, lines 10-16 26 National Law, s 193(1)(a) In this case, it would have been important for the Board to decide, before making the decision to refer, whether the relevant conduct of the respondent was “engaging in non-consensual sexual acts” with the complainant, without more and, if so, what those acts were. This means that the Board would have had to form a reasonable belief that: (a) the respondent had engaged in particular non-consensual sexual acts with the complainant; and (b) that conduct was inconsistent with the respondent being a fit and proper person to hold registration in the profession.

54. In considering whether it held that belief, the Board would have had to form a view about the respondent’s state of mind at the time of the conduct. That is because the respondent’s knowledge or otherwise of the complainant’s lack of 27 consent was relevant to characterising the nature of his conduct. This is a case where a consideration of the detailed subjective and objective circumstances 28 of the conduct is important in characterising it.

55. It is possible, but unlikely, that the Board could have formed a reasonable belief that, if the respondent had engaged in non-consensual sexual activity with the complainant between 2013 and 2015, whilst reasonably believing that the complainant was consenting, that was inconsistent with the respondent being a fit and proper person to hold registration in the profession. We note that the amendment of the definition of “consent” to a sexual act in the Crimes Act 1900 to include agreement that is “communicated by saying or doing something” did 29 not commence until 12 May 2022. The state of the criminal law at the time of the alleged conduct forms part of the context in which that conduct is to be considered and makes it less likely that, at this time, a non-consensual sexual act would constitute professional misconduct if the practitioner believed his partner was consenting to it.

27 See, for example, Health Care Complaints Commission v Robinson [2022] NSWCA 164 at [36] 28 See A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1 at [22] 29 Crimes Act 1900, s 50B. Section 50B was introduced by the Crimes (Consent) Amendment Act 2022, which came into operation on 12 May 2022

56. The possibility that the respondent reasonably believed that the complainant was consenting to the sexual acts which the complainant says were non-consensual illustrates the importance of the Board’s considering what was known, or what might be inferred, about the respondent’s state of mind before making a referral and, if making a referral, before formulating disciplinary charges. The respondent had denied engaging in non-consensual sexual activities with the complainant in correspondence to the Board.

57. It may be that the Board was not in a position to form a reasonable belief that the respondent knew that the complainant was not consenting or that he was reckless whether she was consenting before making the referral, particularly given that the two habitually engaged in BDSM. However, as Ms Musgrove suggested, it may have been possible for the Board to infer the respondent’s state of mind from his alleged conduct, or from the complainant’s evidence about it. Ms Musgrove 30 commented at the hearing: we can’t understand and can’t know what was in [the respondent’s] mind because he hasn’t told anybody, up to the point of filing, what was in his mind, and so you can only infer it from the conduct.

58. If the Board could not reasonably infer that the respondent knew the complainant was not consenting to particular sexual acts, then (arguably) the only “matter” which the Board could have referred to the Tribunal was the matter of the respondent engaging in non-consensual sexual acts with the complainant, irrespective of whether he knew she was consenting. On the other hand, if the Board reasonably believed (for example) that the respondent was reckless as to whether or not the complainant consented to the sexual activity in question, this would properly inform the charge.

59. Even if it is not obliged to do so as a matter of law, there are good reasons for a National Board to identify the relevant conduct, and the relevant charges, with precision, before making a referral, particularly in matters involving allegations of sexual assault. Having done so, matters it might properly take into account before deciding whether it reasonably believes the practitioner has behaved in a way that constitutes professional misconduct include whether the practitioner

30 Transcript of hearing dated 19 August 2025, page 136, lines 14-16 denies the allegations; any delay in making a complaint which might affect a complainant’s memory; whether the allegations are corroborated; and the circumstance that a complainant’s statement to the Board has not been tested.

60. The experience of complainants giving evidence in sexual assault trials is notoriously traumatic. Complainants are also likely to be traumatised, or re-traumatised, when giving evidence about alleged sexual assaults in disciplinary proceedings. Practitioners, who are required to give evidence about their sexual activities in response to allegations that they have sexually assaulted a person, are also likely to find the experience challenging. The respondent in these proceedings described the experience of giving evidence about highly personal and embarrassing details of his relationship with the complainant as being 31 “traumatic.” The proceedings may seriously affect a practitioner’s reputation, if the practitioner’s name is not suppressed, irrespective of the outcome. Where a complainant is subjected to extensive cross-examination, only to have charges dismissed, the complainant may feel that he or she has not been believed. This may also have negative psychological consequences for the complainant.

61. None of this is to deny the important public function the Board performs of bringing disciplinary proceedings where it believes that a practitioner’s personal conduct renders them unfit for registration in their profession. Neverhtless, for all of the reasons expressed above, very careful consideration is warranted of the alleged behaviour which might be referred, and of whether the National Board could reasonably believe that that alleged behaviour, in all of the subjective and objective circumstances, constitutes professional misconduct. Similarly, very careful and precise drafting of professional disciplinary charges is warranted.

62. The allegations, as they appear in the application for disciplinary action in this case, make no reference to the respondent’s knowledge or otherwise of the complainant’s lack of consent. The respondent was entitled to conclude that the Board’s allegation was that the conduct itself rendered him unfit to hold registration, irrespective of his state of mind.

31 Respondent’s Supplementary Statement, filed on 7 October 2025, at [10]

63. There were, however, various indications that the Board was, in substance, contending that the respondent had some degree of knowledge of the complainant’s lack of consent. In its submissions filed before the hearing, the Board submitted that the sexual acts the subject of Ground 1 “were planned and 32 carefully orchestrated by the Respondent to ensure his sexual gratification.” Whilst the Board did not expressly submit that the respondent knew the complainant did not consent to the sexual acts in question, there is a suggestion that this is the case. If it were not, carefully planning a sexual act for the respondent’s own sexual gratification would not constitute professional misconduct. 33

64. Similarly, in its submissions on characterisation and protective orders, made after the hearing of the evidence, the Board submitted that the conduct in particular (c) of Ground 1 was “exceptionally serious conduct” inconsistent with the respondent “possessing sufficient moral integrity and rectitude of character” to be registered as a medical practitioner. It submitted that the conduct “points to 34 concerns about respecting boundaries and acting only on informed consent.” There is no mention in these submissions of the respondent’s state of mind, but it is hard to see how his “moral integrity” could be in question unless he knew the complainant was not consenting or was reckless as to whether she was consenting to the conduct in question.

65. After the evidence had concluded, the respondent submitted that Ground 1 was oppressive, because the allegations appeared to allege “some sort of strict liability form of conduct” by which the respondent had “engaged in alleged non-consensual conduct” without any allegations as to what the respondent 35 “knew, intended or was otherwise aware of.” The respondent also criticised the Board for failing to explain what was meant, in the application for disciplinary action, by consent. Ms Bindon submitted, for the respondent, before we made our factual findings, that Ground 1 could simply be dismissed and the facts not found.

32 Applicant’s Submissions on Liability and Protective Orders at [87.1] 33 Applicant’s Submissions on Characterisation and Protective Orders at [18] 34 Applicant’s Submissions on Characterisation and Protective Orders at [29] 35 Transcript of hearing dated 28 August 2025, page 327, lines 10-20

66. We were not prepared to dismiss Ground 1 in the absence of any formal application to that effect. Instead, we made factual findings about each particular to Ground 1 then heard and determined the parties’ further submissions about characterisation.

A. Particulars — Non-consensual anal sex while drugged or asleep incident

67. It is alleged in the application for disciplinary action that, in approximately mid-2014, the complainant awoke in the middle of the night and the respondent was anally penetrating her. It is alleged that the complainant had not consented to being anally penetrated in her sleep nor did she provide consent once she was awake. It is further alleged that the following day after this incident, the complainant discussed her distress at her workplace with a named colleague.

68. The evidence given by the complainant in her statement to AHPRA, made in 36 2019, which is relevant to this allegation is as follows: Not all of the sexual activity between [the respondent] and me was consensual. Sometimes I would wake with him penetrating me either anally or vaginally. the respondent really enjoyed causing physical pain. As often as possible, I would deny power over me to him by reducing my reaction, in order to deny him sadistic pleasure on those occasions. I was not always successful in this, and often wept and pled him to stop the pain, because it was too much. He continued, because this was sexually provocative to him. While I was not always successfully resisting him at the time, when I confronted him afterwards to suggest that his nocturnal behaviour had not been consensual, he often sulked; was depressed, silent and angry, and required that I apologised, because he expressed problems that I was suggesting that he was performing unconsensual acts.

69. In a later witness statement, made in 2024, the complainant provided some further 37 evidence concerning this allegation: There are two major incidents that I recall. The first incident occurred during midyear 2014. I have confusion for this timing because I have an image of me in a [certain type of] dress in April 2015 that I recall sharing this incident with [a named colleague] while I was wearing this attire, but as a [named occupation] I had a habit of wearing [a type of] dress, and I believe I acquired the garments in 2014 both at OpShops and a market. The reason I believe that this event predated 2015 was the quality of my confusion, distress, and attempt to understand, which differed from my annoyance, distress, and greater willingness to explicitly address the 36 Complainant’s statement dated 5 August 2019 at [26], CB 86 37 Complainant’s statement dated 30 July 2024 at [12], CB 92 matter. As context, throughout the relationship I slept on the left-hand side of the bed, such that [the respondent] was typically on my right hand side. I awoke in the middle of a night, I believe in mid-2014, and he was anally penetrating me. We hadn’t discussed doing this and nor did I provide consent. At the time I froze in alignment with my history of childhood abuse. I discussed my distress at [work] the next day with [the named colleague], obliquely, to indicate my distress and concern about my relationship. I am not sure that I was explicit about the behaviour itself, but I believe I expressed my distress.

70. The respondent denied, under cross-examination, that he had commenced anal 38 sex with the complainant in mid-2014 whilst she was sleeping.

71. The complainant was questioned about the evidence she gave in her statements by the respondent’s counsel, Ms Bindon, at the hearing. The following exchange 39 took place: MS BINDON:…You say that, in the second sentence, ‘Sometimes I would wake with him penetrating me either anally or vaginally.’ But you don't give any account of any incident in this statement or your other statement about a vaginal penetration without your consent, do you? [THE COMPLAINANT]: Correct. MS BINDON: And it's not the case that that ever happened? [THE COMPLAINANT]: That's not my recollection. MS BINDON: That's not your recollection, but yet you give no account [THE COMPLAINANT]: Correct. MS BINDON: … of any specific incident. That's because you don't recall any specific incident of it. [THE COMPLAINANT]: Correct. I have no specific memory of that.

72. The complainant accepted that she had not used the safe word and that a clear and unmistakable way to convey her non-consent to the respondent would have been 40 to use the safe word.

73. Later in the hearing, Ms Bindon asked the complainant about her memory of the 41 event, as follows:

38 Transcript of hearing dated 19 August 2025, page 189, lines 9-17 39 Transcript of hearing dated 19 August 2025, page 123, lines 29-47 40 Transcript of hearing dated 19 August 2025, page 124, lines 9-12 and page 129, lines 37-41 41 Transcript of hearing dated 19 August 2025, page 151, lines 7-11 MS BINDON: There was no occasion in mid-2014 or ever when you woke to [the respondent] anally penetrating you without your consent, was there? [THE COMPLAINANT]: It's inconsistent with my feeling but not with my -and I don't recall.

74. We consider the complainant to be a truthful witness. She considered her answers carefully and, in our estimation, attempted to give accurate answers at all times. She also made appropriate concessions.

75. The complainant is a survivor of child sexual abuse. She also claims to have been the victim of sexual assaults by the respondent. It was plain, when she was giving evidence, that she found the experience challenging. She frequently appeared to be emotional and needed breaks. The experience of being cross-examined may well have been traumatic for her.

76. We are aware that trauma may affect memory. It may be that the respondent did sexually assault the complainant and that the traumatic nature of the event has affected her memory of it. It is also likely that the significant passage of time since the alleged events, being over ten years, has resulted in the complainant’s memory deteriorating.

77. It is not our role to determine whether the respondent sexually assaulted the complainant during their relationship as a general proposition, or whether there were times during the relationship when he engaged in sexual activity with the complainant without her consent. It may be, as the complainant claims, that she would sometimes wake to find the respondent penetrating her either anally or vaginally. We make no finding in that regard one way or the other.

78. Our task is to determine whether the Board has established, to the Briginshaw standard, the specific allegations or charges made in the application for disciplinary action.

79. The first particularised charge, that the complainant woke in mid-2014 to find the respondent anally penetrating her without her consent, fails at the first hurdle. The complainant identified that this occurred in mid-2014 in a statement made in July 2024, about ten years after the alleged incident. Whilst the complainant stated, positively, that the incident occurred “during midyear 2014,” she immediately qualified this by referring to her “confusion” as to the timing of the event. The complainant provided some reasons why she thought the event occurred in the middle of 2014, but there were also reasons to be unsure about this, such that the event may have occurred in or after April 2015. When asked about this in cross-examination, the complainant accepted that she had been confused about 42 whether the event occurred in 2014 or 2015.

80. There was no corroborating evidence before the Tribunal from the friend in whom the complainant says she confided about the incident, and at the hearing the complainant could not recall whether she had discussed the specific event with 43 her friend, or only her distress. In her statement, the complainant says that she was not sure that she was explicit about the behaviour itself when speaking to her friend.

81. Due to the lack of precision in the complainant’s evidence, the Board has not established that any non-consensual act of anal intercourse, if it occurred at all, occurred in mid-2014.

82. Even if the timing of the event were not an issue, we could not be satisfied, to the Briginshaw standard, that the particular non-consensual act of anal penetration occurred in circumstances where the complainant has no memory of any specific 44 incident, notwithstanding her evidence that the proposition that the event did 45 not occur is not consistent with her feeling.

83. For these reasons, the Board has not established the factual basis for the allegations in the first particular to Ground 1.

B. Particulars — Non-consensual anal sex on New Year’s Day 2015

84. The Board alleged that, on the morning of 1 January 2015, the respondent informed the complainant that he had been deprived of “annually” (presumably meant to be “anally”) penetrating her. The Board also alleged that, when the

42 Transcript of hearing dated 19 August 2025, page 150, lines 22-26 43 Transcript of hearing dated 19 August 2025, page 150, line 39 to page 151, line 1 44 Transcript of hearing dated 19 August 2025, page 123, lines 40-47 45 Transcript of hearing dated 19 August 2025, page 151, lines 7-11 complainant verbally and physically resisted, the respondent informed her that he expected it by the end of the day and that she could either do it right then, or that it would happen later in the day. The complainant, it is alleged, felt an extreme sense of distress and froze in response.

85. The Board contends that, on thinking about a day spent cowering in fear and containing her fear, the complainant subsequently verbally consented to anal sex. During the anal sex, it is alleged, the complainant was expressing non-verbal signals such as lying face down with her face in the pillow, audibly crying, lying frozen, clenching and resisting to indicate that she did not want the respondent to anally penetrate her. According to the Board, the respondent continued despite the complainant’s non-verbal signals and ejaculated. Afterwards, upon the complainant expressing that the sex was not consensual, the Board claims that the respondent was sulky and withdrawn for the remainder of the day.

86. The disciplinary charge appears to be closely based upon the evidence the complainant gave to AHPRA in a witness statement on 30 July 2024. Her witness 46 statement contains the following account: On the morning of January 1st, 2015, [the respondent] informed me that he had been deprived of anally penetrating me. When I verbally and physically resisted he indicated that he expected it by the end of the day, and that I could either do it right then, or that it would happen later that day. I felt an extreme feeling of dread and froze in response. I now understand this is my response to trauma, partly exacerbated by the contrasting hope for the new year and the contrast of what that morning delivered. Considering the prospect of a day cowering in and containing fear or getting it over with (my history is a huge factor in this space) I feel like I did verbally permit [the respondent], while non-verbally signalling that I would not like him to anally penetrate me. My non-verbal signifiers throughout the act, in which I was face down, face in pillow, included audibly crying, lying frozen, clenching, and resisting (in retrospect, perhaps to his benefit and pleasure). I was devastated for the remainder of the day, after he had finished and ejaculated into my anal cavity, and for the remainder of the day he was sullen, sulky and reserved, and annoyed that I was distressed at the experience and because I had tried to verbally address that it was not consensual and I was uncomfortable that it had happened.

46 Complainant’s witness statement to AHPRA dated 30 July 2024 at [13], CB 92

87. Notes taken by a police officer of an interview with the complainant on 19 August 47 2021, including about this alleged incident, record: NEW YEARS DAY 2015 - feeling nice and connected - good night. Surprised - morning - before noon. Bedroom on top floor ([redacted] - residing together) He would flip into a mode - to show he was in a dominate mood and expected submission. Voice - tone would change. Told me - I handed submitted by allowing anal sex and hadn't had in sometime and wouldn't let me get away with it much longer. I was laying face down on the bed - don't recall being there on my own choice. I said no - that's not what I wanted, no in the space for it. Response - submit now or later - can't recall if that was said or just that it was inferred. Never enjoyed it and it's painful. I had suffered through consensually in the relationship earlier. Mercy - felt the threat of being in - not violence, no danger - Threat my life would be uncomfortable - hard things about a relationship. I didn't struggle or through him off - only informed him I didn't want it to happen. Did it anyway - Detail - Face down at pillow section He was behind me - believe he used lube Remember crying and hope he recognised that was painful Didn't struggle or cry loudly as he would enjoy that Remember trying to set out of body - so I don't feel as much - it was too painful to do that. Felt let down I couldn't escape.

88. When asked by Ms Bindon at the hearing what words the respondent had used before having anal sex with her, the complainant said: “I don't recall his specific 48 words at this time, these years after.” The complainant also accepted that she was sending two different messages to the respondent, by verbally permitting the

47 Book of Documents pages 332-333 48 Transcript of hearing dated 19 August 2025, page 149, lines 13-14 respondent to anally penetrate her, whilst non-verbally signalling that she did not 49 want him to do so.

89. The respondent denied that he told the complainant that he had been deprived of anally penetrating her, on 1 January 2015, and that he gave her an ultimatum that they were to have it then or have it later, but that he expected it by the end of the 50 day. As indicated above, he also denied engaging in any sexual activity with the 51 complainant without her consent.

90. The complainant’s evidence is not sufficiently definite for us to be satisfied, to the Briginshaw standard, that the respondent engaged in non-consensual anal sex with the complainant on New Year’s Day 2015. The complainant states in her witness statement of 30 July 2024 that the respondent informed her that he had been deprived of anally penetrating her and that she could either do it right then, or that it would happen later that day. In her earlier statement to police, she stated that she could not recall if that was said or “just that it was inferred.” The statement to police was given over six years after the alleged event and the witness statement to AHPRA was given nine and a half years later. The passing of time, taken with the stated uncertainty of the complainant’s evidence, makes it impossible for us to reach the required state of satisfaction as to what occurred.

91. The complainant’s evidence that she “did verbally permit” the respondent to have anal sex with her, whilst non-verbally signalling that she did not want him to anally penetrate her, also makes it difficult for us to reach a state of satisfaction that the respondent engaged in non-consensual anal sex with the complainant. That difficulty is compounded by the complainant’s statement to the police that she did not struggle or throw the respondent off and did not cry loudly. Her later statement that she was “audibly crying” may reflect her recollection in 2024, but it is possible, given that she had said the previous year that she was not crying loudly, that the respondent was not aware that she was crying at all.

49 Transcript of hearing dated 19 August 2025, page 142, lines 7-19 50 Transcript of hearing dated 19 August 2025, page 189, lines 9-17 and page 189 lines 45 to page 190, line 21 51 Respondent’s witness statement filed on 13 June 2025 at [39]

92. We accept the complainant’s evidence that she did not want the respondent to anally penetrate her on 1 January 2025 and that she found the experience painful and distressing. It appears to have been traumatic for her. The evidence establishes that there is a possibility that she did not consent to the anal sex and that the respondent was aware of that. However, in circumstances where her evidence is that she probably verbally consented to anal intercourse, the Board has not established to the Briginshaw standard that the sex was non-consensual. Not wanting something to occur and not consenting to it are two different things. We cannot be satisfied that the respondent gave the complainant an ultimatum, when she is not certain what he said and has indicated that the threat he made may have been inferred. We take this to mean that the complainant may have inferred a threat or ultimatum and that may not have been explicit.

93. Accordingly, the Board has not discharged its onus of establishing the factual basis for the allegations in the second particular of Ground 1.

C. Particulars — Non-consensual Metsal on clitoris

94. The allegations in relation to the third particular of Ground 1 are set out above.

95. The complainant’s evidence in her AHPRA witness statement of 30 July 2024 in 52 relation to this allegation is as follows: I do not have a specific reference for this incident, however, in keeping with activities that I had not thought medically relevant but did report to the police the following occurred. This feels like it may have been later 2015, as I had been resistant to sadistic or painful activity, however I did agree to being tied up for sexual activity. When I was tied to the bed, [the respondent] obtained a tube of Metsal (Yellow cap, green label), and applied it to my clitoris. The use of Metsal had not been discussed or agreed to, and I was surprised and resistant to it. At the same time, I was also aware that [the respondent] enjoyed my pain and distress, so I attempted to contain and minimise those reactions to avoid encouraging him. When he applied it, I cannot recall my words, but they would have indicated intense annoyance and distress. He untied me and scolded me for making it more difficult by writhing and moving too much. Once I was out of the immediate distress of effectively having the most sensitive part of my body swathed in a Deep Heat equivalent, I did pin [the respondent] against the wall near the house bathroom door, adjacent to the stairwell, and indicate that he was not to do that again.

52 Book of Documents, page 92 at [14]

96. The notes of the police interview conducted on 19 August 2021 in relation to this 53 incident record: Other things: Tired [sic] up (consented) and wanting to use a deep heat type of substance – as a form of pain to my clitoris – I had not consented to. I have never been so angry and couldn’t remove myself from the pain. I insisted he untie me. He told me off for being drama queen. Once I was free, and removed the substance I held him up against the wall. Townhouse – held against a wall and told him he was never to do that again. I think I shocked him and he never did again. 54

97. The police interview notes continue, at a later point: DEAP HEAT: During a day – likely a weekend – no kids. Last year of relationship – 2015 Tolerance decreased Wanted to do it for a while Agreed to bound – (42) Red bondage rope – slats under the bed – attached to wooden slats I was tied up Purpose was for some sort of pain compliance (flogged etc) No chat of deep or agreed to. I remember him getting it out. Can’t recall words – It was almost like a challenge – I was unsure what he was about to do. Told me – I wasn’t good at being submissive Reflected on my complicity to do what he wanted Expressed concern: He knew I was hesitating I bailed him up after – he knew I didn’t want it and not to do it again. Q’s Bound – legs and arms, head up near pillows I was in leg restrains – wanted to shut legs but was unable to Bound – spread eagle. Dressed – naked at time He was nude Time of year: good indoor heating so hard to tell time of year. Time of life: nothing out of normal Maybe in-between semesters Diary – not consistent No medical

53 Book of Documents, page 330 54 Book of Documents, pages 334-335 Wall – able to get legs free, telling me off Putting legs together – making it worse Got tissues – trying to get rid of it Once pain stopped – overwhelmed with angry I think I yelled Main bedroom – mud map Held against corridor wall – held on shoulders His response – he was terrified Deep heat or metsal – label?? Other activities? Not the first thing that happened but can’t recall what did happen. Likely – would using happen intercourse not happen to later Normal thrashing or clamps first – level of pain tested first – foreplay Bound for? No longer than 15 – 20 mins Other acts of foreplay prior – consent to bound but not cream Applied with finger - How much – not much – taunted me at the start He was making an assessment of quantity and how I could manage it.

98. The complainant agreed, in cross-examination, that she and the respondent sometimes engaged in consensual play during their sexual activities including hot 55 and cold play.

99. Ms Bindon, counsel for the respondent, asked the complainant about what occurred during consensual hot and cold play: MS BINDON: So when you were engaging in the consensual hot and cold play, that would include [the respondent] applying ice or the thermal substance to you? [THE COMPLAINANT]: I don't have a clear recollection of us using ice together. However, I feel like it's in the realm of possibility. I feel like that's - that likely happened. In terms of hot play, I don't recall that being engaged in consensually. MS BINDON: Never? [THE COMPLAINANT]: Not to my recollection. MS BINDON: You don't have a memory one way or the other? [THE COMPLAINANT]: No.

100. In light of the complainant’s evidence about her lack of memory of consensual hot and cold play activities, Ms Bindon asked the complainant to clarify that her

55 Transcript of hearing dated 18 August 2025, page 61, lines 17-32; Transcript of hearing dated 19 August 2025, page 116, line 41 to page 117, line 26. See also respondent’s witness statement filed on 13 June 2025 at [33] previous answer that she and the respondent engaged in consensual play included 56 hot and cold play. The complainant replied: 'Hot and cold play' is a term that means the playing with temperature. It doesn't always mean the use of hot and the use of cold. It refers to temperature. But, yes, in that context it did.

101. Ms Bindon asked the complainant about the statement she gave to AHPRA where she said she could not recall her words when the respondent applied the Metsal to her clitoris, but that they “would have indicated intense annoyance and distress.” The complainant said to the Tribunal: “I have a strong memory of the 57 emotion and the event, but not the specific words.”

102. The following exchange then occurred between Ms Bindon and the 58 complainant: MS BINDON: And what in fact occurred was that you had consented to hot and cold play, but you withdrew consent when you did not enjoy the experience of this substance being applied to you? [THE COMPLAINANT]: That's inconsistent with my memory. It was not agreed that we would use that substance or any - my recollection is that I was surprised by the presence of that substance. MS BINDON: I suggest to you that the use of a thermal substance, Deep Heat or Metsal type substance, formed a regular part of your and [the respondent’s] consensual hot and cold play. [THE COMPLAINANT]: That is inconsistent with my recall.

103. The complainant denied that the substance used could have been Deep Heat or Dencorub. She said she was “quite sure” it was Metsal, referring to “a yellow cap, 59 green writing.” Ms Bindon suggested that the complainant had told the police in her interview that it was Deep Heat. The police record of interview does not unambiguously convey that. The police officer recorded that the complainant said that the respondent was “wanting to use a deep heat type of substance.” Whilst there is a heading, “Deep Heat,” this might be a short hand (possibly the police officer’s short hand) for a deep heat type of substance. The police officer’s note,

56 Transcript of hearing dated 19 August 2025, page 119, lines 18-29 57 Transcript of hearing dated 19 August 2025, page 120, lines 26-27 58 Transcript of hearing dated 19 August 2025, page 121, lines 19-31 59 Transcript of hearing dated 19 August 2025, page 114, lines 18-37 “Deep heat or metsal – label??” does not indicate clearly what the complainant said.

104. The respondent denied that he had applied Metsal to the complainant’s clitoris 60 without her consent. He could not recall any specific instances where he applied a heat product to the complainant’s clitoris, but considered that this may have 61 occurred with her consent. His evidence was that the complainant sometimes 62 applied Metsal or a heat rub to his anus or penis. He gave the following 63 evidence: MS MUSGROVE: It's the case, isn't it, that on the - in the day that you actually applied the Metsal to [the complainant’s] clitoris, she had consented to being tied to the bed for sexual activity? That's correct? [THE RESPONDENT]: I don't specifically remember the alleged event. MS MUSGROVE: So you have no specific recollection of the actual event? [THE RESPONDENT]: Not as the complainant has presented it in her statements, no. … MS MUSGROVE: Do you accept that you put Metsal on her clitoris whilst she was tied to the bed? [THE RESPONDENT]: No, I don't.

105. The respondent’s evidence was that every sexual act that was going to be 64 undertaken was discussed before it occurred. MS MUSGROVE: I think we’ve established - I've put the proposition to you that you placed Metsal on her clitoris, and you have rejected that proposition. [THE RESPONDENT]: That’s correct. MS MUSGROVE: I’m now putting the proposition to you that she had not consented to the Metsal being placed onto her clitoris. Do you accept that? [THE RESPONDENT]: Yes, I accept that.

60 Respondent’s witness statement filed on 13 June 2025 at [47] 61 Respondent’s witness statement filed on 13 June 2025 at [51] 62 Transcript of hearing dated 19 August 2025, page 192, lines 15-18; respondent’s witness statement filed on 13 June 2025 at [51] 63 Transcript of hearing dated 19 August 2025, page 192, line 30 to page 193, line 10 64 Transcript of hearing dated 19 August 2025, page 176, line 46 to page 177, line 1. See also respondent’s witness statement filed on 13 June 2025 at [31]

106. We have approached the allegation that the respondent applied Metsal to the 65 complainant’s clitoris without her consent “with much care and caution.” We are mindful that a state of reasonable satisfaction that the allegations are established “should not be produced by inexact proofs, indefinite testimony, or 66 indirect inferences.”

107. The complainant was often unable to remember events which occurred in the relationship with precision and sometimes could not remember them at all. That is not surprising in that the relationship ended about nine and a half years before the hearing and began over twelve years before the hearing. For example, the complainant could not remember if she and the respondent used ice during hot and cold play, but conceded that this was possible or even probable. However, there were certain aspects of her evidence on which she had a firm memory.

108. We find, on the basis of both the complainant’s evidence and that of the respondent, that the complainant and the respondent spoke about their sexual activities before engaging in them. This was the main way in which the complainant provided consent for sexual activities which caused her pain. We accept the complainant’s evidence that they did not discuss the use of a deep heat 67 substance on her genitals. She is consistent in her evidence that she was 68 surprised when the respondent used it. The respondent has also admitted that she did not consent to him applying it to her.

109. We are comfortably satisfied that the respondent applied Metsal to the complainant’s clitoris whilst she was consensually tied up. This made the complainant extremely distressed and she verbally objected. After she objected, the respondent untied her. We find, on the basis of her evidence, that the complainant then pinned the respondent against the wall and told him not to do it again.

65 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, Latham CJ at 347 66 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, Dixon J at 362 67 Transcript of hearing dated 19 August 2025, page 121, lines 23 to 25; Complainant’s statement to AHPRA dated 30 July 2024 at [13] 68 Transcript of hearing dated 19 August 2025, page 121, lines 23 to 25; Complainant’s statement to AHPRA dated 30 July 2024 at [13]

110. The complainant’s evidence about the incident is persuasive. The incident distressed her and angered her (as evidenced by her words “I have never been so 69 70 angry” and “overwhelmed with angry” ) such that it is likely to have remained in her memory. We are satisfied that she generally gave truthful evidence and that she did not invent the incident. The respondent does not suggest that she was 71 deliberately untruthful. The complainant’s evidence of holding the respondent against a wall is credible and consistent with the degree of anger she said she felt.

111. We do not accept the respondent’s evidence that the incident did not occur. The respondent said that he may have applied a heat substance to the complainant’s clitoris with her consent, but also gave evidence that she had not consented to him doing so. He denied the allegation that he had applied a heat substance without the complainant’s consent.

112. The respondent stated that the complainant applied a heat substance to his penis and anus as part of hot and cold play, whereas she maintained that this did not 72 occur. We prefer the complainant’s account. It is more consistent with the evidence as a whole, because applying a heat substance to the respondent’s penis would cause him pain, and she was the masochistic partner in the relationship and 73 he was the sadistic partner.

113. Ms Bindon submitted that the complainant may have an honest but unreliable 74 recollection of events. She relied upon Hewett v Medical Board of Western Australia [2004] WASCA 170 in which Miller J discussed the effect of a medical board’s delay in bringing disciplinary proceedings alleging sexual misconduct. In that case, there was a gap of 15 years between the alleged conduct and a witness giving evidence about that alleged conduct. Miller J observed that the practitioner’s “difficulty included a lack of opportunity to explore the surrounding circumstances of each alleged offence because of the delay which

69 Book of Documents, page 330 70 Book of Documents, page 334 71 Transcript of hearing dated 28 August 2025, page 331, lines 46-47 72 Transcript of hearing dated 19 August 2025, page 120, lines 7-10 73 Transcript of hearing dated 18 August 2025, page 51, lines 31-38; page 59, lines 22-29; and page 80, lines 25-41; Transcript of hearing dated 19 August 2025, page 128, lines 1-19 74 Transcript of hearing dated 28 August 2025, page 331, lines 42-45 75 had occurred.” His Honour referred to the judgment of McHugh J in Longman v The Queen [1989] HCA 60 at 107, where McHugh J discussed the fallibility of memory and commented that “[i]nterference with a person’s ability to ‘remember’ may … arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling.” In a passage cited by Miller J, McHugh J also referred to the prejudice to the defence caused by a delay, being an inability to explore the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's 76 testimony.

114. Ms Bindon also relied upon Justice Leeming’s judgment in Arizabaleta v R 77 [2023] NSWCCA 217. His Honour referred to ways in which a change in memory from being unsure to certain can come about. One related to a person trying to piece together a coherent account of events in the aftermath of traumatic event. Another was the possibility of a person’s memory becoming distorted over 78 79 time. His Honour opined: It is not difficult for a belief in a possibility to become a belief in a probability. Nor is it difficult for a belief in a probability to become a belief in the fact. This merely reflects the plasticity of human memory and what happens when the witness is asked, repeatedly, to give his or her best account of what occurred. Every day courts encounter witnesses who genuinely believe their recollections of past events, and find that those beliefs are mistaken.

115. Leeming JA expressed the view that “[a] witness who acknowledges that he or she did not see or hear everything that occurred, or cannot be certain of order, or of the words that were spoken, and recognises the fallibility or his or her memory, may very possibly be giving more accurate evidence of his or her recollection 80 than one who claims to have a clear and distinct memory.”

75 Hewett v Medical Board of Western Australia [2004] WASCA 170 at [31] 76 Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79 at 107, cited in Hewett v Medical Board of Western Australia [2004] WASCA 170 at [33] 77 Transcript of hearing dated 28 August 2025, page 333, lines 8-37 78 Arizabaleta v R [2023] NSWCCA 217 at [101], [102] 79 Arizabaleta v R [2023] NSWCCA 217 at [102] 80 Arizabaleta v R [2023] NSWCCA 217 at [107]

116. Ms Bindon also relied upon the judgment of Howie J, with whom Meagher JA 81 and Simpson J agreed, in R v DBG [2002] NSWCCA 328. In that case, his Honour made the following observations about the effect of delay in a criminal 82 trial: 37 But significant delay does not merely affect the ability of the accused to defend himself by depriving him of the opportunity to gather evidence which might at least place a doubt upon the Crown case. It can also prejudice the accused in a more subtle way, as occurred in the present case. By reason of the delay, the complainant was necessarily vague as to the specific occasion upon which she alleged that the first act of intercourse occurred. She was also unable to supply any particularity to the history of sexual assaults that she alleged had been committed upon her except by relating them to the place where they occurred. 38 The difficulty for an accused person in rebutting that evidence is obvious, at least to the legal mind. On the other hand, a jury might readily accept that, even if the complainant were telling the truth about her allegations, she would, by reason of her young age, the delay and the number of incidents of sexual abuse alleged by her, have difficulty giving any but the barest detail of the circumstances surrounding them. Such a situation might even engender some sympathy for the complainant when those defending the accused require particularity and consistency in her evidence and criticise her when it is not forthcoming. Where such a possibility arises, it is necessary for the trial judge to bring home to the jury the consequences of delay upon the accused’s ability to test the Crown’s case. It may even be necessary for the trial judge to make it clear to the jury that the delay may have caused the Crown witnesses to become unreliable or in some other way have weakened the Crown case rather than to allow the jury to act on the basis that the delay might excuse or explain apparent defects in the evidence of those witnesses.

117. Ms Bindon submitted that the respondent was doubly prejudiced by the delay in bringing these proceedings. First, the complainant was unable to supply details of the allegations, often not being able to recall those details. There was, Ms Bindon said, a lack of specificity in the complainant’s evidence. And secondly, the respondent has lost the ability to be close in time to the events, so 83 he can check his own records.

81 Transcript of hearing dated 28 August 2025, page 333, line 39 to page 334, line 29 82 R v DBG [2002] NSWCCA 328 at [37]-[38] 83 Transcript of hearing dated 28 August 2025, page 334, lines 31 to 38 and page 335, lines 4-10

118. We acknowledge that the delay between the events in question and the hearing requires us to be cautious when making factual findings. However, the incident stood out in the complainant’s mind because of the pain and anger she felt. Notwithstanding the gap in time, we are satisfied, to the Briginshaw standard, that the respondent applied Metsal to the complainant’s clitoris without her consent.

119. Particular (c) of Ground 1 is established.

Characterisation of conduct

120. The Board submits that the conduct of the respondent the subject of Ground 1(c) amounts to professional misconduct under limb (c) of the definition contained in section 5 of the National Law, being: c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.

121. The Board submitted that the respondent’s conduct was “exceptionally serious” and inconsistent with him “possessing sufficient moral integrity and rectitude of character to permit them to be accredited to the public as a person to be entrusted to perform … work” as a doctor, even though the conduct took place outside his 84 professional practice. The Board pointed out that the complainant was in highly vulnerable physical situation as she had consented to being restrained for the 85 purposes of sexual activity.

122. The Board also submitted that the conduct effectively amounted to a battery at common law, and that it met the definition of family violence under section 8 of 86 the Family Violence Act 2016.

123. Ms Bindon, for the respondent, made a number of criticisms of Ground 1(c). She submitted that it was “hopelessly vague and uncertain” in that it failed to: (a) articulate what was meant by “consent,”

84 Applicant’s Submissions on Characterisation and Protective Orders at [16]-[18]. The Board relied upon Medical Board of Australia v PYP [2021] VCAT 876 and authorities cited in that case 85 Applicant’s Submissions on Characterisation and Protective Orders at [19] 86 Applicant’s Submissions on Characterisation and Protective Orders at [23] (b) articulate any mental element required to be established (such as knowledge or reckless indifference); and (c) articulate whether any excuse for the conduct was available to the respondent, such as belief on reasonable grounds that the complainant was 87 consenting.

124. She submitted that, in light of those considerations, the conduct in Ground 1(c) cannot with any degree of assurance be said to constitute “conduct that is inconsistent with the [respondent] being a fit and proper person to hold registration in the profession” within the meaning of limb (c) of the definition of 88 professional misconduct.

125. On the final day of the hearing, Ms Bindon made the following oral submissions 89 about Ground 1(c): It doesn't allege that he intended to do anything without her consent, it doesn't allege that he knew she didn't consent, it doesn't allege that he was aware that she might not be consenting, and it does not allege that he couldn't care less one way or the other whether she was consenting. It is totally silent on that question, and that, in my submission, is fatal to the Board's submission that this could be professional misconduct under limb C, because there is no finding of the character element that could possibly draw a link to professional practice. 90

126. Ms Bindon continued: In my submission, the respondent could well have believed that she was consenting. He could also have believed that, if she did not consent, she would use the safe word, …

127. The respondent’s submissions have force.

128. Particular (c) to Ground 1 is set out above. The main allegation against the respondent appears to be in paragraph 30, being that he applied Metsal to the complainant’s clitoris. It is also alleged in paragraph 31 that the complainant did not consent to this. However, as the respondent has submitted, there is no allegation about the respondent’s state of mind in relation to the complainant’s

87 Respondent’s Submissions on Characterisation and Protective Orders at [37] 88 Respondent’s Submissions on Characterisation and Protective Orders at [40] 89 Transcript of hearing, dated 20 October 2025, page 382, lines 31-38 90 Transcript of hearing, dated 20 October 2025, page 383, lines 14-16 lack of consent. Further, the respondent was not cross-examined about whether, at the time, he believed the complainant was consenting or not.

129. In circumstances where the complainant and the respondent engaged consensually in BDSM, and sometimes engaged in consensual play during their sexual activities including hot and cold play, it is at least possible that the respondent believed the complainant to be consenting.

130. The respondent accepted, under cross-examination, that the complainant did not consent to Metsal being placed on her clitoris. However, the admission was made in the context of the respondent maintaining his denial that he had placed Metsal on the complainant’s clitoris without her consent. It was an admission made about ten years after the alleged incident, in circumstances where the respondent had observed the complainant give evidence at the hearing about her lack of consent.

131. The respondent’s statement in cross-examination that he accepted that the complainant had not consented to the Metsal being placed onto her clitoris is not properly characterised as an admission that the respondent knew, in 2015, that the complainant did not consent to him doing so.

132. Further, the Board did not make any application to amend Ground 1 to include an allegation about the respondent’s state of mind. If “a disciplinary allegation is enlarged in a significant way during the course of a hearing, the practitioner must 91 be told and given an opportunity to answer.” A failure to give notice of a change in an allegation would be a breach of procedural fairness. In circumstances where the Board has not amended its application to include an allegation about the respondent’s state of mind, it would be procedurally unfair for us to make an adverse finding about the respondent’s knowledge of the complainant’s lack of consent and to take that into account for the purposes of characterising the conduct the subject of Ground 1.

133. We reject the Board’s submission that it is relevant for us to consider whether the respondent’s conduct effectively amounted to a battery at common law, and whether it met the definition of family violence under section 8 of the Family

91 Hegde v Pharmacy Board of Australia [No 2] [2020] WASC 384 at [78], citing Archer v Howell (No 2) (1992) 10 WAR 33 at 50 Violence Act 2016. The application for disciplinary action did not contain any allegations to that effect and it would be procedurally unfair for us to consider those questions, introduced as they were after the evidence had concluded. Further, even if the conduct meets the definition of “family violence” in a statute, that does not mean that the conduct offends a statutory provision.

134. For all of these reasons, the Board has not persuaded us that the conduct the subject of Ground 1, without more, is inconsistent with the respondent being a fit and proper person to hold registration in the profession. It was not suggested that the respondent’s participation in consensual BDSM practices rendered him unfit. The allegation was that he was unfit because the complainant did not consent to the activity. However, where the charge does not make any allegation about the respondent’s state of mind, the Board has not established that the respondent’s conduct was inconsistent with him being a fit and proper person to hold registration in the profession.

135. The Board has therefore not established that the respondent is guilty of professional misconduct. Nor is the conduct in question unprofessional conduct because it is conduct in which the respondent engaged in a personal capacity.

136. We note, additionally, that there appears to be a tension between the Board’s submission that the conduct in question was professional misconduct, and its submission that the appropriate protective order is a reprimand. There may be circumstances where a tribunal might quite properly decide not to suspend or cancel the registration of a practitioner who has engaged in professional misconduct within limb (c) of the definition. That might occur where the practitioner has gained insight into the conduct or has otherwise become fit and proper since the time of the conduct. However, the Board did not submit that the respondent had changed in any way, as a basis for the protective order sought. On the contrary, Ms Musgrove submitted that “what’s missing is any expression of 92 remorse and insight into ground 1(c).” If the respondent’s conduct was inconsistent with him being a fit and proper person to hold registration in the

92 Transcript of hearing dated 20 October 2025, page 378, lines 33-34 profession, and he had not gained any insight into that conduct, the appropriate protective order would generally be suspension or cancellation of his registration. D. Particulars — Semen in yoghurt

137. The fourth particular of Ground 1 is that the respondent put his semen in the complainant’s yoghurt without her consent. The Board’s allegation is expressed in the application as follows: During the relationship, the respondent had access to yogurt that [the complainant] would eat for breakfast. Following a period of having access to [the complainant’s] yogurt, the respondent informed [the complainant] that he had been inserting his semen into her yogurt. [The complainant] was not aware and did not consent to the respondent inserting semen into her yogurt without her knowledge.

138. The allegation is not, in terms, that the respondent placed his semen in the complainant’s yoghurt, but rather that he told her that he had done so. Despite the terms in which the allegation is expressed, the hearing was conducted on the basis that the allegation was that respondent actually did place his semen in the complainant’s yoghurt. 93

139. The complainant’s evidence, in her statement to AHPRA on 30 July 2024, is: [The respondent] and I used to make breakfasts, including smoothies and muesli and yogurt concoctions. I believe in mid-2015 he indicated that he had been mixing his semen into the vanilla Jalna yoghurt that was included in my part of those breakfasts without my knowledge for an undisclosed period.

140. The respondent’s evidence was that he had a conversation with the complainant to the effect that she did not like the taste of his semen and they workshopped 94 ways she might be able to desensitise herself to the taste. According to the respondent, they agreed that she would try inserting the respondent’s semen into 95 her morning yoghurt or smoothie. The complainant largely agreed with this at the hearing. She recalled that they had made a plan to desensitise her to the taste

93 Book of documents, page 93 at [20] 94 Respondent’s witness statement filed on 13 June 2025 at [52]-[53] 95 Respondent’s witness statement filed on 13 June 2025 at [53] 96 of the respondent’s semen. She also recalled that he would retain his semen in a jar in the fridge, with the expectation that she would include it in her food, 97 although she says she never did. The complainant agreed that it was unusual, 98 but not unknown, for the respondent to prepare food.

141. When asked about her recollection of the incident, the complainant told the 99 Tribunal: My specific recollection of the smoothie incident is him having commented, after I had consumed it, that it had contained his seminal fluid. I don't recall the preparation. I just remember the shock of that.

142. The respondent spoke to the forensic psychiatrist, Dr Phillips, on 1 July 2024 100 about this allegation. Dr Phillips reported their conversation as follows: In regard to the allegation that he had put ejaculate into her yoghurt, [the respondent] admitted that this was true, however, was adamant that this had been done with [the complainant’s] consent. He stated that she did not like the taste of ejaculate and had agreed to eat his ejaculate mixed with yoghurt as a way of her desensitizing herself to the test. [sic]

143. We are not satisfied, to the Briginshaw standard, that the respondent placed his semen into the complainant’s yoghurt without her consent. The complainant’s acceptance that she and the respondent had made a “plan” to desensitise her to the taste of semen raises the possibility that she had agreed to eat yoghurt with the respondent’s semen in it in conversation with the respondent, even if she did not intend to do so. She did not give evidence that she had verbally objected to the respondent placing a jar of his semen in the fridge for that purpose or that she had removed it from the fridge. There is a reasonable possibility that the respondent placed his semen in the yoghurt, believing that the complainant had agreed to this, and there is also a reasonable possibility that she had in fact verbally agreed to it even if she privately found the idea repulsive.

96 Transcript of hearing dated 19 August 2025, page 112, lines 34–38 97 Transcript of hearing dated 19 August 2025, page 113, lines 4–7 98 Transcript of hearing dated 19 August 2025, page 111, lines 12–14 99 Transcript of hearing dated 19 August 2025, page 165, lines 9-14 100 Book of Documents, page 668

144. In these circumstances, the Board has not established the factual basis for particular (d) to the first ground.

Ground 2 — Whether between 18 August 2015 and 4 September 2015 the respondent prescribed certain medication to the complainant with whom he was in an intimate relationship

145. By Ground 2, the Board alleges that the respondent prescribed Metronidazole and Cephalexin to the complainant, with whom he was in an intimate relationship, on one occasion for each medication.

146. The Board contends that the respondent’s conduct in prescribing Metronidazole and Cephalexin to the complainant was inconsistent with principle 3.14 of the 2014 Code of Conduct (avoiding providing medical care to anyone in a close 101 personal relationship as it may be inappropriate). As the parties have agreed, 102 the 2014 Code of Conduct applied to the respondent at relevant times.

147. Metronidazole and Cephalexin are antibiotics. The respondent gave unchallenged evidence that the prescription of Metronidazole was for symptoms consistent with 103 bacterial vaginosis and that the prescription of Cephalexin was for treatment of 104 a urinary tract infection. We accept that evidence.

148. Principle 3.14 of the 2014 Code of Conduct provided as follows: Whenever possible, avoid providing medical care to anyone with whom you have a close personal relationship. In most cases, providing care to close friends, those you work with and family members is inappropriate because of the lack of objectivity, possible discontinuity of care, and risks to the doctor and patient. In some cases, providing care to those close to you is unavoidable. Whenever this is the case, good medical practice requires recognition and careful management of these issues. 105

149. The parties have agreed, and we find that: (a) On 18 August 2015 the respondent prescribed the complainant with Metronidazole 400mg tablet (21 tablets, no repeat) from the practice. This

101 Application for disciplinary action, filed on 20 January 2025 at [69] 102 Statement of Agreed Facts at [4] 103 Respondent’s statement dated 13 June 2025 at [62] 104 Respondent’s statement dated 13 June 2025 at [69] 105 Statement of Agreed Facts at [10] prescription is documented in the complainant’s clinical records at the practice. (b) On 4 September 2015 the respondent prescribed the complainant Cephalexin (20 tablets 1 repeat) as documented in the complainant’s PBS Patient Summary from 25 June 2014 to 13 February 2016. While this prescription is not documented in the complainant’s clinical records at the practice, the respondent admitted (on 8 September 2020) that he prescribed the complainant Cephalexin.

Characterisation of conduct

150. The Board submitted that the conduct the subject of Ground 2 amounted to 106 unprofessional conduct. The respondent submitted that the conduct in Ground 2 is neither unprofessional conduct nor professional conduct.

151. Dr Jacobs, a general practitioner engaged by the Board, expressed the opinion in his report that the respondent’s conduct in prescribing Metronidazole and Cephalexin to the complainant was below the standard reasonably expected of a 107 practitioner with a similar level of training and experience. Dr Jacobs opined that the respondent’s prescribing had breached clauses 4.15 and 10.5.1 of the 108 “Good Medical Practice Code.” However, as Dr Jacobs accepted during cross-examination, he was referring in his report to the 2020 version of the code 109 which had not come into effect at the relevant time.

152. At the hearing, Dr Jacobs agreed that the central reason for his opinion that the respondent had departed from the standard expected of a medical practitioner in prescribing Metronidazole and Cephalexin to the complainant was the absence of 110 a clinical record of the proper or fulsome clinical record for those prescriptions.

106 Transcript dated 20 October 2025, page 373, lines 4-5 107 Dr Jacobs’ report of 22 January 2024, in Applicant’s Book of Documents at pages 289 (question 23) and 292 (question 33) 108 Dr Jacobs’ report of 22 January 2024, in Applicant’s Book of Documents at pages 289 (question 24) and 292 (question 34) 109 Transcript dated 21 August 2025, page 283, lines 15-21; page 289, line 3 to page 290, line 3 110 Transcript dated 21 August 2025, page 293, lines 9-17 The allegations regarding inadequate record-keeping are the subject of a different ground.

153. As both parties acknowledged, clause 3.14 of the 2014 Code of Conduct does not impose an absolute prohibition upon prescribing to a person with whom the practitioner has a close personal relationship, but indicates that it should be avoided wherever possible.

154. Dr Roche, a general practitioner engaged by the respondent, provided a report in which he stated that prescribing to the complainant did not breach “any of the 111 absolute exclusions” of the 2014 Code of Conduct. He also stated in that report that “[m]any doctors write referrals and repeat prescriptions for family members 112 but insist care continue with the regular provider.” Dr Roche gave evidence at the hearing that prescribing to a partner, was “not best practice” but pointed out 113 that this was “not a written standard in 2015.”

155. It is not in dispute that the conduct was not best practice. The question is whether it was “conduct of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers” and thereby unprofessional conduct.

156. Ms Bindon submitted that the respondent has not breached any relevant section of the 2014 Code of Conduct and both prescriptions were made for temporary conditions, such that there would be limited interruption of any continuity of care, and there is no evidence to suggest that the prescriptions were not clinically indicated.

157. We agree with that submission.

158. A case with some factual similarities to the present is Health Care Complaints Commission v Grech [2021] NSWCATOD 14, where a medical practitioner provided medical care and treatment to his girlfriend over a thirteen-month period. This included consulting with her at his practice and charging Medicare

111 Dr Roche’s report dated 21 July 2024, in Applicant’s Book of Documents at page 697 112 Dr Roche’s report dated 21 July 2024, in Applicant’s Book of Documents at page 698 (question 30) 113 Transcript of hearing dated 21 August 2025, page 217, lines 6-9 for the consultations; prescribing medications including for treatment of his girlfriend’s bipolar and schizoaffective disorders; issuing medical certificates and providing referrals and receiving correspondence after specialist consultations. The practitioner admitted that, by treating his girlfriend, he had compromised her care.

159. The NSW Civil and Administrative Tribunal considered the practitioner’s conduct to demonstrate a lack of judgment, as he had admitted, and to be 114 significantly below the relevant standard. It referred to the patient’s serious mental health condition and addiction issues. It found the conduct to be unsatisfactory professional conduct (which is broadly equivalent to 115 unprofessional conduct).

160. There are some significant distinctions between this case and Grech’s case. These include that the complainant did not have a serious mental health condition or addiction issues, the relevant conduct involved only two instances of prescribing and the prescriptions were for antibiotics, not for stronger drugs.

161. In Health Care Complaints Commission v Ghannoum [2015] NSWCATOD 149, a medical practitioner treated a family member over a period of about 16 months, by prescribing medication on 20 occasions; treated another family member over a period of about 6 months, by prescribing medication on two occasions; treated a third family member over a period 19 months, by prescribing medication on 5 occasions; treated a fourth family member over a period 18 months, by prescribing medication on 8 occasions; and treated a fifth family member over a period of about 14 months, by prescribing medication on 10 occasions.

162. The NSW Civil and Administrative Tribunal found that the practitioner’s “conduct was below the standard reasonably expected of a practitioner of an equivalent level of training and experience” but that it did not come within the definition of “unsatisfactory professional conduct” in the NSW equivalent of the

114 Health Care Complaints Commission v Grech [2021] NSWCATOD 14 at [186] 115 Health Care Complaints Commission v Grech [2021] NSWCATOD 14 at [6] 116 National Law. That prescribing to family members in that case was far more extensive than in the present.

163. Whilst the matter is finely balanced, we have concluded that the respondent’s conduct in prescribing an antibiotic to his partner on two occasions, in circumstances where this was not prohibited by the 2014 Code of Conduct, is not conduct of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers. It might reasonably have been expected, at this time, that a practitioner would occasionally prescribe medications such as antibiotics to family members and close associates.

164. To the extent that Dr Jacobs expressed a different view, we prefer the evidence of Dr Roche. We accept the respondent’s submission that Dr Roche’s evidence should be preferred to that of Dr Jacobs because it was considered, properly 117 reasoned, and it applied the correct code.

Ground 3 — Whether between 18 August 2015 and 4 September 2015 the respondent maintained appropriate clinical records in relation to his treatment and prescribing to the complainant

165. By this ground, the Board alleges that the respondent failed to maintain appropriate clinical records in relation to his treatment and prescribing to the complainant on a number of occasions in a period of two and a half weeks in 2015. 118

166. The parties have agreed, and we find that: (a) On 18 August 2015 the respondent prescribed the complainant with: (a) Metoclopramide 10 mg (100 tablets, two repeats) from the practice, as documented in the complainant’s clinical records at the practice, recording that this prescription was “For nausea”. (b) Metronidazole 400mg tablet (21 tablets, no repeat) from the practice. While the prescription is documented in the complainant’s clinical

116 Health Care Complaints Commission v Ghannoum [2015] NSWCATOD 149 at [93] 117 Transcript of hearing dated 28 August 2025, page 349, lines 13-16 118 Statement of Agreed Facts at [11] records at the practice, there are no clinical notes regarding the prescription. (b) On 31 August 2015, the respondent prescribed the complainant Lyrica, which was a repeat medication of an existing treatment plan from another practitioner, with the other practitioner continuing to monitor progress. The clinical record made by the respondent did not include any clinical notes regarding the prescription. (c) On 4 September 2015, the respondent prescribed the complainant Cephalexin (20 tablets 1 repeat) for a diagnosis of a urinary tract infection (UTI). There is no record of the Cephalexin prescription in the complainant’s clinical records at the practice.

167. We accept the complainant’s evidence that she never attended the practice to see 119 the respondent as a doctor.

168. The Board alleges, in its application for disciplinary action, that the conduct the subject of Ground 3 was inconsistent with principle 8.4 of the 2014 Code of Conduct (maintaining clear and accurate medical records). Principle 8.4 provided: Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves: 8.4.1 Keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners. 8.4.2 Ensuring that your medical records are held securely and are not subject to unauthorised access. 8.4.3 Ensuring that your medical records show respect for your patients and do not include demeaning or derogatory remarks. 8.4.4 Ensuring that the records are sufficient to facilitate continuity of patient care. 8.4.5 Making records at the time of the events, or as soon as possible afterwards. 8.4.6 Recognising patients’ right to access information contained in their medical records and facilitating that access.

119 Complainant’s statement signed on 28 April 2020 at [9] 8.4.7 Promptly facilitating the transfer of health information when requested by the patient.

169. We are comfortably satisfied that the respondent’s conduct in this ground, as he 120 has admitted, is a breach of principle 8.4.

170. Dr Roche considered the breach in relation to Metronidazole, Lyrica and 121 Cephalexin to amount to unprofessional conduct on the lesser end of the scale. Dr Jacobs considered it to be below the expected standard.

171. We accept the parties’ agreed position that the conduct the subject of Ground 3 amounts to unprofessional conduct, being “professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner 122 by the public or the practitioner’s professional peers.”

Ground 4 — Whether on 18 August 2015, the respondent prescribed Metoclopramide 10mg (100 tablets, two repeats) to the complainant, whilst in an intimate relationship, without clinical indication and for the purpose of his own sexual gratification.

172. By Ground 4 of the application for disciplinary action, the Board alleges that, on 18 August 2015, the respondent prescribed the complainant with Metoclopramide 10 mg (100 tablets, two repeats) from the practice; that there were no clinical indications for the respondent to prescribe the complainant Metoclopramide; and that the respondent prescribed the complainant Metoclopramide for the purpose of his own sexual gratification.

173. In her complaint to AHPRA, the complainant alleged that the respondent prescribed her Metoclopramide for the purpose of inducing lactation. 123

174. The parties have agreed, and we find that: (a) During the relationship, the respondent was made aware that the complainant could lactate spontaneously due to a condition called galactorrhea, which they explored in the context of their sexual relationship.

120 Statement of Agreed Facts at [15] 121 Dr Roche’s report dated 21 July 2024, in Applicant’s Book of Documents at pages 692-693 122 National Law, s 5 123 Statement of Agreed Facts at [12] (b) On 18 August 2015, the respondent prescribed the complainant with Metoclopramide 10 mg (100 tablets, two repeats) from the practice. This prescription is documented in the complainant’s clinical records at the practice. (c) The respondent prescribed the Metoclopramide to the complainant whilst they were in an intimate relationship. (d) On 13 June 2019, the respondent advised the applicant that he prescribed a single script of Metoclopramide to the complainant with two repeats.

175. The respondent disputed the Board’s allegation that there were no clinical indications for him to prescribe the complainant Metoclopramide. However, by the conclusion of the hearing, he accepted “that he and the complainant had a mutual understanding that a secondary purpose of the prescription was to assist 124 with lactation, which is something they both wished to explore.”

176. In the respondent’s initial response to the application, he stated that he prescribed the script for Metoclopramide to the complainant at her request, to assist with lactation, for the purposes of the sexual gratification of both parties in the 125 relationship. He accepted, in that response, that his conduct in prescribing Metoclopramide to the complainant as described in Ground 4 amounted to 126 professional misconduct.

177. The respondent withdrew these admissions in an amended response filed on 15 July 2025.

178. The complainant included the following in her statement to AHPRA made on 127 5 August 2019: During our relationship, [the respondent] learned that I could lactate spontaneously. This is just a quirk of nature. I have never had children and have never breastfed. [The respondent] said my ability to lactate was something that he would like to explore sexually. He advised that one of the ways to induce lactation was to use a medication called metoclopramide and I agreed. He gave me a prescription for metoclopramide. I believe that 124 Respondent’s Submissions on Characterisation and Protective Orders, 16 October 2025 at [62] 125 Response to application at [51](a) and [55](b), Book of Documents, page 20 126 Response to application at [76](e), Book of Documents, page 25 127 Book of Documents, page 223 at [10] I was prescribed one tablet per day, though it may have been twice a day. I did feel a bit uncomfortable about it, but I am not very good at listening to myself.

179. In a letter to AHPRA dated 13 June 2019, the respondent’s solicitors accepted that he had inappropriately prescribed Metoclopramide to the complainant to 128 assist with lactation, writing: [The respondent] did prescribe a single script of Metoclopramide to the complainant, on her request, to assist with lactation. The purpose of this script is outlined in detail below. [The respondent] acknowledges that it was not appropriate to prescribe Metoclopramide to the complainant for the purpose of assisting with lactation. [The respondent] is currently pursuing further education and counselling regarding responsible prescription practices.

180. Later in that letter, the respondent’s solicitors explained the circumstances as 129 follows: The complainant investigated options for inducing lactation by medicinal means and [the respondent] acknowledged that Metoclopramide could be used to increase milk production. The complainant subsequently requested that he complete a prescription andpon [sic] this request, [the respondent] prescribed the complainant 10mg Metoclopramide with two repeats for which [the respondent] deeply regrets. This prescription occurred on 18 August 2015 and was the only occasion on which this prescription was provided to the complainant. The prescription field was auto generated such that it read 'nausea' which is an automatic script set up by [the respondent] as part of his general practice.

181. The respondent acknowledged at the hearing that that letter was written on his 130 instructions.

182. The respondent’s solicitors stated, in letters dated 8 September 2020 and 24 June 2021 to AHPRA, that the respondent “repeated” the submissions made 131 on 13 June 2019 in relation to Metoclopramide. On 23 August 2024, the 132 respondent’s solicitors stated, in a letter to AHPRA: There are aspects of [the respondent’s] care of [the complainant] that he admits were inappropriate and that his actions arose from his private

128 Book of Documents, page 240 at [1.6] 129 Book of Documents, page 242 at [6.4]-[6.5] 130 Transcript of hearing dated 21 August 2025, page 236, lines 32-35 131 Book of Documents, page 245 at [11] and page 266 at [2.25] 132 Book of Documents, page 654 at [3.3] relationship with her. In particular, the prescribing of Metoclopramide, which is addressed in [the respondent’s] response dated 13 June 2019.

183. The respondent, through his solicitors, also accepted in that letter that the inappropriate prescribing of Metoclopramide constituted professional 133 misconduct.

184. The respondent had an interview with Dr Roche, a general practitioner, on 134 19 July 2024. Dr Roche reported in a report dated 21 July 2024: During my conversation with [the respondent], he indicated that he had many conversations with the complainant about the pros and cons of using metoclopramide to stimulate galactorrhea – in my opinion this still does not amount to informed consent about the off label use of this medication. The fact that the complainant had been taking 'fenugreek', a natural herb that assists to promote lactation, for many months and had made use of a manual breast pump, supports [the respondent’s] claim.

185. Dr Roche expressed the view that the respondent now had insight into his 135 inappropriate prescribing: I believe that [the respondent] now has a proper understanding of proper prescribing factors to self, family and friends. He admits that he had not fully considered the ramifications of prescribing metoclopramide to a sexual partner for mutual gratification. 136

186. Dr Roche concluded: A significant part of our discussion was on the “decision point” – his cognitive process - where he breached the Code of Conduct where he knew or should have known the ethics of the breach. This was in essence the issue of the prescription of metoclopramide. I was concerned that his risk-taking behaviour in regard to his sexual expression could be associated with risk taking behaviour in regard to prescribing (eg inappropriate prescribing of an off label usage of a medication). I have concluded after significant discussion that this should not be the case. It is my considered opinion that [the respondent] is very unlikely to engage in improper prescribing practices in the future.

133 Book of Documents, page 656 at [5.1] 134 Book of Documents, page 690 135 Book of Documents, page 700 136 Book of Documents, page 702

187. The respondent accepted, at the hearing, that when he spoke to Dr Roche he was 137 of the belief that he wrote the prescription for sexual purposes.

188. The report of a forensic psychiatrist, Dr Jane Phillips, dated 19 August 2024, records that the respondent told her that he had prescribed Metoclopramide to the 138 complainant “for ‘non-therapeutic’ reasons” and “to ‘promote lactation’”. According to the report, the respondent told her that that his behaviour “creeps 139 140 into fetish”. Dr Phillips’ report records: He stated that [the complainant] started taking a herb fenugreek for milk production. He stated that she took this “for ages” and that they both became “a bit frustrated because we both wanted more…I was enjoying….she was enjoying...I would suckle her morning and night”. [The respondent] stated that they went together to a pharmacist and they purchased a breast pump. He reported that he had prescribed metoclopramide. He was unsure if he had prescribed the first script for side-effects to metronidazole, but admitted that at least 1 of the scripts had been for a “non-therapeutic” indication. He acknowledged that this was a “boundary violation…. clearly not anything to do with medical treatment”.

189. The respondent accepted that he had told Dr Phillips “[t]he truth as [he] 141 understood it at that time.” He also accepted that what she reported is what he 142 told her and that it demonstrated his incorrect memory of the number of scripts.

190. The respondent’s evidence, in his witness statement dated 13 June 2025, departed from the accounts he had given previously. He stated that he had prescribed the 143 complainant with Metoclopramide primarily to treat nausea. He wrote: In preparing for this proceeding, I have cause to believe that the script I prepared, was primarily for managing any nausea which may have been associated with the side effects for my prescription of Metronidazole. Metoclopramide is a drug which is commonly used to treat nausea. Considering this, I had previously established an automatic prompt in 'Best Practice' to describe the symptom being treated as 'for nausea' whenever a script for Metoclopramide is generated. However, I believe we collectively

137 Transcript of hearing dated 21 August 2025, page 242, lines 20-25 138 Book of Documents, page 667 at [2] 139 Book of Documents, page 667 at [2] 140 Book of Documents, page 667 at [2] 141 Transcript of hearing dated 21 August 2025, page 239, line 8 142 Transcript of hearing dated 21 August 2025, page 240, lines 14-15 143 Respondent’s witness statement dated 13 June 2025 at [75] understood that Metoclopramide could also be used for the purposes of inducing lactation.

191. The respondent maintained this position at the hearing, stating that the prescription “was for the primary purpose of managing side effects of nausea 144 from metronidazole.” He described the version of events he put in his witness 145 statement as “a correction.”

192. The complainant gave evidence at the hearing that she and the respondent had experimented, early in their relationship, with inducing lactation through the use 146 of fenugreek. She said that later, on one occasion, the respondent prescribed 147 Metoclopramide for managing the side effects of nausea. She did not recall 148 how many prescriptions of Metoclopramide the respondent gave her. In 149 re-examination, the complainant said that the respondent: was aware that we had discussed attempting to induce lactation using fenugreek. When that was not successful, he spoke of his awareness of a side effect of the drug metoclopramide, and that side effect was that it induced lactation. He expressed that it was something that he was aware that it would be professionally complicated, problematic, for him to engage in, and part of that discussion was that he would need to be able to trust me if that was an activity that would be engaged - if I were to be shared the metoclopramide and we would use it for that purpose.

193. The respondent’s evidence was that he recalled speaking to the complainant about prescribing Metoclopramide, but could not remember whether they had discussed 150 the ethics of it.

194. We are comfortably satisfied that one of the purposes for which the respondent prescribed Metoclopramide to the complainant was his own sexual gratification. The respondent has repeatedly admitted that that was the case. We find that he told Dr Roche that he had spoken to the complainant about the pros and cons of using metoclopramide to stimulate galactorrhea, as Dr Roche reported. He had plainly considered the use of it to induce lactation, and discussed this with the

144 Transcript of hearing dated 21 August 2025, page 242, lines 30-31 145 Transcript of hearing dated 21 August 2025, page 243, line 11 146 Transcript of hearing dated 18 August 2025, page 63, lines 9-36 147 Transcript of hearing dated 18 August 2025, page 69, lines 5-7 148 Transcript of hearing dated 18 August 2025, page 69, lines 21-24 149 Transcript of hearing dated 19 August 2025, page 165, lines 22-30 150 Transcript of hearing dated 21 August 2025, page 241, lines 22-24 complainant, before prescribing it. We find that the idea of using the medicine to induce lactation was initially that of the respondent. We accept the complainant’s evidence that the respondent “advised that one of the ways to induce lactation was to use a medication called metoclopramide and [she] agreed.” The prescription followed the sexual exploration, by both the complainant and the respondent, of the complainant’s ability to lactate.

195. We are not satisfied, to the requisite standard, that there were no clinical indications for the respondent to prescribe the complainant Metoclopramide, as alleged in the application. It is possible that the respondent prescribed Metoclopramide for managing the side effects of nausea, as the complainant stated at the hearing. That is also the respondent’s evidence. He may have prescribed Metoclopramide to manage the side effects of nausea from Metronidazole, whilst also prescribing it for his own sexual gratification and that of the complainant.

196. The Board has established that one of the purposes for which the respondent prescribed Metoclopramide was his own sexual gratification, but the Board has not established that there were no clinical indications for the prescription.

Characterisation of conduct

197. The parties agree that the conduct the subject of Ground 4 constitutes unprofessional conduct. 151

198. In the Statement of Agreed Facts, the parties agreed that the respondent’s conduct in Ground 4 was inconsistent with: (a) 2014 Code of Conduct principle 1.4 (being ethical and trustworthy, displaying qualities such as integrity, truthfulness, dependability and compassion);

(b) 2014 Code of Conduct principle 3.14 (avoiding providing medical care to anyone in a close personal relationship as it may be inappropriate); and

151 Statement of Agreed Facts at [16] (c) 2014 Code of Conduct principle 8.11 (conflict of interest).

199. The respondent has submitted that “the reference to Section 1.4 should be understood as the qualities and characteristics of good doctors insofar as they are required under the standard expressed in Section 8.1 (where Section 1.4 is 152 expressly cross-referenced).”

200. Principle 1.4 of the 2014 Code of Conduct provided as follows: While individual doctors have their own personal beliefs and values, there are certain professional values on which all doctors are expected to base their practice. Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy. Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on their doctors to protect their confidentiality. Doctors have a responsibility to protect and promote the health of individuals and the community. Good medical practice is patient-centred. It involves doctors understanding that each patient is unique, and working in partnership with their patients, adapting what they do to address the needs and reasonable expectations of each patient. This includes cultural awareness: being aware of their own culture and beliefs and respectful of the beliefs and cultures of others, recognising that these cultural differences may impact on the doctor– patient relationship and on the delivery of health services. Good communication underpins every aspect of good medical practice. Professionalism embodies all the qualities described here, and includes self-awareness and self-reflection. Doctors are expected to reflect regularly on whether they are practising effectively, on what is happening in their relationships with patients and colleagues, and on their own health and wellbeing. They have a duty to keep their skills and knowledge up to date, refine and develop their clinical judgement as they gain experience, and contribute to their profession.

201. Principle 1.1 did not establish a professional standard, but provided some general, introductory comments to the 2014 Code of Conduct. Reference is made in this context to a doctor’s “duty to make the care of patients their first concern” and to “be ethical and trustworthy.” Prescribing to a sexual partner in circumstances

152 Respondent’s Submissions on Characterisation and Protective Orders, 16 October 2025 at [59] where the respondent anticipated he would gain sexual gratification from the prescription was not ethical. There was a potential conflict between the respondent’s self-interest and his duty to his patient and he should have refused to treat her having regard to that potential conflict. The respondent’s conduct was inconsistent with the general expectations set out in Principle 1.1.

202. Principle 3.14 of the 2014 Code of Conduct is set out above.

203. We find that the respondent’s conduct was inconsistent with the advice contained in principle 3.14 of the 2014 Code of Conduct. As indicated above, that principle does not provide an absolute prohibition on treating persons with whom a doctor has a close personal relationship. However, it suggests that, while there may be cases where “providing care to those close to you is unavoidable,” “good medical practice requires recognition and careful management of” issues concerned with treating such persons. It has not been suggested by the respondent that providing care to the complainant was “unavoidable” for him. In the circumstances, where the respondent could benefit personally from prescribing Metoclopramide, and was motivated to do so for his own sexual gratification, he lacked the necessary objectivity to treat the complainant. “Good medical practice” required him to recognise this issue and refrain from treating the complainant, in these circumstances.

204. Principle 8.11 of the 2014 Code of Conduct provided as follows: Patients rely on the independence and trustworthiness of doctors for any advice or treatment offered. A conflict of interest in medical practice arises when a doctor, entrusted with acting in the interests of a patient, also has financial, professional or personal interests, or relationships with third parties, which may affect their care of the patient. Multiple interests are common. They require identification, careful consideration, appropriate disclosure and accountability. When these interests compromise, or might reasonably be perceived by an independent observer to compromise, the doctor’s primary duty to the patient, doctors must recognise and resolve this conflict in the best interests of the patient. Good medical practice involves: 8.11.1 Recognising potential conflicts of interest that may arise in relation to initiating or continuing a professional relationship with a patient. 8.11.2 Acting in your patients’ best interests when making referrals and when providing or arranging treatment or care. 8.11.3 Informing patients when you have an interest that could affect, or could be perceived to affect, patient care. 8.11.4 Recognising that pharmaceutical and other medical marketing influences doctors, and being aware of ways in which your practice may be being influenced. 8.11.5 Recognising potential conflicts of interest in relation to medical devices and appropriately managing any conflict that arises in your practice. 8.11.6 Not asking for or accepting any inducement, gift or hospitality of more than trivial value, from companies that sell or market drugs or appliances or provide services that may affect, or be seen to affect, the way you prescribe for, treat or refer patients. 8.11.7 Not asking for or accepting fees for meeting sales representatives. 8.11.8 Not offering inducements or entering into arrangements that could be perceived to provide inducements. 8.11.9 Not allowing any financial or commercial interest in a hospital, other healthcare organisation, or company providing healthcare services or products to adversely affect the way in which you treat patients. When you or your immediate family have such an interest and that interest could be perceived to influence the care you provide, you must inform your patient.

205. The respondent’s conduct was inconsistent with principle 8.11. Whilst he may have recognised that he had a conflict of interest when prescribing Metoclopramide to the complainant, he prescribed Metoclopramide in spite of recognising the conflict. To use the language of the 2014 Code of Conduct, he failed to “resolve this conflict in the best interests of the patient.”

206. We are comfortably satisfied, for these reasons, that the conduct the subject of Ground 4 was “of a lesser standard than that which might reasonably be expected 153 of the [respondent] by the public or the [respondent’s] professional peers” and that it thereby constituted unprofessional conduct.

Ground 5 — Administration of Temazepam to the complainant without her consent and/or knowledge to enable sexual compliance

207. The Board alleges, by Ground 5, that the respondent administered Temazepam to the complainant without her consent and/or without her knowledge, to enable sexual compliance.

153 National Law, s 5

208. In her initial complaint to AHPRA on 21 February 2019, the complainant alleged that the respondent “on one occasion dosed me without my knowledge with Temazepam (telling me about it after the fact) for the purpose of making me 154 sexually compliant/available.”

209. Ground 5 is particularised as follows in the application: During the relationship, the respondent talked about chemical bondage with [the complainant] and informed [the complainant] that he was interested in preventing someone from giving their consent to sexual acts. At no time during the relationship did [the complainant] consent to being subject to chemical bondage. Further, during the relationship, [the complainant] did not consent to being administered Temazepam by the respondent. During the relationship, the respondent administered [the complainant] with Temazepam for the purpose of making [the complainant] sexually compliant or available. The respondent told [the complainant] he had done this the following morning. The respondent informed [the complainant] that if she thought about it, she would be able to work out how he had administered it. [The complainant] had been drinking wine the night before and believed that was the reason she had felt woozy the next day. At the time of telling [the complainant] that he had administered the Temazepam, the respondent also told her that it did not have the effect he had expected; [the complainant] did not believe the respondent to be joking about this. On 13 June 2019, the respondent advised the applicant that in or around 2007, he was prescribed Temazepam tablets which he had in his home during the relationship. The respondent also advised that as part of their sexual fantasy he advised [the complainant] that she had been 'taken advantage of'.

210. The complainant gave the following account of the respondent’s conduct in her 155 statement to AHPRA made on 5 August 2019: During our relationship, [the respondent] drugged me with temazepam. I did not agree to this occurring and I did not know he had done it at the time, but [the respondent] let me know after the fact that he had done that. [The respondent] said that if I thought about it, I would be able to work out how he had given me the temazepam. We had been drinking wine that night and I assumed that the wine had more of an effect on me than usual. If [the respondent] had not told me that he had drugged me after the fact, I do not think I would have known he had given me temazepam. I felt woozy the next day, but attributed that to the affects [sic] of wine.

154 Book of Documents, page 112 155 Book of Documents, page 224 at [18]-[20] I do not think [the respondent] would have been joking when he told me he had given me temazepam and then taken advantage of me. From his character, that is not something he jokes about. [The respondent’s] sense of humour is relatively dry. Based on that, I would say he was not joking, and I remember [the respondent] reflecting on the fact that it didn't have the effect he had expected. For these reasons, I do not believe that he was being humorous, rather reflectively concerned about the efficacy of his experiment.

211. In a letter to AHPRA dated 13 June 2019, the respondent’s solicitors denied this 156 allegation in the following terms: [The respondent] recalls he had a sheet of Temazepam tablets in his home during their relationship, which was prescribed in or around 2007 during military duties to help him sleep. [The respondent] rejects the allegation that he administered a dose of Temazepam to the complainant as alleged in Allegation 1, or at all. [The respondent] has never administered a drug of this nature, nor of any nature, to the complainant, without her knowledge or consent.

212. The respondent’s solicitors gave the following response in that letter to the allegation that the respondent told the complainant he had given her Temazepam 157 and taken advantage of her: On one occasion [the respondent] acknowledges suggesting to the complainant that he had fulfilled her fantasy of 'being taken advantage of'. [The respondent] stresses this was part of fantasy play only, that he did not administer temazepam or any other drugs to the complainant, and that based upon the context of their relationship, he reasonably believed that the complainant understood that the activity had not in fact, taken place. From [the respondent’s] perspective, there was a common understanding that neither the complainant, nor [the respondent], actually wanted such an activity to take place. At the time at which this occurred, the complainant did not raise any concerns with [the respondent] regarding the matter, and until receiving the complaint, he has been unaware that the complainant held the belief that their activities went beyond the verbal exploration of her sexual fantasy.

213. On 1 July 2024, the respondent spoke to forensic psychiatrist Dr Jane Phillips about the Temazepam allegation. She reports that he said the following about the 158 claim that he had given the complainant Temazepam without her consent:

156 Book of Documents, page 586 at [4.2], [4.3] 157 Book of Documents, page 587 at [4.5]-[4.6] 158 Book of Documents, page 667 at [3] [The respondent] was adamant that this had not occurred. He admitted that they had talked a lot about fantasies and “one of her fantasies was being chemically restrained”, which he explained to mean that [the complainant] had a fantasy to be given medication so she could not resist sexual activity. They would discuss this fantasy intermittently and “we played on that sexual excitement”. He recalled that one morning she was asleep in bed. He stated “I was dumb enough to play on it”. He stated that he took out a temazepam that she knew was in the cupboard and cut it into quarters and then crushed up 1/4 of a temazepam tablet and sprinkled it into an empty wine glass. He stated that when [the complainant] woke up, he told her that he had given her temazepam and showed her the wine glass with the sprinkled, crushed tablet. He was unable to recall if he had told her that he had performed sexual acts on her whilst she was affected by the temazepam or not. [The respondent] stated that at the time he did not think she believed he had given her the medication.

214. The respondent had not previously communicated to AHPRA his account of crushing a Temazepam tablet and putting it into the complainant’s empty wine glass.

215. The respondent’s evidence in his witness statement was that he and the 159 complainant engaged in fantasy talk throughout their relationship. He said they sometimes talked about chemical bondage. In his statement, he said: “At no stage was chemical bondage a fantasy of mine, however it was a subject that I engaged 160 in fantasy discussions about because I knew that it aroused [the complainant].” The respondent denied administering Temazepam to the complainant, but 161 admitted to saying that he had done so as part of their fantasy play: As part of this fantasy play scenario, one morning I took a tablet of Temazepam and broke it in half, then half again, before crushing 25% of the tablet and sprinkling it onto the top of the remains of the red wine residue in her glass from the evening before. This left a fine white powder on top of the red wine residue. I considered that it would be obvious to [the complainant] that this is not how a tablet would actually absorb into a liquid, particularly over the course of an entire night. When [the complainant] awoke, I showed [the complainant] the remaining 75% of the tablet, sitting in the Temazepam packet strip, and the powder sprinkled on top of the wine remnants. I did so to create the impression that I had given her the ¼ tablet the evening before.

159 Respondent’s witness statement filed on 13 June 2025 at [93] 160 Respondent’s witness statement filed on 13 June 2025 at [94] 161 Respondent’s witness statement filed on 13 June 2025 at [97]-[101] However, I did not give the ¼ of the tablet to her - I merely created the fantasy belief that I had, which was common to the roles we undertook in our DS relationship and in the fantasy play we engaged in. At no time did I ever administer [the complainant] with any drug without her knowledge or consent, including Temazepam, nor did I act out any of the fantasy discussions we engaged in concerning chemical bondage in any other capacity. In fact, I never administered any drug to [the complainant] even with her consent; this was not something that interested us and it did not form part of our sexual activity. 162

216. The respondent gave oral evidence consistent with this at the hearing.

217. At the hearing, the complainant agreed that discussion of chemical bondage had 163 formed part of her fantasy play with the respondent. However, her evidence was that chemical bondage was his fantasy, not hers. She said that the respondent saying that he had given her Temazepam and taken advantage of her was 164 inconsistent with the way that fantasy play unfolded between them.

218. The complainant’s evidence at the hearing was that she did not recall the 165 respondent crushing a quarter of a tablet into a glass. She did not remember the respondent doing anything or attempting to do anything to her the evening before 166 he said he had given her Temazepam. She did not recall any physical sign of 167 him having done anything to her. The complainant said she did not know 168 whether sexual activity did or did not happen. She explained that she had not 169 said anything about this to the respondent after the incident due to shock.

219. The evidence establishes that it is possible that the respondent gave the complainant Temazepam without her knowledge or consent. The circumstance that he did not tell AHPRA that he had put a quarter of a tablet in a wine glass when given an opportunity to respond to the allegation, and that the complainant does not recall him doing so, raises the possibility that he invented this story in

162 Transcript of hearing dated 21 August 2025, page 249, line 29 to page 250, line 34 163 Transcript of hearing dated 18 August 2025, page 79, lines 31-34 164 Transcript of hearing dated 19 August 2025, page 104, lines 31-36 165 Transcript of hearing dated 18 August 2025, page 82, lines 5-18 166 Transcript of hearing dated 18 August 2025, page 83, lines 11-14 167 Transcript of hearing dated 18 August 2025, page 83, lines 16-19 168 Transcript of hearing dated 18 August 2025, page 83, lines 34-35 169 Transcript of hearing dated 19 August 2025, page 106, lines 19-21 2024 around the time he communicated it to Dr Phillips. The complainant’s firm evidence that she did not have a fantasy about chemical bondage also supports the conclusion that the respondent gave her Temazepam, and pretended later that he only said he did this for the purposes of giving her the pleasure of engaging in that fantasy. Another aspect of the evidence supporting this conclusion is the complainant’s recollection that he told her the Temazepam did not have the effect he expected. That appears to be an unusual thing to say if the respondent was engaging in a fantasy. There is also the complainant’s evidence that what he said was inconsistent with the way fantasy play took place between them.

220. We accept Ms Musgrove’s submissions that the complainant’s account is 170 “plausible.”

221. There are, however, aspects of the evidence which tend against the conclusion that the respondent gave the complainant the drug.

222. There is no physical evidence that the complainant was in fact given Temazepam (such as a blood test). The complainant said she felt “woozy the next day, but attributed it to the effects of the wine” she had drunk the night before. As the complainant acknowledged at the time, the wine she drank the night before is a possible explanation for her “woozy” feeling and there may have been another cause. The complainant has no recollection of the Temazepam being administered to her.

223. The respondent’s evidence is that he thought the complainant had a sexual fantasy about chemical bondage and, even if he is wrong about that, it is possible that he held that mistaken belief. That belief would have some basis in that the complainant had sexual fantasies about other forms of bondage. There was also a potential inconsistency, as Ms Bindon submitted, or at least an unresolved tension, in the complainant’s account of the respondent saying he had administered Temazepam to the complainant and taken advantage of her but also telling her it did not have the effect he expected. That raises the possibility that the complainant has not accurately recalled what the respondent said to her. Finally, Temazepam is an unusual drug to choose if the respondent wished to

170 Transcript of hearing dated 28 August 2025, page 321, line 45 render the complainant unconscious, because generally a large quantity of the 171 drug would be required to achieve that effect.

224. The Board has not established, to the Briginshaw standard, that the respondent gave the complainant Temazepam. He denies that he did so. The complainant reports only that he said he did. It is her opinion that he would not have been joking, or engaging in play, when he told her that he gave her Temazepam. However, whilst accepting that the complainant’s opinion is genuinely held, that is not enough for us to be comfortably satisfied that the respondent in fact gave the complainant Temazepam.

225. For these reasons, Ground 5 is dismissed.

Appropriate protective orders

226. We have found that the respondent engaged in unprofessional conduct in respect of Ground 3 (clinical record keeping) and Ground 4 (prescribing for own sexual gratification). The Board has not established that the conduct the subject of any of the other grounds constitutes professional misconduct or unprofessional conduct.

227. As indicated above, the Board seeks a reprimand in respect of the respondent’s unprofessional conduct and the respondent submits that a caution would be more appropriate. Both parties seek a “global” approach to protective order determinations, rather than asking the Tribunal to impose separate protective orders in respect of each ground. We consider that to be appropriate.

228. When determining appropriate protective orders, it is important to bear in mind the main guiding principle of the national registration and accreditation scheme, being that protection of the public and public confidence in the safety of services 172 provided by registered health practitioners and students are paramount. Consistently with this principle, the purpose of the proceedings, and of

171 Transcript of hearing dated 21 August 2025, page 280, lines 27-42 172 National Law, s 3A(1); see also s 4 determinations made under section 196 of the National Law, is to protect the 173 public.

229. The conduct in Ground 3 comprised conduct inconsistent with the respondent’s record-keeping obligations as set out in clause 8.4 of the 2014 Code of Conduct. It occurred on three dates, in respect of four prescriptions.

230. We accept Dr Roche’s opinion that the conduct in relation to the prescribing of the medication, other than the prescription for Metoclopramide, was conduct at the lower end of the scale of unprofessional conduct.

231. The prescribing of Metoclopramide was also the subject of Ground 4. We found the respondent to have prescribed the medication to the complainant whilst in an intimate relationship, for the purpose of his own sexual gratification. That conduct is more serious than the conduct the subject of Ground 3, because there was a potential conflict between the respondent’s own interests and those of the complainant when he prescribed the medication and he should have declined to treat her in those circumstances.

232. The respondent has stated, in his supplementary statement, that the AHPRA investigation and the tribunal proceedings have given him cause to reflect a great deal on his actions which led to the complaint underpinning Grounds 2 to 4, in particular the importance of maintaining personal and professional boundaries, including in prescribing. He stated that he now had a greater degree of insight 174 into the significance of maintaining those boundaries.

233. We accept this evidence, which was not challenged.

234. We also accept the respondent’s unchallenged evidence that he has undergone a training course in which he learned about ethical decision-making, responsible 175 prescription and treatment of friends and family; and that he also gained insight 176 through discussing that training course with Dr Roche.

173 Osteopathy Board of Australia v Caminiti (Occupational Discipline) [2025] ACAT 37 at [82] 174 Respondent’s Supplementary Statement filed on 7 October 2025 at [6] 175 Respondent’s Supplementary Statement filed on 7 October 2025 at [7] 176 Respondent’s Supplementary Statement filed on 7 October 2025 at [9]

235. In light of the insight the respondent has gained and his constructive reflection on his conduct over a number of years, we are satisfied that he poses little risk of repeating the conduct the subject of Grounds 3 and 4. 177

236. A reprimand is more serious than a caution. A reprimand must be recorded in 178 the National Register, but there is no similar requirement in respect of a caution.

237. We consider that a reprimand is necessary to protect the public, and to maintain public confidence in the safety of services provided by registered health practitioners, in circumstances where the respondent’s conduct involved a breach of his ethical obligations. Protection of the public may be achieved through general deterrence of other practitioners from similar conduct, as well as through 179 specific deterrence. A caution would be insufficient to achieve those objectives.

Costs

238. The Board did not seek an order for costs, submitting that it was appropriate for each party to bear the party’s own costs. The respondent submitted that the tribunal should make no order as to costs.

239. In view of the parties’ joint position, we have made an order that each party is to bear the party’s own costs, which we consider to be appropriate in the circumstances.

……………………………….. Presidential Member J Lucy For and on behalf of the Tribunal

Date of hearing: 18, 19, 21 and 28 August 2025 and 20 October 2025 Counsel for the Applicant: K Musgrove Solicitors for the Applicant: Australian Government Solicitor

177 Chatoor v Health Care Complaints Commission of NSW [2020] NSWCA 111 at [60] 178 National Law, s 225(j) 179 Medical Board of Australia v Singh [2017] WASAT 33 at [30] Counsel for the Respondent: P Bindon Solicitors for the Respondent: Minter Ellison Lawyers