Nursing and Midwifery Board of Australia v Singh - [2014] VCAT 1171 - VCAT 2014 case summary — Zoe

VICVCAT

Nursing and Midwifery Board of Australia v Singh

[2014] VCAT 1171

Victorian Civil and Administrative Tribunal|2014-09-16

View original source

At a glance

Source facts

Court

Victorian Civil and Administrative Tribunal

Decision date

2014-09-16

Source

Original judgment source is linked above.

Judgment (280 paragraphs)

[1]

The applicant (the Board) brings three sets of allegations against the respondent, Mr Harpreet Singh, a psychiatric nurse. The allegations relate to complaints by three psychiatric patients at Maroondah Hospital in the months of August 2010, September 2010 and January 2011 respectively. They are brought under the Health Practitioner National Law (Victoria) Act 2009 (the Act). The allegations are of inappropriate behaviour, including physical contact of a sexual nature. In relation to each of the three complainants, it is alleged Mr Singh's conduct constitutes professional misconduct and/or unprofessional conduct.
There are 11 allegations, made up of 40 separate particularised acts allegedly engaged in by Mr Singh. He denies they occurred. Most of the incidents are alleged to have occurred in the patients' bedrooms. There is no direct evidence from any third person, except in relation to the main allegation by Complainant 3, where a nurse gave evidence that she saw Mr Singh exit the patient's bedroom, but Mr Singh denied having been in the bedroom at all.
In a number of instances, the same or similar acts were alleged by more than one complainant. In these circumstances, a significant issue is the extent to which, when considering the allegations by any one of the complainants, evidence of one or both of the other two complainants of similar allegations is able properly to be taken into account, by way of what is now referred to in the uniform evidence law as tendency and/or coincidence evidence.
Given the vulnerability of the patients involved, and the sensitivity of the allegations, the orders referred to above have been made restricting access to documentation and prohibiting publication of evidence given. In addition, all references to patients in this decision are in anonymous terms.

[2]

[39]

Complainant 1 was admitted to IPU2 on 20 August 2010 and was discharged on 26 August 2010. She was 25 years old. This was her first admission as a psychiatric inpatient. She was a voluntary patient. The primary reason for her admission was severe post-natal depression following the birth of her baby daughter six months before. Her differential diagnosis was suicidal ideation. She said her admission was precipitated by a 'complete breakdown, crying uncontrollably'. Her sister had to stop her punching the wall, and called an ambulance. She also had a history of poly-substance abuse and was a victim of sexual abuse. She also possibly had bipolar affective disorder and possibly borderline personality disorder traits.[1]
However, after admission, her condition stabilised to the extent that she was granted day leave away from the Unit on 21 and 22 August.
Complainant 1's evidence was that over the course of her admission, she felt increasingly uncomfortable with Mr Singh. She said that she received a hug from him 'on admission' and on a number of other occasions after that. Initially, these hugs were short 'friend' type hugs - a quick cuddle. Complainant 1 said that at first she felt Mr Singh was just being a supportive nurse. However, these hugs progressed to being longer and more invasive - more like an embrace a partner would give.[2] Complainant 1 said that when she was in the ward, she felt Mr Singh was watching her in a way that was different to the way other nurses did, and made her feel uneasy.[3] She felt increasingly reluctant to use the toilet or shower which was in her bedroom. She recalled this caused her difficulty because she had her period at that time. Her evidence was to the effect that as her stay went on, she became more and more concerned about his invasion of her personal space, and his physical approaches towards her.
Complainant 1 said that the first time she was aware of Mr Singh's behaviour was on approximately the second day of her stay, when her sister had brought her (Complainant 1's) baby in for a visit. She complained that Mr Singh had carried the baby around the ward, and she was not comfortable about this.
Complainant 1's evidence was that she felt quite uneasy that Mr Singh would try to take her off to the bedroom for 'one of his talks'. She said that after the first incident (allegation 1.2- leading her to her bedroom, sitting close to her on the bed to 'have a talk' and putting his arm around her shoulder) she felt very uncomfortable and stated she needed to go outside and have a cigarette, as a pretext to get out of the room.
In relation to the second incident (allegation 1.3) she said that the following morning:

[47]

Complainant 1 said that after the second incident she confided in a fellow female patient (who she named) about what Mr Singh was doing. Complainant 1 said this patient reassured her she was not making it up, and had every right to feel uncomfortable. The patient agreed to be close by to Complainant 1 if she saw Mr Singh taking Complainant 1 off 'for a talk'. Complainant 1 said this patient waited outside the interview room at the time when the third incident (allegation 1.4) was alleged to have taken place. The patient Complainant 1 confided in was not called to give evidence.
Complainant 1 was discharged via 'early discharge management' to be supported by CATT (the Outer East Crisis Assessment Treatment Team) at home. She left IPU2 at approximately 6.30 pm on 26 August 2010.[9] It had been arranged that the following day she would be admitted to the Mother and Baby Unit at the Austin Hospital. Complainant 1 said she believed he had deliberately slowed her discharge process. He denied that.
On 26 August 2010, prior to her departure, Complainant 1 spoke to the Senior Clinical Nurse, Kate Lumsden. Ms Lumsden recorded that Complainant 1 said Mr Singh had hugged her 'on admission'. On reflection Complainant 1 thought this was inappropriate. She also felt that Mr Singh was attempting to see her in private, in her bedroom. She did not at this stage wish to lodge a formal complaint. This was noted in a Progress Notes entry by Kate Lumsden on 26 August 2010.[10]
In the car on the way home after being discharged on 26 August 2010, Complainant 1 also voiced her concern that Mr Singh had inappropriately touched her on a number of occasions. Complainant 1 said her sister had made a complaint to the hospital, but, in effect, if she wished to pursue this, Complainant 1 herself would need to make a formal complaint. So in late 2010 Complainant 1 started writing a complaint. She wrote a two and a half page handwritten draft complaint.[11] She said she found this very upsetting, however, and in the context of her ongoing post-natal depression did not have the strength to complete her complaint at that stage. She said the draft, which was produced to the Tribunal, was a really rough draft. In it, she was not trying to put events in order.
In January 2012 she was contacted by Mr Jamie Halliday of the Australian Health Practitioners Regulation Agency (AHPRA) regarding her stay at IPU2. She then prepared a detailed six page typewritten statement.[12] So the first comprehensive record by Complainant 1 of the events comprising her complaint was made 17 months after those events.

[50]

Complainant 2 was one of the five patients Mr Singh was rostered on to care for on the pm shift on 16 September.[19]
The Progress Note by a female nurse made at the end of the am shift on 16 September 2010 stated she was observed to have elevated mood (9 out of 10) pressured speech and was 'overly warm on engagement for first interaction' with that female nurse.[20]
Mr Singh said that afternoon, he and Complainant 2 had a conversation about her weight and her thyroxine levels. This started in the TV lounge, but he asked her to go to the interview room for a more in depth and private one on one discussion. She told him she had been taking extra thyroxine and he said he counselled her about more appropriate weight loss methods. Although Complainant 2 said she could not recall this conversation, we are satisfied it occurred, as a note was made of it by Mr Singh.
Complainant 2 required an ECG, and it was in the context of this procedure carried out by Mr Singh, that Complaint 2's first complaint arose. The ECG was done sometime after 5.00 pm. During this procedure, conducted in Complainant 2's bedroom, she stated that Mr Singh made the comments about shaving her legs, her bra, her tattoo and her tongue ring, including that he was thinking of getting his girlfriend or someone, to get one (allegation 2.2). Mr Singh denied these (and all the other) allegations made against him.
Mr Singh made a 5.00 pm Progress Note entry about the thyroxine conversation, the ECG and recorded her vital signs. Another 5.00 pm Progress Note entry by the Registrar reduced the frequency of observations required to be made of Complainant 2 by nursing staff from 30 minutely to hourly.
Later that day, (at approximately 6.00 pm according to Complainant 2) Mr Singh took Complainant 2's blood pressure in the treatment room at IPU2. This was the occasion when Complainant 2 complained that Mr Singh asked her to poke out her tongue, placed his hands on her waist, kissed her on the lips ('for a few minutes') and put his tongue inside her mouth, kissed her on the neck, put her hand inside his pants to touch his penis and asked for her phone number and put it in his IPhone (allegation 2.3).
In her statement of 23 September 2010, Complainant 2 said that after the other incidents alleged in 2.3 of the particulars:

[53]

At approximately 7.00 pm or 7.30 pm, it is alleged Mr Singh entered Complainant 2's room on two separate occasions and attempted to kiss her on the lips and touch her breasts (allegation 2.4). This was while she was on the telephone.
Mr Singh spoke to two nursing colleagues in the nurses station, Ashlee Mead and Alana Schikert, and subsequently to another nursing colleague, Ebin Mark, after taking Complainant 2's blood pressure the treatment room. He told them she had been overly familiar with him. Ms Mead reviewed his description of Complainant 2's conduct in a Progress Note marked 8.30 pm.
Nevertheless, Mr Singh still said he carried out the medication round later that evening, which involved him going into Complainant 2's bedroom alone.[23]
The incident in the bathroom attached to Complainant 2's room was alleged to have occurred between approximately 8.00 pm and 10.00 pm that evening (allegation 2.5). This allegedly involved Mr Singh kissing Complainant 2 on the lips, stomach, bra, cleavage, and neck, pulling his pants down and forcing her face down to kiss his penis.
The following morning, Friday 17 September 2010, Mr Singh was on duty on the morning shift (7.00 am - 3.30 pm).[24] Mr Singh was not allocated to care for Complainant 2 on that day.[25] The incident in the TV area (allegation 2.6 - requesting her to go to her room with him) was alleged to have occurred at approximately 7.00 am. Allegation 2.7 (waking Complainant 2 by feeling her breasts in her bedroom) is alleged to have occurred at approximately midday or shortly after that.
Complainant 2 said she thought she got up after her midday sleep at 2.00 pm and rang her friend 'because something had happened with Rimpy and I needed her to support me for when I told staff'. She said her friend knew who she was talking about as her friend had been a patient on the Unit before.[26] At about 4.00 pm, Complainant 2's friend arrived and was present with her when she spoke to Kimberly Clapp, one of the nurses on the Unit. Ms Clapp immediately escalated the matter, by involving the Senior Clinical Nurse on duty, Kate Lumsden. She told Complainant 2 to put her complaint about Mr Singh into writing. Her note is just over a page of handwritten text. (Although written on Friday 17 September, this was signed and made available to the police on Saturday 18 September 2010.) It mentions the incidents comprising allegations 2.3 (in the treatment room) and 2.4 and 2.5 (in her bedroom). It also mentions the two alleged incidents the following day.
Ms Lumsden also subsequently prepared a report to AHPRA in about July 2012.[27]
Each of these three reports (two by Lumsden and one by Complainant 2) only mentioned the allegations in brief form. The most detailed report is that in Complainant 2's statement to police (given the following Thursday 23 September 2010).[28]
Complainant 2 said that after speaking to Ms Lumsden, and both her mother and father separately by telephone, she decided she did want to report these matters to police. However, as staff were not sure whether her psychiatrist needed to be present or not, the matter was deferred until the next day.
The following day was Saturday 18 September 2010. At about 6.30 or 7.00 pm, Complainant 2 reported the matter by telephone to Ringwood Police (in the company of her mother). First, two uniformed officers attended at the Unit for about 10 minutes. After that, two female officers in plain clothes from the SOCAU (Sexual Offences and Child Abuse Unit) attended, again for about 10 minutes or so. Both these visits were during the evening of 18 September 2010.
On Tuesday 21 September 2010, a letter was sent by John Daly, the Manager of IPU2, to Mr Singh briefly detailing the allegations made by Complainant 1 and Complainant 2 and requiring that he attend a meeting at 10.30 am the following Thursday 23 September 2010.[29] He was in effect put on paid suspension from work.
On Thursday 23 September 2010, Complainant 2 was discharged. She went straight to the police station to make her detailed statement. She said it took six hours for the statement to be completed.
That same day, Thursday 23 September 2010, there was a meeting at Maroondah Hospital attended by Mr Singh, Mahinda Jerominus (Senior Nurse), John Daly and Ashlee Camm (from Maroondah Hospital HR). The note of this meeting states that Mr Singh 'became distressed and said he was 'surprised' when he read the allegations ...'[30] (presumably in the letter from Eastern Health of 21 September 2010). Mr Singh denied the allegation of the incident in the treatment room and Complainant 2's bedroom on 16 September 2010. In relation to contact with Complainant 2 the following day, he said this was limited to a two or three minute banal conversation initiated by him which occurred in the TV/lounge area, at around 10.30 - 11.00 am.[31]
At this interview the allegations made by Complainant 1 were also put to him. Mr Singh denied these.
On 27 September 2010, Mr Singh was interviewed by the police. This related only to the allegations by Complainant 2. A visual and audio recording of that interview was taken, and the DVD of it was provided to the Tribunal. A 35 page transcript of the interview was produced between the parties and provided to the Tribunal.
On Tuesday 28 September 2010, a meeting was conducted at IPU2 attended by Complainant 2, her mother, Kerry Barton (Case Manager, Chandler House), Kate Lumsden SCN (Senior Clinical Nurse and interviewer), Dr Jose Segal (Consultant Psychiatrist) and John Daly (Manager IPU2). There is a single page note of this meeting. Complainant 2 briefly reiterated the allegations, but in much less detail than in her police statement. She was reluctant to give a detailed account, stating the hospital could get a copy of her police statement.
On 4 October 2010 John Daly sent Mr Singh a letter stating that Eastern Health had concluded its investigations (in relation to Complaints 1 and 2) and made the following findings:
- You failed to demonstrate sufficient professional and clinical judgement during a series of events where a mentally ill client demonstrated behaviour that necessitated appropriate action(s) to be taken.
- You failed to take the necessary steps and actions to record, document and notify your Manager during the course of the events which would have ensured a more transparent outcome for the client, yourself and Eastern Health.

[57]

Rimpy approached me and asked if I was okay and if I wanted to chat. He pinched my cheeks and tried to get me to smile. He also tried to hold my hand.
I think he started the conversation by asking to see my tattoo. I don't now recall the exact order of what happened.
I assume that he knew I had a tattoo because I had been wearing a purple tank top that day and the tattoo could be seen. I remember because it was my mother's top.
I said to Rimpy that I did not want to chat, I just wanted to be left alone. I was upset and I didn't feel like talking. I didn't think anything of what had happened. I thought it was his job to see if I was ok because he saw I was crying.
I recall that the same morning another patient, [two female patients were named] told me to 'stay away from him'. I didn't think anything of it at the time though, because the hospital is meant to be a safe place. This patient also talked a lot so what she said went 'in one ear and out the other'.
Rimpy walked away and I went to my bedroom and shut the door to be left alone.
I am pretty confident that I locked my bedroom door but I am not certain about this. It was only lockable from the inside without a key. I recall that it was pretty quiet on the ward that day, and there weren't many nurses. I was on my bed.
I'd only been in my room for a minute or so. As I was on my bed, I took off my black Adidas jumper with a gold print on it - because I was hot, and I was wearing a tank top underneath. Rimpy walked into my room without knocking as I was taking my jumper off. I understand nurses usually have keys to our rooms. Usually nurses also knock and wait before they come in. He just came in.
I recall Rimpy said something like 'don't take off all your clothes, I'll get into trouble' or 'I don't want to lose my job'.
I don't remember now whether I said anything in response to Rimpy when he said this.
I think Rimpy closed the door. I am not absolutely sure about this because from where I was lying on the bed you cannot see the door. It was hidden by the bathroom.
He would have known where my room was because there are signs, a whiteboard, next to the room with my name on it.
I cannot recall whether Rimpy came in once or twice but I remember the following things happened.
He started off standing near my bed but then he sat down on my bed.
He showed me his tattoo. I remember it was on his arm, it was round, and it was near his shoulder.
I don't recall if he kissed me first on the lips or if he told me where he lived first and then asked if I wanted to see him on the outside. He bent over to where I was lying and kissed me on the lips and on the neck. He also grasped around my breast area and hugged me very closely, touching me, while I was in bed. I felt very uncomfortable.
He told me he lived in Oakleigh, I did not tell him where I lived. I lied and said lived in Ringwood. He said he would miss me when I leave.
He also grabbed my hand and during the conversation he would occasionally squeeze it. I remember pulling my hand away, and I recall I said something like 'you are not allowed to do that'. I don't like anyone touching me and I don't usually let people touch me, not even my sister or my Dad.
I was worried but I didn't know what to do. I could not reach the buzzer from where I was. Anyway, it didn't occur to me to press it. I was just waiting for it to be over so I could talk to Dad.
At first he seemed relaxed as if it was the normal thing to do but after he grabbed my hand he looked nervous ─ he was looking over his shoulder when he was sitting down but the door was shut.
He also called me a 'naughty girl'. I think this was towards the end, after he had shown me his tattoo.
I can't recall if when I was on my bed I was lying under the blankets.
At most I think he was in my room for about 10 minutes.
He left in a hurry.
As soon as Rimpy left, I text messaged Dad straight away from my room to come back and that I was scared.

[62]

At approximately 1.00 pm on that day, Ms Sahaya Ramya Michael-Xavier was the Acting Associate Nurse Unit Manager for the morning shift. She said she heard a commotion being caused by a patient whose bedroom was opposite Complainant 3's. As she approached that patient's room, she saw Mr Singh coming out of Complainant 3's room opposite. She did not think anything of it at the time.
Ms Michael-Xavier also made a three page handwritten note of what she was told by Complainant 3, and a 4.00 pm entry in Complainant 3's Progress Notes.[38]
On 24 January 2011, there was a meeting at approximately 10.40 am between Ms Michael-Xavier and John Daly and one other staff member about the allegations by Complainant 3.[39] Following this, a letter dated 24 January 2011 was sent from John Daly to Mr Singh, notifying him of the allegations (although the events comprising allegations 2.3 and 3.3 were differently configured in this letter). He was again put on paid suspension from work.
On 31 January 2011 a meeting was held between Mr Singh, John Daly, another member of the nursing staff and Ms Meg Lovell of HACSU.[40] Mr Singh denied the allegations. He stated he had spoken to Complainant 3 when she had emerged from her bedroom in response to the commotion being caused by the patient in the bedroom opposite hers, who he was attending to. Other than that, his only contact with Complainant 3 had been when he gave her her medication on the morning of 22 January 2011, in the lounge room. In each case a short conversation took place. Mr Singh denied the allegations of inappropriate conduct.
Further meetings and investigations took place over the period 31 January - 8 February 2011.[41]
On 23 March 2011 Ms Christoff Roussos, Executive Director Human Resources and Communications, Eastern Health, sent a letter to Mr Singh advising that the allegations made by Complainant 3 were found not to be substantiated, and that his suspension had been lifted.[42]
In September 2013 Complainant 3 made her first comprehensive statement about the incidents of 22 January 2011 (31 months later).

[64]

Each of these patients made a complaint shortly after the alleged incidents in each case. Mr Singh's employer, Eastern Health, conducted investigations. It found that the first two complaints had not been substantiated, but that Mr Singh's professional judgment had been inadequate, and he did not properly record, document and notify his manager about relevant events. On 4 October 2010, following the first two complaints, he was given a 'final warning'.[43] The third complaint was about events in January 2011. Mr Singh was advised on 23 March 2011 that it was not substantiated.[44]
By letter dated 29 March 2011 Eastern Health notified AHPRA of two of the allegations made against Mr Singh, and of the actions it had taken in response. This was a non-mandatory notification under s 144 of the Act. Eastern Health said that while the requirements for mandatory notification were not met, it was felt 'patterns' in the alleged conduct made a non-mandatory notification appropriate.[45] A police investigation into the allegations by Complainant 2 was ongoing.[46]
AHPRA notified Mr Singh of the notification from Eastern Health on 8 April 2011.[47] By email of 13 April 2011, Mr Singh replied, expressing dismay that the matter could be reinvestigated.[48] On 5 May 2011 the Board decided to investigate Mr Singh's conduct. On 11 May 2011 AHPRA informed Mr Singh of that decision. Mr Singh was apparently notified around 12 August 2011 that the police would not be laying charges.[49] By letter dated 15 August 2011[50] AHPRA notified Mr Singh of the issues which would be the subject of the investigation (relating to the three complainants). On 12 September 2011 Mr Singh provided a six page response to the nine issues AHPRA had identified.[51] He denied the allegations.
The Tribunal was not made aware of any further action being taken by AHPRA prior to December 2011, when Mr Singh went back to India (where he had been born and raised) for six months. In June and July 2012, a representative of HASCU (the Health and Community Services Union) chased up AHPRA on Mr Singh's behalf, asking as to the progress of the investigation. On or about 8 August 2012 the AHPRA's investigator provided a report to the Board. On 20 September 2012 the Board decided to refer this matter to VCAT.
However, it was not until 15 January 2013 that AHPRA notified Mr Singh of this decision (through his union representative). On 14 February 2013 the union representative sent an email to AHPRA voicing its concern that while the union had been notified, Mr Singh had not. Additionally, it expressed strong concerns as to the delay in progressing the matter and what it described as an apparent lack of any process or accountability in relation to decisions being made about the investigation.
It was not until 18 September 2013 that the Board's application was lodged with VCAT.

[65]

On 11 November 2013, the matter was set down for a five day hearing in February 2014. On 29 January 2014 orders were made by the Tribunal requiring the production of various patient documents from three health service providers. Access to these was restricted in accordance with the orders referred to above. A Tribunal Book was provided by the applicant on 11 February 2014. Following a contested directions hearing on the eve of the hearing itself, further documents were ordered to be produced, at the request of the respondent.
At the commencement of the hearing on 17 February 2014, an application was made for the three allegations to be heard separately before different VCAT panels. (This had been foreshadowed to the Tribunal, as a possibility, at the directions hearing the previous Friday, 14 February 2014.) This application was made by Ms Riddell on behalf of Mr Singh, on the basis that the law applicable to the receipt of tendency and coincidence evidence in the criminal sphere should be applied here. There were in effect two aspects to the application. First, it was argued that the evidence applicable to the allegations made by each of the three complainants be completely compartmentalised by the Tribunal in dealing with the applications. Second, it was argued that the Tribunal should indeed go further and order three separate hearings by separate VCAT panels of the allegations made by each of the three complainants. This was because otherwise, the respondent's case would be prejudiced to an unacceptable extent.
Following argument about these issues on the first hearing day, the presiding member made a ruling at the beginning of the second day. This was to the effect that the principles (based on provision of fairness to a defendant) underlying the evidentiary provisions relating to tendency and coincidence evidence (set out in s 97, 98 and 101 of the Evidence Act 2008) may have some application to the Tribunal's consideration of the evidence in this case. However, under s 98 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) the Tribunal is not bound by those provisions.[52] There is a distinction between proceedings conducted in the courts, especially criminal proceedings, to which they apply, and disciplinary proceedings conducted in this Tribunal. Further, the Tribunal was capable of 'compartmentalising' the evidence if it determined that it should do so as part of its consideration of the evidence in this case. The presiding member ruled that the matter would proceed with all three sets of allegations continuing to be heard by this panel.[53]
The Tribunal then heard evidence from the following witnesses during days 2 - 5 of the hearing:
- Mr Paul Leyden - Director of the Mental Health Program at Eastern Health;
- Mr Jamie Halliday - Senior Investigating Officer AHPRA;
- Complainant 2;
- Ms Kimberley Clapp - Nurse;
- Ms Kate Lumsden - Senior Clinical Nurse;
- Complainant 3;
- Complainant 3's father;
- Ms Sahaya Ramya Michael-Xavier - Acting Associate Nurse Unit Manager.
The five days originally set aside for the hearing were insufficient. The second block of hearing days was 26-28 March 2014 and 3 April. The following witnesses gave evidence during days 6-9 of the hearing:
- Complainant 1;
- Mr Singh;
- Mr Brett Bridges - psychiatric nurse (expert called by the respondent).
During cross-examination of the Board's witnesses, and Mr Leyden and Mr Halliday in particular, Ms Riddell, for Mr Singh, asked questions about various potential avenues of enquiry which might have been pursued in the investigations by either Eastern Health or AHPRA, and about persons (not listed to give evidence) who might be able to provide relevant information.
In response, the applicant produced a number of statements, in various forms, to the respondent's legal representatives. Of these documents, three were provided to the Tribunal on 21 February 2014. In its Reply submissions, the applicant conceded that with hindsight, earlier disclosure of these statements would have been prudent. These were by the three nurses who Mr Singh stated he had spoken to after he said Complainant 2 had behaved in a way which was overly familiar towards him (on 16 September 2010). They were Ashlee Mead, Alana Schickert and Ebin Mark.

[67]

Mr Singh is 30 years old. He was born in India in 1984. He attended school and university in the Punjab up to 2004.
In 2005-6 he came to Australia and completed a Diploma in Health and Nursing at Holmesglen TAFE. He qualified as a Division 2 Nurse. In 2007-8, he completed a Bachelor of Nursing at Deakin University to qualify as a Division 1 Nurse. During this time, and since, he gained experience working part-time or as a casual at the Monash Medical Centre.
Mr Singh described finding it difficult to handle the transition from living in a relatively comfortable and supportive environment in India, to living in a new country, and having to adapt to different ways and language, cooking and looking after himself generally, living in a shared household with other Indian friends, and having to travel and work very long hours in multiple jobs to pay for his studies. He was homesick, and considered returning home, but he didn't, because he was determined to pursue his goal of becoming a mental health nurse.
From February 2009, he worked for Eastern Health at Maroondah and Box Hill Hospitals in the Psychiatric Units. From February 2010 he worked at IPU2 at Maroondah Hospital in a permanent full-time role. The alleged incidents the subject of this case occurred in August and September 2010, and January 2011.
He further pursued his interests in psychiatric nursing, obtaining a Post Graduate Diploma in Mental Health Science from Latrobe University in February 2011.
Between February and August 2011 he completed a career development program in emergency medicine at Box Hill Hospital. He then worked casually at Southern Health and Melbourne Clinic until December 2011.
Next, he returned to India for six months. He got married during that time.
Since June 2012 he has worked in a permanent position at the Melbourne Clinic. In June 2013 he was promoted to the position of Associate Nurse Manager in the Intensive Care Unit of Melbourne Clinic (a locked unit for the most vulnerable patients). In this role he had responsibility for two - three staff members as well as a patient load of six - eight patients per shift.
Following the commencement of these proceedings at VCAT in September 2013, limitations were placed on Mr Singh's practice under an Immediate Action Committee process. Mr Singh now works in an intake triage role at the Melbourne Clinic. We understand this work is mainly done by telephone. He is not permitted to undertake agency work. He submits a weekly log to AHPRA of all the contacts he has with female patients.
While it was apparent English is not Mr Singh's first language, and on occasion he used language which was not literally correct, or was slightly idiosyncratic, the Tribunal felt it was always able to understand his meaning.

[73]

Mr Leyden is the Program Director of the Mental Health Program at Eastern Health. He provided a witness statement dated 11 November 2013. This described, and attached documents, relating to IPU2, employment of Mr Singh, the admission of the three Complainants to the Unit, and Eastern Health's investigations into the three complaints. Mr Leyden had little if any direct personal involvement in these matters.
Mr Leyden also provided a supplementary witness statement dated 17 February 2013. This provided information relevant to the submission made on behalf of Mr Singh on the first day of the hearing to the effect that there may have been collaboration between one or more of the Complainants and other patients or staff at IPU2, such as would undermine their evidence. Ms Riddell (for Mr Singh) had drawn attention to the fact that:
- patients with the same name appeared on patient allocation sheets[59] on 23-24 August 2010, and on 20-21 January 2011, and
- similarly, on 17 September 2010 and 20-21 January 2011, patients with the same name appeared on patient allocation sheets.
Mr Leyden confirmed that in each case the patient was a different person. That is, the inpatient allocation sheets referred to above relate to four different individual patients (albeit that each of them had a first name in common with another patient admitted at a different time). Mr Leyden had ascertained this from a detailed search of the records of Eastern Health. The result is that these particular coincidences as to names could not constitute any basis for concluding that the evidence of any of the complainants might be regarded as contaminated.
During cross-examination, Mr Leyden was asked whether various persons referred to in the evidence, but from whom witness statements were not obtained, had been followed up. It was suggested by Ms Riddell that these people may have been able to provide circumstantial evidence in relation to the question whether alleged conduct occurred or not. These included persons such as the patient Complainant 1 said she confided in, Complaint 1's sister, Complainant 2's parents, Complainant 2's friend and housemate to whom she first made her complaint and the trainee nurse Mr Singh said had been with him on 15 September 2010. Mr Leyden was not able to answer those questions.
As stated above, in response to these suggestions by the respondent, the applicant produced statements by Ms Mead, Ms Schickert and Mr Mark. None of these three persons were called to give oral evidence, however.

[82]

The applicant objected to Mr Bridges' report being received. It submitted that its contents were so general as not to be of any use to the Tribunal, that the matters at 4.2.3 were beyond his expertise, and that he had expressed views as to the ultimate issue, which is a matter for the Tribunal to determine, not him.
The Tribunal ruled that Mr Bridges' written and oral evidence would be received, and that it was for the Tribunal to determine what weight would be given to it.
Having reviewed the report, and his evidence, the Tribunal finds that it was not much assisted by either.
Mr Bridges commenced working as a psychiatric nurse in 1995. He worked full time in psychiatric nursing roles until 2004. Since then, he has worked as a senior clinician for Spectrum (the Statewide Personality Disorders Service for Victoria). In that role, and in his work as a consultant since 2010, he has pursued a particular interest in bipolar disorder. He specialises in providing assistance with patients suffering bipolar disorder where management is particularly difficult. His work involves building the capacity of clinicians to deal with such challenges.
Mr Bridges' report contained generic statements about the types of patients in psychiatric wards, and the types of conditions they suffer from. He said that psychiatric wards such as IPU2 are only available to admit public patients considered mentally ill and experiencing high acuity in their mental illness and/or are at risk of harm to themselves or others. Such patients are highly vulnerable.
As a result, psychiatric wards are stressful places. Further, the majority of the staff are generally quite junior.
Mr Bridges referred to challenges faced by psychiatric staff in terms of patients being very distressed and having unrealistic expectations of what staff can do. Patients experiencing elevated mood, for example, may demand care which goes beyond what professional ethics and interpersonal limits of the nurse allow.
Mr Bridges referred to the possibility of patients making allegations against staff or other patients, as one of a number of behaviours which might be manifested. These include patients being violent, aggressive, intimidating, demanding, sexually and physically assaultive, taking risks, refusing treatment or attempting to interfere with the treatment of other patients.
In terms of the potential for patients to make allegations against nurses, Mr Bridges made generalised references to transference and medication. He said patients with certain conditions tendered to have a higher predisposition to make allegations against staff. In this context he mentioned bipolar affective disorder, borderline personality disorder and psychotic disorders.
Mr Bridges' evidence on these matters was given at such a high level of generality as not to be of much assistance to the Tribunal. Most of the matters in his report the Tribunal members are aware of from their own general experience.
Mr Bridges is not, of course, a psychiatrist, nor does his CV indicate that he is a Nurse Practitioner. His relevant experience is that of a psychiatric nurse since 1995, albeit for the last ten years, his work has been primarily in the nature of consultancy type roles.
In any event, Mr Bridges' evidence did not descend to any analysis of the particular circumstances of the three complainants, and whether or not they might have made false reports in this case, whether due to their condition, or the medication they were on. The effect of Mr Bridges' evidence was that in his experience as a psychiatric nurse, on some occasions, patients do make allegations against other patients and staff. He did not say 'false' allegations. But we assume that is what he meant.
In the final paragraph of his report, Mr Bridges turned from the general statements referred to above, to the expression of a opinion specifically about Mr Singh. The final paragraph of his report is as follows:

[125]

Similarly to the present case, Purnell and Zaidi were decisions in the health disciplinary context where there was no question as to identity. The question was whether the acts complained of were done or not. In the Tribunal's view, the general approach described in Purnell and Zaidi is the appropriate one to adopt in this case.
However, every case is different. In the present case, where multiple acts are alleged against a psychiatric nurse in an acute mental health ward, by three different patients, of varying levels of seriousness, over a period of five months, particular attention needs to be given to the extent of the similarities and differences between the various acts alleged. The present case is not a simple one of a single, similar, act being reported by three different patients as was the case in Zaidi. Rather, there is a range of acts alleged by the three complainants, with different acts being alleged by different combinations of those three complainants.
In the Tribunal's view, in considering the evidence in this case, in which serious allegations are made against a nurse, it should have regard to the principles underlying the rules relating the tendency and coincidence evidence, even though it is not required to apply those rules. In particular, the Tribunal is conscious of the strong prejudicial effect, when considering whether the respondent is guilty of a particular disciplinary charge, of evidence by other complainants about other alleged acts. We proceed on the basis that there must be a high level of probative value in such evidence, before it should be taken into account in determining whether the respondent is guilty of the first allegation.
Also, the Tribunal is mindful of the statement in CGL v Director of Public Prosecutions[81] that the greater the degree of specificity with which similarities can be identified, the more likely it will be that evidence will be probative of a tendency to do acts of a distinctive kind. Conscious of the prejudicial effect on Mr Singh's case of categorising similar conduct too broadly, we have not relied on evidence of acts such as kissing on the lips, for example, as constituting probative evidence in relation to allegations of touching the breasts or of kissing on the neck, or of hugging. This is consistent with the approach taken in the civil (sexual harassment) case of Robinson v Goodman[82].
Here, no prior formal notice (equivalent to that required under s 97(1)(a) and s 98(1)(a) of the Evidence Act) was given by the applicant to the respondent. This is not of course a requirement in the Tribunal. In any event it was sufficiently clear what similarities were relied upon. The aspects of the evidence which the applicant submitted should be regarded as cross-admissible were discussed during the legal argument on the first hearing day. They were also listed in the Applicant's Preliminary List of Topics of Evidence in Support of Tendency and Coincidence Evidence, provided in the form of a table, on the final hearing day in accordance with the direction of the Tribunal. The respondent countered with a 'Table of Dissimilarities' in similar format, but with the acts more specifically defined - resulting in fewer similarities. The Tribunal's view as to what categories of conduct should stand as cross-applicable evidence is reflected in the following section of the decision.

[130]

In this instance, however, there is not the issue of seeking to distinguish Mr Singh from any other possible perpetrator, many years ago, as there was in PNJ. The question is whether the acts occurred or not. So we do not agree that this passage (assuming it applies to the present disciplinary proceedings) has the effect which the respondent contends.[85]
In the context of this case, the alleged physical acts referred to above are not 'commonplace': they can properly be described as 'remarkable', 'unusual', 'improbable' or 'peculiar'.[86] They are all similar opportunistic sexualised acts independently alleged against a male nurse on young female patients in a hospital mental health ward. They are alleged to have occurred over a relatively short period.
In GBF v The Queen,[87] the Court of Appeal found that in the circumstances of that case, to touch the breasts of a female co-worker (at a hotel) was 'remarkable and unusual behaviour'. Consequently, the Court said, if the fact in issue was whether an accused touched a complainant co-worker on her breast at the place of work, then evidence that the accused had a tendency to do that would be significantly probative.
The Court contrasted the action of a man touching a woman's breasts without consent in a social setting outside work, which struck it as significantly less unusual, and very much less remarkable.
The Court also went on to say that a tendency could arise on the basis of only two incidents of its manifestation.
Applying similar reasoning here, it is in the Tribunal's view remarkable and unusual behaviour for a nurse to engage in kissing mental health patients on the lips and neck, hugging them (closely or intensely) or deliberately touching them on the breasts. It is more remarkable and unusual than it would be to do these things to a co-worker, because of the particular relationship between a male mental health nurse and young female patients, especially the power imbalance between them. In the Tribunal's view, the evidence of each of the complainants about these matters is significantly probative of the allegations of such conduct made by the others (as applicable) and substantially outweighs its prejudicial value. Nor does the fact that those acts were only alleged by two of the three complainants alter this conclusion. The fact that even only one other patient made a similar complaint in those instances puts things in a completely different light, in our view.
There are also other aspects of the evidence given by the complainants as to things allegedly done and said by Mr Singh[88] which are highly distinctive, such that it is improbable that another complainant would give such similar evidence if the act alleged had not actually occurred. This is the evidence of statements to two complainants about tongue rings and contacting them outside the Unit, and evidence relating to touching two complainants on the mouth while they were speaking on the phone.

[136]

A key factor which will undermine tendency and coincidence evidence is corroboration between witnesses (whether deliberate or through 'innocent infection'[90]). Under the criminal law, there must be some proper basis for concluding that contamination has occurred, beyond 'speculative suggestion'.[91]
We are satisfied from the evidence given by each of the three complainants, that they did not know the other two, and were not aware of them having made a complaint about Mr Singh.
It was submitted on behalf of the respondent, however, that contamination of the evidence could have occurred in a number of ways. Leading up to, and during the hearing, the respondent's legal representatives pursued evidence about various potential avenues for contamination. They sought and obtained orders for the production of medical records and staff rosters from various health service providers, additional to those provided by the applicant in the Tribunal Book. Additional information was provided in running, from Mr Leyden. The respondent had ample opportunity to investigate potential avenues for contamination of the evidence.
Complainant 1's admission was from 20 to 26 August 2010. Complainant 1 said she confided in a particular patient (who she named). It was suggested or inferred that this patient could have spoken to other patients, and so gossip or rumours could have circulated amongst the patients about Mr Singh, which might have come to the ears of Complainant 2 during her admission (14 - 23 September 2010) or Complainant 3 during her admissions (28 - 31 August 2010 and 20 - 25 January 2011).
Complainant 2 described in her police statement that she asked her friend and housemate to come in to support her when she reported Mr Singh's conduct to staff on 17 September 2010. Her friend was a patient of the Unit before and after that date. It was not made clear whether or not the friend's subsequent admission was prior to Complainant 3's admission in January 2011, however.
Complainant 2 was asked whether she had spoken to other patients about the allegations. She said she had told a friend, who had been a patient. But that was in about June 2011, well after last of the complaints had been made to staff, in January 2011.
Complainant 3 told Eastern Health that Mr Singh had not been there the last time she was in the Unit (ie 28 - 31 August 2010). Nor had she heard other patients talk about him then. She saw him for the first time during her January 2011 admission.[92]
In the notes made by Eastern Health of Complainant 3's interview on 24 January 2011, she is recorded as saying that on the morning of 22 January 2011 'some of the other female patients' had told her to stay away from Mr Singh. When questioned who had said that, she replied that it was a particular patient, whom she named.[93] In oral evidence, she said she could not recall whether there were any other patients present at the time.
In her oral evidence, Complainant 3 said that the female patient who told her to stay away from Mr Singh did not go into any detail about why. [94] Complainant 3 had said in her witness statement of August 2013, however, that particular patient 'talked a lot so what she said went "in one ear and out the other" '.[95]
The supplementary evidence of Mr Leyden (obtained in response to the issue of possible contamination being raised at the beginning of the hearing) confirmed that the patient whom Complainant 1 had confided in, and the patients on various earlier nurse allocation rosters with the same first names as those mentioned by Complainant 3, were all different people.
Thus, the highest that the respondent is able to put the contamination argument on the evidence, is the inference that the patients and perhaps also the staff, may have passed on rumours about Mr Singh, whether by way of gossip or otherwise. There was no evidence of any specific pathway by which information would have reached any of the Complainants about the complaints made by the others.
Clearly, there was some discussion in the Unit about Mr Singh's conduct:
- Complainant 1 confided in another patient whom she named.
- Complainant 2 confided in her housemate, who was a patient before and after September 2010.
- After Complainant 2 made her complaint on 17 September 2010 uniformed and then plain clothes police attended at IPU2 on 18 September, an investigation was conducted by Eastern Health during which a number of staff were interviewed about the allegations, and Mr Singh was stood down for two weeks.
- Complainant 3 said she was warned to stay away from Mr Singh by another patient on 22 January 2011.
In relation to the staff, Ms Clapp accepted the proposition that following the report by Complainant 2, there was gossip amongst the staff about Mr Singh. It is hardly surprising that this would be talked about amongst staff, in view of the fact that a number of staff were interviewed in relation to allegations of a sexual nature, the police had attended, and Mr Singh was then off work for two weeks. We note however that Ms Clapp said that she was not aware of the allegations made in August by Complainant 1 at the time Complaint 2's allegations were made (on 17 September 2010). Nor was she aware of gossip between patients.
Staff would be aware that to give any information to patients about such a sensitive issue would be highly undesirable. In the absence of specific evidence, we do not make the assumption that staff would have been so unprofessional as to breach their obligations of confidentiality in that way. There was no such evidence.
There was no suggestion that Complainants 1 and 2 were aware of such rumours before they made their complaints. In any event, and in particular in relation to Complainant 3, we do not regard the presence of such rumours as being particularly strong evidence in support of the conclusion that the complainants would fabricate their complaints against Mr Singh (whether consciously or unconsciously). It would be one thing to hear rumours. It would be quite another to make up detailed allegations, then to report them, and to support them with detailed witness statements and oral evidence.
Accordingly, we find contamination is not an issue in this case: The three complainants had no communication with each other, nor any knowledge of a complaint being made by another patient. There is no basis at all on which it could be concluded that the evidence of Complainant 1was infected by discussion with other patients. In relation to Complainant 2, that suggestion is no more than speculation. While Complainant 3 did receive a warning from another patient to stay away from Mr Singh, we think it would be too much of a leap to suggest this led her to fabricate her complaint, consciously or otherwise.

[139]

We observed Mr Singh's demeanour while giving evidence over two days in VCAT. We also observed his demeanour during the police interview on 27 September 2010, 11 days after the alleged incidents. We watched the video recording of this interview during the hearing, and subsequently. His demeanour did not suggest guilt in relation to the allegations made against him.
Mr Singh co-operated with the investigation at all stages. As indicated, he agreed to be interviewed, and voluntarily provided statements (apparently without having obtained legal representation) on four separate occasions, prior to the VCAT hearing. During his police interview, when asked about the allegation he took Complainant 2's phone number, he appeared to be very co-operative in handing them his phone, and offering to assist them to check information on it.
However, our acceptance of evidence of Ms Michael-Xavier over Mr Singh's directly contradictory evidence has adverse implications for his credit.
Three written references were provided in support of Mr Singh. These, together with evidence given in cross examination by nurses Lumsden and Clapp, were put as evidence of good character. It was submitted that this could be used to support Mr Singh's credibility, and also to raise a presumption that he is unlikely to have committed the acts alleged.[97]
Although the cases referred to by the respondent are in the criminal jurisdiction, we accept such evidence can be used in that way. However, this evidence only goes so far, when placed alongside the actual evidence about the allegations against Mr Singh in this case.
The respondent pointed to the evidence of Ms Lumsden, who agreed with the propositions that she had never seen Mr Singh hug a patient, and that he was quite a polite, reserved type of person.[98] Ms Clapp agreed with the proposition that she had never had any cause for concern about Mr Singh's behaviour.[99]
The first written reference was from the Director of Nursing at The Melbourne Clinic, Mr Singh's employer now, and for the last two years. It merely states that she has had no concerns about his professional practice. The other two references are by friends of Mr Singh's. They are both family friends of Mr Singh, and also involved in health care. One has known him since school days in India, and lived in the same house with him from 2006 to 2013. They describe him as honest, hard working and community minded.

[145]

Also, Complainant 1 was granted day leave on 21 and 22 August 2010, and appears to have spent some hours away from the ward on those days.[106]
Complainant 1's written statement (dated 11 January 2012) was incorrect as far as dates are concerned. There could not have been a hug 'on admission'. And the shorter, less intense, hugs she said she received from Mr Singh during the first part of her admission could not have occurred any earlier than the afternoon of 23 August (the third full day of her admission). Further, the alleged incident with the baby could not have occurred any earlier than the third full day of her stay. The Progress Notes are consistent with Complainant 1's baby having been brought in on 23 August 2010.[107]
If we accept the account of Complainant 1, it appears that all the incidents the subject of the charges could only have taken place in the last two days of her six day stay (not counting the evening she was admitted). And all, or most, of the less invasive hugs must have occurred on that one day (23 August). We have considered the possibility that some of them also occurred on 24 August, when Mr Singh was rostered onto HDU. However, Complainant 1's witness statement said there was 'a day in between that Rimpy was not working and therefor I got some peace'.
As Complainant 1 made it clear, however, she was not able to be precise as to the dates on which events occurred. This is not surprising, as she was giving her evidence three and a half years after her admission, and having only first sought properly to document her version of events 17 months after her admission.
The difficulty with Complainant 1's evidence in relation to allegations 1.2 and 1.3, however, is that it is logically inconsistent. This goes beyond merely forgetting what days particular events occurred on. The effect of her evidence was that the second incident (1.3) could only have occurred on the final day of her admission, 26 August 2010 (being the same day as the events alleged in 1.4). Yet she said in her evidence that the second incident occurred on a different day to the discharge interview. She said in cross-examination that she thought the second incident was before the day when he was not on duty (24 August 2010) but that she might have been mistaken.[108] She also said that the second incident occurred on the same day as when he entered her room in the morning, and she seemed to agree that was several days before discharge. Yet the only relevant time Mr Singh was on the am shift was her last day, 26 August.
These statements are impossible to reconcile.
We accept that Complainant 1 gave her evidence sincerely. Nevertheless, these inconsistencies have the result that it would not be safe to find the allegations in 1.3 proved.
Similarly, in relation to the first allegation (1.2) the sequencing is such that we do not have a clear understanding of when they might logically have occurred, in the context of the other evidence she gave, and the other known circumstances.
It would be wrong for the Tribunal to recreate a scenario which fits the narrative of her story into the other evidence.
We find allegations 1.2 and 1.3 not proved.

[151]

This allegation is not affected by the lack of clarity in relation to dates, or as to the sequence in which events occurred, as Complainant 1 was clear in her evidence that Mr Singh did these things during her exit interview, on the last day of her admission.
Considering Complainant 1's evidence as a whole, we are quite satisfied she was genuinely mistaken about the dates on which she said events occurred, and the temporal relationship between them. At all stages, she responded to questions by saying she could not recall dates, but the events she described definitely occurred.
Complainant 1 presented as an open, honest and mature witness. She was articulate, and made concessions where appropriate. She was in the witness box for the best part of a day, and was subject to questioning which would have been quite confusing to her in terms of her recollection of the dates on which events occurred, and other circumstances, three and a half years ago, as compared with other events and information from hospital records, which was put to her in the witness box for the first time. Nevertheless, she remained composed, and firm in her evidence as to the acts she said Mr Singh had actually engaged in. She was emphatic that she was telling the truth, saying 'There's no way I'd ever make up anything like that about any soul anywhere'.[109] We accept her evidence that those experiences did occur, and that she has not fabricated her complaint against Mr Singh. She indicated she was motivated to participate in the hearing for the sake of other unwell women who might be the subject of inappropriate attention in the future.
In our view, there is no basis on which to conclude that her condition at the time, or the medication she was on, would have caused her to make a complaint about events which did not in fact occur. Complainant 1 raised her concerns with Ms Lumsden promptly - before she left the ward. Her reason for not initially following through with her complaint in writing (namely, that due to her postnatal depression, she did not have the strength to do so at the time) is quite understandable.
The overall narrative of Complainant 1's version of events is not upset by her errors of recollection. The evidence of the rosters shows that the development of the physical contact she described from less invasive to more invasive hugs occurred over a shorter period than her original statements suggested. But this does not make her story overall unbelievable, such that it would be unsafe to find allegation 1.4, relating to her discharge interview on 26 August 2010, proved.
Her statement that there was a day in between when Mr Singh was not working, and so she got some peace, is consistent with the fact that he was in HDU on 24 August.
Also, her statement that the first time she became aware of Mr Singh's overly-friendly behaviour towards her was on the day her baby was brought into the Unit to visit (her third full day) is consistent with the records which show first, that Mr Singh was allocated to care for her the first time that day, and second, the baby was brought in that day.
The respondent raised a number of other matters relating to Complainant 1's evidence generally, which are relevant to our consideration of allegation 1.4.
One of these related to Complainant 1's statement that she was unhappy that Mr Singh took her baby out of the family room, and carried it around the Unit. Mr Singh said that would be dangerous for the baby, and he denied doing that.
There was no formal allegation against Mr Singh relating to the baby. While it might go to credit, we regard this issue as too peripheral to have much bearing on the issues in this case. So we do not endorse the respondent's contentions that various additional witnesses should have been called about this incident.
Complainant 1 said during the exit interview, Mr Singh pulled his chair closer to her so his knees were up against hers. Mr Singh said that room had a table and a couple of sofa chairs, so that would not be possible. The evidence on this was not conclusive. This is a matter of detail not directly relevant to any of the particular allegations in 1.4.
The respondent contended Complainant 1's demeanour as observed by staff[110] was not consistent with her own comment that her state deteriorated during her time in IPU2, and that she in fact came out worse.[111] In its context, we regard this response by Complainant 1 as focussing on the effect of her interactions with Mr Singh, rather than on her mental health overall, including the extent of progress made in managing her post natal depression.
The respondent also suggested that Complainant 1's statement that on her final day (26 August) she complained to Ms Lumsden after Mr Singh had left the hospital following his shift (which would have been around 3.30pm) was inaccurate. Ms Lumsden's note of the complaint was timed at 12.00 noon. However, Ms Lumsden was not taken specifically to this apparent anomaly. We also note that in referring to the hug Mr Singh said Complainant 1 gave him in the exit interview, he used the phrase 'before I was leaving'.[112] In any event, we do not believe much turns on this issue.
The respondent also noted that in her oral evidence, Complainant 1 said Ms Lumsden had not given her the opportunity of making a formal complaint, whereas the note taken by Ms Lumsden at the time (and backed up by Ms Lumsden's evidence to the Tribunal) indicates that she was given that option. We regard this as explicable by the loss of memory due to the passage of time. It is clear that on discharge, Complainant 1 was not minded to make a formal complaint. This is not a major issue.
The respondent also submitted the evidence did not show that Mr Singh delayed Complainant 1's discharge. We do not need to make a finding on this issue. There is no specific allegation to that effect. It was apparent that Complainant 1 had the impression that this occurred. It is also clear he did process her discharge on 26 August 2010, and she did leave the hospital that evening. So if there was any delay, it was not long.
Finally, the respondent referred to the fact that Complainant 1 said she had told people at the Austin Hospital Mother and Baby Unit about the contact she had received from Mr Singh, yet that Unit was not able to find any record of this. We do not regard this as being of particular significance to the issues we need to decide.

[155]

It was submitted on his behalf that it was inconceivable Mr Singh would ask Complainant 1 to poke out her tongue - and that she would comply. However, Complainant 1's evidence made it clear he was trying to grab her mouth and tongue against her wishes, during and after the telephone call.
Complainant 1's evidence is strongly supported by the evidence of Complainant 2 that Mr Singh asked her to do exactly the same thing - poke her tongue out, the reason being, in both instances, to expose her tongue ring.
Allegation 1.4(c) is bolstered by the similar evidence given by Complainant 2. As stated, there is an uncanny similarity between what Mr Singh is reported to have said to Complainants 1 and 2 about their tongue rings, and telling his girlfriend, or someone, to get one. Complainant 2's evidence is particularly strongly probative in relation to allegation 1.4(c).
We reject Mr Singh's evidence about Complainant 1's and Complainant 2's tongue piercings. We accept the evidence of those two complainants. In this instance, the coincidence evidence of Complainant 2 strongly bolsters Complainant 1's evidence, and vice versa.
We do not regard Mr Singh's statement that he did not have a girlfriend in August and September 2010 (even if that is accepted as true) as undermining allegation 1.4(c). He could still have said it even if it were not the case that he had a girlfriend.
We find allegations 1.4 (b) and (c) proved.
Allegation 1.4(d) is that Mr Singh hugged Complainant 1. She said, 'Before leaving the room he gave me a last hug. Invading my personal space again and bring in total fear of him going further than I wanted'[sic].[115] In cross-examination she denied giving him a hug during the exit interview.[116]
Mr Singh's accounts in relation to the hug varied. In his interview with Eastern Health on 23 September 2010, he was noted as saying that Complainant 1 had 'hugged him on discharge'. This was not mentioned in either his response to AHPRA dated 12 September 2011, or his witness statement dated 17 January 2014. The applicant suggested Mr Singh had not mentioned the hug in these two statements because he was trying to infer no physical contact had occurred. This is an inference which is available.
At one point during his evidence to the Tribunal, Mr Singh appeared to accept the possibility that he had hugged Complainant 1[117] but that at another point the effect of his evidence was that a hug may have occurred - initiated by her - but it would have been in the corridor, not the interview room. And it would have been a farewell 'good luck' hug, (and, impliedly, not an intense one)[118].
Finally, in view of our conclusion that hugging a patient is remarkable and unusual behaviour, this allegation is bolstered by the similar evidence of Complainant 3 that Mr Singh hugged her very closely.
We are satisfied to the requisite standard that the hug alleged in 1.4 occurred in the exit interview. This is on the basis of the evidence about the circumstances in which it occurred, our acceptance of Complainant 1's version of events and the similar evidence of Complainant 3, which is strongly probative in relation to the hug.
We find allegation 1.4(d) proved.

[163]

Mr Singh and Complainant 2 gave completely different versions of the events of 16 and 17 September 2010.
Mr Singh said he spoke to a doctor at about 3 o'clock on 16 September 2010, who told him to do an ECG on Complainant 2. He did this straight away, in her bedroom.
He said he had a conversation with her about her thyroxine levels and appropriate methods of weight control after that, about 4.30 - 5.00 pm.
Next, after dinner she approached him with concerns about heart palpitations, so he took her to the treatment room to check her blood pressure and other vital signs. He said that she immediately began behaving in an over-familiar way, including trying to hug him several times. She was elevated and hyper-manic in conversation. He told her not to behave in that way, and ultimately raised his voice and scolded her sharply. He said he would report her conduct to his seniors. This admonition had the desired effect, and she ceased behaving inappropriately.
Mr Singh said he then went to the nurses station, where he told his colleagues Ashlee Mead and Alana Schickert about her behaviour. He said as a male he did not want to nurse her the next day. Later, in the medication room he also discussed the issue with another nursing colleague Mr Ebin Mark.
He went into Complainant 2's bedroom to give her medication at about 8.15 pm. He had to touch her on the shoulder to wake her. This was quick, as he was in a rush to finish the tasks he had to do before the end of his shift.
He made an entry in Complainant 2's Progress Notes about the treatment room incident at about 8.30 pm. He showed it to Ashlee Mead, who was satisfied the note covered the incident.
He intended to tell his shift leader as well, but was unable to do so as the shift leader was doing an admission. He said he told the incoming staff at handover about her inappropriate behaviour.[119]
The next day he worked the morning shift. Despite the general policy of continuity of nursing care, he was not rostered on to look after Complainant 2. This was the result of him indicating that he did not want to nurse her any more.
Mr Singh said he had a brief banal conversation with Complainant 2 at about 10.30 - 11.00 am in the TV/lounge area, but otherwise had no contact with her that day.
He denied all the allegations made by Complainant 2. He said no untoward physical contact was initiated by him. In particular, he said he entered her bedroom only once after seeing her in the treatment room - briefly, at 8.15 pm to give her medication. He denied ever being in the bathroom with her.

[167]

Complainant 2 gave her evidence in a composed, confident and considered way. She gave the clear impression of having shaken off the mental health issues which were affecting her in 2010. She has not been an inpatient at any other facility since her September 2010 admission to IPU2. She has not been under the care of a psychiatrist since June 2011. The only medication she has is one which she takes occasionally, when she feels she needs it.[120] She is now undertaking a course of study.
Ms Lumsden indicated that in her professional opinion there was nothing about Complainant 2 that would lead her to conclude that she would be likely to report an incident which did not in fact occur.
There is no basis for us to conclude that her evidence was unreliable due to being deluded as a result of her medical condition, or the medication she was on. Nor is there any basis for us to conclude she was not telling the truth when she gave her evidence. She presented as a credible witness. There was no suggestion made that she had fabricated her allegations in the light of hearing anything said by anybody else about Mr Singh behaving improperly with female patients. In his police interview, Mr Singh volunteered several possible reasons for Complainant 2 making false allegations. He suggested perhaps it was because she was really unwell and also highly elevated that day. Alternatively, he suggested it might be she was reacting to him scolding her 'very hard' in relation to her inappropriate behaviour in the treatment room the evening before she made her complaint. However, this would require us to accept that Complainant 2 fabricated a complaint out of anger, and maintained such false allegations over the next three and a half years.
The respondent pointed to Ms Lumsden's statement that when Complainant 2 first reported these matters to her, she could not remember specific dates and times. It contrasted this with the much more specific recollections which formed the basis of her police statement. We do not regard this as significant. The short handwritten note she made on 17 September contains reference to most of the significant acts alleged. We are satisfied that the incidents would have been sufficiently fresh in Complainant 2's mind when she gave her detailed statement to police.

[171]

First, it is contended that Mr Singh has progressively embellished his account of events in the treatment room over the six occasions when he has provided statements about it. Those six occasions were:
- the account he provided to his colleagues Ashlee Mead, Alana Schickert and Ebin Mark on 16 September 2010
- his Progress Note of 16 September 2010
- his interview with Eastern Health on 23 September 2010
- his interview with Victoria Police on 27 September 2010
- his letter to AHPRA of 12 September 2011
- his VCAT statement of 17 January 2014.
The applicant suggested he did not report physical contact with Complainant 2 when he spoke to his colleagues and made his 8.30 pm Progress Note on 16 September 2010. It submitted Mr Singh embellished his account when he spoke to Eastern Health on 23 September 2010 by adding entirely new claims, including that she tried to hug him twice, she was impulsive and elevated, that he 'scolded' her, that he said he would report her behaviour to his superiors and that she asked him not to. Next, in Mr Singh's interview with Victoria Police on 27 September 2010 Mr Singh added the further statements that she ventilated a range of issues with him in a histrionic way concerning matters such as her weight and that she showed him her tongue ring, but that he deflected this. Next, the respondent said that in his letter to AHPRA of 21 September 2010, Mr Singh added to his account by describing Complainant 2 as hypermanic in conversation, stating that she started crying before she attempted to hug him and that he yelled at her due to her inappropriate behaviour. The applicant said Mr Singh's VCAT statement of January 2014 contained many of the embellished elements referred to above.
In relation to the differences in Mr Singh's various accounts, it is correct to say that he did provide additional details about Complainant 2's conduct in the treatment room, in his subsequent statements.
In relation to the question of what he reported to his colleagues after the incident, we note Nurse Ashlee Mead said he told her 'he thought it was appropriate for [Complainant 2] to be nursed by females'. Nurse Alana Schickert said in her police statement he told her that Complainant 2 was over-familiar with him: and after showing him her tattoo, she lifted up his sleeve to see his. Both indicated he was relaxed and calm as he conveyed these things. Also, the statement by Nurse Ebin Mark does reflect sexually inappropriate behaviour by Complainant 2 towards Mr Singh, although it does not refer to physical contact. Mr Mark said Mr Singh told him that Complainant 2 'was sexually inappropriate to him, showing off her tattoos'. Mr Mark's 'statement' was very brief, just a short email to police.
Finally, Ashlee Mead stated that at Mr Singh's request, she read his Progress Notes entry (marked 8.30pm). Ms Mead was satisfied it covered the incident. The entry was as follows:

[173]

We accept that in the absence of more detailed statements, and oral evidence from his three colleagues, it would be unfair to assume against Mr Singh that he had not mentioned to them that she had tried to hug him. However, his Progress Note was deficient in that it did not mention physical contact by her.
An aspect of Mr Singh's reports about Complainant 2's behaviour which concerns us however, is his description of her mood during the treatment room incident, in the accounts he gave from 23 September 2010 onwards.
There was no indication in his Progress Note entry of 16 September 2010 that Complainant 2 was unhappy or upset in the treatment room. Nor do the accounts of Nurses Schickert, Mead or Mark contain any indication of this. The note of his interview with Eastern Health on 23 September 2010 does mention that she was 'upset', but this was after he scolded her, not because she was generally unhappy. In the police interview of 27 September 2010, he said that issues in her life had caused her to be 'a bit distressed' and she tried to hug him. In his statement to AHPRA of 12 September 2011 he said she 'started crying' before tyring to hug him. In his VCAT witness statement of 17 January 2014, he said she was manic, started talking about her tattoos, jumped off the bed, said 'My life is fucked. I'm going through a lot. You don't understand me', talked about her weight, started crying, tried to hug him and then pulled her top down from her shoulder to show him her tattoo and tried to hug him again.[122] Mr Singh adhered to this version of events in his evidence to the Tribunal.
Complainant 2's response was that she did not do these things. She said it was most likely she had put her jacket and/or jumper on, so she couldn't show him her tattoo. In any event, the t-shirt she had could not have been pulled down to show her tattoo. More importantly, she said she was in a manic phase, which lasted for a minimum of a week, not a matter of days or hours. She said she was concerned about her weight, but she would never cry or say those negative things, because 'everything is wonderful and amazing', [123] and she was 'very happy, energetic, very chatty'[124] when she was in a manic phase.
Complainant 2's evidence was consistent with the hospital records. She had been admitted on 14 September for her own protection, in a manic phase. She felt she was invincible. She was at risk of misadventure, indiscriminate spending of money and indiscriminate sexual behaviour. Her mood was 9 out of 10 on 14 September. Consistent with this is her statement that she kissed Mr Singh back and the Progress Note entry by another (female) nurse at 2.02 pm on 16 September that she was 'overly warm on engagement for first interaction with writer.'[125] On 19 September 2010, three days after the alleged incident, her mood was still high - 8 or 9 out of 10. While again, it would be unfair to assume against Mr Singh that he had not told his colleagues that Complainant 2 was upset (given they were not called to give evidence) his Progress Note entry was clearly deficient in this regard, as well as in not mentioning physical contact. Further, if she was upset, this would be a relevant matter to report in terms of the cycle of her bipolar condition. This would have been significant, since all the other evidence suggests that she remained in a manic phase at all relevant times.

[174]

Second, the applicant contended that Mr Singh's account of events in the treatment room is false because it is inconsistent with his subsequent conduct on 16 September 2010. It was submitted that if she had really behaved in the elevated and overly familiar way he had described, then he would have amended her risk assessment and made a more detailed Progress Note entry, notified his shift leader and avoided further one on one contact with her. In particular, he would not have attended her room alone later that evening to give her medication.
The respondent's case was that he did not regard her conduct as a very serious incident requiring a high level response. He felt she had taken on board his message that she had behaved in an overly familiar way and tried to hug him. He had not arranged for somebody else to accompany him when he went to her bedroom to give her medication later that evening, as it did not occur to him there was a danger of any further inappropriate conduct by her. Also, he was in a rush, behind with his medications, and everyone else was busy as well.
A clear vulnerability in Mr Singh's case is that he identified sexually inappropriate behaviour such that Complainant 2 should not be nursed by males, yet he still proceeded to give her medication alone in her bedroom that night. And he failed to record enough details of her conduct in his 8.30 pm Progress Note, such that the allegation can be put by the applicant that he recorded enough detail to lay the groundwork for an explanation should Complainant 2 report his conduct, but at the same time he recorded conduct by her which was not so serious as to prevent him from continuing to be able to have access to her alone again later that evening.
Nurse Clapp was asked whether an entry in the Progress Notes relating to a female patient behaving in an overly familiar way with staff was sufficient to record an incident of the type he said occurred. Ms Clapp said she would expect that such a matter would have been the subject of a direct conversation between the nurse and the associate nurse unit manager. Ms Lumsden also said that would be appropriate.
We agree that on the basis of this ultimate description of her conduct, he should have made a more detailed Progress Note entry and reported the matter to his shift leader, rather than just his work colleagues, prepared an incident report, amended her risk assessment and refrained from entering her room alone again that evening. So Mr Singh's conduct after the treatment room incident does detract to some degree from his denials.

[179]

The first of these is allegation 2.2, which relates to things it is alleged Mr Singh said to Complainant 2 about shaving her legs, her bra, her tattoo and her tongue ring. These things are alleged to have been said while he was conducting an ECG on Complainant 2 in her bedroom on 16 September 2010.
The fact that an ECG was carried out on 16 September was mentioned only in passing in Complainant 2's police statement. It referred very briefly to her tongue ring, and did not refer to the other three things in the ECG context at all (see below). In her VCAT witness statement of 23 July 2013, Complainant 2 provided additional details about the ECG procedure. These included that Mr Singh kept asking her if she wanted to shave her legs, which were hairy, that he made a comment along the lines of 'that's a nice bra' and that he wanted to see her tattoos.
Mr Singh's VCAT statement was prepared after these allegations were made, but it did not respond to them. Mr Singh said in his evidence that he never made any reference to Complainant 2 about her bra, nor spoke about any tattoos, nor mentioned that he liked her tongue ring.[127] Nor that he was thinking of telling his girlfriend top get one.[128]
Mr Singh also said that sometimes, in the course of general 'chitchat', matters such as piercings or tattoos or clothing being worn might come up. Patients could see the tattoo he has on his upper arm (partially visible below the short sleeve of his work polo shirt) and would comment on it. This was part of general conversations nurses have with patients to build trust with them in order to promote their recovery or management of their condition.
The respondent contended that the fact that the references to tattoos, Complainant 2 shaving her legs, and to her bra were only mentioned for the first time in her VCAT witness statement of 23 July 2013 made her evidence about the ECG inherently unreliable. So allegation 2.2 should be rejected.
Complainant 2 was asked in cross-examination why she had not mentioned the tattoo conversation in her police statement. She said that at that time she thought it was an insignificant detail. We accept that as a reasonable response. When being interviewed by the police, the focus was on potential criminal conduct. Also, contrary to the respondent's submission, the effect of her evidence was that while she was not certain whether she commented on Mr Singh's tattoo, it was the case that he asked her about her tattoo:[129] He asked to see it and she took off her jacket and lifted her t-shirt to show him (leaving her singlet top on).
In relation to the references to shaving her legs, similarly to the references to tattoos, we accept as plausible that this did not seem to be of significance to Complainant 2 at the time she made her police statement, and so they could be something she did not think to mention then, when focussing on the more specific and serious matters.
Also, Mr Singh's evidence was that he recalled she said something along the lines of 'excuse my hairy legs', but he said something to the effect that that was not an issue. In his written statements he said that razors were not allowed on the Unit at all. But in oral evidence, he said he now thought he was confusing this with the position at his current workplace, where they are banned. It may be they were in fact allowed at IPU2, with a doctor's permission, and supervised. In any event, he said he never suggested to Complainant 2 that one could be obtained for her.
This does, however, indicate that shaving legs was mentioned during the ECG procedure. Complainant 2 agreed that she had said something along the lines of 'sorry about my hairy legs', but said Mr Singh kept asking her if she wanted a razor, after she said no. He 'repeatedly kept pushing the issue'.[130]
The draft County Court Statement of Claim prepared on Complainant 2's behalf contains the allegation that 'after performing an ECG on the plaintiff, [Mr Singh] commented on her bra and hugged her'. The respondent pointed to the fact that Complainant 2 acknowledged in her evidence that the statement that a hug occurred at this point was incorrect. Complainant 2 said in her evidence that she did not provide the information verbatim for her Statement of Claim, although she did meet with a solicitor from Arnold Thomas and Becker to discuss it. She did not know where the reference to the hug came from. We note the Statement of Claim is drawn in fairly broad and brief terms: it only mentions four allegations (as opposed to six in the present set of allegations) together occupying only 13 lines in the Statement of Claim. The form of the Statement of Claim suggests it is a draft or first cut of a claim. There is no cover sheet (it commences with page 2), no County Court Matter number, no signature and no stamp. We note that the allegations made by Complainant 2 as a whole include a number of instances of physical contact of a sexual nature. In the circumstances, we conclude that the inclusion of reference to a hug in the ECG content in the Statement of Claim does not detract from the reliability of Complainant 2's evidence about allegation 2.2.
There was no suggestion made in the respondent's submissions that the fact the Statement of Claim had been prepared indicated that Complainant 2 had a motive to make false allegations.
We accept the respondent's submission that Mr Singh's description of the procedure for performing an ECG on a young female patient was appropriate, and adhered to professional boundaries in terms of the process for attaching the electrodes to the patient's chest and the type of conversations which were appropriate during such procedures. However, the fact that the respondent was able to demonstrate that knowledge in 2014 (or even in 2010) does not advance the matter - the question for the Tribunal is whether the conduct occurred, not whether Mr Singh knew it was wrong.
Allegation 2.2(d) is that Mr Singh said he liked Complainant 2's tongue ring. Allegation 2.3(a) relates to her tongue ring as well. Her police statement of 23 September 2010 referred to interest expressed by Mr Singh in her tongue ring when doing an ECG on her, and also later on the same day when taking her blood pressure in the treatment room (which is the subject of allegation 2.3). She said that after the blood pressure had been taken:

[184]

This is the allegation that at about 6.00 pm, in the treatment room, after taking Complainant 2's blood pressure, Mr Singh asked her to poke out her tongue because she had a tongue ring, put his hands on her waist, kissed her on the lips and put his tongue inside her mouth, kissed her on the neck, put her hand inside his pants to touch his penis and kept it there when she tried to remove it, and asked for her telephone number and then entered it into his IPhone.
In her police statement Complainant 2 said after he kissed her initially, she was like a stunned mullet, and she thought she kissed him back. In her evidence to the Tribunal, she said she did kiss him back.[136]
Mr Singh said none of this occurred. As noted he said that there was an incident in the treatment room, but his version was completely different to Complainant 2's. The cumulative effect of his various statements was as follows: In the treatment room she was 'very talkative, elevated and hypermanic in conversation.'[137] Complainant 2 had shown him her shoulder tattoo, then become very upset, crying, and talking about matters in her personal life she was very unhappy about. Without warning, she jumped up from the bed, stood very close to him, and tried to hug him. She possibly mentioned her tongue ring. He made a Progress Note entry about her behaviour at 8.30 pm.
At the commencement of her oral evidence Complainant 2 made a change to the evidence she had given in her police statement. She said in fact the initial kissing went on for 'less than a minute' rather than 'a few minutes' (which is what she said in her police statement). The effect of her evidence was, however, that it was still passionate, and not brief.[138] The respondent submitted this was an instance of Complainant 2 altering her evidence to make it more plausible. However, we regard this as an instance of a conscientious witness seeking to put the record quite straight.
A further detail is that the preponderance of evidence seems to be that the treatment room had a curtain on a track inside the room, rather than a curtain over the glass panel in the door. Thus the statement by Complainant 2 to police that 'he then pulled the curtain across the glass panel in the door as I was walking towards it' is incorrect. She acknowledged in cross-examination that this was not correct. She said it was not the image in her head, and she had not meant to convey that in her police statement. Again, this was a change to her evidence which she volunteered. Her evidence on this point was credible.
The respondent also pointed to Complainant 1's statement made for the first time in her July 2013 VCAT statement that she now recalled that walking down the corridor from the treatment room he said to her 'don't tell anyone, don't tell anyone, they'll kill me'.[139] It was put it seems surprising that she would not have recalled this and mentioned it during the long process of giving her police statement, yet recalled it two years later (when she said her memory of events was, unsurprisingly, not as good). It was also said Complainant 2 stated for the first time in cross examination that Mr Singh had told her at some point that he was on duty the next day, and that this was a reason for not immediately reporting the treatment room incident to the other nursing staff.[140] The respondent inferred that these were later fabrications to bolster her version of events, given that she referred to these matters for the first time 34 months and three and a half years respectively after her admission.
However, Complainant 2 said in cross examination that she first recollected the 'don't tell anyone ...' statement a few months after she had made her police statement. Her memory would obviously not be as faded then as three and a half years after her admission, when she was giving evidence. We accept that evidence given by Complainant 2. Also, we note that in her statement to police, she said she did not make a report to staff after the bathroom incident because 'I was scared it would get back to Rimpy and that he would come after me the next day he was on'. We regard this as not being inconsistent with her statement in cross-examination referred to in the above paragraph.

[187]

We now turn to allegation 2.3(e), that Mr Singh put her hand inside his pants to touch his penis and kept it there when she tried to remove it.
The respondent referred to the fact that Ms Lumsden's evidence that Complainant 2 definitely did not mention the allegation of Mr Singh putting her hands down the front of his pants at the time when she spoke to Ms Lumsden. Another difference is that it refers to an allegation of touching her breasts in the treatment room, whereas the police statement does not. However, Ms Lumsden's note (quoted above) only refers briefly to three incidents. It is obviously much less detailed than Complainant 1's police statement. In the circumstances we do not regard the omission of any reference to him forcing her hand down his pants as undermining her evidence.
Complainant 2 was asked in cross-examination whether it was possible that Mr Singh had put both her hands down his pants. She responded 'It is possible but I recall one'.[142] She said she didn't recall exactly at the time of giving evidence but indicated whatever her police statement said would have been correct 'because it was detailed at the time'. The respondent submitted that to agree it was possible he had put both her hands down his pants was a remarkable concession. Complainant 2's evidence could be understood as being that her memory relating to this possible detail was now faded, and while accepting this as a possibility from her present standpoint, she deferred to the statement made shortly after the incident. On the other hand, the difficulty of the physical act of forcing both hands down his buttoned up pants suggests it would be less likely to have occurred. So Complainant 2's acceptance of this as a possibility does raise an uncertainty.
Complainant 2 said in her evidence that during the incident he had not said 'give it to me' (or words to similar effect) at the time he put her hand(s) down his pants, yet this appears in the County Court Statement of Claim prepared on her behalf in 2013. Despite the statement by Complainant 2 that she had little to do with the preparation of the draft Statement of Claim, it can be inferred that a 'quote' of this type would have come from her, before being included in a Statement of Claim which was being drafted on her behalf. So this suggests some changes in Complainant 2's version of events.
Overall in relation to allegation 2.3(e), while we found Complainant 2's evidence credible, we are conscious of the doubts raised (albeit relatively minor) relating to whether both Complainant 2's hands were forced down his pants or only one, and the inconsistency with the Statement of Claim. More significantly, in a situation where it is Complainant 2's word against Mr Singh's, we are conscious that there was no evidence of directly similar actions by Mr Singh from either of the other two complainants. Bearing in mind the seriousness of this allegation, and hence the higher degree of satisfaction required, we do not find allegation 2.3(e) proved.
We find allegations 2.3 (a) - (d) proved, and allegations 2.3 (e) and (f) not proved.

[189]

Allegation 2.4 is that at approximately 7.00 or 7.30 pm, Mr Singh entered Complainant 2's room and attempted to kiss her on the lips and touch her breasts. In her police statement, Complainant 2 said Mr Singh came in twice while she was on the phone. The first time was while she was speaking to her mother and young sibling, when he tried to kiss her on the lips. She said he touched her in the middle of her breasts over her bra with his fingertips but she brushed him away. He then walked out.
The second time was when she was speaking to her father 15 minutes or so later. She said Mr Singh came in and said 'hang up, hang up'. She said 'no, no, no' softly. Her father asked her who she was talking to. She told him it was one of the nurses who wanted her to get off the phone. Mr Singh then walked out again.
Mr Singh denied all the allegations at 2.4. In relation to allegations at 2.4 and 2.5, he said that he gave Complainant 2 her medication in her bedroom that evening, but that was quick, as he was in a hurry to do the medications for four other patients as well, and he was running behind. He said Complainant 2 was not on the phone at any stage when he was giving her medication.
The respondent was critical of the applicant for not calling the family members Complainant 2 was speaking to on the phone. We accept Complainant 2's oral evidence, however, that she was speaking to her eight year old sister when Mr Singh first entered, so it would not be appropriate to call her.
The allegation that Mr Singh tried to kiss Complainant 2 on the lips while she was on the phone to her sister, is supported by the similar evidence of Complainant 1 that he tried to touch her on the lips while she was speaking on the phone. And Complainant 2's evidence of Mr Singh touching her breasts is likewise supported by the evidence of Complainant 3 that he did the same to her. These aspects of the evidence are strongly probative of the first episode comprising allegation 2.4, such that, when combined with our assessment of Complainant 2 as a credible witness, we are satisfied to requisite standard that this episode did occur.
In relation to the second episode covered by allegation 2.4, Complainant 2's father arguably might have been able to give relevant evidence. We do not endorse the respondent's criticism of the applicant for not calling him, however. Nor do we conclude an adverse inference arises from the applicant not doing so. There was no allegation of kissing or touching during this episode, and it is reasonable to conclude that it was unlikely the evidence the father (who was apparently in Sydney at the time) would have been favourable to Mr Singh.
We find allegation 2.4 proved.

[190]

Complainant 2's statement to the police alleges that after 8.00 pm but before 10.00 pm on 16 September 2010, she was sitting on her bed when Mr Singh came into her bedroom. In summary, Complainant 2 stated that she 'ended up in the bathroom' with Mr Singh, where he proceeded to kiss her on the lips and neck, pull her jumper and t-shirt up to expose her stomach and bottom of her bra, kiss her stomach and bra near her left breast, move her bra and kiss her cleavage and kiss her neck again (2.5(a)). Complainant 2 said that Mr Singh then unbuckled his belt and pulled his jeans down to his knee and asked her to kiss his penis by telling her to 'kiss him, kiss him' (2.5(b)). She said when she declined to do so, he forced her face towards his penis and told her that if she 'kissed him once' [meaning his penis] he would leave her alone. She said his penis was not erect (2.5(c)). After Complainant 2 did not do this, he left her room.
Complainant 2 said, 'I didn't tell anyone what had happened. I was scared it would get back to Rimpy and that he would come after me the next day he was on.' Later she said, 'I guess I was still in shock and drifted off to sleep'. It was suggested by the respondent that the fact Complainant 2 did not report this (and the other incidents) straight away makes her evidence less reliable. We do not accept this. It seems understandable that she would need time to come to terms with what had happened, speak to her friend for moral support, and wait for her to come in before screwing up the courage to report the incidents.
Mr Singh denied that the incident had occurred at all.[143] He said nurses never go into patients' bathrooms and he had not done so.
On behalf of Mr Singh, it was submitted that Complainant 2's original statement that he had his back against the mirror was impossible because of the position of the sink, was accepted by her as being incorrect during cross-examination. We do not regard this as a significant point. It is a matter of semantics arising out of the wording of her police statement.
It was also submitted for the respondent that bearing in mind that by this time she was fearful of Mr Singh's sexual advances, her failure to leave the bathroom earlier was not credible. When put to her that she could have pushed him away, she appeared rueful, saying 'I'm aware of that' [now]. We are wary of concluding that her account is unreliable because she did not leave more quickly, nor raise the alarm or report the matter immediately to staff or other patients. In her evidence, she gave quite a thorough description of all the ways in which a nurse could exercise power over a patient.[144]

[195]

This is the allegation that later that day, at approximately midday or shortly thereafter, while Complainant 2 was sleeping, Mr Singh woke her by feeling her breasts under her bra and t-shirt.
Complainant 2 said in her police statement that at perhaps 12.30 or 1.00 pm she was woken up by Mr Singh feeling her breasts under her bra and tshirt. She said she swiped his hand away and rolled on her stomach. In her oral evidence to the Tribunal she said she had thought further about this incident and now recalled that she was woken by Mr Singh asking her if she was angry with him. It was after that that he put his hand down her shirt and felt her breasts. In her handwritten notes made later that day, she stated she was awoken by Rimpy constantly asking if she was angry with him.
He denied any physical contact except touching her on the arm to wake her when she did not respond after knocking on her door and saying her name twice.
Complainant 2 acknowledged that the above evidence was inconsistent with the allegation in the Statement of Claim that whilst she was in bed, he lay on her bed, as well as putting his hand under her clothing. Again, she said she had never seen the Statement of Claim and, did not know where the information in it had come from, and had never signed off on it.
We do not regard the change in the version of events given by Complainant 2 as being particularly significant. The key aspects of this complaint were consistent over the course of the investigation and hearing - that his asking whether she was angry with him and the breast touching occurred around the same time, as she was waking up.
Complainant 2's evidence of Mr Singh feeling her breasts is bolstered by Complainant 3's evidence that he did the same thing to her. Again, it is unusual and distinctive conduct for a male nurse in a mental health ward to feel the breasts of female patients. Again, this is strongly probative evidence in support of the allegation, and in combination with our assessment of Complainant 2 as a credible witness is sufficient for us to be satisfied to the requisite degree that the allegation is made out.
We find allegation 2.7 proved.

[205]

In summary, the respondent contended that Complainant 3's evidence was not reliable because she understated her heroin use, falsely stated she was suicidal in order to gain admission to the Unit, and then, two days later, she had become desperate to be discharged from the Unit to obtain heroin, and so had a compelling reason to fabricate a complaint about Mr Singh. At the time she made the allegation, she was upset because she had just been told she was not going to be discharged. It also said her behaviour demonstrated manipulative and dishonest tendencies and her recall of events was incomplete and inconsistent.
On the other hand, the applicant contended that Complainant 3 reported the allegations promptly and spontaneously, and has stuck to them ever since. Her suggested motive for making false allegations is unconvincing, and her evidence is corroborated by the independent evidence of Ms Michael-Xavier. Her evidence is also supported by the similar evidence given by Complainants 1 and 2.
The hospital notes bear out that Complainant 3 initially said she was suicidal in order to gain admission, but the next day, told staff she was not suicidal, but rather had sought admission in order to detox from heroin. In her evidence, Complainant 3 agreed she had done this.
Complainant 3 was questioned extensively during the hearing about her heroin use. She appeared evasive about when she first started using heroin. At first she said it was six months before the alleged incident in January 2011, and later two years before. It is noted that her Admission Form states she had a three year history of heroin use.[152]
It was apparent from the hospital records that Complainant 3 had done two days of detox the week before her admission, but had relapsed back onto heroin after that.
Complainant 3 also appeared to seek to downplay the intensity of her heroin use. In her evidence she said she did go back onto heroin after the incident, but did not return to her previous daily usage. She also said she had not taken heroin since December 2012. (It is noted her daughter was born on 19 January 2013.)
In determining how much emphasis to place on Complainant 3's craving for heroin as a reason for making up allegations against Mr Singh, in order to obtain a discharge, there are a number of matters to consider. First, while she was not an involuntary patient, she did agree in cross-examination with the proposition that her impression was she had to get permission to leave the Unit.[153] It does appear she was persuaded by the view of her father and of the staff that she should remain in the Unit.
Second, how realistic was it for her to believe that making such an allegation would have led to discharge? Ms Michael-Xavier's note of her complaint about Mr Singh records her as saying she was scared of Mr Singh, and wanted to leave the ward now with her father. Objectively, it would not seem to follow that because sexual abuse by a staff member has occurred in the Unit, or been alleged, the response would be to discharge the patient.
Third, there is a natural hesitancy to conclude that a person would fabricate such a serious allegation. The respondent suggested this was a thing which a desperate heroin addict would do, however.
Fourth, we also note the Progress Notes show that she had substantial periods of day leave on the two days following the alleged incidents: 23 and 24 January 2011 (in excess of three hours on both days).[154] So she was in fact able to leave the Unit, temporarily, without being discharged.
The respondent also pointed to the fact that, in effect, the notion of Mr Singh making inappropriate physical contact of a sexual nature had been put into Complainant 3's mind by the warning given to her earlier that morning by another patient, to 'stay away from him'.
It is clear Complainant 3 was seeking discharge from the second day of her admission (Friday 21 January 2011) onwards. There are many references to this in the Progress Notes made during the course of her admission. Complainant 3 accepted this in her evidence.
She gave evidence to the effect that a craving for heroin was only one of the reasons why she sought to be discharged from the Unit within a day of her admission. She said she also wanted to be with her father. (He described her as 'homesick'.) And she indicated she felt scared in the Unit, due to the attentions she received from Mr Singh on 22 January 2011.
The respondent suggested Complainant 3 demonstrated manipulative behaviour. In this regard, the respondent pointed to:
- The statement she was suicidal as the reason for seeking admission- which she admitted was untrue.
- Her description of herself as manipulative when it comes to drug seeking (in the emergency Department Triage Notes of 20 January 2011). We note however that this submission was not supported by reference to any specific statement in the hospital notes.
- Her statement that after she had presented at the Emergency Department two days prior to her admission, she had 'talked her way out' and left the hospital.
- The contrast between her and her father's description of her condition after the incident, as being withdrawn and quiet, and her upbeat mood later that evening.
Complainant 3 said after the incident in the bedroom (which was between 1.30 and 2.00 pm) she was withdrawn and quiet, and wanted to be left alone. Her father described her 'in a corner stuttering, bitting her nails and terrified'. Yet the Progress Notes entry of 6.20 pm stated that she was observed with other co-patients laughing and smiling. The next day, she was observed as being bright and reactive, laughing and interacting well with other patients. When asked about this, she responded that if you are not happy they don't let you go home. While it might be that the passage of time, getting the complaint off her chest to Ms Michael-Xavier, and the reassurance she had received that Mr Singh was not rostered on for the next few days had alleviated her distress to some degree, this answer does raise the suggestion that Complainant 3 manipulated her behaviour to achieve things she wanted. And to that extent it is consistent with the other manifestations of manipulation pointed to by the respondent. It is another matter, however, as to how far this undermines Complainant 3's evidence on the allegations themselves.
The respondent suggested that Complainant 3's evidence was unreliable due to the effects of the drugs she was taking, combined with her mental health. Complainant 3 accepted that her recollection of events during her admission was a bit blurry, save for the things that occurred in the bedroom, which she [would] 'always remember'. We have no basis on which to conclude that her dependence on heroin, or the prescription drugs she was taking at the time she made her report against Mr Singh, could have caused Complainant 3 to be deluded, such that she would make an incorrect report that the things alleged in complaint 3 occurred.
In particular, contrary to the respondent's submissions, her statement to Mr John Daly on 24 January 2011 that 'she couldn't remember much because of the valium' does not detract from the evidence she gave about the things she did remember. That statement was given as a response to the question whether there had been any other incidents on 20 and 21 January 2011, that is, prior to the two alleged incidents on 22 January. She said no, but then made the comment about the valium.
The respondent also submitted that Complainant 3's evidence was not reliable on the basis of an number of contended factual inaccuracies and inconsistencies in her evidence, in relation to each of allegations 3.2 and 3.3.
In relation to Allegation 3.2 (that Mr Singh approached her in the common area, pinched her cheeks and asked to see her tattoo), the respondent said her version of events contained the following inaccuracies and inconsistencies:
- As soon as two days later, in interview with Eastern Health, on 24 January 2011, Complainant 3 said she could not recall where the initial conversation about her tattoo and the pinching of her cheeks occurred. She confirmed this in evidence. She did consistently say it was not in the bedroom, however.[155] Her written statement of August 2013 said she was 'fairly confident' she was sitting outside when this occurred. Complainant 3 accepted that her memory of many aspects of her admission was hazy, except that she would 'always remember what happened in the bedroom'. Allegation 3.2 is not an allegation of inappropriate contact of a sexual nature, but the way it was described was as a precursor to it. While it is not a point of great significance, it seems a little surprising that Complainant 3 could not be certain where this occurred.
- In the meeting at Eastern Health on 3 February 2011 she was recorded as saying that he asked to see her tattoo when she was in her bedroom, whereas her other evidence was to the effect that this occurred not in her bedroom. We do not regard this as being of significance, since this statement is not necessarily inconsistent with allegation 3.2- tattoos may have been discussed in both places.
- She also said during the 3 February 2011 interview, for the first time, that he called her a 'cheeky girl' during this interaction. Again, this is not of significance, in our view. He may have called her both a cheeky girl and a naughty girl.

[209]

The respondent also contended that Ms Michael-Xavier corroborated Mr Singh's version of events- that he was in the corridor for the purpose of giving medication to the patient opposite Complainant 3's room, but she was making a commotion, and refusing to accept it from him. As stated, in cross examination, Ms Michael-Xavier appeared to agree with the proposition that Mr Singh was holding that patient's medication and a cup of water - which is consistent with his version. There was no re-examination on this point. We accept that his version of events is consistent with him going to the room opposite Complainant 3 for the purpose of giving medication. He could still have entered Complainant 3's room, however. Nor is the apparent inconsistency in Ms Michael-Xavier's evidence as to whether he was holding a cup of water of significance to the key issue of whether he entered her room, in our view.
In relation to these allegations we regard the evidence of Ms Michael-Xavier that she saw Mr Singh coming out of Complainant 3's room as being of great significance. She was quite clear that was what she saw, not just him standing in the doorway. She is an independent objective witness, in contrast to Mr Singh. Mr Singh says he was never in Complainant 3's room. We reject that evidence. We accept Ms Michael-Xavier's evidence that he was. This does not constitute direct evidence that the things alleged in the bedroom actually occurred, but because it directly contradicts Mr Singh's evidence (about a patient he was not rostered on to care for) it adversely affects Mr Singh's credibility.
The respondent was critical of the applicant's failure to call the patient in the room opposite complainant 3's. However, given her status as a patient, and her apparently erratic behaviour, we do not endorse that criticism. Again, we have no basis to assume that the applicant has failed in its duty to act as a model litigant, and to call all relevant evidence, within reasonable bounds.
While there appear to be doubts about the reliability of Complainant 3's evidence in relation to her heroin use, we do not believe that readily translates into unreliability on the key issue of whether the incidents alleged took place.
In relation to the specific allegations made against Mr Singh, we found Complainant 3 a credible witness. Her oral evidence about the incident in her bedroom at 3.3 was generally consistent with her handwritten statement of 22 January 2011, Ms Michael-Xavier's note of her complaint that day, and her witness statement of August 2013. She was able to describe the alleged incident in reasonable detail, and with feeling. She clearly found giving evidence a difficult experience, but on the physical attention she received from Mr Singh the subject of her complaint, she remained firm. She reported the matter promptly and for the reasons below, we do not believe that it is plausible that she made up the allegations in order to obtain discharge in order to obtain heroin. We accept her evidence.
Complainant 3 said she did not speak to other patients about these events. She firmly denied fabricating allegations, including in the light of having received a warning about Mr Singh that morning.

[210]

Weighing up all the evidence in relation to Complainant 3, we are comfortably satisfied that the events alleged did occur.
On close analysis, we have concluded that none of the issues raised by the respondent creates doubts sufficient to undermine this comfortable satisfaction.
The theory postulated by the respondent is that Complainant 3 was craving heroin, and when she was refused discharge, she responded by fabricating an allegation of sexual abuse (that idea having been planted in her mind by another patient that morning) in order to obtain discharge. While at first blush, this theory has some attraction, on analysis it does not seem viable.
It is not logical to suggest that because sexual abuse has occurred, the hospital's response would be immediately to discharge the patient. So the theory depends on the patient, a heroin user suffering from Post Traumatic Stress Disorder and other conditions, acting irrationally (as well as dishonestly) to that extent.
It also depends on a patient being prepared to make and maintain a false allegation over a three year period, and go through the traumatic process of giving evidence about it in the Tribunal. While Complainant 3 was 'dishonest' in falsely claiming to be suicidal in order to obtain admission, and exhibited some apparently manipulative behaviour as described above, that is quite a different thing to making and maintaining allegations of sexual abuse. She promptly recanted on her statements that she was suicidal. In contrast, she has adhered to her allegations against Mr Singh, long after she has ceased to have any motive for maintaining a false complaint. The theory postulated by the respondent relies on the notorious propensity for heroin users to do whatever it takes to get a hit. Here. however, it was far from clear that making an allegation of sexual abuse would achieve that outcome at that time. And now, over three years later, with Complainant 3 being heroin free, and having moved on in her life, it is significantly less probable that she would continue to maintain a false compliant.
Complainant 3's evidence was that while she was hazy about many of the events during her admission, she had a clear recollection of the things Mr Singh did in her bedroom, in effect because they were so unexpected and shocking. This evidence is believable in the circumstances.
The alleged inconsistencies in Complainant 3's recollection of various factual matters do not undermine her evidence, for the reasons detailed above.
Complainant 3 promptly reported the matters, and her father's evidence is corroborative in relation to her response to them.
In terms of the credibility of the evidence of Complainant 3 and Mr Singh respectively, the independent evidence of Ms Michael-Xavier is of great significance. As stated, we accept her evidence that she saw Mr Singh 'coming out of' Complainant 3's room (not just being in the vicinity of the doorway). Conversely, we reject the evidence of Mr Singh (who was not Complainant 3's treating nurse) in which he denied ever having been in her room.
The allegations of suggesting contact on the outside and close hugging, are bolstered by the similar evidence of Complainant 1. In relation to contact on the outside, Complainant 1 said Mr Singh joked about taking her phone number so he could contact her. She was alarmed at this prospect, even though it was supposedly made in jest. The remarks Complainant 3 reported Mr Singh as saying about contacting her had a similar effect. In relation to the hugging, Complainant 1 described Mr Singh as 'Invading my personal space again and bring in total fear of him going further than I wanted'[sic] while Complainant 3 said Mr Singh hugged her 'very closely'.[156] Each of these constitutes distinctive and remarkable behaviour for a nurse to engage in, in relation to mental health patients under his care. As such, Complainant 1's evidence is strongly probative of Complainant 3 in relation to these two matters.
Finally, the similar evidence of Complainant 2 bolsters Complainant 3's allegations that Mr Singh engaged in very similar conduct with her, namely touching her breasts, and kissing her on the lips and neck. In each case, this constitutes distinctive and remarkable behaviour for a nurse to engage in, in relation to mental health patients under his care. That similar evidence is strongly probative in relation to allegations 3.3 (c), (d), (e) and (f).

[221]

In broad summary, we have found allegations proved which allege Mr Singh engaged in the following conduct:
- Referred to contacting Complainants 1 and 3 outside the Unit;
- Attempted to touch Complainants 1 and 3 while they were talking on the phone;
- Told patients 1 and 2 he liked their tongue ring and was thinking of telling his girlfriend or someone to get one;
- Hugged Complainants 1 and 3;
- Made references to leg shaving, bra and tattoos in relation to Complainant 2;
- Placed his hands on Complainant 2's waist;
- Kissed Complainants 2 and 3 on the lips;
- Kissed Complainants 2 and 3 on the neck;
- Touched the breasts of Complainants 2 and 3;
- Requested Complainant 2 to go to her room with him;
- Pinched Complainant 3's cheeks and asked to see her tattoo;
- Entered Complainant 3's room without knocking, sat on her bed, grabbed and squeezed her hand, and called her a 'naughty girl'.
This conduct by a male mental health nurse against young female patients breaches fundamental standards applicable to a nurse regardless of his level of training or experience. It is a clear abuse of the power imbalance between nurses and patients, and hence a breach of a number of the Conduct Statements in the Australian Nursing and Midwifery Council's Code of Professional Conduct for Nurses, including Conduct Statement 8, relating to the preservation of trust and privilege inherent in the relationship between nurses and people receiving care.
The way in which the Board has framed the Notice of Allegations is to allege that Mr Singh is guilty of a single charge of professional misconduct and/or unprofessional conduct in relation to each of the three Complainants. In our view, this approach is appropriate. It would be artificial to make individual findings of professional misconduct and/ or unprofessional conduct in relation to each of the individual acts which have been found proved.[157] In the light of our findings, we have no hesitation in concluding that in relation to each of the three complainants, Mr Singh is guilty of professional misconduct.
This is on the basis that his actions in relation to all three complainants, in particular physical contact of a sexual nature, clearly constitute conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience (under (a) of the definition). Also, in relation to Complainants 2 and 3, Mr Singh's conduct falls within (c) of the definition. Given that mental health nurses must at times necessarily be alone with individual patients, it comprises a serious breach of the trust placed in Mr Singh to care for vulnerable patients, and so it is conduct that is inconsistent with him being a fit and proper person to hold registration in the profession.
A further hearing will be set down to consider the question of the penalty which should be imposed as a result of these findings.

Nursing and Midwifery Board of Australia v Singh

At a glance

Court

Decision date

Source

Judgment (280 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (6)

Nursing and Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1171 (16 September 2014)