Rivera v Health Care Complaints Commission

Court of Appeal (NSW)|2006-01-31|Before: Mason P, Santow JA, McColl JA, Coll JA

Background 12 The appellant was born on 18 April 1962 in Peru. He graduated in 1988 with the degree of Bachelor in Medicine from the National University "Federico Villarreal" at Lima, Peru. He practised for some time in that country. During his internship he did a three-month rotation in gynaecology and obstetrics during which he often conducted unchaperoned vaginal examinations of patients. He emigrated to Australia in 1992. On arrival he undertook a TAFE English language course which he passed in approximately 1994. 13 Thereafter he undertook and passed the multiple-choice preliminary test for registration as a medical practitioner conducted by the Australian Medical Council. He passed the clinical examination for medical registration in 1999. On 15 December 1999, he was conditionally registered as a medical practitioner. He was required under such conditional registration to undertake 12 months of supervised hospital training commencing on 10 January 2000. 14 Both incidents of which the respondent complained took place during the period of supervised hospital training. The following account is extracted from the Tribunal's Reasons for Determination.

Allegations re conduct at St Vincent's Hospital in February 2000 15 Complaints 1 and 2 concerned conduct the Tribunal found took place at St Vincent's Hospital in February 2000. 16 Patient A was admitted to St Vincent's Hospital on 11 February 2000 for a left hip replacement. She was under the care of Dr F Robertson, an orthopaedic surgeon. The appellant, who by that stage had been working as an intern at St Vincent's for approximately one month, was also involved in her care. 17 Whilst Patient A was in St Vincent's Hospital, the appellant visited her every day and sometimes twice a day. He visited her on 18 February 2000, the day before she was discharged. She was in a ward with four other patients. 18 Patient A had been taking hormone replacement therapy ("HRT") for ten years, but had ceased to do so on medical advice six or so weeks before her operation. When the appellant visited her on 18 February she asked him whether she should resume HRT. In the course of a discussion about the advantages and disadvantages of that treatment, the appellant mentioned vaginal dryness. Patient A suggested to the appellant that perhaps she should remain on HRT because of its assistance in dealing with that issue. She alleged that the appellant then drew the curtain around her bed, and conducted an examination of her vagina without seeking her consent and without wearing gloves, and without washing his hands. She also alleged he parted the labia of her vagina with his ungloved right hand, then inspected her vagina. He then said, "That looks okay", took her hand and squeezed it three or four times. Patient A said she was embarrassed by this and pulled her hand away. 19 Patient A said she was never asked to consent to the examination, but conceded that from the time the appellant pulled the curtains she knew he was going to examine either her breasts or her vagina and that from the time he asked her to part her legs, she knew he was going to examine her vagina. Patient A also conceded that she was content to consent to a vaginal examination. 20 A few days after her discharge from hospital on 19 February 2000, Patient A telephoned Dr Robertson and complained about the appellant's actions. Dr Robertson then contacted the clinical superintendent of St Vincent's Hospital, Ms Milne. A meeting was convened on 24 February 2000 at which the appellant was present as were Dr Robertson, Ms Milne and Dr Finckh, the Director of Clinical Training at St Vincent's Hospital. Patient A's allegations were put to the appellant and he responded. Notes of the meeting were in evidence before the Tribunal. 21 The Tribunal found from the notes and the appellant's evidence that he was informed: (a) that all physical examinations of patients should be justifiable and that the superficial examination he had conducted would not have given an appropriate indication of whether Patient A had vaginal dryness;

(b) that the reason for performing a gynaecological examination should be explained to the patient and the consent of the patient obtained prior to proceeding;

(d) that gloves should always be worn when body cavities were examined; and

(e) that hand washing should occur after all such examinations. 22 The Tribunal accepted from the notes that those present at the meeting were concerned the appellant's past practice in Peru may have contributed to his actions. They decided no further disciplinary actions would be taken against him, however, as the Tribunal found, he was "strongly informed of the seriousness of the episode and advised that such actions would not be tolerated in the future." 23 Before the Tribunal the appellant admitted he had examined Patient A's vagina, but denied touching her labia. He said he considered that examination was appropriate in the circumstance and had asked and, he believed, received her consent to the examination. He also admitted he had not worn gloves when he conducted the examination, did not have a chaperone present, made no notes of the examination or the findings and had patted Patient A's hand after the examination.

Allegations re conduct at Wagga Wagga Base Hospital on 17 and 18 September 2000 24 Complaints 3−5 related to conduct of which Patient B complained, alleged to have occurred while she was a patient in Wagga Wagga Base Hospital being treated for deep vein thrombosis. 25 At the time of her admission on 12 September 2000, Patient B was under the care of Dr Gamble. The appellant was working as an intern at the Hospital on secondment from St Vincent's Hospital and was also involved in her care. The appellant visited her at least twice a day, and sometimes up to four to five times a day, usually with a surgical registrar, but sometimes by himself. 26 Patient B alleged that between 4 and 5pm on Sunday, 17 September 2000, the appellant visited her by himself, pulled the curtains around the bed and felt her left calf. He then had her pull her knickers to one side and felt around her abdomen, her groin and the top of her leg. As Patient B was holding her knickers, the appellant was pushing them down. She asked him if he wished her to take them off. The appellant replied in the affirmative and Patient B then did so. 27 At this time Patient B said she was lying on her back. The appellant then put his hand on her left thigh and pulled on it. Patient B believed he wanted her to spread her legs and she therefore moved her left leg aside. The appellant then felt around her abdomen and Patient B heard the curtain pull back a little. She saw a head (apparently a nurse's) and, according to Patient B, the appellant turned around and glared at the person who backed away and shut the curtain. Patient B formed the belief from the expression on the appellant's face that he was angry at the interruption. The appellant then asked Patient B to sit up and he examined her chest with a stethoscope. He said, "that's fine" and left. Patient B noticed that the appellant took no notes of the examination and wore no gloves. 28 Patient B also complained that the appellant visited her, again by himself, on 18 September 2000 some time after 4pm. When he arrived he had no gloves with him. He closed the curtains. He did not ask Patient B whether he could examine her but she assumed he was going to do so. The appellant took out the cannula in her left wrist. He asked her if she had any itching or burning in the genital area. That had never been a problem for Patient B and she replied in the negative. He then asked how she was going and she complained that her left calf was really aching and that the more she walked the more it hurt. 29 The appellant then massaged Patient B's leg from the bottom of the calf up the thigh to the groin and started tugging at the side of Patient B's knickers. Patient B asked him whether he wanted her knickers off and he said "Yes". She then removed her knickers and put them on the bed. She noticed that the appellant glanced at them. Patient B then lay back on the bed and the appellant looked at her groin. He then asked the patient if she had anything else wrong and she replied that her back was sore. 30 The appellant then said he would rub Patient B's back and told her to lie on her stomach. This Patient B did and the appellant rubbed her back with a round massaging motion. Patient B then felt the appellant's finger on her anus and another beside her clitoris and the appellant then started to rub beside her clitoris. This lasted about 30 seconds. She felt shocked and stunned. Patient B then got a cramp on her back and rolled over. As she did so, she saw the appellant sniff his finger. He was not wearing gloves. Patient B put her knickers back on. The appellant asked, "Are you alright?" to which she answered, "Yes". The appellant then left. 31 Approximately one hour to an hour and a half later a nurse was feeding the old lady in the bed next to Patient B's. It was the nurse who had put her head through the curtains on the previous day. Patient B asked the nurse if she knew the name of the doctor. The nurse asked "Why?" and Patient B replied that she did not think his methods were above board. There was nothing else said. 32 The following day, 19 September 2000, the appellant visited Patient B and examined her. He asked whether she had any questions about her treatment. According to the Tribunal "Patient B who was frightened and wanted to get out of the hospital, replied 'no'". On the same day Patient B saw the appellant, Dr Gamble, the surgical registrar and a social worker together. She did not complain about the appellant's conduct of the previous two days, although she did appear to Dr Gamble to be distressed and upset. Dr Gamble asked Patient B whether she had any complaints about her treatment against the hospital and she said "no". Before the Tribunal she said she responded in this manner "because she was afraid, Dr Rivera was there and she just wanted to go home." Patient B was also seen by a social worker on the day of her discharge but made no complaint about her treatment at the hospital. 33 Patient B was discharged later on 19 September 2000. On 20 September 2000, she saw Dr Pitts, her general medical practitioner, and complained that a doctor at the hospital had molested her. Dr Pitts advised Dr Curtis, the medical superintendent at Wagga Wagga Base Hospital of the complaint on 21 September. Dr Curtis telephoned Patient B on 22 September to discuss the details of the complaint. 34 The appellant denied he had examined Patient B on 17 September 2000. He said he was not on duty that day. He also denied that he either massaged or examined Patient B's genital region in the manner she alleged. He admitted to having examined her on 18 September 2000 when no one else was present, but denied touching her genital region or massaging her back or legs. He admitted he had compressed and palpitated her leg from the calf to the inguinal area, and that he had not been wearing gloves at the time. He conceded he did not make entries in the notes of some examinations where there were no positive findings of such examinations. He accepted that the failure to make a note of his examination "was a gross error on his part and was not justified."

The Tribunal's Reasons for Determination 35 Having regard to the way the appellant puts his appeal it is necessary to set out the process by which the Tribunal reached its determination, particularly in relation to Patient B, in some detail. 36 At the outset of its Reasons, the Tribunal said that it had approached the matter on the basis that the respondent bore the onus of proving the complaint to its reasonable satisfaction on the balance of probabilities. It also said that in applying that standard, it had had regard to the gravity and importance of the matters to be determined in accordance with Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Alleged conduct at St Vincent's Hospital in February 2000 37 The appellant does not challenge the Tribunal's conclusion that complaints 1 and 2 were made out. He only challenges its characterisation of the conduct the subject of these complaints as professional misconduct, rather than unsatisfactory professional conduct. 38 The Tribunal's findings on these complaints are, however, relevant to the appellant's attack on its findings in relation to complaints 4 and 5 to the extent that the appellant challenges its use of its findings as to complaints 1 and 2 to assist its conclusion that complaints 4 and 5 were made out. 39 It is sufficient, in this respect to note that the Tribunal was satisfied to the relevant standard of all the matters specified in complaints 1 and 2 save that, in relation to paragraph 1(b), it was satisfied that although Patient A did not give her express verbal consent to the relevant examination, consent was impliedly given. Alleged conduct at Wagga Wagga Base Hospital on 17 September 2000 40 The Tribunal acknowledged there was "an irreconcilable conflict between the evidence of Patient B and the appellant" about the events of 17 September because the appellant denied being at the hospital that day. The Hospital's time sheets showed the appellant did not claim remuneration for working that day. His wife also gave evidence that the appellant spent the day with her and their children. 41 The Tribunal noted that Patient B "was also definite she was not mistaken as to the date of the relevant examination". Thus, although complaint 3 referred to the incident having occurred "on or about 17 September 2000", and the Tribunal was concerned that Patient B "might be simply mistaken as to the date", it concluded, having regard to the time sheets, that it could not be satisfied to the requisite standard that the appellant had examined Patient B on 17 September 2000" and, accordingly, was "not satisfied of the matters" in complaint 3. Alleged conduct at Wagga Wagga Base Hospital on 18 September 2000 42 The Tribunal observed that there was also "a clear conflict" between Patient B and the appellant concerning the 18 September examination. 43 The Tribunal accepted that, having found the events Patient B alleged occurred on 17 September 2000 did not take place, it must take that finding into account and the reasons therefore in determining whether the events of 18 September occurred. Nevertheless it held that it was satisfied to the requisite standard that the events Patient B alleged took place on 18 September 2000 did occur. 44 It reached that decision in the following manner. First, it accepted Patient B was an impressive witness, whereas it concluded the appellant's evidence, even allowing for possible language difficulties, was unimpressive. 45 Next, it said: "Secondly, the alleged acts of Dr Rivera on 17 September 2000 were very minor when compared with those alleged to have taken place on 18 September 2000. Indeed Patient B herself did not consider at the time that what Dr Rivera had done on 17 September 2000 was improper (T. 69.20 to 30). It seems plain to the Tribunal that it was only after the events of 18 September 2000 that Patient B realised Dr Rivera's actions on17 September might not have been proper. In those circumstances the Tribunal considers that whilst Patient B may have been mistaken in relation to the events alleged to have occurred on 17 September 2000 she is not likely to be in error in her account of the much more serious events of 18 September 2000." 46 It concluded, having regard to Mason P's observations in Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 91, that the events surrounding Patient A's complaint lent compelling weight to Patient B's complaint about the events of 18 September 2000. Those peculiar features were, in substance: (a) Both complainants were middle-aged women in hospital for non-gynaecological problems;

(b) The examination of Patient A occurred in the context of menopausal issues: the issues of HRT and vaginal dryness were raised with her - similarly Patient B alleged that the appellant asked her whether she had any itching or burning in the genital area (T 49.16-20). Further although the appellant denied discussing HRT with Patient B (T 318.46-55), he admitted he was present when it was discussed on her admission to hospital (T 318.18-35 and see also Patient B at T 86.30-87.55);

(c) The improper conduct alleged in relation to both patients took place after the appellant had attended and examined them many times over the previous few days and apparently gained their confidence;

(d) The appellant obtained no express oral consent from either patient prior to the commencement of the examinations; (e) The appellant touched Patient A's genitals with an ungloved hand; Patient B alleged he touched her genitals with an ungloved hand;

(f) The appellant made no note of his examination or findings of either patient; and

(g) No nurse or chaperone was present when Patients A and B were examined in the manner of which they complained and no attempt had been made to secure such a person prior to the examination. 47 The Tribunal also found that even if, contrary to its view, the facts of the events at St Vincent's Hospital were not of a sufficiently peculiar nature to lend compelling weight to proof of the events alleged to have occurred at Wagga Wagga Base Hospital on 18 September 2000, the two sets of allegations from unrelated persons had sufficient similarities to assist it in drawing the inference to the requisite standard that the acts alleged to have occurred on 18 September 2000 did occur. While it did not expressly say so, it presumably relied in this respect upon the matters it had identified as the peculiar features of each incident. In so finding it applied Mackenzie J's remarks in Purnell v Medical Board of Queensland [1999] 1 Qd R 362 to which Mason P referred with approval in Zaidi (at 92). 48 Mr P Boulten of Senior Counsel, who appeared for the appellant before the Tribunal, submitted that there was a serious issue of identification of the appellant as the perpetrator of the 18 September acts. He argued that even if the Tribunal was satisfied that the acts of which Patient B complained were committed on that day, it could not be satisfied it was the appellant, as opposed to some other intern, who was the perpetrator. The Tribunal noted that while Patient B did not identify the appellant by name or in person when she spoke to Dr Curtis on 22 September 2000 about her complaint, she had identified the perpetrator as the doctor who usually came with the surgical registrar to see her (T 64.50-65.35). It was by that means that Dr Curtis was able to identify the appellant. Patient B also believed that no other junior male doctor treated her whilst she was in the room where the alleged acts took place (T 62.54-63.16). Furthermore, the appellant conceded that he examined Patient B at approximately 4.30pm on 18 September 2000 (Ex A.1 para 21). In those circumstances the Tribunal did not consider there was an issue of identification in relation to the Patient B's 18 September 2000 allegations. 49 The nurse who allegedly interrupted the appellant's examination of Patient B on 17 September 2000, and to whom Patient B said she spoke on 18 September 2000, was not called. Mr Boulten submitted that the failure to call her gave rise to a Jones v Dunkel inference. The Tribunal said the respondent had educed evidence that the nurse was unable to be identified (T 142.35) which explained her absence and, accordingly, concluded no such inference should be drawn. It also said that even if it had drawn such an inference, when taken in combination with the rest of the evidence, any such inference would not cause it to come to a different determination. 50 Accordingly, the Tribunal accepted the evidence of Patient B as to the events which she alleged occurred on 18 September 2000. 51 The Tribunal made the following findings in relation to the particulars alleged in complaint 4: (a) As to sub-paragraph (a) - the Tribunal was satisfied to the requisite standard that Dr Rivera asked Patient B to remove her underpants and accepted Dr Rivera's evidence that there was no justification for such a request.

(b) As to sub-paragraph (b) - the Tribunal was satisfied to the requisite standard that Dr Rivera visually inspected Patient B's genital area without proper and clinical indications for doing so.

(c) As to sub-paragraph (c) - the Tribunal was satisfied to the requisite standard that Dr Rivera inappropriately rubbed Patient B's anus and clitoris.

(d) As to sub-paragraph (d) - the Tribunal was not satisfied to the requisite standard that Dr Rivera inappropriately massaged Patient B's legs, as it considered that what Patient B described as massage might well have been compression and palpation which would have been justified in the circumstance.

(e) As to sub-paragraph (e) - the Tribunal was satisfied to the requisite standard that Dr Rivera failed to adhere to standard infection control requirements in the conduct of his examination of Patient B by failing to wear gloves, but was not satisfied that he failed to wash his hands immediately before and after the examination, as there was no evidence of his failing to do so since Patient B was not in a position to observe his actions in relation to washing his hands either before or after the examination finished. 52 In relation to complaint 5 the Tribunal was satisfied to the requisite standard that the appellant failed to make a medical record of his examination of Patient B on 18 September 2000. The Tribunal was also satisfied that the appellant failed to make entries in Patient B's notes of other examinations of which there were no positive findings.

Characterisation of the appellant's conduct 53 Senior counsel for the appellant conceded before the Tribunal that if the allegations relating to his conduct at Wagga Wagga Base Hospital on 18 September 2000 were proved to the requisite standard, that conduct constituted professional misconduct. The Tribunal considered that concession was properly made and held that the appellant's actions on 18 September 2000 in relation to Patient B constituted improper and unethical conduct relating to the practice of medicine and constituted "unsatisfactory professional conduct" specified in s 36(1)(m) of the Act. It also held the "unsatisfactory professional conduct" was of a sufficiently serious nature to justify the appellant's suspension from practising medicine or the removal of his name from the Register of Medical Practitioners so that it constituted "professional misconduct": s 37 of the Act. 54 In relation to complaints 1 and 2, it was submitted on behalf of the appellant that even if the Tribunal was satisfied that the allegations had been proved to the requisite standard, his conduct did not amount to either unsatisfactory professional conduct or professional misconduct within the meaning of ss 36 and 37 of the Medical Practice Act 1992. Mr Boulten argued that not all errors of judgment will amount to lack of adequate knowledge, skill, judgment or care, by the relevant practitioner in the practice of medicine, relying upon Daskalopoulos v HCC [2002] NSWCA 200 esp per Hodgson JA at [59]. 55 The Tribunal was satisfied that the appellant's conduct on 18 February 2000 both demonstrated a lack of adequate knowledge, skill, judgment and care on the part of Dr Rivera and amounted to improper and unethical conduct relating to the practice of medicine so as to constitute "unsatisfactory professional conduct" within the meaning of s 36 of the Act. 56 It accepted the evidence from Dr Christie and of Dr Walsh that for a medical practitioner in a hospital to have deliberately touched a female patient's genitalia without using gloves was grossly improper and unethical, especially without a nurse being present. It also concluded the gravity of the appellant's misconduct was exacerbated by his failure to wash his hands immediately after such touching. 57 In determining whether the appellant's 18 February 2000 conduct amounted to "professional misconduct" within the meaning of s 37 of the Act, the Tribunal was conscious that despite his overseas experience he had been working as a medical practitioner for only one month at the time of the relevant conduct. It also had regard to the fact that the authorities at St Vincent's Hospital, whilst clearly regarding his acts as a serious breach of appropriate standards, decided to warn him against repetition of his actions and took no other disciplinary action. 58 The Tribunal noted that in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 (at 638), the Court of Appeal pointed out that the "gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards" and had said: "Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe." 59 On that basis the Tribunal also held that the appellant's conduct on 18 February 2000 represented a gross departure from proper standards and constituted unsatisfactory professional conduct of a sufficiently serious nature to justify his suspension from practising medicine or his removal from the register. Accordingly, although it did not say so in terms, the Tribunal found his conduct in relation to Patient A constituted professional misconduct: s 37 of the Act. 60 Having regard to the gravity of the appellant's misconduct on 18 February 2000 and the "further even more serious misconduct" committed on 18 September 2000, the Tribunal considered the protection of the public required the removal of the appellant's name from the Register of Medical Practitioners. 61 The Tribunal declined to make an order pursuant to s 64(3) of the Act that no application for review of its orders be made until after a specified time. 62 The Tribunal made the following formal findings and orders:

"(1) That the complaint that Dr Darwin Rivera has been guilty of professional misconduct is proved;

(2) That the name of Dr Darwin Rivera be removed from the Register of Medical Practitioners kept pursuant to the Medical Practice Act 1992 as amended;

(3) That Dr Darwin Rivera pay two thirds of the costs of the complainant of these proceedings; and

(4) That the Health Care Complaints Commission pay one third of the costs of Dr Darwin Rivera of these proceedings."

Grounds of Appeal 63 The appellant relies upon the following grounds of appeal:

That the Medical Tribunal erred in law in finding that it was comfortably satisfied that the appellant had been guilty of professional misconduct.

That the Medical Tribunal erred in law in that it did not correctly apply the principles in Briginshaw v Briginshaw .

That the Medical Tribunal erred in finding the appellant guilty of professional misconduct in respect of the allegations relating to particular 1 of the Complaint (the "Complaints") filed pursuant to s 51(1), Medical Practice Act 1992 as amended.

The Medical Tribunal erred in finding the appellant guilty of professional misconduct in respect of Complaint 3 relating to events of 18 September 2000 when it was not comfortably satisfied on the balance of probabilities that Complaint 2 relating to evidence of 17 September 2000 were proved and further that such finding was against the evidence and the weight of the evidence.

The Medical Tribunal erred in not taking in to [sic, the word "account" should presumably appear here] the assessment of Patient B lack of credibility in respect of its findings in respect of Complaint 3 after dismissing Complaint 2.

The Medical Tribunal erred in finding that there were particular features in respect of Complaint 1 that lent compelling weight to the proof of Complaint 3. 64 Despite the numerous grounds of appeal, Mr Boulten who again appeared for the appellant with Mr G Butler, frankly and properly conceded that the success of the appeal substantially turned on making good the challenge to the Tribunal's findings that complaints 4 (save as to subparagraph (d)) and 5 were established.

Submissions on appeal 65 The battle lines between the parties were starkly drawn: the appellant contended the Tribunal's reasons were tainted by errors of law. Mr M Joseph of Senior Counsel, who appeared for the respondent, submitted that none of the matters of which the appellant complained constituted an error of law but rather sought, impermissibly having regard to the scope of the appeal, to challenge findings of fact. 66 Mr Boulten relied upon the following matters as constituting errors of law in relation to complaints 4 and 5. 67 First, that in finding complaints 4 and 5 proved, the Tribunal gave insufficient weight to the appellant's "acquittal" on complaint 3 and undue weight to other factors. He contended that complaints 3 and 4 were interwoven as Patient B's evidence was that the doctor who examined her on 18 September 2000 was the same doctor who had examined her the day before. Once Patient B was found not to be a credible and reliable witness in relation to the 17 September 2000 allegation, he contended that a serious issue arose as to what weight, if any, could be placed upon her evidence in respect of complaint 4. Mr Boulten accepted that the Tribunal had acknowledged the adverse finding as to Patient B's credit in respect of complaint 3, but argued that thereafter it had misdirected itself as to the use of that adverse finding. 68 He submitted that notwithstanding its conclusion that complaint 3 was not established, the Tribunal had impermissibly, and illogically, "bolstered" Patient B's credibility by rationalising that her allegations in relation to 17 September were "very minor" so that while she "may have been mistaken" in relation to 17 September, she was "not likely to be in error in her account of the much more serious events of 18 September". He contended that this process of reasoning involved the Tribunal accepting that Patient B was correct in asserting that something had occurred on 17 September. This erroneous reasoning process was compounded by apparent reliance on the minor nature of the 17 September incident, to accept that something more serious had occurred on 18 September as to which Patient B's recollection was likely to be more accurate. 69 Mr Boulten also submitted that the matters upon which the Tribunal relied to reach its conclusion that complaint 4 was established (preferring Patient B as a witness, comparison between the conduct alleged to have occurred on the two days - minor as opposed to more serious - and compelling weight of Patient A's evidence) were equally available for its consideration of complaint 3. While he accepted those matters were not relied upon in relation to complaint 3 because, in the Tribunal's view, her evidence on the identification issue for 17 September could not be sustained, he argued that thereafter to use that evidence to "re-establish the credit of Patient B compounded the illogical fact finding process". 70 Insofar as grounds 2 and 4 were concerned, Mr Joseph submitted it was open to the Tribunal, as a matter of law, to reject Patient B's evidence of complaint concerning 17 September 2000 but find the complaint of 18 September 2000 proven. He also submitted it was open to the Tribunal to accept part of Patient B's evidence of 17 September 2000, reject the complaint and use some of the proven part of 17 September 2000 as foundation fact to find the complaint of 18 September 2000 proven. 71 Mr Joseph submitted there was a significant additional body of evidence other than that of Patient B upon which the Tribunal relied to justify its finding of the 18 September 2000 event. The first was that the appellant did not deny being at the hospital on that day, nor did he deny that he examined Patient B on that day. Accordingly, "identity" was not an issue in the same manner as the events of 17 September 2000. He argued it was open to the Tribunal to find it was satisfied to the requisite standard that the acts of which Patient B complained in respect of 18 September 2000 were committed by the appellant, despite its contrary finding in respect of the events of the previous day. 72 Mr Boulten also contended that it was an error of law for the Tribunal to embark upon the Zaidi line of reasoning without considering "the total picture". If approached in that manner he contended the evidence in relation to Patient A was either irrelevant, or only marginally relevant. He accepted that, consistently with Zaidi, the Tribunal asked itself whether Patient A's evidence lent compelling weight to Patient B's allegations concerning 18 September, but argued the Tribunal was required to weigh the dissimilarities, as well as the similarities, between their allegations. 73 He complained that the Tribunal had made no reference to significant dissimilarities. Thus he argued complaint 1 involved a consensual examination of Patient A with no element of sexual impropriety where the nub of the misconduct related to the appellant's use of an ungloved hand to conduct an examination that was not clinically appropriate and where he failed to wash his hands or make notes. Next he contended that Patient A thought that the examination the appellant conducted was proper, there was no overt sexual manipulation of her and, finally, that Patient A's complaint stemmed from the fact the appellant held her hand and spoke to her after the examination. In contrast, he contended, Patient B had given no consent to the examination on 18 September, had thought the appellant's examination of her improper at the time and as constituting sexualised conduct, and that there was, in fact, unambiguous sexual impropriety in the acts of which she complained. He submitted that this incident was significantly different from that alleged in complaint 1 and that evidence concerning it was not substantially and relevantly similar to the incident alleged in complaint 1. Nor, he submitted, did the evidence concerning complaint 1 have significant probative value in considering complaint 4. He contended that the substantial difference between complaints 1−2 and 4−5 was reflected in the Tribunal's recognition that complaints 4 and 5 were graver. 74 Mr Joseph submitted the Tribunal had correctly applied Zaidi and that it was required to do no more than identify the evidence it relied upon as supporting its findings. 75 Mr Boulten also addressed, albeit briefly, the issues of identification and the Jones v Dunkel inference. Neither was expressly raised in the Grounds of Appeal, however Mr Joseph did not object and they can be dealt with briefly. 76 Mr Boulten submitted that the manner in which the Tribunal dealt with each issue demonstrated errors of reasoning which constituted errors of law such that it could not have been satisfied that the respondent had established its case to the requisite standard of proof. 77 Insofar as the identification issue was concerned Mr Boulten submitted that the Tribunal had not directed itself about the problems associated with identification evidence. He also submitted that there was a body of evidence which suggested that Patient B may have incorrectly identified the appellant as the perpetrator of the acts of 18 September 2000. First, was the mistake she was said to have made about 17 September 2000. Next was the fact that she did not know the name of the doctor of whose conduct she complained, but was told the appellant's name by Dr Curtis. He argued that suggesting the name of the perpetrator to a witness carried a degree of danger where there was also evidence that suggested that the person had erred in identifying the perpetrator of an offence. 78 Insofar as the Jones v Dunkel inference was concerned Mr Boulten again submitted that the Tribunal had misstated the evidence concerning the outcome of the Jones v Dunkel inquiries. The Tribunal had recorded that those inquiries had been unsuccessful and the nurse was unable to be identified. Rather, he contended, Mr Sloane had in fact identified the nurses who were on duty at the relevant time, but could not identify one who supported Patient B's evidence and, accordingly, had not taken any notes of those inquiries and, hence, produced no evidence of those matters. Accordingly, he submitted, the Tribunal had erred in law in not drawing the Jones v Dunkel inference. 79 Mr Joseph relied upon the fact that the Tribunal concluded that even if it was to draw a Jones v Dunkel inference it would not come to a different determination. In addition he contended that whether a Jones v Dunkel inference was drawn was a question of fact which was solely within the Tribunal's province so that its refusal to draw such an inference did not give rise to an error of law. 80 Finally, Mr Boulten submitted that the evidence upon which the Tribunal relied to find complaint 4 established were matters of inexact proof, indefinite testimony and indirect inference and were not sufficient to displace its findings in respect of complaint 3: Briginshaw v Briginshaw.

Consideration 81 As can be seen the appellant does not allege there was no evidence from which the Tribunal could conclude that complaints 4 and 5 were made out. Rather he challenges the reasoning process by which the Tribunal concluded it was satisfied the complaints were established. 82 In this respect it is relevant to have regard to the following propositions extracted from Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155 -156 per Glass JA (with whom Samuels JA agreed): a The question whether there is any evidence of a particular fact is a question of law, (Sittingbourne Urban District Council v Lipton Ltd [1931] 1 KB 539 at 544 and Mersey Docks and Harbour Board v West Derby Assessment Committee [1932] 1 KB 40 at 110, 111); but if there is evidence of the fact, the question whether that evidence ought to be accepted in whole or in part, or ought to be accepted as sufficient to establish the fact, is itself a question of fact and not a question of law, unless there is some law which provides that the particular evidence, when given, is to be taken to establish the fact: b It is pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law": R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654. c A finding of fact may reveal an error of law where it appears that the trial judge has misdirected him or herself i.e. has defined otherwise than in accordance with law the question of fact which he has to answer. In the context of findings by the Workers Compensation Commission (as it then existed) his Honour said: "…a possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; 57 WN 53 at 55. 83 The position on proposition (b) was recently summarised by Wilcox, Gyles and Downes JJ in Citicorp Life Insurance Ltd v Smith [2005] FCAFC 102 at [13] as follows: "… at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place." 84 Finally, on matters of law, I would observe that even if an error of law is identified it cannot be reviewed on appeal unless it vitiates the ultimate decision: Minister Administering the Crown Lands Act v Deerubbin LALC (1998) 43 NSWLR 249 at 254 - 255 per Handley and Powell JJA. 85 There was much debate in the course of the appeal as to the true nature of the Tribunal's finding in relation to complaint 3. These ranged from the appellant's contention that the Tribunal had, in substance, rejected Patient B entirely in relation to that complaint to the possibility that it found only that the respondent had not discharged the burden of proof in relation to that complaint (but that this did not establish the converse - namely that nothing of the sort Patient B alleged occurred on that day) and finally, to the proposition that it concluded something of the sort Patient B alleged had occurred but not on 17 September, and that because of its comparatively minor nature compared to the 18 September incident, Patient B might have mistaken the date of the earlier incident. Mr Boulten submitted that having regard to the Tribunal's conclusion in relation to the time sheets, the third scenario would have been impermissible speculation on its part. 86 The Tribunal's reasons on this point (which I have earlier extracted in full) are not felicitously expressed. I am prepared to accept, for present purposes, the appellant's contention is correct and that the Tribunal rejected Patient B entirely on complaint 3. It is not entirely clear, either, that it nevertheless "found" acts of the nature Patient B alleged the appellant had occurred on an earlier occasion and used those to "bolster" its findings in relation to complaints 4 and 5. But, again, even if it did, that would not amount to an error of law, but, rather to want of logic, which did not, in my opinion vitiate the ultimate decision, as there was other material which the Tribunal correctly concluded supported its decision. 87 The first matter was that, overall, the Tribunal preferred patient B as a witness of truth. It did so after taking into account, in a way which discloses no error of law, its adverse finding on complaint 3. Like any tribunal of fact, it was entitled to accept Patient B's evidence in relation to complaints 4 and 5, even if it rejected her evidence on complaint 3. 88 Further, the Tribunal found support for the conclusion that complaints 4 and 5 were made out in the similarities between those complaints and Patient A's complaints. It applied Zaidi (at 90 - 92) in which Mason P (with whom Priestley and Powell JJA agreed) held, applying Purnell, that the principle applied in criminal trials, that similar fact evidence must be excluded if there was a reasonable view of the evidence consistent with innocence of the accused, did not apply to proceedings before the Tribunal. Having referred to the fact that under the Medical Act 1939 (Qld) a Supreme Court judge determined all questions of fact and law, whereas under the New South Wales Act fact finding is committed to the whole Tribunal (which includes a judge, two registered medical practitioners and a lay person - s 147(3)), his Honour said (in a passage set out in the Tribunal's decision): "This is a significant point of distinction. It suggests that it would be prudent for the judge presiding over a particular tribunal to consider directing his or her fellow members that they should exercise particular care to consider the evidence on individual charges separately , unless satisfied that there was no collaboration between the several patients and that the peculiar features of one incident (if proved) lends compelling weight to the proof of another ." (emphasis added) 89 Mason P also endorsed (at 92) the following passage from Mackenzie J's judgment in Purnell (at 379 - 380), which the Tribunal also fully extracted in its Reasons: "This is a case where identification of the person who allegedly did an act is not in dispute. The issue is whether the act complained of was done. Where this is the issue proof of the commission of an act on a particular person may become more certain if other witnesses testify that a similar act has been committed on them. Provided the complaints of the similar acts are made by witnesses who are truly independent of the complainant whose testimony is in issue, in the sense that collaboration between the complainant and the other witnesses and the possibility that the other witnesses' complaints are the product of suggestibility following the witnesses becoming aware of the complainant's complaint can be ruled out, it is unlikely that the various independent accounts are a coincidence. There may be some cases where other possible explanations consistent with innocence may need consideration, as in the present case where the effects of medication upon perception is an issue. If it can be excluded, the basic proposition stated above operates. The strength of the inference will depend on the facts of the particular case. The number of complaints is not of itself critical. One similar allegation containing the same peculiar feature or features may have considerable weight in supporting a complainant's evidence. On the other hand where acts alleged do not contain any particularly unusual features but are similar, the fact that there are a number of allegations from different persons may assist in drawing an inference that the act with which the court or tribunal is concerned occurred to the required standard of proof. There is no doubt a spectrum of circumstances which require consideration on a case by case basis between those two positions ." (emphasis supplied) 90 The Tribunal's explicit reference to these passages from Zaidi and Purnell demonstrate that it correctly directed itself in law. Further, save as to the issue of consent, Mr Boulten did not dispute that the Tribunal correctly identified similarities between the incidents concerning Patients A and B. In my view the fact that Patient A was held to have impliedly consented to her examination does not detract from the Tribunal's reliance on the absence of express verbal consent as having been a relevant similarity between the two incidents. 91 Mr Boulten's complaint is that the Tribunal failed to refer to the dissimilarities between the two incidents. He did not frame this argument as one of error of law constituted by inadequacy of reasons (cf Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247), but, again, by reference to its process of reasoning. In my view no error of law was identified in this respect. First, it might be noted, that the dissimilarities upon which Mr Boulten relied largely related to the respective patient's subjective consideration of the appellant's conduct. The Tribunal focused, correctly in my view, on the objective aspects of the allegations. The Tribunal plainly recognised that there were dissimilarities between the two incidents, not the least being that complaints 4 and 5 related to more serious conduct. In my view it did not err in law applying Zaidi and Purnell. 92 I turn to the appellant's submissions concerning the identification issue. None of these submissions, in my view, identified any error of law, but, rather, sought again, to challenge the process of reasoning by which the Tribunal concluded it was Patient B who identified the appellant in relation to 18 September 2000. Patient B identified that person to Dr Curtis as the doctor who usually came to see her with the surgical registrar. It was Dr Curtis who had then identified the appellant by name. 93 Mr Boulten acknowledged that it was open to both Patient B and Dr Curtis to reason that, if the person who usually turned up with the surgical registrar was the appellant then he was the person who had examined her, allegedly improperly, on 18 September. He argued, however, that the Tribunal relied upon Patient B's belief that no other junior male doctor had treated her whilst she was in the ward where the impugned examination was alleged to have taken place. Mr Boulten submitted, however, that at least one junior male doctor had treated her in the ward in which she was located when the impugned examination was alleged to have occurred. Even assuming that to be the case (although the Tribunal did not refer to such matters) the critical point is that, according to Dr Curtis it was the appellant who usually turned up with the surgical registrar. Further, the appellant conceded he had seen Patient B at approximately 4.30 on 18 September. She alleged the impugned examination took place sometime between 4 and 5 pm that day. The combination of those pieces of evidence supported the conclusion that Patient B had correctly identified the appellant. There was, accordingly, evidence to support her identification of the appellant. No error of law is disclosed. 94 The Jones v Dunkel point can be resolved by the Tribunal's conclusion, that even if it had drawn such an inference, it would not have come to a different determination. No error of law is demonstrated. 95 Finally no error of law is demonstrated in the Tribunal's application of Briginshaw v Briginshaw. This ground of appeal was addressed perfunctorily in the written submissions where it appeared intended as a catch-all - and indeed was used, inappropriately in my view, by Mr Boulten as identifying a basis for his arguments about identification on complaints 4 and 5 and Jones v Dunkel. The Tribunal directed itself at the outset that it had to be satisfied that the complaints were established to the Briginshaw standard. There is no indication it failed to discharge that obligation. 96 In my view the appellant's challenge to the Tribunal's findings in relation to complaints 4 and 5 fails.

Complaints 1 and 2: characterisation of the appellant's conduct 97 It remains only to consider the challenge to the Tribunal's characterisation of the appellant's conduct insofar as complaints 1 and 2 were concerned. Mr Boulten submitted that the Tribunal erred in finding the appellant's conduct in relation to Patient A constituted professional misconduct in that insufficient weight was given to the following matters: a) that there was no evidence nor was it ever part of the respondent's case that there was any sexual impropriety in the conduct alleged;

b) whilst there was no oral consent, the Tribunal held that there was implied consent;

c) that the appellant had only been working for one month as an intern at the time of the relevant conduct;

d) that the respondent tendered Peer Review Reports from Dr Bourke and Dr Saunders and that their assessment of his conduct was it would meet with disapproval in the mild to moderate degree. 98 Mr Boulten further submitted that the Tribunal's findings were of errors of judgment by a reasonably inexperienced intern. In such circumstances, he argued, the appellant's conduct did not constitute unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or removal of his name from the Register, and, accordingly the finding that his conduct amounted to professional misconduct was erroneous. 99 Mr Joseph submitted that in characterising the appellant's conduct, the Tribunal was entitled to prefer the evidence of Dr Christie (Blue 108-118), Professor Saunders (Blue 136-137) and Dr Walsh (Blue 25-34) to that of Dr Bourke in relation to the necessity for Patient A's examination. In addition, the Tribunal had preferred the views of Dr Christie and Dr Walsh over Professor Saunders with regard to the conduct of the appellant "as a whole". (Red 32 S-U) 100 Mr Joseph submitted that the Tribunal's finding that the appellant's conduct constituted "unsatisfactory professional conduct" was a finding of fact. He argued that it was not appropriate to seek to diminish the seriousness of the appellant's conduct by reference to the fact that he was a "reasonably experienced intern" having regard to his "overseas experience" before he came to Australia (Red 6-7, Red 33). 101 As I have noted the appellant's submissions concerning the characterisation of complaints 1 and 2 were faintly put, particularly in the eventuality, now a reality, that his challenge to the finding on complaints 4 and 5 failed. In Lindsay v Health Care Complaints Commission ([46]) Hunt AJA said "this Court would have to act very cautiously in making its own characterisation of conduct established to the satisfaction of the Tribunal where there was room for different views on the subject." The appellant has not demonstrated any error in the Tribunal's characterisation of his conduct on complaints 1 and 2 which would attract appellate intervention.

Order 102 The appeal should be dismissed with costs. **********

03/08/2006 - date on cover sheet should read 2/8/06 - Paragraph(s) cover sheet

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Medical Act 1939(Qld)

CITATION: Rivera v Health Care Complaints Commission [2006] NSWCA 216 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Citicorp Life Insurance Ltd v Smith [2005] FCAFC 102 Daskalopoulos v HCC [2002] NSWCA 200 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 House v The King (1936) 55 CLR 499 CASES CITED: Jones v Dunkel [1959] HAC 8; 101 CLR 298 Lindsay v Health Care Complaints Commission [2005] NSWCA 356 Minister Administering the Crown Lands Act v Deerubbin LALC (1998) 43 NSWLR 249 Purnell v Medical Board of Queensland [1999] 1 Qd R 362 R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82

(1) A person about whom a complaint is referred to the Tribunal, or the complainant, may appeal to the Supreme Court against: (a) a decision of the Tribunal with respect to a point of law, or (b) the exercise of any power by the Tribunal under Division 4 (Disciplinary powers of Committees and Tribunal) of Part 4." 10 The appellant's appeal invokes both sub-paragraphs of subs (1). His appeal under subs (1)(a) is confined to error of law. An appeal under s 90(1)(b), on the other hand, is "a general appeal which is not limited to a point of law … [although], in general, the Court does not go beyond the facts found by the Tribunal". However, "… as the order made by the Tribunal [is] discretionary in nature, the appellant must demonstrate in one of the ways referred to in the joint judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505 that the discretion miscarried": Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [6] - [7] per Davies AJA with whom Beazley JA agreed; see also Lindsay v Health Care Complaints Commission [2005] NSWCA 356 at [42] per Hunt AJA (with whom Mason P and Hodgson JA agreed).

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