Legislation cited: Health Practitioner Regulation National Law (ACT) s 156

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020

Cases cited: Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112

Hocking v Medical Board of Australia [2015] ACAT 22

Helmy v Medical Board of Australia [2016] ACAT 71

I v Medical Board of Australia [2011] SAHPT 18

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Medical Board of Australia v Speldewinde [2014] ACAT 27

Nathem Al-Nasser v Medical Board of Australia [2019] ACAT 110

Reeve v Aqualast Pty Ltd [2012] FCA 679

Sami v Medical Board of Australia [2021] VCAT 447

Tribunal: Senior Member G Lunney SC (Presiding)

TRIBUNAL: Senior Member G Lunney SC (Presiding)

1. There shall be no public access to the Tribunal file, the transcript or the audio recordings of the hearing or any earlier directions or other hearings in the proceeding.

2. Publication of the names or any identifying details of the complainant and witnesses (other than the applicant) and/or the medical records of the complainant referred to in the application is prohibited.

3. The decision under review is set aside and the following orders substituted.

4. The practitioner is directed to undertake educative courses and programs agreed to by the parties.

5. Should the parties be unable to agree as above within 21 days of the date of delivery of decision, then they have liberty to list the matter for directions as to suitable courses and/or programs.

1. This is an application for review of an administrative decision. It was a decision made to take immediate action under section 156 of the Health Practitioner Regulation National Law (ACT) (National Law) to impose gender based restrictions on the applicant's practice. His application for review was heard by the ACAT on 2, 3, and 15 September 2021.

2. Dr Geoffrey Speldewinde (Dr S) is a medical specialist in the ACT practising in pain and rehabilitation medicine. He obtained his medical degree in 1981 and his fellowship in 1990. In 2019 he held an appointment as a visiting medical officer at the Calvary John James Hospital (CJJH) in Deakin in the ACT. A female patient (Ms F) came under his care in the hospital in June 2019. The hospital notes indicate that he saw her for the first time on 14 June 2019.

3. Ms F submitted a complaint to AHPRA in the ACT on 25 March 2021 relating to the behaviour of Dr S whilst she was a patient in the hospital. The behaviour complained of started when she said he showed inordinate interest in her having reported sexual abuse during her childhood and progressed with uninvited and resisted conversations with sexual content. This caused her extreme distress and fear. She also described an occasion on which there was an attempt to unnecessarily physically examine her which she actively resisted.

4. The Medical Board of Australia (the Board) proposed that it should take immediate action pursuant to the National Law, and issued the required notification to Dr S by letter on 10 May 2021. His solicitors responded on 14 May 2021, and the Board determined to take immediate action and imposed gender based restrictions on his practice with effect from 18 May 2021.

6. Both Ms F and Dr S gave evidence at the hearing. There was no other oral evidence given and the remaining evidence was documentary. A great deal of the hearing time was occupied by the evidence of Ms F and Dr S.

7. The hospital notes indicated that Ms F had undergone orthopaedic surgery on her left knee early in May 2019 and had suffered lower back pain after that. She had been brought in to CJJH by ambulance in the afternoon of 12 June 2019 for investigation of lower back pain.

8. She was seen by the orthopaedic surgeon on the next day, 13 June 2019, an MRI was done and she was referred for rehabilitation.

9. The notes indicate that she saw Dr S on 14 June 2019 for the first time, and his report of the consultation timed at 17:38 was brief. She said that it lasted 2 hours and 20 minutes. She said that she made a formal complaint after that, but no mention of that is made in the notes. A nursing note timed at 22:57 records a statement about Dr S made to nursing staff that Dr S had dismissed her back trauma as an emotional problem and she did not trust him because he had not made a clinical assessment of her and that she would not accept him as her doctor.

10. Dr S had prescribed Clonidine which, according to the notes, had been commenced on 14 and continued until 15 June 2019. A nursing entry of 13:50 on 16 June 2019 indicates that Ms F said the medication makes her sick and was contraindicated to medications she was taking. This was brought to Dr S' attention by staff on 16 June 2019 and the medication was to be withheld that night.

11. The same nursing entry of 16 June 2019 indicates that Ms F had "refused the care under [Dr S], requested change of care, informed pt to D/W NUM [(nursing unit manager)] tomorrow morning".[1] An entry in the notes of 13:54 on 17 June 2021 indicates that Dr S saw her that day. The notes indicate there was discussion of her dissatisfaction with his care, and his prescription of Clonidine.

12. Section 156 of the National Law as presently applicable to the circumstances of this case is set out below:

_(1) A National Board may take immediate action in relation to a registered health practitioner or student registered in a health profession for which the Board is established if - _

_(a) the National Board reasonably believes that - _

(i) because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and

(ii) it is necessary to take immediate action to protect public health or safety; or

(e) the National Board reasonably believes the action is otherwise in the public interest.

13. The task to be undertaken by the Board under this provision was explained by General President Crebbin in Hocking v Medical Board of Australia [2015] ACAT 22 (Hocking) as follows:

The criteria are different from those relevant to a tribunal's consideration of a referral of a matter relating to the practitioner's professional performance or conduct. Immediate action is intended to provide an immediate response to an identified risk for the purpose of safeguarding public health or safety pending further investigation of a notification and where appropriate, referral to a tribunal for consideration of action to address performance, conduct or impairment more generally. In this case, there has been an investigation of the matters raised in the Notification and a referral to the tribunal which is set down for hearing in coming weeks.[2]

14. In the case of Helmy v Medical Board of Australia [2016] ACAT 71, Presidential Member Daniel was of the same view, expressed slightly more positively:

By agreement of the parties there was no cross-examination of witnesses as to the facts of the alleged incidents. This approach is appropriate, for at least two reasons. First, the nature of the decision under section 156 of the National Law does not require the decision-maker to determine what has happened in relation to the current notification but rather to form a view as to risk, and then consider what, if any, action should be taken to address that risk. Secondly, the question of what, if anything, occurred during each incident may ultimately fall to a future tribunal or a Court to determine.[3]

15. The same view was expressed in a South Australian case of I v Medical Board of Australia,[4] where it was argued as the applicant has done here that the Board had failed to establish any proven conduct that would justify immediate action. The Board also argued that whilst it might be true that much of the alleged conduct of the applicant might be disputed, it was no impediment to the Board (or this Tribunal) taking action under section 156. The South Australian Health Practitioners Tribunal concluded at paragraph [26] that:

The Tribunal approaches the matter on the basis that an immediate action order does not entail a detailed enquiry by the Board or by this Tribunal. It requires action on an urgent basis because of the need to protect the public. This is clear from s 156 which requires action where there is risk to a person or the need to protect public health or safety.

16. This statement of principle was accepted by this tribunal in Nathem Al-Nasser v Medical Board of Australia.[5] There the tribunal agreed with a submission that it would be an insurmountable barrier if a patient's evidence in sexual misconduct cases had to be supported by attending corroborating witnesses. It's not clear whether this view is authoritative since corroboration did not seem to be an issue.

17. In the course of submissions in this case, the Tribunal was also referred to a Federal Court case of Reeve v Aqualast Pty Ltd[6] in which the meaning of reasonable belief was explained as being an objective test and:

While the notion of reasonable belief may set the threshold "at quite a low level" there must be some tangible support that takes the existence of the alleged right beyond mere "belief" or "assertion".

18. In Hocking, General President Crebbin at [15] said the following in relation to reasonable belief:

The respondent's submissions described the requirement that a reasonable belief be formed before action is taken as setting a low threshold. That is certainly the case compared to the level of certainty required to make a decision beyond reasonable doubt, or on the balance of probabilities. It is, as the respondent says, consistent with a legislative scheme providing for preliminary assessment, immediate protective action, further investigation and where appropriate, referral for orders in the nature of disciplinary orders. However, the Tribunal accepts the applicant's submission that for a decision to suspend, the probative value of the evidence relied on should be at the high end of the scale.

19. Without directly quoting from it, the Tribunal was also assisted by the decision of Sami v Medical Board of Australia [2021] VCAT 447 and the principles there set out.

21. After an orthopaedic procedure at CJJH Ms F was left with unexpected lower back pain. On 12 June 2019 she was transported by ambulance from her home to CJJH where she was admitted under the care of Dr A for investigation of her lower back pain. She was reviewed by Dr A on 13 June 2019 and blood tests and an MRI were ordered.

22. The MRI was reviewed on 13 June 2019 by Dr B who had been involved in her original operative treatment. He advised rehabilitation and physiotherapy. She was also seen by Dr C in relation to a possible infection. He advised observation of her temperature. She was referred for rehabilitation on 14 June 2019, physiotherapy had been commenced and was ongoing. That day Ms F made some complaints about her care to the nursing unit manager (NUM) noted at 15:05 on 14 June 2019.

23. Presumably in response to the rehabilitation referral Ms F was seen by Dr S in the afternoon of 14 June 2019 noted at 17:38. The note by Dr S reads:

have made initial contact and preliminary assessment this evening.

24. The next entry in the hospital notes is by a registered nurse (Ms T) and is timed at 22:57 on 14 June 2019 (It was not until 15 June 2019 that she was transferred to the rehabilitation ward - see note 14:03 15 June 2019 T Documents page 96). Her note refers to Ms F requesting to see pastoral care at 19:15 and said that she had previously made the request to an assistant in nursing at 17:00 without response. Ms T discussed the situation with her sympathetically and she noted that Ms F was angry that Dr S had dismissed her back trauma as an "emotional problem". Ms F also said that she did not trust him as he had not done a clinical assessment of her. She would not accept him as her doctor and that she wanted to be transferred to a hospital in Sydney. Ms T said she would discuss this with Dr A. There was discussion of possible avenues of future care without positive resolution but involvement of Ms F's GP was suggested. Sometime after the initial conversation Ms F located Ms T away from her room and said that she was going to "grab [Dr S] by his beard and make him do a proper assessment of me".[7] After that Ms T noted that Ms F appeared settled.

25. Ms F returned to her room and slept, being checked regularly. In the morning she reported that she had slept well. During the day she was transferred to the rehabilitation ward. The nursing note of 15 June 2019 14:03 reads:

Transferred to Deakin ward and handover given. .... Patient was happy to see the phsio in Deakin ward. Nil complaints voiced at the time of transfer.[8]

26. The transfer to the rehabilitation ward happened at about noon. Dr S made an entry at 17:26 after seeing her. An entry at 20:57 on 15 June 2019 indicates that she was seen by Dr S.

27. A note at 06:27 of 16 June 2019 records some comfort complaints and "lowish BP but mews 0". A note at 07:26 indicates that Ms F wished to see the NUM and an arrangement was made for the next day.

28. A note at 13:50, 16 June 2019 records BP of 120/81 which the Tribunal takes to have been within normal limits. However the same note records the following:

Pt stated the new medication started yesterday (clonidine 25mcg) makes her sick and it is contraindicated to a few meds she is already on (pt got this information from GOOGLE)

Same informed [Dr S], Tab Clonidine to withhold tonight as per VMO.

Pt refused the care under [Dr S], requested a change of care, informed pt to D/W NUM tomorrow morning.

29. Early the next day 'lowish BP' was again recorded. She continued to undertake physiotherapy. She was seen by a pastoral carer noted at 12:06 and reported being emotionally overwhelmed.[9]

30. On 17 June 2019 at 13:44 there is an entry of handover from night staff, followed by a note by Dr S following a consultation with entry in notes timed at 13:54. He noted that "BP often low without Karvea" which the Tribunal understands to be an anti-hypertensive medication. It also records "her dissatisfaction with my care of her". Issues they discussed in that context included Dr S taking her history of urinary tract infections (UTI), and his reasons for prescribing Clonidine. He records that he will not see Ms F again unless there is a medical issue but refers to a case conference tomorrow, and "d/c Wednesday agreed". Wednesday was a reference to 19 June 2019, a date previously referred to as a likely discharge date.

31. That entry was followed by a note by Ms N, the NUM for the ward timed at 15:24. This records discussion with Ms F about her possible discharge arrangements. A later nursing entry timed at 23:28 17 June 2019 records Ms F having refused to see Dr S and transfer of care to Dr D a rehabilitation specialist.

32. After that there was a focus on physiotherapy with continuing medication. A note by Dr D on discharge on 19 June 2019 indicates that an anti-hypertensive medication was withheld and Ms F was to self-monitor her blood pressure.

33. The notes record three physical visits by Dr S and one telephone attendance with staff to advise withdrawal of Clonidine.

34. The Tribunal turns now to the evidence given by firstly Ms F and then Dr S.

35. The notification by Ms F was recorded on 25 March 2021. Her complaint is recorded on an APRHA form.[10] The form contains a blank area with the question above it "Please describe what occurred". It is quite a long account. There she describes her admission to the hospital and says that her first consultation with Dr S lasted 2 hours and 20 minutes. During the consultation he dwelt on a history of childhood sexual assault requesting minute details. Other sexual matters were discussed. She became extremely distressed. She asked to be moved to another hospital and made a formal complaint. He persisted in unwanted offensive behaviour on other visits to her room one of which was witnessed by a visiting friend. He wouldn't let her leave the hospital. She said he had an uncontrolled sexual obsession with her. She was told that the hospital could not stop Dr S seeing her because he was on contract. The experience had caused her long term trauma.

36. This was followed by the taking of a 'Notifier Statement' on AHPRA stationery. This is undated, is five pages long and contains 37 paragraphs. She describes being pressed for sexually intimate information with intrusive and irrelevant questions, refusal to have regard to the MRI results, refusal to comply with her pleas to stop, and his sexual titillation. She also said that on the first visit he wanted to examine her for UTI and asked her to lift her nightdress. She refused, and waved him away with an envelope. She described transfer to the rehabilitation ward the next day which she described as 15 June 2019. She said she was visited again by Dr S on 17 June 2019 when he held her hand. She told him she did not want to be treated by him and to go away. She complained to the NUM.

37. She said he returned on 18 June 2019 when he was followed by the NUM. He prescribed an anti-hypertensive against her protests that she was already taking another. This led to her being unable to get out of bed the next morning because her blood pressure was so low.

38. She said she spoke to the NUM again the following day. The same day she was visited by a friend and Dr S arrived in her room. There was further unwanted conversation. She emphasised her distress as a result of Dr S's behaviour.

39. Prior to the hearing a further statement was taken from Ms F, filed and tendered at the hearing. Ms F said that she had been served with a subpoena to produce documents and she had realised that there were some errors in her earlier statements as well as some details that she had not previously mentioned.

40. A detail she does mention in the Notification Statement is that Dr S visited her in the rehabilitation ward. She was shocked and described his visit as not medical in nature but extremely personal. At some point after one of the visits she spoke to the NUM, Ms N. She was very upset and felt that Ms N had noted her level of distress. She told Ms N that she did not want to be treated by Dr S but is not sure whether she mentioned to Ms N the sexual nature of Dr S' behaviour.

41. She was called to give evidence and gave an account of the admission firstly to the surgical ward and then to the rehabilitation ward and her dealings with Dr S. She was then cross-examined and in the course of that referred to Dr S masturbating in her room.[11] This was the first time that such an allegation had been made. This caused an evidentiary hiatus, and the parties consented to an agreed fact that Dr S denied that allegation. Dr S denied all allegations by Ms F and was cross-examined.

42. It is clear on the authorities that this Tribunal's task is to determine whether a risk exists which requires immediate action pursuant to section 156. If the Board decides to commence proceedings after the enquiry or investigation which has been commenced, then the exact nature of the conduct will be the subject of determination. However, section 156 links risk to conduct of the practitioner, so that this Tribunal must make an assessment of the conduct alleged sufficient to make its assessment of risk. The assessment of conduct depending on the circumstances may be quite basic, but the nature and gravity of the conduct will be relevant to determination of the nature and degree of risk of harm to others and the community.

43. The complaint and its surrounding circumstances as outlined above can be divided into two streams for the purposes of analysis of risk arising from behaviour. The first of these arise from the alleged unwanted sexual behaviour. The second is the nature and method of the history taking.

44. There are a number of matters which the Tribunal finds significant when analysing any risk arising out of the alleged sexual behaviour. They are not necessarily of equal weight and are set out in random order.

45. The first of these was that Dr S denies every relevant aspect of Ms F's claims. His solicitors wrote maintaining that position immediately upon the requisite notice being given to Dr S giving a detailed account of his version of events. This was augmented by a witness statement filed in the proceedings, and he gave evidence and was cross-examined.

46. The reporting of the claimed behaviour was a complicated process culminating in the notification not being made to the Board until 25 March 2021. Ms F maintains that she made a complaint to the hospital on the night of 14 June 2019 just after the occurrence of the visit by Dr S. There is no hospital record of this. The hospital records show upset and anger at the prescription of Clonidine by Dr S. The records show the withdrawal of that by Dr S after two administrations.

47. Ms F was discharged on 19 June 2019. Subpoenaed documents produced by CJJH being email correspondence with Ms F, indicate that Ms F lodged an online complaint through their online portal on 18 July 2019. This made a number of complaints about her stay in the surgical and rehabilitation wards of the hospital. She was promised a response within 35 days.

48. On 11 August 2019 she emailed saying that she wished to add certain events which she did not wish to describe in writing. This was responded to on 14 August 2019.

49. In an email of 8 November 2019 she referred to Dr S by name in the context of his asking her intrusive and irrelevant questions about her past:

Why did [Dr S] attempt to diagnose the pain as psychological and with intrusive and irrelevant questions about my past, while refusing to see the results of the MRI taken that morning which showed the recent trauma fracture and other damage which clearly explained the pain.

50. In the same email Ms F questioned why Dr S had been permitted to repeatedly enter her room despite her vigorous refusal to have him treat her further.

51. In an email of 28 January 2020 she said that after she had made a complaint to the duty staff in the surgical ward, they assured her the complaint would be followed up. She continued:

It is possible that now staff are aware of the problem, it may not occur again. But this is the first time that I have been told the hospital is not responsible for the doctors on duty.

52. This statement appears to conflict with her earlier evidence that she was informed of this by the nurse unit manager.[12]

53. On 3 August 2020 at 09:58,[13] Ms F wrote that the hospital was not taking responsibility for a doctor's actions. She also said that she did not want her particular issue followed up, but was concerned about hospital policy.

54. On the same day at 12:58 having received a response to her earlier email at 12:47, she wrote saying that she had made four formal complaints about the doctor's behaviour: two in hospital and two to a staff member who has resigned. Then:

I don't wish to make another complaint, as I suspect the behaviour will not be repeated...[14]

55. In continuing emails in 2021 Ms F refers to a sexual assault by a staff member. In the above referenced email she says:

As a Calvary patient in 2019 I was sexually assaulted by a member of staff. I reported at once and asked to be transferred to another hospital as I no longer felt safe. Instead I was kept for another week, with no doctor signing my release despite there being no medical reason for my continued stay.

56. It is apparent that she bundled up her dissatisfaction with Dr S with a significant number of other complaints. In doing so she expressed an intention to discontinue, and at least in writing, did not disclose sexual content until late in that process. This raises substantial issues about the nature and severity of the subject of the complaint.

57. Remaining on the subject of her correspondence with CJJH, there are a number of references to a friend having been present and witnessing the complained of behaviour. In an email to CJJH of 14 August 2019, she complains of having made five complaints about a member of the medical staff:

... after his first visit there should be a record on my request to leave the hospital at once and to be transferred elsewhere, so that I did not have to face him again.[15]

58. She then refers to his being able to access her room at any time which was at the end of a corridor where "neither my cries for help nor those of my neighbours were heard or acted upon". She then says:

If you merely wish to insist that conditions are and have been adequate and that the events did not take place, please don't bother. I emailed about them as they happened; one of the doctor's visits was witnessed by a friend who refused to leave at his request;...[16]

59. There is a further reference to a friend in an email of 28 January 2020, and one of 1 March 2020 where she says after referring to sexual harassment by a doctor:

It should be noted that this behaviour was witnessed by one of my visitors. Her response was 'Did that really happen? I have never seen anything like that in my life'.[17]

60. Ms F also referred to the presence of a friend in her original report form of 25 March 2021. She says:

He also arrived one afternoon when close friend as [sic] there. he asked her to lave [sic]. She replied 'I don't think so'. Despite her being in the room he continued an intimate and sexual conversation despite my telling him once again that he was mistaken.[18]

61. There is further detail of the presence of this witness at paragraph 30 of Ms F's notifier statement where she names the friend.[19]

62. Mr Crowe made the point in his address that due to the operation of rule 130 of the ACAT Procedures Rules,[20] the respondent is obliged to produce every document in its possession and control, so it can be assumed that there is no witness statement available.

63. The evidence of Ms F indicates that the witness could potentially give relevant evidence and was a friend. Ms F is a witness in the case and not a party, however the respondent has an investigative function and the duty imposed by rule 130 of the ACAT Procedures Rules 2020. It could be expected that the respondent would be the party which would call the witness, and the evidence indicates that it should be relatively easy for the respondent to locate the witness and take a statement. No explanation has been given for the absence of the witness.

64. These are circumstances which give rise to a Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel) inference that the evidence of the absent witness would not assist the party not calling him or her. Three conditions apply: first, whether the uncalled witness would be expected to be called by one party rather than the other; secondly, whether his or her evidence would elucidate the matter; thirdly, whether his or her absence is unexplained.

65. In Chetcuti v Minister for Immigration and Border Protection,[21] the Federal Court said about the origins of the rule:

The rule in Jones v Dunkel has been described as an application of the principle in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65 that, "All evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted". It was entirely within the knowledge of the Minister and his advisors as to when he began his consideration of the material, and it was within his power to produce direct evidence as to that matter.[22]

66. The issue of whether the complained of behaviour occurred has been prominent in the hearing of this application. The applicant denies that it occurred and the applicant's case has proceeded on that basis. While assessment of risk is the focus of the case, the strength of the evidence relating to the allegations is a significant factor. The Tribunal draws the inference that the uncalled witnesses' evidence would not assist the respondent.

67. The clinical notes make no mention of the alleged sexual behaviour of Dr S nor of any complaint by Ms F about it. The notes do indicate that she complained of his dismissing her back trauma as an emotional problem; that she did not trust him because he had not done a clinical assessment of her; and she would not accept him as her doctor. Transfer of her care was transferred to another rehabilitation specialist. They also show that she was concerned with his prescription of Clonidine.

68. Ms N says in paragraph 14 of her statement[23] that she never witnessed inappropriate behaviour nor received complaints from staff or patients about Dr S' behaviour. She does not support the evidence of Ms F and was not called. In particular, Ms F alleged that Ms N made sure that she was not left alone with Dr S in an email to the hospital of 16 March 2021.[24]

69. The clinical notes that Dr S first saw Ms F on 14 June 2019 and this was the commencement of the alleged sexual behaviour. In her notification,[25] she describes herself as being in tears after this. In her notifier statement,[26] she describes herself as being in distress during his visit, being in tears and slightly hysterical. She said she was in great pain and great distress. At page 19 she said that after the encounter she had described with Dr S, she felt exhausted and hysterically upset.

70. The Tribunal takes the view that the above description of the events involving Dr S is inconsistent with the tenor of an email to a friend apparently dated 14 June 2019 and untimed. It commences with the letters SW which the Tribunal interprets to be shorthand for 'Spoke with':

SW the rehab guy who is obviously trying to wriggle out of any culpability for the hospital and didn't even do a clinical assessment. He was more eager to find an emotional problem. He said the symptoms don't fit a fractured spine even though the fracture is on the scan but didn't have time to tell me what he thought was the problem... Am trying to see Pastoral care now to see if I can be transferred [away] from here. I simply don't trust them and don't feel safe which the last doctor would dieters on as my emotional state, not what I am ging through. I'm angry. ...

But I am now angry and will demand a profession assessment tomorrow. I am actually furious, finally. I have never done this on my own behalf before, only for others.[27] [errors in original]

71. An indicator of nature and extent of risk is the period of approximately one year and nine months that elapsed between the alleged event and the notification being made to AHPRA about it.

72. At T Documents pages 258-9 two previous notifications were recorded. Both were classified as sexual misconduct. The matters were investigated and disciplinary proceedings commenced by the Board. They concerned inappropriate behaviour during consultations in his rooms. They were admitted by Dr S and consent orders made by ACAT on 28 April 2014. In relation to both cases one which happened on 22 July 2010 and the other 10 February 2011, a finding was made that: during consultation Dr S was too familiar with his language at time, including initiating unwelcome conversation. In the earlier one an additional finding was made that Dr S: touched her in a manner that was not sufficiently careful (but was not deliberately inappropriate).

73. A finding of unsatisfactory professional performance was made, and Dr S was reprimanded in respect of his professional performance on each consultation.[28]

74. There is a remaining notification that relates to a complaint by a patient of Dr S identified as CL. It was submitted on 12 March 2020, however the behaviour complained of happened in a consultation on 7 August 2012.

75. She complained that Dr S had questioned her about matters in her past which were painful to recollect and having to do so caused upset. She felt that her complaints of pain were due to past injuries and that exploring psychological matters was inappropriate. She said that "this doctor's questioning of my personal life was creepy". She said that afterwards she was traumatised.

76. Dr S made submissions to the Board about the allegations. The Board noted that the consultation complained of had occurred prior to the matters for which Dr S had been dealt with in 2014 and that Dr S had apologised for failing to explain the basis for his questioning and for causing distress and upset. The Board took no further action on the complaint.

77. There are significant parallels in structure with Ms F's complaint. It is interesting that the Board noted that while Dr S was taking a history of past events which were painful for the patient to recollect, "something happened".

78. In spite of the gravity of her complaints, the Tribunal does not believe that a serious risk as referred to in section 156 exists which requires immediate action in relation to the sexual behavioural allegations. The authorities are quite clear in regard to the task of the Tribunal. On review, more information is available and time is available for consideration of it. The Tribunal has dealt with the circumstances alleged and the evidence available not with a view to making any determination or finding on them other than its assessment of a risk created by them. From a procedural point of view that has been prompted by the denial by Dr S of the substance of the allegations and the amount of evidence and analysis available relating to that topic.

79. Due to the factors previously mentioned. The Tribunal considers that where substantial consequences would flow from a complaint, a high degree of probative value of evidence is required.[29] However, it is clear that "something happened" during the taking of Ms F's history on 14 June 2019. As a result of that Ms F expressed anger at Dr S for dismissing her back trauma as "an emotional problem" as noted in the clinical notes at 22:57 on 14 June 2019.[30]

80. It is unlikely that he gave that as a diagnosis, however that is the way the patient took it and it seems likely that at the same time he triggered painful recollections of early abuse when making the enquiry about psychological symptoms. This matches a similar coincidence of causes in the CL situation where a perceived misdiagnosis based on a focus of enquiry on past psychological factors caused upset and distress. It does seem that the two episodes were very similar in that regard.

81. The Tribunal remains concerned that elements of Dr S' history taking, particularly related to emotional issues has at times been of intensity such as to cause significant distress to his patients. On face value it would seem that he does not heed the cues or even direct requests from the patient to stop.

82. It may be a comparatively infrequent situation where the two factors converge in the same patient however steps can be taken to reduce the likelihood of occurrence. The Tribunal takes the view that Dr S conducted the interview with insufficient sensitivity to the possibility of harm and that there is a serious risk of it occurring again without immediate action. In the circumstances the Tribunal considers that the risk can be mitigated by education to demonstrate the existence and nature of the risk, means of avoiding it, and the means of identifying signs of distress so that inappropriate conversation or questioning is not continued.

1. There shall be no public access to the Tribunal file, the transcript or the audio recordings of the hearing or any earlier directions or other hearings in the proceeding.

2. Publication of the names or any identifying details of the complainant and witnesses (other than the applicant) and/or the medical records of the complainant referred to in the application is prohibited.

3. The decision under review is set aside and the following orders substituted.

4. The practitioner is directed to undertake educative courses and programs agreed to by the parties.

5. Should the parties be unable to agree as above within 21 days of the date of delivery of this decision, then they have liberty to list the matter for directions as to suitable courses and/or programs.

Mr T Guigni and Ms F Taah, Australian Government Solicitor

[3] Helmy v Medical Board of Australia [2016] ACAT 71 at [22]

[4] [2011] SAHPT 18

[5] [2019] ACAT 110 at [47]

[6] [2012] FCA 679 at [65(g)]

[11] Transcript of proceedings on 15 September 2021 page 177

[12] Supplementary T Documents page 229

[13] Supplementary T Documents page 263

[14] Supplementary T Documents page 263

[15] Supplementary T Documents page 253

[16] Supplementary T Documents page 253

[17] Supplementary T Documents page 231

[20] Transcript of proceedings on 15 September 2021 page 229; ACT Civil and Administrative Tribunal Procedures Rules 2020

[21] [2019] FCAFC 112

[22] Chetcuti v Minister for Immigration and Border Protection [2019] FCAFC 112 at [89]

[24] Supplementary T Documents page 229

[28] Medical Board of Australia v Speldewinde [2014] ACAT 27

[29] Hocking at [15]; above at [19]