Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Morsingh [2021] NSWCATOD 13 Hearing dates: 7, 8 and 9 December 2020 Date of orders: 16 February 2021 Decision date: 16 February 2021 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Dr J Aitken, Senior Member Dr H Haikal-Mukhtar, Senior Member Dr C Berglund, General Member Decision: • Dr Morsingh conducted himself in the manner alleged in each of the particulars in Complaint 1 in the Application and the conduct described in each particular constitutes unsatisfactory professional conduct. • Dr Morsingh's conduct as described in Complaint 1, Particulars 1 and 2, both individually and collectively, constitutes professional misconduct as alleged in Complaint 2 in the Application. Directions: 1. The Health Care Complaints Commission is to provide to the Tribunal, and to the respondent, a statement as to the protective orders it is seeking as a consequence of the findings of unsatisfactory professional conduct and professional misconduct, together with the evidence on which it intends to rely, and submissions, on or before 1 March 2021. 2. The respondent is to provide to the Tribunal and to the applicant evidence and submissions in response, on or before 15 March 2021. 3. The applicant is to provide to the Tribunal and to the respondent any material in reply, on or before 22 March 2021. 4. The parties are jointly to provide to the Tribunal, on or before 1 March 2021, a range of dates, subsequent to 22 March 2021, for the Stage 2 hearing. Catchwords: PROFESSIONS AND TRADES - health care practitioners - medical practitioner - unsatisfactory professional conduct - professional misconduct - events during a consultation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Category: Principal judgment Parties: Health Care Complaints Commission (applicant) Raymond Morsingh (respondent) Representation: Counsel: D Fuller (applicant) P Nematalla (respondent) Solicitors: Health Care Complaints Commission (applicant) Memcorp Lawyers (respondent) File Number(s): 2020/00189295 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act: 1. The disclosure to any person or entity of the name of the patient referred to in the schedule to the complaint and the name of that patient's mother, and any information tending to identify the patient referred to in the schedule to the complaint, or that patient's, mother is prohibited. 2. The disclosure to any person or entity of the name of the respondent's ex-wife, and any information tending to identify her, is prohibited. REASONS FOR DECISION Introduction 1. On 25 June 2020, the Health Care Complaints Commission ('the HCCC') filed in the Tribunal an Application for disciplinary findings and orders ('the Application') pursuant to the Health Practitioner Regulation National Law (NSW) ('the National Law') against Dr Morsingh, a general practitioner. The Application is based upon a complaint made against Dr Morsingh by Patient A with respect to a consultation which took place on 29 November 2018 ('the consultation'). 2. At the hearing of the matter, the Tribunal received documentary evidence from each party. Patient A and Patient A's mother gave evidence in the HCCC's case. Dr Ee, a general practitioner, gave evidence in the HCCC's case as an independent expert. Dr Morsingh gave evidence in his own case. Ms Mansour, a receptionist at the Medical Centre, gave evidence in Dr Morsingh's case. Dr Nielssen and Associate Professor Clyne gave evidence as independent experts in Dr Morsingh's case. The Tribunal viewed CCTV footage of Patient A arriving and departing from the Medical Centre. The Tribunal was provided with documents relating to a hearing conducted under s 150 of the National Law (the s 150 hearing), which was held on 16 January 2019, together with the transcript of the s 150 hearing, at which Dr Morsingh gave evidence. 3. The hearing and these reasons relate only to the issue of whether the allegations in the Application have been proven to the requisite standard. The requisite standard is proof on the balance of probabilities (see Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53). Given the gravity of the allegation that Dr Morsingh pressed with his hands on the top and sides of Patient A's breasts during the consultation, and that such actions were not clinically indicated, the evidence underpinning that allegation needs to be sufficient to afford us a level of persuasion that the standard of proof has been reached which is commensurate with the gravity of the allegation, before the allegation can be found to have been proven. Although the rules of evidence are not strictly applicable, we will nevertheless apply the principle attributed to Briginshaw v Briginshaw (1938) 60 CLR 336. 4. By way of background, the Application recites that the practitioner was first registered as a medical practitioner in New South Wales on 4 January 1994. He is a general practitioner. He practises at a Medical Centre. These facts are admitted. 5. Patient A was a patient at the Medical Centre from 2007 to September 2014. She also attended the Medical Centre on 28 November 2018. Her sole presenting complaint at the November 2018 consultation ('the consultation') was a burning feeling in her right cheek and jaw. At the time of the consultation, Patient A was 28 years old. Non-publication orders 1. The HCCC sought a non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act") with respect to the identity of Patient A and her mother. Pursuant to s 64 of the CAT Act, we may make such an order if we are 'satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason'. These proceedings involve allegations of the inappropriate touching, including sexual touching, of Patient A. We consider that such matters are of a confidential nature from Patient A's point of view. It is necessary to extend the order to Patient A's mother to protect Patient A's privacy. 2. In the course of the hearing, the respondent sought an order under s 64 of the CAT Act preventing the publication of the name and identifying information of his ex-wife. This was not opposed. We consider that such an order is desirable, as information of a confidential nature regarding her personal relationships was before the Tribunal. Evidence – the consultation Patient A 1. After the consultation, on the same day, Patient A spoke about her concerns about what had happened in the consultation to her father and then gave an account of the consultation to her mother. On 1 December 2018, two days after the consultation, Patient A made a complaint about Dr Morsingh to the Australian Health Practitioner Regulation Agency (AHPRA) by lodging a complaint online. Patient A also reported Dr Morsingh's conduct to the police. 2. Patient A's complaint to AHPRA said the following: I went to see Dr Morsingh, a GP, at his office at Wentworthville Medical Centre on Thursday 29 November, around 1.15pm. I had come with a complaint regarding the nerves in my right upper and lower cheek. I noticed he had DoTerra Essential oils in the diffuser and on display, which I thought was strange - to sell essential oils through his office, given it is a pyramid marketing scheme. When I arrived Dr Morsingh asked the concern and I told him about the sensations in my face, that I had previously had an MRI that came back clear, and had seen a couple of doctors over three years seeking help. He quickly told me I was describing Trigeminal Neuralgia. He felt my jaw and said it was from blockages in the cranial nerves, jaw and neck. He made a comment about my clothes asking if I was a hippy now, and was looking at my breasts. He asked me to lay on the table on my back. While laying down he said "people in India must be mesmerised by your eyes" (I had been traveling India). I said "no, they just look at me because I am different anyway". Brushing it off. Standing behind me he began pressing firmly on acupressure points on my neck and jaw. He had done this treatment on my jaw and neck years before. Though he pressed so hard I cried, I felt it was an emotional release. He asked if I was ok. I said yes I am, I feel I'm crying from emotional release. He then pressed points in between my thumb and forefinger and higher towards my elbow and explained that this meridian line was connected to the jaw/ face. Then, without asking consent, or explaining why he was doing this, he lifted the collar of my t-shirt up from my neck and held it up for a moment, I felt he was looking at my breasts, then he slid his hand inside my shirt and pressed a point at the top of my breast and said "I love doing this point on women, they always hold a lot of tension here." Which made me really uncomfortable. And sounded perverted. Then he moved his hands to the outside areas of my breasts, under my shirt, and began pressing hard here. I froze. Then I told him to stop as it was very painful, I was already crying but now not from emotional release but being flooded with feeling of confusion and discomfort and had a flashback to a previous sexual assault. He pulled his hands out quickly, though everything happened very fast I felt I really had to assert myself saying no no no stop. It was very painful. He didn't apologise for overstepping my personal boundaries. Why did he need to touch my breasts? Then he asked about my diet (whilst I'm still laying on the table) and told me to eat vegan a few days a week. I asked if he was vegan (I wondered why he is telling me this). He then immediately responded by saying "I am in the middle of a separation with my wife. We have twins, she has turned one against me, she tried to turn the other one against me but when she tried to do this it backfired, and now my daughter stays with me 5 days a week, and I have no contact with the others." ... and I asked again, "so... your daughter is vegan?" Because this overshare did not answer my question and I didn't know why he was telling me this personal crisis story. I have seen this doctor only a couple times over the last ten years but I don't consider us friends. (I am 28, he is late 40s). He then pressed my face and neck more. He then AGAIN pressed my breasts on the sides with his hands, poking them causing pain and saying "this is where you need to do it yourself", touching the sides of my breast and top sides of the breast. This is after I had told him not to from the first incident. I recoiled in pain. I have no idea what my breasts have to do with the pain in my face. He didn't explain, only said there is tension there. I was confused and emotionally triggered by the inappropriate touching of my breasts which I feel have nothing to do with Trigeminal Neuralgia. He did not explain why he should be touching them. He didn't ask for consent. He himself lifted my shirt and did it all. I have been advised this is indecent assault. He then asked me if I "gave a lot of myself for free" (as in time, work, energy). I said yes and then he gave me a DoTerra essential oil to keep for free. He said "I know you are a kind person, so I have to give back to you. that is the law of the universe." And I sat down and then he said "so if you ever want to buy some essential oils, you can use my link. I will send it to you now. Do you have your phone on you? What is your phone number, 04...?" And then I gave him my phone number even though I felt uncomfortable, I just did as I was told and was thrown after the breast touching. I felt somewhat manipulated, now he had my phone number. He texted me the link to the essential oil website. It's a pyramid scheme. I've got no interest in joining their company. He then told me another personal story. He looked at me intently and said: "I have been reborn. Eight weeks ago I was reborn. The old Raymond is dead. I have been reborn. I have risen as the Phoenix. I have marked myself as the Phoenix. Do you want to see?" and touched his shoulder. and I said, "do you mean a tattoo?" and he said yes, and started undressing himself by unbuttoning his shirt. and I said "no that's ok I don't need to see" and he proceeded to unbutton his shirt and show me the tattoo of a phoenix on his left shoulder, and then pulled his shirt lower so I could see a lotus flower underneath it, wrapped in plastic film. and he said "this is a new one, the lotus flower is my wife/exwife". I looked at him in shock/ confusion and he said "so, this is my story. Yours is still being written." Why is he undressing in front of me? After touching my breasts, telling me I have beautiful eyes and asking for my mobile number? I felt uncomfortable, and shocked and confused by what was going on. Like my brain is trying to catch up and understand what is happening, because this is definitely not what I consented to when walking in to a doctor's office to ask about facial pain. He printed out information on Trigeminal Neuralgia and told me to massage my neck and jaw myself and focus on letting go of stuck emotions. (Note, he did not mention again the breast massage/poking and didn't say again that it was something to do, only jaw and neck). I understand there may be trigger points on the breast, but I absolutely did not give consent, nor was given opportunity to consent to him touching my breasts. So I signed the paper for the appointment. Stood up to leave and he said "You really have the most beautiful eyes, I've always told you that. You have beautiful eyes." and then gave me a hug. And I left. I was emotionally triggered when I came home, confused, and it took a couple of hours for me to understand what had happened, that I did not ask for that treatment, that it isn't normal and it isn't my fault. My mother also sees this doctor. I was able to tell her what had happened, and she also affirmed this is not normal behaviour. He is a family GP. We have gotten on well in the past, and even though I have felt that he is a little affectionate towards me, it is only on this occasion that I have felt extremely uncomfortable, vulnerable and this abuse of power. From reading the sexual behaviour conduct policy on the AHPRA website, it seems he has violated multiple points. Not explaining why he must touch my breasts, which seems totally unrelated to my health issue. Not asking for consent. Lifting my shirt himself and looking at them. Touching from underneath my shirt. Touching them again afterwards after I had told him not to. (why could he not demonstrate on himself if need be?) Telling me personal life and relationship issues. undressing himself and showing me his tattoos when I asked him not to. Commenting on my appearance and eyes multiple times - unwanted and unwarranted. asking for my mobile number to sell me products. I absolutely feel that Dr Morsingh has abused his position of power, has indecently assaulted me and sexually harassed me. I called 1800 RESPECT about the incident and was encouraged to report this to the medical body and the police, which I have done today. I have uploaded a screen shot of the text I was sent to Dr Morsingh's essential oils. It is sent from his mobile number. 1. In an affidavit sworn on 1 May 2019, Patient A's mother recounted her recollection of her conversation with Patient A on 29 November 2018 regarding the consultation. Her affidavit read, in part: 9. On 29th November 2018, I was working in [X] Hospital. I came home between 4.45pm to 5pm. 10. [Patient A] was already at home having seen Dr Morsingh. My husband said she was upset. She was in the lounge and visibly upset when I went in to see her at about 5pm. She was sitting, hugging herself in a self-protective manner. 11. [Patient A] said she had been to see Dr Morsingh 12. She said how when she went in, he was talking about his personal life, his separation from his wife and his custody issues with his children. 13. She told me he said to her that he was phoenix rising from the ashes, that his wife was the lotus, and showed her tattoos on his side. 14. She said "I think he has lost the plot." 15. She talked to him about pain in her jaw and was upset at the diagnosis of a difficult to treat chronic nerve condition. She said he did not explain it to her, or how to treat it. He only provided a printed information sheet. 16. She said he got her to lie down on the table. He began massaging her jaw, and then his hands went down to her front. 17. She said he used his fingers to lift the top of her shirt up, whilst standing behind her. She did not know if he was doing it to have a look at her breasts. He did not ask before doing so. 18. She said he made a comment along the lines of 'I love massaging women in this area' 19. He then pressed down on points on the top of her chest, causing severe pain. I knew that he has been heavy handed in the past, from my own experience. 20. She said stop, but he continued. He then moved his hands onto her breasts, and this was extremely painful. 21. She felt powerless and vulnerable, and said that was not what she came there for. The pain was in her jaw, not her breasts. 22. He gave no reasons for this treatment, and never asked permission. 23. She said that he made comments that she has beautiful eyes, asking if she gets attention. He said she was beautiful. 24. She said he had Doterra oils there, and gave her a sample. He wanted her to buy them only through him. 25. She gave him her number when he asked for it (feeling pressure to do so), and he sent her a link to the website. She was nervous for weeks afterwards that he might contact her. 26. He hugged her when she left and said she was "a very giving person" and that he had given her the "power to heal". 27. She only wanted to get out of there. She made no eye contact and tried to shut everything down. She left as soon as she could. 28. My husband who was at first in the lounge listening said this was not right. His actions were totally wrong. 29. I was shocked and mortified for her. She was so upset, and only wanted to talk and talk for more than 2 hours. She had a very defensive body language. 1. The record of Patient A's report to the NSW Police is dated 1 December 2018. It refers to Dr Morsingh as 'the person named' and says, in relation to the consultation on 29 November 2018, in part: The victim stated that the person named was talking to her about her travels and her ongoing medical issues. The person named placed pressure around the victims neck and jaw which caused some pain. The person named then placed some pressure along the victims arm and talked about how the muscle may affect her jaw. The person named then asked the victim to lay down on the bed and placed pressure at the top of her breast bone. The person named said, "I love doing this to women as they usually have so much tension here." The person named then placed his hand underneath the victims top and placed pressure on the side of her breast. This caused the victim pain and she asked the person named to stop. The person named removed his hand. The person named then placed his hand under the victims top again and placed pressure on the side of her breast. The person named said "When you do it yourself at home this is where you will do it". The person named removed his hand and started talking to the victim. The person spoke about general things, he told the victim that he was separating from his wife. He then proceeded to lift his shirt and show the victim one of his tattoos. The person named also provided his mobile number to the victim. The victim left the surgery and told her family that she felt uncomfortable about what occurred during her consultation. Police spoke to the victim, the victim confirmed that there was no sexual connotation in the conversation between the person named and the victim. The actions of the person named could be taken as a medical procedure. This was explained to the victim. She stated that she wanted to have the matter reported. The victim was also advised to report her concerns to the medical board as well as another Dr at that practice. 1. Patient A swore an affidavit on 19 March 2019 which related the events of the consultation in a manner largely consistent with her complaint to AHPRA. 2. Patient A gave evidence before us. Under cross-examination, Patient A's evidence was consistent with her complaint. However, she said that the bed shown in photographs taken shortly after the consultation of the consulting room used by Dr Morsingh was not the bed which was in the consulting room at the time of the consultation. Patient A said that the bed at the consultation was a blue, moveable bed and not the fixed, cabinet style bed in the photographs. 3. Patient A was very clear in her evidence under cross-examination that she did not dissociate in the course of the consultation. 4. Patient A's oral evidence was generally consistent with her previous statements. Dr Morsingh 1. Dr Morsingh wrote the following note in Patient A's records following the consultation on 29 November 2018: 3 years of a burning feeling in the right cheek. Has been in India, Doula work (birthing assistant). MRI in India. Irritation of the VII branch right side. Suggestive of trigmenial [sic] neuralgia. TMJ- okay, soreness and myofascial trigger points and irritability in the surrounding musculature, Use of TP releases, masseter, levators, sternocleidomastoid, trapeuzius mm. Stretches. and essential oils suggested. [sic] Mentioned about medications for neuropathic pain, Endep, gabapentin, and pregabalin-all too sedating. Trigeminal neuralgia information printed for her. on her journey to Byron Bay. 1. Subsequent to the day of the consultation, Dr Morsingh wrote a further note in Patient A's records. That note is dated 30 November 2018, which is apparently the date upon which Dr Morsingh wrote it, but no consultation took place that day with Patient A. The note of 30 November 2018 relates to the consultation on 29 November 2018. The note says: Right face, some irritation of the V2, and V3 bracnhesk,,[sic] Trismus, teeth clenching, Some releases and exercises for the TMJ and trial of the Doterra Past Tense. 1. At the s 150 hearing, Dr Morsingh said that he made the additional note on 30 November 2018 for the purpose of recording the giving to Patient A of a sample of the doTerra oil for tax and accounting purposes. Before the Tribunal, however, Dr Morsingh said that he made the additional note to record that he was thinking about an alternative diagnosis, namely teeth clenching. This was not a diagnosis he mentioned to Patient A. 2. Also at the s 150 hearing, in response to questioning by the panel, Dr Morsingh said that 'VII' in the patient notes of 29 November 2018 should have been V 2, and that 'bracnhesk' should have been branches. We assume that 'trigmenial' in the first note should have been 'trigeminal'. 3. At the s 150 hearing, Dr Morsingh was asked what his understanding was as to the outcome of Patient A's MRI in India. The transcript records him as saying: Only the – the verbal response from [Patient A] which was nerve abnormality detected, according to her. 1. In view of all of the other evidence on this topic, we assume that the transcript is in error, and that Dr Morsingh said "no" and not "nerve". 2. At the s 150 hearing, the Chairman of the panel drew Dr Morsingh's attention to the brochure he had given Patient A about trigeminal neuralgia. The Chairman pointed out that the brochure says that trigeminal neuralgia is most common in patients over 50, and that, in young adults, a potential cause is multiple sclerosis. The Chairman asked Dr Morsingh if he considered either confirming or excluding multiple sclerosis in relation to Patient A. Dr Morsingh said that he considered a neurological referral "because we have an in-house neurologist", but that he did not make that referral and would have considered it if the patient had re-presented with the same symptoms or no improvement. Dr Morsingh agreed that he had ordered no diagnostic test and prescribed no medication at the consultation. He only gave Patient A a sample of doTerra PastTense oil. As to the oil, Dr Morsingh said, in the s 150 hearing at p 16: I did apply it in the consultation, there was slight improvement. 1. Dr Morsingh maintained in his evidence at the s 150 hearing that his examination of Patient A in the consultation took place whilst she was seated in a chair and that she did not, at any stage, lie on the bed in the consulting room. He said that he conducted the examination whilst standing in front of her, to her left. 2. At the s 150 hearing, Dr Morsingh gave the following description of the consultation (Tcpt, 16 January 2019, p 20 (13)): MORSINGH: And I - I asked her, "How are you, please have a seat," and then she sat down noting the clothes she was wearing so she was wearing a tunic coat that was of full length to the wrists and all the way down to the ankle. It - it stood out because it was orange and it looked like linen and it was obviously a naturally dyed fabric. It's reminiscent of clothes and the colour that Hare Krishnas would wear if you've seen them chanting or - or - or at events and she had a shirt with a collar and she had black pants on. So her clothes were unusual and stood out and I asked her, "I haven't seen you for a while, where have you been?" and she indicated that she had been travelling in India and studying and practising as a doula. I asked her what a doula was and she said this is a - a non-clinical birthing assistance and they support the mother during the birth process and afterwards emotionally and it involves emotional support, it involves using drums, sometimes chanting, sometimes dancing and they're like a - a personal advocate for - for the birthing mother. And I asked her what the complaint was or what the problem was and she mentioned that she had a burning feeling around the right cheek and jaw. I asked her how long she has had it for. She said she's had it for about three years and she's seen a few doctors in India including a specialist and had an MRI scan, they couldn't detect anything, and she said they didn't really come up with any particular explanation for what it was. I asked if I could assess the - the hinge of her jaw, her TMJ or temporomandibular joint. I asked if you can open and close your mouth without pain. She did so. I asked if there's any clicking. She said no. I asked her if you can wiggle your jaw from side to side. There was no discomfort, it was full movement. I asked if I could press on that area so I pressed on it. The TMJ wasn't tender. There was no protest and then I asked if I could press the muscles on the side of the head, so the temple, the temporalis, the side of the jaw, the masseters, and the back of the neck, the origin of the trapezius. Where the greater occipital nerve came out there was tenderness. There was some kind of emotional reaction so I took a pause and I didn't know exactly what it was but there was some kind of emotional reaction and there was a pause and then after the pause I said, "I need to continue checking the rest," and I also palpated the side of the neck over the sternocleidomastoid muscle and noting I treated her in 2012 with a chronic neck and shoulder sprain we have done this kind of examination before which she corroborates. She had a kyphotic curve, stooped kind of posture which may be contributory to some of her symptoms and I asked if I could press on her shoulder so she may have felt a finger go under her collar pressing a point at the top of the shoulderblade over the trapezius muscle. And she has had previous acupuncture so that correlated to a point which she knew as gallbladder 21 which we've mentioned in the past and her physiotherapist has mentioned in the past. CHAIRPERSON REWELL: Do you practise acupuncture? MORSINGH: No. I've done a course in it. I've done a one-year course in 1998, the New South Wales Medical Acupuncture course at Royal North Shore Hospital. It was a nine-month course which required an examination. I completed that successfully but no, I'm not a practitioner of acupuncture. CHAIRPERSON REWELL: So she's presented with a three-year history of burning pain in the right cheek. MORSINGH: Yes. CHAIRPERSON REWELL: How did you then - so you examined the TMJ, I can understand that. MORSINGH: Correct. CHAIRPERSON REWELL: You examined the masseters-- MORSINGH: Yes. CHAIRPERSON REWELL: --and the temporalis muscles, I can understand that. MORSINGH: Yes. Yes. CHAIRPERSON REWELL: How did you end up at the back of the neck for a patient with cheek pain, what were you looking for or examining for? MORSINGH: I was examining for the possibility of neuralgia which is also common in the base of the scalp from the greater occipital nerve and noting that I've previously treated her for chronic neck and shoulder pain, I reasoned that it was necessary to examine that. That included the side of the neck down to the level of the clavicle. CHAIRPERSON REWELL: We'll get to that later, just a second. MORSINGH: Yes. CHAIRPERSON REWELL: Did you explain to her that examining her trapezius and the back of her neck was related to her previous consultation with you not with the cheek pain, was that clear? MORSINGH: I don't think that was clear. We were - I was in a standing position, she was in a seated position. She leant forward and I said, "I need to press these points," and basically she indicated it was fine by nodding and we just proceeded to these points and we stopped there. CHAIRPERSON REWELL: When you say points are these anatomical points or acupuncture points? MORSINGH: Anatomical points along the muscle belly of the sternocleidomastoid muscle and in the trapezius. CHAIRPERSON REWELL: This was to do with her previous complaints of neck and back pain, not her-- MORSINGH: Neck and shoulder pain. CHAIRPERSON REWELL: Neck and shoulder pain? MORSINGH: Yes. CHAIRPERSON REWELL: Not her current complaint of cheek pain? MORSINGH: Correct. 1. The following exchange also took place at the s 150 hearing (Tcpt, 16 January 2019, p 29 (32)): MORSINGH: She had tenderness and we tried a technique to try to alleviate some of the contractions and spasms of the muscles so I-- CHAIRPERSON REWELL: Where did you find the tenderness? MORSINGH: The tenderness was in the temporalis, the masseters, the sternocleidomastoid muscle and the trapezius and based on the lateral movements of the neck it appeared that it was tighter on the right side than the left and I know that she's right-handed so obviously through functional use and posture there may have been a muscle spasm and a chronic sprain and in the past we used the technique which I described, the muscle energy technique which is described in John Murtagh's book which we've done before so we went through the same process so we contracted the head to the other side to try and induce relaxation in the - in the agonist muscle, the agonist being the right-sided muscle. CHAIRPERSON REWELL: Sure. So by this stage you've moved right away from the cheek and you're onto tenderness in four other muscles, none of which is the cheek? MORSINGH: Correct. CHAIRPERSON REWELL: Is that evident in your medical record? MORSINGH: The medical record - okay, I need to get back to that. It mentions about irritability in the surrounding musculature-- CHAIRPERSON REWELL: Mm-hmm. MORSINGH: --and I'm implying it's in the masseters, the levator scapulae, the sternocleidomastoid muscle, and the trapezius. CHAIRPERSON REWELL: Okay. Can you explain to me what a myofascial trigger point is, please? MORSINGH: A myofascial trigger point is an accepted term in clinical medicine and rheumatology. It is where you have sensitivity on the nerve ending in a classic nerve distribution on the body and it's associated with spasm of the surrounding musculature and irritation of the - of the afferent nerve endings. CHAIRPERSON REWELL: Okay. MORSINGH: There are books that describe these classic trigger points and they talk about conditions where you have these points around the body. CHAIRPERSON REWELL: Okay. So in your record you've got irritation of what we've now agreed is the second branch of the trigeminal nerve-- MORSINGH: Yes. CHAIRPERSON REWELL: --the right side, suggestive of trigeminal neuralgia, TMJ okay. MORSINGH: So that means there's no crepitus, tenderness. CHAIRPERSON REWELL: No; bear with me. TMJ okay, soreness at myofascial trigger points and then it goes on to the surrounding musculature and you list a number of muscles. So in fact the consultation was, from what I'm gathering, in two halves. She presented with burning pain in the right cheek. MORSINGH: Yes. CHAIRPERSON REWELL: You gave a presumptive diagnosis of trigeminal neuralgia of the second branch of the trigeminal nerve-- MORSINGH: Yes. Yes. CHAIRPERSON REWELL: --and then moved on to examining a variety of muscle groups and myofascial points and started to examine something other than the complaint with which she presented. Have I understood you correctly? MORSINGH: Basically what happened was she complained of one thing. During the examination there was tenderness in other parts so we continued along there and in my mind it was on the basis of what was happening in the past when she had the - the issue of the chronic sprain of the neck and of the shoulder. CHAIRPERSON REWELL: Okay. But you've already told us that you - to the best of your recollection-- MORSINGH: Yes. CHAIRPERSON REWELL: --you did not specifically say, "I'm now moving on to your former problem of back and neck pain"— MORSINGH: Correct. CHAIRPERSON REWELL: "--rather than your cheek pain"? MORSINGH: Yes. CHAIRPERSON REWELL: Okay. In the patient's complaint— MORSINGH: Yes. CHAIRPERSON REWELL: --which we'll get to in a second, she talks about you examining a point between her thumb and forefinger. Did that occur? MORSINGH: I do not recollect that at all. CHAIRPERSON REWELL: Would that be something you could have done in some acupuncture sense? MORSINGH: She has been to previously acupuncturists so that may be something that she may have had done in the past but not with me. CHAIRPERSON REWELL: She talks about you examining a point between her thumb and forefinger, up her forearm to her elbow. Is there any relevance within - my knowledge of acupuncture is zero so I'm asking you from a position of total ignorance. MORSINGH: Yes, okay. Okay. CHAIRPERSON REWELL: Is there anything within acupuncture that would relate the forearm to pain in the cheek? MORSINGH: Yes. In acupuncture there is the large intestine meridian which runs along the path in the first interosseous muscle along the radial side of the forearm across to the - and through and around the lateral epicondyle following a path including the deltoid insertion coursing along the trapezius, the side of the neck, going up along the cheek and the jaw and ending on the contralateral alaeque nasi so that's the classic meridian which I studied previously. CHAIRPERSON REWELL: The patient says you did that and you can't recall? MORSINGH: Yes. FAHD: He said "not with me, can't recall, not with me." MORSINGH: Yes, correct, and I know that she's had-- CHAIRPERSON REWELL: Sorry, sorry, that's two different answers. Which? FAHD: He said both. CHAIRPERSON REWELL: I know he said both. Which is it, not with me or you can't recall? MORSINGH: I did not assess that area. 1. A short time later in the s 150 hearing, the following exchange occurred (Tcpt, 16 January 2019, p 42 (44)): MEMBER NAPIER: Yes. It was just the consultation, I did ask what sort of history you took regarding the frequency and the duration and the severity of the pain and the changes that she was feeling and why she came in and there's no real history that you've taken of that apart from "had it for three years." Can we just go on to the clinical examination itself. MORSINGH: Yes. MEMBER NAPIER: Were there any sensory changes in the area where she had or was complaining of the pain? MORSINGH: There was no numbness. MEMBER NAPIER: Did you examine for numbness? MORSINGH: I examined by palpating both sides and there wasn't a difference between both sides. MEMBER NAPIER: Did you ask her? MORSINGH: I asked her if there's any burning by touching and looking for hyperalgesia that was not indicated. MEMBER NAPIER: Okay. Did you specifically examine for sensory changes or did you just feel for her muscle and the temporomandibular joint? MORSINGH: I didn't do the formal neurological examination where you use a cotton wool to compare both sides. MEMBER NAPIER: Did you specifically ask her if one side felt different from the other? MORSINGH: I did and— MEMBER NAPIER: On touching? MORSINGH: On - on touching she didn't indicate any difference between both sides. MEMBER NAPIER: She might not have indicated but did you specifically ask her, "Does this feel the same as this?"? MORSINGH: Yes. MEMBER NAPIER: Okay, and when you say she didn't indicate, in what way would she have indicated? MORSINGH: When I assess for two sides like for example a patient with meralgia paresthetica I would compare both sides, ask them, do they feel the same on both sides. MEMBER NAPIER: And did you say that to her? MORSINGH: I recall doing that examination but I didn't record it specifically in the notes. MEMBER NAPIER: Okay, and when you say she did not indicate, surely your patient would do more than indicate, they would say, "Yes, it feels the same," or "No, it doesn't." MORSINGH: Yes, yes. I did not elicit a difference in sensation between the two sides and it's not recorded. MEMBER NAPIER: But you looked for it? MORSINGH: Yeah, but it's not recorded in the notes. MEMBER NAPIER: Not recorded. Okay. 1. In evidence before the Tribunal, for the first time, in the context of denying that he had told Patient A that her eyes were mesmerising, Dr Morsingh said that he had observed her eyes for 'pallor'. He had not mentioned this in his notes, in his written statement to the s 150 hearing, or in his evidence before the s 150 hearing. 2. In evidence before the Tribunal, Dr Morsingh said that he had said to Patient A that her symptoms "could be suggestive of trigeminal neuralgia". He agreed that he said this very early in the consultation, before he examined her. Dr Morsingh said that he had read 'the salient points' of the brochure which he gave Patient A about trigeminal neuralgia, and he was therefore aware that it is a rare condition, occurring in 12 out of 100,000 people (0.012% of the population). Dr Morsingh said that he knew that there are two kinds of trigeminal neuralgia, and he agreed that a symptom of the classical presentation of the typical kind is 'extreme sporadic sudden burning or shock-like facial pain that lasts anywhere from a few seconds to as long as two minutes per episode'. He agreed that Patient A's symptoms did not fit the typical kind of trigeminal neuralgia. He agreed that the atypical kind was, as described in the brochure, 'characterised by constant aching, burning, stabbing pain of somewhat lower intensity than type 1'. He said that he leaned towards thinking Patient A had the atypical type, but did not record that in his notes. He agreed that the brochure's description of the symptoms of the atypical type of trigeminal neuralgia did not match Patient A's symptom of an intermittent burning sensation, but said that he thought that she had an atypical presentation. 3. The following exchange took place in the cross examination of Dr Morsingh (Tcpt, 8 December 2020, p 51 (13)): Q. It's right, isn't it, that trigeminal neuralgia normally involves trigger points usually around the midline of the face; is that right? A. Yes. Q. Do you agree with me that a diagnosis of trigeminal neuralgia would be a very serious matter; do you agree? A. Can you qualify "serious"? Are you talking like a heart attack and myocardial infarct, cancer? Can, can you, can you qualify it? Q. Let me ask it this way. What level of seriousness would you attach as a clinician to a diagnosis of trigeminal neuralgia? A. It's a significant diagnosis. Q. When you say "significant", can you elaborate on that at all? A. Yes, it warrants a trial of antineuritic medications, medications to treat nerve pain. Q. It's right that trigeminal neuralgia could be caused by a tumour, for example? A. Yes. Q. An enlarged artery impinging on the trigeminal nerve, is that right? A. Yes. Q. It could be caused by multiple sclerosis? A. Yes. Q. You say, as I understand it, that's a significant diagnosis but-- A. Yes. Q. --a serious one? A. Yes. Q. Do you agree that it would be very concerning for a patient to hear that diagnosis? A. Yes. Q. Do you agree that it's a diagnosis that you shouldn't make without doing some research and examination to satisfy yourself that it's truly an appropriate diagnosis? A. It was a working diagnosis for me. Q. But a working diagnosis that you told the patient at the very beginning, correct? A. Yes. Q. Did you do any research to satisfy yourself that it was an appropriate diagnosis in this consultation? A. It's important to look at the addendum because my thinking started to change towards teeth clenching and that's alluded to in [Patient A]'s mother statement, that she had problems with a dental issue. Q. All right, did she say anything about teeth clenching to you in the consultation? A. No, but I observed it and I recorded it the very next day. There's trismus, which is clenching of the masseter muscle and teeth clenching. Q. Did you say anything to her about that in your-- A. I said to her-- Q. --consultation - no, just let me finish. In your consultation with her did you say anything to her about teeth clenching or trismus? A. I implied it, saying that, "Your muscles were tight on the right side." Q. So for you that's giving her some sort of diagnosis about teeth clenching and trismus; is that right? A. I wasn't specific with [Patient A] with that thought process but it was a process that was going on in my mind and you can see that because I recorded it the very next day. Q. It's not a thought process that you ever told the Medical Council either in your submissions or at the hearing before the Medical Council, is it? A. No, but it's in the notes that it was there. Q. I'll come to the notes. Do you agree that it would be appropriate to perform a differential diagnosis to try to eliminate possibilities other than trigeminal neuralgia-- A. Yeah. Q. --if you thought someone had trigeminal neuralgia? A. Yes. Q. You didn't do that, did you? A. No. Q. You didn't consider, did you, the possibility that [Patient A]'s sensory disturbance in her face was caused by a dysfunction in or around her cervical spine? Don't look at your notes. A. Yeah. Q. I'm just asking you about your thought process? A. My thought processes included looking at her temporomandibular joint, which is close by anatomically, and also the cervical musculature, which I did assess. Q. My question was did you consider the possibility that the sensory disturbance in her face was caused by dysfunction in or around her cervical spine? A. No. Q. You didn't, did you, examine any points in the midline of [Patient A]'s face to identify whether there might be any trigger points for trigeminal neuralgia? A. No. Q. You didn't ask her whether her condition had worsened over time? A. I didn't ask that specific question, no. Q. Did you ask her any question like it? A. I asked her how it was for the last three years and she mentioned it was intermittent. Q. You didn't examine that further? A. No. Q. You say you discussed with [Patient A] Lyrica or pregabalin-- A. Yes. Q. --gabapentin and Endep, which is amitriptyline; is that right? A. Yes. Q. Are you sure that you did that? A. Yes. Q. I won't take you to it but the facts sheet says that gabapentin and pregabalin are generally effective for the TN1, so the classic form, but often less effective for TN2 or the atypical form? A. Yes. Q. Did you understand that? A. Yes. Q. Then the facts sheet says that amitriptyline is usually used for TN2, not TN1; did you understand that? A. No, I thought they were used for both. Amitriptyline is useful for any type of nerve pain. Q. Is it right that you just had no idea of what you were diagnosing with her teeth? A. I was trying to arrive at a diagnosis by looking at various things and I looked at her TMJ, the surrounding musculature and because of the distribution I was thinking that the trigeminal nerve was involved, the branches 2 and 3, the maxillary and the mandibular branches, which I use abbreviations for. Q. You didn't order any further tests to try to identify any underlying cause of her cheek issue; is that right? A. No. Q. You didn't refer her to a neurologist? A. No. Q. Do you agree that, in hindsight, the symptoms that [Patient A] described to you and presented with were not consistent with trigeminal neuralgia? A. Yes. Q. Do you agree, in hindsight, that it was even a presumptive or suggestive diagnosis that should not have been made without further examination of [Patient A]? A. Yes. Q. Do you agree that it shouldn't have been made without performing a differential diagnosis? A. I did perform a differential diagnosis. I looked a trismus, the TMJ problems and cervical problems. Q. I asked you that question earlier and you said you didn't perform a differential diagnosis? A. I, I, I, I countered that. I mentioned about temporomandibular dysfunction, TMJ, so I'm thinking other things. That is a differential diagnosis. Q. Let me just be clear. Do you now say you did perform a differential diagnosis? A. Yes, it's implied in the examination. I, I've looked at the TMJ so I'm thinking about temporomandibular dysfunction. I'm thinking about trismus. It's in the notes and I looked at the surrounding musculature for her nerve irritation affecting the muscles. Q. Isn't it the case that you recorded your notes on 30 November 2018 because you realised you hadn't done what you should have done in the 29 November consultation? A. No, the, the, the main reason I did that was I wanted to record that I gave out a sample of the doTERRA PastTense and I also was putting my thoughts about the TMJ and the teeth clenching-- Q. Let's come back to that. A. --because the complaint didn't come until well after that. 1. It is clear from the extract in [29] from the transcript of the hearing before us that Dr Morsingh admitted that he did not consider, during the consultation, that Patient A's symptoms, which were on the right side of her face, were caused by dysfunction in her cervical spine. It is also clear, by the time of the hearing before us, that Dr Morsingh had concluded that his diagnosis of trigeminal neuralgia was wrong. 2. In his report of 22 October 2020, tendered in the respondent's case, A/Prof Clyne said: According to the accepted definition and description of trigeminal neuralgia, competent peer general practitioners would agree that [Patient A's] description of her symptoms is not consistent with trigeminal neuralgia. 1. In his report, A/Prof Clyne also said that, whilst Dr Morsingh said in his notes that he had pressed myofascial trigger points on Patient A's face, he did not examine the trigger points for trigeminal neuralgia. Those trigger points are different from the myofascial trigger points. A/Prof Clyne also said, in his report, at p 13: Palpation and treatment below the level of the clavicle or below the top of the manubrium sterni would not have a reasonable physiological basis and would therefore not be appropriate. 1. In the exchange set out above in [24], Dr Morsingh clearly said that, in the consultation, when he was pressing Patient A's sternocleidomastoid muscle (which travels from under and behind the ear to the medial part of the clavicle) and her trapezius (shoulder and upper back), he was assessing her for neck and shoulder pain, which she had been treated for in 2012, some 6 years before the consultation. He agreed that he did not tell Patient A that he was examining her for that purpose. 2. Patient A's medical records from the Medical Centre are in evidence. They show that, prior to the consultation on 29 November 2018, Patient A attended at the Medical Centre on three occasions in 2017, all of which were in January, on three occasions in 2016, all of which were in December and on two occasions in September of 2014, once in August 2014 and once in June 2014. Patient A saw practitioners other than Dr Morsingh on all of the occasions just mentioned except for June, August and September of 2014. Patient A attended the Medical Centre a number of times in 2013. Patient A first complained of neck pain in March of 2012. It is plain from the records that the neck pain in 2012 was connected to her work at the time, which involved time spent using a computer. The problem persisted through March, April and May of 2012, with some improvement. On 12 May 2012, the notes record 'ergonomics at work about to be fixed'. On 3 April 2013, there is reference in the notes to a plan concerning Patient A's neck. In the five years and seven months which elapsed between 3 April 2013 and the consultation on 29 November 2018, there is no mention in the notes of Patient A complaining of any neck or shoulder pain, including at the consultation on 29 November 2018. A wide variety of other medical issues arose for Patient A in those intervening years. 3. In these circumstances, it is curious that Dr Morsingh claimed, at the s 150 hearing, that Patient A had a 'chronic sprain of the neck and shoulder' (p 31 of s 150 hearing transcript). It is true that this expression appears in the notes for Patient A on 28 March 2012, but it had not been used subsequently. 4. In his written statement to the s 150 hearing, Dr Morsingh said that he had performed a 'muscle energy technique' on Patient A in the consultation, following the treatment advocated by John Murtagh in his book 'General Practice'. Dr Morsingh provided an extract from John Murtagh's book. The extract makes it plain that the 'muscle energy technique' is for torticollis, which is wry neck. Patient A did not complain to Dr Morsingh of neck pain at the consultation, or at any time for at least 5 years and 7 months prior to the consultation. 5. Under cross-examination before us, Dr Morsingh agreed that the evidence he gave at the s 150 hearing was different from the evidence that he gave before us, in that he had agreed at the s 150 hearing that pressing Patient A's sternocleidomastoid muscle and her trapezius muscles were not related to her complaint of a burning sensation in her cheek. Before us, Dr Morsingh claimed that pressing her sternocleidomastoid muscle and her trapezius muscles was somehow related to her complaint about her cheek. 6. Dr Morsingh agreed that he had not mentioned his thoughts about trismus (teeth clenching) at the s 150 hearing. 7. In cross-examination before us, Dr Morsingh agreed that there are myofascial trigger points at the top of the breasts (pectoralis muscle), and at the sides of the breasts. He denied touching Patient A on those points. 8. Dr Morsingh, in his Reply, denies telling Patient A at the consultation that her eyes were mesmerising, or saying that Patient A had beautiful eyes. 9. In his written submission to the s 150 hearing, Dr Morsingh conceded that he asked Patient A if she was a hippy, in the course of the consultation. He said that he asked her this towards the end of the consultation, when she said that she was going to Byron Bay, 'to gage [sic] her dietary lifestyle and its potential impact upon her general health'. 10. Dr Morsingh has conceded that he told Patient A, in the course of the consultation, that he had recently separated from his wife, that they had twins and that his wife had tried to turn the twins against him. 11. Dr Morsingh has conceded that he undid two buttons of his shirt and exposed his left shoulder to Patient A. He concedes that he told Patient A that the tattoo of a phoenix was intended to represent his 'rebirth' after his separation from his wife, and that the tattoo of a lotus was intended to represent his wife. 12. Dr Morsingh has conceded that doTerra oils and diffusers were displayed for sale in his consulting room, and that his wife received a benefit from the sale of those products, and that there is a lack of scientific evidence for the efficacy of aromatherapies. The Application 1. Complaint 1 in the Application alleges that Dr Morsingh is guilty of unprofessional conduct under s 139B(1)(a) and/or (l) of the National Law. 2. Particular 1 of Complaint 1 is as follows: 1. The practitioner breached sexual boundaries in that he conducted a breast examination on Patient A in circumstances where: (a) the practitioner had made an initial diagnosis of trigeminal neuralgia; (b) the examination was not clinically indicated; (c) the practitioner did not explain why the examination was necessary; (d) the practitioner did not obtain informed consent to conduct the examination. 1. Dr Morsingh, in his Reply, denies Particular 1. 2. As we have said, Dr Morsingh has denied touching Patient A's breasts. In order to make a finding as to whether Particular 1 has been established, we must consider whether, on the evidence before us, the HCCC has established, on the balance of probabilities, to the Briginshaw level of persuasion, whether Patient A's account of this part of the consultation is true, or whether Dr Morsingh's account of his actions in the examination of Patient A during the consultation is true. 3. It was conceded that Dr Morsingh gave Patient A a diagnosis of trigeminal neuralgia early in the consultation. 4. It was Dr Morsingh's case that Patient A's evidence on the issue of whether he pressed on the tops and sides of her breasts was not reliable. It was argued on Dr Morsingh's behalf that the issue was not Patient A's credibility, but her reliability. In other words, it was not alleged that Patient A was being deliberately untruthful in her account of Dr Morsingh touching her breasts during the consultation, but that her evidence was unreliable because, it was said, she experienced a psychiatric event in the course of the consultation which caused her unconsciously to attribute the actions of an Ayurvedic practitioner in India, who had assaulted her on a prior occasion, to Dr Morsingh. Alternatively, it was argued that her memory of the assault in India caused her such high distress that it distorted her memory. 5. In her account of the consultation in her complaint to AHPRA, which is set out in full at [9], Patient A said: Then, without asking consent, or explaining why he was doing this, he lifted the collar of my t-shirt up from my neck and held it for a moment. I felt he was looking at my breasts, then he slid his hand inside my shirt and pressed a point at the top of my breast and said "I love doing this point on women, they always hold a lot of tension here". Which made me really uncomfortable. And sounded perverted. Then he moved his hands to the outside areas of my breasts, under my shirt and began pressing, hard here. I froze. Then I told him to stop as it was very painful, I was already crying but now not from emotional release but being flooded with feeling of confusion and discomfort and had a flashback to a previous sexual assault. He pulled his hands out quickly, though everything happened very fast I felt I really had to assert myself saying no no no stop. It was very painful. [there followed an account of the conversation the subject of other particulars] He then pressed my face and neck more. He then AGAIN pressed my breasts on the sides with his hands, poking them causing pain and saying "this is where you need to do it yourself" touching the sides of my breast and top sides of the breast. This is after I told him not to from the first incident. I recoiled in pain…. 1. Dr Morsingh has seized upon the use of the word 'flashback' by Patient A in her account. In his written submission to the s 150 hearing, Dr Morsingh submitted that because Patient A said that she "froze, she had feelings of confusion, she had feelings of discomfort, she had a flashback to a previous sexual assault, she was emotionally triggered, she had emotional release and her brain is trying to catch up with what is happening" [sic], that she had a flashback of the previous sexual assault which made her believe that the previous sexual assault was happening in the consultation, when in fact it was not. 2. In her statement of 19 March 2019, Patient A said, after recounting the first episode of the touching of her breasts by Dr Morsingh in a similar way to her original complaint: 25. A memory of a previous sexual assault came to my mind, but I did not dissociate from my body or the present environment. 26. A similar situation had happened to me before in India. I had seen an Ayurvedic practitioner who had conducted Marmar therapy on me and he had touched, pressed and massaged my breasts without consent. He was coercive and the feeling became that he was not touching my breasts for my benefit (without consent anyway) but for his sexual gratification. 27. The feeling I had in Dr Morsingh's office was similar but not the same. With Dr Morsingh I felt vulnerable, taken advantage of, a lack of control over the situation and how I was being touched, and that it was not for my benefit, but Dr Morsingh's, and I thought "oh my god this is happening again." 1. Patient A continued, in her statement of 19 March 2019, to relate the conversations referred to in her complaint, about Dr Morsingh's wife and children. She then related the second episode of the touching of her breasts by Dr Morsingh, where he said "this is where you need to do it yourself". She said: 37 I felt disrespected that he was again touching my breasts after he saw and heard that I was uncomfortable with him doing it under my shirt. I felt sad and angry that he was violating my boundaries after I already had to assert them, when he should never have put me in that position in the first place. 38. If he had asked me for consent to touch my breasts I would not have given it. 1. In evidence before us, the following exchange took place between Mr Fuller and Patient A (Tcpt, 7 December 2020, p 31 (30)): Q. Mr Nematalla asked you a lot of questions about your comment in your statement whether you disassociated during this experience? A. Yeah, I, I was completely aware. I, when he was touching my breast, I remembered a past sexual assault incident and thought "Oh my god, this is happening again", and that is the extent of that memory. Q. So, do I have that right, when he touched your breasts, the memory first came to your mind? A. Yes. Nematalla. I think the evidence, with respect, was "my breast". I don't think she used the plural in that answer. Fuller. I assume the transcript will say. Witness. I mean my breasts, when he was touching them, I had a memory. 1. Dr Nielssen, a psychiatrist, provided a written opinion in this matter, dated 19 October 2020, which was tendered in the respondent's case. He said, in the opinion, that he had never interviewed or been involved in the assessment of Patient A. 2. Dr Nielssen said, in his opinion, that high levels of distress can affect memory formation. He said that it was possible that Patient A 'has interpreted the remembered events as having occurred during that consultation'. Dr Nielssen said that a flashback 'can be defined as the sudden, involuntary and often emotionally charged or anxiety provoking memory of past experience'. He said that flashbacks are a common symptom of post traumatic stress disorder, and are often triggered by cues, or reminders of the situation in which the earlier event took place. 3. Dr Nielssen gave evidence by telephone in the Tribunal hearing. The following exchange took place in cross-examination (Tcpt, 9 December 2020, p 33 (41)): Q. You didn't examine Patient A before preparing your report; is that right? A. That's right. Q. Do you agree that it's difficult to make any assessment of the reliability or accuracy of Patient A's memory without examining or speaking with her? A. Yeah, it's difficult to make, for another person to assess the reliability of another person's memory at all let alone if you were able to interview her but, of course, to, to be, for us to review the veracity, obviously you'd have to interview a person. Q. Isn't your report attempting to express an opinion about the reliability or accuracy of Patient A's memory? A. No, it's answering the questions I was asked by the lawyer with regards memory in general and conditions, the effect of, you know, conditions such as post-traumatic stress disorders and other disorders on, on the reliability of memory function. Q. All right, but you were asked two questions in particular about Patient A's memory. Did you understand that you were being asked about her memory? A. That's right but, but in general terms as to how, you know, a person with those conditions might have their memory affected. Q. Is it correct that you are not expressing an opinion about the accuracy or reliability of her memory? A. Well, it's, it's in the terms of possibility, you know, that, that we do know that, you know, extreme, states of extreme arousal influence the reliability of memory and also flashback from post-traumatic stress-type conditions and, and, and distressing reminders of other situations, you know, can be conflated with, you know, current, what's currently going on. Q. In terms of what actually happened with Patient A, are you or are you not able to express an opinion about that? A. No, of course not. I'm, I'm not able to. I don't know what happened. You know, I wasn't there. 1. Dr Nielssen agreed that the formation of an incorrect memory was less likely if Patient A did not detach or dissociate from her body or the environment. He acknowledged that Patient A's evidence was that she did not dissociate. The following exchange took place (Tcpt, 9 December 2020, p 36 (42)): Q. Do you agree with me that her being able to recognise that she didn't dissociate from her environment would be an indication that she was conscious or cognisant of where she was and what was happening to her? A. Yes, yeah, that could be the subjective experience, although, you know, people often don't really that they've, that they've dissociated [sic]. You know, they don't realise that, they mainly recognise it in terms of, of a sort of gap in memory like a, a amnestic period but not necessarily so. Q. Just in this particular case where patient A was able to recognise that she didn't dissociate, do you agree with me that that indicates she was conscious or cognisant of what was happening to her? A. Yes, that's, that's, that's certainly her, her, her perception of it. Yes, I would, I'd agree with that and, I mean though, though I did notice that that was, that that was a detail that was added to the second report and I wondered why that came up, for that matter, but, but, but, yes, if that is her perception that seems less likely to have happened then. … Q. In response to question 3, question 3 is about flashbacks, and you describe what, in your opinion, flashbacks are; do you remember that? A. Yes. Yeah. Q. You describe them as a sudden involuntary and often emotionally charged or anxiety provoking memory of a past experience; do you remember that description? A. Yes. Yes. Q. You reread Patient A's statement this morning; is that – A. Yes. Q. Am I right in understanding that? A. Yes. Q. Do you agree with me now, that, after rereading that statement, she doesn't appear to be describing a memory of that kind? A. Yes. 1. Later in Dr Nielssen's evidence, the following exchange took place with Dr Aitken (Tcpt, 9 December 2020, p 42 (4)): Q. ..I just wanted to know whether you thought that flashbacks could occur in a setting without the patient actually suffering from post-traumatic stress disorder? A. Well, it's not a, a pathognomonic symptom, if you like, of post-traumatic stress disorder. It occurs in other conditions, you know, severe personality disorder, I suppose, and would be, you know, triggered by trauma but without the other part of the syndrome. So, so it can occur without the presence of that, the full syndrome of post-traumatic stress disorder. 1. Dr Nielssen put forward two theoretical possibilities, making it clear, in oral evidence at least, that he was unable to assess the extent to which either of them were relevant to Patient A's memory of Dr Morsingh touching her breasts. 2. One of the theoretical possibilities was that a person in high distress (which included, in his opinion, a person who was crying if they were not usually prone to crying) might form an inaccurate memory on account of a misinterpretation of the events actually occurring. Patient A's memory of the pressing on the top and side of her breasts at one point of the consultation and, after a conversation, the pressing on the sides of her breasts again by Dr Morsingh was clear and formed part of a coherent and cohesive narrative. Patient A is very confident that her memory of the consultation is accurate, and that she was not mistaken about what happened. We note that the sensation of having one's breasts pressed very firmly is unlikely to be a misinterpretation. On her complaint to AHPRA, which contains the first written record of the consultation from Patient A, there is a pro forma question, which is 'Have you or anyone else been harmed by the practitioner?' In response to that question, Patient A selected the following types of harm applicable: * Minor psychological or emotional harm * Minor physical harm * Indecent assault and sexual harassment. * Patient A has never claimed that the incident caused her high distress, though it did make her cry. She was not in high distress when the touching of her breasts began; her distress was largely caused by the touching of her breasts on the first of the two occasions upon which that occurred during the consultation. On her account of the incident, she had the presence of mind to think that she ought to assert herself, and to say "no, no, no, stop". We reject the suggestion that Patient A's memory was made unreliable because she was in high distress or because she misinterpreted what Dr Morsingh was doing. 1. The other theoretical possibility discussed by Dr Nielssen was that Patient A might have had a flashback which caused her to conflate what was happening in the consultation with her previous experience with the Ayurvedic practitioner in India. Dr Nielssen agreed that the fact that Patient A says that she did not experience dissociation during the consultation made this possibility less likely. Dr Nielssen also agreed that Patient A's account of the touching of her breasts does not seem to be a flashback as he understands them. There is no evidence, and no reason to think, that Patient A suffers from post-traumatic stress disorder or from a personality disorder of any kind. In her medical records from the Medical Centre from 7 July 2003 to 28 November 2018, there is no indication of any psychiatric disorder or personality disorder. We accept Patient A's evidence that she protested and told Dr Morsingh to stop when he touched her breasts the first time in the consultation. We note that she had the presence of mind to protest to Dr Morsingh in the moment. We reject the idea that Patient A experienced a flashback of the kind described by Dr Nielssen. 2. Patient A was a careful, thoughtful, sincere witness. Her written accounts of the consultation were largely consistent with her evidence. She was impressive. Under cross-examination, for the first time, the question of the nature of the bed in Dr Morsingh's consulting room arose, and she misremembered the nature of the bed at the time of the consultation, remembering it as moveable, when in fact it was fixed. She also remembered it as being slightly further away from the walls relative to the bed shown to her in photographs taken shortly after the consultation. She remembered the bed as blue, however, and the cushion on it was, in fact, blue, according to the photographs provided as Annexure F of Dr Morsingh's statement to the s 150 hearing. Moveable beds of the kind she described were used elsewhere in the Medical Centre, and, after a renovation of the Medical Centre in 2018 they were placed in all of the consulting rooms. We note that the nature of the bed was not central to Patient A's experience of the consultation. We note that more than two years elapsed between the consultation and Patient A's evidence before us. We also note that the impression of the distance of the bed from the wall would be different for someone lying on the bed than for someone viewing the photographs. We do not consider that Patient A's misremembering of the bed in any way reduces the reliability of her evidence with respect to what she experienced in the consultation by way of the touching of her body by Dr Morsingh. 3. We reject the suggestion that it would not have been physically possible for Dr Morsingh to place his hands down the front of Patient A's top whilst standing behind her head whilst she was lying on the bed. It was clearly possible. Much was made of the distance of the bed from the wall behind the head of the bed, but, of course, the patient's head would not be right at the edge of the top of the bed. This can be clearly seen from the photographs in Annexure F to the statement of Dr Morsingh to the s 150 hearing. 4. We have formed the view that Patient A's account in her complaint to AHPRA was accurate and reliable. It was consistent with her evidence before us. To the extent that her mother's account of what Patient A told her departs from Patient A's complaint, we attribute that to the natural imprecision of such conversations. To the extent that the police statement departs from Patient A's complaint, we attribute that to less than perfect attention being paid to the complaint as it was being recorded. As we have said, there was no attack on Patient A's credibility and we consider her to be a credible witness. For completeness, we observe that no motive whatsoever for Patient A to invent the subject matter of the complaint has emerged. 5. Dr Morsingh denied that he touched Patient A's breasts in the course of the consultation. Dr Morsingh was not an impressive witness. He repeatedly, throughout cross-examination, endeavoured to avoid answering questions directly, preferring instead to try to take control of the subject matter being discussed and to steer it to explanations which might tend to exculpate him, or to topics he wished to emphasise. He frequently interrupted those questioning him. He sought to lecture. He was evasive and distracting. His story has changed over time. He was highly suggestible in evidence at the s 150 hearing, speaking for the first time about performing a test on Patient A's face for numbness, at the suggestion of a panel member, when that formed no part of his written statement to the panel and was not recorded in the notes of the consultation. He explained his actions differently from time to time; for example, he said, at the s 150 hearing that he made the entry in Patient A's notes on 30 November 2018 to record the giving of the doTerra oil, but, before us, he said that his motive in making the additional note was to show that he had considered an alternative diagnosis, namely trismus (see [29]). 6. We are satisfied to the requisite standard of proof that the facts alleged in Particular 1 of Complaint 1 have been made out by the HCCC. We are further satisfied that those facts constituted a breach of sexual boundaries, which we will discuss further below at [128]-[130]. 7. Complaint 1 Particular 2 in the Application is as follows: 2. During the breast examination, the practitioner breached sexual boundaries in that he: (a) slid his hand inside Patient A's shirt and pressed a point at the top of her breast: (b) whilst engaging in the conduct described at sub-particular (a) above, said words to the effect of "I love doing this point on women, they always hold a lot of tension here". 1. Dr Morsingh, in his Reply, denies Particular 2. 2. In Patient A's complaint to AHPRA, in her written statement of 19 March 2019 and in her report to the Police, she says that Dr Morsingh said "I love doing this point on women they always hold a lot of tension here" as he pressed points at the top of her breasts during the consultation. Patient A was clear, in her evidence, that Dr Morsingh made this comment. She explained, in her complaint, why the comment struck her (see [9]). She was also clear that he had pressed points at the top of her breasts. 3. Dr Morsingh denied making the comment, as he denied pressing points at the top of Patient A's breasts. 4. For the reasons set out in [64]–[67] above, we prefer the evidence of Patient A to the evidence of Dr Morsingh. 5. The facts alleged in Complaint 1 Particular 2 have been proven to the requisite standard of proof, which is the balance of probabilities to the Briginshaw level of persuasion. We are also satisfied that the facts alleged in Particular 2 amounted to a breach of sexual boundaries (see below at [128]-[130]). 6. Complaint 1 Particular 3 in the Application is as follows: 3. The practitioner conducted an inappropriate examination on Patient A's neck and shoulders when he pressed acupressure points in circumstances where the practitioner did not: (a) take a history of neck pain; (b) explain why he needed to check for tenderness in Patient A's neck and shoulders; (c) obtain informed consent prior to conducting the examination. 1. Dr Morsingh, in his Reply, denies Particular 3. 2. Dr Morsingh has conceded that he pressed points on Patient A's neck and shoulders in the course of the consultation. In his written statement to the s 150 hearing, he said, at p 8, paragraph 51: …Moving to the sternocleidomastoid muscle over the side of the neck, and towards the clavicle, the insertion the muscle. This is where she probably felt a rustle of the collar. And over the midpoint of the trapezius at the shoulder level, at the point in acupuncture that they cause GB 21, which is a distal branch of the XI spinal accessory nerve. Also under the collar. 1. Dr Morsingh did not say, in his statement to the s 150 hearing, that he asked for Patient A's consent to press points on her neck and shoulders. However, in evidence before the s 150 hearing, the following exchange took place, shortly after the exchange set out at [24] above, beginning at p 22 at line 33: MORSINGH:I explained to her that I will be pressing these points and as I had done so several years prior the process was very similar. MEMBER HOUEN: But did you - did you explain to her that you were doing that examination because of her previous history of neck and shoulder pain? MORSINGH: I explained to her that I'm just assessing this area related to her nerves. MEMBER HOUEN: But not that you were doing that because you had firsthand knowledge that she had previously-- MORSINGH: No, but I was basing it on previous experience with this patient. MEMBER HOUEN: Yes, but you didn't discuss that with her. Is that correct? MORSINGH: Correct. 1. Earlier in his evidence to the s 150 hearing, Dr Morsingh said (p 20 line 38 to line 41): The TMJ wasn't tender. There was no protest and then I asked if I could press the muscles on the side of the head, so the temple, the temporalis, the side of the jaw, the masseters, and the back of the neck, the origin of the trapezius. 1. Before us, the following exchange took place (Tcpt, 8 December 2020, p 68 (11)): Q. So where were your fingers under her collar? At what point do you accept that your fingers were under the collar? A. When I was placing them at the top of the shoulder blades. Q. When your fingers do go under her collar you hadn't told her that you were doing that, is that right? A. I was moving sequentially from part to part and she nodded. Q. Had you told her that you were going to put your fingers under her collar? A. No. Q. Had you asked her whether you could do that? A. By her nodding I was thinking she had implied consent. Q. Nodding to what, what did she nod to? A. So when I was examining the back of the neck she lent forward like someone who's having a haircut to assist the barber to cut the back of, of the neck and head. Q. But she wasn't nodding when you were down on the neck? A. No, but she lent forward. Q. You hadn't explained to her why you were pressing under her collar, correct? A. No, in the beginning I mentioned about how the nerves can affect different muscle groups. So that was brought up in the beginning. 1. On the basis of Patient A's evidence, we are satisfied to the requisite standard of proof that Dr Morsingh neither sought nor obtained Patient A's consent to press points on her neck and shoulders. We accept Patient A's version of the consultation, including that Dr Morsingh examined her whilst she was lying on the bed and not, as he claimed, while she was sitting on the chair with him standing in front of her. We are satisfied to the requisite standard of proof that he did not explain to her why he was pressing points on her shoulders and neck. It is plain from Patient A's complaint and her evidence that Dr Morsingh did not, at any time, tell her that, rather than examining her in relation to her presenting complaint, namely a burning sensation in her right cheek, he was exploring a complaint she had last raised in 2012 or 2013, some five or six years before. We note the significant variations in and between the various accounts of Dr Morsingh with reference to the issue of consent. We reject his evidence where it is at variance with Patient A's evidence. 2. It is common ground between the parties that Dr Morsingh did not, in the consultation, or at any time subsequent to 2013, take a history of neck pain from Patient A. We are satisfied that Dr Morsingh mentioned "chronic" neck pain in addressing the Application in an effort to create an explanation for his physical examination of Patient A's neck and shoulders. There is no evidence that Patient A had chronic neck pain in 2018. 3. We acknowledge that, before us, Dr Morsingh resiled from some of his evidence to the s 150 hearing. Dr Morsingh argued, before us, that rather than moving to deal with neck and shoulder pain when examining Patient A's neck and shoulders, which is what he had told the s 150 hearing that he was doing, he was, in addition, assessing myofascial trigger points which could have been related to the cheek symptom. This evidence was related to the evidence of A/Professor Clyne, who said in his report at p 19: If Dr Morsingh had taken a proper history, performed an adequate and competent physical examination and ordered relevant investigations, had excluded serious causes and had come to a diagnosis of a cervical spine lesion at or above the level of C3, then a treatment of cervical myofascial release or mobilisation would have been appropriate. Those preconditions were not met. Dr Morsingh, in the s 150 hearing (at p 21 of the transcript), said that he examined the back of Patient A's neck to investigate possible neuralgia. He consistently said in the s 150 hearing that his examination of Patient A's neck and shoulders was associated with her previous neck pain, which was in 2012/13, rather than having anything to do with the burning sensation in her right cheek. Dr Morsingh's account of his purpose in touching Patient A's neck and shoulders has varied over his accounts to the point where we consider his evidence on this issue to be unreliable. 1. The facts alleged in Complaint 1, Particular 3 have been established to the requisite standard of proof. We are also satisfied that the examination was inappropriate, as alleged, for the reasons set out in [131]-[135], below. 2. Complaint 1 Particular 4 in the Application is as follows: 4. The practitioner continued the neck and shoulder examination on Patient A and said words to the effect of "I need to keep checking the rest" in circumstances where: (a) Patient A was emotional and crying during the examination; (b) the practitioner should have ceased the examination at this point. 1. Dr Morsingh, in his Reply, denies Particular 4. 2. In evidence before us, Dr Morsingh admitted that Patient A cried when he was examining her neck. He said that he stopped for 'several seconds'. It was put to him that he said to Patient A that he needed to keep going, and he replied, at p 65 line 43: I wanted to complete the examination of her neck. 1. In his evidence before the s 150 hearing, at p 20 of the transcript, line 41, Dr Morsingh said: Where the greater occipital nerve came out there was tenderness. There was some kind of emotional reaction so I took a pause and I didn't know exactly what it was but there was some kind of emotional reaction and there was a pause and then after the pause I said "I need to keep checking the rest" and I also palpated the side of the neck…" 1. Later, in his evidence before the s 150 hearing, Dr Morsingh described Patient A's reaction in the following way (p 26, line 31): She had a wealth of tears … 1. In cross-examination before us, Dr Morsingh agreed that, at the point at which Patient A 'had a wealth of tears', he should have stopped his examination. In the context of the consultation in which the examination which was occurring was not clinically indicated, we agree (see [131]-[135], below). 2. Complaint 1 Particular 4 has been established to the requisite standard of proof. 3. Complaint 1 Particular 5 in the Application is as follows: 5. The practitioner breached professional boundaries in that he commented on Patient A's physical appearance and said words to the effect of: (a) "people in India must be mesmerised by your eyes", (b) "you really have the most beautiful eyes, I've always told you that. You have beautiful eyes". (c) "are you a hippy now?". 1. Dr Morsingh, in his Reply, denies Particular 5. 2. Dr Morsingh has admitted asking Patient A at the consultation if she was a hippy (see, for example, his written statement to the s 150 hearing at p 11). 3. Dr Morsingh denies making the comments in particular (a) and (b). Before us, the following exchange took place (Tcpt, 8 December 2020, p 42 (18)): Q. You said to [Patient A] during the consultation, didn't you, that "People in India must be mesmerised by your eyes?" A. No. Q. Did you make any comment at all about her eyes? A. Only the point that I didn't see any paleness or pallor in her eyes, that's it. Q. So you did observe her eyes; is that right? A. To, only to that extent. Q. So the answer is yes? A. To the extent I mentioned that I didn't notice a pallor – Q. That's not something… A. ..in the, in the context of a patient who's been a vegetarian and who's had an issue of low B12 and low iron. Q. Your observations about her eyes is not something recorded in your clinical notes, is it? A. No, but there is a pre-existing entry before my consultation— 1. Dr Morsingh did not mention his observations with respect to Patient A's eyes in either his written statement to the s 150 hearing or in the course of that hearing. 2. For the reasons set out above, we prefer the evidence of Patient A to the evidence of Dr Morsingh. Patient A said consistently that the comments in particular 5(a) and (b) were said to her by Dr Morsingh in the consultation. We accept her evidence. 3. We find that the facts alleged in Complaint 1 Particular 5 have been established to the requisite standard of proof. We also find that the comments alleged in Particular 5, in the context of the consultation, constituted a breach of professional boundaries (see [131]-[135], below). 4. Particular 6 of Complaint 1 is as follows: 6. The practitioner breached professional boundaries in that he partially disrobed in front of Patient A to reveal a Phoenix and lotus flower tattoo on his left shoulder in circumstances where: (a) Patient A advised the practitioner that she did not want to see his tattoo. (b) there was no clinical reason for the practitioner to show Patient A his tattoo. 1. In his Reply, Dr Morsingh's response to Particular 6 of Complaint 1 was: Dr Morsingh says the displaying of the tattoo fell below the required standard but denies any sexual gratification or connotation whatsoever. 1. We accept the evidence of Patient A that she told Dr Morsingh that she did not want to see his tattoo. Obviously, there was no clinical reason to show it to her. Dr Morsingh admits that he undid two buttons on his shirt and pulled it off his shoulder to show her the tattoo. 2. The facts alleged in Complaint 1 Particular 6 have been established to the requisite standard of proof. We are satisfied that the facts alleged constituted a breach of professional boundaries (see [131]-[136], below). 3. Particular 7 of Complaint 1 is as follows: 7. The practitioner breached professional boundaries in that he disclosed information of a personal nature to Patient A, including: (a) his separation from his wife; (b) that he had twins; (c) that his wife is trying to turn the twins against him; (d) that he had been reborn and risen as a phoenix and that his tattoo was a representation of this; (e) that the lotus flower tattoo on his left shoulder was a representation of his wife/ex-wife. 1. In his Reply, Dr Morsingh's response to Particular 7 of Complaint 1 was: Dr Morsingh admits the matters associated with personal information sharing regarding the demise of his marriage fell below the required standard. 1. Dr Morsingh, in his written statement to the s 150 hearing, admitted the matters set out in Particular 7. 2. The facts alleged in Complaint 1, Particular 7 have been proven to the requisite standard of proof. We are satisfied, and Dr Morsingh has conceded, that his disclosures breached professional boundaries. 3. Particular 8 of Complaint 1 is as follows: 8. The practitioner inappropriately displayed doTERRA oils and diffusers for sale in his consult rooms in circumstances where: (a) the practitioner's wife received a financial benefit, through commission, from the sale of the doTERRA oils and diffusers; (b) there is a lack of evidence for efficacy of aromatherapies. 1. In his Reply, Dr Morsingh's response to Particular 8 of Complaint 1 was: Dr Morsingh admits the display of doTERRA oils fell below the required standard however denies the application of the oil fell below any standard. 1. Dr Morsingh admitted in evidence before us that he displayed doTerra oils and diffusers for sale in his consulting rooms. He further admitted that his wife received a financial benefit through commission from the sales from his consulting rooms. 2. Dr Ee, in her written statement, said that there was a 'paucity' of evidence for the oils (see p 8), which we take to mean a paucity of evidence for the efficacy of the oils. We accept this evidence. It was not contradicted. It is plain from p 68 to p 70 of the transcript of the s 150 hearing that Dr Morsingh was aware, that, in medical terms, there was a paucity of evidence for the efficacy of the doTerra oils. 3. The facts alleged in Complaint 1, Particular 8, have been proven to the requisite standard of proof. The inappropriateness of the display and sale of the diffusers and oils has been conceded. 4. Particular 9 of Complaint 1 is as follows: 9. The practitioner failed to provide adequate information and explanation to Patient A regarding the paucity of evidence in relation to the use of aromatherapies to enable Patient A to give proper informed consent in relation to the purchase and use of doTERRA oils. 1. Dr Morsingh, in his Reply, denies Particular 9. 2. It is plain, on the evidence, that Dr Morsingh did not give Patient A any written information about the doTerra oils (see Dr Ee's statement, at p 8). Dr Morsingh does not claim, in any of his accounts, to have given Patient A any written information about the doTerra oils. In his written statement to the s 150 hearing, he says that he gave Patient A a vial of the oil 'and indicated that some of the oils may be useful in her line of work' (see p 10). Clearly, this did not amount to giving her information about the efficacy of the oils. 3. In his report of 22 October 2020, A/Professor Clyne said at p 13: To my understanding, and as would be understood by competent, peer general practitioners, there is no reliable evidence that any "essential oil" applied to or rubbed onto the skin provides any therapeutic benefit additional to its effect as a topical lubricant for the administration of myofascial manual therapy. 1. Complaint 1, Particular 9 has been established to the requisite standard of proof. 2. Particular 10 of Complaint 1 is as follows: 10. The practitioner breached professional boundaries in that he hugged Patient A in circumstances where Patient A: (a) did not initiate the hug; (b) was not a regular patient of the practitioner; (c) had already told the practitioner earlier in the consultation to stop touching her. 1. In his reply, Dr Morsingh's response to Particular 10 of Complaint 1 was: Dr Morsingh denies hugging Patient A. 1. Patient A has consistently said that Dr Morsingh hugged her at the end of the consultation. Dr Morsingh has consistently denied it. 2. As we have said, we believe Patient A. She was a credible, thoughtful and sincere witness. There is evidence from her mother that she was upset about what had happened at the consultation later on the same day. Her complaint was made shortly after the consultation, and it is a coherent narrative. Her credibility was not, in fact, challenged. Much of her account of the consultation is not challenged. Dr Morsingh was not a reliable witness, for the reasons set out in [67] above. On the basis of Patient A's evidence, the allegation that Dr Morsingh hugged Patient A has been established to the requisite standard, which is on the balance of probabilities, with the Briginshaw level of confidence in the evidence. We are also satisfied that the hug breached professional boundaries. The relationship between Dr Morsingh and Patient A was strictly a doctor/patient relationship (see [138] below). 3. Particular 11 of Complaint 1 is as follows: 11. By reason of Particulars 1, 2, 5, 6 and 10 individually or in any combination, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A. 1. Dr Morsingh, in his Reply, denies Particular 11. 2. We have found that the facts alleged in Particulars 1, 2, 5, 6 and 10 have all been established. Particular 11 alleges that 'individually or in any combination', those facts constitute 'inappropriate conduct of a sexual nature towards Patient A'. 3. Particular 1 encompasses the 'breast examination' by Dr Morsingh, which we take to mean all of the touching of the top and sides of Patient A's breasts. This examination was wholly unnecessary as part of the consultation, regardless of whether the consultation related solely to Patient A's presenting symptom of a burning sensation in her right cheek, or whether, contrary to our findings, it related to the neck pain she had reported in 2012. There was no reason for Dr Morsingh to touch Patient A's breasts other than for his own sexual gratification. We determine that the touching of Patient A's breasts by Dr Morsingh was inappropriate conduct of a sexual nature towards Patient A. It follows that Particulars 1 and 2 of Complaint 1, both individually, and together, constitute inappropriate conduct of a sexual nature. 4. There is overlap between Particulars 1 and 2 with respect to the physical touching. The comment alleged in Particular 2, whilst inappropriate, is not necessarily sexual, however, combined with the actions taking place at the same time, namely the clinically unnecessary pressing of a point on Patient A's breasts, we find that it was sexual. The conduct alleged in Particulars 5, 6 and 10 is not necessarily sexual. We acknowledge that the context of the entire consultation gives rise to the suspicion that the facts alleged in Particulars 5, 6 and 10 were sexual, but we are not persuaded to the requisite standard. The conduct may, for example, rather than being sexual, have been an attempt by Dr Morsingh to establish a bond of sympathy and trust with Patient A after his painful pressing on her breasts caused her to cry as a result of her confusion and discomfort, as she describes in her complaint. He may have been trying to evoke in Patient A feelings of sympathy in an effort to influence her not to take any action in relation to his touching of her breasts. It was not put to Dr Morsingh in cross examination that the facts in Particulars 5, 6 and 10 constituted conduct of a sexual nature. Unsatisfactory professional conduct 1. Complaint 1 alleges that the conduct in the particulars discussed above constitute unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. The National Law, in s 139B, sets out the meaning of unsatisfactory professional conduct as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. The National Law provides, in s 41: 41 Use of registration standards, codes or guidelines in disciplinary proceedings An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered in a health profession for which the Board is established as evidence of what constitutes appropriate professional conduct or practice for the health profession. 1. The HCCC provided the Tribunal with the Medical Board of Australia's document entitled 'Guidelines: Sexual Boundaries in the Doctor-Patient Relationship' dated 12 December 2018. Below, we reproduce some extracts of that document: 2. Why breaching sexual boundaries is unethical and harmful Doctors are expected to act in their patient's best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons including: • Power imbalance: The doctor-patient relationship is inherently unequal. The patient is often vulnerable and in some clinical situations may depend emotionally on the doctor. To receive healthcare, patients are required to reveal information that they would not reveal to anyone else and may need to allow a doctor to conduct a physical examination. A breach of sexual boundaries in the doctor-patient relationship exploits this power imbalance. • Trust: Patients place trust in their doctor. They have a right to expect that examinations and treatment will only be undertaken in their best interests and never for an ulterior, sexual motive. • Safety: Patients subjected to sexual behaviour from their doctor may suffer emotional and physical harm. • Quality: A doctor who sexualises patients is likely to lose the independence and objectivity needed to provide them with good quality healthcare. • Public confidence: Members of the community should never be deterred from seeking medical care, permitting intimate examinations or sharing deeply personal information, because they fear potential abuse. 3. Breaches of sexual boundaries (spectrum of behaviours) There is a wide range of behaviours that breach sexual boundaries, from making unnecessary comments about a patient's body or clothing, to criminal behaviour such as sexual assault. Unwarranted physical examinations or inappropriate touching during a consultation and examination may constitute sexual assault. AHPRA will advise and support notifiers to report criminal behaviour to the police. 3.1 Spectrum of behaviours Breaches of sexual boundaries include: • engaging or seeking to engage in a sexual relationship with a patient regardless of whether the doctor believes the patient consented to the sexual relationship • conducting a physical examination which is not clinically indicated or when the patient has not consented to it. An unwarranted physical examination may constitute sexual assault or abuse • behaviours of a sexual nature including: − making sexual remarks including sexual humour or innuendo − flirtatious behaviour − touching patients in a sexual way − engaging in sexual behaviour in front of a patient − using words or acting in a way that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire • asking a patient about their sexual history or preferences, when these are not relevant to their healthcare and without explaining why it is necessary to discuss these matters • sexual exploitation or abuse • sexual harassment • sexual assault. (footnotes omitted) 1. The Guidelines on sexual boundaries defines an 'intimate examination' as follows: Intimate examination means an examination that a patient or a member of the public may reasonably regard as intimate, usually the breasts, genitalia or an internal examination (vaginal or rectal). The definition of an intimate examination may also be affected by a patient's cultural values and beliefs. 1. The conduct in Particulars 1 and 2 is obviously improper and unethical, and that is made clear in the Guidelines on sexual boundaries. It also constitutes care which is significantly below the standard reasonably expected of a medical practitioner. The conduct in Particulars 1 and 2 is unsatisfactory professional conduct within the meaning of s 139B(1)(a) and (l). 2. The HCCC provided the Tribunal with a copy of the Medical Board of Australia's document entitled 'Good Medical Practice: A Code of Conduct for Doctors in Australia' dated March 2014. 3. In the Code of Conduct, under the heading 'Providing Good Care', the Code states: 2.2 Good patient care Maintaining a high level of medical competence and professional conduct is essential for good patient care. Good medical practice involves: … 2.2.4. Considering the balance of benefit and harm in all clinical management decisions. 2.2.5 Communicating effectively with patients. … 2.2.7 Taking steps to alleviate patient symptoms and distress, whether or not a cure is possible. … 2.4 Decisions about access to medical care Your decisions about patients' access to medical care need to be free from bias and discrimination. Good medical practice involves: 2.4.1 Treating your patients with respect at all times. 1. In the Code of Conduct, under the heading 'Working with patients', the Code states: 3. Working with patients Relationships based on respect, openness, trust and good communication will enable you to work in partnership with your patients. 3.2 Doctor-patient partnership A good doctor-patient partnership requires high standards of professional conduct. This involves: 3.2.1 Being courteous, respectful, compassionate and honest. … 3.2.6 Recognising that there is a power imbalance in the doctor-patient relationship, and not exploiting patients physically, emotionally, sexually or financially. 3.3 Effective communication An important part of the doctor-patient relationship is effective communication. This involves: … 3.3.3 Informing patients of the nature of, and need for, all aspects of their clinical management, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment. … 3.5 Informed consent Informed consent is a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved. …Good medical practice involves: … 3.5.2 Obtaining informed consent or other valid authority before you undertake any examination, investigation or provide treatment (except in an emergency), or before involving patients in teaching or research. 1. Under the heading 'Professional Boundaries' the Code states: 8.2 Professional Boundaries Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves: 8.2.1 Maintaining professional boundaries. 8.2.2 Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. This includes those close to the patient, such as their carer, guardian or spouse or the patient of a child patient. Specific guidelines on sexual boundaries have been developed by the Medical Board of Australia under the National Law. 8.2.3 Avoiding expressing your personal beliefs to your patients in ways that exploit their vulnerability or that are likely to cause them distress. 1. In examining Patient A's neck and shoulders, as alleged in Particular 3, without any purpose connected with her presenting symptom of a burning sensation in her right cheek, without eliciting a contemporary complaint of neck pain, without giving any explanation and without obtaining consent, Dr Morsingh breached clause 3.3 and 3.5 and clause 8.2.1 of the Code of Conduct and s 139B(1)(a) and (l) of the National Law. In continuing to undertake this examination, even though Patient A was crying, as alleged in Particular 4, Dr Morsingh breached clause 3 and clause 8.2.1 of the Code of Conduct and s 139B(1)(a) and (l) of the National Law. In making comments about Patient A's eyes and her clothes, as alleged in Particular 5, Dr Morsingh was in breach of clauses 3.2.1, 3.2.6 (with respect to emotional manipulation) and 8.2.1 of the Code of Conduct, which constitutes unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law. 2. With respect to Particular 6, which is the undressing to display the tattoo, Particular 7, which is the disclosure by Dr Morsingh of matters to do with his family problems, and Particular 8, which has to do with the display and sale of doTerra oils, Dr Morsingh admits, in his Reply, that these actions constitute unsatisfactory professional conduct. We agree. This constitutes unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law. 3. Particular 9 relates to the failure to give information to Patient A about the paucity of evidence with respect to the doTerra oil, which we have taken to be a reference to a paucity of evidence about the therapeutic effectiveness of doTerra oils. We have found that the allegations in Particular 9 have been proven. Dr Morsingh is in breach of clauses 3.3.3 and 3.5.2 of the Code of Conduct, which constitutes unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law. 4. Particular 10 relates to the hug at the end of the consultation. The hug was a clear breach of clause 8.2.1 of the Code of Conduct. In the context of this particular consultation, it constitutes unsatisfactory professional conduct within the meaning of s 139B(1)(a) and (l) of the National Law. Professional Misconduct 1. Complaint 2 in the Application is as follows: The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 2 engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspensions or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT TWO Background for Complaint One is repeated.[sic] PARTICULARS OF COMPLAINT TWO 1. Complaint One, Particulars 1 and 2 are repeated and relied on individually; 2. Complaint One and the particulars thereof are repeated and relied on cumulatively. 1. Dr Morsingh, in his Reply, denied complaint two 'in its entirety'. 2. 'Professional misconduct' is defined in s 139E of the National Law as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten J said: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. 1. In Health Care Complaints Commission v Do [2014] NSWCA 307, Meagher JA said: 35 The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36 In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37 In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. Complaint 2 poses two questions for the Tribunal. The first question is whether the conduct described in Particulars 1 and 2 of Complaint 1, taken together, are of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. The second question is whether the conduct described in all of the particulars of Complaint 1, taken together, are of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 2. In this decision, we are determining Stage 1 of this complaint, which involves a determination as to the culpability of the practitioner with respect to the matters alleged in the Application. At this stage, in considering whether Dr Morsingh's conduct amounts to professional misconduct, we must consider the degree of seriousness of the nature of the conduct. In the event that it is decided, in Stage 1, that Dr Morsingh's conduct is of a sufficiently serious nature to constitute professional misconduct, that does not necessarily mean that suspension or cancellation will be the outcome of the Stage 2 process, which is the consideration and determination of what protective orders are appropriate. Stage 2 involves, among other things, the consideration of the conduct in its context, including the practitioner's circumstances, both at the time of the conduct and subsequently. 3. All patients, including young women, are entitled to expect, when they attend a medical appointment, that they will not be touched for purposes unconnected with medical diagnosis or treatment, particularly sexually. Patients ought to be safe and feel safe in a medical practitioner's rooms during a consultation. There is a strong public interest in upholding these basic expectations, which underpin the Code of Conduct and the Guidelines on sexual boundaries. 4. The National Law, in s 3A says; 3A Objective and guiding principle [NSW] In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. Note— This section is an additional New South Wales provision. 1. The conduct set out in Particulars 1 and 2 of Complaint 1, individually and collectively, constitutes professional misconduct. It follows that the conduct set out in all of the particulars to Complaint 1, taken together, constitute professional misconduct. 2. In so determining, we have simply responded to the Application as it was pleaded by the HCCC. We are not to be taken to be implying that Particulars 3 to 10 in Complaint 1, individually, do not constitute professional misconduct. We have not addressed that issue because it does not arise on the pleadings. 3. Complaint 2 has been established to the requisite standard, which is the balance of probabilities with the Briginshaw level of persuasion. Conclusion 1. We make the following determinations: * Dr Morsingh conducted himself in the manner alleged in each of the particulars in Complaint 1 in the Application and the conduct described in each particular constitutes unsatisfactory professional conduct. * Dr Morsingh's conduct as described in Complaint 1, Particulars 1 and 2, both individually and collectively, constitutes professional misconduct as alleged in Complaint 2 in the Application. 1. We make the following directions: 1. The HCCC is to provide to the Tribunal, and to the respondent, a statement as to the protective orders it is seeking as a consequence of the findings of unsatisfactory professional conduct and professional misconduct, together with the evidence on which it intends to rely, and submissions, on or before 1 March 2021. 2. The respondent is to provide to the Tribunal and to the applicant evidence and submissions in response, on or before 15 March 2021. 3. The applicant is to provide to the Tribunal and to the respondent any material in reply, on or before 22 March 2021. 4. The parties are jointly to provide to the Tribunal, on or before 1 March 2021, a range of dates, subsequent to 22 March 2021, for the Stage 2 hearing. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2021