Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ghougassian [2021] NSWCATOD 169 Hearing dates: 27 - 30 September 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Occupational Division Before: Cowdroy AO QC ADCJ, Principal Member Dr J Spies, Senior Member Dr S Cowap, Senior Member D Telford, General Member Decision: The Tribunal orders that: (1) The conduct of the respondent satisfies the definition of unsatisfactory professional conduct as referred to in Complaints One to Four inclusive; (2) The proceedings be adjourned part heard until December 10, 2021, or until such earlier date as may become available for the hearing of submissions concerning the imposition of any disciplinary sanctions. Catchwords: HEALTH - professional registration and discipline - practitioner photographing infant daughter of patient – photographs not relevant to the patient's medical treatment and condition – failure of medical practitioner to obtain written consent prior to making photographs of infant –practitioner's requesting patient to remove portion of clothing – failing to maintain proper records – practitioner making video recording of patient – failing to obtain proper consent to video filming – patient requested to remove clothing unnecessary examination of patient – failure to maintain video recording in records. Legislation Cited: Health Practitioner Regulation (New South Wales) Regulation 2010 Health Practitioner Regulation (New South Wales) Regulation 2016 Health Practitioner Regulation National Law (NSW) Medical Practice Act 1992 (NSW) Medical Practice Regulation 2003 (NSW) Medical Practice Regulation 2008 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v SafeWork NSW [2017) NSWCA 41 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 Parker v Comptroller-General of Customs (2009) 83 ALJR 494; [2009] HCA 7 R v Byrnes (1995) 183 CLR 501; [1995] HCA 1 Slezak, Dr Peter [2011] NSWMPSC 10 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Daniel Ghougassian (Respondent) Representation: Counsel: I Chatterjee (Applicant) A Horvath SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2020/00327196 2021/00089901 Publication restriction: Pursuant to Section 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the name of any person other than the respondent and the expert witnesses is prohibited. REASONS FOR DECISION 1. By Application for disciplinary findings and orders dated 13 November 2020, the applicant seeks the following orders: "1. An order prohibiting the disclosure of the name of the persons listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013. In the event the subject-matter of a complaint is proved or admitted, the applicant seeks: 2. Protective orders under section 149A (caution, reprimand, counsel etc.) section 149B (fine) and/or section 149C (suspension, cancellation or prohibition order) of the National Law; and 3. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law." 1. The grounds of the application are as follows: "The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a),(b) and/or (l) and/or professional misconduct within the meaning of section 139E of the National Law." The Complaint 1. The applicant's Further Amended Consolidated Complaint filed on 27 September 2021 includes five complaints. The Tribunal will set out the consolidated complaints hereunder. The Tribunal notes that certain particulars in Complaint Four (as indicated hereunder) incorrectly refer to Complaint One. The respondent has filed a Reply dated 19 July 2021 and the respondent's admission or otherwise of each complaint will follow at the end of each complaint alleged against him. 2. The respondent is a long-standing neurologist and neuro pathologist who has been engaged in practice for almost 20 years. In summary, the conduct which gives rise to these proceedings relates to: 1. Complaint One: Patient A of the respondent had a daughter (Person X) who was a minor. The respondent, without consent made a video recording of Person X in circumstances where there was alleged to be no clinical need for such conduct. 2. Complaint Two: failing to maintain adequate records of Patient A; 3. Complaint Three: filming Patient B whilst undressing and wearing only her underclothing; failing to inform the patient that he proposed to present the recording to medical colleagues at a hospital; failing to confirm that the patient understood the consent which she was asked to sign; 4. Complaint Four: failing to keep adequate records; 5. Complaint Five: that the foregoing conduct constitutes professional misconduct. Complaint One 1. Complaint One alleges that the respondent is guilty of unsatisfactory professional conduct under sections 139B(1)(a) and/or 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) (the National Law) in that the practitioner has engaged in conduct that demonstrates the knowledge or judgement possessed, or care exercised by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and secondly that the practitioner engaged in improper, or unethical conduct relating the practice or purported practice of medicine. 2. The respondent admits the allegation. Particulars of Complaint One 1. The Particulars are as follows: "1. During some of the consultations listed in Annexure A the practitioner inappropriately interviewed Person X about Patient A's health issues in circumstances where he failed to arrange for Person X's parent(s) or another appropriate adult to be present to support Person X. 2. On 21 April 2018 the practitioner inappropriately photographed Person X's legs in circumstances where: a. Person X was a minor; b. the practitioner photographed Person X without Person X's parents or another appropriate adult present to support Person X; c. Person X was not the practitioner's patient; d. the photographs were not relevant to Patient A's medical treatment and condition. 3. On 21 April 2018 the practitioner inappropriately photographed Person X's legs without adequate consent in that: a. the practitioner should have been aware that Person X may not possess the cognitive maturity to consent to and understood the reason for him taking the photographs; b. the practitioner did not have the consent of Person X's parents or guardian before taking photographs of Person X. 4. On 14 May 2018 the practitioner inappropriately recorded video of Person X's shoulders and/or back in circumstances where the recording was not for a purpose related to the respondent's practice of medicine. 5. On 14 May 2018 the practitioner inappropriately told Person X to undo her bra and hold her bra in her hand while he recorded video of her back and/or shoulders in circumstances where: a. particulars 2(a)-(d) are repeated; b. the practitioner failed to offer Person X adequate privacy when she was undressing and dressing such as use of a separate room, screen or other barrier. 6. On 14 May 2018 the practitioner inappropriately Person X [sic] recorded video of Person X's shoulders and/or back without adequate consent in that: a. the practitioner should have been aware that Person X may not possess the cognitive maturity to consent to and understood the reason for him taking the recordings; b. the practitioner did not have any discussion with Person X's parents or guardian beforehand to obtain their written consent to him taking the recordings of a minor. 7. On 14 May 2018 the practitioner inappropriately recorded video of Person X's shoulders and/or back for the purpose of a presentation to other health professionals and/or students and for research purposes in circumstances where: a. the practitioner did not have consent to make the recordings for the above purposes; b. at the time of the recording the nature of practitioner's proposed 'research' was not defined or documented in any research protocol in a manner to make for the recordings reasonable for the purported purpose; c. the practitioner had not taken any steps set out in the Medical Board of Australia's "Code of Conduct" section 11 "Undertaking research". 8. In June 2018 the practitioner contacted Patient A's husband and requested that he obtain a referral for the practitioner to see Person X as a new patient. The practitioner's request was inappropriate in that he sought the referral for the sole or dominant purpose of creating a medical record to store the recordings of Person X referred to above." Respondent's Reply 1. As to particular 1: the respondent admits such particulars. 2. As to particulars 2 and 3: the respondent states that at the time he took the photographs of Person X he believed they were relevant to Patient A's medical treatment and condition; that Person X had cognitive maturity to understand the reason for the photographs and had cognitive maturity to consent. However, the respondent acknowledges that it was inappropriate to photograph Person X who is a minor without Person X's parents or another appropriate adult person present to support Person X. 3. As to particular 4: the respondent denies taking photographs of Person X on 14 May 2018. 4. As to particular 5 and 6: the respondent states that on 14 May 2018 he used his video camera to take a video of Person X's back; that at the time he took such images he believed they were relevant to Patient A's medical treatment and condition; that Person X had the cognitive maturity to understand the reason for the images and the cognitive maturity to consent. He admits that Person X did not have adequate privacy when undressing and dressing. However, the respondent admits it was inappropriate for him to have engaged in such conduct without the consent of Person X's parents or another appropriate adult person present to support Person X. 5. As to particular 5, the respondent states that he videotaped Person X's back only for the purpose of taking a still image since his camera was not operational. 6. In answer to particular 7: the respondent states that the video was never presented to other health professionals. 7. As to particular 8: the respondent states that the video has been destroyed. Complaint Two 1. This complaint alleges that the respondent is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the respondent has contravened the Medical Practice Regulation 2003 (NSW) (repealed), the Medical Practice Regulation 2008 (NSW) (repealed) and/or the Health Practitioner Regulation (New South Wales) Regulation 2010 (repealed). Particulars of Complaint Two 1. The Particulars are as follows: "1. The practitioner's overall record keeping for his care and treatment of Patient A lacked an appropriate level of detail contrary to sch 4, cl 3(1) of the 2016 Regulation in that his clinical record for Patient A did not record: a. a sufficiently objective assessment of Patient A's behavioural and mood disturbance relevant to whether pharmaceutical management was indicated and appropriate, in particular on 23 November 2017 and 16 April 2018; b. the practitioner's interactions with Patient A's husband and daughter about Patient A's behaviour and mood, and his interactions with Patient A generally including his reliance on Person X's diary in the context of Patient A's consultations and treatment; c. a consent and any information about his photography and the recordings of Person X insofar as they concerned Patient A." Respondent's Reply 1. the respondent admits he is guilty of unsatisfactory professional conduct and admits particular 1 of Complaint Two. Complaint Three 1. This complaint alleges that the respondent is guilty of professional misconduct under section 139E of the National Law because the respondent has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, and/or has 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 suspension or cancellation of the respondent's registration. Particulars of Complaint Three 1. The Particulars are as follows: "1. On one occasion between about June 2003 – December 2004 in his consultation rooms the practitioner filmed Patient B whilst she was undressed and wearing only her underpants and bra. 2. Prior to filming Patient B on the occasion in particular 1 above, the practitioner failed to inform Patient B that he intended to present the recording to his medical colleagues at Prince of Wales Hospital during grand rounds and obtain her consent to show the recording to third parties. 3. Prior to filming Patient B on the occasion referred to in particular 1 above, the practitioner failed to confirm with Patient B that she understood the consent form for filming that he asked her to sign. 4. Prior to filming Patient B as set out in particular 1 above, the practitioner failed to explore with Patient B the value of a chaperone being present at the time of filming of her, including offering to postpone the filming of her until an appropriate chaperone became available. 5. On one occasion in either 2004 or 2005 in his consultation rooms at Bankstown the practitioner filmed Patient B whilst she was undressed wearing only her bra and jeans. 6. Prior to filming Patient B on the occasion in particular (5) above, the practitioner failed to inform Patient B that he intended to present the recording to his medical colleagues at Prince of Wales Hospital during grand rounds and obtain her consent to show the recording to third parties. 7. Prior to filming Patient B as set out in particular (5) above, the practitioner failed to explore with Patient B the value of a chaperone being present at the time of filming of her, including offering to postpone the filming of her until an appropriate chaperone became available. 8. On the occasions set out in particulars (1) and (5) the practitioner failed to provide Patient B privacy when she was undressing and redressing including by leaving the room, drawing her attention to and actively offering access to a curtain, screened off area, or separate room for dressing and appropriate items of cover such as a gown or a sheet. 9. On approximately 10 - 18 occasions in and during the period 2003 to 2009 at his consultation rooms at Miranda and Bankstown the practitioner undertook a clinical examination of Patient B in which Patient B was asked to take off her shirt and lie prone on an examination bed. On each occasion the practitioner lifted Patient B's bra to expose her breasts, asked her to line supine and then conducted a 'pin prick' examination across her breasts. 10. Prior to the conduct set out in particular (9) the practitioner failed to explore with Patient B the value of a chaperone being present, including offering to postpone the examination of her until an appropriate chaperone became available. 11. Prior to the conduct set out in particular (9) the practitioner failed to offer Patient B any privacy when undressing and redressing for the examinations including by drawing her attention to and actively offering use of a curtain, separate room for dressing or any items of cover." Respondent's Reply 1. The respondent admits that he is guilty of unsatisfactory professional conduct as alleged and admits the background to Complaint Three. 2. In answer to particulars 1 to 8, the respondent stated on one occasion in October 2004 he filmed Patient B when she had removed her top but states that she remained clothed in her trousers and bra; states that he told her that if she agreed he was considering presenting a case at grand rounds at Prince of Wales Hospital; if so he would show the video and that she will also be present; acknowledges he did not ask Patient B (who was over 18 years) whether she wished a chaperone present when he filmed her; states that the filming occurred once only; that there was a curtain around the examination table in the consultation room and that Patient B, to the best of his recollection, disrobed behind the curtain. Otherwise, the particulars are not admitted. 3. As to particulars 9 – 11, the respondent states that on three or four occasions during the period 2003 to 2009 he undertook a clinical examination of Patient B where she was asked to go behind the curtain, remove her shirt and lay prone on an examination table. On such occasions the respondent asked Patient B if he could lift her bra to conduct a pin prick examination on the skin of her chest, including on part of her breasts to which he verbally agreed; acknowledges that he did not ask Patient B whether she wanted to have a chaperone present or to delay the examination until a chaperone was present. Complaint Four 1. This complaint alleges unsatisfactory professional conduct under section 139B(1)(b) by contravention of the same regulations as are contained in Complaint Three. Particulars of Complaint Four 1. The particulars are as follows: "1. From 2003 to 2014 the practitioner's clinical notes lacked sufficient detail about the clinical rationale for his ongoing review of Patient B given the frequency and duration of his care of her, contrary to the requirements in schedule 2, clause 2 of the Medical Practice Regulation 2003 (repealed) and the equivalent provisions of the later regulations. 2. From 2003 to 2014 the practitioner's clinical notes lacked sufficient detail of his findings on neurological examination of Patient B, contrary to the requirements in schedule 2, clause 2 of the Medical Practice Regulation 2003 (repealed) and the equivalent provisions of the later regulations. 3. From 2003 to 2009 the practitioner's clinical notes lacked sufficient detail about his clinical rationale for repeating detailed sensory examination of Patient B contrary to the requirements in schedule 2, clause 2 of the Medical Practice Regulation 2003 (repealed) and schedule 1, clause 2 of the Medical Practice Regulation 2008 (repealed). 4. The practitioner failed to keep any records about filming Patient B as referred to in particulars (1) and (5) of Complaint One [sic, Three], including: a. his clinical rationale for filming Patient B; b. his discussion of the benefits and purpose of filming the patient; c. of Patient B's consent to be filmed and the terms of that consent, contrary to the requirements in schedule 2, clauses 1(2), 1(3), and/or clause 2 of the Medical Practice Regulation 2003 (repealed). 5. The practitioner failed to retain the film set out in particular (1) of Complaint One [sic, Three], for a period of 7 years, contrary to the requirement in clauses 7 and/or 9 of the Medical Practice Regulation 2003 (repealed) and the equivalent provisions of the later regulations. 6. The practitioner failed to keep the films set out in particulars (1) and (5) of Complaint One [sic, Three] in a secure manner in that he kept the films at his home and used the video cassette(s) for other recordings unrelated to Patient B. In doing so the practitioner acted contrary to the requirement in regulation 9 of the Medical Practice Regulation 2003 (repealed) and the equivalent provisions of the later regulations." 1. The respondent admits that he is guilty of unsatisfactory professional conduct as alleged and admits particulars 1 – 6 of Complaint Four. Complaint Five 1. This Complaint alleges professional misconduct under section 139E. Particulars of Complaint Five 1. The particulars are as follows: "1. The particulars of Complaints One, Two, Three and Four are repeated and relied upon, separately and cumulatively. 2. When two or more of the particulars of Complaint One are taken together, a finding of professional misconduct is justified. 3. When two or more of the particulars of Complaint Three are taken together, a finding of professional misconduct is justified." Respondent's Reply 1. The respondent does not admit that he is guilty of professional misconduct as alleged and denies that the particulars of the complaints, set out in any combination, justify a finding of professional misconduct. 2. The identity of each patient is identified in a Schedule to the complaint. For reasons of confidentiality, this schedule is not reproduced. Background of Respondent 1. The respondent graduated with the degrees of MB, BS (University of New South Wales) in 1983. Thereafter he trained in neurology, neuropathology, neurophysiology and epilepsy monitoring. The respondent was first granted conditional registration as a medical practitioner on 2 March 1983 under the Medical Practice Act 1992 (NSW) (repealed) and he remained so registered until 4 September 1984. The respondent was first granted general registration as a medical practitioner on 5 September 1984 pursuant to the provisions of the aforesaid act. He remained so registered under that act until 30 June 2010. The respondent's registration was not subject to any conditions in the period from 5 September 1984 to 30 June 2010. 2. The respondent remains registered and has been conducting his practice in the suburb of Sydney since 2002. The respondent states that his main research interest to date has been in Video-Epilepsy monitoring for patients' diagnoses and in preparation for epilepsy surgery and Telehealth Applications, namely teaching medical students and doctors both Australian and foreign. 3. From May 2017 until November 2017 and again from March 2018 to June 2018 Patient A was treated by the respondent. Patient A's 13-year-old daughter is Person X in Complaint One. 4. From 2003 to 2014 Patient B consulted the practitioner at his rooms in Sydney suburbs, and at the epilepsy clinic at the Prince of Wales Hospital. Proceedings under section 150 of the National Law 1. On 8 May 2020 a hearing took place under section 150 of the National Law. The Medical Council of New South Wales determined that the respondent should be suspended from practice. Reasons were published on 1 June 2020. Respondent's Evidence 1. The respondent has provided a statement dated 25 July 2021. In such statement the Respondent has provided details of the treatment which he provided to Patient A and Person X (the daughter of patient A), and also for the treatment of Patient B. Treatment of Patient A and Person X 1. Patient A was first reviewed by the respondent on 4 May 2017 in the presence of her husband for brain abnormality discovered on MRI. Patient A had suffered episodes of loss of consciousness. She was seen again on 15 June 2017. The respondent noticed that Patient A's EEG showed paroxysmal features. Patient A had suffered violent outbursts. The respondent reported to the general practitioner. The respondent saw Patient A on seven occasions during 2017. 2. On 16 April 2018 the respondent again saw the patient when her husband reported major behavioural problems. The family had changed their names and had relocated to Tasmania, but the husband returned to live in New South Wales. Further consultations took place on 21 April 2018. The respondent observed scratches and bruises on Person X's legs. It appeared that there was a history of violence between Patient A and Person X. The respondent photographed the bruises. Neither Person X nor her parents expressed any concerns about the respondent's documentation of the bruising. 3. The respondent continued to consult with the family on 7 May 2018 and 14 May 2018 when the respondent was concerned about undocumented trauma and family violence. He noticed that Person X had scoliosis and he asked whether he could take an image for presentation to other doctors and medical students. Person X agreed but the respondent did not ask her parents for consent. As his camera was inoperative, he used a video. He asked Person X whether she minded removing her bra to take the best advantage for the image. He then joined the parents with Person X in the waiting room. 4. The respondent states that Person X attended the consultation for the first time on 15 June 2017. He did not recall that Person X was at all hesitant about the photograph being taken. Treatment of Patient B 1. The respondent treated Patient B between the ages of 17 and 29. The first appointment was on 21 February 2003 and the last was on 3 July 2015. The respondent diagnosed Patient B as having an extremely rare condition, known as the Parry-Romberg Syndrome (PRS). Over the years the patient attended for minor ailments, and the respondent consulted with Patient B 34 times in the clinic. Of those consultations, 11 only were to review results and a maximum of 18 times could have included examinations. The respondent states that he did not offer Patient B a chaperone as when she attended on 1 October 2004 she was 18 years of age. He took a video because he considered that was more beneficial than photography to display PRS. 2. Until Patient B made her complaint in 2018, she never indicated that she was unhappy with the respondent's treatment of her nor in any way about the filming over the subsequent 10 years and 30 reviews. Evidence of witnesses Person X 1. Person X, who was born in 2005, provided evidence that during 2017 her mother had been moody and angry, but only if she (Person X) did something to get herself into trouble. She had fights with her mother. Person X's mother, her father and herself relocated to Tasmania towards end of 2017 where they resided on a farm. In early 2018 her father returned to Sydney for work and accordingly Person X and her mother remained in Tasmania. She stated that her father and mother had outbursts. Person X kept a record of her mother's mood swings after they moved to Tasmania and stated that the respondent had asked her to keep a record of her mother's mood swings. Person X said she did so to see if her mother was better or worse and that she could not recall if she informed her father. In April 2018 Person X and her mother came to Sydney and stayed with Person X's father on a friend's property. 2. Person X could not recall whether photographs were taken of her when she attended with her parents on 16 April 2018. Person X could not recall many of the details put to her in cross examination. For example she could not recall telling the respondent that her mother had worsening moods. She recalled a consultation with the respondent in which the respondent asked questions about the cause of the bruises and scratches on her arms and legs which were apparent without any of her clothing being removed. She recalled that the respondent asked her if her mother had caused the scratches and bruises; she recalled that the respondent asked her if he could photograph the scratches and bruises. She recalled the respondent took photos of the scratches on her knees and legs. She could not recall whether the respondent told her parents at the conclusion of the consultation that he had taken photographs. 3. Person X had made a complaint to the applicant concerning the photographs. In the complaints she stated that the scratches were from trees and bushes, resulting from working with her father clearing bushland. 4. Person X agreed that on 14 April 2018 the respondent spoke to her, her father and mother then she and her mother waited in the waiting room whilst the respondent spoke to her father privately. She recalled that she then went into the consultation room and that the respondent asked her if he could take a video of her back. She stated that she was standing, with her back to the respondent. The respondent moved her shoulders into a certain position by placing his fingertips on the shoulders and moving them. He told her where to put her arms. She said that her T-shirt was initially on. She could not recall whether the respondent touched her shoulders with the T-shirt off. The T-shirt had been removed for the purposes of the videoing which took "maybe more than a minute": but the witness could not be sure. She states that no part of her lower clothing was removed, only her top, and her bra, which was "briefly off". Father of Person X 1. This witness stated that he, his wife (Patient A) and their daughter (Person X) first saw the respondent in May 2017 following an injury which his wife sustained when an axle fell on her head while she was putting out rubbish for a council clean up. 2. This witness stated that his wife engaged in hair pulling and "hissy fits" with his daughter and that he did not regard them seriously despite the fact that the police were called on 27 June 2017. He considered that it was "disgraceful that the police got it so wrong". He considered that the police had overreacted to a domestic difference. He acknowledged that his wife had been more moody and had yelled and screamed at himself and her daughter "not daily – once in a couple of months". He said that he had "tried to rile her up" by trying to turn "a negative into a positive". He considered that after November 2017 his wife was declining in her mental state. 3. The witness recalled being shown the photographs of his daughter's bruises and scratches and that the respondent asked that a diary be kept by Person X as she was the person who saw the most of her mother. The witness stated that such request was made in May 2018. He could not recall whether the respondent had said to him words to the effect: "I'll be watching to see if the bruises and scratches heal." 1. The witness' evidence was somewhat confused and at times inconsistent, but the witness readily acknowledged that he did not possess the necessary background to keep an accurate record in his mind of the events. In his written statement he referred to a meeting in May 2018 when his daughter, following a consultation of the family with the respondent, said words that she did not like the respondent and never wanted to see him again. The Tribunal found that this witness was truthful in his recollection of the important facts, and that he did his best to assist the hearing. Patient B 1. Patient B provided a written statement and testified that she recalled originally consulting the respondent when she was about 17 ½ years of age. She originally attended the consultations with her mother and then on one occasion her brother accompanied her. Later she would attend by herself. She provided evidence which generally accorded with the particulars relating to her. 2. The witness was clear in her mind that the respondent had taken two videos of her in her underwear and whilst she was walking in the respondent's consulting room. After the first video was taken, the witness said that the respondent told her that he had lost the video and asked if he could make a second video, which he did. Although her statement provided to the applicant indicated that the respondent asked her to undress, the witness acknowledged that her underwear was always worn. She stated that at no stage was she ever naked in the first video and in the second video she was wearing her underwear and bra. She did not recall seeing the video prior to these events. She did not recall that the video was to be used by the respondent on grand rounds at the Prince of Wales Hospital. 3. The witness recalled informing the respondent from time to time of altered sensations in her hands and feet and on her scalp. There were no sensory changes on her left torso although she acknowledged that she had wasting on her left torso. However, there was no sensory difference except that the skin appeared to be pigmented in that region. She was unsure whether there was a curtain around the examination table and was not certain whether there was a sheet which could be used by her to provide privacy. She acknowledged that to perform the pin prick test to the breast area, the respondent asked her to lift her bra and that he would release the bra. However, he never touched her breasts. Further, the respondent always asked permission to briefly lift the bra to undertake the test. 4. The Tribunal considered that the witness was entirely truthful and informed the Tribunal of the events as she best recollected them. She has now graduated as a medical scientist. She did not make any complaint to the applicant until 2018. T. She did so because she now questioned whether the conduct of the respondent was appropriate. Expert evidence 1. Professor Helen Dewey is a neurologist and clinician researcher specialising in the area of stroke. She is the current Director of Neurosciences at Eastern Health in Melbourne, Victoria; Professor, Eastern Health Clinical School, Faculty of Nursing, Medicine and Health Sciences, Monash University and Honorary Professorial Fellow, Florey Institute of Neuroscience and Mental Health, Melbourne. 2. Professor Dewey ("the expert") has provided a report in relation to a Person X dated 11 October 2019 ("Person X report"); a report in relation to Patient B dated 9 March 2020 ("Person B report") and another report ("supplementary report") which refers to both Person X and Patient B which was filed in the Tribunal on 28 September 2021. Professor Dewey has answered various questions asked of her concerning the conduct of the respondent. In summary, the expert provided the following opinions: As to Patient B Use of Video 1. Consultant neurologists in clinical practice routinely use video to aid in the diagnosis and management of particular patients. Video may assist in planning for treatment, including surgery. Such recordings would be undertaken with the patient's consent and the video and EEG information stored in a secure way. Video recordings are commonly used by neurologists specialising in movement disorders to teach other neurologists and to facilitate diagnosis for rare or difficult to diagnose conditions. 2. Patient B had a diagnosis of an extremely rare condition known as the Parry-Romberg Syndrome, characterised by atrophy of skin, subcutaneous tissue and bone over one side of the face/head. It would be very reasonable to document that patient's appearance with clinical photography at the time of presentation and to take further clinical photographs over time. It was however not usual practice for a neurologist to ask a patient to remove their bra for the purpose of taking photos or videos. The respondent's notes did not indicate any abnormality of gait pattern that might warrant video documentation. Further, it would be reasonable that a photograph be obtained for the purpose of including the patient's condition for teaching material but provided consent was obtained. The use of video and filming of Patient B falls below the standard reasonably expected of a practitioner of an equivalent level of training or experience but does not significantly depart from the standard. Adequacy of care and treatment of Patient B 1. The respondent had consulted with Patient B on 28 separate occasions in the period 26 June 2003 two 3 July 2017. The medical records indicate that the respondent had treated a range of symptoms, including symptoms that would generally be outside the respondent's specialty. The respondent's notes are scant and there did not appear to be any clinical rationale for repeating a detailed sensory examination on each occasion of review. The respondent appeared to review Patient B more frequently and over a longer period of time than that which was warranted by her clinical situation. The respondent's care and treatment of Patient B fell short of the standard reasonably expected of a practitioner of an equivalent level of training or experience by virtue of ongoing review with little evidence of the clinical need for such the review. However, the departure does not invite strong criticism in view of the fact that the patient had a rare condition and the respondent's care demonstrated a high degree of caution and long-term monitoring which may be acceptable because of the lack of knowledge regarding this condition amongst the medical profession. Consent for filming of Person X 1. The respondent's notes and letters provide no evidence that he discussed the benefits and purpose of videotaping nor that he obtained consent from Patient B before doing so. This would be a fundamental requirement and the failure to obtain consent meant that the respondent's conduct fell significantly below the requisite standard and invited strong criticism. Record-Keeping and Storage of Videos 1. The respondent's practice was to rely on his dictated letter to the referring practitioner as the primary record of his consultation. It is common practice as a neurologist to write a detailed letter back to the referring practitioner, copied to other doctors actively involved in the patient's care, as a good record of the outcome of the consultation and to make additional notes of important aspects of the consultation. The respondent's notes were sparse and included minimal documentation of any neurological examination conducted. 2. Further, the method of storage of patient videos was disorganised and casual. The same video cassettes were used to record personal information rather than the patient video being stored separately as part of his medical records. The respondent frequently erased or taped over videos after 8 years which is not consistent with the requirements of Schedule 4, clause 5 of the Health Practitioner Regulation 2016 (NSW) which requires: A medical practitioner or medical corporation must not alter a record, or cause or permit another person to alter a record, in a way that obliterates, obscures or renders illegible information that is already contained in the record. 1. The practice of the respondent concerning medical records is consistent with the standard expected of a practitioner; however, the storage of clinical videos does not meet the requisite standards and fall significantly below the expected standard of a practitioner of equivalent training and experience. Person X 1. Neurologists in adult general neurology practice do not usually manage mood and behavioural issues when these are the primary issues of concern for a patient. It would be usual practice to seek assistance in the management of significant, persistent and/or treatment resistant behavioural and mood disorders from a psychiatrist, neuropsychologist, other suitably qualified specialist or via a multidisciplinary service. The psychosocial circumstances for the mother of Person X were quite complex. The respondent's continuing to manage the mother of Person X for her mood and behavioural issue falls within the standard reasonably expected of a practitioner of equivalent level of training or experience. 2. There is no documentation of a formal assessment of mood or documentation of the behaviours that needed modification. The respondent's letter of 11 September 2017 documents that both the mother of Person X and Person X were attending a psychologist regularly. There is only one occasion that the respondent's handwritten notes or typed letters indicate involvement of a psychologist. There is no evidence that the respondent gave further consideration to the role of psychological intervention in the management of the patient's problems and whether a psychologist continued to be involved. The medical records do not provide a sufficiently objective assessment of the mother of Person X's behavioural and mood disturbance to conclude whether pharmaceutical management of these aspects was indicated and appropriate. 3. On 23 November 2017 the respondent made handwritten notes indicating that the mother of Person X was definitely calmer on medication and that he proposed to increase the dose of medication. The respondent recommended trials of several agents used as mood stabilisers namely lamotrigine, Epilim, and Endep. There is scant documentation of the symptomatology that the respondent was seeking to treat, symptoms of mood disturbance, sleep quality or quantification of abnormal behaviour. 4. The respondent could have referred the patient for specialist input from another practitioner such as a behavioural specialist. However, the lack of referral for such opinion remains at a standard reasonably expected of a practitioner of an equivalent level of training or experience and does not significantly depart from that standard. 5. As to the interview between the respondent and the patient's spouse, while such interview would normally occur with the permission of the patient, the conduct of the respondent was reasonably expected. 6. As to the appropriateness of the respondent's interviewing Person X concerning her mother's health issues, unaccompanied, such practice was not usual. In the field of psychiatry, it is not usual practice to rely upon the reports of a minor child about their parent's mental health issues as a guide to management. The practice of interviewing Person X concerning a mother's health issues, unaccompanied, fell short of the standard reasonably expected and was significantly below the standard and invites strong criticism. 7. As to the respondent's conduct in photographing Person X's bruises on 21 April 2018, such conduct was not appropriate and not relevant for her medical treatment and condition. The respondent's documentation did not provide a rationale for such photography and how this assisted to manage the patient. The photographs were not of direct relevance to treatment of Person X's mother's condition. The conduct fell short of that reasonably expected and was significantly below the standard. 8. As to whether appropriate consent was obtained prior to taking the photographs, written consent should have been obtained either from Person X or her parents. The Eastern Health Clinical Practice Guideline entitled "Clinical images – photographs, audiotapes and videotapes clinical and research Guideline" states: "Clinical images of children aged 16 years and younger must have consent from parent or guardian… Consent must be obtained for each separate incident of taking a clinical image and documented." 1. Person X was a minor, aged 13 years at the time the photographs were taken. The rationale for obtaining the clinical images is not clearly articulated by the respondent, or adequately explained to the child prior to obtaining verbal consent to proceed. The explanation provided to the applicant by the respondent that the photographs were an objective record in case a patient denied the existence of a previous finding, is unsatisfactory: it does not provide a rationale for how the photographs would assist in the management of the respondent's patient namely the mother of Person X. Further, appropriate consent was not obtained. This conduct falls significantly below the standard and invites strong criticism. 2. Filming of patients and non-patients for the purpose of general research or use as a training/teaching aid is accepted practice within neurology with regard to patients. Entire families might present for medical care assessment in the context of an inherited condition and photographs and films might be obtained but only with appropriate referral and informed consent. 3. As to the respondent's conduct in filming Person X on 19 May 2018, this was not appropriate conduct. The purpose stated is vague and there is no documentation of consent. Scoliosis, per se, is not a condition that is usually managed by a neurologist. Complications may arise due to the presence of scoliosis of a neurological condition. However, in this case scoliosis would not be considered to be a core area for neurological teaching and the respondent's conduct in taking the films for "a possible presentation to other doctors or medical students" fell short of the expected standard and invites strong criticism. 4. Further, it appears that the respondent uses the term in his explanation to the Commission dated 15 March 2019 of "research"" to describe a personal interest which is not otherwise specified. His purpose therefore is a departure from the expected standard and is significantly below such standard and invites strong criticism. 5. As to the protocols which the respondent should have followed, the respondent should have followed the guideline referred to above and should have developed a research protocol. 6. It was inappropriate for the respondent to film Person X in the absence of having followed the appropriate processes and protocols and this conduct falls significantly below the standard and invites strong criticism. The respondent should have followed the above processes. It was not appropriate to film Person X because she was not a patient nor was the respondent conducting a research project approved by a human research ethics committee. 7. As to consent, Person X was a minor: accordingly, the standard practice requires that consent be obtained from the parents before obtaining video images for clinical or research purposes. Further, consent should be clearly documented in the medical record ideally with a specific consent form outlining exactly what is being consented to. Thirdly, appropriate consent can only be obtained when the person providing consent has been given sufficient information on which to base their consent. Specifically, the exact nature of the images to be obtained and how they will be stored and used should be explained. The respondent's conduct fell significantly below the appropriate standard and invites strong criticism. 8. In summary, the respondent did not obtain appropriate consent since Person X is a minor and consent should have been obtained from the parents prior to video footage being obtained. Verbal consent in this setting is insufficient. The conduct falls significantly below the expected standard and invites strong criticism. 9. As to the protocols which should have been followed, the videos of Person X should not have been obtained as there is no clinical or research rationale to obtain them and they were obtained without appropriate consent. Since there is no research program involving this person, it was not appropriate for the respondent to retain images of her. The video should never have been obtained. The behaviour of the respondent falls below the expected standard. 10. As to the appropriateness of the respondent deciding to take home the digital camera and view the images, in the absence of any sound reason for doing so the conduct falls below the standard and invites strong criticism. Erasing video was equally inappropriate and invites strong criticism. 11. As to recordkeeping, the respondent's recordkeeping and specifically in relation to his patient's particular problems of mood and behavioural disturbance was inadequate and invites strong criticism. 12. The records of the respondent do not accurately reflect his interactions with Person X. His reliance on her diary and his reports about her mother's clinical state fall significantly below the standard and invite strong criticism. 13. It was inappropriate for the respondent to interview Person X alone. The respondent appears to have a lack of understanding of the contemporary community expectations with interacting with minors. Such conduct invites strong criticism. 14. The respondent's approach to the care and treatment of Person X was comprehensive: the respondent saw his role as the coordinator of her overall health care rather than providing consultative advice about any neurological consequences of her rare condition. It would have been appropriate for Person X's general practitioner to be the main coordinator rather than the respondent. The respondent's letters demonstrate his concern for the social and broader consequences of her condition. The respondent's clinical approach was cautious and over-inclusive. Another experienced neurologist would have seen this patient infrequently and on re-referral with particular concerns, and would have likely conducted fewer investigations. The expert states: "Removal of a bra constitutes an intimate examination would only be requested if this were clinically indicated. In this situation there is an expectation of the need for sensitivity and privacy to disrobe and reclothe. The respondent's conduct demonstrates a lack of understanding of the sensitivities of intimate examination. Consultant neurologists in adult practice would usually avoid removal of underclothing except in very particular clinical situations and would consider the use of a nurse chaperone if such an examination when necessary." Legal principles 1. Section 3A of the National Law states: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. Section 139 of the National Law relevantly requires that a person be competent to practise a health and safety profession only if the person: (a) has sufficient physical capacity, mental capacity, knowledge and skill to practise the profession; and (b) has sufficient communication skills for the practice of the profession including an adequate command of the English language. 1. Section 139B(1) of the national law defines "unsatisfactory professional conduct, relevantly as follows: (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. (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention. … (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. Where the Tribunal finds that conduct of a practitioner has been inappropriate, disciplinary sanctions may be imposed. If the conduct of the practitioner is not in conformity with the standard professional conduct and practice, the Tribunal may conclude that it may be regarded as "improper": see R v Byrnes (1995) 183 CLR 501 at 514 – 515; [1995] HCA 1; Health Care Complaints Commission v MacGregor [2016] NSWCATOD 86 at [40] – [41]. 2. "Unethical conduct" constitutes improper conduct. What is "unethical" is to be determined by reference to the views of reasonable members of the profession: see Slezak, Dr Peter [2011] NSWMPSC 10 at [80], [83] and [87]. Other authorities indicate that where conduct which by reasonable standard is seen as falling below the standard of conduct expected by that class a person, it can be regarded as improper: see Parker v Comptroller-General of Customs (2009) 83 ALJR 494; [2009] HCA 7 where French CJ said at [29]: "… [t]he relevant ordinary meanings of improper include "not in accordance with truth, fact reason or rule, abnormal, irregular, incorrect, inaccurate, erroneous, wrong". 1. Other authorities indicate that there is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances of giving rise to professional misconduct: see Chen v Health Care Complaints Commission [2017] NSWCA 186 per Basten JA at [20]. 2. Professional misconduct is defined in section 139E to include: (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. Standard of proof 1. The applicant bears the onus of proof of establishing that the conduct complained of has been established to the comfortable satisfaction of the tribunal. The standard of proof is that described in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; see also Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66. Findings 1. The Tribunal makes the following findings in respect of each complaint: As to Complaint One: (Admitted by the respondent) 1. Particular 1: While Person X may have been able to provide information relevant to Patient A's treatment, it is inappropriate to interview a minor, especially one who is not the practitioner's patient, without a responsible adult present. It is also noted that Person X and Patient A had a volatile relationship with conflict sufficiently severe for police to issue an AVO and this may well colour any information gained from Person X, and may make it stressful for her to 'report' on her mother. 2. Particular 2 a,b,c: The respondent's conduct was inappropriate in the circumstances. Photographing the legs, while possibly thought to be in the interests of the patient by the practitioner, is inappropriate without adequate consent and the presence of a responsible adult/chaperone. Again, this is particularly the case when Person X was not the practitioner's patient. 3. Particular 2 d. The photographs may have had relevance to Patient A's mental state and therefore treatment if there was concern of injury to Person X by Patient A. If this were the case, the practitioner did not follow through on that suspicion of injury to the child by reporting it to the appropriate channels. The respondent also did not express this concern directly to Patient A. The photographs themselves added little to recording the fact of the injuries. The alleged purpose, namely to let Patient A know he was 'keeping an eye' on Person X, is not documented in her records. 4. Particular 3: Consent to take the photographs was inadequate given Person X's age and the lack of involvement of a responsible adult. 5. Particular 4: The recording of Person X's shoulders and back is without clinical justification and inappropriate. Justifications offered were manifestly inadequate. 6. Particular 5 a and b (admitted): the measures to ensure privacy were inadequate. 7. Particular 6: Consent to take the video was inadequate given Person X's age and the lack of involvement of a responsible adult. 8. Particular 7: The stated intent for the video is inappropriate as Person X was not the practitioner's patient and the practitioner had not undertaken the appropriate steps set out in the Medical Board of Australia's Code of Conduct section 11 entitled "Undertaking Research". No evidence exists at all regarding the research the respondent intended. 9. Particular 8 (admitted): The request for a referral to enable storage of the video is entirely inappropriate. Whilst not considered in evidence, the Tribunal doubts whether a referral was required for such purpose. As to Complaint Two: (Admitted by the respondent) 1. Particular 1: the respondent admits particular 1: 1. as to Particular 1 a: The notes referred to are inadequate re assessment of mood prior to initiating or changing pharmacology; 2. As to Particular 1 b: There is no record of discussions with Person X though there is a record which mentions the family; 3. As to Particular 1 c: The respondent has no records of any consent. As to Complaint Three (admitted by the respondent) 1. Particular 1: Whilst the respondent has no recollection of Patient B being filmed on this occasion, the Tribunal prefers Patient B's evidence that she was filmed in underpants and bra. She had a distinct recollection that the respondent stated to her some time after the filming that he had lost the video and that that was the reason for taking the second video. The respondent also acknowledged that he found, at his home, a slipcase for a cassette video marked with the patient's name on it. However, the tape was found to have recorded a family event and the respondent did not discount the possibility that he might have inadvertently taped over the original tape showing Patient B. This particular is established. 2. Particular 2: Patient B did not recollect the respondent saying he intended to present the recording to his medical colleagues at Prince of Wales Hospital during grand rounds but said it was possible he did do so. However, it is not clear whether such statement related to the first or second filming. Irrespective, this particular is not established. 3. Particular 3: This particular relates to the question of whether Patient B understood the consent form: there is little evidence available. Patient B says in her statement that she didn't read the consent form; the respondent maintained that such filming never happened. The Tribunal accepts the evidence of Patient B that she did not have a clear understanding of the purpose of the alleged consent. This particular is established. 4. Particular 4: The respondent admits that he did not explore the value of a chaperone being present: however, at the time of the filming, there was no code in existence published by any professional medical body specifying that a chaperone should be present at all times. This particular is established. 5. Particular 5; Particular 6 and Particular 7: The respondent does not admit to any occasion of filming other than the latter occasion. The respondent maintained that he informed the patient that he was considering presenting her case at grand rounds at Prince of Wales Hospital. The respondent states he took a video recording of Patient B's back only, believing that it was relevant to Patient B's medical treatment and condition and that she had sufficient maturity to understand the reason for maintaining a video record. At no stage of the filming was patient B wholly undressed: at all times she remained in her underwear. These particulars are established. 6. Particular 8: This particular alleges a failure to provide privacy for Patient B whilst she was dressing and undressing. The respondent stated there was a curtain around the examination table in the consultation room and to the best of his recollection, Patient B. The rooms used by the respondent were also shared with an occupational therapist. The evidence of Patient B is vague. This particular is not established. 7. Particular 9, Particular 10 and Particular 11: These particulars allege that on each occasion, estimated be 10 to 18 occasions between 2003 and 2009 when making a clinical examination of Patient B, Patient B was asked to take off a shirt and lie prone on the examination table. The practitioner allegedly lifted the patient's bra to expose her breasts while she was lying on her back. No chaperone was present and inadequate privacy was offered (same as particular 8). The respondent does not agree that there were 10 to 18 occasions when he undertook such an examination but rather estimates it was about four occasions; he asked Patient B to go behind the curtain and remove her shirt; he always asked Patient B if he could lift her bra to conduct a pinprick examination of the skin on her chest including part of the breast to which she verbally agreed. The respondent acknowledges that he did not ask Patient B whether she wished to have a chaperone present. The clinical notes are unclear and Patient B's evidence was to the effect that it was more than 50% of the visits when she was asked to undergo such an examination. The Tribunal accepts Patient B's version that such conduct occurred on several occasions. Particulars 9 and 10 are established, but not particular 11 which is the same as particular 8. As to Complaint Four: (Admitted by the respondent) 1. The respondent admits particulars 1 – 6, namely that his clinical records lack sufficient detail as required by the relevant Regulation; failed to keep any records concerning the filming of Patient B as referred to in particulars (1) and (5) of Complaint Three; failed to retain the film referred to in particular (1) of Complaint Three; failed to keep the film set out in particulars (1) and (5) of Complaint Three. As to Complaint Five: Denied 1. The Tribunal does not consider that the conduct of the respondent constitutes professional misconduct. However, it observes that the degree of inappropriate conduct in videotaping a 13 year old without a bra and without parental consent for an obscure reason and violating a host of boundaries with relation to Patient A and Person X is concerning; including the number of apparently unnecessary pin prick testing of breast skin, inappropriate photography of Person X's legs and not obtaining proper consent, not keeping records properly, inadequate consent for filming of Patient B, and the respondent's general lack of awareness of potential distress to patients from such intimate exposures, compounded by the fact that a chaperone was not offered. The Tribunal considers that such conduct fall short of satisfying the definition of professional misconduct. 2. Each of the Complaints One, Two, Three and Four relating to unsatisfactory professional conduct are established. Orders 1. The Tribunal orders that: 1. The conduct of the respondent satisfies the definition of unsatisfactory professional conduct as particularised in Complaints One to Four inclusive; 2. The proceedings be adjourned part heard until December 10, 2021, or until such earlier date as may become available for the hearing of submissions concerning the imposition of any disciplinary sanctions. ********** 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: 29 October 2021