Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Moussa (No 2) [2021] NSWCATOD 173 Hearing dates: 17 – 19 May 2021, 14 October 2021 Date of orders: 04 November 2021 Decision date: 04 November 2021 Jurisdiction: Occupational Division Before: The Hon D Cowdroy AO QC ADCJ, Principal Member Dr J Fogarty, Senior Member Dr S Sen, Senior Member D Telford, General Member Decision: The Tribunal: (1) Finds that the respondent is guilty of unsatisfactory professional conduct with respect to Complaints One, Two, Three and Four; and that the respondent is guilty of professional misconduct arising from the finding referred to in Complaint Three. (2) Directs that the parties approach the registrar for the allocation of the hearing date to determine the appropriate disciplinary sanction arising from the above findings. Catchwords: HEALTH — professional registration and discipline — complaints — inappropriate prescribing — inadequate record keeping — practitioner failing to maintain appropriate professional boundaries with patient Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 FTZK v Minister for Immigration and Anor [2014] HCA 26; (2014) 88 ALJR 754 Health Care Complaints Commission v Do (2014) NSWCA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v McGregor [2016] NSWCATOD 86 Slezak, Dr Peter (2011) NSWMPSC 10 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Jamal Moussa (Respondent) Representation: Counsel: T Stevens (Applicant) A Horvath SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2020/00339532 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act, publication of the name of any patient or witnesses other than expert witnesses referred to in these proceedings is prohibited. REASONS FOR DECISION Introduction 1. The Health Care Complaints Commission (the applicant) has filed a Complaint against Dr Jamal Moussa (the respondent) alleging unsatisfactory professional conduct under ss 139B(1)(b) and 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) ("the National Law") and professional misconduct under s 139E of the National Law. The Tribunal notes that s 139B(1)(b) is applicable where there is an alleged contravention of the National Law or the regulations. However, the conduct complained of and set out in Complaints One and Two alleges conduct falling significantly below the reasonably expected standard of practice. Accordingly, the Tribunal will treat the complaints as referring to s 139B(1)(a) of the National Law. 2. The Complaint contains five separate complaints, each in respect of Patient A, which include failing to take appropriate assessments, inappropriate diagnoses, failing to conduct appropriate clinical reviews, inappropriate prescribing, inappropriate disclosure of personal information concerning himself to Patient A, failing to maintain appropriate boundaries between himself and Patient A, and failing to maintain appropriate records. 3. The events relied upon by the applicant allegedly occurred whilst the respondent was practising as a medical practitioner with a medical practice conducted on the northern coast of New South Wales ("the clinic"). 4. The Complaint alleges unsatisfactory professional conduct under s 139B(1)(b) [sic – s 139(1)(a)] of the National Law, in that the respondent has engaged in conduct that demonstrates that the knowledge, skill or judgment 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. Further, the Complaint alleges conduct in breach of s 139B(1)(l) namely that the respondent has engaged in improper or unethical conduct. The respondent's background 1. The respondent was first registered as a medical practitioner in Lithuania in 2002. He relocated to Australia in 2007 and was first registered in New South Wales on 19 October 2007. 2. The respondent's registration number is MED0001641301. Following his registration in Australia as a medical practitioner, he worked in Rockhampton, Queensland, Jindalee, Western Australia and Foster, Victoria. The respondent has provided a statement dated 14 May 2021 and filed a Reply on the first day of the hearing. 3. The respondent's Reply admits the background and particulars to Complaints One, Two and Four. The respondent does not admit paragraph 1 of Complaint Three and denies paragraph 6 of Complaint Three. The respondent denies that he is guilty of professional misconduct under s 139E of the National Law as alleged in Complaint Five. Accordingly, the only matters in dispute are confined to the allegations in Complaint Three, particulars 1 and 6. The Complaints 1. Complaints One and Two are as follows: COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) [sic – 139B(1)(a)] of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill or judgment 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. BACKGROUND TO COMPLAINT ONE The practitioner was first registered as a medical practitioner in Lithuania in 2002. The practitioner moved to Australia in 2007 and was first registered in New South Wales on 19 October 2007. The practitioner commenced working at Pottsville Family Practice and Skin Cancer Clinic ('the Practice') in May 2017. Patient A first attended the Practice in November 2017 and saw a different practitioner. Patient A first attended the practitioner on 6 February 2018 with a presenting problem of a sore throat. Relevant to this Complaint, Patient A attended the practitioner on 16 August 2018 with a presenting problem of low back pain. PARTICULARS OF COMPLAINT ONE 1. On the following dates, the practitioner inappropriately prescribed Oxycodone 10mg and Naloxone 5mg at a dosage rate of one tablet, twice daily, to Patient A for low back pain in circumstances where the practitioner failed to undertake an appropriate assessment, including a full socio-psycho-biomedical assessment, prior to prescribing narcotics: (a) 12 September 2018; (b) 15 October 2018. 2. On 18 October 2018, the practitioner inappropriately verbally diagnosed Patient A with 'acute mania' in circumstances where the practitioner did not conduct an appropriate assessment prior to the diagnosis, including not: (a) considering the effect of the prescription medication that Patient A was taking, namely Oxycodone 10mg and Naloxone 5mg; (b) reviewing Patient A's presenting problem of back pain; (c) providing any details regarding the clinical signs or symptoms associated with the psychiatric definition of 'acute mania'. 3. On 18 October 2018, the practitioner inappropriately prescribed Seroquel 25mg at a dosage rate of one tablet at night to Patient A in circumstances where the practitioner: (a) failed to conduct an appropriate physical assessment of Patient A prior to prescribing the anti-psychotic medication, including: (i) baseline blood tests; (ii) electrocardiogram. (b) failed to obtain an appropriate history from Patient A prior to prescribing the anti-psychotic medication, including: (i) drug and alcohol history; (ii) history of suicide. (c) wrote on the PBS authority that the indication was 'acute mania', which is contrary to the approved indication, which is 'bipolar I disorder'. 4. On 31 October 2018, the practitioner compromised Patient A's clinical care in that he failed to provide adequate information about Patient A's clinical presentation in his referral letter to Psychologist A, including Patient A's: (a) current medications of Seroquel, Oxycodone, and Naloxone. (b) history of sexual abuse; (c) marijuana use. 5. Between 11 September 2018 and 22 November 2018, on at least three occasions, the practitioner failed to conduct appropriate clinical review of Patient A's regime of Oxycodone and Naloxone in circumstances where the practitioner failed to evaluate and record the following: (a) results of pain inventory; (b) assessment of analgesia; (c) activity; (d) adverse effects; (e) aberrant behaviours. 6. On 21 November 2018, the practitioner inappropriately prescribed Olanzapine to Patient A in circumstances where: (a) there was no clinical indication to change Patient A's Seroquel medication; (b) the practitioner did not assess the compliance, efficacy or side effects of Patient A's Seroquel medication; (c) Olanzapine is indicated for treatment of schizophrenia and bipolar disorder; (d) the practitioner failed to conduct an appropriate physical assessment on Patient A prior to prescribing the anti-psychotic medication, including: (i) baseline blood tests; (ii) electrocardiogram. 7. On 21 November 2018, the practitioner failed to consider the possibility that Patient A's medication, namely Oxycodone and Naloxone, were the cause of her depression in circumstances where Patient A asked the practitioner on numerous occasions during the consultation whether the medication could be causing her depression. COMPLAINT TWO The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) [sic – 139B(1)(a)] of the National law in that the practitioner has engaged in conduct that demonstrates the knowledge and skill 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. BACKGROUND TO COMPLAINT TWO The background to Complaint One is repeated. Patient A's daughter first attended the practitioner on 6 December 2017 with a presenting problem of haemangioma right shoulder. Relevant to this Complaint, Patient A's daughter attended the practitioner on 9 February 2018 with a presenting problem of a mild cough. The practitioner noted that there was "no asthma in the family". PARTICULARS OF COMPLAINT TWO 1. Between 8 February 2018 and 6 February 2019, the practitioner failed to appropriately manage Patient A's daughter's asthma diagnosis in that he: (a) did not conduct an appropriate medical assessment; (b) did not take an appropriate medical history; (c) failed to conduct appropriate follow-up and monitoring assessments; (d) prescribed Symbicort in circumstances where that medication is not clinically indicated for children under the age of 12. 1. Complaint Three, alleging unsatisfactory professional conduct under s 139B(1)(l) of the National Law, in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of medicine, is as follows: COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT THREE The background to Complaint One is repeated. The practitioner last consulted with Patient A on 3 January 2019 and last consulted with Patient A's daughter on 5 February 2019. PARTICULARS OF COMPLAINT THREE 1. Around February to May 2018, during a consultation, the practitioner failed to maintain appropriate professional boundaries in that he inappropriately disclosed personal information about himself to Patient A, including: (a) that the practitioner had separated from his wife; (b) that the practitioner had a five year old daughter and disclosed her name; (c) showing Patient A a photo of his daughter on his mobile telephone. 2. On 3 January 2019, the practitioner inappropriately terminated the therapeutic relationship with Patient A in circumstances where: (a) Patient A was suffering from an acute illness, namely, acute depression and mania; (b) the practitioner failed to conduct any physical or mental health assessment to determine whether it would be safe to terminate the therapeutic relationship at that time; (c) the practitioner said words to the effect of "I can be your friend if you want me to. Well, you know, but you can't come back in here as a patient. So you know it's just friends"; (d) the practitioner continued to treat Patient A's daughter on a further two occasions. 3. Between 17 January 2019 and 7 March 2019, the practitioner failed to maintain appropriate professional boundaries in that he sent approximately 41 messages to Patient A via Facebook Messenger that were of a personal nature in circumstances where Patient A had recently been in a therapeutic relationship with the practitioner. 4. On 23 January 2019, the practitioner failed to maintain appropriate professional boundaries in that he met Patient A at a juice bar in Kingscliff and discussed personal matters with Patient A in circumstances where Patient A had recently been in a therapeutic relationship with the practitioner. 5. On 13 February 2019, the practitioner failed to maintain appropriate professional boundaries in that he invited Patient A over to his house in circumstances where Patient A had recently been in a therapeutic relationship with the practitioner. 6. On 13 February 2019, while at the practitioner's house, the practitioner failed to maintain appropriate professional boundaries in that he: (a) hugged Patient A; (b) placed his hands on Patient A's buttocks while he was hugging her; (c) said words to the effect of "you are my type of woman sexually"; (d) took Patient A's pants and underwear off; (e) lifted Patient A up and placed her on the couch; (f) engaged in sexual intercourse with Patient A on his couch; (g) said words to the effect of "you can come over anytime" to Patient A after he ejaculated. 1. Complaint Four, alleging unsatisfactory professional conduct under s 139B(1)(b) of the National Law, in that the practitioner has contravened a provision of the regulations under the National Law, is as follows: COMPLAINT FOUR The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Regulations under the National Law. BACKGROUND TO COMPLAINT FOUR The background to Complaint One is repeated. PARTICULARS OF COMPLAINT FOUR 1. Between 11 September 2018 and 22 November 2018, the practitioner contravened Schedule 4, Clause 1(2)(d) and Clause (3) of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient A in that he failed to record in the medical records any advice given in relation to medication prescribed, namely: (a) Seroquel; (b) Oxcycodone [sic]; (c) Naloxone. 2. On 18 October 2018, the practitioner contravened Schedule 4, Clause 1(2)(a) and/or (b) of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient A in that he failed to record any diagnostic observations for the diagnoses of 'acute mania and psychosis'. 3. On 21 November 2018, the practitioner contravened Schedule 4, Clause 3 of the Health Practitioner Regulation (New South Wales) Regulation 2016, in respect of his medical records for Patient A in that he failed to record Patient A's weight in the medical records despite noting " + weight loss 10kg". 4. The practitioner contravened Schedule 4, Clause 4 of the Health Practitioner Regulation (New South Wales) Regulation 2016 in respect of his medical records for Patient A generally in that there is insufficient information to allow for other health practitioners to continue care. 1. Complaint Five alleges professional misconduct as follows: COMPLAINT FIVE The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or ii. 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 suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT FIVE The background to Complaints One, Two and Three are repeated. PARTICULARS OF COMPLAINT FIVE 1. Complaint Three, Particular 6 is repeated and relied upon individually; 2. Complaints One, Two, Three and Four and the particulars thereof are repeated and relied upon cumulatively. Section 150 proceedings 1. On 26 September 2019, the respondent appeared before the Medical Council of New South Wales ("the Medical Council"). On 8 November 2019, the Medical Council delivered written reasons for its decision, in which conditions were imposed on the respondent's practice. Such conditions included, in summary, that the respondent should not consult, examine, treat or perform any procedures on any female (subject to emergency medical services); to obtain the approval of the Medical Council prior to changing the nature or place of his practice; to practise only in a group practice approved by the Medical Council; to submit to an audit of his medical practice; and to practise under category B supervision. 2. The respondent sought a variation of such orders pursuant to s 150A of the National Law. Reasons for Decision were published on 27 March 2020, in which the Medical Council determined that, pursuant to s 150A(3) of the National Law, the decision made under s 150 be varied. The existing orders were varied only to the extent that the supervision requirement was changed from category B to category C supervision. Evidence 1. The transcripts of the hearings under ss 150 and 150A of the National Law have been tendered. A copy of the mandatory notification received from a medical practitioner on 23 March 2019, made under s 140(d) of the National Law, is before the Tribunal. The letter of complaint refers to the fact that the author of such letter was made aware, by one of her patients, of a potential sexual assault by the respondent which occurred around 15 or 16 March 2019. 2. Also before the Tribunal are statements made by Patient A, a statement made by the respondent to NSW Police, and records relating to Patient A from a women's health service. Expert evidence and Tribunal findings 1. A report has been prepared by Dr Delma Mullins, a general practitioner who has practised extensively in rural areas and has eminent academic qualifications. Dr Mullins was asked to provide her professional opinion on the respondent's conduct in relation to each of the complaints raised. Her responses (using the same paragraph numbers as contained in her report) are set out hereunder. The Tribunal concurs with the findings of the expert in respect of each item, except with respect to (7) and (21) as indicated below. The personal relationship between the respondent and Patient A (1) Dr Mullins considered the personal relationship between the respondent and Patient A by reference to the Medical Board of Australia's Code of Conduct, which requires medical practitioners to maintain professional boundaries. In her opinion, the disclosure by the respondent of intimate details of his personal life and personal crises to Patient A is significantly below the standard reasonably expected and invites strong criticism. Finding: The Tribunal is satisfied that such disclosures were made by the respondent as alleged. The Tribunal agrees with the observations of the expert that the conduct falls below the standard reasonably expected and invites strong criticism (2) In respect of the conduct of the respondent, in telling Patient A, during the consultation on 3 January 2019, that he could be her friend if she stopped seeing him as his patient, Dr Mullins noted that there is a power imbalance and the potential to exploit a patient physically, emotionally, sexually or financially in a doctor-patient partnership. Doctors must maintain professional boundaries. Finding: The Tribunal agrees with the observations of Dr Mullins that the respondent's conduct falls significantly below the standard reasonably expected and invites strong criticism. (3) The respondent provided oral evidence during the s 150 proceedings that he terminated the therapeutic relationship with Patient A based on a receptionist's comments that Patient A was stalking him. There was conflicting evidence because the respondent stated that he had no involvement in the decision to terminate his therapeutic relationship with Patient A. Whilst the evidence remains unclear, Dr Mullins stated that simply informing the patient that care will not be provided any more does not end the responsibility for ensuring appropriate medical care is provided. The respondent confirmed that no physical or mental health assessment was conducted at the last consultation on 3 January 2019 and that whilst the respondent was her treating GP the respondent was concerned about Patient A's mental health. If the respondent terminated the relationship as alleged, such conduct was below the standard reasonably expected and invites strong criticism. (4) In relation to the respondent having exchanged Facebook messages with Patient A, Dr Mullins considered that it was essential to maintain professional boundaries concerning engaging with patients on social media and that, in response to any contact by a patient or former patient, the correct approach is to direct them to the doctor's usual professional health care communication channels. Patient A was vulnerable and may have depended emotionally upon the respondent and the respondent had information about Patient A of a very personal nature, revealed during professional consultations. Finding: The Tribunal concurs with Dr Mullins assessment that such conduct fell significantly below the standard reasonably expected and invites strong criticism. (5) The respondent met Patient A socially at a juice bar at a beach in late January 2019 after he had terminated their therapeutic relationship on 3 January 2019. Dr Mullins considered there was a need to maintain professional boundaries with former patients due to the power imbalance and potential for emotional, sexual or financial exploitation in the doctor-patient partnership. Dr Mullins considered that it was also necessary to maintain professional boundaries with individuals close to the patient, namely with the daughter of Patient A, who the respondent continued to treat beyond 3 January 2019, namely on 10 January 2019 and 5 February 2019. Finding: The Tribunal agrees with Dr Mullins that the conduct of the respondent is significantly below the expected standard and invites strong criticism. The respondent's prescribing (6) On 16 August 2018 the respondent took a history of Patient A having "pain in L lower back". On 12 September 2018, the respondent prescribed Oxycodone + Naloxone 10mg/5mg at a dosage rate of one tablet twice a day. The medical records for this day record "low back pains" and no examination notes other than "pulse 60, temperature 37, urinalysis blood trace". The reason for the visit was recorded as "cystitis". There is no record of the respondent having conducted an appropriate assessment of Patient A before prescribing narcotics. The respondent was also required to perform a pain inventory and opioid risk assessment and arrange an agreement for an opioid trial with documentation of specific goals (National Prescribing Service; Medicine Today, "Conventional and atypical opioids" (2018)). The RACGP Guidelines on prescribing drugs of dependence were not followed. Further, the initial treatment for back pain is not pharmaceutical; and Panadeine Forte, which contains the opioid codeine, had already been prescribed on 16 August 2018.: Finding: This conduct is significantly below the standard reasonably expected of a practitioner of similar training or experience, and invites strong criticism. (7) On 15 October 2018 the respondent prescribed Oxycodone + Naloxone 10mg/5mg for Patient A. The records for the consultation of that day note: "script only". There is no record of required assessments or notes on effectiveness or any side-effects after the one-month treatment. This conduct is significantly below the standard reasonably expected of a practitioner with similar training or experience and invites strong criticism. Finding: The Tribunal considers that the conduct of the respondent is below the standard reasonably expected, but not that it is significantly below such standard. The Tribunal does not agree that strong criticism follows. (8) The respondent continued Patient A's regime of Oxycodone + Naloxone on 18 October 2018, having observed that she, as recorded in the clinical notes, was "depressed… not suicidal… not eating well, sleeps four hours max a day". The outcome tool used as part of the assessment, K 10, produced a result of 41, being significantly high. Common side effects (1–10% of patients) of Oxycodone + Naloxone 10mg/5g include insomnia and uncommon side effects (0.1–1% of patients) include anxiety, confused state, depression, nervousness and restlessness. The respondent made no notes of any triggers identified for depression; no record of consideration of the potential contribution of medication; no record of back pain being reviewed on history or examination, or whether any goals had been achieved after just over one month of opioid prescribing. The transcript of the interview conducted by the applicant on 16 August 2019 (at pp 13–18) records questions were asked concerning the mental health assessment on 18 October 2018. The respondent stated that Patient A had "acute mania" but did not provide details of clinical signs or symptoms associated with the true psychiatric definition of this condition. The respondent admitted that he did not record much information, but rather noted "depressed" because "that's what she mentioned to me". Finding: Such conduct fell significantly below the standard reasonably expected of a practitioner with similar training or experience and invites strong criticism. (9) On 18 October 2018 the respondent prescribed Seroquel, indicated for treatment of acute mania associated with bipolar disorder, and Oxycodone + Naloxone for Patient A. The records do not record "acute mania" but rather "depression". There is no record of consideration being given to whether the opioids were the cause of Patient A's mental state. Before commencing treatment with an anti-psychotic, physical examination is required as well as baseline blood tests and ECG. Blood tests were performed on 9 May 2018, but since this consultation was an acute presentation, investigations were necessary. Any history of alcohol or drug use is important to elicit before commencement of Seroquel due to the risk of misuse and abuse. Also, suicide risk is potentially increased in depressed patients. There is no record of such factors being taken into consideration, or of the patient being advised about risks. Finding: This conduct is significantly below the standard reasonably expected of a practitioner with similar training or experience and invites strong criticism. (10) Between 15 October 2018 and 21 November 2018 the respondent prescribed Oxycodone + Naloxone for Patient A on three occasions. No record was maintained of an appropriate assessment of the patient before commencing narcotics, when a comprehensive assessment including a full socio-psycho-biomedical assessment was required. Inadequate history or examination findings are recorded. A spinal x-ray was performed on 16 August 2018 which was essentially normal and the source of the pain had not been appropriately identified. There is no diagnosis recorded on any occasion. Review on a one to two weekly basis is advised with initial treatment and at each review there needs to be evaluation and recording of results of pain inventory and assessment of analgesia, activity, adverse effects, affect and any aberrant behaviours. There is no record in the three consultations on 15 October 2018, 11 November 2018 and 21 November 2018 of this being done, despite prescriptions for the opiates being given. Finding: Such conduct is significantly below the standard reasonably expected of a practitioner with similar training or experience and invites strong criticism. (11) On 21 November 2018 the respondent concurrently prescribed Olanzapine with Oxycodone + Naloxone for Patient A. Whilst there is no specific drug interaction of these drugs, there is no record of consideration at this consultation of whether the patient's mental state was due to the use of Oxycodone + Naloxone, even though the medical record states: "imagining things… and hearing things + wt loss 10kg". There is no record of any examination and no weight recorded. Seroquel 25mg was prescribed on 18 October 2018: there is nothing in the file to indicate compliance, efficacy or side effects. The dose was sub-therapeutic for treatment of true bipolar disorder, and there is nothing in the medical records to explain the change to another atypical anti-psychotic. This conduct is significantly below the standard reasonably expected of a practitioner with similar training or experience and invites strong criticism. (12) The patient allegedly queried whether Oxycodone + Naloxone might be causing Patient A's depression. On the assumption that she did, the respondent should have been alerted to the possibility of adverse effects and on this basis the conduct of the respondent in allegedly ignoring such question establishes that his conduct fell significantly below the standard reasonably expected and invites strong criticism. Events on 13 February 2019 (13) On this date the respondent invited Patient A to his home via a text message in which he provided his address and instructed her to park her car a "bit away" from his house. Such conduct breached professional boundaries and the request to park away from his home demonstrated that the respondent was aware that his behaviour was inappropriate. Further, the "instruction" to park demonstrates a power imbalance. Such conduct is significantly below the standard reasonably expected and invites strong criticism. (14) The respondent stated to NSW Police that on this occasion he could "smell marijuana coming out of her" and that Patient A "went on saying they gave her heroin". He also stated: "at the front door and she kissed me". When asked by NSW Police about the patient's mental state, the respondent is recorded as stating: "so she never is a stable patient… and majority of time she's psychotic – drug induced psychosis". Due to the relationship, as treating GP, the respondent had a duty to ensure that the patient received medical care, either from himself or, with the patient's agreement, with transport to another medical professional. (15) The respondent stated that he was expecting Patient A at his home and stated: "I was hoping to go for a drive…" During the interview conducted by the applicant, the respondent stated "she told me she's taken something… and she looked very happy. She looked like she must have used something because she was different." "Her hair was all over the place and she was like mumbling some words." The respondent needed to ensure that the patient received medical care as stated above. His conduct in failing to do so fell significantly below the standard and invites strong criticism. (16) Patient A gave evidence that the respondent put his arms around her with his hands on her bottom and said words to the effect that she was his type of woman "sexually". On the assumption that such conduct occurred, it is contrary to the Medical Board Guidelines. It is below the standard reasonably expected of a practitioner with similar training or experience and invites strong criticism. (17) On the assumption that the conduct in sexually assaulting Patient A occurred, and on the assumption that it constituted a sexual assault, the same conclusion is arrived at in relation to (16) above. The respondent's record keeping and documentation (18) On 18 October 2018 the respondent used the K10 mental health tool and diagnosed a high result (41) for Patient A. The Medical Board of Australia's "Good Medical Practice: A Code of Conduct for Doctors in Australia" requires "records that report relevant details of the clinical history, clinical findings… in a form that can be understood by other health practitioners". The medical records of the respondent do not give any indication of the diagnosis of "acute mania and psychosis" and are inadequate for other health practitioners to continue care. The conduct of the respondent is significantly below the standard reasonably expected and invites strong criticism. (19) The respondent stated during the s 150 proceedings on 25 September 2019 that he considered Patient A should cease Targin on 21 November 2018 but didn't document that fact. He stated that he "saw that she has acute mania" during the 18 October 2018 consultation. He stated that he wouldn't be able to make a clinical judgment because it was a difficult case and that he sought the help of a psychologist and sought further assessments. There is no notation in the medical records of any other diagnoses under consideration and no reference to any uncertainty in the referral letter to the psychologist. He chose not to inform the psychologist of a history he had obtained from the patient of a sexual abuse as it was "very sensitive information". The notes are inadequate for any other practitioner to continue management. This conduct is significantly below the standard reasonably expected and invites strong criticism. (20) The clinical notes for Patient A do not satisfy the requirements of Schedule 2 of the Health Practitioner Regulation (New South Wales) Regulation 2010. The same conclusion is reached as per (19) concerning the conduct of the respondent. (21) A written referral for Patient A was provided by the respondent to a psychologist. The respondent informed the psychologist that the patient was "not on any medications at the moment", yet the patient was receiving Seroquel and Oxycodone + Naloxone. The referral did not mention the patient's history of sexual abuse and marijuana use. The referral is inadequate and potentially compromises patient care. There is no indication that the patient requested the respondent not mention in the referral alleged paedophile action against her. The respondent's diagnosis was that of "anxiety/depression" when in fact the medical file records "depression" and in the interview conducted by the applicant the respondent described the condition as "acute mania". The conduct is significantly below the standard reasonably expected and invites strong criticism. Finding: The Tribunal concurs that the conduct is below the standard reasonably expected, but does not consider that it is significantly below such standard. The Tribunal does not agree that this invites strong criticism. Other comments (22) The medical records for Patient A do not comply with the guidelines for appropriate prescribing of narcotics and this conduct falls below the standard reasonably expected and invites strong criticism. Critical issue – events on 13 February 2019 1. The issue for determination is, subject to the respondent disclosing personal information as alleged in paragraph 1 of Complaint Three, whether or not the respondent engaged in the conduct alleged against him in respect of paragraph six of Complaint Three. In this respect the Tribunal sets out hereunder the relevant evidence. Patient A's version of events 1. On 13 February 2019 numerous Facebook messages were exchanged between Patient A and the respondent. The first message was sent by Patient A when she invited the respondent to join herself and her daughter for a swim. The respondent replied at 4:42pm stating that a few of his patients were present ("Few of my patients are here"). The message concluded: "just leaving now". At 5:02pm the respondent sent the following message: "if you need to talk and [Patient A's daughter] sleep early we can catch up [bit] later". The respondent concluded: "if it's not a hassle just MSG me about 6". Thereafter Patient A sent a message stating that she was running late to which the respondent replied: "okay u can come by or we can go for a drive". Further messages ensued. In one message Patient A said: "just message me when and where, take your time". The respondent replied: "3 Watego Dr". Patient A responded: "okay I'll come over now". The respondent replied: "Park ur car bit away". Patient A responded: "Yeh thought I'd do that". 2. Patient A attended an interview with delegates of the applicant at the hospital at Tweed Heads on 15 July 2019 concerning the events of 13 February 2019. She said that she arrived at the home of the respondent, was allowed into the house by him, walked down the hallway to a kitchen and then entered a lounge room. She gave a detailed account of the interior. She stated that the respondent was wearing shorts and a shirt. She said he had nothing on his feet. His attire looked like gymnasium wear. She said the house was air-conditioned and she sat on a two-seater lounge covered in brown velvet. She said there were other chairs in the room. 3. The respondent said that she sat directly across from her on another lounge which was also brown and there was another lounge in between them, forming a "U" shape. She observed a coffee table upon which was a flat screen television which the respondent was watching. She stated that the respondent asked if she would like a drink. The respondent went to the kitchen and returned with a tall clear glass containing what appeared to be a lemon squash drink. She noticed it was extremely sweet. The respondent did not have a drink but returned to the couch on which he had been sitting. She said his arms were folded and he started asking her questions about why she did not have a boyfriend. She said he was not smiling. She said she was feeling tired and bored and said "I'd better go now, I'm not feeling well". She says she stood up to put her drink in the sink because she didn't want to have any more. The respondent took the glass and went to the kitchen and washed "the cup". She states that she started getting her bag to make sure she had her keys and stood up to leave when he came over and put his arms around her and started cuddling her. She gave a detailed description. She states that he put his hands on her and undid the buttons of her shorts. She states that there was physical contact between them and that he removed his shorts and raped her. 4. On 15 February 2019 at 11:54am Patient A sent the following message to the respondent: "no idea what to say to you now… When do u get back from Sydney". On 17 February 2019 at 2:30pm the respondent replied: "sorry for delayed response… nothing really to say… we'll talk about it next time we meet". At 2:49pm on the same day, Patient A messaged: "let's just hope u made it out in time". The respondent replied: "what do u mean". Patient A responded: "Off to a party for [Patient A's daughter] talk to later". At 9:25pm Patient A messaged: "just me worrying as usual. Like you said talk about it some other time". At 9:55pm the respondent messaged: "That is what marijuana do to you… U need to stop smoking it". There were no other messages sent on 17 February 2019. On 19 February 2019 Patient A sent a message saying "hi" to the respondent. The respondent replied: "hi how r u". Patient A responded: "good thank you, was seeing what you were doing earlier? [Patient A's daughter] is staying at my mum's tonight, guess it's late". The respondent replied: "I am at teaching session in Burleigh". 5. On 20 February 2019 at 7:48pm Patient A messaged the respondent: "sorry for msg yesterday… Leave you alone. You're welcome to block me now. Take care." On 21 February 2019 at 12:16pm she sent another message to the respondent: "also I'm not mad or going to say anything so don't worry". The respondent replied at 12:43pm: "I know you're a good person… I don't like that you smoke weed and other stuff… sorry for delayed response but I don't feel well and we are very busy at the clinic". 6. At 1:00pm Patient A replied: "okay I know that, I haven't smoked since last week and only started after taking those tablets. Was going to explain myself more on here, but I won't. Hopefully you will still let me explain to you in person properly, you can't treat me like those things rule me because they don't… Hope you feel better soon". The respondent replied: "we'll catch up for a chat later". Numerous messages were exchanged between the parties in the ensuing weeks up to 6 March 2019. Respondent's version of events 1. The respondent was interviewed by Senior Constable Mathew Huckle on 17 April 2019. In such interview the respondent explained the relationship between himself and Patient A as follows: "the relationship is she was my patient and then she wanted to be my girlfriend. Then I discharge her from my care. That was last year – and we tried to go out four times and it didn't work. So we stopped at that." 2. The respondent stated that he and Patient A started to see one another at the end of January 2019 when they had coffee together at Kingscliff, and saw each other on another occasion in February 2019. He said that, on the later occasion: "we had smoothies, in Kingscliff as well – on the corner – and then we went to the beach, where she had her daughter, in Hastings Point – and then she showed at my house. We were going for a walk – or a drive, to talk about our relationship. How it's progressing – and then it ended at that." 3. The respondent stated that Patient A had been stalking him for 12 months. He had not noticed it, but the clerk at the clinic and the doctor who worked with the respondent drew his attention to it. The respondent said: "and then when I saw that they pay my attention that she's following me around I called her in January. I said, "You can't do this and you have to stop and I'm not going to see you as a doctor anymore." 4. The respondent was asked questions concerning the events of 13 February 2019. The respondent stated: "She did come to my house on the 13th and I – on the purpose – it says clearly, in the letters, to – and the message, to say that we go for a drive – and when she arrived I – she stood by the door. I was trying to put my shoes on – and I put my shoes on. I was not wearing pants. I was wearing shorts. So when I came to the door, to go out, she tried to kiss me and put my – her finger in my mouth. So I could smell marijuana coming out of her. So I told her many times that, "If – if things work between us you have to cease smoking marijuana" – and I said, "That's it. I'm not having anything with you", but – and then she went on saying that they gave her heroin and (indistinct) her neighbours – and I said, "That's it. I'm gonna call the police now. We have to leave", and she said – she rushed to the door, quickly. She followed me inside the house, but she didn't (indistinct) and she was never inside my house more than, like, about four metres, when I tried to get my shoes. That's when she followed me – and then she turned her back at me and rushed to the door, saying "Oh, I arrange my sister to come and pick me up. She dropped me here and she left." So that all took less than three minutes." 1. The respondent denied that he had any sexual contact with Patient A, other than the fact that she kissed him at the front door. Section 150 hearing 1. During the s 150 hearing on 26 September 2019, the respondent gave his version of the events of 13 February 2019. He stated that he sent the message to Patient A "park ur car bit away" because she had told him she had trouble with the police and her neighbour was a police officer. The respondent stated that he didn't want to get Patient A in trouble and that "she'd prefer not to be around cops". 2. The respondent stated that, on 13 February 2019: "She knocks on the door. I was wearing my sport shorts and I had my sport shoes a bit far so I went to put – open the door, tried to put my shoes on. The second thing I feel the door is hitting my head when I was sitting down, my side. So I just pushed the door back and she was mumbling and I closed the door. I told her I'm – if you don't leave I'm – she said something about heroine or another one, I can't remember which one is it exactly. But she said, "I took something". So I said, "That's it," and I tried to close the door. I pushed the door and she left in a – she went – I mean, she turned around and she went quickly." 1. The evidence continued: "Dr Moussa: She didn't enter the house. Chair: You also said she kissed you. Dr Moussa: I don't know why I said that but I can't – I don't have recollection to [sic] saying that but I feel anxious around the police sometimes and probably I can't recall saying it. I have been assaulted twice by the police for no reason. … Dr Cowie: Why do you think feeling anxious would make you say that you had been kissed when you hadn't been? Dr Moussa: I don't know. I honestly don't know why I said that." 1. The respondent stated that he was not concerned about Patient's A safety in terms of her driving a car, after she turned away and left, as she said her sister was picking her up. He stated that he then got in his car and drove to KFC. 2. Later the following is recorded: "Chair: Is there any reason why you would have mentioned the kiss that never happened? Dr Moussa: It never happened. Dr Cowie: There's quite a lot of things in this report that you agree you said freely and it's extensively recorded and none of this was under duress and you're now saying it was either incorrect or the kiss never happened but I said it did, I did say she was psychotic and a manipulator and attention-seeker but it's not true; I mean, how do you account for all those – that variability between what you said to the police of your own free will and what you're now saying? Dr Moussa: I honestly don't have an answer for that." 1. The respondent was also questioned about the Facebook message which Patient A sent to him as follows: "Let's just hope you made it out in time". The respondent stated that he had no idea what such comment meant. Discrepancies The kiss 1. There is a clear discrepancy between the version of events provided by the respondent to NSW Police and the version provided in the s 150 hearing concerning whether or not Patient A kissed the respondent. Patient A's condition 1. The respondent, during the NSW Police interview held on 17 April 2019, stated that Patient A admitted to smoking marijuana and heroin. The respondent later said, during the interview, that he believed that Patient A was an "attention seeker and manipulator – and majority of time she's psychotic – drug induced psychosis". 2. However, during the s 150 hearing, the respondent denied such statements saying, "Yes, that is – shouldn't be there… It's not correct. That's not correct." The transcript reads: "Ms Houen: --- you are now correcting what you've said previously, that she had mumbled, "Heroin," or marijuana? Dr Moussa: Yes, yes. Ms Houen: You are wanting to delete the reference to heroin? Dr Moussa: Yes. Ms Houen: So you think now that she mumbled that she'd had some marijuana? Dr Moussa: Yes. Ms Houen: Okay. Dr Cowie: When did you first become aware that she used marijuana? Dr Moussa: As I said, one of the consultations she said she used it once every moonlight or every month. Dr Cowie: Right. Dr Moussa: The second time, when we were at the café." 1. The respondent could not explain why he said such statement to the police: "I don't have an explanation." Entry into house 1. The respondent gave conflicting evidence concerning whether Patient A entered his house. In the NSW Police interview he stated that she entered the hallway and followed him inside the house, but never entered the house more than about 4 metres. She then turned her back to him and rushed to the door. 2. In contrast, during the s 150 hearing, the respondent stated that he closed the door on Patient A when she arrived and that she did not enter the house. The respondent stated: "Dr Moussa: I said, "I'm just putting my shoes on." I went to put my shoes on. I left the door open like 10, 15 centimetres. As I said, the second thing when I am putting my shoes on while on the floor, I could feel the door hitting my side of my head and then I just stopped her there. She said something about she took heroin or marijuana. I can't remember. Then I said, "That's it, enough," and then, "If you don't leave now I'm going to call the police." I shut the door. Chair: You shut the door? Dr Moussa: Yes. Chair: Okay, so in one of the bits of information you said that she got 4 metres into the house. Dr Moussa: That was wrong. Chair: So she didn't enter the house? Dr Moussa: She didn't enter the house." 1. During the interview with the applicant on 16 August 2019, the respondent stated: "Dr Moussa: "Yes, she was pushing the door and just, to get in, and her hand was in the air. That's what happened. Mr Rochford: And then you shut the door I think you said. Dr Moussa: Yes I pushed the door back. Mr Rochford: So is it the truth that she had contact with you? Dr Moussa: No." 1. To questions asked specifically about whether or not Patient A entered the house, the respondent categorically replied that she had not. He then stated: "Yes. She tried to reach to me. Not to me probably. She tried to reach to the door to push it inside and she was trying to push it inside, so I stood up and I pushed the door back and pushed her out, but not pushed her physically through the door. Basically she just – yes. So she might have her foot inside. I didn't pay attention." 2. Later in the interview the following exchange occurred: "Mr Rochford: Did she come into the house four metres? Dr Moussa: No, she didn't. Mr Rochford: So why did you tell the police that? Dr Moussa: I don't know. I can't recall. I honestly don't know." Invitation to house 1. The respondent informed NSW Police that Patient A "showed at my house". The respondent did not mention to the police the Facebook messages which preceded such event on 13 February 2019. 2. In contrast, the Facebook messages clearly show that Patient A had been invited to come to the home of the respondent before her visit there. Other evidence 1. On 21 February 2019 at 10:23am Patient A contacted a counsellor at Lifeline by telephone. The contact notes of the conversation contain the following: "Caller had an affair and thinks she is pregnant. Very distressed. Has a best friend she has texted and will call as soon as we are off the phone." 1. On 12 March 2019 at 5pm Patient A informed the Tweed Valley Sexual Assault Service that she had sustained a "drug facilitated sexual assault by a GP… that resides near her." She said the "assault occurred three weeks ago," and that she "has talked with friends and believes she cannot have a forensic [examination] because it's [been] more than four days… she is fearful she is pregnant". 2. The notes contain the following entry: "[Patient A] said her previous GP, Jamal Moussa, drugged her then raped her at his house, on 13 February 2019, after grooming her for months previously. … [Patient A] distressed and fearful about disclosing today to her sister about rape as above. [Patient A] said Moussa was her GP for a year. Also her daughter, [daughter's name], her mum's and grandmother's GP still. She said she was told by another DR at the same practice to get 'another GP'. After this, [Patient A] went to Dr Glastonbury at [illegible]. She saw him after the rape but was too embarrassed to tell him it was a rape. Had swabs, urines, bloods, and ultrasound finally recently" 1. Patient A attended the Tweed hospital on the 13 March 2019. The notes record: "Presented to ED today with sister with ongoing RLQ abdo/pelvic pain, pt states since SA on 13th Feb 2019. PT disclosed to staff that she feels that she was given 'a spiked fizzy drink' at the time also." 1. On 14 March 2019 at 12:14am a second conversation took place between Patient A and Lifeline. The contact notes record: "Caller will do a police report tomorrow about her rape by her GP. "I am afraid someone is coming to get me." Caller lives with her grandmother and daughter. Caller was advised we are a confidential service and she can enquire at lifeline during the day about her call at the time of the rape." 1. In an interview with NSW Police on 14 March 2019, Patient A again stated that she had been sexually assaulted by the respondent. Evidence of Patient A Relationship with respondent 1. Patient A gave oral evidence and was extensively cross-examined. She explained that her first recollection of meeting the respondent was through a consultation on 9 February 2018. She had no recollection of prior visits that may have taken place on 15 December 2017 and on another date in that month. She stated that during a consultation, the respondent showed her a photograph of his daughter. The photograph was on his mobile telephone. The daughter appeared to be about five years of age. 2. According to Patient A, further visits took place in February and March 2018. She hadn't been well, having suffered from glandular fever. 3. Patient A consulted the respondent on 9 May 2018 with her daughter, saying that she had flu-like symptoms. She recalled informing the respondent that her daughter had swollen glands, was feeling unwell and very drowsy, and had general weakness. The respondent ordered blood tests. 4. Another consultation took place on 14 May 2018. During this consultation, the respondent suggested to Patient A that she inform the parents of her daughter's father of her existence. Such parents were unaware of their grandchild's existence. 5. Patient A's mother visited the clinic on frequent occasions to sell eggs. The respondent often purchased eggs for $5.00. The respondent offered jellybeans to Patient A's daughter on two occasions. On one occasion, because jellybeans were not available, the respondent gave $5.00 to Patient A's daughter so that she could buy some from the chemist. Patient A considered such conduct to be unusual. 6. Towards the end of July 2018, a patient told Patient A that she thought that the respondent liked her. Patient A acknowledged that by the end of August 2018 she had feelings for the respondent but she kept them to herself, though she may have told a friend. Patient A acknowledged that it was her preference, when making an appointment at the clinic throughout July and August 2018, to consult with the respondent, as he knew the most about her and her circumstances and had consistently treated her. Patient A denied that she deliberately took walks before and after the respondent's working hours in the hopes of seeing him. She stated that she would go for her usual walks and did not deliberately seek out the respondent. 7. In about July or August 2018, Patient A became aware that the receptionist did not welcome Patient A's requests to see the respondent. She considered that the receptionist was unfriendly and had on one occasion glared at her. 8. Patient A continued to consult with the respondent and he prescribed for her various painkillers such as Panadeine Forte, Targin and possibly Voltaren. The respondent referred Patient A for an ultrasound for her back in order to diagnose her back pain. 9. Consultations took place on 27 September 2018, 2 October 2018, 30 October 2018, 31 October 2018 and 1 November 2018. During one of these consultations Patient A said that she felt nervous because she considered that the respondent was flirting with her and she felt uncomfortable. She told the respondent that she might change doctors because the respondent was making her feel nervous. The respondent raised no objection. 10. On 21 November 2018 Patient A said that she was "barely holding it together", looking after her aged grandmother and daughter. She said that she needed help. She attended consultations in November and December 2018 with a psychologist for counselling. In November 2018, she consulted a doctor from another practice for a mental health plan. 11. In December 2018, the receptionist at the respondent's clinic told Patient A that she was not to see the respondent again. No reason was advanced. Patient A said that she felt abandoned by the respondent. She continued to see two doctors from the same clinic in December 2018, although such visits may have been for her daughter's ailments. 12. Patient A stated that she still had feelings for the respondent in December 2018. She said that she wanted to be treated fairly and did not want people to know that she had feelings for the respondent. In an unplanned meeting at a supermarket in late December 2018 or early January 2019, Patient A saw the respondent, who asked her how she was. Patient A informed him that she was at "rock bottom". She says that she was not obsessed, but felt the respondent had abandoned her. 13. Patient A and the respondent commenced communicating by Facebook messages. In response to the unplanned meeting, the respondent invited Patient A to attend the clinic the next day. He made an appointment to see Patient A in the afternoon. 14. On the following day, 3 January 2019, Patient A consulted the respondent. In such consultation the respondent informed Patient A that he couldn't see her as a patient anymore. Patient A said that he referred to a letter that was "going around about me", such letter indicating that Patient A was a "high risk, suicidal troublemaker", and supposedly having been written by a psychologist or psychiatrist who was not a member of the clinic. Patient A was never shown such letter, but she believed that it was recorded on the respondent's mobile telephone. 15. On the following day (4 January 2019), Patient A consulted Dr Glastonbury at a different medical practice. She consulted him thereafter on 1 February, 7 February, 28 February 2019 and on 11 March 2019. 16. Shortly thereafter, Patient A considered that it was necessary that her daughter receive medical attention, but her new medical practitioner did not have an appointment readily available. Accordingly, Patient A took her daughter to the clinic where the respondent worked. The respondent said to Patient A words to the effect of: "we could be friends as long as you don't come back here. I will contact you in two weeks' time". As there had been no contact after two weeks, Patient A contacted the respondent on 22 January 2019 stating: "sorry to bother u the other day and now…". Patient A said that she wanted to clarify the source of the adverse comments about her and she wanted to know why they were made. She said that she did not feel that she was in love with the respondent at this time. 17. On 23 January 2019, Patient A and the respondent met at a café. At this meeting Patient A informed the respondent that she had feelings for him. She stated that the respondent was very friendly and looked into her eyes. She had previously stated to the applicant's investigators that the respondent was more reserved than usual and not as friendly as he had been at the clinic. Patient A stated that such comment was incorrect. 18. Patient A stated that she thought the respondent had been her friend. When she informed him that she had feelings for him and asked why he was treating her in this way, his face went "bright red" and he smiled. 19. Further contact occurred via Facebook messages during February 2019. Patient A said that the respondent "used to make me feel better – funny, made me feel good". She still liked him, "but I wasn't going to act upon it". Patient A said that she "just wanted someone to hang out with". 20. On 9 February 2019, Patient A saw a practitioner who reported that she had "low moods". 21. On 13 February 2019, Patient A sent a Facebook message to the respondent that she "kinda need someone to talk to…". The respondent replied that he would meet her at a beach. However, Patient A noticed a vehicle arrived in the car park which appeared to be the same as the respondent's and the respondent did not appear. The respondent sent a message: "arrived 10 mins ago… a few of my patients here… just leaving now". On the same day the respondent sent the following message: "if you need to talk and [Patient A's daughter] a sleep early we can catch up a [bit] later". The messages that followed have been referred to above. Events at respondent's home 1. Patient A rejected the scenario put to her by counsel for the respondent that she had pushed the door open while the respondent was putting his shoes on, that the respondent said to her that he did not want her in his house, and that she said she would call her sister. 2. Patient A acknowledged that she had looked at the respondent's house on the internet. While the diagram which she prepared did not accord with the furnishings in the house, in every other respect the floor plan she drew, where relevant, accorded with that of the house. Patient A remembered, as set out above, that there were chocolate brown lounges in a "U" shape and that there were glass doors on one side of the living room which opened out to where plants and a "bit of water" were located. 3. During cross-examination of Patient A, reference was made to the fact Patient A had given three versions of the respondent's conduct with regard to the alleged sexual activity. She said that they spoke for about an hour and he gave her a very sweet drink. Thereafter, an act of intercourse took place. Patient A had told the investigators for the applicant that the respondent masturbated outside of her: that "he finished himself off". However she had also stated that he ejaculated inside of her, and that he told the police he could have "finished off" in her vagina. Patient A said that she did not have an exact recollection and the respondent could have ejaculated inside her: she just did not know. Patient A said that, after the sexual act, the respondent went and washed his hands or had a shower in the bathroom. She could hear water running but she did not know what he was doing. She said to him: "I wasn't expecting that. I'd better go. See you later". She says that the respondent informed her: "You can come over any time". Patient A did not report such conversation to the police, nor to the Tweed Heads Community Health Sexual Assault Service. Patient A said she was terrified at what happened and thought it was weird and kept questioning herself as to whether she had just been raped. She said: "I had something given to me in my drink – I gave them as much information as I remember". On the next day she saw her replacement GP but did not mention the events of the previous evening. Two days later Patient A sent the respondent the following message via Facebook: "no idea what to say to you now…". 4. Counsel for the respondent suggested in cross-examination that Patient A was high on marijuana at the time of the incident. Patient A denied that this was so. 5. On 17 February 2019 Patient A sent a Facebook message to the respondent that read: "let's hope u made it out in time". The respondent replied: "what do u mean". Patient A considered that the respondent was "playing dumb". She stated that she wanted to obtain her own evidence, to record him as she was concerned about being pregnant. She spoke to Lifeline and on 27 February 2019 saw her GP. She made no mention of sexual intercourse or rape in her discussions with the GP. Patient A said she was too embarrassed to raise such a matter with her GP. 6. On 21 February 2019 Patient A sent the following Facebook message to the respondent: "Also I'm not mad or going to say anything so don't worry". Patient A repeated several times that she needed to get evidence, that she felt she had been drugged. She said that she felt the respondent might have wanted to kill her because he would not want people to know what he had done to her. She said she relied upon the respondent for emotional support. Evidence of respondent 1. The respondent provided information: 1. to NSW Police during an interview held on 17 April 2019; 2. to applicant investigators, Timothy Rochford and Christine Mudliar, on 16 August 2019; 3. during the s 150 hearing held on 26 September 2019; and 4. by written and oral evidence to this Tribunal—by his statement dated 14 May 2021 and by evidence provided on 19 May 2021. 1. The respondent acknowledged that he had been consulted by Patient A after he had been consulted by her mother. He had moved to the township in July 2017 when he first commenced practice in the area. He was aware by February 2018 that Patient A was a single mother and that the father of her child was not aware of the child's existence. He denied having any conversations with Patient A's mother (Witness B) concerning the father of Patient A's child. He denied ever showing a photograph of his daughter to Patient A; denied telling her his daughter's name; and denied telling her that his marriage had ended in divorce. He said he assumed that Patient A obtained the name of his daughter from greeting cards and balloons which had been displayed in his consulting room. He acknowledged that he had a photograph of his daughter on his mobile telephone. He stated that his daughter was five years old, being the age estimated by Patient A in her evidence. 2. The respondent was aware that the practice manager was concerned about the frequency of appointments made by Patient A, for example on 30 and 31 October and 1 November 2019. The respondent stated that he did not consider such consultations were concerning. The Tribunal notes that another GP at the same clinic stated that he had no concerns regarding the professional relationship between Patient A and the respondent and that he was unaware of any personal relationship between them. 3. The respondent denied that he was aware by the end of 2018 that Patient A had feelings for him. He did not consider the appointments she booked were unnecessary. Further, he denied that Patient A said she might change doctors and that he made her nervous, as alleged by Patient A. 4. The respondent acknowledges that the practice manager told him that he should no longer see Patient A. He did not ask the reason. The respondent did not recall a conversation with Patient A in which she said to him words to the effect of: "they won't let me come and see you anymore". The respondent denies that he said to Patient A words to the effect of: "come and see me in a consultation". 5. The respondent stated that Patient A booked an appointment for 3 January 2019. During that consultation, he and Patient A "agreed that the relationship should end" and she said "she would find another GP". 6. The respondent denied that he read a letter from his mobile phone stating that Patient A was high risk, suicidal and a troublemaker; that he said to her he could no longer be her doctor; and that he said he would contact her in two weeks' time. The respondent denied that he sought to carry on the relationship, denied communications, and stated that he did not wish to become friends and that he never had any romantic feelings for Patient A. 7. The respondent was questioned concerning a statement he made to NSW police that: "The relationship is she was my patient and then she wanted to be my girlfriend. Then I discharge her from my care. That was last year – and we tried to go out four times and it didn't work. So we stopped at that." 1. It was put to the respondent that Patient A contacted him two weeks and one day after the consultation on 3 January 2019. The respondent stated that he had met Witness B and that she suggested he become Patient A's friend. 2. The respondent acknowledged that he met Patient A on a promenade at the local beach where he had a coffee and she had a juice. He also acknowledges that they met on another occasion by chance. The respondent denied that Patient A said that she had feelings for the respondent. The respondent denied that he gave her a hug and says he never touched her. He states that he was not aware that Patient A was highly vulnerable and that she was upset because she was denied access to the respondent at that medical clinic. 3. The respondent stated that he had never spoken about his relationship with Patient A with Witness B, but he had spoken to Witness B and Patient A's daughter. He denied that he was aware Patient A was in a mentally stressed state and acutely unwell. 4. As to the events of 13 February 2019, the respondent acknowledged that he received the message from Patient A asking him if he wished to go for a swim. He then sent the reply that he "arrived 10 minutes ago". He stated that he "passed through" and had no intention of going for a swim. However, he sent a message at 5:02pm to the effect of: "if you need to talk… we can catch up later". The respondent told police that he and Patient A were going for a walk or a drive or would spend time at his house. 5. The respondent provided his home address to Patient A via Facebook and instructed her to park her car a bit away. He said he did so because he believed that Patient A was nervous about the police and that a policeman was his neighbour. When asked how he believed that Patient A knew a policeman lived beside the respondent, he said the policeman was washing his car outside his house one day when Patient A was walking by and called in. The respondent denied that he did not want Patient A to park outside lest she be identified as a patient seeing him. 6. The respondent says with respect to Patient A's arrival: "I opened the door – my shoes are not on. She was on the other side of the door – her hair was a mess." 1. The respondent provided no oral evidence in chief to the Tribunal of the events alleged to have taken place between Patient A and the respondent at his home. Instead he adopted his statement (Exhibit 1). Such statement does not address the events that occurred at the respondent's house. On this subject, the statement records: "10 On 13 February 2019 I was to meet (Patient A) at the beach, however the scheduled meeting on the beach did not take place. My (sic) arranged to meet [Patient A] at my home and then go to KFC with [Patient A) for dinner, as was my habit every Wednesday after work. I directed her to park her car a "bit away" from my home as my neighbour was a police officer and (Patient A) had previously had encounters with the police. 11 While I concede that I entered a familiar relationship with [Patient A] after she was patient, I emphatically refute that I inappropriate touched or made sexual advances to her as she alleges. I was investigated by police with such allegations and following an interview with Senior Sergeant Matthew Huckle of Tweed Heads police station, no charges were laid against me." 1. The respondent denied kissing Patient A and that she entered the house. The respondent asserts that he did not offer her a drink and that she was never on the couch. He denies that he removed her shorts; had intercourse with her; and masturbated following the event. 2. The respondent received a message on 15 February 2019 from Patient A in which she stated: "No idea what to say to you now". He also received a Facebook message on 17 February 2019 in which Patient A said: "Let's hope u made it out in time". The respondent says he did not understand these messages. 3. It was put to the respondent that he had deliberately tried to discredit Patient A by informing the police that she was a drug user, was unreliable and seriously mentally unstable, and had made unreliable allegations, which the respondent denied. However the respondent made the following concessions: "Q. She never behaved in an erratic way. A. No Q. Or in a violent way. A. No Q. She never made threats are behaving violently. A. No Q. She never did any damage to your property. A. No Q. She never did any damage to her own property as far as you are aware. AI don't know. …Q. And your account to the investigator and in the section 150 proceedings was it she behaved in a way that caused you to say that you are going to call the police. Is that right? A. Sorry? Q you said… A. Yeah Q. – Your evidence is that she behaved in a way that cause you to say to her, I'm going to call the police". A. I don't understand, I – I – I don't understand your question, sorry. Q. Did you say to her, "I'm going to call the police"? A I can't remember." 1. The account provided by the respondent to the 150 hearing proceeding was read to the Tribunal: "Okay what happened – so when we have got [Patient A] who had parked her car a bit away and then what happened?" And then you say, "she knocks on the door, I was wearing my spots [sic - sports] shorts and I had my sport shoes a bit far so I went to open the door, tried to put my shoes on. The second thing I feel the door is hitting my head when I was sitting down my side so I just pushed the door back and she was mumbling something about heroin or another one, I can't remember which one it is exactly."… I can't member which one is it exactly but she said, "I took something", so I said that it and I tried to close the door. I pushed the door, she left in a – she went, I mean she turned around and she went quickly." 1. Before the Tribunal the respondent said in cross examination: "I said I'm just putting my shoes on, I went to put my shoes on I left the door open, like, 10, 15 cm as I said the second thing when I am putting my shoes on while on the floor I could feel the door hitting my side of the head and then I just stopped her there. She said something about, she said heroin or marijuana, I can't out then I said, "That's it, enough", and then "if you don't leave now, I'm going to call the police. I shut the door. 1. The respondent agreed that that was his version of the events of that evening. 2. The following exchange occurred before the Tribunal: "Q. There was no basis for you to be concerned that she would harm you or harm anybody else. A. It's not about harm, I was scared myself that the police would come over again and I'll get arrested if she has any drugs with her. So I was scared for my own self – I didn't have the right mind to think about that." 1. The Tribunal has not been furnished with any evidence to suggest that Patient A has previously had any involvement with the police nor that the respondent has had any such involvement. 2. The respondent stated that he has resided in his house since July 2017. Photographs were tendered of the house which showed white tile floor throughout, with cream or light brown lounge furniture comprising of an L-shaped lounge. There was no coffee table but rather the TV was on the wall. The respondent stated that the furnishings as shown in photographs from a website, which were taken in either 2014 or 2017, showed the furnishings as at 13 February 2019. The photographs also showed that the swimming pool adjacent to the living area of the house. Other evidence Exclusion of Patient A from medical practice 1. An undated statement by the practice manager establishes that, following observations by a staff member at the clinic, it was believed that Patient A was frequenting the clinic to see the respondent. A receptionist noted that Patient A was increasing the frequency of a number of appointments requested for herself, her daughter and her grandmother. It was alleged that Patient A would make an appointment for her daughter but on arrival change the appointment to one for herself, stating that her daughter no longer needed it; she would call and say her daughter was unwell and needed an appointment and would be offered an appointment with the first available GP. Patient A said she would request to wait until the respondent was free so that she could see him. It was claimed that Patient A was seen in the vicinity of the building, including walking along a back road which connected to the staff car park, during lunch breaks and at the end of the day on a number of different occasions. The receptionist noted that Patient A altered her appearance when attending appointments, from very casual to more formal dress. The receptionist raised such concerns in a discussion with the respondent and another practitioner. According to the practice manager, the respondent then informed Patient A that he was no longer going to see her. 2. In another statement dated 8 October 2019, the practice manager states that she could not recall telling Patient A that she was no longer permitted to see the respondent. The receptionist states that she did not tell the respondent that he could not have consultations with Patient A. 3. In a statement, another GP at the same medical clinic states that it was brought to his attention that Patient A was trying to book regular appointments with the respondent for herself, her child or her grandmother in December 2018. He advised the respondent that he should terminate the care of such patient. He states that the respondent "terminated her care at the next appointment in January whilst I was in the UK". He recalls that the respondent informed Patient A that he was not happy to continue as her doctor. His understanding of the situation was based on the frequency of consultations booked for herself, her daughter and grandmother, which seemed inappropriate, "and also that she had showed up at his front door". 4. Before the applicant's investigators, questions were asked of the respondent as follows, concerning the period December 2018 – January 2019: "Mr Rochford: All right. Okay. When did you next see [Patient A] to have a conversation with her, either inside or outside the surgery? Dr Moussa: Well, in January, after we came from holidays, the manager called me and said, "You need to tell her she is not welcome here any more and she needs to move on," and they made an appointment for me to see her. I think I saw her on the 3rd and I told her that." 1. The respondent gave evidence of a telephone meeting with the practice manager as follows: "Dr Moussa: Well, she called me to say: "She's here all the time. We don't feel comfortable seeing her any more. You need to book her in and tell her that we're not seeing her any more and she's not to come to our clinic, not skin or GP. Mr Rochford: Why? Dr Moussa: I didn't ask why. Mr Rochford: You didn't ask why? But that was what [the practice manager] wanted? Dr Moussa: Yes. I learned something that you just do what you have to do. I don't ask questions. I don't ask why. Mr Rochford: At that stage – and correct me if I'm wrong – but you hadn't stopped seeing her? You hadn't terminated her care or passed on any information to any other treating practitioners, had you? Dr Moussa: Not myself but I believe her care was transferred to a doctor in there. Mr Rochford: When did you know that? Dr Moussa: in December they told me. [The practice manager] told me, at that stage, that she was --- Mr Rochford: That was during the meeting? Dr Moussa: No, when she told me that, "She's seeing another doctor and now we don't have to worry about her." Mr Rochford: But you got that from [the practice manager]? Dr Moussa: Yes, when I ask her about the review, why didn't she come when I booked her for the review? Mr Rochford: That's right, yes. Dr Moussa: And then when she told that she already booked another doctor in the area and we already handed over the care to that basically. Mr Rochford: You handed? Dr Moussa: They handed the care to the new doctor. … Mr Rochford: And what did you do after the meeting as far as [Patient A] was concerned? Respondent: I just – she came to the appointment. I told her that the decision has been made." 1. The respondent provided different evidence when interviewed by NSW Police on 17 April 2019. In that interview he said: "Dr Moussa: And when I saw that they pay my attention that she's following me around I called her in January. I said, 'You can't do this and you have to stop and I'm not going to see you as a doctor anymore.'" Evidence of Witness A 1. Witness A was employed on a casual basis as a receptionist at the clinic. In her statement she states that she observed that Patient A appeared to "dress up" more when she attended the clinic for consultations with the respondent. She states that she saw Patient A in the street in "street wear", but when she attended the clinic 30 minutes later she had her makeup and hair done. 2. Witness A received phone calls and made appointments. She states that Patient A only wanted to see the respondent. On one occasion Patient A walked in without notice and after being informed that the respondent was not available, she said it was no longer an emergency and she would make an appointment later. She also noticed that Patient A would walk up and down in front of the clinic at about the time the respondent usually left the clinic. She drew her concerns to the attention of the practice manager. Evidence of Witness B 1. Patient A's mother (Witness B) gave evidence by telephone. She had taken her granddaughter (Patient A's daughter) to consult with the respondent concerning a chest infection her granddaughter suffered in 2018. She noticed that the respondent provided her granddaughter with jellybeans and later gave her five dollars to buy jellybeans as they could no longer be provided by the clinic for health reasons. Witness B knew the respondent because she had sold eggs to the respondent and had seen him in a supermarket. 2. Witness B stated that the respondent asked her whether Patient A had a boyfriend and whether she was sexually active. Such questions troubled her and she said that she was "taken aback. It was none of my business". Witness B did not think that the respondent was a "nice person asking questions about my daughter's sex life". 3. Witness B never thought that the respondent was "hunting her down"; she had no idea of any relationship until after she became aware of these events. Witness B did not inform Patient A using words to the effect of: "I think he likes you". 4. Witness B said that in the weeks after February, Patient A was "really on edge". Witness B told investigators for the applicant on 15 July 2019 that Patient A told her that the respondent had given her a drink; took her clothes off and then raped her, after which she ran out the door. Witness B became concerned because Patient A was sleeping with a knife beside her. She said she was completely different from previous months and crying a lot. Evidence of Witness C 1. Witness C, a professional health worker engaged by a public hospital in Sydney with experience in mental health, gave evidence by audio-visual link. She had known Patient A since she (Witness C) was 11 years of age. They communicated approximately once every three months and had been lifelong friends. She stated that Patient A "didn't get crushes easily". Patient A told her that the respondent appeared to have an interest in her; that his body language indicated such when she attended consultations. Towards the end of 2018, Patient A informed Witness C that she liked the respondent, but never said that she was in love with him, or he with her. Witness C states that the word "love" was not mentioned. 2. Witness C recalls that Patient A told her that she and the respondent met at a place known as "the creek", which is a tidal lagoon. It appears that such location is the place where Patient A claimed to have met the respondent for coffee. Witness C informed Patient A that she could have a relationship with the respondent provided she had not been a patient of the respondent for 12 months. Witness C said that she was aware that Patient A liked to smoke marijuana, but Patient A had never informed her that she had been to the respondent's house whilst she was high on marijuana. Witness D 1. Witness D, a registered nurse, has known Patient A since she was 12 years old. In late February early March 2019 she met Patient A shortly after her return from overseas. She noticed that Patient A did not seem to be herself and did not appear to be happy and Witness D asked her what was wrong. She recalled Patient A said words the effect: "Jamaal invited me over to his house and he gave me a drink that was really sweet". 1. Patient A added: "He pulled my pants down and then raped me". 1. Witness D asked Patient A whether she had reported the matter to which Patient A said: "No, I don't want to believe it happened and it had [sic – has] been a little while and I'm not sure if I could report it." Findings 1. The versions of the critical events of 13 February 2019 provided by Patient A and the respondent are clearly irreconcilable. It is plain from the evidence however that Patient A was a vulnerable person who had become reliant upon the respondent for emotional support. The numerous Facebook messages exchanged between them clearly demonstrate that the respondent was a willing participant in maintaining a relationship with Patient A outside of the professional relationship. It was put to patient A that the respondent "wasn't pursuing you. You knew that". 2. Patient A replied: "Yes, he was". Patient A states that he said during a consultation that he told her that she was "beautiful". The following is recorded in the transcript: "Q. So, you assumed that Dr Moussa had reciprocal feelings for you, did you? A. Yeah, well he was saying inappropriate things to me, so I assumed that he did. Q. he was being polite to you, wasn't he? A. No. "Beautiful ", and, "Any man would be lucky to have you", is not polite Q. He didn't say… A. He did. Q. "..Any man will be lucky to have you" A: He did. Q..He didn't say that you are beautiful, did he? A.Yes, he did, I already told you that. " 1. The respondent did not dispute that he told police that they had gone out on four occasions together. Clearly, the relationship had moved from doctor/patient to a social relationship. At the final consultation with the respondent on 3 January Patient A provided the following evidence: "A. He said, "We could be friends, but you're not allowed to come in here anymore. We can go have coffees". Q. he That said, "We can try to be friends… A. He didn't say, "try", he said, "we can be friends, as long as you don't come back here. I'll contact you in 2 weeks", and then he didn't, and then I contacted him." 1. In his evidence, the Tribunal gained the distinct impression that the respondent tried to distance himself from any association in the way of a friendship with Patient A. The inconsistencies in the evidence he provided to NSW Police, in the s 150 hearing, and to investigators leads the Tribunal to treat his evidence with a reserve. Taking into consideration that English is not the respondent's first language, the fact remains that the various versions he gave of the critical events of 13 February 2019 are irreconcilable. 2. In contrast, Patient A gave a detailed recollection of her visit to his home. She described the interior of the house as best as she could and drew a diagram. The diagram, in all structural respects, reflected the interior of the house. The visit took place in the evening when she said the interior of the house was dark. She recollected the furniture in the house. As she said, the respondent "did not take me on a tour". Whether the lounge furniture was cream or grey is not a critical factor. Patient A was drawing on her recollection of one visit to the interior of the house. A diagram she prepared from her recollection shows generally the layout of the furniture, although she thought there were two separate settees rather than a L shaped settee in the living room. 3. Patient A appeared to be in a state of mental confusion following 13 February 2019. The Tribunal infers that there was a traumatic event on that evening which caused her great stress and anxiety. The Tribunal is prepared to accept that she was in a state of mental confusion following her visit to the respondent's home. Her actions in not disclosing the event are explicable. The Tribunal accepts that the trauma of the event built up in her mind until she reported it to the Tweed Valley Sexual Assault Service, and ultimately to NSW police. 4. Some of the evidence provided by Patient A was puzzling. It is apparent that she held feelings for the respondent as she readily acknowledged when she said: "Q. You were in love with Dr Moussa, that's what you thought, wasn't it? A. I wasn't in love, like transference is pretty intense feeling and yeah, it feels like love, but I know it's not love, I didn't love him, I really, really, really liked him. I thought he was a really nice person Q. You thought you were in love with him at this point, didn't you? A. No." 1. The Tribunal finds that some of her evidence concerning fear for her life after 13 February 2019; her sleeping with a knife for protection; and the suggestion that the respondent would try to kill her is inconsistent with text messages or emails sent following 13 February. These indicate cordial relations including a statement by Patient A as follows: "Also, I'm not mad or going to say anything so don't worry." 1. Such messages are inexplicable except on the basis that it was a manifestation of her mental turmoil following the visit to the respondent's house. Patient A had a prior encounter as a result of which she gave birth to her daughter, and expressed grave concern that the respondent, if he found out that she was pregnant, may try to cause harm 2. The Tribunal also notes the variation in her accounts concerning the actual sexual encounter, namely whether the respondent ejaculated inside her or outside, and completed his orgasm by masturbation. Despite these variations, the Tribunal considered that Patient A was a witness of truth. She readily acknowledged that she had smoked marijuana earlier on 13 February. But she was able to drive her motor vehicle to the respondent's home and park her car as he directed, which indicates that she was not affected to any significant degree by the ingestion of marijuana. 3. The Tribunal does not consider that such facts detract from her account of the events at the respondent's house. Nor does Patient A's recollection of the furnishings and layout of the house differ in major respects from the description provided by the respondent. The position of the television, the colour of the lounges may not have been accurate: yet Patient A recollected the basic configuration of the rooms and of the fact that there was a pool. Whilst the respondent submits that she could have obtained such details from the website and that the respondent admitted, much later, looking at the website which described the house, the Tribunal does not consider that this was the only source of her recollection. 4. Patient A had consulted a clinical psychologist, Dr Elizabeth Quinn. The first consultation took place on 9 February 2019 then on 23 February 2019; 8 March 2019; 16 March 2019, 22 March 2019. Patient A did not report to the psychologist at the first consultation (23 February 2019) following the alleged assault that she had been subject to such an ordeal. Instead she referred to traumatic experiences as a child and became quite emotional. However, on the following visit namely on 8 March 2019 she reported that she was anxious as she had recently had unprotected sex with someone she knew. She did not reveal that it was the respondent. However at the consultation on 22 March 2019 she said that she was very fearful of the respondent that he might kill her; that she became paranoid and ran to the chemist. An ambulance was called because she was so distressed. Patient A also consulted another medical practitioner on 16 March 2019 where she named the respondent as the person who had allegedly assaulted her. 5. The respondent submits that such history is inconsistent with her conduct: on the one hand, she claims to be terrified by the respondent, yet was simultaneously sending friendly emails to him. 6. The Tribunal has considered the evidence and the inconsistencies alleged, it does not conclude that these necessarily result in a finding that Patient A was untruthful: rather is an apparent manifestation of her mental anxiety following 13 February 2019 meeting with the respondent. 7. There are other matters which cause the Tribunal to prefer the evidence of Patient A, namely the consistency of her evidence, the inconsistencies in the respondent's evidence in the versions of the events which she has given; and evidence of her mother (Witness B) that the respondent enquired of Patient A's private life and whether she had a boyfriend. The respondent denied such conversation. The respondent claimed that the patient's mother asked him to take out Patient A: the respondent's claim was firmly rejected by Patient A's mother. The Tribunal found Patient A's mother (Witness B) to be an impressive and reliable witness, as was the testimony of Patient A's friends, Witness C and Witness D. 8. But there are other matters which, quite independently to the events 13 February 2019, cause the Tribunal to consider that the evidence of Patient A is more reliable. The Tribunal, in reference to Complaint Three particular 1 accepts that Patient A would not have known the name of the respondent's daughter, nor her age, nor that the respondent was divorced, other than in the manner described by Patient A. The respondent suggestion that Patient A could have gleaned such facts from a coffee mug bearing the respondent's daughter's name, or from a greeting card is implausible: especially so when in the clinic, the respondent did not always occupy the same consulting room. 9. The respondent has raised numerous matters which it said adversely impact upon the credit of Patient A for example the fact that Patient A could not recall one occasion whether she took her daughter to a medical practitioner or whether her mother did so; that the call to Lifeline on 21 February 2009 did not support a sexual assault when it simply referred to "affair"; that her memory concerning visits to another doctor, Dr Glastonbury was imprecise; the inconsistency in her account given to the applicant of events on 23 January 2019 concerning the demeanour of the respondent, namely that it was more reserved, compared to her oral evidence to the Tribunal when she said it was less reserved and more friendly; the account she gave to the applicant that the respondent did not ejaculat inside her; that she told the sexual assault service that she did believe that he had ejaculated inside her; and to the police that he ejaculated on her pelvis or in her hand; her differing account of the furniture; her claimed concern for her safety. 10. Patient A did not dispute that she probably smoked marijuana, in a small quantity, on the afternoon before meeting the respondent on 13 February 2018. She stated that she regularly smoked marijuana at the time "just enough to get to sleep at night". She explained that the Targin wore off during the morning and it was very difficult for her, describing it as "the most difficult thing I'd ever went through". However she firmly rejected that she had ever consumed heroin. 11. In contrast, the respondent gave confused evidence whether Patient A said that she had taken heroin on the night. Even though he informed police that she was a heroin user and that Patient A had tried to put his finger in his mouth. 12. The respondent also seemed to distance himself from Patient A: he denied that by the end of 2018 that he was aware that Patient A had feelings for him even though several members of his clinic identified concerns that the issue had been the subject of conversation with the respondent. Dr Preedy, a member of the clinic, provided a statement in which he records that the respondent informed him of an occasion when Patient A attended his house in about December 2018. Dr Preedy stated that he informed the respondent that that was "concerning": the respondent denied he made any such comment to Dr Preedy. 13. The respondent denied discussions concerning his relationship with Patient A and her regular attendance at the clinic. The respondent stated he was informed that her care would be allocated to Dr Ben and that he was to have nothing to do with her anymore at a meeting attended by Dr Ben, Dr Harry and the practice manager. He states that they didn't discuss anything with him. 14. The respondent denied the evidence of Patient A and of Witness B that there was a jar of jelly beans in his room and that when he could no longer dispense them, he gave five dollars to Patient A's daughter for the purchase of sweets. 15. The respondent could never satisfactorily explain why he told Patient A to park her away from his house: the explanation which she gave namely that the neighbour was a police officer was, according to Patient A, never mentioned by the Respondent to her. The Tribunal also notes that the respondent acknowledged that he is not always truthful with the police. 16. For the respondent it was contended that he had a partner following a separation or divorce, and that there would be no motive for him to engage in conduct with Patient A. 17. The Tribunal has considered these matters and considered that the evidence of Patient A is to be preferred over the inconsistent versions provided by the respondent. The Tribunal considered Patient A to be a truthful witness. Standard of Proof 1. The Tribunal is mindful that it must be satisfied to a high degree before it can make a positive finding that the respondent engaged in the conduct complained of: see Bronze Wing International Pty Ltd v Safe Work NSW [2017] NSWCA 41; see also Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. It has been described as a misnomer to consider the "burden of proof" in a tribunal where the rules of evidence do not prevail: see FTZK v Minister for Immigration and Anor [2014] HCA 26; (2014) 88 ALJR 754 at [33]–[36] per Hayne J. The Tribunal is mindful of the serious allegations made and the requisite comfort it must have before making a positive finding that a breach as alleged has been committed by the respondent. 2. The Tribunal is satisfied that the intimate act described by Patient A took place in the respondent's dwelling. The Tribunal is not determining whether an act of rape nor sexual assault occurred: rather, whether the only question for the Tribunal to decide is whether professional boundaries were breached. Such boundaries were breached by the invitation of the respondent to Patient A to visit his home; by her attendance there; and by an act that took place between them of a sexual kind. Whether the act was consensual or otherwise is not relevant for the Tribunal's finding. The Tribunal makes no finding that Patient A was drugged prior to the act, as was suggested, nor that she was raped. Unsatisfactory Professional Conduct and Professional Misconduct 1. The conduct of the respondent breached the professional boundaries as alleged in Complaint Three, particular 1 and particular 6. 2. The Tribunal must determine whether such finding results in the conclusion that the respondent has engaged in unsatisfactory professional conduct and professional misconduct. Section 139 of the National Law requires that a person be competent to practise a health and safety profession. Section 139B of the National Law defines unsatisfactory professional conduct relevantly 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) [relevant to Complaint One and Complaint Two] 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) [relevant to Complaint One, Complaint Two and Complaint Four] A contravention by the practitioner… 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) [relevant to Complaint Three] any other improper or unethical conduct relating to the practice or purported practice of the practitioners profession 1. The conduct which constitutes unsatisfactory professional conduct has been referred to in numerous authorities: see for example Health Care Complaints Commission v Do (2014) NSWCA 307 at [35] where the Court said inter alia: "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." 1. As to professional misconduct, this term is defined in section 139E of the National Law as meaning: (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 practitioners registration. 1. The definition of professional misconduct has been considered In Numerous Authorities: see for example Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67] where Basten JA relevantly said: "Thus a person may not be suspended or deregistered unless the Tribunal finds the person is not competent to practice (sic – practise) medicine, is guilty of professional misconduct, is not of good character or has been convicted of an offence which renders the person unfit in the public interest to practice (sic practise) and is likely to remain so for a significant or indefinite period (see HCCC v Della Bruna (2014] NSWCATOD 31;HCCC v Jamieson (2014] NSWCATOD 56)." 1. Conduct which is not in conformity with the standards of professional conduct and practice may be regarded as "improper": See Health Care Complaints Commission v McGregor [2016] NSWCATOD 86 at [40] – [41]. Conduct which is unsatisfactory professional conduct may include "unethical conduct": see Slezak, Dr Peter (2011) NSWMPSC 10 at [80], [83] and [87], where the Tribunal observed that improper or unethical conduct is to be determined by reference to the views of reasonable members of the profession. 2. It should also be observed that in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, Basten JA said at [20]: "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 judgement made by the Tribunal". 1. The findings made in respect of Complaints One, Two, Three, and Four constitutes unsatisfactory professional conduct. The Tribunal also concludes that the conduct referred to in Complaint Three constitutes professional misconduct. Orders 1. The Tribunal: 1. Finds that the respondent is guilty of unsatisfactory professional conduct with respect to Complaints One, Two, Three and Four; and that the respondent is guilty of professional misconduct arising from the finding referred to in Complaint Three. 2. Directs that the parties approach the Registrar for the allocation of the hearing date to determine the appropriate disciplinary sanction arising from the above findings. ********** 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 Amendments 08 November 2021 - Order (1) within the Coversheet and Reasons corrected, "In" replaced with "in". 08 November 2021 – Order (2) within the Coversheet and Reasons corrected, "discipline re-sanction" replaced with "disciplinary sanction". 08 November 2021 – Words "(No 2)" added to the case name. 19 November 2021 - Order (1) within the Coversheet and Reasons corrected, "Complaint Four" in last line replaced with "Complaint Three". 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: 19 November 2021