Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v FHB [2022] NSWCATOD 19 Hearing dates: October 2021 and November 2021 (final submissions) and January 2022 Date of orders: 15 February 2022 Decision date: 15 February 2022 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Dr A Eyers, Senior Member Dr A Reid, Senior Member D Telford, General Member Decision: (1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the patients set out in the schedule of the complaint and the names of the patients mentioned in any of the evidence before the Tribunal, to any person or entity, is prohibited. (2) The Application for disciplinary findings and orders is refused. (3) Pursuant to Schedule 5D clause 7 of the Health Practitioner Regulation National Law (NSW) the publication of the following information is prohibited: (a) the name of the respondent, including any information or other material that identifies the respondent or is likely to lead to the identification of the respondent, (b) the names of the nurses called as witnesses, including any information or other material that identifies the nurses or is likely to lead to the identification of the nurses. (4) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the disclosure of the following information is prohibited: (a) the name of the respondent, (b) the names of the nurses called as witnesses. (5) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 the publication of the transcript of proceedings and of any evidence given before the Tribunal at the hearing of these proceedings, whether orally or by document, is prohibited, except for evidence reproduced in the written decision of the Tribunal published on Caselaw. (6) These orders do not apply to the disclosure of the Tribunal's decision (a) by the applicant to the Australian Health Practitioner Regulation Agency, the Medical Council of NSW and Ramsay Healthcare Australia Pty Ltd; and (b) by the respondent to the Australian Health Practitioner Regulation Agency, the Medical Council of NSW, any employer or potential employer of the respondent or any educational organisation which seeks to engage the respondent's services. Catchwords: OCCUPATIONS – Medical practitioner – allegations of unsatisfactory conduct and professional misconduct Legislation Cited: Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Foster v Hunter New England Area Health Service [2010] NSWCA 106 Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) FHB (Respondent) Representation: Counsel: S Maybury (Applicant) P J Griffin SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal (Respondent) File Number(s): 2021/00087709 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the patients set out in the schedule of the complaint and the names of the patients mentioned in any of the evidence before the Tribunal, to any person or entity, is prohibited. Pursuant to Schedule 5D clause 7 of the Health Practitioner Regulation National Law (NSW) the publication of the following information is prohibited: (a) the name of the respondent, including any information or other material that identifies the respondent or is likely to lead to the identification of the respondent, (b) the names of the nurses called as witnesses, including any information or other material that identifies the nurses or is likely to lead to the identification of the nurses. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the disclosure of the following information is prohibited: (a) the name of the respondent, (b) the names of the nurses called as witnesses. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 the publication of the transcript of proceedings and of any evidence given before the Tribunal at the hearing of these proceedings, whether orally or by document, is prohibited, except for evidence reproduced in the written decision of the Tribunal published on Caselaw. These orders do not apply to the disclosure of the Tribunal's decision (a) by the applicant to the Australian Health Practitioner Regulation Agency, the Medical Council of NSW and Ramsay Healthcare Australia Pty Ltd; and (b) by the respondent to the Australian Health Practitioner Regulation Agency, the Medical Council of NSW, any employer or potential employer of the respondent or any educational organisation which seeks to engage the respondent's services. REASONS FOR DECISION 1. This matter concerns disciplinary proceedings brought by the Health Care Complaints Commission ('the HCCC') against FHB, a registered medical practitioner with specialist registration as a Physician – Gastroenterology and Hepatology. The proceedings are brought under the Health Practitioner Regulation National Law (NSW) ('the National Law'). 2. The matter proceeded on the basis of an amended complaint dated 15 June 2021. Four patients of FHB were mentioned in that complaint. The disclosure of the names of those patients would necessarily involve the disclosure of details of medical procedures undergone by them and portions of their medical records, which is undesirable and unnecessary in the context of disciplinary proceedings regarding a medical practitioner. There will be an order, pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibiting the disclosure of the names of the patients set out in the schedules of the complaint to any person or entity. 3. The hearing of the matter took place over two days. Statements, affidavits and other documents were tendered. Enrolled Nurse "ENJ", Registered Nurses 'RNK', 'RNL' and 'RNM', all of whom worked at the hospital at which the events alleged in the complaint were said to have occurred, gave oral evidence in the HCCC's case. FHB gave evidence in FHB's own case. Ms Watson, a solicitor, also gave evidence in FHB's case. 4. The determination of this matter depends upon the resolution of a dispute of facts. The amended complaint 1. We set out the terms of the amended complaint: The Health Care Complaints Commission of Level 12, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of NSW in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT [FHB] ("the practitioner") of an address known to the Commission, being a medical practitioner registered under the National Law, is guilty of the following two complaints: COMPLAINT ONE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a), and/or (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. BACKGROUND TO COMPLAINT ONE The practitioner was first registered in New South Wales on 6 January 1997. The practitioner holds specialist registration in the field of Gastroenterology and Hepatology. …The practitioner has been accredited as a Gastroenterologist [Hospital] since 2007…. The practitioner conducts a [regular] Endoscopy list at [hospital]. … Patient A underwent a combined gastroscopy and colonoscopy procedure with the practitioner on 5 September 2018. Patient B is a female and is one of the patients listed in Schedule A to the Complaint. Patient B underwent a combined gastroscopy and colonoscopy procedure with the practitioner on 23 January 2019. Patient B is a female and was born on 21 October 1982 and is the patient listed in Schedule B to the Complaint. PARTICULARS OF COMPLAINT ONE … 2. On 5 September 2018, during a colonoscopy procedure, the practitioner inappropriately digitally penetrated the vagina of Patient A, in circumstances where: (a) Patient A was under sedation and could not consent to a vaginal examination; (b) Patient A did not consent to a vaginal examination; (c) There was no clinical indication for the practitioner to conduct a vaginal examination on Patient A; (d) The practitioner engaged in inappropriate conduct of a sexual nature towards Patient A. 3. On 23 January 2019, during a colonoscopy procedure, the practitioner inappropriately digitally penetrated the vagina of Patient B, on two separate occasions, in circumstances where: (a) Patient B was under sedation and could not consent to a vaginal examination; (b) Patient B did not consent to a vaginal examination; (c) There was no clinical indication for the practitioner to conduct a vaginal examination on Patient B; (d) The practitioner engaged in inappropriate conduct of a sexual nature towards Patient B. COMPLAINT TWO 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. PARTICULARS OF COMPLAINT TWO 1. The Particulars of Complaint One are repeated and relied on both individually and cumulatively. Dated: 15 June 2021 The National Law 1. The complaint has been referred to the Tribunal under s 145B(1)(c) of the National Law. 2. The HCCC bears the onus of proof. The standard of proof is proof on the balance of probabilities, with a sufficient degree of certainty, having regard to the gravity of the allegations made (see Foster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]-[23] and Bronze Wing International Pty Ltd v Safework NSW [2017] NSWCA 41 at [126]-[127])). 3. Unsatisfactory professional conduct is defined in s 139B(1)(a) and (l) of the National Law to include the following: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Professional misconduct is defined in s 139E of the National Law as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The HCCC's evidence 1. An accurate diagram of the procedure room in which both of the alleged incidents were said to have taken place was annexed to the affidavit of Ms Wilson. It is attached to this decision to assist in the understanding of the evidence. 2. The diagram shows all of the five health practitioners who are usually present in the room during a colonoscopy, including the gastroenterologist, the anaesthetist, the anaesthetic nurse, who stands to the left of the gastroenterologist, the procedure nurse, who stands to the right of the gastroenterologist and the scout nurse, who spends most time sitting or standing at the scout nurses' bench. 3. Dr Vickers, a consultant physician and gastroenterologist, provided an expert report, together with a supplementary letter dated 18 October 2021. Dr Vickers also gave oral evidence. Dr Vickers has 30 years of clinical practice in the field of colonoscopy and his evidence was unchallenged. We accept it in its entirety. 4. In his statement, Dr Vickers said that a colonoscope is a flexible endoscopic instrument designed to view the inside of the colon and to diagnose and investigate colorectal symptoms. The instrument has a working channel which facilitates the passage of various catheter devices used to investigate and treat diseases of the colon, such as polyps, tumours, bleeding vessels and strictures. 5. Dr Vickers said that a straightforward colonoscopy takes from 7 to 20 minutes, depending upon the patient's anatomy. 6. In his statement, Dr Vickers said, on page 3 at paragraph 2: i. In anatomy, the anorectal section comprises the anus and the rectum. ii. To view the anorectal area, and in preparation for a colonoscopy, one normally positions the patient on the left side with the knees drawn up under the abdomen. Most procedures are performed under a conscious sedation for patient comfort. This is managed usually by an anaesthetist. The level of sedation can vary with the administration and dose of the sedative agent, sometimes dipping into a state of general amnesia. iii. The anus is a tubular structure of 1-3cm in length surrounded by two sphincter muscles which maintain continence of faeces and flatus. The line of the anus points upwards and anteriorly from the posterior perineum towards the umbilicus. iv. The line of the vagina, however, points in the diagonally opposite direction from the midpoint of the perineum upwards and posteriorly towards the lumbar spine. … vii. A digital examination of the rectum is always made prior to the insertion of the colonoscope to check for anal and rectal pathology. One also needs to lubricate the anal canal in order to facilitate the insertion of the instrument. viii. One first performs an anal examination. This is by a gloved lubricated right-handed finger (either the first or middle finger). The finger and wrist are kept straight and the elbow is at about a 90 degree angle. The angle of insertion is from behind and following the forward upward direction of the umbilicus. The shoulders and body of the examiner are therefore well behind the patient. …The examining finger may go in and out a few times to palpate the circumferential area of the internal anal canal by the pulp of the tip of the finger. ix. The digital rectal examination then follows the anal examination. A change of direction of the finger and wrist is necessary as the rectum points posteriorly and follows the curve of the sacrum. This anorectal angle can be quite acute and tight in men but is often opened up after childbirth in women. The rectal exam proceeds with the finger fully inserted to its 8-11 cms length. The rectum is a cylindrical cavity of 10-12 cms in length. The anterior surface and posterior surfaces are examined by sweeping actions performed by rotation of the shoulder and elbow to feel for rectal pathology. This may give the appearance of multiple rotations of the elbow and shoulder. A failure to perform a proper anorectal examination can lead to missed pathology which can have disastrous consequences for a patient. A colonoscope can only see, it cannot feel. Abnormal tissue is diagnosed by its feel. … xiv. An observer from a distance could therefore misinterpret the various alterations and obscurity in anatomy produced by body shape and disease. The optical resolution of a small area of focus is also mathematically affected by the distance of the observer away from the object of focus and the amount of light illuminating the object of focus. The strong operation room overhead lights are not usually used in a rectal examination where one relies on standard room lighting from the corners of the ceiling. An observer from a distance under such inferior lighting for a small shadowy area in the perineum may not resolve well for visual acuity. … xix. If one were to do a digital vaginal examination at the time of a colonoscopy with prior informed consent then this is actually an awkward examination to perform in the left lateral position. The vagina points posteriorly and upward towards the lumbar region (the diagonal opposite of the anus), so one would have to place their shoulders and body far more forward between the patient's thighs to direct the examining finger and wrist in the unnatural posterior direction. To an observer standing to the right of the examiner, the body position and forearm would then obscure the anus and probably most of the perineum. xx. In terms of time, a straight forward digital rectal examination ought to take less than one minute, unless one encountered something unusual that required more focussed attention. Typically, the examination takes probably only about 15-30 seconds. 1. Dr Vickers said that, unlike a colonoscopy, a vaginal examination usually takes place with the patient supine. 2. In his letter of 18 October 2021, Dr Vickers said that, for a rectal examination, the gastroenterologist wears gloves which are liberally coated with a standard lubricant gel. The circumference of the end of the colonoscope must also be lubricated with gel before insertion. Dr Vickers said: 5. If the anal canal were not lubricated by the gloved finger prior to the insertion of the colonoscope then it is in fact very difficult to insert the tip of the colonoscope. The dry tip of plastic sheath of the colonoscope will not slide at all easily through a dry anal canal. 6. In such cases one ought to observe obvious difficulty as the colonoscope would bow and curl at the end because of the dry resistance and the anal sphincter closing pressure. Alternatively, one would have to greatly widen the anal orifice by considerable eversion of the buttocks but even then it still would be difficult to insert the dry tip of the instrument. 1. It was common ground that FHB conducted a regular list at the hospital in question. It was also common ground that FHB generally takes longer than other gastroenterologists at that hospital to perform a colonoscopy. FHB's list is usually, although not always, a half-day list. FHB usually has fewer patients in the regular lists than other gastroenterologists would have in a comparable list. The first alleged incident 1. The only person who witnessed the alleged incident the subject of Complaint One is ENJ, an enrolled nurse. ENJ has been registered as an enrolled nurse since 11 January 2012 and has been working in the Endoscopy unit two days per week since February 2016. 2. The first official report of the allegation was made by ENJ by letter to a manager at the hospital dated 15 February 2019. We will refer to this letter as 'the first account'. The first account was given at least 5 months after the alleged incident. It was the evidence of ENJ, RNL and RNK that ENJ alluded briefly to the alleged incident at a hotel on 21 September 2018, but, of course, there is no written record of that disclosure, and on no account was any information imparted beyond the bare allegation. 3. There is a transcript of an interview of ENJ which was conducted for the hospital at which the incident is alleged to have taken place. The interview is undated, but it probably took place in March 2019. We will refer to this interview as 'the second account'. We note that ENJ had the first account in front of her throughout the interview comprising the second account. 4. ENJ's third account of the allegation was by way of a statement to the Health Care Complaints Commission on 19 September 2019. We will refer to this letter as 'the third account'. The third account was given more than a year after the alleged incident. 5. ENJ's fourth account of the allegations was a statement to the NSW police, dated 21 November 2019. We will refer to this statement as 'the fourth account'. It appears from the fourth account that ENJ had access to her interview for the hospital and her statement to the HCCC when she prepared the fourth account. 6. ENJ's fifth account of the allegations was given in the course of the hearing of this matter. 7. It is convenient to discuss the allegation the subject of Complaint One by examining various aspects of it separately. Critical issues in EN J's accounts The date of the alleged incident 1. In the first account, ENJ said that she was unsure on which shift the alleged incident took place, but that she had 'narrowed it down' to 22 August 2018 or 5 September 2018. She said that, on 22 August 2018, she was not rostered on to FHB's list, but she relieved RNL, as scout nurse, in FHB's list for approximately 30 minutes so that RNL could go to lunch. ENJ said that, on 5 September 2018, she was assigned to FHB's list, which began at 12:30pm, and performed the role of anaesthetic nurse. 2. The second account was ENJ's interview for the hospital. The following exchange occurred in relation to the date of the alleged incident: SL: Okay what I thought we could do is you have got a copy of your document in front of you, we could just walk through what you have said and I am going to pause and ask you some questions along the way. So it opens with saying that on Wednesday the 22nd of August or Friday the 5th of September you witnessed an incident. What is the significance of those two dates in your mind? ENJ: Um unfortunately I am trying to pinpoint exactly what day it was because I don't know if I was … anaesthetic nurse or I was scanning. So it could have been any one of those two dates SL: Okay so are they the only two dates that you've ever worked with FHB? ENJ: Pretty much that year, yeah. SL: Okay. ENJ: Yeah. 'Cause I know, 'cause sort of following on from that, the last date I remembered was when we went to the pub. SL: Mm-hm. ENJ: Um, I, it would have been close to that date because --- · SL: Close to the pub day? ENJ: --- it was fresh on my mind. Yeah. SL: Okay. ENJ: Yep. So when I looked back on the rosters I pinpointed those two dates that it definitely would have been. SL: When did you look back at the rosters with a view to working out the date? How long ago was that? ENJ: Um that was after I told [NUM], my manager. SL: When did you speak to her? Roughly. Sorry. ENJ: That would have been beginning of Feb. 1. On p 6 of the transcript of the second account, ENJ agreed with the interviewer that she had no actual recollection of relieving RNL on 22 August 2018, but believed that she would have relieved RNL for 30 minutes from 12:30pm on that day, based upon usual practice. 2. On p 7 of the second account, ENJ said that she had been the anaesthetic nurse in FHB's list on 22 August 2018. 3. In the third account, ENJ says the following in relation to the date of the alleged incident at paragraphs 18 - 21: 18. In my written complaint at Annexure A, I identified two possible dates for the incident, either 22 August 2018 or 5 September 2018. I have since checked the roster and thought more about it and I think the incident most likely happened on Wednesday 22 August 2018, as this was when I was relieving as Scout Nurse. I think this because, as Scout Nurse, I would have been moving around the foot of the bed between the scope trolley and the scout bench where we do the paperwork. As the Anaesthetic Nurse (which is what I was on 5 September 2018) I generally do not move from my position at the head of the bed as I need to be close to the patient as they under sedation and need to monitor their airway. As Anaesthetic Nurse, which was my role on 5 September, it is very unlikely that I would have left my position at the head of the bed. 19. In my written complaint at Annexure A, I stated that on 22 August 2018 I was relieving [RNL] on his lunch break. Upon reflection I am now not sure whether I was relieving him for his lunch break, or his afternoon tea break. 20. On 22 August 2018 I wasn't assigned to FHB's list, but I worked with [FHB] when I was relieving [RNL] as the Scout Nurse when he was on a break. 21. I can't remember much about what happened before and after the incident I have described in Annexure A I do however remember relieving [RNL] for a break. 1. In the fourth account, ENJ indicated that, after reviewing certain hospital records provided to her by the police, including the clinical records of two named patients, she now believed that the date of the incident was 5 September 2018, for the reasons set out below: 20. I can see in both the clinical records that [I] did not sign them. It is required that everyone involved in a procedure signs the record. The fact that my signature does not appear on these records means the patient could not have been [name of two patients]. Even when I am only relieving, I always ensure my name is on the Endoscopy Room Registered Nurses Report. It is a very strict practice that nurses record our names on this sheet even if we are only relieving for a tea break. 21. The other patients on the surgical list from that day were either male or did not have colonoscopies which means it couldn't have been any of them. 22. I have also been shown the following documents by police in relation to the 5th of September 2018: [list of clinical records for 5 named patients] 23. I was involved in the procedures for all these patients as anaesthetic nurse. In this role I assist the anaesthetist. Generally, I stay near the anaesthetist, which is why I initially thought it was more likely to have been the 22nd of September rather than the 5th of August 2018, because I move around the room less as an anaesthetic nurse than I do as a scout nurse. Furthermore, during colonoscopies the head of the patient is closest to where the anaesthetist and I are positioned. However, this does not mean that I do not move at all when in the role of anaesthetic nurse. It is not uncommon for me to have to fetch towels or other items to assist other staff in the room. 24. From the records, I can see that three patients had both gastroscopy and colonoscopy procedures, being [names of three patients]. The others only had colonoscopies. When these procedures are done back-to-back, the patient must be "switched around" when transitioning from gastroscopy to colonoscopy. This means the bed gets moved 180 degrees. This has to do with where the scopes are connected. As the anaesthetic nurse, I would have been near the patient's head for the gastroscopy, and I would have to move to stay near the head of the patient for the colonoscopy when the switcharound took place. As I said before, I am not restricted to the head of the patient and may move around at other times to assist staff. 25. I think it is more likely that the incident with FHB happened between these double procedures, because I would have had cause to move around due to switching positions. … 27 When I reviewed the notes from FHB's surgical list on the 5th of September, the name [named as possible patient A] and her address jumped out at me. 28. Based on the medical records I have reviewed, I can't positively identify which patient was the one involved in the incident with FHB. As I explained before though, I think it is more likely the case it was either [names the same three patients as in paragraph 24]. 1. In cross examination before us, ENJ gave her evidence on the basis that the alleged incident occurred on 5 September 2018. The identity of the patient 1. The complaint the subject of these proceedings, in Schedule A, lists the names of three patients and says "Patient A is a female and is one of the patients listed in Schedule A to the complaint". 2. In the first account, ENJ did not give any information about the patient involved in the alleged incident, beyond saying that the patient was female and that she did not give consent to a vaginal examination. 3. In the second account, the following exchange took place with respect to the identity of the patient: SL: Thanks. Alright so um either on the 22nd of August or the 5th of September you witnessed an incident involving a female patient. Do you have any recollection of who that patient was? ENJ: I don't. SL: Okay. ENJ: I wish I did. SL: That's okay. Do you remember any features about the patient? ENJ: Um no not particularly. SL: Okay, And do you recall whether, were you doing the whole theatre lists on these two dates do you remember or whether you were relieving or... ENJ: Um it could have been either. So it, I could have been relieving a scout--- SL: Mm. ENJ: --- or I could have been anaesthetic nurse. SL; Okay. ENJ: But I, I do remember like she wasn't a big lady, she was sort of um, she was maybe like medium build. SL: Okay. And do you remember if you, or her, roughly what her age might have been? Was she older or younger? ENJ: I think she might have been maybe, oh, possibly between 40 and 50. SL: Mm. Okay. Good. Just trying to narrow it down. ENJ: Yes I know. SL: Um so okay so you've narrowed it down to these two days based on your review of the rosters. ENJ: Mm. SL: Okay and they're the only two days where you had any involvement in any of FHB's theatre lists? ENJ: There were other times that I have relieved on that list. SL: Yep. ENJ: And I, I do have a list of those if you need them. SL: Okay. ENJ: But, 'cause I had, I went through every possible time that I could have entered the room so I had um, I know most of the time I was, it was on a Wednesday when I was on [name of another doctor]'s list. 1. In the third account, ENJ said the following in relation to the identity of the patient: 15. For endoscopy procedures there are always at least 5 people in the room. There is the doctor, the Assistant/ Procedure Nurse who assists the doctor, the Anaesthetist, the Anaesthetic Nurse who assists the anaesthetist and then the Scout Nurse. … 19. In my written complaint at Annexure A, I stated that on 22 August 2018 I was relieving [RNL] on his lunch break. Upon reflection I am now not sure whether I was relieving him for his lunch break, or his afternoon tea break. 20. On 22 August 2018 I wasn't assigned to FHB's list, but I worked with [FHB] when I was relieving [RNL] as the Scout Nurse when he was on a break. 21. I can't remember much about what happened before and after the incident I have described in Annexure A I do however remember relieving [RNL] for a break. 22. I also recall walking past the foot of the bed, with FHB standing next to the bed of the patient, as seen in my diagram at Annexure B. 23. I remember that the patient was unconscious. Patients are normally sedated for endoscopy procedures, but they are not usually under general anaesthetic. The patient was female. I do not remember her name, but I think she was medium build, maybe slightly overweight and possibly between 45 and 65 years old. 1. In the fourth account, ENJ gave an explanation as to the identity of the patient in paragraphs 24 to 28, which are set out in [31], above. 2. The possible identity of the patient was not addressed in ENJ's oral evidence. ENJ's role and movements during the list 1. As we have said, in the first account, ENJ said that she was either the scout nurse, if the incident occurred on 22 August 2018, or the anaesthetic nurse, if the incident occurred on 5 September 2018. She said that "We were preparing the patient for a colonoscopy" and that she "walked past the foot of the bed" and then saw FHB perform the acts the subject of Complaint One. 2. In the second account, ENJ gave the following account of her role and movements: SL: So you've said the patient was lying on her left side with her knees up to her chest under sedation. Um so on the 22nd of August you were relieving as a scout and on the 5th you were the anaesthetic nurse. So can we just, can we talk about what position you would have been in like physically--- ENJ: Okay. SL: --- standing in the room on those two different dates and what your line of sight would have been like? ENJ: Um so as anaesthetic nurse--­ SL: Mm-hm. ENJ: Thank you. As anaesthetic nurse um I could have been anywhere near the patient. SL: Yep. ENJ: Because um being the anaesthetic nurse you're everywhere, I could have been fixing the blanket up at that end, I could have been walking through with a BP cuff, I could have been doing anything to have walked past the bed with her in that position. SL: Would you be focused on the patient or would you be moving around focusing on what you were doing as opposed to watching the, the field for the procedure. ENJ: Well I sort of ... SL: Mm-hm. ENJ: So um I'm making sure that all of the, that I'm doing all the things in my scope--- SL: Mm-hm. ENJ: --- that I'm supposed to do. Um and that everything's right with the monitoring of the patient. SL: Mm. ENJ: But um I'm also looking for things like if the towel's down, if the patient's asleep before they do an examination Um. SL: Are you likely to be focused on the actual side of the procedure or more on the patient generally? ENJ: I like to be, I like to be focused on both. That's just how I work. SL: Okay. ENJ: I, if I'm, if I'm even in the scout role--- SL: Mm-hm. ENJ: --- I'm still looking at the patient's BP--- SL: Mm. ENJ: --- and sats and everything else so although I would have been either scout or anaesthetics I, I do try and, I'm looking at everything--- SL: Okay. ENJENJ:: --- bas---, I'm a bit of a stickybeak. I look, I try and just look at everything because--- SL: Okay. ENJ: --- um I just feel safer that way. SL: Fair enough, ENJ: Yeah. SL: Okay. So if you were in a scout role on the day that you saw this--- ENJ: Yeah. SL: --- where would you generally be positioned during the procedure? ENJ: I probably would have been um just sort of near the end of the bed. SL: Mm-hm. ENJ: Urn either waiting to put the scope in. SL: Mm-hm. ENJ: Um into the processor. Or just sort of hanging around the um, the trolley getting things organised there. Yep. SL: So you may have been actioning other things with your back turned at times? ENJ: Ah possibly. SL: Okay. Then other times you were focused on the performance of the procedure itself. ENJ: Yep. SL: Okay. Alright. And how far away roughly from FHB and the patient would you have been? ENJ: Um probably about a metre and a half, two metres away. SL: Okay. Alright. So you said you recall seeing the patient lying on her left side with her knees and chest, up to her chest, under sedation and that we were preparing the patient for colonoscopy. Who's we? ENJ: So that would have been the other nurses in the room. SL: But you can't remember who they were? ENJ: So the assist and the um scout or the anaesthetic nurse. Um. SL: Do you remember who was there at the time or you can't remember? ENJ: Um. No I don't recall. SL: That's okay. Um. You walked past the foot of the bed um and you noticed, so when you walked past the foot of the bed do you recall where you were looking? ENJ: Um well I, I don't know, I just seemed to glance over and I saw [FHB], I suppose everything in the procedure room is um very timed so when you see that the um proceduralist is doing the rectal examination you know that okay soon we've got to do this or we've got to do that or we've got to be prepared for, so there's a lot of steps that take place so I suppose I just sort of went oh okay so [FHB]'s up to the rectal exam and then you know that, yeah sorry. 1. Later in the interview forming the second account, after describing the alleged incident, the following exchange took place concerning ENJ's location in the procedure room: SL: Um. How far away from [FHB] were you when you saw this? ENJ: Um I'll say from here to the table. SL: So a metre and--- ENJ: One and a half metres or something. Yeah. SL: Okay. And was there anything obstructing your line of sight or, or... ENJ: No. SL: You could, okay. Um and then you described that [FHB] was nervously looking around to see if anyone noticed. ENJ: Yeah. SL: When you say nervously looking around can you describe what you saw in more detail? ENJ: Um [FHB] was sort of um like, I don't know [FHB] was sort of like darting [FHB's] eyes like that. SL: Mm. ENJ: And because I was sort of not standing behind [FHB] but like [FHB] couldn't have really seen what I was, where I was 'cause it.was sort of, the room's in a bit of a diagonal. SL: Mm-hm. ENJ: So um. SL: So were you kind of slightly behind [FHB]. ENJ: Yeah. Like I wasn't in [FHB's] line of sight. SL: Okay. ENJ: Really. SL: But there was no-one between you and --- ENJ: No SL: --- the field? ENJ: No. No. SL: Okay. ENJ: Um. Yeah. Oh sorry what was the question? SL: Oh just describing what you observed of [FHB]'s mannerisms at the time. ENJ: Yeah [FHB], [FHB] was just um, [FHB] was just sort of looking around to see, I don't know if it was even to see if anyone was looking. But [FHB] was just ... SL: Mm. Okay. ENJ: Yeah. SL: Alright. Um was anyone else close by at the time that you remember? ENJ: Ah no not particularly. SL: And then you say you walked away quickly not believing what you saw um so where did, where did, do you remember where you walked to? ENJ: I would have walked behind the processor in either the situation I would have walked behind um, behind the processor um and either gone to the anaesthetic machine or doing scanning stuff there. 1. In the third account, at paragraph 25, ENJ said that, as she was approaching the foot of the bed, she saw FHB lift the patient's right buttock with the left hand and expose "both the rectum and the vagina". ENJ said that this was "during the changeover from gastroscopy to colonoscopy". ENJ described the entire alleged improper interaction by FHB with the patient and said, at paragraph 30: I was still in the process of walking round the end of the bed. I walked away quickly, I put my head down. I was in shock. I couldn't believe what I had just seen. But I remember thinking, I saw the rectum. So if I saw the rectum, [FHB]'s fingers were definitely in the vagina. 1. The account ENJ gave of her role and movements in the third account is set out above at [36]. 2. ENJ, in her evidence at the hearing, said that she was walking past the end of the bed when she made her observations. In cross-examination, ENJ was asked where she was when she made her observations, and her response was as follows, with reference to the diagram attached to this decision (transcript p 32, line 30): A: If we're looking at where the procedure nurse is and if we take a few steps back from that, so in line with the procedure nurse but a few steps back from the nurses trolley like I was walking back to the scout position. 1. ENJ said that she did not recall whether she stopped walking to make her observations, or whether she continued walking. She said that she could not recall what she was doing at the time or whether she had anything in her hands. What ENJ says that she saw 1. In the first account, ENJ said that she: … noticed that FHB lifted the right buttock cheek of the patient for what I thought [FHB] was about to perform a rectal exam, however, instead of inserting … fingers into the rectum [FHB] inserted two (2) fingers into the patient's vagina. The two (2) fingers involved were [FHB]'s pointer finger and [FHB]'s middle finger, [FHB] proceeded to move [FHB]'s hand and fingers in and out of the vagina for approximately 10-15 seconds. I do not recall [FHB] using any lubricant at the time. Whilst doing this, [FHB] was nervously looking around to see if anyone had noticed. I walked away quickly not believing what I saw and wanted to believe that my eyes were playing tricks on me. I continued to perform my role … 1. In the second account, ENJ said the following: ENJ: Um so [FHB] had … gloves on and then, and then lifted the, the right buttock so [FHB], so [FHB] always sort of I don't know takes a good look and yeah. SL: [FHB] does, or ... ENJ: I suppose--- SL: Or proceduralist generally. ENJ: Um. SL: Or you're not really sure. That's okay if you don't know. ENJ: I, I don't know, [FHB] just seems to take an extra longer look. SL: Okay. ENJ: Yeah. SL: Okay. Um and you then saw [FHB] insert [FHB]'s fingers, [FHB]'s two fingers into the patient's vagina and that was the pointer, the middle finger. ENJ: Yep. SL: Um, um are you certain it was the vagina? ENJ: Hundred and ten percent. Because when I looked at it I thought that's too far forward to be the rectum and then I sort of thought oh well everyone's anatomy's different so um I could have been wrong or again my eyes could have been playing tricks on me or something 'cause I didn't want to believe that that's what actually happened and um I, I sort of looked at it again and realised that it wasn't --- that wasn't a rectal examination. SL: Okay. Do you remember whether you saw any distinguishing anatomy that made you know for sure that --- ENJ: Because I saw the rectum. SL: Okay. Alright. Ah and then you say that [FHB] proceeded to move [FHB]'s hand and fingers in and out for approximately 10 to 15 seconds. ENJ: Mm-hm. 1. In the third account, ENJ said, at paragraph 25 to 32: 25. FHB was standing in the position indicated on my diagram (Annexure 8 of this statement). I remember it was during the changeover from gastroscopy to colonscopy [sic]. As I walked past (as per the blue dotted line on my diagram), I saw FHB lift up the patient's right buttock. [FHB] lifted it with [the] left hand. [FHB] had blue gloves on both hands. When FHB lifted the patient's right buttock, it clearly exposed both the rectum and the vagina. [FHB] did that as I was approaching the foot of the bed. l saw [FHB] put 2 fingers of [the] right hand in to the patient's vagina. It was definitely the pointer finger and the middle finger. I initially thought [FHB] was doing a rectal examination, which is common practice before a colonoscopy. 26. I saw [FHB] penetrating the patient's vagina with 2 fingers. I know this, as I clearly saw the rectum while FHB was doing this. For a rectal exam the doctor normally uses only one finger, their pointer. A doctor also uses a well lubricated finger. Normally they use quite a lot of lubricant, so you can see it all over the gloves. When they insert their finger into the rectum you can see the lubricated residue on the glove. I definitely do not recall seeing any lubricant residue on FHB's glove on this occasion. 27. Normally for a rectal examination, a doctor uses the pointer finger only and they feel around the inside wall of the rectum, using a semi-circular motion for about 5-10 seconds. The pointer finger is inserted into the rectum up to the base of the finger and it remains inside the rectum for the duration of the examination. What I observed was FHB moving [FHB]'s fingers in and out of the patient's vagina, and twisting [the] forearm at the same time. Unlike in a normal rectal examination, where the finger remains inside the rectum, I clearly saw FHB removing and re­ inserting [the] finger repeatedly. I could tell this as I could see the end of [FHB]'s gloved fingertips. It went for longer than 5-10 seconds. It also looked like rougher movements than with a rectal examination. 28. While [FHB] was doing this, [FHB] was bent over. [FHB] was also moving [FHB]'s head from side to side, looking around. [FHB] looked nervous, [FHB]'s eyes were darting around the room and [FHB] seemed to be ducking [FHB]'s head. This behaviour struck me as unusual. I don't believe FHB noticed me watching …. 29. After that, [FHB] removed [the] fingers from the vagina and inserted [FHB]'s pointer finger into the rectum. 30. I was still in the process of walking round the end of the bed. I walked away quickly. I put my head down. I was in shock. I couldn't believe what I had just seen. But I remember thinking, I saw the rectum. So if I saw the rectum, [FHB]'s fingers were definitely in the vagina. 31. The Assist nurse was not in position at this time (as shown in my diagram). She may have been cleaning the scope. Everyone else was in the position shown in my diagram. I know that the Anaesthetist was [name of doctor], but I don't recall the name of any of the nurses. 32. I'm not sure if I remained in the room until the end of the procedure. It is possible that [RNL] returned from his break before the procedure was over, in which case I would have left the room before the procedure ended. 1. In the fourth account, ENJ did not give a further account of what she saw FHB do. 2. In cross-examination before us (the fifth account), ENJ was alerted to the fact that her account in her statement to the HCCC was the first and only time that she had alleged that FHB removed the fingers from the patient's vagina and immediately inserted the 'pointer finger' in the patient's rectum. She was asked to explain that and said "It could have been memory recall" (transcript p 48 line 40). 3. In cross examination, ENJ said that she saw FHB take the fingers partially out of the patient's vagina three or four times. She was certain that the fingers did not come all the way out (transcript p 49, line14). 4. Dr Vickers, in his statement, said that the pattern of movement described by ENJ was typical of an anal or rectal examination, but not of a vaginal examination. 5. Dr Vickers said that, if ENJ's version of events is accepted, it would be 'manifestly wrong' of a doctor to perform a vaginal examination for no medical reason and without consent. If a vaginal examination occurred by accident, it should have been reported to the operating theatre sister by FHB and an incident report would have been completed. Had FHB not reported the incident, then ENJ should have done so. In either case, full disclosure should have been made to the patient. 6. Dr Vickers commented, in his statement, that "an observer to the right of the examiner would not normally see the anus during a vaginal exam as this area would be covered and obscured by the palm and wrist of the examiner". The Conversation at the hotel on 21 September 2018 1. In the first account, ENJ said that she went to a hotel 'for something to eat' after her shift on 21 September 2018. RNL, RNK and two other colleagues were present. ENJ said that she said to the group: You guys are going to think that this is really disgusting and I can't believe I saw this, but whilst doing a [FHB] list I'm sure I saw [FHB] insert .. fingers into the vagina instead of the rectum. 1. ENJ said that she asked those present "to just keep an eye out for it and if one of them saw anything unusual to let me know so we could report it". 2. Both RNL and RNK remember ENJ asking them, at the hotel on 21 September 2018, to observe FHB for misconduct. The second alleged incident 1. Evidence relating to the second alleged incident was given by RNK, RNL and RNM. 2. RNK, a registered nurse, gave an account of the second alleged incident by email to the hospital on 1 March 2019. RNK took part in a recorded interview, on 15 March 2019, the transcript of which is in evidence. RNK made a statement to the HCCC on 1 October 2019 and gave evidence at the hearing before us. She has been a registered nurse in Australia since 2015. 3. RNL, a registered nurse, gave an account of what he saw in the procedure room on 23 January 2019 in an email to the hospital on 28 February 2019. He took part in a recorded interview on 15 March 2019, the transcript of which is in evidence. RNL made a statement to the HCCC on 26 September 2019 and gave evidence at the hearing before us. He also made a statement to the police on 5 December 2019. RNL gave evidence at the hearing. He has been a registered nurse since January 2017. 4. RNM gave a statement to the police dated 26 May 2020 and took part in a recorded interview, the transcript of which is undated, which was in evidence. RNM has been a registered nurse since 2013. Critical issues in the witnesses' accounts The date of the alleged incident 1. The witnesses all say that the alleged incident occurred on 23 January 2019. FHB had an all-day list with about 10 patients. 2. In his transcribed interview of 15 March 2019, RNL had the following exchange with the interviewer: SL: … So with the date, um, 23 January, how can you be certain that that was the date? RNL: Because that's [day] when [FHB] does the list. SL: Okay. RNL: And I think we just, because we'd decided to take action on that day. SL: On the 23rd? RNL : Like with all, like I spoke to [RNK], [ENJ] was still away. When she arrived we actually looked at the list and we saw what date it was. SL: When did you look at the list? RNL: I think when [ENJ] came back. SL: Okay, alright. And you narrowed it down to that date. RNL: FHB only does the [day of the week], …. SL: Okay, okay. RNL: So [FHB]'s lists are not really every day. SL: Okay. RNL: Like other doctors. SL: So of all the [day of the week] that had transpired between the 23rd of January and you speaking to [ENJ]--- RNL: 'Cause I came back anyway from overseas on the 17th of January. SL: Okay. RNL: And I did FHB's list the first week. The identity of the patient 1. The complaint identifies, by name, the patient who is alleged to have been the subject of the conduct alleged in Complaint Two. 2. In her email dated 1 March 2019, RNK wrote "I could not exactly remember who the patient was but I believe it was a female patient who was due to have Gastroscopy and Colonoscopy". 3. In her statement of 1 October 2019, RNK said (at paragraph 17): I do not know the name of the female patient, however I remember she was young, probably early to mid-thirties. I am not sure about the colour of her hair. She was taller than me, but probably average height for an Australian, with light skin. She was average build. I know this patient had both a gastroscopy and colonoscopy procedure performed by FHB. I can't recall any details about the patients who had their procedures before and after her. 1. In her statement of 1 October 2019, RNK said that the patient was the fourth or fifth patient on the list. 2. In his interview, RNL said that the patient was in her late twenties or thirties and was not overweight. 3. In his statement to the police of 5 December 2019, RNL said that he recalled that the patient was the second to last one before his team was relieved by the afternoon team at 12:30pm. He said that he had now had access to the clinical records and surgical lists until '1 November 2019 and 5 December 2019' and had therefore been able to identify the second to last patient of his shift. He named Patient B. 4. In her statement of 26 May 2020 to the police, RNM said that she was present at two further procedures after the patient the subject of the allegations. This contradicts RNL's account and, if true, would mean that Patient B is not the patient the subject of the allegations. The role and movements of the witnesses during the list 1. RNK was the procedure nurse for the list of 23 January 2019. RNL was the scout nurse and RNM was the anaesthetic nurse. 2. In her email of 1 March 2019, RNK said that she took the endoscope to the cleaning room after the gastroscopy and returned to the bedside to see that FHB had put gloves on. 3. In evidence before us, RNK said that she did not know where RNL was standing at the time of the alleged incident (transcript p 58). 4. RNL, in his interview, said that he was behind the patient and one and a half to two metres away. What the witnesses report seeing 1. RNK said, in her email of 1 March 2019, that, having returned from the cleaning room, she turned to the assist trolley to replace a specimen jar and turned back to see FHB 'doing a vaginal examination to the patient' with [FHB]'s index and middle finger twisting to the left and right. RNK said that FHB removed [FHB]'s fingers from the patient, smiled, and then, 'after a minute or so', FHB reinserted the fingers 'and did the same thing'. RNK said that FHB then 'struggled' to put the colonoscope into the patient's rectum. 2. RNK said, in her email of 1 March 2019: I couldn't concentrate on the procedure itself because I was processing the whole thing in my brain. A conversation with my fellow colleagues suddenly came back to me, which was on the 21st September when we were in the pub after work and [ENJ] told us to watch FHB because she saw [FHB] do a vaginal examination to patients. 1. RNK's account of the alleged incident in her interview was broadly consistent with her email. She elaborated that when FHB 'struggled' to put the colonoscope into the patient that RNK thought it took two tries to get it in. 2. In her interview, RNK said that the conversation with ENJ actually came back to her when she spoke to RNL. 3. RNK's account in her statement to the HCCC on 1 October 2019 was as follows: 22. I recall that upon my return to the room, I went straight to my assist trolley and replaced the specimen jars, as per my usual procedure. When I turned to my right I saw FHB doing an examination of the patient, as described on Page 1 Paragraph 4 of my complaint (Annexure A). FHB was bending over the bed at this time, slightly side-on, which is normal for these procedures. [FHB]'s right shoulder was bent down towards the patient. 23. At this time, I saw FHB's two fingers (middle and index) inside the patient's vagina. I can't be certain which hand [FHB] was using. I think it might have been [the] right hand because [the] right shoulder was bent towards the patient, however I cannot be sure of this. I don't think [anaesthetist or [RNM] would have been able to see what FHB was doing at this time due to where they were standing. 24. I recall FHB was wearing gloves during the vaginal examination, but I don't know if [FHB] was using lubricant. 25. I know it was the patient's vagina because I could see FHB's fingers inside the patient, at a position anterior to the patient's rectum. When FHB was doing the twisting motion with [the] fingers, I could also see inside the patient's vagina and it was pink in colour. I am not sure how long FHB's fingers were inside the patient's vagina, but it would have been under 30 seconds. 26. It is unusual for a doctor to do a rectal examination with two fingers. Usually they only use one finger, their index finger. When a doctor does a rectal examination, you cannot see the internal mucosa because the rectum hugs the doctor's finger. 27. I remember that when FHB pulled [the] fingers out of the patient's vagina, [FHB] looked up and turned [FHB]'s head from side to side, with a little bit of a smile …. I recall [FHB]'s mouth turned upwards slightly on one side. 28. I was relieved then, as I thought [FHB] was smiling because [FHB] had realised [there had been] a mistake. However as described in my complaint, after about a minute FHB then went back and did the same thing again. 29. What I mean by this is that I saw FHB do the exact same thing as before, but this time I actually saw [FHB] insert … fingers into the patient's vagina. I saw the patient's vagina and saw FHB insert [the] middle and index finger into it. FHB then did the same twisting motion repeatedly from right to left with [the] fingers. This time it went for about 30 seconds. The other staff were still in the same positions as before. 30. There was nothing obstructing my vision and I could clearly see what FHB was doing both times. 31. I do not recall at any point that FHB ever moved [the] fingers in and out of the patient's vagina when [FHB] was doing the twisting. I also don't recall where [FHB]'s other hand was positioned at the time. 32. I didn't say anything when I saw FHB do the vaginal examinations, but I think it would have been obvious from my face that I was shocked. I couldn't concentrate much after that. 33. After FHB removed [the] fingers from the patient's vagina the second time, [FHB] then proceeded with the colonoscopy. I can't remember if the colonoscope was on the bed or on top of the endoscopy machine. I remember FHB was holding the colonoscope with [the] right hand, and that [FHB] lifted the patient's right bum cheek with [the] left hand and inserted the scope. I can't remember if the colonoscope was lubricated. 34. In my complaint (Annexure A) I stated "I watched [FHB] as [FHB] put the colonoscope to the patient's rectum and [FHB] was struggling to put the scope, which I came to conclude, if [FHB] actually did the rectal examination [FHB] wouldn't be struggling to put the endoscope since with rectal examinations, Doctors use lubricant to do so". What I meant by this was that FHB struggled to insert the colonoscope into the patient's rectum. This is unusual when a doctor has performed a rectal examination, as the lubricant on their finger usually makes it easier to insert the colonoscope. 35. I did not see FHB perform a rectal examination on the patient at any time during the procedure. 1. In cross-examination at the hearing, RNK's attention was drawn to her uncertainty, when she wrote the statement of 1 October 2019, as to which hand FHB used in relation to the alleged misconduct. RNK said that she was now sure that FHB used the right hand. When she was questioned as to why she was uncertain at the time of her statement, she said "The small details I cannot recall certain" (transcript p 65 line 1). Later, in cross-examination, she said "Well, what I do know it was an incident that happened two years ago and what I do remember clearly in my mind is that the fingers of FHB is in the patient, I'm not sure which hand that [FHB] used, whether it's right or left". 2. Also in cross-examination, RNK estimated that FHB had two fingers in the patient for 30 seconds, removed them for between 10 and 15 seconds, and put them back into the patient again. She was reminded that she had previously said, in her interview, (which referenced her original complaint) that it was a minute before [FHB] put them back into the patient. She did not explain the discrepancy. 3. In his email to the hospital on 28 February 2019, RNL gave the following account if the procedure on 23 January 2019: On January 23, 2019 I was on FHB's list as the scout, [RNK] was the Assistant and [RNM] was the Anaesthetic nurse. [Name of doctor] was the Anaesthetist. FHB was also in the room as the Proceduralist. [RNK] and myself were concerned and looked out for whether the doctor was going to do a vaginal or rectal exam and [FHB] did a vaginal exam. [FHB] noticed us looking … and started to panic which was visible by [RNK], [RNM] and myself. Then [RNK] asked me if [FHB] just went into the vagina and if I saw what she saw and had the same concern. I have a feeling FHB may have heard what we said because [FHB] started to get visibly nervous and panic and for the next patient [FHB] was very very nervous and looking around and then did a proper rectal exam. 1. In his transcribed interview on 15 March 2019, RNL said that he was one and a half to two metres away from the patient when he saw the alleged misconduct. He said that he was "literally just behind the patient" and he said "I could see it clearly". RNL said that FHB put fingers in the patient's vagina and twisted them around for about 30 seconds. Then [FHB] took the fingers out and put them in again and twisted again. He said "it was, like, really quick, not really long between". 2. In his statement to the HCCC, RNL said that the whole incident took 30 seconds in total. He said that it could have been one or two fingers that FHB used, but no more than two. He said that he thought that FHB was wearing gloves on both hands, and he thought he saw lubricant on FHB's gloves. He said that he could clearly see the patient's anus, and that FHB's fingers were between the patient's legs. He said, at paragraph 25: 25. Nothing else untoward happened after I observed FHB with … fingers in the patient's vagina. FHB just performed the colonoscopy on the patient. 1. In cross-examination at the hearing, RNL agreed that when he first saw what FHB was doing, he was not sure what he was seeing (transcript p 81 line 10). The following exchange took place: Q. You're saying to the Tribunal, aren't you, that when you first saw what you saw you weren't sure of what you were seeing? A. I wrote in my statement that what I saw I was in disbelief and I didn't see exactly that the fingers were in the vagina but they were closer to the vagina than the anus. Q. Is it fair, [RNL], that you made an assumption that the fingers were in the vagina rather than actually seeing them in the vagina? A. I stated that in my statement that I, I assume, well not assume, I believe that they were closer to the vagina, closer to the thighs than the anus. Q. Yes but doesn't that mean that rather than see the fingers in the vagina you assume that's where they were? A. That's correct. 1. Later in the cross-examination, the following exchange took place (transcript p 91 line 25 to p 92 line 45) Q. So you looked across at FHB, tell the Tribunal exactly what you first saw? A. I saw FHB inserting … fingers closer to the vagina and the rectum and [FHB] lifted that patient's buttock which is normal procedure unless you actually put your finger in the vagina not the rectum. So, so I saw [FHB] putting … one or two fingers in a twisting motion and [FHB] retracted and [then] put it again. Q. But you didn't see where the fingers were going? A. It was closer to the vagina. Q. I understand that but you didn't see where the fingers ended up did you? A. No. Q. And the reason you assume that the fingers were going to the vagina is because that's what you were looking for weren't you? A. No because it was unusual - unusually closer to the vagina. Q. You were looking for fingers in the vagina because [ENJ] at the hotel had told you to look out for something like that, that's correct isn't it? A. Correct. Q. In your interview with Ms Lark, you say that you were one and a half metres away that you were behind the patient and could see really clearly, is that right? A. Yes. Q. In your statement to the Commission, you say you were standing two metres away from FHB, with no obstruction you say, is that right? A. I said one to two - two to three metres in one of the statements - it's not the exact - I didn't measure it to get that exact same measurement. Q. Yes I understand that but I'm just putting to you that my reading of the document says you say, "one and half to two metres" in the interview and then you say "two metres" in the statement, do you accept that? A. If it's said in the sentence yes. Q. In your statement to the Commissioner you say: "FHB then used … fingers on [FHB]'s right hand to insert them into what I believe was the patient's vagina in quick twisting back and forth motion." Do you remember saying that in your statement? A. Correct. Q. "Then FHB withdrew [the] fingers from the patient's vagina and then reinserted them into the patient's vagina and then moved them twisting back and forth motion." Do you remember saying that? A. Yes. Q. Now that's actually accurate is it [RNL] because in those comments you say quite specifically that [FHB] reinserted them into the patient's vagina and then moved them twisting back and forth motion. You didn't actually see that did you, the fingers going in the vagina? A. I did say what I believed was the vagina. Q. You didn't actually see the fingers being reinserted in the vagina did you? A. No it was closer to the vagina then the rectum. Q. And you say this reinsertion all up just took around 30 seconds, when you say that do you mean both occasions put together for 30 seconds or just the reinsertion took 30 seconds? A. The whole thing. Q. The whole thing. So [FHB] put … fingers towards the vagina for a period of time, then they came back and you could see them again and then they went back where you couldn't see them, is that correct? A. Correct. 1. In his statement to the HCCC, RNL said: 25. Nothing else untoward happened after I observed FHB with … fingers in the patient's vagina. FHB just performed the colonoscope on the patient. 1. RNM said, in her statement to the police, that, as the anaesthetic nurse, in place at the left hand side of the proceduralist, she has a view of a female patient's anus but not the vagina. RNM did not notice anything amiss and was unaware of any concerns about FHB's actions until Nurse K spoke to her after one of the procedures in the morning of 23 January 2019. 2. In his statement, Dr Vickers said that the pattern of movement described by RNK is typical for a rectal examination. 3. Dr Vickers noted that FHB said, in FHB's statement, that Patient B [referred to in Dr Vickers' report as Patient C] had Crohn's disease. Dr Vickers said: One would perform a careful examination of the anus in such a patient as Crohn's disease can affect the anus with strictures, fistulae and irregular fissures. Crohn's disease can spread into the vagina, labia and vulva. 1. As with the first incident, Dr Vickers said that if the account of RNK is accepted, then it would be manifestly wrong for the doctor to have performed a vaginal examination without a good medical reason and without the patient's consent. The same reporting ought to have occurred as in the first incident. 2. In his letter of 18 October 2021, Dr Vickers indicated that, if the anal canal were not lubricated by a gloved finger prior to the insertion of the colonoscope, it would be difficult to insert the dry tip of the instrument. The difficulty would be obvious to observers and the doctor would have had to lubricate the anal canal. What the witnesses did after the alleged incident 1. In her email of 1 March 2019, RNK said that "just after the case" she asked RNL if he remembered what ENJ had told them and he responded to her that "he saw what I saw". RNK said that she and RNL then went to RNM "and told her what we saw". RNK said that she asked RNM to watch FHB during the next procedure. 2. In cross-examination at the hearing, RNK said that she could not recall where her conversation with RNL, after the procedure, took place (transcript p 58). 3. RNK said, in her interview on 15 March 2019, that, in her conversation with RNL after the procedure she used the expression "it was a different hole". RNK thought RNL said "I saw that too". She said that RNL then reminded her of ENJ's words at the hotel and "that's when it came to me that, oh yeah, she told us before". RNK said that she and RNL then approached RNM and that RNK told RNM "I saw [FHB] put [a] finger in a different hole" and asked RNM to look at what [FHB] does in the next colonoscopy. RNK said that RNL was telling her to calm down in this conversation. 4. In her statement of 1 October 2018, RNK said that she and RNL spoke about the alleged incident again after they were relieved at 12:30pm. She said that RNL suggested that they speak to ENJ. She was on holidays at the time, so they spoke to her on her return in February 2019, and they agreed that ENJ would tell the Nurse Unit Manager what they had seen. 5. In cross-examination at the hearing, RNK said that, in her conversation with RNL after the procedure, she had simply asked him "Did you see what I saw" and RNL had said "Yes". 6. In cross-examination at the hearing, RNK said that the conversation she had with RNM after the procedure was only between her and RNM. 7. In his transcribed interview, RNL said that RNK approached him 'straight away' in the procedure room and asked him "Did you see that?" He said that FHB was sitting at the proceduralists desk behind RNK when RNK spoke to RNL, and RNL said that he thought FHB may have heard RNK. 8. In his transcribed interview, RNL said that, after the list, he discussed the procedure with RNK and RNM in the discharge lounge tea area outside the procedure room. The following exchange was transcribed from the interview: RNL: Yeah, after the list. SL: Okay. And do you remember what was said and by who? RNL: Not really. But it was like everyone was really shocked. SL: Okay. RNL: We were just learning how we were going to say it or when we should say something about it. Should it go to [NUM] straightaway. Should we tell anyone about it? SL: [NUM], who's that? RNL: [NUM] is our manager. SL: Okay. And, um, do you remember what you all decided to do? What---? RNL: [ENJ] just said we should just, like I, I said to [ENJ], we should do something and she, like everyone agreed that we should do something and [ENJ] told me that she was going to speak to [NUM]. SL: So this says that, so you said in here that you were talking to [RNK] and [RNM] after the list, not [ENJ]. When---? RNL: So [RNK] was inside the room I think. And [ENJ], oh no, [ENJ] wasn't there … SL: [?] RNL: It was, uh, sorry, sorry. SL: That's okay. RNL: We were talking to [RNM] and [ENJ] wasn't there that day but when [ENJ] came back we actually went to that tearoom and we spoke about it. SL: So when, after the list ended and you and [RNK] and [RNM] were talking, did you agree as a group what you were going to do? RNL: Not really. SL: Okay. RNL: We waited for [ENJ] because she was the one who [?]--- SL: Did you agree that you would talk to [ENJ] about it? RNL: Yeah. 1. In his statement to the HCCC, RNL again said that he had a conversation with RNK after the procedure, but in the procedure room, and that he was concerned that FHB had heard what RNK said to him, which was "Did you see that?". In cross-examination, RNL said that he was certain that the conversation took place in the procedure room. 2. RNL also said, in that statement, that before the next patient, he and RNK spoke again and RNM joined them. He said that, as a result of this conversation, he and RNM changed roles so that RNM could observe FHB for the next procedure, which he thought was a colonoscopy, RNL was the anaesthetic nurse and RNM was the scout nurse. 3. In his statement, RNL said that, soon after 23 January 2021, he told ENJ what had occurred. He said that they later had a further conversation in which it was agreed that ENJ would report the incident. 4. RNM said, in her statement to the Police, that RNK and RNL spoke to her after one of the procedures on 23 January 2021 and indicated that RNK, and possibly RNL, had seen FHB put fingers into the patient's vagina. RNM said that the next patient was being brought in as they spoke, so she ended the conversation. After that next patient, RNM asked if RNK had seen anything (meaning anything untoward), and RNK said that she had not. It was at that point, RNM said, that she switched roles with RNL so that she became the scout nurse and he became the anaesthetic nurse. RNM said that the procedure which followed was conducted as normal. In other words, RNM recalled two further patients after the patient the subject of the allegations. 5. In her statement to the police, RNM said that she spoke to ENJ after 23 January 2019, probably on 24 or 25 January 2019. RNM repeated this evidence under cross-examination before us, saying that ENJ approached her in front of a procedure room a day or two after RNM's shift with FHB. ENJ's evidence, however, is that she was on leave during that period of time and returned on 5 February 2019. This was put to RNM, and she agreed that the conversation had probably taken place on or shortly after 5 February 2019. FHB's evidence. 1. FHB, in a statement tendered in evidence, said that a vaginal examination is not part of usual practice before or during a colonoscopy. FHB is well aware of the need to obtain the patient's consent prior to performing such an examination. 2. FHB said that it was usual practice, when a patient had vaginal pathology that required examination or further evaluation, to refer that patient to a gynaecologist, either directly or via their general practitioner. 3. FHB said, in the statement: 60 An examination of the vagina while the patient is in the left lateral position would be difficult and I would imagine it would require assistance with the positioning of the patient by a nurse. The examiner's shoulders and body would also have to be leaning in a far more forward position than when performing a rectal examination, due to the posterior angulation of the vagina, as described by Dr Christopher Vickers in his Expert Report at part 5.1(2)(xix) (Tab 22 of the HCCC's documents). This is not consistent with the descriptions given by the nursing staff. 1. FHB accepted that the performance of a vaginal examination in the circumstances alleged would represent a significant breach of boundaries. FHB reported being sensitive to maintaining the dignity of patients, whether sedated or awake. 2. FHB gave evidence of an awareness of a reputation for being slower than other gastroenterologists. FHB's self-assessment is of an invariable practice of being careful, and 'somewhat of a perfectionist'. 3. In the statement, FHB said: 70 I deny the Allegations and I also deny that I had any kind of sexual motive for engaging in the conduct alleged. I work in a brightly lit endoscopy theatre, with liquid fecal matter present, being gowned and double gloved, with at least four other staff watching. 71. I have been with [name], my partner, for approximately five years now. We are both involved in a church…... We have a close group of mutual friends with whom we socialise. [Name] is aware of these proceedings and this has been a stressful time for both of us. We are looking forward to being able to put these Allegations behind us and move on with our lives. 1. In cross-examination at the hearing, FHB agreed that, when preparing to perform a colonoscopy, the invariable practice would be to put lubricant around the end of the colonoscope, but not on the tip, because that would obscure the camera. 2. FHB indicated, in cross-examination, that the invariable practice had been to use one finger in performing a rectal examination. FHB said that it is the practice to use the index finger of the right hand, and, as the examination is performed, the other fingers are curled over in a fist. 3. In cross-examination, FHB described the process of changing over from a gastroscopy to a colonoscopy (see transcript p 130). FHB agreed that it was important to have the procedure nurse in position to assist in order to perform a colonoscopy. FHB said that the scout nurse was there to assist the procedure nurse and the anaesthetic nurse so that they could remain in position (see transcript p 131). 4. FHB told the hospital and the Medical Council that the invariable practice had been to use one finger when performing a rectal examination or a vaginal examination. In evidence at the hearing before us, FHB said that FHB had revised the procedure for a vaginal examination in preparation for the hearing and conceded that FHB's practice would have, in the past, been to perform a vaginal examination on adult women with two fingers, with the patient in the lithotomy position. In its submissions, the HCCC argued that this was an attempt to discredit the evidence of the nurses. We reject this submission. The allegations made against FHB do not amount to an allegation that a proper medical examination of the vagina of Patient A or Patient B was performed by FHB. FHB has been practising as a gastroenterologist for many years and has had no occasion to perform a medically indicated vaginal examination. We accept that FHB was simply mistaken as to the standard procedure for a vaginal examination. Consideration of factual disputes 1. As we have said, it is for the HCCC to prove its case on the balance of probabilities. The first alleged incident 1. There are significant difficulties with the evidence in relation to the first alleged incident. The account of the sole witness has changed several times in relation to a series of issues. 2. The process by which the date of the first alleged incident was arrived at is set out above at [26]–[31]. In her first three accounts of the incident, ENJ believed that the incident could have occurred on 22 August 2018, when she was the scout nurse, or 5 September 2018, when she was the anaesthetic nurse, but she was more inclined to think that 22 August 2018 was the date. In her fourth account, working back from reviewing hospital records provided to her by the police, she came to believe that the incident occurred on 5 September 2018. She held to that belief in evidence before us. 3. Throughout the investigation, ENJ has had no independent recollection as to which of the two dates the alleged incident occurred on. In the first account, she says that she has 'narrowed it down' to the two dates. 4. ENJ has no independent recollection of the identity of the patient the subject of the first alleged incident. The three patients named in the proceedings are named because of the process ENJ undertook in interpreting the records provided to her by the police. 5. ENJ's account of her own movements in the procedure room during the first alleged incident are more consistent with her being the scout nurse than the anaesthetic nurse and, in the third account, she says that the date of the incident was more likely to be 22 August 2018 for that reason. In the third account she says that, as the anaesthetic nurse "I generally do not move from my position at the head of the bed as I need to be close to the patient as they are under sedation and [I] need to monitor their airway". As set out above, this contradicted what ENJ had said in her interview (see [40]). 6. For the first time, in her statement to the police (the fourth account), ENJ theorised that she may have been moving from one end of the bed to the other on account of the 'switcharound' when the patient is rotated 180 degrees after the gastroscopy for the purposes of the colonoscopy when she made her observations. 7. ENJ's initial statement that the anaesthetic nurse generally does not move from their position is consistent with FHB's evidence. 8. Given that the patient would have been sedated at the time that the digital examination began, we consider that it is unlikely, although not impossible, that the anaesthetic nurse would have been walking around the foot of the bed at that time. 9. ENJ's statements are inconsistent with respect to her position in the room throughout the alleged incident. 10. Ms Watson's diagram shows that the distance between the swinging double doors and the far end of the procedure nurse's trolley in a procedure room is 5.7 meters. It seems to us that it would be unlikely that a person walking in the line and in the direction in which ENJ said she was walking would be able to see precisely where the fingers on FHB's right hand were. ENJ's accounts did not allow for the obstruction to her view posed by FHB's shoulder, arm and hand. 11. ENJ, in her statement to the HCCC, which is the third account, said that the procedure nurse was not in place when she made her observation. We consider it unlikely that the procedure would begin without either the procedure nurse or the anaesthetic nurse in place. FHB, in cross-examination, said that the procedure probably would not start without at least two nurses in the room, one of them being the procedure (or 'scrub') nurse, who would be in position at FHB's right hand side. 12. For the first time, in her fifth account, ENJ said that FHB put the finger in the patient's rectum after putting it in the vagina. She had previously said that FHB did not have lubricant on the finger. ENJ did not report, at any stage, that FHB had any difficulty inserting the colonoscope into the patient's rectum. Dr Vickers' evidence was that this would have been observably difficult, without lubrication, and would have required that an anal examination take place, with lubrication, or that the patient be repositioned to widen the anal orifice. 13. Besides FHB, the patient and ENJ, there would have been three other people in the procedure room for most of the time during the procedure the subject of the first alleged complaint. Given Dr Vickers' evidence about the different positioning of the proceduralist's body if digital penetration of the vagina is to take place in the left lateral position, it is unlikely that, if vaginal penetration took place, someone else in the procedure room would not have noticed the variation in the usual procedure. This is a workplace in which the same procedure is repeated many times per day. 14. The HCCC has not proven the occurrence of the first alleged incident on the balance of probabilities. 15. We comment that, given the degree of shock ENJ related herself as having experienced during and directly after the alleged incident, it is curious that she has no recollection of the identity of any of the other nurses in the room. Her behaviour in omitting to raise the issue on the day, whether in the procedure room, in the paperwork or with the Nurse Unit Manager, or at all in any formal way until February 2019, is also curious. It would generally be expected, where conduct of the kind alleged occurs in a hospital, that any nurse who observed the incident would report it immediately in the interest of protecting future patients. We acknowledge that ENJ said that she did not report it immediately because she did not think that she would be believed. 16. In our view, if any of ENJ's accounts were to be believed, it is more likely that she observed FHB perform an anal/rectal examination than a vaginal examination and was simply mistaken about seeing the anus and about how many fingers were used. This is consistent with Dr Vickers' observation that the movement of FHB's hand reported by ENJ is consistent with an anal/rectal examination. The second alleged incident 1. The identity of the patient the subject of the second alleged incident is in doubt, because RNL said that she was the second to last patient in the morning list, and RNM said that there were two further patients in that list after RNK told her of her observations of FHB's alleged misconduct. 2. In RNK's account in her statement to the HCCC, she is unable to say whether FHB used the fingers of the left or right hand to penetrate the patient's vagina. In context, this is inconsistent with RNK reporting her memory of something she actually witnessed. In cross-examination before us, RNK expressed certainty that FHB was using the right hand, but then said, again, that she was not sure which hand FHB used. 3. RNK consistently said that FHB did not do a digital examination of the anus/rectum. She said, in her interview, that FHB was 'struggling' to put the colonoscope in, and that [there were] 'two tries before it went in'. 4. Dr Vickers said, in his letter of 18 October 2021: 5. If the anal canal were not lubricated by the gloved finger prior to insertion of the colonoscope then it is in fact very difficult to insert the tip of the colonoscope. The dry tip of plastic sheath of the colonoscope will not slide at all easily through a dry anal canal. 6. In such cases one ought to observe obvious difficulty as the colonoscope would bow and curl at the end because of the dry resistance and the anal sphincter closing pressure. Alternatively, one would have to greatly widen the anal orifice by considerable eversion of the buttocks, but even then it still would be difficult to insert the dry tip of the instrument. 7. If FHB had performed a vaginal examination instead of a rectal examination then FHB ought to have encountered obvious difficulty in the insertion of the colonoscope. This then would have required a physical second movement of lubricating the anal canal, which ought to have been visible as an anomaly to a trained observer. 1. As we have said, we accept Dr Vickers evidence. We reject RNK's evidence. Had there been no anal/rectal digital examination, with lubrication, FHB would not have been able to insert the colonoscope, even with 'two tries', without first either lubricating the anus or repositioning the patient to widen the anal orifice. 2. FHB said that the patient named as the patient in the second alleged incident had Crohn's disease. This evidence was not challenged, and is consistent with the patient records provided at Tab 49 in the HCCC's documents (exhibit A1). This makes it even less likely that RNK's evidence is true. FHB is unlikely to have run the risk of serious injury to a patient with Crohn's disease from an attempt to insert a colonoscope into the patient's dry anus. There is no evidence of injury to the patient. 3. RNL's evidence was inconsistent throughout his accounts. In cross-examination at the hearing, his evidence was that he did not, in fact, see FHB's fingers in the patient's vagina, but simply thought that they were too far forward to be in the anus. He did not report the difference in posture that FHB would have exhibited had the fingers been in the patient's vagina, according to the evidence of Dr Vickers. 4. RNL did not report observing any difficulty in the insertion of the colonoscope. In fact, in his statement to the HCCC he said that nothing further untoward happened after FHB placed fingers in the patient's vagina. 5. The HCCC has not proven the occurrence of the second alleged incident on the balance of probabilities. 6. In relation to both incidents, the purported eye witnesses each gave a series of accounts of FHB's facial expressions and head and eye movements, to which they attributed various meanings. We have not accepted any of this evidence. It is not possible to divine with any certainty a person's true mood, intention or thoughts from their facial expression or their head or eye movements. 7. In a similar way to the first alleged incident, we comment that the usual course, had the registered nurses seen what they have claimed they saw, would have been for them to report the conduct within a very short time from its occurrence to protect future patients. 8. In its submissions, the HCCC said that there was no suggestion of collusion or fabrication, and no motive or reason for the purported eye witnesses had been put forward. There is no need for any of those matters to be established. The burden of proof is upon the HCCC. Summary and Conclusion 1. The HCCC has not proven the occurrence of either the first alleged incident or the second alleged incident, so that no unsatisfactory professional conduct has been proven against FHB. 2. It follows that the second complaint in the proceedings, which alleged professional misconduct, also fails. 3. We make the following orders: 1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the patients set out in the schedule of the complaint and the names of the patients mentioned in any of the evidence before the Tribunal, to any person or entity, is prohibited. 2. The Application for disciplinary findings and orders is refused. ********** Judge Cole Application for Non-publication orders 1. Subsequent to the decision set out above being made, and provided to the parties, in unredacted form, I heard the parties with respect to an application made on behalf of FHB for non-publication orders. 2. It was argued, in support of the application, that, although generally the Tribunal has an obligation to conduct proceedings in a way that is transparent, special or out of the ordinary circumstances exist in this matter which justify the making of non-publication orders (Merrilyn Walton v Alexander Sergevich Momot & Anor (NSW Court of appeal 17 April 1997), quoted in Health Care Complaints Commission v Vo [2014] NSWCATOD 127 at [181]). 3. The special circumstances which were said to outweigh the principles of open justice in relation to the identity of the respondent are: * FHB has consistently denied the allegations, * The Tribunal has found that the allegations have not been proven on the balance of probabilities. In those circumstances, there is no public interest in identifying the respondent or the witnesses in the proceedings. * The publication of information identifying the respondent has the potential to lead to devastating harm. Steps taken in the proceedings prior to the hearing before the Tribunal have already had a serious adverse effect upon the respondent's ability to practise medicine, and have had an adverse emotional and financial impact as well. * It is feared that any publication of the matter will focus on the salacious nature of the allegations and the finding that they are unproven may not be prominent in the reporting or may not be understood. It was argued that members of the public are unlikely to seek out and read the entire decision. 1. The HCCC consented to the making of non-publication orders to protect FHB's identity. Consideration 1. I accept that all of the special circumstances set out in [150], above, are present in this matter. 2. The evidence adduced in the HCCC's case fell substantially below the standard of proof on the balance of probabilities, on account of the many significant inconsistencies in that evidence. 3. When that evidence is considered against the background of the conversation at the hotel on 21 September 2018, the behaviour of ENJ, RNK and RNL in failing to report what they said that they saw in a timely manner, and the expert evidence, favourable to FHB, tendered in the HCCC's own case, the evidence is even less persuasive. 4. The applicant's case was very weak, and there is a real prospect of serious and undeserved harm to the practice, reputation and well-being of FHB, in the event that non-publication orders are not made. In these circumstances, I will make orders similar to the orders sought and consented to on behalf of the HCCC. 5. There will be the following additional orders: (3) Pursuant to Schedule 5D clause 7 of the Health Practitioner Regulation National Law (NSW) the publication of the following information is prohibited: (a) the name of the respondent, including any information or other material that identifies the respondent or is likely to lead to the identification of the respondent, (b) the names of the nurses called as witnesses, including any information or other material that identifies the nurses or is likely to lead to the identification of the nurses. (4) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the disclosure of the following information is prohibited: (a) the name of the respondent, (b) the names of the nurses called as witnesses. (5) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 the publication of the transcript of proceedings and of any evidence given before the Tribunal at the hearing of these proceedings, whether orally or by document, is prohibited, except for evidence reproduced in the written decision of the Tribunal published on Caselaw. (6) These orders do not apply to the disclosure of the Tribunal's decision (a) by the applicant to the Australian Health Practitioner Regulation Agency, the Medical Council of NSW and Ramsay Healthcare Australia Pty Ltd; and (b) by the respondent to the Australian Health Practitioner Regulation Agency, the Medical Council of NSW, any employer or potential employer of the respondent or any educational organisation which seeks to engage the respondent's services. **************** 2021 00087709 - HCCC v FHB procedure room diagram _Redacted (463660, pdf) 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 15 February 2022 - restrictions update per non publication order 16 February 2022 - Typographical error amended. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 February 2022