Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Chahoud [2022] NSWCATOD 36 Hearing dates: 21, 22, 23 February 2022 Date of orders: 31 March 2022 Decision date: 31 March 2022 Jurisdiction: Occupational Division Before: M Le Poer Trench ADCJ, Principal Member; Dr S Cowap, Senior Member; Dr C Newberry, Senior Member; D Telford, General Member Decision: (1) Pursuant to s 149C(1)(b) of the National Law the practitioner's registration as a medical practitioner is cancelled. (2) Pursuant to s 149C(7) the practitioner may not apply for a review of the cancellation order for a period of 18 months from the date of the decision. (3) The Respondent is to pay the Health Care Complaints Commission Complaints Commissions' costs of and incidental to these proceedings. (4) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the name of Patient A referred to in these proceedings is prohibited. Catchwords: HEALTH – finding professional misconduct – s 139E of the national law – finding of unsatisfactory professional conduct – fabrication of evidence for s 150 hearing before medical council – admission of professional misconduct. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 [83], Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 Health Care Complaints Commission v Selim [2021] NSWCATOD 27 Prakash v Health Care Complaints Commission [2006] NSWCA 153 [101] Texts Cited: N/A Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Hazem Chahoud (Respondent) Representation: Counsel: Ms Petrie (Applicant) S Young (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Abbas Jacobs Lawyers (Respondent) File Number(s): 2021/00037004 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the name of Patient A referred to in these proceedings is prohibited. JUDGMENT Background 1. The Health Care Complaints Commission (HCCC) is the Applicant for an order under the Health Practitioner Regulation National Law (NSW) (The National Law) that Hazem Chahoud (The Respondent) be found guilty of professional misconduct pursuant to s 139E of the National Law and/or unsatisfactory professional conduct pursuant to s 139B(1)(a) and/or (l) of the National Law. Should the HCCC be successful in establishing its case it seeks the cancellation of the registration of the Respondent as a medical practitioner with a restraint against his ability to apply for re-registration for a period of three years. 2. As these reasons will show this is in many respects a tragic case illustrating the desperate actions of a medical practitioner following his recognition that he had crossed necessary boundaries which must exist between doctor and patient to protect the health and safety of both that patient and the public at large. 3. Shortly before the hearing before us the HCCC amended its complaint document. That document was dated 29 October 2021 and filed on 12 November 2021. The Respondent filed an Amended Reply dated 18 January 2022 shortly before the hearing. In that document the Respondent admitted many of the Particulars supporting the first three complaints and also admitted a breach of s 139B(1)(a) of the National Law (unsatisfactory professional conduct) for complaints 1 and 2. He admitted particulars 1 and 2 of complaint three and that the letters sent as identified in Particular three, were sent by his former solicitor. He did not review or approve the contents of the letters before they were sent. He does not admit a breach of s 139B(1)(l) of the National Law as set out in Complaint Three, namely unsatisfactory professional conduct being engaging in improper or unethical conduct. 4. The Respondent admits he is guilty of professional misconduct as set out in Complaint Four, however, his admission is confined to s 139E(ii) of the National Law, namely that he 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. 5. In opening its case the HCCC informed the Tribunal that it would seek a cancellation of the Respondents' registration and an exclusion period of three years during which the Respondent will be prohibited from re-applying for registration as a medical practitioner. 6. Further in the opening of the case the HCCC sought leave to amend Complaint Three in the Amended Complaint document (now part of Exhibit A1) so as to show the section of the National Law under which that complaint is made was s 139B(1)(l) of the National Law. That amendment was not opposed and leave was granted by the Tribunal as sought. 7. When the Respondent opened his case he requested that the Tribunal address its findings and conclusions to encompass both Stage 1 and Stage 2 matters. That is, make findings in relation to whether the HCCC has established its case as set out in the Amended Complaint and then, consider what protective orders, if any, need to be imposed upon the registration of the Respondent as a medical practitioner. The Respondent submitted that the Tribunal would make protective orders which enabled the Respondent to continue to practice medicine subject to conditions rather than suspend or cancel his registration. 8. On day two of the hearing the Respondent's counsel placed the following on the record to help clear up any uncertainty about what the Respondent intended to convey with his Reply to Particular 3 of Complaint Three. The following was stated: "The Respondent admits Complaint Three and the Particulars thereto but says he did not review the letters sent, as referred to in Particular 3." 9. Further, in opening his case the Respondent informed the Tribunal that each of the Complaints (4 in all) are admitted. The 4th Complaint is admitted because of the accumulation of the admissions to the first three Complaints. It is accepted that because of the admissions the power to consider suspension or cancellation of the Respondent's registration is enlivened. Particulars 2, 5 and 10 of Complaint One are admitted. Documents Tendered by the Parties HCCC Documents: Exhibit A1: The contents of the folder filed by the HCCC with the exception of Tab 38 & 38A which were not relied upon. This includes the Amended Complaint document. Exhibit A2: Copy letter dated 12 October 2018 from Dr Chahoud's Wife. Respondents Documents: Exhibit R1: Respondent's Amended Reply dated 18 January 2022. Exhibit R2: Respondent's Statement dated 24 September 2021. Exhibit R3: Letter from Medical Council to the Respondent dated 22 February 2022. Exhibit R4: Report Dr Michael Atherton dated 10 June 2021. Exhibit R6: Letter dated 30 September 2021 from AHPRA to the Respondent. Exhibit R7: 11 pages of CPD certificates. 21 November 2018 to 17 November 2021. The Evidence of Patient A 1. Patient A signed two statements which have been read in the evidence of the HCCC. The first is dated 7 March 2019 and signed by her on 25 October 2019. The second is dated November 2021 and signed on 5 November 2021. 2. Patient A's first statement is found at Tab 9 in Exhibit A1. In that Statement Patient A said the following which we have noted in particular: 1. When Patient A was in year 12 at High School, she had four consultations with the Respondent commencing in June 2018. 2. During the first three consultations Patient A told the Respondent she had concerns about hair loss; and eating disorder; a thyroid issue and on one occasion, an earache. 3. On each occasion she saw the Respondent she was seen by him in the same consultation room. She recalled the room did not have a window. (We note her oral evidence is that it did). 4. During consultations the Respondent told Patient A: 1. You look Arabic. 2. My wife would probably like you. 1. The Respondent told Patient A he had a wife and children. 2. The Respondent wrote and gave Patient A a note with his home address and phone number and told Patient A: "If you need anything or have any questions for me, contact me." 3. On her first visit she was referred for blood tests. On the second visit she was referred by the Respondent for an ultrasound of her thyroid. The Respondent told Patient A she was vitamin deficient. He told Patient A to obtain some Vitamin B1 and Vitamin D. The Respondent also referred Patient A to an "ear doctor" and a Nutritionist. The Respondent also completed a mental health care plan for Patient A (she believed this called a K10). 4. On the third consultation the Respondent told Patient A he wanted to show her to his wife. The Respondent then took a video of Patient A on his mobile phone. The videoing lasted for about three minutes. The Respondent also took a photo of Patient A and told her it was for his "contact list". 5. Patient A stated that she was "coerced" to be weighed on the Respondents scales. This happened in two of her consultations with the Respondent. On the second occasion she was weighed by the Respondent Patient A said "he grabbed my hand and told me to get on the scale." 6. On the fourth occasion Patient A attended upon the Respondent in consultation, she asked that he sign some papers which she had obtained from her school, so that she might obtain some extra points for educational access or ATAR points. She was to undertake examinations commencing on 18 October 2018. In the week of her fourth attendance upon the Respondent Patient A's grandfather had died and it was a week and a half or two weeks after her 18th birthday. She had been 17 years of age at the time of the first three attendances upon the Respondent. 7. In the fourth visit the Respondent told Patient A she had gained weight. He told her she was "so big". Patient A told the Respondent she was trying to "get back on track but she was binge eating." 8. Patient A said "I think he (the Respondent) might have given me a hug after I told him that my grandfather died. He tried to kiss me and had his hand on the side of my back on the right side below the bra strap." 9. Patient A said the Respondent tried to hug her twice. On the first occasion she felt "squeamish and tense". 10. Patient A said "He also touched me on my right-hand side. He lent in for a kiss. He did it and stood there for a minute I kind of went into shock and pushed him away." Patient A then handed the Respondent the paperwork for him to do (paperwork from her school). The Respondent said to her "Oh, that's why you came to see me, just to get your paperwork done." 11. When Patient A was leaving the consultation she said the Respondent "tried to hug and kiss me again." She said: "His hands were on my shoulders and I turned away at the same time. My hands were down around my side. When he tried to kiss me I turned my head and he kissed me on the cheek. He did it very fast and as he did it I was turning. … He asked if I still felt uncomfortable. I just told him that I was going and then left." 1. After Patient A left the Respondent's office she received a text message from the Respondent. 2. Following the receipt of text messages from the Respondent (detailed hereafter), she did not have any other contact with the Respondent. She said: "He had previously told me he lived at Minto." 3. On the day of the last consultation Patient A spoke to a person at Headspace. A record of the note taken by the Headspace operator is included in Exhibit A1 and detailed hereafter. 4. Patient A contacted Police on the following day or Monday. She spoke to a Police officer however she did not make a formal complaint. 5. Patient A spoke to her teacher and headmaster about what had happened to her with the Respondent. She did not tell her parents. Her mother may have been in hospital at that time. 6. Having obtained paperwork from the Respondent which may have given her an advantage for university admission Patient A did not in fact lodge the forms with the relevant body. In relation to that paperwork Patient A said it was completed in handwriting by the Respondent not on a computer. She said she may have asked the Respondent to "make his submission stronger." 1. The text messages, which the Respondent now admits he sent to Patient A are set out at Tab 10 of Exhibit A1. The messages commence on Saturday at 2:43pm and conclude on Monday at 4:54pm. We here set out those messages. We note the text from the Respondent on Monday at 4:30pm stating "working til 8 pm" was commenced and concluded with "love heart" emojis. Respondent: [Patient A]. Patient A: Who is this? Respondent: (Arabic response meaning unknown to the Tribunal) Patient A: English please. Respondent: Still in surgery [Patient A]. Hazem. Patient A: Why did you try and kiss me today? Respondent: Really? Patient A: Yeah Respondent: working til 8 pm. Patient A: Please stop I told you I felt uncomfortable. Respondent: Sorry. 1. Patient A provided a further statement dated 5 November 2021. In that statement we note the following in particular: 1. Patient A referred to paragraph 19 of her statement of 25 October 2019. That paragraph described the events which Patient A said had occurred as she left the consultation with the Respondent. She described the actions of the Respondent which we have set out in paragraph 11(o) above. Patient A provided the following further evidence: 1. Patient A said that before the incident described in paragraph 11(o) above, the Respondent had "kissed me once during the consultation." 1. In relation to the content of paragraph 11(o) above, Patient A said "With paragraph (19) I do not now recall (the Respondent) kissing me on that occasion, but he did at least attempt to kiss me. I do not now recall whether, in an attempt to be polite, I dodged his kiss and kissed him on the cheek or that he actually kissed me. I do recall the consultation room door was closed for the consultation and I had to open it after the incident to leave. The consultation took 20-30 minutes." 1. Tab 4 of Exhibit A1 is a transcript of a communication "chat" online between Patient A and an operative at "eHeadspace" named Celia. We note the following from that transcript. 1. The transcript commenced at 17:51 hours and continued until 19:34 the same day. The evidence at Tab 3 of Exhibit A1 states the communication between Patient A and Headspace operative Celia Dunsmore took place on 22 September 2018. 2. The communication commenced with Patient A stating: "well i went to the doctor today and he tried to kiss me multiple times, he tried touching me, hugging me and now hes texting me. i feel very uncomfortable. what do i do?" 3. Patient A wrote: "it was hard because i have an eating disorder and the nature of the disorder makes me very self conscious and anxious he kinda took advantage of that." In response to a recommendation that she contact police and AHPRA Patient A wrote: "well i dont know im 18 and ive never had to do anything like this before… i dont want to ruin his career and his marriage." 4. Patient A was asked: "are you able to give me a bit more information about how he behaved towards you today…?" Patient A wrote: "well ill try but i have a pretty bad memory." 5. Patient A set out a detailed script of what she said had happened to her on the day of her consultation, the same day she was corresponding with the Headspace operator. She wrote: "[He] told me i had gained weight - too much as he described which was really annoying because im trying my hardest to recover from bulimia. anyway he told me to get on the scale and i told him i didnt want to he then proceeded to grab my arm and coerce me to go on the scale and i ended up doing it - this was the second time he has coerced me to step on the scale. anyway basically throughout the appointment he kept trying to hug me, i was pretty sure he was trying to smell me as well. he then kissed me. i was in shock and i let him do it for a second because i didnt know what to do. he then began to feel up my shirt with his hand by which i responded by pushing him away. we then sat… he told me to sit next to him. he then started to touch my thigh with his hand and then grabbed my hand. and i told him to stop … i said … i feel uncomfortable. as i tried to leave he grabbed me and tried to kiss me on the lips and i dodged it and pecked him on the cheek and he asked me if i still felt uncomfortable and i hesitated i said i would leave. …. he then texted me …" 1. At Tab 5 of Exhibit A1 a copy of "A new notification received" document produced by AHPRA is set out. The document details information provided by Patient A by online contact dated 22 September 2018. On that document Patient A recorder "Incident details" as follows: "what happened? doctor has tried to make sexual advances upon me during an appointment. he had attempted to kiss, hug and touch me multiple times. Started contacting (texting) me after appointment who was involved? Dr Hazem Chahoud and I … [happened] around 12:40pm to 1:30pm, Saturday 22nd September 2018… im concerned for other women now…" 1. Patient A gave oral evidence in the hearing before us. She affirmed that the two statements made by her on 25 October 2019 and 5 November 2021 were true and correct. 2. Patient A was asked about paragraph 31 of the Respondent's statement where he said Patient A had told him she knew he was a Muslim and lived at Minto. Patient A said she could not remember that. She was asked: "How did you come to see Dr Chahoud?" She said: "It was close to where I lived. I think I just decided to give it a go. It was just close." Patient A was asked if she made a request to see a particular doctor. She replied: "I just went to see any doctor." 3. Patient A was cross-examined by counsel representing the Respondent. In cross-examination Patient A was asked what she meant by the word "coerced" when she described the Respondent attempting to have her "go on the scales". Patient A said: "He pulled me towards the scale. I said I do not want to. He said: "Come on come on". I did not want to." Patient A was asked: "Is it fair to say "coerced you" using words rather than physically?" Patient A responded with: "Both really. He didn't yank me, he did try to pull me." 4. In relation to Patient A's conversation with the Headspace counsellor detailed at Tab 4 of Exhibit A1, she was asked: "What did you mean to describe by the words "I don't think I kissed him back"? Patient A said: "I didn't quite kiss him back I didn't pull away immediately. I was in shock. I think it was at the start of the consultation." 5. Patient A said that she could not remember if there were any other persons waiting as she left the consultation room. 6. There was no re-examination. 7. Having set out the evidence of Patient A above, which gives context to the Complaint we are now considering, we now turn to consider the formal Complaint document relied upon by the HCCC and the Reply to same of the Respondent. As will be seen, the vast majority of the Complaint is admitted by the Respondent. Part of the issue which appeared to be in contention was removed by the submission of the Respondent given orally at the conclusion of the hearing. We will refer to that later in these reasons. The Complaint Document relied upon by the HCCC 1. The Amended Complaint document dated 29 October 2021 and filed 12 November 2021, we here incorporated as filed and relied upon by the HCCC. We have left the alterations which have been abandoned in the document to show where the amendments occurred (Schedule A). The strikethroughs mark where text has been abandoned and the underlining marks where text has been added (Schedule A). The Reply Document relied upon by the Respondent 1. The Reply to the Amended Complaint was dated 18 January 2022 and signed by the Respondent's solicitor (Schedule B). The strikethroughs mark where text has been abandoned and the underlining marks where text has been added (Schedule B). Issues Identified by the Amended Reply 1. The following issues of fact can be identified: 1. In relation to Complaint One: 1. Did the Respondent provide Patient A with his home address? 2. Did the Respondent hug Patient A on more than one occasion during her consultation with him on 22 September 2018? 3. Did the Respondent place his hand and move his hand on the right side of Patient A's back, below her bra strap during the consultation on 22 September 2018? 4. Did the Respondent rub Patient A's knee and move his hand up her thigh during the consultation on 22 September 2018? 5. Did the Respondent inappropriately grab Patient A's arm and use physical force to get Patient A to use weighing scales on 22 September 2018? 6. Did the Respondent place his hands on Patient A's shoulders and attempt to kiss Patient A on 22 September 2018 at the end of the consultation? 1. In relation to complaint Three, the Respondent admitted Particular 3 to the Complaint Three however he added, "but states that he did not review or approve the content of the letters before they were sent". There was a submission made by the Respondent's counsel which described what was meant in relation to the balance of the admission. Counsel for the Respondent informed the Tribunal that the Respondent has admitted each of the Particulars to Complaint Three. Exhibit A2 1. This is a document which was dated 12 October 2018 and signed by the Respondents wife. The content of this letter, at least in part, is now said by the Respondent to have been fabricated by his wife at his request or direction. 2. The letter sets out all the information the Respondent is said to have given his wife about Patient A. That is, in itself an extraordinary thing for the Respondent to do, however, that is not the subject of the Complaint before us. 3. The letter sets out detail that the Respondent's wife was the creator/maker of the text messages, otherwise attributed to the Respondent, in the text messages which are attached to Patient A's statement at Tab 10 of Exhibit A1. Those parts of the letter are acknowledged to be a fabrication designed to help the Respondent escape any action which the Medical Council might take in response to Patient A's complaint. 4. What is also outstanding to us is the lack of any mention in the letter of familiarity of the Respondent's wife with Patient A or the friend who the Respondent said had referred Patient A to see the Respondent as a patient. This alleged familiarity of association between the Respondents wife and a close friend of Patient A was the subject of evidence given by the Respondent at the s 150 hearing. The evidence on the subject of the association through social connections of a close friend of the Respondent's wife and Patient A was clearly difficult for the members of the Medical Council sitting in the s 150 hearing, to follow and to obtain a clear understanding of what the Respondent was saying. That uncertainty was finally put to rest by question from Dr Fogarty at page 27 of the Transcript as follows: "Member Fogarty: So - so your wife knew well the friend of [Patient A]? Dr Chahoud: Yeah. yeah, yeah, yeah. Member Fogarty: Is that correct? She knew her well and the friend of [Patient A] was Arabic--[?] Dr Chahoud: Yes. Member Fogarty: -- of Arabic origin? Dr Chahoud: Yes, yes, yes, Arabic." 1. That connection which the Respondent was representing to the Medical Council was not referred to in any portion of the letter which is now Exhibit A2. The uncertainty for us is whether that representation of association through social connections well known to the Respondent's wife was a fabrication to support the statement by the Respondent in this proceeding that Patient A told him she was referred by a school friend who knew the Respondent. That evidence of the Respondent is contrary to the evidence given by Patient A that she had not sought out the Respondent by name when she attended at the Medical Practice where she had consultations with him. The Transcript of s 150 Hearing 1. The evidence of the Respondent as to the occurrences of 22 September 2018 during his consultation and interaction with Patient A before and after the consultation on that day, commence at the foot of page 29 of the Transcript. The evidence of the Respondent we particularly note from that portion of the Transcript of the s 150 hearing is as follows: 1. Dr Chahoud stated that Patient A brought the letter about the HSC for him to sign. She had brought the letter a couple of times. 2. Dr Chahoud stated that Patient A was laughing when she gave him the letter, telling him to "read it, please. Write this… [to sign] about her condition." 3. Dr Chahoud: "Like this is really when like I found out that it's all maybe she's coming because of that." 4. Dr Chahoud: "She start reading like telling me what to write, telling me what to write on the - her form. I told her, "Look, you came only like four times, four, five times." She say - I swear what happened actually like she told me, "Just write whatever actually, no one will look at that," and symptoms she start telling me, "Write anxiety, write that." She - she was telling me what to do actually. Anyway, I told her, I remember, I told her, "Look, really if it is just like you know lying it will not work." She say, "Uh-huh, it will work, it will work. Just you did your job. Just get it."" 5. Chairperson Reid: "None of this - Dr Chahoud, none of this is apparent in the medical records. That would be a very unusual consultation, I suspect." 6. The allegations made by Patient A were put to the Respondent at the bottom of page 33 of the Transcript. "Doctor tried to kiss me multiple times. He tried touching me, hugging me, and now he is texting me." 1. The Chairperson was asked to direct the Respondent to the passage she was reading in the complaint made by Patient A to the Headspace councillor, by the Respondents solicitor who was present with him at the hearing. The Respondents evidence was that he had not read the allegation. He had his practice manager tell him what it said. He said he knew she was alleging "I think kissing, trying to kiss or kissing and coming close to the patient" and "touching." He was asked for his response to those allegations. The Respondent said "Definitely it's not, nothing like that happened actually." 2. The Respondent continued his answer saying: "Nothing like that. It is the opposite actually…. I didn't respond to her actually, like you know, I was aware not like if she's laughing and I laugh like her I can be a friend or something but I don't want actually. I have a family, I have kids. I don't feel that I can – like how can I like ruin – ruin myself actually in the surgery or something?" 3. After he filled in the form for her the Respondent said: "So I - I stand up and I told her, "All right, I've filled the form for you and fill everything." [She said] "I appreciate, thank you" and came and kissed me" … Yeah, kissed me and she kept following me. I opened the door. Really I scared, I scared, like you know, like what's happening, what's going on because suddenly from nothing to kiss me, why she kissed me." 1. When pressed again by Chairperson Reid, at transcript page 42, as to his response to the allegations made by Patient A to the Headspace councillor, the Respondent denied all of her allegations in relation to hugging, attempted kissing, attempted touching and texting. 2. The Respondent was asked: "Why do you think she would make up these allegations about you?" The Respondent replied in a convoluted and difficult to comprehend manner. We conclude however that a reasonable assessment of what he was attempting to say was that he did not have an answer to the question. He was pressed further on why she may have seen him on a number of consults without making a complaint and then on the very same day as the consultation on 22 September 2018 she complained to Headspace and to AHPRA and also to the Police. The Respondent was unable to provide any motive that might have caused that if what she alleged was all untrue. 3. At page 44 of the Transcript the Text messages which were sent from and received on his phone with Patient A, on 22 September 2018, were read to him and he was asked if he sent the Text messages. The Respondent said: "No. No." 4. When pressed about why his phone was at home on that day the Respondent said he cannot use his phone at work and "it's always at home actually, yeah." 5. The questioning of the Respondent about the sending of the Text messages to Patient A became more pointed. He was asked why Patient A's detail would be in his phone (bearing in mind his earlier evidence that his phone is always at home when he is working). The Respondent then produced his phone to the Medical Council to show he has many patient details in his phone. The Respondent also said that he had given his phone number to Patient A to provide to the HSC authorities in case they needed to know more information. He said the HSC actually called him on his phone number. He thought he had put her phone number in his phone on her second visit. 6. The Respondent was pressed again at page 47 of the Transcript about his evidence he leaves his phone at home. "Member Fogarty: So is your evidence to us that you don't normally take your phone to work? Is that correct? Dr Chahoud: No, not at all the time actually like sometimes even we have five phones at home actually, I take another phone and for example I haven't actually." 1. On page 47 of the Transcript, Chairperson Reid pointed out that his evidence had been that he puts patients' details in his phone so they can contact him and he can contact them. (We note the clear inference in the question was how that might happen if the phone was left at home.) 2. The Respondent gave evidence that he had put Patient A's details in his phone on her 2nd consultation. He was pressed about that statement by Member Fogarty, who put: "So on that occasion at least you did have the phone at the surgery." The Respondent replied: "I am not really sure because that's what I told you, I wrote it in a paper actually this is your phone." Member Fogarty: "Well, I've just asked you, I think fairly clearly, did you put into your phone at the time and I think you said yes." Dr Chahoud: "Maybe, I can't remember really because sometimes … I don't have the phone. I write it in a paper. When I go home I write the paper." 3. Dr Chahoud was pressed about what diagnosis he had included in the certificate that Patient A had sought for the HSC authorities. He said he had put bulimia. He was not sure if Patient A had honestly reported her symptoms at that time and later after 22 September 2018 he thought that she did not have bulimia and that all her symptoms had been fabricated to have him provide her with the certificate. 4. In his evidence at Transcript page 51 he said he thought the HSC authorities might ring him to ask further detail of Patient A's diagnosis and symptoms. He said: "I thought they will do something actually, they will call and it happened before, I have many calls actually regarding HSC." 1. We have set out some extracts from the transcript of the s 150 hearing. The questioning of the Respondent by the Medical Council members continues for many pages and the fabrication of his evidence about his wife send Patient A text messages continued and was elaborated upon. At one point the Respondent told the Medical Council members: "Well, my phone actually, I don't really like to use the phone, I don't know how to use the phone even actually, like so I just answer so I leave it like the phone." The Evidence of the Respondent Documentary Evidence 1. The Respondent provided his evidence in writing and orally. In his written evidence the Respondent set out in Exhibit R2 his responses to the Complaint made against him by the HCCC. He also set out detail which is relevant to the Protective Orders which the Tribunal may consider imposing. We will refer to those later matters further in these reasons. 2. We have particularly noted the following from the Respondent's written evidence at Exhibit R2. The Statement was made on 24 September 2021. (We note the date of the Amended Reply at 18 January 2022.) 1. The Respondent first consulted Patient A on Saturday 30 June 2018. He remembered seeing Patient A sitting on the edge of one of the chairs outside his consulting room. He noted "she looked unusually excited to be there. She was ready to stand up as if she knew me." 2. Patient A was not talkative and gave the Respondent short answers. The Respondent said he "felt uncomfortable around her because she continuously stared and smiled." 3. The Respondent set out some detail of preliminary non-medical conversation he had with Patient A in the first consultation. He then set out other information he obtained from Patient A about her personal circumstances. He was told she lived at home with her mother who was then in hospital. She cared for her mother. Her brother was estranged from the family. 4. The Respondent was told Patient A was 17 years of age. He thought she was mature enough to seek medical treatment on her own. 5. The Respondent set out that Patient A told her she knew he was a Muslim and lived in Minto. She had been recommended by a school friend. The school friend (also a Muslim) described the Respondent as caring and polite. During the consultation Patient A continued to stare at the Respondent and smile at him. 6. Patient A told the Respondent she had been binge eating and vomiting. She believed she was overweight. She asked the Respondent if he thought she was overweight. She told him she believed she had bulimia. She said she had anxiety. She thought her mother had notice that "a bit". 7. The Respondent said he asked Patient A to weigh herself on his scales. She agreed and weighed herself. 8. The Respondent referred Patient A for blood tests and a hearing test. He told Patient A he would consider referring her to a dietician and a psychologist after reviewing her blood test results. He gave her a medical Certificate for two days so that she could undertake the tests he had ordered. 9. The Respondent denied he at any time provided Patient A with his home address. He did not remember he had entered her details in his phone however, he conceded, "it was normal" for him to enter patient details into his phone if he expected to follow up with a patient in the next few days. Consultation on Tuesday 3 July 2018. 1. Patient A attended again on the Respondent. She continued to stare and smile at the Respondent. She had not undertaken the blood tests. She became argumentative and asked the Respondent to "do the blood test for her." He explained a pathology collector was available to undertake that. Patient A told him she was afraid because the blood test would hurt. 2. The Respondent discussed possible treatment options. He provided Patient A with a referral letter to see a dietician. He considered referring her to a psychologist however, he wanted to see the results of the blood tests first. Consultation Wed 4 July 2018. 1. At this consultation the Respondent was able to see Patient A's blood tests. He advised Patient A to increase her sun exposure and eat foods with high vitamins. He prescribed vitamin B12 and Vitamin D supplements. 2. The Respondent requested an ultrasound scan for Patient A's thyroid. He took Patient A's blood pressure and provided her with a further Medical Certificate. 3. The Respondent noted again that Patient A stared and smiled at him for no apparent reason. He said she stood behind him and looked over his shoulder as he was typing her notes. 4. The Respondent denied he on any occasion recorded a video or images of Patient A. Consultation Saturday 7 July 2018. 1. The Respondent noted he had difficulty "getting Patient A to answer questions". He said: "I practically had to force words out of her mouth". He told her she was still binge eating and vomiting. 2. Patient A had stared at the Respondent during the consultation. 3. He completed the Kessler 10 mental health assessment for Patient A and prepared a mental health plan for her, including a referral to a psychologist. Consultation Saturday 22 September 2018. 1. The Respondent said this consultation occurred after he returned from his pilgrimage to Mecca. 2. The Respondent said Patient A sat in a chair in his consultation room. It was the same chair she had sat in for earlier consultations. It was under the window. The Respondent sat at his desk. 3. Patient A "stared a lot". He asked her non-medical questions in order to "break the tension as he felt uncomfortable." Patient A told him her grandfather had recently passed away. 4. When Patient A said her grandfather had died "I hugged her". 5. Patient A told the Respondent she had been seeing both the psychologist and the dietician. He said: "I was unsure if she was being truthful". 6. The Respondent asked Patient A to weigh herself, which she did. The Respondent told her she had "gained some weight". He noted she was unhappy about that information. The Respondent gave Patient A some medical advice. 7. Patient A placed some paperwork on the Respondent's desk. She said the documents were for university to get extra marks. 8. The Respondent said: "I was not sure if Patient A was accurately describing her symptoms and felt confused about why she had requested me as her doctor and continued to consult me". 9. While filling in the form the Respondent said to Patient A: "So this is the reason you've been coming, all you wanted was to have these forms completed." He said: "I also commented that I didn't believe her case was convincing and that I had my doubts it would be approved". The Respondent said Patient A told him: "Just do your job." The Respondent said that Patient A then "positioned her chair closer to his so that she could see what he was writing. She repeated her symptoms so I could write them in the forms." 10. Having completed the forms, the Respondent stood up, handed Patient A the forms and opened the door. He asked her to go to the receptionist to scan the forms into her file. As she was moving towards the door, the Respondent said: "I cannot remember exactly what happened, but I might have tried to kiss Patient A. I remember her kissing me on the cheek." 11. The Respondent said "I immediately panicked because I knew that kissing a patient was completely inappropriate. I was afraid that Patient A would make a complaint against me because I had inappropriately managed the patient and breached professional boundaries by hugging her after she told me about her grandfather." He said: "I was so overwhelmed with panic and anxiety that I didn't even think to document all this in her file." Text Messages- Saturday 22 and Monday 24 September 2018. 1. The Respondent said he was afraid Patient A would make a complaint about him and so he obtained her mobile number from the practice records. He decided he would send her a text. Part of the text he sent her was in Arabic script. The Respondent said he knew she didn't read Arabic and can only conclude he was so panicked he did not remember that. 2. The Respondent said he had responded to Patient A's question "Why did you try and kiss me today?" with the word "Really" because he thought Patient A had kissed him. 3. On Monday 24 September 2018 the Respondent was still panicked and confused. He sent another text to ascertain if Patient A was going to complain about him. He knew that action was an inappropriate breach of professional boundaries, however he was "desperate for information" which could stop him worrying about a complaint. After she said "Please stop" he ceased the communication. 4. On about 9 October 2018 the Respondent received a phone call from the HCCC or the Medical Council, advising a complaint had been received from Patient A. The Respondent checked all the records he had of his consults with Patient A. At the end of his workday he was collected by his wife from work. He told her of the complaint. He was afraid the complaint would be upheld because of the text messages he had sent to Patient A. He asked his wife to write a statement which was false. His wife was unhappy at that request. Conditions of Practice. 1. On 16 October 2018 the Respondent attended a hearing before the Medical Council. At the conclusion of that hearing the Medical Council imposed conditions which included: "Not to consultation, examine, treat or perform any procedures on any female patient. He was also required to practice under Category B supervision conditions. He was unable to have any of the practitioners at Complete Medical Centre supervise him. He consequently ceased working there. 2. The Respondent obtained work with Illawarra Medical Services in Berkeley where he has worked for 2.5 years under supervision. 3. The Respondent ceased working at Illawarra Medical Services In April 2021 and has not worked since. The Respondents Oral Evidence 1. We here set out the evidence of the Respondent which we consider relevant and important to the determinations we are required to make. We did note that many of the answers given by the Respondent to questions asked of him or propositions put to him were not responsive. 2. The Respondent gave his evidence through an interpreter. 3. The Respondent was asked questions in evidence in chief. 4. The Respondent, in answer to a question as to how patients were allocated to a medical practitioner while he worked at the Complete Medical Centre, said that they were allocated to any (available) practitioner or to a specific practitioner upon request. The Respondent acknowledged the evidence of Patient A was that she had asked for any available practitioner however, his understanding was that "she was advised to see me on the recommendation of a friend". 5. As a result of the s 150 hearing the Medical Council imposed conditions on the registration of the Respondent. One condition required a supervisor. The Respondent said he had difficulty finding a supervisor and that is why he moved to Wollongong. He was able to be supervised at the Illawarra Medical practice for two and a half years. He had ceased working as a medical practitioner eight months ago. (We note that would be July 2021, however other evidence sets the date as April 2021). 6. Since leaving the Illawarra Medical Practice the Respondent said that he has been seeking employment however, the conditions had meant he was unable to obtain employment. The Respondent said he has now found a supervisor who is prepared to work with him. The supervisor, if approved, would be Dr Ooi. Dr Ooi works at the Dapto Medical and Family Practice. The Respondent has been offered the opportunity to work at the practice once Dr Ooi has been approved as his supervisor. 7. The Respondent was asked about the reason he sought an adjournment of this hearing which was scheduled for August 2021. He said at that time he had a different lawyer representing him. He changed lawyers. He made the statement he now relies upon. (Exhibit R2). 8. The Respondent said he has attended upon psychiatrist Dr Atherton at the request of the Medical Council. He had seen Dr Atherton last year and was placed on the Impaired Registrants Programme. He has another appointment with Dr Atherton in March this year. (We note reports from Dr Atherton dated 10 June 2021 and 4 February 2022; Exhibits R4 and R5). 9. The Respondent understood Dr Atherton had provided reports to the Medical Council about him. However, he has not seen those reports. If the Respondent is permitted to return to practice he will continue with psychological treatment. 10. The Respondent was asked what he had learned in the last three years since the s 150 hearing before the Medical Council. He answered: "I got many, many, lessons. It helped me to change my attitude. It affected my professional life and affected my children who are [at] university". The Respondent was cross-examined 1. The Respondent was asked if he had been diagnosed with a mental illness in the last two years. He said: "There is no psychiatric diagnosis, but I am on medication for severe depression." The Respondent is not seeing any psychiatrist other than Dr Atherton because he said: "My condition is under control." The Respondent agreed that in the past he had been monitored for opioid addiction. 2. The Respondent was asked to look at the Amended Complaint document and his Amended Reply document. Before being asked further questions about those documents, the Respondent confirmed he had the content of Exhibits R1 and R2 interpreted to him. Exhibit R1 had been interpreted by his son. He confirmed the contents of those documents are true and correct. 3. In relation to Exhibit R2 the Respondent said he had understood the content of the document before he signed it. He said the content was true. 4. The Respondent agreed that the content of Complaint 1 Particular 2 of the Amended Complaint was true. That alleged he had hugged and attempted to hug Patient A on 22 September 2018 during a consultation. It was put: "You admit hugging her when she disclosed to you her grandfather had recently died?" The Respondent said: "It was not in consultation at that time. She was standing near me. She got really emotional and I put my hand on her shoulder." It was put: "You hugged her didn't you." The Respondent said "Yes". 5. The content of Complaint One Particular 5 was read to the Respondent. He agreed he admitted that Particular in his Amended Reply. It was put: "At some stage during the consultation you kissed her didn't you." The Respondent said: "She kissed me and then I kissed her." He said she had kissed him first. In response to that answer the Respondent was asked to look at Exhibit R2 paragraph 73. It was read to him. It was put: "Nowhere do you say Patient A kissed you first and you kissed her in response." The Respondent said: "Yes she did. She saw I was slightly distressed and that is when she kissed me." When it was then put he was fabricating that evidence the Respondent said: "I had the impression she was using me. She was playing on me. She was grateful that I was filling in the document for her. She kissed me first. 6. The Respondent was taken to Particular 10 to Complaint One. It was put he admitted sending the detailed text messages to Patient A. It was put that in the s 150 hearing he had told the Medical Council that his Wife had sent the text messages to Patient A. The Respondent agreed he had done that. He agreed he had provided the Medical Council with the statement from his wife. The Respondent acknowledged that he had intended to mislead the Medical Council. 7. It was put that the Respondent was prepared to do and say anything to ensure he kept his registration as a medical practitioner. The Respondent replied: "Yes. I was under great pressure and my solicitor said it was impossible for me to keep the license. My wife was not happy with that and she went to live with her brother and I couldn't change my statement. I got a new lawyer and he advised me to tell the truth because that was the only weapon to save me." 8. It was put that the Respondent did not tell the Medical Council that his wife had provided false evidence until September 2021 when he signed his statement. The Respondent replied: "Definitely. It was the prior lawyer who told me not to attend the hearing because I am finished." 9. It was put that the HCCC had provided the Respondent with his telephone records and maps to show he could not have sent the text messages to Patient A from his home, rather that the text messages were sent from the Practice rooms where he was working at Campbelltown. The Respondent acknowledged receiving his telephone records. He said: "I panicked at the surgery. I was concerned she would make a complaint against me." 10. The Respondent agreed he told the Medical Council his wife had sent the text messages to Patient A. He agreed he told the Medical Council he had left his phone at home and she sent the text's. The Respondent said: "At that moment I was feeling hopeless and helpless. I thought I had lost my children's future. That is why I said that." 11. When asked whether he agreed honesty is an important characteristic for a medical practitioner to have the Respondent said: "The biggest lesson I have learned from those four years. I definitely did wrong. My three children are at Uni and because of what I did they have to leave their studies. I suffered a lot because of that." 12. We noted that the last answer given by the Respondent was repeated a number of times during his oral evidence. That is the consequences for his family arising from his actions with Patient A and with the Medical Council. He professed great regret for his actions. 13. When taken to Tab 7 page 53 of Exhibit A1 (the transcript of the s 150 hearing) and shown his assertion that he had not sent any text message to Patient A the Respondent said: "Back then the lawyer said I was gone." The Respondent agreed he had the responsibility to be honest with the Medical Council. He said: "It was a big mistake I had done." 14. Although he admitted he had not been honest in giving evidence to the Medical Council in the s 150 hearing, he said he was being truthful in this hearing. He said: "I decided to be truthful." He denied that the only reason he decided to be truthful was because the HCCC obtained his phone records and showed the text messages were sent from his surgery rooms. 15. In the s 150 hearing the Respondent agreed he had said he was not confident in treating women's health. The Respondent said it was only bulimia that he was not familiar with. He did not remember saying he was not confident treating women's health and asserted he did not have a problem with treating women's health or children. 16. In the examination of Patient A during her consultation with the Respondent it was put that he had only measured her height and weight. He denied that and said he had taken her blood pressure. He referred her to a psychologist. He said he wanted to know if she was seriously ill and needed hospitalisation. (We note his earlier written evidence that he had referred Patient A for ultrasound and blood tests) 17. In relation to the Respondent's change of evidence so as to now be truthful, he was asked why he did that if he was convinced, he would have his registration cancelled. He said with his new lawyer he hoped the Tribunal would "give him a chance." 18. The Respondent was asked if he had diagnosed Patient A as suffering from bulimia. After a number of attempts to have the question answered, the question was answered in the affirmative. 19. The Respondent agreed Patient A was 17 when she first saw the Respondent. He agreed she had told him she was the carer for her parents. He denied he knew her mother was an alcoholic. He agreed he knew her father was blind. He knew she was studying for her HSC. He agreed that for all five consultations she had attended on her own. As a consequence of that knowledge of Patient A's circumstances it was put that the Respondent understood she was a vulnerable patient. After some explanation of what was meant by the words "vulnerable patient", there was no acceptance, that she was such a patient, by the Respondent. 20. The Respondent did not accept the proposition put that it would have been difficult for Patient A to speak to him about her mental health. 21. At one stage of the cross-examination of the Respondent it seemed, by his evidence, that he was resiling from his admission that he had kissed Patient A. However, in answer to a clear question from the Tribunal: "Are you admitting that you kissed Patient A?" the Respondent answered "Yes". 22. The Respondent denied that at the first consultation with Patient A he had given Patient A his home address. He said: "She was the one who told me she knew I lived in Minto." The Respondent denied that Patient A had lived close to his Practice surgery. 23. It was put that on the last consultation the Respondent had hugged Patient A on two occasions. He said "No". It was put he had placed his hand on her back below her bra strap. He said: "No it was just on her shoulder." 24. The content of Paragraph 17 of the statement of Patient A was read to the Respondent. It was put that the events described there had happened. The Respondent said: "No that never happened." (We note the denial of that evidence was not put to Patient A when there was an opportunity to do so in this hearing.) 25. It was put that after the Respondent had acted in the manner set out in paragraph 17 of the statement of Patient A, she provided him with the paperwork she asked to be completed for her. The Respondent said: "She gave me the paperwork and said: "You do your job." (Again we note that was not put to Patient A when she gave evidence before us.) 26. The Respondent denied the evidence of Patient A that he had put his hand on her leg as she described in paragraph 18 of her statement. 27. It was put that his evidence that Patient A was too far away from him to be able to touch her leg as she alleged is untrue. The Respondent said: "My position was reassuring and comforting to her and I had no intent for sex." 28. It was put that Patient A said the Respondent was touching her knee and rubbing her thigh. The Respondent responded: "I heard her talking yesterday and she never mentioned it yesterday. She said she could not remember anything." He was asked if he had read her two statements. He said he had. He said: "If I really did something bad she would be traumatised." He denied he had done anything to Patient A which might have traumatised her. The Respondent denied all of the evidence of Patient A around the allegation that he had rubbed her knee and thigh during the consultation and that she had asked him to stop. 29. The Respondent denied he had asked Patient A to "get on the scales" after she had asked him to stop rubbing her knee and thigh. He denied he had heard that allegation. He confirmed Patient A's statements had been translated by his son for him. He agreed he had weighed Patient A in that consultation. 30. The Respondent denied that during the last consultation with Patient A he pulled her onto the scales. He said: "I put her on the scales." The Respondent denied the content of Complaint One Particular 8. 31. The Respondent denied that when Patient A was leaving the consultation on 22 September 2018 he tried to hug her and kiss her. He said: "I asked her to take the form to the Receptionist and have it scanned". (We note his other evidence that when he looked on the records he could not find the form). He said: "She came and kissed me at the end of the session. She was trying to make up that I was upset. I realised the whole thing was for the form so she gets some marks and that was wrong. I should not have made judgment to the patient." 32. The Respondent denied he had tried to kiss Patient A at the consultation. He said: "No she approached me and kissed me." It was put that his Reply document admits Complaint One, Particular 5 which says he kissed her on the face. The Respondent said: "When I felt the condition was bad and her mother was in hospital and her brother not supportive and I felt she was on the verge of collapsing that is when I was sympathetic with her and then she said her grandfather had passed away." 33. The Respondent confirmed his evidence that at the end of the last consultation he thought Patient A would make a complaint against him. It was put that on his evidence to the Tribunal he had no reason to think she would complain. The Respondent said: "At the time I was upset because of the form and I felt I didn't think straight during what happened with the completing of the form. When I did the form I was not strong enough and then she kissed me and I panicked." 34. It was put that the Respondent was worried because he had hugged Patient A in the consultation. He said: "It didn't come to my mind actually. I discovered she did all that because of the form. She did it all because of the form." The Respondent denied he had told Patient A he was cross about the form however, he said she could see he was upset. 35. The Respondent was cross-examined about his text messages to Patient A. He agreed he had seen her at about 1 pm on 22 September 2018. It was put the first text message from him was at 2.43 on that same day. He said he didn't recall. He was referred to paragraph 78 of his statement (Exhibit R2). There it was put he said he sent the text message because he was afraid Patient A would make a complaint about him. He was asked if he had sent the text to put pressure on Patient A. He said: "No I just wanted to see how she felt. I was confused and panicking. Even I was writing in Arabic." 36. The Respondent was asked four times, consecutively how he thought Patient A would have felt receiving his text. He did not answer any of the question's asked. He focused on his own state of panic as a way of providing an answer. 37. The Respondent acknowledged that in response to his text Patient A had asked in text "why did you try to kiss me today." When asked about his response "Really", the Respondent said: "I was surprised she would ask a question like that because I didn't do that." 38. The Respondent agreed that two days later he sent another Text "Working till 8pm." He agreed he had included red hearts. He agreed that was inappropriate. He said: "I was out of my mind at the time." He agreed the message was unethical. He said: "Yes, a crime and I think I deserve a death sentence for it." 39. In relation to Complaint Three, Particular 3 the Respondent was asked about information he had supplied. He agreed that in August 2020 both his parents had tested positive to Covid in Syria. In August 2020 his brother had been shot dead in Syria (The Respondent corrected that to have occurred 10 years ago). He agreed that in August 2020 he had difficulty sleeping and was waking up every hour. Prior to August 2020 he had been diagnosed with Peyronie's disease. 40. The Respondent was asked to look at Tab 20 of Exhibit A1 being a letter sent by his solicitor to HCCC. The letter is dated 7 November 2018. The Respondent confirmed the letter alleged he had not sent Patient A any text messages. He also agreed he had denied he ever kissed or hugged Patient A. 41. Tab 22 of Exhibit A1 was also shown to the Respondent. There he agreed in correspondence dated 13 March 2019 he denied texting to Patient A. The Respondent further asserted that his solicitor had advised him that if he had done those things "he was finished." Again the in relation to the allegation he had kissed Patient A, which was denied in the letter of 13 March 2019, the Respondent said his former solicitor advised that if he admitted those actions he would lose his medical registration. 42. It was put: "It was your responsibility to tell the truth". The Respondent said: "I didn't deliberately intend to break the law and I did what he told me to do to protect my family." 43. The Respondent was cross-examined in relation to matters which the HCCC said impact upon "Stage 2" considerations. 44. The Respondent denied he had been the subject of 8 prior complaints (about his medical services). He said he had no knowledge of such complaints. It was put he had been the subject of a complaint or complaints arising from his own opioid addiction. He said: "It was a complaint which has been dealt with. I saw treating doctors." 45. The Respondent said he does have contact with medical professional colleagues. He named some of his colleagues he speaks with on a regular basis. 46. The Respondent was asked about a complaint raised in relation to him in May 2001. The evidence touching on that complaint had been the subject of objection by the Respondent and not pressed by the HCCC on the basis of the following admission being given. 47. We noted the following admission was read onto the record by the Respondent's counsel. "From at least 2001 the Respondent was aware of the need to exercise caution when treating young children alone as a result of a complaint made about his conduct while he was employed at Launceston Hospital." 1. The Respondent was asked what steps he had taken since 2001 to take care when treating young female patients, the Respondent did not really answer that question as best we can understand. His answer appeared to focus on the lack of any complaint since that time (except the one now under consideration). He did say he worked at Swan Hill Hospital, where he was accompanied by female staff. He had his own practice for 13 years and had a nurse with him. He was the only doctor in Bermagui. 2. The Respondent was asked question's in re-examination by his counsel. 3. The Respondent was asked how long he had been given to think about the evidence he gave to the Medical Council before he gave that evidence. The Respondent said: "I can't tell you specifically, but I didn't have a good communication with my previous solicitor and it was done by my wife and I just followed instructions and with my current solicitor he said 'just tell the truth.'" 4. He was asked to look at the telephone records and maps which are at Tabs 11 and 12 of Exhibit A1. He was asked if he had seen those before this hearing. He said he had not. He was asked if he understood the documents and he said he had not. He was told that the records had been emailed to him on 26 May 2021. He said he could not remember seeing those documents. If he did see the documents he did not understand them. 5. In relation to his discussing aspects of medical practice (to keep up to date) the Respondent said he had discussed Medicare service numbers, diabetes and other medical matters with Dr Ooi. He had also told Dr Ooi of the hearing he is currently undertaking and of the possible outcomes. He is awaiting approval from the Medical Board for Dr Ooi to be his supervisor. 6. Members of the Tribunal asked the Respondent some questions. He told us that last year he had seen psychiatrists and he was "put on a program". 7. The Respondent was asked why he was upset through having misjudged Patient A. His answer was a little convoluted however, he agreed that what he was saying was that he thought because he had been judgmental about what he thought was the true reason Patient A had consulted him, she might complain. The letters dated 7 November 2018 and 13 March 2019 provided to the HCCC by the Respondents former solicitor on his behalf. 1. The letters are set out at Tab 20 and Tab 22 of Exhibit A1. 2. In the letter of 7 November 2018 the solicitor for the Respondent informed the HCCC (the body to which the letter was addressed). The letter repeats all the denial given by the Respondent in his evidence before the Medical Council s 150 hearing on 16 October 2018. In uppercase type it states: "CONFIRMED NO TEXT MESSAGE SENT BY DR CHAHOUD." 3. The letter is lengthy and again repeats the speculation as to why Patient A is making the allegation against him. 4. The letter of 13 March 2019 is a repeat of the same denials by the Respondent as were set out in the letter of 7 November 2018 with some further information attached. The evidence of the single expert Dr Michael Golding 1. Dr Golding provided two reports. The first dated 8 June 2020 and the second dated 11 October 2021. Report of Dr Golding 8 June 2020. 1. The report of Dr Golding appears at Tab 15. There is no objection taken to his report. There is no criticism of his credentials as an expert witness. 2. The report addresses and provides opinion as to whether conduct complained of, in relation to the Respondent, was below or significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience to that of the Respondent. The words used here are taken from s 139B(1) of the National Law. The report also provides opinion as to whether any conduct complained of, if established, would establish that the Respondent had amounted to professional misconduct, as is referred to in s 139E of the National Law. 3. No issue is raised with the report of Dr Golding in terms of his professional standing and his ability to provide opinion on the matters sought of him which can be relied upon by the Tribunal. 4. The report of Dr Golding which is set out at Tab 15 of Exhibit A1, shows he had received a copy of the curriculum vitae (CV) for the Respondent, which is contained in the evidence before us at Tab 18 of Exhibit A1. 5. The CV of the Respondent establishes to our satisfaction that he was, at the date Dr Golding provided his report, and still is today, a medical practitioner of considerable training and experience. His knowledge should be seen to be informed by his training and his lengthy experience as practicing as a medical practitioner and a general practitioner (GP), having obtained Fellowship of the Royal Australian College of General Practitioners in 2012. He has been employed and/or engaged in medical practice, in Australia, since 2001. He commenced as a resident medical officer in Launceston General Hospital. In November 2002 and until December 2011 the Respondent practiced as a sole practitioner in a country town in NSW. He was the only GP in that town. Since that time, he has practiced as a GP in a number of Medical practices in NSW including in suburban Sydney. He said in his evidence that he was experienced in dealing with the health needs of men, women and children. Such experience is clearly necessary practicing as the only GP in a town for many years. 6. The report commences by detailing all the material he was provided with by the HCCC who sought his expert advice. 7. In the preliminary matters covered in his report Dr Golding states that in his report he refers to the Good Medical Practice: A code of conduct for Doctors in Australia (The Code). He set out that the code does not set new standards. It brings together, into a single Australian code, standards that have long been at the core of medical practice. 8. Dr Golding set out his opinions in the report based upon the predication that the facts provided by Patient A were accepted as true and then alternatively if the version of fact provided by the Respondent was accepted. 9. The report commences with Dr Golding providing his opinion based upon the version of fact provided by Patient A being accepted. The question's asked of Dr Golding then followed the Particulars set out in the Complaint being prosecuted by the HCCC in this hearing. 10. The first matter addressed is an opinion as to the conduct of the Respondent in providing Patient A with his home address during the first consultation. (The request also spoke of the mobile phone number being provided however that was not included in Particular 1 of Complaint One). In relation to the provision to a patient of a home address for a doctor Dr Golding said "There does not appear to be any patient care or safety issues (addressed by providing a home address) and this action runs the risk of blurring professional boundaries for both patient and clinician." "In my view providing Patient A with a home address (of the Respondent) is below the standard. 11. In relation to Particular 2 of Complaint One, Dr Golding was asked to opine the appropriateness or otherwise of: "Dr Chahoud gave Patient A a hug during the consultation on 22 September 2018 after she told him her grandfather had died." Dr Golding said "The maintenance of boundaries in the doctor-patient relationship is central to good medical practice and the appropriate care of patients. There is a power imbalance in the Doctor-patient relationship and (doctors should) not exploit patients physically, emotionally, sexually or financially." He opined that if there were circumstances where it may be seen as appropriate to hug a patient this was not one of those circumstances. He opined the interaction was below the standard. 12. In relation to Particular 4 of Complaint One, namely that on 22 September 2018 the Respondent had placed his hand on the right side of Patient A's back below the bra strap, during the consultation, Dr Golding said: "Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. … In my view, these actions fall significantly below the standard." 1. In relation to the Particular 5 of Complaint One, Dr Golding gave an opinion in relation to the allegation that Dr Chahoud had kissed Patient A on the cheek and tried to hug her at the end of the consultation on 22 September 2018. He opined such conduct was significantly below the standard. 2. Dr Golding provided the opinion that the conduct of the Respondent in relation to alleged Particular 6 to Complaint One was significantly below the standard. That particular alleged the Respondent placed his hand on Patient A's knee and moving his hand up her thigh during the consultation. 3. In relation to Particular 10 of Complaint One, Dr Golding was asked to provide his opinion as to the conduct of the Respondent in sending Patient A text messages following the consultation on 22 September 2018. He opined "In my view, sending non-therapeutic and emotionally laden texts to a vulnerable 17 year old girl is significantly below the standard." 4. The report then turned to consider aspects of the Respondent's behaviour assuming his version of the facts was accepted as accurate. Many of the questions posed were based on evidence from the Respondent which is now sworn to have been fabricated by him. However, he was asked to assume that Patient A had conducted herself in a manner where she had attempted to kiss the Respondent. He was asked to opine on the conduct of the Respondent in addressing that circumstance and in failing to record in the patient notes, or anywhere else the attempted kiss. 5. Dr Golding referred to a number of provisions of the Code and opined the action taken or not taken by the Respondent was below the standard. He opined: "Dr Chahoud has not taken all reasonable steps to ensure the safety of Patient A and is below the standard. The failure of Dr Chahoud to involve the parents/guardian of Patient A is below the standard. The failure of Dr Chahoud to seek advice following the attempted kiss by Patient A in public is below the standard." 6. Dr Golding was asked to provide his opinion in relation to the care and treatment the Respondent did provide for Patient A including assessment, diagnosis and treatment of Patient A. This request addresses the content of Complaint Two. In answer to the request Dr Golding said: "In my view, the adequacy of Dr Chahoud's care and treatment of Patient A is significantly below the standard. 7. Dr Golding included in his answer an observation that the Respondent had not previously treated bulimia. He said Dr Chahoud should have sought help. There was unnecessary delay in connecting Patient A with appropriate professionals to provide treatment. There was history which was consistent with high risk of medical and psychological harm resulting from bulimia. Apart from the history of symptoms provided by Patient A there was evidence from the blood tests which Dr Chahoud had ordered. 8. In the second report of 11 October 2021 (Tab 11) Dr Golding was asked to opine in relation to the allegation that Dr Chahoud had physically coerced Patient A onto scales to weigh her. Patient A had asserted he had grabbed her arm and coerced her to go on the scale. In response to assuming that fact was accepted, Dr Golding said "Touching a patient should only be done with consent of the patient. (S4. 3. 3 of the code was set out). From the information available to me the patient clearly refused the intervention. There was no consent for the examination. In my view, attempting to physically coerce the patient to the scale is significantly below the standard of a practitioner of an equivalent level of training or experience" (to that of Dr Chahoud). Oral Evidence of Dr Golding 1. Dr Golding provided oral evidence. He was only asked about one aspect of his reports. In relation to page 9 of his 8 June 2020 report in the middle of the page there is a paragraph which commences "Other information available that supported a serious condition…" Dr Golding was asked about that paragraph. In particular his statement "The results are indicative of decreased activity of the thyroid rather than increased activity as diagnosed from these results by Dr Chahoud." 2. Dr Golding said: "In retrospect it could indicate either. The point is it was abnormal. I would not have included that sentence if I could see it now." Submission of the HCCC 1. The HCCC set out the areas of dispute between the parties as disclosed by comparison of the Amended Complaint document and the Amended Reply document. 2. The Standard of proof was addressed. The HCCC submitted: "The HCCC bears the burden of proof. The Tribunal is not bound by the rules of evidence. [1] Whilst neither the Briginshaw civil standard nor section 140 of the Evidence Act 1995 directly apply to the Tribunal's decision making, the principles remain relevant, and the Tribunal should be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding. [2] " 1. In Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 the Tribunal said: "12. The standard of proof we must apply when making findings about these matters is the civil standard – "on the balance of probabilities". It was said by Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 that: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. 13. Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact. 14. However, the Tribunal is not bound by the rules of evidence and, strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, Leeming JA with whom Gleeson JA agreed. While we are not bound to adopt the approach set out in Briginshaw or in s 140 of the Evidence Act, that general approach may be justified. When deciding whether the evidence is sufficient to meet the civil standard of proof, we will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding." 1. In this determination we will make findings on the foundation of the requirements of s 140 of the Evidence Act 1995 (NSW) and the guidelines established by Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Those requirements and guidelines are well established and will serve us well in the determination of this Complaint. We understand that should the Complaint be established to our satisfaction there is the potential for serious consequences to the Respondent's ability to continue to practice medicine in Australia. 2. The HCCC also set out the principles which it said would guide the Tribunal in the determination of the Complaint. It submitted as follows: "Part 8 of the National Law outlines the relevant principles for complaints in relation to health practitioners. The relevant principles include: a. The protection of the health and safety of the public is paramount; [3] b. The Tribunal must consider the maintenance of standards of the profession, preservation of public confidence in the profession and, more broadly, the protection of the community; [4] c. Public protection is achieved by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; [5] d. Deterring others from engaging in similar conduct is a necessary part of maintaining the standards of the profession and thereby ensuring public safety and faith in the profession; [6] e. Protecting the health and safety of the public is not confined to protecting current or potential patients but includes protecting the public from similar misconduct of others and upholding public confidence in the standards of the profession; [7] f. The Tribunal's jurisdiction is primarily protective, not punitive; [8] g. It is unavoidable that protective orders may be incidentally punitive; [9] and h. The Tribunal is subject to rules of procedural fairness. [10] " 1. With the exception of paragraph (h) above, those principles become relevant once the Complaint has been established. The principles set out will inform the determination of any protective orders which we will consider imposing, should we be satisfied the Complaint has been established. 2. The HCCC submission sets out a relevant chronology and summary of the evidence given in the hearing before us. It also sets out portions of the transcript from the s 150 hearing which is relied upon in this hearing. Those parts of the transcript which are re-stated are relied upon to support the finding that Complaint Three. We will refer to that evidence later in these reasons. 3. Portions of the evidence of Patient A are highlighted in the submission. The HCCC provided a lengthy submission which addressed matters of credit for both Patient A and the Respondent. 4. The submission of the HCCC then meticulously addressed each of the Complaints numbered One to Four and provided concluding submissions. It finally addressed Stage 2 considerations and provided a basis to support the Protective Orders it was seeking in this hearing. 5. We will refer further to the detail of the submissions of the HCCC as we consider each of the four Complaints which have been moved on by the HCCC in the hearing before us. Submission of the Respondent 1. The Respondent provided oral and written submissions. We will refer in these reasons to the written submissions as counsel for the Respondent told us that his oral submission would be replicated and concluded in writing. 2. The opening paragraph of the submission is as follows: "Dr Chahoud accepts that he committed professional misconduct on 22 September 2018. It was serious and potentially career-ending misconduct. The question is whether, in exercising its discretion to make protective orders, the Tribunal should now cancel Dr Chahoud's registration. The Tribunal's protective order "should be limited to that which is reasonably necessary to provide the required level of public protection." 1. (The cases cited as support for this paragraph were stated as follows: Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 [83], citing Prakash v Health Care Complaints Commission [2006] NSWCA 153 [101].) 2. In the submission the Respondent addressed matters relating to the imposition of Protective Orders and also the conduct which was complained of by Patient A and then the HCCC in its Complaint document. We will refer to those submissions as we consider the evidence said to support each of the Four Complaints moved on by the HCCC. Consideration of Credit 1. There are a number of important issues of credit disclosed by conflict in the evidence of Patient A and the Respondent. Some of those conflicts are important to the determination of the Complaints made by the HCCC. We will consider the credit of the parties testimony individually and then draw our conclusion. Patient A 1. Patient A's written evidence is contained in two statements signed by her and forming part of Exhibit A1. We have set out the evidence contained in those statements earlier in these reasons. Patient A also gave oral evidence which we have also set out earlier. 2. The evidence of Patient A is in part, corroborated by the recording of her contact with the Headspace organisation on the day of her last consultation with the Respondent, 22 September 2018, her complaint made to the HCCC on 22 September 2018 and the complaint made to AHPRA by a Headspace councillor on 22 September 2018. It is also corroborated, in part, by the content of the text message exchange between the Respondent and Patient A on 22 September 2018 and the following Monday. 3. The recording of the complaints made by Patient A on the very day she had consulted with the Respondent is seen by us, in the absence of any vitiating evidence, as reliable reporting of a very recent occurrence. The detail therefore we consider carries significant weight in the determination of the Complaints and additionally in the consideration of matters of credit. 4. In the submission by the HCCC it set out the evidence it said should be considered as provided by Patient A. That list is as follows: "The relevant evidence in relation to Patient A is as follows: (i) Patient A's contemporaneous complaint to an online counselling service headspace on the day and shortly after her last consultation with the Respondent on 22 September 2018 with a transcript available; HCCC BOE Tab 4; (ii) Patient A's complaint to AHPRA about the Respondent on the day of the last consultation at 9.31 p.m. on 22 September 2018; HCCC BOE Tab 5; (iii) the text messages between the Respondent and Patient A between 22 and 24 September 2018; HCCC BOE Tab 10; (iv) Patient A's contemporaneous complaints to NSW Police and her school; (v) Patient A's complaint to her subsequent general practitioner, Dr Susan Baroudy, on 8 October 2018 at headspace medical practice at Campbelltown; HCCC BOE Tab37, p9; (vi) Patient A's statement dated 7 March 2019 and signed on 25 October 2019; HCCC BOE Tab 9; and (vii) Patient A's further statement dated 5 November 2021; HCCC BOE Tab 10B." 1. We have detailed earlier the documents referred to in (i) to (iii) in the above paragraph. We do not have detail of the complaint made to NSW Police or Patient A's school, other than her own evidence given in the hearing before us. 2. In relation to what she told Dr Susan Baroudy on 8 October 2018, the evidence is included at Tab 37 (page 9) of Exhibit A1. That document shows the following information: 1. A history noted as "relapse into bulimia. Symptoms of purging." 2. Her grandfather had passed away on 10 September 2018. 3. Three weeks ago relapsed into bulimia. 4. Since February 2018 has been purging intermittently. Stopped three months before grandfather died. 5. Many years of experiencing difficulty focusing. 6. From January 2018 anxiety symptoms intermittent. Anxiety triggers, difficulty focusing, HSC exam and school stress. 1. The notes recorded by Dr Baroudy also set out the following in relation to Patient A's experience with the Respondent. 1. She saw Dr Chahoud on 14 September 2018 to fill out paper work for school. 2. In that consultation he indecently assaulted her by kissing her on the lips then before she left the consultation he tried to kiss her a second time but she pushed him away and said I have to go. Dr Chahoud put his hand on her lower back/R lower thigh and held her hand. Client told Dr Chahoud she felt uncomfortable and to please don't do that. 3. Dr Chahoud put his hand on her arm and tried to coerce her to go on scales to check her weight but client did not want to see her weight and told him she does not want to go on the scales a few times. Then he grabbed her arm and she went on scales. 4. Client reported incident with Dr Chahoud to Police and currently only wants to make a report and does not want to go to court. Client also made a complaint to AHPRA. 1. We note in the notes recorded by Dr Baroudy, the date specified for the consultation with Dr Chahoud was 14 September 2018. We note the evidence of Patient A in her statements for the HCCC and in her complaint filed with both Headspace and AHPRA she described the events as occurring on the day of the complaint being made, namely 22 September 2018. 2. Patient A was not cross-examined about the date recorded by Dr Baroudy nor was Dr Baroudy a witness in the hearing (no criticism intended), consequently we are unable to determine why the date recorded by Dr Baroudy is not 22 September 2018. 3. In our view, the recording of a different date for the occurrences said by Patient A to have occurred with the Respondent in consultation, is not a matter, in the circumstances of this case, which would detract from the veracity of Patient A as a witness of truth. The Respondent 1. The Respondent in his written submission set out the following on assessment of credit: "Witness credibility 11. AS [33] – [84] address the inconsistencies in Patient A and Dr Chahoud's evidence and urge the Tribunal to prefer Patient A's evidence where there is a conflict. Given the admission of complaint 3, Dr Chahoud recognises that the Tribunal would have concerns about his credibility. No submission is made that Dr Chahoud's evidence should be preferred to directly inconsistent evidence of Patient A, particularly evidence which was not challenged in cross-examination." 1. The Respondent's evidence has been set out by us in these reasons. There is however, other evidence which touches upon the determination of the credit of the Respondent which we have not yet canvassed. That evidence is contained in the transcript of the s 150 hearing conducted before the Medical Council on 16 October 2018 (Tab 7 of Exhibit A1), correspondence written by the Respondents former solicitor, on his behalf, dated 7 November 2018, (Tab 20 Exhibit A1); 13 March 2019 (Tab 22 Exhibit A1); 31 August 2020 (Tab 24 Exhibit A1). 2. In the submission provided by the HCCC, portions of the evidence referred to in the above paragraph are set out as follows: "During the s 150 hearing, the Respondent gave evidence: MEMBER FOGARTY: Do you have any area, most of us have some areas that we don't feel quite so confident with, areas that we might see as not our particular bundle, so you've already said women's health you tend to defer to the lady doctors. CHAHOUD: Yeah, women's health. … CHAHOUD: I never had a patient actually with bulimia. I didn't - like it's not very common to me actually like bulimia. … CHAIRPERSON REID: Can I just interrupt you there. In June this year [Patient A] was 17 I believe, 17 years old. Did she come on her own to this consultation? CHAHOUD: She came on her own actually. Always she came on her own actually all the time. CHAIRPERSON REID: So did you - did you examine her at this consultation? CHAHOUD: No, not at all actually, not at all CHAIRPERSON REID: Other than just height and weight, height and weight are recorded? CHAHOUD: Yeah, height and weight, yeah, yeah, only actually. CHAIRPERSON REID: So there was no other examination? CHAHOUD: No other examination. no. … MEMBER FOGARTY: You have said to us, "I am sure there is no bulimia." It's not clear to me whether you came to that conclusion after that last consultation or by the time of that last consultation. CHAHOUD: You know like, well, now I am now after what happened, all that, I think it's a lie really. During that time half which like you know I'm not sure really if it is really bulimia. Vomiting like vomiting it can be anything actually and even when we did the blood test it didn't show any sign of dehydration or something, so I can't really think that she has it. I don't think she had any bulimia, that's what I think now." 1. Dr Chahoud told the s 150 delegates that he did not use his phone at all between Saturday at 5:30pm and Monday at 4:30pm, even to send a text message. He says he left the home on Saturday evening and came back the next day. 2. The oral evidence of the Respondent in the s 150 hearing commenced dealing with the Respondents consultation with Patient A at page 18 of the transcript (Tab 7 of Exhibit A1). We have set out earlier portions of that transcript. I light of his evidence in this hearing, a reading of his evidence before the Medical Council demonstrates an elaborate and concerted attempt to mislead by the giving of false evidence which included having his wife provide a completely fabricated version of the sending of text messages to Patient A on 22 September 2018 and the following Monday. Other aspects of his evidence, such as his evidence that he leaves his phone at home and doesn't have it at work with him are contrary to the evidence of Patient A that he photographed her and took a video of her on his phone. It is also contrary to paragraph 42 of the Respondents statement found at Exhibit R2. Conclusion on Credit 1. In its submission the HCCC said the credit of Patient A as a witness of truth should be accepted. It specifically referred to challenges made to the credit of Patient A in her oral evidence. That submission we set out here: "Patient A was challenged in cross-examination only in relation to three issues. Firstly, Complaint 1, particular 8, in relation to the Respondent grabbing Patient A's arm and using physical force to get her to use the weighing scales. She gave truthful evidence that "He tried to pull me, said come on get on the scale, get on the scale. I said, I really don't want to, but he kept trying to make me go on it." and she repeated "just go on the scale". She gave evidence that "I felt a bit pressured". She insisted that the Respondent "did grab my arm". Patient A gave evidence that not only did the Respondent coerce her onto the scales using words "he didn't yank me too hard but he did pull me". Secondly, in relation to Patient A's contemporaneous disclosure to the headspace online counsellor and the transcript at page 4. When she was challenged about her comment "I don't think I should kiss him back but I just didn't know what to do", she gave clarifying evidence "I wouldn't say I kissed him back, I didn't pull away immediately but, but I didn't after 10 seconds." When Patient A was challenged about whether this occurred at the end of the consultation she said "I think it was at the beginning of the consultation. The first time he tried to kiss me." Thirdly, Patient A was then taken to an email that she had sent to the HCCC attaching the text messages between her and the Respondent. When challenged about her comments about the text messages to the HCCC she said that she didn't think "the conversation didn't look like it flowed properly". She acknowledged that it was a complete record. Patient A did not give any evidence that adversely affected the reliability and credibility of her evidence." 1. We note that it was not put to Patient A that she had fabricated any part of her evidence. No motive was sought to be established to show that Patient A was attempting to damage the Respondent's reputation, career or ability to earn income. 2. We closely observed Patient A as she was presented to us during the hearing. She was presented only for the purpose of giving oral evidence. There was nothing about her presentation or the manner in which she gave her evidence which raised in us any suspicion she was being untruthful, was motivated by some form of vengeance or ill feeling to the Respondent. On the contrary, in the making or her reports to Headspace on the day of the action by the Respondent which gave rise to the complaint, Patient A was concerned not to cause a problem for the Respondent with his wife or to ruin his career. 3. We take into account that the Respondent is an acknowledged fabricator of evidence to avoid damage to his career, his income or the consequences of his behaviour upon his family. That fabrication we find went to the extent of having his wife provide a false statement which he intended to use and did use in a proceeding before the Medical Council where he knew he was required to be truthful. There was no suggestion that Patient A had or was fabricating evidence. Patient A was clearly confronted by the behaviour of the Respondent, so much so that she sought out a place to make a recorded complaint about his interaction with her during a professional consultation. She recorded the detail of her complaint with the assistance of a Headspace councillor and also online with AHPRA on the very day upon which she alleges the behaviour of the Respondent towards her took place. 4. Additionally, for a reason explained by the Respondent as panic, he sent her a text message on the same day she had attended upon him and he continued to text to her until she clearly said "Please stop". The second last text from him was surrounded by heart emojis. The intended meaning of the emojis has not been provided by the Respondent. The unavoidable conclusion is that he was well aware that he had crossed professional boundaries with Patient A and that if she complained about his non-medical based interaction with her, he would jeopardise his ability to continue to practice medicine. 5. We observed the Respondent give oral evidence over a number of hours and across two days of the trial. We have recorded those parts of his evidence, in these reasons, which we considered the most important to the determinations we are required to make. 6. We observed on a significant number of occasions, the Respondent failed to answer or address the question he was asked or the matter being put to him. We observed the Respondent change part of his evidence during his oral evidence and then when checked often acknowledged what he had clearly admitted in his Reply document or in his written evidence. 7. We are unable to be satisfied that the Respondent was candid with us when giving the entirety of his evidence. We conclude that he attempted to frame his evidence at times so that it might be seen in a positive light when what was being asked of him related to a serious departure from acceptable medical practice, a fact that he at times freely acknowledged. This then leads us to the unfortunate conclusion that the Respondent cannot be accepted as a reliable witness of truth. 8. Having considered all of the evidence which we have heard in this hearing and having observed both the Respondent and Patient A give oral evidence, we are very satisfied that the evidence of Patient A is to be preferred to that given by the Respondent, where they are in conflict. In the further determination of this matter, should there be any circumstance where we do not accept the evidence of Patient A, we will specifically state that. Determination of the HCCC's Complaint (establishment of same to the satisfaction of the Tribunal) 1. The Complaint is brought to establish the Respondent has contravened the provisions of s 139B(1)(a) and (l) and s 139E of the National Law. We here set out the terms of those sections: 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. 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The determination of the Complaints in this matter has been potentially, made less onerous because of the admissions appropriately made by the Respondent. Nonetheless we are required to be satisfied the Complaint is established on the evidence provided to us. Complaint One 1. We have set out earlier in these reasons a copy of the Complaint and the Reply and we do not repeat the content of those documents verbatim here. The complaint is of unsatisfactory professional conduct under s 139B(1)(a) and/or s 139B(1)(l) of the National Law. The Respondent admits he is guilty of unsatisfactory professional conduct under s 139B(1)(a) only. He does not admit Particulars 1, 3, 4, 6, 8 and 9 to Complaint One. There is a critical difference between "does not admit" and "deny" in a pleading of the nature used in the Reply document filed in this case. The words "does not admit" requires the HCCC to satisfy the Tribunal that the evidence relied upon establishes the Particular set out in the Complaint document. 2. We also here note the difference between subsections (a) and (l) of s 139B(1). In the Reply document the Respondent does not admit he engaged in "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession." Those words are taken from s 139B(1)(l). 3. As can be understood, the determination of the disputed Particulars and portions of the Complaints rests, at least in part, on our determination of matters of credit, and the reliability of the parties' evidence. We have addressed that matter earlier in these reasons and rely upon our findings and determination there set out. 4. In the submission of the HCCC it sets out the following in relation to the manner in which the Tribunal will determine whether the sections, set out above, have been satisfied to establish either unsatisfactory professional conduct and/or professional misconduct. The submission is: "Complaints 1 and 2 88. Complaints 1 and 2 allege that the Respondent is guilty of unsatisfactory professional conduct pursuant to both s 139B(1)(a) and (l). The Respondent's amended reply is silent in relation to s 139B(1)(l). He admits so far as his admissions that he is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a). 89. Complaint 3 alleges that the Respondent is guilty of unsatisfactory professional conduct pursuant to s 139B(1)(l). 90. In Health Care Complaints Commission v Saab [2020] NSWCATOD 145, the Tribunal found at Paragraph 650 as follows: "In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 the Tribunal referenced the evaluation, assessment or characterisation required of the conduct alleged in order to be established as unsatisfactory professional conduct. It stated at [25]–[26] as follows: Determining whether the "knowledge, skill or judgment" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against the practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such. In disciplinary proceedings in relation to s 139B(1)(l) of the National Law, the determination of the question as to whether "any other improper or unethical conduct relating to the practice … of the practitioner's profession" has occurred requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s 139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct." 1. The decision, above set out, quotes from the decision of Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 which was a decision of the Occupational Division of NCAT and concerned an action brought against a medical practitioner. The Tribunal for that decision included Cole DCJ, the Deputy President. 2. In relation to matters of "Factual Background" the Respondent provided a general address on those matters and then addressed specific Particulars supporting the Four Complaints. The matters addressed under "Factual Background" are as follows: "Factual background 6. No issue is taken with the principles set out in the applicant's submissions (AS) at [3] – [4]. The factual summary from AS [5] – [51] is also generally accepted. However, the following factual contentions ought not be upheld by the Tribunal. 7. AS [21] relates to the formal admission made by Dr Chahoud during the course of the proceedings, that: "From at least 2001, Dr Chahoud was aware of the need to exercise caution when treating young female children alone, as a result of a complaint made about his conduct while he was employed at Launceston General Hospital." 8. The HCCC's summary at AS [20] is not supported by the evidence, as tabs 38 and 38A of Exhibit A1 were not admitted. The relevant evidence is contained in Exhibit R6: the allegation "that a medical practitioner sexually assaulted a child patient at the Launceston General Hospital in 2001" was "dismissed" by the Medical Council of Tasmania "based on a significant body of material gathered in the investigation." 9. AS [47] recites Patient A's evidence about Dr Chahoud creating a video recording on "my third visit" of four visits. In fact, there were five visits,6 so Patient A could be referring to 4 July 2018 or 7 July 2018. Dr Chahoud's evidence was that he did not ever record a video or take a photograph of Patient A.7 10. Complaint 1 contains no particulars relating to the third consultation, and whether Dr Chahoud used his phone to communicate with patients or stored clinical information on it was the subject of withdrawn particular 12. Whether any video was recorded on Dr Chahoud's phone was not addressed by the forensic evidence which the Medical Council expected the HCCC to obtain,8 and which the Tribunal did receive at Tabs 11 and 12 of Exhibit A1. It is unnecessary and inappropriate for the Tribunal to make findings about AS [47] in these circumstances." 1. We note that in relation to paragraph 8 of the Respondent's submission (above) we did not have regard to the content of Tabs 38 and 38A of Exhibit A1 as those documents were not relied upon by the HCCC after the parties agreed to a statement which would satisfy the Respondent's objection to that evidence. 2. We note in relation to paragraphs 9 and 10 of the Respondent's submission there is no "Particular" to any of the Four Complaints which we are considering, which sets out details of alleged videoing of Patient A or photography of Patient A and it is therefore not necessary for us to make a specific finding in relation to same. Such allegation made by Patient A may be relevant to general findings of credit should we feel it is/was necessary to address same. Complaint One, Particular 1: On 30 June 2018 the practitioner inappropriately provided Patient A with his home address. 1. The HCCC submits as follows: "91 In Patient A's statement dated 7 March 2019 at [8] she says : "He also wrote down and gave me his home address and telephone number during my first visit and told me that I needed anything or had any questions for him to contact him which I thought was a bit unusual. He also mentioned the fact that he had a wife and kids and told me that his wife would like me." 92 When Patient A was asked in cross-examination about how she knew of the Respondent, she maintained what was in her statement, and confirmed that she had no knowledge of Dr Chahoud before seeing him. 93 The Respondent's statement at [31] says at the first consultation "She said she knew I was Muslim and that I lived in Minto". 94 Patient A in her statement at [22] says "He had previously told me that he lived in Minto." 95 In Dr Golding's expert report dated 1 October 2020 he observes: "I am unable to determine a legitimate reason for giving a home address to [Patient A]. There does not appear to be any patient care or safety issues and this action runs a risk of blurring professional boundaries for both patient and clinician. Regular boundary crossings may increase the risk of doctors developing inappropriate relationships with patients (boundary violations). In my view, providing [Patient A] with a home address is below the standard." 96 The Tribunal should prefer the evidence of Patient A to that of the Respondent and find Complaint 1 particular 1 proven." 1. The Respondent did not provide a specific submission addressing this particular. 2. We accept the submission of the HCCC as set out above. We accept the evidence of Patient A on this Particular. We note that when Patient A was cross-examined, it was not put to her that the behaviour of the Respondent, identified in this Particular, did not occur. We prefer Patient A's evidence because of our determination of the matters of credit as set out earlier. We find the evidence establishes to our satisfaction that on 30 June 2018 the Respondent inappropriately provided Patient A with his home address and that act was below the standard reasonably expected of a practitioner of an equivalent level of training or experience to that of the Respondent. Complaint One, Particular Two: On 22 September 2018 the practitioner breached professional boundaries with Patient A by hugging and/or attempting to hug her during the consultation. 1. The first thing we note about this Particular is that the Respondent admits this Particular in his Reply document. We proceed on the basis of that admission although we note that the Respondents oral evidence, at times, appeared to withdraw that admission and perhaps admit that he placed his hand on her shoulder. 2. The HCCC provided the following submission in relation to this Particular: "97 The Respondent admits this particular. 98 The Respondent's statement at [63] says "When Patient A said that her grandfather had died I hugged her. I accept this was inappropriate and a breach of professional boundaries." 99 Patient A in her statement at [13]-[14] says: "I was 17 years old at the time of the first 3 appointments and turned 18 before the fourth. When I went back to see him for the fourth and last time it was about extra medical points for educational access or ATAR points. The school had given me paperwork to get completed for ATAR. I made an appointment with Dr Chahoud to fill out the paperwork. I didn't want to see Dr Chahoud on the last occasion but needed to get the paperwork done. He did not mention the incident surrounding the video on the third visit on the last visit. When I arrived on the last visit, he told me that he was surprised that I had gained weight. He said that I was so big. It was not what I wanted to hear. I told him that I was trying to get back on track but that I was binge eating. I don't remember if he hugged me when I came in but I think that he tried to." 100 Patient A describes in relation to the last consultation at [15] of her statement "I think he might have given me a hug after I told him that my grandfather died." 101 Dr Golding in his expert report dated 1 October 2020 observes: "The maintenance of boundaries in the doctor-patient relationship is central to good medical practice and the appropriate care of patients. S 3.2.6 of the Code says that "There is a power imbalance in the doctor-patient relationship" and doctors should not exploit patients physically, emotionally, sexually or financially. In circumstances where a clinician has a long relationship with a patient, it may be appropriate, in acute grief reactions, to offer physical comfort. However, this is not the situation in this instance. The patient is 17 years of age and at school, not well known to the treating doctor, there does not appear to be an acute grief reaction and there is no chaperone to observe the physical interaction. In my view, this interaction is below the standard. 102 The Tribunal should accordingly find Complaint 1 Particular 2 proven." 1. The Respondent provided a submission which addressed Particulars 2 to 6 and 9, which he described as the "kissing and hugging" particulars. His submission is as follows: "Particulars 2 – 6 and 9 – Kissing and hugging 18. Particulars 2 and 5 are admitted – that is, Dr Chahoud admits that he hugged Patient A once and kissed her once. His evidence was: (see Exhibit R2 paragraph 63 and 73). When Patient A said that her grandfather had died I hugged her. I accept that this was inappropriate and a breach of professional boundaries … Patient A came forward and approached me as she was moving towards the door. I cannot remember exactly what happened but I might have tried to kiss Patient A. I remember her kissing me on the cheek. 19. As the HCCC submitted, Dr Chahoud's oral evidence about these particulars was confusing. The Tribunal should begin its consideration of these particulars by reference to Patient A's contemporaneous complaint,15 which states as follows in relation to these particulars: (a) "throughout the appointment he kept trying to hug me" (particulars 2, 3), (b) "he then kissed me" (particular 5), (c) "he then began to feel up my shirt with his hand" (particular 4), (d) "we then sat down and I gave him some paperwork I wanted him to do for school and he told me to sit next to him" (Patient A's evidence in this regard provides important context to Dr Chahoud's evidence about the school paperwork), (e) "he then started to touch my thigh with his hand and then grabbed my hand, and I told him to stop" (particular 6), (f) "as I tried to leave he grabbed me and tried to kiss me on the lips and I dodged it and pecked him on the cheek and he asked me if I still felt uncomfortable and I hesitated I said I would leave" (particular 9). 20. Dr Chahoud admits that there was a hug, the hug breached professional boundaries, and there was also a kiss at some point during the consultation. Patient A's contemporaneous complaint was that there were multiple hugs or attempted hugs (disputed particular 3), that the hug involved moving his hand on the right side of her back below her bra strap (particular 4), that after providing the school paperwork, he rubbed her knee and moved his hand up his thigh (particular 6), that he inappropriately grabbed her arm and used physical force to get her to use weighing scales (particular 8), and that there was a second kiss at the end of the consultation (particular 9)." 1. We accept the submission of the HCCC as set out above. We accept the evidence of Patient A on this Particular. We note that when Patient A was cross-examined, it was not put to her that the behaviour of the Respondent, identified in this Particular, did not occur. We prefer Patient A's evidence because of our determination of the matters of credit as set out earlier. We find the evidence establishes to our satisfaction that on 22 September 2018 the practitioner breached professional boundaries with Patient A by hugging and/or attempting to hug her during the consultation, and that act was below the standard reasonably expected of a practitioner of an equivalent level of training or experience to that of the Respondent. Complaint One Particular 3: On 22 September 2018 the practitioner breached professional boundaries with Patient A by hugging and/or attempting to hug her again during the consultation. 1. The Respondent does not admit this Particular in his Reply document. 2. The HCCC provided the following submission on this particular. "103 Ms Dunsmore's complaint says that Patient A said in an online counselling session on 22 September 2018 that the Respondent "tried to kiss me multiple times, he tried touching me, hugging me and now he's texting me." 104 Patient A disclosed to headspace on 18 September 2018 "Anyway basically throughout the appointment he kept trying to hug me, i was pretty sure he was trying to smell me as well. he then kissed me. i was in shock and i let him do it for a second because I didn't know what to do. he then began to feel up my shirt with his hand by which i responded by pushing him away." 105 Patient A in her statement describes at [16] "He tried twice to hug me. When he first hugged me I felt a big squeamish and tense." 106 The Respondent denies this particular. Patient A has not been challenged about this account. 107 The Tribunal should prefer the evidence of Patient A to that of the Respondent and find Complaint 1 particular 3 proven." 1. We accept the submission of the HCCC as set out above. We accept the evidence of Patient A on this Particular. We note that when Patient A was cross-examined, it was not put to her that the behaviour of the Respondent, identified in this Particular, did not occur. We prefer Patient A's evidence because of our determination of the matters of credit as set out earlier. We find the evidence establishes to our satisfaction that on 22 September 2018 the practitioner breached professional boundaries with Patient A by hugging and/or attempting to hug her again during the consultation, and that act was below the standard reasonably expected of a practitioner of an equivalent level of training or experience to that of the Respondent. We rely upon the expert opinion of Dr Golding in relation to any hugging or attempted hugging of Patient A by the Respondent in the circumstances in which the consultation on 22 September 2018 occurred. Complaint One Particular 4: On 22 September 2018 the practitioner breached professional boundaries with Patient A by placing and moving his hand on the right side of Patient A's back below her bra strap during the consultation. 1. In the Reply document the Respondent states he "does not admit" this Particular. 2. In its submission the HCCC states: "108 On 22 September 2018 Patient A told Ms Dunsmore at headspace "he then began to feel up my shirt with his hand by which i responded by pushing him away." 109 Patient A in her statement at [15] describes "He tried to kiss me and had his hand on the side of my back on the right side below the bra strap. It was below the bra strap. I don't recall if his hand was under or over my shirt. I was wearing a long maroon coloured skirt, and a grey long sleeved top that day." 110 Dr Golding in his expert report dated 1 October 2020 observes : "Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. S 8.2.2 of the Code requires doctors: "Never using your professional position to establish or pursue a sexual, exploitive, or other inappropriate relationship with anybody under your care." In my view, these actions fall significantly below the standard." 111 The Respondent denies this particular. Patient A has not been challenged about this account. 112 The Tribunal should prefer the evidence of Patient A to that of the Respondent and find Complaint 1 particular 1 proven." 1. We note in paragraph 111 of the HCCC submission above, it states the Respondent "denies this particular." That is incorrect, as the Amended Reply document clearly states. The Particular is "not admitted." 2. We also note from the HCCC submission above, that the opinion of Dr Golding includes a quote from "the Code" as follows: "S 8.2.2 of the Code requires doctors: "Never using your professional position to establish or pursue a sexual, exploitive, or other inappropriate relationship with anybody under your care." 1. In the hearing of this matter, Dr Golding was not cross-examined about his above set out evidence. 2. In the hearing before us it was put to the Respondent in cross-examination, that some of his actions, as complained of by Patient A, were sexually motivated on his part. He denied that. 3. In relation to this particular the HCCC has not submitted the action described in the Particular amounted to an action which was sexually motivated on the Respondent's part. 4. The opinion provided by Dr Golding, on this particular, saw him referring to actions by a practitioner which did, or was designed to, "establish or pursue a sexual, exploitive or other inappropriate relationship." It is clear that Dr Golding was referring to the act of reaching behind a patient, during a consultation, for no medical purpose, and touching her in the middle of her back. In circumstances where such an action was for no medical purpose, it illustrates an action which is intimate, and clearly, in the absence of any acceptable explanation, is reasonably interpreted as sexually motivated. 5. The circumstances of the touching, as described by Patient A were clearly alarming to Patient A at the time it occurred. The action must reasonably have been seen by her, in the circumstances, to be an uninvited intrusion to her personal and private space, which was an attempt to become intimate with her. 6. The Respondent in his written submission addressed this Particular 4. He submitted: "Particular 4 – hand on back 21. Patient A clarified her evidence about this particular at [15] of her first statement. She said "He tried to kiss me and had his hand on the side of my back on the right side below the bra strap. I don't recall if his hand was under or over my shirt." This evidence appears in the same paragraph as Patient A's description of Dr Chahoud hugging her when she said her grandfather died, which is admitted. 22. Patient A's statement in relation to particular 4 should be understood as describing exactly what was inappropriate about the hug which Dr Chahoud admits giving her (particular 2). Dr Chahoud admits that the hug breached professional boundaries. It is not necessary for the Tribunal to find that the hug also involved Dr Chahoud "moving his hand on the right side of Patient A's back below her bra strap" when Patient A did not recall whether Dr Chahoud's hand was under or over her shirt. A finding that Dr Chahoud's hand was "below [Patient A's] bra strap" could be understood as a finding that his hand was under Patient A's shirt, but Patient A's evidence in this regard was equivocal." 1. Whether the conduct which Patient A described which gave rise to this Particular was part of a hug or not, we accept it is a separate complaint by Patient A about the conduct of the Respondent. We accept that the conduct addressed by Particular 4 gave rise to a particular concern for Patient A that there was other conduct which took her description of a hug to a new level. We do not find on the evidence that the Respondent had his hand underneath Patient A's clothing when the conduct complained of took place. Had the evidence on that circumstance been clear and unequivocal from Patient A it could have elevated our concern as to the motivation in such conduct on the part of the Respondent. 2. We accept the submission of the HCCC as set out above. We accept the evidence of Patient A on this Particular. We note that when Patient A was cross-examined, it was not put to her that the behaviour of the Respondent, identified in this Particular, did not occur. We prefer Patient A's evidence because of our determination of the matters of credit as set out earlier. We find the evidence establishes to our satisfaction that on 22 September 2018 the practitioner breached professional boundaries with Patient A by placing and moving his hand on the right side of Patient A's back below her bra strap during the consultation, and that act falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience to that of the Respondent. Complaint One Particular 5: On 22 September 2018 the practitioner breached professional boundaries with Patient A by kissing Patient A on her face during the consultation. 1. The Respondent admits this Particular in his Amended Reply document. 2. The HCCC made the following submission in relation to this Particular. "113 The Respondent admits this particular. 114 Patient A disclosed to headspace on 18 September 2018 "i don't think i should have kissed him back but i just didnt know what to do. after i left i had a hard time processing it and i cried a little bit but i suppose it was just a kiss so i probably shouldnt be overdramatic … i honestly didnt cope too well after i got home - i haven't really had anything to eat today but i feel like if i eat anything then i will probably just want to throw it up anyway. the appointment was around 12:30 and i think i saw him around 1 but im not too sure. i was very hesitant about seeing a gp to begin with my eating disorder because i was so ashamed of it and i felt so comfortable with him because he seemed so understanding of my situation but then he turned around and did this and im back to square 1 argh. im not seeing any counsellor face to face." 115 The Respondent's statement at [73]-[75] says: "Patient A came forward and approached me as she was moving towards the door. I cannot remember exactly what happened but I might have tried to kiss Patient A. I remember her kissing me on the cheek. I immediately panicked because I knew that kissing a patient was completely inappropriate. I was afraid that Patient A would make a complaint against me because I had inappropriately managed the patient relationship and breached professional boundaries by hugging her after she told me about her grandfather. I was so overwhelmed with panic and anxiety that I didn't even think to document all this in her file." 116 Patient A in her statement at [17] says "He also touched me on my right hand side. He leant in for a kiss. He did it and stood there for a minute I kind of went into shock and pushed him away. I felt like I was paralysed. He did not say anything when I pushed him away. I got out the paperwork for him to do. He said that "Oh that's why you came to see me, just to get your paperwork done." Patient A has not been challenged about this account. 117 Please refer to Dr Golding's expert evidence set out at Complaint 1, particular 4 above. 118 Dr Golding in his expert report dated 1 October 2020 observes "In my view, these actions fall significantly below the standard." 119 The Tribunal should accordingly find Complaint 1 particular 5 proven." 1. Dr Golding, referred to the allegation contained in Particular 5 on page 5, in paragraph (11) of his report. He referred to what he had stated and opined in relation to paragraph (7) of his report. He there set out: "Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties." Dr Golding then set out the provisions of s 8.2.2 of the Code, which he specified in his report, and which we have set out above. 2. In our view the kiss described by Patient A was an act of intimacy, inflicted by the Respondent for no legitimate medical purpose. Patient A was clearly affronted by the action of kissing. Patient A had every reason to see the kiss as a sexual act by the Respondent. 3. In relation to the evidence of Patient A we accept she described what happened to her at the hands of the Respondent in relation to the detail in this Particular. 4. We find the evidence establishes, to our satisfaction, that on 22 September 2018 the practitioner breached professional boundaries with Patient A by kissing Patient A on her face during the consultation and that act falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience to that of the Respondent. Complaint One, Particular 6: On 22 September 2018 the practitioner breached professional boundaries with Patient A by rubbing Patient A's knee and moving his hand up her thigh during the consultation. 1. The Respondent does not admit Particular 6 of Complaint One in his Reply document. 2. The HCCC made the following submission in relation to this Particular 6. "120 On 22 September 2018 Patient A told Ms Dunsmore at headspace "We then sat down and I gave him some paperwork i wanted him to do for school and he told me to sit next to him. he then started to touch my thigh with his hand and then grabbed my hand. and i told him to stop, he asked why and i said because I feel uncomfortable." 121 Patient A in her statement at [18] says "He put his hand on my leg before or after the paperwork. He was rubbing my knee and moved his hand up my thigh. It was more rubbing than patting. I told him to please stop and he did stop. He asked me why and I told him I felt uncomfortable. He asked why I felt uncomfortable. I told him that he was my doctor and that I didn't want that. I can't remember if he replied. He then asked me to get on the scales." 122 Dr Golding in his expert report dated 1 October 2020 finds "In my view, these actions fall significantly below the standard." 123 The Respondent denies this particular. Patient A has not been challenged about this account. 124 The Tribunal should prefer the evidence of Patient A to that of the Respondent and find Complaint 1 particular 7 proven." 1. We firstly accept that Patient A was not challenged in cross-examination on this allegation. 2. We have had regard to the evidence of Dr Golding in relation to the allegation contained in this Particular. In paragraph (9) and (10) on page 5 of his report he provides the same opinion as to this conduct as he did in relation to Complaint One, Particular 4. We do not repeat the Code provision, quoted by Dr Golding at that place. 3. We accept the submission of the HCCC as set out above. We accept the evidence of Patient A on this Particular. We note that when Patient A was cross-examined, it was not put to her that the behaviour of the Respondent, identified in this Particular, did not occur. We prefer Patient A's evidence because of our determination of the matters of credit as set out earlier. We find the evidence establishes to our satisfaction that on 22 September 2018 the practitioner breached professional boundaries with Patient A by rubbing Patient A's knee and moving his hand up her thigh during the consultation, and that act falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience to that of the Respondent. 4. We accept that the touching of Patient A's knee, rubbing it and moving his hand up her thigh, during a consultation on 22 September 2018, was an action without medical purpose in the circumstances of the particular consultation. We accept that Patient A was entitled to conclude that it was an intimate act with a sexual purpose for the benefit of the Respondent. Complaint One, Particular 8: On 22 September 2018 the practitioner inappropriately grabbed Patient A's arm and used physical force to get Patient A to use weighing scales. 1. The Respondent does not admit this Particular in his Amended Reply. 2. The HCCC made the following submission on this Particular" "125 Patient A disclosed to Ms Dunsmore via online counselling with headspace on 22 September 2018 "I walked in, he saw me and told me I had gained weight - too much as he described which was really annoying because i am trying my hardest to recover from bulimia. anyway he told me to get on the scale and i told him i didnt want to he then proceeded to grab my arm and coerce me to go on the scale and i ended up doing it - this was the second time he has coerced me to step on the scale." 126 Patient A's statement at [11] says : "On the third visit, because I have an eating disorder he coerced me onto the scales. That happened twice during my visits to him. The first time he verbally coerced me onto the scale. He physically coerced me to get on the scale for the second time was during my last visit. The second time he grabbed my hand and told me to get on the scale." 127 Patient A in her statement at [16] says in relation to the last appointment "Then at some point he had tried making me go onto the scale. He told me that if I had seen a psychologist as he had recommended during a previous visit, I might not have gained weight. I said that I wanted to do it on my own." 128 Dr Golding in his supplementary expert report dated 11 October 2021 says as follows : "Touching a patient should only be done with consent of the patient. S 4.3.3 requires: Informing patients of the nature of and need for, all aspects of their clinical management, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment. From the information available to me there the patient clearly refused the intervention; there was no consent for the examination. In my view, attempting to physically coerce the patient to the scale is significantly below the standard of a practitioner of an equivalent level of training or experience." 129 The Respondent denies this particular. Patient A maintained her recollection when challenged at the hearing. 130 The Tribunal should prefer the evidence of Patient A to that of the Respondent and find Complaint 1 particular 8 proven." 1. In her oral evidence, under cross-examination, Patient A In was asked, as we have set out earlier, what she meant by the word "coerced" when she described the Respondent attempting to have her "go on the scales". Patient A said: "He pulled me towards the scale. I said I do not want to. He said: "Come on come on". I did not want to." Patient A was asked: "Is it fair to say "coerced you" using words rather than physically?" Patient A responded with: "Both really. He didn't yank me, he did try to pull me." 2. The Respondent made a specific submission on this Particular. His submission is as follows: "Particular 8 – coercion 23. In his evidence, Dr Chahoud admitted that he put Patient A on the scales but described this as normal medical practice and denied grabbing Patient A's hand or putting Patient A under pressure. 24. Patient A's evidence about the consultation on 22 September 2018 was that "he tried making me go on to the scale." Patient A also described an earlier incident when Dr Chahoud "coerced" her onto the scales. This reflected Patient A's contemporaneous complaint, when, describing the beginning of the consultation on 22 September 2018, Patient A said "he then proceeded to grab my arm and coerce me to go on the scale." In cross-examination Patient A confirmed that this coercion involved physical contact. 25. In determining whether the Tribunal is comfortably satisfied that Dr Chahoud's conduct in this regard was "inappropriat[e]," the Tribunal should have regard to both of Dr Golding's reports. When commenting on the allegation that Dr Chahoud "coerced" Patient A, Dr Golding initially said "I am supportive of efforts to determine weight (and height) as part of a clinical assessment of a patient with suspected bulimia. (Specifically referred to evidence can be found at Exhibit A1, tab 9 (first statement of Patient A) [16]. Exhibit A1, tab 9 (first statement of Patient A) [11]. Exhibit A1, tab 4 (Patient A's contemporaneous complaint), p 3. Exhibit A1, tab 15 (first statement of Dr Golding), p 4.) 26. When the HCCC asked Dr Golding to clarify whether it was appropriate to "physically coerce" the patient, Dr Golding said that if "the patient clearly refused the intervention," that would fall significantly below the standard.20 27. There is no dispute that physical coercion, understood to refer to physical contact that is clearly refused by the patient, is inappropriate for a general practitioner attempting to weigh a patient. However, it is submitted that the evidence in this regard falls short of comfortably satisfying the Tribunal that Dr Chahoud's efforts to weigh Patient A on 22 September 2018 were "inappropriate," and therefore an established particular of Dr Chahoud's admitted unsatisfactory professional conduct." 1. In relation to the above submission by the Respondent, we are comfortably satisfied that the Respondent used physical force to move Patient A to his scales so she could be weighed. 2. We accept the evidence of Patient A and Dr Golding relating to this Particular. We also accept the submission made by the HCCC. We note that in cross-examination it was not put to Patient A that the Respondent did not pull her by her arm in order to have her alight the scales in his consultation room. 3. We find the evidence establishes to our satisfaction that on 22 September 2018 the practitioner inappropriately grabbed Patient A's arm and used physical force to get Patient A to use weighing scales, and that act falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience to that of the Respondent. Complaint One, Particular 9: On 22 September 2018 the practitioner breached professional boundaries with Patient A by placing his hands on Patient A's shoulders and attempting to kiss Patient A at the end of the Consultation. 1. The Respondent does not admit this Particular on his Amended Reply document. 2. The HCCC made the following submission on this Particular. 131 On 22 September 2018 Patient A told Ms Dunsmore at headspace "as i tried to leave he grabbed me and tried to kiss me on the lips and i dodged it and pecked him on the cheek and he asked me if i still felt uncomfortable and i hesitated i said i would leave. he kept asking me to come back. all throughout this he could see my body language was uncomfortable as well as my facial expressions." 132 Patient A in her statement at [19] says "As I was leaving he tried to hug and kiss me again. His hands were on my shoulders and I turned away at the same time. My hands were down around my side. When he tried to kiss me, I turned my head and he kissed me on the cheek. He did it very fast and as he did it I was turning. After he tried to kiss me I wanted to get out of there. I was very "squirmish". He asked if I still felt uncomfortable. I just told him that I was going to go and then left." 133 Dr Golding in his expert report dated 1 October 2020 observes "In my view, these actions fall significantly below the standard." 134 Patient A in her further statement dated 5 November 2021 refers to her evidence in her previous statement dated 25 October 2019 at [19] and gives evidence at [3]-[6] as follows: "Before the incident at the end of the consultation Dr Chahoud had kissed me once during the consultation. With paragraph [19] I do not now recall Dr Chahoud kissing me on that occasion, but he did at least attempt to kiss me. I do not now recall whether, in an attempt to be polite, I dodged his kiss and kissed him on the cheek or that he actually kissed me. I do recall the consultation room door was closed for the consultation and I had to open it after this incident to leave. This consultation took about 20-30 minutes." (Emphasis added) 135 The Respondent denies this particular. 136 The Tribunal should prefer the evidence of Patient A to that of the Respondent and find Complaint 1 particular 9 proven. 1. In the cross-examination Patient A was not challenged in relation to her evidence on this Particular. The particular has two limbs to it. First that the Respondent placed his hand on Patient A's shoulder. Next that he attempted to kiss Patient A. In her last statement Patient A places this incident as occurring in the consultation room and before the door was opened to enable her to leave the consultation room. 2. The oral evidence given by the Respondent about any hug, or touching of Patient A's shoulder or any kiss given to Patient A we have set out earlier in these reasons. In the s 150 hearing he denied all the allegations of Patient A in relation to his touching, hugging or kissing her. In his statement R2 he admits he hugged Patient A on 22 September 2018. He said he may have tried to kiss Patient A as she was leaving the consultation room. In his oral evidence the Respondent agreed he put his hand on Patient A's shoulder and that he hugged her. He said he had kissed her after she had kissed him first. 3. The Respondent made a written submission in relation to this Particular. His submission is as follows: "Particular 9 – kiss at the end of the consultation 28. In assessing this particular the Tribunal should have regard to Patient A's supplementary statement, where she said "I do not now recall whether, in an attempt to be polite, I dodged his kiss and kissed him on the cheek or that he actually kissed me." 29. It was clearly Patient A's evidence that Dr Chahoud had already kissed her during the consultation, before the incident towards the end of the consultation, in respect of which she no longer recalls whether "I dodged his kiss and kissed him" or "he actually kissed me." The Tribunal should make findings in terms of admitted particular 2. Dr Chahoud's professional conduct was plainly unsatisfactory regardless of which of the two possibilities offered by Patient A is accepted. That conclusion may be reached on the basis of Dr Chahoud's admissions without also making findings in terms of particular 9. 1. This Particular addresses in part, an attempted kiss by the Respondent as opposed to an actual kiss. We are comfortably satisfied Patient A understood that the Respondent was attempting to kiss her and that his actions were consistent with such an attempt. Patient A, in the light of the Respondent's earlier conduct of kissing Patient A, was reasonable in concluding that he was attempting to again kiss her at the time complained of. 2. As we have said we prefer the evidence of Patient A to that of the Respondent where there is any conflict. 3. We accept the submission of the HCCC on this Particular. 4. We find the evidence establishes, to our satisfaction, that on 22 September 2018 the practitioner breached professional boundaries with Patient A by placing his hands on Patient A's shoulders and attempting to kiss Patient A at the end of the Consultation and that act falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience to that of the Respondent. Complaint One, Particular 10: The practitioner inappropriately sent text messages to Patient A on the following dates and times, without therapeutic purpose and in breach of his obligation to maintain professional boundaries with Patient A: (i) 22 September 2018 at about 14:43 hours; (ii) 22 September 2018 at about 15:14 hours; (iii) 22 September 2018 at about 16:41 hours; (iv) 22 September 2018 at about 17:29 hours; (v) 24 September 2018 at about 14:30 hours; (vi) 24 September 2018 at about 16:30 hours. 1. The Respondent admits this Particular in his Reply document. The Respondent provided a submission addressing this Particular. His submission is: "Particular 10 – text messages 30. Particular 10 is admitted. It is submitted that the Tribunal should further find, in relation to this particular, that there was no logical reason for Dr Chahoud to send Patient A a text message in Arabic. This irrational behaviour, captured in the documentary evidence, was consistent with Dr Chahoud's written and oral evidence that at the time he was panicking about the consequences of his professional misconduct. The Tribunal is invited to accept that evidence in assessing the seriousness of this complaint, and of Complaint 3, as explained further below." 1. We find the evidence in relation to the Text messages sent by the Respondent perplexing. The motivation for sending the Text messages is not clear to us. On the one hand it is possible, as the Respondent submits above, that he was panicking. On the other hand to send a Text message which was surrounded by "love hearts" may well have indicated a motivation other than panic. 2. The HCCC provided the following submission on this Particular: "137 The Respondent admits this particular. 138 On 16 October 2018 the Medical Council held a s150 hearing in relation to the Respondent's conduct for Patient A. At such hearing the Respondent relied upon a statement from his wife dated 12 October 2018 stating that his wife had spoken to the Respondent about Patient A, including that on 22 September 2018 the Respondent's wife had found the Respondent's phone "under the cushion" in their loungeroom and that "I texted this "[Patient A]" in Arabic not knowing if I had the right person or not. When asked who it was I texted back "Hazem". I was shocked with her text, "Why did you try to kiss me?" And all I replied was "Really". I deleted them immediately." 139 The Respondent's wife in such statement went on to say "I foolishly sent her another text Monday afternoon in an attempt to get more information from her … when Hazem received the phone call from the Medical Council regarding her complaint against him, it only made me more convinced that she wanted to frame him and make a more elaborate story to the Board of Studies." 140 The HCCC issued Summons for the Respondent's Vodafone/Hutchison phone records in the proceedings. 141 On 1 April 2021, 24 May 2021 and 26 May 2021 the HCCC served on the Respondent an extract from records produced on Summons by Vodafone/Hutchison (Tab 11) and google maps printouts (Tab 12). Dr Chahoud's counsel accepted at the hearing that Dr Chahoud received the records at about this time, whether he remembers it now or not. 142 On 28 September 2021 the Respondent served his original Reply and Statement. This was the first occasion that the Respondent admitted Complaint 1, particulars 2, 5 and 10. 143 The Respondent's Statement dated 24 September 2021 acknowledged at paragraphs 76 to 83 that it was he who sent the text messages to Patient A. Nowhere in his Statement does he express any remorse, reflection and/or acknowledge the inappropriateness of his conduct in misleading the Medical Council and HCCC prior to this. 144 A copy of the text messages can be found in HCCC BOE Tab 8 and read as follows: Saturday, 22 September 2018: Respondent: "[Patient A]" Patient A: "Who is this?" Respondent: Arabic words [Translation: Don't you know?] Patient A: "English please" Respondent: "Still in surgery [Patient A]" Respondent: "Hazem" Patient A: "Why did you try and kiss me today?" Respondent: "Really ?" Patient A: "Yeah" Monday, 24 September 2018: Respondent: "working til 8 pm" [We note that the text "working til 8 pm" was commenced and concluded with "love heart" emojis.] Patient A: "Please stop I told you I felt uncomfortable" Respondent: "Sorry …" 145 On 22 September 2018 Ms Dunsmore at headspace records "The young person reported she had felt very nervous about seeking a GP to talk about her eating disorder and after the experience today has lost trust and confidence in the medical profession and feels afraid to return to a GP to discuss her serious current health concerns relating to her eating disorder." 146 The Respondent's statement at [78]-[83] says: "I was afraid that Patient A would make a complaint about me so I decided to send her a text message. I got her phone number from the practice's medical records. I was confused and panicked about Patient A kissing me after I inappropriately hugged her. I thought that Patient A might explain why she had kissed me or put my mind at ease by saying that she would not complain about me. I can't remember why I sent Patient A message in Arabic. I knew that she did not speak Arabic. I can only say that I was so panicked that I was not thinking clearly when I sent the message. When Patient A asked "Why did you try and kiss me today?" I said "Really?" because I thought she had kissed me. On Monday 24 September 2018, I was still panicked and confused so I sent another message to Patient A to try to understand if she was going to complain about me or not. I knew that this was an inappropriate breach of professional boundaries but I was desperate for information which might mean that I could stop worrying about a complaint. When Patient A said "Please stop" I realised that I was making the problem much worse and stopped all communication with her." 147 Dr Golding in his expert report dated 1 October 2020 observes : "The texts include a love heart emoji and the words "working till 8 pm". This communication is clearly not intended to be therapeutic or to be for the benefit of [Patient A]. S 8.2.1 of the Code states that good medical practice involves: "Maintaining professional boundaries" In my view, sending non-therapeutic and emotionally laden texts to a vulnerable 17-year-old girl is significantly below the standard." 148 The Tribunal should accordingly find this particular proven." 1. The sending of these text messages to Patient A was, according to the Respondent done in panic. He described his actions almost in terms of "desperate actions" motivated by a sudden realisation that Patient A might lodge a complaint about his conduct towards her. That desperate action gave rise to his fabricating evidence to supply to the Medical Council for the s 150 hearing and his perpetuating the fabrication in his oral evidence before that Medical Council inquiry. The aspect of his dishonesty and the fabrication of evidence and deliberate misleading of the Medical Council is the subject of Complaint Three and Complaint Four. We will address our findings on those matters as we consider whether those Complaints are established. 2. We do accept the submission of the HCCC on this particular. 3. We find the evidence establishes, to our satisfaction, that on 22 and 24 September 2018, the practitioner inappropriately sent text messages to Patient A on the dates specified in the Particular, without therapeutic purpose and in breach of his obligation to maintain professional boundaries with Patient A. 4. We are satisfied the sending of the text messages falls significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience to that of the Respondent. Conclusion and Finding on the establishment of Complaint One. 1. The Respondent admits in his reply document that he is guilty of unsatisfactory professional conduct as described in s 139B(1)(a). He is silent as to whether he is guilty of unsatisfactory professional conduct as defined by s 139B(1)(l). That section requires a finding that the Respondent engaged in improper or unethical conduct relating to the practice or purported practice of profession. 2. We are satisfied that the evidence we have accepted, firmly establishes the Respondent is guilty of unsatisfactory professional conduct including conduct as defined in s 139B(1)(l) namely that he engaged in improper conduct relating to the practice or purported practice of the profession of a medical practitioner. Complaint Two 1. This Complaint alleges the Respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. 2. In the Amended Complaint document, only Particular 2 a. is relied upon. Complaint Two, Particular 2: From 30 June 2018 to 22 September 2018 the practitioner failed to properly manage and treat Patient A's complaint to him of having bulimia in that: (a) the practitioner had no experience of treating bulimia and failed to seek specialist advice or assistance during the period he was treating Patient A. 1. In the Amended Reply the Respondent admits he is guilty of unsatisfactory professional conduct as defined by s 139B(1)(a) only. He restricted his admission in relation to Particular 2 a to the following: "The practitioner admits that he failed to properly manage and treat Patient A's complaints to him of having bulimia in that he failed to seek specialist advice on that condition." 1. The Respondent provided a written submission addressing this Complaint. He submitted as follows: "Complaint 2 31. As with complaint 1, Dr Chahoud's reply admits this complaint only to the extent that it relies on s 139B(1)(a) of the Health Practitioner Regulation National Law Law (falling below the standard). Unlike complaint 1, the allegation of "improper or unethical conduct" is not admitted in relation to complaint 2. 32. Dr Chahoud accepts that it was unsatisfactory for him to fail to seek specialist advice or assistance during the period he was treating Patient A, but submits that this conduct would not be characterised as improper or unethical, as opposed to poor practice." 1. The HCCC provided the following submission on this Complaint and Particular 2: "149 The Respondent admits this particular. 150 Dr Golding's expert report dated 1 October 2020 say as follows : "Dr Chahoud had not previously treated bulimia. The appropriate course of action for a medical practitioner when treating a potentially serious condition without benefit of training or experience in the condition, is to ask for help. In this case, there is an added factor of the young age of the patient and the possibility of social and family isolation, evidenced in this case as [Patient A] has attended without her parents or friends.… During this time, Dr Chahoud had obtained history from his patient that was consistent with a high risk of both medical and psychological harm resulting from bulimia. [Patient A] had disclosed that she was binge eating then vomiting, that she was tired, that she had dry skin and that her hair was falling out. Other information available that supported a serious condition were the blood test results showing low levels of both Vitamin B12 and D and abnormal thyroid function tests. (The results are indicative of decreased activity of the thyroid rather than increased activity as diagnosed from these results by Dr Chahoud). After eliciting this information, I would expect Dr Chahoud to have sought advice from a paediatrician, eating disorder clinic, child psychiatrist or if unable to obtain advice, to have referred [Patient A] to an Emergency Department. … According to the consultation notes of Dr Chahoud, a referral for [Patient A] to a psychologist and nutritionist was provided on the fourth presentation. In my view, a referral to a psychologist and nutritionist should have been part of the response at the first consultation after disclosure of an eating disorder with consistent history elicited of binge eating with vomiting, weight ambivalence and attending on her own without parents. In November 2018, Dr Chahoud received notification from both the dietician and psychologist advising him that [Patient A] had not attended for consultation. There is no record that Dr Chahoud has noted the letters or made any follow up of the wellbeing of [Patient A] after receiving this information. In my view, the adequacy of Dr Chahoud's care and treatment of [Patient A] is significantly below the standard." 151 Dr Golding in his expert report goes on to observe: "In my view, continuing a therapeutic relationship with [Patient A] over multiple consultations without involvement of multidisciplinary specialty services is below the standard." 152 Dr Golding was not challenged. 153 The Tribunal should accordingly find Complaint 2 particular 2 proven. 1. We note that Dr Golding, in oral evidence, said that in retrospect he would not have included the sentence "(The results are indicative of decreased activity of the thyroid rather than increased activity as diagnosed from these results by Dr Chahoud)". 2. We find that the Respondent did fail to properly manage and treat Patient A's complaints to him, of having bulimia. We find the proper treatment should have included the actions set out by Dr Golding in his evidence as set out above. We find Complaint Two established within the meaning of s 139B(1)(a) of the National Law. 3. To the extent that the Respondent appears not to admit that at the time he consulted with Patient A, for the first time, he "had no experience of treating bulimia", we find on the evidence before us, that fact is established. Complaint Three. Particulars 1, 2 and 3. 1. This complaint alleges the Respondent is guilty of unsatisfactory professional conduct as defined by s 139B(1)(l) of the National Law. We have set out the Particulars of this Complaint earlier in these reasons. The Particulars all detail complaints of dishonesty by the Respondent in relation to the fabrication of evidence and the giving of false evidence. 2. In his Reply document the Respondent admits the Complaint. He admits Particulars 1 and 2. In relation to that admission the Respondent provided a submission. His submission we set out in part below as most of the submission addressed matters which really are more relevant to "Stage 2" matters (imposition of any necessary Protective orders). To the extent the submission addressed directly this complaint and Particulars we note the following was submitted: "Complaint 3 33. Dr Chahoud admits that he misled the Medical Council at the s 150 and his conduct in this regard was improper and unethical. These submissions outline the context in which this unethical conduct occurred, which is relevant to the Tribunal's assessment of whether the conduct might be repeated, and accordingly relevant to the question of appropriate protective orders. 34. These submissions also explain the relevance of the qualification in Dr Chahoud's reply and oral evidence concerning particular 3, that he did not review or approve the contents of his former solicitor's letters to the HCCC before they were sent. 1. In the submission the Respondent also identified all of the evidence which he said related to this complaint and Particular. We have noted the references set out there and do not repeat same here. 2. In relation to Particular 3 the Respondent admits that the letters identified in Particular 3 were sent by his former solicitor and contained false information which reflected his evidence described in Particular 2, but states that he did not review or approve the contents of the letters before they were sent. 3. We do not understand exactly what the Respondent is intending to convey to the Tribunal by the wording of his Reply to Particular 3 of Complaint Three. He does not say that the letters did not reflect his instructions to his solicitor at the time the letters were created. He did not say that he had informed his solicitor he had fabricated the evidence which was incorporated into the letters. 4. The most that the Respondent has said about his relationship with his former solicitor is that the solicitor, in effect, gave him no hope of being able to continue to practice in the light of the allegations made by Patient A. His evidence was that his then solicitor had said, words to the effect of: "you are finished. You may as well not attend at the s 150 hearing with the Medical Council." 5. To the extent that it may be suggested, in the evidence of the Respondent, that he had told the truth to his former solicitor and that solicitor was complicit and party to the fabrication of false evidence, we reject that allegation. There is no clear statement of such a circumstance by the Respondent and there is no other evidence to establish such a serious allegation. Any solicitor who engaged in such conduct would know and understand, the professional implications for him or herself, of such an action. 6. We have considered the detailed submission by the HCCC in relation to this complaint which are lengthy and we do not repeat same here. We have set out extensively in these reasons detail of the evidence of the Respondent before the Medical Council s 150 hearing. We have set out detail of the letters the Respondent's solicitor sent the HCCC dated 7 November 2018 and 13 March 2019. 7. We are satisfied that the Complaint Three is established. We find the Respondent is guilty of unsatisfactory professional conduct as defined by s 139B(1)(l). Complaint Four: 1. This complaint is made pursuant to s 139E of the National Law. It alleges the Respondent is guilty of professional misconduct. To establish the complaint it is necessary for us to find either that the Respondent is guilty of either: (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The Respondent admits this Complaint Four and in the written submission stated: "Dr Chahoud accepts that his conduct as a whole warrants a finding of professional misconduct. No objection is taken to AS [170] – [178]." 2. To support this Complaint the HCCC repeats the Particulars relied upon for each of Complaints One, Two and Three. The Particulars of Complaints One and Two are relied upon cumulatively and the Particulars to Complaint Three are relied upon individually and cumulatively. The point made by the HCCC by the framing of Particular 3 to Complaint Four is that the HCCC contends each of the Particulars to Complaint Three evidence such serious misconduct that each would, by itself alone, warrant a finding against the Respondent pursuant to s 139E of the National Law. 3. The Respondent admits he is guilty of professional misconduct under s 139E of the National Law. He, however, restricts that admission to the second limb of s 139E, namely; "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." 4. The HCCC pursues a finding that the Respondent is guilty of professional misconduct under both subparagraph (a) and (b) as defined by s 139E of the National Law. 5. The HCCC provided an extensive submission addressing this Complaint Four. Part of that submission we set out below: 174 In determining whether a finding can be made of professional misconduct, the Tribunal must determine whether as outlined in HCCC v Perroux [2011] NSWDC 99 at [18] "when the Respondent's contraventions are considered as a whole, they are of a sufficiently serious nature to justify suspension or deregistration". 175 The Respondent's conduct was of such a nature that the unsatisfactory professional conduct displayed by him is of a sufficient nature to fall within the definition of "professional misconduct" pursuant to s139E of the National Law. 176 In Health Care Complaints Commission v Selim [2021] NSWCATOD 27 the Tribunal noted: "It is trite to say that the public requires and expects from a medical practitioner transparently honest conduct in every aspect of their dealing with the public, a patient and with other sections of healthcare organisations/structures. Every aspect of the medical practitioner's actions, undertaken on behalf of a patient, must be shrouded in transparent honesty. This is so fundamental to the trust the public needs to have in a medical practitioner, that a failure in this aspect of the patient/practitioner relationship will, in our view, generally satisfy the requirement of section 139E(a) of the National Law. There could be no argument, which we can envisage, to contradict the proposition that the public need to be protected against exposure to medical practitioners who lack integrity." 177 The following passage was relied upon in the matter of HCCC v Richard Allen (Matter No 40016 of 2009, 2 July 2010). At paragraph 64 the Tribunal in that matter observed: "Dr Allen had an obligation to ensure that information provided to the Board was accurate. This Tribunal expects that any medical practitioner appearing before it or the Board or when called upon to make a statement that is to be relied upon before the Board will be honest and frank in his/her dealings with the Board. Any limits or uncertainty in their knowledge should be made clear." 178 Accordingly, on the above facts and in accordance with the evidence, the Tribunal should find that the Respondent is guilty of professional misconduct pursuant to s 139E of the National Law. 1. The HCCC referred to the decision of the Tribunal in Health Care Complaints Commission v Selim [2021] NSWCATOD 27. In relation to that decision we note a search of NCATOD published decisions shows publication is restricted. We would however adopt part of the words said to have fallen from the Tribunal in that determination namely: "It is trite to say that the public requires and expects from a medical practitioner transparently honest conduct in every aspect of their dealing with the public, a patient and with other sections of healthcare organisations/structures. Every aspect of the medical practitioner's actions, undertaken on behalf of a patient, must be shrouded in transparent honesty. This is so fundamental to the trust the public needs to have in a medical practitioner, that a failure in this aspect of the patient/practitioner relationship will, in our view, generally satisfy the requirement of section 139E(a) of the National Law. There could be no argument, which we can envisage, to contradict the proposition that the public need to be protected against exposure to medical practitioners who lack integrity." 1. The evidence we have set out in these reasons and the findings we have made satisfy us that the Respondent is guilty of professional misconduct as defined by both s 139E(a) and (b) of the National Law. The findings made against the Respondent by us, demonstrate seriously unsatisfactory professional conduct on the part of the Respondent. The seriousness of that conduct is such that we conclude it justifies the suspension or cancellation of the practitioner's registration. It is not appropriate to rank the seriousness of his conduct in each of the Complaints made, as established by our findings, however, we find the conduct of breaching professional boundaries through actions which have no legitimate medical purpose are amongst the most serious of examples of professional misconduct which is likely to be complained of by a patient. Further, and of no less serious nature, we find fabricating evidence to place before the Medical Council in a s 150 hearing and then continuing to lie about a practitioner's actions and role in alleged conduct, complained of in that hearing, is clear evidence of professional misconduct. 2. Having made the findings set out above we now turn to consider the imposition of Protective Orders. Determination of Stage 2, The imposition of Protective Orders. The Additional evidence relevant to Stage 2. 1. Some of the evidence provided by the Respondent in Exhibit R2, addresses facts and circumstances of the Respondent which require consideration under Stage 2. 2. The Respondent was born in Syria and is 60 years of age. He received his medical degree in Damascus. During year 4, 5 and 6 of his medical degree he completed rotations in surgery, medicine and gynaecology. After graduation he worked for two years in a military hospital. The Respondent then opened a medical practice in Syria which he operated for three years. 3. The Respondent married his wife, then an Australian citizen, in 1994. Following the marriage, the Respondent commenced to reside in Australia with his wife. 4. In 1996 the Respondent's first son was born. 5. Between 1996 and 2000 the Respondent was studying medicine at Liverpool and Westmead Library. 6. In 2000 the Respondent's second son was born. In that same year the Respondent undertook the bridging course conducted by the Australian Medical Council. He did that at Queen Elizabeth Hospital, Adelaide. 7. In 2001 the Respondent and his family moved to Launceston and worked as a resident medical officer at Launceston General Hospital. 8. In 2002 the Respondent moved his family to Swan Hill in Victoria where he found employment at Swan Hill District Hospital. 9. Later in 2002 the Respondent moved his family to Bermagui, NSW where he purchased, with another doctor a practise. 10. On 23 October 2002 the Respondent obtained general registration to practice medicine in NSW. 11. Between November 2002 and December, 2011 the Respondent practiced as a solo rural medical practitioner in Bermagui. He was the only doctor in that town and his wife managed the practice. 12. In 2012 the Respondent successfully completed the FRACGP exam. 13. In September 2012 the Respondent moved his family to Sydney (then a wife three children) where he practiced as a GP at Liverpool until December 2015. He was one of five practitioners working in the practice. 14. In 2016 the Respondent moved to Dubai with his family. He unsuccessfully sought work there. He returned to Australia about six months later and obtained employment in June 2016 at Family Healthcare Medical Centre, Liverpool, NSW. He practiced there until December 2016. 15. Between February 2017 and March 2018 the Respondent worked at different medical practices in NSW. 16. In April 2018 the Respondent commenced work at the Complete Medical Centre in Campbelltown. He was one of four medical practitioners working in the practice. He usually worked five days a week. 17. On 16 October 2018 the Respondent attended the hearing before the Medical Council. At the conclusion of that hearing the Medical Council determined to impose conditions on the registration of the Respondent. Those conditions (as set out at Tab 2 of Exhibit A1) were imposed from 23 October 2018 and included requirements for category B supervision in accordance with the Medical Council of NSW's Compliance Policy – Supervision. It also restricted the Respondent's practice by requiring that he does not: "[perform] consultation, examine, treat or perform any procedures on any female." There were other conditions also imposed. 18. When the conditions were imposed on the Respondent in October 2018 it was necessary for him to find an acceptable supervisor. He found a supervisor and commenced practice at Illawarra Medical Services in Berkeley and commenced practice there. He worked there under the supervision of Dr Merna Jolver for 2.5 years. 19. In April 2021 the Respondent ceased work at Berkeley. He had experienced neck pain and his surgeon advised him to stop driving. His wife then commenced to drive him to Berkeley to work. That proved to be unsustainable. He has not worked since that time. 20. The Respondent is now in the Health Program at the Medical Council (formally known as the Impaired Registrants Program) (IRP). Exhibit R3 is a copy letter from the Medical Council of NSW dated 22 February 2022. It requires the Respondent to attend at an inquiry before the Impaired Registrants Panel on 7 March 2022. 21. That IRP requires the Respondent to be assessed, when required, by psychiatrist Dr Artherton. The Respondent tendered as Exhibit R4 a copy report, dated 10 June 2021 to the IRP by Dr Artherton on the Respondent. The Respondent also tendered as Exhibit R5 another report of Dr Artherton dated 4 February 2022. 22. The report in Exhibit R4 discloses the following, amongst other information. 1. Dr Atherton saw the Respondent on 7 June 2021. The report background information discloses that the Respondent "first became involved with the Council in 2011 because of inappropriate prescribing stemming from an underlying opiate addiction and resulted in him entering the Medical Council's Health Program. The Respondent appeared before the IRP twice in 2011 and a third time in 2012. Strict practice conditions were imposed. The Respondent was thereafter regularly reviewed until June 2016 when it was recommended that he exit the program. 2. In interview, Dr Atherton noted information provided which included the following. Dr Chahoud reported that he was extremely stressed by his current circumstances and has low mood. He was unable to find employment because of the onerous conditions. He was now extremely anxious. His sleep was "much worse". He experienced panic at times. "He ruminates a lot about the incident 3 years ago and why there were allegations made about his behaviour and why she 'made things up' in this regard." (our emphasis.) He considers there has been "too much punishment". 3. Dr Atherton recorded Dr Chahoud's explanation of what had given rise to the complaint made by Patient A. In that explanation we note the Respondent did not admit or acknowledge any inappropriate acts or wrongdoing on his part. Dr Atherton recorded: "His explanation of this incident was that the Medical Council did not believe him." 4. In mental state examination, Dr Atherton noted Dr Chahoud was anxious and had an obvious leg tremor. His mood was subjectively depressed. Objectively he was anxious but reactive and euthymic. His insight was such that he felt he was depressed and hopeless. 5. Under the heading "Impression:" Dr Atherton noted the Respondent "has a significant adjustment disorder with depressed mood and anxiety secondary to the loss of his job, financial issues and ongoing pain. He has opioid dependence (severe substance use disorder) which is stable on maintenance therapy. He has nicotine use disorder which is moderate, he has chronic pain. The differential diagnosis is one of major depressive disorder. He has a significant mood disorder. 6. Under the heading "Opinion" Dr Atherton said: "In light of this I believe that Dr Chahoud is an Impaired Practitioner as defined by the National Law with current evidence of significant adjustment disorder with depressed mood and possibly major depressive disorder which is only likely to increase in severity given the likely increase in stressors he is to face in the foreseeable future." …"He is extremely isolated and has very limited professional supports in place despite his mood deteriorating and significant pain."…"I believe he will benefit fromn being mandated to engage in structured and professional care." 1. Dr Atherton made recommendations which included that Dr Chahoud is suitable for the IRP. 1. Exhibit R5 sets out a very recent report from Dr Atherton which is dated 4 February 2022 and addressed to the Medical Council. In that report we note: 1. Dr Atherton saw the Respondent on 4 February 2022. 2. Dr Atherton set out a summary of his opinion from his earlier report. 3. Dr Atherton noted that Dr Chahoud appeared positive around the offer of employment he had received. He noted: "The plan will be to start at around 2 to 3 days per week and he will most likely rent a room in Dapto while he is working and travel back at the weekends." …. "He is excited about the work and this has led to a transformation in his mood, sleep and anxiety levels to the point where he now feels positive and is enjoying life again"…… "His sleep last year was extremely poor but has improved much since the the job offer came through. …. He states quite clearly that when he "got the job everything changed". He has not seen an addiction specialist as was recommended and has not engaged with a psychologist or pain specialist….despite the Medical Council stating that they told him they put him on the Program he denies that he ever received any information regarding this. 4. Under the heading "Mental State Examination" Dr Atherton reports: "There was no formal thought disorder and the content of his thoughts and perceptions was relatively normal, his mood he describes as good and objectively he was euthymic."… "He has good insight into the role of getting back to work and reducing his stressors and his overall mental health but has not engaged a psychologist to help with this despite this being discussed with him at the initial session last year." 5. Dr Atherton set out his impression of the Respondent as: having an opiate use disorder of severe type in currently maintained in maintenance via Suboxone a long-acting opiate….He has an adjustment disorder with depressed mood and anxiety, which is currently in remission secondary to the reduction in his stressors about financial issues and unemployment. 6. Dr Atherton provided recommendations which included that the Respondent should be enrolled in the IRP. 1. In the second report from Dr Atherton we note the Respondent gave him no information about his changed position so far as this proceeding was concerned. He did not tell him that for the hearing before the Medical Council in October 2018 he had fabricated his evidence and maintained denials of the allegations made by Patient A against him. That he had deliberately falsified his evidence when asked directly did he kiss or hug Patient A during the consultations he conducted with her, in particular on 22 September 2018. There was no information given to Dr Atherton by the Respondent that his lawyer had advised him "He was finished" as a medical practitioner because of the allegations made by Patient A. The only reference to discussion about the forthcoming hearing before us is: "Unfortunately he remains extremely vulnerable to ongoing and future stressors including the HCCC investigation which precipitated episodes of distress and tearfulness when discussing it in interview." The submissions of the Parties on Protective Orders 1. The HCCC provided written submissions which addressed the orders it sought as Protective Orders. Those submissions contained some lengthy extracts from decisions to which the HCCC referred. Most of those decisions are well known to the Tribunal and we will therefore note the reference to those decisions however, we will not necessarily set out all of the quoted portions from those decisions. The submission of the HCCC on Stage 2. Appropriate Protective Orders 183 The HCCC seeks that the Respondent's registration as a Medical Practitioner be cancelled for a period of 3 years. 184 The HCCC seeks the following protective orders: 1. Pursuant to s149C(1)(b) of the National Law the practitioner's registration as a medical practitioner is cancelled. 2. Pursuant to s149C(7) the practitioner may not apply for a review of the cancellation order for a period of three years from the date of the decision. 3. The Commission is awarded its costs as agreed or assessed. 4. A non-publication order is made over Patient A. 185 The HCCC submits that the Respondent's conduct in the present case is clearly serious and capable of attracting the proposed protective orders. 186 The Respondent's denials of the more serious aspects of his alleged conduct towards Patient A for Complaint 1, also evidence his ongoing lack of insight and failure to acknowledge the gravity of his conduct and impact that his conduct had on Patient A. 187 The Respondent has not provided character references or evidence of his recent job offer. He did not make Dr Ooi available for cross examination, despite his pending application to the Council to have Dr Ooi supervise him, which is yet to be approved. His evidence about his proposal to work with Dr Ooi was vague and non-specific. 188 The Respondent has also last year been readmitted to the Impaired Registrants Panel (IRP) by the Council and his involvement is ongoing, including seeing Dr Atherton, psychiatrist on a regular basis. 189 The Respondent did not provide any evidence in relation to his mental health, including to address the significant insight issues raised in these proceedings. His evidence was that other than seeing Dr Atherton through the IRP, he has not received any recent treatment for mental health. The Tribunal should find that the Respondent has not taken adequate steps to address his significant insight issues in these proceedings and his insight continues to pose a risk to the health and safety of the public. 190 The Tribunal should find on the evidence that there are no protective orders open on the evidence that will protect the health and safety of the public. 191 In Health Care Complaints Commission v Buys (No 3) [2020] NSWCATOD 102 at [17]: "The respondent also emphasised that he had been punished by the publicity which had surrounded the finding of professional misconduct which had been made against him, the impact that this had had on his family and his practice, and the damage sustained to his reputation in the local area where he had been practising. Whilst these are unfortunate consequences for the respondent and his family, it must be emphasised that his circumstances are caused solely by the fact that he engaged in a course of misconduct of a serious kind, justifying a finding that it constituted professional misconduct. To this extent his authorship of his own misfortune is irrelevant in determining what protective orders should be made." 192 In Health Care Complaints Commission v Do [2014] NSWCA 307 Meagher JA with Basten JA agreeing found at [35] as follows: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise." 193 In Lee v Health Care Complaints Commission [2012] NSWCA 80 ("Lee") Barrett JA with McFarlan JA and Tobias AJA agreeing found at [34] as follows: "In cases of the present kind, therefore, this Court should proceed on the basis that: (a) comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern; (b) such a range or pattern, even when discernible, cannot be regarded as a precedent indicating what is "correct"; (c) the range or pattern is, at best, a reflection of the accumulated experience and wisdom of decision-makers; (d) the range or pattern will potentially be of value only if it is possible to gather from it an appreciation of some unifying principle; (e) since the predominant consideration is the protection of the public, a decision can only be made by reference to the facts of the particular case and by considering what measures are needed to ensure that the future behaviour of the particular practitioner is shaped in a way that is consistent with that protection; and (f) the Medical Tribunal, as a specialist tribunal, brings special skill and experience to the task of formulating protective orders." 194 In Lee Barrett JA at [20] to [21] considered the exercise of powers by Tribunals to make protective orders and concluded: "Essential to a proper assessment of a Tribunal's discretionary judgement in a disciplinary jurisdiction in accordance with these criteria is a clear understanding of the nature of the jurisdiction and an appreciation of the purpose of orders made in exercise of it. These matters are explained by Basten JA in Director General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102: (2009) 74 NSWLR 523 at [83]. His Honour made several important points: 1 The specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual. 2 That is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order. 3 The punitive effects may be directly relevant to the need for protection so that, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood, may have opened the eyes of the individual concerned to the seriousness of his or her conduct so as to diminish significantly the likelihood of its repetition and to produce a level of insight into his or her own character or misconduct which did not previously exist. The task of the Tribunal (and of this Court on appeal) centres not on punishment as such but on the protection of the public and the maintenance of proper professional standards." 195 In Health Care Complaints Commission v Duggan [2015] NSWCATOD 142 the Tribunal concluded at [42]-[46] as follows: "The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in health professions. In Re Parajuli [2010] NSWMT 3 the former Medical Tribunal determined that in exercising its functions under the former Medical Practice Act 1992 (NSW) (which similarly had an objects provision concerning the paramount purpose of protecting the health and safety of the public) that it "may consider five matters bearing on protection": (a) any need to protect the public against further misconduct by the practitioner; (b) the need to protect the public through general deterrence (of other practitioners); (c) the need to protect the public by reinforcing high professional standard and denouncing transgressions; (d) the maintenance of public confidence in the profession; (e) the desirability of making available to the public any special skills possessed by the practitioner. This statement was approved in Health Care Complaints Commission v Bours (No 1) [2014] NSWCATOD 113 at [24] applying the National Law. In HCCC v Do [2014] NSWCA 307 Meagher JA, with whom the other members of the New South Wales Court of Appeal agreed, reflected the first four of those factors when he stated: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That object is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practice, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice." [35] In HCCC v Do, the Court of Appeal held that the Tribunal had fallen into legal error by focusing only upon the risk of recurrence of misconduct of the relevant practitioner and not upon the public interest in denouncing unacceptable conduct, nor the full implications of the findings that the practitioner's skill and judgement had fallen significantly below the standard reasonably expected: [39]. In so doing the Tribunal had failed to give proper consideration to the protection of the health and safety of the public as required by s3A and 4 of the National Law: [40]." 196 In Prakash v HCCC [2006] NSWCA 153 Basten JA at [91]: "The purpose of any order consequent upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However the public interests include indirectly, the standing of the medical profession and the maintenance of public confidence in the high standard of practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted." 197 The HCCC submits that the Tribunal should be satisfied that the proposed orders are necessary to protect the public and there is a need for general deterrence in this matter. 198 In Chen v Health Care Complaints Commission [2017] NSWCA 186 Payne JA at [88] observed: "The Tribunal was permitted by s 149C(7) to identify a period of a time during which a re-registration application could not be made. Doing so indicated the seriousness, from the Tribunal's perspective, of the conduct. A practitioner wishing to challenge that period may do so by way of appeal. Contrary to the appellant's submission, a time fixed under s 149C(7) does not necessarily mean that the Tribunal has formed a view that things will have changed by the end of the period which has been fixed. The Tribunal is permitted by s 149C(7) to make clear in its orders the seriousness with which it views the conduct of the practitioner reflected in the complaints which have been proven. Such an order plays a part in the general deterrence reflected by the order." 199 In Health Care Complaints Commission v Luque [2019] NSWCATOD 129 The setting of a non-review period is not to punish the practitioner but to protect the public. NSW Court of Appeal jurisprudence has indicated that the fixing of a period of non-review has a 'twofold operation' in that it firstly indicates a minimum period within which the Tribunal considers the person should not be able to practise their profession, thus serving both an individual and general deterrence purpose by sending a message to the practitioner, the public and the profession about professional standards and the seriousness of the breach; and secondly it holds open to the practitioner the possibility of return to the profession at a later time: Chen v HCCC [2017] NSWCA 186; HCCC v Do [2014] NSWCA 307." 200 The duration of the conduct, the period in which the Respondent has lacked and continues to lack insight, the seriousness of the conduct, are all factors which support a three year non-review period. Dr Chahoud's propensity to attribute his own failures to others require both specific and general deterrence. The Code of Conduct which is in evidence at Tab 39 states at 8.10 that Dr Chahoud had an obligation to co-operate with investigations: Doctors have responsibilities and rights relating to any legitimate investigation of their practice or that of a colleague. In meeting these responsibilities, it is advisable to seek legal advice or advice from your professional indemnity insurer. Good medical practice involves: 8.10.1 Cooperating with any legitimate inquiry into the treatment of a patient and with any complaints procedure that applies to your work. 8.10.2 Disclosing, to anyone entitled to ask for it, information relevant to an investigation into your own or a colleague's conduct, performance or health. 201 The Respondent has caused harm to the reputation of the medical profession and confidence in general practitioners to appropriately manage vulnerable patients. "A health professional who cannot be trusted to tell the truth presents a risk to the public because, without candid admissions by a health professional who may be in the wrong, the ability of other professionals to treat patients appropriately, including by remedying any original error, is grossly impaired or altogether prevented." (HCCC v Picones [2018] NSWCATOD 56 at [104]-[105]). Determination 1. The Respondent provided submissions which addressed Stage 2 considerations. We here include those submissions which we considered of particular importance. Protective orders 48. As outlined at [1] – [4] above, the Tribunal's protective order "should be limited to that which is reasonably necessary to provide the required level of public protection." (Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 [83], citing Prakash v Health Care Complaints Commission [2006] NSWCA 153 [101]). Dr Chahoud submits that the Tribunal can appropriately discharge its protective functions by allowing him an opportunity to re-enter the profession, generally in accordance with the supervision plan he has arranged with Dr Ooi and the Medical Council. 49. Dr Chahoud does not have an "extensive prior disciplinary history" as submitted at AS [180]. As the Medical Council found in the reasons cited at AS [180], of the 8 prior complaints made against Dr Chahoud, none "concerned similar allegations to those the subject of this hearing." The three complaints which were upheld relate to Dr Chahoud's opiate addiction, which was managed under the supervision of an Impaired Registrants' Panel between 2011 and 2016, and remains "stable on maintenance therapy." ( Exhibit R4 (first report of Dr Atherton), p 6.) 50. The Tribunal should not find that there are no protective orders open on the evidence that will protect the health and safety of the public (AS [190]). To the contrary, Dr Chahoud's conditional practice 2018 to 2021 in the absence of any further complaint suggests that the protective orders imposed by the Medical Council were adequate to protect the health and safety of the public. It is open to the Tribunal to find that continuing the Medical Council's orders for supervision, mentorship and psychological counselling, while allowing Dr Chahoud to resume treating female patients, would adequately protect the health and safety of the public. Suspension 51. If the Tribunal determines not to cancel Dr Chahoud's registration, it may issue a suspension under s 149C(1)(b) of the Health Practitioner Regulation National Law. The Tribunal invited submissions from Dr Chahoud as to the length of any such suspension. 52. The applicable principles are accurately stated at AS [191] – [196]. In particular, the proposition "that disciplinary orders made in one case can and should be regarded as indicating what disciplinary orders might appropriately be made in another case … must be approached with extreme care," (Lee v Health Care Complaints Commission [2012] NSWCA 80 [24].) but "comparison with the outcomes in earlier cases may be useful if those earlier cases show some discernible range or pattern." (Lee v Health Care Complaints Commission [2012] NSWCA 80 [34]). 53. Comparison with the outcomes in earlier cases does not establish that there is some discernible range for the protective orders that may be made in response to misconduct of the kind admitted by Dr Chahoud. However, it does establish that even where a practitioner "categorically denies," and is found guilty of, an allegation of unwanted kissing in the context of a medical consultation, a 3-month suspension (rather than cancellation) may be an appropriate outcome. (Gautam v Health Care Complaints Commission [2021] NSWCA 85). 54. It is not submitted that any period of cancellation or suspension could or should be "backdated" to April 2021. Rather, it is submitted that the Tribunal should take into account that Dr Chahoud was unable to practise his profession for a period of 11 months between April 2021 and March 2022 and it was during this time that he made the decision to accept responsibility for and admit the complaints the subject of these proceedings. The fact that Dr Chahoud was unable to practice during this period is relevant to the Tribunal's discretion to determine whether a suspension, rather than conditions only, is now required to adequately protect the public. 55. The protection of the public is paramount. However, it is also an objective of the national registration and accreditation scheme to facilitate access to services provided by health practitioners in accordance with the public interest. (Health Practitioner Regulation National Law, s 3(2)(e)). If the public can be protected by an order which provides for Dr Chahoud to resume practice under Dr Ooi's supervision immediately, that order would fulfil the objective of facilitating access to health practitioners in the public interest. In making such an order, the Tribunal can take account of community concern about the provision of general practitioner services to outer metropolitan, rural and regional areas of Australia such as Dapto. (On 4 August 2021, the Senate referred an inquiry into the provision of general practitioner and related primary health services to outer metropolitan, rural, and regional Australians to the Senate Community Affairs References Committee for inquiry and report by the last sitting day in March 2022.) Psychological counselling order 56. Dr Chahoud supports Dr Atherton's recommendation of 10 June 2021 (made available to Dr Chahoud by way of disclosure in the course of the hearing on 22 February 2022) that he should see a psychologist regularly and continue under the same supervision requirements. The Tribunal should order, under s 149(1)(c) of the Health Practitioner Regulation National Law, that Dr Chahoud continue to seek and undergo psychological counselling as directed by the Medical Council. 57. Independently of these proceedings, Dr Chahoud is required to attend an Impaired Registrants Panel Inquiry on 7 March 2022, (Exhibit R3.) pursuant to s 152G of the Health Practitioner Regulation National Law. Cancellation of Dr Chahoud's registration would render these proceedings nugatory and terminate the relationship which Dr Chahoud has established with Dr Atherton. It is submitted that the preferable course of action is for Dr Chahoud to return to practice under conditions which allow for the Impaired Registrants Panel to conclude its separate inquiry, which is of potentially broader scope than these disciplinary proceedings. Engagement with other practitioners 58. Dr Atherton has expressed concern that Dr Chahoud is "isolated" (Exhibit R4, p 6). Dr Atherton's concerns are consistent with Dr Chahoud's own limited oral evidence about his ongoing contact with other medical practitioners. The approval of Dr Ooi as Dr Chahoud's supervisor, subject to the outcome of these proceedings, is a critical opportunity for Dr Chahoud to establish strong working relationships with experienced practitioners who can assist him to reintegrate into the profession. 59. Dr Chahoud's substantial acceptance of the complaint in September 2021, and his track record of successfully addressing an opioid dependence problem, arising from a post-surgery analgesic prescription, with the assistance of an impaired registrant's panel, provide grounds for optimism that conditional practice would provide him with an opportunity to address his psychological problems. The Tribunal should accept Dr Atherton's opinion that Dr Chahoud "will benefit from being mandated to engage in structured and professional care." (Exhibit R5, p 4.) In addition to the above submissions the Respondent also addressed in detail the conduct of the Respondent in his dishonestly providing his evidence to the Medical Council s 150 hearing. And the involvement of his wife in the fabrication of evidence. We have considered those submissions and do not repeat those submissions here. We have also read the submission of the Respondent in relation to the letters sent by his solicitors to the HCCC as specified in Complaint Three Particular 3. Whilst we are prepared to accept that the views of the Respondents solicitor which are clearly his views (as identified in the submission) we do not accept the denials and assertions made in the letters which are clearly asserted to be made on instruction do not represent clear instructions given by the Respondent to that solicitor. The Respondent has stopped short of accusing his former solicitor of having fabricated the Respondent's instruction and from having connived or collaborated with the Respondent to fabricate his evidence. We have considered the submission made by the Respondent in relation to the "Phone records" which the HCCC suggested in cross-examination was the motivation for the Respondent to change his evidence in relation to who sent Patient A the Text messages which are in evidence. We are not in a position, on the evidence before us, to be satisfied the "phone records" were the catalyst for the Respondent to change his evidence. We have also had regard to the submission of the respondent in relation to why he changed his evidence in relation to the Complaints so as to admit same. The Respondent submitted: Change of perspective 45. Rather, the Tribunal should accept that Dr Chahoud changed his evidence because until he engaged his current solicitors, he was under the mistaken impression that admitting the complaint would necessarily result in the cancellation of his registration, making it pointless for him to participate in the proceedings. 46. The dishonesty alleged in relation to complaint 3 as a whole is clearly serious. It is also open to the Tribunal to take into account Dr Chahoud's failure to correct his dishonesty for some 3 years. However, in assessing the seriousness of Dr Chahoud's conduct and the appropriate protective orders, the Tribunal should also give weight to Dr Chahoud's changed perspective and acceptance of responsibility, demonstrated by the filing of his statement and reply admitting the complaints on 24 September 2021." 1. We have carefully considered the imposition of Protective Orders which might affect the registration of the Respondent as a Medical Practitioner. 2. We have determined the facts we have found established, do require us to order the cancellation of the registration of the Respondent as a Medical Practitioner for a period of time. The period of time we consider is required by s 149C(7) is a period of 18 months. 3. In determining that the case requires cancellation of the Respondent's registration and a period of 18 months before the Respondent can apply for re-registration, we have taken into consideration and weighed the following matters: 1. We regard the professional misconduct of the Respondent as being amongst the most serious of misconduct because of the nature of the allegations we have accepted, as made by Patient A, and because of the dishonesty demonstrated by the Respondent in the evidence he gave to the Medical Council in October 2018. That honesty was compounded by the Respondent having his wife provide false evidence. 2. Nowhere in the evidence given and provided by the Respondent is there any recognition of the situation he placed his wife in by having her write and sign the statement which is now Exhibit A2 in the hearing before us. Such lack of recognition is in contradiction to the sorrow the Respondent now professes for the impact on his family of his misconduct. 3. Notwithstanding the change of position the Respondent took when he signed his Statement (Exhibit R2) on 24 September 2021 (making a number of admissions of his misconduct) there is no suggestion in the report of Dr Atherton made 4 February 2022 (following an interview with the Respondent that same day), that the Respondent had informed Dr Atherton he was changing his evidence in relation to the Complaints made against him by Patient A and/or that he had drawn his wife into the fabrication of evidence in order to provide false evidence to the Medical Council. 4. We consider the requirement for a medical practitioner to be trustworthy, transparent and honest in his dealings with patients, colleagues, the public at large and the medical authorities which oversee and govern the good conduct and practice of registered medical practitioners, is a fundamental ingredient to establish and maintain the trust and safety of the public at large and of the patients under the care of a particular practitioner. In this case the Respondent has demonstrated that, at least until 24 September 2021 (the date he signed his statement (R2)), dishonest conduct of a nature which undermines the ability of the Medical Council to properly oversee and supervise the practice of Medicine in NSW, corrodes the trust which the public has and must continue to have in the Medical Profession and puts at risk the safety of each member of the public who may directly or indirectly be affected by the Respondents practice of medicine. 5. The period of time we determine the Respondent should be prevented from again applying for registration must act as a deterrent to others to ensure they always act honestly and transparently in their interaction with patients, the public and the bodies who oversee and regulate the practice of medicine. In this case we consider that period of cancellation needs to be significant to fulfil the requirement of deterrent. 6. Of lesser importance, but none the less worthy of some consideration is that the period during which the Respondent may not apply for re-registration needs to be sufficient to enable him to conscientiously attend to repairing his health and his approach to practice as a medical practitioner. The practicalities are such that when he does apply for re-registration, without being prescriptive or restrictive of the Tribunal's determination, it seems reasonable to predict he will need to convincingly satisfy the Tribunal that he would never again conduct himself in the manner which have led to the cancellation of his registration. 7. In consideration of the matter set out in (f) above, we note the last report from Dr Atherton refers to the Respondent failing to follow recommendations made by him in his earlier report in relation to seeing an addiction specialist, a psychologist or a pain specialist. 8. The period of time in which the Respondent is prevented from applying for re-registration should be no longer than necessary to fulfil the requirements as set out above. The Respondent is now 60 years of age. During any period of de-registration he will need to continue to pursue education which will keep him informed in relation to the development of medicine as is necessary for a GP to understand and be in a position to use in practice. He will need to be able to show he has the requisite skills and qualities to be again registered as a medical practitioner. 9. We take into account that the Respondent has not been in practice since April 2021. We accept that has been caused by the Conditions which were imposed by the Medical Council not being able to be met by the Respondent, since April 2021 due to his inability to find a supervisor who will be acceptable to the Medical Council. Because of those circumstances we take the view that the conditions have had the effect of suspending the registration of the Respondent, albeit unintentionally. The effect of our determination that a further period of 18 months before the Respondent is able to apply to the Tribunal to be permitted to re-apply for registration will effectively be almost two and a half years. 10. We take into account, in his favour, that the Respondent did express great regret for his misconduct in the hearing before us. We are, however, still unable to conclude that he has fully accepted responsibility for all of the complained of conduct the seriousness of that misconduct. 11. We take into account the Respondent does have a special skill which is available to his patients. That skill is the ability to communicate with his patients in the Arabic language. We accept that will be a comfort to [patients who do not feel they can adequately communicate with a medical practitioner in the English language. 12. We have considered the submission of the Respondent which urges the Tribunal consider a suspension of the Respondent's registration rather than a cancellation. The advantage for the Respondent of such an order is that at the conclusion of the suspension period his registration would automatically be restored. 13. Whilst we can understand why the Respondent would seek such an outcome, we conclude that there are issues which were raised in this determination, in relation to the Respondent's character (in particular honesty), which require the Tribunal to consider as part of an application by the Respondent to be able to apply for re-registration. There are also other aspects of his conduct, as identified in these reasons, which may also need to be considered and be the subject of evidence to establish how the Respondent will ensure there is no further offending, should he again be registered as a medical practitioner. Submission in Reply from the HCCC 1. We pause here to note that the HCCC provided a written submission in reply to the written submission of the Respondent which we have detailed in these reasons. 2. We have considered the detailed submission in Reply provided by the HCCC. We find that it is unnecessary to detail those submission at this point in our determination. We have determined that we will be making the Protective Orders sought by the HCCC, with the exception of the time it seeks for the period during which the Respondent could not re-apply for registration, and accordingly further argument, from the HCCC, will not advance their case beyond that which we have already accepted. The period of cancellation was not specifically referred to again in the Reply submissions (no criticism intended). We do not think it was necessary that it was re-visited in the Reply submission. The Order to be made 1. We have set out the Protective Orders which are sought by the HCCC. The Respondent has also submitted, as we have set out above, that the Tribunal should impose Protective Orders. 2. As set out above, we conclude that cancellation of the Respondent's registration is required. We conclude that a period during which he should not be able to apply for re-registration is 18 months from the date of our order. We accordingly make the orders set out below. Costs 1. The HCCC seeks a costs order in its favour. In support of that order it provides the following submission: Costs 202 The HCCC submits that the Respondent should be ordered to pay the HCCC's costs. 203 An order for costs is discretionary, however, it is commonly held that costs will follow the cause. 204 In HCCC v Philipiah [2013] NSWCA 342 Meagher JA, Emmett JA and Beech-Jones J held at [44] and [46] in relation to costs orders and the consideration of a Respondent's individual financial circumstances: "It is not an appropriate basis for the exercise of the discretion that an order for costs may cause hardship to the party against whom the order is made. The fact that the Doctor has made, and continues to make, an effort to overcome personal difficulties is not a rational basis for excusing him from the normal consequences of disputing allegations that are ultimately made out against him. In all the circumstances, I consider that the exercise of the discretion on the part of the Tribunal miscarried. The direction made by the Tribunal that there should be no order as to costs should be set aside." 205 Accordingly, the HCCC submits that it would be appropriate for a costs order to be made in these proceedings as sought by the HCCC. 1. The Respondent made the following submission on costs: "Costs 60. Dr Chahoud has experienced considerable financial hardship as a result of his misconduct and the consequential restrictions on his ability to practice. However, as noted at AS [204], it is not an appropriate basis for the exercise of the discretion to award costs that an order may cause hardship to the party against whom the order is made. 61. In the decision cited at AS [204] (Health Care Complaints Commission v Philipiah [2013] NSWCA 342.), the Court of Appeal also found: [42] As a general rule, costs of proceedings before the Tribunal should follow the event and mere impecuniosity is not a justifiable reason for departing from that rule. However, there are factors that might militate against the recovery by the Commission of all of its costs in particular proceedings. For example, one factor might be that the Commission failed to obtain findings of professional misconduct alleged, even though it obtained findings of unsatisfactory professional conduct. Another factor might be that the Commission failed to establish all of the particulars of professional misconduct alleged. Where discrete elements of the conduct complained of are not established, that may be relevant. A third factor might be oppressive conduct by the Commission in the way in which it prosecuted the proceedings before the Tribunal, such as taking procedural steps that gave rise to unnecessary expense in preparing for the hearing … [45] The Doctor could have made admissions as to professional misconduct and as to the degree of impairment immediately after he was notified of the complaints. However, he chose not to do so. The normal price to be paid for a practitioner's disputing a complaint and losing is that, unless some disentitling conduct be established on the part of the Commission, the practitioner should bear the Commission's costs … 62. In this case, the complaints of unsatisfactory professional conduct and professional conduct were admitted. Whether the Tribunal nonetheless considers it appropriate to apply the general rule that costs follow the event will depend on the extent to which the Tribunal upholds the disputed particulars. It is submitted that Dr Chahoud's admission to the essential elements of each complaint justifies a departure from the general rule." 1. We conclude that in this matter a costs order is warranted. We accept the submission of the HCCC. We conclude there is nothing in the conduct of this case which would warrant any departure from an order that the Respondent pay all of the costs of the HCCC. We will accordingly make a cost order. The Orders 1. We make the following orders: 1. Pursuant to s 149C(1)(b) of the National Law the practitioner's registration as a medical practitioner is cancelled. 2. Pursuant to s 149C(7) the practitioner may not apply for a review of the cancellation order for a period of 18 months from the date of the decision. 3. The Respondent is to pay the Health Care Complaints Commission Complaints Commissions' costs of and incidental to these proceedings. 4. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of the name of Patient A referred to in these proceedings is prohibited. SCHEDULE A AMENDED COMPLAINT IN THE CIVIL AND ADMINISTRATIVE TRIBUNAL OF NSW OCCUPATIONAL DIVISION HEALTH PRACTITIONER DIVISION LIST In the matter of Dr Hazem Chahoud, a person registered under the Health Practitioner Regulation National Law (NSW) 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 Dr Hazem Chahoud ("the practitioner") of 69 Pembroke Road MINTO NSW 2566, being a medical practitioner registered under the National Law, 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 judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of profession. BACKGROUND TO COMPLAINT ONE In 1988 the practitioner obtained a Bachelor of Medicine degree from the University of Damascus, Syria. On 23 October 2002 the practitioner was first registered as a medical practitioner. In 2012 the practitioner obtained Fellowship of the Royal Australian College of General Practitioners. From April 2018 the practitioner commenced working at Complete Care Medical Centre in Campbelltown. On 30 June 2018 Patient A was aged 17 years old when she first consulted the practitioner in his rooms. She saw the practitioner again on 3 July 2018, 4 July 2018, 7 July 2018, and 22 September 2018. PARTICULARS OF COMPLAINT ONE 1. On 30 June 2018 the practitioner inappropriately provided Patient A with his home address. 2. On 22 September 2018 the practitioner breached professional boundaries with Patient A by hugging and/or attempting to hug her during the consultation 3. On 22 September 2018 the practitioner breached professional boundaries with Patient A by hugging and/or attempting to hug her again during the consultation. 4. On 22 September 2018 the practitioner breached professional boundaries with Patient A by placing and moving his hand on the right side of Patient A's back below her bra strap during the consultation. 5. On 22 September 2018 the practitioner breached professional boundaries with Patient A by kissing Patient A on her face during the consultation. 6. On 22 September 2018 the practitioner breached professional boundaries with Patient A by rubbing Patient A's knee and moving his hand up her thigh during the consultation. 7. On 22 September 2018 the practitioner breached professional boundaries with Patient A when she asked the practitioner to stop rubbing her thigh and he inappropriately failed to immediately stop. 8. On 22 September 2018 the practitioner inappropriately grabbed Patient A's arm and used physical force to get Patient A to use weighing scales. 9. On 22 September 2018 the practitioner breached professional boundaries with Patient A by placing his hands on Patient A's shoulders and attempting to kiss Patient A at the end of the consultation. 10. The practitioner inappropriately sent text messages to Patient A on the following dates and times, without therapeutic purpose and in breach of his obligation to maintain professional boundaries with Patient A: i. 22 September 2018 at about 1443 hours; ii. 22 September 2018 at about 1554 hours; iii. 22 September 2018 at about 1641 hours; iv. 22 September 2018 at about 1729 hours; v. 24 September 2018 at about 1430 hours; vi. 24 September 2018 at about 165430 hours. 11. During the period from 30 June 2018 to October 2018 the practitioner inappropriately disclosed personal details of Patient A to his wife including details of his consultations with her, Patient A's name, the practitioner's management of Patient A, and the practitioner's opinion of Patient A, contrary to his obligations under s3.4.1 of the Code of Conduct and the Health Privacy Principle 10 of the Health Records and Information Privacy Act 2002. 12. The practitioner failed to properly secure his mobile phone, which he used to communicate with patients and which contained clinical information, by leaving it at his home in manner readily accessible by third parties, contrary to his obligations under s8.4.2 of the Code of Conduct. COMPLAINT TWO 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 judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of profession. PARTICULARS OF COMPLAINT TWO 1. From 30 June 2018 - 7 July 2018 the practitioner failed to assess Patient A's competency to consent to his ongoing treatment of her independent of her parents. 2. From 30 June 2018 to 22 September 2018 the practitioner failed to properly manage and treat Patient A's complaints to him of having bulimia in that: a. the practitioner had no experience of treating bulimia and failed to seek specialist advice or assistance during the period he was treating Patient A; b. the practitioner failed to discuss with Patient A the desirability of involving her parents, caregivers or guardians in managing her illness; c. despite obtaining a history from Patient A consistent with a high risk of medical and psychological harm resulting from bulimia the practitioner failed to refer Patient B to a psychologist and a dietician until her fourth presentation on 7 July 2018. COMPLAINT THREE The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of profession. PARTICULARS OF COMPLAINT THREE 1. In October 2018 the practitioner inappropriately: a. asked and arranged for his wife to prepare a statement in which his wife would falsely state that she was the author of the text messages in particular 10 of Complaint One; and b. presented the above statement to the Medical Council of NSW on 16 October 2018 with the intention of misleading the Council delegates. 2. On 16 October 2018 the practitioner gave false and/or misleading information to the delegates of the Medical Council of New South Wales: a. That he had not kissed and/or attempted to kiss Patient A during the consultation on 22 September 2018; b. That he had not come close to Patient A physically during the consultation on 22 September 2018; c. That he did not hug Patient A during the consultation on 22 September 2018; d. That he did not send the text messages in particular 10 of Complaint One; e. That his wife sent the text messages in particular 10 of Complaint One. 3. By letters dated 7 November 2018 and 13 March 2019 through his previous lawyers the practitioner provided false and/or misleading information to the Health Care Complaints Commission: a. He stated that he did not ever kiss Patient A; b. He stated that he did not ever hug Patient A; c. He stated that he did not ever send text messages to Patient A. COMPLAINT THREE FOUR 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 THREE FOUR 1. Complaint One and the particulars therein are repeated and relied on individually and cumulatively. 2. Complaint One and Complaint Two are repeated and relied on cumulatively. 3. The particulars of Complaint Three are repeated and relied on individually and cumulatively. Dated: 22 February 2022 Larisa Michalko Director of Proceedings Health Care Complaints Commission SCHEDULE TO COMPLAINT OF THE HEALTH CARE COMPLAINTS COMMISSION Dr. Hazem Chahoud Reference in Complaint Identity of person Patient A [Patient A] SCHEDULE B NSW CIVIL AND ADMINISTRATIVE TRIBUNAL No. 2021/00037004 OCCUPATIONAL DIVISION HEALTH PRACTITIONER LIST IN THE MATTER OF: Health Care Complaints Commission. Complainant and Dr Hazem Chahoud Respondent Amended reply COMPLAINT ONE The practitioner admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that he engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. The practitioner admits the facts alleged under the heading Background to Complaint One. Particulars of Complaint One 1. The practitioner does not admit particular 1. 2. The practitioner admits that on 22 September 2018 he breached professional boundaries with Patient A by hugging her during the consultation. 3. The practitioner does not admit particular 3. 4. The practitioner does not admit particular 4. 5. The practitioner admits that on 22 September 2018 he breached professional boundaries with Patient A by kissing Patient A on her face during the consultation. 6. The practitioner does not admit particular 6. 7. The practitioner does not admit particular 7. 8. The practitioner does not admit particular 8. 9. The practitioner does not admit particular 9. 10. The practitioner admits that the practitioner inappropriately sent text messages to Patient A on the dates and times alleged in particular 10, without therapeutic purpose and in breach of his obligation to maintain professional boundaries with Patient A, except that the message identified in particular 1(e) was sent at 1630 hours. 11. The practitioner does not admit particular 11. 12. The practitioner does not admit particular 12. COMPLAINT TWO The practitioner admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that he engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Particulars of Complaint Two 1. The practitioner does not admit particular 1. 2. The practitioner admits that he failed to properly manage and treat Patient A's complaints to him of having bulimia in that he failed to seek specialist advice on that condition, and was guilty of the unprofessional conduct admitted in relation to complaint 1. COMPLAINT THREE The practitioner admits that he is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that he engaged in improper or unethical conduct relating to the practice of his profession. Particulars of Complaint Three 1. The practitioner admits particular 1. 2. The practitioner admits particular 2. 3. The practitioner admits that the letters identified in particular 3 were sent by his former solicitor and contained false information which reflected his evidence described in particular 2, but states that he did not review or approve the contents of the letters before they were sent. COMPLAINT THREE FOUR The practitioner admits that he is guilty of professional misconduct under section 139E of the National Law in that he 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. ********** Endnotes 1. Section 38(2) of the Civil and Administrative Tribunal Act 2013; Clause 2 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) (The National Law). 2. Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127]; Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]. 3. Section 3A of the National Law. 4. Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. 5. Section 3(2)(a) of the National Law. 6. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [637]. 7. HCCC v Do [2014] NSWCA 307 at [35]. 8. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at [637]. 9. Lee v HCCC [2012] NSWCA 80 at [20] and [31]. 10. Sudath v HCCC [2012] NSWCA 171 at [75]. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2022