Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Segal [2022] NSWCATOD 71 Hearing dates: 14 – 17 March 2022 Date of orders: 27 July 2022 Decision date: 27 July 2022 Jurisdiction: Occupational Division Before: Cole DCJ, Deputy President Dr M Cox, Senior Member Associate Professor G Albert, Senior Member R Wellington, General Member Decision: Dr Segal is guilty of unsatisfactory professional conduct as alleged in Complaint One, particulars 1,2,3,6 and 10. Dr Segal is guilty of professional misconduct, as alleged in Complaint 2. Catchwords: HEALTH — Professional registration and discipline — Professional misconduct – Unsatisfactory professional conduct – medical practitioner Legislation Cited: Health Records and Information Privacy Act 2002 Health Practitioner Regulation National Law (NSW) Cases Cited: Sullivan v Civil Aviation Authority (2014) 226 FCR 555 [2014] FCAFC 93 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Chen v Health Care Complaints Commission [2017] NSWCA 186 Campbell v Campbell [2015] NSWSC 784 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Shaun Segal (Respondent) Representation: Counsel: A Petrie (Applicant) P Griffin SC (Respondent) Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/00338902 Publication restriction: (1) The order made on 17 December 2021 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) is revoked. (2) Pursuant to s 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, publication of the name of the patient set out in the schedule to the complaint, Patient A, her ex-husband, her child or any of the persons identified as having an intimate personal relationship with her (except for Dr Segal) is prohibited. (3) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 the publication of any evidence given before the Tribunal in relation to the workplace (at any time), the occupation (at any time) or the identity of family members, of the persons described in Order 2, is prohibited. (4) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the names of the persons identified by Patient A as having disclosed to her that rumours were circulating about her personal life is prohibited. (5) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of any information about events in Patient A's childhood is prohibited. REASONS FOR DECISION 1. The Health Care Complaints Commission ('HCCC') has brought an application for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) ('the National Law') against Dr Segal, a general practitioner, on the basis that specified aspects of his conduct amount to unsatisfactory professional conduct and professional misconduct ('the application'). The complaints set out in the application followed the making of a complaint to the HCCC by Patient A. 2. Dr Segal, in his Reply, has admitted that some aspects of his conduct amount to unsatisfactory professional conduct, but has denied the allegation of professional misconduct. Many of the factual matters alleged are disputed. 3. In this decision, we will deal with the first stage of the proceedings, which concerns the issue of whether Dr Segal is culpable in relation to the conduct alleged. The second stage of the proceedings, which will deal with the issue of protective orders, will be the subject of a further hearing. 4. The hearing of this matter took place over four days and both parties tendered documentary evidence. Patient A and Dr Young, an independent, expert general practitioner, gave evidence in the HCCC's case. Dr Diamond, a psychiatrist, Ms Bailey, Ms Ehrlich, Dr Terkasher and Dr Segal gave evidence in Dr Segal's case. Standard of proof 1. This matter involves factual disputes. We remind ourselves that the standard of proof in this matter is proof on the balance of probabilities. The allegations are serious, and we acknowledge that, consistent with Sullivan v Civil Aviation Authority (2014) 226 FCR 555 [2014] FCAFC 93, we must inform ourselves only by reference to evidence or other materials which properly support the findings being made in the knowledge of the seriousness of those findings, and their potential for significant impact upon a party (see Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53). Non-publication orders 1. On 17 December 2021, Deputy President Boland made the following order in these proceedings: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act (NSW) an order is made prohibiting disclosure to any person or entity of the names of the patient set out in the schedule to the complaint. 1. The schedule to the complaint refers to Patient A. 2. In the course of the hearing, an application was made for further non-publication orders to prohibit the publication of the names of Patient A's family members and people who have been in an intimate relationship with Patient A. An order prohibiting the publication of other evidence concerning aspects of Patient A's history was also sought. The application for these orders was not opposed, and we are satisfied that orders of the kind sought are desirable, having regard to the nature of the evidence in this matter and the objectives and guiding principles of the National Law. Patients who have had an adverse experience with a health practitioner will be more likely to make a complaint to the regulatory authority if they have a degree of confidence that it might not be necessary for their personal and health information to be made public. However, the orders we will make will not be in precisely the same form as sought by the HCCC and will not cover aspects of the evidence which are discussed in this decision which need to be known to understand the proceedings and these reasons. 3. We will revoke the non-publication order of 17 December 2021 and make non-publication orders in the following terms: 1. The order made on 17 December 2021 under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) is revoked. 2. Pursuant to s 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, publication of the name of the patient set out in the schedule to the complaint, Patient A, her ex-husband, her child or any of the persons identified as having an intimate personal relationship with her (except for Dr Segal) is prohibited. 3. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 the publication of any evidence given before the Tribunal in relation to the workplace (at any time), the occupation (at any time) or the identity of family members, of the persons described in Order 2, is prohibited. 4. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of the names of the persons identified by Patient A as having disclosed to her that rumours were circulating about her personal life is prohibited. 5. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, the publication of any information about events in Patient A's childhood is prohibited. The National Law 1. Complaint One in the application is a complaint of unsatisfactory professional conduct on the basis of improper or unethical conduct under s 139B(1)(l) of the National Law, which provides: 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— … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Complaint Two in the application is a complaint of professional misconduct under s 139E of the National Law, based on the seriousness of each of the particulars in Complaint One or two or more of them together. The National Law provides, in s 139E: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. In Chen v Health Care Complaints Commission [2017] NSWCA 186, Basten JA said: 19 The circumstances in which cancellation or suspension is available include findings of incompetence, professional misconduct, conviction rendering the practitioner unfit in the public interest and not being a suitable person. The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. [14] The phrase "unsatisfactory professional conduct" is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience, [15] making a referral in circumstances where the practitioner has a financial interest in giving that referral without disclosing the interest, [16] overservicing [17] and, finally, any other improper or unethical conduct relating to the practice of the practitioner's profession. [18] 20 There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. … The Application and the Reply 1. The following background is set out in the Application: The practitioner obtained a MBBCH from the University of Witwatersrand in South Africa in 1997. Between 1999-2008 the practitioner worked in the United Kingdom. In 2008, the practitioner relocated to Australia where he has worked almost exclusively in the field of skin cancer medicine and surgery. He performs excisions, biopsies and grafting. He is a fellow of the Royal Australian College of General Practitioners (RACGP) and the Australian College of Cutaneous Oncology. The practitioner commenced consulting at the following skin cancer clinics in Sydney which he continues to consult at: * Rose Bay Medical Practice ("the Practice") commencing in 2013; * Australian Skin Cancer Clinic in Penrith – commencing in 2015; * Australian Skin Cancer Clinic in Edgecliff and Double Bay Day Hospital – commencing in 2018; * Railway Street Skin Cancer Clinic in Baulkham Hills – commencing in 2019. Between July 2006 – July 2018, Patient A was a patient of the Practice. Between 14 October 2016 - 27 December 2017, Patient A was a patient of the practitioner. 1. The accuracy of the background set out has not been disputed. 2. As we have said, Complaint One alleges that Dr Segal is guilty of unsatisfactory professional conduct under s 139B(1)(l), in that he has 'engaged in improper or unethical conduct relating to the practice or purported practice of medicine'. 1. Ten particulars were set out in relation to Complaint One. We will set them out individually, together with Dr Segal's response to each of them in his Reply: 1. On 14 October 2016, during the practitioner's consultation with Patient A, the practitioner inappropriately provided his personal telephone number to Patient A. Reply: Denied. 1. On 14 October 2016, after the practitioner's consultation with Patient A, the practitioner inappropriately communicated with Patient A by sending the following text messages on his personal mobile phone to Patient A's personal mobile phone: 1. "if you feel you [sic] not coping or need me text and I'll call when possible." 2. "It's Shaun and you'll be ok, started the process by talking to me now leave all your friends out of it…else your hubby will find out stuff he shouldn't. Reply: Admitted. 1. Around mid-October 2016, during multiple consultations with Patient A, the practitioner inappropriately touched Patient A on the hand and leg and hugged her at the end of the consultation. Reply: Denied. 1. Around late October 2016, the practitioner spoke with Patient A on the phone and inappropriately: 1. asked if she would like to commence an affair with him. 2. told her he was a medical professional and that she could trust him. Reply: Denied. 1. Around late October 2016, during the practitioner's consult with Patient A, the practitioner inappropriately said words to the effect to Patient A, "I could really fuck things up for you" when discussing the prospect of starting an affair with Patient A. Reply: Denied. 1. Between October 2016 and April 2019, the practitioner engaged in an inappropriate personal relationship with Patient A. Reply: Admitted. 1. Between October 2016 and April 2019, the practitioner engaged in an inappropriate sexual relationship with Patient A. Reply: Denied. 1. On 30 October 2016, the practitioner inappropriately engaged in oral sex with Patient A at the Practice. Reply: Denied. 1. Between October 2016 – April 2019, the practitioner inappropriately engaged in sexual intercourse with Patient A at the Practice. Reply: Denied. 1. Between October 2016 – December 2019, the practitioner engaged in inappropriate personal communication with Patient A which included the practitioner: 1. calling Patient A on 659 occasions, including 10 of those calls being for longer than 30 minutes, with the longest call being 61 minutes in duration. 2. receiving 157 calls from Patient A including 6 of those calls being for longer than 30 minutes. Reply: Admitted. 1. Complaint Two says: The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 2. Engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 1. In his Reply, Dr Segal admits that he is guilty of unsatisfactory professional conduct, but does not admit that he is guilty of professional misconduct. 2. We will address the evidence in relation to each of the particulars which has been denied. 3. In October 2016, Patient A was 28 years old and Dr Segal was 43 years old. The evidence and the particulars which have been denied Particular 1: Provision by Dr Segal of his mobile phone number on 14 October 2016. 1. Patient A made a written complaint to the HCCC on 23 May 2020. Whilst it is clear from the complaint details provided in that complaint that Patient A and Dr Segal were in contact by telephone after Patient A's first appointment with Dr Segal, there is no allegation in that complaint that Dr Segal provided his mobile phone number to Patient A. 2. At some time subsequent to 23 May 2020, Patient A provided further information to the HCCC. There was no allegation in that further information that Dr Segal provided Patient A with his mobile phone number. 3. Patient A provided a statement to the HCCC, for the purpose of these proceedings, on 26 August 2020. In that statement, she said, in paragraph 15, in relation to her first consultation with Dr Segal on 14 October 2016 at the Rose Bay Medical Practice ("the Practice"): 15. This consultation definitely ended in a hug and Dr Segal suggested that I see him once a week as counselling sessions. Sometime during this consultation Dr Segal offered me his mobile number…. 1. In the statement of 26 August 2020, Patient A said that she 'made contact with Dr Segal first' by sending him a text message after the appointment of 14 October 2016. She provided a screen shot of her text message, which said that it had been sent on 14 October 2016 at 12:46pm. 2. In cross-examination, Patient A confirmed that Dr Segal had given her his mobile phone number during her consultation with him on 14 October 2016. It was put to her that she obtained the phone number from an unspecified mutual acquaintance, but she denied that. 3. The notes of Dr Segal's treating psychologist, Dr Shapiro, were in evidence as part of Exhibit A 1. Dr Shapiro was not called to give evidence, and his notes were admitted without objection. 4. Dr Shapiro's notes refer to the issue of the mobile telephone number twice. In the notes of the consultation with Dr Segal of 23 June 2017, Dr Shapiro notes, apparently quoting Dr Segal: I need to be clearer re boundaries – new protocols and proceedings, etc. -Not give out mob No – unless emergency -Ditto- emails -No social media w/ pts. 1. Dr Shapiro's notes of the consultation with Dr Segal on 9 June 2020 say, in the context of a discussion about the allegations in relation to 30 October 2016: In my defence – Roz – nurse – I don't work alone- we'd settings in place – eg not giving mobile No to patients. 1. These two entries in Dr Shapiro's notes are contradictory. The first note indicates that Dr Segal told Dr Shapiro on 23 June 2017 that, in the future, he believed that he needed to be clearer in relation to boundaries with patients, and that this would include a new protocol that he will not give out his mobile phone number to patients, except in an emergency. Then, on 9 June 2020, Dr Segal told Dr Shapiro that he had had settings in place in October 2016, including a rule that he would not give his mobile number to patients. Dr Segal was therefore not consistent in what he told Dr Shapiro in relation to this topic. 2. A different version of what happened between Dr Segal and Dr Shapiro concerning telephone contact with patients was given by Dr Segal at the s 150 hearing. Dr Segal indicated that he had made the decision, with Dr Shapiro, in 2018, not to give his mobile phone number to patients (see Exhibit A1 Tab 37 p 58-59). The following exchange then took place at the hearing: Prof Karpin: But up until that point it hadn't occurred to you that it was inappropriate? Dr Segal: No, until such time when I saw that how dependent she was becoming on me… 1. In his statement, dated 18 February 2022, Dr Segal said, in relation to the consultation with Patient A on 14 October 2016, that he did not recall the consultation. In speaking of the consultation, he relied on his notes. His notes for the consultation simply record, along with a note of the request made of pathology in relation to the blood tests (see Exhibit A1, tab 52 page 24): long discussion re libido seems high Will check baseline bloods then review 1. Despite saying, in his statement, that he did not recall the consultation on 14 October 2016, Dr Segal, in the same statement, reiterated his denial of Particular 1, and stated: I did not provide Patient A with my personal mobile telephone number. 1. Dr Segal went on to say, in his statement, that he had asked Patient A 'whilst on the phone' how she obtained his number. We acknowledge that we do not have before us evidence of all of the communication between Dr Segal and Patient A. 2. The HCCC has tendered a screenshot of Patient A's text to Dr Segal on the same day as she had her first consultation with him as a patient, together with his response and the continuation of the exchange. In her text, she thanked Dr Segal for his support, so it was clearly sent after the consultation. The medical note of 14 October 2016 indicates that the consultation was at 2:53pm, and the text message, on its face, was apparently sent by Patient A at 4:39pm. There is no evidence which would cause us to doubt either of those times. 3. On the balance of probabilities, and bearing in mind the seriousness of the allegation, we consider that it is considerably more probable that Patient A was able to text Dr Segal after the consultation because he had given her his mobile phone number at the consultation, as she alleges. It is not likely that she obtained it from a third party, and there is no evidence to support that theory. If she had done so, we would have expected that Dr Segal would have expressed some surprise that she was able to text him within the initial text exchange, and he did not do so. He also continued texting and participating in phone conversations with her subsequently, without apparent reservation. There was no reference in the text exchange to any telephone call. 4. We find that Particular 1 has been proven to the applicable standard of proof. 5. We are fortified in that conclusion by part of the evidence of Dr Diamond. Dr Diamond has been Dr Segal's treating psychiatrist since 24 November 2020. Dr Diamond provided a report dated 1 February 2022 (Exhibit R1, Tab 4b) in relation to these proceedings, and he also gave oral evidence. In the course of his cross-examination, the following exchange took place (transcript p 90): Q: Dr Segal makes some admissions in these proceedings including talking to Patient A on the telephone approximately 800 times, you're aware of that aren't you? A: Yes, I am. Q: He denies in these proceedings providing his mobile telephone to Patient A at a consultation on 16 October 2016 are you aware of that? A: Did you say he denied doing that? Q: Yes? A: I know he provided his phone number but I'm not sure exactly when that occurred. Q: In your notes and this is under 24 November 2020 at tab 5 it's page 99 of the respondent's brief, if I can just take you to those notes? A: Yes, I've got them in front of me. Q: There towards the bottom of the notes you ask "why did you give her your number?" A: Yes. Q: Did you write that because Dr Segal disclosed to you that he had provided his telephone number to the patient? A: I could only have written that if I was aware that he had done that, yes. Q: And it's your understanding that he did provide his mobile telephone number to the patient? A: That would be my understanding, yes. Particular 2: On 14 October 2016, Dr Segal sent two text messages to Patient A from his mobile phone to hers. 1. The text messages in question were in a series of text messages initiated by Patient A and said: 1. "If you feel you not coping or need me text and I'll call when possible." 2. "It's Shaun and you'll be okay, started the process by talking to me now leave all your friends out of it…else your hubby will find out stuff he shouldn't". 1. Dr Segal admits this particular. Patient A was able to produce the text messages in question. 2. In his statement dated 18 February 2022, Dr Segal gave an account of what he meant by these messages, sent on 14 October 2016. He said, in paragraph 55: Patient A was very emotionally labile and had been behaving irrationally and irresponsibly. I was trying to be supportive and to reassure her that she would be able to cope with her separation with the help of her family and not have to resort to sexual promiscuity with others as some sort of coping mechanism…gossip and news is spread quickly from one to another thus I was referring to Patient A not telling her friends about her promiscuity and dangerous actions as else the entire community would find out. 1. We note that this statement is at odds with Patient A's evidence that, as of 14 October 2016, she had not yet left her husband and she had not yet engaged in any promiscuous or dangerous actions. It was Patient A's evidence that, as of 14 October 2016, she was still living with her husband and had engaged in nothing more than a 'flirtation' with another man. Particular 3: In mid-October 2016, during multiple consultations, Dr Segal touched Patient A on the hand and leg and hugged her at the end of the consultation. 1. This allegation was made by Patient A in her initial complaint on 23 May 2020, when she wrote, in relation to the time after 14 October 2016: Dr Segal and I continued to talk frequently on the phone and see each other in the consulting rooms as counselling sessions where Dr Segal became more physical, touching my hand, my knee, asking invasive and personal questions and always ending out appointments with a hug [sic]. 1. The patient records at Rose Bay Medical Practice ('the practice') show that, in October 2016, Patient A had four consultations with Dr Segal, on 14 October 2016,19 October 2016, 21 October 2016 and 27 October 2016. 2. The records for Patient A at the practice (written by Dr Segal on those dates), the evidence of the text messages between Patient A and Dr Segal, and the evidence of the telephone calls by Dr Segal to Patient A together form a picture of the rapidly developing relationship between Dr Segal and Patient A from 14 October 2016 to 30 October 2016. There was no challenge to the accuracy of the telephone records or the text messages, and there was no suggestion, on behalf of Dr Segal, that the telephone calls from his mobile number were initiated by anyone other than him. He admitted to there having been periods of time in which he had frequent telephone contact with Patient A. 3. Dr Segal is a Fellow of the Royal Australian College of General Practitioners. However, by 2016, at the Practice, he was primarily conducting a skin cancer clinic and only seeing general practice patients 'as the need arose' (see Dr Segal's statement of 18 February 2022). In the hearing under s 150 of the National Law, Dr Segal said that, at the Practice, he would 'on a rare occasion' be asked to see a patient who was not a skin cancer patient where there was some urgency. From 2018, on his own evidence, Dr Segal saw only skin cancer patients (except for Patient A). 4. The series of events from 14 October 2016 to 30 October 2016 was as follows: 1. The first consultation between Dr Segal and Patient A took place at 2:53pm on 14 October 2016 and the practice notes say: Long discussion re libido Seems high Will check baseline bloods then review (blood tests ordered) 1. At 4:39pm on the same day, the following text exchange was initiated by Patient A: 1. At 4:39pm Patient A sent to Dr Segal: Thanks for your support, Sean, very much appreciated. See you Wednesday – [Patient A} 1. Dr Segal replied at 4:56pm: Anytime 1. Patient A texted: Have a good Shabbos 1. Dr Segal replied: If you feel you not coping or need me text and I'll call when possible. [sic] 1. Patient A replied: Thanks, Sean, definitely not coping…I'll be okay 1. At 5:03pm, Dr Segal texted: It's Shaun and you'll be ok, started the process by talking to me now leave all your friends out of it…else your hubby will find out stuff he shouldn't 1. At 5:05pm, Patient A texted Sorry, Shaun! I know, however easier said than done. We'll chat Wednesday, lots to talk about. 1. The notes of the second consultation on 19 October 2016 at 6:26pm say: long consult re personal marital issues discussed Vit d 1. At 7:14pm that evening, Dr Segal called Patient A and the call lasted for 16 minutes. 2. On 20 October 2016 at 5:37pm Dr Segal called Patient A and the call lasted for 41 seconds. 3. On 20 October 2016 at 6:50pm Dr Segal called Patient A and the call lasted for approximately 5 minutes. 4. The notes of the third consultation on 21 October 2016 say: pill check was on Yasmin bp 110/70 [A prescription for Yasmin was provided] 1. On 24 October 2016 Dr Segal's called Patient A at 2:59pm and the call lasted for 7 seconds. 2. A further call was made by Dr Segal to Patient A at 3:15pm and lasted for approximately 15 minutes. 3. The notes of the fourth consultation on 27 October 2016 say: temporarily separated long discussion strategies discussed will go for couples counselling 1. On 29 October 2016 Dr Segal called Patient A at 7:22am and the call lasted for approximately 14 minutes. 2. A further call was made by Dr Segal's to Patient A at 11:55am and the call lasted for approximately 3 minutes. 3. On 30 October 2016 Dr Segal called Patient A at 6:24pm for approximately 25 seconds. 1. Dr Segal and Patient A did not have a personal relationship before 14 October 2016. Patient A said, in her statement of 26 August 2020, that she had seen Dr Segal as a patient "a handful of times" at the practice prior to September 2016, and that her understanding was that he was a GP who "also worked with skin cancers, did biopsies and minor skin surgery". In fact, the practice records show that Patient A saw Dr Segal only once prior to September 2016, on 15 September 2014. It was Dr Segal's evidence that he had no recollection of that consultation. He denied having seen Patient A before she brought her child into the practice in September 2016 and Dr Segal stitched up a wound the child had suffered. 2. Dr Segal said, in his statement of 18 February 2022, that, from 2013 to 2018, at the Practice, he would sometimes see general practice patients, although he primarily saw patients in relation to skin cancer. Dr Segal agreed, in cross-examination, that Patient A was the only patient he saw regularly at the Practice as a general GP as opposed to being a skin cancer practitioner. 3. In a statement dated 18 June 2020, Dr Segal said, at paragraph 11: 11 My practice nurse Roslyn Bailey has been working with me on a full-time basis since April 2016. She is with me every day in my consulting rooms for all of my skin cancer patients. I am never alone with a patient. In the past if I saw general practice patients at the Rose Bay Practice, Roslyn also assisted in these consultations, such as carrying out general observations. Roslyn would freely enter and leave the consulting room during a patient consultation as I never lock the door and she does not have her own room. In fact at the Rose Bay Practice consulting room there are two doors which are never locked. Staff members and doctors are able to enter the room at any time. 1. In the course of the proceedings under s 150 of the National Law before the panel appointed by the Medical Council of New South Wales on 22 June 2020, Dr Segal stated several times that, since 2013, when consulting at the Practice, he always had a nurse present in his consulting room for both skin cancer related consultations and for general practice consultations [see transcript, s 150 proceedings, p 20-23 and p 51]. 2. Dr Segal made a further statement on 21 August 2020, in which he referred to his statement of 18 June 2020 and said: 2. I wish to clarify that while my practice nurse, Roslyn Bailey, has been working with me since April 2016, she initially only assisted me at the Rose Bay Medical Practice (Practice) on Saturdays. From on or around 16 February 2018, Ms Bailey began assisting me on every day that I worked at the Practice. 3. Prior to Ms Bailey assisting me on a full time basis at the Practice, I relied on the assistance of the relevant practice nurse who was employed by the Practice at the time. As the door to my consulting rooms were never locked, the practice nurse would come in and out of my consulting rooms throughout the day in order to assist me with both general practice patients and skin cancer patients. 1. That part of Dr Segal's statement of 21 August 2020 which relates to the timing of Ms Bailey's work at the practice is consistent with the statement of Ms Bailey dated 14 August 2020 and her evidence at the hearing. 2. In cross-examination in relation to the topic of whether a nurse was present at the consultations between Dr Segal and Patient A, the following exchange took place: Q. In relation to your consultations with patient A, it's fair to say between October 2016 and late 2018, it's fair to say that your practice nurse, Ms Bailey, was not present during any of those consultations? A. That's incorrect, she was present during some of the consultations, sorry, correction. There was, Roslyn Bailey specifically would have been present during any surgical consultations and there is a chance that she could have been present during other consultations or another practice nurse at the practice. Q. But you have no recollection of a practice nurse being present with patient A during the consultations between October 2016 and late 2018, do you? A. No, that's incorrect. I do have some recollections. My recollections were that certain presentations were for miscellaneous medical complaints and as soon as the nurse who might have been there might have slipped out to get something or changeover and then suddenly it came out a more specifical reason for why she was there. So I believe that there were times when there were nurses in there but only when the nurse perhaps left and alone did she mention things like that. Q. When she was talking to you about intimate matters including about her mental health, it's fair to say that there was not a nurse present? A. About intimate matters, no, there wasn't a nurse. Q. Certainly, patient A gave evidence yesterday that there was only one occasion when a nurse was present and that was when you stitched her son's chin, prior to that first consultation on 14 October 2016, that's the case, isn't it? A. No, I would have thought it would be more likely that there were other nurses occasionally in my room because, yes. Q. Sorry, I interrupted you? A. I would have thought that there were occasions of other nurses who would have been in and out of that room because I was the procedural doctor always looking for stores to see if my room had been stocked up essentially. Q. But you, yourself, have no recollection do you of a nurse coming in while you were seeing patient A between 14 October 2016 and late 2018, do you? A. I have recollections of certainly with the suturing of a child and I have recollections that at times when she did used to come to me she would be hesitant to say things because other nurses were in the room. And only when the other nurses left and in the Rose Bay Practice there were a few nurses who came in and out of that practice only when the nurses were to vacate for whatever reasons were she to bring up suddenly intimate issues. 1. The occurrence of the four consultations, from 14 October 2016 to 27 October 2016, so close together, in the context of a medical practice focussing predominantly on skin cancer, is curious. The medical content of the second and fourth consultations was scant, according to the notes. All of the medical content of the four consultations in October 2016 was outside what Dr Segal clearly considers (and considered then) to be his principal area of practice, namely skin cancer. 2. Dr Segal said, in cross-examination, that he believed that he established a good rapport with Patient A from the first consultation, and that he made no attempt to stop her from telling him about her personal and social history and concerns. 3. Dr Segal's notes in relation to the four consultations in October 2016 are very brief, despite the fact that the notes of at least three of those consultations indicate that they involved long discussions. Dr Segal explained this by saying that he was uncomfortable about recording Patient A's private information in the practice medical notes in relation to Patient A, where they would be available for others to read, which he characterised as a breach of Patient A's privacy. However, this is not how the medical notes created and held by the doctors in a group practice in relation to a patient invariably work. An important purpose of medical notes in a medical practice is to ensure the continuity of medical care, so that, should a patient see more than one practitioner, each practitioner has access to the patient's medical history, including current medications. Even if the patient sees only one practitioner, the notes serve as a reminder of the patient's medical history. This saves time and gives the patient some protection from errors of diagnosis and prescribing. The protection of a patient's privacy is dependent upon the doctors complying with their ethical obligations and compliance with the Health Records and Information Privacy Act 2002. 4. We make the following observations in relation to the four consultations within two weeks in October 2016: 1. Patient A's stated issues, as disclosed in the medical notes, were well outside of Dr Segal's preferred practice area, and Dr Segal usually saw general practice patients as an 'overflow' measure, and not as regular patients. 2. The four consultations within two weeks in October 2016 were accompanied by unusual and persistent telephone contact with Patient A, initiated by Dr Segal and evidenced by the telephone records. Dr Segal said that he did not know Patient A prior to the consultation in September 2016 at which he stitched up her child's wound, and Patient A's evidence is largely consistent with this. However, the two week period after Patient A's first consultation with him concerning her high libido contained three further consultations, and Dr Segal called Patient A on her phone 8 times in that period. There is no suggestion that such an intense level of contact was necessitated by any medical issue. 3. Dr Segal's notes of the four consultations were very brief, even though the notes say that several of them involved long discussions. 4. Dr Segal initially, falsely, asserted to the s 150 hearing that a practice nurse was always present when he saw a skin cancer patient or a general practice patient, and he did not concede, until being cross examined, that a nurse was not present during the entire duration of all of Patient A's consultations with him. 5. Dr Segal gave evidence that he thought that there was an immediate rapport between him and Patient A from the first consultation on 14 October 2016. Dr Segal acknowledged that a personal relationship developed alongside the doctor/patient relationship, though he denies that it was a sexual relationship. The telephone records show that Dr Segal actively pursued that personal relationship from the outset. 1. For these reasons, in relation to Particular 3, we prefer the evidence of Patient A to the evidence of Dr Segal. We accept Patient A's evidence that, in the course of more than one of the four consultations in October 2016, Dr Segal touched her hand and her knee and hugged her. Particular 6: Between October 2016 and April 2016, the practitioner engaged in an inappropriate personal relationship with Patient A. 1. Dr Segal admits particular 6. 2. The fact that Dr Segal telephoned Patient A on 659 occasions between October 2016 and December 2019, and received 157 calls from her during the same period of time, supports the allegation. 3. In his statement of 18 February 2022, Dr Segal said: 60. At some stage after my consultations with Patient A in October 2016, I received a text message from her on my mobile phone. She asked me via text message if I could call her as she needed to speak to someone about her problems. I telephoned her back as I felt sorry for her and wanted to support her. 61. From this period until April 2019, I spoke to Patient A on numerous occasions, often whilst driving to and from work. During this period of time, Patient A was having a number of personal problems including a divorce from her husband. She shared with me stories about her personal life, particularly her dating life following the divorce of her husband. The frequency of our contact would usually increase when Patient A was experiencing a period of personal crisis, such as the breakdown of a relationship, and would be less frequent during periods when Patient A was doing well. 62. I admit that I did find Patient A's stories about her personal life fascinating especially because they often related to the activities of people within our local community. I am ashamed that I was drawn in and intrigued by Patient A and I felt flattered by the attention she was paying to me. Equally I felt like I was providing support to help Patient A dealt with her problems and she always seemed very appreciative. I accept that I allowed the doctor/patient boundary to become blurred. With the benefit of hindsight I should have told Patient A from the outset that I was unable to talk to her about her problems outside the confines of a consultation. 63. Given the stressors Patient A was experiencing and her ongoing mental health issued, I was very concerned for her wellbeing. She repeatedly indicated to me that she felt supported by me and that our phone calls were of benefit to her. I am now able to understand that I also received personal gratification from these communications and being able to assist her. This clouded by judgment and contributed to me failing to identify that I had crossed the doctor/patient boundary with Patient A. With the benefit of hindsight and the work I have undertaken with my treating practitioners, I now understand how I failed to respect appropriated boundaries with Patient A. Particular 4: Around late October 2016, the practitioner spoke with Patient A on the phone and inappropriately asked if she would like to commence an affair with him and told her he was a medical professional and that she could trust him. Particular 5: In a consultation in late October 2016 Dr Segal said to Patient A "I could really fuck things up for you" when discussing a prospective affair. Particular 7: Inappropriate sexual relationship with Patient A between October 2016 and April 2019. Particular 8: Oral sex at the practice on 30 October 2016. Particular 9: Sexual intercourse at the practice between October 2016 and April 2019. 1. We will consider particulars 4, 5, 7, 8 and 9 together, because they all relate to the question of whether there was a sexual relationship between Dr Segal and Patient A. 2. It is alleged in Particular 4 that, in a telephone call in late October 2016, Dr Segal asked Patient A if she would like to commence an affair with him and told her that he was a medical professional and that she could trust him. 3. In her complaint of 23 May 2020 to the HCCC, Patient A said: In late October Dr Segal suggested towards the end of one of our sessions that he could "totally fuck things up for me", at the time I asked him to clarify however he said he had to finish up as patients were waiting and I exited the room. Approximately 20 minutes later, I messaged Dr Segal on his private mobile and asked him if he was implying what I thought he was implying – he responded immediately with a yes and said he would call me the following day. During that phone call he suggested that we start a sexual relationship, that it would be safe as he is a medical professional and that I could trust him – he was also aware at the time that I was considering leaving my husband. 1. These allegations were repeated in the document provided by Patient A to the HCCC on 16 June 2020. 2. The document provided by Patient A to the HCCC on 16 June 2020 also said: After sending through this initial complaint, more information has come to light via conversations with those whom are aware of the situation as well as playing back history in my mind over and over again and searching through documents etc. As mentioned, I have already sent through bits and pieces however not everything and not all in one document, I have found 4 text messages that are not all that incriminating, however represent the commencement of our relationship (see attached). I cannot seem to access any other messages for some reason. 1. Dr Segal also stated that he was unable to retrieve any relevant text messages from his mobile telephone. 2. Patient A, in her statement for these proceedings, dated 26 August 2020, said: 21. Towards the end of a consultation in late October 2016, I stood up to leave and Dr Segal said words to the effect of "I could really fuck things up for you". I asked him to clarify what he meant but he dismissed it and I walked out. 22. At the time of this consultation I was staying at the Meriton apartments in Bondi Junction as I needed some time out from my husband. After this consultation, I was confused and I wasn't sure what Dr Segal meant. While on the corner of Old South Head Road and Edgecliff Road driving back to the Meriton, I realised that Dr Segal was suggesting an affair. 23. I sent Dr Segal a text message saying words to the effect of either "Are you suggesting what I think you're suggesting" or "Are you saying what I think you're saying?". He replied yes and said that he would call me the following day. 24. The next day I was walking up to the day care on Old South Head Road when Dr Segal called. I can't remember exactly what he said but he asked something along the lines of whether I was interested in starting something, that it would be safe as he was a medical professional and I could trust him. I replied yes. 1. In cross-examination before us, Patient A said that the phone call from Dr Segal which followed her text to him after the consultation in late October 2016 was "either the following day or the day after" the consultation. Patient A was also questioned about whether it was in the course of that telephone call, that Dr Segal said that he was a medical professional and that she could trust him. The following exchange took place (transcript p 43): Q: And it's during that phone conversation that he asked you whether you'd like to commence an affair with him? A: Correct. Q: And it was during the same conversation, was it, that he told you he was a medical professional and you could trust him? A: I believe it was then. Q: But you are a little uncertain about that? A: It was either then or during our first sexual engagement which were a few days apart. 1. Dr Segal has consistently denied the allegations in particulars 4 and 5. We will discuss our findings in relation to particulars 4 and 5 below. 2. Patient A was asked in cross-examination about the telephone call the subject of particular 4. Patient A said that Dr Segal initiated the call, and she believed that it took place on Friday 27 October 2016, towards the end of the working day (transcript, p 41). 3. We note that 27 October 2016 was a Thursday, not a Friday. There was a consultation between Dr Segal and Patient A on Thursday 27 October 2016. The telephone records provided do not record a call having been made on Thursday 27 October 2016 or on Friday 28 October 2016 from Dr Segal to Patient A. As we set out in [68] above, Patient A, in her statement, said that she was "walking up to the day care centre on Old South Head Road when Dr Segal called" the day after a consultation. The telephone records do not support Patient A's recollection as set out in her statement. We refer to the evidence of Patient A set out in [69], above, speculating that the call in question could have occurred two days after the consultation. Two calls were made by Dr Segal to Patient A on Saturday 29 October 2016; one at 7:22am and the other at 11:55am. Clearly, those calls were not made at the end of the working day. The telephone records for calls initiated by Patient A begin on 5 November 2016, so we are unable to say on the basis of the records, when or if Patient A called Dr Segal in October 2016, and we note, in any event, that that is not the allegation. 4. We note that the telephone records do not show a call from Dr Segal to Patient A on 21 October 2016, 22 October 2016 or 23 October 2016, noting that the consultation before the consultation of 27 October 2016 was on 21 October 2016. 5. The notes of the consultation between Patient A and Dr Segal on Thursday 27 October 2022 are set out above at [46(10)]. The next consultation after that was on 7 November 2016. 6. In view of the telephone records showing that Dr Segal did not call Patient A on Thursday 27 October 2016 or Friday 28 October 2016, and given that Patient A specifically tied the phone call to "the end of the working day" (transcript p 41-42), the HCCC has not discharged its onus of proof with respect to the allegation in particular 4. Neither the recollection given by Patient A in her statement of 26 August 2020 nor the recollection given in evidence before us can be readily reconciled with the objective evidence as to the dates upon which consultations took place and the telephone records. 7. The allegation in particular 5 is linked with the allegation in particular 4. There is no evidence, apart from Patient A's, that Dr Segal said to her, in a consultation, "I could really fuck things up for you". It is an odd, ambiguous, highly inappropriate statement for a doctor to make to a patient. We have found that Patient A's evidence in relation to the conversation and telephone calls alleged as having occurred in late October 2016, and triggering the beginning of a sexual relationship, is unreliable. We are unable, also, to find that particular 5 has been proven on the balance of probabilities. We bear in mind that a witness is likely to have imperfect recall of events which occurred years in the past, however, Patient A's evidence in relation to the events the subject of particulars 4 and 5, recalled as they were in some detail almost four years after the events alleged, without the benefit of contemporaneous notes, had the hallmarks of a reconstruction of events. 8. Dr Segal denies that he had a sexual relationship with Patient A at any time. 9. In her complaint to the HCCC received on 23 May 2020 [Exhibit A1 Tab 4], Patient A alleges that the following incidents took place: 1. A meeting between her and Dr Segal on Sunday 30 October 2016 at about 6pm at the practice, in the course of which she performed oral sex on Dr Segal, following which Dr Segal drove her to Westfield, where she had a dinner engagement. Patient A said that she met Dr Segal at the back entrance to the practice and that he "switched off the camera for the timeframe we were inside". 2. On Tuesday 8 November 2016, Dr Segal came to her house and performed oral sex on her and had penetrative sex without a condom. Patient A's husband was away on business at the time. Dr Segal stayed at her house for approximately two hours. 3. On Thursday 10 November 2016, Dr Segal again came to her house and again performed oral sex on her as well as having penetrative sex. Dr Segal stayed at her house for approximately 45 minutes. 4. This 'continued to happen' in Dr Segal's rooms and at Patient A's home 'during the day between his clinics'. 5. After Patient A left her husband in late January 2017, her contact with Dr Segal became more frequent. It continued until April 2019. 6. On one occasion, Dr Segal set Patient A up with a friend of his, and, prior to her first date with that friend, Dr Segal came to her house and had sex with her. 7. Dr Segal arranged for his practice manager to call Patient A to make appointments to fit her in between patients. Patient A kept those appointments, and penetrative sex took place. Dr Segal would either bulk bill the appointment or, on occasions, charge Patient A. 1. In the further information provided by Patient A to the HCCC, she alleged that, on 13 February 2017, Dr Segal came to see her and had anal sex with her, after becoming 'furious' that she had had unprotected sex with another man the evening before. She further alleged that in May 2017 she and Dr Segal had a Facetime call during which they masturbated. 2. In her statement of 26 August 2020, Patient A gave considerable detail about the alleged incidents up until the end of May 2017. Her evidence about sexual encounters subsequent to that time was very much less detailed. 3. In relation to the incident of 30 October 2016, set out in [78(1)] above, in her statement of 26 August 2020 Patient A gave an account of what she was wearing and where she purchased some of the items she was wearing. She said that she caught a taxi to the practice and asked the taxi driver to wait because she thought that Dr Segal did not have a lot of time. She said that she met Dr Segal at the back entrance of the practice, and that he said that he had to switch off the camera. She gave considerable detail about the alleged sexual encounter. She said that the taxi driver did not wait, and that Dr Segal drove her to Westfield Bondi Junction in his 135 BMW black convertible. 4. It was Dr Segal's evidence that his BMW convertible was white, and that he had never had a black BMW convertible. 5. In relation to the allegations set out in [78(2)], concerning 8 November 2016, in her statement Patient A added that she had asked her mother if Patient A's child could stay with her that night. Patient A said that it was raining during that day. She gave considerable detail about the sexual encounter, which she said comprised oral sex given by Dr Segal and "penetrative sex". 6. In relation to the allegations set out in [78(3)] concerning 10 November 2016, in her statement Patient A added some circumstantial detail, including that her husband was still away. 7. In her statement, in relation to the allegation in [78(4)] Patient A said: 47. On some Mondays and Wednesdays Dr Segal would come to my house between clinics. It was always really quick, 5 to 10 minutes, penetrative sex or oral sex on him, never on me. I felt like it was always about his pleasure. On Fridays he only worked in Rose Bay so he didn't really have time and his wife was always around during the day. 48. Sometimes Dr Segal would get his practice manager, Zillah Ehrlich to call me and fit me in between patients, where I would show up at his practice and have penetrative sex with him. I remember feeling special and my ego was inflated, because he was squeezing me in and there was a waiting room full of patients. I was feeling powerful but actually wasn't getting anything out of it. 49. Occasionally we might discuss a medical question, but it was agreed to go there for sex. Dr Segal would say words to the effect of "come for a hug". Prior to this time, I mostly paid for my consultations, but then he started bulk billing me. I would go to pay and Zillah would tell me he had bulk billed me. On occasion he charged for his services. 50. I always thought that Zillah must know what was going on. I recall he locked the doors. In that practice they just open the doors and come in, and she tried once when the door was locked and he quickly zipped up. There are two doors to the consultation room. A front door, which I came in, and a back door, which leads to the back corridor. He often asked me to lock the front door. … 54. From November 2016 to March 2017 Dr Segal and I would either meet in his rooms or at my house. After the time where Dr Segal came to my house on 10 November 2016, each visit with him lasted less than 30 minutes, but typically 5 to 10 minutes. I was fine with this at the time because Dr Segal and I had a very conversation based relationship and I enjoyed that part more than the sexual relationship. 55. I no longer have copies of other text messages sent between myself and Dr Segal after 14 October 2016 as these have been deleted from my phone. However, the texts consisted of general personal life information such as organising a meet up, and also messages of a sexual nature. We occasionally sent photos. At some stage he sent photos of him with his shirt off, and I sent him naked photos of myself. … 58. After I separated from my husband, the relationship with Dr Segal became more frequent as there was more opportunity to see each other and we spent hours on the phone each day as he drove to and from work. Dr Segal and I would typically have penetrative sex, occasionally just oral sex, about 2-3 times a week at [named] Road (where patient A was staying). 59. Dr Segal provided a level of support for me during my divorce and the course of my life that followed, however, this came with the expectation of either penetrative or oral sex on every occasion. 60. Dr Segal used to come to my house at [redacted] Road after running group in the mornings during the week. Dr Segal's brother-in-law saw him outside [named] Road at about 6:30am one morning. … 62. Around February 2017 I told Dr Segal that I had unprotected sex with a man I went on a date with. Dr Segal was furious with me and seemed genuinely upset, so much so that he asked me to come and meet him. 63. I drove to meet Dr Segal, he had gone to Bondi Beach for a swim…I turned up in my car and he was wet. I told him to get in the car and he was really upset that I had had unprotected sex with a stranger and couldn't have sex with him. 64. Perhaps the same or following day Dr Segal came over to my place at [named] Street and we had anal sex. I felt like I didn't have a choice but I allowed it. Dr Segal had talked about a preference for anal sex. He told me to go and get an STI test. … 66. Around the same time, one of Dr Segal's best friends, [named], was single and Dr Segal had tried to set me up with him. I saw [named] for the first time on 15 February 2017. We had matched and chatted on Tinder so we made a time to have a glass of wine. 67. Dr Segal, knowing and kind of facilitating this set up, came to me at [named ] Road before the date and we had sex, causing me to be late for [named]. … 85. I moved to my current address in February 2019. Dr Segal only came over once, in April or May 2019 on his way to choir at the Kehillat Kadimah synagogue. We either had penetrative sex or I gave him oral sex, I think oral. … 88. Around the last quarter of 2019 Dr Segal called me. He was going to choir practice and asked me to come around. I was involved with someone at this time and said to Dr Segal words to the effect of "it would have to be in public because I know what you want from me". We didn't meet up. 1. It was Dr Segal's evidence that he never visited Patient A at any of the places at which she lived. 2. In cross-examination at the hearing before us, Patient A referred to 'weekly counselling sessions" with Dr Segal at the practice. She said that she had had approximately 17 consultations with Dr Segal at the practice, and indicated that those consultations 'predominantly' or 'typically' involved sexual intercourse, touching, kissing and conversation (transcript p 26). 3. The Medicare billing records show that there were 17 consultations between Dr Segal and Patient A from 15 October 2016 to 27 December 2017. They took place on 15, 19, 21, 27 October 2016, 14 November 2016, 9 December 2016, 13 January 2017, 10 February 2017, 3 May 2017, 31 May 2017, 16 June 2017, 28 June 2017, 16 August 2017, 13 September 2017, 16 October 2017, 29 November 2017 and 27 December 2017. The consultations in October 2016 were more frequent than weekly. The subsequent consultations were more widely spaced than weekly, and were closer to being monthly. The Medicare billing records do not support Patient A's claim that there were "weekly counselling sessions" at the practice, between her and Dr Segal, except, perhaps, for two consultations in October 2016 which were six days apart. 4. In cross-examination, Patient A identified the consulting room of the practice in which her consultations with Dr Segal took place. That room has two doors, one of which gives access to the area leading to the main entrance to the practice, and the other of which leads out to a hallway towards the rear of the building. Patient A said that the two doors had locks on them. She was asked what the locking mechanism was, and she said [transcript p 63]: I only know that it wasn't a key. 1. In cross-examination, Patient A said that Dr Segal arranged the meeting with her at the practice on Sunday 30 October 2016 by telephone or message. The telephone records show that Dr Segal telephoned Patients A at 18:24 on that evening. 2. In cross-examination, Patient A said that, in the evening of 30 October 2016, she met Dr Segal outside the rear entrance door to the practice. She said that Dr Segal opened the door and asked her to wait outside whilst he turned off the camera. Then she entered the building and both she and Dr Segal walked to Dr Segal's consulting room. She agreed that she did not see Dr Segal turn off a camera. 3. With respect to the allegation that she had sexual contact with Dr Segal during consultation hours, Patient A said, in cross-examination, at first, that, her 17 consultations with Dr Segal were "predominantly" of a sexual nature (transcript p 26). Later, in cross-examination, Patient A said that, out of 17 consultations with Dr Segal, sexual contact beyond a hug occurred on about 5 or 6 occasions (transcript p 78). She said that Dr Segal locked the back door of the consultation room and she locked the front door. Patient A agreed that up to four general practitioners would be working at the time, and that nursing staff and reception staff would be in the building, as well as patients in the consulting rooms and waiting rooms. 4. Patient A agreed, in cross-examination, that she was alleging that, in 2017, Dr Segal would come to one or other of the two residences where she was staying, between two to three times per week, and have sex with her. She agreed that this meant that Dr Segal attended at one or other residence between 50 to 70 times in a six month period. Patient A, however, was not directly aware of anyone seeing Dr Segal at or near either residence. Patient A said that Dr Segal had told her once that he had run into his brother-in-law near one of the places she stayed. Dr Segal denied this. 5. Patient A said that the longest period of time Dr Segal spent at her house was 2 hours, on 8 November 2016, and the shortest visit at which sex took place was a five minute visit. In relation to 8 November 2016, in her statement of 26 August 2020, Patient A said that Dr Segal was with her "probably from 6pm to 8pm". She said that she thought that Dr Segal worked at Penrith that morning and at Balmain or Five Dock in the afternoon. 6. Dr Segal provided the day sheets from the skin clinic at Penrith for 8 and 10 November 2016. The day sheets for 8 November 2016 show that Dr Segal worked at Penrith for the whole day, beginning at 8:40am. In the afternoon, he had a long appointment with a patient, at the Penrith clinic, and that appointment began at 5:10pm. We take notice of the fact that it takes at least 78 minutes in, light traffic, to travel by car from Penrith to the suburb in which Patient A was living at that time. 7. In her statement of 26 August 2020, Patient A said that Dr Segal came to her house on 10 November 2016 whilst it was light, probably around 6:30pm. She set out considerable detail of their sexual interaction, and she said that the visit lasted for 45 minutes. 8. The day sheets from the skin clinic at Penrith for 10 November 2016 show that Dr Segal had appointments at 5:20pm, 5:30pm and 6:00pm. Again, we note the time that it takes to travel by car from Penrith to Patient A's suburb. Accepting the integrity of the day sheets from the skin clinic at Penrith, Dr Segal could not have been at Patient A's home until sometime after 7:30pm on 10 November 2016. 9. In her complaint to the HCCC, received on 23 May 2020, Patient A said: I do not have any evidence however I believe that Dr Segal has spread a horrible rumour about me within our community, after declining him access to my home as I had become involved in a serious relationship. 1. In cross-examination, Patient A indicated that she became aware, "around the end of 2019" that undesirable rumours were circulating in the community about aspects of her behaviour. Patient A indicated that the information she had about the source of the rumours led her to believe that Dr Segal was the source of the rumours. Patient A agreed that she told Dr Jacobs, late in 2019, that Dr Segal was the person she had referred to from her first consultation with Dr Jacobs as someone with whom she had had an affair. Patient A said that, in the first half or first quarter of 2020, prior to Dr Jacobs making a complaint about Dr Segal, Dr Jacobs told her that he had seen Dr Segal some years previously as a patient, and that he saw him in the context of a disciplinary complaint of a sexual nature. Patient A said that she went home and threw up in response to this disclosure. She agreed that this influenced her to report Dr Segal, as it made her think that Dr Segal was a repeat offender and that she should ensure that it did not happen to anyone else. She said that, after she made her complaint, she told Dr Jacobs that she had made it. 2. Patient A also said that she had been thinking about what the effect on her had been of her relationship with Dr Segal. She had seen the movie Bombshell about the MeToo movement and the Fox network, and she had been told that Dr Segal had previously been involved with a staff member or patient and had been 'penalised' (transcript p 27-32). 3. Ms Ehrlich, who has, since 2016, been the full time Practice Manager of the practice, and who has worked at the practice since 2014, made a statement in relation to this matter on 10 August 2020. She also gave oral evidence. 4. In her statement, Ms Ehrlich said: 5. I am familiar with [Patient A] as she has been a patient of the Practice for some time. I am also aware of the Complaint [Patient A] has made against Dr Segal. 6. I was not and I am not aware of Dr Segal engaging in a sexual relationship with [Patient A] or any other patient. If I had become aware of a sexual relationship between Dr Segal and [Patient A], or a sexual relationship between any staff member and patient at the practice, it would be my invariable practice to report this to the Practice owner as soon as possible. 7. I do not recall having ever made special arrangements for [Patient A] to consult with Dr Segal in between his appointments with patients. I also do not recall contacting [Patient A] at the request of Dr Segal in order to arrange a consultation with her. 8. While I do not recall any specific instances of this, I would have only ever received calls from [Patient A] wishing to arrange an appointment with Dr Segal in the same manner in which I would take bookings for any other patient wishing to see a practitioner at the Practice. 1. In cross-examination, Ms Ehrlich confirmed that all of the consulting room doors have always had locks. Ms Ehrlich gave evidence via audio visual link from consulting room 5 at the Practice, and showed the Tribunal over the audio-visual link that the locks are what she described as a 'nib lock', being an element within the handle which locks the door when turned clockwise and unlocks the door when turned anti-clockwise. 2. In cross-examination, Ms Ehrlich confirmed that she could not recall being asked by Dr Segal to call Patient A and fit her in between patients, but she said it could have happened. She said that she believed that, if it had happened frequently, she would recall it. Ms Ehrlich denied ever having tried to come into the consulting room whilst Patient A was in there with Dr Segal, and said that she would never attempt to enter a consulting room without knocking. 3. Ms Ehrlich said that there is a TV behind the reception desk which plays "pretty loudly" and that, in consulting room 5, she could not hear anything going on at reception. She said that consulting room 4, which Dr Segal used, was far away enough from the reception that nothing could be heard. 4. Ms Ehrlich said that Dr Segal, like all staff, had after hours access to the practice. She said that there is an alarm at the back door which needs to be switched off by anyone gaining access. She was also aware of the security cameras at reception and in the back hallway. 5. Dr Terkasher, the principal of the practice, provided a statement dated 7 August 2020. Dr Terkasher said that she was not aware of Dr Segal engaging in a sexual relationship with Patient A, or with any other patient. Dr Terkasher said that she had never received any complaints about Dr Segal. She was not aware of him ever locking the door of the consulting room during a consultation. 6. Dr Terkasher provided a document from The Cabling and Security Guys Pty Ltd, who installed the security cameras at the practice. The document says, in relation to the security cameras at the practice, that the cameras were installed on 16 June 2016 and further says, among other things: The system is not configured to pause recording and there are no features accessible by any user that allow the recording to be paused or stopped. 1. Footage from the security cameras is only kept for six months. 2. Dr Diamond provided a brief report, dated 1 February 2022, and his patient notes for Dr Segal. Dr Diamond also gave oral evidence. 3. Dr Diamond's notes record that Dr Segal told him, on 18 February 2022 that nothing other than phone calls and texts took place between him and Patient A (Exhibit R1 p 113). 4. Dr Diamond's notes of his consultation with Dr Segal on 27 January 2022 record that Dr Segal, in response to being asked about "the sheer volume of texting", "Talks candidly about being seduced", and said "She was making me the elevated/centre of attention, recipient of private information". In response to the question "Why not take it further", Dr Diamond records Dr Segal responding "I didn't want it. I was being titillated by telephone contact" (Exhibit R1 p 114). 5. As we have said, above, the notes of Dr Segal's treating psychologist, Dr Shapiro, were in evidence as part of Exhibit A 1. Dr Shapiro was not called to give evidence, and his notes were admitted without objection. 6. Dr Shapiro's notes record that, in a telephone consultation on 9 June 2020, Dr Segal said, in the context of discussing with Dr Shapiro what took place between him and Patient A, that he had had his full-time nurse with him, that he did not see patients alone, and that the holes in Patient A's story were that there was no camera, there are no locks on the doors, and that "Roz" was always there (Exhibit A 1 p 171-174). Ms Bailey's first name is Roslyn. 7. We find that there have been cameras in the practice since 16 June 2016 (the evidence of Dr Terkasher), that there were, at all material times, locks in the handles of the doors to all of the consulting rooms (the evidence of Ms Ehrlich), and that Ms Bailey was not working with Dr Segal on weekdays during 2016, and that he did not have a nurse present continuously during his consultations with Patient A (the evidence of Ms Bailey, Patient A and Dr Segal under cross-examination (transcript p 133)). Dr Shapiro's notes indicate that Dr Segal misled Dr Shapiro about these matters. 8. As we have said above, at [50], Dr Segal gave evidence before the s 150 hearing that a nurse was always present during all of his consultations, and that having a nurse present during consultations had been his practice since he began at the practice in 2013. During the s 150 hearing, the following exchange took place between Prof Karpin and Dr Segal: Prof Karpin: So, since 2013, you've had a nurse in with you whenever you do any consultation? Dr Segal: Consultations, yes. Prof Karpin: For skin cancer or for anything? Dr Segal: Well because I only do skin cancer, there's no separate rooms she goes for. So, even for the general practice consultations, she's around in my room and she usually helps if – maybe with temperatures, blood pressures, urine if that applies but bear in mind that happens very infrequently. 1. Later in the s 150 hearing, Dr Segal said that the nurse might have been moving in and out of the consulting room during the consultations with Patient A. He also said that he recalled a nurse moving in and out of the room during the consultation of 19 October 2016. 2. In cross-examination before us, Dr Segal said that there would have been nurses occasionally in his room when Patient A was there. 3. We have found that Dr Segal did not have a nurse present continuously during his consultations with Patient A. Overall, Dr Segal's evidence to the s 150 hearing about that topic was inconsistent with itself and with evidence he gave at other times, and was misleading. 4. Dr Segal referred Patient A to Dr Jacobs, a psychiatrist. Dr Jacobs' notes in relation to Patient A were tendered in evidence by the HCCC, and Dr Jacobs gave oral evidence. 5. Dr Segal's notes record that he wrote a referral letter for Patient A to Dr Jacobs on 24 November 2016. Dr Jacobs' notes record a consultation with Patient A on the same day. 6. Dr Jacobs' notes of his consultation with Patient A on 24 November 2016 record that she told him about her high libido and said that she was currently having an affair, though she did not say with whom. The notes record that Patient A said that she met the person with whom she was having the affair one month previously, and that he was married. 7. In her evidence before us, Patient A said that Dr Segal was the first person (other than her husband) that she had sex with whilst she was married. 8. Dr Jacobs' notes of his consultation with Patient A on 7 December 2016 indicate that Patient A spoke of her involvement with three men at the time of that consultation, possibly including her husband. 9. Dr Jacobs' notes of his consultations with Patient A on 23 January 2017, 25 July 2017, 12 February 2018, 8 March 2018, 16 March 2018, 22 March 2018, 27 March 2018, 11 April 2018, 19 April 2018, 20 April 2018, 26 April 2018, 27 April 2018 deal substantially with the various sexual relationships Patient A embarked upon during that time. There is no mention in the notes of those consultations of anyone who could be Dr Segal in the context of a sexual relationship, and there is no mention of the man with whom she had her first affair. Dr Segal is mentioned in the notes of 11 April 2018 as the person Patient A called the previous week when she had a traumatic situation with a man with whom she was having a relationship. 10. Dr Jacobs' notes for 28 May 2018 say, among other things: First actual sexual relationship outside marriage with someone who represents "authority" went on for 6/12 – caught wife. [Patient A] still sees him. Lots of appealing features but also problems. He has been mutual in his affection. She has seen 3 married men and certainly doesn't want to be seen as a marriage breaker, home breaker. 1. Dr Jacobs' notes for 1 June 2018, 8 June 2018, 15 June 2018, 22 June 2018, 29 June 2018, 6 July 2018, 13 July 2018, 20 July 2018, 27 July 2018, 3 August 2018, 10 August 2018, 17 August 2018, 22 August 2018, 24 August 2018, 31 August 2018, 7 September 2018, 14 September 2018, 28 September 2018, 5 October 2018, 12 October 2018, 19 October 2018, 26 October 2018, 30 October 2018, 9 November 2018, 16 November 2018, 20 November 2018, 14 December 2018, 5 February 2019, 3 May 2019, 16 May 2019, 31 May 2019, 5 July 2019, 5 October 2019, 15 November 2019, 26 November 2019, 12 December 2019, 24 December 2019, 30 December 2019, 31 December 2019, 3 January 2020, 30 December 2019, 31 December 2019, 3 January 2020, 6 January 2020, 10 January 2020, 13 January 2020, 17 January 2020, 21 January 2020 and 30 January 2020 deal with the many sexual relationships embarked upon by Patient during the period covered by the notes, together with other topics. There is no mention of anyone who could be Dr Segal. 2. On 6 February 2020, Dr Jacobs wrote in the notes that Patient A: Spoke about Doctor who took advantage of her. Originally, "didn't want to wreck his family". However, concerns that she may not have been a one-off victim. … Seems to be quite stirred up about her past – S.S. & [redacted] - clearly abused – unequal power exercised. 1. Dr Jacobs' notes for ten further consultations between 6 February 2020 and 28 July 2020 are provided, but there is no mention in those notes of Dr Segal, either directly or indirectly. 2. Dr Jacobs made a complaint in relation to Dr Segal to the Australian Health Practitioner Regulation Agency (AHPRA) dated 30 May 2020. The complaint alleged the occurrence of conduct of concern on the part of Dr Segal from late October 2016 to April 2017. The text of the complaint was as follows: I was referred [Patient A] in late 2016 by the practitioner named, concerned that [Patient A] may have been hypomanic due to her having a number of sexual liaisons as her marriage was falling apart. I did not diagnose her as having Bipolar Disorder. She mentioned having a number of sexual relationships with "men in their 40s who were married with families". By her descriptions I suspected that one was the doctor named but she did not name him and said she "did not want to ruin families". At this time I didn't question her further for particulars. I have seen her on/off for 3½ years through various relationship events. In the course of her most recent relationship issues arose that drew her attention back to the sexual behaviour of the practitioner in 2016/2017. She realised it was wrong and was an exercising of unequal power. In hindsight, she realised she had been abused. She saw me again for therapy late last year and revealed the doctor's name and the general description of events below. On 22 May 2020 she requested I make a notification. She told me he would at times turn off security cameras to enter the premises. He would sometimes see her between patients to have sex in the surgery. He would bulkbill these sessions. He would call her to come in for the above sessions a couple of times a week. 1. In cross-examination before us, Dr Jacobs said that it was his understanding that Patient A had requested him to make a notification to AHPRA, on 22 May 2020, because Patient A was in a relationship with a medical practitioner at that time, whom she had met a short time prior to May 2020, and that medical practitioner had strongly urged her to ask Dr Jacobs to make a formal mandatory notification. 2. Dr Jacobs said that Patient A had told him, in late 2019, that she had had a relationship with Dr Segal, but that Dr Jacobs had not made a notification at that time because Patient A did not wish to "destroy the marriages of various men that she had had relationships with" and Dr Jacobs also wished to preserve the therapeutic relationship he had with Patient A. He said that he considered that her life "may have been at stake" (transcript p 51). 3. Dr Jacobs said that he could not recall disclosing any information about Dr Segal's history to Patient A, but he agreed that it was possible. 4. In cross-examination, Patient A denied that she said to Dr Jacobs that Dr Segal "would at times turn off security cameras to enter the premises". It was put to her that she told Dr Jacobs that Dr Segal "would sometimes see her between patients to have sex in the surgery", and she said that she did not recall it. She agreed that it was possible that she made those comments. 5. An affidavit with annexed photocopies of texts sent in a group, apparently by Patient A, was tendered in the HCCC's case. A text apparently sent on 11 April 2019 by Patient A to the group says "I had sex with Shaun last night" and there are references to "Shaun" and "Shauny" in other texts. The affidavit, sworn by another member of the texting group, says that Patient A took a screen shot of the messages from the deponent's phone on 29 September 2020. However, they were not produced to the HCCC until immediately before the hearing in this matter. Given the nature and seriousness of the allegations in relation to which the text messages are sought to be used, we do not consider that they constitute evidence of sufficient integrity to be probative of the facts alleged in the texts. Given the detail with which Patient A has set out her memory of events as long ago as October 2016, it is curious that she did not recall these texts earlier in the process, especially as she apparently took a screen shot of the messages on 29 September 2020. In addition, the context and tone of the texts does not inspire confidence in us as to the veracity of their content. Credibility 1. In relation to particulars 4, 5, 7, 8 and 9, we have been provided with contradictory evidence within and between the cases of the applicant and the respondent. 2. In assessing the credibility of the witnesses, we bear in mind the words of Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73]-[79]: Credit 73 In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks: …human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. 74 I made the following observations in Craig v Silverbrook [2013] NSWSC 1687 at [140]-[142]: 140 Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions. 141 In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [30]-[31]) when they remarked (citations omitted): [30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly form the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The "Palitana"): "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility… 142 In the recent decision of McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, and the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. Those observations are particularly relevant to the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [41] per McHugh J and see generally comments in Ritchie's Uniform Civil Procedure NSW at SCA s 75A.20). 75 In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that "the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation." This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt (2014) 86 NSWLR 226 at [56]. 76 Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]-[77]. After referring to Watson v Foxman, his Honour said: 71 In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation. 72 I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, at [48]: "When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2)." 73 The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7]. 74 A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. 75 In this regard, I have also found useful what Lord Pearce wrote, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, at 431: "Credibility involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." 76 The circumstances of this case, make what was written by Tamberlin J in Lake Cumbeline Pty Ltd v Effem Foods Pty Ltd (trading as Uncle Ben's of Australia) (Federal Court of Australia, Tamberlin J, 29 June 1995, unrep), at 122 - 123 (in a passage cited with approval by the High Court when it upheld his Honour's decision: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599, at [15]) appropriate to remember: "[Given the lapse of time] between the events and conversations raised in evidence and the hearing of the evidence before me, the only safe course is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence. In circumstances where the events took place so long ago, it must be an exceptional witness whose undocumented testimony can be unreservedly relied on. The witnesses in this case unfortunately did not come within that exceptional class. The discussions referred to in evidence were capable of bearing quite opposed meanings depending on subtle differences of nuance and emphasis, and a proper appreciation of the significance of those matters must necessarily be considerably diminished over such a long period of time." 77 Finally, I should mention an article by the former the Chief Judge at Common Law, P McClellan entitled "Who Is Telling the Truth? Psychology, Common Sense and the Law" (2006) 80 ALJ 655, in which he wrote, at 665, quoting a passage from the "Guidelines Relating to Recovered Memories" (2000) of the Australian Psychological Society: "Memory is a constructive and reconstructive process. What is remembered about an event is shaped by how that event was experienced, by conditions prevailing during attempts to remember, and by events occurring between the experience and the attempted remembering. Memories can be altered, deleted and created by events that occur during and after the time of encoding, during the period of storage, and during any attempts at retrieval." 77 In Grundel v Registrar General (1990) 5 BPR 11,217 at 11,219, McClelland J observed: Accordingly on its first basis, the plaintiff's claim is essentially one against the estate of a deceased person based on alleged conversations between the plaintiff and the deceased of which the only evidence is that of the plaintiff. Generally speaking, in cases of that kind, by reason of the danger of estates of deceased persons being subjected to false or exaggerated claims in respect of matters of which the deceased has no opportunity to give his own account, the Court will treat such evidence with considerable caution, if not suspicion, will scrutinise it with great care, and act on it only if convinced of its truth… 78 These observations were reiterated by Robb J in Plaska v Coffey [2014] NSWSC 1930 at [35], and similar remarks were made by Wilcox J in Clune v Collins Angus & Robertson Publishers Pty Ltd (1992) 25 IPR 246 at 253. 79 In Neale v Bank of Western Australia [2014] NSWSC 315, Hammerschlag J at [198] made the following observations: 198 Where a party seeks to rely upon spoken words as a foundation for a cause of action the conversation must be proved to the reasonable satisfaction of the Court. This means that the Court must feel an actual persuasion of its occurrence or its existence. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, 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 of whether the issue has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences: see Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 712; Rejfek v McElroy (1965) 112 CLR 517 at 521; Watson v Foxman (1995) 49 NSWLR 315 at 319. 1. Patient A stated clearly, in cross-examination, that the only prompt to her memory, used by her for the writing of her complaint, was an on-line calendar which she used to record her appointments with Dr Segal and Dr Jacobs, and other appointments. She denied keeping a diary. 2. Patient A made her complaint about Dr Segal on 23 May 2020. The complaint purported to provide detailed information, some of which is set out above. Further detail was subsequently provided by Patient A in the document at Tab 5 of Exhibit A 1. Patient A's statement of 26 August 2020 gave a great deal more detail, including dates, accounts of her states of mind, quotes of direct speech, recollections of her location at the time that she answered phone calls, and details of what she was wearing during events alleged to have occurred almost four years previously. The statement contains a considerable amount of circumstantial detail in relation to those events. Patient A says, for example, in the statement, that it was raining in the morning of 8 November 2016. 3. It is clear from Patient A's evidence, and from the evidence of Dr Jacobs, that Patient A's social life became increasingly chaotic from October 2016 as she engaged in sexual encounters and relationships with many men and become involved in various situations which posed risks to her physical and mental health. In the same period of time, her marriage broke up, she was caring for her small child for some of the time, and she was, at various times, running one of several businesses. Secrecy concerning aspects of her lifestyle assumed importance to her from time to time. 4. We do not consider that it is probable that the detail set out in Patient A's statement of 26 August 2020 could be an accurate recollection of the many events that she relates. It is not probable that, in the context of a complicated and highly eventful life, events could be recalled nearly four years later in such great detail without the prompt of a contemporaneous written account, which Patient A has said does not exist. It is our impression that much of Patient A's account in her statement is a reconstruction or construction of events, assisted by her calendar, some of the telephone records and possibly her medical records. Patient A's comment in her document, provided to the HCCC on 16 June 202, set out at [66] above, is consistent with this impression. 5. We take into account that Patient A has frankly admitted that she was prompted to make a complaint about Dr Segal because she came to believe that he had spread a rumour about her conduct. Patient A also said that she was influenced by the film "Bombshell" and by the MeToo movement. She said that she felt an obligation to complain once she was told that Dr Segal had a previous complaint of a sexual nature made about him. She also said that her sexual relationship with Dr Segal was consensual. She chose to consult him. She had other options. She said that she came, however, to think that the power imbalance between them was such that she could not have consented. 6. We note that it was Dr Segal's evidence that Patient A telephoned him in 2019 and berated him about spreading a rumour about her. He denies spreading a rumour (see Dr Segal's statement of 18 June 2020). 7. We bear in mind that Patient A preserved the text messages between her and Dr Segal from October 2016, but deleted everything subsequent to that date. 8. Ms Ehrlich's evidence was that she was not aware of any sexual relationship between Patient A and Dr Segal. She denied ever trying to open the door of Dr Segal's consulting room, as alleged by Patient A. 9. Patient A was mistaken as to the colour of Dr Segal's car, although she said that she had ridden in it. She could not recall what kind of lock was on the consulting room door, although she said that she had locked it several times. She said that Dr Segal told her that he was turning off the camera at the consulting room, but that could not be done. 10. As set out above, some of the dates given by Patient A for telephone conversations do not accord with the telephone records. Her evidence about having weekly 'counselling sessions' with Dr Segal does not accord with the Medicare records or the practice notes. Her evidence about Dr Segal visiting her at home at specified times on 8 and 10 November 2016 is inconsistent with the day sheets of the skin clinic at Penrith. 11. Dr Jacobs' record of what Patient A told him about her relationship with Dr Segal varies very significantly from Patient A's accounts in her complaint, in her statement of 26 August 2020 and in her evidence before us. Although we acknowledge that medical notes of what a patient relates about the events of their life are not always perfectly accurate, Dr Jacobs' record is at such significant variance with Patient A's accounts that we conclude that she must have given him a version of events which varies widely from her complaint, her statement and her evidence. 12. Patient A gave her evidence confidently and cogently. However, as we have set out, some of the matters about which Patient A gave evidence confidently are at odds with the telephone records and the Medicare records, which we have no basis to doubt. We found Patient A's evidence of her allegations that Dr Segal would often come to her home for five or ten minutes between patients to have sex inherently unlikely. We note that, although Patient A provided dates and times for the encounters alleged in 2016, fewer dates, times and details were provided for the encounters alleged to have occurred in 2018 and 2019. Patient A has admitted that she was partially motivated to complaint about Dr Segal because she came to believe that he had been the subject of a prior complaint of a sexual nature. As we have said, in many respects Patient A's life has had chaotic periods during the time directly relevant to the complaint in this matter. There are aspects of her life within that period that she has been anxious to conceal. Her lifestyle has been such that she has not always been in a position where she can disclose the whole truth about herself. In all of these circumstances, we do not consider that Patient A's evidence is reliable in the context of these proceedings. Whilst it is possible that some of the events the subject of the application before us occurred, or that events similar to the events described occurred, we cannot be confident of the occurrence of the specific events Patient A relates in relation to particulars 4, 5, 7, 8 and 9 of Complaint One. In making that assessment, we bear in mind the seriousness of the allegations and the gravity of the consequences of establishing them. 13. For the purpose of exculpating himself, Dr Segal gave factually incorrect and misleading evidence at the s 150 hearing on topics which were obviously critical to part of the complaints against him. He made statements about Ms Bailey always being with him in the consulting room knowing that the period of time under scrutiny began in October 2016. At best, he was very careless in failing to check or remember that Ms Bailey started working on weekdays at the practice in 2018, and, at worst, he lied to the panel. 14. Dr Segal gave factually incorrect and misleading, exculpatory, information to Dr Shapiro, in telling him that Ms Bailey was always present at consultations, that there were no cameras at the practice and that there were no locks on the doors at the practice. Dr Segal had every opportunity to check whether there were locks on the doors and whether there were cameras. Again, he was either extremely careless or he lied to Dr Shapiro. 15. Dr Segal gave evidence that he was unable to retrieve any of his text messages with Patient A. 16. From time to time whilst under cross-examination, Dr Segal seemed concerned to emphasise the chaotic nature and problematic aspects of Patient A's life and to paint himself as a concerned and helpful observer. We find his characterisation of himself in this context to be at odds with the evidence of the sheer number of telephone calls he made to Patient A. The evidence is that Dr Segal made 659 calls to Patient A in the same period that she made 157 calls to him. Dr Segal said, several times, that he called her so often because she asked him to. We reject this explanation. We find that the large disparity between the initiation of the calls arose because Dr Segal pursued communication with Patient A more avidly than she pursued him. We acknowledge that Dr Segal admitted, before us, that he obtained gratification from his communication with Patient A. 17. We do not consider that either Patient A or Dr Segal gave a wholly reliable account of the relationship between them from 14 October 2016 until April 2019. 18. The HCCC bears the onus of proof in relation to matters of fact alleged in the complaint. As we have said, the standard of proof is proof on the balance of probabilities on the basis of evidence of integrity. The HCCC has not proven the facts alleged in particulars 4, 5, 7, 8 and 9 to the requisite standard. Unsatisfactory Professional Conduct. 1. The National Law, in s 139B(1)(l) defines 'unsatisfactory professional conduct' to include: Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. We have found the factual allegations in Particulars 1, 2, 3, 6 and 10 to have been proven. In the application, all of those particulars are alleged to constitute unsatisfactory professional conduct, either individually or in combination with other particulars, on the basis that they constitute 'improper conduct' within the meaning of s 139B(1). 2. The HCCC provided a report of Dr Simon Young, a general practitioner. Dr Young was not required for cross-examination. In his report, Dr Young discussed the allegations against Dr Segal in the context of the ethical obligations of a general practitioner in New South Wales. We will refer only to those parts of Dr Young's report which deal, relevantly, with the particulars listed in [157] above. 3. In relation to Particular 1, Dr Young said: 41. There is nothing in the Progress notes from Friday 14 October 2016 to suggest a need for Dr Segal to give [Patient A] his mobile telephone number. The presentation was not one of urgency. Follow up was expected after obtaining blood tests at a further surgery consult. A competent, mindful GP would only provide a mobile telephone number when there was a medical reason to do so, such as relaying and urgent out of hours result, or if the patient were suicidal [sic]. 42. The Code of Conduct outlines, "Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties". (8.2). 43. The 'Sexual Boundaries: Guidelines for doctors' points out:- -the doctor-patient relationship is inherently unequal. The patient is often vulnerable. In many clinical situations, the patient may depend emotionally on the doctor. 44. The Code outlines:- - Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care" (8.2.2) 45. Professional boundaries include keeping professional and personal lives separate. Supplying a personal mobile telephone number to a patient could be seen as starting an inappropriate relationship with a patient under your care. 46. Assuming [Patient A's] version of events, it is my opinion that Dr Segal was inappropriate and lacked insight in providing [Patient A] with his mobile telephone number during the consultation on 14 October 2016. It is my opinion that regarding this action, Dr Segal's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. 1. We agree with Dr Young's analysis, and we adopt it. We consider that Dr Segal's conduct, in context, in providing his mobile phone number to Patient A on 14 October 2016 was improper conduct and amounts to unsatisfactory professional conduct within the meaning of s 139B(1)(l) of the National Law. 2. In relation to the exchange of text messages which formed the allegations in Particular 2, Dr Young discussed the content of the first 3 text messages and then said the following: 57. Dr Segal could have left the exchange at this point, however his subsequent texts blur professional boundaries and take on a more intimate and secret tone, with language that one would use more with a friend than a patient, implying a 'special' relationship. 58. Dr Segal is also telling [Patient A] what to do, rather than practising in a patient centred manner, and there is an element of grandiosity in his "started the process by talking to me". 59. As mentioned in the Preamble, good patient care includes -Recognising and respecting patients' rights to make their own decisions. -Ensuring that your personal views do not adversely affect the care of your patient. 60. The Code of Conduct outlines, "Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties." (8.2.2) 61. The 'Sexual Boundaries: Guidelines for doctors' points out:- - The doctor-patient relationship is inherently unequal. The patient is often vulnerable. In many clinical situations, the patient may depend emotionally on the doctor. 62. The Code outlines:- - Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. (8.2.2) 63. Insightful GPs keep all interactions with patients professional respectful, patient-centred and free of personal opinion. This includes mindful replies to patient's texts if texting is an agreed form of communication. Skilled general practice is about what you leave out – discerning GPs keep text communication to a minimum realising that the optimum arena for interactions is the surgery. Pragmatic GPs do not promise open availability. Professional GPs do not engage in inappropriate relationships with those under their care. 64. It is my opinion that the last two text messages sent by Dr Segal to [Patient A] after the appointment on 14 October 2016 were inappropriate and unprofessional. It is my opinion in regard to these texts, that Dr Segal's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. 1. We agree that Dr Segal's last two texts in the text exchange was inappropriate and unprofessional. The text exchange was inappropriate. Dr Segal's conduct, the subject of Particular 2, was improper conduct within the meaning of s 139B(1)(l) of the National Law and therefore unsatisfactory professional conduct. 2. With respect to the allegations in Particular 3, Dr Young said the following: 68. In my experience hugs do happen in the general practice setting. I don't believe a GP would ever initiate a hug without some degree of consent. In my practice, this would be limited to the end of a harrowing psychological session, where I might ask the patient if they needed a hug (male or female). Equally, a reassuring hand or leg squeeze by the GP might at times be appropriate. Prudent GPs might avoid such expressions, certainly not on a regular basis, as they are too open to misinterpretation. 69. As the 'Sexual boundaries: Guidelines for doctors' outlines:- - In managing sexual boundaries a doctor should be aware that: - sexualised behaviour includes any words or actions that might reasonably be interpreted as being designed or intended to arouse or gratify sexual desire - sexual assault ranges from physical touching (or examination without consent) to rape 70. [Patient A's] version of events implied that Dr Segal initiated hugging her at the end of each consultation and touching her on the hand and leg during consultations was of an intimate nature, so it follows that in my opinion is that this behaviour was inappropriate and possibly constituted assault. It is my opinion that in this regard, Dr Segal's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. 1. We do not entirely agree with Dr Young on this topic. We have had the advantage of hearing the evidence in this matter, in which Patient A clearly stated that, at the time, the hugs and the touches on the hand and leg did not make her uncomfortable, though she thought it was over familiar. In context, the hugs and touches did not constitute assault. However, hugging and touching by a GP, outside of the ambit of what is necessary by way of physical examination, is almost always inappropriate and ill-advised. In the context of the consultations between Dr Segal and Patient A in October 2016, the hugs and touching by Dr Segal were part of generating an inappropriate intimacy with Patient A and constituted improper conduct within the meaning of s 139B(1)(l) of the National Law and therefore unsatisfactory professional conduct. We agree with Dr Young that Dr Segal's conduct in this regard fell significantly below the standard expected of a medical practitioner of an equivalent level of training or experience. 2. Dr Young was not asked to comment upon the allegation that Dr Segal engaged in an inappropriate personal relationship with Patient A. Dr Segal admits this particular. The relationship was undoubtedly contrary to clause 8.2.2 of the Code, which is set out above in [161] in that it was an exploitative and inappropriate relationship between a GP and a patient. It was exploitative because Dr Segal pursued it for his own gratification and titillation and not exclusively for the benefit of Patient A. Dr Segal's conduct, the subject of Particular 6, by itself, constitutes improper conduct within the meaning of 139B(1)(l) of the National Law and therefore unsatisfactory professional conduct. 3. Dr Young was asked to address the telephone calls which are the subject of Particular 10. He said: 74. You have outlined the call charge records obtained by the Commission in the Statement of Facts under paragraphs 6.1 to 6.8. 75. The sheer volume of these calls and texts, and the duration of many of the calls, including the time frame over which they occurred, is far in excess of a normal therapeutic relationship, and more akin to a clandestine, intimate relationship. It would appear a dependency relationship has been set up, with the patient being dependent on the doctor and possible countertransference issues relating to the doctor (the doctor dependent on the patient). This would be detrimental to the patient-doctor therapeutic relationship. 76. The 'Sexual Boundaries: Guidelines for doctors' points out:- - The doctor-patient relationship is inherently unequal. The patient is often vulnerable. In many clinical situations, the patient may depend emotionally on the doctor. 77. The Code outlines:- - Never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. (8.2.2) 78. Insightful practitioners maintain professional boundaries, are aware of transference and countertransference issues, and avoid harming patients. 79. It is my opinion Dr Segal's conduct in the exchanging the volume of telephone calls and text messages with [Patient A] during the course of their therapeutic relationship was inappropriate and unprofessional. It is my opinion that in this regard, Dr Segal's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. 1. We agree with Dr Young's analysis, and we adopt it. Dr Segal's conduct, the subject of Particular 10, constitutes unsatisfactory professional conduct because it is improper conduct within the meaning of s 139B(1)(l) of the National law. 2. The complaint of unsatisfactory professional conduct in Complaint One has been made out. Complaint Two 1. Complaint two alleges that Dr Segal is guilty of professional misconduct in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration and/or that he has engaged in more than one instance of unsatisfactory professional conduct and that, when the instances are considered together, they amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration. 2. Dr Segal denies that his conduct amounts to professional misconduct. 3. Bearing in mind what Basten JA said in Chen, which is set out above at [12], we must evaluate whether each instance of unsatisfactory professional conduct, or a combination of instances, in the circumstances, is conduct which is sufficiently serious to be capable of leading to suspension or cancellation of registration. Answering the question of whether an instance, or combination of instances, of unsatisfactory professional conduct constitutes professional misconduct is purely an exercise in the characterisation of the conduct, in its context. It is a different task from the task of arriving at protective orders, which will be the subject of Stage 2 of these proceedings. The task of arriving at protective orders typically involves the consideration of measures taken by the practitioner to address any defect of character, wrong-headed thinking, bad habit or deficit of knowledge, understanding or insight. It also involves the consideration of general deterrence and the maintenance of the confidence of the public in health practitioners. Because they are different tasks, a finding that certain unsatisfactory professional conduct constitutes professional misconduct does not necessarily foreshadow suspension or cancellation. Particular 1 1. We have found that Dr Segal gave Patient A his mobile phone number on 14 October 2022. Dr Segal was practising primarily in the area of skin cancer and did not seek to have repeat general practice patients, although he saw general practice patients as an 'overflow' measure for the practice. Patient A did not have an urgent medical problem. However, although we agree with Dr Young that, in context, this conduct fell significantly below the standard of conduct expected of a medical practitioner of an equivalent level of training and experience, we do not consider that, by itself, the unsatisfactory professional conduct alleged in Particular 1 constitutes professional misconduct. Particular 2 1. Dr Young was very critical of the last two texts sent by Dr Segal to Patient A on 14 October 2022 (see [161] above). We agree that they were part of moving the relationship between Dr Segal and Patient A from a less professional to a more personal footing, and, for that reason, the sending of them was significantly below the standard of conduct expected of a medical practitioner of an equivalent level of training or experience. However, by itself, we do not consider the conduct to be sufficiently serious to constitute professional misconduct. Particular 3 1. Particular 3 concerns Dr Segal's conduct in hugging and touching Patient A without medical indication. Again, this conduct was part of moving the relationship between Dr Segal and Patient A from a professional to a personal footing. However, by itself, having regard to the extent of it and Patient A's attitude to it at the time, we do not consider it to be sufficiently serious to constitute professional misconduct. Particular 6 1. Dr Segal admitted Particular 6, which alleged that he engaged in an inappropriate personal relationship with Patient A. In his statement of 18 February 2022, Dr Segal said that he found Patient A's stories about her life "fascinating". He said "I am ashamed that I was drawn in and intrigued by Patient A and I felt flattered by the attention she was paying me". He said that he thought that he was helping Patient A, but said "I am now able to understand that I also received personal gratification from these communications and being able to assist her" (see [61], above). 2. We determine that Dr Segal's engagement in an inappropriate personal relationship with Patient A from October 2016 to April 2019 constitutes unsatisfactory professional conduct which is sufficiently serious to amount to professional misconduct. Even on the evidence of Dr Segal alone, the relationship was, on his side, exploitative of Patient A. He used Patient A's stories as a source of information about his community and as a source of gratification for himself. Dr Diamond spoke of it in terms of 'titillation' and said that Dr Segal had spoken to him about "being seduced" (although he denied any sexual contact). The length and intensity of Dr Segal's involvement in his personal relationship with Patient A is evidenced by (among other things, such as the consultations) the large volume of telephone calls and lesser volume of texts which he initiated, as well as by the smaller volume of calls and texts initiated by Patient A. We note that, during the time period the subject of Particular 10, Patient A's life did not stabilise but, rather, went through chaotic periods of time in which Patient A placed herself, by means of her behaviour and the activities she engaged in, at considerable physical and mental risk. Particular 10 1. Particular 10 alleges that Dr Segal called Patient A 659 times from October 2016 to December 2019, with 10 of those calls being for longer than 30 minutes, and the longest being for 61 minutes. It also alleges that Dr Segal received 157 calls from Patient A, 6 of which went for longer than 30 minutes. Dr Segal admitted this particular, and there are telephone records which prove it. There is considerable overlap between Particular 10 and Particular 6. We consider that Particular 10, by itself, constitutes unsatisfactory professional conduct of sufficient seriousness to amount to professional misconduct. 2. Dr Segal is guilty of professional misconduct as alleged in Complaint Two. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 27 July 2022 - Hearing date amended. 27 July 2022 - Name anonymised. 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: 27 July 2022