Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gao [2022] NSWCATOD 73 Hearing dates: 13, 14, 16 December 2021 and 20 April 2022 Date of orders: 06 July 2022 Decision date: 06 July 2022 Jurisdiction: Occupational Division Before: I R Coleman SC ADCJ, Principal Member Dr G Yeo, Senior Member Dr J Fogarty, Senior Member D Telford, General Member Decision: 1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct. 2. The Tribunal finds the Respondent guilty of professional misconduct. 3. The proceedings are adjourned to a date to be fixed for directions with respect to the hearing of Stage 2 of the proceedings. 4. The costs of the proceedings are reserved. Catchwords: HEALTH — professional registration and discipline —professional misconduct — whether practitioner breached doctor-patient boundaries — where practitioner relied on character evidence — whether unsatisfactory professional conduct of practitioner sufficiently serious to constitute professional misconduct Legislation Cited: Health Care Complaints Act 1993(NSW) Health Practitioner Regulation 2016 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: A v N [2012] NSWSC 354 Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353 Blatch v Archer (1774) 98 ER 969 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Browne v Dunn (1893) 6 R 67 Campbell v Campbell [2015] NSWSC 784 Chen v Health Care Complaints Commission [2017] NSWCA 186 Eastman v R (1997) FCR 9 G v H [1994] HCA 48; (1994) 181 CLR 387 Hardcastle v Commissioner of Police (1984) 53 ARL 539 Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173 Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53 Health Care Complaints Commission v Little [2015] NSWCATOD 146 Health Care Complaints Commission v Ross [2019] NSWCATOD 153 Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10 Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146 Helton v Allan [1940] 63 CLR 691 Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 Hobhouse v McArthur Onslow [2016] NSWSC 1831 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305: (2001) 52 NSWLR 705 Medical Board of Australia v Gupta [2015] QCAT 20 Medical Board of Australia v Moschou [2021] SACAT 30 Melbourne v R [1999] HCA 32; (1999) 198 CLR 1 Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 PGM v R (2006) 164 A Crim R 426 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 R v Bartle [2003] NSWCCA 329 R v Byrnes & Hopwood [1995] HCA 1; (1995) 183 CLR 501 R v El-Kheir [2004] NSWCCA 461 R v Skaf [2004] NSWCCA 74 R v Stalder (1981) 2 NSWLR 9 Stirland v Director of Public Prosecutions [1944] AC 315 Sudath v Health Care complaints Commission [2012] NSWCA 34 TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 West v Mead [2003] NSWSC 161 Texts Cited: Sexual Boundaries: Guidelines for Doctors. Medical Court of Australia. October 2018 Sexual Boundaries: Guidelines for Doctors. Medical Court of Australia. October 2011 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Edward Rezhong Gao (Respondent) Representation: Counsel: T Stevens (Applicant) T Hammond (Respondent) Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2021/00164703 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure and/or publication of the name of Patient A is prohibited. REASONS FOR DECISION Introduction 1. By Amended Application filed without opposition on 10 December 2021, the Health Care Complaints Commission (Applicant) sought that Dr Edward Renzhong Gao (Respondent) be found guilty of unsatisfactory professional misconduct pursuant to s 139B(1)(a) and/or 139B(1)(l) of the Health Practitioner Regulation National Law (NSW) (the National Law) and that, by reason of such findings, the Respondent be found guilty of professional misconduct pursuant to s 139E of the National Law. 2. By his Reply to the original Application, which effectively engaged with the Applicant's Amended Application, the Respondent did not admit a number of the allegations contained in the particulars of the Applicant's complaints, and denied other allegations contained in the complaints. The Respondent denied that he was guilty of unsatisfactory professional conduct or, if the Tribunal found for the Applicant with respect to any of its complaints in that regard, denied that the Tribunal would find, either individually or cumulatively, that any unsatisfactory professional conduct found to have been established constituted professional misconduct. 3. By agreement between the parties, the proceedings were confined to the disputed issues of fact and law with respect to whether the Respondent was guilty of unsatisfactory professional conduct and, if so, whether the seriousness of such unsatisfactory professional conduct warranted a finding of professional misconduct (Stage 1 proceedings). That approach was sensible in our view, and consistent with authority (Sudath v Health Care Complaints Commission [2012] NSWCA 34, at [25]). 4. The written evidence before the Tribunal upon which the Applicant relied was contained in two Volumes, behind 56 Tabs, which became Exhibit HCCC 1. 5. The written evidence before the Tribunal upon which the Respondent relied was contained in a Volume, behind Tabs A to C, and 17 numbered Tabs, which became (Exhibit R1). In addition to that evidence, the Respondent relied upon a report from Associate Professor Vincent Roche of 7 December 2021 (Exhibit R2). 6. The hearing proceeded via AVL with evidence being heard on 13, 14 and 16 December 2021. The proceedings were then adjourned for closing submissions on 20 April 2022 to accommodate the commitments of Counsel for the parties. Oral submissions were heard on 20 April 2022. The Tribunal received comprehensive written submissions by Counsel for each of the parties: the submissions of the Applicant being dated 20 April 2022, the submissions on behalf of the Respondent being dated 19 April 2022. Judgment was then reserved in the Stage 1 proceedings. 7. These are the reasons for the Tribunal's findings and decision. Background to the proceedings 1. Counsel for the parties prepared a helpful Statement of Agreed Facts for the assistance of the Tribunal. It is appropriate to record the matters referred to in the Statement of Agreed Facts by way of background to the proceedings. The Statement of Agreed Facts recorded: "The Respondent 1 The Respondent obtained his Bachelor of Medicine from Sun Yay-Sen University of Medical sciences, China in 1982. 2 On 21 July 2000, the Respondent was first registered as a medical practitioner in Australia. 3 Between 2000, and 2013, the Respondent was employed at hospitals in Melbourne and Sydney. In January 2013, the Respondent began working in general practice. 4 From February 2016 to 17 May 2019, the Respondent was working as a General Respondent [sic] (GP) trainee at Wallis Street Medical Centre (the Practice), Forster, NSW. Patient A 5 Patient A is a female born on 1 March 1990. She commenced as a patient at the Practice from 25 February 2012. 6 Patient A first consulted with the Respondent on 5 February 2016, presenting with "intermittent diarrhea [sic] 3-4 days". 7 Patient A attended a further 26 consultations with the Respondent up to 29 April 2019 (on 10 February 2016, 10 March 2016, 23 May 2016, 10 November 2017, 5 December 2017, 29 December 2017, 23 May 2018, 8 June 2018, 14 July 2018, 10 August 2018, 15 August 2018, 21 August 2018, 31 August 2018, 7 September 2018, 18 September 2018, 25 September 2018, 2 October 2018, 13 October 2018, 3 November 2018, 19 November 2018, 4 January 2018 [sic], 29 January 2019, 1 February 2019, 15 February 2019, 22 February 2019, 6 March 2019 and 29 April 2019). 8 Some of Patient A's presentations during those consultations included gastrointestinal complaints (such as diarrhoea, abdominal pain and bloating), tiredness, stress, depression and anxiety, and left breast tender lump. 9 On 23 April 2019, following a referral from the Respondent, a psychiatrist diagnosed Patient A with Adult ADHD (mixed-type) and GAD generalised anxiety disorder. The psychiatrist advised that Patient A had reported a history of anxiety and depression from her teenage years. 10 On 3 December 2019, [unnamed] diagnosed Patient A with "Ehlers-Danlos Syndrome with difficulties with irritable bowel syndrome". Consultation on 2 October 2018 11 On 2 October 2018, Patient A attended a consultation with the Respondent. 12 Patient A says that she had presented with a tender lump located under her left arm. The Respondent says that this lump was located on "Patient A's border area between the left breast and left axilla". 13 During the consultation, the Respondent conducted a breast examination on Patient A. 14 During part of the consultation, Patient A sat up on the examination bed whilst her breasts remained exposed. 15 When Patient A sat up, the Respondent made a comment to Patient A concerning the sagging of her breasts. Consultation on 3 November 2018 16 On 3 November 2018, Patient A attended a consultation with the Respondent. The purpose of the consultation was a routine skin examination. 17 The Respondent conducted a skin examination on Patient A. The examination was conducted whilst Patient A was lying down on the examination bed. 18 During the examination, the Respondent conducted a visual examination of an area below Patient A's underwear line. 19 The Respondent did not offer Patient A the use of a chaperone at any time before or during the skin examination. Consultation on 29 January 2019 20 On 29 January 2019, Patient A attended a consultation with the Respondent concerning a urinary tract infection. Patient A was upset during the consultation. Consultation 29 April 2019 21 On 29 April 2019, Patient A attended a consultation with the Respondent. 22 One purpose of the consultation was to discuss a report from Patient A's psychiatrist. Patient A presented in an emotionally distressed state and expressed concerned [sic] about gastrointestinal issues." Complaint 1 1. Complaint 1 asserted that the Respondent was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(a) and/or (l) of the National Law, in that the Respondent: "(i) engaged in conduct that demonstrates the judgement possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience" in accordance with the terms of s 139B(1)(a) of the National Law and/or that the Respondent has "engaged in improper and unethical conduct relating to the practice or purported practice of medicine" in accordance with the terms of s139B(1)(l) of the National Law. 1. In support of Complaint 1, the Applicant alleged that in the consultation on 2 October 2018: "1 The practitioner failed to obtain proper informed consent from Patient A before conducting a breast examination, in circumstances where Patient A presented with a tender lump under her left arm. 2 The practitioner failed to provide adequate privacy or protect Patient A's modesty prior to a breast examination, in that he: (a) did not ask Patient A if she wanted to undress in private; and (b) did not offer Patient A the opportunity to change behind a curtain. 3 The practitioner inappropriately assisted Patient A to remove her shirt and bra prior to a breast examination when Patient A had not requested assistance. 4 The practitioner inappropriately watched Patient A when she undressed prior to a breast examination. 5 The practitioner failed to provide adequate privacy or protect Patient A's modesty during a breast examination, in that he did not offer a modesty sheet to Patient A during the examination. 6 After conducting a breast examination on the patient, the practitioner inappropriately touched Patient A's breasts in that he: (a) asked Patient A to sit up, when the breast examination had been conducted whilst Patient A was lying down, and whilst Patient A's breasts were still exposed; (b) initiated a conversation with Patient A about a possible breast reduction; (c) lifted Patient A's breasts with both hands to demonstrate how they would appear following breast reduction surgery; (d) touched Patient A's breasts when an examination of her breasts for the purpose of a breast reduction was not clinically indicated; (e) touch Patient A's breasts when Patient A had not requested the practitioner's opinion on a breast reduction; (f) did not obtain informed consent from Patient A for a further examination. 7 The practitioner inappropriately spoke to Patient A about a breast reduction in that: (a) after Patient A sat up following the breast examination, while her breasts were still exposed, he said words to the effect of: (i) "Your breast does drop much more than usual"; and (ii) "Cosmetically it will look better"; (b) Whilst lifting Patient A's breasts with both hands to demonstrate how they would appear following breast reduction surgery, he said words to the effect of, "Cosmetically it will be much better". 3 November 2018 8 The practitioner failed to protect Patient A's modesty during a routine skin examination of her whole body, in circumstances where: (a) Patient A was lying down on the examination bed in her bra and underwear; and (b) the practitioner did not offer a modesty sheet to Patient A during the examination. 9 The practitioner inappropriately lifted the elastic banding at the top of Patient A's underwear and looked at her genital area in circumstances where: (a) a visual examination of Patient A's genital area was not clinically indicated; (b) the practitioner failed to offer a chaperone to Patient A before conducting a visual examination of her genital area; and (c) the practitioner failed to provide an explanation of the nature and purpose of the examination and thereby failed to provide sufficient information to Patient A to provide informed consent for the examination. 29 January 2019 10 The practitioner inappropriately hugged Patient A when she was upset. 29 April 2019 11 The practitioner failed to maintain appropriate professional boundaries with Patient A in that he engaged in inappropriate physical conduct, and/or made inappropriate comments to Patient A, namely: (a) deleted (b) as Patient A walked towards the patient consultation chair (the chair) the practitioner walked past Patient A and: (i) grabbed Patient A tightly around the waist; (ii) kissed and sniffed the right side of Patient A's neck; (iii) pulled Patient A towards him after she tried to push away from the practitioner; (iv) Patient A said words to the effect of, "What are you doing?"; (c) after Patient A sat in the chair, the practitioner said words to the effect of, "Don't wear your jumper like that, you look manly"; (d) the practitioner asked Patient A to stand up, following which he: (i) grabbed Patient A tightly around her waist with his hands; (ii) kissed and sniffed the right side of Patient A's neck; (iii) pulled Patient A towards him after she tried to push away from the practitioner; (iv) said words to the effect, "Give me a kiss"; (e) the practitioner asked Patient A to sit on the examination bed, in circumstances where there was no clinical indication for this request; (f) Patient A sat back in the chair, following which the practitioner attempted to hold her hand; (g) the practitioner conducted a blood pressure test on Patient A, during which the practitioner stroked Patient A's cheek with his finger; (h) the practitioner then stood up and attempted to hug Patient A as she remained sitting in the chair; (i) at the conclusion of the consultation, the practitioner asked Patient A if he could conduct a further examination, namely of her breasts, in circumstances where the examination was not clinically indicated. Consultations between 5 January 2016 and 29 April 2019 12 On one or more occasions between 5 February 2016 and 29 April 2019, the practitioner failed to maintain appropriate professional boundaries with Patient A in that he made inappropriate comments to Patient A, including words to the effect of: (a) "You look nice"; and (b) "You look pretty". 13 By reason of particulars 1 to 12, either individually or in combination, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A, in contravention of: (a) for particulars 1 to 9 and particular 12, the Medical Board of Australia (MBA) "Sexual boundaries: Guidelines for Doctors" effective 28 October 2011 and (b) for particulars 10 to 12, the MBA "Guidelines: Sexual boundaries and the doctor patient relationship" effective 12 December 2018 (together with the 2011 guidelines, "The MBA Sexual Boundaries Guidelines"). 1. The Respondent denied the allegations in particulars 1 to 5. The Respondent admitted the allegation that he asked Patient A to sit up, when the breast examination had been conducted whilst Patient A was lying down, and whilst Patient A's breasts were still exposed (particular 6(a)), but denied that there was "an inappropriate reason for his request". The Respondent did not admit particulars 6(b) and 6(c), and denied particulars 6(d)-6(f) with respect to the consultation on 2 October 2018. The Respondent did not admit particular 7 "as framed" and did not admit that "what he stated was inappropriate". 2. With respect to the consultation on 3 November 2018, the Respondent did not admit particular 8. The Respondent denied particular 9(a) and asserted that "a visual examination was clinically indicated at the time, however, it was not a full vaginal examination". The Respondent admitted that he failed to offer a chaperone to Patient A before conducting a visual examination of her genital area, but denied that he had failed to provide an explanation of the nature and purpose of the examination and thereby failed to provide sufficient information for Patient A to provide informed consent for the examination. 3. With respect to the consultation on 29 January 2019, the Respondent denied that he inappropriately hugged Patient A. With respect to the consultation on 29 April 2019, the Respondent denied the particularised allegations upon which the Applicant continued to rely. 4. With respect to consultations between 5 February 2016 and 29 April 2019, the Respondent denied that he had used the words alleged, or that he had engaged in inappropriate conduct of a sexual nature towards Patient A. 5. In support of this Complaint, the Applicant relied upon the Sexual Assault Reporting Options (SARO) sexual assault questionnaire completed by Patient A on 24 May 2019. That was the first time Patient A complained about any conduct of the Respondent (HCCC 1, Tab 10). 6. With respect to consultation on 29 April 2019, Patient A said in the questionnaire that the Respondent informed her that her specialist: "had sent through a report and he wanted to go through it with me, so I told him I would make an appointment when I looked at my schedule. I was getting really keen for my next appointment by the time it came around because my depression and anxiety was not good at all (the worst it had ever been) and I had some really important things I needed to discuss and sort out with in regard to my pathology tests, antidepressants and other medications, and my gut." 1. Patient A then alleged that, having walked into the Respondent's consultation room: "He shut the door (I think he may have locked it but I am not 100% sure), and he grabbed me extremely tight and was trying to kiss me. I instantly tried to push him off, but he pulled me in tighter and started kissing my neck and sniffing me. I said "What are you doing" and managed to push him off me after much struggle. He sat down so I sat in the patient's seat feeling confused and violated - I couldn't stop shaking. He told me, "Don't wear your jumper like that, you look manly" because I was wearing it around my waist. I tried to continue with the appointment as normal as there were some very important things I needed to sort out and my brain was just not working properly. I was so confused and felt frozen. He told me that my psychiatrist had written him a very long letter about me and he was eager to see me. He gave me the letter and I wanted to read it but I couldn't." 1. Patient A then stated that the Respondent: "told me to stand up, so I did. As soon as I stood up he tried to do the same thing as before. He grabbed me and said, "Give me a kiss". I said, "No", and pulled away. He then told me to hop up on the bed and I said, "No, this is extremely inappropriate", and pushed him off me. It all happened so quickly but felt like forever. I sat down and was in complete shock - I felt like I had been completely violated and I couldn't move or speak. I sat frozen for I don't know how long. I couldn't look at him. He asked me if [sic] was okay and I said, "No". He said, "I was just trying to make you feel better, are you mad at me?" I said nothing. He said, "If you feel uncomfortable, I won't do it again". 1. After further discussion about medical matters Patient A said that: "When it was time to leave, he asked me if I was sure I didn't want him to check my breasts before I go. I said, "No" because there was no reason for him to check my breasts. He asked me if I was okay and said that I looked like I was going to cry I said, "No, I'm not okay". He asked me if I have ever felt like this before and I said "No". He asked me if I had any stress going on and I was thinking well my medication isn't agreeing with me and you just sexually assaulted me so I'm pretty sure it's clear why I'm feeling this way - but all I could say was, "Not really". He got up and told me to stand up again but this time I didn't. He stood in front of me and said, "Come here" and tried to hug me while I was sitting down. My body was really stiff. I think he got the point at this stage because he wasn't as forceful as the other times. He then sat back down in his chair and told me to come and see him before he moved to his new surgery and I said "Okay" and left." 1. Having referred expressly in the questionnaire to events which she alleged had occurred on 29 April 2019, Patient A proceeded to say: "One time he looked at my vagina for a skin cancer check which I thought was a bit overkill, especially when I had recently had a pap smear maybe he was just being thorough. There was another occasion where I told him I have a tender lump under my arm and he said, "Oh, that is your breast", and he was over the top with feeling my breasts for lumps and then he started playing around with my breasts showing me what they would look like if I had a reduction and suggested he refer me to get a reduction because they would look better - he said I could get it done through Medicare due to neuropathic pain. I felt extremely uncomfortable when he gave the examination. But I wasn't going to argue with him about the reduction because I actually wanted to get a reduction (but had never mentioned it to him), but it is expensive. I found out just recently that he was supposed to get permission off me first before he even performed the breast examination, but he didn't, he was quite forceful really." 1. Patient A also stated in the questionnaire: "There was another time where he was feeling my abdomen because of my gut and he looked down my underwear. It felt wrong, but I thought maybe was just looking at my C section scar. This made me feel really uncomfortable, but I didn't say anything because I didn't want to be rude. What made me feel uncomfortable was the amount of time he hugged me, how tight he held me, and the way he would breathe in my ear like he was sniffing me or something. When all of these things would happen, I would feel really uncomfortable, but I gave him the benefit of the doubt because he is a doctor and it was probably just me. The thing is, this man is really polite and seems so kind. He was really good with my children when I took them into [sic] see him as well. Everybody talks about how nice he is." 1. By email to the Applicant on 18 October 2019 (HCCC 1, Tab 9) in which she reiterated the substance of her earlier allegations, Patient A said: "One time he looked at my vagina for a skin cancer check which I thought was a bit overkill because I had recently had a pap smear by a female doctor who works at the same practice, but I thought maybe he was just being thorough. There was another occasion where I told him I have a tender lump under my arm and he said, "Oh, that is your breast", and told me to get up on the bed and take off my shirt and bra and he was over the top with feeling my breast for lumps and then he started playing around with my breasts showing me what they would look like if I had a reduction and suggested he refer me to get a reduction because they would look better - he said I could get it done through Medicare due to neuropathic pain (or something like that). I felt extremely uncomfortable when he gave the examination. He was quite forceful - he was in a hurry to get my shirt and bra off - he helped me undress and dress myself. I found out just recently that he was supposed to get permission off me first before he even performed the breast examination, but he didn't. I didn't argue with him about the reduction because I actually wanted to get a reduction (but had never mentioned it to him), but it is expensive." 1. Patient A further stated: "There was another time where he was feeling my abdomen because of my gut and he looked down my underwear. It felt wrong, but I thought maybe he was just looking at my C section scar. In addition to this, in some of my most recent appointments with him he would give me a hug when I was upset. This made me feel really uncomfortable, but I didn't say anything because I didn't want to be rude. I remember it clearly on one day when I went it [sic] went in with a bad urinary tract infection. What made me feel uncomfortable was the amount of time he hugged me, how tight he held me, and the way he would breathe in my ear like he was sniffing me or something. When all of these things would happen, I would feel really uncomfortable, but I gave him the benefit of the doubt because he is a doctor and it was probably just me. I also though that he had only just finished his training and that he had just started practicing because he had told me one time he was doing exams. I thought maybe he was awkward and behaved a bit odd because he was new to this. The thing is, this man is really polite and seems so kind. He was really good with my daughter when I had taken her to see him. Everyone talks about how nice he is. He is my grandmother's doctor and my father-in-law's doctor too." 1. Patient A then detailed her allegations with respect to the consultation on 29 April 2019, and reiterated the substance of her previous complaints with respect to that consultation. 2. On 14 January 2020, Patient A provided a statement to the Applicant (HCCC 1 Tab 8) to which she attached a copy of her SARO questionnaire and her email to the Applicant of 18 October 2019. In her statement, Patient A confirmed that her previous allegations were true and correct to the best of her knowledge. Patient A reiterated that she was unsure whether the Respondent locked the door on 29 April 2019. The Applicant's Complaint does not allege that the Respondent did lock the door to the consultation room. Patient A reiterated (15 to 26) a number of matters referred to in her previous statements and provided a diagram (HCCC 1, Tab 11) which she prepared showing the positions allegedly occupied by herself and the Respondent and aspects of the consultation room. The Tribunal has photographs of the Respondent's consultation room (HCCC 1, Tab 48). The photographs do not materially enhance or damage the version of events advanced by Patient A or the Respondent. 3. Patient A then reiterated (29 to 45) "a number of other incidents which happened when I was a patient of Dr Gao" (29). In her statement, for the first time, Patient A stated (37) that: "Dr Gao helped me undress. He did this by helping me take off my shirt and bra. It felt like he was trying to rush me while doing this. He did not look away from me while he was helping me get undressed. I can't recall what I was wearing at the time and I don't recall where my top and bra were placed after they had been removed. Dr Gao did not offer me a blanket to cover myself and did not give me the option of undressing by myself behind the curtain". 1. In his statement of 7 October 2021 in response to the Applicant's Complaints (R1, Tab 1), the Respondent replied to the allegations of Patient A which gave rise to this Complaint. The Respondent said (R1, p5.21) "I concede some of the particulars of Complaint 1". The Respondent otherwise denied the substance of the particulars of this Complaint and set out his version of events. The Respondent stated (R1, p6.24) that on 2 October 2018 Patient A "presented with a tender lump on her left breast". He recalled "the lump was located on Patient A's border between the left breast and the left axilla. Therefore, I considered the lump was located in the left breast tail area. I have a clear recollection of Patient A pointing to the left breast tail area and recall Patient A presented with a left breast tender lump approximately 2 months prior to this consultation". The Respondent's clinical notes with respect to a consultation on 10 August 2018 record "Felt left breast tender" (HCCC 1, Tab 52, p7). 2. The Respondent further stated (25) that he: "conducted a routine breast examination on Patient A as noted in my consultation note at Tab 52 page 5 of the HCCC's documents: "right neck pain and feeling lump … left breast tender lump. Request breast check. No FHx of bc", and Patient A consented to this examination. I recall stating to Patient A words to the effect of "Do you want it [breast examinations]?". I was not forceful in any way and was respectful at all times. The breast examination included examination of Patient A's left and right breasts, both axillary lymph nodes and whole neck lymph nodes." 1. The Respondent said with respect to particular 2 (27) that he recalled: "asking Patient A to remove the clothing on her upper body to allow for a breast examination and pulled the curtain in the consultation room right across from both ends of the curtain rail to close the curtain at the middle, to provide Patient A with privacy to undress." 1. After referring to his "routine practice" in those circumstances, the Respondent stated: "I recall I mentioned to Patient A the blue fabric cover/modesty sheet, as per my usual practice, however I do not recall the exact words I used in that particular consultation. Patient did not have any queries, questions or concerns in relation to same. I had no reason to depart from my usual practice." 1. The Respondent "strenuously" denied particular 3 (28) and reiterated (29) that he "strenuously" denied that "I assisted Patient A in any way to remove her clothing prior to her breast examination" and that, as per his "usual practice for all patients, I asked Patient A to remove her own clothing to allow for the examination. In that regard there was no rush or time imperative. Patient A did not have any queries, questions or concerns in relation to same." 2. The Respondent also "strenuously" denied particular 4 and denied, that he had watched Patient A "when she undressed prior to her breast examination" (30), and acknowledged that doing so would be "completely inappropriate", but reiterated that he did nothing of the kind alleged and that "Patient A removed her own clothing only behind a fully closed curtain and with absolute privacy" (31). 3. The Respondent denied (32) particular 5 and said (33) that, as shown in the consultation photographs (HCCC 1, Tab 48), "there is a blue fabric cover/modesty sheet available and always placed on the examination bed for patients to use". The Respondent further stated that as per his "usual practice and according to my recollection, I offered Patient A the modesty sheet to use if needed". 4. The Respondent acknowledged that he had examined Patient A's breasts, but asserted that he had only done so for a clinical purpose (34). He thus admitted particular 6(a) "in as much as I asked Patient A to sit up after she was lying down for the breast examination but I deny there was an inappropriate reason for my request". The Respondent then set out the "purpose" of his examination and how he usually conducted such examinations. 5. The Respondent denied (34(b)) particular 6(b) and stated his belief that Patient A initiated the discussion about a possible breast reduction. The Respondent stated that he "observed that Patient A's breasts dropped very unusually. Patient A's breasts were small in size but I observed that they dropped below the umbilical level and the connection between her chest and breasts was largely excessive wrinkly skin". The Respondent said that he mentioned "the sagging of her breasts and she raised the issue of a reduction and said words to the effect of, "I've been thinking about a breast reduction"." The Respondent stated that there was then a brief discussion about "the likely cosmetic effect, inconvenience in life and possible effect for future breast feeding" which were "observations worthwhile discussing at the time". 6. The Respondent further stated (34(c)) that Patient A had been "considering breast reduction surgery however she was concerned about the financial cost and cosmetic effect". The Respondent stated that, for the reasons he had earlier set out in his statement "A breast reduction may have a positive cosmetic effect after Patient A asked me "How would they look after reduction?"" The Respondent said that he had replied, "Cosmetically, they will look better". The Respondent asserted that Patient A then asked him "Could you show me how they would look after surgery?" 7. The Respondent stated (34(d)) that during "the discussion, I told Patient A that as a GP, we were just having a preliminary discussion, and if Patient A wanted further detailed information with respect to the possible cosmetic result of breast reduction, she would need to consult a plastic or breast surgeon, and I could organise a referral. Patient A stated that she wanted to think about it and would return to see me if she wished to proceed". 8. The Respondent reiterated his contention that he "inspected Patient A's breasts for a clinical purpose" and "understood Patient A's request to show her how her breasts may look after surgery" was "consent to demonstrate the likely position of the breasts following reduction surgery. So I used my hands to push Patient A's left breast back to her chest wall briefly, to demonstrate the possible outcome of breast reduction surgery and stated words to the effect of "This is what they look like after the surgery"". The Respondent further stated that he was "confident that I was doing the right thing a good GP would do at the time with purely good intention, and adding value to the consultation by doing this given my surgical background". 9. The Respondent denied particular 6(d) and stated that he "demonstrated how Patient A's breasts would likely appear following breast reduction surgery and did this for a clinical purpose and in accordance with Patient A's request for my opinion" (34(e)-(f)). 10. The Respondent denied that he ever touched Patient A's breasts, other than "with consent and after she advised me that she had been considering breast reduction surgery and asked for my opinion" (34(g)). The Respondent reiterated that he had "obtained informed consent from Patient A for further examination and a brief demonstration of the cosmetic effect". 11. The Respondent admitted that he said to Patient A words to the effect of "Your breasts do drop much more than usual", as alleged in particular 7(a) (36), and that he said to her "Cosmetically it will look better", as also alleged in particular 7. The Respondent denied that Patient A appeared distressed during "our brief discussion about her consideration of breast reduction surgery" and disputed that what he had stated to Patient A was inappropriate. 12. The Respondent referred (37) to having completed a "full breast examination" on Patient A on 10 August 2018 when she presented "with a left breast tender lump" and to Patient A's attendance (38) on 13 October 2018 "for a follow up review and to discuss Patient A's breast ultrasound results". Patient A has made no complaint about the consultation on 10 August 2018. 13. With respect to the consultation on 3 November 2018, the Respondent stated that Patient A was "lying down on the examination bed in her bra and underwear for a clinical purpose" and that, from his "recollection and according to my routine practice, I did offer Patient A the modesty sheet for cover" (39). 14. The Respondent denied (41) particular 9 "as a visual examination of Patient A's pubic area was clinically indicated at the time, however it was not a full vaginal examination". The Respondent stated that the consultation occurred on a Saturday and that there was "no suitable chaperone around (a female nurse or a female doctor)". The Respondent further stated that Patient A had "booked a skin cancer check in the usual way" and that "part way through the skin examination and as I was inspecting Patient A's front section of her body while she was lying on her back, when I reached Patient A's lower abdomen, I recall that I discussed with Patient A that I needed to check her lower abdomen area and asked Patient A to pull her underwear down to show the lower abdomen and suprapubic area". The Respondent stated that "Patient A did as he requested, with no questions or concerns, and used her hands and pulled both sides of her underwear down, which indicated to me that Patient A consented to the examination of her skin on this part of the body." 15. The Respondent asserted that, in the circumstances which he described, Patient A asked him "could you have a look?" at "down there", where she stated that she felt "a bit itchy", to which the Respondent replied "okay" (42). 16. The Respondent stated (43) that he then asked Patient A to pull her underwear further down to allow for an inspection of her pubic area and that, to the best of his recollection, he "may have used one or two of my fingers to hold the middle part of the waistband on patient's underwear to help her to pull her underwear down to upper and middle parts of her thighs to inspect Patient A's pubic area". Having completed his examination, the Respondent stated that he advised Patient A that the "skin looks all okay", that Patient A responded "Okay" and had no "further questions or queries". Patient A then dressed, without assistance or intervention by the Respondent. 17. The Respondent further stated (46) that he "completed a brief visual inspection on Patient A of her pubic skin area, which included the upper part of her labia majora, to check for any skin changes" but on "reflection, I appreciate that I cut corners with this examination in response to Patient A's request and I should have been more thorough. I should have asked Patient A to come back on Monday in order for me to perform a formal vaginal examination with chaperones." For the reasons which he stated (47), the Respondent asserted that he had, with Patient A's consent, appropriately conducted the examination which he described. The Respondent reiterated that there was no suitable chaperone available on the Saturday of the consultation on 3 November 2018 and that he should have made "clear" to Patient A that if she returned on a weekday a further examination could be undertaken with a female nurse or female doctor present. 18. The Respondent denied (49) that, having regard to what he said occurred, as recorded in earlier paragraphs of his statement, he had failed to provide an explanation of the nature and purpose of the examination, and had thus failed to provide sufficient information for Patient A to provide informed consent to the examination. 19. The Respondent "strenuously" denied hugging Patient A when she was upset on 29 January 2019 (50) and, having set out his version of the consultation (52), stated that Patient A was crying "inconsolably" so he "sat on the edge of the bed on the right side of Patient A, and continued to verbally comfort her" but, when she continued to "cry inconsolably", to "further comfort Patient A, I extended my left arm and used my left hand to pat Patient A on her left shoulder a couple of times. My hand was flat and it was a light tap mainly with three middle fingers, and not above the shoulder. My arm did not have any contact with her back. Eventually Patient A stopped crying, then I asked her to sit back in the patient chair and continued the consultation." 20. The Respondent "strenuously" denied hugging Patient A in this consultation or in any other consultation or having ever hugged any female patient in over 20 years of medical practice in Australia. 21. With respect to the consultation on 29 April 2019, the Respondent denied particular 11 in its entirety. The Respondent reiterated that his statement to the Applicant (found at HCCC 1, Tab 33, p2-4) was, and remained, his response to this particular, and was, and remained, true and correct. 22. Much of the Respondent's statement of 8 October 2021 responded to a conversation alleged by the Applicant in its original Application which was withdrawn in its Amended Application and thus need not be considered. 23. Given the Respondent's initial and continuing absolute denial that anything inappropriate alleged by Patient A which finds expression in particular 11 ever occurred, it is unsurprising that the Respondent's statement does no more than deny those allegations. 24. The Respondent denied having said to Patient A during consultations between 5 February 2016 and 29 April 2019 the words alleged in particular 12. The Respondent did not expressly engage with particular 13, but, it is readily apparent from the terms of his responses to the particulars upon which particular 13 draws, that he denies those allegations. Principles governing the proceedings 1. The Applicant bears the onus of proof of each element of its complaints. The factual content of the Applicant's allegations must be established on the balance of probabilities, and the question of whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10). 2. The principles identified in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 apply (Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53), and require the Tribunal to be mindful of the nature and seriousness of the allegations to be proved, with the result that the Tribunal must feel an "actual persuasion" or be "comfortably satisfied" that the allegations are made out on the balance of probabilities. 3. The Applicant alleges that the Respondent is guilty of "unsatisfactory professional conduct" pursuant to s 139B(1)(a) and/or s 139B(1)(l) of the National Law which respectively refer to: "Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience"; and, "Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". 4. In Health Care Complaints Commission v Amalakumar [2019] NSWCATOD 173, the Tribunal said: "25. Determining whether the "knowledge, skill or judgement" possessed by a practitioner, or the "care exercised" by a practitioner is significantly below the standard reasonably expected, in order for the elements of s 139B(1)(a) to be established, requires the undertaking of an evaluative process. A benchmark standard which is expected of practitioners in the relevant field must be ascertained, and then the conduct which has been proven against he practitioner the subject of the disciplinary action, must be assessed against that standard. If the conduct is considered to be below the standard arrived at, then a further evaluation must be made as to whether the conduct is significantly below that standard. If that conduct is assessed to be significantly below the standard reasonably expected, then there is no discretion as to whether that conduct is characterised as unsatisfactory professional conduct. The section designates it as such." 1. The Tribunal said, at [26] with respect to s 139B(1)(l) of the National Law: that evaluating a complaint with respect to "improper or unethical conduct": "requires the making of findings of fact as to whether the alleged conduct has occurred, and then the characterisation of that conduct as improper or unethical (or otherwise). If the conduct has occurred, and if that conduct is determined to be improper or unethical, then that conduct is inevitably characterised as unsatisfactory conduct by s 139B(1)(l) of the National Law. There is no discretion to be exercised between the finding that the determination that conduct has occurred which is improper or unethical and the characterisation of that conduct as unsatisfactory conduct". 1. As is not in doubt, only Patient A and the Respondent really know the truth with respect to the allegations particularised in this complaint. There is a dearth of corroborative, circumstantial or other evidence which impacts upon the probabilities. 2. In Hobhouse v McArthur Onslow [2016] NSWSC 1831 Robb J, at [481] referred to the statement of Lord Mansfield CJ in Blatch v Archer (1774) 98 ER 969 that: "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted". 1. In G v H [1994] HCA 48; (1994) 181 CLR 387, at [8] Brennan and McHugh JJ said that: "When a Court is deciding whether a party on whom rests the burden of proving an issue on the balance of probability has discharged that burden, regard must be had to that party's ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce evidence in response." 1. It is difficult to suggest in what way either the Applicant, or the Respondent, could have adduced more evidence than either did with respect to the disputed allegations of fact, and we do not understand either party to contend otherwise. 2. In Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572, Hodgson JA said, at [14] that: "In deciding facts according to the civil standard of proof, the Court is dealing with two questions: not just what are the probabilities on the limited material which the Court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision." 1. In A v N [2012] NSWSC 354, Ward J (as Ward P then was) said, at [348]: "As to lay witnesses generally, I note at the outset that the fallibility of human memory has been explained by McLelland CJ in Equity (as His Honour then was) in an oft quoted passage in Watson v Foxman [1995] 49 NSWLR 315 at 318 as follows: "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 of 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."" 1. Her Honour, at [349] further referred to McLelland CJ in Equity's statement that: "Each element of the cause of action must be proved to the reasonable satisfaction of the Court, which means that the Court "must feel an actual persuasion of its occurrence or existence". Such satisfaction is "not … attained or established independently of the nature and consequence of the fact or facts to be proved" including the "seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding: Helton v Allan [1940] 63 CLR 691 at 712. Considerations of the above kind can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action … in the absence of some reliable contemporaneous record or other satisfactory corroboration." 1. Her Honour added that: "Where evidence is given long after the occurrence of the events in question, the witness "may" put their own gloss or interpretation on events in which they were emotionally involved and that, by now, those perceptions will be reinforced in their minds so that they will be convinced of the truth of those perceptions. Not only "do memories fade with time", but "impressions of events may become accepted as fact"." 1. In Campbell v Campbell [2015] NSWSC 784 Sackar J, at [73] to [79] distilled the principles which apply to the assessment of the credit of a witness in circumstances such as the present in the following terms: "[1] [w]here a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence are all matters of primary importance. … [2] [t]he 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. … [3] [i]n cases involving events which occurred long before the litigation, a Court 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. Greater weight is usually accorded such documents, as they often provide a safer repository of reliable facts, 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." (citations omitted) 1. The evidence does not enable the Tribunal to gain significant assistance in assessing the probabilities in this case from the second and third of the matters which Sackar J identified. 2. In Health Care Complaints Commission v Yildirim [2021] NSWCATOD 146, the Tribunal recorded, at [105] that: "In approaching the evidence, we have been mindful that the authorities have consistently cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability based solely or mainly on demeanour. That is because a witness may, for example, appear evasive or combative for reasons that are unrelated to the honesty or reliability of their evidence. Likewise, a witness may give evidence in an apparently forthright and persuasive manner and yet their evidence may have been found to be unreliable or, worse, dishonest. Scientific research has cast doubt on the ability of anyone, including decision makers, to discern truth from falsehood on the basis of appearances. Nevertheless, as the High Court made clear in Fox v Percy at 41, demeanour evidence, if not decisive, remains relevant to the assessment of the credibility of witnesses, especially when supported or contradicted by other forms of evidence." 1. As the authorities have consistently recognised, forgetfulness, contradictions or inconsistencies not involving matters of substance are not necessarily indicative of false testimony on the part of witnesses, but may assume significance when the reliability of the witness' recollection of disputed events is evaluated. 2. The present case undoubtedly involves a "stark choice between irreconcilable accounts". The manner in which Patient A and the Respondent gave evidence is not, in our view, determinative of disputed issues of fact. Put bluntly, the focus of scrutiny is on what each said with respect to disputed issues of material facts, rather than how it was said. Patient A's version of events is not inherently implausible or improbable. Nor are the Respondent's denials of that version of events. There are no contemporaneous, or nearly contemporaneous, documents prepared by either party, or any independent person or entity, which directly impact upon the evaluation of the probabilities with respect to the allegations in support of this complaint. The Respondent's clinical notes indirectly impact on the Tribunal's fact finding exercise to only a limited extent. 3. The Respondent has raised character evidence in his defence. Although the Tribunal is not bound by the rules of evidence (s 2, Schedule 5D to the National Law, s 38(2) Civil and Administrative Tribunal Act 2013 (NSW)), the common law principles, and statutory provisions which govern character evidence are instructive for present purposes. 4. There is no statutory definition of character evidence, but the description advanced by Kirby J in Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1 (although in dissent with respect to the merits of the case) is cited in the Civil Trials Bench Book published by the NSW Judicial Commission, which states that "character refers to the aggregate of qualities which distinguish one person from another, or the moral constitution of a person: it embodies the permanent and unchanging pattern of the nature of the individual concerned". 5. Evidence of "good character" includes evidence of the accused's general good reputation, and evidence of the accused's favourable disposition (Stirland v Director of Public Prosecutions [1944] AC 315), which may be proved in a number of ways, and does not simply consist of evidence that the accused has not previously been convicted of an offence (Melbourne v R [1999] HCA 32; (1999) 198 CLR 1). 6. Evidence of good character is not merely evidence which may make it more likely that the accused's evidence is credible, but also whether it is unlikely that the accused committed the offences charged, or, in these proceedings, committed the acts alleged against him (TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124, at [35] Gleeson CJ, and [94] McHugh J). The evidence can only make it unlikely, rather than improbable, that the accused is guilty of the conduct alleged against him (R v Stalder (1981) 2 NSWLR 9). 7. We apprehend that the Respondent's reliance upon character evidence in these proceedings is for both those purposes. Thus, Counsel for the Respondent submitted that his good character makes it unlikely that the Respondent would be guilty of the conduct alleged by Patient A, and unlikely that he would not tell the truth about his conduct (Attwood v The Queen [1960] HCA 15; (1960) 102 CLR 353, at [359], Eastman v R (1997) FCR 9, at [147], TKWJ v The Queen [2002] HCA 46, at [94]). 8. The raising of good character requires a conscious decision on the part of the accused (R v Bartle [2003] NSWCCA 329, at [129]-[136]), and is not raised when a witness simply volunteers the evidence (PGM v R (2006) 164 A Crim R 426, at [35]). We are satisfied that the Respondent has squarely raised character in these proceedings, and not merely made emphatic denials of guilt (R v Skaf [2004] NSWCCA 74, at [223]-[226], R v El-Kheir [2004] NSWCCA 461, at [50]). 9. The significance of the evidence of character in the present proceedings is limited. Although the Applicant has not expressly raised Patient A's good character, or inferentially raised it in a manner which would be required if the Tribunal was bound by the rules of evidence, we do not consider that the character of Patient A, or that of the Respondent ultimately makes it more or less likely that the evidence of the Respondent should be preferred to that of Patient A, or that the converse should apply because each is a person of good character. 10. We have taken into account as bearing upon whether it is unlikely that the Respondent has committed the acts alleged against him, the character evidence of Dr Speakman (R1, Tab 9). Dr Speakman's experience of the Respondent extended from 2005 to 2012, during which time the Respondent "would have examined many hundreds of women" during the period when he worked in the breast unit of the cancer centre of which Dr Speakman was the Chief Medical Officer. During the time in which he worked with the Respondent, Dr Speakman "never experienced anything like the behaviour noted in the complaint against the Respondent." Given the time which has passed since Dr Speakman last observed the Respondent, the weight to be given to this evidence is limited. 11. Although not strictly character evidence, we have taken into account in this context the unchallenged expert opinion evidence of Dr Christopher Lennings (R1, Tab 3, p10, paragraph 49) that he could "see no reason to believe that (the Respondent) would deliberately act in an unethical way", or that he "appears to be deliberately deceitful or manipulative". As is not in doubt, the Applicant does not have to prove that the Respondent intended to engage in unsatisfactory professional conduct or professional misconduct, it is sufficient for the Applicant to establish that the Respondent engaged in conduct which constitutes the first, or both of those concepts. 12. Dr Lennings also recorded (49) that he observed "little in the way of anything that would suggest that he had a prurient interest in his clients or was sexually motivated to misbehave with his clients". We have taken that evidence into account, particularly in the context of Particular 13 of Complaint 1, which asserts that the Respondent engaged in "inappropriate conduct of a sexual nature" with Patient A. 13. In the circumstances of this case, it is somewhat simplistic and artificial to seek to resolve disputed issues of material fact in reliance upon the truthfulness of the evidence of Patient A or the Respondent - each believes that the version of events advanced by her/him is "true". Evaluating the reliability of each party's version of those events by reference to what each says when those versions are challenged, and, to the limited extent that it is available, circumstantial evidence, best informs our determination of the probabilities. 14. Section 139B(1)(a) of the National Law, upon which the Applicant relies, creates and defines a category of conduct which, if established, constitutes "unsatisfactory professional conduct". Section 139B(1)(l) of the National Law, upon which the Applicant also relies, creates, but does not define, another category of conduct which, if established, constitutes "unsatisfactory professional conduct"- "improper and/or unethical conduct". 15. The Tribunal has given terms "improper" and "unethical" in s 139B(1)(l) of the National Law their ordinary meaning in accordance with Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 in a number of its decisions in proceedings pursuant to the National Law, and we also will do so. The Macquarie Dictionary definition of "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" was adopted by the Tribunal in Health Care Complaints Commission v Ross [2019] NSWCATOD 153, at [59]. 16. In R v Byrnes & Hopwood [1995] HCA 1; (1995) 183 CLR 501, at [24] the High Court accepted that "improper" was an "indefinite term", which [25] needed to be determined by reference to the "particular duties and responsibilities of the particular officer whose conduct is impugned", which is not "subjectively" determined, but by reference to a "range" of considerations that may be taken into account". 17. The Dictionary definition of "unethical" as "contrary to moral precept; immoral, in contravention of some code of professional conduct" was adopted by the Tribunal in Ross, at [69] and in Health Care Complaints Commission v Little [2015] NSWCATOD 146. Consideration of Complaint 1 1. It is necessary in the circumstances identified above to closely scrutinise the evidence which emerges from the cross-examination of each of Patient A and the Respondent. As the Tribunal has the benefit of careful and detailed written submissions, supplemented by oral submissions, on behalf of each party with respect to each Complaint, it is appropriate to evaluate the evidence of the parties in the light of those submissions. 2. In its written submissions, the Applicant summarised Patient A's allegations with respect to the consultation with the Respondent on 2 October 2018 and the Respondent's denials (10-17). In oral submissions, Counsel for the Applicant submitted that Patient A had maintained her version of events in cross-examination, and that such version was "believable". Counsel for the Applicant referred to Patient A's "appropriate" concessions where they were required, Patient A's agreement that she first complained about the Respondent "helping" her "get undressed" in October 2019 (Transcript p21, line 38) being submitted to be a "prime example" of such concessions. 3. Counsel for the Applicant submitted that Patient A's failure to complain about the conduct of the Respondent until 24 May 2019 was adequately explained by Patient A in terms of her trust in the Respondent, and the fact that the conduct of 29 April 2019, after which she ceased seeing the Respondent, was more serious than any previous conduct of the Respondent which Patient A had experienced. Patient A's explanation for seeing the Respondent on 10 occasions after the consultation on 2 October 2018 "Because I was stupid. I didn't trust my gut. I thought, no, he's nice, like, everybody, you now, thinks he's nice and he's a doctor" (Transcript, p25, lines 4-5) was submitted to be credible, and compelling. 4. The concessions made by Patient A (Transcript p25, lines 28-29) with respect to her longstanding wish to have a breast reduction was also relied upon as supportive of Patient A's credibility, and the reliability of her recall. 5. Albeit in the context of the consultation on 29 April 2019, Counsel for the Applicant submitted that Patient A had consistently maintained her allegations with respect to what occurred during that consultation (Transcript p32, lines 28-47) and appropriately conceded her uncertainty with respect to whether the Respondent locked the door to the consultation room on that day. 6. Patient A's evidence with respect to her reaction upon being advised that the Respondent was moving to another practice was also submitted to involve appropriate concessions (Transcript p51, lines 6-30) by Patient A. 7. Counsel for the Applicant also relied in support of Patient A's version of the consultation on 2 October 2018 on the evidence of the Respondent at Transcript, p92-93. It is evident from the cross-examination of the Respondent at line Transcript p91, lines 30-32, that the consultation with which the cross-examination was concerned was the consultation on 2 October 2018, albeit the cross-examination arose from statements made by the Respondent during the course of his s 150 hearing in December 2019. 8. The Respondent was referred to what he had told the Medical Council at the s 150 hearing with respect to the "steps you would take when you do the breast check" (Transcript p92, line 18). The Respondent stated (Transcript p92, lines 23-28) what he "would" do in those circumstances, and that he "would probably also get a consent, then I put a note, then move on to examination". The Respondent reiterated (Transcript p92, lines 40-47) that Patient A had consented to a breast examination on 2 October 2018. Counsel for the Applicant then asked "Are you saying that she gave you an implied consent because she was coming with a sore breast" (Transcript p92, lines 49-50), to which the Respondent replied (Transcript p93, lines 1-7) "No. Not only that, she gave me verbal consent for breast examination as well". The Respondent then said: "I ask her, younger than 60 - I ask her - no, that's for chaperone, sorry I always get consent under background for any examination, even for male patient, otherwise how can they go to the closed curtain, actually open the - take their clothes off, open the curtain, let you examine their body? Which is private. Definitely I had her consent, there's no question in the world." 1. We are ultimately unclear as to whether, as his answers initially seemed to suggest, the Respondent assertedly relied upon implied consent from Patient A, or, as his later answers suggested, express consent. Whatever the case, we agree with Counsel for the Applicant that the evidence of the Respondent with respect to the issue was unconvincing. 2. The clinical notes for the consultation on 2 October 2018 (HCCC 1, Tab 52, p5) record "request breast check" and the outcome of the breast check. The clinical notes are equivocal, and do not preclude accepting that the Respondent had "put a note" recording consent, albeit, contrary to his evidence in cross-examination, the consent may have been expressed or, as Counsel for the Applicant suggested in cross-examination, "implied". 3. The Respondent submitted (13) with respect to the consultation on 2 October 2018 that Patient A's allegations were vague and that she may have reconstructed events. We do not understand the Respondent to submit that Patient A may have consciously reconstructed events or fabricated her evidence, and perceive no rational basis for either proposition. The Respondent's own statement confirms Patient A's allegations in a number of material respects which we have earlier identified. 4. Counsel for the Respondent relied on the asserted inability of Patient A to provide any specificity with respect to when the events of which she complained had occurred, or to have any recollection of her breast examination on 10 August 2018 and to have failed to complain that the Respondent had "helped" her to "get undressed" in her SARO questionnaire (Transcript, p18, line 33 to p20, line 50). 5. Counsel for the Respondent also relied upon the evidence of Patient A that, on 10 August 2018, Patient A had presented to the Respondent with a similar complaint with respect to a "tender lump" on her left breast as she had on 2 October 2018. Patient A was unable to recall the earlier consultation. Patient A did not recall the Respondent having examined her breasts "more than once" and reiterated that she thought the only time that the Respondent had examined her breasts was on 2 October 2018. 6. Patient A was adamant that she had not given the Respondent permission to examine her breasts on 2 October 2018. The clinical notes for that date (HCCC 1, Tab 52, p7) suggest that some form of breast examination may have occurred on 10 August 2018. The clinical notes for the consultations on 10 August 2018 and 2 October 2018 are in substantially similar terms, and record "felt bilaterally" with respect to Patient A's breasts. As the Respondent disavowed implied consent for the breast examination on the latter date in reliance upon the earlier examination, the clinical notes assume very limited significance. That is particularly so as the evidence does not establish the similarity, if any, between the two examinations. Whatever occurred on the earlier occasion with respect to Patient A's breasts, did not cause Patient A to complain in any statement made by her. That is unsurprising, as Patient A did not recall any breast examination by the Respondent on any date but 2 October 2018. 7. The Respondent relied significantly (14-16) on the asserted improbability that, on 2 October 2018 he would have conducted a breast examination in the absence of consent by Patient A. Having regard to the evidence of the Respondent with respect to obtaining patient consent to which we have earlier referred, we are not persuaded that he did so on this occasion. The Respondent's evidence does not reveal why, having regard to his notes of the examination on 10 August 2018, a breast examination was indicated on 2 October 2018. 8. Counsel for the Respondent made a number of submissions (18) in support of his contention that Patient A's categorisation of the Respondent not knowing what he was doing and being "forceful" ought not be accepted, including (19) Patient A's absence of expertise in relation to breast examinations and (20) Patient A's evidence (Transcript p54, line 33) that she could only remember having her breasts checked once by a female doctor. 9. Reliance was placed (21) upon the evidence of Dr Marles (Transcript p63, line 35 and p63, line 7) that the Respondent's technique adequately covered all the essential elements of a breast examination and, although in the opposite order to what she would usually encounter, was not incorrect, "just different". 10. The Respondent submitted (22) that any touching of Patient A's breasts on 2 October was not "inappropriate in the relevant context", and that his "intentions and actions were purely clinical", having "obtained appropriate consent" and involved doing nothing wrong. 11. For the reasons there set out (23), it was submitted that the Respondent's recollection of the consultation on 2 October 2018 was "much more persuasive" than that of Patient A. The Respondent relied (26-27) on the unchallenged evidence of Drs Speakman and Clemensen with respect to the Respondent's clinical competence and experience with breast checks and the protocols surrounding that procedure. The Respondent further relied upon the evidence of Dr Marles (28) (Transcript p68, line 49, p69, line 6) that the Respondent's examination was, in Patient A's presenting circumstances, appropriate. 12. It was ultimately submitted with respect to Complaint 1, particular 1, (failure to obtain proper informed consent before undertaking a breast examination on 2 October 2018), that the evidence of Patient A was "unconvincing, vague and unsupported" and "ought to be rejected". We do not accept that Patient A's allegations should be rejected. Nothing emerging from Patient A's written or oral evidence supports doing so. In the circumstances we have recorded, nor can the Respondent's account with respect to Patient A's consent to a breast examination be rejected on those subjective grounds. How Patient A could have "supported" her version of the consultation was not made clear. 13. Ultimately, in our view, the fate of this particular turns on the burden and standard of proof which the Applicant bears. The breast examination which the Respondent apparently conducted on 10 August 2018, without complaint, then or subsequently, by Patient A, and her lack of recollection with respect to that event, is supportive of Patient A at least impliedly consenting to a breast examination on 2 October 2018, or the Respondent not unreasonably believing that she had done so. In those circumstances, and notwithstanding the Respondent's less than convincing evidence with respect to Patient A's consent, we are not comfortably satisfied that the breast examination on 2 October 2018 occurred without Patient A's consent. 14. Particulars 2 to 5 inclusive relate to the Respondent's asserted conduct with respect to Patient A's undressing, and protection of her modesty during the breast examination. Counsel for the Respondent referred (30) to Patient A's allegations with respect to these particulars, and submitted that the conduct of the Respondent "if it occurred, would stand out in the mind of the patient and one might expect would be the subject of a complaint at the first available opportunity". It was further submitted that, on the first occasion when Patient A made her complaint, in the SARO completed on 24 May 2019, Patient A "did not mention anything about how she got undressed, or where she got changed, or anything about Dr Gao being involved in the process. In fact, Patient A said nothing about this allegation until October 2019 in her emails to the HCCC". 15. The Respondent submitted (31) that Patient A was unable to provide any detail of the "alleged undressing", that her account was "vague and unreliable" and that "her excuse for not being able to provide this information, namely that it happened a long time ago, does not align with her assertion that it is "something that one remembers"". It was thus submitted that there was a "lack of clear and cogent evidence" to support this allegation. The observations of Dixon J (as the Chief Justice then was) in Briginshaw that "reasonable satisfaction" should not be "proved by inexact proofs, indefinite testimony, or indirect inferences" was relied upon by the Respondent in support of that contention. 16. Reliance was placed (32) upon Patient A's 10 (9 excluding the consultation on 29 April 2019) subsequent consultations with the Respondent. Having regard to Patient A's explanation for her continuing to see the Respondent until 29 April 2019, which we accept, we do not accept that Patient A's account should be disbelieved or discounted on that basis. As Patient A stated, credibly and logically in our view, she trusted the Respondent and believed that he must have been doing the right thing by her. 17. Counsel for the Respondent relied (33) upon the "detailed account" of how the Respondent engaged with Patient A, and his being "unshaken in his description of his usual practices" with respect to privacy issues (34). 18. As with the first particular of this Complaint, Patient A's account is not corroborated in any material respect. Nor is it inherently improbable. The same is true of the Respondent's version of events. Objectively, the evidence does not provide a rational basis for preferring the version of either party to that of the other. It may or may not have happened as either of them alleges. In those circumstances, we are unable to be comfortably satisfied that the allegations relied upon by the Applicant are established. 19. With respect to particulars 6 and 7, which allege that the Respondent inappropriately touched Patient A's breasts after conducting a breast examination, and inappropriately spoke to her about a breast reduction, the Respondent (37) submitted that a number of matters militated against making the findings sought by the Applicant. The first of those (38) was that Patient A had long wanted a breast reduction (Transcript p25, line 28), and that she possibly told the Respondent (Transcript p25, lines 35-37) that she was concerned about the financial cost and cosmetic effect of a breast reduction. 20. The Respondent relied upon a number of admissions by Patient A with respect to her conversation with the Respondent in relation to breast surgery during the course of the consultation on 2 October 2018. In her evidence (commencing at Transcript p26, line 9) Patient A acknowledged that "it's a long time ago" but that she "remembers him specifically showing me what it would look like, holding it up, like - or maybe both. I don't know I don't know" in response to the suggestion that the Respondent "moved your left breast only". Patient A reiterated that after the breast examination "he just, yeah, started showing me without me asking anything", and was adamant that she had not raised the topic of breast reduction with the Respondent. 21. Patient A stated that she had "not really" been "upset or distressed" during the discussion and demonstration with respect to breast reduction, although she felt "uncomfortable", and that "it was off and something wasn't right, but I – (had) not really" felt upset or distressed and "I had always been wanting to get something done" and "it was definitely something that I would have - yeah. But I didn't ask him to do that I didn't, yeah. But yeah, I - I did - I felt uncomfortable, but yeah, at the same time I just - I don't know, I let it go". 22. Counsel for the Respondent further submitted (41) that a number of matters supported the evidence of the Respondent that he felt obliged to raise the condition of her breasts with Patient A in order to assist her to address the problem (Transcript p96, line 41). The Respondent denied raising the topic of breast reduction. 23. We are not comfortably satisfied on the evidence that the Respondent did first raise the topic of possible breast reduction with Patient A. Patient A was clearly interested in that topic and, on her own evidence, willingly engaged with the Respondent in discussing it. We are thus not satisfied that particular 6(b) is established. The evidence of Patient A and the Respondent suggests that there may have been misunderstandings, on both parts, during the verbal exchanges with respect to possible breast surgery. 24. Different considerations apply to particulars 6(c), (d), (e) and 6(f), which allege inappropriate touching of Patient A's breasts without first obtaining her informed consent to do so. We do not accept that anything said, or not said, by Patient A constituted actual or implied consent, or informed consent to the touching of her breast(s) in the circumstances alleged in these particulars. The Respondent's clinical notes for the consultation provide no support for his claims with respect to Patient A's potential breast surgery, particularly in view of the extent of the detail which the Respondent provided with respect to the consultation three years after the consultation in his statement of 8 October 2021. 25. On 27 July 2020, having completed its investigation of them, the Applicant invited the Respondent to make submissions pursuant to s 40 of the Health Care Complaints Act 1993 (NSW) with respect to the substance of Patient A's complaints with respect to this issue which it detailed (HCCC 1, Tab 34, p 4-5). As was his right, the Respondent declined to make submissions in response to the invitation (HCCC 1, Tab 35). We draw no adverse inferences from the silence of the Respondent in 2020. However, in circumstances where Patient A has been criticised for not advancing the totality of her allegations in her SARO statement, it is reasonable to have regard to the fact that details of the Respondent's version of events first emerged three years after the relevant consultation, and 18 months after the Respondent became aware of the entirety of Patient A's claims. As the authorities recognise, absent support from objective contemporaneous material, memory fades, rather than improves with time. 26. The considerable detail provided by the Respondent in his statement with respect to Patient A's possible breast surgery is at variance with the impression that this was a brief, general or preliminary part of the consultation which the Respondent sought to convey in his evidence in cross-examination. The Respondent's evidence before us with respect to what he did, and said, with respect to possible breast surgery during this consultation, and why this was unconvincing, in ways which are not dependent upon his demeanour when giving that evidence. 27. It was conceded by the Respondent (42) that the Respondent's manipulation of Patient A's breasts to demonstrate how they might look after surgery was considered inappropriate by each of Dr Marles and Professor Roche. 28. Dr Marles was requested to provide her opinion as to whether it was appropriate for the Respondent to "physically manipulate [Patient A's] breasts" during their discussion about the cosmetic appearance of her breasts based on the assumption that the Respondent did so "unprompted" and telling Patient A that "she should get a breast reduction", or on the assumption that the Respondent manipulated her breasts after Patient A asked him how they would look if she had a reduction. We find the Respondent's touching of Patient A's breast(s) to have been "unprompted", without informed consent, and inappropriate. If, as may have occurred, Patient A expressed interest in how her breasts might look after surgery, that did not reasonably convey to the Respondent, who was a general practitioner who would not be performing such surgery, any invitation to do what the Respondent admits that he did. 29. Dr Marles' opinion (HCCC 1, Tab 14,p 11-12) was that, assuming that Patient A had asked the Respondent "how it would look should she have a reduction and he showed her by pulling her breasts up", which may have been interpreted by the Respondent as consent for him to "manipulate her breasts", in the absence of formally seeking permission and explaining what he was going to do, as required for good medical practice pursuant to Sexual Boundaries: Guidelines for Doctors. Medical Board of Australia. October 2018, p5, the conduct of the Respondent fell below the standard reasonably expected of a practitioner of similar training and experience. 30. Dr Marles further considered the Respondent's conduct in stating to Patient A that "her breasts would look better cosmetically if she were to have a breast reduction" breached the Sexual Boundaries Guidelines (p7) and was "conduct significantly below the standard reasonably expected of a practitioner of similar training and experience". 31. The evidence of the Respondent in cross-examination in relation to his lack of expertise with respect to "potential options for breast reduction surgery" (Transcript p100-104) during which the Respondent repeatedly stated that his comments with respect to the effect of breast reduction surgery were intended to "boost" Patient A's confidence provides further support for finding that the Respondent did say things with respect to his opinion of how Patient A's breasts would look after surgery which fell below the requisite standard. How the Respondent's unqualified demonstration of how lifting Patient A's breasts was thought to boost her self-confidence was not explained by the Respondent. 32. Dr Marles said (Transcript p70, line 3): "It's not appropriate - I don't believe it's appropriate for Dr Gao to show the patient how he thinks her breasts would look afterwards, given that he is not going to be conducting the surgery. I think that he would not know how they are going to look afterwards if he's not conducting the surgeon [sic]. It's really up to the surgeon that he refers her to to go through that, rather than Dr Gao. I think if the patients says "I'm concerned about the appearance", his response is "if you would like to, I can refer you to a surgeon". He doesn't need to go any further in terms of commenting on her appearance one way or the other. I think that's inappropriate." 1. Dr Marles was asked whether Patient A saying words to the effect of "Can you show me how my breasts would look" (Transcript p70, line 13) "would be taken to constitute informed consent", Dr Marles responded that "he won't know, because he's not conducting the surgery, so he's not in a position to answer that question and so really what he should be saying to the patient is "if you'd like to have a consultation with a plastic surgeon, I'm happy to refer you" he does not need to - he cannot give any guarantees about what someone else's surgery is going to be like. It's quite inappropriate for him to do that." 2. Dr Marles was further asked to comment on propositions that the discussion with respect to possible breast surgery was a "preliminary discussion, because he's only a GP" to which Dr Marles responded: "He may have that discussion, if the patient raised the issue. If the patient raised the issue, he may have that discussion around some of those things. I think that's reasonable. But I don't think it's reasonable for him to actually manipulate her breasts to show what he thinks they would look like when he is not conducting the surgery and I think you also have to be extremely careful about making any comments about someone's physical appearance and … that is why you would put it all back to the patient that if they're concerned about the cosmetic appearance, then you are happy to refer them to a plastic surgeon, rather than making any comments about how you think it's going to appear." 1. In his report (R2), Professor Roche said that his opinion was very much dependent on three assumptions. They were that the patient herself had raised the issue of a breast reduction "completely unsolicited" by the Respondent. We are unable to make that finding. The second assumption was that the patient had asked the Respondent what her breasts would look like if she had a reduction. Although we do not make a finding in those terms, as we have earlier recorded, what emerges with respect to the discussion of the issue renders it not unreasonable that the Respondent may have thought that Patient A was interested in having some indication of how her breasts would look if she had surgery. That assumption would not detract from the force of the evidence of Dr Marles to which we have referred. The third assumption, that the Respondent's surgical training "had provided experience in breast surgery", is not made out on the evidence before us. Although the Respondent had some experience, albeit a decade earlier, as detailed in the statement of Dr Speakman (R1, Tab 5), the Respondent's own evidence in cross-examination, in which he disavowed such expertise, and emphasised the preliminary and general nature of the discussion with Patient A, precludes a finding in those terms. 2. Professor Roche said that he believed a "prudent doctor would have avoided answering Patient A's concerns about her breasts and deferred to a breast surgeon, a plastic surgeon or cosmetic surgeon, who would be much more experienced in these matters" but that, based on the three assumptions which he had identified, he did not consider that the Respondent's conduct was "below the standard reasonably expected". Professor Roche advanced a number of mitigating factors (R2, p13), which, given the absence of the three underlying assumptions which he identified in his report, are not enlivened. Professor Roche's evidence does not create an obstacle to accepting Dr Marles' opinion with respect to the two issues to which we have referred. Nothing emerging from cross-examination of Professor Roche altered the effect of his written evidence. Our finding involves no criticism of Professor Roche, who proceeded in reliance upon assumptions which he was asked to make, and clearly identified in his report (Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305: (2001) 52 NSWLR 705). 3. For the foregoing reasons, we are comfortably satisfied that the Applicant has established particulars 6(c), (d), (e) and (f), and 7(a)(ii) and 7(b) and, as the evidence of Dr Marles and Professor Roche to which we have referred establishes, and that the conduct of the Respondent "fell significantly below the standard reasonably expected of a practitioner of similar training and experience" and thus constitutes unsatisfactory professional conduct. 4. Particular 8 arises out of Patient A's consultation with the Respondent on 3 November 2018. In her SARO statement, 24 May 2019, (HCCC 1, Tab 10, p13) Patient A said "One time he looked at my vagina for a skin cancer check, which I thought was a bit of overkill, especially because I had recently had a pap smear, but maybe he was just being thorough". Patient A further stated "There was another time where he was feeling my abdomen because of my gut and he looked down my underwear. It felt wrong, but I thought that maybe he was just looking at my c-section scar", but otherwise did not make allegations which advance this particular. 5. In her email to the Applicant of 18 October 2019 (HCCC 1, Tab 9) outlining her complaints (p1), Patient A reiterated her earlier allegations, without expanding on them. In her statement of 14 January 2020 (HCCC 1, Tab 8) Patient A provided further detail of her allegations (p4, paragraph 29 to p5, paragraph 34) and stated: "29 In my complaints I also describe a number of other incidents which happened when I was a patient of Dr Gao. 30 One of these incidents, as described on page 1 of my Commission complaint, was when he looked at my vagina during a skin check examination. I do not recall the date of this incident, but it was well before the 29th of April 2019 incident and also happened in consult room 1 at Wallis Street Medical Practice. 31 I recall that this appointment was specifically for a skin check. My nan has a history of skin cancers so I get my skin checked regularly. I do not recall much about this appointment, however I clearly remember that the skin check was conducted by Dr Gao when I was lying down on the bed in the consult room and was wearing a bra and underwear. I do not recall whether Dr Gao used any instruments to conduct the skin check. 32 When I was laying on my back during the examination, Dr Gao lifted up the band of my underwear and looked down my underwear at my vagina. I cannot recall how long he held up my underwear, however it was a short period of time. Dr Gao did not tell me he was going to lift up my underwear and he did not ask me for permission. I did not have a blanket or sheet on me during the examination and Dr Gao had not offered this to me. 33 Dr Gao did not say anything to me while he was doing the skin examination or when he lifted up my underwear and looked at my vagina. 34 I did not tell Dr Gao during this consultation that I had a vaginal itch. I have never had any consultation with Dr Gao where I have had this complaint; it [sic] I did ever have a vaginal itch I would deal with this on my own by going to the chemist." 1. The Respondent did not admit (39) particular 8(a) but stated, as paragraph 8(a) alleged, that "Patient A was lying down on the examination bed in her bra and underwear", albeit "for a clinical purpose". The Respondent denied that he failed to offer Patient A a "modesty sheet" (40) and stated that he "would have" done so. The Respondent did not assert an independent recollection of having done so on this occasion. The evidence establishes that a modesty sheet or cover was available in the consultation room on 3 November 2018. 2. The Respondent may or may not have offered Patient A a cover sheet. Patient A and the Respondent adhered to their version of the event. Neither version is inherently improbable, or inherently more probable than the other. Without suggesting that the Respondent's evidence with respect to the issue is compelling, we are unable to be comfortably satisfied that a cover sheet was not offered to Patient A. 3. Particular 9 concerns the examination which followed upon the events referred to in particular 8. We have set out above Patient A's version of what occurred during the examination which the Respondent conducted. The Respondent denied that a visual examination of Patient A's pubic area was not clinically indicated, but asserted "however it was not a full vaginal examination" (41). 4. The Respondent referred to the consultation having occurred on a Saturday, when there was "no suitable chaperone around", and that Patient A had booked a "skin cancer check" with the practice. The Respondent asserted that he had discussed with Patient A "that I needed to check her lower abdomen area and asked Patient A to pull her underwear down to show the lower abdomen and suprapubic area", and that Patient A "did as I requested with no questions or concern, and used her hands and pulled both sides of her underwear down, which indicated to me that Patient A consented to the examination of her skin on this part of the body" (42). The Respondent asserted that during the inspection of Patient A's lower abdomen area, Patient A stated words to the effect of "I feel a bit itchy down there" to which he replied "Do you think it is thrush?" and Patient A answered "No, I don't think that is thrush I had thrush before and I can deal with it myself", whereafter, the Respondent alleged that Patient A said "Could you have a look?" to which he responded "Okay". 5. The Respondent stated (43) that he then asked Patient A "to pull her underwear further down to allow for an inspection of her pubic area" and that, to the best of his recollection, he "may have used one or two of my fingers to hold the middle part of the waistband on Patient A's underwear to help her to pull her underwear down to upper and middle parts of her thighs to inspect Patient A's pubic area". The Respondent then said that he told Patient A "Skin looks all okay" to which Patient A responded "Okay", but otherwise did not have "any further questions or queries". 6. The Respondent reiterated (46) that he had conducted a "brief visual examination on Patient A of her pubic skin area" to "check for any skin changes" but said "On my reflection, I appreciate that I cut corners with this examination in response to Patient A's request, and I should have been more thorough. I should have asked Patient A to come back on Monday in order for me to perform a formal vaginal examination with chaperone". 7. The Respondent admitted (48) that he had failed to offer a chaperone to Patient A before conducting a visual examination of her genital area, essentially on the basis that "we didn't usually have a chaperone for skin check" on Saturdays and that "no suitable chaperone was available at the time and I was under time pressures". The Respondent did not suggest that he told Patient A those things. The Respondent further stated that "As a result of my reflection and learning from this case, I plan to strictly use a chaperone for all the intimate examination for female patients, including skin check, breast examination and genital examinations". The Respondent denied that he had failed to provide an explanation of the nature and purpose of the examination and thereby failed to provide sufficient information to Patient A to provide informed consent for the examination. 8. Dr Marles (HCCC 1, Tab 14, p8) opinion of the appropriateness of the Respondent's examination of Patient A's suprapubic area as part of a skin check examination (paragraph 9, p9) was that, if Patient A "did not complain of an area of concern in her suprapubic region it was not appropriate for Dr Gao to inspect the skin there, and as such I consider his skin check to be below the standard expected of a practitioner of similar training and experience." 9. Dr Marles reiterated (paragraph 10) her opinion that "examination of the genital area should only occur where the patient has a specific concern, provides permission and preferably with a chaperone available" and that, if Patient A did not request the Respondent to examine the area, and the Respondent did not seek permission to do so, his conduct would be in breach of sexual boundaries and be below the standard expected of a practitioner of similar training and experience. 10. In relation to the examination itself, Dr Marles recorded (p10, paragraph 12) that: "Dr Gao did not take any associated history with respect to triggers or other symptoms, and his examination with the patient's underwear still at mid-thigh, and no additional lighting would not have allowed him to properly assess the cause of the itch. His diagnosis that it was "nothing and looks pretty normal" was based on inadequate history, inadequate examination and the absence of a confirmatory swab. He did not provide any treatment plan other than to say "it looks alright to me"." 1. As such, Dr Marles' opinion was that the Respondent's conduct was significantly below the standard expected of a practitioner of similar training and experience. 2. Professor Roche (R2, p4) noted that the absence of the offer of a chaperone was not a concern "provided that no intimate examination (an examination of the breast or genitals) was involved" and added that he would "not consider an examination of the patient's lower abdomen and suprapubic area to be an intimate examination, providing that the actual genitals are not inspected. However, I would consider that any inspection of this area is both explained and consented … and the patient exposes the area herself". Professor Roche stated that he did not consider "that a doctor should lift up the elastic waistband of the underpants to allow inspection of the lower abdomen or upper buttocks area". 3. Professor Roche (R2, p11, paragraph 4) recorded his opinion that "A competent doctor would have taken a more comprehensive history of the "vaginal itch" … and documented this in the record". He further observed that: "The patient should have had a clear indication of what the examination involved, and her consent obtained. In my opinion, there needed to be an examination on a couch with underwear removed. This examination needed to include the external genitalia and the vulva. There was no indication to do a speculum examination or manual pelvic examination, unless there was a significant discharge." 1. Professor Roche further stated that: "The examination should have been adequate and not cursory, as admitted by Dr Gao himself, in as much as he just pulled the underwear down to the top of the thighs, denying himself a clear view of the vulva and the whole genitalia." 1. Professor Roche added that the Respondent: "should have given an adequate explanation of his findings, his provisional diagnosis or differential diagnosis, and his proposed management (including possibly investigations or treatment) and then recorded these in the clinical record. There is no record or even recall of this happening." 1. For those reasons, Professor Roche was of the opinion that the Respondent's conduct was "below the standard reasonably expected but not significantly below the standard reasonably expected". 2. The Respondent's clinical notes (HCCC 1, Tab 52, p5) give no indication that anything described by the Respondent in his evidence occurred during the consultation on 3 November 2018, and thus create no impediment to preferring Patient A's version of events over his. The Respondent's own evidence with respect to the nature and extent of the examination, and admissions with respect to its inadequacy also provide support for preferring Patient A's account of it. 3. The Respondent admitted that he "lifted the elastic banding at the top of Patient A's underwear". The Respondent does not suggest that he did so in response to any express or implied request by Patient A to do so (R1, Tab 1, p9, paragraph 43). 4. In the circumstances we have recorded above, we are not comfortably satisfied that a visual examination of Patient A's genital area was not clinically indicated as particular 9(a) alleges. We would not be satisfied on the Respondent's evidence that it was clinically indicated, but that is not the issue for determination. 5. We are comfortably satisfied that particular 9(b) is established. Self evidently, as there was no chaperone present on 3 November 2018, the Respondent could not have offered Patient A a chaperone. The Respondent does not suggest that he had any conversation about chaperones with Patient A prior to embarking upon his examination of her. The expert evidence of Dr Marles and Professor Roche supports our finding. 6. We are comfortably satisfied, even on the Respondent's own evidence, or its absence, that particular 9(c) is established- the Respondent failed to provide an explanation of the nature and purpose of the examination, and thereby failed to provide sufficient information for Patient A to provide informed consent for the examination of her genital region. 7. In view of the expert opinion evidence to which we have referred, the issue with respect to the examination conducted by the Respondent on 3 November 2018 is ultimately whether, as Dr Marles suggests, the conduct fell significantly below the required standard or whether, as Professor Roche suggests, although falling below the standard reasonably expected, the conduct did not fall significantly below that standard. 8. As Counsel for the Applicant submitted (20), there is a factual dispute as to whether or not Patient A told the Respondent during this consultation that she had a vaginal itch. In view of the expert opinion evidence, we do not ultimately perceive it to be significant whether Patient A stated that. We are not able to find that an examination of Patient A's genital area was not clinically indicated, but are comfortably satisfied, however it came about, that in each of the respects identified by Dr Marles and Professor Roche, the examination fell below the standard reasonably required of the Respondent. 9. In view of our findings with respect to the foregoing particulars, the issue becomes whether, in all the circumstances, we are comfortably satisfied that the conduct of the Respondent fell "significantly" below the standard required and thus constituted unsatisfactory professional conduct. Having regard to the nature and extent of the respects in which the Respondent's conduct fell below the standard reasonably required, and, with all due respect to Professor Roche's opinion, we are comfortably satisfied that, cumulatively, the conduct which we have found established fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience to the Respondent, and thus constitutes unsatisfactory professional conduct. 10. To the extent that Dr Marles' report (HCCC 1, Tab 14) may not have made clear that the Respondent's conduct in "moving" Patient A's underwear was considered to fall "significantly" below the requisite standard, Dr Marles' statement in a letter from the Applicant to the Respondent's solicitors of 7 December 2021 (HCCC 1, Tab 15) makes Dr Marles' opinion that it did quite clear. We do not believe that the absence of "significantly" in some of Dr Marles' opinions with respect to individual parts of this particular provides any logical or legal impediment to our recording a finding of unsatisfactory professional conduct, which is ultimately a matter for the Tribunal in the light of all the evidence. For the reasons we have recorded, we are comfortably satisfied that the conduct of the Respondent which we have found to be established pursuant to this complaint falls significantly below the requisite standard. 11. Although not pivotal to any finding of fact with respect to this Complaint, or our finding that the conduct which the Applicant has established constitutes unsatisfactory professional conduct, the evidence of the Respondent in cross-examination (Transcript p107, line 21 to p108, line 5) provides indirect support for preferring the evidence of Patient A to that of the Respondent, and making the findings we have recorded with respect to this particular. 12. During his cross-examination on 14 December 2021, when asked "Is it accurate to say you lifted up her underwear first", the Respondent volunteered that "Usually my routine practice, I ask the patient to pull down their underwear, no matter male or female, mainly for the - reduce the risk of STDs". When asked to "give that answer again", the Respondent repeated that answer. 13. The Respondent was then asked "You're saying … that you don't lift the underwear of the patient because you're concerned that there may be a transmission of an STD to you?". The Respondent replied "It's a possible risk of it. That's my routine practice, and ask the patient to lift their underwear". 14. We observe that, on 8 October 2021, the Respondent admitted that he "may have used one or two of my fingers to hold the middle part of the waistband on Patient A's underwear to help her to pull her underwear down to upper and middle parts of her thighs" (R1, Tab 1, p9, paragraph 43). We also observe that, as emerged in cross-examination which ensued with respect to this topic, the Respondent was obliged to acknowledge that he had never said what he said about the risk of STDs influencing his usual practice in evidence before, either during the s 150 hearing or in the current proceedings, or why he may have departed from that practice on this occasion. Albeit not crucially, this evidence, and the evidence of the Respondent in general with respect to the conduct of this examination, provides support for our being comfortably satisfied that the Respondent is guilty of unsatisfactory professional conduct in the respects which we have identified. 15. Particular 10 alleged that on 29 January 2019 "The practitioner inappropriately hugged Patient A when she was upset." In her SARO questionnaire (HCCC 1, Tab 10) Patient A did not make any allegations with respect to this consultation, or in the terms of this particular with respect to any other unidentified consultation. Nor did Patient A make any allegations in the terms of this particular in her email to the Applicant of 18 October 2019 (HCCC 1, Tab 10). Patient A made no allegations in the terms of this particular in her statement of 14 January 2020 (HCCC 1, Tab 8) save (45) that the Respondent gave her "hugs during appointments when I was upset", which she recalled "happening at an appointment when I had a urinary tract infection and was really unwell and in a lot of pain". 16. As submitted on his behalf (22), the Respondent's clinical notes record that Patient A presented with a urinary tract infection on 29 January 2019. 17. The Respondent "strenuously" denied "hugging Patient A when she was upset" (R1, Tab 1, p11). The only physical contact admitted by the Respondent during the consultation (52) was that he: "extended my left arm and used my left hand to pat Patient A on her left shoulder a couple of times. My hand was flat and it was a light tap mainly with three middle fingers, and not above the shoulder. My arm did not have any contact with her back. Eventually Patient A stopped crying, then I asked her to sit back in the patient chair and continued the consultation". 1. In cross-examination (p112) the Respondent substantially adhered to the version of events which he recorded in his statement. Counsel for the Respondent submitted that the evidence of Patient A, with respect to the consultation (Transcript p31) was vague, and that she was "unable to provide any details about how Dr Gao is said to have hugged her, anything he said or any other relevant circumstances" (70). 2. Largely for the reasons which have rendered us unable to be comfortably satisfied that a number of earlier allegations have been established, we are not comfortably satisfied that the Respondent "inappropriately hugged Patient A" on 29 January 2019. Patient A undoubtedly became upset during that consultation. For the reasons recorded above, we are not able to find that anything which the Respondent did in response to Patient A's distress was inappropriate. 3. Particular 11 of this Complaint alleged that the Respondent failed to maintain appropriate professional boundaries with Patient A by engaging in inappropriate physical conduct and/or inappropriate comments to Patient A during a consultation on 29 April 2019. In her SARO statement of 24 May 2019 (HCCC 1, Tab 10), Patient A set out in detail what she alleged had occurred on that day. After alleging matters that now do not assume significance, Patient A recorded with respect to her consultation with the Respondent on 29 April 2019 at 10.15 a.m., that the Respondent informed her that her: "specialist had sent through a report and he wanted to go through it with me, so I told him I'd make an appointment when I looked at my schedule. I was getting really keen for my next appointment by the time it came around because my depression and anxiety was not good at all (the worst it has ever been) and I had some really important things I needed to discuss and sort out with him in regard to my pathology tests, antidepressants and other medications, and my gut. … I was in an extremely depressed state. He called my name and I walked into the room, he shut the door (I think he may have locked it but I'm not 100% sure), and he grabbed me extremely tight and was trying to kiss me. I instantly tried to push him off me, but he pulled me in tighter and started kissing my neck and sniffing me. I said "What are you doing" and managed to push him off me after much struggle. He sat down so I sat in the patient's seat feeling confused and violated - I couldn't stop shaking. … I tried to continue with the appointment as normal as there were some very important things I needed to sort out and my brain was just not working properly. I was so confused and felt frozen. He told me that my psychiatrist had written him a very long letter about me and he was eager to see me. He gave me the letter and I wanted to read it but couldn't. My brain was not working properly, and I couldn't speak properly. I was telling him that I was not okay, and my mental health is terrible, and I need to wean off my antidepressants because I have never felt this terrible before and he told me to stand up, so I did. As soon as I stood up he tried to do the same thing as before. He grabbed me and said, "Give me a kiss". I said, "No", and pulled away. He then told me to hop up on the bed and said, "No, this is extremely inappropriate", and pushed him off me. It all happened so quickly but felt like forever. I sat down and was in complete shock - I felt like I had been completely violated and I couldn't move or speak. I sat frozen, for I don't know how long. I couldn't look at him. He asked me if [sic] was I okay and I said, "No". He said, "I was just trying to make you feel better, are you mad at me?". I said nothing. He said, "If you feel uncomfortable, I won't do it again". I nodded." 1. Patient A alleged that the consultation continued and, when it was "time to leave" the Respondent "asked me if I was sure I didn't want him to check my breasts before I go", to which she responded "No". The Respondent then asked Patient A whether she was "okay", to which she replied that she was not. Patient A stated that the Respondent then asked whether she had "any stress going on and I was thinking well my medication isn't agreeing with me and you just sexually assaulted me so I'm pretty sure it's clear why I'm feeling this way - but all I could say was, "not really"". Patient A alleged that the Respondent then "got up and told me to stand up again but this time I didn't. He stood in front of me and said, "come here" and tried to hug me while I was sitting down"". The Respondent then "sat back down in his chair and told me to come and see him before he moves to his new surgery" to which she replied "okay" and then left." 2. In her email to the Applicant of 18 October 2019 (HCCC 1, Tab 9), Patient A reiterated her complaint, in substantially the same terms as she had in her SARO statement, with some amplification. In her statement of 14 January 2020, Patient A referred to her complaint to the Applicant, to which we have earlier referred (HCCC 1, Tab 9), and reiterated (11-27) her recollection of what occurred during the consultation on 29 April 2019. 3. In his statement, the Respondent "strenuously" denied particular 11 "in its entirety" (55). The Respondent referred to his solicitor's letter to the Applicant (HCCC 1, Tab 33, p2-4) with respect to this Complaint and adopted that explanation. 4. The Respondent stated in the solicitor's letter that the "issues" which were discussed with Patient A during the consultation on 29 April 2019 emerged from the "most recent report from her psychiatrist", which included her diagnosis of adult ADHD, diagnosis of generalised anxiety disorder, past history of long term mental health issues from her youth, mainly anxiety and major depression, being treated with multiple antidepressants and the review of her past use of antidepressants, including the drug names and side effects. 5. The Respondent also suggested that there had been a discussion of Patient A's continuing use of Efexor which had been prescribed by her psychiatrist, cessation of Keflex capsule 500mg and Trimethoprim tablet 300mg, the psychiatrist's request for blood tests, long term bowel problems, including Irritable Bowel Syndrome and dyspepsia, the issue of a script for Buscopan, Patient A enrolling in a new FODMAPs trial, mental health and psychological management review as recommended by the psychiatrist and Patient A consulting with a psychologist at Newcastle University occasionally and a follow up plan, including requesting scheduled appointments with Dr Anand. 6. Under the heading "Counselling", the Respondent recorded 6 issues which he said had been discussed with Patient A during the consultation, noting that Patient A was "teary and slightly anxious". Under the heading "Description of any examination/s performed and/or suggested by you on [Patient A], including the purpose of these examination/s" the Respondent recorded that he had taken Patient A's blood pressure as her psychiatrist had requested this be monitored on each visit, but that there was otherwise no physical examination and that a general mental health assessment and suicide risks check, including checking for self-harm or suicide ideation intent or plan, had been completed. The consultation was suggested to have taken approximately 30 minutes in length. 7. The Respondent's clinical notes for the consultation (HCCC 1, Tab 52, p 4) are less expansive than his statement, and record that Patient A was "feeling stressed recently. Some stress going on. A few issues discussed. Counselling given. Psychiatrist letter reviewed and d/w. pt (presumably meaning "discussed with patient"). Check-up. Scripts. Examination: general: BP [blood pressure and pulse readings then recorded]", "Well Slightly anxious and teary. Good eye contact and communication Fair insight". The "actions" involved adding Efexor prescriptions, ceasing Keflex and Trimethoprim medication and a notification to the physician. 8. Counsel for the Applicant submitted (27) that it was "entirely plausible that the account of Patient A … may differ in minor respects" in the circumstances alleged by her, but that "the material aspects of the complaint remained the same in the original complaint of Patient A, in her statement and in oral evidence". We accept that it is "plausible" that Patient A's account of the consultation may differ in "minor respects" without detracting from its veracity, or essential reliability. It was further submitted (28) that Patient A's account was "detailed, particular and consistent" and that her oral evidence was "equally persuasive". It was further submitted that Patient A's "distress at times" was "entirely reasonable and consistent with the nature of her allegations". 9. The Applicant acknowledged, accurately, that the Respondent had consistently maintained that none of the incidents alleged by the Applicant had occurred, but (29) that some of the Respondent's answers in cross-examination were "unfocused, unclear and confusing", and that he "became fixated on the improbability of the conduct given his understanding of the dimensions of a consulting room", matters which were submitted to "reflect very poorly on his credit as a witness". 10. In oral submissions, Counsel for the Applicant referred to the absence of motive for Patient A to speak other than truthfully about the events of 29 April 2019. We do not understand any motive for Patient A misspeaking the truth, with respect to this particular or otherwise, to have been suggested, or to otherwise emerge from the evidence. Nor do we understand that any condition from which Patient A may have been suffering predisposed her to hallucination, exaggeration or the fabrication of allegations. 11. The evidence of the Respondent with respect to concerns about transmission of STDs to which we have earlier referred was, understandably, relied upon in support of Counsel for the Applicant's submission that the evidence of the Respondent was unreliable. 12. Counsel for the Applicant also relied upon evidence given by the Respondent in cross-examination in support of her contentions (Transcript p118) in the course of which the Respondent suggested (line 24) that Patient A "had, sort of, a mental problem … mental problem all her life. So I can understand. I know her quite well for her mental issues. So she made up such a - like, a weird kind of outrageous complaint; that's compatible with her mental state, mental conditions". The Respondent reiterated (Transcript p118, line 31) that "I understand, with her mental condition based on - she made such a - like a … [not transcribable] … imagination, things like that". We have not been referred to anything in the Respondent's clinical notes which supports these assertions. 13. The Respondent was represented by eminent and experienced Counsel and solicitors who meticulously prepared and conducted his case. It is inconceivable that, had the Respondent raised these matters with them, they would not have been explored in cross-examination of Patient A. We infer that the Respondent first decided to make these allegations during his cross-examination. Whatever the reality, the evidence reflects more on the credibility of the Respondent than on the credibility of Patient A. 14. If the Respondent genuinely believed that Patient A had a "mental problem" which predisposed her to "make up" a "weird kind of outrageous complaint" during the period in which she was his patient, the failure to maintain boundaries with respect to Patient A's breasts and genital regions aggravates the significance of the conduct which fell below the requisite standard. The deficiencies in the Respondent's clinical notes are also inconsistent with his having that belief at the time of his consultations with Patient A. Dr Marles was cross-examined before the Respondent gave that evidence. Professor Roche was not asked to comment on it. 15. This unresponsive evidence of the Respondent, and his evidence with respect to his usual practice as a result of the risk of STD during genital examinations, his vacillation with respect to whether he assertedly relied upon express or implied consent to the breast examination on 2 October 2018, and the matters to which we next refer in relation to the evidence of Dr Lennings persuade us that considerable caution is required when evaluating the reliability of the evidence of the Respondent. We do not have similar concerns about the evidence of Patient A. 16. The Respondent was cross-examined in relation to the report of Dr Lennings (Exhibit R1, Tab 3, p61, paragraph 45, Transcript p119) in which Dr Lennings recorded the Respondent as "dismissing the complaint as a vindictive and fabricated attempt to cause trouble for him". Dr Lennings' opinion was that if there was "acceptance of some reality to the complaint then clearly Dr Gao has no insight as to how that matter arose". 17. The Respondent said that Dr Lennings' representation of him was "more or less" accurate but that he had only told him "that's not true, all fabrications" (Transcript p119). As observed earlier in these reasons, no motive for Patient A fabricating her allegations, or psychological or other reason for her doing so emerges from the evidence before the Tribunal. 18. The Respondent did not agree that he had described the complaint by Patient A as "vindictive" or that Patient A had made the complaint in order to "cause trouble" for him. What Dr Lennings recorded is consistent with the Respondent's unresponsive comments about Patient A's "made up…outrageous complaint" to which we have earlier referred. The Respondent disagreed with Dr Lennings' opinion (R1, Tab 3, p63, paragraph 53) that he "defends each and every complaint made against him on the basis that they were malicious, vindictive and/or complete fabrications", but conceded that was his view with respect to some of the complaints which have previously been made against him. The Respondent volunteered his view that Patient A's disputed complaints were "complete fabrications" in cross-examination. 19. In cross-examination the Respondent rejected every allegation of inappropriate conduct raised by Patient A with respect to the consultation on 29 April 2019. In the course of doing so, the Respondent responded (p 122) to the suggestion that "at the end of the consultation, you asked her if you could conduct an examination of her breasts, when there was no need to do so", by saying, "That's even more insane". That answer is consistent with the opinions expressed by Dr Lennings, and raises concerns as to the reliability of the Respondent's evidence with respect to this consultation. 20. Counsel for the Respondent relied upon "character evidence" (78), the effect of which was submitted to be that the Respondent, being a person "of good character is less likely to lie or give a false account either in giving evidence before the Tribunal or in a statement prepared for legal proceedings". We have earlier referred to the authorities with respect to character evidence, and recorded that we take it into account in favour of the Respondent, albeit to the limited extent which we there indicated. As we have earlier suggested, we do not find that either Patient A or the Respondent has "lied"- they just have very different versions of disputed events. The character of the Respondent does not ultimately advance his claim that he was unlikely to have committed the acts alleged against him, or have given other than entirely truthful evidence with respect to them. Our evaluation turns on closely assessing the evidence of the witnesses before us, and, to the limited extent that it is available, consideration of circumstantial and documentary evidence. 21. Counsel for the Respondent referred (80) to Patient A as "a vulnerable patient". If that contention is accepted, it potentially aggravates, rather than mitigates, the objective seriousness of the unsatisfactory professional conduct which we have found with respect to earlier particulars of this Complaint. Its acceptance however does not, in our view, create obstacles to the acceptance of the critical parts of Patient A's evidence. Having heard and closely observed Patient A give evidence, we discern nothing which suggests that, whatever her "vulnerability", Patient A exaggerated, imagined or fabricated her allegations. The concessions made by Patient A in cross-examination, upon which the Respondent significantly relied, support our finding. So do the admissions of the Respondent which we have earlier recorded in our evaluation of other particulars of this complaint. 22. For reasons which he detailed (81-82) Counsel for the Respondent submitted (83) that the "alleged sexual impropriety is so removed from his usual character and the high standards he imposed upon himself, that the Tribunal would have real doubts about the veracity of the allegations". The Respondent relied upon (84) the unchallenged evidence from Dr Garry Clemensen (R1, Tab 6) that the conduct alleged against the Respondent was "out of keeping with [his] experience whilst working with Dr Gao". As we have earlier recorded, Dr Clemensen's professional contact with the Respondent is of some antiquity. 23. In support of his contention that the character of the Respondent rendered it improbable that he would have done the things alleged pursuant to this particular, Counsel for the Respondent referred (87) to the asserted benign findings of Dr Lennings with respect to the Respondent and, particularly to paragraph 49 of his report (89) which records that Dr Lennings had: "no reason to believe Dr Gao would deliberately act in an unethical way. He is conservative in his view of the world, achievement focused but also focused on being viewed as competent … from an ethical and professional standard Dr Gao does not appear to be deliberately deceitful or manipulative. On my interview there appears to be little in the way of anything that would suggest that he had a prurient interest in his client or was sexually motivated to misbehave with his clients, although he may be insensitive to his clients' emotional needs or signals of discomfort." 1. The particular allegations which we have found proved do not involve finding, or needing to find that the Respondent acted in a "deliberately deceitful or manipulative" manner. No part of this particular asserts a "prurient interest" in Patient A, or that the Respondent was "sexually motivated" in his conduct towards her. We do not understand that the Applicant must establish that the Respondent had "deliberately" acted in an "unethical manner" pursuant to this particular. The final comment by Dr Lennings in the passage set out above is consistent with Patient A's allegations in a number of her complaints. 2. For the reasons advanced in a number of earlier paragraphs of his submissions, Counsel for the Respondent submitted (97) that Patient A's evidence was impacted by "speculation" and "either misremembered or reconstructed details or events that were missing or did not exist". We do not recall Patient A "speculating" in the course of her evidence, save by making the admissions or concessions favourable to the Respondent to which we have earlier referred. Patient A's version of the issues discussed during the consultation accords with that of the Respondent to a significant degree. 3. Patient A was not shown by courteous but searching cross-examination to be other than an essentially honest witness. Whilst, consistent with what the authorities to which we have earlier referred recognise, there were inconsistencies and omissions of details in Patient A's evidence, she was unwavering with respect to the substance of her allegations. Not insignificantly, Patient A did not embellish her allegations in cross-examination. She did not display vindictiveness towards the Respondent. Patient A was not argumentative, evasive or in any way seemingly motivated to advocate her own or anyone else's claims. In those respects, the evidence of Patient A contrasts significantly with that of the Respondent. We do not accept that the demonstrated inconsistencies or omissions or asserted "vagueness" in the evidence of Patient A is indicative of a lack of honesty. In reality, the case relates more to the reliability of her recollection of events, than to the honesty of Patient A in giving evidence about them. Not dissimilar observations apply to the Respondent although, clearly, he has much at stake in the proceedings. 4. Counsel for the Respondent submitted (98) that Patient A was "unable to provide any evidence of what words were spoken as she entered the [consultation] room" and referred to what she would "probably" have done or what "usually happened". The criticism of Patient A in this regard is, with respect, somewhat disingenuous given that so much of the evidence of the Respondent with respect to allegations against him was expressed in terms of his "usual practice" and what he "would" have done. Patient A said, in her first statement, made less than one month after this consultation, that she felt "confused" and "frozen" by the actions of the Respondent during this consultation. That evidence has the "ring of truth", and does so largely for the reasons which Patient A provided - patients trust and have faith in their doctors conducting themselves with integrity, and do not readily believe that they are doing, or would do "the wrong thing". 5. With respect to the submissions on behalf of the Respondent (100-101), we are not persuaded that the dimensions of the consultation room, or its features, materially impact the probabilities of Patient A's allegations being accurate. Put simply, nothing about the layout or contents of the consultation room precluded what Patient A asserted happened from happening. Conversely, the features of the consultation room do not militate against acceptance of the Respondent's version of events, remembering that the Applicant bears the onus of proof and that the Respondent does not need to prove anything. 6. The Respondent submitted (102) that the evidence of Patient A with respect to "much struggle" and the Respondent grabbing her "extremely tight", and the absence of Patient A shouting out, screaming, running away, walking out or anything else to alert someone to what had just happened, militated against accepting that her complaints were well founded. Patient A's evidence with respect to feeling "frozen" adequately explains why none of those things happened. If, as the Respondent suggests, Patient A was "vulnerable", the reasons for her failure to respond are even more readily able to be accepted. 7. The submissions of Counsel for the Respondent (105) with respect to what occurred after the assertedly "extremely inappropriate" conduct of the Respondent require careful consideration. Counsel for the Respondent submitted (111) that the Tribunal should have "serious doubts" in circumstances where: "Patient A mixes up her version of events. She alleges that Dr Gao hugged her for a third time during the consultation. In one version (the SARO) she said this third alleged hug, occurred whilst she was sitting down, after the unsolicited offer of a breast check. However, in her email to the HCCC dated 14 October 2019, Patient A said that Dr Gao went to ask her if she okay and then stood in front of her and hugged her whilst she sat in the chair, and that the breast check offer came after that, being at the end of her consultation. Patient A claimed to have a clear memory of Dr Gao offering a breast check. The submission that Dr Gao threw in an offer to conduct a breast examination at the end of a consultation is peculiar and very unlikely to happen. It is significant that the sequence of events in the two versions is different." 1. Accepting the evidence of Patient A that she felt "confused" and "frozen" by the actions of the Respondent during this consultation, as we do, inconsistencies and contradictions in her evidence which do not go to the substance of Patient A's allegations, are to be expected, and create no obstacle to acceptance of the substance of those allegations. The specificity of Patient A's recall of significant aspects of her physical health at the time of the consultation further support acceptance of her version of events. 2. Counsel for the Respondent further submitted (120) that the Applicant has been: "unable to point to any reason for Dr Gao conducting himself in the ways alleged. Complaint 1, particular 11 which relates to the appointment on 29 April 2019 suggests an apparent sexual attraction or motivation, yet there is no submission made alleging this motive in relation to the other appointments. It was never even suggested to Dr Gao himself that he had an attraction to Patient A. The failure to do this is inconsistent with the allegations themselves and does not hold together the Applicant's case." 1. We do not read this particular to allege any actual or apparent "sexual attraction or motivation". In those circumstances, it would have been irrelevant, and potentially improper, for Counsel for the Applicant to have suggested such attraction or motivation in cross-examination of the Respondent, or, in consequence, to make submissions to that effect. We do not understand that the presence or absence of "apparent sexual attraction or motivation" alters the objective seriousness of any conduct which is found to have occurred pursuant to this particular, or to the evaluation of whether that contact satisfies the statutory definition of unsatisfactory professional conduct. We cannot accept that the Applicant was required to establish "any reason" for the Respondent to have conducted himself in the manner alleged by Patient A for this particular to be upheld. 2. As observed earlier in these reasons, there is no suggestion that Patient A had any motive for misspeaking the truth. As with earlier particulars, Patient A's version of the consultation on 29 April 2019 is not inherently improbable. Nor is the Respondent's denial of each of her allegations, although, as is undeniable, the Respondent has much at stake which could influence his recollection of disputed events. Notwithstanding the matters raised on behalf of the Respondent by way of criticism of the evidence of the Applicant, we are not able to reject her evidence. Similarly, notwithstanding the deficiencies in the evidence of the Respondent to which we have earlier referred, we cannot rationally reject his denials. In short, the conduct alleged by Patient A may or may not have occurred. Unless we are comfortably satisfied of the substance of Patient A's allegations, this particular fails. 3. There is no circumstantial or other independent evidence directly impacting upon the probabilities. Although, in isolation, by no means decisive, the fact that Patient A ceased to consult with the Respondent, which she could have at his new practice, after this consultation is supportive of finding that something untoward happened during it. Nothing alleged by the Respondent, or emerging from his evidence, identifies anything which occurred during the consultation which was out of the ordinary, or would, or might, explain why Patient A ceased to consult the Respondent. 4. Having regard to the standard of proof, and the need to feel an "actual persuasion" that the events complained of occurred, in view of the cumulative impact of the matters to which we have earlier referred, we are comfortably satisfied that the allegations in support of this particular complaint have been established. 5. Particular 12 asserted that "on one or more occasions between 5 February 2016 and 29 April 2019" the Respondent made inappropriate comments to Patient A, including words to the effect of "You look nice" and "You look pretty". The Respondent denied those allegations. 6. Patient A did not make those allegations in her SARO statement of 24 May 2019 (HCCC 1, Tab 10). Nor did she make them in her email to the Applicant of 18 October 2019. In her statement of 14 January 2020 (HCCC 1, Tab 8, paragraph 20), after reiterating her allegations with respect to the consultation with the Respondent on 29 April 2019, during which the Respondent allegedly said to her "Don't wear your jumper like that, you look manly" (HCCC 1, Tab 8, paragraph 19), Patient A said: "This was not the first time Dr Gao had made comments about my appearance. I recall other occasions where he had said words to the effect of "You look nice" and "You look pretty". These comments always made me feel uncomfortable but I did not say anything as I thought it may have been a language issue and just the way Dr Gao expressed himself." 1. The Respondent "strenuously" denied having made either statement (R1, Tab 1, p12, paragraphs 64-65). It was submitted by the Applicant (31), accurately, that there was "no evidence of the particular consultations in which these remarks were made" and that it was "not necessary for there to be such precision in timing in order for the Tribunal to find this particular proven". We agree with that proposition but, as is readily apparent, the inability of Patient A to give any indication of when, with a period of 2 years and 3 months, these words were alleged to have been said, makes it more difficult to accept, to the requisite standard, that the disputed words were said. 2. As was submitted by the Applicant, neither Patient A nor the Respondent resiled from their respective allegations and denials during cross-examination. It was submitted (32) that "the evidence of Patient A should be preferred over that of Dr Gao". Inferentially that submission was in reliance upon submissions which had earlier been made in support of complaints which, to be established, required the Tribunal to prefer the evidence of Patient A to that of the Respondent. There is little issue that, if the words complained of had been said, they were inappropriate, for the reasons suggested by Dr Marles (HCCC 1, Tab 14, p14). 3. The Respondent submitted (123) that: "The fact that Patient A previously understood Dr Gao's alleged comments as a "language issue" but now remembers them very differently detracts from the weight of her evidence. Especially as there is a void in detail as to time, date and circumstances of these comments." 1. It was further submitted, by way of example, that the comment that Patient A "passed them off as a language issue" was inconsistent with her assertion that these comments "always made me feel uncomfortable". The Respondent again submitted (124) that the Tribunal would not find these allegations established as they are "completely inconsistent with the good character and positive and appropriate relationships with his patients described by both Dr Clemensen and Dr Speakman". In view of the more recent observations of Dr Lennings to which we have earlier referred, with respect to the Respondent's apparent "insensitivities", we do not consider that the Respondent's reliance upon character evidence is well founded. 2. Earlier in these reasons, we have referred to the Respondent's gratuitous comments about Patient A's mental health during cross-examination, and the adverse inferences which they invite. Those inferences are consistent with comments made by Dr Lennings' in his report (R1, Tab 3, p9-12, paragraphs 45, 46, 49, 53 and 55) with respect to the Respondent's assertion that "the independent reviewer lacked the knowledge which Dr Gao has about" concerns with respect to his "skills in conducting examinations" (45), the Respondent's inability to "take on board a criticism of him and respond to it by acknowledging it" (46), his possibly being "insensitive to his client's emotional needs or signals of discomfort" (49), his defence of "each and every complaint made against him on the basis that they were malicious, vindictive and/or complete fabrications" (53) and "naïve, insensitive and inappropriate as his alleged comments were" which we accept, noting that the foundations for those comments have been effectively admitted, or otherwise established. 3. The Respondent submitted (125), accurately, that there was no evidence from any other source capable of supporting the allegation that Dr Gao made the comments alleged by Patient A, or anything resembling them. That does not mean that the allegations cannot be established to the requisite standard, but is a relevant consideration in our evaluation of them. 4. As with other particulars of this Complaint, the issue is ultimately whether we are able to be comfortably satisfied that the words alleged by Patient A were said by the Respondent. As with all disputed allegations made by the Applicant, we do not reject them as fabricated, exaggerated or imagined. The words alleged by Patient A may have been said by the Respondent. 5. It is significant for present purposes that Patient A is unable to give any indication, within a period of almost 2 years and 3 months as to when, or on how many occasions, or in what context, the words alleged were said. It is also not insignificant that the allegations were first made in the last of three statements made by Patient A. As the authorities recognise, the accuracy of recollections tends to diminish rather than improve with the passing of time. Patient A first made these allegations almost 4 years after the earliest occasion when the words complained of could have been used by the Respondent. 6. Patient A's frank admissions that she considered the comments "may have been a language issue and just the way Dr Gao expressed himself" are also relevant. Although supportive of her evidence in other respects, Patient A's admissions militate against finding that this particular is established. The Respondent may have said something similar to the words alleged, but referable to Patient A's apparent state of health, which would have been innocuous. Whatever was said, we are unable on the evidence to be comfortably satisfied that they involved a failure by the Respondent to maintain appropriate professional boundaries with Patient A. 7. Particular 13 asserted that, by reason of particulars 1 to 12 of the Amended Application, either individually or in combination the Respondent engaged in "inappropriate conduct of a sexual nature towards Patient A" in contravention of, in the case of particulars 1 to 9 and 12, the Medical Board of Australia (MBA) Sexual Boundaries: Guidelines for doctors effective 28 October 2011 and, with respect to particulars 10 to 12 the "MBA Guidelines: sexual boundaries in the doctor-patient relationship" effective 12 December 2018 (together with the 2011 Guidelines, "the guidelines"). 8. Our evaluation of this Complaint is necessarily undertaken by reference to the particulars in respect of which we have made findings that the conduct of the Respondent fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. As our earlier reasons confirm, the particulars which we have found established are 6(c),(d), (e) and (f), 7(a)(ii), 7(b), 9 in that the Respondent "lifted the elastic banding at the top of Patient A's underwear", 9(b) and 9(c) and 11. The Respondent denied that, individually or in combination any particulars alleged in support of this Complaint involved a breach of the guidelines. 9. The guidelines upon which the Applicant relies are found at Tabs 56 and 55 respectively of HCCC 1. The 2011 guidelines were in force at the time when the consultations which have led to the findings of unsatisfactory professional conduct recorded above occurred- 2 October 2018 and 3 November 2018. 10. The 2011 guidelines relevantly provided: Section 1.4 of Good Medical Practice states: "Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy." "Patients trust their doctors because they believe that, in addition to being competent, their doctors will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on their doctors to protect their confidentiality." Section 8.2 of Good Medical Practice states: "Professional boundaries are integral to a good doctor-patient relationship. They promote good care for patients and protect both parties. Good medical practice involves: maintaining professional boundaries." Section 3: Sexual misconduct 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 harassment is unwelcome behaviour of a sexual nature including, but not limited to, gestures and expressions. The doctor's intention in behaving in this way does not minimise the seriousness of the behaviour. However, if they intended to offend, humiliate or intimidate the patient, then the behaviour would be regarded even more seriously. Conducting intimate examinations without adequate prior explanation (and thus without informed consent) may be considered a breach of sexual boundaries". 8. Professional standards in physical examinations "Good medical practice in conducting physical examinations includes: explaining to the patient what is to occur in the examination and providing an opportunity for the patient to ask questions gaining the consent of the patient to conduct an examination not continuing with an examination when consent is uncertain, has been refused or has been withdrawn". Use of chaperones when conducting an intimate examination "Sometimes a chaperone is not available, or the patient may not be comfortable with the choice of chaperone. Under these circumstances the doctor should offer to postpone the examination until an appropriate chaperone is available, if this does not impact on the patient's health care." 1. It is readily apparent that the guidelines informed the expert opinions of Dr Marles and Professor Roche, to which we have referred when considering earlier particulars of this Complaint. Our findings with respect to the particulars which we have found to be established create obstacles to upholding this particular to the requisite standard. More is required, as the objects and purpose of the guidelines make clear - the unsatisfactory conduct of the Respondent must involve a sexual element which falls within one or more of the categories defined in section 3 of the guidelines. 2. For the reasons recorded below, we are not comfortably satisfied that this particular is established. 3. Although Patient A's interpretation of, and reaction to the Respondent's conduct is not determinative, as the guidelines make clear, it is relevant to the evaluation of whether that conduct had a sexual component that, although considering the Respondent's conduct to be inappropriate and discomforting, Patient A did not assert that she perceived the Respondent to be consciously or unconsciously sexually motivated. 4. Of the 27 consultations which Patient A had with the Respondent between 5 February 2016 and 29 April 2019, only those on 2 October 2018 and 3 November 2018 have been found to have involved conduct which could potentially involve sexual misconduct. The consultations which might, but did not give rise to complaints included breast and genital examinations. That does not mean that the Respondent's conduct on 2 October or 3 November 2018 was not sexual, but does, in our view, militate against finding it to have been. 5. The character evidence relied upon by the Respondent militates against finding this particular established. So does the absence of allegations of sexual misconduct over the long period during which the Respondent had ample opportunity to sexually misconduct himself with other patients. That absence is more significant in view of the Respondent's duties in the breast cancer unit to which Dr Clemensen referred (R1, Tab 5). 6. The evidence of Dr Lennings (R1, Tab 3, p10, paragraph 49) to which we have earlier referred, and accept, also militates against finding this particular established. 7. Although we have found the conduct of the Respondent during the consultations on 2 October and 3 November 2018 unsatisfactory, his actions were not unrelated to the medical issues raised during those consultations. It is also relevant in our view that, although perhaps not the preferred method, neither Dr Marles nor Professor Roche considered the Respondent's usual practice with respect to skin checks, which potentially provided the opportunity for sexual misconduct, to involve unsatisfactory professional conduct. 8. Having regard to the evidence before us, only by impermissibly assuming that the Respondent's established misconduct must in some unspecified way have involved a sexual component could the Tribunal find this particular established. We are not satisfied that the particular has been established. 9. Although doing so might not be precluded by the application of "what is sometimes misleadingly called the principle of double jeopardy" (Hardcastle v Commissioner of Police (1984) 53 ARL 539, at [597]), in the circumstances we have recorded, to find this particular established would essentially involve finding the Respondent guilty twice for the same offending conduct. If we are wrong in not finding this particular established, doing so would have no practical utility, as only one finding of guilt for the same conduct could properly be taken into account when the imposition of appropriate protective orders is determined. Complaint 2 1. This Complaint asserted that the Respondent was guilty of unsatisfactory professional conduct pursuant to s 139B(1)(b) of the National Law, which provides: "A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law, or under the NSW Regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention". 1. As earlier recorded, the Applicant relied upon the Health Practitioner Regulation 2016 (NSW) (the 2016 Regulation) clause 6(1), and subclauses 1(2)(a), 1(2)(b), 1(2)(c) and 3(2) of Schedule 4 of the 2016 Regulation as the basis of this Complaint. 2. The Respondent admitted that, in breach of clause 6(1) and subclause 1(2)(a) of Schedule 4 of the 2016 Regulation, he failed to record in his medical records information relevant to Patient A's diagnosis or treatment on: 1. 2 October 2018, namely: 1. the practitioner's discussion with Patient A regarding breast reduction surgery; 2. the practitioner's lifting of Patient A's breasts with his hands. 1. 3 November 2018, namely the practitioner's visual examination of Patient A's genital area; 2. 29 April 2019, namely: 1. adequate history from Patient A, including the presenting reason for her emotional distress; and 2. the reason for altering Patient A's prescription for Efexor. 1. The Respondent disputed that the allegations which he admitted individually or cumulatively constituted unsatisfactory professional conduct. 2. In his statement (R1, Tab 1, p13, paragraph 66) the Respondent stated with respect to these particulars that he was "generally in a rush and the details of my records declined in those circumstances". 3. The Respondent's clinical notes with respect to the consultation on 2 October 2018 were considered by Dr Marles (HCCC 1, Tab 14, p13, paragraph 19) to be "below the standard reasonably expected of a practitioner of similar training and experience". Dr Marles recorded that: "In the consultation on 2nd October 2018, a significant part of the consultation included a discussion with [Patient A] regarding a breast reduction and a physical manipulation of the breast to show what the appearance would be after a reduction. It is not clear what the outcomes of this conversation was - whether [Patient A] was not interested in a reduction, or wanted to think about it and potentially pursue it at another time." 1. Dr Marles further recorded that the Respondent's clinical record: "does not document the discussion regarding the breast reduction, or that he provided a demonstration of what a breast reduction would look like. He does not document the outcome of this conversation or any future management plans." 1. Dr Marles' opinion (HCCC 1, Tab 14, p10, paragraph 13) with respect to the Respondent's clinical records of the consultation on 3 November 2018 was that the: "clinical record of this consultation does not include vaginal itch as a presenting complaint or any history relating to the complaint of vaginal itch, and no examination findings relating to vaginal itch. In addition, he provided no diagnosis or documentation of [sic] explanation for the symptom to the patient or management plan should the symptom continue. As such it is not a complete accurate record, reporting relevant details of clinical history or clinical findings, diagnosis or plan as required by the Medical Board of Australia in its Code of Conduct (Good medical practice, Medical Board of Australia, March 2014 page 18)." 1. On that basis, Dr Marles considered the Respondent's record of the consultation to be "below what is reasonably expected of a practitioner with an equivalent level of training or experience" (HCCC 1, Tab 14, p10, paragraph 13). 2. Dr Marles considered the Respondent's clinical records with respect to the consultation on 29 April 2019 to be "below the standard expected of a practitioner of similar training and experience". Dr Marles' reasons for her opinion were detailed, referred to relevant RACGP and Medical Board of Australia standards (HCCC 1, Tab 14, p8, paragraph 7) and were not challenged. 3. Dr Marles recorded (HCCC 1, Tab 14, p8, paragraph 7) that the Respondent's consultation notes were required to record: "Date of consultation. Who conducted the consultation (e.g. by initials in the notes, or by audit trail in electronic form). Method of communication (e.g. face to face, email, telephone or other electronic means). Patient's reason for consultation. Relevant clinical findings. Allergies. Diagnosis (if appropriate). Recommended management plan and, where appropriate, expected process of review. Any medicines prescribed for the patient (including the name, strength, directions for use, dose, frequency, number of repeats and date on which the patient started/ceased/changed the medication). Patient consent for the presence of a third party brought in by the practice (e.g. a medical student). Record of patient emails (if applicable)." 1. Dr Marles also referred to the Medical Board of Australia requirement of "keeping accurate, up to date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners". Dr Marles recorded that the Respondent's: "record of consultation includes most of the required elements, however his documentation of history uses very general terms such as "Some stresses going on. A few issues discussed". This does not provide the detail required to another practitioner to be able to make an assessment as to whether the patient is at risk, the nature of the issues causing distress or whether the patient is improving or getting words. Dr Gao has not documented a reason for visit, diagnosis or the reason for the change in effects or dose. Whilst counselling implies talking therapy and advice, there is no management plan provided articulating recommendations including follow up." 1. Professor Roche recorded (R1, p14, paragraph 7) his "impression that Dr Gao's clinical records of the 27 consultations with Patient A are at least of an average standard compared to competent peers". Professor Roche further suggested that an examination of the three relevant consultations: "suggested his notes were a reasonable record of the three consultations, as described by Dr Gao, and also as described by Patient A in her statement - with the exception of those actions that she alleges - such as the lifting of the waistband of her underwear during the skin examination, the manipulation of her breasts and discussion of possible breast reduction surgery etc." 1. Professor Roche expressed his opinion that the Respondent's notes "were functional and were suitable to allow ongoing care by other GPs in the practice if that was necessary". 2. Professor Roche concluded that: "In common with the notes of very many GPs, there was often the recording of positive findings without the recording of negative findings. Investigation where appropriate. A differential diagnosis was recorded when it was appropriate (i.e. at the consultation of 2 October 2018 where the patient presented with a breast lump, and at the consultation of 29 April 2019 where the Patient presented with psychological distress, but not at the consultation of 3 November 2018, where a skin check was performed without any diagnosed condition. The management plans for each consultation were also, in my opinion, adequately recorded." 1. Dr Marles was cross-examined with respect to her opinions as to the adequacy of the Respondent's clinical records with respect to the three consultations to which this particular relates. Dr Marles adhered (Transcript p66, line 49 to p67, line 17) to her opinion that the record of the consultation was "inadequate" for the reasons which she detailed, which were essentially the same reasons as Dr Marles had recorded in her report. 2. With respect to Counsel for the Respondent, the further cross-examination of Dr Marles (Transcript p67, lines 18-49) does not provide a basis for rejecting, or discounting Dr Marles' opinions with respect to the adequacy of the Respondent's clinical records. 3. Professor Roche was not cross-examined with respect to this issue. Properly, it was not submitted on behalf of the Respondent that any inference adverse to the Applicant's case should be drawn as a result of that absence, whether pursuant to Browne v Dunn (1893) 6 R 67, or otherwise (West v Mead [2003] NSWSC 161) . 4. We prefer the opinion of Dr Marles to that of Professor Roche in relation to this issue. With respect to Professor Roche, where there is, as clearly is the case, an objective standard which governs the contents of a medical practitioner's records, that is the standard by reference to which the records of the Respondent must be evaluated, rather than to what might be considered to generally occur within the medical profession. 5. The particularity and objectivity of Dr Marles' assessment of the Respondent's clinical records with respect to each relevant consultation, and her ability in cross-examination to support the basis of her opinion in each instance, comfortably satisfy us that her opinion with respect to the adequacy of the Respondent's clinical records should be preferred to that of Professor Roche, and establish the matters upon which the Applicant relies. 6. Particulars 2, 3 and 4 of this Complaint, which the Respondent did not admit, allege that the Respondent failed to record particulars of "any clinical opinion regarding Patient A on 2 October 2018 and 29 April 2019" (particular 2) in breach of clause 6(1), and subclause 1(2)(b) of Schedule 4 of the 2016 Regulation. We understand the responses of the Respondent "not admitted" involve putting the Applicant to proof of its allegations. The evidence of Dr Marles relied upon by the Applicant in support of this particular has earlier been identified. So has the evidence of Professor Roche, upon which the Respondent relied. 7. The Applicant referred (34) to the terms of the clinical records with respect to the consultation on 2 October 2018 which recorded: "Feeling a bit tired recently, with aching and sweating a bit. PHx of glandular fever. Right neck pain and feeling lump. Still diarrhoea as before. Left breast tender lump. Request breast check. No FHx of BC. Pathology review. US referral. Check-up. Scripts" 1. The Applicant relied (35) upon the opinion of Dr Marles (HCCC 1, Tab 14, p13, paragraph 19) that the clinical records with respect to 2 October 2018 contained "no record of discussion of a breast reduction or any clinical basis for any such recommendation". 2. The clinical records for the consultation on 29 April 2019 recorded "Feeling stressed recently. Some stresses going on. A few issues discussed. Counselling given. Psychiatrist letter reviewed and discussed with patient. Check-up. Scripts" were also submitted (36) to fall below the requisite standard. The Applicant also submitted (36) that the Respondent's record did not contain any reference to a "diagnosis" during the consultation, and relied upon the evidence of Dr Marles with respect to the Respondent's failure to document "a reason for visit, diagnosis or the reason for the change in Efexor dose" and that "whilst counselling implies talking therapy and advice, there is no management plan provided articulating recommendations including follow up". 3. Counsel for the Respondent submitted with respect to the consultation on 2 October 2018 (134(a)) that the conversation on that day with Patient A "regarding a possible breast reduction was only preliminary and, at that initial stage, he had not formed a proper clinical opinion". 4. With respect to the consultation on 29 April 2019, Counsel for the Respondent submitted (134(b)) that the Respondent made no positive diagnosis during the 29 April 2019 appointment and therefore did not record one, or need to. 5. In support of his rejection of the Applicant's contentions, Counsel for the Respondent relied (135) on the terms of the Royal Australian College of General Practitioners Standards for General Practitioners, 5th Edition; July 2017, which indicates that a diagnosis should be recorded only "if appropriate" to do so. The Respondent asserted that it was not appropriate to record a diagnosis in circumstances where one had not been made or a "proper clinical opinion" had not been formed. 6. The relevant RACGP Standards for General Practitioners are found in HCCC 1, behind Tab 18. As is not in doubt, the relevant provisions of the Standards are criterion "C7.1 content of patient health records", found at HCCC 1, Tab 18, p78-79. As is apparent from them, the consultation notes "must" contain certain matters and "may" include other matters. It is not suggested in this case that any of the inadequacies alleged by the Applicant fell within the latter category. 7. We have earlier referred to the evidence which informs this particular, and will inform particulars 3 and 4 of this Complaint. We do not understand there to be any evidence to which we have not earlier referred which is relevant to our evaluation of this particular. 8. Essentially for the reasons recorded with respect to particular 1, and with great respect to Professor Roche's expertise and experience, we prefer the opinion of Dr Marles to that of Professor Roche having regard to the reality that, as is clear from the evidence of each of them, Dr Marles' opinion was assessed by reference to the relevant objective criteria, whereas Professor Roche's more experience based opinion was made predominantly by reference to what he had experienced in practice. 9. In the circumstances, we find the allegations established. Although it may be, as submitted on his behalf, that the Respondent was not obliged to record a clinical opinion or diagnosis in his records, as the evidence of Dr Marles makes clear, the omissions were more extensive than those two issues. Nothing to which we have been referred suggests that any of the inadequacies in the Respondent's clinical records did not fall within the ambit of mandatory recording provisions of the RACGP Standards for General Practitioners, or, more relevantly, the 2016 Regulation. 10. Particular 3 of this Complaint alleged that, in breach of clause 6(1) and subclause 1(2)(c) of Schedule 4 of the 2016 Regulation, the Respondent failed to record a "management plan" for Patient A on each of 2 October 2018, 3 November 2018 and 29 April 2019. We have earlier identified the evidence with respect to this particular. We do not understand there to be any further or other evidence with respect to it. 11. The Applicant relied upon the opinion evidence of Dr Marles (37), which was that, by reason of the absence of recording of any management plan, on any of the three relevant dates, the conduct of the Respondent on 2 October 2018 did not "meet the standard reasonably expected of a practitioner of similar training and experience". 12. The Respondent submitted (136) that the: "management plan in relation to each consultation was adequate, namely: (a) on 2 October, he recorded "follow up" which was an appropriate plan in the circumstances of finding no observable lumps. He also requested pathology as part of that plan, and an ultrasound scan; (b) at the 3 November 2018 consultation, Dr Gao recorded "follow up" in relation to the plan. This was adequate in the circumstances given the patient arrived for a skin check and to obtain a medical certificate for her study; (c) at the 29 April 2019 consultation, Dr Gao recorded that the Plaintiff [sic] was "feeling stressed recently. Some stresses going on" and subsequently reviewed and discussed the recent letter from Patient A's psychiatrist. This was appropriate in circumstances in which Dr Gao had formed the clinical opinion that there were no new diagnoses to record, aside from that of Patient A's psychiatrist and his management plan. The RACGP Standards for General Practice 5th Edition, requires consultation notes to contain a diagnosis and management plan "if" and "where appropriate". Dr Gao's clinical notes were in accordance with those standards." 1. For the reasons which we have earlier recorded, and thus do not need to repeat, we prefer the evidence of Dr Marles to that of Professor Roche with respect to this issue. With respect to the Respondent, in what way the expression "follow up" evidences a management plan is not apparent to us. Nor is it apparent that another medical practitioner reading the note would be adequately informed of Patient A's health in order to manage her case. As with earlier particulars of this Complaint, Dr Marles' opinion was that the clinical records of the Respondent fell below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and contravened the 2016 Regulation. We are comfortably satisfied that his particular has been proved to the requisite standard. 2. Particular 4 complained that, by reason of particulars 1, 2 and 3, the Respondent contravened clause 6(1) and subclause 3(2) of Schedule 4 of the 2016 Regulation in that he "failed to record sufficient information to allow another practitioner to continue management of the patient's case". We have earlier identified the evidence of Dr Marles and Professor Roche with respect to this issue. We do not understand there to be any other evidence to which regard could be had. 3. The Applicant submitted (40) that the proof of this ground was established by a "plain reading of the notes", submitting that on each occasion there was insufficient information provided to enable another practitioner to form a "reasonable understanding of the complaints of the patient, resolution of complaints, any diagnoses and planning". 4. The Respondent submitted (137) that there was sufficient information contained within Patient A's file to allow another practitioner to continue her management. The Respondent relied upon the evidence of Professor Roche (138) "based on his experience of examining many hundreds of GPs' medical records that Dr Gao's clinical notes of 27 consultations with Patient A were "at least of an average standard compared to competent peers". It was submitted, accurately, that Dr Roche "thought, given the context, Dr Gao's notes were functional and suitable to allow ongoing care by another GP". 5. It was further submitted (139) that there was "no evidence from the GP that took over from Dr Gao complaining that he/she was unable to continue the management of Patient A" and that that was "the real test and one which was not failed by Dr Gao". As we have earlier suggested, the fact, if it be, that the medical profession in general may not comply with its own standards with respect to record keeping does not excuse the failure to do so, or diminish the weight to which we consider Dr Marles' opinion to be entitled. It has not been suggested that Dr Marles applied an overly onerous or nit-picking standard when evaluating the adequacy of the Respondent's clinical notes. 6. As is not in doubt, the Respondent's clinical records with respect to Patient A on each of the consultations which give rise to this Complaint were brief, as the Respondent admits to have generally been the case. 7. Counsel for the Respondent's submission with respect to the absence of complaint by the GP who took over Patient A's management from the Respondent invites consideration of what is contained in the medical records recorded by two practitioners with whom Patient A subsequently had consultations between 22 July 2019 and 23 August 2019. Those notes contain significantly more information with respect to the matters to which the RACGP recording standards refer than did the notes of the Respondent during the period in which he was the Applicant's doctor, although, ultimately, the conduct of the Respondent is judged by reference to the 2016 Regulation, rather than what might occur in practice. 8. The medical notes recorded by other members of the medical practice during the time when the Respondent was the Applicant's usual medical practitioner, and prior to his commencing that role, were also significantly more detailed with respect to the mandatory recording requirements of the RACGP Standard. In fairness, many of the Respondent's own clinical records whilst he was Patient A's doctor were also significantly more detailed with respect to the matters which were mandated by the relevant standards. 9. Consideration of the Respondent's clinical notes comfortably satisfies us that, with respect to each of the three matters relied upon by the Applicant, they fail to record sufficient information to allow another practitioner to continue management of the patient's care. 10. For the reasons recorded above, we find the facts alleged in support of each particular of this Complaint established. As the evidence of Dr Marles, and Professor Roche less specifically, makes clear, the mandatory requirements of the RACGP Standard have the specific object or purpose of promoting the health and safety of the public. Our findings with respect to the Respondent's contraventions of the 2016 Regulation necessarily result in our finding that the Respondent is guilty of unsatisfactory professional conduct in accordance with the terms of s 139B(1)(b) of the National Law. Complaint 3 1. After the completion of the hearing, the Applicant informed the Tribunal and the Respondent, that the Complaint was not pressed. In view of the evidence, and the candid exchanges with Counsel for the parties during the course of oral submissions on 20 April 2022, the Applicant's discontinuance of this Complaint was appropriate. Complaint 4 1. Complaint 4 asserted that the Respondent was guilty of professional misconduct pursuant to s 139E of the National Law, in that he 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 view of the abandonment of Complaint 3, the Applicant relies upon the conduct found to have been proved pursuant to Compliant 1 individually, or cumulatively with Complaint 2 as constituting professional misconduct. 2. The term "professional misconduct" is not defined in the National Law, and does not have "a specific meaning: it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation" of a practitioner's registration as a medical practitioner (Chen v Health Care Complaints Commission [2017] NSWCA 186, at [19]. Our present determination is limited to whether the power to suspend or cancel the Respondent's registration as a medical practitioner is enlivened. 3. We have not been referred to assertedly "comparable" cases in support of either party's case. That is unsurprising, and not said critically of Counsel, as each case turns very much on its own facts and circumstances. 4. In Medical Board of Australia v Gupta [2015] QCAT 20, a medical practitioner was found guilty of professional misconduct pursuant to s 196 of the Health Practitioner Regulation National Law (South Australia) in circumstances where he admitted engaging in inappropriate physical contact with a patient's breasts during a number of consultations over a period of three years, and making statements to the patient of a sexual nature which were inappropriate and/or unrelated to her clinical care. The conduct of the practitioner which was found in that case was objectively significantly more serious in each respect than the Respondent's conduct during the consultation on 2 October 2018. 5. In Medical Board of Australia v Moschou [2021] SACAT 30, a medical practitioner admitted conducting an internal vaginal examination of a patient without her informed consent, and that such conduct constituted professional misconduct pursuant to s 196 of the Health Practitioner Regulation National Law (South Australia). The conduct of the practitioner in that case was objectively more serious than the Respondent's conduct during the consultation on 3 November 2018. 6. Basten JA said in Chen, at [20] "There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration", and that 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". His Honour identified a number of "categories" of conduct which invite analysis in the exercise of the power to suspend or cancel a practitioner's registration. 7. Inherent in any "evaluative judgment" is the scope for reasonable disagreement. We are not satisfied that, individually, the unsatisfactory professional conduct which we have found established with respect to the consultations on 2 October or 3 November 2018, or pursuant to Complaint 2 is "sufficiently serious" to constitute professional misconduct. However, we are comfortably satisfied that, cumulatively, the findings of unsatisfactory professional conduct recorded in these reasons are "sufficiently serious" to justify a finding of professional misconduct. 8. Section 165M(2) of the National Law obliges the Tribunal to set out "the reasons for the decision" which it makes in these proceedings. In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231, Bell P (as Bell CJ then was) referred, at [75], with approval, to the judgment of Basten JA in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112, in which his Honour said, at [46]: "Generally, the concept of "reasons" requires an explanation connecting any findings of fact with the ultimate decision. Where the test to be applied involves an evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance; the scope of the obligation must recognise that constraint". 1. For the reasons which we have recorded, we have found the Respondent guilty of unsatisfactory professional conduct in four discrete respects: the first, with respect to Patient A's potential breast reduction surgery on 2 October 2018, the second, with respect to Patient A's genital examination on 3 November 2018, the third with respect to the Respondent's improper and unethical conduct on 29 April 2019, the fourth with respect to inadequate medical records. 2. The findings of unsatisfactory professional conduct recorded above, which also establish improper and/or unethical conduct, with respect to the consultations on 2 October 2018, 3 November 2018 and 29 April 2019 involved serious breaches of the boundaries between doctors and patients which are fundamental to the health and safety of the public, and public feeling confident that medical practitioners practise an honourable profession honourably. 3. The findings of unsatisfactory professional conduct with respect to the Respondent's inadequate medical records involve a serious patient health and safety issue, as Dr Marles explained in her report (HCCC 1, Tab 14, p8, paragraph 7). The Respondent's responses to Complaint 2 - "I was generally in a rush and the details of my records declined in those circumstances" (R1, Tab 1, p13, paragraph 66) and "I understand and agree that my previous medical records didn't completely meet the relevant standards" (paragraph 71) reveal either an unfortunate misunderstanding of the importance of maintaining adequate medical records, or a less than acceptable level of acceptance of the requirements to do so, and the reasons for them. 4. We have earlier recorded a "detailed articulation" as to "how" our findings of guilt with respect to unsatisfactory professional conduct were arrived at. More detailed exposition of our reasoning process is not reasonably "practicable" with respect to "why" we find, as we do, that, in view of the cumulative seriousness of those findings, the Respondent is guilty of professional misconduct, for the reasons explained by Basten JA which we have recorded above. 5. In all the circumstances to which the Tribunal has referred, we are comfortably satisfied that the Respondent is guilty of professional misconduct. Orders 1. The Tribunal finds the Respondent guilty of unsatisfactory professional conduct. 2. The Tribunal finds the Respondent guilty of professional misconduct. 3. The proceedings are adjourned to a date to be fixed for directions with respect to the hearing of Stage 2 of the proceedings. 4. The costs of the proceedings are reserved. ********** 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 19 September 2022 - Amendments 19 September 2022 – typographical corrections at [1], [4] [8], [10], [84], [85], [106], [118], [124], [169], [170], [174], [176], [217], [218] and [220]. 19 September 2022 – paragraph numbering updated DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2022