Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Rahman [2022] NSWCATOD 98 Hearing dates: 21,22,23 February 2022 and 11 April 2022 Date of orders: 2 September 2022 Decision date: 02 September 2022 Jurisdiction: Occupational Division Before: Stevenson ADCJ, Principal Member Dr J Aitken, Senior Member Dr H Bittar, Senior Member Dr C Berglund, General Member Decision: (1) The Tribunal finds that the Practitioner is guilty of unsatisfactory professional conduct. (2) The Tribunal finds that the Practitioner is 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. (4) The costs of the proceedings are reserved. Catchwords: OCCUPATIONS — Medical Practitioners — misconduct and discipline — unsatisfactory professional conduct — professional misconduct Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: A v N [2012] NSWSC 354 Briginshaw v Briginshaw [1938] CLR 336 Campbell v Campbell [2015] NSWSC 784 HCCC v Boulton [2021] NSWCATOD 160 HCCC v Nguyen [2018] NSWCATOD168 The Queen v Byrnes (1995) 183 CLR 501 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Bassel Abdul Rahman (Respondent) Representation: Counsel: P Aitken (Applicant) P Dwyer (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal (Respondent) File Number(s): 2021/00230189 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 1. By an Application dated 6 August 2021 the Health Care Complaints Commission ("the Applicant" or "the HCCC") sought findings that the Respondent, Dr Bassel Abdul Rahman ("the Practitioner") is guilty of unsatisfactory professional conduct and professional misconduct, as those terms are defined in the Health Practitioner Regulation National Law (NSW) ("the National Law"). The Complaints and Particulars thereof are set out in detail below in these reasons. 2. In summary, the Applicant contended that the Practitioner engaged in unsatisfactory professional conduct in the course of and subsequent to the last of four consultations with a female patient ("Patient A"). It is alleged that the Practitioner: * breached proper professional boundaries in that he hugged Patient A on 14, 17, 24 and 27 March 2018 * hugged and otherwise inappropriately touched Patient A on 27 March 2018 in a manner which breached the guidelines of the Medical Board of Australia – Sexual Boundaries in a doctor/patient relationship * contacted Patient A inappropriately by way of numerous calls and text messages to her mobile phone between approximately 27 March 2018 and 31 March 2018 * breached the confidentiality of Patient A in that he disclosed to his acquaintance, Person Z, details of her health and means of contact and then asked this person to telephone her and/or assist him to communicate with her * attended Patient A's workplace on 31 March 2018 for a non-therapeutic purpose * failed to provide a Mental Health Care Plan for Patient A, despite her repeated requests that he do so. 1. The Applicant contended further that the Practitioner is guilty of professional misconduct for the purposes of section 139E of the National Law, in that he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration and/or that he engaged in more than one incident of unsatisfactory professional conduct such that these incidences, when considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of registration. The Applicant relied upon the Particulars of the Complaints in respect of unsatisfactory professional conduct in support of its contention of professional misconduct. 2. By a Reply dated 9 February 2022 the Practitioner denied that he is guilty of unsatisfactory professional conduct as alleged in Complaint 1. The Practitioner admitted that he is guilty of unsatisfactory professional conduct as alleged in Complaint 2, in terms of his text messages and telephone calls to Patient A and his involvement of the third party in that communication. The practitioner denied that he had attended Patient A's workplace without a therapeutic purpose and contended that he did so due to his concern for her welfare. The Practitioner denied that he failed to provide a Mental Health Plan despite repeated requests from Patient A and contended that she made no such suggestion. The Practitioner denied that he is guilty of professional misconduct. 3. The parties agreed that this hearing be limited to a determination as to whether the Practitioner is guilty of unsatisfactory professional conduct and, if so, whether its seriousness justifies a finding of professional misconduct. This course seemed to us to be expedient, given that there are strongly disputed issues of fact in the proceedings which require findings to the requisite standard and having regard to the onus of proof borne by the Applicant. 4. The written evidence upon which the Applicant relied was contained in a volume consisting of 45 tabs (Exhibit 1). This material included, inter alia, witness statements and evidence given in criminal proceedings against the practitioner in the Local Court in 2018/2019. The Applicant relied upon an Expert Report of Dr Simon Young dated 11 October 2021. 5. The Practitioner relied upon written evidence contained in a volume which consisted of 11 tabs (Exhibit 2). This material included, inter alia, favourable character references for the Practitioner from two of his female patients. Background 1. Following his graduation from the University of New South Wales in 1998, the Practitioner worked as an intern at Wollongong Hospital and then as a senior resident at Concord Hospital. He commenced training as a general practitioner in 2003 and worked for two years in Bathurst and Blayney. In 2004 he became a Fellow of the Royal Australian College of General Practitioners. Between 2005 and 2012 he worked as a general practitioner at Chester Hill and then for three years in Bankstown. In 2016 he began to practise at the Miranda Medical Centre. 2. Patient A consulted the Practitioner on four occasions in March 2018. In her statement to police dated 27 March 2018 Patient A said that, on 14 March 2018 she "went to the practice…and simply asked to see any doctor". Although she stated that she had never previously seen the Practitioner, there was some indication in the evidence that she may have consulted with him in relation to a gym related injury at an earlier time. Nothing turns on that matter for present purposes. 3. After the consultation on 27 March 2018 Patient A returned to her workplace and had a conversation with a fellow employee, Mr Joseph Chessman. On the afternoon of 27 March 2018 Patient A spoke by telephone to her sister, Person A, about the consultation. Patient A and Person A, with whom she lives, had a further discussion concerning the consultation at their home that evening. Person A accompanied Patient A to a police station on the night of 27 March 2018. Person A was present at all times when Patient A gave a statement to Senior Constable Oliver. 4. On the afternoon of 27 March 2018 Patient A spoke also to her sister, Person B, and her father, Person C, in relation to the consultation. Both Person B and Person C advised Patient A to make a complaint to police concerning the Practitioner. 5. On 1 April 2018 the Practitioner participated in a Record of Interview with Detective-Sergeant Peter Daley and Detective-Senior Constable Susan Watkinson. This interview occupied approximately two and three quarter hours and consisted of some 1,498 questions, excluding formalities. 6. The Practitioner gave uncontradicted evidence that he suffers from an autoimmune condition and post-traumatic stress disorder. In these proceedings he said: "I get episodes of fever, muscle pains, shortness of breath. I see a professor and take medication." He said that he began to experience "seizures and muscle spasms due to my autoimmune condition" during this police interview. 1. The Practitioner was charged with offences of Aggravated Indecent Assault – Victim Under Authority of Offender; Assault with Act of Indecency and Common Assault. After a trial in the Local Court in 2018/2019, the practitioner was acquitted of all charges. During this trial, the Practitioner gave evidence and was subject to cross-examination. 2. On 29 March 2019 the Medical Council of New South Wales ("the Council") conducted a hearing pursuant to section 150 of the National Law. The Council ordered, inter alia, that the Practitioner was not to consult, examine, treat or perform any procedures on any female patient or any patient under the age of 14 years. 3. On 15 October 2015 the Council imposed conditions on the Practitioner's registration. These conditions restricted the prescribing of various drugs; imposed Category B supervision; provided for a medical records audit and required the Practitioner to attend upon a Council appointed psychiatrist. Certain of these conditions were varied after a further hearing on 10 August 2018. 4. The registration of the Practitioner is presently subject to cancellation. The reasons for this cancellation are irrelevant for present purposes, as the parties agreed to a Stage One hearing only at this juncture. The Applicable Law 1. Section 139B(1) of the National Law prescribes, relevantly for present purposes: (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following — (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. The National Law contains no definition of the term "improper or unethical" in the context of Section 139B. In HCCC v Boulton [2021] NSWCATOD 160 the Tribunal referred to the Macquarie Dictionary definition of "improper" as "not in accordance with propriety or behaviour, manners, et cetera" or "abnormal or irregular" and of "unethical" as "1 contrary to moral precepts; immoral" and "2 in contravention of some code of professional conduct. 2. In HCCC v Nguyen [2018] NSWCATOD 168 the Tribunal considered the application of the term "improper conduct" in section 139B(1)(l) and stated "The High Court has noted that 'improper' is not a term of art: The Queen v Byrnes [1995] 183 CLR 501 at [514] where Brennan, Deane, Toohey and Gaudron JJ said "impropriety does not depend on the alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of ethical conduct that would be expected of a person in the position of the alleged defender by reasonable persons with knowledge of the duties, power and authority of the position or circumstances of the case." 3. Section 139E of the National Law defines professional misconduct as: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. More than one instance of professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. Section 3 of the National Law sets out its objectives and guiding principles. This section provides relevantly as follows: 1. The object of this law is to establish a national regulation and accreditation scheme for — 1. the regulation of health practitioners; … 1. The objectives of the national registration and accreditation scheme are – 1. to provide for protection of the public by assuring that only health practitioners who are suitably trained and qualified to practice in a confident and ethical manner are registered; … 1. The guiding principles of that national registration and accreditation scheme are as follows – … (c) restrictions of the practice of the health professional are to be imposed only if it is necessary to ensure health services are provided safely and are of an appropriate quality. 1. Section 3A of the National Law provides – "objective and guiding principles (NSW)". "In the exercise of functions under a New South Wales provision, the protection of the health and safety of the public must be the paramount consideration." 2. The Applicant bears the onus of proof of each element of its complaints on the balance of probabilities. Having regard to the seriousness of the complaints and the consequences, it is appropriate that the Tribunal apply the well known standard of proof adopted by the High Court of Australia in Briginshaw v Briginshaw [1938] CLR 336. That standard requires that the Tribunal must be "comfortably satisfied" or" must feel an actual persuasion" that the allegations are made out on the balance of probabilities. 3. There was a sharp conflict between the accounts of Patient A and the practitioner, as to the events which occurred at the four consultations. These accounts cannot be reconciled and, accordingly, there is a need for findings to the requisite standard and with due regard to the onus of proof borne by the Applicant. 4. Some assistance with this task can be found in reported authorities. In Campbell v Campbell [2015] NSWSC 784 Sackar J said: "Where a trial judge is faced with the stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of the witnesses and the manner in which the witnesses give evidence are all matters of primary importance… The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation… In cases involving events which occurred long before litigation, the 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 mistake those facts in the document and where there is no suggestion that the documents are other than genuine." 1. In A v N [2012] NSWSC 354 Ward J (as Ward P then was) said: "As to lay witnesses generally, I note at the outset that the fallibility of human memory has been explained by McClelland CJ in Equity 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 human experience." 1. Her Honour then cited the statement of McClelland CJ in Equity 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 a serious difficulty to truth to a party relying on 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 then said: "Where evidence is given long after the occurrence of the events in question, the witness 'may' put their own gloss or interpretation on events on 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." Complaint 1 1. Complaint 1 asserted that the Practitioner is guilty of unsatisfactory professional conduct pursuant to section 139B1(1)a, and/or (l) of the National Law, (i) in that he engaged in conduct that demonstrates the judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine." 1. The particulars of Complaint 1 read as follows:" 1. On 14 March 2018, the Practitioner breached proper professional boundaries with Patient A in that he hugged her. The Practitioner hugged Patient A at the commencement of the consultation and at the end of the consultation. 2. On 17 March 2018 the Practitioner breached proper professional boundaries with Patient A in that he hugged her during the consultation. 3. On 24 March 2018, the Practitioner breached proper professional boundaries with Patient A in that he hugged her during the consultation. 4. On 27 March 2018, at about 1.30pm, the Practitioner breached proper professional boundaries with Patient A, during a consultation, in that he: 1. hugged at the commencement of the consultation and rubbed or patted her back; 2. kissed her on the cheek and neck; 3. guided and manoeuvred her to sit on his lap; 4. patted her thigh; 5. sat her down on his lap after she had stood up and away from him 6. asked for her mobile number and test or 'prank' called her so that she would have his number and: 7. hugged her at the end of the consultation. 5. By his conduct and particulars 1 to 4 the practitioner breached the Medical Board of Australia's guidelines –Sexual Boundaries in the doctor/patient relationship, dated December 2018. 1. The practitioner denied each of the particulars to Complaint 1. 2. For ease of reference to the evidence, we will consider the consultations on 14 March 2018, 17 March 2018 and 24 March 2018 and then deal separately with the competing allegations as to the events of 27 March 2018. The evidence in relation to the allegations of hugging during the first three consultations is relatively contained, in comparison to the detail concerning the alleged events of 27 March 2018. 3. In her police statement, Patient A said "I was quite upset and crying as a result of my anxiety and depression" when she entered the Practitioner's consulting room on 14 March 2018. She was prescribed an anti-depressant and a medication to assist her with sleep. 4. In his police record-of-interview the Practitioner responded to an allegation that he hugged Patient A during the consultation on 14 March 2018. The following exchange occurred: "q205 She said before any words were spoken Dr Rahman hugged me by placing his arms around my shoulders and holding me close for a minute. What… a205 That's not correct, I didn't do such a thing." 1. The Practitioner said as follows during his evidence-in-chief in the Local Court proceedings: q On 14 March, when the complainant came into your consulting room there at the medical centre, did you ever hug her? a No I didn't sir. q When she came in on the second occasion, the 17th, did you ever hug her? a No. q The third occasion when she came in, the 24th, did you hug her? a No. 1. In cross-examination in the Local Court the following exchange occurred between the Practitioner and the prosecutor: q When [Patient A] visited you on the 14th of March last year, when she came into your office, you greeted each with a hug? a No that's not correct. q At the end of the consultation you departed with a hug? a No that's not correct either. q The same thing occurred on 17 March, you greeted each other with a hug? a Incorrect. q Departed with a hug" a Incorrect. q Again, this happened on 24 March, greeted with a hug and departed with a hug? a Incorrect. 1. In his police record-of-interview the Practitioner responded to the allegation that he hugged Patient A on 17 March 2018 as follows: q Q264 as I entered his office he hugged me to say hello. a No. No. q265 I did not feel uncomfortable about the hug. Dr Rahman told me I was looking much better and advised me it would be more beneficial to keep seeing him rather than explain my situation to another person. a All I said to her was, you are doing well. You look a lot better than what you did the first time, and then I had a plan of action to come and see her, whatever, it was a week later, I can't remember, but yeah. That was the yeah and she said that I am happy to see you because you know all my history. Now I don't want to go through it with someone else. That, that's all I remember. 1. In these proceedings the Practitioner gave the following oral evidence in relation to the three alleged incidents of hugging on 14, 17 and 24 March 2018: 14 March 2018. It is not correct that I hugged her – I did not hug her at any time during the consultation. I definitely would not hug anyone I did not know. 17 March 2018. I did not hug her. I do not hug patients" 1. During cross-examination in these proceedings the Practitioner said inter alia: "You would not hug someone you didn't know who was a patient. I did not hug her. And there were no hugs in the second and third consults. I never hugged her on any occasion." 1. The expert witness, Dr Simon Young, offered these opinions based on the premise that the Practitioner hugged Patient A on 14 March 2018, 17 March 2018 and 24 March 2018: "In relation to q1-3 in my experience some patients do hug their GPs. Clearly it is more innocent when female to female, however it may be the patient's custom and a male GP may not want to cause offence by refusing. Such hugs would be a 'lean in' hug not an amorous hug, akin to an 'air kiss' versus a kiss on the lips. The issue here is consent and initiation. I don't believe doctors could ever initiate a hug without some degree of consent. In my practice, this would be limited to the end of a harrowing psychological session, where I might ask the patient where they needed a hug (male or female). Prudent GPs might avoid such expressions, certainly not on a regular basis, as they are open to misinterpretation. 46. The Sexual Boundaries: guidelines for doctors is clear in this regard. It outlines: 'In managing sexual boundaries a doctor should be aware that sexualised behaviour includes any words or actions that might reasonably be interpreted as being designed or intended to arouse or satisfy sexual desires. 47. Patient A's statements make it clear that these hugs were unsolicited. Cautious GPs avoid actions that might be misinterpreted as amorous or a violation of a patient's personal space. 48. So it is my opinion that regarding hugging Patient A at these consultations, Dr Rahman's conduct fell below the standard expected of a practitioner of an equivalent level of training or experience." 1. During cross-examination of Patient A in these proceedings, counsel for the Practitioner activated a timer for one minute and asked her to compare this period with the duration of the hug which she alleged to have occurred on 14 March 2018. Patient A said words to the effect: "it was my estimate, maybe closer to thirty seconds is my honest answer". She said also: from memory it was a hug in each consult but I can't recall much about the third consultation. I think I explained it was a comforting thing, those hugs – I had not thought anything untoward". Patient A said of the consultation on 24 March 2018: "It was not my best recollection that day". 2. Patient A thus conceded that her allegation that the Practitioner hugged her for approximately one minute was probably incorrect, when she was faced with the test of the timing device. She conceded also that her memory of the third consultation was "not my best recollection". She said that she detected nothing "untoward' in the conduct of the Practitioner at the time of these three consultations. 3. The Practitioner has denied consistently all allegations that he hugged Patient A during these three consultations. He made these denials during the police record-of-interview, in his evidence both in the Local Court trial and in these proceedings. 4. In our view, it would be unsafe to conclude that the Practitioner hugged Patient A on any of these three occasions. On her own account, Patient A has an unreliable recollection of the third consultation and her evidence of the duration of the alleged hugging was demonstrated to be inaccurate in cross-examination. The onus of proof rests on the Applicant and, in these circumstances, we are not "comfortably satisfied", nor do we "feel an actual persuasion" that the Practitioner hugged Patient A as alleged on 14, 17 or 24 March 2018. Accordingly, we are not satisfied that the Applicant has established Particulars 1, 2 and 3 of Complaint 1. It follows that the Practitioner is not guilty of unsatisfactory professional conduct or professional misconduct by reason of hugging Patient A on 14, 17 and 24 March 2018 so as to breach the Medical Board of Australia's Guidelines-Sexual Boundaries in the doctor -patient relationship The Consultation on 27 March 2018 1. Patient A gave the following account to police of the alleged events of 27 March 2018 in her statement of the same date: "7. I was having a really bad day in regards to my anxiety. I was feeling really down and quite upset about everything. As I entered his office he hugged me to say hello as he usually does and I began sobbing as a result of how my mental health was making me feel. 8. He held me quite tight on this occasion and started rubbing up and down my back using his hand and then patted my lower back just above my buttocks. He then kissed me on the right cheek once, and once again on the right hand side of my neck. These kisses were more than just a peck. It was not the way you would kiss a child or a friend, it felt more as though my partner would kiss me. It had a degree of intimacy about it that made it feel very uncomfortable. As he kissed me he began to hold me tighter using both his hands and rubbed all over my back. It was at that point that I started to feel extremely uncomfortable and thought that something wasn't quite right about what he was doing. It felt intimate which was not what I was expecting from a doctor. I stepped back away from him and moved towards the patient's chair next to his desk. He held on to my right hand using his right hand and directed me towards his chair. He sat down in his chair and pulled me down so I sat on his lap facing away from him. My back was facing his chest. He then let go of my hand and began patting my right thigh using his hand. I was completely confused by what was happening and felt extremely uncomfortable. While he had me on his lap he was asking me if I had been taking the medication and a bunch of other questions in relation to my medication and how I had been feeling. 9. The office phone rang at this time and he answered it, I immediately stood up away from him and sat on the patient chair. When he hung up the phone he reached over and grabbed me by the left hand and pulled me back over towards him and sat me back down on his lap. He was not forceful in sitting me on his lap, nor was he aggressive but I was really confused and uncomfortable about the situation so I just went along with it. He sat me on his lap for another three minutes and wrote me up a medical certificate. He asked me for my mobile number which I gave him and he pranked my phone using his office phone. He told me this was so I could call him anytime and contact him directly. He continued to tell me that a lot of my anxiety may have been caused by stress at work so I should take some time off. He handed me the medical certificate and told me that I could come back and see him on Thursday 29 March 2018. I stood up again and he hugged me goodbye as he usually does. However by this time I was feeling very vulnerable and uncomfortable. That hug lasted for about a minute." 1. In her evidence-in-chief in the Local Court Patient A said as follows of this consultation, inter alia: "As soon as I got into the office I cried, I was very upset and emotional. He did hug me. The hug began to be intimate. q. What do you mean by that? a. Just the way he was holding my back. He started rubbing his hands up and down my back, patting just below my butt sort of thing. q. It was different to the other hugs? a. Absolutely. It got intimate, he began to kiss my cheek and he kissed my neck… q. You walked in. You were outwardly upset? a. Definitely. Yeah. So around the shoulders and then one arm dropped down to around the waist and that's when he began to pat me up and down my back.\ q. You have indicated that there was one hand above the other. Where was the top hand? a. Just above my shoulder blade, I guess or my shoulder blade yeah… q. Where was the other one? a. Around the middle of my back and then after about like ten seconds or so he began to rub up and down my back. q. What's happening next, the very next thing? a. Yeah. So he kissed me on the cheek, yep, then he kissed my neck on the right side. q. What happened next? a. That's when – when the hug began to part his right hand – had my right hand led me towards his chair and then he sat down and pulled me on top of his lap. q. What happened next? a. He began patting my thigh and he began asking me how I was feeling. q. Can you describe how you were positioned on the doctor's lap? a. So my back was facing his chest… q. His hand? a. Was patting my right thigh…he took a phone call at one point at which I moved off his lap on to a patient chair. Once the phone call ended, I – he then pulled me back onto his lap… q. How were you acting? You said he was trying to settle you down, what were you doing there? a. I yep. I was breathing quite heavy from crying, I was definitely still crying and just sitting there… q. What happened next? a. That's when he reached over and pulled me back on to his lap, he – q. When you say 'reached over and pulled' you, what did you do? a. So he just grabbed my hand and brought me back to his lap yep. It was exactly the same as before… q. What's happening now? a. He started to tell me that I should take some days off work and he proceeded to draw up a medical certification…. q. What happened next? a. He printed out the medical certificate and he told me that I needed to come and see him Thursday. q. He gave you the certificate, I take it? a. Yep and – yeah, obviously he gave me a hug before I left the room. q. Was that just one of those regular hugs from before or… a. It was quite tight and still rubbed up and down my back before I left. I was very awkward at that point so I just kind of wanted to get out of there as soon as possible. It was different to the other hugs. q. It was more like the first one is that what you're saying? a. It was very intimate. It felt date-like." 1. In cross-examination in the Local Court, Patient A said as follows: "q. The 27th, though, on your own version of events, you go and you are in a highly distressed state when you have gone in on the 27th. Agree" a. I was crying. q. Crying. You were in a state far worse than what you were in on the 14th? a. Yeah. q. You disagree with the fact that while you were sobbing you put your face on his shoulder. Do you disagree with that? a. It did happen eventually, but that's not the way my, I recall the events happening at all. q. You agree with this proposition. You agree that you put your face on his shoulder, on his shirt? a. No I don't agree. q. You don't agree with that. a. No, I was hugged…I was hugged into his shirt…so I didn't place my head in any voluntary way straight on to his shirt. Obviously that's what you are trying to hint at and I am saying that I just didn't voluntarily place any part of my body on to the doctor… q. Because what I am going to suggest to you is that when you put your face and you cried on to his shoulder, you sort of put your weight and then you put your arms around him at that stage on his waist and in your sobbing state, cried hugging him? a. No…no that's not the way it happened. q. You can recall that can you? a. I can very clearly, actually…I was sobbing and I was unhappy about the relationships with people. I specifically remember that, yes. q. Do you tell the court that at no stage you ever said the word shirt in that consult room? Is that what – a. I can't recall at all. q. If you don't recall at all, do you accept that you could have? a. No why would I talk about a shirt? q. Because you cried on it. a. Why – no I don't accept that no. q. You say you never cried on his shirt? a. No I did but that's not the question you just asked. q. That's right so are you saying to the court that at no stage while you were in that room did you say anything to the doctor using the word shirt? a. No. q. Is that right? a. And definitely not to what I can recall. q. Because what I am going to suggest to you is the reason you are apologising for his shirt is because you went in and broke down on the doctor. It is you that has put your face in his shirt and cried and put your arms around him? a. No. q. That's why you said sorry for the shirt? a. Okay I don't believe that and I don't recall that happening at all." 1. Soon after she left the consultation on 27 March 2018 Patient A spoke to her work colleague, Mr Joseph Chessman. In his police statement Mr Chessman said: "20. After returning from the doctor [Patient A] seemed quite distressed. She looked like she had been crying because her eyes were red. I asked her how it went and she began to tell me what happened. 21. When {Patient A] was telling me this she became upset and cried a little. I put my arm around her for a short time as she told me this. 22. [Patient A] said that when she saw the doctor she started to cry and became emotional in front of him, and he then sat her on his lap in order to comfort her. 23. [Patient A] said it made her feel very uncomfortable and he also kissed her neck. He got her mobile number. When I was talking to [Patient A] she had her phone on the counter. I saw [Patient A]had two missed calls from a number. [Patient A] said 'look it's even him calling now. That's not normal is it?" 1. Mr Chessman gave evidence for the prosecution in the Local Court proceedings. In his evidence-in-chief he said: ["Patient A] came in later that day, maybe 10.30. She was a little bit upset saying she needed to sort of like – I don't know how to say it. She needed to go see a psychiatrist so she wanted to sort of like a – like a referral to go see him. So that's what she wanted to get done that day so she could go see someone. She then went to the doctors next door, across the road, came back, obviously had been crying, emotional and really upset. So obviously I asked her what happened and everything and she began to tell me the incident that happened. What did she say? Basically that she had been crying a lot and the doctor offered like to sit her on his lap and beginned to say that he kissed her on the neck or something like that and then she was really upset and things like so. q. Did she say anything further? a. She said that the doctor had got her mobile number and then I went…and then her phone was on the desk and we could see that she had two missed calls from that number in the time from her leaving the doctors to come in the store. And then at that point we discussed saying obviously you need – I don't know what the procedures were but we – I said I don't know what the procedure is but you need to talk to someone or do something about this." 1. During his cross-examination in the Local Court Mr Chessman said as follows ,inter alia: "q. She told you she was crying and emotional when she saw the doctor? Yes. q. You said in evidence that she said something about a lap? a. Yes. q. She sat on the doctor's lap? a. The doctor asked her to sit on her lap – on his lap – yeah. q. You told the police that it was in order to comfort her? a. Yeah." 1. As noted above Patient A discussed the consultation on 27 March 2018 with her sister, Person A, during that afternoon. In her police statement of 9 April 2018, the following exchange occurred between Patient A and Detective-Sergeant Daley, in reference to her account given to Senior Constable Oliver on 27 March 2018: "q7. Who was with you when you made this statement? {Person A] my sister. q8. Had you spoken to [Person A] prior to making this statement to police on Tuesday 27 March 2018? Yes. q9. When did you speak to [Person A]? a9. I told her about the first time Dr Rahman hugged me on the first day I saw her at home. This was the day he hugged me on 14 March 2018. I told her how Dr Rahman comforted me on the first time. I never said anything about the second or third time to her about him hugging me as I didn't think anything of the hugs. I did tell [Person A] about Dr Rahman increasing my medication and not providing the Mental Health Plan on the first, second or third time I saw Dr Rahman. q10. When did you tell [Person A] about what happened with Dr Rahman on 27 March 2018? a. I called her when I was coming home from work on the mobile at 2.46pm on 27 March 2018. I started by saying don't get angry and then told her about how Dr Rahman sat me on his lap. [Person A] got annoyed and said I am calling [Person B]. [Person B] is my sister who lives at Wentworth Point and dates a doctor. q11. What happened after that on 27 March 2018? a. Me and [Person A] met at home. I told her what happened which is recorded in paragraph eight and nine of the statement I gave to Constable Oliver on 27 March 2018." 1. In the same statement the following exchange occurred between Patient A and Detective Sergeant Daley: "q15. Who else have you told about Dr Rahman and yourself? a.15. My sister [Person A], my father [Person C] and Joseph Chessman my work colleague. q.16. What did you tell your sister? a. Everything that happened. q17. What did you tell Joseph Chessman what happened? a. I told him about the doctor kissing me and sitting me on his lap. q18. What did you tell your father? a. I told him the doctor was inappropriate with me and sat me on his lap." 1. In her evidence-in-chief in the Local Court Person A said inter alia: "q. Did she tell you that she – you will understand if I put it this way – unloaded all her problems to the doctor in his surgery" a She let the doctor know – yeah she like – as you would. She let the doctor know how she was at the time or how she was feeling. q About work about her family her concerns? a Yeah of course which is understandable. q. Did she tell you she was hysterical? a. I'm not – I can't remember if she would have said hysterical. I know she was upset. 1. In cross-examination in the Local Court Person A confirmed that her sister Person B advised her, on 27 March 2018, that Patient A should "go to the police and make a complaint to the Doctors Board." She confirmed also that their father Person C told both her and Patient A on 27 March that she should make a complaint to police in relation to the Practitioner. 2. In his police statement Person C said: [Patient A] told me that she had been in the doctor's surgery and that he had sat her on his knee and had caressed her neck and shoulder and kissed her on her face and neck. [Patient A] was crying as she told me of this event." Person C said also: "I told [Patient A] and Person A to go straight to the police and report the incident." 3. Person C said in his police statement that Patient A informed him on 29 March 2018 of phone calls and text messages from the Practitioner. He said that he "took [Patient A] to Miranda Police Station on 30 March 2018" in relation to these communications. Person C stated further that Patient A told him of the Practitioner's visit to her workplace on 31 March 2018. 4. On 27 March 2018 another patient, Mr Joseph Giarratano, was seated outside the consulting room while Patient A was inside with the Practitioner. Mr Giarratano provided a statement to police dated 10 July 2018. He had earlier given a statement to a solicitor on 16 April 2018. 5. Taking into account the corrections set out in his police statement with regard to the information provided to the solicitor for the Practitioner, Mr Giarratano stated as follows inter alia: * "I recall overhearing the woman inside the room sounding very distressed. It sounded like she was sobbing while speaking with the doctor. * Although I could not hear everything that was being said, I definitely heard the woman say the word 'sorry' and 'shirt'. Those words were clear but I couldn't differentiate the words in between. * I heard the doctor say 'are you okay' and then the word 'tissue'. I'm pretty sure that he said do you need or do you want a tissue however I am not sure of the exact words before the word tissue. I heard Dr Rahman say are you okay?". 1. Mr Giarratano gave evidence for the prosecution in the Local Court trial. In cross-examination the following exchanges occurred between Mr Giarratano and counsel for the Practitioner: "q. What did you hear? a. I was able to hear shouting, it was raised voice, from a female, things like, 'they're against me, they hate me'. It sounded very emotional, it was very emotionally driven. I didn't hear that much from the doctor himself, it was more I heard things like 'can I offer you a tissue?' just basically – he was obviously asking questions. I couldn't hear every single word but I could definitely hear everything that was elevated above a normal speaking voice…. q. Did you make any observations of it being a level of distress or not" a. Absolutely. I heard that she sounded very upset. She was crying as well and I was there to see my doctor for my own issue and I actually had to get up and walk away because it was quite an emotionally charged sound and interaction from one side, it was weeping, sobbing, crying just very fragile sounding lady on the other side of the door. q. Are you saying to his Honour that it was of such distress that you, in your own distress, had to leave to get some shelter from the storm? That is correct yes…" 1. In cross-examination Mr Giarratano was asked for his observations of the demeanour of Patient A as she left the consultation. The following exchange occurred with counsel for the Practitioner: q. "Did you make any observations of her demeanour or not at that stage? a. It – I was a little bit surprised to be honest because I wasn't expecting someone to walk out calmly after hearing such an emotional interaction but she seemed quite controlled and calm at that point. I'm pretty sure I remember observing just folding a piece of paper and walking out, seemed quite normal." 1. Mr Giarratano gave evidence as to a conversation which occurred between himself and the Practitioner when he entered the consultation room after the departure of Patient A. The following exchange occurred: "q. Was anything said between you two about the patient before you? a. Yes. Actually – I actually – I went in and I said to the doctor 'I hope everything is okay. That sounded intense'. I believe were my words and the doctor just responded with something along the lines of, 'I hope she is because I said 'I hope she's okay' and the doctor said 'I hope so too' but certainly he seem any different to when I normally interacted with Dr Rahman." 1. At a later stage in his evidence this exchange occurred between Mr Giarratano and the counsel for the Practitioner: "q. In paragraph 12 of that statement, and 13, you set out some of the sounds you heard emanating from that room? a. That's correct. I realised you asked me earlier what I had heard and I did not mention the words 'sorry for your shirt' or 'sorry for the shirt'. However I did definitely hear the word 'sorry' and the word 'shirt'. The words in between those, I did not clearly hear. It was along the lines of 'sorry for your shirt' or 'sorry for the shirt'." 1. Mr Daniel Marjinovic gave evidence for the defence in the Local Court proceedings. Mr Marjinovic is an exercise physiologist who practices at the Miranda Medical Centre. He gave evidence that he had practiced at the medical centre for approximately 12 months by 2018 and that he had treated some patients in conjunction with the Practitioner. He said that he and the Practitioner had coffee together in the afternoon from time to time. He said that he recollected having coffee with the Practitioner on 27 March 2018. 2. Mr Marjinovic gave this evidence-in-chief in the Local Court: "q. Can you tell the court what you recall of that conversation? a. So he just raised concern about an odd patient that he had just seen, saying that she was very hysterical and she ended up crying on his shoulder and he was just trying to comfort her while she was crying. q. Do you remember what he was wearing on the day? a. I think it was – not really no. It was a long time ago. q. Did he say anything about what he was wearing on the day and her crying on his shoulder? a. It was like a jumper, sweater, yeah. q. Did he say anything about what the crying did on the jumper or sweater? a. Yeah, it left a few tears on the jumper." This evidence was not challenged in cross-examination. 1. Shortly after she made the complaint, Patient A gave an interview to a reporter from a commercial television station. During this interview, apparently she described the Practitioner's consulting room as "intimate and date-like". This video was in evidence in the Local Court trial but was not tendered in these proceedings. 2. In cross-examination in the Local Court, Patient A was shown photographs of the consulting room. She was asked: "you'd agree that there's nothing in those photographs or what you've described that would suggest an intimate dating style consult room". Patient A answered "nothing". Patient A was then shown the video of the television interview. She said: "I don't believe I related anything to furniture It was the vibe, it was the persona. The way the doctor carried himself, not the furniture in the room." 3. In her police statement of 27 March 2018 Patient A said: "I would describe Dr Rahman as being of Indian background, he has very dark coloured skin but speaks with an Australian accent…..". In cross-examination in the Local Court Patient A was asked: "When you look at his skin colour, do you say that it is very dark?" She answered "No." 4. In cross-examination in the Local Court, Patient A was asked about a difficulty with payment of an amount of $10,000 due to her employer and its impact on her emotional state on 27 March 2018. She said: "I was not worried about the Bodyfit account". In these proceedings, however, Patient A said: "the $10,000 account had caused me significant distress. I raised that with Dr Rahman." 5. There was an abundance of evidence to the effect that Patient A was very upset and distressed when she attended the consultation on 27 March 2018. In her notification to the Health Care Complaints Commission dated 31 March 2018 Patient A described her condition on 27 March 2018 as "very upset and anxious" and said "I was hysterical in emotion". 6. It is our view that there are considerable difficulties with the evidence of Patient A as to the alleged events of 27 March 2018. We intend no disrespect to Patient A, but our task is to consider and evaluate all of the available evidence, in reaching a conclusion as to whether the Applicant has discharged its onus of proof in respect of Particular 4 of Complaint One. 7. By Patient A's own admission, she has a "very blurry recollection" of the consultation on 27 March 2018. She described that she "was hysterical in emotion" on that day. We have referred above to inconsistencies in the evidence which she gave in the Local Court and in these proceedings. 8. It is clear that Patient A had conversations with three members of her family, about this consultation, before she gave her account to a police officer on the night of 27 March 2018. Her sister Person A was present throughout the interview with Senior Constable Oliver. Her father and her sister, Person B, gave clear and uncompromising advice to Patient A that she should make a report to police concerning the Practitioner. 9. In these circumstances, there must be a real prospect that the account of Patient A has been influenced or tainted by the input of well-meaning members of her family. This prospect is made more problematic by her admission of a "very blurry" memory of the consultation on 27 March 2015. 10. Nothing in the evidence suggested that Mr Giarratano had any vested interest in the outcome of the Local Court proceedings. He simply happened to have been outside the consultation room on 27 March 2018 and he overheard parts of what was said by Patient A and the Practitioner. He gave clear evidence that he heard Patient A say the words "sorry" and "shirt", which contrasts with her evidence in both the Local Court and these proceedings. 11. The Practitioner has made consistent denials that he engaged in the conduct alleged in this Particular, since the commencement of the criminal proceedings. He maintained his denials in these proceedings. In our assessment, his evidence in denial of these allegations was not shaken in cross-examination in either the criminal trial or these proceedings. 12. Only Patient A and the Practitioner know the truth of what occurred in the consultation room on 27 March 2018. The only objective evidence is that of Mr Giarratano, which offers a degree of corroboration for the account of the Practitioner. Mt Giarratano was very careful in the evidence which he gave both in the Local Court and in these proceedings. In our view, there is no reason to doubt the truthfulness of what he said that he overheard on 27 March 2018. He described the demeanour of Patient A when she left the consultation, which contrasts with her statement that: "I won't agree that I walked out calm" in these proceedings. 13. The video of Patient A's television interview was not made available to this Tribunal. Nonetheless, Patient A's own evidence allows for a conclusion that she resiled from her account of an "intimate and date-like setting" when she saw this video during the Local Court trial. 14. For these reasons we are not "comfortably satisfied", nor do we "feel an actual persuasion" that the Practitioner engaged in the conduct alleged in Particular 4 of Complaint One. For the reasons set out above we consider there are real risks inherent with making findings, to the requisite standard and having regard to the Applicant's onus of proof, that the Practitioner engaged in the conduct alleged in Particular 4 of Complaint One. Speculation and/or suspicion are no substitute for evidence which withstands scrutiny. Accordingly, we are not satisfied that he is guilty of unsatisfactory professional conduct or professional misconduct as alleged in this Particular of Complaint One. Complaint Two 1. By this complaint the Applicant alleged that the Practitioner is guilty of unprofessional conduct in that he engaged in conduct that demonstrates that the judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or that he engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 2. The Applicant asserted the following particulars of Complaint Two: [adopting the numeration contained in the complaint] 1. Between about 27 March 2018 and about 31 March 2018 the practitioner inappropriately contacted Patient A by telephone and by text message. (a) on 27 March 2018, between about 3.09pm and about 4.01pm, the Practitioner made nine outgoing calls to Patient A's mobile phone number from his number at the medical centre (two of those calls were answered, during one of which the Practitioner asked Patient A if she had spoken to her work and asked about her wellbeing). (b) on 29 March 2018, between about 6.02pm and about 6.03pm, the Practitioner made four outgoing calls to Patient A's mobile number from his number at the medical centre (the calls were not answered). (c) on 29 March 2018, between about 5.10pm and about 7.03pm, the Practitioner made nine outgoing calls to Patient A's mobile number from his personal mobile number (the calls were not answered). (a) on 29 March 2018, at about 6.25pm and about 9.25pm, the Practitioner sent two text messages to Patient A's mobile number from his personal mobile number (Patient A did not reply to the two text messages). (a) On 30 March 2018 between about 2.47pm and about 10.34pm, the Practitioner made five outgoing calls to Patient A's mobile phone number from his personal mobile number (the calls were not answered). (b) On 30 March 2018, at about 7.21pm, the Practitioner sent a text message to Patient A's mobile number from his personal mobile number (Patient A did not reply to the text message) (c) On 31 March 2018, between about 10.47am and about 11.27am, the Practitioner made four outgoing calls to Patient A's mobile phone number from his number at the medical centre (the calls were not answered). (d) On 31 March 2018 between about 7.52am and about 11.34am, the Practitioner made 26 outgoing calls to Patient A's mobile phone number from his personal mobile number (the calls were not answered). (a) On 31 March 2018 at about 3.03pm, upon receiving a text message from Patient A which read "please do not contact me or come to my place of work again", the Practitioner sent a text message to Patient A's mobile number from his personal mobile number (Patient A did not reply to the text message). 2. On or about 31 March 2018, the practitioner breached patient confidentiality by disclosing personal details of Patient A to Person A [We will refer to the Person A named in the Complaint as Person Z in order to avoid confusion in these reasons with Patient A's sister, Person A], who was a patient he had formed a friendship with, including details regarding Patient's health, his view that she may be suicidal, her name and mobile phone number, contrary to his obligations under s3.4.1 of the Good Medical Practice Standard – Code of Conduct, and the Health Privacy Principle 10 of the Health Records and Information Privacy Act 2002. 3. On 31 March 2018, at about 10.55am and at about 11.22am, the practitioner inappropriately sought to contact Patient A, via Person Z's phone through two outgoing calls to Patient A by telephone (the calls were not answered). 4. On 31 March 2018, the practitioner breached patient confidentiality in that he inappropriately used Person Z to contact Patient A on Facebook and send her a private message on Facebook Messenger. 5. On 31 March 2018, at about 12.55pm, the practitioner breached proper professional boundaries in that he inappropriately attended Patient A's workplace for a non-therapeutic purpose. 6. By his conduct and particulars 1 to 5, the practitioner breached the Medical Board of Australia's guidelines – Sexual Boundaries in the Doctor/Patient Relationship, dated December 2018." 1. The respondent admitted that by his conduct and particulars (1) to (5), the practitioner breached the Medical Board of Australia's Guidelines – Sexual / Boundaries in the Doctor/Patient Relationship as particularised in Particular 6 of Complaint 2. 2. As recorded above the Practitioner admitted that he is guilty of unsatisfactory professional conduct as alleged in Particulars 1,2,3 and 4 of this Complaint. There remains the issue of whether he attended the workplace of Patient A inappropriately for a non-therapeutic workplace, as is alleged in Particular 5. 3. There can be no doubt that Patient A was very upset and distressed during the consultation on 27 March 2018. As noted above, in her own words "she was 'hysterical in emotion'" on that day. This level of heightened emotion must have been readily evident to the Practitioner, who commented on the condition of Patient A to Mr Marjinovic on the same afternoon. Mr Giarratano gave evidence that he moved out of earshot due to the effect on his own distress of what he heard in the consulting room. 4. We consider that it is necessary to have regard to the emotional state and behaviour of Patient A, on 27 March 2018, in the determination of whether the Practitioner had a therapeutic purpose for his visit to her workplace on 31 March 2018. He maintained that he had concerns for her welfare, thus he decided to visit her workplace which is across the road from his practice. 5. In cross-examination in these proceedings Patient A said of this consultation: * I was upset, probably about as much as on the first time. * It was a trigger that day. * He was comforting me for quite a while before we started talking * I definitely came in saying work had triggered me * I won't agree I walked out calm * My memory of the last session is very blurry. 1. In his police record-of-interview the Practitioner stated that Patient A was sobbing when she entered the consultation room on 27 March 2018. The following exchange then took place between Detective Sergeant Daley and the Practitioner: "q. What did you do when she…when that happened? a289. I just spoke to her. I said, 'what's wrong?' and that's when I told you before about basically explaining that you know she was very paranoid and that she thought people were after her. She hadn't displayed those kinds of symptoms in the past. Um you know she was everyone's after me and even I believe some of my friends are, even my best friends are after me, my mum's after me I think basically that's what she was I I think I hate myself. I don't know if life's worth living. q290 What were you thinking when she said that? a290 Well I thought she could be suicidal, so I was a bit, you know, a bit concerned, and on further talking to her, I found out that the stress was caused by something at work, with her manager or someone at work there with the transaction and so basically I said look you know you just need to take some time off. Come back and see me in a few days and I left it at that and then, you know, that's when I explained the other part before so yeah. q291 You thought she was suicidal? a291 She might be, but it went towards the end she was better, so, if she was suicidal, I would have scheduled her but I didn't feel she was suicidal when she left, but the reason why I wanted her to come back in two days was to get her to come back, to make sure she was still okay. q292 So you didn't think she was suicidal? q293 When she left? a293 At the time, I have written it in her notes." 1. At a later stage in the record-of-interview Detective Sergeant Daley asked the Practitioner: "q382 So she was improving and then on that very last occasion that you were saying that she wasn't? a382 She was, she went backwards that time, yeah, and then she just that's when she showed all these psychotic features which hadn't been evident before and that's when I became concerned." 1. Later in the record-of-interview the Practitioner said: "a695 The action was to to, like I said, on the Saturday, I was gonna go to the police…I was gonna go down to Miranda and speak to them so they can contact her, to see if she was safe. That was my next plan of action. q696 Didn't you write her a certificate to be off work? a696 I did. q697 So what made you go to her workplace? a697 I was just…just next to, I was just going,…I was finished work and was going down anyway and I had a look and I, I just saw her, so I wasn't expecting her to be there because she was supposed to be off. q698 Why did you wait until the end of her shift to follow up on her on the Saturday? a698 I can't remember why. I waited but I mean yeah it was I came to work and I finished and then I just went…I can't remember the reason why> q699 Why didn't you call earlier on Saturday or send police or go yourself if you had concerns for her wellbeing? a699 While my plan was that if she hadn't come on the Saturday after work when I finished my shift to go to the police. That was my plan of action to go to the police then, after work." 1. In his evidence-in-chief in the Local Court the Practitioner explained his reasons for attending the workplace of Patient A as follows: "Well I was this, was the last basically step before going to call the police or going to the police down the road and I thought you know what let me go to see. My impression was that she was not going to be at work because like she had these work-related issues and I had given her certificates. So I was assured she wouldn't be at work so I was going in there to see if that any of her work colleagues or her manager knew where she was or had spoken to her in the last two days. I was not going to see her because she was given a medical certificate not to go to work. Her, her whole issue was work so she wasn't supposed to be there." 1. In his evidence-in-chief in these proceedings the Practitioner said inter alia: "On 27 March 2018 she looked quite fine while she was sitting outside. She became hysterical started crying when she came in. She was wailing like someone had died – I haven't seen someone like that in 20 years.: The practitioner said also: "Because I have never seen anyone with that level of distress, I said look I will give you my number". 2. In his evidence-in-chief in these proceedings the Practitioner said: "I attended her workplace because I had received no confirmation that she was okay. I hoped to see a manager, I did not expect to see her because I had given her time off work." In these proceedings the practitioner said also: "I have had patients for whom I have had that level of concern before, but I have been able to contact them after a couple of calls. This is the first time a patient did not respond." 3. The Practitioner said also in these proceedings: "I opened her file and found [Person D] as next-of-kin. I rang and left a message but there was no reply. The next-of-kin record is the responsibility of reception. I wanted to see if he had had contact with her." 4. Patient A denied any knowledge of a person named Person D. The evidence offered no explanation as to why this name appeared as an emergency contact for Patient A in her file. For unexplained reasons, Patient A has formed the view that there is "something very suspicious´ about the fact that the name Person D appears as an emergency contact in her file. During cross-examination in the Local Court she said: "I would lodge that with the police now". 5. In his evidence-in-chief in these proceedings the Practitioner said inter alia: "As I was finishing I remembered that someone had not come back. I thought I had better follow up. I could not remember her name so I got it from reception. I tried to call her on 30 March 2018. I was getting more frustrated and upset. I was conscious of my own mental health issues – I have PTSD after a patient threatened me with an axe in 2014…I think subconsciously my own mental health had an impact – I became a bit edgy and anxious." The context would suggest that the Practitioner was referring to the 27 March 2018 consultation when he gave this evidence. 6. The Practitioner's notes for the consultation on 27 March 2018 read inter alia: "History Presents very teary and distressed – upset as well had altercation with wok with manager yesterday no sleep last night. Psych: no suicidal thoughts. No substance abuse. Examination: teary upset, crying a lot, calmed her down after a few minutes. Reason for Contact: Anxiety – generalised actions prescription added Keflex capsule 500ml 1tid Keflex capsule 500mg prescription withdrawn. Plan: long talk. Time off Work: exercise review 2/7." 7. In cross-examination in these proceedings the Practitioner said: "In the last consultation I thought she was paranoid. I did not put it as a psychosis as such…on 27 March 2018 she presented with anxiety, depression with some psychotic features. She had suicidal ideation without intent. It is not correct that she was not in the slightest suicidal on 27 March 2018. If I had assessed her to be at risk on 27 March 2018 I would not have let her go. I should have added more detail to the notes of 27 March 2018." 8. The Practitioner said further in cross-examination in these proceedings: "I agree it was open to me to include in the notes references to paranoia, suicidal thoughts – I should have. It is not correct that she had no paranoia or suicidal thoughts. If she had not been in that state, there would have been no need to chase her with phone calls." 9. The Practitioner had given Patient A a certificate for time away from her employment on 27 March 2018, thus it seems reasonable for him to suggest that he did not expect to find her on the premises on 31 March 2018. It seems unusual, however, that the Practitioner would choose a workplace visit as a means to check on the well-being of Patient A. The option of a police safety check was open to him at all times. 10. We are inclined to accept that the Practitioner held genuine concerns as to the safety and welfare of Patient A, after the consultation on 27 March 2018. He attempted to address those concerns in a most inept and inappropriate manner by the involvement of Person Z. His visit to the workplace of Patient A on 31 March 2018 seems likely to have been another ill-judged and poorly thought out attempt to address his concerns. 11. In respect of Particular 5, we are not "comfortably satisfied", nor do we "feel an actual persuasion" that the Practitioner attended the workplace of Patient A without a therapeutic purpose on 31 March 2018. His visit may well have been an ill-judged and unwise means of addressing his concerns for her welfare and safety. We are not satisfied, however, that the Applicant has discharged its onus of proof in respect of this Particular of Complaint Two. Accordingly, the Practitioner is not guilty of unsatisfactory conduct or professional misconduct in terms of his visit to the workplace of Patient A. Complaint Three 1. By this complaint the Applicant alleged that the Practitioner is guilty of unsatisfactory professional conduct pursuant to section 139B1(a) and/or ( l )of the National Law. The particulars of this Complaint read as follows:" 1. Between 13 March 2018 and 28 March 2018, after Patient A had repeatedly requested a Mental Health Treatment Plan and the practitioner had prescribed medication, the practitioner failed to prepare such a plan for Patient A. 1. In her notification to the HCCC dated 31 March 2018 Patient A said: "I had requested a Mental Health Plan twice and he advised it would not be in my best interests to speak to more than just him right now." She did not identify the dates of the consultations when she made these two requests for a Mental Health Plan. 2. In her police statement of 27 March 2018 Patient A said: "On Saturday 17 March 2018 I re-attended Dr Rahman's office to enquire with him about being put on a Mental Health Plan." She added that he "advised me it would be more beneficial to keep seeing him rather than having to explain my situation to another person". 3. In the same police statement Patient A said that she asked the Practitioner, on 22 March 2018, whether she should "see a psychologist". As there was no consultation with the Practitioner on 22 March 2018, we will assume that Patient A intended to refer to her attendance at the medical centre on 24 March 2018. Patient A said that, on this occasion, the Practitioner advised again that to do so would not be in her best interests. 4. In her evidence-in-chief in these proceedings Patient A said that she approached the medical centre initially "because I was feeling quite anxious, I was well aware of Mental Health Plans. My family is medically oriented and I had one previously". Patient A then said "I understood they were easily obtainable. I wanted to have a chat to a psychologist about once a week." 5. In cross-examination in these proceedings Patient A said at the consultation on 14 March 2018: "I did know that I wanted a Mental Health Plan. I am hundred per cent sure that I asked on each occasion." She said also "I left feeling that he was not the right doctor because I left without a Mental Health Plan". 6. In relation to the consultation on 24 March 2018 Patient A said in cross-examination: "he recommended an increase in the dose of anti-depressant. I was happy to take his advice. I was committed to adopting the plan for me to take anti-depressants." 7. The Practitioner denied that Patient A asked for a Mental Health Plan on any occasion. His evidence was that he would have provided a Mental Health Plan if Patient A had asked him to do so. He said that he has never refused a Mental Health Plan for a patient. He said that he considered that these plans can be beneficial for patients in conjunction with a medication regime. 8. In cross-examination in these proceedings the Practitioner said that Patient A informed him on 14 March 2018 that "she had seen psychologists and it had not helped". He said "she never asked for a Mental Health Plan" and added "I don't think she knew what a Mental Health Plan was". He stated "if she had asked for a Mental Health Plan I would have written one. It does not happen that I do not give a Mental Health Plan if I am asked." He said further "I have never ever refused someone a psychologist." 9. Ms Susan Nikov was sitting outside the Practitioner's consulting room on 17 March 2018. In these proceedings she gave evidence to the effect that she heard no discussion about a Mental Health Plan or a psychologist. She indicated that she would have remembered any such discussion because her interest would have been piqued, as her son suffers from mental health difficulties. With respect to Ms Nikov, we derive little assistance from her incomplete account of the conversation between the Practitioner and Patient A on this occasion. 10. The Practitioner's notes for the consultations of 14 March 2018, 17 March 2018, 24 March 2018 and 27 March 2018 contained no reference to a request by Patient A for a Mental Health Plan. The practitioner said words to the effect in these proceedings "I agree my medical records were not a true reflection of what was happening." 11. In his police statement of 1 May 2018 Patient A's father stated that he informed her in approximately mid-March 2018 that she could obtain a subsidy for the fees for consultation with a psychologist, if a general practitioner developed a Mental Health Plan. Person C stated that Patient A "advised me that the doctor was reluctant to refer her to a psychologist because he didn't think that concurrent medical and psychological intervention would be of assistance to her." 12. Patient A was asked about her previous experience with mental health plans in cross-examination in the Local Court proceedings. The following exchange occurred between Patient A and counsel for the Practitioner: "q. Do you agree then that again in 2015 you have gone and visited Dr Hoang and got a Mental Health Plan? a. I can't recall. q. You don't dispute doing that though? a. I can't dispute it because I can't recall so there is no agreeing or disputing. I can't recall that event at all… q. You don't dispute, as I take it, that you have got a Mental Health Plan. You just don't recall is that right? a. Correct… q. You can't tell the court whether you complied with the Mental Health Plan, is that right? a. No. q. You can't tell the court what that Mental Health Plan entailed? a. No. q. You can't tell the court whether you had a view that it was successful or not? a. No." 1. Patient A gave contradictory evidence in relation to her requests to the Practitioner for a mental health plan. In her notification to the HCCC she said that she made such a request on two unspecified occasions. In cross-examination in these proceedings, however, Patient A said:" I am one hundred per cent sure that I asked on each occasion". This evidence sits uncomfortably with Patient A's admissions of her poor recollection of the consultations on 24 March 2018 and 27 March 2018. 2. Patient A suggested in these proceedings that she was familiar with mental health plans because of her previous experience, when she "had one previously". As appears above, however, she was able to give only a sketchy account of her past experience with a mental health plan in cross-examination in the Local Court. 3. The father of Patient A gave evidence that he advised her to request a mental health plan "in mid-March 2018". This advice may have relevance to Patient A's current construction of the events of the four consultations. 4. For these reasons, we are left with real reasons for doubt as to whether Patient A did make "repeated requests" for a mental health plan as alleged in this Particular. We cannot be "comfortably satisfied" or "feel an actual persuasion" that this Particular has been made out on the available evidence. Accordingly, the Practitioner is not guilty of unsatisfactory professional conduct as alleged in Complaint Three. Complaint 4 1. Complaint Four and its Particulars reads as follows: Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. Engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or 2. Engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. Particulars of Complaint Four 1. Complaints One and Two and the particulars thereof are repeated and relied upon individually and cumulatively. 1. We consider that it is relevant to take into account the nature of the Practitioner's relationship and prior interaction with Person Z in reaching a conclusion as to this Complaint. In his evidence-in-chief in these proceedings, the Practitioner said: "[Person Z] is someone I was introduced to and then he came to me after a motor accident. I was introduced to him by a family friend at wedding. We communicated mainly by text." 1. The Practitioner said: I returned a call from [Person Z] on 31 March 2018. I mentioned a patient I was concerned about. He said 'my daughter was suicidal' and offered to call her. He said 'have you tried contacting her on social media?" 1. In cross-examination in these proceedings the Practitioner said: "I have had very limited social contact with [Person Z]." The Practitioner agreed: "Yes, he is a very casual acquaintance." The Practitioner said "We sent each other jokes, funny things, messages". 2. In relation to the telephone and text message communications, the expert Dr Simon Young expressed these opinions: "In relation to Q5, GPs certainly contact their patients by phone, or rarely text. Prudent GPs have a separate work mobile for the purpose, to ensure boundaries are maintained. Patient consent is important. Consent might be overt, such as 'I'll call you at the end of the shift to see how the stomach pain is progressing to see if hospital is needed' or implied – most patients are happy to receive an unscheduled call about an unexpected result for instance when they have good rapport with the GP in question." "If a doctor is worried about a patient's mental health, then follow up is best discussed as part of the management plan eg: 'I'll call you tomorrow to check in' and would ideally be recorded in the notes." "Wise GPs stay within professional boundaries, and only call patients when clinically appropriate, with patient consent." "It is my opinion that in regard to the mobile communication with [Patient A], Dr Rahman's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience." 1. As to the involvement of Person Z and the consequent breach of confidentiality of Patient A, Dr Young opined as follows: "A Practitioner of an equivalent level respects patient confidentiality at all times and maintains professional boundaries. It is my opinion that in regard to the actions outlined in Q6,7 and 8, Dr Rahman's conduct fell significantly below the standard expected of a practitioner of an equivalent level of training or experience." 1. We consider that the Practitioner's telephone and text message communications and the involvement of Person Z are matters of a most serious nature. In our view, these actions constitute "improper and unethical conduct relating to the practice or purported practice of the practitioner's profession". It could hardly be expected of a person in the position of the Practitioner that he would involve "a very casual acquaintance", who had no qualifications or experience in dealing with mental health issues in his dealings with Patient A. This conduct seems to us to be "a breach in the standards of ethical behaviour that would be expected of a person in the position of [the Practitioner], to adopt the words of the High Court of Australia in The Queen v Byrnes. 2. The involvement of Person Z, and the disclosure by the Practitioner to him of private information concerning Patient A, amounts in our view to a most serious breach of her privacy and confidentiality. The frequency of telephone calls and text messages to Patient A by the Practitioner can be considered to be excessive and oppressive, even when assessed in the context of legitimate concerns for her safety and welfare. For these reasons, we are comfortably satisfied that these actions by the Practitioner warrant a finding that he is guilty of professional misconduct. ORDERS 1. The Tribunal finds that the Practitioner is guilty of unsatisfactory professional conduct. 2. The Tribunal finds that the Practitioner is 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. 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 09 November 2022 - Paragraph [82] added 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: 09 November 2022