Health Care Complaints Commission v Singh [2023] NSWCATOD 124
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Singh [2023] NSWCATOD 124
Hearing dates: 26 to 30 June, 14 July and 1 August 2023
Date of orders: 24 August 2023
Decision date: 24 August 2023
Jurisdiction: Occupational Division
Before: G Blake AM SC, Senior Member
Dr R Engel, Senior Member (Professional)
Dr D Kostur, Senior Member (Professional)
R Kusuma, General Member
Decision: 1. The publication of the following names, together with any information or material which could identify these persons, whether by itself or with other information and material, is prohibited;
a. the 387 patients who attended Camden Healthcare Centre on 22 June 2021 (as recorded on pages 118 to 130 of exhibit R1);
b. Patient A's sister-in-law.
2. The applicant is to inform the respondent of what protective orders and costs orders it seeks within 14 days.
3. The respondent is to file and serve any further evidence, and an outline of submissions, on what protective orders and costs orders should be made within 28 days thereafter.
4. The applicant is to file and serve any further evidence, and an outline of submissions, on what protective orders and costs orders should be made within 28 days thereafter.
5. The proceedings are adjourned for the conduct of the stage 2 hearing to a date to be fixed by the Registrar.
Catchwords: TRADES AND PROFESSIONS – chiropractor - inappropriate sexual words and touching of patient - whether constitutes unsatisfactory professional conduct and professional misconduct
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 64
Crimes Act 1900 (NSW), ss 61HB, 61KC,
Criminal Procedure Act 1986 (NSW), ss 3, 290, 292B, 292C, 292D, 293A, 294, 294AA
Evidence Act 1995 (NSW), s 140
Evidence Act 2008 (Vic), s 97
Health Practitioner Regulation National Law (NSW), ss 40, 139B, 139E, 150, 164G, Sch 5, cl 2
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
Campbell v Campbell [2015] NSWSC 784
Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186
Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64
Gautam v Health Care Complaints Commission [2021] NSWCA 85
Ghosh v Medical Council of New South Wales [2020] NSWCA 122
Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158
Health Care Complaints Commission v Aref [2018] NSWCATOD 133
Health Care Complaints Commission v Gao [2022] NSWCATOD 73
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264
Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39
Health Care Complaints Commission v Ng [2015] NSWCATOD 85
Health Care Complaints Commission v Priyamanna [2015] NSWCATOD 138
Health Care Complaints Commission v Wilcox [2020] NSWCATOD 10
Khan v General Medical Council [2021] EWHC 374 (Admin)
King v Health Care Complaints Commission [2011] NSWCA 353
Maughan v R [2020] NSWCCA 51
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Rao v R [2019] NSWCCA 290
R v Bauer (2018) 266 CLR 56; [2018] HCA 40
R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30
Seamez v McLaughlin [1999] NSWSC 9
Xie & Ors v Qin & Anor; Qin v Taylor International Investment Pty Ltd [2023] NSWSC 254
Xu v R [2019] NSWCCA 178
Texts Cited: Chiropractic Board of Australia, Code of Conduct for Chiropractors (March 2014)
Chiropractic Technique: Principles and Procedures by Thomas F Bergmann and David H Peterson (3rd edition, 2011, Elsevier)
Macquarie Dictionary (Macmillan Publishers Australia 2023)
Spinal Adjustment Technique: The Chiropractic Art by Stephen Esposito and Scott Philipson (2005, Aron Downie)
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Atil Singh (Respondent)
Representation: Counsel:
A Petrie (Applicant)
V Hartstein (Respondent)
Solicitors:
Health Care Complaints Commission (Applicant)
Shukla & Associates Law Practice (Respondent)
File Number(s): 2023/00008053
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the following persons, together with any information or material which could identify this person, whether by itself or with other information and material, is prohibited:
(1) Patient A;
(2) The 387 patients who attended Camden Healthcare Centre on 22 June 2021;
(3) Patient A's sister-in-law.
REASONS FOR DECISION
Overview
1. In these proceedings the applicant, the Health Care Complaints Commission (which is also referred to as "the Commission" or "the HCCC"), is seeking findings against the respondent, Dr Atil Singh, a chiropractor, that he is guilty of unsatisfactory professional conduct and professional misconduct within the Health Practitioner Regulation National Law (NSW) (National Law), and the making of consequential protective orders, which arise out of the treatment of a female patient, who is referred to as Patient A, at his practice known as Camden Physical Health at Camden in New South Wales (the practice).
2. We have decided to make the following orders and findings:
1. to prohibit the disclosure of the names of certain persons, together with any information or material which could identify them, whether by itself or with other information and material;
2. that the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law;
3. that the respondent is guilty of professional misconduct within s 139E(a) and (b) of the National Law;
4. to make directions for the provision of any further evidence, and an outline of submissions, on what protective orders should be made.
The background
1. The respondent is a chiropractor currently registered under the National Law.
2. In 2015, the respondent graduated with a Graduate Diploma and a Masters Degree in Chiropractic Science from Macquarie University.
3. In January 2016, the respondent was first registered as a chiropractor.
4. From June 2016 to October 2017, the respondent worked as a chiropractor at Green Valley in New South Wales.
5. From October 2017 to the present, the respondent has worked as a chiropractor at the practice which he operates through the company Physical Health Pty Ltd (Physical Health) from a rented space on the ground floor of the Camden Healthcare Centre which is located in a two-storey building. The premises of Physical Health consists of three treatment rooms which are contiguous and face an open exercise area. There are doors at the entrance of the treatment rooms. The treatment rooms are numbered 1 to 3 with treatment room 3 adjacent to the eastern side of the building. Only treatment room 3 has a wash basin. There is a receptionist area adjacent to the entrance doorway to Physical Health. There are other allied health practices occupying separate spaces as well as male and female toilets and a waiting area on the ground floor. There is an entrance to the ground floor on the northern side of the building from a walkway running from the public street at the western end to a carpark at the eastern end. There is an external door on the ground floor on each of the eastern and southern sides of the building. There is an internal stairway from the ground floor to the first floor which is used as a premises of medical practitioners. There is an entrance to the first floor on the western side of the building from the public street. The receptionist area on the first floor provides reception services for Physical Health.
6. The State Insurance Regulatory Authority (SIRA) is the government organisation responsible for regulating the New South Wales workers compensation scheme. Some allied health practitioners including chiropractors and physiotherapists must be approved by SIRA before providing services under the New South Wales workers compensation scheme. Physiotherapists and chiropractors do not require a referral from the nominated treating doctor before treatment can commence. Workers can receive any reasonably necessary treatment and services within 48 hours of the injury occurring without pre‑approval from the insurer. The allied health recovery request (AHRR) is the document used by allied health practitioners to obtain approval for the provision of up to a maximum of eight consultations.
7. The Victorian Workcover Authority which has the trading name WorkSafe Victoria is the government organisation responsible for regulating the Victorian workers compensation scheme and has substantially the same functions and procedures as SIRA.
8. On 12 July 2016, Patient A, who was working as a stablehand/trackrider in Victoria, suffered a fractured pelvis and labral tear of the right hip when she fell from a horse when riding trackwork.
9. On 15 August 2016, Allianz Australia Workers' Compensation (Victoria) Ltd (Allianz) as the authorised agent of the WorkSafe Victoria accepted the claim of Patient A for weekly payments and medical and like expenses under the Victorian workers compensation legislation with the claim number [number omitted].
10. From 15 April 2019 to 26 November 2021, Patient A was a patient at Camden Healthcare Centre and was seen by different general practitioners including Dr Sharan Pobbathi (Dr Pobbathi) and Dr Khan.
11. On 7 December 2020, Dr Pobbathi had a consultation with Patient A and prepared a referral letter addressed to "Physical Health (Atil Singh)" seeking his opinion under Work Cover regarding Patient A who had the presenting problem of a "Fractured pelvis – Op in 2017".
12. From 7 December 2020 until 22 June 2021, Patient A was a patient at Physical Health and attended the practice on 19 occasions: 7, 14 and 21 December 2020; 21 January 2021; 1, 8, 15 and 25 February 2021; 1, 8, 15 and 30 March 2021; 6, 13 and 20 April 2021; 11 and 25 May 2021; 8 and 22 June 2021.
13. On various occasions from 7 December 2020 until 22 June 2021, the following employees of the practice provided treatment to Patient A:
1. the respondent;
2. James Vo (Mr Vo), a physiotherapist;
3. Dr Daniel Romero (Dr Romero), a chiropractor;
4. Luke Nies (Mr Nies), a chiropractic assistant;
5. Lauren Romero (Ms Romero), a chiropractic assistant and remedial massage therapist.
1. On 22 June 2021, following her treatment at the practice, Patient A communicated with her sister-in-law, by text and telephone, and made notes in her iPhone (the 22 June 2021 Patient A notes).
2. On 15 August 2021, Patient A made a complaint to the Commission about the occasion when she was treated by the respondent on 22 June 2021 (the 15 August 2021 Patient A complaint).
3. On 21 August 2021, the Chiropractic Council of New South Wales (the Council) sent by email the letter dated 20 August 2021 to the respondent enclosing the 15 August 2021 Patient A complaint and requesting information pursuant to s 164G of the National Law by 24 August 2021.
4. On 24 August 2021, the applicant sent by email the letter dated 24 August 2021 to the respondent enclosing the 15 August 2021 Patient A complaint and requesting information by 14 September 2021.
5. On 27 August 2021, the respondent provided a response to the applicant comprising 100 pages and 20 annexures (the 27 August 2021 Singh response) which included the following statements:
1. the statement of Mr Nies dated 26 August 2021 (the 26 August 2021 Nies statement);
2. the statement of Mr Vo dated 23 August 2021 (the 23 August 2021 Vo statement);
3. the statement of Dr Romero dated 23 August 2021 (the 23 August 2021 Dr Romero statement);
4. the undated statement of Ms Romero (the August 2021 Ms Romero statement);
1. On 17 September 2021, the respondent with his solicitor and barrister attended the hearing under s 150 of the National Law before the delegates of the Council and gave evidence about the 15 August 2021 Patient A complaint.
2. On 21 September 2021, the delegates of the Council imposed conditions on the registration of the respondent including conditions relating to the treatment of female patients (the 21 September 2021 Council conditions).
3. On 30 December 2021, the respondent sent an email to the Senior Investigation Officer of the applicant and his solicitor containing information requested by the applicant (the 30 December 2021 Singh response).
4. On 28 June 2022, the Senior Investigation Officer of the applicant sent by email to the respondent's solicitor the letter of the applicant dated 27 June 2022 to the respondent which set out the substance of the grounds for its proposed action against him in respect of conduct significantly below the standard and below the standard, and to provide him with an opportunity to make submissions under s 40 of the National Law within 28 days (the 27 June 2022 HCCC letter).
5. On 24 July 2022, the respondent's solicitor sent an email to the Senior Investigation Officer of the applicant containing the response of the respondent to the 27 June 2022 HCCC letter (the 24 July 2022 Singh response).
The proceedings
The procedural history
1. On 9 January 2023, the applicant commenced proceedings 2023/00008053 against the respondent by filing an application for disciplinary findings and orders, in which the respondent is referred to as "the practitioner", and which relevantly provides:
"3. ORDERS SOUGHT
The Applicant seeks the following orders:
1. A direction that the name and address of the witnesses listed in the Schedule to the attached Complaint not be disclosed under clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW) ("National Law") / an order prohibiting the disclosure of the name/s of the persons listed in the Schedule to the attached Complaint under section 64 of the Civil and Administrative Tribunal Act 2013.
In the event the subject-matter of the complaint is proved or admitted, the Applicant seeks:
2. Cancellation of the Respondent's registration, pursuant to s 149C(1)(b) of the National Law, with a non-review period of 2 years
3. An order that the Respondent pay the Commission's costs under clause 13 of Schedule 5D of the National Law.
In the event that only some of the particulars of the complaint are proved, the Applicant may seek alternative protective orders under section 149A (caution, reprimand, counsel etc.), section 149B (fine), and/or section 149C (suspension) of the National Law.
GROUNDS FOR APPLICATION (INCLUDING PARTICULARS)
The Director of Proceedings of the Health Care Complaints Commission has determined to prosecute the attached Complaint against the Respondent pursuant to section 90B(1) of the Health Care Complaints Act 1993 alleging that the Respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a), (b), (c) and/or (I) and/or professional misconduct within the meaning of section 139E of the National Law."
1. On 17 February 2023, the Tribunal made procedural orders including an order prohibiting the disclosure of the name of Patient A pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
2. On 28 April 2023, the respondent filed his affidavit sworn on 28 April 2023 (the 28 April 2023 Singh affidavit) which includes his Reply in which he denied Complaints One and Two and the particulars of those Complaints.
3. On 21 June 2023, the applicant filed an Amended Complaint.
4. On 14 July 2023, the applicant was granted leave to amend the Amended Complaint and Senior Member Blake gave oral reasons for the decision.
The Amended Complaint
1. The Amended Complaint as amended on 14 July 2023 relevantly provides (omitting the strikethrough and underlined text indicating amendments):
"BACKGROUND TO ALL COMPLAINT
…
Patient A attended the practice on the following occasions:
DATE PRACTITIONER WHO TREATED PATIENT A
7 December 2020 Mr James Vo and the practitioner acting as mentor
14 December 2020 Mr James Vo and the practitioner acting as mentor
21 December 2020 The practitioner acting a mentor
21 January 2021 Mr James Vo and the practitioner acting as mentor
1 February 2021 Mr James Vo and the practitioner acting as mentor
8 February 2021 Mr James Vo and the practitioner acting as mentor
15 February 2021 Mr James Vo and the practitioner acting as mentor
25 February 2021 Mr James Vo only
1 March 2021 Mr James Vo and the practitioner acting as mentor
8 March 2021 Mr James Vo and the practitioner acting as mentor
15 March 2021 Mr James Vo and the practitioner acting as mentor
30 March 2021 The practitioner
6 April 2021 The practitioner
13 April 2021 The practitioner
20 April 2021 The practitioner
11 May 2021 The practitioner
25 May 2021 The practitioner
8 June 2021 The practitioner
22 June 2021 The practitioner
COMPLAINT ONE
The practitioner is guilty of unsatisfactory professional conduct under section 139B(1)(a) or (I) of the National Law in that the practitioner has:
i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of Chiropractic 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 Chiropractic.
PARTICULARS OF COMPLAINT ONE
1. On the dates outlined in the above table, Patient A received chiropractic treatment from the practitioner. During the course of about 5 of these treatments the practitioner:
a. inappropriately removed Patient A's underwear without any proper clinical justification.
b. failed to obtain informed consent from Patient A prior to the removal of her underwear on occasions referred to at particular 1(a) above.
c. failed to provide an explanation to Patient A as to why the practitioner was removing her underwear on occasions referred to at particular 1(a) above.
2. On the dates outlined in the above table, Patient A received chiropractic treatment from the practitioner. The practitioner made the following inappropriate comments to Patient A at various appointments:
a. "You need a boyfriend, so they can touch you instead of me."
b. "Have you found a boyfriend yet?"
c. "How's your love life man?"
d. "Are you touching yourself?"
3. On 22 June 2021, Patient A received chiropractic treatment from the practitioner. During this consultation with Patient A the practitioner insensitively described a syndrome to Patient A that affects horse riders which results in numbness in the groin area, a lack of clitoral stimulation and an inability to reach orgasm, when he should not have presented the information in this way.
4. On the dates outlined in the above table, Patient A received chiropractic treatment from the practitioner. On one of those occasions the practitioner breached professional boundaries when he made an inappropriate comment to Patient A that the practitioner wanted to be the one "treating her at the Olympics" after she told the practitioner that she could consult with a practitioner located closer to her home.
5. On the dates outlined in the above table, Patient A received chiropractic treatment from the practitioner. On one of those occasions the practitioner breached professional boundaries when he made an inappropriate offer to help Patient A move house which was in breach of the Chiropractic Board of Australia's, 'Code of Conduct' (2014) section 9.2.
6. On the dates outlined in the above table, Patient A received chiropractic treatment from the practitioner. On one of those occasions the practitioner breached professional boundaries when he made an inappropriate offer to help Patient A put up a new fence at her home which was in breach of the Chiropractic Board of Australia's, 'Code of Conduct' (2014) section 9.2.
7. On 22 June 2021, Patient A received chiropractic treatment from the practitioner. During this consultation with Patient A the practitioner:
a. inappropriately removed Patient A's underwear without any proper clinical justification.
b. failed to obtain informed consent from Patient A prior to the removal of her underwear on the occasion referred to at particular 7(a) above.
c. failed to provide an explanation to Patient A as to why the practitioner was removing her underwear on the occasion referred to at particular 7(a) above.
e. failed to provide adequate privacy and draping for Patient A.
8. On 22 June 2021, Patient A received chiropractic treatment from the practitioner. During this consultation with Patient A the practitioner inappropriately hugged Patient A at the end of the consultation.
9. On 22 June 2021, Patient A received chiropractic treatment from the practitioner. During this consultation with Patient A the practitioner inappropriately said words to the following effect to Patient A:
a. "you need a boyfriend so they can work on your own body".
b. "you should touch yourself before you get into the car and begin the commute home."
10. On 22 June 2021, Patient A received chiropractic treatment from the practitioner. During this consultation with Patient A the practitioner inappropriately rubbed Patient A's vaginal area with his hand in circumstances where:
a. the practitioner did not obtain proper consent to the conduct beforehand.
b. the practitioner did not have a proper clinical justification for the conduct.
11. On 22 June 2021, Patient A received chiropractic treatment from the practitioner. During this consultation with Patient A the practitioner inappropriately rubbed Patient A's clitoris with his hand in circumstances where:
a. the practitioner did not obtain proper consent to the conduct beforehand.
b. the practitioner did not have a proper clinical justification for the conduct.
12. On 22 June 2021, Patient A received chiropractic treatment from the practitioner. During this consultation with Patient A the practitioner inappropriately took Patient A's left hand in his hand, directing it to her groin area and said words to the effect of "you need to be touching yourself".
13. The practitioner's conduct in particulars 10, 11 or 12 was contrary to his obligations under the Chiropractic Board of Australia's, 'Code of Conduct' (2014) section 9.2.
14. The practitioner inappropriately engaged in the conduct in particulars 10, 11 or 12 for his own sexual gratification.
COMPLAINT TWO
The practitioner is guilty of professional misconduct under section 139E of the National Law in that the practitioner has:
i. engaged in unsatisfactory professional conduct of a sufficiently serious nature, and/or
ii. to justify suspension or cancellation of the practitioner's registration, engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration
PARTICULARS OF COMPLAINT TWO
1. Complaint One and the particulars thereof are repeated and relied upon both individually and cumulatively."
The hearing
1. On 26 to 30 June, 14 July and 1 August 2023, the stage 1 hearing took place. Ms A Petrie, a barrister, represented the applicant. Ms V Hartstein, a barrister, represented the respondent.
2. At the commencement of the hearing:
1. the respondent indicated that his Reply applied equally to the Amended Complaint;
2. we made the following confidentiality order by consent as to the names of the following persons pursuant to s 64(1)(a) of the NCAT Act:
1. the 387 patients who attended Camden Healthcare Centre on 22 June 2021 (as recorded on pages 118 to 130 of the bundle of documents filed by the respondent on 12 May 2023);
2. Patient A's sister-in-law.
1. The applicant relied on the following documents which were admitted into evidence without objection:
1. a bundle of documents filed on 3 May 2023 to which were added the evidentiary certificate dated 19 June 2023 of the Australian Health Practitioner Regulation Agency and the evidentiary certificate dated 16 June 2023 of the Council both filed on 20 June 2023 (the evidentiary certificates), which were marked as exhibit A1 and included the following documents:
1. the 15 August 2021 Patient A complaint;
2. the statement of Patient A dated 10 December 2021 (the 10 December 2021 Patient A statement);
3. the statement of Patient A dated 10 March 2023 (the 10 March 2023 Patient A statement);
4. the statement of Patient A's sister-in-law dated 19 February 2022 (the 19 February 2022 Patient A's sister-in-law statement);
5. the expert report of Dr Julie Uren (Dr Uren) dated 26 May 2022 (the 26 May 2022 Uren report);
6. the transcript of the oral evidence of the respondent at the hearing before the delegates of the Council on 17 September 2021 (the 17 September 2021 oral evidence);
7. the clinical records for Patient A at Camden Healthcare Centre (the Camden Healthcare Patient A clinical records);
8. the file of Allianz in respect of Patient A (the Patient A Allianz file);
1. an enlargement of the floor plan of the ground and first floors of the building in which the Camden Healthcare Centre is located which was marked as exhibit A2 (the enlarged floor plan);
2. the list of patients of the respondent on 22 June 2021 which was marked as exhibit A3;
3. the email chain between Patient A and Lucy Cannon of the applicant ending with the email sent by Patient A on 28 June 2021 at 5.54pm which was marked as exhibit A4;
4. the list of chaperones who were also patients of the respondent between 28 September 2021 and 3 March 2022 which was marked as exhibit A5;
5. consent forms obtained by Danielle Mclear (Ms Mclear) which were marked as exhibit A6;
6. consent forms obtained by Ms Romero which were marked as exhibit A7;
7. the email sent by Nutrition Solutions Sydney to an email address of the respondent on 30 June 2023 at 9.04am attaching "Mr Salib's supplement receipts" and the attached handwritten receipts dated 20 April 2021 and 22 June 2021 which was marked as exhibit A8.
1. The respondent relied on the following documents which were admitted into evidence:
1. a bundle of documents filed on 12 May 2023, which was marked as exhibit R1 and included the following documents:
1. the 28 April 2023 Singh affidavit;
2. the affidavit of the respondent sworn on 11 May 2023 (the 11 May 2023 Singh affidavit);
3. the statutory declaration of Mr Vo made on 9 May 2023 (the 9 May 2023 Vo statement);
4. the statutory declaration of Dr Romero made on 8 May 2023 (the 8 May 2023 Dr Romero statement);
5. the statutory declaration of George Salib (Mr Salib) made on 9 May 2023 (the 9 May 2023 Salib statement);
6. the statutory declaration of Mr Nies made on 9 May 2023 (the 9 May 2023 Nies statement);
7. the statutory declaration of Ms Mclear made on 11 May 2023 (the 11 May 2023 Mclear statement);
8. the statutory declaration of Ms Romero made on 11 May 2023 (the 11 May 2023 Ms Romero statement);
9. the statement of Gavin Wilson (Mr Wilson) which was undated (the undated Wilson statement);
10. the statement of Daichi Kuchar (Mr Kuchar) dated 29 March 2023 (the 29 March 2023 Kuchar statement);
11. the statement of Dr Pobbathi dated 2 May 2023 (the 2 May 2023 Pobbathi statement);
12. the statement of Shalen Reddy (Ms Reddy) which was undated (the undated Reddy statement);
13. the statutory declaration of Melissah Fay Summer Parlato (Ms Parlato) made on 11 May 2023 (the 11 May 2023 Parlato statement);
14. the statutory declaration of Mariangel Karina Fajardo Moronta (Ms Moronta) made on 9 May 2023 (the 9 May 2023 Moronta statement);
15. the statement of Andrew Adamski (Mr Adamski) dated 11 May 2023 (the 11 May 2023 Adamski statement);
16. the statement of Zarko Mikulic (Mr Mikulic) dated 30 March 2023 (the 30 March 2023 Mikulic statement);
17. the statement of Jagan George Joy (Mr Joy) dated 26 February 2023 (the 26 February 2023 Joy statement);
18. the statement of Vasanthi Pobbathi (Ms Pobbathi) which was undated (the undated Pobbathi statement);
19. the statement of Ella Hunt (Ms Hunt) which was undated (the undated Hunt statement);
20. the statutory declaration of Angela Barry (Ms Barry) made on 11 May 2023 (the 11 May 2023 Barry statement);
21. the statement of Mark Furner (Mr Furner) dated 4 April 2023 (the 4 April 2023 Furner statement);
1. the text messages between the respondent and Mr Salib on 17 March 2021 (the 17 March 2021 Singh/Salib text messages) which were marked as exhibit R2;
2. the text messages between the respondent and Mr Salib on 21 June 2021 (the 21 June 2021 Singh/Salib text messages) which were marked as exhibit R3;
3. items 1 to 4 and 6 of the bundle of documents of the respondent tendered on 29 June 2023 which included the clinical records of Mr Wilson (the Wilson Physical Health clinical records) and were marked as exhibit R4;
4. the email of the Council to the respondent sent on 20 August 2021 at 12.29pm and the attached letter of the Council dated 20 August 2021 addressed to the respondent which were marked as exhibit R5;
5. the email chain between Brett Hudson (Mr Hudson) and the respondent ending with the email sent by Mr Hudson on 25 August 2021 at 8.52am which was marked as exhibit R6;
6. the copy letter dated 6 October 2021 of Camden Council to the respondent which was marked as exhibit R7;
7. a copy of page 231 of exhibit A1 which was marked as exhibit R8;
8. the letter dated 16 September 2021 of icare to Physical Health which was marked as exhibit R9 (the 16 September 2021 icare letter);
9. the invoice dated 15 July 2021 of Physical Health Camden addressed to IAG NRMA which was marked as exhibit R10;
10. a copy of the 11 May 2023 Ms Romero statement with different paragraph numbering which was marked as exhibit R11.
1. Patient A, Patient A's sister-in-law, Mr Vo, Dr Romero, Mr Nies, Ms Romero, Ms Mclear, Mr Wilson, Mr Salib, and the respondent gave oral evidence.
2. During his cross-examination the respondent gave evidence as to the technique he used in his treatment of Patient A in response to questions by Senior Member Engel by reference to pages of textbooks which were admitted into evidence as follows:
1. the title page and pages 199, 205, 243 and 247 of Spinal Adjustment Technique: The Chiropractic Art by Stephen Esposito and Scott Philipson (2005, Aron Downie) which were marked as exhibit T1;
2. the title page and page 348 of Chiropractic Technique: Principles and Procedures by Thomas F Bergmann and David H Peterson (3rd edition, 2011, Elsevier) which were marked as exhibit T2.
1. The parties co-operated in providing a transcript of the hearing up to the conclusion of the oral evidence.
2. The applicant relied on the following written submissions:
1. the submissions dated 14 July 2023 (the HCCC submissions in chief);
2. the submissions in reply dated 28 July 2023 (the HCCC submissions in reply).
1. The respondent relied on his submissions dated 27 July 2023 (the Singh submissions).
2. On 14 July and 1 August 2023, we heard oral submissions and at their conclusion reserved our stage 1 decision.
The issues
1. The following issues arise for determination:
1. the reliability of the Patient A Physical Health clinical records;
2. the credibility and reliability of the witnesses;
3. whether the respondent engaged in the conduct constituting Complaint One, and whether any such proved conduct constitutes unsatisfactory professional conduct;
4. whether by reason of any such proved conduct for Complaint One, the respondent engaged in professional misconduct constituting Complaint Two;
5. the costs of the proceedings.
1. Before considering these issues, it is appropriate to summarise the evidence and submissions of the parties, to set out the applicable provisions of the National Law and to determine the applicable legal principles.
The evidence of the applicant
The documentary evidence
The Camden Healthcare Patient A clinical records
1. The Camden Healthcare Patient A clinical records include:
1. progress notes of consultations with Patient A and the respondent in respect of Patient A during the period from 15 April 2019 to 26 November 2021. The consultations between Patient A and Dr Pobbathi occurred on 2, 7, 14 and 22 December 2020, 3 February 2021, and 1 and 2 March 2021;
2. the entry on 22 December 2020 of Dr Pobbathi relevantly recording a conversation in which the respondent recommended that Patient A have an MRI as she might have a new labral tear;
3. a letter dated 3 February 2021 of Dr Pobbathi addressed to Allianz (the 3 February 2021 Dr Pobbathi letter) which provides:
"Thank you for speaking to me today. As requested please information for the above patient to reopen her previous claim.
[Patient A] presented to me in december with a 6 month history of right hip pain which caused her to limp at work. As you are aware she has previously had repair in the area following a fall from a horse. Following initial assessment she was sent to have a CT scan to i/o bony issues and also to r/o any metal foreign body in the hip. She has been seen by a physiotherapist as well. He and myself are of the opinion she might have developed issues around previous labral tear, for which she needs an MRl to explore the cause further. She may also require physiotherapy to help reduce her pain and improve her quality of life.
If you require any further information please do not hesitate to contact us, with patiet (sic) consent."
1. the report dated 23 February 2021 of I-MED Radiology with the results of the MRI on the right hip of Patient A;
2. a referral dated 2 March 2021 to an orthopaedic/sports medicine specialist for an opinion and management of Patient A for persistent right hip and back pain and recording the results of an MRI on 22 February 2021;
3. the copy of a letter dated 8 June 2021 of Dr Anthony Leong (Dr Leong), an orthopaedic specialist, providing his opinion on Patient A;
but does not include the progress report dated 13 April 2021 for Patient A addressed to Dr Pobbathi of the respondent (the 13 April 2021 Patient A progress report).
The Patient A Allianz file
1. The Patient A Allianz file included the following documents:
1. a letter dated 8 February 2021 of Allianz to Patient A approving a right hip MRI service;
2. an email sent on 8 February 2021 by Allianz to Patient A attaching a letter dated 8 February 2021 of Allianz to Patient A approving physiotherapy services by her physiotherapist;
3. a letter dated 2 March 2021 of Allianz to Patient A approving an orthopaedic/sports medicine specialist consultation;
4. an email sent on 8 March 2021 by Mr Vo to Allianz attaching an AHRR for the period from 15 March 2021 to 6 May 2021 requesting 8 "1 Area" standard physiotherapy consultations and a case conference (AHRR1);
5. an email sent on 25 March 2021 by Physical Health to Allianz attaching invoice 327228031 dated 8 March 2021 for $1,004.00 for a standard consultation and treatment of two distinct areas of Patient A on 8 occasions between 21 December 2020 and 8 March 2021 (the 8 March 2021 Physical Health invoice);
6. an email sent on 7 April 2021 by Allianz to Patient A attaching a letter dated 7 April 2021 of Allianz to Patient A approving physiotherapy services by Mr Vo (the 7 April 2021 Allianz letter);
7. an email sent on 7 April 2021 by Allianz to Mr Vo attaching a copy of the 7 April 2021 Allianz letter;
8. an email sent on 3 May 2021 by Physical Health to Allianz attaching an AHRR for the period from 11 May 2021 to 22 July 2021 requesting 8 "2 Area" standard physiotherapy consultations and a case conference (AHRR2);
9. an email sent on 13 May 2021 by Physical Health to Allianz attaching invoice 306171131 dated 11 May 2021 for $1,074.35 for a standard consultation and treatment of two distinct areas of Patient A on 8 occasions between 15 March 2021 and 11 May 2021 and a case conference on 11 May 2021 (the 11 May 2021 Physical Health invoice);
10. a letter dated 1 June 2021 of Allianz to Patient A approving physiotherapy services by Mr Vo (the 1 June 2021 Allianz letter);
11. an email sent on 1 June 2021 by Allianz to Mr Vo attaching a copy of the 1 June 2021 Allianz letter;
but did not include any record of communications by Physical Health regarding the payment of the 8 March 2021 Physical Health invoice and the 11 May 2021 Physical Health invoice.
The evidentiary certificates
1. Each of the evidentiary certificates includes the 21 September 2021 Council conditions which relevantly provide:
"…
2. Not to consult, assess and/or treat female patients unless another attending female person is physically present at the premises
a. The attending female person is to be an adult and not a relative, friend, former or current client of the practitioner
…"
The witnesses
Patient A
1. The evidence of Patient A comprised the following:
1. the 22 June 2021 Patient A notes;
2. the 15 August 2021 Patient A complaint;
3. the 10 December 2021 Patient A statement;
4. the 10 March 2023 Patient A statement;
5. her oral evidence.
The 22 June 2021 Patient A notes
1. In the 22 June 2021 Patient A notes which she made at 8.50pm, Patient A set out a description of her consultation with the respondent on 22 June 2021, and the respondent's conduct towards her in general:
"Did cupping was worked on by Luke and atil until Everyone in the clinic left Luke came in to wash his hands and atil focused on my back saying we may need an X-ray as they discussed a lump on my spine area Luke said he's leaving and goodbye and said "have fun big fella" to atil After which atil locked the clinic door or and then came back to me. Had me on my Side working on the right side of my lower back and buttock. A few minutes after Luke left he said "I'm just gonna pull these down" and starts moving my undies down and he says without even stopping "is that okay" I respond hesitantly "yeeeesss?" Almost like a question he says "actually I'm just gonna take them off" and pulls them all the way off. "I'll turn the light off for your privacy" and comes back and works on my side/buttocks/pita form as on the side of my stomach. Then asks me to roll onto my back, And asks where my groin pain is and I reply "exactly where my labral tear is" meaning deep pain he hopefully Couldn't help. I say "my hamstrings just get tight I think" hoping he'll just work on them. He works in between my thigh and I act as if it's really ticklish she he stops. He keeps mentioning a ticklish she he stops. He keeps mentioning a syndrome horse riders get where they become quite numb in the groin and have sexual distinction and mentions multiple times that females don't respond to clitoral stimulation. Not able to reach orgasm and he keeps stumbling on the words, very awkwardly. Then goes to my Groin rubbing in circular motions and I say Not really painful consistently so he moves away. He acts as if we're nearly finished then slides his hand to the edge of my pubic bone circular motions and sits on the bed next to me. It is a little sore but then in silence he works his way around the pubic bone and when it's silent for a while he finally says 'l don't know where I'm touched I'm just going off Feel" and I say "well none of its sore" he keeps going around my pubic bone until He finally gets to around my Clitoris and I say 'none of This is painful" hinting to stop. And then he sort of rubs my clit a few times not saying anything or looking at me so I wait to see what he is doing then when it doesn't stop I lift my Leg up and push my Hand down and push his hand out of the way and he says "ah Kay" and then rubs my legs for a few seconds then says "I'll let you get up with the towel on and walk around see how you feel, with the towel on" I stand up and say "it feels fine" before im even up, walk a few steps and say "yep all good just think I get tight hamstrings" he says he'll leave and let me get changed. I do so come out and he's In the bathroom washing his hands and comes back into the clinic and gets his stuff to leave and I say "don't we need to make another appointment" and he puts his stuff down and books me in for two weeks. Walks me out to my car, hugs me, tells me I need a boyfriend to work on my body and I leave.
Throughout the session He consistently says I need to touch myself and even tries to take my hand and put it on my pubic bone to show me what to do aka massage the ropey texture around my public bone and I pull back and say no.
Not the first time, many times he's locked the doors and it's just been me and him with no undies in the dark. Sometimes with no towel on
Whenever he would be inappropriate he would ask about "how's your brother man" or "how are your parents"".
The 15 August 2021 Patient A complaint
1. In the 15 August 2021 Patient A complaint, Patient A relevantly provided the following summary of her complaint against the respondent:
"22/06/21 5.30pm – 7.15pm
This was the final time i visited the practice. For the past 7 months i had been receiving treatment for lower back pain and hip/groin pain from a labral tear. Dr Atil Singh and Luke (?) the other Physio worked on me. Until Luke entered the practice room and said he was finished up for the day and said goodbye to Dr Singh and I. Final words "Have fun big fella". I had already received cupping from Dr Singh so was sure the session was nearly finished as i knew the clinic was now empty/closed. He proceeded to ask me to roll over and started taking off my underwear saying he needed to work on the area. This was not unusual and even though i always was uncomfortable i thought maybe this was necessary for my treatment. However he would only do so when other practitioners had left building. This time he was making a lot of sexual innuendos and jokes and i was really uncomfortable. Including saying "you need to touch yourself more" and he physically took my hand and attempted to make me show him "show me how you touch yourself". I pulled my hand from his grasp. He was touching around my groin area and then my pubic bone until eventually he was pretty much leaning on me/the table and rubbing my vaginal area in circular motions. Feeling really uncomfortable i lay there not knowing what to say until It got to the point where he hadn't left the area and his intent to touch me inappropriately seemed too clear. I ended up physical pushing Dr Singh's hand off me and also pushing his body weight off so he almost looked a bit shocked and stood up. He seemed flustered and quickly muttered "I'll let you get changed". I swiftly did so and went to leaved (sic) the clinic, he had to unlock the front door for me to leave and he was so flustered he didn't even bring up a next meeting time/day. This is not the first time i have experienced this in this clinic, however this was the final straw that made me realise this wasn't right."
The 10 December 2021 Patient A statement
1. In the 10 December 2021 Patient A statement, Patient A gave the following evidence:
1. on 12 July 2016, she was involved in a horse-riding accident and as a result suffered a fractured pelvis, labral tear and damage to the ligaments in her hip (at [3]);
2. on 18 August 2016, a WorkSafe Victoria claim was submitted to Allianz as her injuries had been sustained during the course of her employment with George Osborne Racing as a full-time horse rider/trainer (at [3]);
3. on 22 February 2017, she underwent surgery at St Vincent's Private Hospital, East Melbourne for a hip arthroscopy, excision of cam lesion, pincer lesion and labral repair (at [4]);
4. in 2019, she commenced employment with Shane Rose Horse Training at Bimbadeen in New South Wales (at [5]);
5. on 19 May 2019, she suffered a left knee injury at work (at [7]);
6. on 20 May 2019, she underwent an x-ray of her left knee (at [7]);
7. on 2 December 2020, she consulted with Dr Pobbathi at the Camden HealthCare Centre for pain in her right hip (at [8]);
8. on 7 December 2020, she had a further consultation with Dr Pobbathi and provided him with her WorkCover information. He referred her to the respondent under WorkCover (at [8]);
9. on 7 December 2020, she had an initial appointment with the respondent who together with Mr Vo assessed her. Her initial appointments with the respondent and Mr Vo were scheduled at about 5.00pm-5.30pm for 30-minute sessions. The respondent treated her groin, adductors, hamstrings and lower back. Mr Vo treated her sciatic nerve and her hamstrings. Additionally, she received treatment on her lower back and hamstrings from Mr Nies, whom she believed was a massage therapist (at [9]);
10. on 14 December 2020, she underwent a CT of her right hip (at [10]);
11. on 22 February 2021, she underwent an MRI and CT of her right hip (at [11]);
12. on 1 March 2021, Dr Pobbathi referred her to Dr Leong (at [12]);
13. on 8 June 2021, she attended a consultation with Dr Leong, who recommended that she receive a cortisone injection for relief of her pain (at [13]);
14. on 8 June 2021, she attended a consultation with the respondent who advised against a cortisone injection (at [13]):
"13. … Following my consultation with Dr Leong I attended an appointment with Dr Singh on the same day. I told Dr Singh that Dr Leong had recommended that I get a cortisone injection. Dr Singh advised against it, stating that it could cause cartilage damage and degenerate my hip. He said that if my pain was manageable through physiotherapy alone that would be the best option. I did not go through with the cortisone injection as I trusted Dr Singh's advice and believed he had my best interests at heart."
1. on 7 March 2021, she sustained a further work-related injury to her right knee, being a subluxation of the right patella, while at a horse event in Canberra (at [14]);
2. on 2 May 2021, she relocated to Castlereagh. During one of her appointments with the respondent, he suggested that her appointments be moved to 5.45pm to allow for her now added travel time. When she told him that she could consult with a different practitioner who was closer to her home, he replied that he wanted to be the one treating her when she was at the Olympics (at [14]);
3. on 22 June 2021, she attended a consultation with the respondent (at [15]-[21]):
"15. My consultation on 22 June 2021 commenced with Luke at 5pm. I was in the middle of three consultation rooms, each room having a sink, a seat, a spare cupboard and the table. At the commencement of the consultation, I was wearing a gown (provided by the clinic) and my underwear. The gown simply went on like an apron in the front, with short sleeves, and tied at the back. The exact same gown was used in every session. At the start of every consultation, James always told me to leave my underwear and other clothing such as shorts on. No other member of staff ever told me to take all items of clothing off under the gown. Luke treated me for approximately 20 minutes, I could hear Dr Singh was with another patient next door whilst this was happening. When Dr Singh entered, Luke told him I was still having pain in my lower back and Dr Singh agreed to try cupping on me. He placed the cups on, and I was left for probably about another 30 minutes with these on. By the time Dr Singh returned to remove the cups, I could hear that all of the other patients had left the clinic. Luke returned to the room and he and Dr Singh discussed my back and stated that I may need an X-ray as he and Luke discussed a lump in my spine area. As Luke prepared to leave the clinic, he washed his hands in my treatment room and said to Dr Singh, 'Have fun big fella." Dr Singh laughed but did not make any reply. Luke said goodbye to me and left the room, I heard him exit the clinic. Dr Singh then also left the room and locked the door after Luke had left. I felt awkward and uncomfortable being alone in the clinic with Dr Singh. Knowing by now that it must be close to 6pm.
16. Dr Singh then commenced working on my lower back/side/buttocks/piriformis. Dr Singh commenced most sessions by working on my lower back. He then asked me to roll onto my back and he asked me where my groin pain was, I replied, "Exactly where my labral tear is." hoping that would confine his hands from my genital region. I said, "My hamstrings just get tight." I usually said this in hopes that he would just work on my hamstrings and avoid the groin area completely.
17. I was lying on the table face-up (supine). Dr Singh said he was going to pull my underwear down and he said, "Is that ok?" but as he asked me that he had already pulled my underwear down. I believe that my underwear was at my ankles when Dr Singh turned the light off, stating that it was for my privacy. The door was ajar so there was some ambient light entering the room, which allowed me to clearly see Dr Singh's face. This was not the first time that Dr Singh had removed my underwear. He had done it previously on about 5 occasions. If they had not been removed during the sessions, it was generally because in the beginning before I had got changed into the gown, he would tell me to take it all off. I was always uncomfortable when he did that, but I thought maybe it was necessary for my treatment. On the occasions when Dr Singh asked for my permission, it did not feel as though he was actually waiting for my answer. In all of my sessions I was never given a reason of why removing my underwear was crucial or even beneficial for my treatment.
18. Dr Singh worked on between my thighs and I pretended that it was really ticklish, and he stopped. He spoke about a syndrome that affects horse riders whereby they become numb in the groin area, don't respond to clitoral stimulation and are unable to reach orgasm. I felt that he was sexualising his comments. I am an experienced and professional horse rider of 17 years. I have never heard of any such "syndrome" or condition.
19. Dr Singh said to me, 'You need to be touching yourself' and he took my left hand with his right hand and directed my hand towards my groin. I pulled my hand back away from his grip. Dr Singh rubbed over my groin and I could see that he was gazing at my groin. At this stage my gown was pushed up and my body was exposed from the waist down. While working on me, Dr Singh would move the gown up and out of the way. On the occasions when a towel may have been used, he would commonly take it off the area and I would have to replace it to have some modesty. Dr Singh was pretty much leaning on me/the table and was rubbing my vaginal area in circular motions. This went on for minutes, possibly 5, all in silence. I believe he was leaning on his left arm and using his right hand on me. I felt uncomfortable and I was unsure what to say so I said that it wasn't really painful so he would move away.
20. Dr Singh said, "I don't know where I'm touching, I'm just going off feel." I said, "Well none of it's sore. He moved his hand to around my clitoris and I said, "None of this is painful", hinting for him to stop. He then continued his circular motions until I had absolutely no doubt, he was massaging my clitoris with intention. When he had not removed his hand, his intent to touch me inappropriately seemed clear. I physically pushed Dr Singh's hand and his body weight off me. He appeared flustered and quickly muttered, "Okay." He then rubbed my legs for a few seconds and said, "I'll let you get up with the towel on and walk around. See how you feel with the towel on." I got up with the towel on and said, "It feels fine... yep all good, just think I get tight hamstrings," He said, "I'll leave and let you get changed." I swiftly did so, and I noticed that when I came out that Dr Singh was washing his hands. Still appearing quite flustered, he was collecting his belongings as if getting ready to close the clinic and leave for the day. He walked to the door and I said, Don't we need to make another appointment?" He then returned back to the desk, put his belonging down and made a further appointment for me In two weeks' time. He then had to unlock the front door for me to leave and walked me to my car. He hugged me, told
me that I need a boyfriend so that they could work on my own body, and to touch myself before I got into my car and begun my commute home.
21. I can't recall Dr Singh using Deep Heat ointment during this consultation; however, he may have used coconut oil. He has used both Deep Heat ointment and coconut oil in previous consultations with me."
1. at 7:32pm on 22 June 2021, she sent a text message to Patient A's sister-in-law concerning "my physio", which was a reference to the respondent (the 22 June 2021 Patient A text) (at [22] and annex A):
"Hey hope that the study is going well this is a bit random but I'm not sure if my physio is a bit of a creep or not"
1. at approximately 7.35pm on 22 June 2021, Patient A's sister-in-law called her mobile phone and they talked for at least an hour and a half about the respondent's conduct (at [23]);
2. at 8.50pm on 22 June 2021, she made the 22 June 2021 Patient A notes (at [24] and annex B):
3. she described the other conduct of the respondent (at [25]-[29]):
"25. When my appointments with Dr Singh concluded after the practice closing time of 6pm, he would on almost every occasion insist on walking me back to my car. There was no necessity for him to do that because I invariably was able to get street parking on John Street outside the clinic. He would often say to me, "See you later man" and hug me goodbye. I was shocked that he would hug me, and I had a hard time telling him to stop doing it.
26. Dr Singh often made other comments to me such as: "You need a boyfriend, so they can touch you instead of me", "Have you found a boyfriend yet?", "How's your love life man?" and "Are you touching yourself?
27. Dr Singh once told me that he had seen my lnstagram profile. He once offered to help me with my move to a new house and to assist with putting up fencing for horses. I declined his offers.
28. I do not have any knowledge of any monies being owed to Dr Singh or the Camden HealthCare Centre for my treatment by Dr Singh and other staff there. I never discussed with Dr Singh about submitting a WorkCover claim for my injury in Sydney on 7 March 2021. Dr Singh never said anything to me in relation to continuing my treatment with him as a private patient, rather than under WorkCover.
29. I did not consent for Dr Singh to touch me in my vaginal/clitoris area. I have not returned to Dr Singh's clinic since 22 June 2021."
The 10 March 2023 Patient A statement
1. In the 10 March 2023 Patient A statement, Patient A gave the following evidence:
1. as to removal of underwear (at [4]-[12]):
"4. Typically, our sessions would begin with him working on my main complaint which was my sciatic and back pain although they always progressed to me laying on my back and him working on my groin area. I did believe this was how any normal practitioner would treat me as I did have groin pain but it did make me feel uncomfortable.
5. I often saw Dr Singh after hours when no other staff were present.
6. At the start of each session, I would get changed into a gown.
7. At some sessions with Dr Singh, he directed me to remove all clothing including my bra and underwear at the beginning of each session.
8. Some sessions, however, I would feel hesitant about doing so and I would leave my bra and underwear on under the gown I was wearing.
9. At sessions where I decided to leave my underwear on, Dr Singh would sometimes ask me to remove them.
10. At some sessions where I decided to leave my underwear on, Dr Singh would ask me briefly if he could take my underwear off himself and he would do so. This happened a handful of times.
11. At times when I had no underwear on, Dr Singh would sometimes provide me with a towel for modesty although he would often keep moving the towel up above my vagina so it was totally exposed and did not provide any modesty for me. I would try to adjust the towel constantly and Dr Singh would continuously slide it off.
12. My underwear was always left on when I was seen by other practitioners at the clinic."
1. as to inappropriate touching (at [13]-[19]):
"13. From almost the first session with Dr Singh, Dr Singh began massaging my pubic bone as he believed I had granulated tissue that was possibly contributing to my groin pain. He would extensively work on the area using coconut oil and advise me to do the same at home.
14. Dr Singh would make comments to me such as, "have you been touching yourself when I would come for appointments. I was always uncomfortable with this but would constantly remind myself that he was a professional and it must be necessary for my pain.
15. It really wasn't until the very last session with Dr Singh that I felt he really crossed a line and was sexually motivated in how he was touching me.
16. At the session on 22 June 2021, I got changed into a gown. After Luke had finished treating me Dr Singh took over my care. Dr Singh asked me if he could take off my underwear and then he straight away took them off, without giving me an opportunity to respond. Dr Singh sat on the edge of the table looking directly at my uncovered groin as he rubbed the pubic bone in circular motions edging towards my clitoris and labia. He was extremely awkward during this session, fumbling over all of his words. He started talking about a syndrome horse riders get where they can become quite numb in the groin area and mentioned multiple times that these females don't respond to clitoral stimulation and are not able to reach orgasm. I lay there silently unable to move or speak.
17. I was silent when he stated that he didn't know where exactly he was touching me as he couldn't see anything, and that he was just going off feel. I knew this was not true as Dr Singh could see me as although the lights were off the door was ajar and light was filtering in. From where I was laying, I could clearly see his facial features and his eyes were glaring straight at my groin.
18. At this moment I was lying flat on my back on the table and Dr Singh was on my left. He was sitting on the edge of the table and one of his elbows was sort of leaning on my thigh supporting his weight. I became frustrated and said that I had no pain in the area, hoping he would finish. He continued to directly rub my clitoris for a few moments until I couldn't take it anymore. I lifted one of my knees up so my foot was on the table, pushing the weight of his body off me as he leant onto my thigh. I also pushed his hand off me with my hand. He awkwardly said, "Ah okay" and quickly rubbed my thigh for a few seconds before saying to get up with the towel around me and have a walk around and see how I feel. I told him I felt fine before I even stood up.
19. This last session really was the worst one. I felt like Dr Singh was not working on me professionally and was simply rubbing my clitoris."
1. as to turning off the lights (at [20]-[23]):
"20. At sessions where Dr Singh told me to remove my underwear or where he did it himself, he would ask me if I wanted the lights turned off if I felt uncomfortable being naked.
21. I was always uncomfortable with the idea of taking my underwear off and so I always agreed for them to be switched off if he suggested it.
22. He left the door open slightly so there was still some light in the room.
23. This happened on a number of occasions, about 5."
The oral evidence of Patient A
1. In cross-examination, Patient A gave the following evidence:
1. she agreed that the first appointment she had was at 11.15 in the morning, and then said that she did not recall (Tcpt, 26 June 2023, p 22(8)-(29));
2. she said that the length of the appointments varied. She said they were for one hour each and then said that some of the sessions were shorter than 60 minutes (Tcpt, 26 June 2023, p 22(29)-(48));
3. she maintained that both Mr Vo and the respondent treated her hamstrings (Tcpt, 26 June 2023, p 23(8)-(15));
4. she was told to go into the treatment room, take off her outer clothes and put on a gown. Then she said that she was in full clothes and she actually wasn't gowned since it was a quick consult-type appointment (Tcpt, 26 June 2023, p 24(28)-(38));
5. she said that she never ever saw Dr Romero (Tcpt, 26 June 2023, pp 24(47)-25(6));
6. she did not receive treatment on her lower back and hamstrings from Mr Nies on 7 December 2020 and this statement should not have been included in the 10 December 2021 Patient A statement at [9] (Tcpt, 26 June 2023, pp 27(45)-28(10));
7. nearly every session where she was treated in the pelvic region she was naked, and this happened "at least five times before" 13 April 2021 (Tcpt, 26 June 2023, pp 29(38)-30(10));
8. she denied that that her last appointment at 5.45pm was on 11 May 2021 (Tcpt, 26 June 2023, p 31(13)-(14)). She also denied that on 22 June 2021 her appointment was at 5.00pm and she was half an hour late (Tcpt, 26 June 2023, p 31(28)-(29));
9. she said that the time of the appointment on 22 June 2021 was 5.00pm (Tcpt, 26 June 2023, p 36(32)-(34));
10. she denied that her treatment on 22 June 2021 started with the respondent applying cupping. She said the 22 June 2021 Patient A notes were her personal notes not her chronological notes (Tcpt, 26 June 2023, pp 36(42)-37(28));
11. she said that she was in the middle of three consultation rooms, and denied she was in the end room. She said the room had a sink and agreed that if the only room with a sink was at the end then saying that she was in the middle room was a mistake (Tcpt, 26 June 2023, p 37(32)-(48));
12. she said that she was wearing a gown tied at the back. The gown was closed in the back, and she did not recall whether it was closed with Velcro. She agreed that she had worn a gown on a number of occasions (Tcpt, 26 June 2023, p 38(1)-(29));
13. she said that she had trusted the respondent which is why she had not asked Mr Vo questions about him asking her to remove her underwear. She said that she was uncomfortable with the respondent removing her underwear, and was not sure why she did not ask some questions about it (Tcpt, 26 June 2023, p 39(28)-(35));
14. she said that she saw the respondent unlock the door to reception and had assumed that he had earlier locked the door to reception when he left the room (Tcpt, 26 June 2023, pp 40(1)-(23); 64(14)-(19));
15. she agreed that when she was being treated by the respondent she heard the other patient who was there leaving. She believed Mr Nies said goodbye to him and then left after that (Tcpt, 26 June 2023, pp 41(14)-42(5));
16. she denied that she told the respondent that she had pain in the hip and groin but said that she had lower back pain. She did not have groin pain or hip pain (Tcpt, 26 June 2023, pp 42(25)-43(15); 44(30)-(33)). She subsequently said the truth was that she was suffering groin pain on 22 June 2021 (Tcpt, 27 June 2023, p 3(35)-(36));
17. she denied that the respondent had used the trigger point tool pictured at page 184 of exhibit A1 (Tcpt, 26 June 2023, pp 43(37)-44(14); 46(28)-(31));
18. she said that she said to the respondent "My hamstrings just get tight." The respondent worked on her hamstrings (Tcpt, 26 June 2023, p 45(10)-(46));
19. as to the 10 March 2023 Patient A statement at [7], this happened at "at least five" sessions. As to the 10 March 2023 Patient A statement at [9], this happened at "at least five" sessions. As to the 10 March 2023 Patient A statement at [10], this happened at "at least two or three" sessions (Tcpt, 26 June 2023, pp 50(23)-52(40));
20. when questioned about her evidence in the 10 March 2023 Patient A statement at [16], she said that the respondent did not straightaway take her underwear off, but pulled her underwear down to her ankles (Tcpt, 26 June 2023, pp 54(31)-55(29); 56(27)-57(5));
21. she said that the door "was open quite a bit" so it was allowing some light in from the reception area (Tcpt, 26 June 2023, p 59(35)-(38));
22. she said that she did not ask the respondent to stop when he was rubbing her vaginal area in circular motions for possibly five minutes all in silence because "I couldn't speak" (Tcpt, 26 June 2023, pp 59(41)-60(2));
23. when asked why she did not mention in her previous statement that she lifted one of her knees up so her foot was on the table pushing the weight of the respondent's body off her as he leant into her thigh as stated in the 10 March 2023 Patient A statement at [18], she said "I'm not sure" (Tcpt, 26 June 2023, p 61(5)-(36));
24. she said that she was not sure how long the respondent was rubbing her vagina area and massaging her clitoris (Tcpt, 26 June 2023, p 61(38)-(40));
25. she agreed that the respondent and all the other practitioners at the clinic were telling her that she needed to massage the area she was being treated on between treatments (Tcpt, 26 June 2023, p 62(7)-(9));
26. she did not know if there were people still working upstairs when she saw the respondent after hours (Tcpt, 26 June 2023, p 65(40)-(44));
27. she said the lights were turned off on about three occasions. Then she said some of the sessions where she was naked the lights were still on. There were only a couple of times where the respondent said "would you like the lights off and they were generally just the two or three times that there was no one else in the clinic." (Tcpt, 26 June 2023, pp 65(46)-66(47));
28. she denied that she had seen the 13 April 2021 Patient A progress report. She did not recall whether she saw the respondent at the end of the treatment on 13 April 2021 and he went over the report with her. She agreed that it was her signature on it (Tcpt, 26 June 2023, pp 68(40)-69(34));
29. she did not recall receiving cold compression on her right knee on 8 and 15 March and 6 April 2021 (Tcpt, 26 June 2023, p 70(11)-(33));
30. she agreed that the statement in the 19 February 2022 Patient A's sister-in-law statement that she was always the last patient at the clinic was untrue (Tcpt, 27 June 2023, p 5(1)-(8));
31. she left through the door in the photograph on page 198 of exhibit R1 (which is the door on the eastern side of the ground floor of the building) (Tcpt, 27 June 2023, pp 19(43)-20(43)).
1. In answer to questions by the Tribunal, Patient A gave the following evidence:
1. when asked what she meant by "vaginal area" in the 10 December 2021 Patient A statement at [19], she said, "It's just the clitoris area. It wasn't anywhere else." and that it was not between her legs (Tcpt, 27 June 2023, pp 8(46)-9(6));
2. when asked what she meant by "vaginal area" in the 10 December 2021 Patient A statement at [20], she said, "Around the clitoris, not on it." and that it was right at the front of the body and not between her legs (Tcpt, 27 June 2023, p 10(6)-(13));
3. when asked in relation to "he would keep moving the towel up above my vagina so it was totally exposed" in the 10 March 2023 Patient A statement at [11] what she was saying is exposed in that, she said, "So it would be pushed up past my hip bones, so the whole area that would be covered by underwear was exposed." and not where your vagina technically is (Tcpt, 27 June 2023, p 10(22)-(29));
4. the 22 June 2021 Patient A notes were out of chronological order, and a bit scattered (Tcpt, 27 June 2023, p 11(32)-(41)).
1. In re-examination, Patient A gave the following evidence:
1. she did not remember signing the 13 April 2021 Patient A progress report or seeing it before (Tcpt, 27 June 2023, p 13(20)-(27));
2. she never left through the door in the photograph on page 112 of exhibit R1 (which is the door on the northern side of the ground floor of the building) (Tcpt, 27 June 2023, p 22(1)-(7));
3. as to the 10 March 2023 Patient A statement at [20], she described the belongings of the respondent, "It was just small. It was, like, keys and a phone. Nothing big." (Tcpt, 27 June 2023, p 22(9)-(11)).
Patient A's sister-in-law
1. The evidence of Patient A's sister-in-law comprised the following:
1. the 19 February 2022 Patient A's sister-in-law statement;
2. her oral evidence.
The 19 February 2022 Patient A's sister-in-law statement
1. In the 19 February 2022 Patient A's sister-in-law statement, Patient A's sister-in-law gave evidence that between 1 and 17 December 2021 she prepared a statement of her conversation with Patient A on 22 June 2021 (the 22 June 2021 Patient A/Patient A's sister-in-law conversation notes) (at [3]-[5] and annex A):
"Hey I hope study is going well this is a bit random but I'm not sure if my physio is a bit of a creep or not" sent with Siri voice to text
I called her back immediately and could hear that she was driving in her car and I was on bluetooth/loud speaker
I ask 'are you okay?"
Patient A replies with inaudible words and I can hear she's crying
She tells me that she thinks her physiotherapist has been "creepy"
I say "what do you mean?" and "what has been happening?"
She says "I've been having to remove my underwear in his appointments and he touches me down there"
"It's not where my hip injury is located"
"Is that normal?" (I was previously a physiotherapy student)
I say "no, that is not normal. how long has this been going on?". I am also crying at this point.
She says "it's been like this for a few months" and she repeats all throughout the conversation that 'i feel dirty and so ashamed and embarrassed that this has happened to me"
I say "do not be embarrassed or ashamed because this person is a monster and it is not your fault"
I ask for more details about the events
She says "it was fine at the beginning and he was helpful", "then it got creepier and I didn't know who to ask"
She says "I'm always the last patient at the clinic and Atil's colleagues all go home when I get there. When we finish, we always leave through the backdoor because the clinic is locked up. The worst part is that he always hugs me before we go, like we're friends"
I ask "do you think the people in his workplace know what he's doing?"
She says "yes"
I make a remark about the possibility of it happening to other patients
She later adds that "He always asks about my family, you, [name omitted],when he's doing it too [referring to the sexual abuse]. It's so creepy"
I tell her that "I am angry and I am so sorry you have had to go through this"
She says "I tried to talk to [name omitted] (Patient A's mother) about it once but couldn't", "I've been so close to telling you over the past few months", "l felt so trapped and keep going back for my hip pain"
I ask "do you want to go to the police?" and offer to come with her
She says "no, I just want to get away from all of this"
I ask "do you want to tell your GP, the person who referred you to the physio?"
She says "I can't ever go back to that GP, they're in the same building" "but if I go somewhere else, I might need to get my file"
I say "let me know if you want me and [name omitted] to come with you"
I also add that "I know you don't want to think about it now but it might be a good idea to journal everything that has happened in case you want to go to the police in the future"
We move on to talk about organising a catch up soon and end the call."
The oral evidence of Ms Patient A's sister-in-law
1. Patient A's sister-in-law gave the following oral evidence:
1. Patient A was crying in the initial conversation. It was very emotional. It stayed that way, up until they said goodbye (Tcpt, 27 June 2023, pp 26(42)-27(3));
2. the length of the telephone call on 22 June 2021 was approximately five, 10 minutes (Tcpt, 27 June 2023, p 27(29)-(31)).
Dr Uren
1. The evidence of Dr Uren comprised the 26 May 2022 Uren report.
The 26 May 2022 Uren report
1. In the 26 May 2022 Uren report, Dr Uren, who is a chiropractor, provided opinions in respect of 17 questions grouped under five issues and relevantly expressed the following opinions:
1. as to the issue of the touching by the respondent of the vagina of Patient A during the consultation on 22 June 2021, then assuming her version of events:
1. she referred to the following provisions of the Chiropractic Board of Australia - Code of Conduct published in March 2014 (the code of conduct):
1. clause 9.2 entitled "Professional boundaries":
"Professional boundaries allow a practitioner and a patient to engage safely in a therapeutic relationship.
Professional boundaries refers to the clear separation that should exist between a chiropractor's professional conduct that is aimed at meeting the health needs of patients, and a chiropractor's own personal views, feelings and relationships that are not relevant to the therapeutic relationship.
Professional boundaries are integral to a good chiropractor-patient relationship. They promote good care for patients and protect both parties. Good practice involves:
a) maintaining professional boundaries so that patients are not exploited financially, physically, emotionally, or sexually
…"
1. clause 3.5 entitled "Informed consent'":
"…
Good practice involves:
a) providing information to patients in a way they can understand before asking for their consent
…"
1. rubbing the vaginal area significantly falls below the standard of care expected of a chiropractor in good standing and would be a significant breach of the code of conduct;
2. removing underwear and rubbing the vaginal area was not clinically indicated and fall significantly below expected conduct as set out in clause 9.2(a) of the code of conduct;
3. adequate informed consent was not given by Patient A to the removal of her underwear required by clause 3.5(a) of the code of conduct and falls significantly below the conduct expected of a practitioner of equivalent education and training;
4. rubbing the vaginal area and clitoris is a serious departure from acceptable care as expressed in the code of conduct;
5. adequate privacy and draping was not provided for modesty and falls below the standard of care reasonably expected from a chiropractor;
6. the instruction "you need to be touching yourself" is inappropriate and below standard of care expected from a practitioner of an equivalent level of education and experience;
1. as to the issue of the removal of the underwear of Patient A during consultations by the respondent or by her at his request, then assuming her version of events removing patients' underwear on any occasion falls significantly below the conduct expected of a practitioner of equivalent education and training;
2. as to the issue of the comments made to Patient A by the respondent during consultations and his conduct following consultations, then assuming her version of events:
1. his comment to her that he wanted "to be the one treating her when she was at the Olympics" after she told him that she could consult with a practitioner who was closer to her home is below, but not significantly below, the standard reasonably expected of a practitioner of equivalent training and experience;
2. hugging her and telling her that she needed a boyfriend so that they could work on her body and to touch herself before she got into her car and began the commute home would be considered significantly below conduct expected of peers of good standing;
3. his comments "You need a boyfriend, so they can touch you instead of me", "Have you found a boyfriend yet?", "How's your love life man?" and "Are you touching yourself?", fall significantly below the conduct expected of a practitioner of equivalent education and training. There appears to be no clinical significance to these questions;
4. his comments that he had seen her Instagram profile, his offer to help her move to a new house and his offer to assist her with putting up fencing for horses is below, but not significantly below, the standard reasonably expected of a practitioner of equivalent training and experience;
5. his description of the syndrome affecting horseriders was insensitive and not how peers of good standing would have presented this information, and so falls below the standard reasonably expected of a practitioner of equivalent level of training and experience. Due to the described condition "pudendal neuralgia" being a diagnosable condition, then his description was not significantly below standard taking into consideration that it may be relevant information for a patient that rides horses.
The evidence of the respondent
The documentary evidence
1. The documentary evidence of the respondent included:
1. several coloured photographs of the ground floor and exterior of Camden Healthcare Centre, and the premises of Physical Health;
2. footage of the entrance door to the premises of Physical Health;
3. several coloured photographs of the gown used by patients when receiving treatment at Physical Health;
4. references to hip/groin physical therapy techniques.
The witnesses
The respondent
1. The evidence of the respondent comprised the following:
1. the 27 August 2021 Singh response;
2. the 17 September 2021 oral evidence;
3. the 24 July 2022 Singh response;
4. the 28 April 2023 Singh affidavit;
5. the 11 May 2023 Singh affidavit;
6. his oral evidence.
The 27 August 2021 Singh response
1. In the 27 August 2021 Singh response, the respondent relevantly provided the following information to the applicant:
1. his qualifications, employment history and details in relation to Camden Healthcare Centre including staff of Physical health
2. a section entitled "Patient Injury History";
3. a section entitled "Patient Medical Care Chronology" in respect of Patient A in which he provided his recollection and an extract of the clinical notes of each attendance of Patient A (the Patient A Physical Health clinical records) and referred to communications with Patient A and her insurer and staff of Physical Health;
4. a section entitled "Specific complainant's comments and my responses";
5. a section entitled "General and overall response to complainant's comments".
1. In the section entitled "Patient Injury History", the respondent set out the following information:
"Work related Incident 1:
DOI:12/07/2016
MOI: Horse riding accident (fractured pelvis and labral tear) at work in Victoria
Surgery: 22/02/2017 Right Hip arthroscopy and labral repair
Work Related Injury: Allianz Claim number 09160010338
Condition under Treatment: Right Hip/Groin, lower back pain/dysfunction
Start of Treatment Date: 07/12/2020
Work related Incident 2:
DOI: 07/03/2021
MOI: whist walking horse's got tripped/trapped fell on side dislocated R knee
Work Related Injury: At horse show, working in Sydney
Conditions Under Treatment: R Knee pain/instability, R/L hip/groin pain, lower back pain
Start of Treatment Date: 08/03/2021"
1. In the section entitled "Patient Medical Care Chronology", the respondent provided the following account of the attendance of Patient A on 7 December 2020:
"Initial appointment - referred by Dr Pobbathi for Acute on Chronic R Hip/Groin, Lower Back Pain, post horse riding injury after falling of a horse on 12/07/20 16 and surgery for fractured pelvis and right labral tear.
Mr James Vo (Physiotherapist) and myself assessed the patient as, I have been mentoring Mr Vo regarding diagnosis and treatment protocols for treating complex conditions, as he is a junior physiotherapist. The patient had Monday's off work and was booked with Mr Vo as he was the primary treatment provider and services provider under SIRA. Complex post-surgery minimum 2 distinct region of pain and dysfunction under SIRA allocated fees charged $125.50 minimum treatment time at our clinic is 60 minutes."
1. In the section entitled "Patient Medical Care Chronology", the respondent:
1. provided the following recollection of the attendance of Patient A on 30 March 2021:
"Recollection: The patient rebooked future consults with myself, as she preferred my treatment and found it effective in assisting her pain and functionality. Patient attended appointment at 5.00pm-5.15pm , patient was in a quite a lot of discomfort limping on right side change in gait and swollen knee. I asked her about the incident and read Mr Vo's notes. We placed patient on the game Ready Ice compression, and advised her to get some scans. I advised patient that she would need to fill in incident report as this was a new claim and to see Dr Pobbathi after us. Post treatment we sent her up to see Dr Pobbathi."
1. extracted the entry for 30 March 2021 which relevantly provided:
"…
Advised to report this incident to work, due to ongoing condition of knee and may require further investigation and treatment
…"
1. In the section entitled "Patient Medical Care Chronology", the respondent provided the following recollection of the attendance of Patient A on 6 April 2021:
"Recollection: Patient attended appointment at 5.30pm-5.45pm (last patient) arrived later than Mr Wilson, …"
1. In the section entitled "Patient Medical Care Chronology", the respondent provided the following recollection of the attendance of Patient A on 22 June 2021:
"Complaint allegation: (AHRR New Work Cover Visit 8, Last visit until new AHRR needs to be submitted and approved by Workcover)
On the Tuesday 22nd of June 2021, I arrived at the clinic at 9am. Work was commenced at 9.15am. The following day I had already arranged a holiday trip to the Hunter Valley with my wife for 4 days. As a result, the Tuesday 22nd was an extraordinarily busy day because I had tried cramming the rest of the weeks work to the Monday and the Tuesday.
From approximately 3.30pm onwards, that same day, Mr Nies (Chiro assistant) and I were running behind schedule by 45-60mins. At 5pm the patient was triple booked in with two another patients at the same time. The patient arrived after the two other patients and she was treated last because of this.
At approximately 5.45pm, I apologised to the patient for running late.
As I had done for all previous patients before here even though the patient was running late for her 5pm appointment time.
Between 5.45pm and 6pm the patient entered the treatment room number 3, and proceeded to dress into treatment gown. I told her since we are running late, whilst you are waiting for Mr Nies, would you like to start with the cupping treatment now. She said "yes", I did this, and then left the room to attend to other matters.
About 30-45mm had past, I knocked on the door to enter and saw Mr Nies performing soft tissue treatment to the low back area lying on the stomach as Mr Nies was finishing up.
Mr Nies then left the room, to take payment from other customers. I asked the patient to turn over, then placed the towel over her, then another towel over the leg. I asked her how she is feeling, she said her hip and groin area was very sore on both sides.
I did some orthopaedic testing on patients distractions (gapping ASIS), compression (side lying), Gaenslens (side lying), Side lying sij right/left mobs sided adjustment and t/l junction supine.
Thomas test (hip tightness) + iliopsoas and rec ferrnol right. Pat Fab + bilateral right was worse as per norm) followed by AROM and limitations.
After testing I started with myofascial release technique then retested until gains were made.
I got her to place her right hand (Attached and marked "Annexure F") to cup her groin area as per regular procedure and told her to tap out with her free hand or make verbal communication if the pressure was too hard.
I started to treat her right adductor/groin region with coconut oil and deep heat extra strength which is our standard treatment. Then Mr Nies came in to wash his hands in the basin which is located in the same room. The patient had the gown on, she had her undergarments and she also had two towels, one covering her belly and upper thigh and the other covering her leg.
I had started treating the patient around 6:30pm, I know this because Mr Nies always invoices for his hours based on the last patient he has treated. Mr Nies then said goodbye and he waved to the both of us. Before leaving Mr Nies said "have fun big man" this was in reference to my 4 day trip away.
I then started to do right hip mobilisations, which involves her treated hip flexed at 90deg and I was standing to her side and leaning over her knee whilst she was laying on her back. As I mobilised her hip, at certain points she found it painful and tapped my hand, which was an indication of gentler pressure.
At no point did the patient inform me that she felt uncomfortable or wanted me to stop the treatment as we have done this procedure multiple times with her and many other patients. I asked her if she had been complaint with her exercises and self-management including foam roller exercises, massaging/trigger balls for the lower back, hip and groin/adductors where the discomfort is coming from. She indicated to me she didn't have the time due to moving houses and changing jobs. I replied, you need to massage that area more frequently between visits. The more that you do at home, the less we have to do here so that we can be progressing forwards.
Then I asked her to bring her knee to her chest and straighten in a cycling motion as I released her hip flexors, where my fingers were pushing on psoas major muscle located above the anterior superior iliac spine. At all times she was draped. I said to her that I have not done a new AHRR under my name, as if I did I would have to include the knee dislocation incident. The patient said not to mention anything as at first as she did not want to lose her employment, since she relocated from Victoria for this job. I said to her that now she has the new job, can she please either let work cover Victoria know or she will have to file a new claim.
As I advised the patient that if work cover investigate her claim, she will be liable for all costs, which is why I have not banked any money received from her work cover in excess of $3,000. I then started treating her left abductor and hip flexor/groin region as she cupped her hand with her left. After a few seconds of silence, she pushed my hand and said that "the treatment should not be about the money", but about improving her condition. I said to her if this was only about the money, we would not be treating her unpaid for so long. I said to her that I care about her wellbeing, as initially when her claim was rejected, I called Dr Pobbathi and her case manager to review it, which she had thanked me numerous times for this.
I was shocked and upset that the patient that I had gone out of our way for, and researched sports hip/knee surgeons for referral, now is calling me greedy. I asked her to get changed, and said to her that please let me know before her next visit, if she wishes to come as a private patient and pay us our outstanding balance or process a new/updated work cover claim. I then booked her in for an appointment on the 6 of July at 5PM then said to the patient that I'm happy for you to pay us our outstanding balance and not go thought work cover. I will leave this up to you to decide and let us know.
As I walked outside my reception door, I released the door wedge that keeps the door open to avoid anyone from entering the reception or treatment whist the patient was getting dressed. I went to wash my hands in the rest room located outside the reception door as the patient was getting changed in the room with the basin at the time. As the patient came out she looked upset.
I reconfirmed with the patient regarding her next appointment date and time, she agreed to this (she subsequently cancelled this appointment on Sunday the 4th of July at 4.41pm) Attached and marked "Annexure G"
I already had my keys in my hand to lock the front door (Attached and marked "Annexure H"). Being inside a medical centre Camden Healthcare Centre, all existing doors can be opened from the inside for fire safety reasons. I existed the front door with the patient as she parked on [street name omitted], I walked her up to the path as I had done on previous occasions. We then went our separate ways."
1. In the section entitled "Specific complainant's comments and my responses", the respondent provided the following specific responses to the complaint:
"Patient stated:
"I had already received cupping from Dr Singh. So was sure that the session was nearly finished as I knew the clinic was now empty/closed".
Response:
This patient was a complex 2 region patient:
Region of treatment:
1: Lower back/SIJ
2: Bilateral Groin/ Hip
3: Right Knee
Mr Nies was treating her for her lower back area. This sessions normally takes 20-45mm. I was treating her for her hip/ groin region this usually takes approx. 45-60mm.
On this day because we were so busy and running late, I initiated "cupping" (suction cup therapy) (Attached and marked "Annexure F"), on her lower back to assist Mr Nies and save time whilst Mr Nies was with another patient. It is incorrect to say that the suction cup therapy is suggesting that the two treatment sessions was nearly finished. My part of the treatment session was yet to commence.
The clinic is inside a medical centre with over 20 staff and over 50 GP patient's our treatment room doors and our reception doors are open so the clinic is never empty/closed. Our clinic being inside a medical centre is always occupied by staff, the last reception staff once a thorough check to ensure no patients are left behind will then activate the alarm system.
The patient had always requested to be our last patient as she was on the 06th 13th, 20th April and 04th and 11th of May. After the 11th of May, as those appointments were commencing closer to 6PM and we informed her by staying back that late inconvenienced the staff and myself as we commenced work at 8:45am and it's such a long day. The patient continues to persist being the last patient and from then onwards, she was advised that her appointment was going to be scheduled no later than 5-5:15PM.
Patient Stated:
"that this was not unusual and even though I was always uncomfortable, I thought this was necessary for my treatment".
Response:
The patient is stating that when I massage the hip/groin area that it was regular or not unusual that she would be asked to take off the underwear by me, this is not correct. The practice always adopted the following; the patient will always be in the following attire. Treatment gown, patients own clothing, often only undergarment, further the patient will generally be on her back and she will be covered with towels (covering her stomach and upper thighs and another towel covering her leg), as previously stated in my letter. At no time this patient or any other patient took off their underwear. There is no need to work on the treated area without any clothing (as shown below and attached and marked "Annexure J").
There were several sessions with the patient where I received her consent for Mr Vo, Miss Romero and Dr Romero (who I mentored) to be present at alternative times whilst I worked on the patient. The patient has always been treated by various practitioners on each visit to the clinic, never once had she mentioned that she was uncomfortable with any treatment. She continued to rebook with me each time, always requesting to be the last patient or attending her appointments late.
Patient stated:
I said "you need to touch yourself more"
Response:
Please see clinical notes where that on each consultation the patient was advised to do home based rehabilitation which included touching/massaging the treated area. I advised the patient it would be beneficial for her to touch the region of pain as demonstrated to her at her visits as part of the trigger point therapy. It was said in a matter of fact manner and there was nothing inappropriate in it.
In relation to the 22nd of June, as indicated above, I asked her if she had been compliant with her exercises and self-management including foam roller exercises, massaging/trigger balls for the lower back, hip and groin/adductors where the discomfort is coming from. She indicated to me she didn't have the time due to moving houses and changing jobs. I replied, you need to massage that area more frequently between visits. The more that you do at home, the less we have to do here so that we can be progressing forwards.
Patient stated:
that "he physically took my hand and attempted to make me show him"" show me how you touch yourself'
Response:
I did not take hold her hand and attempt to show her how to touch herself. I advised her that the way I am doing the treatment, she should also replicate it the best as she could at home (please see clinical notes for all consultations).
During my treatment to her groin region, her hands were forming a cupping shield around her groin, she was draped with gowns and covered with towels, and one hand would only move away if she needed to notify me about the pressure being too strong. (Attached and marked "Annexure I").
Patient stated:
"I ended up physically pushing Dr Singhs hand off me, and pushing his body weight off'
Response:
There are two parts to this allegation. Dealing with the first, the patient did take hold of my hand and push it away, but it is in the circumstances as described earlier in my report, namely, when I raised the importance of her advising her insurance company/workcover and she got upset and said my treatment of her was based solely on money.
The second allegation raised of my body being on top of her, at no stage was any of my body on top of her, the only contact I had with her during this process of groin treatment was in regards to my hands massaging as per chiropractic protocol and guidelines.
At all times, I acted professionally within the rules and codes of conduct as a Chiropractor practicing in Australia.
Patient stated:
"he was pretty much leaning on me the table and rubbing my vaginal area"
Response:
Please refer to above response. I did not lean on her. I did not rub her vaginal area.
In the treatment of the hip and groin area, the use of deep heat extra strength cream is always used. The active ingredient in the cream, menthol 80mg and Methyl Salicylate 300mg, if used in the vaginal area this would cause a burning sensation and she would be screaming and likely physically get off the table. The purpose of the cream in soft tissue massaging is to increase blood flow and assist with healing. I did not encroach upon the vaginal area as there is a physical barrier created by the cupping method of the patients hand (attached and marked "Annexure I")
Patient stated:
"He was so flustered, he didn't even bring up a next meeting time/day."
Response:
I raised with her on the 22nd of June, on two occasions, the time and date of her next appointment was scheduled for the 6' of July at 5.l5pm, in which she confirmed (attached and marked "Annexure K")
Patient stated:
". . . .he had to unlock the front door for me to leave"
Response:
Please see attached and marked "Annexure H". This is the front reception door referred to by the patient. As you can see by the footage this door cannot be locked from the inside. Being inside a medical centre Camden Healthcare Centre, all existing doors can be opened from the inside for fire safety reasons. Hence, the reception door in which the patient insinuated I had to unlock the door is false. As the door does not require to be unlocked to exit. Please refer to attached file containing footage of the door being locked form the outside and opened from the inside.
Patient stated:
"I swiftly did so and went to leaved the clinic"
Response:
The patient did not swiftly leave the clinic, as I had gone to the restroom and returned, gathered my belongings- wallet, keys, phone whilst the patient was still getting changed. I had reconfirmed her booking date and time. Then left the clinic together and walked her to the path on [street name omitted] as I have previously done.
We are waiting on the medical centre CCTV which is located outside our door, the walk way and the footpath outside to show the difference in events that occurred on 22nd of June 2021. (Attached and marked "Annexure L")."
1. In the section entitled "General and overall response to complainant's comments", the respondent provided the following general and overall responses to the 15 August 2021 Patient A complaint:
"I had never acted sexually inappropriately with the patient. I never made inappropriate comments to the patient. I treat approximately 70-80 patients per week for over 5 years. I have never once received a complaint about sexual misbehaviour.
My intention is to always help my clients to live the best lifestyle and health that can be attained through my services. This allegation has traumatised me, to be accused of such an act or behaviour and has affected my overall wellbeing and desire to assist future clients.
As of Monday 23rd August 2021, our clinic policy has now been updated to ensure there is always two staff in the clinic at all times with a patient, who is being treated in a sensitive body part area. This is of course subject to the patient's consent. There will be another therapist or reception staff present as a witness.
Upon reflection I believe the patient may have made the false claim because I spoke to her on numerous occasions about doing the right thing by me and work cover to apply for a new work cover claim which occurred in Sydney separate to her injury that she attained in Victoria. After 7 months of treatment without receiving adequate payment, raising this issue with the patient and notifying her that if I had to apply for a claim under her Victorian claim, I would need to notify the work cover (Allianz) that she had another incident in Sydney which has led to further pain and dysfunction. If I had done so, the patient would not only be liable to pay back for treatments commencing from March 2021 to June 2021, but also may open further investigation and administration costs.
The patient was upset and appeared annoyed about me continuing to raise the fact that if she was to continue treatment she would need to pay the outstanding balance and continue as a private patient as opposed to a work cover patient. I could sense on a few previous occasions when I had brought up the topic for her to make a new claim, the patient had appeared hesitant as she was concerned this would jeopardise her current employment and future job opportunities.
Upon receiving this complaint against me it is possible that she had not advised her new work place that she has had a serious/complex injury that places her at a greater risk of reoccurring injuries.
On the 22nd June 2021 when I raised the topic of work cover or her being a private patient it must have dawned upon her that I would not let go of this topic and I would have to bring it to the attention to the relevant bodies/work cover and I made this pretty clear to her during the session on the 22nd June 2021.
Upon receiving this complaint I reviewed all correspondence between the patient and other medical professionals, and as a result it has disclosed it has a number of things. It had come to my attention that the patient had moved to NSW approximately 4 weeks after her labral tear operation and was not participating in any rehabilitation at the time as noted by Dr Anthony Leong (Attached and marked "Annexure M").
It is my professional opinion, that it is unlikely that a GP or surgeon would have given consent for the patient to return to full duties without rehabilitation, and/or condone commencing a new strenuous job 4 weeks post-surgery (Attached and marked "Annexure Q"). The operation report states that 'post-op orders "avoid over 90 degrees hip flexion or rotated position 6-8 weeks. I can only speculate, given the fact that the patient did not comply with the recommendation and rehab post-surgery, that her new work place was not made aware of the complexity of her surgery and increased risk of re-injury which has reoccurred.
To my knowledge it takes approximately 12+ weeks to progress to advanced exercises and movements, such as getting on and off a horse and horse riding (Attached and marked "Annexure N").
The patient informed us on the 30th March 2021 that she had seen Dr Pobbathi and filed a updated incident report in regards to her injury, however we received a statement from Dr Pobbathi that this appointment did not occur and no new claim was filed. (Attached and marked "Annexure O")
This could have possibly been the reason for lying about seeing Dr Pobbathi in regards to filing a new incident report and work cover claim, which occurred on the 7th March 2021.
The 22th of June was the last visit under AHRR visit 8, I made it very clear on this visit with the patient that I will not be involved in any fraudulent behaviour, and if she is not going to either pay for all outstanding invoices or file a new claim that I will contact Workcover and report this fraud.
It is disappointing that the current conditions set by the council, clearly outline that consultations, assessments and treatment can occur only if another female attending person is present at the premises.
There seems to be an onus on me proving my innocence and to provide a satisfactory explanation as to why the complainant would tell lies. Ultimately, I have stated the facts and it's a matter for those who determine this matter to draw their own conclusions but it is unrealistic for anyone presented in the position that I am, to have to go inside the complainant's mind to give a satisfactory explanation to clear my name.
The patient did not want her current/previous employer to discover that she had suffered a fractured pubic ramus and labral tear and had to undergo a hip arthroscopy, excision of cam lesion, pincer lesion and labral repair."
1. Annexed to the 27 August 2021 response were copies of the following documents:
1. the Patient A Physical Health clinical records (annexures A and B);
2. an email of Physical Health to Allianz sent on 17 June 2021 advising it had received two cheques as remittances for Patient A paying $59.50 a session when the SIRA guidelines for two region physiotherapy is $125.50 per session which had been invoiced and approved in the AHRR (annexure E);
3. the letter dated 25 August 2021 of Dr Pobbathi stating he last saw Patient A on 2 March 2021 and that he had not completed a new incident report (annexure O);
4. statements of two patients who had appointments with the respondent at 5.00pm and 5.15pm on 22 June 2021 (annexure T);
5. cheques with the caption "Unbanked work cover cheques" (annexure T):
1. cheque dated 5 June 2021 of Allianz for $546.35 in respect of invoice 327228031 for the treatment of Patient A;
2. cheque dated 24 April 2021 of Allianz for $476.00 in respect of invoice 306171131 for the treatment of Patient A.
The 17 September 2021 oral evidence
1. In the 17 September 2021 oral evidence before the delegates of the Council, the respondent gave the following evidence:
1. about other staff present when Patient A was present (Tcpt, 17 September 2021, pp 9.37-10.4):
"DR MINTER: So there were no other practitioner members or staff members at your level but there was a flow of patients going to and moving from upstairs, is that correct?
DR SINGH: Yes, that is correct, there would possibly would have been a psychologist there, I know she does work back late as well. So there is a psychologist staff which are located pretty much opposite us.
MS TAYLOR: When James left - when James put his head in to say goodbye and that was - there was nobody else after that within your complex?
DR SINGH: Okay, so within my actual space in terms of my (indistinct) there wasn't any of my staff there but there were medical centre staff still present."
1. about the practice of having the doors of the treatment rooms open (Tcpt, 17 September 2021, p 15.34-39):
"The only time the treatment door is closed is when there is somebody exercising in the room directly opposite within the (indistinct) we keep an open door policy so practitioners can walk in and walk out of the rooms because (indistinct) is there (indistinct) is there, there's nothing inappropriate that we're doing that I need to close my door for. And so even with the front reception door is always left open."
The 30 December 2021 Singh response
1. In the 30 December 2021 Singh response, the respondent relevantly provided the following information to the applicant:
"…
On the 30th of March, the patient was advised by myself that due to new injuries sustained on 7th March, a new incident report and work cover claim would need to be completed if she wants to continue treatment under my care.
The patient agreed that she would file a new report and claim, as her knee pain had been worse than her initial injury (hip/groin/lower back pain).
The first cheque received for invoice number one (306171131) for the treatments between 21st of December 2020 up until the 8th of March 2021, was invoiced at $1004.00.
The remittance received by Allianz Insurance was $476.00.
On receipt of the first remittance paid by cheque (cheque no. 8144936). I showed the patient the remittance received and asked the patient if she still wanted to continue treatment or wait until all payments and reimbursements are finalised. To which the patient replied that she will contact her case manager to correct payments and if not, she will pay the difference herself. The patient also stated that this shouldn't affect the current treatment because it was under a new work cover claim as mentioned in submission report.
The second cheque received was approximately after the 5th of June 2021 (cheque no. 8153642). I initially thought this was the balance of the underpayment owing, on further investigation I realised that my administration staff had sent a new invoice number two (Invoice 327228031) for treatments between the 15th of March 2021 to the 11th of May 2021. I advised my administration staff that being a new claim number we are not to send any further invoices to Allianz under the old work claim. As we were waiting on the new claim number to be provided by the patient, and not to bank either of the cheques as both were incorrect.
My staff and myself attempted to contact the patients case manager on -several occasions via phone to rectify the outstanding payments. On the 17th of June 2021 the case manager was emailed regarding remittance, no response to date has been received.
…"
The 24 July 2022 Singh response
1. In the 24 July 2022 Singh response, the respondent relevantly provided the following submissions to the applicant:
1. he made the following statement:
"I have always conducted myself is a manner that is ethical and moral, and in line with the Chiropractic code of Conduct. I have been deceived by this patient and told lies for months of treatment. This person has committed fraud, and was told that I would be pursuing this matter."
1. he made the following response in respect of each statement of the alleged conduct significantly below the standard and below the standard:
"The Above Statement is False"
The 28 April 2023 Singh affidavit
1. In the 28 April 2023 Singh affidavit, the respondent relevantly gave the following evidence:
1. he set out introductory and background information (at [1]-[11]);
2. he asserted that the allegations in the Complaint are false and stated that the list of attendances of Patient A is inaccurate (at [12]-[15]);
3. he responded to the evidence of Patient A in the 10 December 2021 Patient A statement (at [16]-[84]);
4. since his registration in 2016, he has consulted on approximately 28,000 occasions, and has never received any complaints made against himself, professionally, sexually, ethically or otherwise (at [85]);
5. since the 21 September 2021 Council conditions were set by the Council, he has had to reduce his days of consultations to two days per week. All female patients sign a consent form (at [86]).
1. As to the attendance of Patient A on 7 December 2020, the appointment was at 11.15am as recorded in the annexed appointment list for Patient A setting out the dated and times of her appointments and she was treated by Mr Vo, Ms Romero and himself (at [17]-[19]; annex AS-1).
2. As to the attendance of Patient A on 8 June 2021, the respondent denied advising her against a cortisone injection (at [22]).
3. As to the attendance of Patient A on 30 March 2021, the respondent (at [26]; Ex A1, p 144):
1. referred to his clinical notes for this attendance:
"S/E.
Has been seeing James for lower back hip/groin pain
Has become worst post knee injury on the 7th of march- she tripped/trapped between horse, unable to recall clearly. ?Fell and dislocated her right knee. Paramedics were required to relocate knee at the weekend horse event she was attending
Currently, knee injury is her main concern. Has improved a bit but still ongoing
Advised to report this incident to work, due to ongoing condition of knee and may require further investigation and treatment
…."
1. said to Patient A:
"A new incident report and work cover claim will need to be filed By Dr Pobbathi as this is a new injury."
1. As to the attendance of Patient A on 13 April 2021, the respondent (at [54]; Ex A1, annex AS-17):
1. had the following conversation with her:
"I asked Patient A: "How is the pain and have the muscle cramps and pins and needles improved?
Patient A stated: "The pain has slightly improved but the sensation of numbness is still there around my genital region."
I said: "Are you happy if Dr Romero was to treat you today?"
Patient A said: "Yes"."
1. did the 13 April 2021 Patient A progress report for Dr Pobbathi and Patient A's employer which he got her to sign to give to both of them:
"Progress Report
…
Dear Dr Pobbathi/Employer
Thank you for reviewing [Patient A] for management of for her right hip Iabral tear. On the 7th of March 2021, patient suffered new injury to her right knee, new work - related injury may require further imaging,
…
1. As to the attendance of Patient A on 20 April 2021, the respondent had the following conversation with her (at [27]):
"I asked the patient: 'Have you seen Dr Pobbathi and done a new work cover claim, as it is a requirement to then send the insurer a new recovery plan under my SIRA number".
The patient replied: "I don't want to tell them [her employer Shane Rose] yet because I don't want to lose my job and am looking for another job that is easier on my body".
I said: "I can give you 2 to 3 weeks to do this please, also can you for now just let Dr Pobbathi know so that he can make records of this injury."
She replied, "I already have told him"."
1. As to the time of the appointments of Patient A, the respondent denied that he suggested that her appointments be moved to 5.45pm to allow for her now added travel time when she relocated to Castlereagh (at [28]). The time of the appointments of Patient A from this time were 5.45pm on 4 and 11 May 2021, 5.15pm on 25 May 2021, and 5.00pm on 8 and 22 June 2021 (at [30]; annex AS-8).
2. As to the attendance of Patient A on 11 May 2021, the respondent had the following conversation with her (at [31], [43]):
"I said to Patient A: "If you can't attend earlier appointments, we are happy to give handover notes to another therapist closer to you, just don't forget us when you win Gold."
Patient A replied: "I don't feel comfortable going anywhere else, you have made such a huge difference to my pain and movement, without you [the clinic as I understood it] I would not be able to continue doing what I am.""
"I said to Patient A "If you would like to attend later appointments, Dr Romero has availability on Wednesday and Friday. He has treated you before and knows your case history and has observed the techniques that I have used to treat you."
Patient A replied: "I like the way you treat and test. I always feel and move much better after my treatments with you.""
1. As to the attendance of Patient A on 22 June 2021, the respondent set out the following short chronology/timeline of movements within the clinic (at [32]):
"a. Patient A arrived at 5:30pm. Around 5:45-6pm, I took Patient A to treatment room 3 and requested she change into the treatment gown which was located on a hook behind the door. I left Room 3 whilst Patient A changed. I requested she open the door once she had changed.
b. I then attended to Patient A in room 3 after she had changed, I applied a cupping treatment which took me 2-5m1nutes to do and left room 3 to treat other patients.
c. Mr Nies attended to Patient A in room 3 after 15-20 minues (sic) for soft tissue work which lasted about 15-20minutes whilst I was treating the other patients. I was treating other patients for roughly 30-45minutes in total. In this time I was treating my patient Gavin in Room 1 & my patient Peter in room 2.
d. I then attended Patient A in room 3 for treatment for around 10-15 minutes. At this time, Mr Nies left the room to take payment from other patients (Peter) whilst I was treating Patient A.
e. Within 3-5 minutes, Mr Nies came back into room 3 where I was treating Patient A, to wash his hands. I asked him to do 'end of day' at about 6:45pm. He left room 3 and went to the reception desk to complete the end of day terminal receipts.
f. Mr Nies left the practice and made a comment as he left 'have fun big fella' (addressed later), I was still with Patient A in room 3 for a further 10 minutes.
g. I then left Patient A to attend to Gavin in one of the other rooms to remove his dry needling and electro stimulation machine and put deepheat on. Gavin and I left the treatment room, attended to the reception desk and made a new booking, Gavin left the practice.
h. At this time, I saw my patient George Salib sitting outside waiting to pick up supplements. I acknowledged him by nodding my head. My patient George Salib entered the clinic and was doing exercise rehab while he waited for me.
i. I returned back to Patient A in the treatment room 3 and treated her.
j. The doors of the treatment room 3 were open at all times. At this particular point in time my patient George Salib was on the bench press which was within 3-4 meters away of the door of treatment room 3.
k. For about 15 minutes, Patient A and I discussed WorkCover in treatment room 3 (discussed later) whilst I was treating her, I told her she had two weeks to resolve the outstanding payments and rebooked her for two weeks at 5pm. I then asked her to get changed and I left treatment room 3 and closed the treatment room door whilst she changed. I walked to the reception desk past George Salib and made an appointment for Patient A.
m. Because Patient A was in the only room with a washing basin I had to leave the practice to wash my hands in the medical practice toilet across the hall from my practice. I requested George Salib to also leave the clinic because Patient A was changing and there was no one else in the clinic.
n. I released the door stopper as I left the practice so the door can be closed but not locked. I washed my hands and George walked outside to the council car park (to wait for me because the supplements I was providing him were in my car).
o. After I washed my hands I came back into the clinic, I packed up and had shopping in my both hands and my country road bag across my body. Patient A came out of treatment room 3 and I locked the main clinic door from the inside which is my usual practice (I am always able to open the door from the inside but it can be locked so as not to allow access from outside).
p. Patient A and I left the clinic and exited the building to where the walkway railing finishes. I saw my patient George Salib outside waiting for me at the entrance of the [street name omitted] Carpark.
q. I said to Patient A "Goodbye" then she hugged me. She then left towards [street name omitted] which is 10-15 metres away. I turned around and my patient George Salib came and helped me with my bags and we went my car."
1. As to the attendance of Patient A on 22 June 2021, the respondent commented on the evidence of Patient A (at [33]-[42], [45]-[73]) including:
1. the treatment gown did not tie at the back, but opened at the back and was secured by Velcro strips (at [35]; annex AS-11);
2. he denied that he laughed but did not make any reply when Mr Nies said, "Have fun big fella" (at [39]). He had the following conversation with Mr Nies (at [39]):
"I said to Luke: "Thanks appreciate it, see you when I get back, would you like anything?".
Luke replied, "No thanks, I don't drink wine"."
1. Patient A did not complain about any hamstring tightness (at [47]);
2. he denied that the door was ajar. The door was fully open, and the lights were on and had not been turned off at any point (at [49]);
3. he was wearing a mask as he always did at that time in the clinic and that Patient A would not have been able to see his face clearly as a result (at [50]);
4. he denied that he ever removed Patient A's undergarment, and he ever requested Patient A to remove her undergarment either at the beginning, during or at all during any of her treatments (at [51]-[52]);
5. he did not speak about a syndrome that affects horse riders. He has never used words such as "clitoral stimulation" and "unable to reach orgasm" in any context with any patient (at [53], [55]);
6. the only conversation he had with Patient A was regarding doing a new AHRR under his name (at [56]):
"I said to her: "Now you have the new job, can you please either let Workcover Victoria now or you will have to file a new claim."
I said to Patient A: "If Workcover investigates your claim, you will be liable for all costs and will be charged for fraud because you have been receiving treatment for a new injury that was not filed."
I also said to her: "Please let me know before your next visit if you want to come as a private patient and pay us our outstanding balance or process a new Workcover claim."
Patient A asked for an appointment and I booked her in for an appointment on 6 July at 5.00 pm after I left the treatment room. I said to Patient A: "I'm happy for you to pay us our outstanding balance and not go through Workcover. I will leave this up to you to decide and let us know.""
1. he denied he said to Patient A "You need to be touching yourself" (at [57]);
2. he denied he has ever taken any patient's hand and directed it towards their groin (at [58]). He had the following conversation with Patient A (at [58]):
"I asked Patient A: "If it's Ok can you please cup your groin as I will be doing hip mobilisation and cross-friction?"
Patient A replied: "OK" and proceeded to cup her groin with one hand.
I said to Patient A: "If the pressure is too much, either let me know or tap my hand as per previous treatment.""
1. he denied that at any stage Patient A's gown was pushed up and her body exposed from the waist down (at [62]);
2. when the treatment finished, he said: "I will let you get changed, I'm just going to close this door." He then left the room and closed the door, which had been open all the time, behind himself (at [64]);
3. he denied that he touched Patient A's clitoris either intentionally or by accident, and he rubbed her clitoris in a circular motion or in any other way (at [65]);
4. he denied that Patient A pushed his hand away and he lent on her inappropriately and that she pushed his body weight off her (at [66]);
5. he washed my hands in the male restroom which cannot be seen from the clinic (at [66]);
6. he had gone to the restroom and returned, gathered his belongings, being his wallet, keys, phone and four bags of bottled water whilst Patient A was getting changed. He rebooked Patient A for 6 July 2021 at the same time of 5pm after he closed the door for the Patient A to get changed and said hello to Mr Salib (at [69]);
7. he denied having to unlock the clinic entrance door as it cannot be locked from the inside (at [70]);
8. he has never hugged Patient A. On 22 June 2021 when he left the medical centre he was carrying a Country Road work bag with books and reports, a laptop and a heavy shopping bag with food and snacks and 8 x 1 litre bottles of Fiji water for an 8-person trip to the Hunter Valley. Patient A hugged him and he did nothing to encourage this uncalled for show of affection (at [71]);
9. he did not have a conversation with Patient A before she got in her car. He has never said to her that she needs a boyfriend so she could work on her own body or that she should touch herself. He did not walk Patient A to her car. They parted ways before she got to her car (at [72]).
1. As to the other conduct complained of by Patient A on 22 June 2021, the respondent commented on the evidence of Patient A (at [74]-[75], [77]-[84]) including:
1. he denied that he would insist on walking Patient A back to her car after the practice closed at 6 pm on almost every occasion (at [74]);
2. he denied that he would often say "See you later man?". He does not use the words "See you later man?" to say goodbye (at [77]);
3. he denied offering to help Patient A move to a new house and to assist with putting up fencing for her horses (at [80]-[81]);
4. Patient A was made aware on numerous occasions by both himself and Mr Vo that a new work cover claim would need to be filed for her injury on 7 March 2021 and he referred to the notes in bold print immediately before his initials at the conclusion in the Patient A Physical Health clinical records for the following dates (at [83]):
1. on 6 April 2021:
"Notes: Call Dr Pobbathi to see regarding new/injury claim for patient and scans for knee"
1. on 25 May 2021:
"note: need to follow up new claim number, need to do AHRR ASAP"
1. on 8 June 2021:
"note: need to follow up new claim number, need to do AHRR ASAP
See Dr Pobbathi for update, before next visit."
1. on 22 June 2021:
"note: emailed workcover 17 June regarding payment being reduced, no reply
Need to follow up New Claim Number, need to do AHRR ASAP"
1. Patient A was provided copies of the Victoria WorkCover cheques, as they were below SIRA fee amounts (at [83]);
2. he has never touched Patient A in the vagina or clitoris area (at [83]).
The 11 May 2023 Singh affidavit
1. In the 11 May 2023 Singh affidavit, the respondent annexed a screenshot of the following text message sent to his wife at 7.19pm on 22 June 2021 (at [3]; annex AS2-1) (the 22 June 2021 at 7.19pm Singh text):
"Sorry boo running late just got told by that works cover patient that hates her mum greedy. Ps George say thanks for sup
Will finish packing when I get home
Love You"
The oral evidence of the respondent
1. In cross-examination, the respondent gave the following evidence:
1. he told Patient A that if she did not make a new WorkCover claim or pay him his outstanding fees, he would let her employer, as well as WorkCover, know that she had committed fraud, because he was not going to partake in any fraudulent behaviour (Tcpt, 27 June 2023, p 33(30)-(36));
2. Patient A owed money at the last consultation (Tcpt, 27 June 2023, p 33(39)-(40));
3. he denied that Patient A had WorkCover approved for ongoing consultations until July 2021 because "A new WorkCover injury occurred on the 7th March, …. When a new injury occurs, we cannot treat a new injury under an old WorkCover. That is fraud" (Tcpt, 27 June 2023, p 33(42)-(46));
4. he continued treating her original injury after the knee injury on the 7 March 2021, because Patient A, once again, was dishonest and advised that she had reported this incident to Dr Pobbathi. Under WorkCover, he can have eight pre-approved sessions, as long as she has notified her doctor. It is after when the eight sessions finish, which was on 22 June, that is when he advised her that if the claim was not lodged, he would notify WorkCover himself (Tcpt, 27 June 2023, p 34(1)-(26));
5. he denied that he took over Patient A's treatment from 30 March 2021 and continued treating her under her existing WorkCover claim that was for a physiotherapist (Tcpt, 27 June 2023, pp 34(43)-35(5));
6. he had complied with the conditions on his registration (Tcpt, 27 June 2023, pp 36(7)-(8), 42(15)-(22));
7. he disagreed that that Patient A was a vulnerable patient saying "I believe she was quite deceitful, deceiving me for over six months" (Tcpt, 27 June 2023, p 36(10)-(13), (40)-(42));
8. he denied he made up evidence about Mr Wilson and Mr Salib being present when Patient A attended the clinic on 22 June 2021. He gave an explanation for not referring to them in the 27 August 2021 Singh response, saying "I did not want to get any patients involved. I was ashamed and embarrassed enough of the accusation that was made against me, and I had not got statement. I'm not going to put anybody in a position unless they're willing to make a statement." (Tcpt, 27 June 2023, pp 40(20)-41(35), 44(32)-45(20));
9. he did not tell the Council that Mr Salib and Mr Wilson were present at the practice when he was treating Patient A because he did not have enough time to gather the evidence (Tcpt, 27 June 2023, p 47(11)-(16));
10. Patient A was committing fraud because "WorkCover Victoria … weren't paying us in regards to the SIRA guidelines. We had given Patient A copies of those cheques to take up with a case manager, or she would have to pay for the shortfalls of those cheques. So she was quite aware of that. But the fact is, I will not treat a new injury, a new WorkCover, under an old WorkCover claim that is Victorian when it did not happen in Victoria." (Tcpt, 27 June 2023, p 48(13)-(20));
11. he denied that his treatment of Patient A after 7 March 2021 was mainly in relation to the original injury to her pelvic area (Tcpt, 27 June 2023, p 51(43)-(47));
12. when referred to the 8 March 2021 Physical Health invoice he said "Which is why the payments still have not been banked, because it was an incorrect invoice, and it was for incorrect amounts, so that is exactly what I've been telling the patient, and had given her copies of the cheques to say that we have not banked any money for any treatment that we've received from you" (Tcpt, 27 June 2023, p 52(10)-(16));
13. he asserted that he had discussions with Patient A about submitting a WorkCover claim for injury on 7 March 2021 and about continuing her treatment as a private patient, rather than under WorkCover (Tcpt, 27 June 2023, pp 54(38)-55(9));
14. he asserted that Patient A came to him crying hysterically on 21 December 2020 about her WorkCover (Tcpt, 27 June 2023, p 55(11)-(12));
15. he denied that he assisted Mr Nies with drafting the 9 May 2023 Nies statement (Tcpt, 27 June 2023, pp 65(43)-66(8), 67(14)-(15));
16. he denied that he assisted Mr Salib with drafting the 11 May 2023 Salib statement (Tcpt, 27 June 2023, pp 66(10)-(19), 67(14)-(15));
17. he denied that he assisted Mr Vo with drafting the 9 May 2023 Vo statement (Tcpt, 27 June 2023, pp 66(29)-(38), 67(14)-(15));
18. he asserted that WorkCover had been approved on 21 January 2021 and when informed that WorkCover was not approved until 8 February 2021 said "That is what the patient told us and that is why the patient returned back to our clinic" (Tcpt, 28 June 2023, p 46(18)-(43));
19. when it was suggested his evidence was to try and suggest that there was no opportunity for him to act inappropriately with Patient A, he said "There was never any opportunity and because that never happened, because the opportunity never happened, in the sense that I would never place myself in that situation." (Tcpt, 28 June 2023, p 95(10)-(22));
20. he did not recall whether he treated Patient A on 8 February 2021 because it was not in his notes (Tcpt, 28 June 2023, pp 95(45)-96(5));
21. whoever is the primary practitioner that does the bulk of the work is the person that makes the note comprising the Patient A Physical Health clinical records (Tcpt, 28 June 2023, p 97(43)-(44));
22. he denied that his treatment after 7 March 2021 was focused on Patient A's original injury (Tcpt, 28 June 2023, pp 101(44)-102(36));
23. when it was suggested his evidence in the 27 August 2021 Singh response that Patient A saw Dr Khan was inconsistent with the Camden Healthcare Patient A clinical records, he said "So that's what the patient stated" (Tcpt, 28 June 2023, p 103(1)-(17));
24. he denied that he subsequently added the words "Call Dr Pobbathi to see regarding new injury claim for patient and scans for knee" in the entry for 6 April 2021 in the Patient A Physical Health clinical records (Tcpt, 28 June 2023, p 119(1)-(18));
25. his explanation for the presence of his initials in the entry for 13 April 2021 in the Patient A Physical Health clinical records is that he prepared the 13 April 2021 Patient A progress report (Tcpt, 28 June 2023, pp 124(34)-125(20));
26. he denied that Patient A was the last patient with only him at the end of her consultations on 6 and 13 April 2021, and 11 May 2021 (Tcpt, 28 June 2023, pp 134(13)-135(6));
27. his explanation for why he did not stop treatment of Patient A until she made a new WorkCover claim was "she said she needed this treatment and she would pay me for it if – or when she got a new job. And that is why we were persistent. I was persistent." "Every time we pushed the issue the patient started crying – okay – and started saying, "I need this treatment," okay. That, "You guys have made such a difference. I need to get this new job that is easier on my body. Once I get this new job," how do you think I feel?" (Tcpt, 28 June 2023, pp 141(45)-143(11));
28. he said "our treatment door is never closed. It doesn't matter the given time. To prevent accusations such as these we keep our doors open all throughout treatment. Only when the patient is getting changed into a gown or out of a gown is our doors closed" (Tcpt, 28 June 2023, p 169(32)-(39));
29. his explanation for the absence of any record of payment on 22 June 2021 was that Mr Wilson was under WorkCover at the time (Tcpt, 29 June 2023, pp 14(28)-15(28));
30. his explanation for Ms Mclear and Ms Romero signing consent forms for treatment by female patients in breach of the 21 September 2021 Council conditions was in the case of Ms Mclear because he understood that he could not "hire a female that I knew, that was related to me, that was a friend of mine, that was a former or a current patient of the practitioner", and in the case of Ms Romero she was "Not a patient. She was always an employee" because a patient is somebody that's put in a patient calendar, in a patient list that is a paying client that we do basically notes on (Tcpt, 29 June 2023, pp 92(29)-100(4)).
1. In answer to questions by the Tribunal, the respondent gave the following evidence:
1. that doors of the treatment rooms were always left open. If a patient asks you to shut the door "we say we don't because there's practitioners coming in and out and how the doors. … all the patients wait outside so nobody can see inside except for the treating practitioners and the reception staff who are around." Sometimes the door might be partly shut only when somebody is using the functional trainer, but not the rest of the exercise equipment such as bench, dumbbells, Therabands and so forth because that's not in a way of any of the doors (Tcpt, 29 June 2023, pp 124(38)-125(12));
2. he accepted that the techniques used on Patient A were not referred to in in the Patient A Physical Health clinical records (Tcpt, 29 June 2023, pp 125(21)-128(24)).
1. In re-examination, the respondent gave evidence the 16 September 2021 icare letter stated the dates of service of Mr Wilson which relevantly included 22 June 2021.
Mr Nies
1. The evidence of Mr Nies comprised the following:
1. the 26 August 2021 Nies statement;
2. the 9 May 2023 Nies statement;
3. his oral evidence.
The 26 August 2021 Nies statement
1. In the 26 August 2021 Nies statement, Mr Nies relevantly gave the following evidence as to his presence at the clinic and the treatment of Patient A on 22 June 2021 (at [2]-[5]):
"2. On Tuesday 22 June 2021. I arrived at work at 8:30am, proceeded as a normal day at work. We had our 1 hour break from lpm-2pm. as the afternoon progressed we started to fall behind and run late.
3. I treated patients until the end of the day, I finished for the day washed my hands in the last room where the basin is as Dr Atil Singh was treating the last patient [Patient A] at 6:30pm, who was laying on her back.
4. As I was leaving I waved at Atil and the last patient [Patient A] from outside the treatment room and told Dr Atil Singh to have fun big man as he was leaving for a holiday the next day and I was not going to see him until the following Tuesday.
5. I then reconciled the receipts for the day and then I left. All doors were open in the clinic as I left as per normal procedure when there is no one using gym on the outside area."
The 9 May 2023 Nies statement
1. In the 9 May 2023 Nies statement, Mr Nies gave the following evidence:
1. he worked at Physical Health for about 4 years as a chiropractic assistant, from 2017 until November 2021 (at [2]);
2. on 7 December 2020, he did not treat Patient A (at [3]);
3. on 30 March 2021, he treated Patient A with the respondent regarding her right knee injury, and heard him say to Patient A: "Tell Dr Pobbathi about the new workover injury arid fill in the paperwork as you are in extreme pain and limping post reinjuring again at work." (at [4]);
4. on 8 June 2021, he saw the respondent give copies of WorkCover cheques to Patient A to follow up with her case manager (at [7]);
5. as to his presence at the clinic and the treatment of Patient A on 22 June 2021 (at [8]-[15]):
"8. On Tuesday 22 of June 2021, I arrived at work at 8:30 am and proceeded as a normal day at work. We had our 1-hour break from 1 pm - 2 pm, and as the afternoon progressed, we started to fall behind and run late.
9. Patient A was booked for 5 pm on the 22nd of June 2021, but Patient A did not arrive until after approximately 5.30 pm. Mr Gavin Wilson, our 5,30 pm patient had arrived approximately at 5.25pm. His consult therefore began before Patient A's. Patient A was the last patient I treated on the 22nd of June 2021. Patient A was in Room 3 (furthest from the clinic entrance door). Patient A was laying on her stomach, I removed the suction cups and treated Patient A's Lower back for approximately 20-25 minutes.
10. Dr Singh had dry needles and an electro-stimulation machine placed on Gavin Wilson who was in Room 1. After Dr Singh had finished placing needles and electro-stimulation, he entered room 3 and asked Patient A, "where is it most painful?" Patient A replied, "My hips and adductors" Dr Singh asked Patient A to "Can get you to turn on your back please".
11. I treated patients until the end of the day. When I finished for the day at approximately 6.30pm, I washed my hands in the last room where the basin was and Dr Atil Singh was treating the last patient to arrive, being Patient A, who was laying on her back. Patient A was wearing the treatment gown provided, her undergarment and towels for draping.
12. As I was leaving, waved at Dr Atil Singh and the last patient (Patient A) from outside the treatment room and told Dr Atil Singh to "have a fun big man" as he was leaving for a holiday the next day and I was not going to see him until the following Tuesday.
13. Dr Singh replied in words to the effect of "Thanks Luke appreciate it, would you like any wine?", to which I replied, 'All good, I don't drink wine".
14. I then reconciled the receipts for the day arid then I left. All doors were fully open in the clinic as I left, as per normal procedure when there is no one using the cable machine located directly outside room 3. When a patient is using the cable machine, which is located directly opposite the door to room 3, depending on patient arid region or treatment, the room 3 door is sometimes half closed for privacy, but this wasn't the case on the 22nd of June. No-one was using the cable machine that evening and all the doors were completely open.
15. When I the clinic, both Patient A and Mr Wilson were still in the clinic receiving treatment."
1. he treated Patient A alongside the respondent on 20 April 2021, 11 May 2021, 25 May 2021, 8 June 2021, and 22 June 2021 (at [18]);
2. he has never seen Patient A, or any patient, not have underwear on, in any stage of their treatment (at [19]);
3. he has never heard the respondent say Patient A or any other patient, "You need a boyfriend, so they can touch you instead of me", "Have you found boyfriend yet?", "How's your love life man?", or "Are you touching yourself?" (at [21]);
4. he has never heard the respondent offer Patient A or any patient help moving house or putting up fencing (at [23]);
5. as to the dealings between the respondent and Patient A regarding payment by WorkCover for her treatment (at [24]-[28]):
"24. I heard Dr Singh say to patient A, on the 30 of March 2021 "This is a new injury you will need to file a new claim number for us to treat this region under work cover or in case further investigations like MRI is required.' Patient A replied: "I have booked to see Dr Pobbathi.
25. On other occasions have heard Dr Singh say to Patient A words to the effect of: "A new claim needs to be filed for a new injury. I don't want my SIRA provider number to get revoked".
26. On receiving work cover Victoria cheques, I have heard Dr Singh say to Patient A: "Workcover Victoria payments are insufficient, and we have tried to contact your case manager but not heard back, If you would like to continue treatment you need to pay the difference or contact your case manager to see if underpayments could be rectified". Patient A replied: "1 will contact Trent my case manager. I really need this treatment."
27. During her treatment and on arrival or departure on more than one occasion I have heard Dr Singh say to Patient A words to the effect of: 'We need a new claim number as we are treating a different region and you have aggravated your condition." I have also heard him ask: "Have you seen Dr Pobbathi regarding filing a new claim?" and "We haven't been paid for any of your treatments, we can stop treatment and once payments are made start again".
28. I have heard Patient A reply to these statements or questions words to the effect of: "I have applied for new work, and will apply to Workcover as soon as I get the Job" and "Once I get the job I will file a new claim or pay for my treatments""
The oral evidence of Mr Nies
1. In cross-examination, Mr Nies gave the following evidence:
1. he had in the past socialised with the respondent. He conceded that they were friends (Tcpt, 28 June 2023, pp 6(43)-7(10));
2. the respondent approached him to provide his first statement and also his second statement (Tcpt, 28 June 2023, p 7(12)-(41));
3. he denied having seen Patient A's statement (Tcpt, 28 June 2023, p 8(32)-(38));
4. he said the conversation in the 9 May 2023 Nies statement at [4] happened, but he could not remember exactly what was said. He denied that the respondent assisted him (Tcpt, 28 June 2023, p 9(15)-(41));
5. he did not remember the conversation in the 9 May 2023 Nies statement at [24] except that there was some conversation about Patient A needing an MRI (Tcpt, 28 June 2023, pp 10(39)-11(12));
6. he did not recall the conversation in the 9 May 2023 Nies statement at [25] (Tcpt, 28 June 2023, p 11(14)-(16));
7. he said his description in the 9 May 2023 Nies statement at [24] was based on normal procedure (Tcpt, 28 June 2023, p 11(18)-(39));
8. he said that he remembered treating Patient A on each of the dates in the 9 May 2023 Nies statement at [24] (Tcpt, 28 June 2023, pp 11(41)-12(47));
9. he left the room while the respondent was treating Patient A and left her alone him (Tcpt, 28 June 2023, p 13(1)-(8));
10. when he was treating Patient A he closed the door (Tcpt, 28 June 2023, pp 13(30)-14(15));
11. he did not recall the events in the 9 May 2023 Nies statement at [7] (Tcpt, 28 June 2023, p 14(17)-(33));
12. there were times where he left the practice whilst the respondent was treating Patient A including on 22 June 2021 (Tcpt, 28 June 2023, p 14(36)-(46));
13. on 22 June 2021 Patient A was being treated in treatment room 3 as marked on the enlarged floor plan (Tcpt, 28 June 2023, pp 15(1)-16(19));
14. when he left on 22 June 2021 there was the respondent, Patient A and Mr Wilson who was in treatment room 1 as marked on the enlarged floor plan. He denied that the respondent had told him to say another person was present (Tcpt, 28 June 2023, pp 16(36)-19(1));
15. he could not say with certainty at what time Mr Wilson arrived on 22 June 2021. He denied that the respondent had told him the time (Tcpt, 28 June 2023, pp 20(10)-(21), (28)-21(25));
16. he could not say with certainty that the conversation in the 9 May 2023 Nies statement at [10] happened (Tcpt, 28 June 2023, p 21(27)-(46));
17. he could not say with certainty that he made the reply "All good, I don't drink wine" in the 9 May 2023 Nies statement at [13] happened. He denied that the respondent had told him the reply in his statement (Tcpt, 28 June 2023, pp 22(12)-23(21));
18. the respondent who removed the cups from Patient A and his evidence in the last sentence of the 9 May 2023 Nies statement at [9] was wrong (Tcpt, 28 June 2023, pp 23(36)-24(16)).
1. In answer to questions by the Tribunal, Mr Nies gave the following evidence:
1. the respondent had provided him with access to the Patient A Physical Health clinical records in preparing the 9 May 2023 Nies statement (Tcpt, 28 June 2023, pp 9(43)-10(21));
2. there was no system in the practice for recording the time at which any particular patient arrived (Tcpt, 28 June 2023, p 20(23)-(26));
3. on 22 June 2021 when the respondent had come in and took over in treatment room 3 he washed his hands. When he left the room he could not remember whether the door open or closed (Tcpt, 28 June 2023, p 26(1)-(24));
4. you could turn the light off in an individual room. There was a switch in each room (Tcpt, 28 June 2023, p 27(12)-(16)).
Mr Vo
1. The evidence of Mr Vo comprised the following:
1. the 23 August 2021 Vo statement;
2. the 9 May 2023 Vo statement;
3. his oral evidence.
The 23 August 2021 Vo statement
1. In the 23 August 2021 Vo statement, Mr Vo gave the following evidence:
"Over the six-treatment sessions that Dr Singh and worked with the patient, there were occasions when I was in the room and Dr Singh was doing treatment or the patient's hip and groin area. She was always in my presence in the following material: a surgery gown, undergarments and 1-2 towels on top of her. Dr Singh had mentioned multiple times to the patient that she needed to work at home with self-management treatment that we had given her, Including self-massaging affected and painful regions, stretching/foam rolling and exercises for the lower back, hip, and groin.
On the 7 of March 2021, the patient sustained a knee injury following an incident at work. At this stage, I treated her knee region, performing soft tissue therapy for quadriceps muscles and game ready cold compression. When she was treated for her knee, she would remain in shorts. I informed her that this injury was unrelated to her current Workcover claim, and that she had to report this to her insurer.
The patient's last treatment session with me was on the 15th of March 2021. where I reviewed parts of her home exercise program, performed soft tissue therapy on her thigh and game ready cold compression on her knee. I booked her a following appointment on the Monday, 22 of March 2021 at 5:00pm, however she had cancelled the appointment at 9:38am that day and rescheduled the following day on Tuesday to see Di Singh. I have not heard from the patient slnce then."
The 9 May 2023 Vo statement
1. In the 9 May 2023 Vo statement, Mr Vo gave the following evidence:
1. he was employed and practised at Physical Health from July 2020 to 21 February 2023 (at [2]);
2. the consultations at Physical Health were always open door (at [6]);
3. as to the dealings between himself or the respondent and Patient A regarding payment by WorkCover for her treatment (at [11]-[14]):
"11. On the 8th of March 2021, the patient presented to clinic with a limp and she was having pain weightbearing. She said to me words to the effect of: "I have dislocated my right patella as diagnosed by the paramedic on the scene." This seemed to be correct symptomatically through my assessment. I told Patient A: "Report this to your GP or Workcover, as this is a new injury which requires a new claim filed to be treated under Workcover."
12. On the 15th of March, I reminded the patient: "I will no longer be treating you under Workcover unless we receive a new Workcover number, or you are more than welcome to come as a private patient". After that, Patient A cancelled her next appointment with myself which had been booked for the 22nd of March 2021, and started consulting with Dr Singh instead.
13. Towards the end of March Dr Singh asked me: "Please send me an AHRR [allied health request form] so that I can update and process the new Workcover injury the patient sustained on the 7th of March 2021." At this time, the patient's symptoms had become worse for both the initial hip/lumbar injury as well as the new knee injury. Unfortunately, I misunderstood Dr Singh, and I completed and forwarded an AHRR 2 to Allianz insurance, instead of sending AHRR 1 to Dr Singh.
14. On the 3rd of June 2021, Dr Singh said to me: "To my surprise an AHRR 2 has been approved via Allianz, Victoria." I said: "Sorry this was my mistake." Dr Singh then advised me "Allianz has issued a cheque in your name." He showed me the letter that the clinic had received. Dr Singh told me: "The cheques should be under the clinic name. I've tried to contact the case manager to not only change the name on cheque, but to also pay the current invoice under New South Wales SIRA fees guidelines, which stated $125.50 per 2 region consultation instead of $59.50 per consultation. But I did not get a response. The two cheques were received on the 24th of April 2021, and 5th of June 2021, and have not been banked.""
1. he never saw the respondent remove underwear off a patient or pull down a patient's underwear (at [15]).
The oral evidence of Mr Vo
1. In cross-examination, Mr Vo gave the following evidence:
1. he had had lunch may be once or twice with the respondent since he left. He denied discussing the case or Patient A with him at the time of their lunch (Tcpt, 28 June 2023, p 51(14)-(45));
2. the respondent who approached him to provide his first and second statements (Tcpt, 28 June 2023, pp 51(47)-52(44));
3. after initially denying seeing the respondent on 9 May 2023, he said he said hello to him but there was not any further communications. He did not show his statement to the respondent (Tcpt, 28 June 2023, p 54(10)-(47));
4. he ceased treating Patient A on 15 March 2021 and continued to correspond with Allianz because he was not sure if he was still the primary practitioner (Tcpt, 28 June 2023, p 60(19)-(37));
5. the respondent did not discuss the need for a further WorkCover claim with Patient A in his presence (Tcpt, 28 June 2023, p 63(12)-(41));
6. between 7 December 2020 and 15 March 2021 he was unsure if there were times when the respondent treated Patient A while he was attending to other patients. Then he said the respondent treated Patient A without him being present but he would have been in visible range or close by (Tcpt, 28 June 2023, pp 69(24)-71(3));
7. he had no specific recollection of Ms Romero assisting him and the respondent treating Patient A (Tcpt, 28 June 2023, p 73(17)-(20));
8. he treated Patient A's hamstrings during the time that he was treating her (Tcpt, 28 June 2023, p 74(20)-(30));
9. that there were times where he treated Patient A with the door closed. He agreed that the 9 May 2023 Vo statement at [6] was not correct with respect to Patient A (Tcpt, 28 June 2023, p 75(9)-(22));
10. he denied that he had spoken to the respondent about his evidence in the 9 May 2023 Vo statement at [7] (Tcpt, 28 June 2023, pp 75(24)-76(17));
11. he said Ms Romero assisted him treated Patient A as stated in the 9 May 2023 Vo statement at [7] based on the schedule at the practice (Tcpt, 28 June 2023, p 77(3)-(29));
12. he was not sure if the respondent was ever alone with Patient A with the door closed (Tcpt, 28 June 2023, pp 77(31)-78(8));
13. he recalled the conversation with Patient A in the 9 May 2023 Vo statement at [12] (Tcpt, 28 June 2023, pp 78(45)-79(1));
14. he did have the conversation with the respondent in the 9 May 2023 Vo statement at [14] and agreed that there was no correspondence from him to Allianz saying that you'd lodged the AHRR2 form by mistake (Tcpt, 28 June 2023, pp 82(46)-83(16)).
1. In answer to questions by the Tribunal, Mr Vo gave the following evidence:
1. he had a specific memory of working with a massage therapist with Patient A, who was "Lauren or Luke" (Tcpt, 28 June 2023, pp 83(40)-84(3));
2. he did not have access to the Patient A Physical Health clinical records after February 2023 (Tcpt, 28 June 2023, pp 84(22)-85(25));
3. he explained that he remembered dates in the 9 May 2023 Vo statement because he made notes when he made the 23 August 2021 Vo statement (Tcpt, 28 June 2023, pp 86(46)-88(1)).
1. In re-examination, Mr Vo gave evidence that he would have made a note on the specific treatments in the Patient A Physical Health clinical records usually on the same day, that he treated Patient A's hamstrings and that sometimes he was a bit forgetful about recording treatments (Tcpt, 28 June 2023, pp 89(34)-90(39)).
Mr Wilson
The undated Wilson statement
1. In the undated Wilson statement, Mr Wilson gave the following evidence:
1. he has been a patient of the respondent since January 2020;
2. as to his attendance at Physical Health on 22 June 2021:
"On the 22nd June 2021 I had an appointment booked in at 5.30prn. On arriving at the practice which is inside Camden Healthcare Centre, I noticed it was quite busy due to the co-vid vaccinations.
Once downstairs waiting for Dr Atil Singh at around 5.20pm, I noticed that it was also quite busy and there were few patients waiting in the outside waiting area. I noticed that it was only Dr Singh and Luke working that day.
Whilst taking the next person in, Dr Singh came out and apologised that there were running behind due to Lauren and Daniel being sick and there were running approximately 30 minutes behind.
At approximately 6pm, I entered the treatment room and Dr Singh Assessed me and marked regions to be treated using heat cream, few minutes later Luke came in and started treatment. After approximately 15-20 minutes Dr Singh entered the room and began treating me he then asked if, I was in a rush as he wanted to do dry needling with machine for around 20 to 30 minutes.
I stated that would be ok to do so, he proceeded to start and once done he left the room and closed the door. I heard Luke, say Goodbye to Dr Singh, then after 20 to 25 minutes he returned to the room to remove the needle and machine. He asked me if after 5pm suits me in 3 weeks for follow up. l said that should be fine, he said that l will get a reminder message as usual with exact time, and advised me to get dressed and left the room, apologising once again delay before closing the door.
I left the clinic at approximately 6.50-7pm the treatment room door and front doors were open."
The oral evidence of Mr Wilson
1. In examination-in-chief and in cross-examination, Mr Wilson gave evidence that he was asked by the respondent for the undated Wilson statement just before Christmas or just after Christmas 2022 and probably gave him the statement on his next visit which was probably February 2023. He usually sees the respondent every three weeks (Tcpt, 29 June 2023, pp 5(13)-(22), (38)-(39), 6(9)).
2. In cross-examination, Mr Wilson gave the following evidence:
1. he remembered the evening in question because the respondent was pretty frustrated that night; he'd been waiting for a long time (Tcpt, 29 June 2023, p 5(41)-(45));
2. he denied showing the undated Wilson statement to the respondent prior to signing it (Tcpt, 29 June 2023, p 6(11), (28)-(29));
3. he had been seeing the respondent for about three and a half years. He was first referred to him with a WorkCover incident and had maybe 10 treatments through WorkCover. He had kept going to him ever since. By the time of his appointment on 22 June 2021, he was a private patient (Tcpt, 29 June 2023, p 6(31)-(47));
4. he spoke to the respondent about coming to the Tribunal to give evidence the week before, including what to wear and expect. The respondent said, "Just tell the truth" (Tcpt, 29 June 2023, p 7(8)-(14));
5. the respondent did not provide him with any documents at all before he prepared the undated Wilson statement (Tcpt, 29 June 2023, p 7(19)-(20));
6. he could not remember what treatment he received from the respondent on 22 June 2021. He thought he was treated by "Luke" (Tcpt, 29 June 2023, p 7(22)-(40));
7. he said that his appointment was at 5.30pm and he arrived at 5.20 pm. He conceded that this time was an estimate based on his travel time from work. He said that his treatment did not start until 6.00pm and his treatment sessions were normally about half an hour to 40 minutes (Tcpt, 29 June 2023, pp 7(42)-8(18));
8. when challenged as to his statement in the undated Wilson statement that he did not leave until about 6.50pm to 7.00pm on the basis that his consultation started at 6.00pm and finished about 7.00pm, he said that "(the respondent) came into the room, and - and apologise for being - being so late" (Tcpt, 29 June 2023, p 8(20)-(29));
9. he said that there were a couple of patients waiting outside the practice, two or three at the most, when he arrived. He did not know how many were being treated (Tcpt, 29 June 2023, pp 8(31)-(33), (41)-(47); 9(16)-(40));
10. he was not sure whether Mr Nies was still there when he finished. He did not think he was (Tcpt, 29 June 2023, p 9(1)-(12));
11. when he left there was still one there, and there was one waiting to be treated, a tall guy, just either a shaved or a bald head, dark skin. He did not mention that in the undated Wilson statement because he did not think it was relevant and denied mentioning it because he had a conversation with the respondent about it (Tcpt, 29 June 2023, pp 8(33)-(39); 9(42)-10(45)).
1. In answer to questions by the Tribunal, Mr Wilson gave the following evidence:
1. when he was being treated on that day, the door to the treatment room was open. It was always open (Tcpt, 29 June 2023, p 11(6)-(8));
2. he did not recall whether there was a conversation or a goodbye when Mr Nies left (Tcpt, 29 June 2023, p 11(12)-(18));
3. he was treated in treatment room 3 as marked on the enlarged floor plan on 22 June 2021 (Tcpt, 29 June 2023, p 11(33)-(43));
4. he did not look into the other treatment rooms when he entered treatment room 3. " … all the doors were always open in this practice" except when he was getting changed (Tcpt, 29 June 2023, p 12(11)-(28));
5. the respondent would usually use towels when treating his lower back (Tcpt, 29 June 2023, pp 12(30)-13(5)).
Ms Mclear
1. The evidence of Ms Mclear comprised the following:
1. the 11 May 2023 Mclear statement;
2. her oral evidence.
The 11 May 2023 Mclear statement
1. In the 11 May 2023 Mclear statement, Ms Mclear gave the following evidence:
1. she started working for the respondent in January 2022 at Physical Health as a receptionist (at [2]);
2. she had personally had treatment from the respondent for her lower back and hips including while she was pregnant last year (at [9]).
The oral evidence of Ms Mclear
1. In cross-examination, Ms Mclear gave the following evidence:
1. her baby was born in December 2022 and she started receiving treatment from the respondent around June 2022. She put the treatment through her health fund. She only needed a few adjustments (Tcpt, 29 June 2023, pp 58(31)-59(14));
2. she showed the 11 May 2023 Mclear statement to the respondent before she signed it and he did not suggest any changes (Tcpt, 29 June 2023, p 59(32)-(36)).
Dr Romero
1. The evidence of Dr Romero comprised the following:
1. the 23 August 2021 Dr Romero statement;
2. the 8 May 2023 Dr Romero statement;
3. his oral evidence.
The 23 August 2021 Dr Romero statement
1. In the 23 August 2021 Dr Romero statement, Dr Romero gave the following evidence:
1. his observations of the treatment of Patient A by the respondent on 6 April 2021 (at [3]-[13]);
2. his treatment of Patient A on 13 April 2021.
The 8 May 2023 Dr Romero statement
1. In the 8 May 2023 Dr Romero statement, Dr Romero gave the following evidence:
1. his observations of the treatment of Patient A by the respondent on 6 April 2021 (at [3]-[13]) including:
"8, The patient advised Dr Singh that "I am getting intermittent muscle cramps around my hip/groin, and lower back regions." Dr Singh asked her what's your hydration like and are you taking any magnesium supplements?" Patient A replied "I'm not sure".
9. Dr Singh then said "If you start to experience loss of sensation to the genital region, or more importantly bowel or bladder incontinence you should see Dr Pobbathi for some further testing." Dr Singh then told me "this is in regard to exploring the possibility of pudendal nerve compromise/compression, or cauda equina syndrome."
1. his treatment of Patient A on 13 April 2021 (at [14]-[15]);
2. Patient A was wearing underwear both times he treated her (at [16]);
3. Physical Health is an open-door clinic, which means that the doors are always open during treatment and only closed when patients are getting changed or for modesty reasons requested by the patient (at [22]).
The oral evidence of Dr Romero
1. In cross-examination, Dr Romero gave the following evidence:
1. he worked as a chiropractor for the respondent two times up to four times a week from February 2021 to February 2021 (Tcpt, 29 June 2023, p 68(7)-(16));
2. he was approached by the respondent to provide the 23 August 2021 Dr Romero statement and had access to the Patient A Physical Health clinical records (Tcpt, 29 June 2023, p 69(4)-(14));
3. his firm belief was that the allegations of Patient A were not true "because I have seen the patient, like I've seen her multiple times and she was always in high spirits, happy mood, very chatty, she loved coming to the clinic, she was always very much like thank you so much for having me". His firm belief was that if the respondent had engaged in the impugned conduct then Patient A would have exhibited behaviour like crying and being upset (Tcpt, 29 June 2023, p 69(16)-(41));
4. he theory as to why Patient A would make up the allegations had something to do with WorkCover, that she was potentially trying to get free treatments out of the respondent (Tcpt, 29 June 2023, p 69(43)-(48));
5. he denied that he was not present during the consultation of Patient A on 6 April 2021 (Tcpt, 29 June 2023, pp 70(32)-71(12));
6. he agreed that he made a mistake as to the areas of complaint of Patient A in the 23 August 2021 Dr Romero statement. He wrote the statement at home and had the ability to look at the Patient A Physical Health clinical records (Tcpt, 29 June 2023, pp 71(22)-72(9));
7. he said that he remembered Patient A using her hands to cup her groin whilst the respondent was treating her on 6 April 2021 (Tcpt, 29 June 2023, p 73(8)-(18));
8. he said that he was the primary practitioner of Patient A on 13 April 2021 (Tcpt, 29 June 2023, p 73(24)-(27));
9. he prepared the 8 May 2023 Dr Romero statement over a period of some months commencing in 2022 and the respondent did not tell him what to put in the statement (Tcpt, 29 June 2023, pp 74(20)-75(27));
10. he denied that he was making up being at the clinic on 11 May 2021 (Tcpt, 29 June 2023, pp 75(32)-76(26));
11. he recalled Patient A leaving the clinic on 8 June 2021 (Tcpt, 29 June 2023, p 77(10)-(20));
12. there had been times that he tried to close the door and the respondent would walk straight in and open it straightaway. He was very adamant on the doors being open just for the comfort of the patients and also for himself (Tcpt, 29 June 2023, p 77(25)-(40));
13. he denied that the respondent prompted him to include the conversation in the 8 May 2023 Dr Romero statement at [8] and [9] (Tcpt, 29 June 2023, p 77(42)-78(27)).
Mr Salib
1. The evidence of Mr Salib comprised the following:
1. the 9 May 2023 Salib statement;
2. his oral evidence.
The the 9 May 2023 Salib statement
1. In the 9 May 2023 Salib statement, Mr Salib gave the following evidence:
1. he has been a patient at Physical Health since 4 March 2019 (at [2]);
2. he has been purchasing supplementation through the respondent since early January 2021 to assist with his health and recovery (at [4]);
3. as to his attendance at Physical Health on 22 June 2021 (at [7]-[15]):
"7. On the 22nd of June, I arrived at that clinic at approximately 18:40 and walked down from [street name omitted] to the Council Carpark on [street name omitted] Camden. I saw Luke walking to the car park that evening as I was arriving.
8. Upon arrival at the entrance, I waited a few seconds and saw someone exit the building and walked in while the door was open. Once inside the centre, I waited outside the clinic and saw Dr Singh was still with patients. I saw Dr Singh exit a treatment room and go to the reception desk and I saw a patient leave the clinic. I then proceeded inside the clinic to do some rehab exercises.
9. When I was inside the clinic all doors were open and lights were on. I could hear Dr Singh talking to a patient in the end room furthest from the entry door.
10. I entered the rehabilitation area located outside the treatment rooms, picked up warm-up dumbbells for shoulder exercises. I could see Dr Singh treating a patient in the end room. The patient was lying on her back, covered with towels.
11. After approximately 15-20 minutes, I then heard Dr Singh say "You have 2 weeks or else will contact Workcover and your employer" and then asked her to get changed, he then closed the door and walked out.
12.I was startled because I have never heard him raise his voice. I could see that he was upset as he greeted me and walked to his laptop. I saw him type something on his laptop. He asked me to please come outside and he removed the wedge from the door.
13. He apologised to me saying "Sorry George this is why I hate Workcover. I'm going to wash my hands". I said to him: "I will wait outside." I then walked outside near the car park to have a cigarette.
14.A few minutes later, I saw Dr Singh and a female patient exit, Dr Singh was holding bags of shopping and his work bag. I saw him walk the patient up to the handrail and saw the patient hug Dr Singh, who had his arms down holding the shopping.
15.As he was walking down, I grabbed two shopping bags from Dr Singh not realising how heavy they were. He smiled and said, "It's full of the best water in the world Fiji Water." He then said to me: "I can't believe people, I have helped this patient get work cover approvals for her past injury and showed her that we didn't get paid correctly and she started crying when we said that we can't treat her for a new injury until a new claim is fled. She agreed to file a claim or pay us once she gets a new job and now once she has a new job, is calling me greedy. I'm so pissed off that I told her if she doesn't I will contact work cover and her employer to let them know"."
1. he was requested by the respondent to make the statement on 15 March 2023 (at [18]).
The oral evidence of Mr Salib
1. During the cross-examination of Mr Salib counsel for the applicant inspected the text messages on his mobile phone from June 2021 to date. Mr Salib stated that he was communicating with the respondent mainly by text messages, but also by WhatsApp (Tcpt, 29 June 2023, p 54(33)-(34)). He was unable to give access to the WhatsApp messages on his phone because he had a new phone and the WhatsApp messages did not back up correctly (Tcpt, 29 June 2023, pp 54(37)-55(18)).
2. In cross-examination, Mr Salib gave the following evidence:
1. he had known the respondent since 2019 when he was referred to the respondent for a WorkCover injury. He used to see the respondent twice a week, which was cut down to once a week and is now once a fortnight (Tcpt, 29 June 2023, p 29(33)-(45));
2. he denied having become "fairly close" to the respondent. The relationship was just him being a patient and the respondent treating him. They do not socialise (Tcpt, 29 June 2023, p 30(1)-(5));
3. he was approached to provide a statement by the respondent around the time of his mother's death on 5 September 2021, maybe just after. The respondent said that someone had claimed sexual harassment, but they did not get into it in detail (Tcpt, 29 June 2023, p 30(7)-(17));
4. he saw the respondent for treatment on the day he signed the 9 May 2023 Salib statement and denied discussing it with him. He would have given it to him at the next consultation (Tcpt, 29 June 2023, pp 30(41)-31(16));
5. he could not recall whether he received a handwritten receipt on the evening of 22 June 2021 or the respondent may have emailed it to him (Tcpt, 29 June 2023, p 32(12)-(18));
6. the respondent had supplements on display in his practice (Tcpt, 29 June 2023, p 33(1)-(13));
7. he collected vitamins which were taken from the respondent's car boot on 22 June 2021 (Tcpt, 29 June 2023, p 33(20)-(38));
8. he said he arrived around 6.40pm as he had left home about 6.00pm and it would usually take him half an hour to 40 minutes to get to the practice (Tcpt, 29 June 2023, p 34(3)-(6));
9. he could not remember what the patient who left looked like, and whether male or female (Tcpt, 29 June 2023, pp 34(41)-35(10));
10. he could not remember what the female patient who was receiving treatment looked like. The patient was just lying on her back with a towel over her (Tcpt, 29 June 2023, pp 35(12)-36(8));
11. he denied that the respondent had told the conversation set out in the 9 May 2023 Salib statement at [11] (Tcpt, 29 June 2023, p 36(10)-(37));
12. he denied that he had made up the evidence in the 9 May 2023 Salib statement about the fact that he was at the clinic at the times stated on 22 June 2021 (Tcpt, 29 June 2023, pp 38(45)-39(43));
13. he denied that he and the respondent were good friends who regularly text each other. There were text messages between them about sourcing exercise equipment, purchasing a motor vehicle, joking about a highchair, taking medication, and changing appointments times. There were about five conversations between them between June 2021 and September 2021 including the respondent telling him "that he's got lots going on with his wife" (Tcpt, 29 June 2023, pp 51(4)-53(6)).
1. In answer to questions by the Tribunal, Mr Salib gave the following evidence:
1. when he was using the weights in the treatment area, he could see the patient lying with their head towards the door and he knew it was a woman because he could see long hair. The lights in the treatment room were switched on (Tcpt, 29 June 2023, p 40(8)-(16));
2. the respondent asked him to provide a statement in the first or second week of September 2021 (Tcpt, 29 June 2023, p 40(24)-(47)).
1. In re-examination, Mr Salib gave evidence that he left the building by the door on the eastern side (Tcpt, 29 June 2023, p 43(39)-44(8)).
Ms Romero
1. The evidence of Ms Romero comprised the following:
1. the August 2021 Ms Romero statement;
2. the 11 May 2023 Ms Romero statement;
3. her oral evidence.
The August 2021 Ms Romero statement
1. In the August 2021 Ms Romero statement, Ms Romero gave the following evidence:
1. she had worked at Physical Health since June 2019;
2. she treated Patient A on multiple occasions with both the respondent and Mr Vo. Patient A usually came in with a pair of shorts, and wore undergarments as she knew her groin and glutes were the treatment areas, and they then draped a towel over her shorts/undergarments, only exposing the treatment area.
The 11 May 2023 Ms Romero statement
1. In the 11 May 2023 Ms Romero statement (using the version which is exhibit R11), Ms Romero gave the following evidence:
1. she was employed at Physical Health from June 2019 until February 2022 as a chiropractic assistant and remedial massage therapist (at [2]);
2. she treated Patient A on multiple occasions with both the respondent and Mr Vo. Patient A usually came in with a pair of shorts, and wore undergarments as she knew her groin and glutes were the treatment areas, and they then draped a towel over her shorts/undergarments, only exposing the treatment area (at [6]);
3. on 1 February 2021, she observed Patient A hug the respondent (at [12]);
4. she has never seen the respondent remove or ask any patient to remove their undergarments (at [14]).
The oral evidence of Ms Romero
1. In cross-examination, Ms Romero gave the following evidence:
1. she worked as a chiropractic assistant for the respondent two to three days a week depending on bookings and as a massage therapist one day a week (Tcpt, 29 June 2023, p 104(30)-(37));
2. she was approached by the respondent to provide the August 2021 Ms Romero statement and had access to patient A's notes (Tcpt, 29 June 2023, pp 104(43)-105(11));
3. she could not recall if she was approached by the respondent or his solicitor to provide the 11 May 2023 Ms Romero statement and as she did not have access to Patient A's notes she confirmed dates with the respondent (Tcpt, 29 June 2023, p 105(13)-(47));
4. throughout the entire time she worked she received treatment from the respondent on average weekly, but was not charged (Tcpt, 29 June 2023, p 106(9)-(32));
5. she accepted that she had signed consent forms for female patients between 28 September 2021 and 15 February 2022. She was not aware that he had conditions on his registration (Tcpt, 29 June 2023, pp 106(34)-107(4));
6. when she was treating Patient A sometimes the door would be closed for a little bit more privacy because it was two women and if the other practitioners Mr Vo or the respondent would want to enter they would knock on the door first but when they were treating her the door was always open (Tcpt, 29 June 2023, pp 107(46)-108(6));
7. she was not involved in the treatment of Patient A after 8 March 2021 (Tcpt, 29 June 2023, p 109(41)-(47));
8. she accepted that she was incorrect in the August 2021 Ms Romero statement in saying that Patient A became the patient of Mr Vo after 8 March 2021 and that Mr Vo treated Patient A on 21 December 2020. She changed her evidence in the 11 May 2023 Ms Romero statement about the treating practitioner on 21 December 2020 because of a conversation with the respondent (Tcpt, 29 June 2023, pp 110(1)-111(2));
9. she included details of the attendance of Patient A on 1 February 2021 in the 11 May 2023 Ms Romero statement flowing a conversation with Dr Romero. She did not know whether Dr Romero had been present at the clinic on 1 February 2021 (Tcpt, 29 June 2023, pp 111(46)-112(16));
10. she denied that the respondent had told her what to say and said she was telling the truth (Tcpt, 29 June 2023, p 112(18)-(23));
11. she could not be confident that she observed Patient A hug the respondent on 1 February 2021 and was not sure that the respondent spoke the words in the 11 May 2023 Ms Romero statement at [12] (Tcpt, 29 June 2023, p 112(26)-(32)).
1. In answer to questions by the Tribunal, Ms Romero gave evidence that when the respondent treated her as a patient on her own he did not make any formal clinical notes or have a patient file (Tcpt, 29 June 2023, pp 112(46)-113(1)).
Mr Kuchar
The 29 March 2023 Kuchar statement
1. In the 29 March 2023 Kuchar statement, Mr Kuchar gave the following evidence:
1. he is a registered physiotherapist;
2. he has personally and professionally known the respondent for approximately 10 years. They had worked together at an allied health clinic prior to becoming business partners almost 6 years ago;
3. as to the use of gowns and towels:
"Whilst in consultation accessing sensitive body areas, it has ways been a standard practice to offer the use of gowns and towels for appropriate coverage, whether the client Is a male or female."
1. as to the allegations against the respondent and his character:
"I am aware that Mr Atll Singh has been accused of misconduct involving a female patient and that he is pleading not-guilty to this accusation. I was extremely shocked to hear that something of this nature had taken pai' as I would not expect Atil to take part of such misconduct."
"When Atil approached me to write a character reference, I did not hesitate as I truly believe that he is one of good character and would not act unprofessionally in any way whilst helping people from all ages arid genders."
Dr Pobbathi
The 2 May 2023 Pobbathi statement
1. In the 2 May 2023 Pobbathi statement, Dr Pobbathi gave the following evidence:
1. he is one of nine generaI practitioners working at Camden HealthCare Centre (at [1]);
2. his involvement with Patient A (at [2]-[10]) including:
"10. In the time that I had consulted the patient, she never mentioned anything negative about Dr Singh's behaviour or language. She was very pleased with the level of care provided by Dr Singh and the Physical Health Staff."
1. as to the competence and character of the respondent (at [11]-[18]):
"11. Over the years. I have referred a great number of my patients that have had musculoskeletal disorders, for pain management, improving functional capacity and exercise rehabilitation and have never had any issue or complaint for him.
12. His dedication, mannerism arid good communication skill make working with him very easy and pleasant.
13. In my observation as a generaI practitioner, I have seen that Dr Singh has extensive clinical knowledge arid experience, which is highly valued by the local community of Camden and surroundings.
14. I attribute evidence for this to my observation that while Dr Singh's clinic has been in business for years, marry patients return to see him for new problems after my referral.
15. I have taken this as good evidence both of competence and character, along with my own experience of Dr Singh, which is why I was surprised when he told me about the complaint, as it doesn't match with my experience or what I have seen from Dr Singh behaviour.
16. On occasion where, I have either gone downstairs to the lunchroom or after finishing work and enter the clinic to see Dr Singh whiIst he has been treating. I have always observed the treatment room door to be open and patients regardless or male or female always properly draped with a towel.
17. As a patient, myself and my family have been attending the clinic for many years and continue
to do so, arid have always experienced a high leveI of service in all regards. Which is why I continue to highly recommend Dr Singh arid his team to all my patients.
18. Thus, from my perspective, I am confident to offer my opinion that Dr Singh is of exceIIent competence and character in his capacity as a Chiropractor and business operator."
Ms Reddy
The undated Reddy statement
1. in the undated Reddy statement, Ms Reddy gave the following evidence:
1. she has had conversations with the respondent regarding the safety of patrons and staff regarding the walkway between Camden HealthCare Centre and her café;
2. she has known the respondent for approximately four years and has seen him walk many male and female patients and staff through the walkway in the evening.
Ms Parlato
The 11 May 2023 Parlato statement
1. In the 11 May 2023 Parlato statement, Ms Parlato gave the following evidence:
1. she is a massage therapist and started working with the respondent in April 2022 (at [3]);
2. the respondent has shown and explained to her the draping procedures and to ask for consent to touch each patient (at [5]);
3. patients often tell her that they feel safe and cared for by the respondent (at [6]);
4. she has never seen the respondent remove any patients' undergarments or ask them to remove any undergarments. No patient has ever said to her that the respondent has been inappropriate, or she has not heard him do or say anything alleged in the particulars of Complaint One of the Complaint which she has read (at [9]).
Ms Moronta
The 9 May 2023 Moronta statement
1. In the 9 May 2023 Moronta statement, Ms Moronta gave the following evidence:
1. she has known the respondent for the past year as she is one of the receptionists at Physical Health (at [2]);
2. at her interview the respondent informed her of the allegations made against him and prior to writing her statutory declaration she read "the full complaint" (at [3]);
3. the respondent's instructions to patients are always the same for every patient, male or female. He says: "Please get changed, leave your undergarments on and once ready open the door." (at [5]);
4. she has never seen the respondent have any trouble with any patient, she has never seen bad behaviour attitude or unprofessionalism from him and she recommends him to all her friends (at [7]-[8]).
Mr Adamski
The 11 May 2023 Adamski statement
1. In the 11 May 2023 Adamski statement, Mr Adamski gave the following evidence:
1. he is a physiotherapist and has been working for the respondent since August 2022 (at [1]);
2. he is fully aware of the respondent's complaint to the applicant (at [2]);
3. many patients return to see the respondent for new problems and he takes that to be evidence of competence and good character, along with his own experience of the respondent (at [4]-[5]);
4. every time they work on a patient they try to make them feel as comfortable as possible asking them how they feel and using draping so that only the body part to be treated is exposed. He has never seen the respondent work on a patient without underwear or heard him say anything inappropriate to a patient (at [7]);
5. as to the competence and character of the respondent (at [8]):
"8. Thus, from my perspective as an employee, I am confident to offer my opinion that Dr Singh is of exceIIent competence and character in his capacity as a Chiropractor and business operator."
Mr Mikulic
The 30 March 2023 Mikulic statement
1. In the 30 March 2023 Mikulic statement, Mr Mikulic gave the following evidence:
1. he is an exercise physiologist and chiropractor who works in Miranda Medical Centre. He has known the respondent since 2012 and has studied and worked with him, occasionally co-managing the same patients;
2. he has always known the respondent to be a kind, hardworking and respectful person;
3. he has never received any complaints of the respondent's practice or patient care. On the contrary, he has only heard positive feedback concerning the respondent's treatment and professionalism towards patients;
4. he is aware of the current complaint which in his opinion does not reflect the respondent's actual character and chiropractic care. He has no hesitation in providing a reference as to the respondent's good character and professionalism.
Mr Joy
the 26 February 2023 Joy statement
1. In the 26 February 2023 Joy statement, Mr Joy gave the following evidence:
1. he has known the respondent for the last five years and works for him as an exercise physiologist;
2. the respondent is extremely professional with his patients and has great credibility as a therapist with both patients and other therapists.
Ms Pobbathi
The undated Pobbathi statement
1. In the undated Pobbathi statement, Ms Pobbathi gave the following evidence:
1. she started seeing the respondent for treatment over two years ago (at [1]);
2. she is aware of the complaint against the respondent (at [2]);
3. the door is always open during her treatment with other staff coming and going. The only time it is closed is when she is changing into a gown and she opens the door when she is ready for treatment (at [4]);
4. the respondent always asks permission to start treatment and says what area he will focus on first. He always places a drape over her. When moving to treat a new area he always asks permission to treat that area (at [5]);
5. she is aware of the complaint against the respondent and has never seen such behaviour from him (at [7]).
Ms Hunt
The undated Hunt statement
1. In the undated Hunt statement, Ms Hunt gave the following evidence:
1. she is fully aware of the respondent's complaint from the applicant (at [1]);
2. she started seeing the respondent for treatment in May 2021 (at [2]);
3. for each treatment the respondent has explained which region he would be working on and has always asked for consent every time (at [6]);
4. she would not hesitate to recommend the respondent and his clinic to her family and friends (at [8]).
Ms Barry
The 11 May 2023 Barry statement
1. In the 11 May 2023 Barry statement, Ms Barry gave the following evidence:
1. she started seeing the respondent for treatment at Peak Health in Green Valley over six years ago and followed him to Physical Health at Camden (at [1]);
2. the respondent has been the only practitioner who has helped her get better, always respectfully and professionally (at [2]);
3. at each consultation the respondent asks where the region of pain is, followed by "Can you please touch the area where the pain is the most". He explains the region to be treated and always ask for consent if he is going to move to a new area (at [3]);
4. he always places a towel that covers her and only the body part to be treated is exposed. He has never seen her for treatment without her underwear and he has never asked her to remove it ever (at [4]);
5. the respondent's advice is always the same; continue the rehab program and massage the region of pain at home (at [5]);
6. she is aware of the complaint made against the respondent but she trusts him and has taken her daughter in for treatment as well as recommended him to many other members of her family and friends. She has never experienced any occasion where he has been inappropriate in his conduct, language or demeanour (at [6]-[7]).
Mr Furner
The 4 April 2023 Furner statement
1. In the 4 April 2023 Furner statement, Mr Furner gave the following evidence:
1. he started seeing the respondent for treatment at Physical Health from 12 August 2019. He suffers from hip pain, groin pain, lower back pain shoulder impingement, tendinitis and multiple injuries (at [1]);
2. with groin pain the respondent and his team have treated him on each occasion very professionally with draping (at [2]);
3. the respondent would always ask for his consent every time when working in a private area (at [3]);
4. he is aware of the respondent's complaint to the HCCC, but still recommends the respondent to his colleagues, family and friends if they need treatment, as the respondent never showed to him any bad behaviour or action (at [6]).
The HCCC submissions in chief and supplementary oral submissions
1. In the HCCC submissions in chief and supplementary oral submissions, the applicant made submissions on the following matters:
1. the standard of proof;
2. the background of Patient A and the respondent, and the initial response of the respondent to the 15 August 2021 Patient A complaint. We have not set out these submissions as their substance has been set out already in this decision;
3. the principles applicable to the assessment of the credit of witnesses;
4. the assessment of the credit of Patient A and Ms Patient A's sister-in-law;
5. the assessment of the credit of the respondent and the respondent's witnesses;
6. whether the respondent engaged in unsatisfactory professional conduct within s139B(1)(a) and (l) of the National Law;
7. whether the respondent engaged in professional misconduct within s139E of the National Law.
The principles applicable to the assessment of the credit of witnesses
1. The applicant made the following submissions as to the principles applicable to the assessment of the credit of witnesses:
1. the approach in Campbell v Campbell [2015] NSWSC 784 at [73]-[79] should be applied;
2. the application of decisions in the field of criminal law concerning sexual offences including King v Health Care Complaints Commission [2011] NSWCA 353 (King) at [65]-[68], Health Care Complaints Commission v Priyamanna [2015] NSWCATOD 138 (Priyamanna) at [179], and Maughan v R [2020] NSWCCA 51 (Maughan) at [2];
3. the principles in ss 292B, 292C, 292D, 293A, 294 and 294AA of the Criminal Procedure Act 1986 (NSW) (CP Act) as well criminal cases considering sexual assault victim behaviour should be considered by the Tribunal in addressing misconceptions of such behaviour;
4. the principles in R v Bauer (2018) 266 CLR 56; [2018] HCA 40 (Bauer) should be applied with respect to the collusion between witnesses.
The assessment of the credit of the respondent and the respondent's witnesses
The respondent
1. The applicant made the following submissions as to the evidence of the respondent:
1. he was an untruthful witness, an unreliable historian and evasive, argumentative and defensive whilst giving evidence. His evidence was tainted by a desire to give evidence to suit his case as opposed to a need to tell the truth. He lacked insight in relation to his conduct including his breaches of the 21 September 2021 Council conditions insisting that they were training sessions and refusal to acknowledge that Patient A was a vulnerable patient. He minimised his involvement in Patient A's treatment and exaggerated the level of involvement of his other staff members in Patient A's treatment. He embellished his evidence when it suited him. He deflected his evidence with rhetorical questions. He also had an inflated perception of his own skills;
2. the 27 August 2021 Singh response should be given greater weight by the Tribunal then any of the subsequent evidence of the respondent, particularly in relation to the following matters:
1. it only mentions Mr Wilson in relation to an appointment on 6 April 2021. The Tribunal should infer from this that Mr Wilson left before Mr Nies or shortly thereafter and prior to the respondent's inappropriate conduct towards Patient A during the last consultation. Even if Mr Wilson left after Mr Nies, it was shortly thereafter and there was still ample opportunity for the respondent to engage in the impugned conduct;
2. it makes no mention of Mr Salib being present at the last consultation, notwithstanding his regular and ongoing text message exchanges with Mr Salib around the time of the creation of the 27 August 2021 Singh response, including in relation to matters of a personal nature evidencing that their relationship was more than just a practitioner and patient and they were in fact friends despite both denying this in evidence. Mr Salib had also cancelled his appointment with the respondent that day. Had Mr Salib been present, the respondent had ample opportunity to obtain a statement from him. Mr Salib's mother did not pass away until 5 September 2021. The respondent did not require a statement to tell the Council that Mr Salib was present. If Mr Salib was present at the last consultation, the respondent would have put this in the 27 August 2021 Singh response and told the Council of this during the hearing under s 150 of the National Law. The Tribunal should infer from this that Mr Salib was not present during Patient A's last consultation and both the respondent's and Mr Salib's evidence is a subsequent fictional creation of an alibi witness to support the respondent's case;
3. the list of patients of the respondent on 22 June 2021 (which was admitted into evidence as exhibit A3) was not a contemporaneous document and created by the respondent to support his case. The respondent in the 27 August 2021 Singh response said "the patient was triple booked in with two other patients" and then relied on two letters from two other patients and not Mr Wilson. The Tribunal should find that these were the only other two patients booked at the same time as Patient A and even if Mr Wilson was present, his treatment ended much earlier than what both he and the respondent now assert. There were also only three treatment rooms and only the respondent and Mr Nies were working;
1. the 17 September 2021 oral evidence should be given greater weight by the Tribunal then any of the subsequent evidence of the respondent, particularly in relation to the following evidence:
1. there were no other practitioner members or staff members at Physical Health. The Tribunal should infer from this evidence that the respondent treated Patient A alone and there was ample opportunity for him to engage in the impugned conduct;
2. "… So to quickly do that I had enough time to go, wash my hands in the outside room, come back, gather all my belongings, my keys, my phone, my wallet, my bag and then wait for her to basically exit together." The evidence in the 28 April 2023 Singh affidavit at [71] was a gross exaggeration of this earlier evidence, and corroborated by Mr Salib in the 9 May 2023 Salib statement at [14]-[15];
1. the 22 June 2021 at 7.19pm Singh text evidences that Patient A left after Mr Wilson, providing a window of opportunity for the respondent's impugned conduct. This text message was either an attempt by the respondent to create an alibi witness through a friend Mr Salib or even if Mr Salib had collected vitamins from the respondent that day, it does not establish the timing of him doing so and no doubt was much earlier than what both the respondent and Mr Salib now say in their evidence. The 22 June 2021 Patient A text at 7.32pm was sent some 13 minutes later.
Mr Nies
1. The applicant made the following submissions as to the evidence of Mr Nies:
1. the 26 August 2021 Nies statement in relation to the consultation on 22 June 2021 where he referred to Patient A as the last patient is more reliable evidence than the 9 May 2023 Nies statement;
2. paragraph 13 of the 9 May 2023 Nies statement records the conversation in response to his comment to the respondent "Have fun big man" when he was leaving which was consistent with the respondent's most recent evidence, clearly evidencing the respondent's inappropriate influence over his evidence;
3. where his evidence differs from that of Patient A, Patient A's evidence should be accepted. He was not an impartial witness, he was clearly influenced by the respondent in preparing his evidence and his evidence about what occurred was not a genuine recollection of what happened, again evidencing the significant and inappropriate influence the respondent had in preparing his evidence.
Mr Vo
1. The applicant made the following submissions as to the evidence of Mr Vo:
1. he was evasive during cross-examination when questioned about seeing the respondent at the time of signing the 9 May 2023 Vo statement;
2. he was evasive about whether or not he left the respondent alone with Patient A;
3. he was making up the evidence that he had not followed up with Allianz regarding the incorrect AHRR 2 form to support the respondent's case;
4. his memory in the 9 May 2023 Vo statement regarding his presence in the treatment room and dates was much clearer, notwithstanding the passage of time;
5. his evidence as to reliance on an earlier summary of the Patient A Physical Health clinical records when preparing the 9 May 2023 Vo statement was inconsistent and implausible;
6. the Tribunal should find that Mr Vo was not an objective witness, his evidence was unreliable and tainted by the influence of the respondent. Where his evidence differs from Patient A's evidence, Patient A's evidence should be preferred by the Tribunal.
Dr Romero
1. The applicant made the following submissions as to the evidence of Dr Romero:
1. he was aligned with and influenced by the respondent. He was invested emotionally and enmeshed in the respondent's case and inappropriately had formed the view that the respondent had not perpetrated the conduct alleged against Patient A;
2. he gave conflicting evidence about his access to the Patient A Physical Health clinical records when preparing his statements;
3. his evidence was improbable and was evasive when challenged in cross-examination in relation to what access he had to the Patient A Physical Health clinical records when preparing the 8 May 2023 Dr Romero statement;
4. his memory significantly and unreliably improved in relation to the 8 May 2023 Dr Romero statement including attending the clinic on 11 May 2021;
5. the Tribunal should find that he was not a witness of truth. His evidence was not independent and was tainted by the respondent's influence and his shared negative and inappropriate view with the respondent of Patient A.
Ms Romero
1. The applicant submitted that the Tribunal should place no probative value on Ms Romero's evidence and find that she was not a reliable witness.
Mr Salib
1. The applicant made the following submissions as to the evidence of Mr Salib:
1. his evidence about the handwritten receipt was clearly hedging his bets to ensure that he covered all available options to support the respondent's case;
2. his evidence about the delivery of the vitamins on 22 June 2021 was another example of him covering all available options in his evidence in support of the respondent's case;
3. he could not remember what Patient A looked like notwithstanding his inconceivably clear recollection of other facts including the respondent's shopping and conversations;
4. he was not a credible witness. His evidence was influenced and prejudiced by the respondent and a desire to assist the respondent who is clearly a friend. He was available to provide a statement prior to the hearing under s 150 of the National Law and both he and the respondent were in regular communication including the respondent making a complaint about issues with his wife at the time. The Tribunal should reject his evidence.
Ms Mclear
1. The applicant submitted that Ms Mclear was a witness of truth and her evidence about the respondent's treatment of her as a patient whilst working for him should be accepted by the Tribunal.
Mr Wilson
1. The applicant made the following submissions as to the evidence of Mr Wilson:
1. he was unable to give any plausible explanation for his estimate of the time that he left the practice. Even if his evidence is accepted, having regard to the time of sending of the 22 June 2021 Patient A text at 7.32pm, Patient A did not leave until around 7.15pm or so and accordingly there was still a window of opportunity for the respondent to have engaged in the impugned conduct;
2. his evidence that there were a couple of patients waiting outside the practice, maybe two or three, was implausible, not consistent with the respondent's and his other witnesses' evidence, and showed the level of inappropriate influence the respondent has had on his recollection;
3. his evidence that there was a male patient waiting outside when he left, which was omitted from the undated Wilson statement, again showed the inappropriate influence the respondent has had on his evidence. The Tribunal can infer that his evidence was not a genuine recollection of what happened, but rather evidence from subsequent conversations with the respondent;
4. he was not an objective and fair-minded witness and his evidence was clearly influenced by the respondent and should be rejected by the Tribunal.
The Singh submissions and supplementary oral submissions
1. In the Singh submissions, the respondent made submissions on the following matters:
1. the onus of proof;
2. the credibility of witnesses;
3. the use which can be made of character evidence;
4. the applicability of the CP Act and criminal law decisions concerning sexual offences;
5. the evidence of Patient A;
6. the evidence of the respondent and his witnesses;
7. the allegation that the respondent breached the 21 September 2021 Council conditions;
8. the HCCC submissions in chief;
9. overall conclusions.
1. In his supplementary oral submissions, the respondent made submissions on the following matters:
1. the use which can be made of character evidence;
2. the applicability of the CP Act and criminal law decisions concerning sexual offences;
3. his response to the HCCC submissions in reply.
The use which can be made of character evidence
1. In the Singh submissions, the respondent submitted that the Tribunal should consider the character evidence given in support of the respondent when considering both his credibility and whether he has committed the matters alleged in the complaint and in additionally in cross-examination, and referred to Khan v General Medical Council [2021] EWHC 374 (Admin) (Khan) at [84]-[97].
2. In his supplementary oral submissions, the respondent accepted that Khan at [84]-[97] was inapplicable, and referred to Health Care Complaints Commission v Gao [2022] NSWCATOD 73 (Gao) at [79]-[80]. He submitted that character evidence was of limited weight.
The applicability of the CP Act and criminal law decisions concerning sexual offences
1. In the Singh submissions, the respondent submitted that the CP Act does not apply in any shape or form to the proceedings of the Tribunal hearing a disciplinary matter. The CP Act is not relevant to decisions of the Tribunal.
2. In his supplementary oral submissions, the respondent submitted that it would be unfair to the respondent to apply the CP Act and criminal cases considering sexual assault victim behaviour "holus-bolus". The Tribunal should apply common sense in determining the credibility and reliability of Patient A.
The evidence of Patient A
Overall assessment
1. In the Singh submissions, the respondent made the following overall assessment of the evidence of Patient A:
1. she is not a witness of truth. Her evidence cannot be relied on and its inconsistencies are numerous. The fact that she told Patient A's sister-in-law some things that are consistent with her complaint does not make them true. They need to be considered with all the other evidence. Furthermore, she had a motive to make the complaint;
2. it is clear from her evidence that she was attempting to establish a picture of him as setting out to groom her and put her in a position where she was the last patient and alone with him and therefore at the mercy of him as a sexual predator. But the evidence is that he attempted to get Patient A to attend earlier so that he would not have to work late, he had other staff massage her and on 22 June 2021 there were other patients and people present at all times. The medical clinic was open and the door at the end of the corridor which runs past the Physical Health clinic leads out to the quickest way to the car park;
3. her statements are often inconsistent with each other and inconsistent with her oral evidence, which is frequently inconsistent from one minute to the next. Although many of the inconsistencies are minor in themselves, they add up to a general picture of unreliability, to the point where it would be unsafe to rely on her evidence to find the complaints proved. The major inconsistencies as to the existence or not of groin pain, whether there was another patient present after Mr Nies left the practice on 22 June 2021, whether or when she was wearing undergarments, whether he had touched her genital area at any previous time, are serious inconsistencies making it unsafe for the Tribunal to make any findings on her evidence.
Inconsistencies
1. In the Singh submissions, the respondent made the following submissions as to the inconsistencies in the evidence of Patient A in 18 different areas.
The initial appointment on 7 December 2020
1. Patient A accepted that she was mistaken in saying in the 10 December 2021 Patient A statement at [9] that she was treated by Mr Nies at the initial appointment on 7 December 2020.
2. Patient A gave inconsistent evidence as to her dress while being treated.
The initial appointments
1. Patient A's evidence that she received treatment on her hamstrings is inconsistent with the Patient A Physical Health clinical records.
The duration of the first appointments
1. Patient A's evidence as to the duration of the first appointments in the 10 December 2021 Patient A statement at [9] and her oral evidence was inconsistent.
The time of the earlier appointments
1. Patient A's evidence as to the time of the first appointments in the 10 December 2021 Patient A statement at [9] was inconsistent with her oral evidence, and contradicted by the Patient A Physical Health clinical records: at 11.15am on 7 December 2020; at 10.30am on 14 December 2020; at 11.15am on 21 December 2020.
The time of the later appointments
1. Patient A's evidence as to the time of the later appointments in her oral evidence was contradicted by the Patient A Physical Health clinical records: at 5.15pm on 25 May 2021; at 5.00pm on 8 June 2021; at 5.00pm on 22 June 2021.
The appointment on 6 April 2021
1. Patient A's evidence that she was never treated by Dr Romero was contradicted by entry for 6 April 2021 in the Patient A Physical Health clinical records which states "With Dan present got permission to treat pubic region".
The appointment on 13 April 2021
1. Patient A's evidence that she was never treated by Dr Romero was contradicted by the entry for 13 April 2021 in the Patient A Physical Health clinical records which states "A.S + D.R" as the treating practitioners.
Nakedness
1. If one adds the total number of times Patient A was naked – it amounts to at least 12 or 13 times. The respondent was not the primary treating practitioner for more than eight sessions.
The treatment of Patient A generally
1. Patient A agreed in her oral evidence that the respondent and all the other practitioners at the clinic were telling her that she needed to massage the area she was being treated on between treatments.
The time of the appointment on 22 June 2021
1. In the 15 August 2021 Patient A complaint, Patient A said her appointment on 22 June 2021 was from 5.30pm – 7.15pm. In the 10 December 2021 Patient A statement at [15] and her oral evidence, she said her appointment was at 5.00pm.
The treatment of Patient A on 22 June 2021
1. Whereas Patient A commenced the 22 June 2021 Patient A notes with the words "Did cupping", in her oral evidence she denied that her treatment started with cupping.
2. Patient A was mistaken as to the treatment room in which she was treated.
3. Whereas Patient A in her oral evidence said that she saw the respondent unlock the door to reception and had assumed that he had earlier locked the door to reception, the video which is part of the 28 April 2023 Singh affidavit shows that the door to reception cannot be locked from the inside.
4. Whereas Patient A said that she was uncomfortable with the respondent removing her underwear, she said that she trusted the respondent.
5. Whereas Patient A in the 10 December 2021 Patient A statement at [15] said that all of the other patients had left before Mr Nies returned to the room to wash his hands, in her oral evidence she said she believed Mr Nies said goodbye to the other patient and then left.
6. Patient A gave inconsistent oral evidence about whether she was suffering groin pain on 22 June 2021.
7. The evidence of Patient A in the 10 December 2021 Patient A statement at [16] and [20] and in her oral evidence about referring to her hamstrings was contradicted by the entry for 22 June 2021 in the Patient A Physical Health clinical records which does not record any complaint of pain in the hamstrings or work on hamstrings.
8. The denial of Patient A that the respondent had used the trigger point tool pictured at page 184 of exhibit A1 was contradicted by the reference "trigger point" in the entry for 21 December 2020, and the reference "T/P" in the entries for 20 April 2021, 11 May 2021, 25 May 2021 and 22 June 2021 in the Patient A Physical Health clinical records.
9. Patient A gave inconsistent accounts in the 22 June 2021 Patient A notes and in the 10 December 2021 Patient A statement at [17] about the conversation when the respondent removed her underwear in that she did not include her response "yeeeesss?" in the latter.
10. Patient A gave inconsistent accounts in the 22 June 2021 Patient A notes, in the 10 December 2021 Patient A statement at [17] and in the 10 March 2023 Patient A statement at [16] as to whether the respondent pulled her underwear down to her ankles or took her underwear off.
11. Patient A gave inconsistent accounts as to the position of the respondent when touching her clitoris in the 10 December 2021 Patient A statement at [19] ("was pretty much leaning on me/the table") and in the 10 March 2023 Patient A statement at [16] ("sat on the edge of the table").
12. Patient A gave inconsistent accounts as to the extent the door was open when the respondent touched her clitoris in the 10 December 2021 Patient A statement at [17] ("was ajar") and in her oral evidence ("was open quite a bit").
13. Patient A gave inconsistent accounts as to her reason for not speaking when the respondent when he was rubbing her vaginal area in circular motions for possibly five minutes all in silence in the 10 December 2021 Patient A statement at [19] ("I was unsure what to say") and in her oral evidence ("I couldn't speak").
14. Patient A gave inconsistent accounts as to duration of the respondent rubbing her vagina area in the 10 December 2021 Patient A statement at [19] ("for minutes, possibly 5") and in her oral evidence ("I'm not sure the exact time he was rubbing either spot").
15. Whereas Patient A in the 10 March 2023 Patient A statement at [18] stated that she lifted one of her knees up so her foot was on the table pushing the weight of the respondent's body off her as he leant into her thigh, she omitted this statement in her description of how she stopped the respondent in the 10 December 2021 Patient A statement at [20].
16. The evidence of Patient A in the 10 December 2021 Patient A statement at [20] that she said, "Don't we need to make another appointment?" is inconsistent with her allegations as to the conduct of the respondent.
Locking the door
1. Whereas Patient A in the 15 August 2021 Patient A complaint says, "he had to unlock the door for me to leave" and maintained that was correct in her oral evidence, the video which is part of the 28 April 2023 Singh affidavit shows that the door to reception cannot be locked from the inside. There was no need to unlock the door because it was not locked and could not be locked.
Lights
1. Patient A gave inconsistent accounts as to the number of occasions the lights were turned off in the 10 March 2023 Patient A statement at [34] ("about 5.") and in her oral evidence ("about three"). The evidence of Patient A in her oral evidence about lights being off is completely unreliable.
Monies owed for treatment
1. The Patient A Physical Health clinical records contain entries that Patient A received treatment for her right knee: on 8 and 15 March 2021 "Game ready cold compression knee" from Mr Vo; on 30 March 2021 "Right knee game ready then strapped with tape" from the respondent; on 6 April 2021 "Right knee game ready" from the respondent.
The 13 April 2021 Patient A progress report
1. Patient A gave inconsistent oral evidence about having seen the 13 April 2021 Patient A progress report.
The 19 February 2022 Patient A's sister-in-law statement
1. The statements of Patient A recorded in the 19 February 2022 Patient A's sister-in-law statement as to always being the last patient of the respondent and upstairs being locked when she finished were inconsistent with her oral evidence.
Leaving the Building
1. Patient A would not say she made a mistake as to the door by which she left the ground floor of the building.
Genital Area
1. Patient A does not know where her vagina is, and she is using that word to describe an area which has been called the groin area in these proceedings. That was an area about which Patient A complained that she had pain, it was an area that required treatment and it was treated by the respondent in appropriate ways.
2. The allegations that the respondent inappropriately touched the vagina of Patient A (such as those in Particulars 10 and 13 of the Amended Complaint) must be treated with particular caution and it would be dangerous to make a finding against him.
3. In his supplementary oral submissions, the respondent drew attention to "the blank expression" of Patient A when giving her evidence. When asked by the Tribunal what we were to make of this, counsel for the respondent replied that was an "interesting question", and said her demeanour was "strange" and that not too much weight should be placed upon it.
The evidence of the respondent and his witnesses
The respondent
1. In the Singh submissions, the respondent made the following submissions as to his own evidence:
1. he was honest and his account did not change despite having to give evidence over four days, and being badgered by counsel for the applicant. Whilst there is no doubt he did not content himself with merely answering the questions, his responses were consistent. His refusal to accept he had breached the 21 September 2021 Council conditions is appropriate given that a proper consideration of the conditions would mean that he had not breached them. He did not acknowledge Patient A was a vulnerable patient any more than any other patient. That is surely the correct response from a chiropractor whose patients are almost always in pain. He did not minimise his involvement in Patient A's treatment, but relied on the records. He does not have an inflated perception of his own skills. Many witnesses including Ms Mclear assert that he is a skilled chiropractor and they were not challenged on their evidence to this effect;
2. the 27 August 2021 Singh response was produced in a very short time span and does not include the detail of the 28 April 2023 Singh affidavit. He only had Patient A's one paragraph complaint at the time and did not know what else he had to answer. The Amended Complaint as it presently stands had not been given to him. His explanations for why the 28 April 2023 Singh affidavit contains so much more detail and reference to more patients are perfectly credible;
3. at the hearing under s 150 of the National Law on 17 September 2021 he was asked about other staff. He was not asked about patients;
4. it was not put to Dr Singh that the 22 June 2021 at 7.19pm Singh text was anything other than a genuine message sent by him at the time stated. For counsel for the applicant to suggest, without any foundation, that it was an attempt to set up an alibi is unacceptable;
5. the applicant's submission that he procured statements himself from his witnesses for the hearing is unwarranted and is not substantiated by any evidence. All the witnesses save Ms Romero have denied any allegation that he told them what to say or had any input into the content of their statements. The applicant is alleging a massive conspiracy to pervert the course of justice without putting it into so many words.
Mr Nies
1. In the Singh submissions, the respondent summarised the written evidence of Mr Nies in the 26 August 2021 Nies statement and the 9 May 2023 Nies statement, and his oral evidence.
Mr Vo
1. In the Singh submissions, the respondent summarised the oral evidence of Mr Vo, and submitted that it was not put to him in cross-examination that "his statement" was fabricated, or that his patient notes were fabricated.
Mr Wilson
1. In the Singh submissions, the respondent summarised the oral evidence of Mr Wilson, the entry for 22 June 2021 in the Wilson Physical Health clinical records, and the 16 September 2021 icare letter.
Ms Mclear
1. In the Singh submissions, the respondent summarised the 11 May 2023 Mclear statement, and her oral evidence.
Dr Romero
1. In the Singh submissions, the respondent summarised the 23 August 2021 Dr Romero statement and the 8 May 2023 Dr Romero statement, and his oral evidence.
Mr Salib
1. In the Singh submissions, the respondent summarised the written evidence of Mr Salib in the 9 May 2023 Salib statement, and his oral evidence, together with the 17 March 2021 Singh/Salib text messages and the 21 June 2021 Singh/Salib text messages. He submitted that the handwritten receipts were tendered into evidence and Mr Salib's evidence was untouched by cross-examination and was supported by the text messages on his phone. Mr Salib did not change his account when shown the typed receipts and maintained that he had received handwritten receipts.
Ms Romero
1. In the Singh submissions, the respondent summarised the 11 May 2023 Ms Romero statement, and her oral evidence. He submitted that by the end of her cross-examination she was saying she didn't know to everything asked of her. She had been totally browbeaten.
The allegation that the respondent breached the 21 September 2021 Council conditions
1. In the Singh submissions, the respondent relevantly made the following concluding submissions:
1. he referred to the oral evidence of the respondent, Ms Mclear and Ms Romero;
2. the 21 September 2021 Council conditions do not state that the attending female person cannot be an employee of the respondent; indeed, such a condition would make it impossible for the respondent to treat female patients;
3. a client, relevantly, is a person who employs or seeks advice from a professional or is a customer: Macquarie Dictionary (Macmillan Publishers Australia 2023);
4. condition 2(a) of the 21 September 2021 Council conditions refers to "client" not "patient";
5. the code of conduct refers to patients and not to clients. The Council clearly intended to differentiate between the two;
6. neither Ms Mclear nor Ms Romero is a "client" according to the Macquarie Dictionary;
7. even if the Tribunal were to hold that "client" is a broad enough term to include an employee who occasionally received treatment, it is clear that the breach of condition 2(a) of the 21 September 2021 Council conditions by the respondent is entirely unintentional and it displays nothing at all derogatory in relation to his attitude to the Council;
8. the applicant could have obtained the audits of the respondent's compliance with the 21 September 2021 Council conditions, but for reasons unknown chose not to. The Council has had no issues with the respondent's compliance;
9. it is entirely inappropriate for the applicant to be alleging a breach of the 21 September 2021 Council conditions, which is a serious matter, to the respondent when he is in the witness box, without having given him any notice of the allegation. Whilst the applicant had time to find and print more than a thousand pages of signed forms, no notice of the allegation was given to him or his legal representatives;
10. in the HCCC submissions in chief the applicant has put that the respondent's breach of the 21 September 2021 Council conditions exacerbates his guilt and displays his cavalier attitude to the Council. The opposite is the case. The documents produced by the applicant display that he has religiously abided by the conditions imposed, as he understood them.
The HCCC submissions in chief
1. In the Singh submissions, the respondent made submissions in relation to the HCCC submissions in chief. It is unnecessary to summarise these submissions as they substantially repeat his earlier submissions.
Overall conclusions
1. In the Singh submissions, the respondent relevantly made the following concluding submissions:
"1. Dr Singh does not bear an onus to prove he is not guilty of the alleged complaint. The HCCC has the onus to prove that he is guilty and, because their evidence relies almost entirely on the truthfulness of Patient A, they cannot meet the onus.
2. Patient A is clearly not a truthful witness. She appeared to lie whenever it suited her.
3. Patient A's evidence has been tailored to make it look as though Dr Singh was deliberately trying to get her alone. However the patient notes and the various witness statements show that is not the case; her appointments were made earlier than at 5.45 and she was not alone with Dr Singh. There were other patients, other practitioners and other people in the building.
4. Patient A's evidence falls into a pattern. She says something. If the truth of it is challenged she maintains that what she said was correct. If the true position is pointed out to her based on some other evidence then she says she doesn't remember. e.g. the time for which the first few appointments were made, the room she was in. Occasionally, although not often, she admits that what she had said previously was incorrect.
5. There is no evidence that Dr Singh obtained sexual gratification from any touching of Patient A.
6. There is an absence of evidence of a motive for Dr Singh to commit the alleged conduct. There is plenty of evidence, on the other hand, that he is very conscious of the need to maintain proper boundaries and standards within his practice.
7. It is the HCCC case that Dr Singh manufactured his patient notes, he procured other people to lie for him and to make false statements, he manufactured letters or emails from the CEO of the Camden Healthcare Clinic and the local Council and he procured a neighbour to lie about the alleyway. But the HCCC did not want to cross examine many of the witnesses. They do not appear to have made their own investigations with the Council or the Clinic to obtain CCTV footage of the relevant evening. They did not ask Allianz for all their records, only some of them.
8. It is important for the Tribunal to take into consideration that Dr Singh was given a very short time in August 2021, to prepare a submission and obtain witness statements. Dr Singh and his witnesses had only Patient A's complaint to respond to. They did not have a comprehensive statement of the complaint. It was only after that that Dr Singh received Patient A's statement of 10 December 2021 and then her statement of March 2023 that he was able to know what was actually alleged against him. It is no wonder that the subsequent statements of Dr Singh and his witnesses include much more detail. Submissions made by the HCCC that the witnesses' early statements are to be preferred, totally ignore the practicalities of what occurred.
9. Dr Singh is very well regarded and many witnesses express their opinions that he is a person of good character and a competent chiropractor.
10. It is Dr Singh case that he is not guilty of unsatisfactory professional conduct … in any of the ways particularised in Complaint …."
The HCCC submissions in reply and supplementary oral submissions
1. In the HCCC submissions in reply and supplementary oral submissions, the applicant made submissions on the following matters:
1. character evidence;
2. the applicability of the CP Act and criminal law decisions concerning sexual offences;
3. the evidence of Patient A;
4. the evidence of the respondent and his witnesses;
5. the reliability of the Patient A Physical Health clinical records.
Character evidence
1. In the HCCC submissions in reply the applicant made the following submissions:
1. Khan is not relevant to the proceedings and relies on a very different statutory pathway and different considerations elsewhere. The Tribunal may fall into error by placing any weight on Khan and placing significant weight on the respondent's good character in the assessment of his credibility and propensity;
2. It referred to Health Care Complaints Commission v A Medical Practitioner [2001] NSWCA 158 (Medical Practitioner) at [47] and submitted the respondent's character maybe relevant to any future stage 2 hearing, but not the assessment of his credit on stage 1;
3. referred to Gao at [79] and submitted that a similar finding should be made in these proceedings.
The applicability of the CP Act and criminal law decisions concerning sexual offences
1. In the HCCC submissions in reply the applicant submitted that the principles set out in the CP Act are consistent with authorities of the New South Wales Court of Criminal Appeal such as Xu v R [2019] NSWCCA 178 (Xu) at [92] and Rao v R [2019] NSWCCA 290 (Rao) at [98] which have warned against stereotypical expectations about how a victim of sexual assault is "supposed" or "expected" to behave.
The evidence of Patient A
1. In the HCCC submissions in reply the applicant submitted that what is apparent from the evidence is that the respondent's conduct escalated and became more opportunistic with time, ultimately resulting in an escalation of conduct that involved the respondent removing Patient A's underwear and touching her clitoris at the last appointment. The inability of Patient A to particularise in precise terms the dates and times of the respondent's alleged conduct, other than at the last appointment, does not in any way render her evidence less credible.
2. In the HCCC submissions in reply the applicant also made submissions in reply to many of the criticisms of the evidence of Patient A in the Singh submissions.
The reliability of the Patient A Physical Health clinical records
1. In its supplementary oral submissions, the applicant submitted that the respondent altered the Patient A Physical Health clinical records so far as the entries on 15 and 30 March 2021 and 6 April 2021 by recording treatment of the right knee of Patient A, and the entries on 6 April 2021, 25 May 2021, and 8 and 22 June 2021 by recording action to be taken regarding Patient A making a new Workcover claim for the injury to her right knee.
The applicable provisions of the National Law
1. Part 8 Division 1 (ss 138-139I) contains provisions dealing with preliminary matters in relation to health, performance and conduct. Section 139B contains a definition of unsatisfactory professional conduct of a registered health practitioner, and relevantly provides:
139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW]
(1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following—
(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. Section 139E contains a definition of professional misconduct of a registered health practitioner, and provides:
139E Meaning of "professional misconduct" [NSW]
For the purposes of this Law, professional misconduct of a registered health practitioner means—
(a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or
(b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
1. Schedule 5D contains provisions relevantly dealing with proceedings before the Tribunal. Clause 2 deals with the application of the rules of evidence, and provides:
2 Proceedings generally [NSW]
In proceedings before it, a Committee or the Tribunal is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit.
The applicable legal principles
The proof of facts
1. In health practitioner disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to 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 at [52].
2. In Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 (Briginshaw), Dixon J commented at 362:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved ..."
1. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 171 (Neat Holdings), the majority of the High Court (Mason CJ, Brennan, Deane and Gaudron JJ) said:
"[T]he strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct." (citations omitted)
1. Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact.
2. In approaching this issue we have been conscious that, while the principle in Briginshaw supplemented by s 140 of the Evidence Act does not apply to fact finding in these proceedings to which the rules of evidence do not apply, what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to the Tribunal: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [126]-[127] (Leeming JA, with Basten JA at [1] and Gleeson JA at [37] agreeing); Health Care Complaints Commission v Meneghetti [2020] NSWCATOD 39 at [14]; see also Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [85]-[87] (Payne JA, with Leeming JA at [1] and Simpson AJA at [118] agreeing).
3. In Health Care Complaints Commission v Ng [2015] NSWCATOD 85 at [128]-[130] the Tribunal set out the following observations on assessing the credit of a witness:
"[128] We found the recent discussion by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73] to [79] to be of considerable assistance. To paraphrase his Honour:
(1) Where 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 is of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477.
(2) 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: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] Keane JA; referred to with approval by Leeming JA in New South Wales v Hunt [2014] NSWCA 47 at [56].
(3) A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157].
[129] His Honour also referred at [75] to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, who stated at 431:
a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."
[130] The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1 at [57]; In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7]."
1. The second aspect of the rule in Browne v Dunn is concerned with the weight to be afforded to evidence which has not been the subject of cross-examination, and is to the effect that evidence upon which there has been no relevant cross-examination should not usually be rejected by the tribunal of fact. It might be legal error not to accept unchallenged and uncontradicted evidence which is not inherently implausible: Ghosh v Medical Council of New South Wales [2020] NSWCA 122 (Ghosh) at [69]-[70], [137].
The use of provisions of the CP Act and criminal cases considering sexual assault victim behaviour
The asserted relevant provisions of the CP Act
1. Chapter 1 (ss 1-4) contains preliminary provisions. Section 3(1) contains definitions, and relevantly provides that the expression "prescribed sexual offence" includes an offence under certain sections including s 61KC of the Crimes Act 1900 (NSW).
2. Chapter 6 Part 5 Division 1 (ss 290-294D) contains provisions dealing with evidence in certain sexual offence proceedings. Section 290(1) provides that Division 1 applies to proceedings in respect of a prescribed sexual offence.
3. Subdivision 3 (ss 292-292E), which commenced on 1 June 2022, contains provisions dealing with directions to the jury in relation to the question of consent in a trial of a person for an offence, or attempt to commit an offence, against certain sections including s 61KC of the Crimes Act. Section 292B deals with responses to non-consensual sexual activity, and provides:
292B Responses to non-consensual sexual activity
Direction—
(a) there is no typical or normal response to non-consensual sexual activity, and
(b) people may respond to non-consensual sexual activity in different ways, including by freezing and not saying or doing anything, and
(c) the jury must avoid making assessments based on preconceived ideas about how people respond to non-consensual sexual activity.
1. Section 292C deals with lack of physical injury, violence or threats, and provides:
292C Lack of physical injury, violence or threats
Direction—
(a) people who do not consent to a sexual activity may not be physically injured or subjected to violence, or threatened with physical injury or violence, and
(b) the absence of injury or violence, or threats of injury or violence, does not necessarily mean that a person is not telling the truth about an alleged sexual offence.
1. Section 292D deals with responses to giving evidence, and provides:
292D Responses to giving evidence
Direction—
(a) trauma may affect people differently, which means that some people may show obvious signs of emotion or distress when giving evidence in court about an alleged sexual offence, but others may not, and
(b) the presence or absence of emotion or distress does not necessarily mean that a person is not telling the truth about an alleged sexual offence.
1. Subdivision 4 (ss 293A-294AA) contains provisions dealing with other directions to the jury. Section 293A, which commenced on 30 November 2018 and was amended in an immaterial respect from 1 June 2022, deals with a direction that may be given by a judge if there are differences in the complainant's account, and relevantly provides:
293A Direction may be given by Judge if differences in complainant's account
(1) This section applies if, on the trial of a person for a prescribed sexual offence, the Judge, after hearing submissions from the prosecution and the accused person, considers that there is evidence that suggests a difference in the complainant's account that may be relevant to the complainant's truthfulness or reliability.
(2) In circumstances to which this section applies, the Judge may direct the jury—
(a) that experience shows—
(i) people may not remember all the details of a sexual offence or may not describe a sexual offence in the same way each time, and
(ii) trauma may affect people differently, including affecting how they recall events, and
(iii) it is common for there to be differences in accounts of a sexual offence, and
(iv) both truthful and untruthful accounts of a sexual offence may contain differences, and
(b) that it is up to the jury to decide whether or not any differences in the complainant's account are important in assessing the complainant's truthfulness and reliability.
…
(3) In this section—
difference in an account includes—
(a) a gap in the account, and
(b) an inconsistency in the account, and
(c) a difference between the account and another account.
1. Section 294, which commenced as 1 January 2000 as s 107, and was renumbered as s 294 on 7 July 2003, deals with a direction to be given by a judge in relation to the lack of complaint in certain sexual offence proceedings, and relevantly provides:
294 Direction to be given by Judge in relation to lack of complaint in certain sexual offence proceedings
(1) This section applies if, on the trial of a person for a prescribed sexual offence, evidence is given or a question is asked of a witness that tends to suggest—
(a) an absence of complaint in respect of the commission of the alleged offence by the person on whom the offence is alleged to have been committed, or
(b) delay by that person in making any such complaint.
(2) In circumstances to which this section applies, the Judge—
(a) must direct the jury that absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false, and
(b) must direct the jury that there may be good reasons why a victim of a sexual assault may hesitate in making, or may refrain from making, a complaint about the assault, and
(c) must not direct the jury that delay in complaining is relevant to the victim's credibility unless there is sufficient evidence to justify such a direction.
…
1. Section 294AA which commenced on 1 January 2007 and was amended in an immaterial respect from 1 June 2022, deals with a direction to be given by a judge in relation to complainants' evidence, and provides:
294AA Direction to be given by Judge in relation to complainants' evidence
(1) A judge in any proceedings to which this Division applies must not direct a jury, or make any suggestion to a jury, that complainants as a class are unreliable witnesses.
(2) Without limiting subsection (1), that subsection prohibits a direction to a jury of the danger of convicting on the uncorroborated evidence of any complainant.
(3) Sections 164 and 165 of the Evidence Act 1995 are subject to this section.
Crimes Act
1. Part 3 Division 10 Subdivision 1 (ss 61H-61HD) contains provisions dealing with interpretation. Section 61HB contains the definition of sexual touching, and provides:
61HB Meaning of "sexual touching"
(1) For the purposes of this Division, sexual touching means a person touching another person—
(a) with any part of the body or with anything else, or
(b) through anything, including anything worn by the person doing the touching or by the person being touched,
in circumstances where a reasonable person would consider the touching to be sexual.
(1A) The continuation of sexual touching as defined in subsection (1) is also sexual touching for the purposes of this Division.
(2) The matters to be taken into account in deciding whether a reasonable person would consider
touching to be sexual include—
(a) whether the area of the body touched or doing the touching is the person's genital area, anal area or breasts—
(i) whether or not the breasts are sexually developed, and
(ii) regardless of the person's gender or sex, or
(b) whether the person doing the touching does so for the purpose of obtaining sexual arousal or sexual gratification, or
(c) whether any other aspect of the touching (including the circumstances in which it is done) makes it sexual.
(3) Touching carried out solely for proper medical or hygienic purposes is not sexual touching for the purposes of this Division.
1. Part 3 Division 10 Subdivision 3 (ss 61KC-61KD) contains offences of sexual touching.
61KC Sexual touching
Any person (the accused person) who without the consent of another person (the complainant) and knowing that the complainant does not consent intentionally—
(a) sexually touches the complainant, or
…
is guilty of an offence.
Maximum penalty—Imprisonment for 5 years.
The asserted criminal cases considering sexual assault victim behaviour
1. In Xu, the New South Wales Court of Criminal Appeal (Bathurst CJ, Harrison and N Adams JJ) allowed an appeal against conviction for the offences of indecent assault and sexual assault. N Adams J at [92] said:
"[92] Although I have serious doubts about many aspects of the Crown case, I am respectfully unable to agree with his Honour that the complainant's return to the appellant's home "defies common sense" in this case. It provided context to the second set of charges but I do not consider myself to be in a position to make any generalisations about how any particular alleged victim of a sexual assault, in this case a male, should behave in a particular situation. As stated above, my doubts arise in a different way."
1. In Rao, the New South Wales Court of Criminal Appeal (Gleeson JA, Harrison and Cavanagh JJ) dismissed an appeal against conviction for the offences of sexual intercourse without consent and indecent assault. Gleeson JA at [98] said (with Harrison J at [155] and Cavanagh J at [156] agreeing):
"[98] The implicit premise of the appellant's submission, that a victim of sexual assault is not supposed to return to the same bed as his or her assailant under any circumstances, should be rejected. It reflects the kind of stereotypical expectations about how a victim of sexual assault is "supposed" or "expected" to behave, which Button J cautioned against in Khamis v R; Hussain v R [2018] NSWCCA 131 at [533]. The significance of the complainant returning to the same bed and the credibility of her explanation of why she did so was, quintessentially, a matter for the jury: MFA v The Queen at [48]."
1. In Maughan, the New South Wales Court of Criminal Appeal (R A Hulme, Adamson and Ierace JJ) dismissed an appeal against conviction for the offence of indecent assault. The judgments contained the following observations:
1. R A Hulme J at [2] said:
"[2] I particularly endorse what their Honours have said about what I would describe as the futility of assessing the behaviour of sexual assault complainants by reference to stereotypical expectations. The criminal law has moved past the era in which this was often prominent in a defence to a sexual assault allegation. Jurors applying a sensible and mature understanding of human behaviour are far less likely now to be persuaded by such propositions."
1. Ierace J at [99] said (with R A Hulme J at [1] and Adamson J at [8] agreeing):
"[99] Caution must be exercised in gauging the parameters of the likely behaviour of a sexual assault victim vis-à-vis the perpetrator, during and following the assault. Behaviours that may not seem sensible, logical or otherwise plausible to those who have not endured that experience may not necessarily be indicative of implausibility or inconsistency with an allegation of sexual assault: see Rao v R [2019] NSWCCA 290 at [98]. In this case, the complainant explained that when she realised what was being done to her by the applicant, she experienced shock which rendered her unable to speak or move. The movements she eventually made were minimal, and even so, she had no recollection of how she made her way from the rug to the lounge chair. In the experience of criminal courts, those who work with sexual assault victims and as increasingly understood by the broader community, such a reaction is a common feature of the reaction of a victim to sexual assault, and therefore a claim of shock, immobility and silence by a sexual assault complainant is not necessarily indicative of implausibility."
Consideration
1. In R v The War Pensions Entitlement Appeals Tribunal; Ex parte Bott (1933) 50 CLR 228; [1933] HCA 30 (Bott) the High Court considered the legislation establishing the War Pensions Entitlement Appeal Tribunal which provided that the Tribunal was not bound by any rules of evidence. Evatt J at 256 made the following observation:
"Some stress has been laid by the present respondents upon the provision that the Tribunal is not, in the hearing of appeals, "bound by any rules of evidence." Neither it is. But this does not mean that all rules of evidence may be ignored as of no account. After all, they represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth. No tribunal can, without grave danger of injustice, set them on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer "substantial justice."
1. These observations of Evatt J at 256 in Bott have been applied by the Tribunal in relation to s 38(2) of the NCAT Act which is substantially identical to Sch 5 cl 2 of the National Law: Chi Building Pty Ltd v Wedgwood [2016] NSWCATAP 64 at [40].
2. In King at [65]-[68], McFarlan JA noted that the parties implicitly accepted on the appeal that guidance as to what constitutes sexual conduct in the present context can be obtained from decisions in the field of criminal law concerning indecent assault, and then considered several authorities involving criminal offences.
3. In Priyamanna at [179]-[183], the Tribunal applied the reasoning in King at [65]-[68] to determine whether the practitioner had engaged in the impugned conduct.
4. Having regard to the observations of Evatt J at 256 in Bott and the approach in Priyamanna at [179]-[183], we consider that it is appropriate to have regard to the observations of the New South Wales Court of Criminal Appeal in Xu at [92], Rao at [98], and Maughan at [2] and [99] in assessing the credibility and reliability of Patient A. Further, given that the impugned conduct of the respondent included conduct that could constitute the offence of sexual touching within s 61KC when read with s 61HB of the Crimes Act we consider that it is appropriate to have regard to the directions in ss 292B, 292C, 292D, 293A, 294 and 294AA of the CP Act to the extent that they are relevant in assessing the credibility and reliability of Patient A. We do not accept the respondent's submissions that the principles contained within these directions are not relevant given the nature of particulars of the Amended Complaint to the extent that they involve sexual touching. Further, we do not accept the respondent's submissions that the principles of criminal law authorities such as Xu at [92], Rao at [98], and Maughan at [2] and [99] which have warned against stereotypical expectations about how a victim of sexual assault is "supposed" or "expected" to behave are not relevant to the assessment of the credibility and reliability of Patient A.
The collusion between witnesses
1. We do not accept that Bauer has any relevance to the assessment of the credibility and reliability of the respondent's witnesses. An issue in Bauer included the admission of tendency evidence in a criminal trial for sexual assault under s 97 of the Evidence Act 2008 (Vic). The High Court (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon, Edelman JJ) at [70] held under the s 97 of the Evidence Act, provided evidence is rationally capable of acceptance, the possibility of contamination, concoction or collusion falls to be assessed by the jury as part of the ordinary process of assessment of all factors that may affect the credibility and reliability of the evidence.
2. In Seamez v McLaughlin [1999] NSWSC 9 (Seamez) there was an issue as to the credibility and reliability of the witnesses of the plaintiff. Sperling J at [36] made the following observations:
"36 The defendants challenged this account of the way the plaintiffs' affidavit evidence came into existence. Having regard to a high degree of similarity in content, detail, terminology and sequence (particularly in relation to conversations) between the affidavits of the three witnesses, I am satisfied that the affidavits cannot have come into existence without direct or indirect collaboration."
1. A finding of collusion is open to a court when confronted with otherwise unexplained identical evidence of conversations. Not only can a finding that the conversations are untrue be made, but the collusion casts doubt upon the reliability of the evidence of the colluding persons generally on any controversial matter of importance: Xie & Ors v Qin & Anor; Qin v Taylor International Investment Pty Ltd [2023] NSWSC 254 (Xie) at [72]-[73] (Kunc J).
The relevance of character evidence
1. In Medical Practitioner at [47] Stein JA made the following observations in an appeal from the Medical Tribunal (with Powell JA at [1] and Rolfe AJA at [54] agreeing):
"[47] Nonetheless, it is plain that the Tribunal is not entitled to take character into account in considering whether a practitioner is guilty of unsatisfactory professional conduct. It is difficult to see, given the admission of careless conduct by the respondent, (which was accepted by the Tribunal) what probative force such evidence would have. It had no relevance to the consequences which might flow from the inadvertent error. It could, of course, be relevant to credit. But the mistake made by the practitioner involved no issue of credibility. The character evidence was, by its very nature, relevant to penalty, should the Tribunal get to that issue."
1. In Gao at [73]-[79], the Tribunal enunciated the following principles with respect to character evidence:
"[73] 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.
[74] 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".
[75] 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).
[76] 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).
[77] 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]).
[78] 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]).
[79] 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."
1. As the credit of the respondent is a significant issue, then consistent with Medical Practitioner at [47] character evidence may be relevant to his credit. As the character evidence of Dr Pobbathi in the 2 May 2023 Pobbathi statement, Mr Mikulic in the 30 March 2023 Mikulic statement and Mr Joy in the 26 February 2023 Joy statement is directed to the competence of the respondent, we have not taken it into account as his competence is not an issue in these proceedings. While the character evidence of Ms Parlato in the 11 May 2023 Parlato statement, Ms Moronta in the 9 May 2023 Moronta statement, and Mr Adamski in the 11 May 2023 Adamski statement, who are members of the staff of Physical Health, is directed to the respondent's practice as to the consent and privacy of patients, we have given no weight to it as they commenced working at the practice after Patient A ceased being a patient. While the character evidence of Ms Pobbathi in the undated Pobbathi statement, Ms Hunt in the undated Hunt statement, Ms Barry in the 11 May 2023 Barry statement and Mr Furner in the 4 April 2023 Furner statement, who are patients of the respondent, is directed to his practice as to the consent and privacy of patients, we have given little weight to it, particularly as they provided no information as to the time of the their appointments and whether other practitioners were present, and additionally in the case of Mr Furner as he is a male.
Unsatisfactory professional conduct
1. In Health Care Complaints Commission v Aref [2018] NSWCATOD 133 (Aref) at [18]-[20], the Tribunal considered the meaning of unsatisfactory professional conduct in s 139B(1)(a) and (l) of the National Law:
"[18] In making a finding of unsatisfactory professional conduct per (a), the Tribunal must compare the conduct of the practitioner with a standard 'reasonably expected'. In HCCC v Simonson [2017] NSWCATOD 87 the Tribunal noted at [9]:
'Obviously, there will be many cases where there is no one bright line which typifies the relevant knowledge, skill or judgement or care of such a practitioner. In most cases, the expected standard of relevant knowledge, skill or judgement or care of a practitioner will fall within a band, sometimes narrow and sometimes broader.'
[19] 'Improper' and 'unethical' are not defined in the National Law. The assessment of what constitutes improper or unethical conduct is based upon their ordinary meaning. In the professional disciplinary context there is necessarily some overlap between the two words.
[20] 'Improper' conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: HCCC v Phung (No 1) [2012] 1 NSWDT 3 at [68]; HCCC v Fisher [2016] NSWCATOD 62 at [57]; HCCC v Flekser [2016] NSWCATOD 1 at [119]. Improper and unethical conduct may be dishonest, disreputable to the profession, in breach of explicit professional standards such as codes of conduct, guidelines and competencies, and may also be determined by reference to the views of reasonable members of the profession: Slezak, Dr Peter [2011] NSWMPSC 10 at [83] and [87]."
Professional misconduct
1. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 (Chen) at [19]-[20], Basten JA (Leeming JA at [23] agreeing) relevantly said:
"[19] ... The term "professional misconduct" does not have a specific meaning; it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. …
[20] There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. …"
1. In Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 (Litchfield), the New South Wales Court of Appeal (Gleeson CJ, Meagher and Handley JJA) at 638 said in relation to professional misconduct:
"The gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards."
The reliability of the Patient A Physical Health clinical records
1. We are not satisfied that the respondent altered the Patient A Physical Health clinical records so far the entries on 15 and 30 March 2021 and 6 April 2021 recording treatment of the right knee of Patient A and the entries on 6 April 2021, 25 May 2021, and 8 and 22 June 2021 recording action to be taken regarding Patient A making a new Workcover claim for the injury to her right knee for the following reasons:
1. as set out below, we have decided that Patient A was mistaken that she received no treatment on her right knee on 15 and 30 March 2021 and 6 April 2021;
2. as set out below, we have decided that the respondent wanted Patient A to make a new WorkCover claim for the injury to her right knee.
The credibility and reliability of the witnesses
Introduction
1. We have set out our findings as to the witnesses for the applicant, the respondent and the witnesses for the respondent who gave oral evidence. Having regard to the principles in Ghosh at [69]-[70], [137], we have largely accepted the unchallenged evidence of Dr Uren in the 26 May 2022 Uren report. We have also accepted the unchallenged evidence of the character witnesses for the respondent, and as set out above made findings as to the weight to be attached to their evidence.
Patient A
1. We are satisfied that Patient A was a materially credible and reliable witness for the following reasons:
1. there was an essential consistency in her versions relating to the substance of the Amended Complaint of the respondent on 22 June 2021 of removing her underwear and touching her vagina area or clitoris in the 22 June 2021 Patient A/Patient A's sister-in-law conversation notes, the 22 June 2021 Patient A notes, the 15 August 2021 Patient A complaint, the 10 December 2021 Patient A statement, the 10 March 2023 Patient A statement, and her oral evidence;
2. the telephone conversation between Patient A and Patient A's sister-in-law recorded in the 22 June 2021 Patient A/Patient A's sister-in-law conversation notes occurred about 20 minutes after the end of the appointment on 22 June 2021 and in which Patient A was crying, and was followed by Patient A making the 22 June 2021 Patient A notes less than two hours after the end of the appointment;
3. while there were inconsistencies in her evidence which have been referred to by the respondent in the Singh submissions, this is not an unexpected consequence of difficulties in recollection over time when Patient A had 19 consultations over a period of six months between 7 December 2020 and 22 June 2021 involving a number of different practitioners of Physical Health. As to these inconsistencies, which did not relate to the substance of the Amended Complaint, we make the following observations:
1. it is unsurprising that she would not have remembered the identity of the practitioners other than the respondent who treated her at her various appointments, and the time and durations of those appointments, and other matters unconnected to the Amended Complaint such as whether she had seen the 13 April 2021 Patient A progress report;
2. we accept that she received some treatment for her hamstrings, particularly as the respondent conceded that the Patient A Physical Health clinical records were not a complete record of her treatment;
3. we accept that she removed her underwear at the request of the respondent or the respondent removed her underwear more than once prior to 22 June 2021, but had no recollection of the number of times and at what appointments this happened. This is not surprising given she believed that this was necessary for her treatment and she trusted the respondent;
4. the incorrect recollection as to the treatment room in which she was treated at the appointment on 22 June 2021 is not material, particularly when she correctly recollected that it had a sink;
5. the differences in her accounts of the appointment on 22 June 2021 as to extent to which the door was open, the position of the respondent when rubbing her vagina area, the length of time of this touching and her conversation with the respondent are not unexpected when she was being sexually assaulted at that time;
6. the difference between the respondent opening the door adjacent to the reception area and unlocking the door was a matter of minor detail;
7. the request of Patient A at the conclusion of the appointment on 22 June 2021 for the respondent to make a further appointment does not demonstrate that she had not been sexually assaulted, particularly having regard to the different ways in which a person reacts to a sexual assault;
8. while we accept that she received treatment to her right knee at the appointments on 8, 15 and 30 March 2021 and 6 April 2021 as part of her treatment on those days as recorded in the Patient A Physical Health clinical records, it is not surprising that she did not recall this treatment in part of four appointments out of a total of 19 appointments;
9. we do not accept that she did not understand her anatomy and in particular the location of her clitoris and vagina;
1. she had no motive for making an untruthful complaint. We reject the submissions of the respondent that she owed him or Physical Health any monies as explained in [243] below, and had committed any fraud by receiving some treatment to her right knee as explained in [244] below;
2. she gave her oral evidence in a straight forward manner, made concessions that parts of her written evidence were incorrect, maintained the truthfulness of the substance of her complaint against the respondent, and accepted that she could not remember several matters. We do not consider there was a pattern in her response of not remembering matters such that it was a technique she used to avoid answering questions. Further, we do not regard to manner of giving evidence which the respondent described as with a "blank expression" as in any way indicative that she was not telling the truth;
3. it is inherently implausible that Patient A would have made such a serious complaint about the conduct of the respondent in her telephone conversation with Patient A's sister-in-law on 22 June 2021, the 22 June 2021 Patient A notes, the 15 August 2021 Patient A complaint, the 10 December 2021 Patient A statement, the 10 March 2023 Patient A statement, and her oral evidence, unless the respondent had engaged in that conduct.
Patient A's sister-in-law
1. We are satisfied that Patient A's sister-in-law was a credible and reliable witness and that her account of her telephone conversation with Patient A on 22 June 2021 recorded in the 22 June 2021 Patient A/Patient A's sister-in-law conversation notes and the demeanour of Patient A in that conversation was accurate.
The respondent
1. We are not satisfied that the respondent was a credible and reliable witness for the following reasons:
1. it is implausible that the respondent had the detailed recollection of the events involving Patient A recorded in the 28 April 2023 Singh affidavit to the extent that they expanded upon the record of events in the 27 August 2021 Singh response which had been prepared 20 months earlier. We do not accept that respondent's explanation that the reason was that the 27 August 2021 Singh response had been prepared within a short time to respond to the Council given its length, comprehensive nature and inclusion of statements of two patients who had been at the practice on 22 June 2021;
2. it is implausible that the respondent had the detailed recollection of the events involving Patient A recorded in the 28 April 2023 Singh affidavit when in cross-examination he was unable to remember whether he treated Patient A on particular days without access to the Patient A Physical Health clinical records;
3. the respondent's evidence about the doors of the treatment rooms being always open during treatment of a patient was contradicted not only by Patient A, but also Mr Vo, Dr Romero, Ms Romero and Mr Wilson;
4. we infer that he colluded with Mr Nies, Mr Salib and Mr Wilson in the preparation of the 9 May 2023 Nies statement, the 9 May 2023 Salib statement and the undated Wilson statement as explained in [251], [262(4)], [265(3)] and [266] below. This collusion casts doubt upon the credibility and reliability of his evidence generally on any controversial matter of importance;
5. his oral evidence was characterised by his failure to answer questions by asking questions in response and making assertions as to why the impugned conduct could not have happened. At times he was argumentative and evasive.
1. We do not accept as plausible the explanation of the respondent for his breach of the 21 September 2021 Council conditions. Ms Mclear and Ms Romero were patients of the respondent. The absence of appointment times, clinical notes and payment did not mean that they were not patients. There is no distinction between a patient and a client. However, we do not regard this breach as being relevant to his reliability and credibility in relation to the impugned conduct.
2. We do not accept the evidence of the respondent that Patient A owed any money to Physical Health for her treatment for the following reasons:
1. there was no evidence that Allianz approved physiotherapy for two treatment areas on 8 February 2021 as claimed for the period from 21 December 2020 to 8 March 2021 in the 8 March 2021 Physical Health invoice. We reject the evidence of the respondent that Patient A agreed to pay any difference between the fees charged and the amount recovered from Allianz, particularly in the absence of any invoice for the difference sent to Patient A;
2. the approval of Allianz for physiotherapy in the 7 April 2021 Allianz letter was for one treatment area for the period from 15 March 2021 to 6 May 2021 sought in AHRR1. We reject the evidence of the respondent that Patient A agreed to pay any difference between the fees charged for the period from 11 May 2021 to 22 July 2021 and the amount recovered from Allianz, particularly in the absence of any invoice for the difference sent to Patient A;
3. the approval of Allianz for physiotherapy in the 1 June 2021 Allianz letter was for two treatment areas for the period from 11 May 2021 to 22 July 2021 sought in AHRR2. We reject the evidence of the respondent that Patient A agreed to pay any difference between the fees charged for the period from 15 March 2021 and 11 May 2021 in the 11 May 2021 Physical Health invoice and the amount recovered from Allianz, particularly in the absence of any invoice for the difference sent to Patient A.
1. We do not accept the evidence of the respondent that Patient A was committing a fraud on WorkCover by not making a claim for the injury to her right knee on 7 March 2021 for the following reasons:
1. there was no obligation for Patient A to submit a claim to SIRA;
2. Mr Vo and then the respondent elected to treat the right knee of Patient A as recorded in the Patient A Physical Health clinical records.
1. For these reasons, we have decided to place no weight on the evidence of the respondent where it differs from the evidence of Patient A and is inconsistent with the contemporaneous documentary evidence.
Mr Nies
1. We are satisfied that Mr Nies had no memory of the events involving Patient A in addition to those recorded in the 26 August 2021 Nies statement at [3] to [5]. We are not satisfied that he was a credible and reliable witness in circumstances where in cross-examination he resiled from the detailed account of conversations and other events in the 9 May 2023 Nies statement. Having regard to the principles in Seamez at [36] and Xie at [72]-[73], we infer from the substantial similarity between the conversation recorded in the 28 April 2023 Singh affidavit at [39] and the 9 May 2023 Nies statement at [13] as well as their friendship that he and the respondent colluded in the preparation of the 26 August 2021 Nies statement, and that this conversation is untrue. Further, this collusion casts doubt upon the credibility and reliability of his evidence generally on any controversial matter of importance.
2. For these reasons, we have decided to place no weight on the evidence of Mr Nies other than his evidence that the respondent was treating Patient A as the last patient when he left on 22 June 2021 in treatment room 3, and otherwise where it is consistent with the evidence of Patient A.
Mr Vo
1. We are satisfied that Mr Vo had no memory of the events involving Patient A independent of the entries he made in the Patient A Physical Health clinical records between 7 December 2020 and 15 March 2021. He was a credible and reliable witness so far as his evidence of the treatment he provided to Patient A, his treatment of her with the door of the treatment room closed, and his advice to Patient A to inform the insurer of the injury to her right knee on 7 March 2021.
2. We do not accept Mr Vo's explanation of reliance on an earlier summary of the Patient A Physical Health clinical records when preparing the 9 May 2023 Vo statement. It is implausible he would have made a summary of the occasions he treated Patient A but not included reference to those occasions in the 23 August 2021 Vo statement. Mr Vo either had access to the Patient A Physical Health clinical records or was provided with information by the respondent when preparing the 9 May 2023 Vo statement.
3. We are not satisfied that Mr Vo was otherwise a credible and reliable witness because it is implausible that he remembered details of the attendances of Patient A and the specific conversations with Patient A and the respondent other than the conversation on 8 March 2021 when they were not mentioned in the 23 August 2021 Vo statement and over two years had elapsed since they had occurred.
4. For these reasons, we have decided to place no weight on the evidence of Mr Vo other than his evidence of the treatment he provided Patient A, his treatment of her with the door of the treatment room closed, and his advice to Patient A to inform the insurer of the injury to her right knee on 7 March 2021, and otherwise where it is consistent with the evidence of Patient A.
Dr Romero
1. We are satisfied that Dr Romero was a credible and reliable witness so far as his evidence that he attended the consultation of Patient A on 6 April 2021 and treated Patient A on 13 April 2021. Dr Romero's evidence as to the treatment Patient A on 13 April 2021 accords with the entry in the Patient A Physical Health clinical records for that date. We also accept his oral evidence that he sometimes closed the door of the treatment room when he was treating patients.
2. We are not satisfied that Dr Romero was otherwise a credible and reliable witness for the following reasons:
1. it is implausible that he prepared the 8 May 2023 Dr Romero statement over a period of several months commencing in 2022 in circumstances where the applicant did not commence the proceedings until 9 January 2023;
2. it is implausible that he remembered the precise conversation between Patient A and the respondent on 6 April 2021 as recorded in the 8 May 2023 Dr Romero statement when he had not referred to any such conversation in the 23 August 2021 Dr Romero statement and there was no relevant entry in the Patient A Physical Health clinical records for that date;
3. it is implausible that he remembered seeing Patient A at the clinic on 11 May 2021 as recorded in the 8 May 2023 Dr Romero statement when he had not referred to any sighting in the 23 August 2021 Dr Romero statement;
4. it is implausible that he remembered seeing Patient A at the clinic on 8 June 2021 as stated in his oral evidence when he had not referred to any sighting in the 23 August 2021 Dr Romero statement and the 8 May 2023 Dr Romero statement.
1. For these reasons, we have decided to place no weight on the evidence of Dr Romero other than his evidence that that he attended the consultation of Patient A on 6 April 2021 and treated Patient A on 13 April 2021 and sometimes closed the door of the treatment room when he was treating patients, and otherwise where it is consistent with the evidence of Patient A.
Ms Romero
1. Except for her evidence that when she was treating Patient A sometimes the door would be closed for a little bit more privacy, we are not satisfied that Ms Romero was a credible and reliable witness for the following reasons:
1. the 11 May 2023 Ms Romero statement was made without access to the Patient A Physical Health clinical records and in consultation with the respondent and Dr Romero;
2. in cross-examination she conceded that details in in the August 2021 Ms Romero statement and the 11 May 2023 Ms Romero statement were incorrect;
3. in cross-examination she resiled from her evidence that she observed Patient A hug the respondent on 1 February 2021.
1. For these reasons, we have decided to place no weight on the evidence of Ms Romero other than her evidence that when she was treating Patient A sometimes the door would be closed for a little bit more privacy, and otherwise where it is consistent with the evidence of Patient A.
Mr Salib
1. We are not satisfied that Mr Salib was a credible and reliable witness and had an actual recollection of his attendance at the clinic on 22 June 2021 for the following reasons:
1. it is implausible that he remembered the arrival time at the clinic when the 21 June 2021 Singh/Salib text messages did not refer to any time for collection of supplements on 22 June 2021 and the details of the visit on that day, including the words spoken by the respondent to him and by the respondent to a patient in circumstances where he had been attending the clinic on a twice weekly and then weekly basis for the previous two and a quarter years, and he had no occasion to recall his appointment on that day until two and half months later and then until 20 months later when he was requested by the respondent to provide a statement;
2. notwithstanding his precise recollection of events in the 9 May 2023 Salib statement, he had no recollection of other events such as what the patient who left and the female patient who was receiving treatment looked like, and whether he received a handwritten receipt on the evening of 22 June 2021 or the respondent may have emailed it to him;
3. contrary to his evidence, he and the respondent were friends as evidenced by their text communications about personal matters and as such he had a motive for assisting the respondent;
4. having regard to the principles in Seamez at [36], we infer from the substantial similarity between his evidence and that of the respondent in the 28 April 2023 Singh affidavit as well as their friendship that he and the respondent colluded together in the preparation of the 9 May 2023 Salib statement. This collusion casts doubt upon the credibility and reliability of his evidence generally on any controversial matter of importance.
1. For these reasons, we have decided to place no weight on the evidence of Mr Salib.
Ms Mclear
1. While we are satisfied that Ms Mclear was a credible and reliable witness, in circumstances where she did not commence working in the practice until January 2022 her evidence has no bearing on whether Complaints One and Two are made out.
Mr Wilson
1. We are not satisfied that Mr Wilson was a credible and reliable witness and had an actual recollection of his appointment on 22 June 2021 for the following reasons:
1. it is implausible that he remembered the commencement and finishing times of his appointment on 22 June 2021, the number of patients in the waiting area at those times, the words spoken by the respondent to him and by Mr Nies to the respondent in circumstances where he had been receiving treatment every three weeks at the practice for the previous 18 months, and he had no occasion to recall his appointment on that day until 18 months later when he was requested by the respondent to provide a statement;
2. there were significant inconsistencies between the undated Wilson statement and the oral evidence of Mr Wilson as to the following matters:
1. his recollection of the treatment he received. In the undated Wilson statement he gave a detailed description of the treatment, but was unable to remember the treatment in his oral evidence;
2. as to the door of the treatment room being open or closed when he was receiving treatment. In the undated Wilson statement he said the respondent closed the door to the treatment room, whereas in his oral evidence he said the doors to the treatment rooms were always open except when getting changed. He gave no explanation for this change of evidence;
1. his explanation that he did not think that it was relevant to mention when he left there was still one patient waiting at the practice was unbelievable in circumstances where he had specifically referred to the number of patients waiting when he arrived. We accept that he gave this oral evidence because of information he had received from the respondent.
1. Except in relation to his evidence that there was one patient waiting when he left the practice, we are not satisfied that the evidence of Mr Wilson was influenced by the respondent as this was never put to him in cross-examination. However, the fact that Mr Wilson received information from the respondent casts doubt upon the reliability of his evidence generally.
2. For these reasons, we have decided to place no weight on the evidence of Mr Wilson other than his evidence that the respondent closed the door to the treatment room when he was being treated.
Whether the respondent engaged in the conduct constituting Complaint One, and whether any such proved conduct constitutes unsatisfactory professional conduct
Introduction
1. In the HCCC submissions in chief, the applicant made submissions that the Tribunal should find that each of the particulars of Complaint One have been established and referred to the applicable evidence. It is unnecessary to summarise these submissions in view of our earlier summary of the evidence of the applicant.
2. In the Singh submissions, the respondent in conclusion submitted that he is not guilty of unsatisfactory professional conduct in any of the ways particularised in Complaint One.
3. We have set out below our findings as to the allegations in the particulars of Complaint One. We had then addressed the question of whether the conduct of the respondent as found constitutes unsatisfactory professional conduct.
Background
1. We are satisfied as to the facts in the Background to the Amended Complaint other than that Patient A was treated by the respondent on 13 April 2021. In view of our finding as to the reliability of the Patient A Physical Health clinical records we find that on 13 April 2021 Patient A was treated by Dr Romero.
Complaint One, Particulars 1 and 7
1. We are satisfied that on 22 June 2021 the respondent removed the underwear of Patient A, did not obtain her informed consent or provide any explanation to her for the removal, and failed to provide adequate privacy and draping for her.
2. While we are satisfied that more than once prior to 22 June 2021 Patient A removed her underwear at the request of the respondent or the respondent removed her underwear, we are not satisfied that the respondent removed the underwear on those occasions. Accordingly, we find that the applicant has not established the allegations in Particular 1 of Complaint One other than for 22 June 2021.
3. We agree with Dr Uren in the 26 May 2022 Uren report that the respondent by his conduct on 22 June 2021 breached clauses 9.2.a) and 3.5 a) of the code of conduct.
4. Accordingly, we find that the applicant has established the allegations in Particulars 7 and 1 so far as the treatment of Patient A on 22 June 2021 of Complaint One.
Complaint One, Particular 2
1. We are satisfied that more than once prior to 22 June 2021 the respondent said, "You need a boyfriend, so they can touch you instead of me", "Have you found a boyfriend yet?", "How's your love life man?" and "Are you touching yourself?", to Patient A.
2. Leaving aside the question "Are you touching yourself?", we agree with Dr Uren in the 26 May 2022 Uren report that the respondent by making this statement and asking these questions engaged in conduct that would be considered significantly below conduct expected of peers of good standing. There was no clinical significance to this statement and these questions.
3. We disagree with Dr Uren in the 26 May 2022 Uren report that there was no clinical significance to the question "Are you touching yourself?" We accept that self-massage by a patient can have a positive therapeutic impact and the question did not necessarily have a sexual connotation.
4. Accordingly, we find that the applicant has established the allegations in Particular 2 of Complaint One other than in respect of the question "Are you touching yourself?".
Complaint One, Particular 3
1. We are satisfied that on 22 June 2021 the respondent described a syndrome affecting horseriders to Patient A.
2. We disagree with Dr Uren in the 26 May 2022 Uren report that the respondent by this description engaged in conduct below the standard reasonably expected of a practitioner of equivalent level of training and experience. It would require a standard of perfection for practitioners not to give an insensitive description of a medical condition in the course of the treatment of patients.
3. Accordingly, we find that the applicant has not established the allegations in Particular 3 of Complaint One.
Complaint One, Particular 4
1. We are satisfied that prior to 22 June 2021 the respondent said to Patient A that he wanted to be the one "treating her at the Olympics".
2. We disagree with Dr Uren in the 26 May 2022 Uren report that the respondent by this description engaged in conduct below the standard reasonably expected of a practitioner of equivalent level of training and experience. It is not inappropriate for a practitioner to express the hope of an ongoing professional relationship with a patient.
3. Accordingly, we find that the applicant has not established the allegations in Particular 4 of Complaint One.
Complaint One, Particulars 5 and 6
1. We are satisfied that prior to 22 June 2021 the respondent offered to help Patient A move house and to help her put up a new fence at her home.
2. We agree with Dr Uren in the 26 May 2022 Uren report that the respondent by his offers of help engaged in conduct below the standard reasonably expected of a practitioner of equivalent level of training and experience. These offers of help were not relevant to the therapeutic relationship with Patient A. We accept that the respondent by this conduct breached clause 9.2.a) of the code of conduct.
3. Accordingly, we find that the applicant has established the allegations in Particulars 5 and 6 of Complaint One.
Complaint One, Particular 8
1. We are satisfied that on 22 June 2021 the respondent hugged Patient A at the end of the consultation.
2. We disagree with Dr Uren in the 26 May 2022 Uren report that the respondent by hugging Patient A engaged in conduct that would be considered significantly below conduct expected of peers of good standing. However, we accept that this conduct was below the standard reasonably expected of a practitioner of equivalent level of training and experience.
3. Accordingly, we find that the applicant has established the allegations in Particular 8 of Complaint One.
Complaint One, Particular 9
1. We are satisfied that on 22 June 2021 the respondent said, "you need a boyfriend so they can work on your own body" and "you should touch yourself before you get into the car and begin the commute home", to Patient A.
2. We agree with Dr Uren in the 26 May 2022 Uren report that these statements were significantly below conduct expected of peers of good standing. There was no clinical significance to these statements. As to the statement "you should touch yourself before you get into the car and begin the commute home", this was not warranted clinically when Patient A had just finished being treated by the respondent.
3. Accordingly, we find that the applicant has established the allegations in Particular 9 of Complaint One.
Complaint One, Particulars 10 to 14
1. Having regard to the evidence of Patient A, we understand the expression "vaginal area" in Particular 10 of Complaint One to refer to the area immediately adjacent to her clitoris.
2. We are satisfied that on 22 June 2021 the respondent:
1. rubbed Patient A's vaginal area and clitoris with his hand, and did not obtain her proper consent to the conduct beforehand;
2. took Patient A's left hand in his hand, directing it to her groin area and said words to the effect of "you need to be touching yourself".
1. We agree with Dr Uren in the 26 May 2022 Uren report that the respondent by his conduct of rubbing Patient A's vaginal area and clitoris with his hand without her proper consent breached clause 9.2.a) of the code of conduct. As the respondent did not have a proper clinical justification for this conduct, we infer that he engaged in it for his own sexual gratification.
2. Accordingly, we find that the applicant has established the allegations in Particulars 10 and 11 when read with Particulars 13 and 14 of Complaint One.
3. We disagree with Dr Uren in the 26 May 2022 Uren report that the conduct of the respondent of taking Patient A's left hand in his hand, directing it to her groin area and saying words to the effect of "you need to be touching yourself" was below the standard reasonably expected of a practitioner of equivalent level of training and experience. The description of the conduct of the respondent is consistent with the approach that a practitioner may follow in instructing a patient how to undertake self-massage.
4. Accordingly, we find that the applicant has not established the allegations in Particular 12 when read with Particulars 13 and 14 of Complaint One.
Conclusion
1. Having regard the principles in Aref at [18]-[20], we find that the respondent by his conduct specified in Particulars 1 so far as the treatment of Patient A on 22 June 2021, 2, 7, 9, and 10 and 11 when read with Particulars 13 and 14 of Complaint One engaged in unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law.
Whether by reason of any such proved conduct for Complaint One, the respondent engaged in professional misconduct constituting Complaint Two
Introduction
1. In the HCCC submissions in chief, the applicant made submissions that the Tribunal should find that by reason of his conduct constituting Complaint One, the respondent engaged in professional misconduct constituting Complaint Two. It is unnecessary to summarise these submissions.
2. In the Singh submissions, the respondent relevantly submitted that the respondent is not guilty of professional misconduct in any of the ways particularised in Complaint Two.
3. We have set out below our findings as to whether the conduct of the respondent as found for Complaint One constitutes professional misconduct constituting Complaint Two.
Complaint Two
1. Having regard the principles in Chen at [19]-[20] and Litchfield at 638, we make the following findings:
1. the respondent by his conduct specified Particulars 1 so far as the treatment of Patient A on 22 June 2021, 7, and 10 and 11 when read with particulars 13 and 14 of Complaint One engaged in professional misconduct within s 139E(a) and (b) of the National Law;
2. the respondent by his conduct specified Particular 9 when considered with his conduct specified Particulars 1 so far as the treatment of Patient A on 22 June 2021, 7, and 10 and 11 when read with particulars 13 and 14 of Complaint One engaged in professional misconduct within s 139E(b) of the National Law;
3. the respondent by his conduct specified Particular 2 when considered on its own and with his conduct specified Particulars 1 so far as the treatment of Patient A on 22 June 2021, 7, 9, and 10 and 11 when read with particulars 13 and 14 of Complaint One did not engage in professional misconduct within s 139E(a) and (b) of the National Law.
The costs of the proceedings
1. In the HCCC submissions in reply, the applicant submitted that the issue of costs should be dealt with at the stage 2 hearing.
2. In the Singh submissions, the respondent sought an order that the respondent pay his costs.
3. During oral submissions, counsel for the respondent agreed that if there was to be a stage 2 hearing it would be appropriate for the issue of costs to be dealt with then.
4. In view of our findings in relation to Complaints One and Two it is unnecessary to deal with this issue in this decision.
The further course of the proceedings
1. Consequent upon our finding that the respondent is guilty of unsatisfactory professional conduct within s 139B(1)(a) and (l) of the National Law and of professional misconduct within s 139E(a) and (b) of the National Law there will need to be a stage 2 hearing to determine what protective orders should be made and the issue of costs.
Orders
1. We make the following orders:
1. the publication of the following names, together with any information or material which could identify these persons, whether by itself or with other information and material, is prohibited;
1. the 387 patients who attended Camden Healthcare Centre on 22 June 2021 (as recorded on pages 118 to 130 of exhibit R1);
2. Patient A's sister-in-law;
1. the applicant is to inform the respondent of what protective orders and costs orders it seeks within 14 days;
2. the respondent is to file and serve any further evidence, and an outline of submissions, on what protective orders and costs orders should be made within 28 days thereafter;
3. the applicant is to file and serve any further evidence, and an outline of submissions, on what protective orders and costs orders should be made within 28 days thereafter;
4. the proceedings are adjourned for the conduct of the stage 2 hearing to a date to be fixed by the Registrar.
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
12 September 2023 - No amendment made.
12 September 2023 - [11] number omitted.
08 November 2023 - para 56
08 November 2023 - paragraph 56
22 March 2024 - Para 2(2) - amended "s 139B(a)" to "s 139B(1)(a)"
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: 22 March 2024