Civil and Administrative Tribunal New South Wales Medium Neutral Citation: de Bono v Health Care Complaints Commission [2023] NSWCATOD 172 Hearing dates: 13 October 2023 Date of orders: 23 November 2023 Decision date: 23 November 2023 Jurisdiction: Occupational Division Before: J D Little, Senior Member Decision: 1. The decision the subject of this review is affirmed 2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the First Alleged Victim, the Second Alleged Victim and the Third Alleged Victim (as defined in my reasons for decision) is prohibited. Catchwords: HEALTH — professional registration and discipline — massage therapist — complaints — interim prohibition order — whether breached code of conduct — whether serious risk to the health or safety of members of the public — whether necessary to protect the health or safety of the public Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Evidence Act 1995 (NSW) Health Care Complaints Act 1993 (NSW) Public Health Regulation 2012 (NSW) Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Mark John de Bono (Applicant) Health Care Complaints Commission (Respondent) Representation: Counsel: A Bhasin (Respondent) Applicant (Self-Represented) File Number(s): 2023/00039651 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the First Alleged Victim, the Second Alleged Victim and the Third Alleged Victim (as defined in my reasons for decision) is prohibited. REASONS FOR DECISION 1. The Applicant seeks administrative review of a decision of the Respondent to make an interim prohibition order (IPO) against him on 11 September 2023 under s 41AA of the Health Care Complaints Act 1993 (NSW) (HCC Act). The IPO prohibits the Applicant from providing health service to any member of the public and is force for eight weeks commencing 11 September 2023. Background 1. The Applicant is a massage therapist. 2. On 13 October 2021, a 32-year-old woman (First Alleged Victim) attended the Respondent's business for a massage. 3. On 21 October 2022, a 36-year-old woman (Second Alleged Victim) attended the Respondent's business for a massage. 4. Also in October 2022, a 30-year-old woman (Third Alleged Victim) attended the Respondent's business for a massage (although the day of the massage is unclear from the materials as it has been redacted). 5. On 24 October 2022, the Respondent received a complaint against the Respondent from the First Alleged Victim by way of a complaint form. 6. The next day, on 25 October 2022, the Respondent received another complaint against the Applicant from the Second Alleged Victim by way of a complaint form. 7. On 20 December 2022, the Respondent received a further complaint against the Applicant from the Third Alleged Victim by way of a complaint form. 8. The particulars of the three complaints are described below. The Complaint made by the First Alleged Victim 1. The First Alleged Victim alleged that the Applicant had sexually touched her and violated her boundaries during the massage. 2. According to the complaint form: 1. The massage session begun by the Applicant washing the First Alleged Victim's feet. 2. Once lying face down, the Applicant removed her hair band from her hair without asking for consent to do so. The First Alleged Victim "found this strange" as every treatment she had ever had, the therapist always asked permission. 3. During the massage: 1. the Applicant used a "feather light touch" at certain points. 2. the Applicant held her hand while massaging her with the other hand; 3. the Second Alleged Victim felt the Applicant was removing the towel and exposing her body more than necessary in order to conduct the massage; and 4. the Applicant pulled her underwear down as opposed to shifting it to the side exposing her buttocks. 1. Additionally, the First Alleged Victim had received massages before although it is unclear from the complaint form whether those massages were received from the Applicant. 1. The complaint form states, inter alia: Once I returned he told me he will leave and let me get ready and lie face down on the table. I removed all my clothes except my underwear and draped the towel lengthways along my body covering all of it except my head. A minute later he knocked and asked if he could come in, to which I said yes. He came in and from what I could tell by hearing he did not close the door. He came to the head of the table and grab my hairband on my ponytail and slide it off my hair. I found this strange as every treatment I have ever had they always asked me to remove my own hair tie. He then did some pressure massage on top of the towel before exposing my leg. I felt like the towel was too far removed and that my lower back and most of both bottom cheeks were exposed. He made some massage movements but also did a feather light touch from my toes to my buttocks. He did this a few times and when he would come to my buttocks he would go right up to the crack. Also while massaging he would get right up close to the crack and pull it apart. When he finished the first leg he covered me completely with the towel but uncovered me just as much when he exposed the second leg. He did the same "massage" on the second leg. A few times during this I noticed he would stop and change the music. I'm not sure why as it all sounded very similar. Once he had finished my legs he moved onto my back. He removed the towel from half of my back and one buttock. He then grabbed my underwear and moved it down. He moved it so far down so that it was down to the bottom of my cheek. He then massaged one side of my back, leg and arm. While doing this the towel uncovered my whole bum crack which was completely exposed as my underwear was so low that it did not cover it. During this, he massaged my bum cheek and pulled it outwards so that it opened my crack. At times he did the feather light touching up and down my back and his finger went lightly right along the top of my crack. A few times he would be lightly holding my hand which was hanging over the side of the table with one hand and rubbing the other up and down one side of my body. At one point he had one arm on either side of me and lowered his chest as if he was hugging me from behind. He then did this on the other side of me almost exactly the same. After he had finished my back, he covered me with the towel and left the room. I then heard him urinating. By the sound of it he did not open or close any doors and the bathroom is directly across the hall from the massage room. He was urinating with both doors completely open. I heard him flush and wash his hands. While he was gone, I pulled my underwear back up. He then returned to the room and asked me to roll over. He held up the towel as I did this. He draped the towel over my body and came to the head of the table. He lowered the towel to above my breasts and began to massage my neck, upper chest and face. He did this again with lots of feather light strokes. At one point he lifted the towel off my breasts and put it back down. He never lifted the towel back up to cover my upper chest. Once he had stopped massaging, I heard him go to the bathroom and run the tap. He returned after a minute and told me that our time was over and he had another client arriving soon. I was so relieved. He stood next to the table and asked me to hold his arm so that he could help me up. Once sitting up I swung my legs over the side of the table and held the towel over my chest. My back was to him and fully exposed. I pretended I was half asleep and relaxed. My eyes were still closed at this point and without any word from him I could sense his hands in front of my face. I could then smell he had an essential oil on his hands. He then said this will help to wake me up. He told me he will leave so that I can get dressed. Once dressed, I left the room and walked to the reception area. I said I felt relaxed and asked how much I owe. He charged me $90 and I left. Aside from the first minute or two, I was afraid I was going to be raped for almost the entire massage. I was too scared to move or say anything. I was frozen. I didn't want to upset him and potentially set him off and I was so scared to make any kind of movement that he might take as encouragement. I have never felt so violated and uncomfortable in my whole life. He never once asked me if what he was doing was ok. He didn't check in with me to see if I was comfortable. He never questioned if the pressure was ok or if he could move my underwear [Emphasis added] 1. The next day, the First Alleged Victim gave a statement to the police. The Complaint made by the Second Alleged Victim 1. The Second Alleged Victim alleged that the Applicant had sexually touched her during the massage which the Applicant had scheduled for 5.30pm. 2. According to that complaint form: 1. The massage session begun by the Applicant washing the Second Alleged Victim's feet. 2. Once lying face down, the Applicant removed her hair clip from her hair and said sorry I should have asked if it was ok to remove. 3. During the massage: 1. the Applicant used a "feather light touch" at certain points. 2. the Applicant held her hand while massaging her with the other hand; 3. the Second Alleged Victim felt the Applicant was removing the towel and exposing her body more than necessary in order to conduct the massage; and 4. the Applicant pulled her underwear down exposing her buttocks as opposed to shifting it to the side. 1. Additionally: 1. The Second Alleged Victim had received massages before and specifically received massages from the Applicant prior to the appointment she made for 21 October 2022. In that regard, the Applicant had used the Applicant's services three times during the 2021 to 2022 financial year and had discerned this from reviewing her bank statements. It can be inferred from this that on those three past occasions, the Applicant paid by electronic transfer. 2. The Second Alleged Victim had informed the Applicant prior to the massage that her chest area felt tight as she had recently recovered from COVID and she had a right hip problem which "looks like a hernia pit". 1. The complaint form states, inter alia: Things started to get weird at the end of the massage when I flipped over and was facing the ceiling. I closed my eyes again and got back into concentrating on my breathing to get into a relaxed state. He did my upper back, head, face and chest area. He was on the right side of my body and my hand was laying on the pinky side down on the table next to my body and he grabbed it. I did not put pressure in my hand for grasping his hand back it was just sitting there relaxed he held my hand and moved it a couple times with a different grasp. He removed the towel off the right side of my body exposing it. He did his light touch from just to the left of my right hip bone and worked his fingers up to my right breast with his fingers. He held his hand on my breast for a moment felt like he was cupping his hand over my breast with the fingers then he went up to my right shoulder and then down my right arm. I thought this was a bit strange as massage therapists usually don't remove the towel or try to expose the chest area, sometimes the towel falls but therapists try to be as decent as they can. He did this another time so I thought he is doing this like he normally does and then he will massage as I told him about my chest being tight so he might work on this area. He then bent my legs up and started pulling my underwear down to my knees, I thought this was a bit weird but as I had told him about my hip maybe he was going to do some work in this area. Then he kissed just on my pubic bone area. Just about an inch from my lips and just to the right a little less than an inch. This is when I jolted up saying what are you doing. That's not right, no. (During the massage I tried to focus on my breathing and be as relaxed as possible. I thought I was in a safe space and trying to relax my body and in a kind of a sleep state) [The Applicant] said he thought this was ok and what I wanted as I was holding his hand. I said I was not holding your hand, you were holding mine. This is wrong you need to get out now. He said he thought we had a connection. He left the room and I got dressed. As I was leaving, he was sitting on the couch and I said that was wrong, no you should not of done that. He did say sorry a few times and he is on his own and lonely. I said sorry is not right, I will never be back and will tell my friend to never go to him and I am not paying. All he could say is sorry. I said I don't want to be really mean but I feel like you raped me and sorry will not do, I can't believe you did that. I left and called my mother-in-law at 7:47pm on October 21, 2022 and was crying, shaking, in such a shocked state, feeling so violated and just dirty and asked her if I could come over as I was so upset I didn't know what to do. [She] said yes come over … my partner called at 7:51pm as he thought it was weird I hadn't called him yet after my massage appointment. I told my partner happened as I was in such a shocked state. I got home and called [another person] back to tell her what happened and I just didn't know what to do in regards to calling the police. Her friend … works at Lifeline so [the other person] called her and she called the police for me … [Emphasis added] 1. The Second Alleged Victim gave a statement to police on 28 October 2022, in the same terms as her complaint to the Commission. Third Alleged Victim 1. The Third Alleged Victim alleged that the Applicant had misconducted himself sexually during the massage which was meant to be a remedial massage focusing on her left shoulder. 2. According to the complaint form: 1. the Applicant used a gentle massage technique which felt sensual and inconsistent with a remedial massage. 2. the Applicant gently held her hand during the massage which she did not understand as it did not appear to be remedially helping with the Third Alleged Victim's shoulder; 3. the Third Alleged Victim felt the Applicant was removing the towel and exposing her body more than necessary in order to conduct the massage; and 4. the Applicant pulled her underwear down as opposed to shifting it to the side and pulled it down further than necessary (and the Third Alleged Victim had never experienced this with other therapists). 5. Additionally, the Third Alleged Victim had received massages before although it is unclear from the complaint form whether those massages were received from the Applicant. 1. The complaint form states, inter alia: On … October, I had a remedial massage with [the Applicant]. I specified for the massage that I would like it to focus on my left shoulder and to be remedial. During the course of the massage there were moments that felt very sensual and not appropriate for a remedial massage focused on my shoulder. I felt uncomfortable and tense as he gently massaged down my side in a sensual way and gently held my hand, as these actions didn't appear to be remedially helping my shoulder. He was also in a really close proximity to my body and breathing heavily. He removed my underwear down further than I felt necessary (or that I have ever experienced with other therapists). He proceeded to massage down my spine and at one point massaged down through the top 1/4 of the crack of my bottom with his hands. This made me extremely uncomfortable and confused as to what he was doing. He proceeded to massage my right shoulder but did not replace my undies back over my bottom or cover me back up. The experience of the massage felt very sensualised and left me feeling unsettled and uncomfortable by what just happened. [Emphasis added] Criminal charges and investigation of the Respondent 1. The Second Alleged Victim gave a statement to police on 28 October 2022, in the same terms as her complaint to the Respondent. 2. On 18 November 2022, the police charged the Applicant with two counts of sexually touching another person without consent contrary to s 61K of the Crimes Act 1900 (NSW) in respect of the allegation made by the Second Alleged Victim. 3. On 24 November 2022, the Respondent made an own-motion complaint against the Applicant based on information received from the NSW Police relating to the Second Alleged Victim. 4. On 23 January 2023, the Applicant was advised that the Respondent's investigation would remain paused until the criminal proceedings concluded so as not to interfere with the police investigation. 5. On 1 August 2023, the criminal charges were heard summarily by the Local Court. In respect of the hearing: 1. the Second Alleged Victim gave evidence and was cross-examined; 2. the Local Court, which is subject to the rule of evidence as provided in the Evidence Act 1995 (NSW), refused to admit the evidence of the First Alleged Victim as tendency evidence; 3. the evidence of the Third Alleged Victim was either not tendered or was refused; 4. the Applicant exercised his right not to give evidence and relied upon an electronically recorded account he gave to police denying the allegations. 1. On 28 August 2023, the Court found the Applicant not guilty of the charges. Legislation 1. Section 41AA relevantly provides that the Commission may, during any investigation of a complaint against a non-registered health practitioner, make an interim prohibition order in respect of the non-registered health practitioner. The Commission may make an interim prohibition order only if: 1. it has reasonable belief that the health practitioner has breached the Code of Conduct; and 2. it is of the opinion that the health practitioner poses a serious risk to the health or safety of members of the public and the making of an interim prohibition order is necessary to protect the health or safety of members of the public 1. Under s 41C(1)(b) of the HCC Act, the Applicant is entitled to apply the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 (NSW) (ADR Act) of the decision to make the IPO. On review, the Tribunal must make the "correct and preferable" decision having regard to the material before it, including any relevant factual material and applicable written or unwritten law: s 63(1) of the ADR Act. The Tribunal may exercise all of the functions that are vested in the Commission, and any affirm, vary or set aside the Commissioner's decision: ss 63(2 and (3) of the ADR Act. Submissions 1. The Applicant submits that: 1. He has been found not guilty of the charges in respect of the allegations of the Second Alleged Victim and in that respect, Magistrate Darcy did not accept the allegations made by the First Alleged Victim to be tendency evidence. 2. The allegations made against him are false, he has never pulled down someone's underwear. 3. He had nothing to hide and cooperated with the police in that he went to the police station willingly without a lawyer and provided DNA and gave a clear account of events which he stands by. 4. He is extremely professional and experienced massage therapist for over six years and a member of the Massage and Myotherapy Association of Australia. 5. He has a loyal customer base that speak highly of his services and his professionalism. 6. He is a small business owner, who wants to make a living to pay his life expenses including a car loan, a housing loan, and everyday expenses and he needs to return to my work and meet my requirements. Additionally, his inability to work has impacted his emotional state and he now experiences low mood and anxiety. 1. The Applicant provided an account of his manner of consultation and massage as follows: When my clients attended the clinic, I always took pride in delivering a professional service. Each client that attended my clinic, undertook a thorough consultation. As the client arrived, I would ask them to take a seat in the waiting room until I was ready. The client was then escorted to the treatment room, where they were offered a foot soak while we completed a thorough consultation and client intake. I would talk them through the intake form. I explained the Health Information accuracy and confidentiality agreement, which I would then ask them to read and sign. I would then discuss the process of the message and that they were always in control and if at any stage they felt the message was uncomfortable for any reason we could adjust the pressure or stop the service, they are always in control. My intake form also states that all attempts will be made to ensure their privacy and that they understand fully that they may need to remove clothing other than their undergarments, which may obstruct the effective execution of the massage. My intake form also contained their details, emergency contacts, medical history, medications, and the client's reason for the booking. These files were kept securely for future reference for ten years from the last date of entry. Once the client consultation was complete, l would explain to the client that I would leave the room and ask them to remove their clothing (this would depend on where I was massaging), leaving their undergarments as they felt comfortable. I would ask them to lay on the bed facing downwards and there was a towel for them to cover themselves. I would leave the room, allowing them to do this privately, closing the door behind me. I would always knock before re-entering the room. Conversation during the massage would depend on the type of massage and the client. In a Relaxation Massage, there was generally less talking so the client could relax, but always checking occasionally that they were okay and comfortable. In a remedial massage, there is more conversation gaining feedback on specific details needed to ensure the massage was meeting the requirements and that I was working on the correct area. Throughout a massage, I was always conscious of the client's modesty and comfort, using boulters or pillows and extra towels if required. When a client was to turn from back to front, I would lift the towel slightly, maintaining the client's modesty and comfort. At the end of the massage, I would use an essential oil on my hands, and place my hands in front of the face, asking the client to take a deep breathe, relax then breathe out. This is to awaken the client. I would then leave the room for the client to get dressed, have a glass of water and I would meet them at the reception area. This is how I had run my clinic for the past 5 years until this incident. 1. With respect to the allegations, the Applicant contended that: 1. With respect to the First Alleged Victim: 1. She was "crazy" and was on the police's "radar" which is why the matter did not proceed to charges. 1. With respect to the Second Alleged Victim 1. the evidence in the criminal proceedings was inconsistent and unbelievable and he stood by his account as provided to the police when he was interviewed by them. In this respect, the Applicant took me to parts of the transcript of the criminal proceedings to submit that there were too many discrepancies in the evidence for the allegations to be believable. Examples of these alleged discrepancies as contended by the Applicant included: 1. the police did not obtain copies of the phone records to clarify the time of calls; 1. the Second Alleged Victim waited an hour to call anyone after the alleged assault; 2. the fact she admitted lifting her buttocks to have her underwear removed in cross-examination but that this was not said in her examination in chief and that the first time this was said was during cross-examination. 3. it was unbelievable that the Second Alleged Victim would continue to lie there is felt that she was being assaulted and that the natural inclination would be to "jump up right away". In this respect, the Applicant contended that it was unbelievable that: 1. she would keep her eyes closed if the Applicant was "cupping her breast"; 2. if the towel fell off or she felt exposed that she would continue to lie there 1. It was also unbelievable that: 1. the Second Alleged Victim would have a conversation while exiting the business if such an incident had occurred; 2. the positioning of the towel as described by the Second Alleged Victim without it falling off completely; and 3. the length of time taken for the massage on the Second Alleged Victim's evidence. 1. the Second Alleged Victim could remember some details of the alleged incidents but not others and in respect of questions about such details, she replied "I'm not sure" such as 1. the exact words the Applicant used when he asked her to roll onto her back; 2. how large the towel was used during the massage; 3. how long the Applicant massaged her upper back and chest area before gripping her hand; 4. whether she was lying on a vinyl massage table; and 5. whether a bolster was used during the massage. 1. The Applicant also denied that the Second Alleged Victim left without paying indicating in the proceedings as well as in his statement to police, that the Second Alleged Victim paid in cash. 1. With respect to the Third Alleged Victim's complaint, the substance of the complaint is vague and unreliable. 2. In respect of the First and Third Alleged Victims, they were a result of publications in the newspapers about the complaints and charges rather than based on fact. 1. The Applicant relied upon the following written submissions and evidence: 1. Application for administrative review attaching written submissions marked "A1"; 2. Bundle of documents marked "A2" comprising: 1. Further written submissions of the Applicant; 2. Advice of Court result dated 28 August 2023; 3. Photographs of his TAFE certificates in massage therapy practice and remedial massage; 4. Certificate of currency of insurance with Aon in respect of which the Applicant is listed as an insured as a health practitioner; 5. Email from Massage & Myotherapy Australia confirming membership of the Applicant dated 15 September 2023; 6. Intake forms of consultation with First and Second Alleged Victims; 7. Print out of text message with the First Alleged Victim setting up appointment with the Applicant; 8. Eights character references of clients describing the Applicant as inter alia, respectful, professional, experienced and considerate and that such clients have not felt unsafe or treated inappropriately. 1. Bundle of documents marked "A3" comprising, in part, duplication of other material but with respect to new material: 1. Email from the Respondent confirming that the IPO was to stay in place dated 23 December 2022 and related emails; 2. Curriculum vitae of the Applicant; 3. Copies of the form of permission slip used by the Applicant as found by the Local Court; 4. Notice of listing of in the Local Court stating that the bail conditions had been varied and dated 21 November 2022; 5. Letter from the Applicant's accountants showing a substantial reduction in his income due to the cancellation of his license; 6. Letter from the Applicant's general practitioner and stating that the Applicant started antidepressants and has low mood and anxiety but that the ability to work will improve his mental health; 7. Seven references describing the Applicant as inter alia, respectful, professional, experienced and considerate and that such clients have not felt unsafe or treated inappropriately some of which are duplicated in A2 above; 1. Bundle of documents marked "A4" which duplicates the documents in "A3". 2. Bundle of documents marked "A5" which duplicates the letter from the Applicant's general practitioner and accountant as described above; 3. Email from the Applicant attaching duplications of some of the references described above marked "A6"; and 4. Bundle of documents marked "A7": 1. Article published in the Port Macquarie News entitled "court dismisses sexual touching charges against Lake Cathie massage therapist" dated 28 August 2023; 2. Transcript of the criminal proceedings before Magistrate Darcy on 19 May 2023. 1. The Respondent submits that: 1. Based on the multiple allegations, from different complainants, made against the Applicant of inappropriate conduct in providing massage services the Tribunal would form a reasonable belief that he has breached a code-of-conduct for non-registered health practitioners: cf s 41AA(2)(a) and specifically Clause 1(1) of the Code of Conduct set out in sch 3 to the Public Health Regulation 2012 (NSW) (up to 31 August 2022) and Public Health Regulation 2022 (NSW) (effective from 1 September 2022) which provides that: [a] health practitioner must provide health services in a safe and ethical manner 1. The Tribunal would also believe the Applicant poses a serious risk to the health or safety of members of the public and the making of the IPO is necessary to protect the health or safety of members of the public: s 41AA(2)(b). The allegations all arise in the context of the Applicant providing health services that are prohibited by the IPO. Absent an IPO, the Applicant poses a serious risk to the health and safety of his female clients through a repetition of the type of conduct the subject of the allegations. The potentially severe impact of that conduct on the Applicant's clients is evident, in particular, from the complaints as summarised above, each of whom describe feeling violated and suffering a subsequent emotional and physical toll. 2. With respect to the outcome of the criminal proceedings, the Respondent contends that the criminal proceedings related solely to the allegations made by the Second Alleged Victim and whether they established the Applicant's guilt of the alleged criminal offences to the criminal standard, that is, beyond a reasonable doubt. In that regard, the Court did not have regard to the complaints received by the Respondents from the First and Third Alleged Victims. However, the Respondent's investigation and this Tribunal's consideration has a broader focus and is not restricted by the rule of evidence. This Tribunal must consider the evidence before it and that included the multiple complaints from multiple clients' which evidence 1. His lack of communication with clients; 2. Issues of client consent and record keeping; and 3. The risk that the Applicant poses to the health and safety of members of the public. 1. In reply to the Applicant's contentions that the oral evidence in the criminal hearing supported a finding that the allegations were unbelievable, the Respondent contended that it is well established that victims do not react in the same way and in that regard, some victims may freeze, some victims may delay but there is no "typical" or "normal" behaviour. 2. The Respondent further submitted that it was not implausible to recall certain details but not recall other details and the inability of the Second Alleged Victim to recall every detail was not a basis to discredit her account. 3. In support of these contentions, the Respondent relied upon the following written submissions and evidence: 1. Respondent's written submissions dated 3 October 2023 marked "R1"; 2. Bundle of documents entitled "Documents served by the Health Care Complaints Commission" filed on 13 March 2023 marked "R2" containing copies of the complaints made against the Applicant; documents related to the IPO and documents related to the internal review including: 1. File notes and emails of call with the Applicant; 2. Certificate IV in massage therapy awarded to the Applicant and record of registration of the Applicant's business name; 3. Informed consent slips signed by the Applicant's clients; 4. Written references with respect to the Applicant 1. Supplementary bundle of documents entitled "Documents relied on by the Health Care Complaints Commission" filed on 3 October 2023 marked "R3" including: 1. Briefing note dated 1 December 2022 of which Mr Mitchell Robinson of the Respondent is the investigator; 2. Letter serving the IPO on the Applicant dated 11 September 2023; 3. Notification and statement of decision regarding the IPO dated 11 September 2023; 4. Police Statement of the Second Alleged Victim dated 28 October 2022; 5. Police Statement of the First Alleged Victim dated 14 October 2021; 6. Transcripts of body worn footage of the police and their conversations with the Applicant on 19 November 2022; and 7. Electronic Record of Interview with Suspected Person (ERISP) transcript of the Applicant dated 19 November 2022. Consideration 1. In the accounts given by the Alleged Victims there are multiple and significant consistencies which include: 1. With respect to the First Alleged Victim and the Second Alleged Victim, the massage session begun by an offer by made the Applicant to wash their feet which is also the way the Applicant describes as the first step in the massage. 2. Once lying face down, the Applicant removed the hair fastener from the First Alleged Victim and the Second Alleged Victims' hair without asking for consent to do so. In respect of the First Alleged Victim, she "found this strange" as every treatment she had ever had, the therapist always asked permission. In respect of he Second Alleged Victim, the Applicant said, "sorry I should have asked if it was ok to remove". 3. All three of the Alleged Victims described the Applicant's light touch technique. The First Alleged Victim and the Second Alleged Victim described this as a "feather light touch". The Third Alleged Victim described this as a gentle massage technique which felt sensual and inconsistent with a remedial massage. 4. All three of the Alleged Victims described the Applicant holding their hand while massaging with the other. 5. All three of the Alleged Victims described the Applicant removing the towel and exposing their body more than necessary to conduct the massage noting that all three of the alleged victims had experience in getting massages prior to the massage given by the Applicant. 1. Lastly, and significantly, all three of the Alleged Victims described the Applicant pulling down their underwear, exposing their buttocks as opposed to shifting it to the side. 2. I find that the consistencies as between the Alleged Victims' accounts support their credibility and accuracy. I find that the allegation related to the pulling down of the Alleged Victims' underwear is a particularly specific allegation made by three separate individuals and I am satisfied that this consistency can be explained because the conduct occurred. I also note the Applicant's interview with police where he accepts that there was no vengeance as between himself and the Second Alleged Victim and there is no reason why she would fabricate her statement. 3. Conversely, much of the Applicant's contentions made by way of submission and as contained in ERISP interview sit uneasily with the other evidence before me. With respect to the ERISP interview, the Applicant expressly indicated during the hearing before me that he relied upon this interview as representing his account of the relevant events for the purposes of this administrative review. 4. First, with respect to the Applicant's denial of "ever pulling down anyone's underwear" but rather pulling the underwear to the side, the Applicant initially provided a consistent account to police with respect to the Second Alleged Victim where he variously stated in the interview: A: "There's no way I would do that [that is, pull the Second Alleged Victim's underwear down] ---" 1. When asked again, the Applicant stated: A: "Oh. No way, Like, fully deny everything [the Second Alleged Victim has] said, this is just crazy" 1. A further exchange included: Q: "Did you pull her underwear down ---? A: No" Q: --- to her knees? A: There's no way I'd pull her underwear … 1. However, later during the interview the complete denial of removing underwear changed when the Applicant answered questions related to the First Alleged Victim where his account is then, at times he pulls underwear down but only to massage the lower back and only to expose the buttocks partially. In this respect, the Applicant stated: Q: Did you touch her underwear A: Well, I pull it up. Q: OK. And how did you --- A: Unless she was wearing a g-string, I can't remember Q: OK. So, when you say, Pulled it up --- A: A lot of my clients wear g-strings, so I don't have to do that. Q: OK. When, you say you pulled it up, it's the same thing as you said before, you just pull the band up? A: Yes Q: OK. But you never pull then down, do you? A: No Q Well .. A: Oh, well, occasionally I, I have pulled then down. Q: OK. What, what would that be for? A: Just working on their lower back … … Q: So, how far, when you say down a bit, how far down? A: Well, half way down their, their bum 1. Later again, during that interview, the Applicant's account changed again with the Applicant's technique including pulling underwear down below the buttocks. The exchange below related to the First Alleged Victim's account of the Applicant pulling down her underwear in which she stated: "He then grabbed my underwear and moved it down. He moved it so far down so that it was down to the bottom of my cheek. He then massaged one side of my back, leg and arm. While doing this the towel uncovered my whole bum crack which was completely exposed as my underwear was so low that it did not cover it. During this, he massaged my bum cheek and pulled it outwards so that it opened my crack." 1. In respect of this, the Applicant told the police the following: Q: OK. With [the First Alleged Victim's] she talks about having her underpants pulled down and, uh, massaging her buttocks and the like --- A: Mmm Q: --- uh, are you saying that's normal? A: Yes --- Q: OK A: --- I am … A: … I always do massage like that Q: OK … A: You know I pull their undies down and work on their buttocks all the time too 1. Secondly, the Applicant's allegation that the Second Alleged Victim paid in cash (as opposed to leaving without paying because she was upset with the conduct of the Applicant) does not find support in the documents before me. Firstly, there is no record of this alleged cash transaction. Secondly, the police interview notes that the Second Alleged Victim informed the police that the alleged assault occurred on her fourth visit to the Applicant's massage business. This is consistent with the Applicant's statement to the police where he stated in answer to an inquiry of how many times the Second Alleged Victim has used his services: … at least four or five 1. To discern how many visits the Second Alleged Victim had made to the Applicant, she reviewed her bank statements as supported by her complaint form, where it states: Looking in my bank statement for this financial year and last I have been to him for massages on: - November 27, 2021 - December 8, 2021 - April 2, 2022 - October 21, 2022 – did not pay due to assault 1. A reasonable inference to be drawn based upon this evidence is that on all three prior occasions, the Second Alleged Victim paid by electronic transfer given that she was able to determine the dates of her visits to the Applicant's business by her bank statements. Paying by cash is inconsistent with the Second Alleged Victim's prior conduct which in turn, creates an inconsistency with the Applicant's account to the police and specifically: [The Second Alleged Victim] just left the same as she always has. There's no way I'd expect to ever hear anything like this. 1. I have also considered in detail the transcript of the criminal proceedings relied upon in this administrative review. With respect to the Second Alleged Victim's cross-examination, I do not accept the Applicant's submissions that her evidence was unbelievable because of the alleged discrepancies that the Applicant took me to during the hearing. Rather, I accept the Respondent's contention that individuals do not react in the same way and in that regard, individuals when feeling threatened or in danger may freeze or may delay but there is no "typical" or "normal" behaviour. With specific reference to the questions challenging the Second Alleged Victim's evidence as to why she did not react when her underwear was pulled down, her evidence was: I thought he was going into my hip area to work on my hip because I have hip problems … I'd been to him before for other massages. I thought I was in a safe space and I thought he was doing what he needed to do to access the hip area. 1. I find that the Second Alleged Victim's account is plausible and indicated an internal rationalisation which was a believable reaction. 2. I do not accept, as contended by the Applicant, that the First and Third Alleged Victims' complaints (which post-dated the Second Alleged Victim complaint) were a result of media coverage or that the consistencies as between the accounts could be explained because of information in newspaper articles. There is no evidence before me of any publications that pre-date the complaints and I reject this submission. The only article relied upon is dated 31 August 2023 and post-dates the complaints, the charges and the verdict. 3. I reject the Applicant's submission that the First Alleged Victim was "crazy". Such an allegation was made only by way of submission by what was allegedly said to the Applicant by some unknown police officer and in any case, is unsupported by any evidence and sits uneasily with the fact that the Respondent presented her as a credible witness in the criminal proceedings with the Respondent attempting to rely upon her evidence as tendency evidence. 4. In making these findings, in the context of the Applicant having been found not guilty of criminal charges in respect of the Second Alleged Victim, I accept the submissions of the Respondent that the criminal proceedings related solely to the allegations made by the Second Alleged Victim and whether they established the Applicant's guilt of the alleged criminal offences to the criminal standard, that is, beyond a reasonable doubt. I also note that the First Alleged Victim's evidence was sought to be relied upon as tendency evidence but was rejected. However, this Tribunal's consideration has a broader focus and is not restricted by the rule of evidence and may consider the evidence related to the First and Third Alleged Victims' complaints. 5. However, the evidence before is insufficient to find that the Applicant kissed the Second Alleged Victim's pubic bone area or cupped her breasts. There is no consistency as between the Second Alleged Victim's complaint and the other complaints made by the First and Third Alleged Victims. I cannot, on the evidence before me, make a positive finding in this respect in the context of the denials of the Applicant. 6. Irrespective of the absence of findings in respect of the cupping of breasts and the kiss on her public bone made by the Second Alleged Victim, the findings of fact that have been made, which are based on multiple allegations, from different complainants of inappropriate conduct in providing massage services, leads to the conclusion that it was appropriate for the Respondent to make an IPO pursuant to s 41AA. 7. In consideration of the provisions of s 41AA, I find that: 1. as a non-registered practitioner, the applicant was subject to the Code of Conduct set out in sch 3 to the Public Health Regulation 2012 (NSW) (up to 31 August 2022) and Public Health Regulation 2022 (NSW) (effective from 1 September 2022). Clause 1(1) of each Code provides that a health practitioner must provide health services in a safe and ethical manner. Consistent with my findings of fact, I find that the Applicant has breached this requirement and thereby breached a code-of-conduct for non-registered health practitioners. 2. I further find that the Applicant poses a serious risk to the health or safety of members of the public and the making of an interim prohibition order was necessary to protect the health or safety of members of the public. In this respect the multiple complaints, the substance of those complaints and the conduct of the Applicant evidence 1. His lack of communication with clients; 2. Issues of client consent; and 3. A lack of understanding or a lack of restraint leading to a violation of boundaries with clients. 1. In this respect, the protection of the health and safety of the public must be the paramount consideration consistent with s 3(2) of the HCC Act when considering an exercise of the power under s 41AA of the HCC Act. In considering that protection, it was appropriate that the IPO was made. 2. I therefore affirm the decision of the Respondent the subject of this administrative review. 3. I so find. Orders 1. I affirm the decision of the Respondent the subject of this review 2. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the disclosure of the names of the Applicant, the First Alleged Victim, the Second Alleged Victim and the Third Alleged Victim (as defined in my reasons for decision) is prohibited. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2023