Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Toma [2024] NSWCATOD 76 Hearing dates: 14 – 15 February 2024 Date of orders: 13 June 2024 Decision date: 13 June 2024 Jurisdiction: Occupational Division Before: The Hon T Sheahan ADCJ, Principal Member Dr K Smartt, Senior Member Dr G Yeo, Senior Member R Wellington, General Member Decision: The Tribunal finds the three complaints in this matter proven and refers the proceedings to the Registrar to fix a date and make Directions for a Stage 2 hearing. Catchwords: HEALTH – unsatisfactory professional conduct – professional boundaries – inadequate recordkeeping – stage 1 hearing – professional misconduct as a possible ground for deregistration – non-publication order Legislation Cited: Health Practitioner Regulation National Law (NSW) Health Practitioner Regulation (New South Wales) Regulation 2016 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Health Care Complaints Commission v Liu [2016] NSWCATOD 133 Pillai v Messiter (No 2) (1989) 16 NSWLR 197 Texts Cited: Nil Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Hazem Toma (Respondent) Representation: Counsel: S Gaussen (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Makinson d'Apice Lawyers (Respondent) File Number(s): 2023/00269964 Publication restriction: The name of the patient identified in the material before the Tribunal is supressed. REASONS FOR DECISION Introduction 1. The Stage 1 hearing of this matter proceeded over two days, 14-15 February 2024, after the parties agreed, at the commencement of the hearing, on a Statement of Agreed Facts (Ex H3), not to rely at Stage 1 on certain materials already filed, and on the vacation of the appointed third hearing day (16 February 2024). 2. In its Complaint, as amended on 31 January 2024, the Health Care Complaints Commission ("HCCC") seeks two findings of "unsatisfactory professional conduct", and one of "professional misconduct", against medical practitioner Dr Hazem Toma, in respect of his dealings with a female patient, to be known in the proceedings only as "Patient A", on 18 November 2021. 3. The proceedings rely upon the Health Practitioner Regulation National Law (NSW) (the "National Law"), especially s 139B in respect of "unsatisfactory professional conduct", and s 139E in respect of "professional misconduct". 4. The complaint of professional misconduct is based upon the two complaints of unsatisfactory professional conduct, alleged to be "of a sufficiently serious nature to justify the suspension or cancellation of" Dr Toma's registration (as to which see: Pillai v Messiter (No 2) (1989) 16 NSWLR 197, per Kirby P, at pp 200-201) 5. Put briefly, the Complaint alleges that the practitioner inappropriately hugged and kissed Patient A during a GP consultation on 18 November 2021, and failed to document sufficient information in her clinical records regarding that consultation and that alleged incident. 6. In his Reply dated 1 December 2023, as amended 13 February 2024, Dr Toma makes material admissions, but denies both unsatisfactory professional conduct and professional misconduct. 7. The HCCC was represented at the hearing by its Solicitor Advocate Ms Emma Bayley, and Dr Toma by Ms Stephanie Gaussen of counsel. 8. The HCCC tendered (1) a bundle of documents (Ex H1), some of which were not relied upon, at least at Stage 1, (2) evidentiary certificates regarding Dr Toma's registration (Ex H2), and (3) the Statement of Agreed Facts, signed by Dr Toma and covering relevant events up to and including 5 October 2022 (Ex H3). Patient A's Statement of 20 September 2022, to which reference will shortly be made, appears at pages 21-23 of Ex H1. Ex H1 also includes the relevant published documents – a Code of Conduct, and "boundaries" Guidelines (pp 473-507). 9. Dr Toma tendered only a Statement made by him on 1 December 2023 (Ex R1). 10. Both Patient A and Dr Toma gave oral evidence at the hearing. The Amended Complaint and Amended Reply 1. The Tribunal now sets out for completeness the material contents of both the Amended Complaint and the Amended Reply. 2. Complaint One alleges that: The practitioner is guilty of unsatisfactory professional conduct under s139B(1)(l) of the National Law in that [he] has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. 1. The Particulars of Complaint One are: 1 On 18 November 2021, during a consultation with Patient A, the practitioner inappropriately did the following: a when asked by Patient A if he was ok he said words to the following effect: "no I need professional help like you"; b pulled Patient A towards him and hugged her; c hugged Patient A for a second time; d pulled down Patient A's mask underneath her chin; e moved towards Patient A to kiss her; f kissed Patient A on her left cheek close to her mouth; g kissed Patient A on her left cheek near her ear. 2 By his conduct in particular 1, the practitioner breached: a S 10.2 of the Medical Board of Australia, "Good medical practice: a code of conduct for doctors in Australia (2020)"; b SS 3 and 4 of the Medical Board of Australia, "Guidelines: sexual boundaries in the doctor-patient relationship" (2018). 1. Complaint Two alleges that: The practitioner is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law in that [he] contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2016 (NSW) ("NSW Regulation"). 1. The Particulars of Complaint Two are: 1 On 18 November 2021, during a consultation with Patient A, the practitioner failed to document the following in Patient A's clinical record: a that a hug and kiss occurred between himself and Patient A; b the discussion with Patient A about her weight; c the discussion with Patient A about a referral to a bariatric surgeon, Dr Simon Ghosh, for an initial consultation through Medicare; d the discussion with Patient A about a referral for her to see a dietician through a General Practitioner Care Plan without any cost to her; e the discussion with Patient A that she could access various services for free through the public health system and through her mental health plan; f that Patient A become (sic) overcome with emotion during the consultation; g that Patient A was continuously crying throughout the consultation; h that Patient A told the practitioner that she was trying to conceive a baby; i that Patient A told the practitioner that she had financial problems; j that the practitioner said to Patient A that she had a strong support network in her partner. 1. Complaint Three alleges that: The practitioner is guilty of professional misconduct under s 139E of the National Law in that [he] has: i engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or; ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. 1. The Particular of Complaint Three says: 1 Complaint (sic) One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively. 1. In his Amended Reply, filed 13 February 2024, the Practitioner admits the background to all the complaints set out above, and denies that he is guilty of unsatisfactory professional conduct and/or of professional misconduct. He responds to the particulars of each Complaint, as set out above, as follows: Complaint One 1 In answer to Particular 1, the Practitioner: a admits that on 18 November 2021, Patient A consulted with him; b otherwise denies the balance of Particular 1. 2 The Practitioner denies Particular 2. Complaint Two After denying Complaint Two, his response to the Particulars is as follows: 1 In answer to Particular 1, the Practitioner: a admits Particular (a) but says that the kiss was a kiss on the cheek; b admits Particular (1)(b)-(j). Complaint Three In response to Complaint Three, the Practitioner denies he is guilty of professional misconduct, and responds to the Particulars as follows: 1 In answer to the Particulars, the Practitioner denies he is guilty of professional misconduct as alleged to justify the suspension or cancellation of the Practitioner's registration, whether the conduct is considered cumulatively or otherwise. Dr Toma, Patient A, and Their Evidence 1. Dr Toma, also known as Hazem Keryakous, was born on 16 December 1964, and trained as a doctor, in Egypt, graduating there in 1988, completing his internship (1989-1990) and obtaining a diploma in urology (in 1999). From 1993 to 2013, after three years as a urology registrar, he worked as a GP in a group practice in Egypt, before migrating to Australia, as a Christian refugee, on 26 August 2013. He has three children, now aged approximately 20, 19 and 12 (Ex H1, pp 237-8). 2. After some family-related delays (pp 31, 157, and 237), and time spent attempting examinations (p 58), he obtained limited registration on 9 May 2018, conditions of which registration required him to undertake some training, and to accept the supervision of (principally and lately) Dr Atef Ghaly. He has worked for many years under conditions restricting his care for female patients (see "monitor" requirements detailed in Ex H2). His registration lapsed from 9 May to 6 September 2022, during which time the HCCC investigation was proceeding (Agreed Facts 31 and 35). The supervision reports available to the Tribunal generally show gradual improvement in areas of concern, and Ex H1 details extensive CPD undertaken by Dr Toma, including on recordkeeping (p 147). He accepts that the last few years have been stressful (p 214, L 24), but he denies that he has depression (pp 181 and 243). 3. He was employed full-time at the Kanwal Wadalba Family Practice ("the Practice"), on the NSW Central Coast, from 30 July 2018 (Agreed Fact 6), and the Practice was attended from time to time by Patient A (Agreed Facts 7-18). 4. While working at the Practice, Dr Toma has regularly commuted from his rented family home at North Parramatta. He hopes to achieve his Fellowship, or at least his Australian Medical Council (AMC) certificate (see Agreed Fact 36), and get a job closer to home and family (pp 177 and 238), and on better remuneration (p 397), but his progress has been hampered by his difficulties coping with exam situations, and his difficulties with English (p 178). 5. It is an agreed fact that Patient A first attended the Practice on 17 December 2019, and consulted Dr Toma there nine times between 31 March 2020 and November 2021 (Agreed Facts 7-18), her last attendance on him occurring on 18 November 2021 (Agreed Facts 18–19). It would appear that 18 November 2021 was her first consultation with Dr Toma since December 2020. On the November occasion, Dr Toma administered a "K10" test, in which Patient A scored a relatively "high" 38 out of 50 on "anxiety". 6. The major subjects of those consultations, Dr Toma says (Ex R1, par 3), were Patient A's mental health, and weight-related issues. Dr Toma notes that she also saw other doctors regarding her mental health (par 5) (It should be recorded here that there are some issues, particularly in respect of Complaint Two, regarding Dr Toma's clinical notes). 7. Patient A has a history of abuse and sexual assault (her Statement, par 19), is now aged about 35 (DOB xx), and has an auto-immune disease (Hashimoto's disease – par 22). She has a (new) male partner, and a daughter (par 19). She saw Dr Toma on the afternoon of 18 November 2021 for what she says was "a routine appointment to obtain a new mental health plan". She noted (par 6): "From the start of the consultation Dr Toma looked unwell. I could see pain and frustration in his face. He was irritated by his mask." 1. She and Dr Toma disagree about the details of their interaction at the end of the consultation. Her version of events is recounted in her Statement (pars 7-13) in these terms: "7. At the end of the consultation, we both stood up and I had a conversation with Dr Toma and said words to the effect of: I said: Are you okay? Dr Toma said: No, I need professional help like you. 8. Dr Toma took a couple of steps towards me and pulled me into a hug. It was not a huge room, like a normal doctor's room, and the chairs were arranged for social distancing. I did not find this overly confronting at the time, but I thought this was unusual from a doctor. I returned the hug. 9. My face mask was pushed up over my eyes and I could not see. I pulled away from Dr Toma and fixed my mask back over my mouth and nose. Dr Toma said I could take my mask off but I said words to the effect of "No its fine, I know they are annoying but I wear them all the time for work". 10. Dr Toma hugged me again and pulled my mask down underneath my chin. He immediately moved in to kiss me. I moved my face to the right and he kissed me twice on my left cheek – once close to my mouth and once near my ear. I froze and did not say anything. 11. I gave Dr Toma a pat on the back and we said words to the effect of: I said: I hope you feel better soon. Dr Toma said: Thank you, nice to see you again Susan 12. I have no idea why he called me Susan. We had been through my mental health plan that included my own name. 13. I then left the practice." 1. Later on that afternoon, Patient A rang the Practice to (par 14) "let them know what happened and that [she] thought someone needed to check in with Dr Toma because he was not okay". She spoke again to the practice manager, in early December 2021, and was advised (par 15) that "they would be looking into the incident". 2. On 28 November 2021, ten days after the relevant consultation, Patient A reported "the incident with Dr Toma" to Wyong Police Station, but she has made no formal statement to police (par 17). The police conveyed the "complaint" to the HCCC on 23 March 2022 (Ex H1, pp 13ff). 3. She recounts the following impacts she attributes to Dr Toma's alleged behaviour on the afternoon of 18 November 2021: 1. "I started feeling a lot of hatred for myself" (par 19), which lasted for six months (par 21); 2. "My relationship with my daughter and partner became strained because I could not stand any physical contact" (par 19); 3. "A few days after seeing Dr Toma I had a mental blank out while driving", "drove off the road into the guard rail", missing another car, and "burst into tears" (par 20); 4. "I experienced depression and spiralled up and down. I couldn't function" (par 21); 5. "I was terrified to go to see any doctor", and she has not returned to the Practice (par 22); and 6. On a visit to a dentist she "had a break down because they had to be right up in my face" (par 23). 1. The HCCC wrote to Dr Toma on 5 May 2022, and he responded on 25 May 2022 (pp 24-25). Inter alia, Dr Toma said of the alleged incident on 18 November 2021: "I did not initiate the hugging, nor did I kiss or try to kiss [Patient A]. [She's] acted spontaneously and as an instinctive reaction I accepted the hug and kiss. I am sorry if that was misinterpreted and I should not have done so. It was a natural reaction to be supportive. There was no sexual or romantic intention. … [Patient A] attended in an anxious state. She was requesting a repeat script for her depression and anxiety. I performed a mental health assessment to assess her current mental state including carrying out a K10 questionnaire. The K10 results indicated a highly anxious and depressed state. I was also aware of her previous history where she had suffered from physical abuse. As a result, I performed a mental care plan which included a referral to a psychologist which allowed her to attend sessions for free. [Patient A] was continuously crying throughout the consultation. She was very anxious about several issues. I tried to reassure her and provided her with tissues. She was worried about her weight and she wanted to conceive. She also had financial problems. I noted however that [she] has a strong support network in her partner. I discussed with [her] her concerns about her weight. We talked about the possibility of bariatric surgery. I raised with her a potential referral to Dr Simon Ghosh, bariatric surgeon for an initial consultation through Medicare. I discussed a referral to a dietician through a GP care plan also without cost to her. After we discussed the possible services she could access for free through the public system and the mental health care plan, [Patient A] continued to cry but with a sense of relief. I tried to speak in an empathetic way. She said something like "that is why I come to see you because I feel safe with you". [Patient A] seemed satisfied and happy with the consultation. We both stood up and I led her to the door as the consultation had concluded. Whilst overcome with emotion, [she] spontaneously hugged me and kissed me on the cheek. While this was happening she said something like "you are fantastic" "you are an amazing person". [Patient A] did not ask "are you okay?" I did not say "no I need help like you" or "I needed this hug". I did not pull her mask down underneath her chin and I did not kiss her on the cheek. I reiterate that there was only one hug and kiss from [Patient A]. I accepted the hug and it was very brief. It was not prolonged in any way. I understood that she was relieved and happy at the end of the consultation. I was pleased that I was helping her. She didn't give me any impression that she was upset in anyway in fact she was smiling when she left." 1. In respect of any investigation by the Practice, Dr Toma noted (p 25): "The reception I believe spoke to me on the day saying that there were concerns about me hugging and kissing this patient. I then spoke to Dr Ghaly on the same day as I was very distressed. While we were walking out to the carpark when leaving work, I quickly explained the situation. We arranged to speak further. A little while later though I am not sure when, we arranged a more formal meeting to discuss the complaint. At that meeting face to face I explained in more detail the consultation. Dr Ghaly reviewed the medical records and questioned me. I told Dr Ghaly that I was caught off guard when she hugged and kissed me. I did not initiate the hug or kiss her. Dr Ghaly counselled me about boundaries and how to prevent these sorts of situations again. We discussed establishing clear boundaries and working within those to ensure there is no blurring of professional and personal roles. To be aware of the increased risk of vulnerable patients who seek reassurance during stressful events. We also discussed the importance of clear communication and keeping an appropriate physical distance from patients." 1. Dr Toma concluded his response to the HCCC (p 25): "I am so sorry for any distress caused to [Patient A] and I sincerely apologise to her." 1. The HCCC noted, on 3 February 2023 (pp 27-28), that Dr Toma's clinical records of the consultation make no reference to his accepting a hug and kiss, nor to discussion of weight, or possible referrals to a bariatric surgeon, or a dietician, raising "questions about [Dr Toma's] credibility". 2. Dr Toma has some significant, largely diabetes-related, health issues (pp 38-39, and 172), and had a previous complaint made against him by a female patient in July 2019 (see relevant s150 decision at pp 30-43). He agreed to practice conditions on 19 July 2020 (Ex H2, pp 5-7), and a performance assessment report, dated 28 April 2020, noted that Dr Toma reported an improvement in his knowledge regarding "boundaries" and medical recordkeeping (p 118). 3. The Tribunal also notes that, on or about 20 December 2021, Dr Toma's practice manager wrote to Patient A "in response to [her] complaint", and "assured" her that "Dr Toma has comprehended his error and will not repeat it again" (p 334). When confronted with this so-called assurance, during the recent s 150 proceedings (p 196, L 30 – p 198, L 5), he indicated that he had not seen the letter before and did not agree with it. It was only on that very day, 20 December 2021, that Dr Ghaly wrote to Dr Toma formally seeking his response to Patient A's complaint (p 332). Dr Toma's response was dated 31 March 2022 (p 333), but signed on 13 April 2022. 4. Dr Toma's response of 31 March/13 April 2022 (p 333) said of the alleged interaction: "During the consultation [Patient A] became visibly emotional and began to cry with relief after we discussed the services she could access through the public system and the mental health plan. [Patient A] seemed satisfied and happy with the consultation. Whilst overcome with emotion, at the end of the consultation, [Patient A] spontaneously hugged me and kissed me on the cheek. There was only one hug and it was brief and initiated by [Patient A]. I was embarrassed and as a result became slightly red in the face. I did not say "no I need help" or "I needed this hug". I did not pull her mask down to her chin and I did not kiss her on the cheek. She may have said something like … ? I reiterate that there was only one hug and kiss and [Patient A] initiated it and I did not encourage it in anyway." 1. In his Statement for these proceedings (Ex R1, dated 1 December 2023), to which he adhered in his oral evidence, Dr Toma again denied initiating any hug (par 21) or kiss (par 22), and then said (pars 23-27): "23 I have given great thought to how there could have been a misunderstanding about the interaction. The only way that I believe there could have been a misunderstanding about the interaction was, when Patient A gave me a kiss on the cheek, her head tilted back and her mask moved away from her mouth. At the same time, her sunglasses that were perched on the top of her head slipped back. I put my hand on the sunglasses to stop them from falling to the floor. 24. At no stage in the consultation did I say anything about my own mental health. 25. This consultation took place while mask mandates were in place. I wore a mask throughout the entire consultation. 26. After Patient A made a complaint with the Practice, I was asked to respond to her allegations of the events that occurred during the consultation. I informed the practice that I did not initiate the hug with Patient A, kiss her, or say that I needed help or the hug. 27. I understand that the Practice then wrote to Patient A on or about 20 December 2021, in which she was assured that I had "comprehended [my] error". This is not the case, as I informed the practice that I did not initiate the hug, kiss Patient A, or say anything to the effect that I needed the hug or any help." 1. The Tribunal notes that Dr Toma's supervision report covering the relevant period (p 77) recorded that he had not "encountered any particular difficulties at work during [that time]". However, it is fair to observe that his account of the details of their physical encounter – and his denial of Patient A's account – have been fairly consistent, eg, see his evidence in the s 150 proceedings (Ex H1, pp 183 and 191, noted in the s 150 reasons at p 239). 2. Put briefly, Agreed Facts 37 and 28, when read together in that order, summarise Dr Toma's position as: "…Patient A spontaneously gave him [only one] hug and a kiss at the end of the consultation, without any encouragement from him", and that "they were brief and initiated by Patient A", and "he did not encourage Patient A's conduct in any way". 1. Under cross-examination, Patient A denied the hug in question was brief and initiated by her, and insisted that Dr Toma kissed her twice and removed his mask to do so. 2. Dr Toma insisted in his oral evidence that he was aware of patient boundaries, and conscious of the need for comprehensive records. He did a course on recordkeeping in 2020, but in his evidence he could not recall any of the content. He conceded that the restriction on his patient numbers left him adequate time to make better records. 3. He told the s 150 Panel that he had learned a lesson from what had happened in 2019 (p 154, LL 29-30). 4. We also note here, in respect of the s 150 proceedings, that the transcript of Dr Toma's evidence is almost incomprehensible – note especially Ex H1, pp 182 and 204-206 – and that, when canvassing conditions which might be imposed, his solicitor had to step in and take over from him (p 229). 5. On the question of Dr Toma's note-taking, his evidence regarding the alleged encounter was not reflected in the clinical notes he made of the consultation with Patient A, and relevant information was omitted also from his referral of her to the Practice psychologist (p 380). The s 150 Panel commented (p 242): "…The fact that Dr Toma did not include any reference in the medical records to matters he now states that he discussed with her in the consultation raises questions about [his] credibility". 1. It is worth recording also that the s 150 Panel went on to note (p 242) that, even on Dr Toma's "version of events a boundary violation still took place as he claims that he reciprocated the hug out of kindness and concern", and that the incident occurred at a time of high COVID-19 risk, when doctors were charged to "minimise contact and maintain an appropriate distance from patients whenever possible". 2. The s 150 Panel was concerned (p 243) that Dr Toma's denials of his being stressed "demonstrated no insight into the potential impact on his psychological health" of stressors such as family illness, repeated failures of the AMC exam, and his lengthy daily commute from home to work and back. Competing Submissions 1. The Tribunal was assisted by comprehensive written and oral submissions made on day 2 of the hearing after we had heard and observed both Dr Toma and Patient A. For the HCCC 1. Complaint One alleges "improper or unethical conduct relating to the practice or purported practice of medicine", and the HCCC relies upon s139B(1)(l) of the National Law, the principles laid down in cases such as Health Care Complaints Commission v Liu [2016] NSWCATOD 133, s10.2 of the "Good Medical Practice: A Code of Conduct…" of 2020 (item 65 of Ex H1, p 492), and ss 3 and 4 of "Guidelines: Sexual Boundaries…" (2018) (item 66, pp 502-3). 2. The HCCC submits that the Tribunal would accept Patient A's version of events, on a number of grounds which it sets out in its submissions (par 12), and that we should draw no contrary conclusion from any variation in her various articulations of her allegation that Dr Toma said words to the effect of "no, I need professional help like you" (par 13c). 3. We are satisfied that Dr Toma said words to that effect, so making good Particular 1a of Complaint One (submissions, pars 14-15). 4. Complaint Two relies upon Dr Toma's allegedly poor recordkeeping in respect of Patient A, and the HCCC relies upon s 139B(1)(b) of the National Law, and the Health Practitioner Regulation (New South Wales) Regulation 2016, especially clause 6 and Schedule 4, a copy of which was made available to the Tribunal. 5. The Tribunal also notes that the conditions of Dr Toma's supervision included a focus on recordkeeping, and that he had undertaken relevant training. 6. In his Amended Reply and the Agreed Statement of Facts, Dr Toma admits that, in respect of his consultation with Patient A on 18 November 2021, he failed to document more than ten matters, which are listed in the HCCC submissions (par 19), including that a hug and a kiss occurred, and that Patient A was "overcome with emotion" and "continuously crying" during the consultation. 7. The HCCC submits that these omissions contravene the Regulation, and thereby also s 139B(1)(b), because those matters are relevant to Patient A's diagnosis or treatment, and involve factors (eg, that a hug and kiss occurred) that may require "special consideration when treating her". It is necessary to provide sufficient information in the notes to allow another medical practitioner to continue proper management of her case. 8. We should also note, as the HCCC noted (submissions, par 24 m), that Dr Toma had sufficient time on 18 November 2021 to type an adequate progress note either during or after the consultation. 9. On the question of professional misconduct (Complaint Three), the HCCC relies upon all the evidence it relied upon for Complaints One and Two to make a case that Dr Toma's conduct is sufficiently serious to justify suspension or cancellation: see Chen v Health Care Complaints Commission [2017] NSWCA 186. 10. The HCCC submits (par 23) that the conduct in Complaint One, alone or together with other conduct such as in Complaint Two, is sufficiently serious to justify suspension or cancellation. It argues that Dr Toma was well aware of the sexual boundaries required to be observed, and of the documents elaborating on them, having been put on notice of the relevant documents and having undertaken relevant training, and that he was well aware of Patient A's history (abuse etc) and her relevant circumstances of stress and vulnerability (eg, past suicidal thoughts). It was also noted that the consultation occurred during a time of high risk of COVID-19 infection, when doctors were advised to minimise physical contact with patients whenever possible. 11. In respect of Complaint Two, the HCCC submits (par 24) that Dr Toma's inadequate recordkeeping is conduct that, together with other conduct such as that alleged in Complaint One, is of a sufficiently serious nature to justify suspension or cancellation. 12. The HCCC urges the Tribunal to find all three Complaints proven. For Dr Toma 1. On Dr Toma's behalf, Ms Gaussen's written and oral submissions sought to discredit Patient A's evidence in almost all respects, asserting that Patient A's version of events "unravelled" (submission 28). 2. In respect of Complaint One, Ms Gaussen relied upon Dr Toma's admission that there was inappropriate conduct, albeit all initiated by Patient A, and not as extensive or offensive as she now asserts, and on his difficulties in cross-examination due to English being a "second language" for him. 3. She also defended, in respect of Complaint Two, Dr Toma's choices in respect of what was recorded in the notes – eg, he says conception and bariatric surgery were topics discussed only in a very preliminary way during the consultation, which was more focused on mental health issues. 4. Ms Gaussen also refuted any suggestion that Dr Toma was trying to hide the incident which occurred with Patient A, noting that Dr Ghaly had told him not to update his notes once the complaint had been made. Ms Gaussen's submission was that Dr Toma's position in this respect was reasonable. Discussion 1. In terms of Complaint One, the "boundaries" complaint, the Tribunal accepts that Dr Toma's behaviour on 18 November 2021 has not been shown to be sexually motivated, a test we do not need to apply here. 2. However, we are also not satisfied that it was not a time of great stress for him, eg, his calling Patient A "Susan" has not been explained. Even allowing for his obvious limitations in using English, his evidence was far from convincing, or even plausible, eg, in writing (p 333) he said his face went red, but in his sworn oral evidence, he denied it. 3. On the other hand, we are certainly not satisfied that Patient A's version of events was in any way fabricated, and no motivation for her to fabricate her allegation, or lie about Dr Toma's conduct in any way, has been made out. 4. On the contrary, Patient A presented as an entirely credible witness, whose evidence on all key issues remained firm and consistent, save for the ultimate claim that Dr Toma used the adjective "professional" in a possible comment about "seeking help". 5. Despite her concern about the alleged hugging and kissing, she maintained her concern about Dr Toma's wellbeing, and speedily reported that concern to the Practice before making any complaint about his behaviour. We do not accept Dr Toma's case on this issue. 6. Complaint Two, the deficient recordkeeping complaint, was effectively conceded during the hearing, and the evidence of Dr Toma's omission of highly relevant details is overwhelming. We reject his counsel's submissions in this regard (eg, submissions 60, 86 and 88) and note her inadequate responses to relevant questions from expert members of the Panel. 7. The operation of the relevant Regulation is not confined to only topics which are asserted to be "major" and have been discussed in a consultation. What was omitted in this case was serious, eg, her finances, concern about weight, and desire to conceive. 8. The Tribunal is "comfortably satisfied", on the balance of probabilities, that both Complaints One and Two have been made out: Briginshaw v Briginshaw [1938] HCA 34, 60 CLR 336. 9. In respect of Complaint Three, the professional misconduct complaint, we are further satisfied that each of Complaints One and Two, and the combination of both of them, are of sufficient seriousness to justify suspension or cancellation of Dr Toma's registration. 10. We, therefore, conclude that he is guilty of professional misconduct. Conclusion and Order 1. The Tribunal finds the three complaints in this matter proven and refers the proceedings to the Registrar to fix a date and make Directions for a Stage 2 hearing. ********** 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 25 June 2024 - Par 25 - removed personal identifier 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: 25 June 2024