Health Care Complaints Commission v Wong [2024] NSWCATOD 200
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Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Wong [2024] NSWCATOD 200
Hearing dates: 12 and 13 August 2024
Date of orders: 23 December 2024
Decision date: 23 December 2024
Jurisdiction: Occupational Division
Before: R C Titterton OAM, Senior Member
J Sulentic, Senior Member
S Mackie, Senior Member
A Gray, General Member
Decision: 1) Particulars (2), (3), (5), (6), (7), (8), (9) and (10) of Complaint One are established.
2) Complaint One is established, in that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW).
3) Particulars (1), (2) and (3) of Complaint Two are established.
4) Complaint Two is established, in that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW).
5) Particulars (1), (2) and (3) of Complaint Three are established.
6) Complaint Three is established, in that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW).
7) Complaint Four is established, in that the respondent is guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW).
8) The matter is to be listed for directions for a Stage Two hearing.
Catchwords: OCCUPATIONS — physiotherapy — unsatisfactory professional conduct and professional misconduct — where physiotherapist provides cellulite reduction treatment to patient
Legislation Cited: Health Care Complaints Act 1992 (NSW), s 4
Health Practitioner Regulation National Law (NSW), ss 5, 39,139B, 139E, 149C, 150, 150A
Cases Cited: Armagas Ltd v Mundogas S.A. (The Ocean Frost) [1985] 1 Lloyd's Rep 1
Attia v Health Care Complaints Commission [2017] NSWSC 1066
Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Briginshaw v Briginshaw (1938) 60 CLR 336, Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41
Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39
Campbell v Campbell [2015] NSWSC 784
Chen v Health Care Complaints Commission [2017] NSWCA 186
Coote v Kelly [2013] NSWCA 357
Forster v Hunter New England Area Health Service [2010] NSWCA 106
Gautum v Health Care Complaints Commission [2021] NSWCA 85
Health Care Complains Commission v Daniel [2022] NSWCATOD 104
Health Care Complaints Commission v Akawee [2023] NSWCATOD 115
Health Care Complaints Commission v Aref [2018] NSWCATOD 133
Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65
Health Care Complaints Commission v Konigson [2021] NSWCATOD 186
Health Care Complaints Commission v Le [2021] NSWCATOD 104
Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630
Health Care Complaints Commission v Liu [2016] NSWCATOD 133
Health Care Complaints Commission v Ng [2015] NSWCATOD 85
Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168
Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25
Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160
Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123
In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Kirby v Dental Council of New South Wales [2017] NSWCATOD 64
Kirby v Dental Council of New South Wales [2018] NSWSC 1869
Kirby v Health Care Complaints Commission [2021] NSWCA 138
Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369
McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
New South Wales v Hunt [2014] NSWCA 47
Onassis v Vergottis [1968] 2 Lloyd's Rep 403
R v Wong [2022] NSWDC 257
Sabag v Health Care Complaints Commission [2001] NSWCA 411
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
Category: Principal judgment
Parties: Health Care Complaints Commission (Applicant)
Wah Fu (Ray) Wong (Respondent)
Representation: Counsel:
C Akthar (Applicant)
D New (Respondent)
Solicitors:
Health Care Complaints Commission (Applicant)
O'Brien Criminal and Civil Solicitors (Respondent)
File Number(s): 2024/00086152
Publication restriction: A non-publication order pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) is made in respect of the person identified as Person A in the Schedule attached to the Complaint.
REASONS FOR DECISION
Introduction
1. By application for disciplinary findings and orders filed 6 March 2024, the applicant (the Commission) seeks the following orders under the Health Practitioner Regulation National Law (NSW) (National Law):
1. cancellation of the respondent's (practitioner's) registration as a physiotherapist pursuant to s 149C(1)(b) of the National Law with a non-review period of one to two years;
2. prohibition order prohibiting the practitioner from providing a health service in s 4 of the Health Care Complaints Act 1992 (NSW) for the same period as any non-review period imposed;
3. costs.
1. The matter was conducted as a Stage 1 proceeding on 12 and 13 August 2024.
2. For the following reasons, we have found all four complaints brought by the Commission established.
3. The proceedings will be listed for directions for a Stage 2 hearing.
4. Costs are reserved.
The Complaint and Reply to Complaint
Background to all complaints
1. The background to all complaints is that the practitioner was first registered in NSW as a physiotherapist in 2005.
2. In 2010, the practitioner opened his own practice, Active Motion Physiotherapy (the Practice) in Ryde where he practiced as the principal physiotherapist.
3. Patient A was a 28 year old female Chilean national who placed an advertisement on the online marketing platform Gumtree offering barista/coffee making services on around 1 May 2020.
4. In response to the advertisement, Patient A was contacted by the practitioner and offered free participation in a cellulite treatment program. She attended consultations at the practice where she received treatment from the practitioner on 6 and 13 May 2020.
Complaint One
1. Complaint One is that the practitioner is guilty of unsatisfactory professional conduct under s 139(1)(a) or (l) of the National Law in that the practitioner has:
1. engaged in conduct that demonstrates the judgment possessed or care exercised, by the practitioner in the practice of physiotherapy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or
2. engaged in improper or unethical conduct relating to the practice of physiotherapy.
Particulars of Complaint One
1. The Particulars of Complaint One are:
1. or around 6 May 2020, the practitioner failed to conduct an appropriate initial assessment of Patient A including an assessment of the following:
1. general health;
2. current medications;
3. previous medical history;
4. the results of any relevant investigations;
5. the patient's goals and expectations of treatment;
6. whether there were any contraindications for the cellulite treatment.
1. On or around 13 May 2020, the practitioner failed to conduct an appropriate assessment of Patient A's neck and back pain including an assessment of the following:
1. a clinical history of her symptoms;
2. past and present treatment of the presenting symptoms;
3. aggravating and relieving factors of the symptoms;
4. general health;
5. medications;
6. previous medical history;
7. the results of relevant investigations;
8. the patient's goals and expectations of treatment.
1. On or around 13 May 2020, the practitioner failed to conduct an appropriate physical examination of Patient A, including:
1. observations on posture;
2. palpation of relevant anatomical areas;
3. range of motion;
4. muscle power;
5. flexibility;
6. neurological examination and special tests where indicated by (a) to (e) above;
1. On or around 13 May 2020, the practitioner inappropriately diagnosed Patient A with upper cross syndrome, in circumstances where:
1. he failed to take an adequate history;
2. he failed to perform a physical examination.
1. On or around 13 May 2020, the practitioner failed to discuss treatment options with Patient A prior to commencing massage treatment.
2. On or around 13 May 2020, the practitioner performed massage treatment on Patient A in an inappropriate manner and without clinical indication when he massaged:
1. the sides of her breasts;
2. her stomach;
1. On or around 13 May 2020, the practitioner performed massage treatment on Patient A in an inappropriate manner and without clinical indication when he placed his hands on her breasts for a few seconds;
2. On or around 13 May 2020, the practitioner performed massage treatment on Patient A in an inappropriate manner and without clinical indication when he repetitively moved his hands up and down her breasts;
3. On or around 13 May 2020, the practitioner inappropriately attempted to remove Patient A's bra without clinical indication whilst she was lying on her back during the course of massage treatment;
4. On or around 13 May 2020, the practitioner inappropriately placed his face near Patient A's breasts without clinical indication, during the course of massage treatment.
1. The conduct in any of Particulars (1) to (10) of Complaint One is repeated and relied upon in combination as a course of conduct involving inappropriate treatment of Patient A amounting to unsatisfactory professional conduct.
Reply to Complaint One
1. The practitioner denies Complaint One.
2. The practitioner admits Particulars (1)(f) and (2)(a) to (h).
3. The practitioner denies Particulars (1)(a) to (e), (3)(a) to (c) and (e), (4), (5), (6), (7), (8), (9) and (10).
4. The practitioner is not responsive to Particulars (3)(d) and (f), which we will treat as a denial.
5. In addition, as to Particular (1), the practitioner:
1. denies he failed to conduct an appropriate initial assessment of Patient A in circumstances where the initial assessment was for cellulite treatment and not a physiotherapy appointment. The practitioner says that an appropriate initial assessment for that purpose was done.
2. admits he did not conduct an appropriate assessment of whether there were any contraindications for the cellulite treatment.
Complaint Two
1. Complaint Two is that the practitioner is guilty of unsatisfactory professional conduct under s 139(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the judgment possessed or care exercised by the practitioner in the practice of physiotherapy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.
Particulars of Complaint Two
1. The Particulars of Complaint Two are:
1. On or around 6 May 2020, the practitioner failed to adequately record the results of any assessment of Patient A, including:
1. general health;
2. current medications;
3. previous medical history;
4. the results of any relevant investigations;
5. the patient's goals and expectations of treatment;
6. whether there were any contraindications for the cellulite treatment;
1. On or around 13 May 2020, the practitioner failed to adequately record the results of any assessment of Patient A, including:
1. a clinical history of her symptoms;
2. past and present treatment of the presenting symptoms;
3. aggravating and relieving factors of the symptoms;
4. general health;
5. medications;
6. previous medical history;
7. the results of relevant investigations;
8. the patient's goals and expectations of treatment;
9. consent for treatment.
1. On or around 13 May 2020, the practitioner failed to adequately record the results of his physical examination, including:
1. observations on posture;
2. palpation of relevant areas;
3. range of motion;
4. muscle power;
5. flexibility;
6. neurological examination and special tests where indicated by (a) to (e).
1. On or around 13 May 2020 the practitioner failed to maintain adequate clinical records of his treatment of Patient A.
Reply to Complaint Two
1. The practitioner neither admits nor denies Complaint Two, which we will treat as a denial.
2. The practitioner admits Particulars (2)(a) to (i), and (3) "in so far as [3a], [3b], [3(c)] and [3e] were performed but not recorded".
3. In relation to Particular (2)(c), the practitioner further says that he relied on the records of 6 May 2020.
4. The practitioner denies Particular (1).
5. The practitioner is not responsive to Particulars (3)(f) and (g), which we will treat as a denial.
Complaint Three
1. Complaint Three is that the practitioner is guilty of unsatisfactory professional conduct under s 139(1)(I) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice or purported practice of physiotherapy.
Particulars of Complaint Three
1. The Particulars of Complaint Three are:
1. on or around 2 May 2020 the practitioner directly inappropriately solicited Patient A as a patient by approaching her on Gumtree in response to an advertisement she had posted seeking to obtain employment as a barista.
2. between around 2 May and 13 May 2020 the practitioner inappropriately used his position as a registered physiotherapist to promote and advertise services which were outside the scope of physiotherapy when he directly solicited Patient A to receive cellulite treatment and shared the details of the practice, including a link to the practice website.
3. between around 3 May and 13 May 2020 the practitioner inappropriately offered free treatment to Patient A in circumstances where:
1. he solicited Patient A as a patient by reference to her 'international background' specifically because she was a native Spanish speaker;
2. in exchange for the free treatment, Patient A was asked to provide a scripted Spanish testimonial at the conclusion of the program;
3. the practitioner intended to use the testimonial for advertising purposes in breach of s 133(1)(c) of the National Law which prohibits the use of testimonials to advertise businesses which offer regulated health services.
Reply to Complaint Three
1. The practitioner neither admits nor denies Complaint Three, which we will treat as a denial.
2. As to Particular (1), the practitioner admits he approached Patient A but says it was not so "inappropriate" to amount to unsatisfactory professional conduct under s 139B(1)(I) of the National Law. The practitioner says that the purpose of the approach was to seek a volunteer for a cosmetic trial only relating to cellulite treatment.
3. The practitioner denies Particular (2), and says that he did not promote and advertise services but admits he was seeking participants to take part in a trial for cellulite treatment and to that extent, messaged Patient A details of the practice.
4. As to Particular (3)(a), the practitioner admits he approached Patient A about the trial for cellulite treatment and that Patient A agreed with informed consent.
5. As to Particular (3)(b), the practitioner admits this particular "if 'scripted' means "written".
6. As to Particular (3)(c), the practitioner admits this particular "in so far as he was going to use the testimonial for promoting the weight management arm of the practice and not for any physiotherapy services he offered".
Complaint Four
1. Complaint Four is that the practitioner is guilty of professional misconduct under s 139E of the National Law in that the practitioner has:
1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, and/or
2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration
Particulars of Complaint Four
1. The particulars of Complaints One to Three are repeated and relied upon both individually and in combination.
Reply to Complaint Four
1. The practitioner denies Complaint Four.
Evidence before the Tribunal: The Commission's documents
Summary
1. The Commission relied on a bundle of documents filed on 5 July 2024. The bundle included but was not limited to evidentiary certificates provided by the Australian Health Practitioner Regulation Agency (AHPRA) and the Physiotherapy Council of NSW (Council); correspondence between the Council and the practitioner; correspondence between the Council and the Commission, Physiotherapy Board of Australia (Board) Guidelines; the practitioner's curriculum vitae; documents relating to the s 150 hearing held on 3 June 2020, including the Council's reasons for decision of 11 June 2020; documents relating to the s 150A hearings held on 4 and 10 August 2020, including the Council's respective reasons for decision of 1 and 14 September 2020; the statement of Patient A dated 23 October 2023; documents relating to proceedings in the Local Court of NSW and the District Court of NSW; a transcript of an Electronically Recorded Interview with a Suspected Person (ERISP) interview with the practitioner conducted on 20 May 2020 and the expert reports of Ms Tracey Powell dated 21 June and 11 July 2023.
2. Patient A and Ms Powell were required for cross-examination. Where relevant we will refer to their oral evidence below.
3. We summarise some of the more important documents as follows.
Text message from the practitioner to Patient A, 14 May 2020
1. At 22:54 on 14 May 2020, the practitioner sent Patient A the following text message:
Sincerely apology for misunderstanding of your needs. I hope you can get pass it and there will be no misunderstanding again. We value the effort you have made so far with the exercise and improvement we have already made. I promise we will get your best results for your cellulite even if we need to do more treatments. Let me know if you ok willing to continue the therapy please
Statement of Patient A to the Police dated 14 May 2020
1. Relevantly, Patient A states, in relation to her appointment with the practitioner on 13 May 2020:
17. About 10am on the 13™ May 2020, I arrived at the Ryde clinic for my session. … Ray requested that I take my tights, socks, shoes and jumper off, to which I did. I laid on my stomach on the bed and 'Ray' started the ultracavitation treatment on the back of my right buttocks and thigh. 'Ray' continued on the right side of my buttocks and thigh with the shockwave pads. 'Ray' placed the pads under my light blue underwear. I felt uncomfortable again when he placed the pads on my buttocks.
18. At this point, I still had my t-shirt on. 'Ray' asked me to take my t-shirt off so he could give me a massage, as he said I had muscle problems in my back. I took my shirt off. I was on my stomach for this. 'Ray' began massaging my back for about twenty minutes, before unclipping my bra and began massaging my back area. When 'Ray' finished massaging my back, he clipped my bra back on and asked me to turn around so he would massage my front. I felt a bit uncomfortable but agreed. 'Ray' put a towel over my breasts and bra and began massaging my neck and arms for around thirty minutes. Whilst 'Ray' was massaging me, he was explaining to me that I had problems with my muscles and indicating that I have knots.
19. I turned around and layed [sic – lay] on my back. 'Ray' put my t-shirt over my eyes and a towel over my breasts and stomach. I didn't think much of my eyes being covered by my shirt as it was a bright room. 'Ray' reached over to unclip my bra, though he couldn't and said, "I'm not too good at this. Can you do it?" I felt awkward by the comment 'Ray' made, though I took my bra off. 'Ray' began to run both of his hands down the sides of my breasts and then down my stomach and up my arms, each time getting closer to my breasts and vagina, I started to feel shocked and confused. 'Ray' was standing behind and beside the bed whilst massaging me. 'Ray' kept doing this for about five minutes and was standing beside me before he grabbed my breasts under the towel with both hands massaged my breasts. This action made towel fall off, exposing my breasts to 'Ray.' 'Ray' stopped both of his hands on my breast, keeping them there for more than a couple of seconds. I opened my eyes, removed the t-shirt from my eyes and looked up to see 'Ray's' very close to my breasts, as if he was about to lick them.
I said: "What are you doing?"
'Ray' said: "I'm sorry, I'm sorry. I was not thinking clear."
'Ray' was saying this as he was trying to clean the gel off with a tissue.
I stood up off the bed and got dressed. 'Ray' left the room for about five seconds as I was getting dressed. 'Ray' came back in the room was trying to act normal.
Ray said: "We can continue with the treatments. I was thinking we can combine one day of exercise and another day of shockwave pads"
'Ray' gave me a packet of shockwave pads so I can continue the treatment at home.
I said: "I don't think I'm coming back, so you can take It."
Ray said: "It's okay if you are not coming back, you can take it anyway." I was leaving the room as we were having this conversation.
20. 'Ray' followed me to the reception area and sat behind the desk; Ray said: "I'm sorry, I wasn't thinking clear"
I sald: "That was so unprofessional, this has never happened to me. I can't believe it." Ray said: "I'm sorry it's a misunderstanding. Can we continue with the treatment?"
I said: "I don't think so."
Ray kept apologising as I was leaving the clinic. I felt extremely emotional and went home.
(emphasis added)
Email from the NSW Police Force to the Commission dated 20 May 2020
1. This email relevantly states:
Today I charged the head of physiotherapists of Active Motion Physiotherapy & Health Clinic, [the practitioner].
[The practitioner] has been charged with 'Sexually touch another person without consent-T2, after detectives attached to Ryde Police Area Command received a complaint from a client of his, by the name of [Patient A] who was at his clinic on the 13th May 2020 for the purpose of receiving free cellulite treatment.
During this time, it has been alleged by [Patient A] that [the practitioner] has begun performing a massage on the victim's front (shoulders, arms, side of her breasts) before taking her bra off and massaging her breasts for a couple of seconds without her consent. [Patient A] has immediately got off the treatment bed, put her clothes back on and proceeded to leave. [The practitioner] apologised to [Patient A] several times, 'apologising for the misunderstanding'.
Before charging [the practitioner], I gathered evidence, and I interviewed him where he made partial admissions to the offence and stating that he "crossed the line". [The practitioner] was released with conditional bail not to contact [Patient A] by any means and cannot perform any physical treatments on female clients in person.
(emphasis added)
ERISP interview of 20 May 2020
1. Relevantly the transcript records:
Q526 … I'll put it [to] you that you place both of your hands on her breasts for a couple of seconds and your face was within centimetres of her breasts. What can you tell me about that?
A Um, well, I, I wouldn't. It's, the way it's described, I wouldn't agree with, yeah
…
Q531 so did you place your hands on her breasts?
A no I wouldn't say, oh, it, it would be, it would be pretty close around the pec area
…
Q533 So, so at no time you place your hands on her breasts during –
A In, in her chest, yeah … it would be close to the breast but … I wouldn't say the breast itself.
Q537 … So if you're saying she had a sore neck and a sore shoulder … Why are you focusing around her breast and chest region?
A … all physio[s] could agree, a lot of time, yeah, this part is a part of the shoulders that quite often makes you hunched over, so most of the people, most people with neck pain we do release their front
…
Q568 I put it to you, um, went close to her the vagina region with your hands whilst you were massaging her what can you … Tell me about that?
A … no, not on the vagina
Q579 Did you touch her nipple at any time during the massage
A No, no
…
Q623 Do you agree that you said, I'm sorry, it's a misunderstanding can we continue with the treatment?
A … I said that to her, yeah.
Q849 … Did you step, overstepped the line during the treatment?
A … If she feels the way she is, I definitely will feel responsible… I think I did. I feel, I do feel sorry that if she feel uncomfortable, cheese, year
…
Q854 Okay. So, all right, now you're telling me you think you did step over the line
A Yeah, I, I want to apologise
…
Q860 … But I need to make it clear, are you apologising for your actions overstepping the mark?
A I want to take accountability, so I will say, yes, I will be leaning on towards that side. want to take accountability, I want to make sure it doesn't happen, uh make another person feel the same way, so for that reason, yeah, I'm responsible if the person feel like that yeah.
…
Q871 … At the time of massaging her, did you feel like you were overstepping the line?
A Not at the time, but now, ah, how she's reacted at the end.
Police Facts Sheet, 20 May 2020
1. The Facts Sheet relevantly states:
… About 10am on the 13th May 2020, [Patient A] re-attended 'Active Motion Physiotherapy & Health Clinic' in Ryde. … the [practitioner] requested [Patient A] to take her shirt off so he could give her a massage as he told her that she had muscle problems in her back. [Patient A] took her shirt off and remained on her stomach, before the [practitioner] unclipped her bra. The [practitioner] began massaging the victim's back for about twenty minutes before clipping back the victim's bra. The [practitioner] requested [Patient A] to lay on her back so he could massage her front. [Patient A] felt uncomfortable with this request, however followed through with his request. The [practitioner] placed a towel over the victim's breasts and bra before massaging the victim's neck and arms for about thirty minutes. The [practitioner] then placed the victim's shirt over her eyes as the room was bright. The [practitioner] reached over in attempt to unclip her bra again, however, was unsuccessful and stated, "I'm not too good at this, can you do it?" [Patient A] felt awkward with this request, though she took her bra off, leaving the towel on top of her breasts. The [practitioner] stood behind and beside the treating bed and began massaging the sides of [Patient A's], arms and stomach with his hands. With each massage motion, the suspect's hands were getting closer to [Patient A's] breasts and vaginal region. This occurred for about five minutes. At this time, the [practitioner] was standing beside the treating bed and used both of his hands to grab [Patient A's] breasts under the towel and massaged her breasts for a couple of seconds. [Patient A] feeling shock, has immediately opened her eyes, taken her shirt off her face and saw the [practitioner's] face within centimetres of [Patient A's] breasts. [Patient A] asked the [, "practitioner] "What are you doing?" To which he replied, "I'm sorry, I was not thinking clear." [Patient A] immediately got dressed, with the suspect continuing to apologise for his actions. The victim soon left the clinic, before receiving a text message approximately half an hour after the incident from the [practitioner's] phone number, … to her mobile phone "apologising for the misunderstanding"... About 7:30pm on the 13th May 2020, [Patient A] attended Sydney City police station, reported the matter to police and provided all the correspondence she has had with the [practitioner]. [Patient A] appeared to be distraught and felt angry due to the [practitioner's] actions.
…
The [practitioner] stated that he took [Patient A's] bra off to massage her front, in particular her shoulder and chest region.
When the [practitioner] was asked whether he massaged [Patient A's] breasts, the [practitioner] said words to the effect of, "I may have gone close to touching her breasts as I was massaging her shoulders and chest area." The [practitioner] was asked whether at any time did he place his hands on [Patient A's] breasts during the massage, the [practitioner] replied, "It would have been close while I was massaging her breasts and I can see why it could have happened." The [practitioner] was asked as to why he apologised several times to [Patient A], to which he replied,
"I was sorry because I may have gone too hard on her pressure points." The [practitioner] made admissions to "crossing the boundaries" during the treatment sessions with [Patient A] and was remorseful for the way [Patient A] felt and currently feels... The [practitioner] DNA was captured by way of Buccal Swab. The [practitioner] is now charged with the matter before the courts.
Section 150 Decision, 11 June 2020
1. Proceedings were conducted under s 150 of the National Law on 3 June 2020, with the Council publishing its reasons for decision on 11 June 2020. By way of background to its reasons, the Council stated:
On the 13 May 2020, [Patient A] attended [the practitioner's] clinic for the purpose of receiving free cellulite treatment. During the course of the treatment, it is alleged the practitioner began performing a massage on the patient's front (i.e. shoulders, arms, side of breasts) before taking her bra off and massaging her breast for a couple of seconds without her consent. The patient immediately got up, put her clothes back on, and left the premises.
The practitioner apologised to the patient several times 'for the misunderstanding'.
The Ryde Police Area Command received a complaint from the patient on the same day of the incident, 13 May 2020. The practitioner was subsequently charged on the 15 May 2020 with 'Sexually touching another without consent - T2'. It is noted in the notification received that during an interview with police, the practitioner made partial admissions to the offence, stating that he 'crossed the line'.
The practitioner has since been released with conditional bail not to contact the patient, or to perform any physical treatments on female patients in person.
1. The Council noted that the practitioner's bail conditions included that he not perform any physical treatments on female clients in person, and that he was not to make contact with Patient A.
2. Under the heading "What information is available about the practitioner's conduct?', the Council states:
… The scope of practice for a physiotherapist does not usually include the treatment of cellulite.
Seeking clients through "trolling" social media and offering inducements of free treatment could be considered inappropriate professional practice.
Targeting potential clients of specific ethnic backgrounds could be viewed as exploiting vulnerable people who have a lack of knowledge of treatments provided by different health professionals. … Health professionals have a statutory responsibility to report criminal charges to the National Board. Mr Wong has failed to comply with his reporting obligations.
1. Under the heading "Does the practitioner's behaviour accord with the public interest?', the Council states:
[Patient A] attended the Active Motion Physiotherapy & Health Clinic at Ryde in order to receive complimentary cellulite treatment.
[Patient A] placed an advertisement on Gumtree including her picture and contact phone number seeking employment as a Barista.
[Patient A] was subsequently contacted by a person who claimed they were a digital marketing agent seeking volunteers of international backgrounds to receive free cellulite treatments on the condition they were willing to make a promotional video to advertise the business.
[Patient A] checked the business reviews online for Active Motion Physiotherapy & Health Clinic before accepting the complimentary offer.
[Patient A] attended the clinic on two occasions for shockwave treatment. On the first occasion Mr Wong met [Patient A] in the reception and escorted her to a room where he explained the process and the treatment.
On both occasions [Patient A] was required to remove her outer clothing in order to have a digital recording of fat and muscle percentages.
Photographs were taken at this time by [the practitioner] using an Apple IPad.
[Patient A] was escorted to another room for the treatment. [Patient A] was required to lay on her stomach where she had 40 minutes of "ultra-cavitation shockwave" treatment on her thighs and buttocks.
[Patient A] then had shockwave pads placed under her underwear on the back of her thighs and buttocks for 20 minutes.
On the second occasion, 7 days later [Patient A] again was met by [the practitioner] and escorted to the treatment room for "ultra-cavitation shockwave" treatment on her thighs and buttocks.
[The practitioner] then requested [Patient A] to remove her shirt as[the practitioner] stated she had muscle problems in her back and he would give her a massage.
[The practitioner] unclipped her bra and massaged her back for about 20 minutes. [The practitioner] then requested the client to lay on her back so he could massage her front.
[The practitioner] covered the [Patient A]'s chest with a towel, massaged her neck and arms, requested she remove her bra and then placed her shirt over her face, stood behind her head and massaged the side of her breast, arms and down to her stomach.
It is alleged by [Patient A] that [the practitioner] then massaged her breasts, the client opened her eyes, removed the shirt from her face and found [the practitioner's] face centimetres from her breast. [Patient A] immediately dressed and left the premises.
[Patient A] received a text message on her mobile phone about ½ an hour later from [the practitioner] advising "sorry was not thinking clearly".
1. The Council concluded as follows:
We consider the behaviour and practices undertaken by [the practitioner] during these therapy sessions to be serious misconduct. [The practitioner] has demonstrated poor clinical practice, unprofessional behaviour and acted in a manner which brings the profession and its members into disrepute in the eyes of the general public. [The practitioner's] clinical and workplace behaviour has breached the Code of Conduct in a number of areas.
The inappropriate touching and massaging of [Patient A's] breasts is a breach of professional behaviour. The process of covering a patient's face with their own clothes is poor and inappropriate clinical practice. Professional boundaries have been acknowledged to have been breached by the practitioner to the client and police during interview. Attempting to text [Patient A] after the incident is a breach of professional boundaries and could be considered a version of harassment and coercion. Consent for treatment does not appear to have been sought, obtained and documented.
The treatment of cellulite is not considered standard practice for physiotherapists. The alleged therapeutic interventions provided by the practitioner do not appear to be documented in a recognised clinical practice format. Seeking clients through trolling social media and offering free services as enticements does not represent good professional practice. This the practice of targeting clients from different ethno cultural backgrounds for particular treatments appears to be exploiting vulnerable people.
Reporting obligations have been breached and that the practitioner has not complied with the statutory requirement to notify the National Board criminal charges.
1. The Council decided to suspend the practitioner's registration from 3 June 2020. The Council also referred the matter for investigation by the Commission.
Section 150A Decision, 1 September 2020
1. The practitioner sought a review of the s 150 decision pursuant to s 150A of the National Law.
2. At the hearing held on 4 August 2020 the practitioner confirmed that he had never been the subject of a complaint by a male client or patient, and that the cellulite reduction program was aimed at females, and further, females belonging to the South American community living in Australia and not males.
3. The Council considered that this is a change in the practitioner circumstances justifying the practitioner suspension being lifted and with conditions being imposed on his registration both could additions relevant relevantly included that he was not provide physiotherapy services to any female patient.
The transcript of proceedings before the Local Court on 12 April 2021
1. The transcript includes the following evidence in chief given by Patient A:
Q. After the shockwave treatment you say has been done what happened then?
A. He told me he was going to proceed with a massage. …
He told me it was going to be like a general massage. He started with my back. Yeah, and then he continue with my arms and he was telling me in the meanwhile what was the problem. He was telling me "You have some knots in here. You have to work your muscles in that area".
…
Q. Please tell us about the massage, first of all, when you were facing down?
A. Yeah, he unclipped my bra and start doing the massage on my back and everything seems normal there. Then he asked me to turn around so I was facing up, yes.
Q. When you turned around, was your bra off or on?
A. I think he put the clip again but then when I turn around he asked me again to take it out moments later.
Q. Did you take off your bra?
A. Yeah, he put a towel on the top so the towel was covering me and I took the bra.
Q. He put a towel and just for the Court record the witness is indicating her chest?
A. Yeah.
Q. A towel was put on your chest when you were facing upwards before your bra was taken off?
A. Yeah.
Q. Did you take off the bra?
A. Yeah, I took it off.
Q. Did he ask you to take off the bra?
A. Yeah.
Q. The first time when your bra was taken off when you were facing downwards did you take off that bra?
A. No, he unclip it.
Q. He unclipped it. Do you remember whether a question was asked before he unclipped the bra?
A. He asked me if I was fine with [unclipping] the bra. I said "It's fine".
Q. I will go back to when he's told you to turn around, face upwards. Was there a reason provided by him as to why you needed to face upwards?
A. He started massaging my arms and upper body--
Q. For the Court record, the witness indicated the top of her shoulders and her collar bone area. You're saying he was massaging this area, your shoulder area?
A. All my upper body. He start with my neck, my shoulders, then he continue with my arms, then he continue with my torso and he went all the way from my hips to above.
Q. This was when you were facing upwards?
A. Yeah.
Q. You're indicating your chest area?
A. Yeah.
Q. He was massaging all of that?
A. Yeah, he start with how I told you before. He started with the neck, the shoulders, arms and then he start massaging this area.
Q. The side of--
A. The side, yes.
Q. The side of your chest area?
A. Yeah, and then continued going down to my belly area.
Q. The side of your chest area, this is whilst the towel is still on top of you?
A. No, the towel, yes. The towel was on top of me but he was going under the towel.
Q. Was his hand touching your skin?
A. No, his hands.
Q. Was his hands touching your skin underneath the towel?
AYeah.
Q. At this point, where was he positioned when you said he was massaging the side of your upper chest area?
A. He was next to me and then he went behind me and start up to me from behind.
Q. From behind. At this point, you're lying down on the bed?
A. Yeah, he was, like, behind me and he was massaging me like this.
Q. You mean he was closest to where your head was?
A. Yeah, exactly.
Q. At this point, could you see anything?
A. No, he put a shirt on my eyes, on top of my eyes, because he told me the light was to bright, he put the shirt on top of my eyes.
Q. When was a shirt put over your eyes, at what point?
A. After I turn around and he put the towel on my body and then he put the shirt on my eyes.
Q. Who's shirt was that?
A. My shirt.
Q. He's put the shirt over your eyes?
A. Yes.
Q. Was the shirt also over your mouth and nose?
A. No, it was just over the eyes.
Q. Just over the eyes. But you're saying the towel was over your chest before the shirt was put over your eyes?
A. Yes.
Q. He's massaging the side of your chest that you're indicating right below your armpit area on the side of your ribcage and you also indicated that he was also massaging your belly area as well?
A. Yeah.
Q. Then what happened?
A. This took a while. It was a really long massage, so he started very slowly massaging different areas and then at some point every time he was getting closer to my breast and at some point he just start touching me, my breasts.
Q. Your breasts?
A. Yeah.
Q. You said each time he gets closer to your breast what do you mean, what action was he exactly doing when you say "Each time he was getting closer to my breast"?
A. Because he was going down and up with his arm - with his hands and every time he's starting to get closer to the area closer and closer. So at some point he just went on top of them. He just - instead of going around, he just put his hands over my breasts.
Q. Instead of going around, he just put his hands on your breast?
A. Yeah.
Q. For the Court record, you were gesturing to the Court what you meant. Instead of going around, he put his hands on the breast, so what does going around mean?
A. He start touching - he was touching all over my body. Here, here, on the shoulders, in this area and then--
Q. For the Court record, the witness had just indicated her collarbone area and then traced her hands above her breast area. He was going all over your body?
A. Yes.
Q. What do you mean by him massaging around your breast area?
A. He was going - he was touching me everywhere but exactly the breast area but at some point he crossed that line and he start just touching me all over the breasts.
Q. All over the breast?
A. Yeah.
Q. How did you know he was touching you all over the breast at this point?
A. Because I could feel it. I could feel his hands, of course.
Q. You could feel his hands?
A. Yeah, of course. It was not just one time, it was a repetitive move from him.
Q. Repetitive. Do you know how many times he touched just your breast area?
A. I couldn't say exactly but it was a repetitive move.
Q. Were both your breasts touched?
A. Yes.
Q. What happened when that happened, what did you do?
A. So I felt very shocked. I knew that that could happen because I was feeling him that every - with every move he was getting closer. So I already feel a little bit shocked before that really happened but when that happened I just start figuring out what to do. Of course, I want him to stop because I was feeling very uncomfortable but I didn't know if just stop him straight away or yell at him and just run away or just - you know, I was alone. I didn't see anybody else in the clinic, so I don't know - I was scared.
Q. What did you do, do you remember what you did?
A. Yes, I stop him because I saw him coming really close to my body. While he was touching me his face start coming closer to my breast, really close. He was bending down.
Q. He was bending down?
A. Yeah, so I was scared he was going to try something else.
Q. What did you think was--
A. Looked like he was going to, I don't know, kiss or lick my breasts.
…
Q. When you said he was really close, you said—
A. I mean 1 centimetre.
Q. 1 centimetre?
A. Yeah, really close with the mouth open.
Q. Which part of him was 1 centimetre away?
A. His mouth and his face.
Q. 1 centimetre away from which part of your body?
A. My breasts.
Q. Your breasts?
A. My left breast in that case.
…
Q. You say he's bending down and his face and mouth was 1 centimetre away from your left breast?
A. Yeah, I stop him.
Q. How did you stop him?
A. I told him "What are you doing?".
Q. Did he reply?
A. Yes, he said "I'm sorry. I'm sorry. I was not thinking clear", that's what he said.
Q. Then what did you say, if anything?
A. Yeah, I said "I'm going. I'm leaving. This is so unprofessional", I told him.
Q. "This is so unprofessional"?
A. Unprofessional.
Q. At this point you said "This is unprofessional", then what happened?
A. Then he was saying sorry and he left for a couple of minutes. I just put my clothes on as fast as I could and I left the room and he was following me when I went to the reception still saying he was sorry, that it was a misunderstood.
Q. Do you remember the exact words he was telling you at this point or saying to you?
A. Yeah, he was repeating he was sorry, it was misunderstood and he hoped that I could come back with the treatment. He's talking to me about the treatment, to continue with the treatment like nothing happened and of course, I was not coming back.
…
Q. I'll go back to the [part] where you took off your bra or you unclipped your bra for the first time, that was facing downwards?
A. Yes.
Q. And it was him who asked you to unclip your bra, is it not? A. No, he unclipped the bra.
Q. He unclipped the bra?
A. The first time. Yes, he did.
Q. It was the case that he asked you?
A. Yes, l think so.
Q. Then when you turned around you say your bra was still on?
A. Yeah because he clip it back again before I turn around.
(emphasis added)
1. The alleged breast touching of Patient A's breasts was directly challenged the Local Court during the practitioner's counsel's cross-examination of Patient A.
2. The transcript includes the following passages of cross-examination of Patient A:
Q What I'm suggesting to you is that he never grabbed your breasts at all. He may well have come very close to your breasts during the massage but he never grabbed them in the way that you've described at all?
A Well I don't think so. I don't think the same way. Of course he grabbed them.
…
Q But ma'am you never said that he had touched your breasts?
A Yeah, I told him. Maybe it's not in the statement but I told him.
Q. Ma'am, it's not in the statement and you agree you never told him that he touched your breast, did you?
A. I ask him what he was doing.
Q. … I'm not challenging--
A. And I told him that it's very unprofessional.
Q. Please, in fairness to you, I'm not challenging that you said "What do you think you're doing" but you never put to him "Look, you've been touching my breast", did you?
A. I told him. Maybe it's not in the statement but I told him.
Q. It's not in the statement, is it? You've read it. It's not in there, is it, is it, ma'am?
A. It's not but doesn't make any change for me. I know what it happens.
Q. And in terms of his hands, and you've had physiotherapy before, if the physiotherapist is moving their hands up the side of your ribs areas, they are very, very close to your breasts, aren't they?
A. Yeah, that's why I didn't stop him in the first place because he's a professional. I trust professionals..(not transcribable)..
Q. But that's the point. I'm suggesting his hand might've been very, very close?
A. No.
Q. It might've even edged towards your breast?
A. No.
Q. But didn't actually grab them in the way that you're –
A. He grabbed them.
(emphasis added)
Statement of Patient A to the Commission dated 19 September 2022
1. Relevantly, Patient A states:
14. I remember that after the cellulite treatment I stood up and he started talking about my body alignment, showing me the photos that he took during the first session. That's when I said that maybe the tension in my upper and lower back could have something to do with that. Then he said he was going to check my back and I laid down on my belly again and he started checking my back with the chiropractor hammer for just a couple of minutes. After that, he said he was going to massage the area to release the tension. He asked me to take my top off and covered me with a towel. The first thing that made me suspect that something was going wrong is that the massage and the session was taking longer than expected, usually professionals don't spend so much time with one patient from what I know, especially if I didn't pay any money for the service, After a long time, he asked me to turn around and started massaging the front of my body. I started feeling anxious because slowly his hands were getting closer to my breast area. At that point the massage had nothing to do with my back or neck area.
15. But at that point, I didn't feel he was working in any muscle on my front, I felt he was just touching me and getting slowly closer to my breast area until he finally started to directly touch my breast.
16. Mr Wong didn't explain why he was massaging specifically those areas including near my chest/breast area, he said the massage will help me to relax.
The expert report of Ms Tracey Powell dated 21 June 2023
1. Ms Powell's report may be summarised as follows.
2. In relation to the adequacy of the practitioner's care and treatment of Patient A on 6 May 2020, even though Patient A presented for treatment of her cellulite, as this treatment was to be administered by the practitioner:
1. he was obliged to perform an appropriate physiotherapy assessment;
2. he failed to do so for the reasons set out in the report; and
3. that the practitioner did not do so fell significantly the standard reasonably expected of the practitioner of the equivalent level of training and expertise.
1. In relation to the adequacy of the practitioner's assessment of Patient A on 13 May 2020:
1. he failed to do so for the reasons set out in the report; and
2. that the practitioner did not do so fell significantly the standard reasonably expected of the practitioner of the equivalent level of training and expertise.
1. As to the practitioner's diagnosis of Patient A as having Upper Cross Syndrome, assuming Patient A's version of events, the practitioner did not perform an adequate physiotherapy accepted assessment of Patient A and would have been unable to make a diagnosis of Upper Cross Syndrome.
2. In Ms Powell's opinion, that fact that the practitioner did make this diagnosis falls significantly below the standard expected of the practitioner of the equivalent level of training and expertise.
3. Assuming the practitioner's version of events, Ms Powell says that the practitioner would have been able to make a diagnosis of Upper Cross Syndrome based on the physical assessment he says he performed, which assessment complies with the accepted standard, but that he failed to keep a record of the history and physical assessment of Patient A. This, in her opinion, falls significantly below the standard reasonably expected of a practitioner of the equivalent level of training and expertise.
4. As to whether massage treatment was clinically indicated on 13 May 2020, assuming Patient A's version of events, Ms Powell considers that Patient A was not adequately assessed and it is impossible to determine whether massage was clinically indicated with an alternate treatment could have been offered.
5. Assuming the practitioner's version of events, Ms Powell considers that massage to the affected soft tissues was clinically indicated. She says that there were other treatments that could have been offered to best Patient A, which should have been discussed with Patient A. The fact that the practitioner did not discuss or offer alternatives to massage in Ms Powell's opinion fell significantly below the standard reasonably expected of the practitioner of the equivalent level of training and expertise.
6. As to the manner of conducting the massage on 13 May 2020, assuming Patient A's version of events is not critical of the practitioner's conduct.
7. Assuming Patient A's version of events set out in her police statement, Ms Powell says that the massaging of the side of Patient A's breasts, stomach and breasts was not clinically indicated and not supported by clinical records. Ms Powell says that as massage of these areas was not clinically indicated and her opinion was exploitation of Patient A in a physical, sexual and emotional manner, that the practitioner massage these areas fell significantly below the standard reason expected of the practitioner of the equivalent level of training and expertise, that the practitioner's attempts to remove Patient A's bra while lying on the clip fell significantly below the standard reasonably expected of the practitioner of the equivalent level of training and expertise and that the grabbing of Patient A's breasts by the practitioner also felt significantly below the standard reasonably expected of the practitioner of the equivalent level of training and expertise, as did the proximity of the practitioner's face to Patient A's breasts.
8. Similar opinions are given by Ms Powell assuming Patient A's version of events that she gave in the local Court.
9. And ultimately, assuming the practitioner's version of events, Ms Powell makes no criticism of the practitioner asking Patient A to purchase an electric muscle stimulation (EMS) domestic unit for $200 as an alternative to the home exercise program.
10. Finally, in relation to the adequacy of the practitioner's records for his care and treatment of Patient A on 6 May 2020 and 13 May 2020, failure to record is assessments on both dates fell significantly below the standard expected of a practitioner of the equivalent level of training and expertise.
The expert report of Ms Tracey Powell dated 11 July 2023
1. For the purpose of this report Ms Powell was briefed with a transcript of the ERISP interview, a s 150 "self-reflection log", prepared by the practitioner dated 1 June 2020; the practitioner's evidence before the Local Court, and the s 34A response from the practitioner received 14 September 2022.
2. Ms Powell was asked, assuming practitioner's version of events that he gave in the ERISP interview and in the Local Court proceedings, to provide her opinion in relation to the manner in which the practitioner performed the massage when Patient A was lying on her back.
3. Ms Powell was asked to address whether it was relevant if the practitioner had clipped Patient A's bra back on or not prior to asking her to turn over to lie on her back. Ms Powell states that it is relevant to know whether the bra was re-clipped before Patient A was asked to turn over to lie on her back, as if the bra was not re-clipped before she turned over this would fall below the accepted standard of the practitioner with an equivalent level of training and experience.
4. Ms Powell was asked whether was appropriate for the practitioner to play some material over Patient A's eyes, Ms Powell considers that it was appropriate for the practitioner to do so for the reasons set out in the report.
5. As to the parts of Patient A's body that the practitioner massaged, Ms Powell notes that the practitioner stated on more than one occasion in the ERISP interview that he massaged areas that were "very close to the breast". She also notes that he uses the words "there may have been a misunderstanding". In Ms Powell's opinion, this is an acknowledgement that the practitioner should not have massaged those areas. Similarly, as to his comments, "I think I did step over a line", and "it maybe felt a bit too intimate", in Ms Powell's opinion this is an acknowledgement that the practitioner should not have massaged those areas.
6. Ms Powell states there are few clinical indications for the breasts of a patient to be massaged by physiotherapist. The two main clinical indications of massaging a patient's breast were:
* if there was scar tissue which needed to be worked on (for example following surgery); and
* when the milk ducts in the breasts are blocked (for example in a patient with mastitis).
1. In conclusion, Ms Powell states that was no clinical reason for Patient A's breast or areas near her breast to be massaged. That the practitioner massaged close to her breasts fell significantly below the accepted standard.
Local Court remarks on conviction and sentence, 24 February 2022
1. Given that the practitioner's conviction and sentence were overturned on appeal, we will not summarise the Magistrate's remarks on this occasion. However, we note that the Magistrate found Patient A to be a "clear and compelling witness".
2. Relevantly, the Magistrate also stated:
The prosecution also rely on CCTV footage taken from Mr Wong's practice.
There are several files depicting the complainant arriving at the rooms, Mr Wong escorting her to the room for her session, and various exits from that room. In addition, there is a file which shows the complainant and the defendant in the waiting room after the session and an exchange which takes place between the two prior to [Patient A] leaving the practice. The exchange is agreed to be as follows, although some words are lost.
The complainant, "I don't know if it's common or not, but for me it's not."
Mr Wong, "No, no. I've just - I've just been - I think I've just been - haven't been thinking straight. So I do apologise."
There is then some discussion about shockwave treatment.
Mr Wong, "Just do one more time. I apologise again. See you Wednesday. Then if you not feel comfortable, then we'll at least - I'll get something for you as well, next time."
The complainant, "Okay."
Mr Wong, "And I feel really sorry and embarrassed."
The complainant, "Yeah."
Mr Wong, "So I do understand. Yeah. Sorry."
District Court judgment 8 July 2022
1. The practitioner appealed against his conviction and sentence. The appeal hearing took place on 4 July 2022, with Judge Abadee publishing a judgment allowing the appeal on 8 July 2022: R v Wong [2022] NSWDC 257 (Judgment).
2. The District Court identified at least six matters of concern:
3. First, inconsistencies in Patient A's evidence, in particular that she did not refer to the practitioner touching her breasts in her statement to the police, but did at the Local Court hearing (Judgment at [24]).
4. Secondly, the practitioner's contemporaneous text message of apology, which (Judgment at [76]):
… was consistent with the [practitioner's] explanation for the apology: that he was regretful that he misunderstood the appellant's needs and intended, in the near future, to make future improvements and adjustments to his (anticipated) future treatment of the complainant. This last piece of evidence struck me as being very material, but it was not referred to by her Honour in her reasons. Given the physiotherapist's experience, and the professional stakes for him engaging in the conduct of which he was alleged to have committed, it would have been brazen, to point of chutzpah, for him to apologise only for a misunderstanding of the complainant's needs if he had massaged her breasts and gone on, in his text, to be writing expectantly about her future treatment needs which he intended to fulfil.
(emphasis added)
1. Thirdly, "the nature of the interaction between" Patient A and the practitioner. The Court stated (Judgment at [77]) that Patient A:
… was to be the beneficiary of an essentially 'free' service; with the only 'consideration' being an expectation upon the complainant to provide what, from the appellant's perspective, were favourable reviews on social media of such treatment, with the commercial objective of attracting further customers. All of that would have been jeopardised, indeed obliterated, if the service was less than satisfactory in meeting the complainants needs; let alone if he engaged in criminal activity towards her. If ever there was a time for the appellant to act impeccably towards a client, it might have been thought that this was such an occasion. These contextual circumstances might suggest that if one was to stand back, one might consider that an allegation of the index offending was improbable, before one started to carefully scrutinise the evidence in the Crown case.
(emphasis added)
1. Fourthly, what the Court described as the Magistrate's "limited use of good character", stating (Judgment at [78]):
The inherent improbability of his wrongdoing so would also have been bolstered by the evidence - not seriously challenged - of his prior good character; which was relevant not only to the likelihood of his engaging in the offending, but also more generally to assessment of the credibility of the account that he gave for his apologies, or statement of embarrassment. It is not apparent that her Honour engaged with the use flowing from the finding of good character. Of course, her Honour was not bound to treat the latter as a defence since there are often cases, especially seen in the disciplinary setting, but also in a criminal setting, of professionals of hitherto unblemished character engaging, for the first time, in sexual misconduct. Lapses in character can obviously occur. But her Honour did not treat the finding of good character as bearing upon the credibility of the explanations that he had given on affirmation, in Court and also in his ERISP, separate from how it related to the likelihood of his engaging in the offending conduct.
1. Fifthly, (Judgment at [83]):
It is clear that her Honour discounted the weight to be given to the [practitioner's] evidence as to the circumstances, including his motivations (and understandings of [Patient A's] apparent state of being 'upset'), for apologising to the complainant on account of matters not being put to [Patient A] when she gave evidence. It may be accepted that this may be an available sanction for infringement of the rule. But it is not the only one and care needs to be taken as to the proper course to be taken where the rule is infringed in a criminal proceeding, which is not only adversarial but also accusatorial in nature.
In my view, her Honour erred in doing so.
…
This was, substantially, a 'he said, she said' case. Once the learned Magistrate's reasoning was erroneously affected by the view that the rule in Browne v Dunne had been infringed, and thereby permitted her Honour to discount the weight given to evidence by the [practitioner], the reasoning effectively also bolstered the credibility and reliability of [Patient A].
1. Sixthly, the Magistrate reversed the onus of proof (Judgment at [89]):
Further, although no additional weight should be given to the appellant's evidence because he elected to give evidence, he bore no onus of proving the veracity of his account. Yet, in my view, the questions raised by the learned Magistrate, just prior to her Honour's expressed determination of his guilt, was indicative of error in at least three senses. The first is that it reversed the onus of proof of an important fact in issue- why the [practitioner] apologised as he did - so as to implicitly cast upon him the burden of proving why he apologised. The second is that the [practitioner's] explanation for the apology was rejected in circumstances where her Honour had excluded a document which might have helped rehabilitate any challenge to the credibility of the explanation for his apology. The third, perhaps more fundamentally, is that the reasoning misapplied the Liberato direction that her Honour gave herself.
1. The District Court concluded as follows:
108 In my opinion, errors have been established in the learned Magistrate's reasons which were material and which, in combination, had the effect that her Honour ultimately based her determination of the [practitioner's] guilt on a preference for [Patient A's] version over the appellant's version. That is not to detract from her Honour's reference to other matters affecting acceptance of her version, especially the CCTV footage, and also the fact of the complaint to the police the same day. But the significance of this evidence said to support [Patient A's] testimony should not be overstated. When the CCTV footage was considered, with reference to what the [practitioner] had said about it in his ERISP and his evidence, the [practitioner's] text message (in Exhibit 7), and with reference to his good character, his explanations were not so implausible as the Magistrate had found and should have led her Honour to at least be doubtful of his guilt. Further, the fact of contemporaneous complaint, though usually probative, did not assist the prosecution case when the main point that emerged from it, a report of how the [practitioner] toucher her, was materially different to the evidence she gave on that topic at the hearing. But even if the [practitioner's] evidence was rejected, it remained necessary for the Crown to prove the [practitioner's] guilt to the high standard.
109 Forming my own judgment of the facts, as I do, I am not satisfied beyond reasonable doubt that the [practitioner] sexually touched [Patient A]. That being so, the Crown has not established the [practitioner's] guilt.
Section 150A Decision, 14 September 2022
1. A second s 150A hearing followed on 10 August 2022 following:
* the conviction of the practitioner in the Local Court on 24 February 2022; and
* the practitioner's successful appeal against conviction and sentence on 8 July 2022.
1. In reasons for decision published 14 September 2022, the Council delegates first considered the following questions:
* what changes have there been to the practitioner's circumstances?
* had the practitioner made any changes to his clinical practice that would reduce the risk to the safety to the public?
* did the methods the practitioner used to target and recruit clients to the Practice's cellulite reduction program comply with the Boards Advertising Guidelines and Shared Code of Conduct?
1. After considering those questions, the delegates concluded that the practitioner:
… continues to pose a risk to the safety of clients through performance that falls below the professional standard expected of a registered physiotherapist.
In his failure to document in [Patient A's] clinical notes, signed terms and conditions of the cellulite reduction trial, the diagnosis and treatment options and written informed consent from [Patient A], [the practitioner]'s performance fell well below the required clinical performance expected of a registered health professional.
In actively seeking recruits for his cellulite reduction treatment [the practitioner] using an alias, this has the appearance of trolling the client who had placed a job advertisement on Gumtree, a social media platform. At no time had [Patient A] actively sought out providers of cellulite reduction treatment. [The practitioner] used the offer of a free cellulite reduction treatment to attract [Patient A] to his practice and had failed to provide terms and conditions to [Patient A] in plain language that a person with a non-English speaking background could understand. No effort appears to have been made to ensure [Patient A] fully understood the terms and conditions of the trial.
1. The delegates then paraphrased the Shared Code of Conduct, and noted that the Guidelines for advertising a regulated health service developed jointly by the National Boards under s 39 of the National Law state that:
1) A person must not advertise a regulated health service or business that provides a regulated health service in a way that
…
b) Offers a gift, discount or other inducement to attract a person to use the service or the business unless the advertisement also states the terms and conditions of the offer in plain language
1. The delegates concluded that, on "all these levels", the practitioner's behaviour fell below the required professional standard. After "careful consideration" of the information given by the practitioner at the hearing and being mindful of the paramount consideration of the protection of the health and safety of the public, the delegates decided to maintain the existing conditions on the practitioner's registration. The delegates remained concerned that the practitioner's behaviour and clinical practise fell far short of that expected of a registered health professional and as such posed a significant risk to the health and safety of the public.
Evidence before the Tribunal: The practitioner's documents
1. The practitioner filed a bundle of documents on 8 July 2024 which included his reply to the complaints; his statement dated 4 June 2024, a statement of Ms Oliviera dated 23 November 2021, and three character references.
2. Ms Oliviera was the Practice in-house personal trainer. At the time she was also the de facto partner of the practitioner.
3. The practitioner was required for cross-examination. Where relevant we will refer to his oral evidence below.
4. We summarise some of the more important documents as follows.
The practitioner's statement
1. After setting out a short summary of his background and personal life (Statement, [1] to [8]), the practitioner that discusses the establishment of the Practice at Ryde in 2010 and another practice at Chatswood in 2013. He states that prior to "this alleged incident" the two practices were doing well and he also employed a sports physiotherapist. He had approximately 80 clients per week for the "physiotherapy arm" of his practice and personally was treating on average 8 clients a day. He says he was working up to 30 to 40 hours per week treating clients (Statement, [9] to [17]).
2. He then deals with the topic "Expanding to Cellulite treatment" (Statement, [18] to [27]).
3. He says that COVID significantly affected his practice and in response to that he and Ms Oliveira, "developed a collaborative non-clinical service focused on cellulite reduction". He says that cellulite is not considered a medical condition but is "more popular in the wellness sphere". The practitioner has completed training in the use of the Electrical Muscle Stimulation (EMS) machine, which he uses to treat cellulite. He says that in addition to shockwave treatment using the EMS machine, exercise routine is essential.
4. The practitioner states the way in which he would initially assess someone who came in for cellulite reduction treatment was very different from assessing someone who came to him seeking his specialist physiotherapy treatment.
5. Paragraphs [28] to [38] set out the practitioner's engagement with Gumtree. He says that he went to Gumtree to look for participants or volunteers for his cellulite treatment program. The purpose was to see if volunteers from South America would be willing to consent to free treatment in exchange for providing a review to be placed on their social media. The practitioner said he did this to promote his business. He said he did not have any intention to use that approach to health treatment such as his physiotherapy practice and would never have undertaken that approach with respect to medical conditions. That is because he believes cellulite treatment is in the wellness sphere are not a medical condition and therefore it was inappropriate to see clientele, offer free treatment in return for a review about that treatment.
6. It was in this way that the practitioner found a post by Patient A on Gumtree. Patient A was looking for employment as a barista.
7. The practitioner's statement then deals with the practitioner's account of the events of 6 May and 13 May 2020. We will consider his account when it comes to the making of factual findings.
8. Finally, at paragraphs [93] to [109] the practitioner sets out his response to Ms Power's two expert reports.
9. We pause to note that the practitioner did not rely on any independent expert evidence, but appears to qualify himself as an expert. The issue of whether or not a party can be their own expert was exhaustively considered by the late Justice Einstein in the long-running "Idoport litigation" in the Supreme Court of NSW. In Idoport Pty Ltd v National Australia Bank Ltd [2001] NSWSC 123, to summarise a very long judgment, if appropriately qualified, a person who is a party to proceedings can be their own expert, but "the question of the weight of that evidence is altogether another matter for determination": see [157].
Ms Oliveira's statement
1. Ms Oliviera's statement was prepared for the Local Court proceedings. It is a brief statement which sets out her account of the establishment of the cellulite treatment program at the practice, and is in substance a character reference for the practitioner. She did not attend the Practice on 13 May 2020.
Some relevant principles
1. At least in relation to the alleged touching of Patient A's breasts, this is what Abadee DCJ described as a "she said he said" case (Judgment at [7]). As the Tribunal stated in Health Care Complaints Commission v Ng [2015] NSWCATOD 85, the observations of Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73] to [79] are of assistance. To paraphrase his Honour, as the Tribunal did in Ng:
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 (here the Tribunal), 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].
1. Sackar J 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."
1. 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].
2. To these observations may be added the remarks of Lee J in Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369:
98 The concept used in subsection (1), being the "balance of probabilities", is often misunderstood. It does not mean a simple estimate of probabilities; it requires a subjective belief in a state of facts on the part of the tribunal of fact. A party bearing the onus will not succeed unless the whole of the evidence establishes a "reasonable satisfaction" on the preponderance of probabilities such as to sustain the relevant issue: Axon v Axon (1937) 59 CLR 395 (at 403 per Dixon J). The "facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied": Jones v Dunkel (1959) 101 CLR 298 (at 305 per Dixon CJ). Put another way, as Sir Owen Dixon explained in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361), when the law requires proof of any fact, the tribunal of fact must feel an actual persuasion of its occurrence or existence before it can be found.
99 Justice Hodgson put it differently, but to the same effect, by observing that when deciding facts, a civil tribunal of fact is dealing with two questions: "not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision": see D H Hodgson, 'The Scales of Justice: Probability and Proof in Legal Fact-finding' (1995) 69 Australian Law Journal 731; Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 (at 576 [14]–[16] per Hodgson JA, Beazley JA agreeing).
100 Whatever way it is put, a "[m]ere mechanical comparison of probabilities independent of a reasonable satisfaction will not justify a finding of fact": NOM v DPP [2012] VSCA 198; (2012) 38 VR 618 (at 655 [124] per Redlich and Harper JJA and Curtain AJA); Brown v New South Wales Trustee and Guardian [2012] NSWCA 431; (2012) 10 ASTLR 164 (at 176 [51] per Campbell JA, Bergin CJ in Eq and Sackville AJA agreeing).
1. After referring to s 104E of the Evidence Act 1995 (Cth), his Honour relevantly stated (citations omitted) at [101]:
As Kiefel CJ, Gageler and Jagot JJ recently observed in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 (at 874–875 [57]), the statutory provision:
… reflects the position of the common law that the gravity of the fact sought to be proved is relevant to "the degree of persuasion of the mind according to the balance of probabilities". By this approach, the common law, in accepting but one standard of proof in civil cases (the balance of probabilities), ensures that "the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved.
1. His Honour then stated at [104]:
An allegation of rape ranks high in the calendar of criminal conduct, and, at the risk of repetition, the allegation needs to be approached with "much care and caution" and with "weight being given to the presumption of innocence and exactness of proof expected": Briginshaw (at 347 per Latham CJ; 363 per Dixon J). Further, a finding of rape would, needless to say, be seriously damaging to Mr Lehrmann's reputation and this consequence properly gives one pause before making it: Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 (at 345–346 [68]–[69] per Mansfield and Gilmour JJ).
1. Relevantly, for our purposes, his Honour then stated:
109 … the difference between the criminal and civil standard of proof is substantive and can be decisive in dealing with the same underlying allegation.
110 Apart from anything else, this difference is evident from the necessity that in a criminal trial, the facts as established must be such as to exclude all reasonable hypotheses consistent with innocence.
111 By way of useful summary, as was emphasised by the High Court in Rejfek v McElroy (1965) 112 CLR 517 (at 521 per Barwick CJ, Kitto, Taylor, Menzies and Windeyer JJ):
[t]he difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.
1. His Honour then makes some helpful observations in section E.6 of the judgment "The Court is Not Bound to Accept Either of the Parties' Accounts". His Honour said:
130 … in general, disbelief of one witness's account does not establish the contrary, or that a witness giving a contrary account must be believed: Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 (at 385–386 [60] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ).
132 Of course, if I am ultimately unable to make a finding one way or another as to what actually happened, it is open to decide the issue on the basis that the party who bears the burden of proof on this issue (that is, the respondents) have failed to discharge their burden: Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 (at 955–956 per Lord Brandon, Lords Fraser, Diplock, Roskill and Templeman agreeing). Relatedly, and importantly, given my rejection of Mr Lehrmann's account of what went on, it must be borne in mind that a civil onus of proof is not discharged by mere disbelief in opposing evidence (see, for example, in the context of a criminal onus, Liberato v R (1985) 159 CLR 507 (at 515 per Brennan J)).
(emphasis added)
1. To these authorities can also be added the various additional authorities referred to by the practitioner in his submissions. These include Briginshaw v Briginshaw (1938) 60 CLR 336, Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170, Gautum v Health Care Complaints Commission [2021] NSWCA 85, Coote v Kelly [2013] NSWCA 357, Health Care Complains Commission v Daniel [2022] NSWCATOD 104, Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1.
2. We note that in Gautum, Payne JA said at [83]:
The Tribunal in the present case was faced with starkly conflicting narrative accounts. This will often be the case in sexual harassment or sexual misconduct complaints. It is not necessary, as the appellant submitted, that the complainant's account be "corroborated" or that, having addressed the relevant factual issues and accepted the complainant's account, separate reasons be given for rejecting the appellant's account. The Tribunal had before it two diametrically opposed accounts of events and came to a clear view, preferring one over the other, after extensive cross-examination of both the appellant and the complainant. The Tribunal was entitled to express itself as it did.
1. The practitioner submits that in Asim v Penrose [2010] NSWCA 366 Justice Tobias commented that, in the civil context, when there are competing inferences of equal possibility, or the choice between them can only be resolved by conjecture, the standard is not met. [1] His Honour stated at [143]:
.... I would in a case such as the present emphasise the following passage from the joint judgment of Dixon, Fullagar and Kitto JJ in Luxton v Vines at 358:
In questions of this sort, where direct proof is not available [the evidence being only circumstantial], it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture.
This test has been repeatedly adopted in this Court as well as in the High Court in cases too numerous to cite.
The touching of Patient A's breasts
1. We consider that the appropriate course is to first make findings of fact in relation to the most serious of the allegations, namely that the practitioner performed massage on Patent A in an inappropriate manner and without clinic indication and massaged the sides of her breasts, placed his hands on her breasts and repeatedly moved his hands up and down her breasts.
The Commission's submissions
1. In summary, the Commission submits that:
1. it is not in dispute that Patient A caused the massage on 13 May 2020 to end abruptly. It is not in dispute that the practitioner's repeated apologies to Patient A, as recorded on the CCTV, included the phrases, 'I'm embarrassed' and 'I haven't been thinking straight.' These words are consistent with Patient A's account of the events of 13 May 2020;
2. Patient A's account was cogent and consistent in both her evidence and conduct since the date she made her allegation to police on 13 May 2020;
3. Patient A said that once certain she could not be misunderstanding or misinterpreting the situation, she caused the massage to end. Once dressed, and therefore less vulnerable, Patient A verbally remonstrated with the practitioner, as the CCTV shows. Patient A attended police the same day to complain; and gave substantially consistent evidence across her interviews with police, in the Local Court, and before the Tribunal;
4. by contrast, the practitioner's evidence was unconvincing in various respects. The practitioner's unwillingness to accept the characterisation of his approach to Patient A as "pretending to be another person", in circumstances where no other inference is reasonably available, casts doubt upon the practitioner's honesty generally;
5. in evidence before the Local Court, for the first time, the practitioner gave an account of a heated exchange between himself and Patient A in which he attempted to sell her a machine to use at home instead of doing the prescribed exercises. This was a suggested reason for the practitioner's apologies;
6. the practitioner said he was quite insistent in the conversation, and may even have raised his voice. The practitioner said raising his voice was an unusual occurrence. The practitioner did not tell police about it. He told police he did not even sell the machines;
7. this account of a tense conversation was never put to the complainant.
The practitioner's submissions
1. In summary, the practitioner submits that:
1. Patient A's demeanour was not impressive;
2. Patient A did not directly answer the questions asked of her in cross-examination but prevaricated on direct answers, counsel for the practitioner having to repeat her questions several times;
3. when it was put to Patient A that she had raised matters for the first time before the Tribunal, her response was because it was not asked of her. That explanation is unreliable cannot be accepted by the Tribunal as a credible explanation for the inconsistencies in her evidence. Patient A made a statement to Police and a statement to the Commission, and these were opportunities for her to disclose her narrative of the events. Her evidence-in-chief in the Local Court was another opportunity;
4. it is not a question of determining which witness is telling the truth. Particulars 6 to 10 of Complaint One are serious allegations of sexual misconduct (dismissed in the District Court) and which have destroyed the practitioner's career for the last four years. The Tribunal needs to be satisfied to a very high degree of comfort that the Commission has proved the allegations. On the evidence before the Tribunal, that test cannot be met;
5. the only "contemporaneous documents" was the CCTV recording that captured the discussion between the practitioner and Patient A immediately after the allegation;
6. there was no unequivocal admission by the practitioner nor was there any unequivocal representation by Patient A as to what she says occurred;
7. the practitioner's utterances captured on CCTV and in his text are of him saying "I apologise", "I feel embarrassed", "sorry" and in his text he states there was a "misunderstanding". The Commission says these are admissions while the practitioner submits he was referring to a misunderstanding about causing Patient A pain and embarrassment of the towel slipping.
1. The practitioner then submits:
103 On the CCTV Patient A is heard saying:
"I don't know (indistinct) I don't know if its common or not but for me at least it's not ... (Emphasis added by the practitioner)
104 The [practitioner] invites the Tribunal to critically consider this contemporaneous utterance by Patient A. If the Respondent did touch Patient A's breasts in the manner she alleges - massaging them repetitively and then stopping one hand on each breast and the Respondent getting so close to her breasts it looked like he was about to lick them — then her saying "I don't know if its common or not" is illogical if not unrealistic. There is not a female patient on the planet who would consider such a massage "common".
105 Indeed, it is more likely Patient A said this because, as the [practitioner] has maintained, perhaps Patient A reacted when she thought the [practitioner] massaged too close to her breasts.
106 In cross-examination in the Local Court, Patient A stated she told the [practitioner] that he touched her breasts without her consent. That was never detailed in her statement to Police nor was any such utterance captured on the CCTV.
107 Patient A then said in her evidence in the Local Court, "I told him. Maybe it's not in the statement but I told him':
108 It is submitted this is an example of Patient A seeking to embellish her evidence to try and bolster her version of events.
109 Patient A has given four accounts as to what occurred. There are not just minor inconsistencies but glaring differences in those accounts. This must undermine the Tribunal's state of satisfaction.
Consideration
1. We have considered the criticisms made of inconsistencies in Patient A's account of events. Broadly speaking we thought Patient A was a credible witness, whose evidence should be accepted. We find that the practitioner's criticisms of her to be overstated. The only motive put to her was that she embellished her statement to the Commission and in her oral evidence to the Local Court and to us. Patient A robustly rejected that suggestion.
2. We do not accept the practitioner's submission that Patient A's oral evidence of the practitioner touching her breasts either at the Local Court or before us was inconsistent with her police statement. We have set out the relevant component of her statement to police at [43]. True it is that in her statement to the police Patient A relevantly stated that the practitioner "stopped both of his hands on my breast, keeping them there for more than a couple of seconds", which statement was then repeated in the Facts Sheet.
3. But in the Local Court, Patient A gave evidence that the practitioner's motions in massaging her breasts were repetitive.
4. Unlike the District Court, but like the Local Court, we had the benefit of seeing Patient A being cross-examined. Before us Patient A was adamant that the practitioner:
* placed both hands separately on each of her breasts;
* had one hand on each breast and moving around with a repetitive movement.
1. Patient A was challenged quite strongly by the practitioners' counsel about this evidence. Patient A robustly rejected the suggestion that the practitioner had never touched her breasts.
2. As the Court of Appeal stated in Forster v Hunter New England Area Health Service [2010] NSWCA 106, no matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied. As the Tribunal of fact we must feel an actual persuasion of the occurrence of the events as alleged by the Commission.
3. We are so satisfied for the following reasons.
4. First, as just discussed, we found the forthright manner in which Patient A gave her evidence in the Local Court and before us to be persuasive and credible. For instance, the cross-examination before us included the following:
Ms New: He placed both hands separately on each breast?
Patient A: Yes.
Ms New: You must have thought that was wrong straight away?
Patient A: Yes.
Ms New: When you say your breasts were touched …
Patient A: At some point he started touching my breast area not just once, which could have been a mistake, but repeatedly …
Ms New: You say in evidence that he had one hand on each breast and moving around with a repetitive movement?
Patient A: Yes.
Ms New: I suggest that he never massaged your breasts in this way –
Patient A: disagree
Ms New: If he had you would have mentioned it earlier?
Patient A: I was considering my options, of course I wanted to stop him, I was half naked on my back, possibly alone
Ms New: So you did stop it?
Patient A: when he stopped both hands on my breast
Ms New: There was no chance to repeat the move because you would have stopped it earlier?
Patient A: I disagree, it happened a few times before I stopped him. I could feel he was just left his hands on my breast. He clearly looked like he was going to do something else with his mouth
Ms New: You never told police the day after incident that he was massaging breast repeatedly –
Patient A: When I say massaging I thought everyone understood repeatedly
…
Ms New: Isn't it possible he came close to your breasts and that's when he stopped everything?
Patient A: No.
Ms New: Your evidence in the Local Court that he repeatedly massaged your breasts was you embellishing your evidence?
Patient A: I disagree, I don't need to embellish anything.
1. Secondly, Patient A did not deviate from her essential account of the massaging of her breasts despite her lengthy cross-examination (including by a very senior criminal silk appearing for the practitioner) in the Local Court proceedings and before us.
2. Thirdly, we also considered that Patient A made appropriate concessions in the cross-examination before us. These include not remembering the total duration of her appointment on 13 May 2020, not recalling which instruments were used for the shockwave treatment and whether or not she could recall the practitioner taking notes during the appointment.
3. Fourthly, we do not accept that the criticisms made of Patient A's evidence made by the practitioner. In our view, it is not appropriate to go over the very fine details of the Patient A's evidence looking for inconsistencies. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to:
understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies.
1. On the other hand, the manner in which the practitioner gave evidence was less persuasive than Patient A. He was from time to time unresponsive to questions, for instance when he was asked whether he was "intentionally coming across as a different identity to your real identity" in his communications with Patient A as "Leo" and "Ann". And he was unpersuasive when he said that he was not pretending to be someone else when he did so.
2. The practitioner agreed that he did not want his emails to Patient A prior to treatment "to come across from the physio service". And he was hesitant in his evidence at critical points, such as what he meant by one answer "the physio part was just incidental".
3. Given these concerns, we preferred the evidence of Patient A to that of the practitioner where their account of events varied.
4. Therefore, we find that on 13 May 2020 the practitioner massaged Patient A's breasts as alleged by the Commission in Particulars (6), (7), (8) and (10), and inappropriately attempted to remove Patient A's bra without clinical indication whilst she was lying on her back during the course of massage treatment.
5. These are serious allegations which we find established to the civil standard applying the principles Briginshaw v Briginshaw and the other authorities to which we have referred.
6. We turn now to a consideration of Complaint One.
Complaint One
Particular 1
1. We make the following findings.
2. On or around 1 May 2020, Patient A, a 28-year-old female Chilean nation, placed an advertisement on the online marketing platform Gumtree offering barista/coffee making services. In response to the advertisement, she was contacted by the practitioner who used the name 'Leo' and held himself out to be a 'digital marketing agent,' of whom the practitioner's business was a 'client.'
3. On 2 May 2020, Patient A received a Gumtree message from "Leo", admitted at the hearing to be the practitioner, stating:
I'm a digital marketing agent. We need three volunteers that wants to lose their cellulites. We specifically need want people with international background. In exchange for your time, you will receive a FREE cellulite reduction therapy package. (usually costs $1250) If you are interested let me know and I will send you the criteria.
1. After a response from Patient A asking for more details, the practitioner (again as "Leo") sent a Gumtree message to Patient A on 4 May 2020 stating:
Our client is Active Motion based in Chatswood and Ryde. They are expanding their services to the aesthetic space. The therapy is using radial Shockwave. We are looking for three people who has cellulites they want to lose. They must be of an international background who can give testimonials in their languages. Spanish, French, Portuguese or German. Here's detail of the clinic and service www.amphysio.com.au/shockwave-therapy.
1. After a further response from Patient A stating that she was from Chile, and a Spanish native speaker, another Gumtree message followed from the practitioner (again as "Leo") that same day stating:
Great if you are native Spanish. The therapy involves 4-6 weekly sessions at the clinic. At this point they are scheduled on Wednesdays. In return for the free therapy, we need you to give a scripted video testimonial in Spanish at the end of the program. How does it sound to you?
1. We pause to note that at the Tribunal hearing, the practitioner explained he was aware of the prohibition on the use of testimonials to advertise physiotherapy services in s 133(1)(c) of the National Law.
2. As to the link the practitioner provided to Patient A a link to his Practice website, (saying 'here's detail of the clinic and service amphysio.com.au/shockwave-therapy'), the practitioner accepted at the hearing that he was able to advertise his practice in the form of the website because of his position as a registered physiotherapist. The practitioner also accepted at the hearing that the link provided was to a page on his Practice website that was not specific to cellulite treatment, but included information on the use of shockwave therapy in physiotherapy treatment as well.
3. On 5 May 2020, the practitioner sent Patient A an email ostensibly from 'Ann,' the Practice receptionist. The email address was 'info@amphysio.com.au.' The email signature, that the applicant accepted was part of the branding that he had responsibility for, referred to 'Active Motion Physiotherapy and Health Clinics.' Immediately under this was a logo which read, 'I [love] being a physio.
4. Patient A attended consultations at the Practice where she received CRT from the practitioner on 6 and 13 May 2020. As will be seen, the practitioner also provided physiotherapy treatment through massage therapy on 13 May 2020.
The Commission's submissions
1. The Commission submits that Patient A was directed to attend the practitioner's clinic for the cellulite treatment. Patient A said that what made her trust the approach was that the link referred her to a physiotherapy clinic. Based on this, she was of the view that the person administering the treatment to her would be qualified. She agreed she did not know it was the applicant specifically who would be administering the treatment, but assumed whoever was providing the treatment would be qualified, based on the information provided to her. Specifically, in her evidence before the Tribunal, Patient A said she trusted that the treatment because it was being provided at a professional physiotherapy clinic.
2. The Commission submits that 'Health service' is defined in s 5 of the National Law to include:
the following services, whether provided as public or private services —
(a) services provided by registered health practitioners;
1. The Commission then goes on to rely on a statement of Walton J in Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [147]. Walton J observed in relation to the phrase 'in the practice of the profession' (in the context of pharmacy):
[147] The preposition "in" in the phrase does require a relevant connection between the conduct, the subject of a complaint, and the practice of pharmacy. Thus, Samuels JA used the word "necessary" in the aforementioned passage from [ Childs v Walton [1990] NSWCA 41 ].
[148] However, the word "conduct" is defined very widely in s 138(1) to mean "any act or omission". This must be wide enough to capture an act or omission of the plaintiff as a director of Hillmear in purchasing medications permitted by the wholesaler license of Hillmear, if, in the course of that conduct, the plaintiff's acts and omissions had the necessary connection to his practice as a pharmacist which he held or operated at the time of the requisite purchase. As Spigelman CJ described in [New South Wales Bar Association v Cummins [2001] NSWCA 284] (at [56]) the question is whether the acts were sufficiently connected to the actual practice.
[149] The word "practice" in the phrase is not defined in the National Law. Nor is the phrase itself. There appeared to be common ground that the word and the phrase were attended by some ambiguity. I consider that is an appropriate concession.
[150] The ordinary meaning of the word "practice", when read in the context of the phrase, and in the context of the profession of pharmacy, is the application of the principles and practices of pharmacy or the application of its ideas or methods.
(emphasis added)
1. Thus, the Commission submits that:
23 The approach of Patient A was by a physiotherapist, at a physiotherapy clinic, utilising the website and branding of the physiotherapy clinic. It had all the hallmarks of an approach by a physiotherapist, and was interpreted as such by Patient A.
24 The 'cold call' approach by a physiotherapist of a member of the public, to offer a free treatment in their physiotherapy clinic, because the member of the public was female and appeared to be of an international background (in line with the practitioner's marketing strategy), was inappropriate. The agreement sought and obtained by Patient A, that the practitioner provide free treatment using a shockwave and EMS machine in exchange for a testimonial in Spanish for advertising purposes, was not only inappropriate but in breach of s 133(1)(c) of the National Law.
25 The Tribunal would find the practitioner's conduct as pleaded in Complaint Three was improper or unethical, and find the practitioner guilty of unsatisfactory professional conduct.
1. The phrase "in the practice of the profession", while not so stated by the Commission, appears in s 139B(1) of the National Law, namely:
(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.
(emphasis added)
Practitioner's submissions
1. After referring to relevant provisions of the National Law, the practitioner notes in particular that "health profession" is defined in s 5 of the National Law to be the professions listed in (a) to (n) of the definition of "health profession". Physiotherapy is such a health profession, but the list does not include nutritionists, personal trainers, and persons in the cosmetic sphere such as beauticians.
2. Thus, it is submitted that providing cellulite reduction therapy (CRT) is not a regulated health profession. Beauticians provide it. This was the adduced evidence in the hearing. CRT does not require any special skill set. The practitioner's business partner, Ms Oliveria, who is not registered for a "health profession", provides CRT. The Tribunal has no power to discipline Ms Oliveria regarding her administering CRT.
3. No evidence was adduced in the Tribunal by the Commission to suggest providing CRT requires any skill set or is only administered by someone in a "health profession". Patient A gave evidence that she had received CRT before administered by a beautician.
4. It is accepted that the Tribunal has oversight and ought to regulate the services provided by the Respondent when he is practising as a physiotherapist, which is a "health profession", or if he is using his skills set or registration improperly. However, when he is providing CRT, the Tribunal does not have power to discipline him or regulate that conduct. Yes, he is providing a service but not a service associated with his health profession and relying on his skills as a regulated health practitioner; physiotherapy. It is a service offered as part of his wellness clinic; which is not regulated.
Consideration – preliminary issue as to the Tribunal's oversight of the practitioner's provision of CRT
1. These submissions raise a preliminary question in relation to Particulars (1) to (5) of Complaint One (Particular (6) being admitted by the practitioner) and to Particulars (1) to (4) of Complaint Two and Particulars (1) to (3) of Complaint Three, namely where a health professional provides services outside the usual practice of their profession.
2. A similar issue was considered by the Tribunal in Kirby v Dental Council of New South Wales [2017] NSWCATOD 64 (Kirby). The Commission had received a complaint from a dentist, Dr Andrew Green, alleging that a patient had informed him that she had been diagnosed with a basal cell carcinoma of the nose and had been seeing Dr Kirby, a dentist, for treatment. The complaint alleged that the treatment being performed by Dr Kirby was the administration of a substance called Cansema. [2]
3. Following a hearing on 18 December 2015, the Dental Council of New South Wales (Dental Council) decided to suspend Dr Kirby's registration as a dentist immediately. The Dental Council was satisfied that that action was required to protect the health and safety of the public. In oral reasons delivered that day, the Dental Council stated:
The documents produced by Dr White established in the minds of the delegates Dr Kirby was engaged in practices that went beyond the practice of dentistry. Without providing a full list here, their concerns with the apparent prescribing practices of Dr Kirby which included excessive procurement of scheduled medication beyond what would be needed in the course of practising dentistry. At the hearing on 15 December 2015 the delegates attempted to ascertain from Dr Kirby how and in what circumstances he used Cansema like substances which he had admitted using by topical application to the skin of individuals. Cansema has been described in the literature as an escharotic substance.
The answers given by Dr Kirby on that occasion left the delegates with great concerns about the use of this unregulated substance and were left with the view that continuation of this practice was a grave risk that the public. Dr Kirby informed the delegates that the use of this Cansema like substance occurred in various places in the local area including his own home to which his practice is attached.
1. On 27 January 2016, the Dental Council published its decision. Those reasons relevantly state that:
Among the written submissions made to the Council, Dr Kirby's solicitors had asserted that the conduct referred to in Dr Green's complaint was not undertaken by Dr Kirby in his capacity as a dental practitioner and that [Patient A] the patient referred to in the complaint was not his patient. It was said therefore that the conduct referred to in the complaint occurred outside the practice of dentistry.
. . .
One of Dr Kirby's submissions was to the effect that the Council did not have the power under the [National] Law to deal with Dr Green's complaint because that involved conduct which he said had occurred outside the practice of dentistry. . . .
What is not in dispute is that [Patient B's z file], which Dr White asked the employee to print into which he has annexed to his report, was located in the patient records of the practice. The delegates will henceforth refer to this electronic record as the record for [Patient B]. This said by Dr Kirby however that this is a private record and not related to his practice of dentistry.
The record for [Patient B] has information in it that is likely to be personal to [Patient B]. However, it also contains information which on its face appears to relate to dental treatment performed by Dr Kirby for [Patient B]. Also, on its face it refers to other individuals and their treatment. The word 'cansema' appears on this record. . . .
The delegates believe that [Patient B] was in fact the dental patient of the practitioner at the same time that a cansema like substance was being applied to [Patient B].
1. On 12 February 2016, the Dental Council held a review pursuant to s 150A of the National Law. At the conclusion of the review, the Dental Council decided that Dr Kirby's suspension be "lifted", and instead placed conditions on his registration.
2. On 22 September 2016, Dr Kirby filed an external appeal to the Tribunal. Relevantly for our purposes, in dismissing the appeal the Tribunal stated:
Secondly, the Tribunal does not consider that Dr Kirby now accepts, or ever accepted, that he crossed a professional boundary by treating the Cansema group patients in the manner that he did: that is applying the Cansema, taking photographs after its application, and giving the group members advice. The Tribunal considers Dr Kirby did blur the boundaries between professional and personal capacities and as at the time of the hearing believed that what he had done in relation to the Cansema group was entirely in a personal capacity and nothing to do with his practice as a dental health professional. Indeed, Dr Kirby told the Tribunal that, in his mind, when he applied Cansema to the group members, he did not consider that he was practising dentistry or providing a health service. Dr Kirby confirmed in cross examination on 7 October 2016 that that remained his view.
(emphasis added)
1. Dr Kirby's "position [was] and always has been that he was not practising dentistry at any time when he applied a Cansema like substance to the small group of people who met to use and discuss Cansema" (Kirby at [147]).
2. An appeal to Supreme Court of NSW was unsuccessful: Kirby v Dental Council of New South Wales [2018] NSWSC 1869). A further appeal to the Court of Appeal was similarly unsuccessful: Kirby v Health Care Complaints Commission [2021] NSWCA 138.
3. In other words, none of the Dental Council, the Tribunal, the Supreme Court and the Court of Appeal considered that considered that Dr Kirby's conduct in administering Cansema fell outside the practice of dentistry and therefore could not be reviewed for that reason.
4. There are similarities between Dr Kirby and the practitioner. Both conducted treatment which fell outside the practise of their health profession; both conducted those treatments of a patient/patients of their respective practices; both took some clinical notes. In the practitioner's case, he provided Patient A a link to his Practice website, saying 'here's detail of the clinic and service amphysio.com.au/shockwave-therapy.' That link led to the Practice website which was not specific to cellulite treatment, but included information on the use of shockwave therapy in physiotherapy treatment as well.
5. And the practitioner sent Patient A an email ostensibly from 'Ann,' the practice receptionist. The email address was 'info@amphysio.com.au.' The email signature, that the practitioner accepted was part of the branding that he had responsibility for, referred to 'Active Motion Physiotherapy and Health Clinics.' Immediately under this was a logo which read, 'I [love] being a physio.
6. At the essence of the practitioner's submissions is the suggestion that providing CRT is not a regulated health profession, being provided by beauticians provide it who do not require any special skill set, and in the practitioner's case Ms Oliviera provided the CRT. (We can immediately reject the submission that Ms Oliviera provided CRT, at least to Patient A, with whom we are concerned; the practitioner has admitted as that he performed the CRT on Patient A).
7. However, we consider that focusing on the nature of the service provided is the wrong approach. The point is that those services were provided by a physiotherapist at his practice.
Consideration – substantive issue as to as to whether the practitioner failed to conduct an appropriate initial assessment of Patient A
1. However, that conclusion begs the question as to whether the practitioner failed to conduct an appropriate initial assessment of Patient A.
The Commission's submissions
1. The Commission's position was based on Ms Powell's opinion, namely that:
… given [the treatment] was to be administered by [the practitioner], a registered physiotherapist, at a physiotherapy practice, in my opinion [the practitioner] was obliged to perform an appropriate physiotherapy assessment.
The practitioner's submissions
1. The practitioner on the other hand says he carries out a "full cellulite assessment of Patient A, [including] photographs [and] baseline measure".
2. The practitioner says that he:
did not see a need to carry out a general health, current medications and previous health medical history because she did not see me as a health patient with a medical condition.
1. The practitioner submits that the Commission's submission "fundamentally fails" to recognise key features of the evidence in this case being:
1. the Practice was also a wellness clinic;
2. the appointments on 6 and 13 May 2020 were for CRT and CRT is not a skill set associated with any "health profession" (as that is defined in the National Law);
3. the shockwave machines are used by beauticians for CRT, outside of the regulated industry: Patient A gave evidence her beautician in her home country used the machine for CRT and, at one point in her evidence Patient A stated, in relation to the machine, "anyone can use it"; and
4. the evidence regarding the physio app used for setting out exercises was that other non-registered staff members at the clinic (personal trainers and physiologists) used the exercise application.
1. Further, the practitioner submits that the Commission has not identified any law, rule, code of conduct, guideline or regulation prescribing an obligation on the practitioner to undertake an appropriate physiotherapy assessment in circumstances where he was carrying out CRT which is not skill set associated with a "health profession" and the practitioner provided CRT in a clinic that was also a "wellness clinic".
2. The practitioner further submits that the Tribunal should not rely on Ms Powell's opinion on this matter. This is for a range of reasons including but not limited to:
1. Ms Powell failed to acknowledge the context for the appointments of 6 and 13 May 2020;
2. Ms Powell has never performed CRT and has had no experience with it all. Ms Powell cannot provide an opinion on what the Respondent ought to have done in the in the context of him carrying out CRT;
3. Ms Powell stated the clinic was a physiotherapy practice but the clinic was also a Wellness clinic — a fact ignored, or at least overlooked, by Ms Powell;
4. the shockwave machines are regularly used in CRT and Patient A said the same: this is not a machine that requires the skill and expertise of a physiotherapist, a matter Ms Powell did not know;
5. the exercises on which Ms Powell relied as a basis for suggesting the appointment was a physiotherapy appointment, were administered by physiologists and personal trainers; neither of whom have a degree in physiotherapy;
6. there is no evidentiary foundation for Ms Powell to suggest the Respondent was carrying himself out as a physiotherapist on 6 and 13 May 2020 when he was performing CRT.
1. Finally, the practitioner submits that there is a real concern about the impartiality and objectivity of Ms Powell's opinion regarding the inadequacy of the practitioner's assessment in circumstances where:
1. Ms Powell was selective in the facts she relied upon: relying on the clinic being a physiotherapy practice but failing to acknowledge it was a wellness clinic or failing to acknowledge Patient A saw the Respondent for CRT;
2. Ms Powell did not acknowledge her lack of experience with CRT but gave opinions about how the Respondent's conduct fell significantly below the standard. Concerningly, Ms Powell did not state anywhere in her written report that she has no experience with CRT and effectively failed to put the parties and the Tribunal on notice of her being void of any experience regarding CRT. Her lack of experience was only elicited in cross-examination; and
3. Ms Powell, who has been a "peer reviewer" for the Commission since 1992, offered opinions about the practitioner's comments in his interview with Police and the practitioner's guilt when such opinions were not asked of her.
Commission's submissions in reply
1. We will only refer to the Commission's submissions in reply in these reasons where they provided some assistance to us.
2. There is no need to refer to the Commission's submissions in reply in relation to this Particular.
Conclusion
1. As noted, the practitioner positively states that he did not see a need to carry out a general health, current medications and previous health medical history because Patient A did not see him as a health patient with a medical condition. Rather, Patient A was seeing him for CRT.
2. We do not think that the practitioner's response is to the point. The practitioner is a registered health practitioner. It might be one thing to set up a separate operation as a wellness clinic, without the surroundings or trappings of a physiotherapy practice and making no reference to being a physiotherapist. But having identified a physiotherapy practice in his written communications with Patient A, and inviting her to attend the Practice, we do not consider it appropriate that the practitioner can "cherry pick" his way through his obligations as a registered health professional by taking off his physiotherapy "hat" and donning the "hat" of a provider of cellulite reduction treatment services in his physiotherapy treatment rooms, as was suggested by the practitioner's counsel in her cross-examination of Ms Powell.
3. Finally on this issue, we found the practitioner's submissions about Ms Powell's partiality and lack of objectivity to be overstated. That said, we do not accept her comments about the significance of the words used by the practitioner during the course of the ERISP interview as demonstrating some consciousness of guilt by the practitioner. But save for that matter, we accept her evidence.
4. Nevertheless, given Ms Powell's lack of experience in CRT, a matter acknowledged by her in cross-examination, we do not find Particular (1) established.
Particular 2
1. This Particular is admitted by the practitioner and accordingly we find it established.
Particular 3
1. We commence our consideration of this Particular by noting that the practitioner's evidence on this issue was as follows:
56. Given Patient A's disinterest in continuing the cellulite treatment, I thought another way to reengage her interest would be to see if I could help her with her left scapula (which was the area where Patient A identified she had pain).
57. I offered to have a look. I did a physical examination which included a range of motion assessment. I looked at her neck, arm and back to see what triggered the pain in the areas of her upper body. Based on observing her posture and the range of motion assessment, I was able to come to the diagnosis of Upper Cross Syndrome.
58. I accept the appointment shifted focus. But the primary purpose of the appointment was cellulite treatment.
59. Patient A was not seeing me for targeting her medical condition. Rather it was raised during the appointment and then I offered to help the pain.
60. Based on the assessments and excessive tension in her myofascial spiral line, myofascial release was chosen as a suitable therapy for her.
61. I accept this was the extent of my physical examination of Patient A. I accept I did not record the clinical history of her symptoms, previous medical history and other matters such as goals and expectations of this treatment. This was because I, perhaps mistakenly, considered this was a secondary part of my appointment with her to address the pain at that time.
62. My mind did not turn to the way I ordinarily carry out my assessment and examinations of patients that see me with medical conditions for physiotherapy.
1. Neither party made separate submissions directly on Particular (3).
2. We consider that the practitioner's own evidence on this matter is sufficient to establish this Particular and we find it so established.
Particular 4
1. Again, neither party made separate submissions directly on Particular (4).
2. However, we found the evidence given by the practitioner on this issue to be more persuasive. Given that Ms Powell's view was that, assuming the practitioner's version of events, complies with the accepted standard and he would have been able to make a diagnosis of Upper Crossed Syndrome, we do not find this Particular established.
Particular 5
1. Again, neither party made separate submissions directly on Particular (5).
2. The practitioner's own evidence on this issue is set out in [60], [61] and [62] of his statement is set out above). In his reply, the practitioner states that:
The [practitioner] denies he failed to discuss the necessary treatment options.
The [practitioner] admits he failed to discuss all treatment options but further says it was not necessary at that time given the nature of the appointment.
1. Given these matters, we find Particular (5) established. At best, the practitioner discusses one treatment option (being myofascial release), but the evidence may not even establish that. The practitioner's evidence is equivocal, being that myofascial release "was chosen" as a suitable therapy for Patient A. If that treatment was chosen by Patient A, then it would appear that that treatment option was discussed. But if it was chosen by the practitioner for Patient A, we would not have thought that the treatment option was discussed with Patient A.
2. In any event, we find that treatment options (plural) were not discussed with Patient A as alleged by the Commission.
3. We find Particular (5) established.
Particulars 6, 7, 8, 9 and 10
1. For the reasons already discussed, we accept Patient A's version of events and find these Particulars established.
Is unsatisfactory professional conduct established pursuant to s 139B(1)(a) of the National Law established?
1. Section 139B(1)(a) of the National Law provides:
(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.
1. Given that broadly we accept the expert opinion evidence of Ms Powell, and that there was no independent expert evidence relied on by the practitioner, we find that Particulars (2) (3), and (5) in combination constitute unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law.
2. We further find that each of Particulars (6), (7), (8), (9) and (10) individually each constitute unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law.
3. It is not necessary to consider whether unsatisfactory professional conduct is established pursuant to s 139B(1)(l) of the National Law.
Consideration of Complaint Two
The Commission's submissions
1. No specific submissions were provided by the Commission in relation to Complaint Two.
The practitioner's submissions
1. In summary, the practitioner submits that Complaint Two is "double jeopardy or, at the least. Is procedurally unfair and inequitable". This is said to be because:
42. It was impossible for the Respondent to have recorded the results of something he did not do, nor was he required to do. The Commission is suggesting that the Respondent failed to perform a physiotherapy assessment on 6 and 13 May 2020 and failed to adequately record the results of what he failed to perform.
43 The Commission is seeking to have two findings of UPC arising out of the exact same facts and circumstances. It is prosecuting him twice for the same facts. This is double jeopardy.
(emphasis as in original)
1. We consider this submission to be without substance.
2. We turn now to the Particulars of Complaint Two.
Particular (1)
1. For the reasons we gave in relation to Particular (1) of Complaint One, we find this Particular established.
Particulars (2) and (3)
1. As noted above, the practitioner:
1. admits Particulars (2)(a) to (i), and
2. admits Particulars (3) (a), (b), (c) and (e).
1. That leaves for determination Particular 3(d), namely that the practitioner failed to record the results of Patient A's general health.
2. As we are not satisfied that there is any probative evidence that the practitioner did so, we also find Particular 3(d) established.
3. Given these matters, we find Particulars (2) and (3) established.
Is unsatisfactory professional conduct established pursuant to s 139B(1)(a) of the National Law established?
1. Given that broadly we accept the expert opinion evidence of Ms Powell, and that there was no independent expert evidence relied on by the practitioner, we find that Particulars (1), (2) and (3) in combination constitute unsatisfactory professional conduct pursuant to s 139B(1)(a) of the National Law.
Consideration of Complaint Three
The Commission's submissions
1. The practitioner does not dispute the circumstances in which Patient A came to be at his clinic on 6 and 13 May 2020. The practitioner asserts that he was careful to not use his position as a physiotherapist in the approach of Patient A, and that his conduct was not 'so inappropriate' as to amount to unsatisfactory professional conduct.
2. At hearing, the practitioner explained he did so as he was aware of the prohibition on the use of testimonials to advertise physiotherapy services (in s 133(1)(c) of the National Law).
3. Patient A was directed to attend the practitioner's clinic for the cellulite treatment. Patient A said that what made her trust the approach was that the link referred her to a physiotherapy clinic. Based on this, she was of the view that the person administering the treatment to her would be qualified. She agreed she did not know it was the applicant specifically who would be administering the treatment, but assumed whoever was providing the treatment would be qualified, based on the information provided to her. Specifically, in her evidence before the Tribunal, Patient A said she trusted that the treatment because it was being provided at a professional physiotherapy clinic.
4. The approach of Patient A was by a physiotherapist, at a physiotherapy clinic, utilising the website and branding of the physiotherapy clinic. It had all the hallmarks of an approach by a physiotherapist, and was interpreted as such by Patient A.
5. The 'cold call' approach by a physiotherapist of a member of the public, to offer a free treatment in their physiotherapy clinic, because the member of the public was female and appeared to be of an international background (in line with the practitioner's marketing strategy), was inappropriate. The agreement sought and obtained by Patient A, that the practitioner provide free treatment using a shockwave and EMS machine in exchange for a testimonial in Spanish for advertising purposes, was not only inappropriate but in breach of s 133(1)(c) of the National Law.
6. For these reasons, the Commission submits that the Tribunal would find the practitioner's conduct as pleaded in Complaint Three was improper or unethical, and find the practitioner guilty of unsatisfactory professional conduct.
The practitioner's submissions
1. In relation to Particulars (1) and (3), the practitioner submits that:
75 … the [practitioner] approached Patient A for CRT. CRT is not a service provided by a "health profession".
76 Just as the Tribunal could not assert its powers over [Ms Oliviera] approaching persons on Gumtree for CRT; there was nothing improper about the [practitioner] doing the same in circumstances where he did not rely on or use his registration as a physiotherapist to solicit Patient A.
…
84 The Commission has not proven C3: P1 and P3, and the Tribunal, with respect, has no power to regulate what the [practitioner] does in terms of his approaching persons for CRT, in circumstances where the Respondent clearly did not use his registration as a physiotherapist to induce Patient A and CRT is not a regulated health service.
1. As to Particular (2), the practitioner submits:
67 …there is not a scintilla of evidence (objective or from Patient A's oral testimony) to suggest that when the [practitioner] directly solicited Patient A for CRT, he disclosed that he was a registered physiotherapist and did so to solicit or induce Patient A to the CRT. In fact, the [practitioner] used another name to avoid inducing Patient A on the basis of him being a registered physiotherapist and misleading her. That was his evidence.
68 The Commission relies on a link being sent to Patient A during the communications and the logo of the practice. But there is no evidence of what that link showed, the link was associated with the wellness clinic, and so was the logo.
69 There is no evidence adduced by the Commission of what the website looked like in 2020.
Conclusion
1. We have set out our findings on these issues at [141] to [145]. Given those findings, we are satisfied that the each of the Particulars of Complaint Three are established.
2. We find that the practitioner's submissions unpersuasive and lacking substance.
Is unsatisfactory professional conduct established pursuant to s 139B(1)(l) of the National Law established?
1. Section 139B(1)(l) of the National Law relevantly provides:
Unsatisfactory professional conduct of a registered health practitioner includes each of the following—
…
(l) Other improper or unethical conduct
Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
1. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in various cases including Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 at [47]; Health Care Complaints Commission v Shrimpton [2019] NSWCATOD 25 at [67]-[69] Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65 at [21] and following, and further considered in Health Care Complaints Commission v Konigson [2021] NSWCATOD 186.
2. In Konigson the Tribunal stated at [93]–[95]:
93. The meaning of the expression "improper or unethical conduct" in s 139B(1)(l) of the National Law was considered by the Tribunal in Health Care Complaints Commission v Kesserwani [2020] NSWCATOD 65. At [21] and following the Tribunal stated:
21. The words "improper" and "unethical" are not defined by the National Law. There is nothing in the language, the statutory context, or the scheme of the National Law which suggests that either word has any technical meaning, nor is a term of art. Both are ordinary English words. Giving a word its ordinary meaning does not, however, preclude the word deriving shades of meaning from its context and the syntax of the sentence in ways which are significant for the case in hand: Duffy v Da Rin [2014] NSWCA 270 at [30].
22. The Macquarie Dictionary offers several definitions of both words which include:
Improper
2. not in accordance with propriety of behaviour, manners, etc: improper conduct.
Unethical
1. contrary to moral precept; immoral.
2. in contravention of some code of professional conduct.
23. The meaning of the words "improper" and "unethical" were considered in a different statutory context in Office of Local Government v Toma [2015] NSWCATOD 21. After quoting from the discussion of the term "impropriety" by the High Court in R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1, the Tribunal wrote:
Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both.
24. That interpretation was adopted by the Tribunal in relation to the meaning of those words in s 139B(1)(l) of the National Law in Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [53].
25. The use of the word "or" in s 139(1)(l) suggests that the words unethical and improper should be read disjunctively and do not carry the same meaning. However, their meanings may overlap. While not necessary to reach a concluded view arguably a broader class of conduct is caught by the term improper conduct, than unethical conduct.
26. In our view, the test of "unethical conduct" has both objective and subjective elements. The word "unethical" connotes moral opprobrium. The term "unethical conduct" implies that the conduct concerned not only objectively falls short of a certain professional standard but that the person involved has performed subjectively in a way that is morally dubious or unprincipled and is therefore reprehensible on that ground. It is unnecessary here to provide exhaustive categories of conduct that may be unethical. Conduct may be unethical if it is constituted by a deliberate flouting of significant professional standards. Reckless disregard of, or wilful blindness to, significant ethical standards or principles may also constitute unethical conduct. All will depend on the relevant circumstances.
94 It may be that the phrase "improper or unethical" is a hendiadys in the sense that it is a phrase which invokes the application of values, the content of which derives no elucidation from reference to synonyms, nor from a supposed differentiation from other similar words: see Cooper v The Owners – Strata Plan No 58068 [2020] NSWCA 250 per Basten JA at [24] to [27], in particular at [25]. His Honour was considering the meaning of the expression "harsh, unconscionable or oppressive" which appears in s 139(1) of the Strata Schemes Management Act 2015 (NSW). His Honour stated:
Thirdly, the phrase is better understood as a triune, three words conveying a single criterion. It is towards the other end of a scale from the hendiadys "just and equitable". It invokes the application of values, the content of which derives no elucidation from reference to synonyms, nor from a supposed differentiation from other similar words such as "unjust".
1. It is not necessary to decide this matter, as are satisfied that, as in Konigson, the conduct of the practitioner we have found established in each of Particulars (6), (7), (8), (9) and (10) individually is unethical conduct.
2. We pause to note that whether conduct is improper or unethical is an objective test: Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]-[60].
3. As the Tribunal noted in Health Care Complaints Commission v Akawee [2023] NSWCATOD 115 at [40], in addition to the above principles, the following principles are also relevant:
1. the relevant ordinary meanings of improper include not in accordance with truth, fact reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong: Liu at [53];
2. in professional disciplinary proceedings, impropriety means a breach of the standards of conduct that would be expected of a person in the position of the practitioner: Liu at [54];
3. it is not necessary to state an exhaustive definition of improper or unethical conduct as it encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of practitioners, in that it has a tendency to bring the profession into disrepute or reduces public confidence in the profession: Liu at [55];
4. to make a finding of improper or unethical conduct, it is not necessary for the Tribunal to be satisfied that the conduct is intentional: improper conduct does not need to be intentional and includes conduct not in conformity with standards of professional conduct: Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [19]-[21]
5. impropriety does not depend on the practitioner's consciousness of impropriety, it consists in a breach of the standards of conduct that would be expected of a person in the position of the practitioner by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case: Health Care Complaints Commission v Nguyen [2018] NSWCATOD 168 at [47];
6. codes approved by the National Board are admissible evidence of what constitutes appropriate professional conduct or practice for the profession (National Law, s 41) and may be relevant to whether conduct is improper or unethical.
1. Applying these principles, we have no hesitation in finding that the facts the subject of Complaint Three when considered cumulatively constitute unsatisfactory professional conduct established pursuant to s 139B(1)(l) of the National Law.
Consideration of Complaint Four
1. Section 139E of the National Law, a NSW provision, 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. The Tribunal stated in Health Care Complaints Commission v Le [2021] NSWCATOD 104 that:
71. The principles relating to findings of professional misconduct were stated in Health Care Complaints Commission v Joffe [2018] NSWCATOD 121 at [69] to [75] which we paraphrase as follows:
(1) Whether and to what extent the misconduct of the respondent constitutes professional misconduct depends upon whether it is so serious in the aggregate as to justify suspension or cancellation of registration. This involves a consideration of the circumstances in which suspension or cancellation may be justified, albeit that such protective orders may not necessarily, as a matter of discretion, be made: Health Care Complaints Commission v Simpson [2018] NSWCATOD 49 at [55];
(2) Guidance as to the circumstances in which suspension or cancellation of registration are appropriate is to be found in the judgment of Meagher JA in the NSW Court of Appeal in Health Care Complaints Commission v Do [2014] NSWCA 307 ("Do") (Basten and Emmett JJA agreeing). His Honour stated:
[35] The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
(3) Professional misconduct refers to conduct which is sufficiently serious to justify suspension or cancellation of the respondent's registration. The determination of whether conduct amounts to professional misconduct has, as its starting point, an objective assessment of the respondent's conduct against the standard of conduct reasonably expected of an equivalent practitioner. Importantly, the gravity of professional misconduct is not to be measured by reference to the worst case but by the extent to which the conduct departs from 'proper' or 'reasonably expected' standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 638.
(4) Whether conduct is sufficiently serious to warrant suspension or deregistration is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [82];
(5) As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186, "[t]he 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". His Honour further notes:
[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. As the Tribunal accepted in Health Care Complaints Commission v Richards [2024] NSWCATOD 37 at [103]:
1. professional misconduct is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation: Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19];
2. whether the degree of seriousness is sufficient to warrant suspension or cancellation is a matter of degree and judgment: Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [99]; and
3. in assessing its gravity, the offending conduct is not to be measured by reference to the worst cases but by reference to the extent to which it departs from proper standards: Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 638.
1. We have found that on or around 13 May 2020, the practitioner performed massage treatment on Patient A in an inappropriate manner and without clinical indication when he massaged the sides of her breasts, performed that massage in an inappropriate manner and without clinical indication and repetitively moved his hands up and down her breasts and inappropriately placed his face near Patient A's breasts without clinical indication during the course of that massage treatment.
2. That is clearly unacceptable conduct, and conduct which is serious enough to warrant suspension or cancellation of the practitioner's registration.
3. In the circumstances, we find Complaint Four established.
Conclusion
1. For the above reasons, we have found each of the four complaints established.
2. The proceedings will be listed for directions in relation to the Stage 2 hearing.
Orders
1. The Tribunal orders:
1. Particulars (2), (3), (5), (6), (7), (8), (9) and (10) of Complaint One are established.
2. Complaint One is established, in that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW).
3. Particulars (1), (2) and (3) of Complaint Two are established.
4. Complaint Two is established, in that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW).
5. Particulars (1), (2) and (3) of Complaint Three are established.
6. Complaint Three is established, in that the respondent is guilty of unsatisfactory professional conduct under s 139B(1)(l) of the Health Practitioner Regulation National Law (NSW).
7. Complaint Four is established, in that the respondent is guilty of professional misconduct under s 139E of the Health Practitioner Regulation National Law (NSW).
8. The matter is to be listed for directions for a Stage Two hearing.
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Endnotes
1. We note that those were not or the words of Tobias JA, that was his Honour quoting from Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at [41(d)]. Nevertheless, we accept the principle as correct.
2. Footnote [1] in Kirby relevantly states that "a publication of the Department of Health and Therapeutic Goods Administration (TGA) of 9 December 2013, Black Salve, Red Salve and Cansema, states that each of Black Salve, Red Salve and Cansema is a product containing an active ingredient called sanguinarine, which comes from Bloodroot (sanguinaria canadensis). These products have been sold in Australia as an alternative treatment for cancer including skin cancer. The TGA is advising consumers against purchasing or using Black Salve, Red Salve and Cansema products. The TGA is not aware of any credible, scientific evidence that these products can be used to diagnose cancers. In fact, the evidence shows they will cause skin irritation regardless of whether any malignancies present. These products are corrosive salves. They essentially burn off layers of the skin and surrounding normal tissue. They can destroy large parts of the skin and underlying tissue,and leave significant scarring.
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
23 December 2024 - Decision date amended
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Decision last updated: 23 December 2024