New South Wales Court of Appeal CITATION : Sinha v Health Care Complaints Tribunal [2001] NSWCA 206 FILE NUMBER(S) : CA 40124/01 HEARING DATE(S) : 22 June 2001 JUDGMENT DATE : 5 September 2001 PARTIES : Dr Shailendra Sinha (Appellant) Health Care Complaints Commission (Respondent) JUDGMENT OF : Hodgson JA at 1; Ipp AJA at 15; Fitzgerald AJA at 16 LOWER COURT JURISDICTION : Medical Tribunal of New South Wales LOWER COURT 40001/2000 FILE NUMBER(S) : LOWER COURT Medical Tribunal of New South Wales JUDICIAL OFFICER : COUNSEL : P Byrne SC with E Pike (Appellant) G Furness with D Swan (Respondent) SOLICITORS : D I Brown (Appellant) Health Care Complaints Commission (Respondent) CATCHWORDS : MEDICAL PRACTITIONERS - Professional discipline - whether error of law on part of tribunal - where finding of professional misconduct - where sexual contact between doctor and patient - whether correct standard of proof applied - whether requirements of procedural fairness complied with - whether details of tribunal's decision inadequate - where significant conflict of evidence - Medical Practice Act 1992, s165. LEGISLATION CITED : Medical Practice Act 1992 Bannister v Walton (1993) 30 NSWLR 699 CASES CITED: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Rosenberg v Percival (2001) 75 ALJR 734 State Rail Authority v Earthline Constructions Pty Limited (in liquidation) (1999) 73 ALJR 306 DECISION : 1. Appeal allowed with costs; 2. Decision of tribunal set aside; 3. Rehearing ordered; 4. Costs to the proceedings below to be paid by the unsuccessful party at the rehearing. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40124/01 HODGSON JA IPP AJA FITZGERALD AJA Wednesday 5 September 2001 SINHA v HEALTH CARE COMPLAINTS COMMISSION Facts The Medical Tribunal ordered that the appellant's name be removed from the Register of Medical Practitioners on the basis that the Tribunal was satisfied pursuant to the Medical Practice Act 1992 that the appellant doctor had been guilty of professional misconduct. The Tribunal found that the doctor had masturbated a patient during a consultation and thereafter been involved with the patient in a consensual sexual relationship. The doctor appealed on questions of law to the Court of Appeal. Held per Hodgson JA, Ipp AJA agreeing A. Factual Errors The Tribunal made a finding of fact which was not justified by the evidence. Further, the Tribunal relied on a witness' evidence for a finding which that evidence neither expressed or supported. B. Balance of Probabilities Where a matter is to be decided on the balance of probabilities, and where three rational possibilities exist, it is particularly conducive to error to reject the possibilities one by one. per Fitzgerald AJA, Hodgson JA and Ipp AJA agreeing C. Standard of Proof The Tribunal applied the correct standard of proof. D. Procedural Fairness Whether the doctor's notes relating to the patient were inadequate and the significance of any inadequacy were plainly in contest. It was open to the Tribunal to make findings according to its own view of the evidence. E. Inadequacy of Details of Tribunal's Decision The Tribunal failed to deal with the significant conflict between the evidence of the patient (which it accepted) and the uncontradicted evidence of the doctor's secretary. Pursuant to s165 of the Medical Practice Act 1992 the Tribunal's reasons were therefore defective. Rosenberg v Percival (2001) 75 ALJR 734, State Rail Authority v Earthline Constructions Pty Limited (in liquidation) (1999) 73 ALJR 306 referred to. Orders 1 Appeal allowed with costs. 2 Decision of the Tribunal set aside. 3 Rehearing ordered. 4 Costs of the proceedings below to be paid by the unsuccessful party at the rehearing. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA40124/01 HODGSON JA IPP AJA FITZGERALD AJA Wednesday 5 September 2001 SINHA v HEALTH CARE COMPLAINTS COMMISSION JUDGMENT 1 HODGSON JA: The circumstances relating to this appeal are set out in the judgment of Fitzgerald AJA, with which I agree. 2 The practitioner's secretary, Ms. Fleming, gave evidence, not challenged in cross-examination, to the following effect. Over the many years during which the complainant was the practitioner's patient and Ms. Fleming was the practitioner's secretary, the patient was not generally the last patient to be seen by the practitioner on any day, the patient did not dress provocatively, the patient was not kept waiting for long periods, the patient was never still with the practitioner when Ms. Fleming left for the day, the patient always made a further appointment (where necessary) to suit her own program, and the patient was always charged for the consultation, except on one occasion namely 24 August 1982. Also, the door of the practitioner's consulting room was never locked, and the consulting room was linked to the examination room by a door that was left open; and it was Ms. Fleming's practice on occasions to knock on the consulting room door and walk into the room. Also, there was never anything untoward in the appearance or behaviour of either the patient or the practitioner after the consultations. Also, Ms. Fleming did not recall the patient ever being alone with the practitioner after the practitioner had seen one or other of the patient's children. 3 That evidence was starkly inconsistent with the version of the patient's evidence recited by the Tribunal in its judgment, and which the Tribunal expressed itself as having accepted in substance. Ms. Fleming's evidence was of vital relevance to its decision. It was therefore incumbent on the Tribunal to say whether it accepted these aspects of Ms. Fleming's evidence, and if so, why it nevertheless still accepted the complainant's evidence in substance. In my opinion, it did not satisfy the requirement to give reasons merely to say that there were inconsistencies in the patient's evidence and that her evidence was accepted as to the substance of her complaints, and to remark that they did not "find that there was any impracticability in the practitioner conducting himself in the manner described and [Ms. Fleming] remaining in total ignorance". 4 Accordingly, I agree with Fitzgerald AJA that there was a breach of the requirement of s.165 of the Medical Practice Act that the Tribunal give reasons for its decision. In my opinion, there is a substantial risk that a miscarriage of justice has resulted, inter alia by reason of some other matters, which could not themselves be a ground for overturning the Tribunal's decision, but which have caused me very serious concern. 5 These matters relate particularly to the way the Tribunal approached the ultimate question that it had to decide. In my opinion, there were broadly three possibilities suggested by the evidence: first, that there was indeed a long history of sexual practices occurring between the patient and the practitioner; secondly, that the patient was telling deliberate and malicious lies; and thirdly, that the sexual relationship between the patient and the practitioner was a fantasy invented by the patient many years ago, which by about 1996 the patient had come herself to believe in. 6 The third possibility was not in my opinion fanciful. It seems clear that the patient had been obsessed over many years with the practitioner, and it seems also that in the 1970s the patient was highly insecure and depressed, and had agreed with her husband that both were free to have sexual relationships outside their marriage. In my view, it is conceivable in those circumstances that the patient could have fantasised a sexual relationship with her medical practitioner, and without malice against the practitioner asserted the existence of such a relationship to her husband and her friend. Then, over the years, the patient could have come to believe this fantasy, as surmised by Dr. Phillips. 7 The Tribunal was entitled to reject that possibility, and it did so; and no appeal applies from such a decision of fact. However, I am troubled by that rejection, for two main reasons. 8 The first is that the rejection appears to have been based inter alia on two serious factual errors. 9 The first of these is a reason given for discounting the weight of Dr. Phillips' evidence, namely "that the plaintiff had seen the practitioner on a vastly greater number of occasions than is reflected in" the Health Insurance Commission figures. The Health Insurance figures showed the following numbers of consultations in each of the years from 1984 to 1997 inclusive: 30 (1984), 6 (1985), 5 (1986), 7 (1987), 8 (1988), 1 (1989), 0 (1990), 3 (1991), 5 (1992), 0 (1993), 5 (1994), 4 (1995), 4 (1996), 1 (1997). The only errors in those figures supported by the evidence were that there appear to have been seven consultations rather than five in 1986, two consultations rather than zero in 1990, and six consultations rather than zero in 1993. Those discrepancies plainly do not justify the view expressed by the Tribunal. 10 Secondly, the Tribunal correctly noted that Dr. Phillips concluded, on the balance of probabilities, that the patient demonstrated "pseudologia fantastica", namely a psychiatric disturbance based on a fantasy that has become reality for the person. The Tribunal subsequently stated that another psychiatrist, Dr. Wong, did "opine that the patient was not suffering from a personality disorder nor was she obsessive, impressionable, delusional, and subject to fantasies". However, plainly a positive opinion from Dr. Wong that the patient was not delusional or subject to fantasies required a conclusion by her that the patient was either telling the truth or deliberately lying, and plainly Dr. Wong did not express an opinion on that. In fact, all that Dr. Wong did in relation to the question of whether the patient was delusional or subject to fantasies was to say that she did not form a view that this was the case and did not detect symptoms indicating that this was the case. This is very different from expressing a positive view that the patient was not delusional and not subject to fantasies; and contrary to the Tribunal's statement, Dr. Wong did not express such a view. 11 The second matter that causes me particular concern in the way in which the Tribunal dealt with these three possibilities is that they rejected the third possibility before proceeding to consider which of the other two possibilities was established on the balance of probabilities. That procedure, namely rejecting one rational possibility independently of making a final decision on the balance of probabilities, runs a severe risk of distorting the question for decision by a tribunal. 12 I will illustrate this by giving a mathematical example. Suppose that there are three possibilities A, B and C, and that the tribunal, if it expressed its view of the probability of each of them mathematically, would put the respective probabilities at 0.4 for possibility A, 0.25 for possibility B and 0.35 for possibility C. If the tribunal then rejects possibility B because it is the most improbable, and thereafter disregards it, the tribunal might then conclude that possibility A is made out, because its probability, as between A and C, is over 0.53. 13 My concern about this matter is similar to the concern expressed by Fitzgerald AJA, when he remarked to the effect that the Tribunal may have focussed too much on the question of whether the patient was telling deliberate lies, as distinct from the question whether it was satisfied on the balance of probabilities that the practitioner had been guilty of professional misconduct. In a case such as the present, where there are powerful considerations weighing against each of a number of rational possibilities, it is in my opinion particularly conducive to error to reject possibilities one by one. 14 For these reasons, as well as those advanced by Fitzgerald AJA, I agree with the orders that he proposes. 15 IPP AJA: I agree with Hodgson JA and Fitzgerald AJA. 16 FITZGERALD AJA: On 16 February this year, the Medical Tribunal ordered that the name of the appellant practitioner be removed from the Register of Medical Practitioners for New South Wales and that he not apply for a review of that decision for a period of 3 years. The order for removal was made effective from 16 March 2001 on the practitioner's undertaking not to practise medicine in the intervening period. 17 The Tribunal was constituted by Judge J. C. McGuire, Dr H. Burns, Dr J. Mair, and Dr P. Tucker. All members of the Tribunal except Dr Tucker were "comfortably satisfied, on the balance of probabilities" that the practitioner masturbated a patient in or about September 1975 during a professional consultation, and that thereafter they engaged in a personal and sexual relationship during professional consultations throughout a period of over 20 years from September 1975 to October 1996. Dr Tucker was satisfied, but not "comfortably satisfied", of those matters "on the balance of probabilities". 18 On the basis of its conclusions, the Tribunal found that the practitioner had been guilty of professional misconduct within the meaning of s 37 of the Medical Practice Act 1992 in that he had demonstrated a lack of adequate skill, judgment or care in the practice of medicine and had been guilty of improper or unethical conduct related to the practice of medicine. The Tribunal decided that the practitioner's "gross breaches of the standards required of a medical practitioner which involved numerous instances of misconduct over a very prolonged period" required his removal from the register of medical practitioners. 19 The practitioner has appealed to this Court. There is no challenge to the Tribunal's orders if its findings stand. 20 The patient was born on 22 July 1948. She is married and has two adult children. According to her evidence, she suffered sexual abuse as a child, abduction and threat of rape as a teenager and attempted rape when she was 16. She was married and gave birth to her first child when she was 17 and to her second child when she was 18. Initially, her husband drank to excess and was violently abusive. By the mid-1970s, she and her husband had agreed that each could have other sexual partners without recrimination and they did so. However, they remained married and living together. The patient used marijuana on a frequent basis between about 1975 and 1987 and at one time believed, incorrectly according to the Tribunal, that she was addicted. 21 The patient first came under the practitioner's care while she was in hospital in the mid-1970s. After she left hospital, she consulted him at his rooms. There is no suggestion that that was inappropriate. Her evidence was that she was at the time physically unwell, frightened and traumatised and had experienced panic attacks and hyperventilation. Thereafter, the practitioner treated her and her children over an extended period. The Tribunal said: - "During the course of the 20 years she attended upon him, he treated her for a variety of conditions, in particular migraine and tetany. He had her admitted to hospital from time to time and referred her to a number of other practitioners". 22 On the patient's evidence, her first sexual contact with the practitioner occurred not long after her initial visit to his rooms. In the course of a consultation, he masturbated her to orgasm under the guise of a medical procedure. She later questioned his conduct in a telephone call during which he asked her to return to his rooms. She did and they had sexual intercourse. Thereafter, they regularly engaged in fellatio and sexual intercourse. The last act of sexual intercourse occurred in October 1996. Until a few years earlier, when their sexual contact began to diminish, the patient said that they engaged in sexual activity almost every time they met. 23 The practitioner is 65 years old. He and his wife were married in 1964 and have four adult children. He is highly qualified and practiced as a specialist physician for more than 30 years until the Tribunal's decision. He enjoyed professional and academic eminence and an international reputation as an authority on the treatment of diabetes. Referees attested to his excellent character and personal and professional reputation. His wife and his secretary-receptionist, Ms Fleming, whom he had employed since 1973, both gave him unqualified support. As the Tribunal noted, he did not waver in his categorical denial of any impropriety with the patient. 24 The Tribunal was satisfied that the evidence presented it with a choice of two possibilities, namely, a "malicious lie [by the patient] designed to damage the practitioner" or that she was telling the truth. It decided "that she gave an essentially accurate and reliable account", which it accepted. 25 Understandably the practitioner is deeply distressed by the Tribunal's decision, and if it is wrong he has suffered a grave injustice. However, the Court does not have a general power to review the Tribunal's findings. By virtue of s 90(1)(a) of the Act, the practitioner's only appeal is against "a decision of the Tribunal with respect to a point of law". Although a narrower view might perhaps have been taken, the respondent Commission accepted (subject to a qualification referred to later) that s 90(1)(a) entitles the practitioner to appeal on the basis of any error of law which the Tribunal made in the course of reaching its decision: cf Bannister v Walton (1993) 30 NSWLR 699. 26 The practitioner's notice of appeal contains 8 grounds. Those grounds of appeal and the practitioner's written submissions were not properly limited in accordance with s 90(1)(a) of the Act. The difficulties which confront an innocent person charged with sexual misconduct (which is of its nature private) does not enlarge the Court's role, which is restricted by Parliament. Matters such as the seriousness of the patient's allegations, the possibility of false accusations, the difficulty of responding to them, and the catastrophic consequences of the decision for the practitioner were matters for the Tribunal to consider in its deliberations. If the Tribunal did so - as it says it did - the Court could not properly set aside its decision merely because "…there is no evidence from an independent source which supports the correctness of the complaint and …it is categorically denied by the practitioner of outstanding reputation against whom it is made", or if the Court considered the Tribunal's decision "unreasonable". 27 The practitioner's oral submissions acknowledged the Court's limited function, and his case in this Court was confined to the following three arguments: namely, that: (i) the Tribunal did not apply the correct burden and standard of proof; (ii) the Tribunal did not accord the practitioner procedural fairness; & (iii) the Tribunal did not comply with s165 of the Act. 28 There is no substance in the first point. The practitioner's argument was based on comments in which the Tribunal noted the difficulty which the practitioner shared with others against whom allegations of sexual impropriety are made in defending himself against those allegations. However, the Tribunal plainly recognised that the Commission was required to prove the allegations against the practitioner and expressly acknowledged the standard of proof applicable, which it correctly described in accordance with authority. The comments relied on by the practitioner, read as they must be in context, plainly do not indicate that the Tribunal acted on some different basis. 29 The practitioner's second point does not necessitate detailed consideration of the Tribunal's procedure, which was apparently in accordance with its usual practice. However, it might be doubted whether the clarity and efficiency of the proceedings was increased by the omission to identify specific issues at the beginning of the hearing or the tender (or partial tender) of wide-ranging reports containing opinions on a variety of sometimes inappropriate issues. 30 The Commission tendered a report (or part of a report) by a specialist physician, Dr Childs to prove, somewhat superfluously perhaps, that the practitioner's peers would disapprove if he had engaged in the conduct alleged against him. Dr Childs went much further, and gratuitously offered opinions favourable to the practitioner indicating an opinion that his "medical reports and records…are detailed and comprehensive and go far in supporting his rebuttals of [the patient's] allegations regarding any unethical professional conduct towards or with her". 31 The practitioner also relied on the evidence of a psychiatrist, Dr Jonathan Phillips, who included in his opinions his view that the practitioner's "..notes are thorough and his letters attest to a proper clinical interest in [the patient's] problems". According to Dr Phillips, in his extensive experience medical practitioners who engage in sexual improprieties with patients frequently have poor clinical records in relation to those patients. 32 The Tribunal made clear during the hearing that it had a different, unfavourable view of the practitioner's clinical records and, in its decision, expressed the "firm opinion that the notes that were examined in the course of the practitioner's cross-examination.. demonstrated a notable lack of detail which the Tribunal found to be of major significance". 33 The adequacy of the practitioner's notes and the significance of any inadequacy were plainly in contest, the Tribunal's disinclination to accept the evidence on those issues which was favourable to the practitioner was foreshadowed during the hearing, and it was open to the Tribunal to act on its own assessment of the evidence, including the practitioner's cross-examination on his clinical records, in preference to the opinions of Dr Childs and Dr Phillips, and to make the findings which it did. The course adopted was not procedurally unfair. 34 Section 165 of the Act, which provided the basis for the practitioner's final argument, provides: 165 Tribunal to provide details of its decision (1) The Tribunal must provide a written statement of a decision on an inquiry or appeal to the complainant, to the practitioner concerned and to the Board, and must do so as soon as practicable after the decision is made (bearing in mind the public welfare and seriousness of the matter). (2) The statement of a decision must: (a) set out any findings on material questions of fact, and (b) refer to any evidence or other material on which the findings were based, and (c) give the reasons for the decision. (3) The Tribunal may also provide the statement of a decision to such other persons as the Tribunal thinks fit. (4) The Board may provide a copy of the statement of a decision provided to it under this section to such persons as the Board thinks fit, unless the Tribunal has ordered otherwise. 35 The Commission submitted that a decision by the Tribunal will not always be set aside when s 165 is not complied with. Assuming that to be so, the non-compliance asserted by the practitioner related to a central issue in the proceedings, and a critical aspect of the Tribunal's decision. 36 Reference has earlier been made to the Tribunal's opinion that the patient was either maliciously lying or telling the truth and that her account was "…essentially accurate and reliable..". At this point, it is desirable to describe what she said in a little more detail. 37 The patient acknowledged that, with the possible exception of the first occasion when he masturbated her, her sexual relationship with the practitioner was entirely consensual. She said that she was impressed by his status and flattered by his attention and compliments and his willingness to discuss his early life and personal and domestic affairs with her. He told her of family problems and of personal difficulties, including an investigation by the Commissioner of Taxation. She wore feminine clothes, attractive underwear and high heels at his request. She appeared to consider that, over time, their relationship developed into one of mutual affection. She described him as the only doctor who understood her. 38 On the patient's evidence, she and the practitioner had dinner only once and met once for coffee. On two occasions, he visited her and engaged in sexual activity with her at her home. Infrequently, they met and participated in sexual activity in the back of his car. Almost all sexual contact was at the practitioner's rooms. Twice they had sexual intercourse in his rooms at night. However, most of her attendances at his rooms were during business hours in accordance with appointments made well in advance although he sometimes telephoned her and asked her to come. Often, she was his last or second-last patient for the day and sexual activity occurred after Ms Fleming left. When the patient took her children to the practitioner for treatment, they later waited in the reception area while their mother and the practitioner engaged in sexual activity. The Tribunal said: - "During the first few years, when [the patient] visited the practitioner's rooms without making an appointment following a request from the practitioner, she was not charged a fee, but subsequently that practice ceased." 39 The patient did not mention her relationship with the practitioner to other medical practitioners who treated her during that period, including a psychiatrist, Dr Edwards, to whom she was referred after each of two life-threatening rail accidents in which she was involved. However, she told her husband and confided in her closest friend, Ms Theresa Gordon. 40 The patient's husband and son each gave evidence and the Tribunal regarded them as "impressive witnesses". The patient's husband said that she discussed the initial masturbation episode with him and continued to tell him about her sexual activity with the practitioner. He noted that she visited the practitioner when she was not sick and, prior to visiting the practitioner, would change into more attractive and erotic clothing. The patient gave evidence that, in the late 1980s, she had noticed a bandage around one of the practitioner's thighs and he had told her that an injury to his leg had required stiches. The patient's husband gave evidence that his wife had told him about a bandage worn by the practitioner. 41 The patient's son gave evidence that, when he was taken to the practitioner's rooms as a child, he would be required to wait for 15-30 minutes in the reception area after he had been treated while the patient remained with the practitioner. He also recalled an occasion when he visited his parent's unit unannounced and the practitioner was present and other occasions when the practitioner telephoned the patient at home. 42 Ms Gordon, who was not required for cross-examination, gave a statement in which she described the patient's accounts of her intimacy with the practitioner over a period of approximately 20 years. 43 The Tribunal found "a consistency" between the evidence of the patient, her husband and son and Ms Gordon, but recognised "the possibility that what each of [the others] said could have been a mere reflection of lies told by the patient." The Tribunal said: - "If the patient's account is a fable designed to harm the practitioner, it follows that she commenced concocting her account when she initially told her husband and best friend of the relationship some 20 years ago. It further means that over a period of many years she played out that concoction by dressing in the lingerie and underclothing observed by her husband, and by reporting further sexual encounters to him and to her best friend" 44 The patient explained why she complained of the practitioner's conduct after a relationship of so many years. She gave evidence that, in February 1997, a few months after her last sexual activity with the practitioner, she read books "When Ministers Sin" and "Sex in the Forbidden Zone" and came to realise that the practitioner had exploited her vulnerability as a victim of childhood sex abuse and that their relationship had been improper. In the words of the Tribunal: - "She became aware that she had been involved in a relationship which had broken the bounds of a normal doctor and patient relationship. In succumbing to that she had allowed herself to be in a position where she didn't have a voice. As a result of what she learned, she wanted to commence healing - to prevent some other women suffering." Following her reading that literature she realised where the appropriate line was to be drawn. Her account clearly reflected an adoption of many of the phrases and expressions used in those books. Shortly thereafter she had to go to the hospital due to hyperventilation. There she saw a sexual abuse counsellor. A local practitioner, Kathy Perry, referred her to a psychiatrist, Dr Wong, who has been treating her since that time. She expressed her anger to Dr Wong at the practitioner's treatment of her. Having discussed her experiences with Dr Perry, she decided to go to the Health Complaints Unit." 45 The Tribunal noted the patient's evidence that, after her relationship with the practitioner ceased and subsequent treatment from a general practitioner, Dr Kathy Perry, and a psychiatrist, Dr Wong, "there has been a substantial improvement in her health which she describes as 'fine". The Tribunal continued: - "She no longer suffers from migraine, irritable colon, asthma, nightmares or insomnia, conditions from which she suffered over the preceding 20 years". 46 Faced, as it saw it, with a choice between truth and malicious lies by the patient, the Tribunal considered that a " careful assessment and scrutiny of the [patient's] account was necessary" and said that "a thorough examination of the material said to be supportive of her account was undertaken". The Tribunal noted "some inconsistencies in her evidence", including "discrepancies and inaccuracies between what the patient said with regard to some details of the practitioner's family and family affairs" and "inaccuracies in her description of the practitioner's motor vehicles". However, it considered that "it would be unrealistic to expect a witness to give an account of events spanning twenty years, not to demonstrate some discrepancies." Reference was also made to the patient's account of the frequency of her visits to the practitioner. The Tribunal said: - "Figures are available indicating claims on Medicare during part of a twenty year period. The patient conceded that having seen the Medicare printout her original estimate of the frequency of her attendances was incorrect. If, however, she had been attending when no charge was made, it is clear that the Medicare figures do not accurately reflect the true position." 47 The Tribunal was satisfied that the patient "was able to provide information which was substantially accurate, the most likely source of which was the practitioner", and considered that the "only rational or reasonable conclusion to be drawn" from the patient's knowledge "that the practitioner was under investigation by the Taxation Department" was "that the practitioner informed her of this matter. Such a confidential communication must reflect more than an off the cuff remark in a proper doctor/patient relationship." Although there were "matters within her account which caused.. concern", the Tribunal decided that it had "had ample opportunity to assess the patient" and, as stated, accepted that "she gave an essentially accurate and reliable account." 48 In Rosenberg v Percival (2001) 75 ALJR 734, the High Court again discussed the appellate review of findings of fact based on witness credibility. 49 McHugh J, with whom Gummow J agreed on this issue, described an appeal court's opportunity to review such a finding as "very limited" (para 37), and said (para 41): - "Where a finding is based on credibility and other facts support the finding, the case would need to be exceptional before an appellate court could set aside the findings on the ground that, judging by the transcript, the trial judge gave insufficient weight or consideration to other facts and circumstances in the case". 50 Kirby J referred to the "comparatively rare exceptions that justify an appellate court overturning a credibility-based assessment of a trial judge.." (para 162). 51 Nonetheless, factual findings based on credit assessments are plainly not always entirely immune from appellate review, as is apparent from State Rail Authority v Earthline Constructions Pty Limited (in liquidation) (1999) 73 ALJR 306, which was referred to with approval in Rosenberg. 52 However, it is not this Court's function in this proceeding to review the Tribunal's findings. As earlier noted, the practitioner's right of appeal is limited by s 90(11)(a) of the Act. Nonetheless, it is consistent with the view of s 90(11)(a) which the Commission accepted for the Court to determine whether the Tribunal breached s 165 of the Act & thereby erred in law in reaching its decision by failing to explain satisfactorily why it accepted the patient as credible: cf Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. If the Tribunal did not explain why it accepted the patient's evidence notwithstanding material inconsistencies between her evidence and other evidence, favourable to the practitioner, which the Tribunal accepted, it made a legal error which warrants a rehearing 53 The Tribunal accepted Ms Fleming's evidence. In this Court, the Commission did not submit that there was any basis upon which the Tribunal should have done otherwise. Stripped to its essentials, the practitioner's third point is that the Tribunal failed to explain its acceptance of the patient's evidence despite material inconsistency between her evidence & Ms Fleming's uncontroverted evidence. 54 This vital aspect of the case against the practitioner is not assisted by internal inconsistencies in the patient's evidence. Although her oral evidence was eventually considerably different, the Tribunal proceeded on the basis of the patient's original assertion, in her statement which was tendered, that, as the Tribunal summarised her evidence: - "Consultations would be arranged late in the day so that she would be the last patient. The practitioner's secretary [Ms Fleming] having left for the day, sexual intercourse would occur when the two were alone in the surgery" 55 It is unnecessary to dwell on the practical considerations that might have encouraged that practice in preference to sexual activities while Ms Fleming was present in the reception area and, it seems, the door to the practitioner's consultation room was unlocked if the practitioner and the patient were, as she said, engaged in a sexual relationship over two decades. 56 Although the Tribunal stated that "[n]obody would be in a better position than the practitioner's wife and Ms Fleming to express opinions as to the practitioner's character, conduct and probity", it made only exceptionally brief reference to Ms Fleming's evidence. It said: - "We accept her evidence that she had no cause to suspect any impropriety and her belief that there was none. Nevertheless we do not find that there was any impracticability in the practitioner's conducting himself in the manner described and her remaining in total ignorance." 57 That finding by the Tribunal that there was no "impracticability in the practitioner conducting himself in the manner described and [Ms Fleming] remaining in total ignorance" cannot be separated from the Tribunal's finding, that "[c]onsultations would be arranged late in the day so that [the patient] would be the last patient. …[Ms Fleming] having left for the day, sexual intercourse would occur when the two were alone in the surgery." 58 It is unnecessary for this Court to analyse Ms Fleming's evidence in detail. It is sufficient to refer to one important matter. The Tribunal's finding that sexual activity between the patient and the practitioner took place after Ms Fleming's departure from work in the afternoon so that there was nothing impracticable in Ms Fleming being in total ignorance of what was occurring was directly contradicted by Ms Fleming's unchallenged evidence that she did not leave work until after the practitioner had finished attending to patients for the day. 59 The Tribunal's failure to deal with this significant evidentiary conflict when explaining its acceptance of the patient's allegations makes its reasons critically defective, and the practitioner is entitled to a rehearing. 60 Two further matters merit brief mention. As earlier stated, the practitioner did not establish that the Tribunal misapplied the burden or standard of proof. However, while the Tribunal's determination that the patient was either telling the truth or maliciously lying might have been open although other possibilities were canvassed in the evidence of two psychiatrists, its rejection of other possible reasons why the patient's evidence might not have been reliable involved a risk that the Tribunal concerned itself with whether the patient was a malicious liar instead of the real question for its decision, namely, whether the practitioner misconducted himself as alleged. 61 Second, the Tribunal did not explain why it attached "major significance" to the "notable lack of detail" in the practitioner's clinical notes concerning his treatment of the patient. Dr. Phillips' observation that medical practitioners who engage in sexual improprieties with patients frequently have poor clinical notes in relation to those patients could not lead the Tribunal to a conclusion that, because it considered the practitioner's notes unsatisfactory, he probably had engaged in sexual activity with the patient. 62 In summary, the appeal should be allowed with costs, the Tribunal's decision and orders set aside and a rehearing of the complaint against the practitioner ordered. The costs of the previous proceedings against the practitioner should be paid by the unsuccessful party at the rehearing. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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