Medical Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Basavaraj Vastrad [2011] NSWMT 1 Hearing dates: 22-25 November 2010, 21 December 2010 Decision date: 15 February 2011 Before: Staff J - Gordon, Dr R - Ilbery, Dr K - Smith, Mr RJ Decision: 1. Dr Vastrad be reprimanded 2. Dr Vastrad is to pay the HCCC's costs of these proceedings, in respect of complaint one, on the ordinary basis, as defined in Sch 3 of the Civil Procedure Act 2005 3. The HCCC is to pay Dr Vastrad's costs of these proceedings, in respect of complaint two, on the ordinary basis, as defined in Sch 3 of the Civil Procedure Act 2005 4. Pursuant to s 61(1)(c) of the Medical Practice Act, the Tribunal directs the conditions set out in the Annexure are to be placed on Dr Vastrad's registration 5. Pursuant to Clause 6 of Schedule 2 of the Medical Practice Act 1992 the Tribunal has ordered that there be no publication of the names of the patients or of any material capable of identifying the patients. Catchwords: UNSATISFACTORY PROFESSIONAL CONDUCT - failure to request female patient to get dressed after carrying out medical examination - inappropriate contact with patient during consultation - complaint by second patient not established - conditions imposed - practitioner reprimanded. Legislation Cited: Civil Procedure Act 2005 Medical Practice Act 1992 Cases Cited: Bannister v Walton (1993) 30 NSWLR 699 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 Childs v Walton [1990] NSWCA 41 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 NSW Medical Board v Dinakar [2009] NSWMT 8 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Re Dr Parajuli [2010] NSWMT 3 Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298 William Gayed v Merrilyn Walton NSWCA (31 July 1997, unreported) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Basavaraj Vastrad (Respondent) Representation: Ms S McNaughton of counsel (Complainant) Health Care Complaints Commission Mr M Ainsworth of counsel (Respondent) Holman Webb Lawyers File Number(s): 40044 of 2009 judgment DETERMINATION AND ORDERS 1The Health Care Complaints Commission ("HCCC") alleges that Dr Basavaraj Vastrad ("Dr Vastrad"), a medical practitioner, is guilty of unsatisfactory professional conduct within the meaning of s 36 of the Medical Practice Act 1992 (now repealed) ("the Medical Practice Act") and/or professional misconduct within the meaning of s 37 of the Medical Practice Act in that he has demonstrated that the knowledge, skill or judgment possessed, or care exercised by him in the practice of medicine is significantly below the standard reasonably expected and/or has engaged in improper or unethical conduct relating to the practice of medicine. 2The present proceedings concern two complaints. 3The first complaint was made by a former patient of Dr Vastrad, who shall be referred to as "Patient A". This complaint, made to the HCCC on 27 March 2008, involved allegations that Dr Vastrad had instructed Patient A to undress to her underwear, after which he conducted an examination which was inappropriate in the circumstances. 4The second complaint was made by a former patient of Dr Vastrad, who shall be referred to as "Patient B". This complaint, made on 18 March 2006 [sic] (2008), involved allegations that Dr Vastrad moved his hand upwards and to the left inside Patient B's bra cup, where she felt three fingers on the left side of her breast and then on her ribs. 5It is convenient to set out the particulars provided by the HCCC in respect of each of the complaints. 6The particulars of complaint one were: At all relevant times, the practitioner was practising at the Bella Vista Medical Practice. Patient A was an employee of the Bella Vista Medical Practice, in Baulkham Hills, New South Wales. 1. During a consultation with the practitioner on 14 February 2008, the practitioner instructed Patient A to undress to her underwear. After an initial examination, the practitioner instructed Patient A to lie down on the examination bed: a. The practitioner touched body parts including the buttocks, groin and pelvic areas of Patient A, an examination of which was inappropriate in the circumstances. 2. During a consultation with Patient A on 14 February 2008, the practitioner: a. Failed to request Patient A to get dressed after carrying out the medical examination and assessment. b. Requested Patient A who was still undressed to her underwear to sit in a chair opposite to him where her legs were touching his, which was inappropriate in the circumstances. c. Undertook meditation and breathing exercises with Patient A who was still in her underwear, when there was no clinical indication do so. d. Placed his hands on the chest of Patient A, who was still in her underwear, and instructed Patient A to push her forehead against his and to place her hand on his chest, which was inappropriate in the circumstances. 7The particulars of complaint two were: At all relevant times, the practitioner was practising at the Queen Medical Centre at Narellan Town Centre, Narellan, NSW. On 12 March 2009 Patient B consulted the practitioner. 1. The practitioner examined Patient B in the company of her mother and prescribed her antibiotics. At approximately 8:45 pm, Patient B's mother left the consultation room to purchase the antibiotics. The practitioner told Patient B that he wanted to listen to her breathing again placed the stethoscope on the left side of her chest underneath her shirt and placed his right hand on Patient B's sternum underneath her clothes. and he inappropriately: a. Moved his hand upward and to the left inside Patient B's bra cup where she felt three fingers on the left side of her breast and then on her ribs. 8Dr Vastrad denied each of the complaints and particulars, although in respect of particular 2(a) of complaint one, he conceded it was inappropriate for Patient A to remain in her underwear and that he should have insisted she get dressed. 9Ms S McNaughton of counsel appeared for the HCCC. Mr M Ainsworth of counsel appeared for the respondent. Professional misconduct 10For the purposes of the Medical Practice Act, "unsatisfactory professional conduct" of a registered medical practitioner is defined as follows: 36 Meaning of "unsatisfactory professional conduct" (1) For the purposes of this Act, unsatisfactory professional conduct of a registered medical practitioner includes each of the following: (a) Conduct significantly below reasonable standard Any conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. ... (m) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of medicine. 11For the purposes of the Medical Practice Act, "professional misconduct" of a registered medical practitioner is defined as follows: 37 Meaning of "professional misconduct" (a) unsatisfactory professional conduct, 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 of the practitioner from practising medicine or the removal of the practitioner's name from the Register. 12In order for the Tribunal to be satisfied that the allegations are established, the Tribunal must be comfortably satisfied on the balance of probabilities, having regard to the serious nature of the allegation and the serious consequences: Briginshaw v Briginshaw & Anor (1938) 60 CLR 336. Principles 13This jurisdiction is exercised for the protection of both the public and the medical profession. It is protective rather than punitive. Deregistration is not an automatic outcome of a finding of professional misconduct, even where that conduct is sufficiently serious to justify it: Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 at [67]. It is clear that deregistration may be required in serious cases of professional misconduct in order to adequately achieve the objectives of minimising the risk of recurrence and of deterring other practitioners from engaging in such conduct and thereby maintaining public confidence in the profession: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; Re Dr Parajuli [2010] NSWMT 3 at [32]; Saville v Health Care Complaints Commission & Anor [2006] NSWCA 298 at [45]; Prakash v Health Care Complaints Commission [2006] NSWCA 153, Santow JA at [64] and Basten JA at [101]; Childs v Walton [1990] NSWCA 41. Complaint one HCCC's evidence 14The HCCC relied on a statement of Patient A dated 19 April 2008. She was aged 24 at the time of the complaint. A handwritten statement attached to a letter of complaint from Patient A's father to the HCCC was also relied upon in the proceedings. The handwritten statement of Patient A was dated 19 February 2008 although in the body of the statement Patient A stated it was made on 21 February 2008. Patient A gave evidence that she could not recall with exact precision what date she made the statement but thought it was more likely to be 19 February 2008. Patient A was required for cross-examination. 15In her typed statement, her handwritten statement, and her oral evidence, Patient A detailed the consultation with Dr Vastrad. Her evidence was that she began working as a receptionist at the Bella Vista Medical Centre on or around 10 February 2008 and ceased working there shortly after the date of the consultation with Dr Vastrad. Her job involved looking after patients when they arrived and looking after all the paperwork. She usually worked from 8.00am to 4.00pm, sometimes working overtime until 5.00pm. Dr Vastrad would usually only attend the medical practice later in the day to see his patients. 16Patient A said that when she first started working at the medical practice, Dr Vastrad was always very friendly. She said, in retrospect, he was constantly asking her, "How are you feeling, don't be stressed. I run these ways of relaxation and meditation. I'll help you." He told her to schedule a time and he would show her some breathing and relaxation exercises to calm her down. Her evidence was that she had no trouble working with him before the consultation. 17In her statement, Patient A was unsure of the precise date that the consultation in question occurred. She had only been working at the Medical Centre for one and a half weeks so she thought it could have been in late February 2008 on a Thursday. Dr Vastrad's evidence was that the consultation took place on 14 February 2008. On this day she said Dr Vastrad asked her when she would finish work for the day. She replied that she finished at 4.00pm. Patient A said that Dr Vastrad booked her in for the last appointment of the day, being 4.00pm, on the computer. Patient A said she did not approach Dr Vastrad to ask for an appointment because she thought she would have to pay for a different kind of appointment. As she was still new she thought it would be rude to schedule a time for herself. 18Patient A gave oral evidence of what happened when she and Dr Vastrad entered the consultation room. Attached to her statement was a drawing she made depicting the layout of the consultation room. Patient A sat next to Dr Vastrad at a desk in the room. He began to explain matters of relaxation, breathing techniques and chakras. The word "Chakra" is an ancient Sanskrit word used in Traditional Indian Ayurvedic Medicine to describe the esoteric anatomy which influences all aspects of a person's wellbeing from physical (including trigger points), physiological (especially the endocrine system), emotional, intellectual to spiritual wellbeing. She said he drew a diagram of a human figure and indicated on that where the chakras were located. She recalled that they were on the "forehead, chest, tummy, groin...but i'm not 100% sure." He then spoke of different areas of the body and life and how they all needed to balance. He asked her whether she felt her life was balanced or unbalanced, whether it be life or relationships or sexual. Then he told her that he wanted to check her posture so she stood up and he said "Take your clothes down so I can see your posture". She said she replied "Just my top?" and he answered "Take your top and your pants off and stay in your bra and undies." Her evidence was that she took off her top and bottom pieces of clothing and stood with her back against the wall whilst he was looking at her posture. 19He then indicated for her to sit on the examination table. He showed her on her hands how pressure points can affect other parts of the body. She had mentioned to him that she had problems with anxiety and digestion. He told her to lie face down and he massaged her shoulders and her calves and feet, working upwards on her legs. She said he then pressed and massaged on the side of her bottom, near the hips. She became a little uncomfortable because he had moved aside the elastic on the bottom of her underpants. He then asked her to turn onto her back and face upwards. He began massaging in spots again, pressing on her hand between her thumb and first finger, inward of her underarm, the base of her feet, and calves. She said he then began touching the inside of her leg using a firm upward motion using several fingers. He then pressed the area on the middle and side of her stomach, parallel with her navel. He was talking about digestive problems and she said "He made a point of really touching on the pelvic area." He told her to place her hand on the side of her leg near her groin to feel the tension. Throughout the pressing on her body, Dr Vastrad told Patient A to focus on her breathing, taking breaths in through her nose and letting it out slowly through her mouth. 20He then told her to sit on the chair next to his desk. He said he was going to show her how to do a relaxation technique through breathing, which he normally practised outside of the clinic. He positioned his chair in front of her and pulled himself closer with his legs outside of hers. Her legs were closed in the middle. Patient A was still in her sports bra and underwear. She was sure that Dr Vastrad did not say anything about what she was wearing. With her legs closed and his on either side, he then said they were going to focus on the energy sites or chakras. He said the first site was the head and he placed his arms on her shoulders and rubbed down her arms. He took her hands and placed them on his knees. He began to explain how to do the breathing and how it was a connection between two people, bad energies going in and out of the bodies. He then pressed his forehead to hers. He said she needed to focus on the breathing and relax. When their foreheads were pressed together her eyes were closed. He was telling her to breathe deeply in through the nose and right down into the diaphragm and exhale it and he would copy her. Patient A said that the exercise felt like it went on for a really long time. When he stopped the exercise he said "well done" and that they were going to move on to the next area which was the chest. 21Patient A's evidence was that Dr Vastrad placed his open handed flat palm in the middle of her chest between her breasts and placed her hand on his chest. He was sitting close to her chair and her knees were against his crotch. She said that she felt a rhythmic movement against her knees and she felt his crotch get firm. This was whilst the chest and breathing exercise was happening. In her statement she said the exercise lasted about 5 to 10 minutes. 22After the chest exercise, Dr Vastrad turned to the belly button region. The same procedure was again followed where they placed their hands on each other's bodies and he said to tense her pelvic floor muscles and repeat the breathing. Patient A was not sure how long this exercise took. Patient A's knees were still touching Dr Vastrad's groin area during the exercise. 23After the stomach area exercise, Dr Vastrad said they would move on to the next site. Patient A took this to mean that it was going to be the pelvic region from the diagram he had drawn. He told her it was an important area. She told him she didn't want to do that. Her evidence was, "He said that normally like, he wouldn't do this in the first session, like suggesting that he would come back to it at a later time, but that we were, like we were friends, and that it was okay to go ahead with it." When asked if there was anything else she could recall, Patient A said, "Yes. He described what he wanted me to do was place my hand on his groin and his on mine, and he said that sometimes that the male could get an erection, but just don't worry about that, just focus on doing the breathing." After that, Patient A said she felt very uncomfortable. She asked him what time it was in an attempt to take the focus off her and leave the room. He told her it was approximately 5.30pm and Patient A said she was shocked because so much time had passed and she was running late for her gym class. When Dr Vastrad said to her "We can come back to this" she said she wasn't very comfortable. She got dressed and left the surgery. 24The next time Patient A had contact with Dr Vastrad was a couple of days after the consultation. Patient A was asked to take some paperwork to Dr Vastrad's office. Dr Vastrad was walking out of the door to his consultation room as she was walking in. She went in and handed him the paperwork. Her evidence was that he took hold of her arm and said "What happened the other day, if we could just keep it private." In her statement, Patient A said Dr Vastrad said words to the effect of, "Normally I would charge people for a session like that, but we are friends. And it is doctor patient confidentiality so I don't discuss what went on. I would like you to not discuss this with anyone else because other people would not be happy about me not charging you. And the other doctors would not be happy about me practicing that sort of thing here, I usually only practice that sort of thing outside of the surgery." Patient A said there was no one around when this conversation took place. Patient A said she remembered thinking he was "sick" and thought something was "really wrong and not right. I thought at first that I was making more [of] this than it really was, but when he said that I knew something was not right." 25Patient A's father and sister both gave evidence. The HCCC relied on the letter of complaint that Patient A's father wrote to the HCCC dated 27 March 2008, and his statement dated 18 June 2008. In cross-examination, Patient A's father confirmed that he had not discussed the incident with Patient A before he wrote the complaint letter. His evidence was that he had not spoken to Patient A about the incident but had spoken to his wife and to his eldest daughter, both of whom had spoken about the incident with Patient A directly. His evidence was that he had left the matter in the hands of his eldest daughter to handle, however when no action was taken, he felt that he had a duty as a father to protect his daughter and take action. He said he could not speak directly to Patient A because she was too traumatised and he believed she felt more comfortable speaking to her sister and her mother. In his statement, Patient A's father said he had been in Melbourne when the consultation occurred. He had received a phone call from his wife who told him that Patient A had left her job because of an incident that occurred with Dr Vastrad. He went on to state, "I said, 'Was it serious?' And she said, 'yes'. I said, 'Was [Patient A] raped by Dr Vastrad?' and she said, 'No'. He then said, 'Was she molested by him?' and she said, 'yes'." 26The HCCC also relied on a statement prepared by Patient A's sister dated 9 September 2008. Patient A's sister's evidence was that Patient A telephoned her on the Thursday or Friday after the incident. Patient A said to her "I want to talk to you about something and get your opinion if it's wrong. I was talking to my fiancé about it and he said, 'why don't you call [Patient A's sister]'." Patient A detailed the incident to her sister. Patient A's sister replied, "That is definitely wrong and totally inappropriate...go into work for today and leave it with me and I will find out some information and make a plan." She believed she also told Patient A, "Don't allow yourself to be alone with him, don't talk to him, just have nothing to do with him." Patient A's sister's evidence was that Patient A telephoned her a few days later crying. 27Patient A had told her boss that she was not going into work that day because of a family emergency. Patient A's sister said to Patient A, "You can't do that, he'll think you've had a fight with your boyfriend. You have been working there for two weeks; you have to talk to him, other wise he'll think you're an unreliable young girl and you are irresponsible." She told Patient A that she would go with her to the surgery. They both saw Dr S Mahajan, the owner of the Bella Vista Medical Centre and Patient A's employer, who she said seemed baffled and shell shocked with what had happened. He told them to write to the HCCC and put the complaint in writing. Patient A's sister requested that Patient A's details be deleted from the Medical Centre's computer system. The respondent's evidence 28Dr Vastrad is 57 years of age. In February and March 2008, when the alleged incidents took place, Dr Vastrad worked part-time at the Bella Vista Medical Practice in Baulkham Hills, New South Wales and the Queen Street Medical Centre at Narellan Town Centre in Narellan, New South Wales. 29Dr Vastrad's evidence was that on or around 10 February 2008, Patient A commenced working as a receptionist at the Bella Vista Medical Practice where he was working as a medical practitioner. He noted in his statement that she experienced some difficulties with the outdated computer system during her first few days at the medical practice. During his oral evidence, Dr Vastrad said Patient A was not computer literate and had multiple issues with scheduling appointments and a range of other computer problems. He said some of the other doctors working at the practice were getting cranky and upset with her. His evidence was that she seemed stressed and he recalled speaking to her about the difficulties she was encountering with the computer system. 30In his statement, Dr Vastrad said that at some point Patient A booked an appointment to see him at the practice on 14 February 2008 at 4.00pm. In cross-examination, when asked if he recalled Patient A's evidence that he booked her in for the appointment, Dr Vastrad said it was a misunderstanding as he was standing at the computer and the 4.00pm timeslot was the last available so he said "if you want to look at that time... you can book it but I would prefer to, I would like to, I would prefer that you see your own doctor but, in case if you are keen to see me, I'm happy to help you, I'm happy to see you at 4 o'clock, that slot was available." 31Patient A attended a consultation with Dr Vastrad on 14 February 2008 at approximately 4.00pm. Dr Vastrad's evidence was that he recalled engaging in a conversation surrounding the issue of holistic stress management, which lead to a discussion about chakras. He stated that Patient A expressed an interest in learning more about chakras and energy centres. In cross-examination, Dr Vastrad said he spent 20 to 25 minutes talking to Patient A about the 10 areas of life. He then explained to her that he would need to assess her posture to identify trigger spots and address her mental and physical issues. 32In his statement, Dr Vastrad said he requested Patient A remove her outer clothing so that he could check her posture, muscular and musculoskeletal tightness and trigger spots. In his s 40 submission dated 26 May 2009, Dr Vastrad stated, "I asked the patient to take off her outer clothes so that I could check her posture and also check her muscular tightness and musculoskeletal tenderness over entheses or trigger spots." In cross-examination, Dr Vastrad said Patient A asked him if she could remove her top as she had a sports bra on underneath. His explanation for the inconsistency was, "Actually I should have put I told the patient... In the use of the word, it should have been, I told the patient, rather than asking, told the patient." 33Patient A removed her outer layer of clothing and remained in her sports bra and underwear for the remainder of the consultation. 34Dr Vastrad's evidence was that upon examining Patient A, he recalled finding diffuse tenderness that related to muscular trigger spots in her back and neck area. He then carried out an examination regarding Patient A's diffuse musculoskeletal tenderness. Dr Vastrad's evidence was that he examined Patient A by palpating trigger points on Patient A's legs and back. He asked Patient A to lie down so that he could elicit other musculoskeletal tenderness and irregularities. His evidence was that he did not palpate Patient A's stomach and did not discuss digestion with her at all. In cross-examination, Dr Vastrad said that he did not palpate near Patient A's umbilicus, groin area, or the top of her thigh close to her groin. He said that at that point of the examination they were focusing on the musculoskeletal issues, which is why he was focusing on palpating on the side of the upper part of the thigh, the trochanter. His evidence was that normally people who work as personal trainers get a condition called trochanteric enthesitis, which is inflammation of the enthesis. 35Dr Vastrad said he focused on the "trigger spots, medial trigger spots or medial enthesitis, for example: iliac crest, anterior superior iliac spine, greater trochanter, medial tubercle or abductor tubercle, near the knee joint, the interossei muscles in the hand, plantar fascia or the trigger spots in the foot, major trigger spots in the back of the neck, major trigger spots in the upper back." In his statement, Dr Vastrad said he recalled that he palpated Patient A's plantar arch and instructed her about the purpose of the examination. He also recalled palpating the adductor tubercles near the knee joints to test for adductor insertion enthesopathy. He also palpated the anterior superior iliac spines on both sides to test for enthesopathy. He recalled that Patient A indicated that these areas were tender. 36Dr Vastrad then asked Patient A to sit upright on the examination table. He examined her trochanters, located on the sides of the proximal thighs, which are common sites for trochanteric bursitis/enthesitis. He palpated the area and explained the purpose of the examination. He advised her how she should perform stretching exercises. According to his statement, at the conclusion of the physical examination, Dr Vastrad asked Patient A to sit down and he sat approximately 50 centimetres away from her. 37Patient A was still in her underwear. Dr Vastrad said he suggested that she put her outer clothing on as the physical examination had concluded. He said she declined, indicating that she was comfortable and that she was aware that the consultation was about to conclude. He said at no point during this part of the consultation did they touch. Whilst they were seated, Dr Vastrad went through some relaxation techniques with Patient A, such as breathing exercises. In explaining some of the exercises, he suggested Patient A touch her own body and feel certain breathing movements and physiological changes taking place. His evidence was that he did not touch Patient A and did not invite her to touch him at any time during the consultation. Whilst Patient A was practising her breathing exercises, Dr Vastrad indicated that she should relax her upper limbs, her pelvic floor muscles, and her lower limbs as well as placing her left palm across her chest, to monitor breathing related movement. He denies that his knees were ever touching Patient A's knees. His evidence was that this portion of the consultation lasted one to two minutes. 38Dr Vastrad said the entire consultation lasted approximately 45 to 50 minutes, which is the standard Medicare requirement for a prolonged consultation. He said it could not have lasted for one and a half hours, as Patient A asserts, as he had an appointment in the evening. His evidence was that it was his decision to end the consultation and that he told her to follow up with her local doctors. Complaint two HCCC's evidence 39The HCCC relied on a statement of Patient B dated 16 April 2008. Patient B was aged 22 at the time of the consultation. Patient B was required for cross-examination. 40Patient B's evidence was that at approximately 8.40pm on 12 March 2008, she attended the Queen Street Medical Centre with her mother. She had severe headaches and was coughing up a lot of mucus. Her chest was very sore and she had a nasty "beagle hound" cough. She said she struggled with breathing, had sinusitis and was very tired. In Dr Vastrad's consultation room, Patient B sat on a chair next to his desk. Patient B attached a diagram of Dr Vastrad's consultation room to her statement. She said she had had upper respiratory tract infections quite often and was used to doctors checking her chest with a stethoscope. Her evidence was that Dr Vastrad examined her throat which he said was red and inflamed. He then asked her to stand up with her back to her mother. He put the stethoscope on and placed it just above the 'V' of her t-shirt, on her skin. Patient B described that she was wearing a black and white v-neck top. The "V" stopped just above her cleavage. A photocopy of a photograph of Patient B wearing the top was attached to her statement. Dr Vastrad told her she needed to have a chest x-ray. They both sat down. He then told her that if she didn't feel better, she was to come back on Friday. Dr Vastrad gave her a business card, which identified him as "Physician & Surgeon". She attached a photocopy of the card to her statement. 41Dr Vastrad gave Patient B a script for penicillin and as she was about the leave, she asked him if he could give her a script for her Epipen. Dr Vastrad said he could and would need to make a phonecall at this point to Epipen Australia. Patient B's mother left to attend the pharmacy before it closed to fill the script. Patient B's evidence was that her mother closed the consultation room door as she left. 42Patient B's evidence was that after her mother left, Dr Vastrad called Epipen Australia and he was waiting on the phone for four to five minutes. After the call, he printed off the prescription and told her he wanted to check her breathing again. He asked her to stand up. He stood on her right side and had his right hand on the stethoscope, which was placed on her chest a little lower than the first time. He placed the stethoscope on the left side of her chest, underneath her shirt and then took his hand out and put the stethoscope down. He then pushed on her sternum with his right hand, under her clothes and said, "Where are your ribs sore? Is it sore here?" She replied yes and he moved his hand down to the lower part of her ribs where the ribs join together. He asked her if it was sore there. He then moved his hand upward and over toward the left, inside her bra cup. She said he pushed three fingers into her breast on the left side and she could feel his three fingers on her ribs. She said, "at that stage it dawned on me what was going on." He asked her whether it was sore there and she said no. She pointed with her left hand to the middle of her chest and said, "no, just here". He then took his hand out of her top and said "ok". He proceeded to open the consultation room door and said, "oh, just in case your mum comes in". 43Dr Vastrad then sat down and began writing in her medical file. He seemed very relaxed and was acting normally. She said it didn't click for a while that what he had done was wrong. Patient B said it was approximately 10 to 15 minutes from the time her mother had left to when she arrived back at the consultation room. Dr Vastrad gave Patient B her Epipen script. Patient B said that when her mother returned, her mother said, "oh, the door's open, you must have been waiting." She went to shut the door and Dr Vastrad told her to keep it open. He told Patient B's mother that they had been waiting for the Epipen. Her mother sat down next to Patient B while she was signing the Medicare release form. In her statement, Patient B said, "I wanted to get out of there because I felt dirty, like I really needed a shower. I didn't want to be there, I wanted to get out." 44Patient B made an appointment with the receptionist for her chest x-ray and then she left the Medical Centre with her mother. Patient B said that when her mother shut the door to the Medical Centre, she said to her mother, "I never want to see him again." They went to a nearby Woolworths and she repeated that she did not want to see Dr Vastrad again. When her mother asked her why, Patient B responded, "He played with my boob. He fondled my boob." They went to McDonalds to buy dinner and for Patient B to take her medicine. Her mother asked her to show exactly what Dr Vastrad had done. Patient B demonstrated on herself. Her mother said, "why did you let him?", Patient B just looked at her, and she said "I know your [sic] sick". When asked about her use of the word "fondled", Patient B gave the following evidence in cross-examination: Q: You say on the description you have been through here today and the questions I've asked you here today there is no difference on your version between how he pressed on your rib cage here - demonstrating top of Mr Ainsworth's chest - or here - beside your rib cage; there is no difference in how you say he pressed on your breast? A: No the pressing was the same. Q: You chose to call that in your statement, and in these proceedings, "he fondled my boob"? A: When it's under your bra and it's in an area that shouldn't have been pressed because it already had been examined and a script had already been written, yes, I would still classify that as fondling. 45The next day, Patient B attended the Queen Street Medical Centre to have a chest x-ray. She found out she had sinusitis and mild pneumonia. Patient B and her mother saw Dr S Michael, her regular physician. At first her mother explained what had happened with Dr Vastrad and Dr Michael requested Patient B's file. Patient B said that at first she did not speak because she felt ashamed. She said it "hit me really hard having to explain it to someone." She explained to Dr Michael that Dr Vastrad checked her chest and she demonstrated what Dr Vastrad had done. She said Dr Michael called someone and then told Patient B and her mother that they should report what happened to the Medical Board. 46Patient B's mother wrote a complaint to the New South Wales Medical Board dated 18 March 2006 [sic] (2008). 47Patient B's mother was required for cross-examination. The HCCC relied on a letter she had written to the New South Wales Medical Board dated 18 March 2006 [sic] (2008) and her statement dated 16 April 2008. Patient B's mother detailed her recollection of the consultation with Dr Vastrad and her daughter's description of what occurred after she left the room to have Patient B's prescription filled. As outlined above, Patient B's mother's evidence was that she closed the door to the consultation room when she left the room. In cross-examination, she said "I closed the door behind me when I left, as I do with all the doctors. If I'm in the room with the doctor the door gets closed. I closed the door when I left." Her evidence was that when she returned from the pharmacy, the door to the consultation room was open. 48In her written statement and in oral evidence, Patient B's mother recalled that Patient B described that Dr Vastrad inserted his hand in her bra twice. Relevantly, Patient B's mother gave the following evidence in cross-examination: Q: You have recorded that your daughter said "he felt me up"? A: That's right. Q: Then further on, and there's no issue what's there, we can all read it. Here is a demonstration: According to you she said: I felt sick. I didn't know whether it was the right or the wrong thing. Then he did it a second time and I realised this wasn't right and I felt very uncomfortable and very filly [sic]. That's the full paragraph? A: Correct. Q: Her explanation to you, she sets out that the doctor did this insider her bra twice? A: Yes. Q: It's only when it happens a second time - on the version she gives you - it's only when it happens a second time that she realises: Oh, no, there's something wrong here? A: When you go for an examination at the doctors, being a woman with breasts, they normally place the stethoscope to your chest, on the sides of your breasts, but I'm 46 years old and I've never had a doctor place his hand inside my bra to check me for my breathing or my ribs. I have had it under my breasts, to the side of my breasts but not inside my bra. Q: That doesn't answer the question I asked. The point is your recollection was that your daughter said it happened a second time, that's when I realised it was not right? A: That was my recollection, yes. I was in shocked [sic] by the first statement let alone further on. Q: But you signed off on that statement? A: Yes, I did. That was my recollection. 49Dr Michael, Patient B's regular physician, prepared a statement dated 22 October 2008 and was required for cross-examination. In his statement, Dr Michael's evidence was that after Dr Vastrad's consultation with Patient B on 12 March 2008, he did not attend the medical practice for approximately one month. In cross-examination, Dr Michael was unsure of the precise length of time that Dr Vastrad did not attend the practice but said, "he didn't come to the practice for a while, maybe for once he came or twice and then he disappeared." He said that Dr Vastrad had telephoned him during the time that he was away from the practice. Dr Vastrad detailed what had happened with Patient B. He said he had been approached by the Medical Board, that he would not come to work, that he was getting advice from his solicitors, and that he had received a statement from the Medical Board that he could not work without a chaperone. Respondent's evidence 50On 12 March 2008, Patient B attended a consultation with Dr Vastrad at the Queen Street Medical Centre. Patient B's mother was present for most of the consultation. Dr Vastrad recalled that Patient B presented with a range of problems, including respiratory symptoms, sinusitis, asthma and chest discomfort. Patient B had previously consulted Dr Vastrad on one occasion when she presented with glandular fever and fatigue. Dr Vastrad said that given that Patient B was suffering from chest discomfort, including respiratory symptoms, part of his examination involved listening to Patient B's chest with a stethoscope. This examination revealed signs of a respiratory tract infection, which was associated with Patient B's asthma. Dr Vastrad prescribed Augmentin Duo Forte Antibiotics to Patient B and completed a chest x-ray request form to exclude a more serious chest infection such as pneumonia. Dr Vastrad recalled that during the consultation he made a telephone call to the authority script line to obtain an authorisation for Epipen, which was requested by Patient B. Patient B's mother offered to attend the pharmacy located approximately 50 metres from the Queen Street Medical Centre, to obtain the prescribed antibiotics. After Patient B's mother had left the room, Dr Vastrad said Patient B indicated that she wished to raise further medical concerns with him after her mother left. 51In his statement, Dr Vastrad said that after Patient B's mother left the room, the door remained open. He said that she did not close it on her way out. In cross-examination, Dr Vastrad said it was a combination of Patient B's anxiety and the need for fresh air that meant he kept the door to the consultation room open. Dr Vastrad gave the following evidence during cross-examination in respect of whether the door was open or closed: Q. I want to put to you clearly that you say that the door was open when [Patient B's] mother left, yes? A. She tried to close it and I open it again because I wanted some fresh air because the window was closed. Q. So she did close it and you reopened it? A. She might have closed it because the latch is loose, you know, I'm not focusing on the door, the latch was loose, the door latch, it appears that you have closed it but it can reopen. I also, because I wanted the fresh air, when I tried to reopen it was partially opened anyway. Q. So it opened itself because the latch was loose? A. It was partially opened, I opened it more, it might have opened about five degrees or 10 degrees, I kept it open to get the air. ... Q. So it's open because of either anxiety and/or fresh air and/or rear corner of the medical centre, is that the position? A. What I meant is in case if some patient confidentiality is required I meant doubly sure to close the door. Because we want the fresh air and room is far away from the privacy I did not make it a point to close the door. Q. You understand you have given different reasons for this door being open now, sir? A. I understand. 52Dr Vastrad said that Patient B expressed concern at her levels of stress and anxiety and indicated that she believed her breathing difficulties may have been connected to these levels of stress. In his statement, Dr Vastrad said, "She told me that she did not want her mother to know about her stress and anxiety because [Patient B] did not want to cause her any more concern." 53Dr Vastrad proceeded to again examine Patient B's chest with a stethoscope to consider a possible alternative diagnosis. His evidence was that given the design of Patient B's shirt, he recalled that he was able to access her chest without her having to lift up her blouse. He also listened to Patient B's chest through her back in the interscapular region. He denied inserting his hand or fingers inside Patient B's bra cup to palpate her breast and did not recall his hand coming into contact with her breast at all. In his oral evidence, Dr Vastrad insisted that he did not palpate her breast. 54The chest x-ray indicated that Patient B had pneumonia. Dr Vastrad believed that his examination of Patient B was done strictly in accordance with her presenting with respiratory symptoms which required him to examine her chest in order to conduct a thorough consultation. He said his conduct during the consultation with Patient B was consistent with his usual practice. 55Patient B's original medical file was tendered in the proceedings. Dr Vastrad's handwritten notes for the consultation were extremely detailed and included a reference to the consultation room door being open. His notes indicate that this was because the patient was anxious. He also made a note that the patient had seen a psychologist and a neurologist in the past for investigations and management. An additional note stated the patient had a history of "post traumatic stress disorder?", "phobia +" and "anxiety +". Underneath this note, Dr Vastrad had written "patient also states that she does not want to discuss this in presence of her mother. Her mother wants her to be happy [Patient B] not the unhappy one. As patient was feeling anxious the door was kept open (curtain covered)." Expert evidence 56Dr Jennifer Hunter, a general practitioner, was called by the respondent to give her opinion in respect of the consultations the subject of the complaints. In relation to Patient A, Dr Hunter's evidence was that people who suffer from mental health problems, particularly depression or anxiety, often suffer from muscle tension and may benefit from some form of relaxation therapy. She went on to say that whilst it is appropriate to sit opposite someone to explain the meditation and breathing exercises, it is not appropriate to do so with the patient in only underpants and a bra. Dr Hunter's opinion was that once the patient has left the examination table having had the musculoskeletal trigger point examination, the doctor in charge of the consultation should have ensured that the patient got dressed. In her report, Dr Hunter was critical of Dr Vastrad overloading Patient A with information in the consultation. Her opinion was that it was a long consultation that covered a lot of information. Her approach, in her own clinical practice, would have been to give the information in much smaller doses. 57When asked about the clothing aspect of the examination, Dr Hunter's evidence was that if Dr Vastrad was only going to examine trigger points, "it's optional, you can either have the patient clothed, completely clothed, depending what she was wearing, but if she was wearing loose comfortable clothes, not jeans and heavy material, you could possibly do it with clothes but mostly you'd actually ask the patient to disrobe down to their underwear." Dr Hunter was taken through a diagram of the points on Patient A's body where Dr Vastrad palpated. Dr Hunter gave evidence of tension points on the body. When given Patient A's account of the examination where she says she was sitting with her knees touching Dr Vastrad's groin, Dr Hunter's evidence was that it would be totally inappropriate, whether or not Patient A was clothed. In regards to the touching of foreheads and hand on chest techniques, Dr Hunter's evidence was that she was aware those techniques existed but she did not think they would be indicated in a medical setting and particularly between a male doctor and a female patient. She did not think that the touching of foreheads would be appropriate in the clinical setting. Similarly, the touching of the stomach area and the groin. Dr Hunter's evidence was that her disapproval in such a circumstance would be very strong. 58In relation to Patient B, Dr Hunter's evidence in cross-examination was that if the patient indicated there was pain along the lateral side of her sternum you would not go across the bra but come in on the inside. There may be need to palpate up into the bra but you would not need to come across the way alleged by Patient B. Her opinion was that if such a thorough examination was required, she would probably ask the patient to disrobe and remove their bra because it would be in the way. Dr Hunter was shown a photograph of Patient B in the clothing she was wearing during the consultation. Her evidence was that if Patient B had her clothing on, Patient B's description of the examination would have been the most appropriate way to examine as it would have been quite clumsy to palpate through the clothing or the armpit area. 59When asked if on a stress basis would such an examination be indicated under the bra, Dr Hunter's evidence was that because Patient B presented with an acute respiratory tract infection and the symptoms could just be directly as a cause of coughing and respiratory tract infection. However, psychosomatic pain across this area is a very common presentation with anxiety and often physical causes need to be excluded before the doctor can confidently tell the patient "this is actually a psychosomatic symptom of your anxiety." 60Dr Nigel Menogue, an Injury Management Consultant with a Masters degree in Sports Medicine, was called by the HCCC to give evidence. He had prepared one report and two supplementary reports. In relation to Patient A, Dr Menogue's evidence was that probably all people who have a degree of mental illness respond to psychotherapy. However, in his opinion, in the context of an employer/employee relationship, and a young person with a history of known mental illness, "it was the wrong direction for him [Dr Vastrad] to take". 61In relation to Patient B, Dr Menogue's evidence was that it was not bad medicine for Dr Vastrad to conduct a second examination on Patient B. He said that if Dr Vastrad had not ordered a chest x-ray, "he would have great difficulty defending why he would want another examination that way, but, by the virtue of ordering the first chest x-ray in a history of somebody with asthma, the need to re-examine, albeit some short time after, is not unreasonable." When asked in cross-examination about the use of the word "grope" by Patient B, Dr Menogue gave the following evidence: Q: But you do not associate with the word grope the three fingers palpation on the chest, do you, that is not a grope to you? A: If the three finger palpation has been undertaken medically then that is not a grope. Q: And everything you have seen in all these reports and accounts, the action described by the patient is a palpation on her ribs but over some breast tissue? A: According to her, yes. ... Q: You didn't see anything in her account of what happened to attach the word grope, did you? A: No. Q: And you didn't see anything in the doctor's account to attach the word grope, did you? A: No. Q: So you are not of the view on what you have seen and what you have been provided that there was, that that had occurred? A: On the evidence presented to me then I agree; as I said earlier I wasn't there, there is no evidence that a grope, to use your word, took place. Consideration Patient A - Complaint one 62It was common ground that Patient A started working at the Bella Vista Medical Centre at Baulkham Hills as a receptionist on or about 10 February 2008. She was employed by Dr S Mahajan. She had previously worked as a personal trainer, which her father regarded as a career that lacked opportunities. She did not have prior experience for work as a receptionist and initially experienced some stress in operating the computer system. It was accepted that the computer system used in the practice was outdated and not user friendly. 63Dr Vastrad started working at the Bella Vista Medical Centre in late 2003. He was an independent contractor. He paid a service fee to the practice and the practice retained a percentage of his fees. 64Dr Vastrad had seen Patient A on 6 February 2008 for a skin examination. His medical notes record: 1 SKIN EXAMINATION: RE MOLEMAX II LESIONS NOTED/R/VED, DISCUSSED ... SKIN PROTECTION FROM SUN EDUCATION: DISCUSSED CONCLUSION: MX: CRYO N2 ... R/V PRN FOR BIOPSY/EXCISION PER APPOINTMENT OF IRRITABLE SKIN LESIONS WSP LESIONS ON BACK AS DISCUSSED & EXPLAINED 2 MULTIPLE MSK PAIN TRIGGER SPOTS STRESS/ANXIETY + PAST MAJOR DEPRESSION + HYDRATION FAIR CLINICALLY WELL OTHERWISE 65Patient A's recollection was that when she first started working at the Bella Vista Medical Centre, Dr Vastrad was very friendly. He would regularly ask how she was feeling and tell her not to be stressed. He said that he ran ways of relaxation and meditation. Patient A had heard from some of the other female employees in the practice that he was into "this spiritual meditation thing". Patient A also said that Dr Vastrad told her to schedule a time and he would show her some breathing and relaxation exercises to calm her down. 66There was a dispute between Patient A and Dr Vastrad as to who organised the consultation, although nothing turns on this dispute. Patient A's attitude to Dr Vastrad prior to the consultation on 14 February 2008 was that he was "a great funny guy". 67It was also common ground that at the time that Patient A saw Dr Vastrad on 14 February 2008, she was taking the antidepressant drug "Luvox". 68The clinical notes of Dr Vastrad for the appointment on 14 February 2008 record the following: MULTIFACTORIAL ANXIETY STRESS WITH H/O DEPRESSION USING LUVOX DOES LOT OF PHYSICAL TRAINING MULTIPLE MSK PAIN TRIGGER SPOTS DIFFUSE TENDERNESS ++ TROM PAINFUL DECREASED DNV NAD HYDRATION FAIR CLINICALLY WELL OTHERWISE ETX DD MX SEQUELAE DISCUSSED EXPLAINED MONITOR MODIFIED ACTIVITIES R/V PRN AS DISCUSSED & EXPLAINED DIET LIFESTYLE MX INCL RELAXATION MEDITATION STRETCHING E'CISE AS DISCUSSED EXPLAINED 69The Tribunal turns to consider the particulars of complaint one. Particular one alleged that: 1. During a consultation with the practitioner on 14 February 2008, the practitioner instructed Patient A to undress to her underwear. After an initial examination, the practitioner instructed Patient A to lie down on the examination bed: a. The practitioner touched body parts including the buttocks, groin and pelvic areas of Patient A, an examination of which was inappropriate in the circumstances. 70Dr Vastrad denies particular 1(a). His evidence is that he did not press higher than above the middle of Patient A's thigh and that he did not move Patient A's "undies off her buttocks". His evidence in his s 40 submission, was that he pressed and mobilised trigger points in the legs, side and the back of Patient A. Dr Vastrad's case was that the "touching" was in fact "palpating". 71Patient A provided a diagram with numbers placed against each of the areas that Dr Vastrad pressed. The evidence of both Drs Menogue and Hunter was that (notwithstanding the issue of the employer/employee relationship), the palpating of the areas identified by Patient A was reasonable and clinically indicated. 72Dr Menogue in his report of 19 December 2008 stated: In regard to the assessment of various points of enthesopathy, it is reasonable to perform careful palpation of appropriate origins and insertions of musculotendinous structures as this can identify areas of treatment whether they are from a Western medicine or Eastern medicine perspective. 73Dr Menogue was taken to Patient A's diagram. His evidence was that points 10 and 11 of Patient A's diagram appeared to be the point of the adductor region and point 6 and 7, found lower down each leg in the knee region, was described as the inductor insertion region. There was no suggestion by Dr Menogue in his evidence that the various locations where Dr Vastrad palpated Patient A were inappropriate in the clinical sense. However, Dr Menogue stated the examination of trigger points was exhaustive and excessive and attracted his strong criticism. 74Ms McNaughton took Dr Hunter, who was called as an expert by the respondent, to Patient A's diagram. Dr Hunter was not critical of Dr Vastrad's palpation of any of the points indicated in Patient A's diagram. 75Asked by Mr Ainsworth to comment on Dr Vastrad's approach in relation to musculoskeletal tension, Dr Hunter said: ... it struck me that Dr Vastrad had a good understanding of the musculoskeletal system and of trigger points. Trigger points, if there are a number of different words for it but it is recognised in western medicine and also in eastern medicine as these points are classic spots along the body which induce pain and often are associated with muscle tension. ... I didn't really think there was an issue there. 76Dr Mahajan, the owner of the practice, said that the alleged incident between Patient A and Dr Vastrad was not mentioned to him for days. He spoke to Patient A the following day and there was no indication of any problems. 77On week two of her employment, Dr Mahajan received a phone call from Patient A who said she was not coming in to work because she had family problems and she had decided to resign because she had received inadequate training. 78In view of the evidence of Drs Menogue and Hunter, the Tribunal finds that the examination undertaken by Dr Vastrad on 14 February 2008 was not inappropriate in the circumstances. Particular 1(a) has therefore not been made out. Particular 2(a) 79Particular 2(a) alleges that: 2. During a consultation with Patient A on 14 February 2008, the practitioner: a. Failed to request Patient A to get dressed after carrying out the medical examination and assessment. 80Dr Vastrad denies particular 2(a) in the form as drafted. Dr Vastrad's evidence was that he did invite Patient A to get dressed following the assessment and examination. However, Dr Vastrad admitted in his written statement and in his oral evidence that it was inappropriate for Patient A to have remained in her underwear and that he should have insisted that she get dressed. 81In respect of this particular, Dr Hunter stated in her written report: My only strong criticism of this part of the consultation is that Dr Vastrad did not insist that the patient get dressed. 82In her opinion, this was a "significant departure from the expected standard". Dr Menogue reached a similar conclusion. 83Dr Vastrad has conceded that it was inappropriate for Patient A to have remained in her underwear after carrying out the medical assessment. Dr Vastrad should have insisted that Patient A get dressed following the examination. It is, in the Tribunal's view, incredulous to suggest that Patient A, who was aged 24 at the time of the consultation, would not accept a doctor's invitation to get dressed, but prefer to remain in her underwear. The Tribunal is comfortably satisfied that this particular has been made out. Particular 2(b) 84Particular 2(b) alleged that: 2. During a consultation with Patient A on 14 February 2008, the practitioner: b. Requested Patient A who was still undressed to her underwear to sit in a chair opposite to him where her legs were touching his, which was inappropriate in the circumstances. 85Dr Vastrad denies that his legs were touching the legs of Patient A whilst they were seated in the chair opposite each other. His evidence was that he and Patient A were sitting at least 50cm apart for the purpose of going through some meditation exercises. 86Ms McNaughton suggested to Dr Vastrad that he performed this aspect of the examination for his own sexual gratification. However, up until this point of the consultation, the Tribunal is satisfied and finds that Dr Vastrad's conduct was clinically indicated (apart from having the patient remain in her underwear). 87There was no evidence of intimate questioning, or as Mr Ainsworth submitted, "no language going with it on her version of events to give it that licentiousness". Drs Hunter and Menogue did not identify any clinical problems with Dr Vastrad's examination of Patient A. In these circumstances, the Tribunal is not prepared to find that the nature of Dr Vastrad's consultation changed to be one for the benefit of his own sexual gratification which was not part of the particulars. 88However, Dr Menogue's opinion was that there was no evidence that would justify why Dr Vastrad would need to sit opposite, particularly on a chair (whether foreheads were touching or not) in order to obtain further information. In this respect, he regarded Dr Vastrad's conduct fell below the standard expected of a medical practitioner of equivalent level of training, but not significantly below the standard. 89In respect of this particular, there are two opposing versions of events that are irreconcilable. The Tribunal cannot be comfortably satisfied that Patient A's evidence in this respect should be accepted over Dr Vastrad's evidence. We find particular 2(b) not made out to the requisite standard. Particular 2(c) 90Particular 2(c) alleged that: 2. During a consultation with Patient A on 14 February 2008, the practitioner: c. Undertook meditation and breathing exercises with Patient A who was still in her underwear, when there was no clinical indication to do so. 91Dr Vastrad concedes that Patient A remained in her underwear during this part of the consultation but denies there was no clinical indication to undertake meditation and breathing exercises. Dr Vastrad's evidence was that it was necessary for the following reasons: (a) Patient A was suffering from depression and anxiety; (b) Patient A was being treated with reasonably strong antidepressants; (c) Patient A had no mental health management plan; (d) Patient A was not undergoing any counselling or therapy; (e) Patient A was anxious as a result of her new job which provided minimal supervision to her; (f) Dr Vastrad had knowledge and experience in complimentary medicine which provided a more holistic/integrated comprehensive approach to the treatment of depression and anxiety. 92The evidence of Dr Menogue was that the use of Eastern techniques including breathing and meditation exercises supplemented anti-depressants. Dr Menogue's criticism was of the relationship between Dr Vastrad and Patient A at the time of the consultation (receptionist) given the nature of the consultation. He also expressed the opinion that there was little evidence as to why Dr Vastrad would give Patient A any advice regarding relaxation techniques at all. Dr Menogue in his report dated 19 December 2008, stated: Dr Vastrad had performed an exhaustive history and examination in regard to an enthesopthy diagnosis but failed to provide any treatment for that enthesophy. It is reasonable to conclude that the management of enthesopathy involves a more expansive management programme than simple relaxation and breathing classes. If Dr Vastrad concludes that the appropriate management at the end of a 50 minute consultation was to sit in a chair opposite each other and providing exchange of energy forces and a breathing technique, then that management falls well short of what is required to manage enthesopathy, whether it be from a Western or Eastern medicine perspective. Based on Dr Vastrad's testimony, his justification for performing the rigorous and exhaustive musculoskeletal assessment is inconsistent with then providing breathing technique as treatment. 93Dr Menogue concluded that Dr Vastrad's conduct fell below the standard expected of a practitioner of equivalent level of training and experience and the departure from the standard was significantly below that standard. 94Dr Hunter's evidence was that people who suffer from mental health problems such as depression or anxiety often suffer from muscle tension and that such persons would benefit from some form of relaxation therapy. Dr Hunter said that the use of meditation with Patient A was indicated. She also gave evidence in relation to studies which demonstrated that meditation therapies may be more beneficial to a patient's wellbeing than pharmaceutical solutions and that the use of medication alone is limited in its effectiveness. 95Dr Hunter's opinion was that Dr Vastrad offered a more specialised type of service which played a complimentary role to Patient A's antidepressant medication. Dr Hunter was supportive of the modality and techniques used by Dr Vastrad. Unlike Dr Menogue, Dr Hunter was of the view that it was reasonable for Patient A to consult with Dr Vastrad, given the specialised nature of the service he provided. 96The Tribunal is of the view that, although there is a degree of conflict between the medical experts, taking into account Patient A's health at the time of the consultation, as reflected in Dr Vastrad's clinical notes, this particular was not made out. Particular 2(d) 97Particular 2(d) alleged that: 2. During a consultation with Patient A on 14 February 2008, the practitioner: d. Placed his hands on the chest of Patient A, who was still in her underwear, and instructed Patient A to push her forehead against his and to place her hand on his chest, which was inappropriate in the circumstances. 98Dr Vastrad denies this particular. 99In Patient A's statement dated 19 February 2008, she said: He put his hands on my shoulders breathing in & out & rubbed hands down my shoulders, then he instructed to press heads together & breathe in & out, & relax, stating that this is an energy point. He then did the same but said to place my hand on his chest and his hand on my chest [and] continued breathing. Then he said that we now needed to do an area that was important & explained that you must squeeze pelvis-floor muscles & and breathe in & and out. He said that I would need to place my hand on his penis & his on my groin area. I was very nervous and he said sometimes males may become 'aroused' or 'get an erection' but that is normal and to ignore it. I didn't feel comfortable and asked the time it was 540pm, I was shocked at the time gone and asked again in dissbelief (sic). He said that we would just do 5 or 10 mins more. Still very uncomfortable. I said I better go as it was late. He said that normally he wouldn't continue 'this' part of the session on the first session and we could do it at a later session. I said I didn't feel comfortable and preseeded (sic) to get dressed & thanked him and left. 100Dr Vastrad's evidence was that he indicated various points on Patient A's body in which she should touch whilst practising breathing exercises. Those points were her head, her chest and her abdomen. His evidence was that that component of the consultation took no more than one to two minutes with two to three breaths for each area. 101It was the evidence of Dr Hunter and Dr Vastrad that techniques involving mutual touching did exist in Ayurvedic Medicine. Dr Hunter's evidence was that she did not believe that the touching techniques were appropriate in a clinical setting. 102Dr Vastrad's evidence was that he had heard of techniques of mutual touching but did not practice it. 103Patient A did not know immediately following the consultation whether Dr Vastrad had done anything wrong during the consultation. Patient A's view was formed after discussing the consultation with the other receptionist at the Bella Vista Medical Centre who suggested to her that Dr Vastrad was under investigation in relation to another sexual misconduct complaint. Dr Mahajan, the owner of the Bella Vista Medical Centre, stated during his evidence that this was not the case and the complaint that he was aware of against Dr Vastrad was in relation to a young male patient who had a mole removed. 104Patient A subsequently spoke with her then partner. According to Patient A, her partner suggested that he did not know whether or not anything was wrong and that she should speak to her sister. At this point, Patient A was still unsure and asked her sister for her opinion in relation to the consultation. The evidence of her sister was that Patient A did not speak to her until at least one day following the consultation. Her sister informed her mother, who contacted her husband and told him the version of events put forward by Patient A. Patient A's father did not speak to her about the consultation but instead lodged a complaint with the HCCC on 27 March 2008. 105Patient A's father gave evidence that his initial response was to ask whether or not Patient A had been raped. His second response was whether she was molested. This evidence suggests that the family's reaction to the consultation may have been significantly exaggerated. Patient A's sister's evidence was that she was pressuring Patient A to reduce her complaint to writing for two weeks. 106In her written statement to the HCCC, Patient A said about two days after the consultation, she had a conversation with Dr Vastrad when she took some patient files to his office. Her evidence was while she was there, he closed the door and took hold of her arm and said: Normally I would charge people for a session like that, but we are friends. And it is doctor patient confidentiality so I don't discuss what went on. I would like you to not discuss this with anyone else because other people would not be happy about me not charging you. And the other doctors would not be happy about me practising that sort of thing here, I usually only practise that sort of thing outside the surgery. 107Her reaction to this was to think that Dr Vastrad "was sick and I thought something was really wrong and not right." 108That same afternoon, after speaking to the receptionist, Patient A's evidence was "I think something might have happened to me then. I had a really long consultation and he was asking me to put my hand on him." 109Patient A's evidence was that after later discussing the consultation with her sister and her partner, she decided that she would resign her employment. She said she was really upset and couldn't face work. The next day she called the surgery and said she could not go to work because of a family emergency. She subsequently informed the doctor that she contacted at the surgery that she had been harassed by a doctor and she wanted to resign. After resigning her position, she consulted another doctor outside the practice because she said she had "really bad anxiety." She was stressed because she did not have a job and needed to pay rent and did not have an income. 110Her evidence was that she told the doctor of "some sexual harassment by a doctor at a surgery". She was unable to remember the doctor's name. Her evidence was that on or about 16 April 2008, she commenced counselling for anxiety. She felt uncomfortable about being around her fiancé and being intimate with him. She said "she slept in a separate room a lot more after this happened." 111Mr Ainsworth submitted that Patient A's evidence on this issue should not be accepted as she had given evidence that it was not until two days after the consultation that she believed anything was wrong and that her recollection and understanding of the consultation was vague at best. 112We reject this contention. We find that Patient A complained to her sister within two days of the consultation. Patient A's sister gave an essentially consistent account of how Patient A checked with her sister to confirm that the activity of the doctor was in fact inappropriate or wrong. This account is inherently credible. The lack of confidence from a depressed young woman who had, up until this time, not experienced anything like Dr Vastrad's behaviour from any other doctor she had consulted is also credible. Her lack of confidence combined with the trust she had in doctors assists in explaining the small delay in the complaint. 113Furthermore, Patient A had no particular knowledge of Ayurvedic medicine. She gave an account of what occurred which, according to Dr Vastrad's own expert, accorded with accepted practice of Ayurvedic medicine. 114The Tribunal found Patient A to be overall a credible witness. 115Although Dr Vastrad denied touching Patient A in the course of the Ayurvedic practice, there is evidence from both Dr Hunter and the practitioner himself that such touching can occur in the course of such practice. The Tribunal finds the practitioner's evidence in respect of this issue to be inherently unlikely when assessed against the evidence of Patient A and what she told her sister. 116What emerges from an overall analysis of Patient A and Dr Vastrad's evidence is Patient A misunderstood the consultation. She said that she was not listening, at times, to Dr Vastrad's explanation of Ayurvedic medicine. Similarly, Dr Vastrad's evidence was that he did not realise the explanation that he was giving was going completely over her head. His evidence was that he did not realise that she did not understand what he was saying. 117Dr Hunter observed, and Dr Vastrad conceded that this was a mistake on his part. Dr Menogue's opinion was that "no good was going to come of this". 118For the foregoing reasons, the Tribunal is comfortably satisfied that this particular has been established. It was inappropriate for Dr Vastrad to invite Patient A to push her forehead against his and to place his hands on her chest and have Patient A place her hands on his chest. Patient B - complaint two 119The particular to complaint two alleged that: The practitioner examined Patient B in the company of her mother and prescribed her antibiotics. At approximately 8:45 pm, Patient B's mother left the consultation room to purchase the antibiotics. The practitioner told Patient B that he wanted to listen to her breathing again and placed the stethoscope on the left side of her chest underneath her shirt and placed his right hand on Patient B's sternum underneath her clothes. He inappropriately: a. Moved his hand upward and to the left inside Patient B's bra cup where she felt three fingers on the left side of her breast and then on her ribs. 120Dr Vastrad admitted that there was a second physical examination of Patient B, which occurred after Patient B's mother left the consultation room, but strongly denied particular (a) of the complaint. 121Patient B presented to the Queen Street Medical Centre on 12 March 2008, with symptoms consistent with a serious chest infection. At the time of the consultation, Patient B was coughing up mucus, had a painful chest and was short of breath. Patient B made no criticism of Dr Vastrad's conduct during the initial examination whilst her mother was in the consultation room. Patient B's evidence was that she was pressed through the breast tissue to the ribs base in the same way that she was pressed elsewhere, with Dr Vastrad using three fingers. Those three fingers were used for the same motion as the balance of the examination. Patient B did not believe there was anything wrong with the palpation of the other areas of her chest, which was done in an identical fashion. Patient B was at the time taking Epipen, an emergency treatment of severe allergic reactions (anaphylaxis), and requested a script for this as she had run out. As it was approximately 8.40pm, her mother decided to go to the Chemist before it closed to obtain the antibiotics. Her evidence was that after her mother left the surgery to obtain the antibiotics from the chemist, Dr Vastrad called Epipen Australia. In order for her medical practitioner to write a script for Epipen, it is necessary to obtain approval. After making the phone call, Dr Vastrad printed off the prescription and said to Patient B "I want to check your breathing again." 122In her written statement, Patient B says that Dr Vastrad asked her to stand up and he placed the stethoscope "a bit lower than the first time." He put the stethoscope on the left side of her chest underneath her top and then he took his hand out and put the stethoscope down. He then pushed with his right hand on her sternum under her clothes and he enquired "where are your ribs sore?" He asked "is it sore here?" and Patient B said "yes." Her evidence was that "he moved his hands lower to the lower part of my ribs where the ribs join and again asked if it was sore. He then moved his hand upwards and over towards the left, inside my bra cup and he pushed three fingers into my breast on the left side and I could feel his three fingers on my ribs." Upon leaving the consultation room, Patient B said to her mother "I never want to see him again." Her mother asked what did she mean and Patient B said "he played with my boob, he fondled my boob." 123Patient B's mother's evidence, in her written statement to the HCCC, was that Patient B, in response to her question "what do you mean" stated that Patient B said "he felt me up and then he did it a second time and I realised this was not right and I felt very uncomfortable and very filthy." 124Patient B's mother confirmed during her cross-examination that it was only when her daughter told her that it happened a second time, that her daughter realised it was not right. There is clearly a fundamental inconsistency in relation to this complaint. This is not limited to the evidence that "he felt me up" or "he played with my boob, he fondled my boob". At the earliest possible time of the complaint where Patient B gives her explanation of what happened to her mother, she says that Dr Vastrad "did it a second time". Patient B's oral evidence is that Dr Vastrad did not do it a second time. On Patient B's evidence, there was one palpation inside her left bra cup. This is denied by Dr Vastrad. 125Both Drs Menogue's and Hunter's opinions were that it was clinically indicated that a second examination should take place. Dr Menogue, in his report of 19 December 2008, noted that Patient B indicated that she was experiencing chest pain as part of her presenting symptoms. His opinion, in these circumstances, was that a general examination of the chest wall was not unreasonable. Dr Menogue stated that chest pain is usually a sign of intercostal myalgia secondary to persistent coughing or muscle inflammation from the infecting agent in respiratory tract infections. Intercostal muscles run from the sternum (in parallel with the adjacent ribs), to the spine at the back. Any one part of this muscle can be inflamed. The fact that there is breast sitting over one of the intercostal muscles is irrelevant. Palpation of the appropriate intercostal area is the only way in which one can illicit tenderness that may be construed as intercostal myalgia. 126He further observed that chest pain, in a chest infection context, may also be a feature of pleurisy which is a sign of pneumonia; differentiating the two is an important clinical component of the respiratory examination process. Had Patient B not complained of chest pain, then a full palpation of the thoracic cage, including the area posterior to either breast would be unnecessary. However, in this situation, chest pain was one of the presenting symptoms and therefore Dr Vastrad's assessment, according to Patient B's version, was appropriate. Dr Menogue was asked whether Dr Vastrad's second examination of Patient B's chest was necessary. In his view, Dr Vastrad's conduct in undertaking a second examination, did not fall below the standard expected of a practitioner with an equivalent level of training and experience. Accepting Dr Vastrad's version of the consultation with Patient B, Dr Menogue's opinion was that Dr Vastrad's conduct did not fall below the standard expected of a practitioner with an equivalent level of training and experience. 127In a supplementary report dated 19 January 2009, Dr Menogue concluded that there was insufficient evidence, based on Patient B's description of events in the first consultation, as to the site of pain to determine whether Dr Vastrad's palpation should, or should not, have included the region of the left breast. Dr Menogue stated that on the basis of that evidence, palpation of any region of the chest wall was therefore considered appropriate. It followed, in his opinion, therefore, that Dr Vastrad's conduct did not fall below the standard expected of a practitioner of an equivalent level of training or experience. 128The HCCC sought a further report from Dr Menogue by letter dated 1 May 2009. Dr Menogue was asked to respond to the following question: Q. Accepting [Patient B's] version: 1. Please comment on Dr Vastrad's second examination of [Patient B's] chest, in particular Dr Vastrad's conduct in placing his hand under [Patient B's] bra and touching her left breast. Dr Menogue's response in a report dated 13 May 2009 relevantly was: A. It is clear from [Patient B's] version that she had sought medical consultation because she had a respiratory tract infection and that this respiratory tract infection included chest pain. Upper respiratory tract infection rarely requires the need for a chest x-ray. The fact that Dr Vastrad requested a chest x-ray at the first consultation clearly demonstrates that he was of the view there might be some lower respiratory tract involvement i.e. lungs and/or components of chest wall. It is not materially relevant as to why Dr Vastrad asked to listen to her breathing again, but it may well be that he had not fully satisfied himself as to whether the chest pain might be due to chest wall pathology i.e. sternocostal joint inflammation and/or intercostal muscle myalgia. Both of these conditions can be excluded if palpation of the chest wall does not reveal any tenderness. It is quite appropriate to palpate the sternocostal joints, given the history, which usually sit 1½ to 2 cm either side of the sternum. Anatomically this does not include an area where there is breast tissue however it is obviously in the immediate vicinity of both breasts. For an individual with a D Cup (i.e. a large bra) it would require at least some part of the fingers of the examining hand to palpate within the bra cup itself in order to perform this part of the chest wall examination. However this does not necessarily mean that breast tissue is being palpated. It would appear to me that [Patient B] has perhaps poorly interpreted this part of the examination process - based on her version. Dr Vastrad has clearly provided an insight into his thinking regarding lower respiratory tract pathology by the ordering of the chest x-ray. It is therefore not reasonable for him to determine at the initial consultation whether there was chest wall tenderness which might provide an explanation of her chest pain. The fact that [Patient B] indicated to him that the chest pain was central, does not remove the need for him to palpate the sternocostal joints nor for that matter, the intercostal muscles in that first 2 or 3cm lateral to the mediastinal midline, a region where the anatomically ignorant might consider was "breast territory". In this context therefore Dr Vastrad's conduct does not fall below the standard expected of a practitioner of an equivalent level of training or experience. 129By letter dated 17 November 2010, the HCCC wrote Dr Vastrad's solicitors. The letter read: I refer to the above matter listed to commence as a hearing before the Medical Tribunal of NSW on Monday 22nd November 2010. We conferred with the expect reviewer in this matter Dr Nigel Menogue in the afternoon of 16 November 2010, by telephone. In the course of the conference, Dr Menogue was referred to page 3 of his report dated 13 May 2009 where he had opined "that [Patient B] has perhaps poorly interpreted this part of the examination process..." and found that Dr Vastrad's conduct did not fall below the standard expected of a practitioner of an equivalent level of training or experience. He was then asked to comment on a scenario where the doctor directly and deliberately palpated the complainant's breast tissue other then inadvertently (or words to that effect). In those circumstances, the doctor was of the opinion that the conduct would fall below the standard expected. It will be a matter for the Tribunal to make a determination of fact in relation to the incident. 130Dr Hunter's evidence was that it was not appropriate for a practitioner to put his fingers inside a patient's bra. Her evidence was that the patient should be asked to remove their bra for ease of access. Dr Hunter's evidence was that she was not sure why Dr Vastrad did not in fact also palpate the right side, although she later indicated that it may be because the purpose of the second examination was to confirm a diagnosis which had already been made. 131During cross-examination, Dr Hunter gave the following evidence: Q. On a stress basis would such an examination be indicated under the bra? A. Yes, it would because she's presented with an acute respiratory tract infection and so the symptoms could just be directly as a cause of coughing and respiratory tract infection. However, psychosomatic pain across this area is a very common presentation with anxiety and often, as a general practitioner, particularly in older patients when they present, we're suddenly having to disentangle what are the different causes and exclude physical causes before we can confidently say to the patient This is actually a psychosomatic symptom of your anxiety. So if the patient says I've also got anxiety and I'm worried about this pain - and of course if you've got anxiety, pain across the chest is usually very worrying, then you would want to examine to determine: 1, if there was a physical cause for it, particularly so you could reassure the patient and say Look, even though you have anxiety, these symptoms could easily just be from the chest infection and you can reassure them about that. Q. Why would, in relation to the anxiety, why would putting a hand down the bra assist that? A. Well if we're talking about from Dr Vastrad's point of view he didn't put his hand down the bra. Q. Yes, I'm asking you to merge the versions now? A. Oh to merge them. Q. Just for this? A. You still examine until you're confident that you've excluded or confirmed the clinical findings, so if the bra, as I understand you're saying, was right to the midline there? Q. Mm? A. So that would be okay because you need to confidently be able to say to the patient yay or nay, these symptoms are, I think they're related to your anxiety or I think they're related to the chest infection. ... Q. Hand down the bra palpating the breast tissue and through to the ribs? A. Yes. Q. How has that got to with reassurance in relation to anxiety? A. Well the chest pain can be a presentation of anxiety or it can be a presentation of a respiratory tract infection in this case, there are other things that can cause chest pain as well. So if a patient comes in and they're saying "I'm anxious but I've also got this physical system" you need to do a history examination and any other investigations to exclude any physical causes before just simply reassuring the patient Don't worry, it's just related to your anxiety. Q. I think in your report you've indicated both sides would be need to be-- A. I would usually examine both sides, yes. I mean he'd already examined the patient beforehand so he'd already diagnosed respiratory tract infection and already decided a chest x-ray and antibiotics were indicated, so if you felt there and there was some tenderness, well you've already confirmed your suspicion that you think that this is the physical cause rather than directly just simply a psychosomatic symptom so yes you could - I mean I would just usually anyway palpate the other side and determine, again you just want to know that. But you could arguably say Well it was a quick examination, we were already time pressured, I've already got the information I need, the clinical information, to confirm by one side because it was tender. But I would usually do both. 132Dr Menogue's evidence was that he did not believe Patient B, or any patient, could feel the number of fingers which would be palpating breast tissue. Dr Menogue indicated that he had some doubts as to the veracity of Patient B's version of events. 133Patient B and her mother gave evidence to the HCCC that Patient B was "fondled" and "he felt me up". These terms which appear to be the basis of this complaint do not form part of it. Counsel for the HCCC, in her opening, did not make any reference to "fondling". Dr Menogue could not accept that the touching of Patient B could in any way be construed as a "fondle". 134The only criticism by the HCCC of Dr Vastrad's conduct in relation to Patient B would be the suggestion that Dr Vastrad touched Patient B, not for any clinical reasons, but for his own sexual gratification. Although this proposition was inconsistent with the medical evidence, it was put to Dr Menogue by Ms McNaughton. Dr Menogue's evidence was that when presented with such a proposition that naturally, when the question is framed in that manner, he would have to be critical. 135In addition, counsel for the HCCC, despite not having any evidence to support it, and having not provided notice of her intention to raise it, put to Dr Menogue the suggestion that Dr Vastrad did not possess the subjective belief that the second examination was medically justified. Dr Menogue did not accept that proposition as the ordering of the chest x-ray raised the spectre that there may have been lower respiratory tract pathology. 136Patient B was clearly unwell when she consulted Dr Vastrad. It transpired that she had pneumonia which was only discovered as a result of the x-ray which Dr Vastrad ordered. In the Tribunal's view, and we find, the contention that Dr Vastrad did not hold the subjective belief that Patient B required a second examination is entirely inconsistent with all of the available medical evidence. 137On either version of events, there was no evidence from the experts criticising the conduct of Dr Vastrad. Patient B may have misinterpreted being palpated around a highly sensitive area. She may have been suspicious that Dr Vastrad performed the second examination in the absence of her mother. However, there was no evidence of Dr Vastrad gripping or squeezing Patient B's breast. Dr Vastrad may have been clumsy and may not have clearly communicated to Patient B why he was undertaking a further examination. He consistently denied placing his hand within Patient B's bra cup. The evidence of Patient B that Dr Vastrad fondled her breast is firstly, not part of the complaint and secondly, inconsistent in any event with Patient B's evidence of a three finger palpation by Dr Vastrad. 138Both experts agreed that a second examination was clinically indicated. As the Tribunal has observed, there was a significant inconsistency between the evidence of Patient B and her mother. Although Patient B's evidence is entitled to sympathetic consideration, the authority referred to earlier at [12] makes clear that the Tribunal must reach comfortable satisfaction. However, on the critical issue, the Tribunal has concluded Patient B's evidence was unconvincing. This raises considerable doubts as to the weight that can be given to Patient B's evidence overall, particularly where it is the essential foundation to the case against Dr Vastrad. Furthermore, both experts stated that it was not inappropriate to palpate the breast region. 139To the extent that the HCCC attempted to undermine Dr Vastrad's credit by alleging that he had concocted his notes of the consultation with Patient B following the complaint being made, we would observe that it seems odd for Dr Vastrad to have included in his notes that the door to the consultation room was open. In view of the inconsistency in the evidence and the Tribunal's overall approach to the evidence of Patient B and her mother, we are not able to reach a finding on the requisite standard adverse to Dr Vastrad in respect to this aspect of the evidence. 140In light of Dr Vastrad's denial of placing his hand inside Patient B's left bra cup, and our approach to the evidence of Patient B and her mother the Tribunal is unable to reach the standard of satisfaction required to find that this complaint has been established. 141For these reasons, Dr Vastrad's conduct does not offend s 36 and s 37 of the Medical Practice Act. In these circumstances, Dr Vastrad is entitled to his costs in respect of complaint two. Summary of Findings 142The Tribunal finds particulars 2(a) and 2(d) of complaint one have been established. Particulars 1(a), 2(b) and 2(c) of complaint one, and complaint two have not been made out to the standard of satisfaction required by the Tribunal. Penalty 143The question to be determined is whether, in light of the Tribunal's findings, Dr Vastrad has been guilty of merely unsatisfactory professional conduct, or whether the conduct goes further, to come within the ambit of professional misconduct. 144Section 37 defines "professional misconduct" as "unsatisfactory professional conduct" of a sufficiently serious nature to justify suspension of the practitioner from practising medicine, or the removal of the practitioner's name from the Register. Ms McNaughton submitted that, cumulatively, the several instances of conduct each constitute instances of unsatisfactory professional conduct under s 36(i)(a) and s 36(i)(b) of the Medical Practice Act. Cumulatively, counsel submitted, they fall within the definition of "professional misconduct" under s 37 of the Medical Practice Act representing conduct of a sufficiently serious nature to justify the respondent's name being removed from the Register. 145We are comfortably satisfied, on the balance of probabilities, that the conduct of Dr Vastrad amounted to "unsatisfactory professional conduct" within the meaning of that expression in s 36 of the Medical Practice Act. 146In reaching this decision, we are mindful of the principles to be applied in determining the appropriate order under s 61 of the Medical Practice Act. Such principles are set out in Health Care Complaints Commission v Litchfield; William Gayed v Merrilyn Walton NSWCA (31 July 1997, unreported); Bannister v Walton (1993) 30 NSWLR 699. They include: (i)the protection of the public is of paramount consideration; (ii)the maintenance of the higher standards of the medical profession; (iii)deterring not only the particular practitioner but others who may stray from the appropriate standards; (iv)a reminder to the profession; and (v)to emphasise the unacceptability of the conduct involved. 147In Prakash, Basten JA, in a separate judgment (Tobias JA agreeing with Santow JA in a separate judgment) observed at [91]: ... any order made upon a finding that a complaint has been proved, is said to be protective of the interests of the public at large, but more particularly patients or potential patients of the practitioner concerned. However, the public interests include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners. There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so. The powers of a Tribunal having two members of the medical profession should, at least in relation to professional standards be accorded a degree of flexibility which might not necessarily be accorded to a Tribunal differently constituted. 148In addition to the findings that the Tribunal has made, the Tribunal regards Dr Vastrad's decision to treat a member of the Bella Vista Medical Centre's staff and his failure to properly explain and communicate with Patient A what he was doing, as also amounting to unsatisfactory professional conduct. 149The Tribunal has reached the conclusion that Dr Vastrad's conduct deserves to be denounced in protection of the public and the standing and reputation of the medical profession. It is the view of the Tribunal that this can be achieved if the practitioner is reprimanded and conditions imposed upon Dr Vastrad's registration. 150The respondent submitted that the HCCC's case should fail in its entirety and that in those circumstances, a non publication order should be made. As this is not the outcome, there is no basis to suppress the name of Dr Vastrad. Costs 151The Tribunal's power and discretion in relation to costs was reviewed in NSW Medical Board v Dinakar [2009] NSWMT 8. The general rule is that in the absence of disentitling conduct by the successful party, the Tribunal will exercise its discretion by compensating the successful party through an order for costs. The HCCC sought an order for costs. In the event that complaint two was not made out, Mr Ainsworth sought costs in respect of this complaint. We propose to order that Dr Vastrad pay the HCCC's costs in respect of complaint one, and that the HCCC pay Dr Vastrad's costs in respect of complaint two on the ordinary basis, as defined in Sch 3 of the Civil Procedure Act 2005. ORDERS 152The orders that the Tribunal makes are: 1. Dr Vastrad be reprimanded. 2. Dr Vastrad is to pay the HCCC's costs of these proceedings, in respect of complaint one, on the ordinary basis, as defined in Sch 3 of the Civil Procedure Act 2005. 3. The HCCC is to pay Dr Vastrad's costs of these proceedings, in respect of complaint two, on the ordinary basis, as defined in Sch 3 of the Civil Procedure Act 2005. 4. Pursuant to s 61(1)(c) of the Medical Practice Act, the Tribunal directs the conditions set out in the Annexure are to be placed on Dr Vastrad's registration. 5. Pursuant to Clause 6 of Schedule 2 of the Medical Practice Act 1992 the Tribunal has ordered that there be no publication of the names of the patients or of any material capable of identifying the patients. ********** Annexure Communication/risk Management: He is required to participate in and complete, at his own expense, all components of the Clinical Communication Program ("CCP") for general practitioners, conducted by the Cognitive Institute. The CCP is conducted over six months and comprises three phases: 1. Preparation and Goal Setting (over a 6-week period prior to Phase 2) 2. Residential Workshop (3 days) in Brisbane, Queensland. 3. Implementation and Mentoring. To complete the Program He is required to supply to the NSW Medical Council: a) Within 2 weeks of the date of this Decision, copy of a letter confirming registration with the Cognitive Institute. b) Within 1 week of receiving each from the Institute, copies of the Progress Statements for both Phase 1 and Phase 2 of the Program. c) Within 1 week of receipt, a copy of the Institute's Certificate detailing satisfactory completion (or otherwise) of all Program components. Practice Conditions 1. To practise only in a NSW Medical Council-approved group practice (group is defined as at least 3 practitioners), with one other practitioner (supervisor) always on site. 2. Dr Vastrad must obtain NSW Medical Council approval prior to changing the nature or place of his practice of medicine. 3. Until Dr Vastrad has successfully completed the Cognitive Institute course, whenever Dr Vastrad provides a medical service (including, but not limited to, consultations, examinations, or the performance of any procedure) to any female patient, a chaperone must be present at all times; a) Prior to any such examination, treatment or interview, he must inform each female patient of the necessity for a chaperone to be present at all times. Such person may be a family member or friend of the patient. 4. Dr Vastrad shall forward to the NSW Medical Council within seven days of the end of each calendar month a report listing all female patients operated on, examined, treated and/or interviewed by him during the calendar month. This report must include: (i) printed notation of the names of each patient and the chaperone; (ii) contemporaneous signature of the chaperone and each adult patient; (iii) date and time of each examination; and (iv) where applicable, the relationship of the chaperone to the patient. 5. If in the event of a medical emergency it is not practical to obtain the services of a chaperone, a chaperone is not required; however, any such event must be notified to the NSW Medical Council and recorded in the list of patients referred to in condition 4. A medical emergency is an event where it is not possible or reasonable to have a patient with a serious or life threatening or urgent condition, seen by another medical practitioner or transferred to the nearest hospital. 6. The costs of satisfying these conditions are to be met by Dr Vastrad. 7. To provide within seven days of receipt of this Determination, a copy of these conditions signed by or on behalf of his current employer, including any locum agencies and any hospital in which he works. In the case of any future employer, this must be provided within seven days of the date of commencing work. 8. To authorise his employer to notify the NSW Medical Council of any issues arising in relation to compliance with these conditions. 9. The NSW Medical Council may notify his current and future employer/s of any issues arising in relation to compliance with these conditions. 10. To authorise the exchange of information between the Medicare Australia and the New South Wales Medical Council, where, and if required, in order to facilitate monitoring of compliance with these conditions. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 March 2014