Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Baez [2014] NSWCATOD 3 Hearing dates: 11,12,13,18 and19 November 2013 Decision date: 03 February 2014 Jurisdiction: Occupational Division Before: Colefax SC DCJ Dr M Giuffrida Ms J Houen Dr M Cox Decision: Complaints made re Patients A, C and D proved. Complaint made re Patient B not proved. Catchwords: Sexual misconduct; professional misconduct Legislation Cited: Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 6 CLR 336 Director-General, Dept of Community Services, Re; Sophie [2008] NSWCA 250 Palmer v Dolman [2005] NSWCA 361 Gianoutsos v Glykis (2006) 65 NSWLR 539 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Fabian Baez (Respondent) Representation: Ms Stern SC (Complainant) Mr Boulten SC (Respondent) Health Care Complaints Commission (Complainant) Dibbs Barker (Respondent) File Number(s): 40025/12 Publication restriction: Suppression order re names of patients A, B, C and D REASONS FOR DECISION Introduction: 1The Health Care Complaints Commission has made complaints against Dr Fabian Baez in connection with allegations of sexual misconduct against four women said to have been patients of Dr Baez at the time of the asserted acts. 2Dr Baez was first registered as a medical practitioner in Australia on 5 February 1997 and he remained registered until 1 January 2008. From 1 January 2008 Dr Baez has not been a registered medical practitioner. 3The hearing before this Tribunal in connection with the complaints was conducted on 11, 12, 13, 18 and 19 November 2013. In that hearing the Commission was represented by Ms Stern SC and Dr Baez was represented by Mr Boulten SC. The parties requested the Tribunal to first (and separately) consider whether the complaints (or any of them) were made out before considering the question of appropriate protective orders - and costs. The Tribunal agreed to this course. At the conclusion of that hearing the Tribunal reserved its decision. 4The Complaint was originally filed in the Tribunal on 8 July 2011. On 4 October 2013, at a directions hearing before the Deputy Chairperson, leave was granted to the Commission to file an Amended Complaint. The formal hearing on the Amended Complaint began before a fully constituted Tribunal on 11 November 2013. However during the hearing, and specifically on 12 November 2013, leave was granted by consent to the Commission to file a Further Amended Complaint. 5In its final form, the Further Amended Complaint, in general terms, made the following allegations against Dr Baez - all of which he has denied through correspondence by his solicitors; and in one instance in a recorded interview with officers of the Commission. Dr Baez, however, did not give evidence at, nor attend, the hearing. No explanation for his absence was provided by Mr Boulten. 6First, in relation to Patient A, that he inappropriately touched and spoke to her in a consultation following a liposuction procedure. 7Secondly, in relation to Patient B, that he sexually assaulted her during an acupuncture session by digitally penetrating her vagina. 8Thirdly, in relation to Patient C, that he had sexual intercourse with her on two or three occasions in exchange for the provision of one session of Botox injections. 9Fourthly, in relation to Patient D, that he had an extramarital sexual affair with her. 10It will be seen therefore that, in relation to Patients A and B, there are potential criminal law considerations to be conscious of. The legislative provisions: 11The Tribunal is established pursuant to Division 10 of the Health Practitioner Regulation (Adoption of National Law) Act 2009 (NSW) ("the Law"). 12One of the objectives of the Law is: "(2) ... (a) to provide for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered; ..." 13In conducting an enquiry under the Law, the Tribunal may conduct those proceedings "as it thinks fit" (see section 167B(1) of the Law). 14In this regard, the Tribunal in such proceedings: "... is not bound to observe the rules of law governing the admission of evidence, but may inform itself of any matter in the way it thinks fit" (see paragraph 2 of Schedule 5D to the Law). The relevant Medical Council of NSW policy: 15Between 4 December 1991 and 8 November 2011 the following was the sexual misconduct policy of the Medical Council of NSW: "1. It is an absolute rule that a medical practitioner who engages in sexual activity with a current patient is guilty of professional misconduct. 2. While not detracting from the fundamental impropriety of such activity, the sanction applied as a result of a finding of misconduct may vary according to the circumstances of each case. 3. Factors to be considered include the degree of dependence in the doctor/patient relationship, evidence of exploitation, the duration of the professional relationship and the nature of the services provided. 4. The rule refers to current patients. The termination of the doctor/patient relationship prior to sexual activity may be raised as a defence, but its strength will be dictated by considerations of the factors referred to in paragraph 3, as well as the time lapse after the end of the professional relationship. 5. The rationale for the Board's position has been supported in many contexts by medical disciplinary authorities reasons for the rule include the following: (a) The doctor-patient relationship depends upon the ability of the patient to have absolute confidence and trust in the doctor. (b) The doctor is in a unique position regarding physical and emotional proximity. Patients are expected to disrobe and to allow doctors to examine them intimately. (c) The doctor-patient relationship is not one of equality. In seeking treatment, the patient is vulnerable. Exploitation of the patient is an abuse of power. (d) The doctor's role is one of authority by virtue of the patient seeking assistance and guidance. (e) Breaches of the doctor-patient relationship have often caused severe psychological damage to the patient. (f) The community expectation of the medical profession is one of utmost integrity. The community must be confident that personal boundaries will be maintained and that patients are not at risk. (g) Improper sexual conduct by doctors brings community censure and damages the credibility of the medical profession as a whole. (h) The onus is on the doctor to behave in a professional manner and it is unacceptable to seek to blame the patient if a sexual relationship develops. (i) Personal involvement with the patient will often lead to clouding of judgment. 6. The guiding principle is that there will be no exploitation of the patient or abuse of the doctor's power. Each case must be examined in relation to the degree of dependency between the patients and doctor and the duration and nature of the professional relationship. 7. The Board rejects the view that changing social standards requires a less stringent approach. The nature of the professional doctor/patient relationship must be one of absolute confidence and trust. It transcends social values and no standard other than the highest can be acceptable." The onus of proof: 16The onus of proof is the civil standard as explained in Briginshaw v Briginshaw (1983) 6 CLR 336 (see also Director-General, Department of Community Services, Re; Sophie [2008] NSWCA 250; Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361, Gianoutsos v Glykis (2006) 65 NSWLR 539; and Forster v Hunter New England Area Health Service [2010] NSWCA 106). Rulings on admissibility of certain evidence sought to be relied upon by the Commission: 17At the directions hearing on 4 October 2013 referred to at [4] above, the Tribunal was informed that the parties had attempted to come to agreement as to the scope of the evidence to be placed before the Tribunal but that there remained disagreement between the parties in certain respects. The Deputy Chairperson directed that the parties prepare written submissions in relation to the disputed material before the commencement of the substantive hearing. 18In due course those written submissions were filed, which included the particular documents the subject of dispute. 19The Deputy Chairperson gave consideration in chambers to the written submissions in the context of the then Amended Complaint before the commencement of the formal hearing by the fully constituted Tribunal on 11 November 2013. 20At the commencement of that hearing the Deputy Chairperson gave rulings on the objections and indicated that the relevant reasons would be subsequently incorporated into these Reasons for Decision. That course was agreed to by Ms Stern and Mr Boulten. 21These are now those reasons. 22The written submissions by Mr Boulten identified three general bases of objection to the disputed material: relevance; form; and hearsay. With one exception, the disputed material all related to Patient D, that is the lady with whom it was alleged by the Commission that Dr Baez had an extramarital affair whilst her treating doctor. 23It is important to understand that Dr Baez denied any such affair with that patient. Moreover, the Commission was not calling that lady to give oral evidence; nor had any written statement from her been obtained with an intention of tendering it. 24To the extent that some of the disputed material purported to contain hearsay admissions by Patient D to the wife of Dr Baez or another member of her family in the circumstances just described (i.e. where it was not intended to call Patient D or to put before the Tribunal any evidence from her), that hearsay evidence was rejected. The Tribunal is of the opinion that it would be unfair to the respondent for such serious allegations to be placed before the Tribunal in that way. 25Insofar as the objections were concerned with form, the Tribunal concluded that it was open to it to receive evidence in-chief in that form. The relevant witness making the statement was to be called and could be cross-examined. Moreover, considerations of the weight of the evidence would still remain to be considered, in the light of that cross-examination or otherwise. 26Insofar as the objections as to relevance were concerned, a significant proportion of that material was not pressed by the Commission. The balance was regarded as relevant. A Specific Consideration: whether the Tribunal should consider the evidence in relation to one charge when considering other charges particularised in the Complaint: 27Ms Stern specifically submitted that the Tribunal could (and should) consider the evidence in relation to other charges when considering any individual charge particularised in the Further Amended Complaint. That course was opposed by Mr Boulten. 28The principal authority relied on by Ms Stern in this regard is the decision of the Court of Appeal in Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82. 29In that case Mason P (with whom Priestley and Powell JJA agreed) said, at 91: "... [It] would be prudent for the judge presiding over a particular tribunal to consider directing his or her fellow members that they should exercise particular care to consider the evidence on individual charges separately, unless satisfied that there was no collaboration between the several patients and that the peculiar features of one incident (if proved) lends compelling weight to the proof of another." 30In the present case there is no suggestion that there was any collaboration between "the several patients". 31This leaves for consideration whether there were "peculiar features" of the incidents; and, if so, whether those peculiar features lent "compelling weight" to the proof of another. 32It was submitted by Ms Stern that there were similar peculiar features between Patients A, B and C (but not Patient D). In this regard it was submitted that the peculiar or similar features were sexual approaches per se by a doctor to a patient in circumstances where the patient was young or otherwise vulnerable. 33In the Tribunal's opinion, however, to say that the medical practitioner had involved himself with making sexual approaches to young or otherwise vulnerable patients - without more - does not make any one incident to have "peculiar features". As the evidence will reveal, the allegation in relation to Patient A was that he inappropriately and gently touched her in the area of her upper thigh near her genitals but not actually on her genitals and made a suggestive comment to her at that time. In relation to Patient B, the allegation is that whilst he was performing an acupuncture session on the patient, he went so far as to digitally penetrate her vagina. In relation to Patient C, the allegation is that he had consensual penile vaginal sexual intercourse on at least one occasion and was masturbated by the patient on another occasion in exchange for the provision of one session of Botox injections. 34Although each of the allegations involves some sexual conduct and each patient was either young or psychologically vulnerable, there is nothing similar in the type of alleged sexual conduct. 35Accordingly, the Tribunal has separately considered the evidence in relation to the individual particulars in the Further Amended Complaint and specifically has declined to take into account in so doing the evidence adduced in relation to any other complaint or complaints. Patient A: 36As at October 2006, Patient A was 25 years of age. 37On 21 November 2006 she underwent a liposuction procedure to her upper thighs. This procedure was performed by the respondent. 38Patient A was not given a general anaesthetic but rather a local anaesthetic known as Penthrox. 39Immediately before placing on the mask containing that anaesthetic, Dr Baez said to Patient A "Put this on. We are going to be having a party with this. You are going to be having a good time." 40What occurred during the procedure which followed is a matter of some dispute which should be noted but ultimately that dispute does not assist in the resolution of the complaint. 41According to Patient A, although she was "out of it physically", she was completely aware of what was going on. With one exception, she said she didn't feel any pain. However at one point she said she did feel pain - and made a noise and kicked her legs to indicate that (see her statement made 20 April 2007 at [20]). Patient A was not directly cross-examined on that aspect of her evidence. 42A slightly different version was given by Ms Piper (the nurse who assisted Dr Baez in the procedure) and Ms Mulley-Gibson, the receptionist for Dr Baez's practice. 43According to Ms Piper (cf her statement 6 June 2007) she had fairly wide experience in the use of Penthrox. She had observed patients to have diverse reactions to the drug. Patient A was given two doses. After the second she was giggling, throwing her head back, kicking, and whinnying, as if imitating a horse. (Patient A was a proficient horse woman.) Ms Piper was not required to give oral evidence. 44Her version was supported by that of Ms Mulley-Gibson who said that even through a closed door she could hear Patient A giggling and laughing (cf her statement 31 May 2007). Ms Mulley-Gibson was also not required to give oral evidence. 45We have concluded that on the balance of probabilities the version of events described by Ms Piper and Ms Mulley-Gibson is more likely to be correct. We do not however regard Patient A as having given deliberately untruthful evidence. Indeed her evidence of feeling pain and kicking out is not necessarily inconsistent with the observations and recollections of the other two witnesses. 46Two days after the procedure was completed (i.e. 23 November 2006) Patient A was given a drainage massage by Ms Mitchell who was associated with the practice of Dr Baez. 47On 27 November 2006 Patient A returned for a second drainage massage by Ms Mitchell. It is what occurred on this occasion that gives rise to the specific complaint concerning Patient A. 48Before Patient A saw Ms Mitchell, she was examined by Dr Baez without anyone else being present. 49During the course of that examination Patient A said that she still had some green texta markings and Elastoplasts stuck to her skin in the area where the procedure had been performed. 50In her evidence, Patient A said she was standing with her pants down just in her underwear and the doctor was kneeling in front of her, slightly to one side. He then proceeded to take a cloth with some solution on it to rub her upper thigh. 51After he had done this Dr Baez said "How out of it were you?" Patient A replied "I was with it for the whole time, totally fine". 52Dr Baez then said "How do I put this?" He then lightly touched Patient A with his fingers in the area of her upper thigh/pubic region on her bikini line (but not actually on her genitals) and said "When I was working on this area we were both having a good time". Patient A said "What do you mean?" Dr Baez said "We were both having a party". Patient A said "I don't think so" and then pulled up her pants. 53The complaint is not directly concerned with the initial rubbing of the skin with the cloth and the solution - although why that was being done by Dr Baez at all (as opposed to a nurse) and without anyone present is a matter which can be put to one side. It is the second touching and the accompanying words which are the substance of the complaint. 54Dr Baez through written correspondence from his solicitors denied that the touching of Patient A on the second occasion occurred and he denied using the words "We" and "both" were having a good time. His version was that he said "Well it looked like you were having fun. You were laughing and kicking" (cf the letter of Ebsworth & Ebsworth to the complainant dated 4 May 2007). 55Patient A was cross-examined consistently with the version given by the doctor in that letter. She was unshaken in her adherence to her version. 56Immediately after the examination by Dr Baez, Patient A spoke to Ms Mitchell, the massage therapist. 57Ms Mitchell gave her recollection of that conversation in a statement made on 19 June 2007. In that statement she then recalled Patient A saying, inter alia, Dr Baez said "You were a bit uninhibited. It was like you were having a party particularly when I was working on your thigh area". Ms Mitchell said that Patient A had told her that Dr Baez said this whilst Dr Baez was looking at (not touching) Patient A's upper thighs. 58It is significant to note that even on this version of the conversation Ms Mitchell thought the conduct of the doctor was of concern (cf her statement dated 19 June 2007 at [15]). We have also noted in that statement that Ms Mitchell recounts a conversation she had with Dr Baez after Patient A left the surgery. Dr Baez spoke first and gave an exculpatory version of the exchange between himself and Patient A. We observe that such conduct is not inconsistent with Patient A's version. If her version be true then Dr Baez, having encountered strong resistance from her, could well have anticipated a complaint - and hence he gave his version as a sort of pre-emptive first strike. 59Ms Mitchell was called to give oral evidence at the hearing before the Tribunal. Her evidence revealed that her written statement of 19 June 2007 was based on a clinical note she made concerning the conversations with Patient A and Dr Baez, not on the day of the conversations but three days later on 30 November 2006. She conceded that it was possible that Patient A had told her the words complained of were said whilst Dr Baez was touching Patient A's upper thigh and that it was possible Patient A had used the words "We were having a party". 60Almost immediately after the incident, Patient A spoke to her mother and told her that Dr Baez had said "When I was doing your inner thigh were you feeling the same way as I was feeling?" and that at this time Patient A was very upset (see the statement of Patient A's mother dated 14 May 2007). 61Patient A's mother was not required for cross-examination. Although the specific words used or recorded by Patient A's mother were not identical to those of Patient A herself, the substance is the same. 62Having regard to the requirements of Briginshaw v Briginshaw, the Tribunal is satisfied on the balance of probabilities that the version given by Patient A is correct. The version offered by Dr Baez was not tested by cross-examination and was not sworn to as to its truth. To the limited extent that the evidence of Ms Mitchell was said to support that version, it was at best equivocal. On the other hand, the Tribunal was impressed with Patient A as a witness. And her evidence was in effect supported by contemporaneous complaint both to Ms Mitchell and to her mother. 63The Tribunal therefore accepts the version of events as sworn to by Patient A. 64In these circumstances, the Tribunal is satisfied that the conduct of the doctor is professional misconduct. The touching of the patient in circumstances where the patient was standing effectively only in her underwear with the doctor kneeling in front of the patient (notwithstanding slightly to one side) with his face close to her genital area, the touching of the patient in that area for no legitimate medical purpose and the making of clearly suggestive sexual comments is conduct which, in our opinion, seriously brings the profession into disrepute. 65In this regard we note that there was some inconsistent evidence given before the Tribunal on this question by Professor Marshall. The Tribunal was unimpressed generally with Professor Marshall's evidence. It appeared to the Tribunal that Professor Marshall in effect would agree with whatever proposition had been put to him by the last questioner. The Tribunal does not need expert evidence to make the conclusion which it has made that this conduct was professional misconduct. Patient B: 66As at July 2001 Patient B was approximately 31 years old. She had a history of mental illness and physical disabilities. 67On a number of previous occasions she had received acupuncture treatment from Dr Baez for injuries she had received to her neck and back. 68It is alleged that on 6 July 2001 she again attended Dr Baez for such acupuncture treatment. According to Patient B, she went into a consultation room and removed her upper clothing and lay on a table. Whilst in this position and after some massage and the placing of needles, her pants and underwear were pulled down by the doctor who then digitally penetrated her vagina using the fingers on his right hand. This went on for some seconds and then the doctor removed his finger and left the room. Patient B has no memory of the doctor returning for the purpose of removing the needles or otherwise. 69In a statement made on 19 October 2009 (i.e. over 8 years later), Patient B said that on her return to her home her husband (from whom she was separated) was staying over for a visit. She said she told him about being sexually assaulted that day by Dr Baez. 70Also in the statement Patient B said that a few months after the incident she had a consultation with Dr Royal. Patient B said "During this consultation I told her what had happened with the acupuncture with Dr Baez. I wanted to know if what he did was normal?" 71Another complaint was made by Patient B to Ms Moore, a registered nurse, on 27 May 2004. Patient B told Ms Moore that Dr Baez had inserted his finger into her vagina during an earlier acupuncture session. 72Through written correspondence from his solicitors to the Commission, Dr Baez has denied the allegation of digitally penetrating Patient B - although the practice notes record that he did treat her on 6 July 2001 with massage and acupuncture for "persistent muscle spasm". 73These allegations led to a police investigation and ultimately Dr Baez was charged with the offence of aggravated sexual assault. 74In the course of investigating the allegation the police interviewed Patient B's ex-husband. In a statement which he made on 21 June 2011, that gentleman said that in 2010 Patient B had spoken to him about Dr Baez "molesting" her in 2001 during an acupuncture session. He said that he had not heard about this before then. He specifically denied remembering being told about the incident in 2001. He did however say that the reason he might not remember being told anything in 2001 was because he was at that time a chronic alcoholic. 75On 4 July 2012 a committal hearing was held in the Local Court in relation to the aggravated sexual assault charge. Patient B gave evidence. In the course of her evidence she said, amongst other things, that as at July 2001 her former husband had been sober "for many years" and was not drunk when she told him on that day about the alleged assault. Furthermore, she said that she had over the intervening years told him on 10 or 15 occasions about the alleged incident. 76No evidence or statement was obtained from Dr Royal in these proceedings. Not only that, but it would appear that Dr Royal did not raise this most serious allegation (if it had occurred) with any other doctor in the practice at which she then worked or made any note of it within the records of the practice. It seems to the Tribunal highly unlikely that any responsible doctor would fail to report or at least record such a serious allegation - and the Tribunal has no reason to think Dr Royal was not a responsible doctor. 77Although there is no reason to doubt that Patient B made a complaint to Ms Moore some three years after the alleged event, the unsatisfactory and contradictory evidence concerning the complaint to the ex-husband and Dr Royal at a more contemporaneous time and the lack of any other corroborative evidence, means that we are not satisfied that the complaint has been proved to the standard required by Briginshaw v Briginshaw. Accordingly, it is dismissed. Patient C: 78Patient C had been a patient of Dr Baez for a significant period of time, specifically from late 1999. 79In late 2002 or early 2003 Dr Baez was no longer practising as a general practitioner but had moved his interest into that of cosmetic medicine. 80It is alleged that he offered Patient C free Botox procedures. 81In general terms, it is alleged that rather than paying Dr Baez money for one session of Botox, Patient C was induced to perform sex with Dr Baez on 2 or 3 occasions which involved at least one act of penile vaginal intercourse and one act of masturbation. 82The relevant incidents, including the ultimate injection, did not take place at a medical centre or at formal medical rooms but at a beauty salon known as Devine Imaging. 83It is important to note that before the incident involving the Botox injection, Dr Baez had been treating Patient C for a number of years. She was a highly unusual patient - or for the purposes of these reasons, a highly memorable one. 84It is also important to note that Dr Baez received a total of approximately $100,000.00 from his association with the Devine Imaging Beauty Salon, although the precise business arrangement between the proprietor of that business and Dr Baez is not in evidence. 85We say it is important to note these two things because, unlike the other patients the subject of these present proceedings, Dr Baez participated in a recorded interview with investigators from the Health Care Complaints Commission on 17 August 2010 concerning the allegations made by Patient C. 86Before turning to the substance of that interview, we note that at the very beginning of it the investigating officers told Dr Baez that he had a right to object to providing information on the ground that any such information might incriminate him. Dr Baez then said he objected to answering "all questions" on that basis. One of the investigators then said that the "global" (our word, not the investigator's) objection was noted; that it did not relieve Dr Baez of the obligation of answering questions; but that "... any information provided [would be] inadmissible in civil or criminal proceedings". 87The transcript of the interview was subsequently tendered in these proceedings without objection; and the subject-matter to which we shall soon give attention was the subject of explicit exchanges between the Deputy Chairperson and Mr Boulten during submissions (see T285-287). Neither at the time of tender nor during those exchanges was any submission made that the Tribunal could not have regard to the answers given by Dr Baez. 88We have concluded in these circumstances that any privilege which Dr Baez may have had in this Tribunal as a result of his global objection in the interview has been effectively waived. 89In the interview Dr Baez denied having sex with Patient C. But he went further. He denied remembering her. Given the unusual nature of that patient, we find that denial difficult to accept. 90In the period 20 June 2000 to 27 May 2002 Dr Baez was consulted by Patient C on 42 occasions (see exhibit B Volume 2 Tab 15). The sheer number of consultations makes it difficult to accept that the doctor did not remember the patient. In addition, some of those consultations would have been memorable. We set out the following by way of example only: (a)22 June 2000: "... councelled (sic) reg weight gain and 'magic treatments'"; (b)15 November 2000: "Bipolar symptoms semi acute, to review tomorrow. No suiicdal (sic)."; (c)27 November 2000: "Continue with drug abuse, has insight on what is happening. Good support from husband ... bipolar affective disorder ... to contact psychiatrist and review."; (d)29 November 2000: "Doing wel. No obvoius (sic) s/e from Lithium"; (e)5 December 2000: "Still maninc.(sic). Cont diazepam and increase Lithium to 3 tab bd and review in 5/7."; (f)8 December 2000: "Bipolar Affective Disorder"; (g)18 December 2000: "Amanda left hospital today without permission. Very manic, reviewed by Dr MacLean that comfirmed (sic) situation. Options are to admitt (sic) or treat at home."; (h)22 December 2000: "Slurred speech. Still manic. Counselled ..."; (i)9 January 2001: "Had some spotting after 'heavy' sex 2 days ago ... counselled reg use of vibrators."; (j)12 March 2001: "Doing well. Up and down but feeling a progress ... Had unprotected intercourese ... bipolar affective disorder."; (k)1 June 2001: "Form for Centrelink done reg disability ... Bipolar Affective Disorder."; (l)13 June 2001: "Post coital bleeding this am after sex."; (m)9 November 2001: "See letter for Dr taylor ... bipolar affective disorder."; (n)13 November 2001: "Feeling depressed. Anxiety more controlled ... To be reviewed by DR Taylor."; (o)21 January 2002: "Depress ... poor sleep. No early morning wakening. No panic attacks. No compulsive behaviour. No delusion. No hallucinations. No suicidal thoughts. Substance abuse ... Bipolar Affective Disorder."; (p)13 May 2002: "Detoxing from alchol. Not taking Zoloft. Needs letter for Centrelink."; (q)27 May 2002: "3 days with no alcohol, w, dral symptoms ... for admition (sic) to detox centre. Wentworth Private Hospital." (See exhibit B Volume 2 Tab 17) 91The evidence also reveals that in this period Dr Baez wrote frequent prescriptions for Patient C for Sertraline Hydrochloride, an antidepressant primarily prescribed for major depressive disorders as well as obsessive-compulsive, panic, and social anxiety disorders. 92Furthermore, Dr Baez denied remembering the name "Patricia" as being associated with the Devine Imaging practice. The proprietor of that business was Ms Patricia Devine and in a statement dated 9 September 2010, admitted without objection, Ms Devine said at [17]: "I must have generated about $100,000.00 of cosmetic business for Dr Baez. I built his business. I ran promotional nights at the Devine Image and Dr Baez would be the guest speaker." Ms Devine was not required for cross-examination. 93Ms Stern submitted that those answers regarding Patient C and Ms Patricia Devine were lies - and lies made as a result of a consciousness of guilt. 94Mr Boulten submitted that we could draw the inference that the lie (or lies) was told as a result of a consciousness of guilt only if that were the only reason that could be reached for him telling that lie or lies. Mr Boulten's submission was not the subject of any submission in reply by Ms Stern. Notwithstanding that, we are presently not persuaded that that criminal law proposition advanced by Mr Boulten is necessarily applicable in these proceedings where the onus of proof, and the nature of the proceedings themselves, is necessarily different. We are therefore not prepared to positively hold, in a way that might be sought to bind differently constituted Tribunals, that Mr Boulten's submission is correct. However, for the purposes of this decision only, we shall proceed on that basis. 95We are satisfied that each denial was a deliberate lie by Dr Baez. 96However, in this context, the Health Care Complaints Commission has not in our opinion excluded as a reasonable possibility that the lie concerning not knowing Patricia Devine was only consistent with a consciousness of guilt concerning the act or acts of sexual intercourse. It could have been told, for example, because of some irregularity in Dr Baez's tax commitments. 97But it is difficult to think of any other reason why he would have denied remembering Patient C. We are satisfied that his denial was a lie which: (a) related to a significant circumstance connected with the complaint, viz his knowledge of Patient C; and (b) was told because he feared the truth would implicate him in relation to the complaint. 98Putting that issue to one side for the moment, Mr Boulten submitted that there were difficulties in the Tribunal accepting Patient C's evidence. 99First, he pointed to the frank admissions that she made concerning her poor memory and the reasons for that poor memory. We specifically refer to the examples relied upon by Mr Boulten at T287 to T289. Although Patient C got events into some disorder we are nevertheless not concerned about the accuracy of her recollection of the events themselves. 100Secondly, Mr Boulten said that the Tribunal would have some concern because of other factors, namely the evidence given concerning the circumstances in which the act or acts of sexual intercourse are alleged to have occurred. It was submitted by Mr Boulten that Patient C had said that the acts of intercourse were vigorous and noisy on the part of Dr Baez, that the act or acts took place in cubicles which did not have floor to ceiling walls, and that Ms Devine necessarily would have been able to hear the acts of sexual intercourse yet Ms Devine was not called to give evidence of that. 101It is true that in her evidence Patient C said that the partition spaces were little rooms that were not completely enclosed and that the walls did not go all the way to the ceiling. But that was not an unqualified piece of evidence: Q. "The walls didn't go all the way up to the ceiling?" A. "No. To my recollection, maybe they do, but to me they didn't ..." (see generally T171 to T174) 102The "concession" obtained in cross-examination in this respect has to be read with the evidence of Ms Devine herself. Ms Devine provided a statement dated 9 September 2010 which was admitted without objection and, as we have said, Ms Devine was not required for cross-examination. Paragraph 10 of the statement reads, in part: "I attach another document ... which is how I remember the layout of that consulting room. I have inserted where a full length mirror, bed and basin was located. The bed was not on wheels but you could lift it to move it. It was an enclosed room. The doors when [sic] up to the ceiling. It was a private room and conversations would have been difficult to hear through the walls. I had music in all the rooms and there was often a washing machine running in the staff room so it would have been quiet." [We infer on the balance of probabilities that if the doors went to the ceiling so would the walls. Given the reference to private rooms, difficult to hear, music and the operation of a washing machine, it seems to us that the word "not" has been erroneously omitted from the statement immediately after the word "would" in the last quoted sentence.] 103In other words, we do not regard the equivocal nature of the concession made by Patient C referred to at [101] above, particularly in the light of the statement of Ms Devine to which we have just referred, as a matter which causes us to have of itself a doubt about the reliability of her evidence. 104The third matter to which Mr Boulten referred concerns an alleged complaint made by Patient C at or about the time of the alleged acts to her then treating psychiatrist, Dr Taylor. 105In this context, Patient C made two statements respectively on 8 April and 2 September 2010 (there was an earlier statement but it is not relevant for present purposes). 106In each of those two statements, Patient C said that she told her treating psychiatrist, Dr Taylor, that she had had sex with Dr Baez, and inferentially the circumstances in which it occurred. 107In her evidence in-chief before the Tribunal, she said she couldn't exactly remember what she told Dr Taylor (T169). 108In cross-examination, however, after stating that she had been seeing Dr Taylor both before and after the alleged incident, she also said that although she couldn't precisely remember what she told Dr Taylor, she could remember the gist of it and that was that she had had sex with Dr Baez (T175). 109Dr Taylor provided a letter to the Health Care Complaints Commission dated 26 July 2010. Dr Taylor stated that Patient C had at no stage made any complaint or made any mention of any sexualised relationship between her and Dr Baez. Dr Taylor was not called to give oral evidence. 110In these circumstances we are of the opinion that Patient C did not advise Dr Taylor of any sexualised activity between herself and Dr Baez. 111We do not think, however, that her evidence in that respect was deliberately untrue. 112Notwithstanding the error in her recollection concerning what she told Dr Taylor, by taking into account the balance of the material to which we have referred, including the lie which we have found Dr Baez told concerning his knowledge of the patient, we are satisfied on the standard required by Briginshaw v Briginshaw that the complaint is proved. 113The sexual exploitation of any patient is a matter of grave concern. The exploitation of a patient with known mental health issues is of even greater concern. 114We are therefore satisfied that the complaint proved constitutes professional misconduct. Patient D: 115Unlike Patients A, B and C, Patient D has made no complaint about Dr Baez; nor has she provided the Health Care Complaints Commission or the Tribunal with a statement or direct and admissible evidence. 116The totality of the evidence against Dr Baez is alleged evidence of admissions he is said to have made to his then (now ex) wife, her brother and her sister; as well as to his own treating psychiatrist, Dr Jason Pace. 117We shall deal with Dr Pace's evidence first. 118From March 2007 Dr Baez had been a patient of Dr Pace. In late December 2007, Dr Baez took a large overdose of Phenytoin (after an argument with his wife - see [121] below) and he was admitted to Hornsby Hospital and then the Northside West Private Clinic. Dr Pace conducted a consultation with Dr Baez in that clinic on 28 December 2007. 119In a letter to the New South Wales Medical Board dated 15 January 2008 Dr Pace, amongst other things, recorded that during that consultation: "... Dr Baez disclosed that the argument with his wife was regarding an affair he had had with a patient in 1995. He disclosed that he had had a sexual relationship with this female patient. He reported that he had had several sexual encounters with her both in his clinical rooms and in hotel rooms. Dr Baez reported that the female patient is still a patient of his and that while she has continued to invite him to pursue the relationship that he had not been willing to do this." 120The date of "1995" is somewhat problematic because Dr Baez was not a registered medical practitioner in that year. Dr Pace's recollection as to the reliability of that date in his oral evidence before the Tribunal was not firm. But he was not challenged as to the actual admission on the extramarital affair per se. Dr Pace was not able to give any evidence as to the identity of the other party to that affair. 121Evidence of further admissions by Dr Baez was given by his now former wife (Ms Andrea Tomic), her brother (Mr Alex Tomic) and her sister (Mrs Alexander). These "admissions" were said to have been made by Dr Baez in an argument with Mrs Tomic on 22 December 2007 in the presence of Mr Tomic and Mrs Alexander - and after which Dr Baez took the overdose we have referred to at [118] above. 122Through written correspondence from his solicitors to the Health Care Complaints Commission, Dr Baez: first noted that the "admission" to Dr Pace did not/could not involve a relationship with a "patient" because of the year it was said to have commenced in (notwithstanding that he himself admitted to Dr Pace that the other party to the affair was "a patient"); and secondly, denied making any admissions to his (ex) wife or her siblings. In this matter, as with the other complaints, Dr Baez did not enter the witness box to swear to the truth of those denials or to be subject to cross-examination. 123Each of Mrs Tomic, Mr Tomic and Mrs Alexander were however closely cross-examined in the hearing before the Tribunal. 124In relation to Mrs Tomic, we have given careful consideration to the proper and substantial criticism made of some of her evidence (for example the unsatisfactory evidence she gave concerning her contact with Patient C). 125On its own, we would not have accepted Mrs Tomic's evidence on the balance of probabilities as to the admissions said to have been made to her on 22 December 2007 to the effect that Dr Baez had had sexual contact on a number of occasions with Patient D. 126However, we were impressed with the considered and careful evidence of Mr Tomic and the overall satisfactory evidence of Mrs Alexander which was completely corroborative of Mrs Tomic's evidence as to admissions made by Dr Baez to her in their presence as to an affair with Patient D - and when he was registered as a medical practitioner. To a limited extent, the otherwise unexplained suicide attempt was also consistent with the admission being made. 127In accepting the evidence of Mrs Alexander, we have not overlooked her evidence about the missing exercise book. Ultimately, however, we think that her evidence on that topic was of little significance. 128We are also satisfied on the balance of probabilities on the available evidence that the affair admitted by Dr Baez to Mrs Tomic in the presence of Mr Tomic and Mrs Alexander on 22 December 2007 was the same affair Dr Baez admitted to Dr Pace - and that the date of 1995 recorded by Dr Pace was an error. 129We are therefore satisfied that the complaint regarding Patient D is established on the balance of probabilities, bearing in mind of course the dicta in Briginshaw v Briginshaw. 130We are further satisfied that that conduct was professional misconduct. 131We are however unable to determine any period of time over which the affair with this patient continued - although it would seem likely that it had ended by the time of the confrontation between Dr Baez and his wife (in the presence of her siblings) on 21 December 2007. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 February 2014