Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Naiyer (No1) [2014] NSWCATOD 54 Hearing dates: 28,29 30 April, 1,2 May 2014 Decision date: 13 May 2014 Jurisdiction: Occupational Division Before: F Marks ADCJ (Principal Member) Dr V Sutton (Medical Member) Dr V de Carvalho (Medical Member) Dr J Mair (Lay Member) Decision: 1 The tribunal finds that Complaints 1 and 2 have been made out Catchwords: Medical Practitioner -complaints of unsatisfactory professional conduct and professional misconduct-stage 1 hearing conducted-factual findings made-proceedings stood over for stage 2 hearing on appropriate relief Legislation Cited: Health Practitioner Regulation National Law (NSW) Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Mohammed Adnan Naiyer (Respondent) Representation: Counsel S McNaughton SC (Complainant) Health Care Complaints Commission (Complainant) Norton Rose Fulbright (Respondent) File Number(s): 1420075 Publication restriction: Order made prohibiting details identifying or tending to identify patients reasons for decision INTRODUCTION 1These proceedings are constituted by an Amended Notice of Complaint. The complainant, HCCC brings 3 complaints against the respondent, Dr Mohammed Adnar Naiyer. Each of the complaints alleges a breach of the provisions of the Health Practitioner Regulation National Law ("the National Law"). 2Both parties requested that, in dealing with these proceedings, the Tribunal should engage in a two-stage process. The first stage would involve the hearing of evidence and a consideration and determination of whether the complaints had appropriately been made out. If the Tribunal was satisfied that the complaints had been made out and that it was appropriate to make findings accordingly, it would then embark upon the second stage of the process which would involve a consideration of what orders should be made in all the circumstances. This would give the parties an opportunity to make submissions about the nature and extent of the orders which should be made having regard to the findings made in connection with the first stage. This is a course which is regularly adopted in appropriate cases, especially those involving contested factual circumstances, as is the case in these proceedings. We indicated to the parties that we were prepared to accede to this request, and this Decision is concerned solely with the first stage of the process. 3The first complaint alleges that the respondent has been guilty of unsatisfactory professional conduct within the meaning of section 139B of the National Law. It is based upon circumstances pertaining to a patient of the respondent, known in the proceedings as "Patient A". It is alleged that whilst in practice as a general practitioner in a city on the New South Wales north coast, the respondent failed to record any details of an external examination of her genital and anal region, and an internal pelvic examination conducted on 27 June 2011 as required by law, that in denying that he had carried out such examination the respondent knowingly provided false information to the Health Care Complaints Commission contrary to law, that in the circumstances it was unnecessary to carry out the physical examination, and that the physical examination was not sufficient to detect a sexually transmitted disease because it did not include a visual speculum examination. 4The second complaint alleges that the respondent has been guilty of unsatisfactory professional conduct, also within the meaning of section 139B. It is asserted that he demonstrated that the knowledge, skill or judgement possessed, or care exercised, by him, in the practice of medicine were significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It was also alleged either as an additional matter or in the alternative that he engaged in improper or unethical conduct relating to his practice of medicine. 5The second complaint is based firstly upon circumstances pertaining to a patient of the respondent, known in the proceedings as "Patient B", who consulted the respondent on 1 July 2011. It is alleged that at the conclusion of the consultation the respondent asked Patient B when he was going to see her again, whether he could have coffee with her or "coffee at night", and gave her his personal mobile telephone number. When the patient sent a text message to the respondent inquiring whether he had a family, the respondent is alleged to have telephoned this patient and told her that they were overseas, asking "Is that okay?" It is asserted with respect to this patient that the respondent failed to maintain appropriate professional boundaries and sought to initiate an inappropriate personal relationship with her. 6This second complaint is based also on matters affecting Patient A which were asserted to have occurred during a consultation on 5 July 2011. Whilst purporting to use a dermatoscope to examine a mole on her right breast, the respondent was said to have placed his head close to the breast and placed his lips on her breast. Furthermore, whilst he was conducting the examination he is said to have moved his head around in a circular motion over the top of her breast. It is alleged that it was not clinically necessary for the respondent to have examined her breast using a dermatoscope and that he engaged in inappropriate conduct of a sexual nature towards this patient. 7The third complaint alleges professional misconduct by the respondent under section 139E of the National Law. It is said that he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration, or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amounted to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. The particulars relied upon to sustain this complaint are those which we have summarised above referable to the first and second complaints. PROHIBITION ON PUBLICATION ORDER 8Shortly after the proceedings commenced we acceded to a request made by Counsel for the complainant, not opposed by the respondent, that we prohibit the publication of any material which would or which might tend to identify any patient of the respondent. Consistent with that order we shall refer to the patients by the description of them used throughout the proceedings. DERMASCOPE/DERMATOSCOPE 9Both these words are used in these reasons for decision. They are interchangeable and refer to an instrument used inter alia to examine skin lesions. We have generally retained the word as was used by each of the witnesses in their evidence and as referred to in the Amended Complaint. THE EVIDENCE 10A substantial amount of documentary material became evidence in the proceedings. In addition, a number of persons gave evidence. Patient A 11This witness made 3 written statements, the first of which was dated 5 July 2011, the day of the incident which was one of the catalysts giving rise to these proceedings. On that date, Patient A was 25 years old. She had first seen the respondent sometime in March 2011 at the medical centre where he practised. She attended him for a full body skin check up which he conducted with her clothes removed other than her underwear. During the course of this examination the respondent examined a number of moles including one on her right breast. In order to do this he pulled the right side of her bra down. During the course of this examination she said that the respondent conducted himself in an appropriate manner. She made a follow-up appointment to have a biopsy done on the mole on her right breast and to have a mole on her back removed. The mole on her back was later removed in an operating room and a nurse was also present. The respondent performed a biopsy of the mole on the right breast by slipping the right side of her bra off, but keeping her left breast fully covered. When this was finished, she turned over and the respondent removed the mole on her back. Stitches applied to the wound on her back were later removed by a nurse and Patient A made an appointment to see the respondent a short time later when the biopsy results were available. At this appointment the respondent informed her that the mole on her back was a "naughty mole", but the one on her breast was fine. She also reminded the respondent that she had a mole on her left upper buttock. The respondent said that she should make a further appointment in about three months to see if it had changed. On this occasion the respondent examined the patient's left upper buttock, and her right breast by allowing her to pull down her right bra herself. She said that the respondent checked the mole using a magnifying glass instrument and that this took "about two seconds". The respondent told her that there were no problems. He also took photographs of her moles so that they could be compared on later visits with any changes. 12Patient A consulted the respondent again about three months later. She lowered her pants and lifted up her underwear to expose the mole on her buttocks. The respondent told her that the mole was changing and that she should come back in three months' time to see what changes had occurred. She told the respondent that she wanted the mole out and that she did not want to come back every three months. She made an appointment for the 5th of July 2011 to have the mole on her left upper buttock removed. She thought highly of the respondent and recommended him to people that she knew to have their skin checked. 13On 5 July 2011 Patient A attended the operating room at the medical centre where the respondent worked. Her buttock area was prepared by a nurse. She had removed her jeans and her underwear was lowered. She kept her shirt on. The respondent came into the room and removed the mole, applying some stitches to the wound before dressing it. After the procedure she got dressed and she said that the respondent asked her whether there was anything else that she wanted to talk about. She replied in the negative. He then asked her to go into his office and wait for him which she did. After looking at her file on his computer, the respondent discussed the care of the stitches in her buttock area. There was then a discussion about the results of previous blood tests, and the respondent asked her about the mole on her breast. She responded that it was "fine". The respondent then said that he would take another look at it. She exposed the mole on her right breast by pulling down on the right strap of her bra. The respondent told her that he needed to see the whole breast. He asked her to lie down on the bed on her back. She pulled the top of her right bra down slightly. She said that the respondent put his hand under her right sleeve, touched her bra strap and asked that she take the bra off. Accordingly, she took off her shirt and took the right side of her bra down exposing her right breast. 14Importantly, when describing what happened during the course of the examination by the respondent, Patient A in a statement made later that day to the NSW police said; "16 Doctor NAIYER again took hold of his magnifying glass and examined my mole. Doctor NAIYER pressed the instrument on my skin and put his head close to my breast and looked through the instrument. Doctor NAIYER did this for about one minute. Doctor NAIYER moved away from me and walked behind me to obtain an alcoholic swab. He swabbed my mole and again looked through the instrument, the same way. His head was close to my breast. I was looking at the ceiling and I felt his head moving quite a lot in a circular motion over the top of my breast. I could feel Doctor NAIYER's skin on my skin. I started feeling extremely uncomfortable. I could see in the corner of my eyes, the white's of Doctor NAIYER's eyes were looking up at me. Doctor NAIYER looked at me twice or three times. Alarm bells were really starting to ring and I looked down at Doctor NAIYER and I saw him rubbing his mouth on my breast. Doctor NAIYER was not even looking into the instrument, he was looking up at me and his mouth was on my breast. I immediately pushed Doctor NAIYER in his shoulders with both my hands so that he would get off me. This forced Doctor NAIYER off me and I said, 'What the hell are you doing?" Doctor NAIYER put his hands up in a defensive manner and said words like, "No (name removed), you misunderstand. Come on (name removed), come on, come on (name removed)." I fixed my bra to its usual position and immediately put my shirt on. Doctor NAIYER kept on saying , "No (name removed), come on." I sat down on the chair on the room and said, "I know what I saw, you were kissing my breast." I further said, "You are my Doctor and that was fucking bull shit !" I wasn't yelling, but saying this quite sternly, but calmly at the same time. I again said, 'You are my fucking Doctor!" Doctor NAIYER said, 'Tm a professional. You misunderstood, you know me, you know me (name removed). I'm a married man, I have two small children. I can introduce you to my wife, she can tell me what kind of man I am." At this stage, I was looking towards the door and Doctor NAIYER kept on repeating my name. 18 I didn't know what to do and started to self doubt. Doctor NAIYER again said, 'I'm married, you know me." I said, "I don't want you to be my Doctor any more." He said, "(name removed), come (name removed) don't be like that." I changed the subject onto my pathology results and said, "So they're all good?" He said, "Yes, everything's fine." I said, "So I have to come back in seven days to get my stitches out?" He said, "Yes." I said, "Right, thank you." I left the office and walked to the reception counter. The lady at the reception looked at my accounts and because I usually bulk bill she said, "Right you can go." I was shaking and thought that I was in a state of shock. I said, "Is there someone I can speak to about the Doctor?" The lady said, "Why?" I said, "I think he just" and I started to get upset by crying. The lady caught onto what I was insinuating and she directed me to the side of the counter area. I waited beside the counter area and Doctor NAIYER came out of his office to the reception area. Doctor NAIYER saw that I was upset and briskly walked towards me behind the counter. Doctor NAIYER saw the receptionist in with a person who I believe was the Medical Centre Manager. Doctor NAIYER said, "(name removed)", he turned and walked into the room where I believe the Manager was." 15Patient A was cross-examined about what she meant by "started to self doubt" referred to at the beginning of para 18. It was put to her that she intended to convey that she had some doubt as to what happened. In response Patient A was adamant that she was in doubt as to what the respondent would do next, and this was what she intended to convey. We accept this explanation. 16In her statement, Patient A then related a conversation which she had with the manager of the medical centre. She said that she was clearly upset, and she told the manager and a nurse who was also present that the respondent had kissed her breast "or something similar". She then contacted her father by phone, and later told the manager of her employer. She was then encouraged by her stepmother to report the matter to the local police station, which she did. She concluded her statement by saying; "I am extremely upset and shocked at what happened. I know what I saw I am sure that (the respondent) had his mouth on my breast. My breast wasn't wet from saliva, but I saw his mouth on my breast. I feel that (the respondent) has abused my trust and obviously should not have taken advantage of me in that way. I am also extremely angry and feel violated and I think that I have been treated inappropriately by the Doctor." 17In a later statement, made on 26 August 2011 to an investigator engaged by the complainant, Patient A said that she had forgotten in her first statement to mention that the respondent had asked to check the scars on her back from her previous mole removals. This was something initiated by him and not by her. He asked about the scar on her breast and she said that it was "fine". 18She also expanded on Para 16 of the earlier statement which we have set out above. She said that at the time that she saw the respondent with his mouth on her breast she was lying on her back and was looking at the ceiling. She said; "the first red flag for me was when I felt his head moving around in a circular motion. I thought this was odd. He had examined my breast previously but never like this..... When I looked down I recall seeing the white of (the respondent's) eyes and observed his mouth brushing or nuzzling my breast. His mouth was slightly open and his lips were on my breast. I could not feel his breath or any saliva. 19In this further statement Patient A annexed a diagram which she drew showing the position of the mole situated slightly to the left of the nipple of her right breast. 20In this further statement Patient A also referred to the fact that at some stage prior to 5 July 2011, which we know from other evidence was 27 June, 2011, she had consulted with the respondent concerning the possibility that she had contracted a sexually transmitted disease from her boyfriend which had shown up in a Pap smear. The respondent had said that he would take some blood samples to relieve her anxiety. He then conducted a physical examination which consisted of external and internal examinations of the vagina and her back passage. She said that while he was placing one hand in her vagina he was pressing with the other on her ovaries. He said; "that is your cervix, that is where the gonorrhoea sits." 21Patient A made a third written statement, to the investigator engaged by the complainant on 2 November 2011. This elaborated on the information in the previous statement concerning the irregular Pap smear. She said that this had been undertaken in about January 2011 and she had been diagnosed with HPV at that clinic. She said that she was treated for this but afterwards had an underlying fear that she had been exposed to other sexually transmitted diseases from her boyfriend. It was this concern which she had discussed with the respondent. However, any concern or anxiety had disappeared when she was ultimately told by someone at the medical clinic that her test results were clear. This occurred prior to the consultation with the respondent on 5 July 2011. 22In describing what occurred on 5 July 2011 in her oral evidence, Patient A said that the device that the respondent was using consisted predominantly of a single tube about 9 to 10 mm long. In using it the respondent angled his head over her breast off to the right hand side a little bit and initially he was looking down through the device. She first became concerned when the respondent seemed to be taking longer than previously when conducting his examination. During the examination she was lying on her back with her head on a pillow. She reiterated that after the initial examination when she looked up, the respondent then got up and walked around behind her and then swabbed her breast. He then commenced using the instrument again. She said that she could see the top of his hair moving in a circular fashion and he was keeping his nose in a downwards direction. She remembers seeing the flicker of his eyes looking up and down and he was looking up at her. She could just feel pressure on her breast. Initially she was looking up at the ceiling but she then looked down and saw him with his eyes looking at her with her breast on his face. His mouth was partially open and the side of his face and his mouth looked like they were caressing her breast. It felt like this for "a very long time". She said she just pushed him off and then gave evidence similar to that set out in the written statements to which we have referred above. 23During cross examination Patient A was pressed about what she could see occurring during the course of the examination on 5 July 2011. She was adamant that the respondent was definitely not looking down the eyepiece of the instrument but that he was looking up at her. She said she could see his eyes moving. She said she saw his eyes moving looking up at her 2 to 3 times. She confirmed that the respondent was not kissing her breast. She said that he was "nuzzling" her breast Patient A denied informing the police that she did not want to give a statement to them in the matter. 24Patient A gave her oral evidence in a clear, considered and measured manner. When she was unsure of an answer, she said so. We could not detect anything in her oral evidence either in chief or in cross-examination and the manner in which she delivered it that would tend to suggest in any way that Patient A was exaggerating or dissembling in telling us what she believed was what she saw, felt, said and heard on all relevant occasions. We accept her evidence on this basis. Patient B 25Evidence was given by this witness orally, including cross examination, and two statements made by her became evidence in the proceedings. The first statement was made on 26 August 2011. She was then aged 32. She said that she first consulted the respondent earlier that year for a routine skin check. She later consulted the respondent a number of times including for the biopsy of a mole and obtaining a script for blood pressure medication. The respondent referred her to a cardiologist. She again consulted the respondent after the review by the cardiologist, who had indicated that she had no particular medical problems. At that time there was also a discussion concerning appropriate contraceptive devices. The respondent recommended a coil and she understood that he offered to place it in her during the course of that consultation. She said that she felt "a little affronted" by this and asked for time to consider her options. 26She said the respondent told her that he had information about the coil on his computer and invited Patient B to move her chair around to where he was sitting at his desk. She took the chair and placed it near his computer. She said he then turned his swivel chair around to face her and as he did so his knees touched her leg. She felt uncomfortable about this and waited for the respondent to immediately remove his knees but he did not do so for 5-10 seconds. At that stage she stood up and moved her chair away. She said that this incident made her feel uncomfortable. 27As the consultation came to an end Patient B said that the respondent asked her when she was going to make another appointment. She said that she would ring the practice. She said that he then said "when am I going to see you again?" He then said "next time we can do coffee, or coffee at night?" She said that this made her feel uncomfortable. The respondent then asked her to put his mobile telephone number into her phone. She said she did so, so that she could "just leave quickly." 28Patient B said that she was troubled by her experience during this consultation and later that same afternoon she spoke to her father about what had happened. She said words to the effect; "I think my doctor hit on me." She told her father what happened and how it had made her feel. She said that her father advised her to find out what was going on so she decided to text the respondent using words to the following effect; "hi, it's (Patient B) - don't you have a family?" She said that the respondent telephoned her almost straight away and said that he did have a family, that they were overseas and "is that okay?" She responded "no" and hung up. That was the last occasion on which she had any involvement with the respondent. 29In cross-examination Patient B was pressed about why she sent the text message to the respondent after the consultation. She replied that she wanted to clarify whether she would be happy to continue with the respondent as her medical practitioner and to make sure that there had been no misunderstanding during the course of the conversation and in particular the suggestion by the respondent that she have a cup of coffee with him at night. She said that what he said to her in the telephone conversation confirmed that she should end her relationship of treating medical practitioner with him. Patient B recalled that this incident with the respondent occurred on a Friday and that later that evening she had dinner with some family members and a police officer with whom she had lately been in a close personal relationship, whose name we have not reproduced, but shall refer to as "the police officer". She had told her cousin, who was present at the dinner, words to the effect that her doctor had "hit on her". The cousin mentioned this in conversation at the dinner in front of the police officer. He in turn asked her whether she wished to pursue the matter as a formal complaint. She told him that she did not wish to do so. 30A few days later the police officer called her and asked her for the name of the doctor that she had consulted. She mentioned the respondent's name to him and he told her that the police had received a complaint from another woman about the same doctor. He did not discuss the nature of the complaint with her. Some little time later the police officer persuaded Patient B to meet with an investigation officer of the Health Care Complaints Commission, Alison Brazel and provide a statement. She said that she was reluctant to do so but nevertheless met with her. When Ms Brazel asked her to make a formal complaint by giving a written statement she was persuaded to do so because this confirmed to her that what had happened "was not right." 31Some months later Patient B was again contacted by Ms Brazel and asked to provide additional information to her as a result of responses received by the HCCC from the respondent. The respondent had told Ms Brazel that in his discussion with Patient B on the last occasion that she had consulted with him, there was a conversation about having a cup of coffee with members of their respective families because both had a seven-year-old daughter. Patient B adamantly and vehemently denied any such conversation. She said that the only time that she had a conversation with the respondent concerning his family had occurred during her very first consultation when he asked her how long she had lived in that particular area. She had told him that she had lived there for about 20 years and it was a beautiful place. She recalled the respondent saying words to the effect that he thought that his family would be very happy there and that it was a good place to bring up a family. 32During the course of cross examination the attention of Patient B was directed to an email of 1 April 2011 which she had sent to the respondent. It said; "I just wanted to send you a quick email to say thank you for all your help so far, I really appreciate the time you have taken and your expertise in finding the leaking valve in my heart, and organising the weight loss program. I just wanted you to know I think you are doing a great job, and it's nice to have a doctor that cares. I hope you have a great weekend." Patient B did not deny sending that email but pointed out that it was sent some three months prior to the incident which gave rise to the complaint made by her to the HCCC. She said that the email reflected her feelings at the time. 33We were also impressed with the forthright manner in which this witness gave her evidence. She was ready to acknowledge those matters about which she was not sure, and she did not appear to exaggerate her evidence. In particular she readily acknowledged that the respondent had given her no concern in his treatment of her prior to the date of the last consultation, and the email which she forwarded on 1 April 2011 attests to her respect for the respondent as a medical practitioner up to that time. 34Furthermore, the fact that she was prepared to give the respondent the benefit of the doubt after her conversation with him in the surgery by sending the text message inquiring whether he had a family is evidence of an attempt to conduct herself in a fair and appropriate manner. The father of Patient B 35Oral evidence was given by the father of Patient B. He remembered his daughter coming back to her home from a doctor's appointment towards the end of 2011. She said words to the effect that she had just been propositioned by her doctor. He asked her why she said this and she replied that the doctor had just invited her out for coffee and given her his telephone number. He asked his daughter whether she wanted to go out with him and she replied in the negative because he was married. He suggested that she send him a message and asking whether he was in fact married. As far as he knew, she sent a text message and received a telephone call shortly after. He said that he told her to find another doctor. 36There was admitted into evidence a statement which the father had given to the HCCC but which he had not signed because his name was shown incorrectly. There is nothing in that statement which is inconsistent with, or elaborates on, the oral evidence given by him, which we have set out above. The police officer 37Oral evidence was given by the police officer and a written statement made by him was tendered into evidence. His evidence corroborates that of Patient B to the extent that she advised him about her concerns arising out of the invitation to coffee extended by the respondent. However the evidence of the police officer does differ from that of Patient B in one material respect. He said that he did not know about the fact that another complaint had been made concerning the respondent until after Patient B mentioned the name of the respondent to him. We do not think that anything turns on this, nor is there anything of particular relevance in the evidence given by the police officer which impacts in any way on the evidence of Patient B. Karen Gerke 38A statement made by Karen Gerke was admitted into evidence, and she was not required for cross examination. Ms Gerke was employed as the Practice Manager at the medical centre where the respondent worked. She said that on 5 July 2011 she was asked by a receptionist to speak with a patient whom she identified as Patient A and who was very distressed, "crying and seemed to be very distraught." The patient found it hard to talk. She was told by the patient that the respondent had asked her to come to his consulting room after he had removed a mole from her buttock. The doctor had told her that he needed to check a mole on her breast, which he had previously checked months earlier. She was told to get on the examination bed, which she did. Ms Gerke, in her statement then said; "(Patient A) stated she pulled down part of her bra for the examination but the doctor insisted she remove all of her bra as he needs to use the dermatoscope.....the doctor seemed to be examining her breast for a prolonged time and she was beginning to feel uncomfortable and uneasy. She then felt his finger rubbing on her and... He put his lips over her breast and her nipple." 39Ms Gerke asked a nurse to come into the room, and Patient A repeated her story to the nurse. She then recorded and reported the incident. The mother of Patient A 40The mother of Patient A made a statement which became evidence in the proceedings. She was not required for cross examination on her statement. She was aware that her daughter had been treated by the respondent during the course of 2011. She found this surprising because she was aware that her daughter had "previously been uncomfortable with intimate female medical procedures." She was informed by her during the course of the year that the respondent had performed an internal examination on her. She had mentioned this in passing and had not expressed any concerns about the examination itself. Indeed, her daughter "seem(ed) totally fine with the examination." Alison Brazel 41Ms Brazel is an investigator who is a former police officer and has been employed by HCCC for a period of almost 4 years. She was involved in the investigation of the complaints made by Patients A and B and carried out certain other investigation work. In particular, it was she who took all of the statements made by both of these patients other than the first statement made by Patient A to the New South Wales police force. 42Ms Brazel was cross-examined extensively concerning the methodology used by her in taking statements and the fact that she had purported to witness the signatures on statements when in fact she had not done so. There is nothing in the evidence of Ms Brazel which, in our opinion, affects the integrity of any of the evidence of any of the witnesses given in any statement relevant to these proceedings. Although there may be some concerns about the methodology used and the attestation of Ms Brazel's name as attesting witness, as she readily acknowledged in her evidence, none of these matters is, in our opinion, relevant to our determination of the factual issues or any other issue which we are required to determine in these proceedings. Fundamentally, each of the witnesses who gave oral evidence confirmed substantially so much of the contents of their statements given to her which are relevant to the determination of these proceedings. The Expert Evidence 43Three expert witnesses were called on behalf of the complainant, and one on behalf of the respondent. The expert evidence went to 3 distinct issues, not all of which were addressed by each of the experts. These issues were: (1)whether the internal and external examination carried out by the respondent on Patient A was necessary and appropriate (2).whether it was necessary or appropriate for the respondent to examine the right breast of Patient A on 5 July 2011 (3)assuming that the allegations made by Patient A that the respondent's cheek and mouth came into contact with her breast during the examination on 5 July 2011 are established to the satisfaction of the Tribunal, whether there is any satisfactory explanation as to how this occurred other than a deliberate act of the respondent 44Dr Peter Kean-Mun Lye was qualified to give evidence by the complainant. He has had 22 years' experience as a skin cancer primary care physician working in private clinics and also as a visiting clinician at Royal Prince Alfred Hospital. He has also held relevant teaching positions in Australia and the UK and published research papers in the area of skin cancer as a co-author. He has a postgraduate certificate and diploma in dermatology. Dr Lye did not profess to have experience in connection with the first issue and preferred not to make any comment about this. With respect to the second issue, the opinion of Dr Lye varied depending upon whether the narration of what happened given by Patient A or given by the respondent was to be preferred. 45Based on the assertion of Patient A that she made no complaint to the respondent on 5 July 2011 concerning the scar on her right breast, Dr Lye thought it was "very unusual" for the respondent to have gone out of his way to re-examine the scar. This was because the lesion had previously been biopsied some four months earlier revealing a lesion with no dysplasia or malignancy. Furthermore, Dr Lye thought it "even more unusual" that the respondent should use a dermatoscope to carry out the examination unless there were signs of recurrence or unusual return of pigmentation. Dr Lye noted that Patient A made no complaint of this and there were no corresponding notes in the respondent's records that would suggest this was the case. However, the situation would be different if the respondent had any concerns about a possible recurrence, notwithstanding that there could not be any doubt about the accuracy of the original pathology report. It was possible also that the dermatoscope could be used to look at the scarring itself merely to provide magnification. 46As to the third issue, Dr Lye has used a dermatoscope many times on the female breast over the last 22 years. He had never encountered any situation where part of his face, including his mouth, had touched any part of the patient. Indeed, it is possible to hold the dermatoscope away from the patient and adjust its focus so as to maximise the comfort for the patient. 47Dr Lye rejected any suggestion that the proper and appropriate use of the dermatoscope on a breast of a patient who was lying down could bring about sufficient ballooning to cause part of the breast to become elevated so as to make contact with any part of the face. During the course of giving evidence Dr Lye was shown a dermatoscope which the respondent said was the one that he used while examining Patient A. Having regard to the dimensions of that dermatoscope, Dr Lye's opinion was reinforced because of the distance from the end of the dermatoscope to the eyepiece. 48Dr Lye is longsighted and he uses the dermatoscope about 10 cm from his eye. It would be possible that the dermatoscope when used might be closer to the eye of the examiner, depending upon the visual acuity of the eye used, namely whether it was shortsighted or longsighted. However, whatever the distance from the examiner's eye to the eyepiece of the dermatoscope, it is still necessary to look directly into the dermatoscope, much like using the eyepiece viewer on a camera. It is impossible to endeavour to look into the dermatoscope at any angle other than straight down. 49Dr Lye said that "in the use of a dermatoscope there is no reason for the practitioner's head to be moving in a circular motion, nor is there any clinical benefit in dermoscopy if the practitioner is looking anywhere else but into the eyepiece." In answer to questioning, Dr Lye said that it might be possible for the operator to come into physical contact with the patient if looking at the breast from a low angle. However, if this were the case, the breast itself would be between the operator and the part being examined, so this would be most unlikely. In any event, we observed that such a scenario is inconsistent with the manner in which the procedure took place as narrated by Patient A. 50Dr Hein Carel Vandenbergh was qualified as an expert by the complainant. In addition to his qualifications as a medical practitioner he has postgraduate certificates in a number of areas including dermatology. He has had extensive experience as a general practitioner with a concentration on skin conditions including skin cancers. He is currently a skin cancer practitioner and general practitioner in southern New South Wales. Dr Vandenbergh issued a number of reports, and we shall refer to portions of them and to his oral evidence in these reasons for decision. However, some of the opinions expressed by him were based on a factual understanding which is no longer correct, and we shall leave aside any such opinions in dealing with his evidence. 51With respect to the first issue, Dr Vandenbergh said that the examination conducted by the respondent was not accepted practice. He said that in practice any direct vaginal examination undertaken in connection with a STD would be carried out together with a speculum and a swab. If the examination was conducted with gloves in conjunction with the taking of blood and urine samples, then leaving aside a speculum and swab, this would be inappropriate because it would not tell the practitioner anything at all. It might possibly alert the practitioner to the existence of vaginal warts except that sensitivity would be lacking whilst wearing gloves. Under cross examination he conceded that it might however assist in establishing whether there was a vaginal discharge. 52With respect to the second issue it was the opinion of Dr Vandenbergh that it was not necessary to use a dermatoscope to examine any scarring on the breast of Patient A. He thought that a dermatoscopic view may in fact confuse the examiner "as it unduly magnifies changes biologically associated with wound-healing.... to the detriment of proper assessment of a lesion's true biological nature." In the absence of any complaint by Patient A, he thought that the examination carried out three months after the biopsy would have been "superfluous". 53With respect to the third issue it was the opinion of Dr Vandenbergh that "it is also impossible to have both one's eye to the dermatoscope and touch the patient's skin with one's lips." In cross-examination he said that he had been using a dermatoscope since 1988 and his face had not made contact with the skin of a patient in that time. He said that he had tried to "do it" but that he could not. 54It was suggested to Dr Vanenbergh while giving evidence that the respondent, in conducting the examination using a dermascope may have been troubled by a floater in his eye. He disputed this, saying that floaters are only visible when there is no "background clutter". He also had floaters, and they did not interfere with his ability to use a dermascope. 55Dr Harry Michael Nespolon was qualified to give evidence by the complainant. He is a highly qualified and experienced general practitioner and undertakes a lot of skin cancer work in his practice. He provided a report and gave oral evidence. 56With respect to the first issue, Dr Nespolon noted that that there was no record of any physical symptoms in the respondent's records, "specifically any pelvic pain or any vaginal discharge." He expressed concern about the failure of the respondent to record this examination in his notes. 57It was put to Dr Nespolon in cross-examination that the examination might have been warranted to exclude the presence of vaginal warts. This was rejected on the basis that genital warts occur on the outside of the vagina. He said the only time a vaginal examination would be warranted was if there was an indication of a pelvic inflammatory disease but in any event antibiotics would be prescribed for this. If the only symptoms were anxiety and depression about whether she had a STD, as asserted by the respondent, there would be no need to do a vaginal examination. Pathology or blood tests would be undertaken. In any event, Dr Nespolon noted that it was the evidence of Patient A that she had not requested that a vaginal examination take place. 58With respect to the second issue, it was the opinion of Dr Nespolon that the review of the scar would only be warranted if there was genuine concern that this was a melanoma. In such a case the respondent should not have taken a small 2 mm biopsy, but should have completely excised the mole. In any event, the pathology results had indicated that there was no malignancy. Accordingly, if the respondent was examining the aesthetics of a very small scar this could be done in a very short time, not necessarily requiring any touching of the patient, nor would it require a dermascope, although that instrument could assist in magnification if this was necessary. The absence of any expressed concern by the patient was also a relevant factor in the necessity to undertake this examination. Furthermore, the examination could have been undertaken without removal of the bra. However, if the respondent was exploring all of the patient's breast, in those circumstances it would not be unreasonable for her to have exposed the whole breast. 59As to the third issue, Dr Nespolon observed that even if the respondent's eye was next to the lens, the head of the dermascope would be some little distance from the patient. "If there was any contact between the doctor's face and the patient it would be incidental and brief". Further, if the doctor did have his eye up against the lens, with the handle held in the usual position, the handle would be between the doctor's face and patient. The instrument has a handle, and when used in the intended way there is no need to touch the patient with the doctor's hand. Again, there might be some incidental hand contact when moving the instrument and this would be brief. Usually once the dermascope is placed on the lesion to be examined it is usually not moved. The scope itself stabilises the skin and in his opinion there was no need to hold the breast to examine a lesion near the nipple. Unless the instrument handle is positioned horizontally, which would not be the way the instrument would be classically used, it would be with some difficulty that the doctor's lips could touch the patient's skin, again this touching would be incidental and brief. "The instrument is designed to be used with one hand. There is no need to stabilise the skin of the breast. There is no reason why the doctor's lips should be touching the patient's skin." Even if the doctor's face touched the patient, such contact would be incidental and brief. This is inconsistent with the version which was given by Patient A who described what occurred as "nuzzling". 60Dr Nespolon was shown an opinion expressed by Prof Mark Gillies in a report of 30 April 2014, who had examined the respondent that day. This report indicated that the respondent had "mild vitreous degeneration in both eyes which may cause a sensation of floaters. His visual acuity was 6/6 part right and 6/5 left but otherwise healthy." It was suggested to Dr Nespolon in cross-examination that the respondent may have needed to move his head to get rid of a floater which might have been impeding his view. Dr Nespolon was unsure of what was intended by Prof Gillies in his reference to "a sensation of floaters" but thought that in any event the respondent would only have needed to move his head slightly to clear a floater. Furthermore, in adjusting the focus of the scope or in moving the head to move a floater, there should be no contact between the respondent's face and the patient's body, and there would be no need for any such contact. 61Dr Michael Roy Burke was qualified to give evidence by the respondent. However, Dr Burke was provided only with material consisting of the respondent's clinical notes and information provided by the respondent. He was not provided with any of the material setting out the versions of events given by Patients A and B. Accordingly, to the extent that any of the evidence given by Patients A and B is accepted and preferred over any of the relevant factual evidence given by or on behalf of the respondent, we will be unable to accept and rely upon the opinion of this witness. 62Dr Burke provided a brief report and gave oral evidence. He is a general practitioner of long-standing, and has held university appointments. The substance of the oral evidence of Dr Burke concerned the use of the dermascope. Dr Burke had never used the particular scope that the respondent said he utilised. It was his opinion that it was clinically possible for the face of the examiner to touch the patient when using the scope. He said that he had demonstrated this on his wife, and he demonstrated the manner in which this would occur to the Tribunal in the course of giving his evidence. However, in doing so Dr Burke placed the scope next to his right eye, whereas it was the respondent's evidence that he used his left eye when carrying out the examination on Patient A. In cross-examination Dr Burke conceded that if the left eye was being used on the scope, he was not sure how the face of the examiner could touch the breast of the patient. 63Dr Burke was adamant that in any event the only part of the examiner's face that could possibly come into contact with the patient would be the side of the cheek, and no part of the mouth could touch the patient. Dr Burke conceded that much will depend upon the size of the breast and the nature and extent of the breast tissue. Furthermore, it would only be necessary to use normal pressure so as to obtain full contact between the scope and the breast. 64Dr Burke was also asked questions concerning the need for the examination of the right breast on 5 July 2011. He noted the pathology report to the effect that it was not a melanoma and he said that the compound naevus was not capable of changing. Most doctors he thought would accept that the surrounding tissue would not be affected. He thought overall that the examination carried out on that date could be justified if the re-examination of the breast mole was not contraindicated and while he was examining other moles. He said that if the evidence was that the patient made no complaint about the mole several months after the biopsy there would be no reason to re-examine the breast. We comment that the evidence before us was to this effect. The Respondent's evidence. 65The respondent had previously provided certain information concerning the complaints to the complainant. This took the form of letters from his solicitors. That information was, in essence, replicated in a statement made by the respondent on 4 November 2013 in answer to the Amended Complaint, which was admitted into evidence in these proceedings. In addition, the respondent gave evidence and was cross-examined. 66The respondent was born on to April 1974 and currently lives in Booval, Queensland. He qualified as a medical practitioner in India, worked there as a general practitioner, and has also spent some time in that capacity in the UK. He emigrated with his family to Australia in 2007 and moved to a city on the North coast of New South Wales in 2009. In October 2010 he commenced working as a general practitioner in private practice at the medical centre at which he was working when the incidents the subject of these complaints occurred. This was the first time that he had worked as a general practitioner in private practice in Australia. 67The complainant had asked the respondent to provide certain information about complaints received by it, which it was entitled to do by law. That information was furnished by solicitors acting for the respondent, was admitted into evidence, and we shall refer to it by reference to each of the patients, the subject of these proceedings. Patient A 68The respondent said that he first saw her on 2 March 2011 when she attended for a full skin check. He carried this out after she had undressed save for her underwear and she made no complaint and did not seem concerned. She had a large mole on her right breast which she said concerned her. The respondent examined it using a dermascope and Patient A pulled down the right cup of her bra to allow this to occur. He identified a "suspicious" mole on her back. She asked that this be removed, and she asked that a biopsy be taken of the mole on her breast because the respondent said he could not be sure whether it was a melanoma or not. On 8 March 2011 the respondent carried out both of these procedures in the operating theatre at the surgery. The respondent said that Patient A attended for the results of the biopsies on 16 March 2011. He explained that the mole on the back was mildly dysplastic, but that the mole on the right breast was clear. 69Patient A again attended on the respondent on 18 March 2011 when the stitches on the back were removed. She asked that he check the mole on her buttock. He told her it was not suspicious but that he could review it in three months' time if she had any concerns. On 17 June 2011 Patient A returned to have the mole on her left buttock reviewed. The respondent again used the dermascope and said that there were minimal changes. She asked that it be removed. He said in his statement that she told him that she had been feeling anxious and "shaky at times." He took her blood pressure, used a stethoscope to examine her upper chest and tested her gross motor skills and reflexes. These showed no abnormality, and she did not seem discomforted by these examinations. 70Patient A next attended on the respondent on 22 June 2011. She complained about feeling anxious and depressed for about four months. She said that she had had a Pap smear and been diagnosed with a sexually transmitted disease, HPV. She said she contracted the disease from her previous partner. Because the respondent was concerned about her well-being and psychological health he prepared a GP Mental Health Plan and referred her to a psychologist for counselling. He next saw her on 27 June 2011. She asked for a check for sexually transmitted diseases other than the HPV because she felt anxious. He gave her some information, and asked her to provide a blood sample and urine sample to the pathology room associated with the practice. Through the medium of a letter from his solicitors dated 8 February 2012 and again in the statement of 4 November 2013, the respondent specifically denied conducting any physical examination of this patient on 27 June 2011. However, in oral evidence the respondent said that having heard the evidence of the patient, he thought that it is possible that he was mistaken and that the recollection of the patient may be right and his recollection may be wrong, but he also said; "I can't see that happening". 71Patient A came to the surgery on 5 July 2011 to have the mole on her left buttock removed. This was undertaken in the operating theatre. He said in his statement that after the operation was almost completed Patient A asked to speak to him about her STI results. She then went back to his consulting room and waited for him. He said that she was seated in the room when he entered, and then said "The door has been closed." In oral evidence he said that he could not remember who closed the door. He then discussed with her the partial results which had come back and which were normal. The respondent said that he asked her whether there had been any other changes in other moles. He asserted that she replied that she was not sure about the mole on her breast and he offered to inspect it with the dermascope and she agreed. In oral evidence he repeated that the patient volunteered that she was concerned about the mole on her breast. He told her that it was easiest to perform the test while she was lying on the bed. She lay on the bed with her head on a flat pillow looking up at the ceiling. He said; "She lifted up her top and tried to make arrangements to expose the mole. She then loosened the shoulder strap of her bra and pulled it down to expose most of her breast and the mole." He said he then examined the mole on her right breast. He described what he did as; "I placed the dermascope on the surface of (Patient A's) right breast over the mole. I used the thumb and index finger of my left hand to support the skin around the mole and to adjust the zoom." He said he looked into the scope with his left eye, was not getting very clear features and used a swab which he wiped over the area of the mole. He then commenced using the dermascope again, using the same technique. He said he was "very close" to the surface of her breast as he was performing this examination "which only took a few seconds." He said he was trying to make sure there was nothing suspicious, that there had been no change in the mole and no signs of melanoma when she accused him of "kissing her breast." 72Although the respondent had been given opportunities to furnish information to the complainant through his solicitors, and did so, and subsequently prepared the statement dated 4 November 2013, it was not until he gave evidence in these proceedings that the respondent mentioned that his examination using the dermascope on 5 July 2011 was affected in some way by the presence of a floater in his left eye. He said that during the course of that part of the examination which occurred after he had used the swab, he had felt that he might have a floater. He said he may have moved his head to get rid of the floater, that he could not even focus because the patient gave a jerking movement and said that she thought he had kissed her breast. He said that part of the examination which occurred before he took the swab lasted 10 to 15 seconds, but after the swab the examination took even less time because he could not even focus. He denied any part of his face came into contact with her breast and said that if this had occurred he did not do it deliberately. 73In oral evidence the respondent elaborated on what action he ordinarily took in order to clear his vision if he got a floater. He said he had to remove his eye from the eyepiece so he could get rid of it by blinking, clenching the eye or jerking his head. He denied making any circular movements with his head whilst performing the examination. He specifically denied that any part of his mouth came into contact with the patient, that he looked at her during the course of the examination and that he could see her looking at him. In answer to questions he said that the clinical reason for conducting the examination was to investigate the possibility of suspicious changes in the mole as the patient had mentioned that she was not sure whether there had been any changes. 74The respondent was asked in cross-examination why he performed the dermascope examination on 5 July 2011. He said that if the patient had not expressed any concern, he would not have examined her breast, especially a scar. The examination that he conducted was directed to the mole. The respondent also emphasised that Patient A exhibited no discomfort at any time during the course of the examination until the moment that she pushed him away, and she had never expressed or appeared to have concern about any examination he had conducted prior to this incident. Patient B 75In a letter from his solicitors dated 17 November 2011 the respondent answered certain questions put to him by the complainant which he was required to answer by law. 76This patient first consulted the respondent on 10 March 2011 for a full skin check. He performed a biopsy of suspicious lesions on her right deltoid and right thigh. She told him that she was a single mother with a daughter and requested that she be bulk billed, to which he agreed. He performed a punch biopsy of these lesions on 16 March 2011 and also referred her to a program for persons with weight problems and who were at risk of developing diabetes. When next seen on 25 March 2011 to obtain the results of the biopsy, she said that she had a feeling of discomfort in her chest. After an examination the respondent arranged for testing to be undertaken which revealed that she had trivial mitral regurgitation. He gave the results of this to her on 1 April 2011 when he referred her to a cardiologist for review. On this date, Patient B sent the respondent the email to which we have earlier referred expressing her appreciation of his care. She subsequently received treatment from a cardiologist. 77The respondent said that this patient next attended on him on 1 July 2011. He said he was not clear why she was attending, so he asked her how she was and about her blood pressure. She then asked him for information about contraception methods which he discussed with her. He recommended the insertion of a Mirena implant. He denied that he told her that he would perform this in the surgery because he does not insert such devices and would have referred her to a gynaecologist for this purpose. Furthermore he did not have such a device in stock in the surgery. As the product was new, and he had recently attended a training course, he offered to show her the website of the manufacturer on his computer screen. He suggested that she pull up her own chair towards the computer and as she did so moved her chair closer to him than he had anticipated. He said that when he turned towards her his knee inadvertently touched her knee, but that he immediately apologised and moved his own chair backwards. There was no indication that she was uncomfortable with what had occurred. She said that she would go away and think about what she wanted to do. 78The respondent said that as he had felt uncomfortable with what had occurred by way of accidental contact, he thought it appropriate to change the subject. He said that he then asked her whether her daughter was in daycare and she replied that her daughter was seven years old. He told her that his own daughter was of the same age and suggested that they meet and that she and her daughter come to his house some time to have coffee and meet his family. He gave her the telephone number of a mobile phone he was then using, which was the phone that his wife normally used. She made a note of the number. He denied that he made any suggestion to Patient B that they should have coffee alone together or at night. He has not seen her since in his surgery. 79At the time of this conversation the respondent said that his wife and two daughters were in India. It was his intention that his daughter, who was lonely, could meet the daughter of Patient B because she was of the same age. 80Later that day while in his surgery, the respondent said he received a text message from Patient B to the following effect; "Hi, it's (Patient B) thanks for your number. Your offer today took me by surprise as I thought you have a family here." He said he was confused by this message because their discussion had centred around their respective children. He telephoned her and said words to the effect; "Yes, I have a family. They are overseas at the moment but they are back next week and after that we can arrange a meeting." As he heard nothing further in reply to this he then said "is that okay?" He then said goodbye and heard patient B say "okay". That was the end of the conversation. 81In his statement of 4 November 2013 the respondent said that in his training and culture as a medical practitioner working in India it was, as far as he was aware, not inappropriate to have social contact between medical practitioners and their patients. When he provided his wife's mobile phone number to this patient he said he was not aware that it was inappropriate, but that he would not conduct himself in this way in the future. CONSIDERATION 82We now come to consider each of the complaints brought against the respondent, and the particulars thereof. In doing so we are cognisant that we must consider whether the complaints have been established on the balance of probabilities, but having regard to the serious nature of the matters before the Tribunal, we must be comfortably satisfied that they have so been established. 83In her submissions made on behalf of the complainant, Senior Counsel for the complainant emphasised the well-known principles that are to be applied by this Tribunal in determining whether a medical practitioner has engaged in either unsatisfactory professional conduct or professional misconduct. It is essential that the standards practised by the medical profession and the public confidence in those standards be maintained in order to protect the general public. The greater the vulnerability of particular patients, the greater the need for protection. These submissions emphasised also that patients must be able to trust in the integrity and expertise of their doctors, especially general practitioners. We are cognisant of them. 84As will be seen when examining the Particulars of each of the complaints made by the complainant against the respondent, these proceedings involve considerations of integrity and misconduct rather than the capabilities and expertise of the respondent in his practice as a general practitioner. 85We now come to consider the Particulars of each of the complaints contained within the Amended Notice of Complaint. AMENDED NOTICE OF COMPLAINT TAKE NOTICE THAT the Medical Tribunal of New South Wales has received a complaint from the Health Care Complaints Commission following consultation with the Medical Council of New South Wales in accordance with sections 39(2) and 908(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law ('the National Law') THAT DR Mohammed Adnan Naiyer of 16 Green St Booval OLD 4304 ('the practitioner'), being a medical practitioner registered under the National Law: COMPLAINT ONE has been guilty of unsatisfactory professional conduct within the meaning of section 1398 of the National Law in that he has: (i)engaged in improper or unethical conduct relating to the practice or purported practice of medicine; and/or (ii)contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2010 ( "the Regulation"); and/or (iii)has engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent levelof training or experience (iv). PARTICULARS OF COMPLAINT ONE On 27 June 2011 a female patient, Patient A, consulted the practitioner at the Practice at (northern) NSW ("the medical centre"). Patient A expressed concern about the possibility that she had acquired a sexually transmitted disease from her boyfriend and requested the practitioner conduct further tests. The practitioner performed a physical examination of Patient A including an external examination of her genital and anal region and an internal pelvic examination. 1. The practitioner failed to record any details of his physical examination of Patient A on 27 June 201f in Patient A's medical record contrary to the requirements of clause 7, Part 4 of the Regulation. 86There is no record of the examination in the respondent's notes. The sole question is whether it occurred. Patient A is adamant that it occurred, and that the respondent suggested that she should undergo it. The respondent acknowledged that it is possible that he did conduct this examination, although he has no recollection of it. 87We begin by recollecting that Patient A presented as a most reliable witness. She appeared to us to have good recall of those matters about which she gave evidence. Furthermore, an external examination of this kind and an internal examination of the vagina and anal region is something which is likely to be remembered by a patient. It is invasive of a highly personal part of the female body. 88As will be observed, there are many factual differences between the evidence of the respondent and each of Patients A and B. However, there is a great deal of independent corroboration of the evidence of Patients A and B. For example, in connection with this issue, the mother of Patient A said that her daughter had mentioned to her in passing that the respondent had conducted an internal examination. This reference was not made in any stressful circumstances, and is entirely benign. There can be no question of fabrication of this corroborative evidence. Some of the other areas where corroboration has occurred will be referred to later in these Reasons for Decision. It is sufficient for present purposes to state that overall we prefer the evidence of Patients A and B to that of the respondent where there is any relevant area of controversy. 89In all the circumstances we are comfortably satisfied that the respondent carried out a physical examination of Patient A on 27 June 2011 and, as was conceded by the respondent, that it was not recorded in her medical records as required by clause 7, part 4 of the Health Practitioner Regulation (New South Wales) Regulation 2010 ("the Regulation"). We find the Complaint proven with respect to this Particular. We find accordingly that he has engaged in improper conduct relating to the practice of medicine. In a response prepared by his solicitors and dated 6 February 2012 to a Notice issued under section 34A(1)[a) of the Health Care Complaints Act 1993 the practitioner knowingly provided false information to the Commission, in breach of s99 of Health Care Complaints Act 1993 in that he denied that he performed any physical examination on Patient A on 27 June 2011. 90In the course of giving evidence the respondent said that he had a good memory, and purported to demonstrate this by recollecting verbatim the contents of the text message which Patient B had sent him after her last consultation. However, the respondent indicated that he was having trouble recollecting that he had carried out the physical examination on Patient A. He conceded that he might have, but had no recollection of it. We have found that he did conduct that physical examination. However it is a different matter altogether to make a positive finding that the respondent knowingly provided false information to the complainant when he denied having conducted that examination. He could only have knowingly provided such false information if we could be satisfied in the circumstances that he either knew about it, or denied it recklessly without any consideration as to whether it was true or false. There is simply no sufficient evidence available upon which we could conclude that the respondent was or ought to have been aware of the fact that he had conducted that physical examination, and in the circumstances we decline to find this Complaint proven by reference to this Particular. The practitioner conducted a physical examination of Patient A in circumstances where it was not necessary to do so. 91In circumstances where the respondent asserted that he did not conduct this examination, and had no recollection of it, the only evidence as to whether it was necessary is to be gleaned from the opinions expressed by the several experts, which we have summarised above. 92Dr Vandenbergh said that the examination was not accepted practice and that if undertaken should have been accompanied by a speculum and a swab. Furthermore, blood and urine tests should have been undertaken. That is, the examination served no useful purpose except perhaps to determine if there was any vaginal discharge. We observed, however, that there is no evidence that would justify the examination on this basis alone. 93Dr Nespolon was of the opinion that there was no necessity for a vaginal examination to be conducted, and we have summarised his evidence above. This is especially so because there is no evidence that the patient sought the examination. 94Based on the evidence, we conclude that there was no necessity for the respondent to have conducted this examination. Accordingly, this Complaint is made out with respect to this Particular. We find that as a result the respondent has engaged in conduct that demonstrates the knowledge, skill or judgement possessed by him and that the care exercised by him in the practice of his profession was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience. (iii) (i) The practitioner conducted a physical examination that was not sufficient to detect a sexually transmitted disease in that it did not include a visual speculum examination. . 95The evidence concerning this matter is to be found in the opinion of Dr Vandenbergh, which we have set out above. Whilst we find, on the evidence, that this Particular of this Complaint is proven, we observe that the circumstances are subsumed within the earlier Particular. This will no doubt be a matter for submissions during the course of the stage 2 hearing. We find that the respondent has engaged in conduct that demonstrates the knowledge, skill or judgement possessed by him and that the care exercised by him in the practice of his profession was significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience. COMPLAINT TWO 96Has been guilty of unsatisfactory professional conduct within the meaning of section 1398 of the National Law in that he has: (i) demonstrated that the knowledge, skill or judgement possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or (ii) engaged in improper or unethical conduct relating to the practice or purported practice of medicine PARTICULARS OF COMPLAINT TWO Patient B On 1 July 2011the practitioner had a consultation with a female patient, Patient B, at the medical centre. During the consultation Patient B requested advice about contraception and the practitioner discussed contraception options. (1)At the conclusion of the consultation on 1 July 2011 the practitioner: (b)Asked Patient B when was she going to make a further appointment and was advised by Patient B she would contact the medical centre, (c)Inappropriately asked Patient B " When am I going to see you again?'; (d)Inappropriately asked Patient B "Next time can we do coffee or coffee at night?'; (e)Inappropriately said to Patient B "Have my number, put my number in your phone" and gave Patient B a mobile telephone number. (2)Later on 1 July 2011 in response to a text from Patient B which read "Hi, it's Patient B, don't you have a family?" the practitioner telephoned Patient B and stated "Yes I do, they are overseas. Is that OK?" (3)By reason of any of the matters referred to in particulars 1 and 2 above, individually or cumulatively the practitioner: (a)Failed to maintain appropriate professional boundaries with Patient B, (b)Sought to initiate an inappropriate, personal relationship with Patient B. 97We have set out in some detail the evidence given by the respondent and that given by Patient B about this matter. The version given by the respondent is significantly different from that given by the patient. In particular the respondent said that at all times he mentioned in the conversation with the patient that he wanted to introduce his seven-year-old daughter to the patient's daughter of the same age and that that was the purpose of the invitation to coffee. However, the version given by the respondent is inconsistent with the content of the text message which Patient B sent to him. There is no question that the text message was forwarded the same day as the consultation and the reason for and the content of the text message are entirely consistent with the version of events given by Patient B. Furthermore, the evidence given by her father corroborates her understanding of what was said by the respondent and her reaction to it. We accept as entirely reasonable the reason advanced by Patient B for sending the text message, namely she wanted confirmation as to whether she should continue to attend the respondent as her medical practitioner. 98Accordingly, we accept that the respondent used the words attributed to him in the conversation as related by Patient B. It is then necessary to determine whether the respondent engaged in improper or unethical conduct in using the words which we have found he used. Having regard to the words themselves, which convey an invitation to socialise outside the relationship of medical practitioner and patient, and in particular by reference to having coffee "at night", we are of the opinion that the conduct of the respondent was improper and unethical. This is especially so given the circumstances of the patient, namely a young single mother potentially vulnerable to overtures of this kind. 99Furthermore this conduct needs to be considered in the context of the earlier events that day, namely the fact that on the account of either of them, there was a touching of knees. Again, for reasons which we have earlier advanced, we prefer the evidence of Patient B to that of the respondent. We accept, therefore, that the respondent placed his knee against the knee of Patient B. Whether he did so intentionally or unintentionally, Patient B is adamant that he left his knee there, did not withdraw it even though he was on a swivel chair, and that she was forced to stand up and move her chair back to remove the physical contact. This conduct on the part of the respondent was inappropriate. Whilst no complaint is made about it in the proceedings, and its occurrence will not form part of any necessary finding made by us for the purpose of these proceedings, the fact that it occurred is corroborative of the concern expressed by Patient B about her ongoing relationship with the respondent in response to the later conduct of the respondent in the conversation which took place between them. 100For all these reasons we find that this Complaint is proven by reference to these Particulars. We find that the respondent has engaged in improper and unethical conduct. Patient A 101On 8 March 2011 the practitioner performed a punch biopsy of a mole on Patient A 's right breast ("the breast mole"). The pathology report dated 10 March 2011 for the biopsy stated the breast mole was a compound naevus with no dysplasia or malignancy. On 16 March 2011 the practitioner advised Patient A of the pathology results of the biopsy. On 18 March 2011 the practitioner examined the breast mole. On 5 July 2011 the practitioner removed a mole on Patient A's left buttock. After the procedure on 5 July 2011 the practitioner had a consultation with Patient A in a consulting room at the medical centre ('the consultation"). During the consultation on 5 July 2011 the practitioner: (a)Inquired how the breast mole was and was advised by Patient A the mole was fine; (b)Told Patient A he needed to see the whole breast and asked her to remove her bra, after Patient A had adjusted her clothing and exposed the breast mole for the practitioner to examine; (c)Placed his head close to Patient A's breast and moved his head around in a circular motion over the top of Patient A's breast; (d)Used a dermascope to examine Patient A 's breast mole when it was not clinically necessary to use a dermascope ; (e)Placed his lips on Patient A's breast; (f)By reason of any of the matters referred to in (c)-(g) above, individually or cumulatively, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A. 102Once again, there is a vast gulf between the evidence of Patient A and that of the respondent. The fact that Patient A was clearly and visibly upset by what occurred during this examination is corroborated by the evidence of the Practice Manager. It is also corroborated by the evidence of the respondent. Clearly, something occurred during the course of the examination which Patient A found very upsetting. Her version of what occurred, and the manner in which the respondent conducted himself is set out clearly and graphically in the several accounts which we have extracted and summarised above. She said that she could clearly see the respondent looking at her whilst purporting to examine the mole on her breast. It was an examination initiated by the respondent. She referred to seeing both of the eyes of the respondent, which is entirely inconsistent with him having one eye on the dermascope. It is also inconsistent with him having raised his head in some way, or clenching his left eye to remove the floater. 103We accept the evidence of all of the experts, including Dr Burke called on behalf of the respondent, to the effect that it was virtually impossible for the respondent's face to come into contact with the patient whilst using the dermascope with his left eye. Given the position of the patient, that the scar that was being examined was near the nipple, but to the right of it, that the breast was the right breast and therefore nearer to the examiner, we cannot conceive how the examiner's face could possibly come into contact with the patient's breast while using the scope in the manner intended (that is looking straight down into the eyepiece) with the left eye on the eyepiece. Furthermore, any contact would be momentary, and would not be of the kind described by Patient A, whose description we accept in preference to the evidence given by the respondent about this matter. We observe also that the reference to having to deal with a floater in his eye is something that the respondent raised for the very first time whilst giving evidence in these proceedings, almost 3 years after the event. It smacks of recent invention and an ex post facto rationalisation. We do not accept the respondent's evidence that he was in some way precluded from carrying out his examination and was required to move his head in order to avoid the effect of a floater. 104Because we generally prefer the evidence of Patient A to that of the respondent in connection with this particular aspect of these proceedings, we find that the investigation conducted by the respondent on 5 July 2011 which is the subject of this Complaint was initiated at the suggestion of the respondent and not by the patient, that he asked her to remove all of the bra covering the right breast, that he placed his head close to her breast and moved his head around in a circular motion over the top of the breast and placed his lips on her breast. The placing of one's lips on the breast of another, involves intimate physical contact of a sexual nature. The inherent features of sexual activity as understood generally in the community include this kind of contact. To describe it is sufficient to conclude that this is conduct of a sexual nature. The respondent did not seek to argue to the contrary. The gravity of this matter of is exacerbated by a consideration of the age of Patient A, and the fact that she was single and not in any particular relationship at the time that she was being treated by the respondent. Again, there is a degree of vulnerability against which she was entitled to be protected. This leaves for consideration whether or not the respondent examined the mole on the right breast when it was not clinically necessary to use a dermascope. All of the expert evidence is to the effect that arguably it was not necessary for the respondent to examine any part of the right breast of Patient A, particularly as she had not, on her evidence, expressed any concern, and there were no clinical reasons to conduct an examination. However, as we read para (e) above, this Particular is directed to the use of the dermascope per se, rather than the necessity for the examination itself, whether by using a dermascope or otherwise. All of the expert evidence is to the effect that if such an examination were justified, then, albeit it may be unusual, a dermascope could be used for magnification. However we qualify this observation to the extent that Dr Burke was of the opinion that magnification might be inappropriate, for reasons which we have set out above. Overall, given our understanding of the meaning of this Particular, we are not comfortably satisfied that it has been proven. In all the circumstances we find that all of the Particulars, (a), (c), (d), (g) and (h) of this Complaint have been made out. We find accordingly that the respondent has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. COMPLAINT THREE 105Is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: (1)engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or (2) engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration PARTICULARS TO COMPLAINT THREE 106Complaints One and Two including the particulars thereof, are repeated and relied on both individually and cumulatively. 107In the course of submissions, the complainant said that "this complaint is made out on either basis." There was no elaboration, presumably for the reason that the Particulars relied upon are the same as those which applied to Complaints 1 and 2. The respondent made no submissions about this Complaint 3. Perhaps it was assumed that there was no necessity to do so for the same reason. However, we are mindful that we are engaged in a two-stage process and that the rationale behind this process is to allow the respondent (as well as the complainant) an adequate opportunity to address the Tribunal on what orders should appropriately be made consequent upon the findings as to misconduct. 108The manner in which Complaint 3 is framed, consistent with the provisions of section 139E of the National Law, subsumes within it not only findings as to conduct, but also findings as to the consequences. That is, as is obvious, in order to determine this matter the Tribunal is required to find that the conduct is of a sufficiently serious nature to justify the named consequences, namely suspension or cancellation of registration. We have some doubt about whether, if we make findings as to whether we are relevantly satisfied that this Complaint 3 has been made out that we may trespass into the area to be covered by stage 2 of the proceedings, and in so doing foreclose the ability of the parties, and the respondent in particular, to make full submissions covering the totality of the orders which are available to the Tribunal, and what orders should be made. 109Unfortunately these are matters which were not canvassed during the hearing. We are inclined to take the more cautious approach and to refrain from making any findings about whether Complaint 3 has been made out. This is a matter which can be addressed by the parties at the further hearing set down for 28 May next. Given that we have made findings with respect to the Particulars contained within Complaints 1 and 2, and that these are the same Particulars which apply to Complaint 3, we do not envisage that the hearing on 28 May next will be compromised in any way by asking that the parties make submissions about whether Complaint 3 has been made out. Conclusion 110The proceedings are stood over for further hearing at 10 am on 28 May 2014. ********** 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: 13 May 2014