Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Ng [2015] NSWCATOD 85 Hearing dates: 7, 8, and 9 October 2014, 26 November 2014, 3 February 2015 Decision date: 19 August 2015 Jurisdiction: Occupational Division Before: R Titterton, Senior Member Dr E Clark, Professional Member Dr M Woollam, Professional Member Dr C Berglund, General Member Decision: Each of the complaints brought against the Respondent is established. The conduct of the Respondent constitutes both unsatisfactory professional conduct and professional misconduct. Catchwords: HEALTH CARE PRACTITIONER - Osteopath – digital penetration during course of treatment -constitutes both unsatisfactory professional conduct and professional misconduct. Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law (NSW) Cases Cited: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1 Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 Campbell v Campbell [2015] NSWSC 784 Director-General, Department of Community Services, Re; Sophie [2008] NSWCA 250 Forster v Hunter New England Area Health Service [2010] NSWCA 106). Gianoutsos v Glykis [2006] NSWCCA 137 Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477 New South Wales v Hunt [2014] NSWCA 47 Onassis v Vergottis [1968] 2 Lloyd's Rep 403 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Rejfek v McElroy [1965] HCA 46 Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Sow Kuan Ng (Respondent) Representation: Counsel: C O'Donnell (Applicant) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers Limited (Respondent) File Number(s): 1420206 Publication restriction: Pursuant to Schedule 5D cl 7 of the Health Practitioner Regulation National Law publication of the name of the patient the subject of the consultation of 16 August 2011 by the respondent, or any other patient of the respondent, including members of Patient A's family, is prohibited. REASONS Introduction 1. These proceedings concern two complaints brought by the applicant, the Health Care Complaints Commission (HCCC), against the respondent, Dr Ng, an osteopath. The complaints are set out in Annexure A. 2. The first complaint is a complaint of unsatisfactory professional conduct in relation to a consultation on 16 August 2011. The HCCC alleges that Dr Ng, a registered osteopath, inappropriately placed his finger under Patient A's underwear and inserted his finger into Patient A's vagina for about 30 seconds. The HCCC says that that conduct was without clinical indication or justification and behaviour that amounted to inappropriate conduct of a sexual nature towards Patient A. 3. The second complaint is a complaint of professional misconduct arising from the same conduct. 4. Dr Ng denies any inappropriate conduct in respect of Patient A. Preliminary matter 1. We note that this matter was first heard by a panel comprising Mr Ian Newbrun as the legal and presiding member, Dr M Woollam and Dr E Clark as professional members and Dr C Berglund as the lay member. The hearing took place on 7, 8 and 9 October and 26 November 2014, on which date the proceedings were stood over for the taking of expert evidence. However, because of Mr Newbrun's appointment to the Federal Circuit Court of Australia, his participation in the proceedings could not continue. The parties were offered the opportunity for the matter to be reheard in its entirety, or, alternatively, for a new panel to be constituted, with Dr M Woollam, Dr E Clark and Dr C Berglund, and a new legal and presiding member, with the transcript of the evidence taken before the original panel being tendered at the new hearing. 2. This latter course was chosen by both parties and a new panel of Mr R Titterton as the legal and presiding member, and, Dr M Woollam and Dr E Clark as professional members and Dr C Berglund as the general member was constituted in accordance with s 165B of the Health Practitioner Regulation National Law (NSW) (the National Law). The Tribunal sat on 3 February 2015. At that hearing, by consent, the transcript of the evidence of the hearings held on 7, 8 and 9 October and 26 November 2014 was tendered. Evidence was taken from Doctors Robert Ford and Andrew Korda, in what is colloquially known as a "hot tub". Brief oral submissions were made, and brief written submissions of the HCCC received. 3. Further written submissions were subsequently received from Dr Ng on 19 March 2015 and by the HCCC in reply on 10 April 2015. Summary of conclusions 1. In this matter, the central question to determine is what occurred during a consultation by Dr Ng of Patient A on 16 August 2011. Throughout these reasons we will refer to that consultation as "the consultation". 2. Patient A gave evidence, both written and oral, consistent with the particulars to the complaints of the HCCC. Dr Ng denied Patient A's version of events. It was not submitted by Dr Ng that Patient A was lying or otherwise embellishing her evidence due to some unknown or improper motive. Nor was it disputed that Patient A felt sensations in her vagina that she likened to the feeling of a finger moving in it. Dr Ng does however submit that there were "holes and inconsistencies" in Patient A's evidence. 3. However, Dr Ng submitted that there was "a jumping to the conclusion" that the sensations were in fact produced by a finger in her vagina. It was submitted that the explanation for the sensations felt by Patient A were sensations of referred pain and referral sensations from the palpation of the trigger points within her adductor muscles. 4. The Tribunal has considered the criticisms made of inconsistencies in Patient A's account of events. In our view, Patient A was a credible witness, whose evidence should be accepted. She has no motive to be untruthful, and none was put. We find her behaviour following the consultation supports our conclusion. That behaviour includes numerous contemporaneous complaints about the alleged incident including to her husband, to a work colleague, to her sister-in-law, to the police and during her examination at the sexual assault unit of Royal Prince Hospital on the day the consultation took place. We also note that that the examination conducted at Royal Price Alfred Hospital records Patient A's labia minora as having redness and tenderness. 5. We accept that the expert evidence and the medical literature establishes that sensations of referred pain and referral sensations may be experienced from the palpation of the trigger points within her adductor muscles. Having accepted Patient A's version of events we do not need to consider this hypothesis. We note that Dr Ford, an obstetrician and gynaecologist relied on by the HCCC, agreed with Dr Ng's expert, Dr Korda, that palpation of a trigger point in the adductor magnus muscle can result in a referred sensation of "fullness" in the vagina. However, we accept his conclusion that that sensation was very different to the sensation described by Patient A, and that "a woman would be very aware of how a 'foreign object' would come to be in her vagina" (Exhibit 8), and that a "finger in the vagina is a different modality" (oral evidence, 3 February 2015). 6. In the circumstances, the Tribunal finds the complaints against Dr Ng established. The evidence 1. We shall now summarise the evidence before the Tribunal as follows. 1. Lay evidence relied on by Patient A. This evidence will be set out in the chronological order that it was prepared. 2. Oral evidence in chief of Patient A. 3. Cross examination of Patient A. 4. Lay evidence relied on by Dr Ng. This evidence will be set out in the chronological order that it was prepared. 5. Oral evidence in chief of Dr Ng. 6. Cross-examination of Dr Ng. 7. Expert evidence. Lay evidence relied on by Patient A 16 August 2011 - Records of Royal Prince Alfred Hospital 1. Tendered to the Tribunal and admitted without objection were: 1. The Royal Prince Alfred Hospital Emergency Department Triage Note for Patient A dated 16 August 2011 (Exhibit KK). 2. The Royal Prince Alfred Hospital Sexual Assault Examination records for Patient A dated 16 August 2011 (Exhibit LL). 3. The Royal Prince Alfred Hospital Emergency Counsellor's Report for Patient A dated 16 August 2011 (Exhibit MM). 1. Exhibit LL records the history taken during an interview of Patient A and states: [Patient A] visited her osteopath for a routine check. She has been under the same practitioners care since December 2010. She sees him regularly. Today after routine treatment the osteopath introduced his finger on [Patient A's] vagina. He did not explain or [warn Patient A] about reasons for the procedure. [Patient A] did not feel comfortable. After discussing with her husband – decided to proceed with a report to police. The practitioner did not wear gloves. The digital vaginal penetration occurred after the practitioner asked if there were any other issues. [Patient A] mentioned [right] sided groin pain. The practitioner examined the area first in his usual manner and then proceeded with digital penetration. 1. Page 12a of Exhibit LL records, in relation to Patient A's genitalia: Labia minora Abnormal = Redness [right] inner aspect area, 2 cm Redness and tenderness with light touch 1. All other aspects of Patient A's genitalia were recorded as "normal". Loss of samples 1. Exhibit LL also records that various forensic samples were taken, being reference buccal, vulval swab and smear, low vaginal swab and smear and high vaginal swab and smear samples. 2. These samples were later destroyed: see pars [32] to [33] below. 3. Exhibit MM records, on 16 August 2011, in "brief details of consultation": Client went to osteopath who digitally assaulted her. He did not wear gloves, did not explain procedure pre or post. 19 or 20 August 2011 - Patient A's handwritten notes 1. The first written document relating to the consultation prepared by Patient A was four pages of handwritten notes created either on Thursday 19 August or Saturday 20 August 2011. Patient A identified these notes in her examination in chief. These notes were admitted as Exhibit SS. Patient A agreed that she took trouble to make sure that she included as much detail in these notes as she could at the time. 2. Relevantly these notes state: 1. Dr Ng had been extremely helpful in healing her injuries. She found him to be "delightful, supportive, knowledgeable and wise", and had a good rapport with him, the visits were always pleasant and efficient. 2. Patient A made the appointment with Dr Ng as she had been experiencing pain in her right hip and groin as well as the lower back. 3. In relation to the consultation: I was wearing only underpants and the hospital gown as had always been for my appointments. [Dr Ng] examined all the same areas – lower back, hip alignment, spine, ribs, neck and skull area and told me I was doing well, that I was fitter than previous visits and looked very happy. [Dr Ng] asked if I had any other pain or issues I said the same groin pain in my right side was back as per my initial consultation in [December] 2011. So he said he would examine it "more deeply" when he was finished with my usual check up. At about 8:20 AM this closer examination began. … I was instructed to bend my right knee and leave my left leg straight. [Dr Ng] then wrapped a towel around my bent right leg and proceeded to examine the groin area. He identified an area that was exactly where the pain was and asked if that was what I meant and I confirmed that it was, so he massaged that spot (which was quite painful) for about a minute and seemed to fix the problem – the pain subsided almost immediately. [He said that I had some torn ligament damage, although he had never examined this area in this way when I complained of the same pain]. It did seem to me a bit close to my genital area as he was applying pressure but he stayed just on the skin and my groin so it seemed to be appropriate. He then said "I just need to see if the damage is anywhere else" and as he did so he put his index finger on the inside right wall of my vagina. There was no warning or explanation of why he needed to do this and was not wearing gloves. This continued for about 30 seconds as he felt towards the groin area in massaging fashion. I could feel his fingernail digging into the skin which is obviously very sensitive in this area. He then removed his finger and proceeded to the back of my right groin in the buttock crease with the same massaging. During this time I had my head on the side with my eyes closed my teeth clenched as I felt very anxious, uncomfortable and distressed about the situation. There is no dialogue during these last stages of the procedure. 1. Patient A says that following the consultation she was anxious and stressed, and wanted to leave the premises as soon as possible. She was anxious while driving home and felt nauseous. 2. Patient A called her husband during his lunchtime break. She was very disturbed and distressed about the experience. She also spoke to Bronwyn Winley, a work colleague. On Ms Winley's advice she left work early at about 2:30 PM. Her husband arrived home at 3:30 PM and she told him in greater detail what had happened. 3. She decided to seek the advice of her sister-in-law, who was a police officer. Her sister-in-law's advice was to go to the police station. 4. When she first attended the police station, she was so distressed she was not sure if she was prepared to start the process of opening an official police case, so she told the police she would like to think about it. However, after discussions with the police officer assigned to the case she decided to give an official statement. She subsequently attended the Royal Prince Alfred sexual assault for examination and counselling. 4 October 2011 – complaint to HCCC 1. On 26 September 2011 Patient A had signed a Complaint Form which she lodged with the HCCC on 4 October 2011. That document relevantly provides: [Patient A] visited [Dr] Ng for her usual appointment regarding lower back, hip, neck concerns. [Patient A] then mentioned she had problems around the groin region. He examined & massaged the area (quite close to the genitals) and the pain subsided. He then said "I just need to see if the damage is anywhere else and as he did so he put his index finger insider the right wall of [Patient A]'s vagina. There was no warning or explanation of why he needed to do this and gloves were not worn. This continued for about 30 seconds. He then removed his finger and proceeded to the back of her right groin in the buttock crease. [Patient A] was distressed, uncomfortable, and anxious. There was no dialogue. [Dr Ng] then leaned forward closer to her face and said "I don't mean to be rude & I'm not talking about the yoga, but be more carful when you do other things in the bedroom with your legs out to the side with your husband". To which [Patient A] replied defensively "No, I think it's the yoga". And he said "You know what I mean". [Patient A] was so shocked and embarrassed and all she could say was "ok, ok we don't need to talk about this. Then he said "ok" and asked her to stand up and check if her groin felt okay. He left the room to allow her to get changed but then knocked on the door only 30 seconds afterwards to which [Patient A] said "just another minute". [Dr Ng] seemed very short & nervous as they arranged a follow up appointment & [Patient A] payed. She was charged more than usual (I guess the appointment went longer). [Patient A] tried to be pleasant although feeling anxious & stressed and left the premises as quickly as possible. She was shaking during the drive home and felt nausea throughout the day as she questioned whether what had happened was normal osteopathic procedure. Being so distressed about the situation we went to Waverley police who took [Patient A] to RPA Hospital in Newtown to complete a forensic swab kit. [Patient A] also received counselling. Background [Patient A] has been seeing [Dr Ng] for osteopathy treatment since December 2010. He had been recommended by her sister. 22 November 2011 – Patient A's statement 1. On 22 November 2011 Patient A provided a statement to the Mascot Police. This is a 6 page statement which relevantly states: 1. Patient A had been seeing Dr Ng since December 2010. Initially, her appointments were weekly, then fortnightly, then monthly. She initially saw him for an injury to her lower back, her right hip and her right groin. 2. In the period December 2010 to September 2011 she saw Dr Ng approximately 10 times. 3. The appointment on 16 August 2011 commenced at about 8am. She told him that her groin injury was still giving her trouble. Dr Ng told her that he would "take a look at that more deeply later". 4. During the appointment she was wearing "the medical gown as usual and had kept on her underpants which were full briefs, black bonds brand". 5. Towards the end of the appointment Dr Ng said words to the effect of "Let's look at this other thing". 1. It is appropriate to set out paragraphs [13] to [16] in full. In those paragraphs Patient A states: 13. I was still laying on my back with my left leg straight and my right leg was bent at the knee with the sole of my foot on the examination table beside my other leg. ioe kind of wrapped a towel around the top of my right leg as it was bent and then he held that leg with his left arm and examine my groin with his right hand. He was using his right hand to examine my groin and was pushing on the skin on the bony part of the upper thigh. He found a spot that was quite tender and said, "Is this the spot". I said, "Yep that's it". He continued to work on that by pushing on that area. When he'd finished doing that the pain in my groin and on that spot had subsided, the treatment seem to release something. He said, "You've got some ligament damage". He asked me if that were felt okay and I said that was fine. 14. He said, "Now I'll just have to see if it is anywhere else". He moved his finger closer to the inside of my thigh and then his finger went inside my vagina. He moved my underwear and put his finger in underneath my underwear. He continued to examine on the bone of my groin, but from inside my vagina. This went on for a good 30 seconds. I had my eyes shut. I was feeling very uneasy about what was happening. I could feel his finger now rubbing against the inside of my vagina and after the 30 seconds he then went moving about the back on the skin just on the upper buttock area around the top of my leg. He said, "This is all fine". I couldn't see what he was doing because the towel was in the way and I was laying down on my back. 15. I put my leg down so both my legs were straight and I was lying on my back on the examination table. It was standing on my right side and he leant in towards me and put his left hand on the top of my right arm, touching my skin, and said, "I don't mean to be rude, I don't mean to be rude, and I'm not talking about the yoga, but you need to be more careful when you're in the bedroom with your husband with your leg out wide." To which I replied, "no I think it's the yoga". He said, "But you know what I'm talking about". I said, "ok, ok, we don't have to talk about it". He said, "But you need to be mindful". I said "Ok". He lowered his voice and was quite stern when he was speaking to [me] like that, almost like he was reprimanding me. 16. At the time I felt very uncomfortable, I felt that it was wrong what he was doing. Mr Ng didn't put any gloves on. He didn't tell me what he was going to do, or asked me if it was all right to him to touch my vagina. I didn't expect that to happen, particularly after he had already worked on the area on my groin and I told him it had improved. He had never spoken to me before about my sexual activities or examined me in that way. 1. The statement continues as follows. 1. Patient A then left Dr Ng's consulting rooms and she drove home. She did not speak to anyone about what had happened until 1pm, when she spoke to her husband. She told him what had happened and started crying. 2. At work she also spoke to her friend, Bronwyn Winley about the events during the consultation. 3. Patient A left work early, at about 2.30pm. Her husband arrived home at about 3.30pm. They discussed what happened and she also spoke to her sister in law, who is a police officer. 4. Patient A and her husband then attended Waverley Police Station, and Patient A reported what had happened to Constable Megan Allison. She was advised to attend Royal Prince Alfred Hospital and have a sexual assault examination. This took place. 5. At the time Patient A was not sure that she wanted to pursue the matter with the police. She went overseas a couple of days later with her husband on a pre-arranged holiday. 6. While travelling she compiled some notes about what occurred, so that she "wouldn't forget the details if she made a statement later". She used those notes to refresh her memory during the making of her statement to police of 22 November 2011. 7. Her husband made an initial complaint to the HCCC on her behalf. 22 November 2011 – authority to reveal information 1. On 22 November 2011 Patient A authorised Prince of Wales Hospital to (a) reveal to the NSW Police Service information concerning her condition and her treatment at that hospital concerning (what was described as) an assault which occurred on her on 16 August 2011 and (b) provide to the NSW Police Service with copies of all doctors notes and relevant documentation relating to her treatment and condition relating to that assault. She also authorised the Sexual Assault Unit to provide the Sexual Assault Examination Kit, containing evidence obtained during the sexual assault examination on 16 August 2011 to the NSW Police. 17 January 2012 - Statements of Patient A's husband 1. On 17 January 2012 Patient A's husband provided a statement to Mascot Police. The statement was tendered without objection, and Patient A's husband was not required for cross-examination. 2. Patient A's husband is a personal trainer and primary school teacher. He was also a patient of Dr Ng, having been treated by him about four times. In summary, he states that: 1. When he looked at his mobile phone during the school lunch break, at about 1.40pm, he saw four missed calls from Patient A. This concerned him as it was unusual conduct. He called her straight away. She explained that "something very bad happened at the Osteopath today". He states that "she explained that [Dr Ng] had put his hands into her private region and had done something that was very wrong". Patient A would not say more about this on the phone. He suggested that she talk to a female work colleague. 2. He arrived home after school at about 3.30pm. Patient A's husband states in par [8]: . . . She was crying. I lay down next to her and tried to comfort her. I still didn't really understand what happened. I said to her "what did he actually do?" She said that he had been doing the normal hip treatment and then she mentioned to him that she had been getting the groin pain, to that he worked the area around where the pain was, just outside the line of underwear on the inner side. I knew she wasn't comfortable with him working muscles there anyway, certainly not with him working inside the underwear line. He said to her that he needed to make sure that he'd relieved the knot or muscle tightness, and then without warning he inserted his ungloved fingers into her vagina, for what felt to her like 30 seconds or so. 1. He told her that they should go to the Waverley Police Station to report what had happened. Patient A was reluctant to go so they called his sister, who was a police officer instead. After talking to her, patient A and her husband walked up to the Waverley police station. 2. As they were going overseas for a month, Patient A's husband made typed notes of what Patient A had told him "in case [he/they] needed them later". 3. He wrote a letter to the HCCC in August 2011 outlining what had happened and lodged a complaint against Dr Ng. 4. On 23 December 2011 he received a letter from the HCCC dated 20 December 2011. The letter advised that the HCCC, in consultation with the Osteopathy Council, had assessed the complaint and decided to take no further action in the matter. 1. Attached to the statement of Patient A's husband is a typed note. It bears the date "19/6/11" at the top of the note, and has been signed by Patient A's husband and witnessed by a "P Williams OSC" on 17 January 2012. We note however that in the statement Patient A's husband states that he prepared the typed written note on 19 August 2011. Presumably the dated "19/6/11" is a typographical error and should read "19/8/11". Relevantly the typed note states: At 1:40pm on Tuesday 16th August I checked my phone and noticed that I had 4 missed called from [Patient A]. The first of which was placed at 11am. I phoned [Patient A] back immediately to see if anything was wrong . . . [she] sounded very distressed and shaky. I asked her what was wrong and at first she didn't want to say it over the phone . . . but then she described what had happened. She explained that He [Dr Ng] had put his hands into her private region and done something that was very wrong. Later that afternoon at 3.30 [Patient A] explained the full story. She said that she had been undergoing the normal treatment for her hip when she mentioned that she had been getting pain in her groin region. [Dr Ng] proceeded to work the area and the pain was relieved. He then said to her that he needed to make sure of it and inserted his ungloved fingers into her vagina for what felt like 30 second[s] or so. After he had finished forward he leant forward and said to [Patient A]: I don't want to be rude … And I don't think it's the yoga… But you should be more careful when you have your leg out like that when you're doing things in the bedroom with your husband. That is when I said to [Patient A] that we should go up to Waverly police station and report the incident immediately. 13 March 2012 - Loss of forensic samples 1. A Sydney Local Health District Incident Investigation Report into the destruction of those samples dated 13 March 2012 stated: A client Sexual Assault Identification Kit was collected on 16 August 2011. At the time of the SAIK collection the client signed 'to destroy' in the Adult sexual assault protocol. The 'to destroy' section on the form states 'I have been informed that forensic specimens taken may be destroyed without further consultation, if I do not contact the Sexual Assault Service and sign a consent for release to police, within a 3 month period from the date of their collection. The SAIK was destroyed by the Crisis Coordinator on 9 January 2012, despite NSW Police, on 11 November 2011, having confirmed that the client wished to retain the SAIK to pursue a legal case. This incident may hinder the client's legal case and requires open disclosure. 1. The Incident Investigation Report attributed the destruction of the samples to "system problems" and individual human error. 11 September 2012 - Statement of Patient A 1. On 11 September 2012 Patient A provided a further statement to the HCCC. (We note that par [8] was not pressed at the hearing.) This was prepared after she had read Dr Ng's response to her complaint. She states: The thing that stands out to me is that he said that he asked for my consent and explained what was happening during the procedure of my groin area. He did not do this at all, and this is why it stands out to me. He also said in his response that he would explain what he was doing before all the procedures. During the appointment in question, and any previous appointment he had never explained any of the procedures to me before doing them. 2 April 2012 - Statement of Ms Winley 1. On 2 April 2012 Patient A's work colleague Bronwyn Winley provided a statement to the North Sydney Police. Her statement was tendered without objection, and Ms Winley was not required for cross-examination. Relevantly, Ms Winley states that: 1. When Patient A came to work on Tuesday 16 August 2011, "she seemed kind of preoccupied, it was obvious to me that something was wrong, she wasn't acting like herself". 2. Patient A told her that "she'd been to her Osteopath that morning and he had gone a bit far whilst massaging her inner thigh and had made inappropriate comments about her relationship with her husband. She said that he said that she should be more careful what she does with her husband". 3. Patient A was quite teary and quite shaky and she was quite distressed while they were speaking. 25 May 2013 – Statement of Patient A's husband 1. On 25 May 2013 Patient A's husband provided a further statement to the police. In that statement he said that he once commented to his brother in law, who had referred him to Dr Ng, that he did not think that Dr Ng had "any sense of personal space . . . I would usually get a bit sweaty during the treatment and I felt uncomfortable with the lack of personal space that Dr Ng provided me". 2. We do not consider that this second statement is of any assistance in determining what occurred during Dr Ng's consultation of Patient A on 19 August 2011, and have placed no weight on its contents. 2 June 2013 - Statement of Ms Sergeant 1. On 2 June 2013 Ms Lauren Sergeant provided a statement to the HCCC. Her statement was tendered without objection, and Ms Sergeant was not required for cross-examination. Ms Sergeant, a police officer, is the sister of Patient A's husband. She says that on 16 August 2011 she received a phone call from her brother saying that Patient A's osteopath had touched her inappropriately. She also talked to Patient A, who said that Dr Ng had "inserted her finger inside of her". She states in par [6]: I asked [Patient A] more about what had happened and whether the osteopath had inserted a finger or whether he touched her on the outside of her vagina. [Patient A] said that he had inserted his finger into her vagina. I then asked [Patient A] if her osteopath was wearing gloves at the time because I was trying to work out if the osteopath's actions were possibly part of the treatment. [Patient A] told me that he wasn't wearing any gloves. 1. Patient A told her that Dr Ng was not wearing gloves at the time. 15 August 2013 – Statement of Patient A 1. This statement attempts to explain why Patient A said in her statement of 22 November 2011 that Dr Ng "would often talk me through what he was doing", while she stated in her statement of 11 September 2012 that Dr Ng did not explain any procedures to her during the consultation or in any previous appointment. 2. Patient A states at par [6]: At the time I made the statement to the Commission I had just read Dr Ng's response to my complaint. In that statement of 11 September I was just referring to the appointment on 16 August 2011. In this appointment he did not explain that he would insert his finger or anything else in my vagina. I cannot recall if, in this appointment on 16 August 2011 if he explained when he was working on other areas of my body such as my spine as he had done in the previous appointments, [It] is now 2 years ago so I cannot recall other parts of the appointment. Oral evidence of Patient A 1. Patient A gave some additional oral evidence at the hearing. Relevantly, she was asked questions about the underwear that she was wearing. She did not recall how old the underpants were. She described their fit as "snug", and that they "fit me very well". When asked to describe how loosely or otherwise the briefs fitted around her leg she said "they were snug, fitted me normally", on both legs. 2. In relation to par [13] of her statement of 22 November 2011, she said that Mr's Ng's right hand was not gloved at the time, and agreed that that he touched her skin with his ungloved hand. In relation to par [14] of her statement, she said that his right hand was not gloved when his finger when inside her vagina. Cross-examination of Patient A 1. Patient A was then cross-examined by Senior Counsel for Dr Ng. Ms Lonergan suggested to Patient A that when she first went to see Dr Ng she actually complained of pain in her left hip and groin, whereas in exhibit SS she states that she had been experiencing pain in her right hip and groin. Patient A said that she could not recall but agreed that "maybe" she had described "it" differently to start. 2. Patient A agreed that Dr Ng had explained on occasion that pain could be referred from other locations, and that on occasion, treatment he was about to perform could hurt. 3. Patient A was cross-examined about par [13] of her statement of 22 November 2011. Ms Lonergan suggested to her that Dr Ng said to her that he thought her problems may be coming from the large muscle attached to the leg bone in the pelvis. Patient A stated that he "definitely" did not say that. Senior Counsel also suggested that Dr Ng explained that he was going to treat the muscle by friction and pressure to try and release it. Patient A denied that. She also denied that Dr Ng said it could be sensitive in the area, or that he asked her if she was "okay" with the treatment he was going to perform. 4. Patient A was cross-examined about the massaging of a spot on her upper thigh. Senior Counsel suggested that Dr Ng was massaging the spot through the towel that was over her leg and thigh. Patient A denied this. She said that skin to skin contact occurred. Patient A was then cross-examined about "a sensation that you felt like a finger being inserted in your vagina". Patient A agreed that she did not see a finger being inserted and did not know whether it was an index finger or any other finger. She said that she stated that it was an index finger in her statement because that was what she assumed. She was asked directly whether she also assumed that it was a finger being inserted in her vagina to which she replied "No, I felt it". 5. She agreed that she had never had any palpation in that area before. When asked whether she knew anything about how pressing on certain areas might lead to a feeling of fullness or pain in her vagina, Patient A responded, "No, I felt a fingernail". 6. Patient A was then cross-examined about Dr Ng's statements where he sets out research that he had undertaken regarding referred sensation in the vagina when there was palpation or pressing of other points in the pelvic area. She was asked directly whether or not she believed that this is what had happened to her. She agreed that she did not believe that this explained what happened during the consultation. It was at this point Ms Lonergan put to Patient A that her handwritten statement, which included all the important relevant details, did not say anything about the lifting of the underwear. Ms Lonergan put to Patient A that she assumed that her underwear was lifted. Ms Lonergan put to her the following passage contained in Exhibit SS: He then said "I just need to see if the damage is anywhere else" and as he did so he put his index finger on the inside right wall of my vagina. There was no warning or explanation of why he needed to do this and was not wearing gloves. This continued for about 30 seconds then he felt towards the groin area in the massaging fashion. I could feel his fingernail digging into the skin which is obviously very sensitive in this area". 1. Ms Lonergan suggested to Patient A that it was when she attended the police in September she added to that version of events, by stating "he moved my underwear and put his finger in underneath my underwear". Patient A was asked detailed questions about this and volunteered that she remembered "Pelli" (a reference to Detective Senior Constable Pelli Williams who witnessed her statement) asking her whether her underwear had been moved. She agreed that the Senior Constable suggested to her something that she did not write in the first account of the events, and that she had been "prompted". 2. Ms Lonergan then suggested that Patient A's underwear was not moved and that the sensation she had felt was referred sensation from pressing on a location around near her underwear line. Patient A denied this. She said that she did not agree that her underwear was not moved. When asked whether she was surmising that the underwear was moved rather than actually recollecting it as a matter of fact, Patient A said she that she could not recall that detail. 3. Ms Lonergan also put to Patient A that she had not told Ms Winley that Dr Ng had put his finger in her vagina, only that "she had gone a bit far massaging me". Patient A explained this by saying that she had a discussion with her friend in the kitchen at work, and would not have felt comfortable going into the details with her at that time. 4. In other cross-examination Patient A agreed that the statement in par [11] of her statement that "during the appointment in question and any previous support and he had never explain any of the procedures to me before doing them" was untrue, that "never" was a strong word and that perhaps should not have been used. 5. Ms Lonergan suggested to Patient A that the palpation and massaging undertaken by Dr Ng during the consultation was carried out through the robe that she was wearing. Patient A denied this. Ms Lonergan also suggested that she was mistaken about the palpation being skin to skin. Patient A denied this. 6. Patient A was asked by the then legal and presiding member of the Tribunal to clarify where "the spot" was on her right leg that Dr Ng was palpating. She said it was "about two centimetres from the opening of my vagina. It is – the anatomy underneath is a bone with ligament or muscle kind of tendons that join the leg to the pelvis". When asked what part of her right leg this was, she said "it's the inner thigh, inner thigh the very top". Patient A said that after ceasing that palpation work, three to five seconds later he inserted his finger in her vagina. The cross examination continued as follows: Q. Now when you say that Dr Ng's finger entered your vagina and where you say in paragraph 14 "This went on for a good 30 seconds", could you describe, as best you? can today, what the sensation was when his finger was in your vagina for that 30 seconds? A. It was similar to the first palpation in that it was quite strong pressure but I could feel a fingernail and I could feel a finger, you know, moving – you know, in the same fashion as the point – as paragraph 13. Q. So you just referred to "quite strong pressure"? A. Yes. Q. Was there or was there not any experience of pain while his finger was in your vagina? A. Not in the same way that I could feel pain in the ligament of the previous examination or the previous part in paragraph 13 because there wasn't the same pain in the ligament there. It wasn't injured as such. Q. So having stated that for the Tribunal, what's your best description of the sensation that you experienced during this 30 seconds? A. It would be pressure from – of a finger, like you know the tip of the finger going from side to side or – but quite firmly with the finger and I thought I could feel a fingernail. 1. Further questions were then asked by Ms Lonergan arising from those questions: Q. You didn't say "I felt the finger moving in the same fashion as the pressure that was applied to the spot" in your police station did you? A. Well, no because it was prompted. It's only prompted by the question now about what it felt like. I wasn't asked that, yeah. Q. And you're surmising that the sensation you had was – I withdraw that. The answer you gave to the question the chairman just asked, "The best description of sensation you experienced during the 30 seconds", first of all can I ask you this, you didn't count how many seconds this went on? A. No Q. The 30 seconds is an estimate? A. Yes Q. It might be wrong? A. It was at least 20. Q. Right you counted to 20 did you while this was going on? A. I did not count but it – – Q. All right it's a guess isn't it? A. Yes Q. In the answer you gave to that question was "it would have been the pressure of the tip of the finger being moved side to side", you're surmising that? A. I was trying to describe the sensation, that's what it was. Q so it felt like that you're saying? A. Yes. Q. But you said "it would have been"? A. I guess that's – I meant the same thing. Q. You meant that was your sensation? A. Yes. Lay evidence relied on by Dr Ng 15 December 2010 – 16 August 2011 – Dr Ng's clinical notes, including Patient A's informed consent 1. Dr Ng first provided osteopathic services to Patient A on 15 December 2010. On that day she signed a document titled "Informed Consent to Osteopathic Care". That document relevantly states: I do not expect the osteopath to be able to anticipate and explain all risks and complications. I wish to rely on the osteopath to exercise judgment during the course of treatment, which the osteopath feels at the time and based upon the facts then known is in my best interests. 1. The notes include information as at 15 December 2010 concerning Patient A's osteopathic history, her presenting complaint and its history, her previous medical history, her lifestyle and general health, and then the results of a "systemic inquiry" in relation to the musculoskeletal, cardiovascular, respiratory and five other systems. The notes include observations of a clinical and osteopathic examination, differential diagnoses, diagnostic hypotheses, proposed treatment and a management plan. 2. Also forming parts of the notes are Dr Ng's observations at each of Patient A's consultations. 17 November 2011 – Letter of Dr Ng to HCCC 1. On 17 November 2011 Dr Ng wrote a letter to the HCCC, providing a response to Patient A's complaint. He relevantly states as follows. 1. Prior to the consultation he had treated Patient A on 11 occasions. On 16 August 2011 she had complained of pain in "the right groin region". 2. Patient A was wearing a full length gown, and underwear. He covered her with a towel from her chest down to her legs. 3. He described the procedure to Patient A. "Firstly, I described the anatomy of the groin muscles (in general) and then the technique I intended to use. I also communicated that the treatment area was sensitive and that she may experience some discomfort during the treatment". 4. As he is "very aware that contact in the thigh and groin region can be sensitive and uncomfortable for any patient", he asked Patient A for her consent before any palpation and/or treatment proceeded. He says that her consent was verbally given to proceed. 5. Ensuring that the towel was still covering her groin and thigh region, then: 17. . . . I exerted a gentle lateral force on the right knee and she was asked to resist this force. (This was to illicit [sic – elicit] a contraction in the adductor muscles so that I could locate it accurately). 18. With my right middle fingers, I traced and palpated the adductor muscles, initially in the middle of the muscle belly. I identified some fibrotic or scar tissues in this region and used inhibition and friction therapy technique to reduce these tissues. The inhibition and friction therapy breaks apart the adhesive scar tissue that has formed in the injured tissues. 19. I consistently asked how [Patient A] was feeling, making sure that not too much pressure or friction was applied but sufficient enough to carry out the treatment effectively. 20. When I was satisfied with the texture of the treated fibrotic tissue, I solicited [Patient A's] response to the efficacy of the treatment and obtained a positive response from her. 21. As described above, the groin muscles cover a large area and are located between the thigh bone and the pelvic region. Consequently, I had to establish whether there were any more injured tissues beyond the muscle belly further towards the tendon attachment in the pelvic region. I can explain to [Patient A] what I was going to do and obtained her verbal consent to proceed. 22. I proceeded to palpate proximally towards the proximal attachment of the adductor muscles. This is done along the linear direction of these muscles, making sure not to stray away from the medial surface of the right thigh. I was cognisant of any adverse reaction from Patient A and verbally sought her reaction to the treatment, however, she did not verbalise or display any visual discomfort or stress during this time. 23. During the entire treatment, I use my fingers for palpation and treatment and always over the draped towel. I ensured that no skin to skin contact in the groin region was made. 24. As no further fibrotic tissue was found, I terminated the treatment and asked her to tell me how she felt when she stood up. She stated that she felt much better. There was no indication verbally or visually that she was distressed, upset or uncomfortable with the nature of the treatment itself or the outcome. 1. Dr Ng states that he "strongly refutes" (par [28]) the allegations that have been made. He says that it would not have been possible to have touched Patient A in the manner described (by her husband) as "I stayed on the groin muscles and attachment". He also says that Patient A was draped in a towel and wearing her underwear at all times. "At no point in time was any contact made with the genital region". 2. Dr Ng also states that gloves are not used in osteopathic procedures, except for internal procedures, and that the procedure performed on Patient A did not involve any internal or invasive procedure. 3. He says that he did not receive any indication at any time during or after the treatment that Patient A was distressed or uncomfortable with the nature of the treatment. The first notification he received was the letter from the HCCC on 11 November 2011. 4. Dr Ng says he takes his responsibilities as a practitioner very seriously, and that he believes he behaved and performed his duties and responsibilities "diligently, morally responsibly and professionally at all times". While he "vigorously" denies the allegations made against them, he apologises to Patient A for any inadvertent hurt, distress or anxiety. 5. As a result of this complaint he has reviewed his practice in order to consider why the treatment or his questioning might have been misconstrued by Patient A. To this end he has reviewed his consent process and his explanation of treatments in anatomically sensitive areas. He says he is also taking steps to review ways in which he can improve his communication with patients when soliciting potentially sensitive information. 17 June 2013 – Statement of Dr Ng 1. On 24 June 2013, Dr Ng's solicitors sent the HCCC a letter from Dr Ng dated 17 June 2013. The letter states at par [3]: The below submissions are provided in addition to those contained in my letter to the Commission dated 17 November 2011. As outlined in that letter I vigorously deny the allegations made against me and continue to do so. I remain of the view that I followed proper practice and procedure (including keeping proper clinical notes and obtained a signed informed consent) in my clinical dealings with [Patient A] and have satisfied the guidelines and standards of a registered Osteopath. 1. At par [7] Dr Ng states: I vigorously deny the version of events described by [Patient A] and state that at no time did I insert my finger into [Patient A's] vagina as alleged, or at all. (emphasis as in original) 1. The letter also relevantly states, in summary: 1. Dr Ng does not use fingernails to palpate or treat patients. He always uses his finger pads in all forms of treatment and always uses his third finger as the predominant finger to palpate and treat. He keeps his finger nails short as finger nails can cause abrasions and tearing of the skin. 2. Patient A was wearing a treatment gown and underwear, and at all times he treated her through a towel. 3. At no time was it possible for there to be any skin to skin contact with Patient A's groin area. 4. It would be difficult if not impossible for a fingernail to rub against the inside of the right wall of Patient A's vagina for 30 seconds, given he was standing on her right side. 5. In his opinion, if Patient A experienced sensations in the manner she described, those sensations were referred pain and referral sensations from the palpation of the trigger points within the adductor muscles. Oral Evidence in chief of Dr Ng 1. In Dr Ng's examination in chief Ms Lonergan took him through his clinical notes of his consultations with Patient A. Dr Ng explained his treatment notes of all previous consultations, including the initial consultation of 15 December 2010. 2. In relation to Patient A's signed "informed consent", Dr Ng was asked whether the fact that his patients signed a document stating "I do not expect the osteopath to be able to anticipate and explain all risks and complications" meant that he did not need to describe or explain particular manoeuvres he might perform during his treatments. He responded that "It doesn't mean that at all". 3. Dr Ng was asked to explain his clinical notes for the consultations preceding the consultation of 16 August 2011. The then presiding member asked a number of questions about high velocity thrusts and the following exchange took place: PRINCIPAL MEMBER Q. Do you always tell her beforehand that you're about to do that thrust? A. I will always especially first time round . . . LONERGAN Q. And from the evidence you've given should the Tribunal take it that you explained what you were going to do before you do it as well as during it? A. I will explain every new procedure for sure every time before I do it and get the response from the patient, whether they're happy or not happy with it and sometimes after I may repeat my procedure instructions again, depending on how the situation is on different occasions. 1. In examination-in-chief Dr Ng said that the relevant entry for 16 August 2011 states: Right proximal pelvic attachment adductor – inhibit. 1. Dr Ng explained that entry as follows: Okay, now the patient complain[ed] about right groin pain on that consultation. I normally would perform all the other things that you can see now is sequentially in that sense to make sure the rest of the body is aligned all released or mobilise. The reason why I do that considered jumping into doing adductor straight up is that because with her mal-alignment it can cause certain reaction, a certain – with the pain that has been solicited by pelvic torsion for example. So I did that last so what I – when I have done all the sub-occipital I will say to her, look, I'm going to have a look at your groin pain now. . . . Q. All right and do you have a recollection of carrying out that particular part of the treatment with [Patient A] on 16 August 2011? A. Yes. Q. And by recollection I mean a clear picture in your mind that you now independently recall while sitting in the witness box today as opposed to a recollection prompted by reading the statement you prepared in November 2011 or prompted by looking at your notes? A. Yes Q. What is it that you recollect … A. [Patient A] was lying supine. She's gowned, right down in the bottom of the gown is right down to close to her knees and I would have, sorry, I have a towel draped over her, okay? Q. All right and where is the towel draped? A. The towel draped from the mid-area here down to the legs. Q. All right and are you talking about draping the towel prior to her putting her in position to perform this particular manoeuvre? A. Yes Q. Okay, keep going? A. And yeah. Then I would – sorry, I asked patient only to flex or bend her hip, right hip so you'd be, I said again, in layman's term asked her to bring her knees up, right knee up and then I make sure that the towel still covering up the lower part of her body . . . Q. Do you recall what you're now outlining as opposed to it being something that you had been prompted to recall by reading your previous statement? A. I can recall doing this procedure and my … (not transcribable) … management of her, yes… The reason why I can recall is that it's because it's a new procedure and I know it's a sensitive procedure, so I've come to the stage whereby [Patient A's] knees are bent on the hip joint is flexed and I make sure that the towel is draped over the lower part of her body area. 1. In further examination in chief, Dr Ng explained that after the treatment of the lower back he told Patient A that it was time to have a look at the right groin pain. He said that he would describe "in layperson's terms" the anatomy of that region. He could not, however, recall the exact words he used to describe the anatomy of the area to Patient A and he said that he would have said something to the effect of: you have a groin pain and a groin has got [a] certain number of muscles in their which lies on your medial side of your thigh and it's a very large band muscles. It's attached onto the lower part of your thigh bone and running right up and attach the bottom part of your pelvic bone. 1. He then would have told her about what was going to happen next: I would say that there could be some injury to your thigh, inner thigh, and I need to examine them as I examined them and if I do find that there is an injury I treat it. When I do treat it will elicit some tenderness. 1. He also asked her if she was "okay" with that. Patient A having indicated consent to proceed, Dr Ng in fact then proceeded. Dr Ng then described the treatment he carried out. Relevantly he agreed that he remained alert while carrying out palpation for any signs of distress from Patient A. He could not remember Patient A saying anything which indicated a problem or pain, and he said that "I remember definitely there's no skin to skin contact when I palpate". Ms Lonergan asked him how he could say that so confidently. He explained that this was a very sensitive area and if he were to palpate in the circular fashion and with pressure "it would definitely abrase the skin". In later examination in chief Dr Ng again said that: I definitely remember there is no skin to skin. I definitely can recollect there is material between my finger pads and her skin or body. Now whether that gown has shifted or not, that wasn't my focus, that wasn't my concentration, because she was still probably draped. 1. Further examination in chief was as follows: Q. So given your evidence that you're palpating with a towel between your finger pads and the patient's skin, are you able to tell whether you touch the underwear or move the underwear in the process of the palpations you've described? A. I can recollect definitely I did not lift or open up the underwear line. Q. I'm not asking that, what I'm asking you is, given that your palpating between your finger pads and you've got a towel under your fingers, are you able to feel your, whilst you do the palpation having any effect on the underwear line, I don't mean deliberately lifting it, I mean while you are palpating are you able to know whether you're touching or moving the underwear. A. I do not recall moving or touching the underwear line. 1. Ms Lonergan asked Dr Ng directly if he put his finger in Patient A's vagina. He said that he had not, and felt "stunned" when he first received the complaint making that allegation. Cross Examination of Dr Ng 1. During the course of his cross-examination Dr Ng stated or agreed that: 1. At the time of the consultation he had been in practice for "Roughly about two plus years", during which time he provided at least 2,000 treatments. 2. He had provided approximately between 8 to 10,000 treatments in his career. 3. He could not recall "every single detail" of those treatments. 4. He had frequently palpated "skin on skin" with patients during those 10,000 treatment sessions. 1. Dr Ng was then asked: Q. What about if there was a need for you to palpate in the genital region and there was a need for you to penetrate a cavity of the body in that region? 1. His response was: Number 1, I do not palpate in the genital area at all. 1. Dr Ng then agreed that he had palpated "near" the genital region of female patients. He denied that he palpated female patients close to the labia majora, and that the closest he would have palpated a female patient would be the "origin attachment of that adductor magnus muscle". 2. He was then cross-examined at some length about the anatomy of the "pelvic bone", which he described as being a conglomeration of the pubis, the ilium and ischium. He explained that the adductor muscles are attached onto the ischial ramus, the pubic ramus and the ischial tuberosity. He agreed that to examine the adductors you would need to palpate those regions. He agreed or did not disagree, that those regions lay along what had been described in the evidence as "the bikini line, the fold between the leg and the torso at the top of the leg". He agreed that that region would need to be palpated to properly assess a complaint of pain which might arise out of some injury to one or more of the adductor muscles. He further agreed that he examined Patient A's adductor muscles on 16 August 2011. 3. The following exchange then took place: Q. To alleviate friction in that particular region when examining through skin on skin contact, you could use Sorbolene couldn't you? A. I did not have skin on skin contact in that region. Q. Listen to the question carefully. Assume you were; I'm not at this stage suggesting you did, all right, I'll do that later? A. All right. Q. At this point I'm suggesting that if you needed to use skin on skin contact in that area and you wish to alleviate the risk of inflammation or . . . friction – abrasion - you wished to alleviate the risk of abrasion or deal with that risk, you could use Sorbolene couldn't you? A. You are asking a theoretical question, hypothetical question Q. At the moment its theoretical yes? A. Okay Q. Yes? A. indeed you have you used Sorbolene in your practice with patients when performing skin on skin palpation in other regions? A. Yes. Q. Indeed you've used, I'd suggest Sorbolene in performing skin on skin palpation of this particular patient [Patient A]. A. I have used, yes. Q. And that was a common thing for you to do in your practice of osteopathy I would suggest? A. When you say common, that I use Sorbolene, is that what your question is? Q. It is. A. Then yes, not now. 1. Dr Ng went on to explain that as he has dermatitis he had been advised by his general practitioner not to use that kind of cream (that is, Sorbolene), and now uses cotton gloves. He said he had been using cotton gloves for probably a year or more, but was not using cotton gloves back in 2011. 2. Mr O'Donnell then proceeded to cross-examine Dr Ng about photographs he had included in his letter of 31 May 2013, which was his second response to the HCCC complaint (Exhibit DD in the proceedings). We note that: 1. The towel depicted in the photographs was a couple of millimetres thick and had a rough textured "terry towelling" surface. 2. Dr Ng agreed that Patient A was wearing a gown during the consultation, which extended down her legs and close to her knees. He also agreed that she was wearing underpants during the consultation. He had no independent recollection of the fit of those underpants, save that he did not remember the cut of the underpants being "anything abnormal". 1. The following exchange then took place: Q. And she was wearing underpants, the border of which followed the bikini line, is it not the case you would have needed to palpate, if you did not use skin on skin palpation, through potentially three layers of material? A. Could be. Q. And to be clear those three layers of material would comprise the towel firstly, secondly the gown, and thirdly the underpants? A. Could be. Q. Which, if it was the case, would greatly inhibit, would it not, your capacity to firstly palpate the region? A. That wasn't the priority. Q. Why wasn't it a priority? A. The priority was because it's a sensitive area regardless of it I need to have her gowned and draped. . . . Q. It would have been easy for you, wouldn't it, to have put your hand under the towel through to that region . . . and touch that region directly with your right hand for the purpose of palpating, wouldn't it? A. I'm not sure what you mean by easy. Q. Yes? A. But would not be directly that I can just do it like that. Q. You could have done that, couldn't you? A. I did not do it. Q. Look at the photo of the bottom right hand side, is that your hand in the photo which is above the towel in, if you like, the groin region of the patient? . . . A. Yes. Q. Is your hand in the palpating position? A. Yes. Q. You could quite easily, I would suggest, putting aside any concern the patient had, you could quite easily have put your hand under the towel to palpate that region could you? A. No. Q. Why not? A. I have to go around the town and lifted up and go in. Q. You could just slip your hand under the towel can't you? A. How do you mean by slip? Q. Put it in between the leg as it is raised there in the towel? A. I did not do that because it would be a conscious effort to do that. Q. Do you have a memory clearly of not doing that, or are you just surmising from your regular practice? A. I have a very clear memory that I did not do that. Q. What do you remember doing? . . . Q. At the time you palpated that region… What did you do? Specifically what do you recall now doing, as opposed to what was your normal practice? A. I recall doing – palpating onto that adductor muscle, as I explained before, the procedure that I used Q. Didn't it require skin on skin contact to be certain in that region to find the source of the complaint of the patient about groin pain? A. No. Q. Because that was the superior method of locating it wasn't it? A. They could be superior but I did not do that. 1. Further cross-examination continued, with Dr Ng directly denying, on several occasions, that he placed his hand directly on Patient A's skin at that point at that time, and denying that he performed the palpation through direct skin on skin contact. He also denied that he performed a "treatment using inhibition and fictional work to alleviate that fibrotic tissue" by direct skin on skin contact. 2. The cross–examination continued: Q. . . . On 16 August 2011, at that point of the treatment you will palpating through up to 3 layers of material on your evidence? A. It could be. Q. I suggest that didn't occur, it was direct skin on skin at that point? A. No skin to skin contact. Q. When you gave examination in chief described how you palpate with your finger pads, and is it the case that you ever in palpating move around to the very top of the fingertips, if you like, so that it may be the case, even though your fingernails are cut short, they contact the skin of the patient? A. No. Q. That could happen, couldn't it? A. No. Expert Evidence Dr Robinson's report of 2 September 2013 1. Dr Robinson is a sport and exercise consultant physician. Dr Robinson's opinion was sought by Dr Ng's solicitors on whether palpation trigger points within the adductor magnus muscle can cause pain to be felt inside the pelvis. 2. Dr Robinson explained in her report that trigger points have been described as: spots of exquisite tenderness and hyperirritability in muscle or fascia, localised as taut, palpable bands which mediate a local twitch response of muscle fibres under snapping palpation and, if sufficiently hyperirritable, give rise to pain, tenderness and automatic phenomenon as well as dysfunction, in areas usually remote from their site, called targets. 1. She states that the pain may be of a sudden onset or gradual, cramp-like, tight constrictive or sharp and variable intensity of pain and in duration. The referred pain usually occurs in a remote site and recognisable pattern for each trigger point. The adductor magnus muscle has two known trigger points. The first is located in the mid medial thigh and this trigger point typically refers pain upward into the groin region below the inguinal ligament and downwards over the antero-medial aspect of the thigh almost to the knee. Groin pain is described as deep, almost as if in the pelvis, but the patient is usually unable to identify pain in any specific pelvic structure, i.e. the pain is diffuse. 2. The second trigger point is more proximal in the medial thigh, near the crease of the commencement of the thigh, and overlying the muscle near the musculotendinous origin of the adductor magnus where it inserts into the inferior pubic ramus. This trigger point can refer deep pain anywhere into the pelvis. It can be diffuse, hard to locate pain, or can create localised severe pain felt in the perineum, vagina, rectum, pubic bone or less commonly, the bladder. The pain has been described as causing "sharp lances of pain shooting up inside the pelvis", or "like a firecracker" and may cause pain during intercourse. A sensation of fullness inside the rectum may be reported. The pain can be severe and sharp. 3. As to Dr Robinson's opinion on whether palpation trigger points within the adductor magnus muscle can cause pain to be felt inside the pelvis, her written response was: Yes. As noted above, trigger points in a particular muscle have a repeatable and known area of referral. The trigger point which is located proximally in the medial thigh, near the inferior pubic ramus, will refer pain into the pelvis and it may be felt in the vagina, rectum, bladder, pubic bone locally or more generally, and the pain can vary from the diffuse dull ache to a very sharp, localised severe pain which occurs suddenly and may be fleeting or more prolonged. Dr Robinson's oral evidence 1. In examination in chief, in answers to questions from the then presiding member, Dr Robinson explained that there was a difference between palpation and treatment; palpation she said was a form of diagnosis. 2. She agreed in examination in chief by Ms Lonergan that patients have a varying degree of ability to articulate pain, and that a person's perception of pain and sensation was variable. 3. Dr Robinson was asked by Ms Lonergan: [Patient A] . . . has described the sensation of feeling like a fingernail scratching against the right wall of her vagina for a period of approximately 20 to 30 seconds. Are you able to assist with whether that description of sensation would fit within the types of sensations that could well be caused by pressing friction and inhibition on this second trigger point? 1. Dr Robinson responded: I believe it could, yes. 1. This response was further elaborated by Dr Robinson at the request of the then presiding member. 2. In cross-examination Dr Robinson: 1. Stated that it was "possible" that the sensation described by Patient A (in summary that her underwear was moved, a finger went underneath the underwear and she felt the finger moving from side to side on a small point against the right wall of her vagina, and feeling a fingernail rubbing) was consistent with referred sensation from the trigger point described by Patient A. 2. Did not accept that a married woman of sexual experience might be the best judge of distinguishing between what could be described a point of referred sensation and "the finger going inside the vagina". 3. Agreed that a woman lying on her back "could certainly" perceive an obstetrician or gynecologist inserting their finger "or whatever" into her vagina. 4. Said it would be "quite difficult" but "physically possible" for a fingernail to rub the right wall of the vagina in the way described by Patient A, and that it was possible to do so with the third or middle finger of the hand of "an adult male, [with] normal anatomical measurements". 1. Ms Lonergan asked Dr Robinson in re-examination about her answer summarized at par 97(3) above. Ms Lonergan asked Dr Robinson what she meant by the answer. The response was: Generally – I suppose it's not my area of expertise but - 1. The transcript records Mr O'Donnell's objection and then the immediate further response of Dr Robinson: "I am a woman". 1. Dr Robinson was allowed to clarify her response and she said: The questions with regards to gynaecologist [sic - gynaecology] is not my area of expertise and I probably should not have answered that question when it was put to me but . . . when it comes to anatomy and the finer points of sensation within a female's vagina, completely you know and two point sensation within a female's vagina, it's completely out of my area of expertise. So I understand that I was brought here from the muscular-skeletal point of trigger points but not gynaecology. Dr Korda's report of 8 September 2014 1. Dr Korda is a consultant gynaecologist. In his written report of 8 September 2014 he expressed the following relevant opinions: Whether palpation or trigger points within the adductor magnus muscle (all the nerves within or around that muscle) can cause pain to be felt within the vagina It is my opinion that palpation of a trigger point within the adductor magnus or the nerves within or around that muscle can cause pain to be felt within the vagina. In the event that a trigger point in the groin is palpated pain or sensation of fullness can be felt deeply the pelvis, the rectum and the vagina Whether palpation of trigger points within the adductor magnus muscle brackets all the nerves within or around that muscle) can cause a sensation of presence of a foreign object within the vagina, or feeling that could be mistaken for the presence of a foreign object within the vagina It is my view that palpation of a trigger point in the adductor Magnus can cause a feeling of discomfort in vagina, which could be mistaken for the presence of a foreign object within the vagina Dr Ford's report of 24 September 2014 1. Dr Ford is also a consultant obstetrician and gynaecologist. He is asked to comment on Dr Korda's opinions. He says that "I'm not an expert in any therapy which involves palpation or massage of the adductor Magnus muscle or the groin". Nevertheless, he is "very aware of the clinical entity of 'referred' sensation and this includes 'referred pain'". He states: Dr Korda is correct in stating that palpation of a trigger point in the adductor magnus muscle can result in a referred sensation of "fullness "in the vagina. . . . However, I would say that the sensation of "fullness" in the vagina is very different from the precise sensation described by [Patient A] of a finger being inserted into the vagina, with a description of "a fingernail rubbing against the inside" of her vagina. [Patient A] is a married, sexually active woman I would say that it is reasonable to assume that the sensation of vaginal penetration of various forms is not one that is unknown to her. Like most women her age, she has probably been a user of vaginal tampons, which again would provide her with what would be a familiar sensation of non-penile vagina penetration. The sensation of digital vagina penetration described would involve sensation being experienced in the external genital skin, passing through the vagina introitus and into the sensitive lower third of the vagina. I would say this is a very different experience to the rather diffuse feeling of "fullness" which could be the result of a referred sensation caused by neurological stimulation from some other anatomical site. I agree with Andrew Paul who has a point that although it is possible that a "referred sensation" to the perineum and external genitalia is possible when doing strong palpation in the region of the attachments of the adductor muscles, it is, as he states, highly improbable that this would be interpreted by the woman as a finger being inserted into the vagina. In my opinion, even if a woman whose adductor attachments were being "strongly "palpated did experience some sensation in the vagina, she would nonetheless be aware that this was not actually occurring because there actually was a finger in her vagina. 1. In his summary, Dr Ford states that a woman would be very aware of how a foreign object would come to be in her vagina, as there would be a number of sensations experienced as the object passed from the outside of the body to the inside of the vagina. He says that there would be a sense of the object touching the skin at the vaginal entrance and passing through the vagina introitus to stimulate the sensitive nerves of the lower vagina. He does not believe that the series of sensations could be caused by palpation of a single point in the adductor compartment of Patient A's thigh. He notes in the allegation made by patient A that there was no detail provided as to whether or not she experienced a series of sensations leading to the final conclusion that Dr Ng had his finger in her vagina. He says that if Patient A did experience the series of sensations he describes prior to feeling his finger was in her vagina, then he would be prepared to accept that Dr Ng, did, for whatever purpose insert his finger into her vagina. He concludes: However, if she did not voluntarily describe this series of sensations, I would be more prepared to accept the sudden sensation of a "foreign body" in her vagina could possibly have been the result of a "referral" of the sensation occurring as a consequence of palpation of a "trigger point" some distance away from vagina. There does not appear to me to be any clear evidence that digital penetration either did or did not occur in this case. It remains a case of "she said and he said", and I cannot provide any clear medical solution to determine which of the versions of events provided by [Patient A] and by Dr Ng is in fact correct Dr Paul – Report of 30 April 2013 1. Dr Ford referred to the opinion of Dr Andrew Paul. Dr Paul is a chiropractor and osteopath. He was asked: Whether it is possible for [Patient A] to have felt "referred sensation" to the perineum and external genitalia, even if no physical contact was made in this region. If it is possible, please provide your opinion as to whether it is possible that this could explain [Patient A's] sensation of a finger being inserted in her vagina and if so, please provide detailed reasoning. 1. His response was: My opinion [is] that a 'referred sensation' to the perineum and external genitalia is possible when doing strong palpation in the region of the attachments of the adductor muscles. . . . It is my opinion that the above 'referred sensation' in regards to the sensation of a finger being inserted into the vagina is highly improbable. . . . However, I suspect that a female can 2-point differentiate between an internal source stimulation from an external source but should be several centimeters away if technique is done correctly for a groin injury. 1. This report also deals with the standard of care required of an osteopath. Further opinion on this issue was provided in further reports of Dr Paul of 14 May 2013 and 22 May 2013. Dr Paul – Report of 30 April 2013 1. However, a fourth report was prepared by Dr Paul on 27 June 2013. As he agreed in examination in chief, his views had evolved. In pars [2.9] to [2.11] he stated: 2.9 Dr Ng's explanation of events with regards to referred sensation being felt in the vagina is possible and plausible as the literature does describe the internal sensation (mainly described as referred pain) from activating trigger points in the adductor magnus muscle or the sensation of a foreign object from neuralgia. 2.10 [Patient A's] does not describe the sensation of pain but the presence of a foreign object in the vagina, however the sensation or pain is very subjective. 2.11 Reviewing again [Patient A's] police statement paragraph 14 she states "He continued to examine on the bone of my groin, but from inside the vagina". This would be an inappropriate method of treatment if it was done in this method however I raise this query that [Patient A] could still feel a palpatory pressure on the bones of the pelvis whilst having a sensation within her vagina. As she could feel both regions at the same time it is possible that she was feeling a referred sensation inside the vagina from the pressure in the ischial tuberosity insertion of the adductor magnus. Hot Tub 1. Dr Ford and Dr Korda gave oral evidence together in the "hot tub" procedure. 2. In summary, both experts are agreed that the phenomenon of referred pain/sensation exists and can be caused through the palpation or manipulation of trigger points. 3. Dr Ford's view was that a sensation of referred pain could be felt beyond the stimulation, but that this would be diffuse and possibly painful. This is not what Patient A described, given she simply described sensation rather than pain. His view was also that there was a difference between the feeling of a referred sensation and that of feeling actual digital penetration and movement of the finger, due to the innervation in that lower third of the vagina. He agreed that each of the events of firstly palpation of the top of the adductor for 20 to 30 seconds, secondly a gap of no sensation for 3 to 5 seconds, and thirdly a further 30 second period of sensation of a finger in her vagina, including the sensation of a fingernail, would be felt separately by the person. 4. Dr Korda's view was that a referred sensation of fullness could be felt, and that some movement sensation could be felt by a referred sensation if palpating muscles. He said patients could have difficulty differentiating sensations in the pelvis, and that inflammation could lead to hypersensitivity in a region, such as pain and sensation or loss of sensation. 5. Both experts accepted that if patient A had been lying on her back she would have felt a sensation if a finger entered her introitus. Both agreed it was a very sensitive area, and insertion was a notable sensation as opposed to touching on the outside. 6. Dr Ford noted he was not an expert in palpation of the adductor muscle and referred sensation. Dr Korda also noted he didn't do palpation of trigger points himself, but said he had done some research into trigger points and anatomy, and felt referred sensation could be consistent with this research. Neither Dr Ford nor Dr Korda could answer within their expertise whether it was possible that a referred sensation was felt without feeling the palpation of the actual trigger point. Consideration Summary of issues 1. The central issue before the Tribunal is whether the palpation or manipulation undertaken by Dr Ng during a treatment on Patient A may have caused the sensations Patient A described within her vagina, or whether those sensations were the result of digital penetration of her vagina. 2. The HCCC contends that the evidence establishes, to the required standard, the latter to be the case. It contends that the time sequence given by the Patient A in cross-examination, which was not seriously challenged during her cross-examination, "simply inconsistent with Patient A's sensation of digital penetration of her vagina have been caused by palpation or manipulation of a trigger point". 3. On the other hand the respondent submits that allegations cannot be decided based on suspicion or surmise; there has to be an actual persuasion of what was alleged in the complaint is what occurred. As concluded by Dr Ford, it remains a case of "she said, he said"; and, "there does not appear to me to be any clear evidence the digital penetration either did or did not occur in this case". Dr Ng submits that that is the correct conclusion which the Tribunal should also reach. Findings and Consideration 1. Patient A and Dr Ng have given completely different accounts of critical events of the consultation. 2. Patient A, is a married woman and is 35 years of age. She had seen Dr Ng on 11 occasions before the consultation. She had previously found him to be "delightful, supportive, knowledgeable and wise". 3. Dr Ng holds degrees in science, business administration and osteopathy. He speaks five languages. His curriculum vitae states: I am a mature and caring Professional with a passion for the promotion of health and wellness. I also bring to my practice of Osteopathy insights gained from other aspects of my professional career as well as my considerable life experiences. I also adopt a holistic, responsible and caring approach to my patients health and well-being. I am deeply committed to achieving the best outcomes for my patients and quickly gain their confidence in my ability to help them. 1. References attesting to Dr Ng's good character and professional conduct have been provided by peer osteopaths and patients. 2. The HCCC submits that there are a number of factors which would cause the Tribunal to accept Patient A's version of events. These include: 1. Dr Ng does not claim that Patient A is unreliable, or activated by malice or some other improper motive. Dr Ng submits that Patient A is simply mistaken. 2. Patient A generally gave consistent accounts of what occurred in her various statements and in oral evidence; in particular, during her lengthy and detailed cross-examination Patient A adhered to her version of events. 3. Patient A's recollection is corroborated to a significant extent by her early and numerous same-date complaints about the alleged incident to her husband, work colleague, sister-in-law and the police, and her subsequent visit to the RPAH sexual assault unit. 4. Her recollection is further supported by the fact she sought counseling about the incident on a number of occasions between November 2011 and January 2012. 5. The sensations felt by Patient A are explained by digital penetration of the vagina, not referred sensation. This is supported by the expert evidence namely: * Dr Paul, who says that it was highly improbable that strong palpation of the adductor muscle attachments in the groin would be interpreted by a woman as a finger in her vagina; * Dr Robinson, who says that "a woman could certainly, should be able to perceive that", and is consistent with medical fact and common sense"; * Dr Ford, who agrees with Dr Paul. 1. On the other hand, Dr Ng submits that there are many factors which should cause the Tribunal to reject Patient A's evidence and to prefer his account of events. These factors include the following: 1. Dr Ng also gave consistent evidence, denying the accusation. 2. Patient A's evidence is based on suspicion or surmise as to what occurred; she did not see him insert his finger into her vagina, she guessed it was his index finger, and guessed it was 20 or 30 seconds. 3. Patient A did not include in exhibit SS, her first written account, that there was any sensation of the underwear being moved. She admitted that she was prompted by the attending police officer, and that she could not recall any physical sensation of the underwear being touched. In the circumstances, there was simply no explanation as to how Dr Ng's finger got past her underwear. 4. There was a delay in making a formal complaint. 5. No prosecution for any offence took place. This is correct, but this may be explained by the loss of the sexual assault kit. 6. Patient A deliberately left out matters from evidence that would be exculpatory of the respondent. 7. Patient A was not entirely honest in her account of what occurred, the example being that in her statement of September 2012 she said in par [11] "during the appointment in question and any previous appointment he had never explained any of the procedures to me before doing them". 8. Patient A gave three different and inconsistent versions of the consultation. 9. The sensations felt by Patient A are explained by referred sensation. This is supported by the expert evidence of Dr Paul, Dr Robinson and Dr Korda. 1. In particular, Dr Ng submits that it is critical to note that the medical literature and the peer opinion obtained by the HCCC supports the plausibility of the explanation for the sensations felt by Patient A being referred sensations from trigger points at the top of the thigh. In this respect Dr Ng relies on the change in opinion of Dr Paul from that in his first report that it was: highly improbable that strong palpation of the adductor muscle attachments in the groin would be interpreted as a finger in the vagina, to: [the] referred sensation being felt in the vagina is possible and plausible as the literature does describe the internal sensation (mainly described as referred pain) from activating trigger points in the adductor magnus muscle or the sensation of a foreign object from neuralgia. 1. The critical issue for consideration is the direct allegation by Patient A that Dr Ng inserted his finger into her vagina during the course of the consultation, and Dr Ng's denial of that allegation. To consider this issue and to make appropriate findings we think it useful to set out some observations on assessing the credit of a witness, and further observations on the standard of proof required. 2. We found the recent discussion by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73] to [79] to be of considerable assistance. To paraphrase his Honour: 1. Where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence is of primary importance: McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477. 2. The rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] Keane JA; referred to with approval by Leeming JA in New South Wales v Hunt [2014] NSWCA 47 at [56]. 3. A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200 at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. 1. His Honour also referred at [75] to the dissenting speech of Lord Pearce in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, who stated at 431: a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part." 1. The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1 at [57]; In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7]. Standard of proof 1. The onus of proof is the civil standard, as explained in Briginshaw v Briginshaw (1983) 6 CLR 336 and other authorities including Forster v Hunter New England Area Health Service [2010] NSWCA 106). 2. In Forster the Court of Appeal stated: 22 In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid). 23 Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2). 1. In Rejfek, the High Court stated: 10. . . . The "clarity" of the proof required, where so serious a matter as fraud is to be found, is an acknowledgment that the degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the fact to be proved: see Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 CLR 336 , per Dixon J. (1938) 60 CLR, at p 362 . . . 11. But the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge: see Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691 per Dixon, Evatt and McTiernan JJ. (1940) 63 CLR, at p 714. 1. In Campbell, Sackar J at [72] also referred to Evans and Braddock [2015] NSWSC 249 at [70] - [77], a decision of Hallen J. Hallen J had noted that Emmett J (as his Honour then was) stated in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at [48]: When proof of any fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. Mere mechanical comparison of probabilities, independent of any belief in reality, cannot justify the finding of a fact. Actual persuasion is achieved where the affirmative of an allegation is made out to the reasonable satisfaction of the Court. However, reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding are considerations that must affect whether the fact has been proved to the reasonable satisfaction of the Court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2). Findings 1. We consider that the appropriate course is to first make findings of fact in relation to the alleged allegations. We have set out above the parties submisions on these issues. We set out Dr Ng's principal submissions and our assessment of the matters he raises: 1. Patient A's evidence is based on suspicion or surmise as to what occurred. While literally true, we do not consider that this is determinative whether or not Patient A's account of the consultation should be accepted. 2. Patient A did not include in Exhibit SS, her first written account, that there was any sensation of the underwear being removed, and was prompted by police in completing her statement and could not recall any physical sensation of the underwear being touched. 3. There was a delay in making a formal complaint. We do not consider that this matter was strongly pressed by Dr Ng. In any event, in our view sufficiently the delay is sufficiently explained by Patient A's explanations about her initial trip to the police station, the sexual assault unit examination and her subsequent trip overseas. 4. There was no prosecution of Dr Ng. We consider that the lack of prosecution is satisfactorily explained due to the destruction of the sexual assault kit. 5. Patient A deliberately left out matters from evidence that would be exculpatory of the respondent. We do not consider that this submission is established, particularly in light of the fact that Dr Ng submits that Patient A was simply mistaken, and not motivated by an improper motive or purpose. 6. Patient A was not entirely honest in her account of what occurred, the example being that in her statement to the police in September 2012 she said in par [11] "during the appointment in question and any previous appointment he had never explained any of the procedures to me before doing them". While Patent A was not accurate in her statement in September 2012, we consider that the submission somewhat overstates the matter. 1. In summary we are satisfied that we should accept Patient's A account of the consultation. As the Court of Appeal stated in Forster, no matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied. We are so reasonably satisfied for the following reasons. 2. First, overall Patient A gave her evidence in a forthright manner. The cross–examination by Ms Lonergan was very thorough, and very detailed (and we add very fair). But throughout the cross-examination Patient A did not deviate from the essential features of her account of events. On the other hand, the manner in which Dr Ng gave evidence was less impressive than Patient A. He was from time to time unresponsive and/or stated his position rather than answered the questions asked of him. Of course, the allegations he was responding to were extremely serious, and it is understandable he wished to state his position. Nevertheless, we find his responses in cross-examination were less persuasive because of this stance. Three examples will suffice. 1. His own counsel asked him, and he responded during examination in chief: Q. I'm not asking that, what I'm asking you is, given that your palpating between your finger pads and you've got a towel under your fingers, are you able to feel your, whilst you do the palpation having any effect on the underwear line, I don't mean deliberately lifting it, I mean while you are palpating are you able to know whether you're touching or moving the underwear. A. I do not recall moving or touching the underwear line. 1. Then in cross-examination he was asked, and responded: Q. What about if there was a need for you to palpate in the genital region and there was a need for you to penetrate a cavity of the body in that region? A. Number 1, I do not palpate in the genital area at all. 1. Again, in cross-examination, he was asked, and responded: Q. To alleviate friction in that particular region when examining through skin on skin contact, you could use Sorbolene couldn't you? A. I did not have skin on skin contact in that region. Q. Listen to the question carefully. Assume you were; I'm not at this stage suggesting you did, all right, I'll do that later? A. All right. Q. At this point I'm suggesting that if you needed to use skin on skin contact in that area and you wish to alleviate the risk of inflammation or . . . friction – abrasion - you wished to alleviate the risk of abrasion or deal with that risk, you could use Sorbolene couldn't you? A. You are asking a theoretical question, hypothetical question 1. We consider both these answers to be unresponsive and to indicate a defensive attitude by Dr Ng. 2. Secondly, the conduct of Patient A on the day of the consultation, ringing her husband, ringing her work colleague, ringing her sister in law, attending the police station and then attending the sexual assault unit of the hospital, is all consistent with the events as claimed by her taking place. We have set out the evidence of these events above. We note that neither Patient A's husband, her work colleague, her sister in law or any of the hospital staff were required for cross-examination. We accept that their evidence is not determinative of whether or not the acts as alleged by Patient A actually took place, but we find them very supportive of her account, particularly when no malice or improper motive has been suggested by Dr Ng. 3. Thirdly, mindful of the guidance in Bathurst Regional Council as to the utility of contemporaneous or near-contemporaneous documents, the four pages of handwritten notes of Patient A prepared three or four days after the consulation are also consistent with the events taking place as claimed by her. 4. Fourthly, we do not accept that the criticisms made of Patient A's evidence, in particular that she did not include in her very first account of what happened any thing about the lifting of the underwear, that she had no recollection of the underwear being lifted, and that she agreed that a police officer suggested to her that that is what she should put in her statement, should cause us to doubt her evidence. In our view, it is not appropriate to go over the very fine details of the Patient A's evidence looking for inconsistencies. As Burchett J counselled in Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76, it is necessary to: understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. 1. Being satisfied that Patient A's account should be accepted, it follows that we reject Dr Ng's account of events. As we have noted, the manner in which Dr Ng gave evidence was less impressive than Patient A, and his answers less responsive. The expert evidence 1. Having accepted that Patient A is a witness of credit, we do not consider that it is necessary to reach conclusions about the expert evidence. On the whole, the experts were in agreement, and we accept that Dr Ford said, this was a case of he said/she said. Our role is to determine, on the balance of probabilities, whether or not what Patient A states occurred, did occur. For the reasons set out above, we do. 2. However, we do think it appropriate to consider Dr Ng's submission that Dr Paul, the only chiropractor called to give expert evidence, "completely revised" his opinion as set out above. It is to be recalled that Dr Paul is a chiropractor, clearly an experienced and distinguished practitioner. He was asked to give his opinion on six questions in relation to the appropriateness of Dr Ng's clinical treatment of Patient A during the consultation, and, in responding to each question, to advise whether Dr Ng's conduct fell below the standard reasonably expected of a practitioner of an equivalent level or training. The fifth question he was asked to answer asked "whether it was possible for Patient A to have felt 'referred sensation' to the perineum and external genitalia, even if no physical contact was made in this region". However, the answer sought was to be given in the context of the standard of care expected of a practitioner. We are not certain that, with all due respect to Dr Paul, that he is qualified to answer the question from any other perspective. That is to say, as Dr Ford responded when asked whether the sensation of palpation be sensed concurrently with referred pain, he stated that he was "not a neurophysiologist". He considered that an "actual concurrent sensation of a finger in the vagina is a different modality". To similar effect was Dr Robinson in a different context when she said "it's completely out my area of expertise. So I understand that I was brought here from the musculo-skeletal point of view trigger points but not gynaecology". 3. We also note that, in our view, the feeling of "fullness" in the vagina, described by Dr Korda, is quite different to the sensations described by [Patient A], which descriptions included: He put his index finger on the inside right wall of my vagina. This continued for about 30 seconds as he felt towards the groin area in massaging fashion. I could feel his fingernail digging into the skin which is obviously very sensitive in this area. He continued to examine on the bone of my groin, but from inside my vagina. This went on for a good 30 seconds. I had my eyes shut. I was feeling very uneasy about what was happening. I could feel his finger now rubbing against the inside of my vagina. I felt it [that is, the finger]. I felt a fingernail. I could feel a fingernail and I could feel a finger, you know, moving. 1. We have considered thus far the allegations of the physical actions of Dr Ng during the consultation. As to the allegations that Dr Ng failed to provide adequate information or explanation to Patient A in relation to the assessment and/or treatment in relation to the groin complaint, and failed to obtain consent from Patient A prior to commencing assessment and/or treatment in relation to the groin complaint, we find that these allegations are made out. Patient A's evidence supports these findings, and Dr Ng did not claim that such warnings were given; he asserts that he gave no warning nor obtained consent, as he did not undertake digital penetration. Accordingly, there was no need for either the warning or the obtaining of any consent to that particular procedure. Conclusions 1. For the reasons appearing above we find that: 1. On 16 August 2011 Dr Ng inappropriately placed his finger under the patient 's underwear and inserted his finger into Patient A's vagina for about 30 seconds. 2. In so doing Dr Ng: 3. (a) failed to provide adequate information or explanation to Patient A in relation to the assessment and/or treatment in relation to the groin complaint; and 4. (b) failed to obtain consent from Patient A prior to commencing assessment and/or treatment in relation to the groin complaint. 5. The conduct of Dr Ng in inappropriately placing his finger under the patient's underwear and inserting his finger into Patient A's vagina for about 30 seconds was without clinical indication or justification. 6. The conduct of Dr Ng in inappropriately placing his finger under the patient's underwear and inserting his finger into Patient A's vagina for about 30 seconds amounted to inappropriate conduct of a sexual nature towards Patient A. 7. That conduct demonstrated that the knowledge, skill or judgment possessed, or care exercised, by Dr Ng in the practice of osteopathy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 8. That conduct was improper or unethical conduct relating to the practice or purported practice of osteopathy. 1. Accordingly we find that: 1. Complaint 1 is established. 2. Complaint 2 is established. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ANNEXURE A The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Osteopathy Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Ng (the practitioner) . . . being an osteopath registered under the National Law COMPLAINT ONE is guilty of unsatisfactory professional conduct under s 139B of the National Law in that Dr Ng has: 1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by Dr Ng in the practice of osteopathy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of osteopathy. BACKGROUND TO COMPLAINT ONE At all material times, the practitioner practised as an osteopath at . . . and Patient A consulted with him at the practice. From approximately December 2010 to August 2011 Patient A consulted the practitioner on approximately 10 occasions as her regular osteopath. PARTICULARS OF COMPLAINT ONE 1. On 16 August 2011, during a professional consultation with Patient A at his practice, the practitioner carried out assessment and treatment in relation to the patient 's groin and failed to provide appropriate osteopathic services in that he 1. failed to provide adequate information or explanation to Patient A in relation to the assessment and/or treatment in relation to the groin complaint; 2. failed to obtain consent from Patient A prior to commencing assessment and/or treatment in relation to the groin complaint. 1. On 16 August 2011, the practitioner inappropriately placed his [finger] under the patient 's underwear and inserted his finger into Patient A's vagina for about 30 seconds which was: 1. without clinical indication or justification; 2. behaviour that amounted to inappropriate conduct of a sexual nature towards Patient A. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficient serious nature to justify suspension or cancelation 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 sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration. BACKGROUND TO COMPLAINT TWO As for Complaint One. PARTICULARS OF COMPLAINT TWO 1. Complaint One and the particulars thereof are repeated and relied upon individually and cumulatively. 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: 19 August 2015