Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Priyamanna [2015] NSWCATOD 138 Hearing dates: 12,13,14,15 and 16 October 2015 Date of orders: 10 December 2015 Decision date: 10 December 2015 Jurisdiction: Occupational Division Before: Boland ADCJ (Deputy President) Dr A Reid (Professional Member) Dr L Cotterell (Professional Member) Ms B Radcliffe (Lay Member) Decision: 1. The complaint of unsatisfactory professional conduct is established 2. The complaint of professional misconduct is established 3. The matter is listed for a "Stage 2" hearing on 18 December 2015 at 10a.m. Catchwords: ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 (NSW).Professional disciplinary proceedings under the Health Practitioner Regulation National Law - Where it is asserted practitioner guilty of unsatisfactory professional conduct and professional misconduct. Practitioner concedes aspects of clinical examination of patient not conducted with appropriate skill and expertise but denies inappropriate behaviour of a sexual nature. Witness credibility in issue. Where complaints are established to requisite civil standard. Legislation Cited: Chiropractors Act 2001 (NSW) (repealed) Evidence Act 1995 (NSW) Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 Campbell v Campbell [2015] NSWSC 784 Clyne v NSW Bar Association [1960] HCA 40; 104 CLR 186 Gianoutsos v Glykis [2006] NSWCA 137 HCCC v Litchfield [1997] NSWCA 297 ; 41 NSWLR 630 HCCC v Peatling [2011] NSWCT 1 HCCC v Rezk [2009] NSWPT 1 King v HCCC [2011] NSWCA 353 Neat v Karajan Holdings Pty Ltd [1992] HCA 66 Quidwai v Brown (1984) 1 NSWLR 100 Texts Cited: Guidelines on Memory and the Law – NSW Judicial Commission Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Naeen Keerthi Priyamanna (Respondent) Representation: Counsel: W Hunt (Applicant) P Strickland SC (Respondent) Solicitors: Health Care Complaints Commission (Ms M Richmond) (Applicant) Nyman Gibson Miralis Lawyers (Respondent) File Number(s): 1520071 Publication restriction: On 15 May 2015 an interim non-publication order was made prohibiting the publication of the name of the patient set out in the schedule to the complaint to any person other than the parties to the proceedings. A final order in identical terms was made on 16 October 2015 in respect of the patient and witnesses in the proceedings.On 12 October 2015 a non-publication order was made in respect of the names of the patients referred to in the reasons for judgment of the District Court of Queensland (Health Practitioners Tribunal Medical Board of Queensland v Priyamanna [2007] QHPT) published on 22 June 2007. REASONS FOR DECISION Introduction 1. Dr Priyamanna ("the practitioner") is a medical practitioner who has been registered to practise medicine in Australia since March 2003. He was born in 1959 and received his high school education in Sri Lanka. He undertook tertiary studies in China, first spending a year learning Mandarin before commencing medical studies. In 1987 he obtained the degrees of MB.BS from China Medical University, China. 2. From May 2013 the practitioner was employed as a general practitioner providing services for an after-hours emergency medical service. In this role he first saw Patient A on 26 November 2013 at the home of her mother and father in law ("Mr A" and "Mrs A") where she was living on a temporary basis. At this very short consultation he diagnosed Patient A as suffering an upper respiratory tract infection and prescribed antibiotics. 3. The practitioner saw Patient A again on 21 December 2013 at approximately 9pm when she was suffering a high temperature, sore throat and body aches and pains. Patient A asserts at this consultation the practitioner conducted his examination of her in a sexually inappropriate manner by briefly massaging her thigh three times, and also massaging her breasts under her bra whilst using a stethoscope. She also asserts the practitioner briefly grabbed or clutched her vaginal area over her shorts with the fingers of one hand. 4. The Health Care Complaints Commission (HCCC) assert the practitioner is guilty of unsatisfactory professional conduct pursuant to s 139B of the Health Practitioner Regulation National Law (the National Law) in that he engaged in conduct that demonstrates his knowledge, skill and judgment possessed or care exercised in his examination of Patient A was significantly below the standard reasonable expected of a practitioner of an equivalent level of training or experience and/or he engaged in improper or unethical conduct relating to the practice or purported practice of medicine. It is further asserted under s 139E of the National Law that the particulars in respect of the practitioner's conduct of his examination of Patient A, either individually or collectively, are of a sufficiently serious nature to justify the suspension or cancellation of his registration and therefore constitute professional misconduct. 5. The practitioner concedes he is guilty of unsatisfactory professional conduct in that in his examination of Patient A his conduct (knowledge, skill or judgment possessed by him) was significantly below the standard reasonable expected of a practitioner of an equivalent level of training or experience, but he does not admit his conduct was improper or unethical. He does not admit he is guilty of professional misconduct. 6. Patient A was examined by the practitioner in the open living/kitchen area of Mr and Mrs A's house and in their presence, which situation suggests misconduct of a sexual nature, however brief, was unlikely to have occurred. But Patient A provided a coherent account of the examination that differed in a number of significant aspects from the practitioner's evidence. She made an early complaint about the practitioner's conduct first to her father in law the morning following the examination, and then to the Police and her general practitioner. Her version of events is corroborated in part by Mr and Mrs A. 7. The practitioner's counsel, Mr Strickland, said the practitioner did not dispute the honesty of Patient A. Nor did he dispute that she genuinely perceived the examination to have had sexual or improper elements. Rather, it is the practitioner's position his examination was, in part, clinically unwarranted, and that he did not adequately explain to the patient what he intended to do in his examination. He accepts those aspects of his examination of Patient A are serious enough to constitute unsatisfactory professional conduct. 8. Thus, the issues in the hearing were focussed principally on the credibility of the witnesses, and any evidence corroborating their account. We were assisted in reaching our findings by expert evidence from three experts. Those experts essentially agreed if we found the practitioner had touched or massaged Patient A's thigh, and/ or massaged her breasts, or grabbed her vaginal area, the conduct could not be clinically justified. 9. We were asked to deal with the complaint against the practitioner as a two stage matter, and before proceeding to consider protective orders, that we publish our reasons setting out our findings on the matters pleaded in the complaint. 10. For the reasons that follow, we find that the practitioner's conduct was not only unsatisfactory professional conduct as conceded by him but that he engaged in improper or unethical conduct and is guilty of professional misconduct. Background 1. The following facts, unless noted to be an assertion, are established to the requisite civil standard. 2. As noted above the practitioner was born in 1959 in Sri Lanka. He graduated from the China Medical University with the degrees of Bachelor of Medicine and Bachelor of Surgery in 1987, and thereafter worked in Sri Lanka. 3. The practitioner migrated to Australia and was first registered in this country on 25 March 2003. He obtained a position with Queensland Health and was employed at Mackay Base Hospital. He remained in that position until approximately February 2012. In February 2004, during his employment at Mackay Base Hospital, the practitioner spent one week relieving a general practitioner at Dysart Base Hospital and Medical Centre. 4. Four female patients who the practitioner examined whilst working at Dysart complained about the practitioner's examination of them. The complaints were subject of professional disciplinary proceedings in the Health Practitioner's Tribunal, Queensland in May 2007. The four allegations made against the practitioner at that time set out in the reasons of the Health Practitioner's Tribunal are as follows: 1. Dr Priyamanna inappropriately and unnecessarily undressed patients; 2. Dr Priyamanna 'fondled' female patient's breasts during examinations; 3. Dr Priyamanna conducted an inappropriate vaginal examination and did the same without utilising accepted hygiene standards (i.e. he did not wear gloves); 4. Dr Priyamanna demonstrated incompetency in his ability to use a stethoscope and a thermometer. 1. The Health Practitioner's Tribunal noted that the practitioner accepted that "his conduct, in carrying out the examinations, was of a lesser standard than might reasonably be expected by the public or by his professional peers and that he is guilty of unsatisfactory professional conduct within the meaning of the Act". But the Health Practitioner's Tribunal noted that the practitioner disputed "that there was an element of sexual misconduct or impropriety involved in his treatment of the complainant women" (reasons [2]). K O'Brien DCJ found at [17] of the Health Practitioner's Tribunal's reasons: There are some concerning features of the conduct of the Registrant in this case. However, having regard to the requirements of proof and the nature of the allegations, I am unable to conclude that there was about the Registrant's conduct, in respect of any of the complaints in this matter an element of impropriety. 1. The Health Practitioner's Tribunal imposed conditions on the practitioner's registration on 22 June 2007, including a condition that he not examine or treat any female patient without a female chaperone over the age of 18 years being present, required him to notify his employers of the conditions imposed, and to undertake "such training concerning women's health issues as may be approved by the Board…" The Health Practitioner's Tribunal ordered that the practitioner could not apply for a review of the conditions for a period of two years. 2. The Australian Health Practitioner Regulation Agency's (AHPRA's) records disclose that, in addition to the above conditions, from 1 July 2010 the practitioner's registration was also subject to a condition which limited his ability to practise only in an Area of Need as a Principal House Officer in various north Queensland Hospitals under supervision of a named practitioner. We note that the APHRA records only cover the period on and from the introduction of the National Law and the condition limiting the practitioner's employment was in all likelihood in place on and from 2003. 3. Between February 2012 and May 2013 the practitioner studied for the Australian Medical Council examinations which he successfully passed. 4. On 12 November 2012 the practitioner obtained general registration. 5. Between November 2012 and May 2013 the practitioner was not employed. 6. In May 2013 the practitioner obtained employment for Home Doctor Services (previously known as Family Care Medical Services), an after-hours service run administratively from Brisbane. The practitioner's usual hours in this employment are 6pm. to midnight five to six days per week with occasional shift work on weekends. 7. On 26 November 2013 in his capacity as an employed doctor with the after-hours service the practitioner saw Patient A who had a sore throat and prescribed Keflex. The consultation occurred at Mr and Mrs A's home and was of short duration (approximately 6 to 8 minutes). 8. On 21 December 2013 Patient A, a then 35 year old breast feeding mother, had a high fever, sore throat and body aches and pains. Her husband called the after-hours service about 4.30pm and the practitioner attended Mr and Mrs A's home at approximately 9pm. He examined Patient A in the presence of Mr and Mrs A in the open plan lounge/kitchen area of their home. Patient A was living with her husband and two infant children in Mr and Mrs A's home while a new home was being built for them. 9. The practitioner asserts immediately after the consultation he wrote up his clinical notes on a pro forma document using a laptop computer in his car. He asserts, at the time of the consultation, he was tired, hungry and believed he still had two further patients to see. He asserts these factors contributed to the less than optimal manner in which he carried out his examination of Patient A including a lack of proper explanation to her of his proposed abdominal examination, and obtaining her consent prior to that examination. 10. The clinical notes prepared by the practitioner record a provisional diagnosis of Tonsilitis. Under the heading "Clinical Notes" the practitioner recorded "ENT Throat redness in upper oropharynx, Tonsils enlarged and red some exudates". He also recorded: "Ht D/R no murmur, s1, s2 normal, Lungs R=L AE, nil added, Abd soft, NAD". Patient A was noted to have been advised: "ABS, Panadol/neurofen, Gargal (sic) the throat with warm solt (sic) water". Patient A was prescribed Keflex 500mg. The notes further record "The patient has been advised to return to their (sic) regular GP within 1-3 Days (risk and prognosis explained)". 11. Patient A asserts that: 1. prior to the practitioner's arrival she was feeling alternatively hot and cold. She was wearing a Tee shirt and shorts, and when feeling cold wrapped herself in a blanket; 2. after entering into the lounge/kitchen area, the practitioner sat in close proximity to her on a couch in the lounge room, where she had placed a blanket over her bare legs, and massaged her right thigh with his left hand. Mr and Mrs A remained in the lounge room with their backs to the practitioner watching television. (The practitioner denies that he sat next to Patient A at any time during or after the consultation); 3. the practitioner took a history, took her temperature and examined her throat using a tongue depressor whilst seated next to her (the practitioner agrees with Patient A that he took her temperature and checked her throat, but he asserts he remained standing during the whole time he took a history, and carried out this part of his clinical examination); 4. the practitioner said he wished to examine her chest, motioned to her to stand up, turned her around by the shoulders so that she was facing Mr and Mrs A who had their backs to the practitioner. He place his left hand on her back, and then placed his thumb and index finger of his right hand on a stethoscope, inserted the stethoscope under her Tee shirt and nursing bra, which was loose, and for about three seconds massaged her right breast with three fingers. He repeated the action on her left breast also massaging under her nursing bra. He did not touch her nipple. Thereafter the practitioner took his hand out from under her Tee shirt, turned her around, so that they both had their backs to Mr and Mrs A, and examined her posterior chest with the stethoscope whilst telling her to breathe deeply. At the conclusion of this part of the examination the practitioner again turned her so that she was facing him again. She was shocked by the practitioner's action but did not make any comment. (The practitioner disputes he asked Patient A to stand. He asserts that he first listened to Patient A's posterior chest with his stethoscope over her Tee shirt whilst she remained seated, then examined her anterior chest, again over her Tee shirt by placing the stethoscope on her left side to listen for heart sounds and then lung sounds); 5. the practitioner then said to Patient A he wished to examine her abdomen, and whilst she stood, and had eye contact with him, he palpated her abdomen on the left side over her Tee Shirt asking "does this hurt, does this hurt?". Patient A says during this examination the practitioner had his palm and fingers in an upright position. She described this part of the examination as "normal". Then, without warning, the practitioner, whilst maintaining eye contact, suddenly "grabbed" her in the vaginal area and she felt his fingers, but not his palm, through her shorts. The action was "a grabbing motion and the practitioner increased the pushing pressure with his fingers in two quick shaking motions and with each of the two motions said twice 'is it hurting?' while, at the same time, he was looking into my eyes". She estimated the practitioner's hand was in contact with her vaginal area for about three seconds. (The practitioner, whilst admitting he did not properly explain why he needed to conduct an abdominal examination or obtaining her prior informed consent, disputes the patient's account of his abdominal examination. He emphatically disputed he grabbed the patient's vaginal area. The practitioner does not dispute palpating Patient A's abdomen whilst she was standing, but he denies anything sexually improper about the examination); 6. the practitioner then told her to sit down, again sat down close to her on the couch with the clipboard on his knee, and asked for her mobile telephone number which he gave him. She was in shock and again "put my blanket on". The practitioner again massaged her right thigh under the blanket. She says he then asked her to get her Medicare card and she went and retrieved it from the bedroom. 7. after she retrieved the Medicare card, the practitioner motioned her to sit down, which she did, because she wanted the consultation to finish quickly and did not want her husband or Mr A to know something was wrong because she feared "that things would become violent"; 8. the practitioner again sat close to her and while he wrote out a prescription, massaged her bare leg under the blanket. After the practitioner swiped the Medicare card, she got up and walked quickly to the kitchen. (The practitioner disputes he sat on the couch next to Patient A. He also denies that he had a "swipe" machine used to record her Medicare number and says he simply made a note of this number. He denies any massaging of Patient A's thigh area). 9. she did not complain about the doctor's behaviour during the consultation because she was concerned about her husband and father in law's likely reaction (which she described as "there would be blood on the floor") but was very upset and could not sleep that night. Next morning she was still distressed, and vomited. She then told her father in law in general terms what had occurred during the consultation. Mr A told Patient A's husband about her report, and Patient A's husband called the Police. 10. A police officer, Sergeant Michelle Pearce, attended Patient A's house and interviewed her for approximately one hour and took a detailed statement from her but she did not read the statement before signing it although she initialled each page of the police officer's notebook as the interview progressed and notes were taken. 1. On 23 December 2013 Patient A, in the company of her husband, consulted her regular general practitioner, Dr Tarek Gergis (Dr Gergis). Dr Gergis referred Patient A to Ryde Hospital (Mental Health Unit) for assessment and management. Patient A subsequently had a number of consultations with the mental health service including attendance on a psychiatrist. She was prescribed anti-depressants. 2. Dr Gergis reported Patient A's assertions about the practitioner's conduct to AHPRA on 24 December 2013. He also contacted the after-hours service and reported the complaint, and his concern about the practitioner working over the Christmas period. 3. The practitioner asserts the day following the consultation (22 December 2013) he received a telephone call from the after-hours service manager informing him a complaint had been received from Patient A, and advising him to write down all he could recollect about the conversation. The practitioner then made handwritten notes in the Sinhalese language which he retained, at least up to the s150 proceedings. 4. On 27 December 2013 Patient A was interviewed by Constable Bronwyn Russell at Mr and Mrs A's home and a statement was prepared. The statement notes that Patient A signed a copy of Constable Russell's notebook. 5. On 3 January 2013 Mrs A attended at Hornsby Police Station and signed a statement recording her observations of the consultation. She asserts when the practitioner was checking Patient A's throat he was sitting very close to her. She also asserts that a short time later she got up, went to the kitchen sink, turned around, and observed the practitioner and Patient A. She asserts she saw "that he was touching her with his right hand on the lower part of her stomach around the pelvis". Mrs A notes that Patient A was wearing shorts at the time, and that the practitioner was standing very close to her. She asserts as the practitioner was touching Patient A he was saying "Does this hurt?". She also asserts "He said this numerous times as he was feeling different positions around her pelvis". 6. In her statement, Mrs A described the practitioner as having a moustache, and that he came from Bangladesh. In her oral evidence she explained that she had told the police officer that she was not sure about Bangladesh, rather that the practitioner appeared to have an Asian background. Accordingly, the word Bangladesh was recorded in inverted commas in her statement. 7. Mr A was also interviewed at Hornsby Police Station on 3 January 2013 and provided a signed statement of his interview. He records that, on being shown into the lounge room, the practitioner sat on the couch next to Patient A and that he sat in a leather reclining chair with his back to the practitioner. He records that whilst sitting in his chair he turned slightly and could see Patient A and the practitioner. He asserts "I saw that his hand up under the front of her t-shirt. I actually saw his hand go up under the t-shirt and stop at her breast area". Mr A says this made him uncomfortable. He also records Patient A leaving the room to get her Medicare card and having a short conversation with the practitioner. 8. By undated letter, the Health Care Complaints Commission wrote to the practitioner and said it had received a complaint from Patient A and sought his response. A copy of the complaint was enclosed with the letter. 9. On 4 February 2014 the practitioner attended an interview at Hornsby Police Station with Detective Sergeant Peter Feuerstein in the company of his solicitor. The practitioner was cautioned, and advised of his right not to answer questions. He declined to be interviewed and provided a statement dated 4 February 2014 to the police. On that day the practitioner was charged with one count of aggravated indecent assault. 10. By letter dated 6 February 2014 the practitioner wrote to the HCCC enclosing a written response dated 4 February 2014. We infer this is the same statement he provided to the Police. In his letter the practitioner asserted: 1. that he stood throughout the time he took the patient's history and examined her; 2. asked "the usual" questions about a cough the responses to which were unremarkable other than she had a "moist" cough; 3. took the patient's temperature whilst she was seated, and also conducted a throat examination; 4. he told the practitioner he would like to listen to her chest, and examined her posterior chest whilst Patient A remained seated; 5. he then decided to do an abdominal examination to detect any obvious enlargement of her spleen or liver "which could be associated with fever and a sore throat in some viral infections". He further asserts "I conveyed my intention to the patient by telling her that I would conduct an abdominal examination to make sure that I am not missing out any other relevant findings". After requesting the patient to stand up he supported her posterior with his left hand against her mid-trunk as he palpated her abdomen with his right hand while asking was she experiencing any pain or discomfort. 1. On 5 March 2014 Dr Clarence George Harvey Pratt (Dr Pratt), provided at the request of the Police, an expert statement. He expressed his expert opinion on statements of Patient A and the practitioner. He noted: …it is commonly considered good practice examine for signs of glandular fever in any patient displaying tonsillitis with pus on the tonsils. This is usually done by examining the abdomen, as well as both groins, first asking permission of the patient to do so. 1. Dr Pratt opined that it was possible Patient A misunderstood the practitioner's actions in examining her heart as an indecent assault. He concluded the practitioner's abdominal examination was of a very cursory nature, and hypothesised that, after examining the patient's abdomen, the practitioner had gone on to examine her groins for enlarged lymph glands suggestive of glandular fever. (We note that the practitioner denied he had examined the patient's lymph glands in the groin). 2. Dr Pratt opined there was no reason for the practitioner massaged the patient's thigh. He concluded his report noting: In my opinion, as an expert general medical practitioner, it is possible that this degree of unwellness may have subtly altered the complainant's perception and interpretation of these events. 1. On 24 March 2014 the police withdrew the indecent assault charge. 2. Proceedings under s 150 of the National Law were convened on 25 March 2014. At the conclusion of the proceedings the delegates found a chaperone condition should be placed on the practitioner's registration. The delegates of the Medical Council published their reasons for decision on 21 May 2014. Issues in dispute 1. As will be seen from the information set out in the preceding paragraphs there is no, or no significant dispute, about a number of factual matters including the date and time of consultation and the persons present during the consultation. In particular, save for the issue of whether or not the practitioner was sitting or standing when he took a history from Patient A, there is agreement he took a history, took the patient's temperature using an aural thermometer, and examined her throat. Nor is it in dispute that he prescribed Keflex and that the whole consultation was of approximately ten minutes duration. 2. At the commencement of the hearing, the presiding judge delivered oral (ex tempore) reasons in respect of an application made on behalf of the practitioner to exclude entirely the judgment of the Health Practitioner's Tribunal, Queensland on the basis that its admission would be unfairly prejudicial to the practitioner. We determined to admit only limited paragraphs of the judgment for the reasons then expressed. 3. On the application of Mr Strickland on behalf of the practitioner we granted a Certificate under s 128 of the Evidence Act 1995 (NSW) in respect of the whole of the practitioner's evidence. 4. We identified the following matters to be in dispute: 1. the asserted touching and massaging of Patient A's thigh at the commencement and conclusion of the examination; 2. the stethoscope examination; 3. the abdominal examination; 4. whether all or any of the aspects of the examination constituted inappropriate behaviour of a sexual nature; 5. whether one or more of the doctor's actions constitutes unsatisfactory professional conduct (noting his concessions) and whether those actions, individually or collectively, are so serious as to warrant suspension or cancellation of his registration. The relevant law 1. We now set out the relevant provisions of the National Law and the principles to be applied in determining whether the particulars asserted in Complaints 1 and 2 are established. 2. The term unsatisfactory professional conduct is defined in s 138B of the National Law. In this case the relevant provisions are s 138B (1) (a) and (l). Those provisions are as follows: (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following-- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … … (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Professional misconduct is defined in s 139E as follows: For the purposes of this Law, "professional misconduct" of a registered health practitioner means-- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. Underpinning the National Law as applied in NSW, and guiding and informing the Tribunal's decision is s 3A. it is in the following terms: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. It is relevant at this point the Tribunal records that protective orders made at the end of a hearing are not intended to punish the practitioner, but to protect the public (see Clyne v NSW Bar Association [1960] HCA 40; 104 CLR 186). The onus or burden of proof 1. The onus or burden of proof is that of the HCCC. It is well established, due to the protective nature of the jurisdiction and the seriousness of the complaints both for the practitioner and the public, that the standard of proof in respect of the allegation in the complaint is on the balance of probabilities, but to the level of satisfaction described by the High Court in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336. 2. Given the issues to be determined in this matter, it is appropriate we set out the oft quoted passage of Dixon CJ in Briginshaw. His Honour said: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.[our emphasis] 1. The standard of proof is also discussed in the decision of the plurality in the High Court in Neat v Karajan Holdings Pty Ltd [1992] HCA 66. The general principles to be applied in civil litigation is set out with reference to Briginshaw. 2. Later, the plurality explained: When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case 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. When an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at worst misleading. If such generalisations were to affect the proof required of the party bearing the onus of proving the issue, the issue would be determined not on the balance of probabilities but by an unbalanced standard. The most that can validly be said in such a case 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. 1. Also relevant to the issue of standard of proof is the discussion of McClellan CJ in Equity in Gianoutsos v Glykis [2006] NSWCCA 137. The practitioner's concession in the Reply 1. Immediately prior to the commencement of oral submissions by counsel at the conclusion of the evidence, Mr Strickland was instructed to make a number of admissions on behalf of the practitioner. At the request of the presiding judge those admissions were formalised in a Reply filed at the Tribunal's registry later that day. 2. The practitioner denies Particular 1 of Complaint 1 (We will refer to this as "the first massaging complaint"). 3. In respect of Particular 2 of Complaint 1 the practitioner admits he examined Patient A's chest with the stethoscope in his right hand using three fingers, but denies this occurred whilst Patient A was standing up. He admits this examination was done without proper explanation, but denies it was done without clinical reason. He denies the balance of the particulars which deal with asserted massaging of Patient's A's right breast or that the conduct was inappropriate behaviour of a sexual nature. 4. Practitioner A makes a similar response to the allegations in relation to his stethoscope examination of the left breast. (We will refer to Particulars 2 and 3 as "the stethoscope examination"). 5. In answering Particular 4, which deals with the abdominal examination of Patient A, the practitioner admits the circumstances of his examination of Patient A (namely that she was standing opposite him and that he examined her lower abdomen). He also admits the lower abdominal examination was conducted without appropriate prior explanation. The practitioner does not admit the lower abdominal examination was conducted without proper clinical reason. (We will refer to this particular as "abdominal examination"). 6. Particulars 5, 6 and 7 are denied by the practitioner. Particular 5 refer to the asserted grabbing and pressure applied to Patient A's vaginal area. (We will refer to this as the "inappropriate touching complaint"). Particular 6 relates to the second alleged incident of the massaging of Patient A's thigh and Particular 7 relates to the third alleged incident of massaging of Patient A's thigh. We will refer to these two particulars and the "second and third massaging complaints". The expert reports and the concurrent expert evidence 1. We heard concurrent evidence from the two experts retained by the HCCC (Dr Norman Walsh and Dr Linda Mann) as well as Dr Pratt. As noted above, Dr Pratt was originally retained by NSW Police to provide an expert opinion. 2. Dr Walsh is a fellow of the Royal Australian College of General Practitioners and his curriculum vitae reveals he has extensive experience of many years' duration as a general practitioner. 3. Dr Mann is also a highly qualified practitioner and a member and a Fellow of the Royal Australian College of General Practitioners. She has held many significant appointments on consultative and advisory committees and engaging in educative roles, including teaching Registrars. 4. The expert certificate completed by Dr Pratt discloses he has 31 years' experience as a general practitioner. He too is a Fellow of the Royal Australian College of General Practitioners. 5. We are satisfied that each of the experts has the appropriate expertise to provide evidence in this matter in accordance with the Tribunal's Procedural Direction No 3. 6. At the conclusion of their concurrent evidence, Dr Mann and Dr Walsh essentially accepted the correctness of the other's report and oral evidence. Dr Pratt agreed with the other experts on some points, but disagreed on some significant matters which we will highlight shortly when discussing each of the complaints. 7. For reasons elucidated below, we accept and prefer the evidence of Dr Mann and Dr Walsh where it differed from the evidence of Dr Pratt. Discussion and findings Cultural issues 1. Before discussing the evidence in detail, it is important that we recognise matters which may be broadly described as "cultural issues" that featured in this case. We have given careful consideration to these matters. 2. Patient A is an intelligent, articulate woman, tertiary educated with an excellent grasp of English, a language she studied at school before migrating to Australia. Prior to the birth of her children she engaged in employment as a dental hygienist having obtained her degree in Dental Hygiene from Tehran University. She gave her evidence in a rational manner, albeit understandably given her perceptions, showing some distress at recounting events. She presented as modest women. She explained her reticence to complain about the practitioner's examination because of what she perceived would be her husband and Mr A's reaction if they had been apprised of her perception and experience of the examination by the practitioner. She described a likely violent reaction or "blood on the floor". 3. We did not have the benefit of observing Patent A's husband as his statement was unchallenged. 4. Mr A, also an intelligent man, who is a property developer, did use colourful language and expressions whilst giving his evidence. His reaction when Patient A related events to him the following day and his demeanour in the witness box supports Patient A's asserted reason for lack of complaint at the time of examination based on her husband and father in law's Armenian backgrounds and their likely reaction if they heard Patient A had been inappropriately examined. 5. Further, we accept that Patient A, who has had two relatively recent pregnancies was cogently able to distinguish between examinations conducted by her obstetrician as being clinically appropriate and what she perceived as improper examination that had a sexual connotation. 6. We also had no hesitation in accepting the practitioner's evidence that, when practising in what he described as "a third world country" doctors do not explain and seek consent from a patient before carrying out many examinations. We also accept his evidence that when he commenced practice in Dysart he was struggling with English, had an inability to properly use the computer system employed in the hospital and practice and did not communicate well. But his difficulties at that time must be regarded by us in an historical context. The events now under consideration took place almost a decade later, and after the practitioner had continuously practised until 2012 in a hospital environment with access to a supervisor and peers, and had the benefit of undertaking courses, particularly those required to satisfy the conditions placed on his registration. 7. While we do not underestimate the cultural and language hurdles the practitioner has had to face, it was concerning to us that his admitted conduct continued to highlight a lack proper of explanation to a patient prior to examination, and putting his case at its highest, at best, inept or clumsy examination of Patient A. The reliability or otherwise of Patient A, and Mr and Mrs A's recollection and that of the practitioner 1. Before commencing our discussion of our assessment of Patient A, Mr and Mrs A, and the practitioner's evidence we think it appropriate to do so having regard to the guidelines published by the Judicial Commission of NSW, and by reference to some of the authorities on credibility. Guidelines on memory and the law – Judicial Commission of NSW 1. This publication of the British Psychological Society published in June 2008 was provided to us by Mr Strickland without objection by Mr Hunt. The report notes a number of key points and includes the following: 1. Memories are records of peoples experience of events and are not a record of the events themselves. 2. … 3. Remembering is a constructive process. Memories are mental constructions that bring together different types of knowledge in an act of remembering. As a consequence, memory is prone to error and is easily influenced by the recall environment, including police interviews and cross-examination in court. 4. Memories for experienced events are always incomplete. Memories are time-compressed fragmentary records of experience. Any account of a memory will feature forgotten details and gaps, and this must not be taken as any sort of indicator of accuracy. Accounts of memories that do not feature forgetting and gaps are highly unusual. 5. Memories typically contain only a few specific highly specific details. Detailed recollection of the specific time and date of experiences is normally poor, as is highly specific information such as the precise recall of spoken conversations. As a general rule, a high degree of very specific details in a long-term memory is unusual. 6. Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. In general, the only way to establish the truth of a memory is with independent corroborating evidence. 7. The content of memories arises from an individual's comprehension of an experience, both conscious and non-conscious. This content can be further modified and changed by subsequent recall. 8. People can remember events that they have not in reality experienced. This does not necessarily entail deliberate deception. … 9. … 10. … 1. We have also paid close regard to the material in Chapter 6 of the report which deals in detail with what may be described as pitfalls from repeated interviewing resulting in inconsistency, or which may lead to increased witness confidence. We have also had regard to the report writers' cautions in 6 (ii) about plausibility being " increased by including incidental or mundane detail, descriptions of peoples' emotional reactions and reports of what people said at the time although these details may not, in fact be correct". Authorities on credit 1. The authorities on this topic are numerous. We found the recent decision of Sackar J in Campbell v Campbell [2015] NSWSC 784 provides a useful compendium of the law on this topic. We can do no better than to reproduce his Honour's exposition of the law which he reproduced under the heading "Credit": In Watson v Foxman (1995) 49 NSWLR 315 and 319, McLelland CJ in Eq made the following remarks: ...human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. I made the following observations in Craig v Silverbrook [2013] NSWSC 1687 at [140]- [142]: 140 Whilst a trial judge is entitled to make observations relating to the demeanour of certain witnesses, it is a notoriously crude and inaccurate methodology. Its defects have been exposed on numerous occasions. 141 In that regard, I am of course mindful of the comments of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [30]-[31]) when they remarked (citations omitted): [30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly form the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants Marine Insurance Co (The "Palitana"): "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility... 142 In the recent decision of McGraddie v McGraddie and another [2013] UKSC 58; [2013] 1 WLR 2477, the UK Supreme Court emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, and the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. Those observations are particularly relevant to the present case. Similar observations have been made in Australian authorities (Fox v Percy at [23]; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [41] per McHugh J and see generally comments in Ritchie's Uniform Civil Procedure NSW at SCA s 75A.20). In Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that "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." This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt [2014] NSWCA 47; (2014) 86 NSWLR 226 at [56]. Hallen J recently set out the relevant principles in Evans and Braddock [2015] NSWSC 249 at [70]- [77]. After referring to Watson v Foxman, his Honour said: 71 In that case, his Honour was talking of a cause of action founded on s 52 of the Trade Practices Act 1974 (Cth) or s 42 of the Fair Trading Act 1987 (NSW): see the discussion by McDougall J in Harbour Port Consulting v NSW Maritime [2011] NSWSC 813, at [10] - [18]. However, as McLelland CJ in Eq also pointed out, the views apply to all types of litigation. 72 I also remember what was said by Emmett J (as his Honour then was) in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; (2011) 297 ALR 56, 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] HCA 34; (1938) 60 CLR 336 at 361-2)." 73 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, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7] . 74 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, per Jagot J, 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]. 75 In this regard, I have also found useful what Lord Pearce wrote, in his dissenting speech in Onassis v Vergottis [1968] 2 Lloyd's Rep 403, at 431: "Credibility involves wider problems than mere 'demeanour' which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason 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." The asserted touching and massaging of Patient A's thigh at the commencement and conclusion of the examination ("the first massaging complaint") 1. Particular 1 of the complaint is an assertion that the practitioner, while seated on the couch next to Patient A, without proper reason or clinical reason or appropriate prior explanation, placed his left hand on Patient A's bare thigh and massaged her leg from midway on her right thigh towards her right knee and back. It is asserted this was of inappropriate behaviour of a sexual nature. In a Reply, filed on 19 October 2015, (that is after the conclusion of the evidence) the practitioner denied this particular. He had earlier denied the particular in his statements. 2. The first point of dispute between Patient A, and Mr and Mrs A on the one hand, and the practitioner on the other, is whether or not the practitioner sat on the lounge next to Patient A at the beginning of the consultation. 3. In her oral evidence Patient A confirmed that the practitioner sat on the couch next to her, and that she had observed he wore a wedding ring when we opened his bag. She explained she felt uncomfortable when the practitioner first looked at her and her when he sat down she felt uncomfortable when he sat close to her. 4. Sergeant Pearce in her extended interview with Patient A the morning following the consultation did not record in her notebook Patient A telling her that the practitioner sat next to her, or that prior to taking her temperature or examining her throat that he sat next to her, or that he massaged her leg. However, in the COPS report of the interview, Sergeant Pearce recorded that at the commencement of the consultation the practitioner sat next to Patient A, that after the doctor had taken Patient A temperature, but not the throat examination, and that after taking her temperature the practitioner asked her to stand up. In [6] of the Police Statement that Patient A made on 27 December 2015, five days after the consultation, she reported at the commencement of the consultation "He sat right next to me and I immediately felt quite uncomfortable". But she makes no report of her thigh being massaged at this point in the consultation. 5. Mrs A made a statement when she was independently interviewed by the police not long after the consultation. She described at [9] that when the practitioner was examining Patient A's throat he was sitting very close to her. While we are satisfied aspects of Mrs A's evidence were unreliable, we did not find her to be anything other than an honest witness who did her best to recollect the events of 21 December witnessed by her. 6. Mr A, who was interviewed separately by the police on the same day as his wife described in [4] the practitioner on arrival going and sitting next to Patient A. Similarly to Mrs A, we found a degree of exaggeration or "colour" in Mr A's oral evidence, but we also found him to be a witness of truth. 7. Significantly, the following exchange occurred between Mr Hunt and the practitioner during his cross-examination: Q. Why did you remain standing when you first started to talk to her in the part of the consultation that wasn't to do with physical examination but was just exchange of information? A. WITNESS: Yes, when I came there it is too late, so I want to quickly take the history and I sat down and just you know, again, another taking time thing, so I avoided everything, I just straight away okay, I ask, "How can I assist you to the problem?" Q. I'm not suggesting that it would be close to somebody, but wouldn't it be your more normal practice just to sit down when you were taking the history and talk about what the presenting problems were? A. WITNESS: Yes, normal practice in the hospital. I haven't done, I mean, GP office works except at Dysart, but in hospital practice, yes, we do sit down and take the history, okay. Q. But when you're doing your, you know, sessional relief home visit work for the service that you're employed by, do you say that you always stand up while you're taking the history? A. WITNESS: No. Q. Are you saying that you stood up to distance yourself from the version that [Patient A] gives about you sitting too close to her? A. WITNESS: I didn't sit really. Q. Yes, I understand that's your evidence and I am inquiring of you whether you are firm about always standing up at the beginning because you want to make sure there's a factual distinction between her account and your account? A. WITNESS: What do you mean, sorry, I didn't Q. What I am suggesting to you is you are making up the fact that you remain standing to avoid the possibility that in sitting next to her, you sat to her too close, as she says? A. WITNESS: No, there are two things. One thing is, there was actually if you examine the patient, you have to sit front of the patient. Sitting side, very difficult to examine, very difficult to listen to the chest or checking throat, or it is very unusual, you know, sitting like this but front of the patient, that is the easy way to approach, but there was no chair or anything to sit there. I didn't want to disturb old people, mother in law, father in law or sick person, so I thought, no, I won't sit, and I wanted to go soon also, so for those two reasons I was keeping standing and did the take the history and examination.[our emphasis]. 1. Sergeant Michelle Pearce interviewed Patient A at Mr and Mrs A's home at about midday the day following the consultation. In her written statement she described having a lengthy conversation with Patient A, who she noted exhibited cold or flu like symptoms and she appeared to have been crying. At [7] of her statement Sergeant Pearce, having recorded Patient A's complaint that the practitioner had "touched her on the vagina" then noted "She stated that he sat next to her unusually close, making her feel uncomfortable. The doctor had also rubbed and squeezed her upper right thigh, in a massaging type motion. He placed a wooden board across the victims [sic] lap, whilst writing, and to hide his actions". 2. Sergeant Pearce's notebook is attached to her statement. In her oral evidence, given by telephone, she explained that she had asked Patient A to recall events relating to the consultation in chronological order. She recorded Patient A said that after the practitioner's examination of her, she sat down and placed the blanket over her legs, that the doctor had a wooden board on his lap, that he sat unusually close to Patient A and he placed his left hand on Patient A's thigh massaging the victim's right leg. Sergeant Pearce records a second episode of touching after Patient A went and got her Medicare card. 3. In the statement made to the police on 27 January 2014, again only days after the consultation, at [6] Patient A reports feeling uncomfortable when the practitioner sat down next to her at the commencement of the consultation. She makes no mention of any massaging of her thigh at this point although she refers to the action in her July 2014 statement. 4. We are satisfied that the practitioner did sit next close to Patient A while he took her temperature and examined her throat. We accept that this made Patient A feel uncomfortable. We also accept Patient A's evidence that at this point in the examination she observed the practitioner wore a gold wedding ring. We note that in his statement dated 5 August 2015 the practitioner denied he was wearing a wedding ring or any ring. However, when cross-examined on this topic the practitioner conceded he had a wedding ring, but said he usually did not wear it to work, but only wore it on social occasions. 5. In reaching our conclusion that the practitioner sat next to Patient A, we accept and prefer her evidence, corroborated by Mr and Mrs A, to that of the practitioner. Patient A's version.is consistent with her report to Sergeant Pearce recorded in the COPS statement, and is recorded in her 27 January 2014 police statement made very shortly after the consultation. 6. We found the practitioner's answers given in cross-examination to be inconsistent. His first answer highlighted by us above appears to be the truthful situation. We found it unconvincing when the practitioner reported that he had made notes as soon as contacted by the after-hours service manager in the Sinhalese language of his recollection of the consultation which he retained up to the s 150 proceedings, but then said he could not locate. It is inherently unbelievable that he would have not been careful to maintain this important, almost contemporaneous record, against a background of his prior disciplinary proceedings and given the outcome of the s 150 proceedings when chaperone conditions were placed on his registration. 7. We found the practitioner, who was aware of the nature of the complaints against him when he prepared his 4 February 2014 statement, sought to avoid or deny aspects of the consultation that could support Patient A's version of events. We will return to this aspect of our findings when dealing with the stethoscope complaint. 8. Bearing in mind the serious nature of the complaints, and the standard of proof in this matter, we are not satisfied that the first massaging complaint is established. In reaching this conclusion we have found the discussion of the topic of credit, and the authorities referred to by Sackar J in Campbell v Campbell to be relevant and of assistance. 9. Patient A no doubt felt uncomfortable when the practitioner inappropriately, sat very close to her on the couch, but she did not make any report of massaging at this stage of the consultation to Sergeant Pearce or in her 27 January 2014 statement. While, as we have noted, we found Patient A to be an impressive witness who was prepared to make appropriate concessions, we find her evidence on this aspect of the complaint to be unreliable. It may be the product of repeated interviews or recollections. We are not satisfied that Particular 1 of Complaint 1 is established. The stethoscope examination 1. This complaint requires consideration of both the lay and expert evidence. 2. The practitioner steadfastly maintained that he examined the patient whilst she was seated, that he conducted the chest examination over her Tee shirt, that he first conducted a posterior examination, and then an anterior examination including listening for heart sounds. He maintains his actions did not involve touching the patient's right breast or any action of massaging either breast. 3. The delegates at the s 150 proceedings, who had the benefit of reading the practitioner's statement of 4 February 2014 and questioning him about the examination, recorded at page 13 of their reasons: However Dr Priyammana stated in his written statement that his listened to the patient's heart and lungs without moving her clothes, placing the stethoscope 'on her posterior chest, moving the stethoscope into the upper, middle and lower fields of her lungs on either side' and on 'the upper part of her anterior chest'. He confirmed during his oral evidence at these proceedings that he listened through her t-shirt on her back and on her front 'just above the t-shirt'. 1. At the s 150 hearing (transcript p 22) the practitioner referred to Patient A wearing a Tee shirt that was "that piece open, just there upper chest open and heart, of course, closer to the breast but the breast (indistinct)". He then answered "no" when asked whether the anterior examination occurred "not through the clothing". The practitioner denied, as he did before us, inserting his right hand under Patient A's Tee shirt. 2. Patient A's evidence about this part of the examination is unequivocal. From her first interview she reported the practitioner inserting the stethoscope under her Tee shirt and nursing bra with the practitioner first examining her right breast. Her evidence is corroborated, in part, by Mr A who said he saw the practitioner put his hand under Patient A's Tee shirt, at which time, being shy, and wishing to afford his daughter in law privacy, he turned away. 3. In his report prepared for the Police Dr Pratt opined: The examination of the chest is considered routine and good medical practice in a person complaining of a cough and high fever, in order to check for pneumonia. The theoretical best practice is for the medical practitioner to ask the patient to strip all clothes down to the waist for this examination. However, in practice most medical practitioners simply place the stethoscope under the patient's shirt or blouse or dress. This latter option was the procedure followed by the Respondent. The back of the chest is commonly examined before the front of the chest. Having listened to the back of the chest, the complainant agrees that the Respondent then went on to examine the front of the chest. 1. We note that Dr Pratt's report assumes Patient A's version of events namely that the practitioner placed the stethoscope under her Tee shirt. However, he has also adopted the practitioner's version of events to the extent that he reports the posterior examination of the patient occurred prior to the anterior examination. 2. Dr Pratt in his report explained that the heart examination is conducted by placing the stethoscope over four distinct areas of the chest in order to listen to each of the heart values. He identified the areas as just to the right of the upper part of the sternum, secondly just to the left of the upper sternum, thirdly just to the left of the lower sternum and fourthly about 10 to 15cm further to the left of the chest at the level of the lower sternum. He noted that in the case of large breasted women "the breasts tend to get in the way of the examining stethoscope". Having noted the patient was breast feeding and that her breasts would have been enlarged, he went on to opine: The medical practitioner may also have to slip the head of the stethoscope underneath the patient's bra as well as under the breasts in order to reach the correct locations. 1. Dr Pratt opined that "it was entirely possible that the complainant misunderstood the Respondent's actions in examining the heart as an "indecent Assault". 2. Dr Walsh prepared a report dated 18 September 2014 in which he first assumed Patient A's version of events was correct. He referred to the AMA guidelines that indicate permission is required prior to an intimate examination and that the practitioner had not done so. We pause here to note that the practitioner has conceded his conduct in not properly explaining the proposed examination to Patient A and obtaining her consent was inappropriate. We find that concession is properly made in accordance with the AMA Patient Examination Guidelines 2012. 3. Dr Walsh opined "When performing a chest and precordial examination it is possible for the stethoscope and the two fingers controlling it to touch a patient's breast or bra. It is clinically inappropriate to palpate the breast itself or to auscultate underneath the bra when performing a straightforward examination of the chest and precordial examination in general practice". He opined that the practitioner's massaging of Patient A's breasts, which was not preceded by an appropriate explanation, was clinically unjustified. The conduct attracted his strong criticism. 4. Assuming the practitioner's version of events to be correct, Dr Walsh opined that normal chest examination would involve lifting the patient's clothing. He opined if the examination took place over Patient A's clothing this suggested an inadequate examination of the chest, but was otherwise clinically unremarkable. 5. Dr Mann in her report dated 7 August 2014 expressed the view, assuming Patient A's version of events, that the chest examination should have been with the stethoscope touching the skin at the top sides and back of chest for at least 2 breaths. She did not find the behaviour described to be outside standard clinical examination technique. In her oral evidence on this topic, Dr Mann distinguished between accidental touching as part of a normal examination and massaging of the breast. 6. The experts were in disagreement about whether an examination of the heart as well as the chest was clinically justified in the case of Patient A's presenting symptoms. Drs Mann and Walsh did not support Dr Pratt's view that both examinations should be carried out given the patient's presenting symptoms. While this evidence has some bearing on the level of clinical judgment exhibited by the practitioner, it is not in dispute that his notes the practitioner recorded he conducted a heart examination. Nor is it in dispute that Dr Pratt's view may be accommodated as a view held by a reputable minority of the profession as explained by Kirby P (as his Honour then was) in Quidwai v Brown (1984) 1 NSWLR 100. 7. In her oral evidence, Dr Mann explained the limited circumstances in which a general practitioner may conduct a heart examination noting: WITNESS MANN: Doctors examine patients in the context of that particular presentation. Whilst there are good preventive health reasons to do some things generally, for example, do a blood pressure in order to identify unrecognised hypertension, listening to heart sounds in the Australian urban context is very, very, very unlikely to produce any issue from a preventive health point of view and is not regularly taught as an obligatory part of a respiratory examination. Certainly people are taught how to listen to heart sounds if there's a reason to do so, if the person's presentation makes you concerned that there's a heart problem, in the context of a person with a fever, if the history is supportive you might think of a heart infection, for example. There's no suggestion that there was anything like that here. 1. Dr Mann went to opine why it would have been difficult to examine Patient A's heart sounds when she was wearing a nursing bra. She said: Given that the woman had a bra on, it would be difficult to examine her heart and to have done so would have been particularly odd, difficult, different, in terms of what the patient might have expected for a respiratory examination. To think that to put a stethoscope underneath the bra and move across and do all the things you have to do to do a heart examination as part of the chest examination I think is very unlikely in the mind of a patient. 1. Dr Mann later explained she would do a heart examination, after proper explanation and consent, in the case of a pregnant woman to eliminate rheumatic fever in pregnancy. Dr Mann also explained the necessity to give a full explanation and obtain consent before examining a female when the examination involved the front part of a woman's chest. (transcript 14 October 2015 p 29). 2. Dr Mann also gave evidence, with which Dr Walsh agreed, that the way Patient A described the practitioner holding the stethoscope leaving three fingers resting against her chest wall with his other hand on her back was not an uncommon method of holding the stethoscope. She explained she could not think of "any reason why you would move three fingers in any way that could be considered a massage as part of a chest examination". She also opined that, to move the stethoscope from one place to the next on the chest wall you would "then lift it away and move it to the next place and press it down in". She said "At no stage would you manipulate your fingers in any way that could be considered massage as the normal, predictable way of using a stethoscope held in that fashion". 3. The following exchange then occurred between Dr Mann and Mr Strickland: MR STRICKLAND: In a case such as this ‑ if I can turn to the facts of this case ‑ where a doctor has ‑ if I can take the ‑ where a doctor has, and if I can use the evidence of the patient ‑ accepting the evidence of the patient ‑ has put a stethoscope on her lower breast, conducting a chest examination ‑ I forget if it was you, doctor, or another doctor, who said that in such a circumstance there is a likelihood that the hand might also touch the breast area, in particular in a breastfeeding woman. Do you accept that? WITNESS MANN: Yes. MR STRICKLAND: In such a circumstance, where a doctor has failed to properly explain what he is doing or why he is doing it ‑ and/or why he is doing it ‑ following on from your previous evidence, does that increase the risk that a patient such as {Patient A] will misinterpret the touching of the hand on her breast to be for a non‑clinical purpose? WITNESS MANN: Can you just say the very first part of that? I understand you're asking me about misinterpreting a clinical act as not being for a clinical purpose, but what was the stem of your question, the beginning of it? MR STRICKLAND: You mean the part from your ‑ reminding of your previous answer? WITNESS MANN: Yes, the next bit. MR STRICKLAND: I think the first bit was assuming the patient's evidence that the doctor was examining her breast holding a stethoscope in his hand and the hand, in the course of that examination, touches her breast, is that the part you missed? WITNESS MANN: Yes, because I understood that that wasn't what she said. Am I wrong? I thought she mentioned massaged. MR STRICKLAND: You are quite right, and so my question now, to focus, is, is it likely that if there is a touching by the hand on the breast, that may be, in the circumstances of this case with the hypothesis put by Mr Hunt of fatigue, fever, et cetera, is that likely to be misinterpreted? WITNESS MANN: It all depends on what actually happened. If what really happened was a physical connection between a finger as one touch lasting a micro second, and that was called massage, that would be a misinterpretation. If the hand was placed against the breast and there was a variation of pressure of more than one finger, then that would be very interpretable as massage and that would not be a misinterpretation. MR STRICKLAND: My question, though, what happens if on the evidence of the complainant it was for three seconds? WITNESS MANN: I think that's longer than a touch. That's two breaths, according to discussion we had earlier. That's actually quite a long time. MR STRICKLAND: But if the doctor was holding the stethoscope, listening for the two breaths during that time, for a period of roughly three seconds, and at the same time the hand is touching the breast, in the circumstances of this patient, can you eliminate as a reasonable possibility that that would have been misinterpreted? WITNESS MANN: I think I'm still where I was before, which is, it depends on what actually happened and if the doctor had his hands against the skin for two breaths and didn't move his hands about, that could have been misinterpreted as a massage. If he moved his fingers about, that would have been correctly interpreted as a massage, in my view. 1. The practitioner maintained throughout his cross-examination he had not massaged Patient A's breasts, and that he had only listened to heart sounds anteriorly on the left side, and he had no reason to touch the right breast "because I didn't check the lungs from the front but only from the front –anteriorly". (transcript page 14 October 2015 p 68). 2. When asked by Mr Hunt about his decision to examine Patient A's heart sounds, the practitioner confirmed that was the way he had been taught in China. Mr Hunt then asked was there any other reason that influenced his decision on the night to listen to the patient's heart sounds apart from his usual practice. The practitioner, for the first time, explained that he had done so because "the tonsillitis and throat infection sometimes affect heart, that's condition called rheumatic heart". He also explained certain viruses can affect the heart and referred to myocarditis. But he agreed he had not noted a differential diagnosis in his notes, nor had he noted potential mononucleosis. 3. The practitioner agreed that he had mentioned mononucleosis in attempting to deal with why he had conducted the abdominal examination after he had read Dr Pratt's suppositions in his report. But he denied that he had "tailored" his evidence to accord with Dr Mann's clinical reason for a heart examination. He accepted he had not mentioned rheumatic heart conditions in his statements or at the s 150 proceedings. 4. We accept Patient A's evidence that the practitioner did conduct the anterior stethoscope examination by placing the stethoscope under her Tee shirt and nursing bra and did so without proper explanation or consent. In reaching this finding we took into account Patient A's consistent reporting of the stethoscope examination from her first report to Sergeant Pearce, and Mr A's evidence that he had seen the practitioner place one hand under her Tee shirt. 5. We also accept Patient A's explanation that the practitioner placed his hands on her shoulders to turn her around after he conducted his posterior examination. This evidence is corroborated by Mr A, albeit in exaggerated language in his June statement and oral evidence We are, however, left with some doubts about the reliability of Patient A's evidence about the posterior examination. In her early report to Sergeant Pearce she referred to the posterior examination taking place under her Tee shirt but in her July statement she explained this part of the examination was through her Tee shirt, and was a normal clinical examination. 6. We have considerable difficulties about the veracity of the practitioner's evidence. Giving his evidence the most benevolent interpretation because the history of the earlier Queensland proceedings we find he may have tailored his evidence in an endeavour to minimise any inappropriate sexual element of his anterior examination of Patient A. We find his evidence before us about the anterior examination differs from his evidence before the delegates at the s 150 proceedings, and reported by them in their reasons. 7. We found the practitioner's explanation of why he conducted the heart examination to exclude a rheumatic heart condition inherently unbelievable. There was no suggestion by him in his statements of any differential diagnosis of a rheumatic viral illness, the only reference to a viral illness being made in relation to his abdominal examination. We find he simply adopted this position after hearing the evidence of Dr Mann to give further support as why he conducted a heart examination. 8. We accept Dr Mann's opinion that if the anterior heart examination was conducted properly, it would not support findings that Particulars 2 and 3 of Complaint 1 are established. But we have also had regard to her evidence, given in answers to Mr Strickland's questioning, that if there was movement of the practitioner's fingers on Patients A's breasts for two or three seconds, that was quite a long period, and could be described as massaging. 9. There was no dispute between the experts that if we accepted, as we do, that massaging occurred, there was no clinical justification for such action. 10. As we later discuss, it is somewhat artificial to reach findings about particular aspects of the practitioner's examination of Patient A (the asserted breast massaging, grabbing and squeezing of her vaginal area, and massaging of her bare thighs) in isolation. It must be remembered that the whole consultation was of relatively short duration, and that Patient A did not immediately complain due to her shock after the breast examination which was followed in quick succession by the abdominal examination. 11. We find, accepting as we do the evidence of Patient A about the massaging of her breasts under her Tee shirt, that Particulars 2 and 3 of Complaint 1 are established. We reject the practitioner's version of the stethoscope examination. We adopt the view of all the experts that this conduct was clinically unwarranted. We are satisfied that the practitioner's conduct constituted inappropriate behaviour of a sexual nature. We will explore the consequences of this and other findings later in our conclusions. The abdominal examination 1. We commence our discussion by briefly referring to Particular 4. This particular which asserts that while Patient A was standing opposite, and facing him, the practitioner without clinical reason or appropriate prior explanation conducted an examination of Patient A's lower abdomen. 2. As noted earlier, in his Reply the practitioner conceded this examination was done without appropriate prior explanation, but does not accept it was without clinical reason. 3. We are satisfied that the brief explanation given to Patient A was inadequate. We are also satisfied that it was clinically inappropriate to conduct an examination of the patient's liver and spleen with her in a standing position. We further find as each of the experts did, that if the examination was to exclude mononucleosis that the practitioner should also have examined the patient's axilla and lymph nodes. 4. Dr Mann in her oral evidence explained that she would not conduct an abdominal examination until she had conducted an examination to see if the patient had enlarged lymph glands, and if the patient did not, there was no clinical reason to conduct an abdominal examination. 5. When pressed by Mr Strickland, Dr Mann explained that she thought such an examination indicated "borderline competence" which she confirmed meant "on the border of barely competent and incompetent". We accept her opinion. 6. Dr Walsh said he would not be significantly critical of a doctor who examined a patient's abdomen who presented with signs and symptoms of mononucleosis, noting however that a patient of Patient A's age the chance of her illness being mononucleosis "would be less than one in a thousand". 7. Adopting the expert evidence, we find that there was some clinical justification for the practitioner to conduct a proper abdominal examination of Patient A. Accordingly we find Particular 4 is only established in part. 8. We commence our discussion of the abdominal examination of Patient A by noting that there was broad agreement between the experts that it is not clinically sound to examine a patient for liver or spleen enlargement with the patient standing as those organs "drop down" with gravity making examination unreliable. There was some questioning of the practitioner about why he adopted this method of examination at the s 150 hearing particularly when there was a couch available in the open plan room. At that hearing he asserted he could not adequately access the couch because of a coffee table. Before us he explained that he had conducted the examination standing to save time, and asserted there was no proper place to conduct the examination. He said the couch was too soft, and he did not want to disturb Patient A's children by using the bedroom. In his statement the practitioner says it did not occur to him to ask the patient if he could use a bedroom to examine her. The practitioner sought to maintain the position that, at the time of examination, he thought there was some value in the abdominal examination, although before us he conceded it was clinically inappropriate to do so with the patient standing. 9. In his oral evidence the practitioner said he had asked Patient A if she had "any painful lump or bump in anywhere, axilla, groin or anywhere, she denies, then I didn't want to touch". (transcript 14 October 2015 p 59). This evidence is consistent with his evidence at the s 150 proceedings but does not appear in either of his statements. When questioned by Mr Hunt about the use of the words "axilla and groin" the practitioner confirmed he had used those words. The practitioner asserted he had recorded this part of his conversation with Patient A in his handwritten notes in Sinhalese, which he had read just before the s 150 proceedings. 10. In his oral evidence the practitioner did not accept Patient A's version of the first part of his abdominal examination. Patient A described the practitioner as palpating her abdomen above the umbilicus with his fingers and asking her "Does this hurt?". The practitioner said (transcript 14 October 2015 pp 72-73) that he had commenced his abdominal examination in the left lower quadrant moving to the upper left quadrant, removing his hand and repeating the action on the right side first examining the right lower quadrant moving to the upper right quadrant. He said it was possible that the palm of his hand had come into contact with the supra-pubis of the patient. 11. This evidence is consistent with the view expressed by Dr Pratt. Both Dr Mann and Dr Walsh disagreed with Dr Pratt and opined that accidental touching of the mons pubis was most unlikely (transcript 14 November 2015 p 53). 12. In his statement dated 5 August 2015 the practitioner at [23] denied he had pushed on Patient A's hip or groin area. 13. The practitioner's reason for conducting the abdominal examination was asserted to be to exclude an enlarged spleen or liver due to viral illness, and specifically for mononucleosis. However, he did not check her lymph nodes particularly in her neck. His explanation then for conducting the abdominal examination as a "shortcut" is difficult to accept. 14. At the conclusion of the practitioner's cross-examination and re-examination Dr Reid and Dr Cotterell asked the practitioner a number of questions. He confirmed that at all times during the abdominal examination his hand was positioned so that the fingers were pointing upwards, and that both he and Patient A were standing during the abdominal examination. 15. Dr Reid put the following proposition to the practitioner: DR REID Q. I would like to move on to a completely different issue, which is the examination of the abdomen. You've said on a number of occasions that you examined the abdomen with your hand in a position such that your fingers were pointing upwards; is that correct? A. WITNESS: Yes. Q. You were standing when you were doing that abdomen examination? A. WITNESS: Yes. Q. You were both standing? A. WITNESS: Yes. Q. Do you estimate that you and [Patient A] are about the same height, more or less? A. WITNESS: More or less, yeah. Q. When you were demonstrating the extent of the abdominal examination on yourself, you had difficulty turning your hand into that vertical position with the fingers up, and I accept that that was on yourself. I would suggest that it would also be very difficult in a standing position examining a person who is the same height as yourself to examine their abdomen with their hand in that position. I just don't think that the anatomy of the wrist, elbow and shoulder would allow you to do it. 1. The practitioner then demonstrated how he had conducted the examination by squatting down with the HCCC's solicitor acting as a the patient. DR REID Q. You don't need to make actual contact, but it's just to show how you used your hand, so you bent down like that? A. WITNESS: Yes, yes, I did. Q. I don't think you've mentioned that before, that you bent your knees to do the examination? A. WITNESS: Yes, of course, I bent ‑ yes, otherwise very difficult to do the examination on abdomen. Q. Exactly. A. WITNESS: Just like this, I did. I started actually from left side. ….. DR REID Q. You in fact squatted right down to do it, you weren't in a standing position when you were conducting the examination? A. WITNESS: No, no, it would have been very difficult to do a standing position. Q. That's what I thought, okay. A. WITNESS: Yes, the patient is standing, I had to bend, go down. DR COTTERELL Q. Were you looking at her face at the same time to see how she was responding to that? A. WITNESS: I can't remember that because usually lying back, examining abdomen, yes, we see patient's reactions, whether any pain is present, but when you're doing that‑ 1. Dr Reid then further questioned the practitioner about his examination of Patient A as follows: Q. You made a decision to examine the patient in that upright position rather than using the couch or a bed or some other horizontal position. A. WITNESS: No, reason was, there was no proper place at that setting. Another thing is, I really ‑ I was in a hurry to see another one or two patients. Q. Do you think that the patient would have been uncomfortable with you bending down in the position that you demonstrated, so your face is really actually at the level of her pelvis while you're examining her abdomen? A. WITNESS: Yeah, but patient was completely all right. I asked, she was okay, no ‑ I mean, at that time, no complaints, no pain, no discomfort, and she was fine at that time. Q. When I say uncomfortable, I don't mean physically uncomfortable, I mean that she would feel awkward to have you down in that position while you were examining her abdomen? A. WITNESS: No, really, I didn't see anything, any change or I'm in her‑‑ Q. But you couldn't see her face in that position, I would suggest? A. WITNESS: No, even after the examination, I mean, she was fine, she went and sat again there, then ‑ I mean, after the examination she was sitting down some time. I mean, I was explaining to her, summarising all the clinical examination and things, so while that ‑ yes. 1. We were unable to accept the practitioner's oral evidence of how he conducted the abdominal examination. In his statement dated 4 February 2013 the practitioner said: I requested her to stand up. I did not request her to shift her clothing. I continued standing to the right of the patient but had to take a more anterior approach as I had to support her posterior with my left hand against her mid-trunk as I palpated her abdomen with my right hand. 1. We note that in response to a question posed by Dr Cotterell the practitioner confirmed when he squatted, his left hand would not have been against the patient's mid trunk but rather towards her buttocks 2. Patient A's evidence is that the first part of the abdominal examination was above her umbilicus, and that the practitioner was standing and had eye contact with her whilst conducting this part of the abdominal examination. (transcript 13 October 2015 p 45) 3. Mrs A gave clear evidence that she had observed the practitioner standing side on facing Patient A when she observed them from the kitchen sink. She observed the practitioner's hand go "pretty low down" She did not indicate the practitioner was squatting during this examination. 4. We find Patient A's evidence that the practitioner grabbed or squeezed with two motions with his fingers over her shorts in the area of her vagina is credible. We accept this type of motion is not similar to or explicable as an accidental touching or brushing of Patient A's mons pubis. It was an action which caused Patient A great distress, and resulted in her report to the Police, and Dr Gergis in close proximity to the event. As we will shortly further explain, we are satisfied Particulars 5 is established. The two massaging assertions 1. Patient A gave consistent evidence that the practitioner had, after he had examined her abdomen and grabbed or squeezed her vaginal area, asked her to sit, and that she did so. 2. The practitioner asserted that Patient A's husband had come out and was in the kitchen area when he recorded the Medicare details and wrote the prescription. This evidence, if correct, makes it inherently unlikely that the practitioner would have sat close to Patient A and massaged her thigh at least whilst writing the prescription. 3. As noted earlier, Patient A's husband was not required for cross-examination. His unchallenged evidence in his statement at [6] appears inconsistent with the practitioner's evidence on this point. 4. Patient A's husband describes approximately 15 minutes after the practitioner arrived Patient A came into the bedroom where he was caring for their infant child to retrieve her Medicare Card. Thus he could not have been present when the second massaging, asserted to have occurred immediately after the abdominal examination, took place. 5. Patient A's husband goes on to note at [7] "a short time after that I walked into the kitchen and [Patient A] walked back into the bedroom". He goes on to note "The doctor was standing in the kitchen …". We accept Patient A's husband's evidence of his whereabouts during the consultation. We are satisfied he was not present when the third massaging is asserted to have occurred. 6. There is no dispute that Patient A was wearing shorts so that her bare right thigh was exposed, and that she covered her thighs with the blanket. We accept her evidence that the practitioner sat next to her whilst he recorded the Medicare details, and her mobile phone number, and when he wrote out the prescription for Keflex. 7. The practitioner gave specific details to Sergeant Pearce the day following the consultation. It is inherently unlikely she would be mistaken about such action. It is not part of the consultation like the stethoscope examination which could be capable of an innocent but mistaken interpretation. We accept her evidence in respect of these two particulars. Conclusions 1. On its face, the fact a practitioner would inappropriately touch a female patient while in the same room as two relatives of the patient appears highly improbable. In this case, there are further factors which could support a genuine, but mistaken, belief about the nature of the consultation. Those factors include the practitioner's somewhat deficient English language skills, which deficit could have led to misunderstanding or misapprehension by Patient A about the nature of the examination. Any lack of explanation could compound a genuine misunderstanding by the patient about the need for an abdominal examination, particularly when the patient presented with symptoms of an upper respiratory tract infection/tonsillitis, a condition she had suffered some four weeks earlier. We note no abdominal examination took place on that occasion. Further, as conceded by the practitioner, the explanations he did proffer were rudimentary and inadequate to explain his actions and obtain the patient's informed consent. 2. We also note that the practitioner in his oral evidence showed a complete lack of understanding of the consequences of his head being in close proximity to Patient A's pelvic area, without explanation, when he was questioned by Dr Reid and Dr Cotterell about his asserted manner in conducting the abdominal examination squatting in front of Patient A. This is suggestive that, notwithstanding he has completed courses in women's health, he has no intuitive understanding of invading a patient's personal space, and could explain his lack of awareness of Patient A's reaction to him sitting in very close proximity to her. 3. Other factors must also be weighed in the balance. These include possible clinical ineptness in use of the stethoscope for the stethoscope examination, and in carrying out the abdominal examination, particularly when conducted with the patient standing, and without checking of the patient's lymph nodes. Also of some relevance is Patient A's concession she was feverish and tired. 4. We have also taken into account the practitioner's strenuous denials of any inappropriate conduct and his concession of unsatisfactory professional conduct because of his failure to properly explain what he proposed to do, and to obtain the patient's consent to his examination as well as the clinically inappropriate abdominal examination whilst the patient was standing. We also have considered his explanation that he was tired and hungry, and concerned he had a further two patients to see after Patient A. 5. We also take into account the practitioner's evidence that, since the Health Practitioner's Tribunal experience, he has been particularly careful in conducting intimate examinations of female patients. It would be thought that following those proceedings, and the courses he was required to undertake as ordered by that Tribunal he would be exquisitely careful in all circumstances when examining any female patients, including Patient A, and providing an adequate prior explanation of his proposed action and the obtaining of consent to that action. The circumstances of Patient A's examination belie the practitioner's assertion. 6. We are also conscious that Patient A's versions of events have differed slightly in her statements, and the warnings of the unreliability of witness statements set out in expert report on witness testimony particularly details such as the practitioner's left hand shaking when examining her left breast and his breath being hot on her set out in her 3 July 2014 statement. We have paid careful regard to the authorities set out earlier in these reasons on the topic of credit, and particularly to 6(ii) of the Guidelines on Memory and the Law in respect of plausibility. 7. We have had regard to the fact that Mr and Mrs A were living in the same household as Patient A at the time of the consultation, and their respective recollection of events is likely to have been coloured by Patient A's distressed reaction to the consultation, and they are, to a degree, somewhat partisan witnesses. 8. While we accept that Patient A's later versions of events have been coloured by her distress about the examination, and the need for her to recount on the events of the evening of several occasions, overall we found her to be a believable, honest witness who made a number of appropriate concessions. We are unable to accept Mr Strickland's careful submissions that we should find her to be an unreliable witness and thus reject her evidence and generally accept and prefer the evidence of the practitioner. 9. We are fortified in our acceptance of the substantive portion of Patient A's evidence by her very near contemporaneous reporting to Sergeant Pearce, and her demeanour when seen by Dr Gergis who immediately recognised something unusual and distressed about her presentation. It is to be remembered that Dr Gergis saw Patient A regularly when she consulted him about her children's medical needs in the previous months. Dr Gergis acted in a most appropriate and responsible manner by not only fulfilling his mandatory reporting obligations to AHPRA, but also by taking the time and trouble to contact the after-hours service to report the complaint and expressing concern about the practitioner working over the Christmas period. He is to be commended for his actions in that regard. We had no hesitation in accepting Dr Gergis' evidence in its entirety. 10. We also place significant weight on the fact Patient A is an intelligent women who has had intimate examinations by her obstetrician and was not disturbed by such examinations which she, no doubt, rightly perceived as properly explained and appropriately carried out. It is highly improbable that a women of her experience and intelligence, who has two young children, would mistake an accidental touching of her mons pubis with the experience of being grabbed or squeezed in her vaginal area. 11. We contrast our assessment of the veracity of Patient A's evidence with that of the practitioner. His evidence shifted to fit all possible explanations of his conduct. He adopted Dr Pratt's rationale for the abdominal examination to be to eliminate the possibility of glandular fever (mononucleosis) and asserted he had asked Patient A about her glands being sore or swollen. He made no record of such questions and they do not appear in his 4 February 2014 statement. Further, while he eschewed using medical terminology to explain to the patient about mononucleosis or other possible viral conditions, he confirmed in cross-examination he had asked her if she had painful glands in her axilla. It is inherently unlikely that he used the word "axilla" or that Patient A would have understood a question posed in this language. We do not accept he asked this question, and accept and prefer Patient A's evidence on this topic. 12. We find he adopted the evidence of Dr Mann about possible rheumatic conditions to justify an examination of Patient A's heart. 13. As we have earlier recorded, the evidence of Patient A, corroborated by Mr A, that she was standing for the stethoscope examination which was conducted anteriorly under her Tee shirt is accepted by us as reliable. We note Mr Strickland in his submissions argued that we could find the practitioner's recollection of this aspect of the examination was unreliable. We also accept and prefer Patient A's evidence that the touching or massaging of both her breasts was not accidental. We accept the evidence of Dr Mann that Patient A's temperature was not so high as to cause her confusion about this or any part of the examination and that if movement of the practitioner's fingers occurred for two seconds that would constitute massaging. 14. Just as we have found it is unlikely a women of her intelligence and experience would mistake a grabbing or squeezing of her vagina so too we are satisfied that she was not subject to a clumsy examination of her right breast, but rather was troubled by the practitioner's action in briefly massaging each of her breasts. We accept Dr Mann's evidence, supported by the other experts, that if the practitioner did massage Patient A's breasts there was no clinical justification for his conduct which was inappropriate. 15. We are confirmed in our findings on this topic by our findings in respect of the abdominal examination. As earlier noted, it is somewhat artificial to deal with the discrete aspects of the examination of Patient A in isolation. Rather we are satisfied the particularised events were part of a whole, brief opportunistic inappropriate touching of Patient A which was of a sexual nature. 16. We find the practitioner's evidence about the abdominal examination with him squatting before Patient A so bizarre that it fortified our conclusions about the stethoscope examination, and the two massaging complaints At no point in any of the statements did the practitioner, Patient A or Mrs A record the practitioner squatting to conduct the abdominal examination. This explanation only came to light after Dr Mann and later Dr Reid raised the physical difficulty, if not impossibility, of the abdominal examination being conducted by the practitioner standing opposite to Patient A with his palm at all times upright because lack of flexibility in the wrist to do so. It was only when the practitioner was questioned by Dr Reid and Dr Cotterell that he demonstrated, in order to keep his palm and fingers in an upright position on Patient A's abdomen, he had squatted in front of her. 17. Rather, we accept Patient A's statement that there was, immediately prior to the grabbing or squeezing of her vagina, eye contact when the practitioner asked "does this hurt?". This eye contact would have been near impossible or improbable if the practitioner was, as he asserted, squatting during his abdominal examination with his head in close proximity to the patient's mons pubis. We do not find Patient A's statement inconsistent with Mrs A's observations. Rather, we adopt the opinions of Dr Walsh and Dr Mann that there was no reason for the practitioner to be examining Patient A in the lower left or right quadrant as his purported examination was to check for an enlarged spleen or liver absent examination of the lymph nodes, and that an accidental touching of the mons pubis was highly unlikely. 18. We have no hesitation in finding the practitioner's concession of unsatisfactory professional conduct is appropriately made. Further, we are satisfied that each of the matters we have found proved (the stethoscope examination; the grabbing of Patient A's vaginal area outside her shorts and applying increased pressure twice, and the second and third massaging allegations) each amount to unsatisfactory professional conduct. 19. In reaching these finding we note the unanimous expert opinion that none of the disputed aspects of the examination, if found proved by us, were clinically warranted. 20. In HCCC v Litchfield [1997] NSWCA the Court of Appeal was hearing an appeal against a decision of the Medical Tribunal involving complaints of sexually inappropriate conduct by a doctor against three female patients. Their Honours said: Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8-9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest". 1. In his written submissions Mr Hunt submitted that professional misconduct could also be established in circumstances "in which, although a sexual motive cannot be found in the practitioner, treatment that departs significantly from the standard and results in the patient considering the behaviour had sexual conations". He referred us to the decisions of HCCC v Peatling [2011] NSWCT 1 and HCCC v Rezk [2009] NSWPT 1. But those decisions must be read in the light of the minority decision of McFarlan JA in King v Health Care Complaints Commission [2011] NSWCA 353 and the actual pleading of the relevant particulars in Complaint 1. 2. In Rezk the Tribunal found the physiotherapist practitioner had unnecessarily required two patients to remove their underwear, and conducted inappropriate examinations of them. The Tribunal at [227] found it did not have to resolve the question of whether the physiotherapist's conduct had a sexual motivation finding that his conduct of the treatment of the two patients was "far outside of acceptable physiotherapy practice". 3. Similarly in Peatling while the Tribunal made findings of unsatisfactory professional conduct of a serious nature against a Chiropractor, it did not make specific findings that he had engaged in professional misconduct as then defined in the Chiropractors Act 2001. Essentially, the Tribunal found the practitioner had not provided an adequate explanation of the procedure he intended to perform, or obtained his patient's consent. Further the Tribunal found that the practitioner was inexperienced in the technique performed. In light of those findings, the Tribunal, who reprimanded the practitioner and imposed conditions on his registration, found it did not have to determine if the practitioner had a sexual motivation. 4. It is significant to note, that unlike this matter, in neither Rezk or Peatling, was a complaint of inappropriate behaviour of a sexual nature pleaded. 5. In King the majority found the particulars pleaded by the HCCC to be adequate to inform the practitioner of the case he had to meet (which included indecent assault allegations in respect of three female patients). McFarlan JA, in dissent on that issue, discussed how the Tribunal should deal with allegations of sexual assault. His Honour said: 65.The parties implicitly accepted on the appeal that guidance as to what constitutes sexual conduct in the present context can be obtained from decisions in the field of criminal law concerning indecent assault. 66.In Harkin v R (1989) 38 A Crim R 296, Lee CJ at CL (with whom Wood and Mathews JJ agreed) said the following: "It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas. Thus, if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case of a mature man of 38 and a girl of 11 years and nine months that should or should not be regarded as conduct offending against the standards of decency in our community. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification" (at 301). 67.Of course care needs to be taken in applying the examples given in that passage to the case of a medical practitioner. It is often part of a medical practitioner's role to touch a person's genitals, breasts or anus. Whilst it may be able to be assumed in other contexts that such touching almost invariably has a sexual connotation, the same cannot be assumed in the case of a medical practitioner. In that case an objective determination of whether the conduct had a sexual connotation has to be made. 68.The approach in Harkin was adopted in R v Manson (NSW Court of Criminal Appeal, 17 February 1993, unreported) and by the Victorian Court of Appeal in Sabet v R [2011] VSCA 124. It was also adopted (by reference to the decision in Manson ) by this Court in Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241; (2010) 77 NSWLR 17. In that case Campbell JA quoted the following passage from the earlier decision of R v McIntosh (NSW Court of Criminal Appeal, 26 September 1994, unreported): "To say that the test is an objective one does not mean that the alleged act of indecency must be considered divorced from its surrounding circumstances. These circumstances may show that what otherwise would be indecent was not - for example, an examination of a woman's vagina, ordinarily an indecent act when conducted by a stranger, would not be indecent if conducted by the woman's medical practitioner for medical purposes. The 'surrounding circumstances' include the intention or purpose of the alleged wrongdoer. If the medical practitioner in the example given was conducting the examination not to treat his patient but for his own sexual gratification the examination would be an indecent act (see Manson page 3)" ( Eades at [50]; see also per Basten JA at [9]). 1. In his written submissions Mr Hunt submitted that: Even if the Tribunal could not be comfortably satisfied that there was a sexual motivation for the proven actions as the commission contends, the level of departure from standards is so great and Patient A's experience of the behaviour as sexual so palpable that the Tribunal could be satisfied objectively the behaviour was of a sexual nature. 1. We conclude that, given the conclusions of McFarlan JA, in the light of the specific pleading in this matter of inappropriate behaviour of a sexual nature, we may commit appealable error if we "side-step" the issue of whether the allegations concerning touching Patient A's breasts, grabbing her vaginal area and massaging her thighs objectively had an improper sexual connotation given the specific pleading in the complaint. We find in these circumstances it would be unsafe to adopt the position advanced in either Resk or Peatling. 2. We note two important matters. First, as explained by McFarlan JA, in the context of a medical practitioner, to find a sexual connotation established, we must be satisfied, on the objective evidence, that the practitioner's actions had that connotation including the practitioner's intention. Secondly, we must also have regard to the precise language of the pleading utilised in the complaint. The wording in respect of the particulars of touching Patient A's breasts, grabbing and squeezing in her vaginal area, and massaging her thigh is that "during his examination of Patient A … engaged inappropriate behaviour of a sexual nature towards Patient A". We accept this language, which does not attribute any intention to the practitioner, may support Mr Hunt's submission that we could objectively find the behaviour was of an inappropriate sexual nature, without a finding of sexual intention or motivation by the practitioner. 3. Although the practitioner denied any sexual motive in his examination of Patient A we are unable to accept his denial. It is inconsistent with our finding that he massaging both of Patient A's breasts under her Tee shirt, and that he grabbed and squeezed her vaginal area and twice massaged her right thigh. There is no possible clinical explanation for such actions. The actions could only be for an inappropriate sexual purpose and for his sexual gratification. 4. We have in our earlier reasoning and in these conclusions set out why we have found Particulars 2, 3, 5, 6, and 7 of Complaint 1 proved. We have also found Particular 4 proved in part. Given the practitioner's concessions and our adoption of those concessions for the reasons earlier set out, we find the complaint of unsatisfactory professional conduct under s 138B (1) (a) established. 5. Given our findings that the massaging of Patient A's breasts, the grabbing and squeezing of her vaginal area over her shorts, and the massaging of her bare thighs was inappropriate behaviour of a sexual nature, we are satisfied that unsatisfactory professional conduct under s 138B (1) (l) is established. Professional misconduct 1. We have earlier in these reasons set out the definition of professional misconduct in s 139E of the National Law and it is unnecessary we repeat it. 2. We do not find the practitioner's conduct in failing to give an adequate explanation of his proposed clinical examination to Patient A, and the obtaining of her consent to that examination is, of itself, of such a serious nature that it would justify suspension or cancellation of his registration. We do not condone his conduct in this regard, but take into account that, absent our findings in respect of Particulars 2, 3, 5, 6, and 7 of Complaint 1 we would classify the conduct as unsatisfactory professional conduct that may be remediated with appropriate conditions. 3. The particulars which are found proved and which include conclusions that there was inappropriate behaviour of a sexual nature, albeit it brief, while not afflicting any physical harm on Patient A, did cause her significant psychological distress. It was a breach, no matter how brief, of the trust which a patient is entitled to repose in a medical practitioner. 4. While a finding of professional misconduct does not mean an automatic suspension or cancellation of a practitioner's registration, we find the practitioner's conduct could justify such an order and constitute professional misconduct as defined in s 139E. orders 1. The matter is listed for a "Stage 2" hearing on 18 December 2015 at 10a.m. ********** 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: 11 December 2015