Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Duggan (No. 2) [2016] NSWCATOD 30 Hearing dates: 18 and 19 February 2016 Date of orders: 17 March 2016 Decision date: 17 March 2016 Jurisdiction: Occupational Division Before: J Millbank, Senior Member S Read, Professional Member M Woollam, Professional Member C Berglund, General Member Decision: (1) The practitioner, Garth Duggan, is reprimanded in the strongest terms under s 149A(1)(a) of the National Law for his failure to adhere to the basic elements of informed patient consent; (2) Pursuant to s 149C(1)(b) of the National Law, the Tribunal declares that the practitioner's registration as an Osteopath on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order; (3) Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until 6 years from the date of this order; (4) The practitioner is prohibited, pursuant to s 149C(5)(a), from providing any "health services" as defined by s 4 of the Health Care Complaints Act 1993 (NSW) until such time as a reinstatement order is made; (5) A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure or publication of the names of patients A-C in the schedule to the complaint, their corroborating witnesses, and any other patient or student named in evidence; this order supersedes and replaces order 1 in HCCC v Duggan [2015] NSWCATOD 142; (6) Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed, or failing agreement, liberty to restore to the list to be assessed. Catchwords: Osteopathy; allegations of misconduct involving intimate touching of three female patients; whether touching clinically warranted; whether informed consent obtained; adequacy of clinical records Legislation Cited: Health Practitioner Regulation National Law 2009 (NSW) ('the National Law') s 139B(1); s 139E; s 149A(1)(a); 149C(1); s 149C(5); s 149C(7); Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act') s 64; Health Care Complaints Act 1993 (NSW) s 4 Cases Cited: Briginshaw v Briginshaw [1938] HCA 34, (1983) 60 CLR 336; Gianoutsos v Glykis [2006] NSWCCA 137, (2006) 65 NSWLR 539; HCCC v Della Bruna [2014] NSWCATOD 31; HCCC v Duggan [2015] NSWCATOD 142; HCCC v Do [2014] NSWCA 307; HCCC v Jamieson [2014] NSWCATOD 56 HCCC v Litchfield (1997) 41 NSWLR 630, [1997] NSWSC 297; HCCC v Perroux [2011] NSWDC 99 In re Sood [2006] NSWMT 1; Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347; Sabag v HCCC [2001] NSWCA 411 Texts Cited: Code of Conduct for Registered Health Practitioners, Osteopathy Board of Australia (2010); Osteopath Code of Professional Conduct, Osteopaths Registration Board of NSW (2005) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Garth Duggan (Respondent) Representation: Counsel: R Mathur (Applicant) No appearance for the Practitioner Solicitors: Health Care Complaints Commission (Applicant in person) File Number(s): 1520104 Publication restriction: A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure or publication of the names of patients A-C in the schedule to the complaint, their corroborating witnesses, and any other patient or student named in evidence. ReasoNS FOR DECISIOn Background 1. Mr Duggan was first registered as an osteopath in 2005. He trained in Victoria and was, at the time of the complaints, in practice in regional NSW. He now lives in Victoria. 2. The complaints relate to incidents involving three female patients in late 2009 and early 2010. The complaints allege clinically unwarranted touching of the pelvic and pubic regions of all three patients, and vaginal penetration of two of them, in association with extremely poor, or non-existent, history taking, consent and treatment documentation practices. Each of the women reported feeling uncomfortable and distressed about what had occurred. 3. Two of the patients were university students at the time of the incidents; one of whom was at the time undertaking practical placement at Mr Duggan's osteopathy practice under Mr Duggan's supervision. 4. The particulars are as follows: Patient A. On 26 February 2010 the practitioner: 1. Inappropriately offered to treat Patient A in circumstances in which she was regarded as a friend, was on student placement, was not actively seeking treatment, and there was limited time in between scheduled patients; 2. Failed to obtain an adequate and/or appropriate history from Patient A before commencing assessment and/or treatment; 3. Inappropriately said to Patient A words to the effect: "Do you get period pain, because you look like the type of person who would"; 4. Failed to adequately consider contraindications prior to performing a HVLA adjustment on Patient A; 5. Inappropriately prioritised and investigated the pelvic floor of Patient A without having a compelling clinical indication to do so; 6. Inappropriately purported to diagnose Patient A with a flexed coccyx without having a compelling clinical indication to do so; 7. Inappropriately suggested the intrarectal technique for treating Patient A's purported flexed coccyx; 8. Inappropriately massaged Patient A's pubic symphysis inside her underwear; 9. Inappropriately assessed and/or palpated and/or massaged Patient A's pelvic floor inside her underwear or in the alternative outside her underwear; 10. Inappropriately assessed and/or palpated and/or massaged Patient A's pelvic floor inside her underwear without wearing gloves; 11. Failed to adequately document the treatment provided to Patient A in his clinical notes; 12. Having regard to matters including the particulars 1 and 3-10 inclusive above, failed to obtain informed consent from Patient A in relation to the treatment he provided. Patient B 13. On or prior to 16 February 2010 the practitioner, failed to adequately document presenting health issues or a relevant history of Patient B in the clinical notes. On 16 February 2010 the practitioner: 14. Inappropriately spent considerable time on the pelvic floor examination and treatment of Patient B without compelling clinical indication to do so; 15. Inappropriately palpated and/or massaged Patient B's pubic symphysis, and above and beside it, whilst she lay on her back, without compelling clinical indication to do so; 16. Inappropriately palpated and/or massaged around the area of Patient B's perineum, labia and vaginal orifice and across her pelvic floor, inside her underwear, whilst using oil on his fingers and 'ungloved', using a cross fibre friction technique, whilst she lay on her back, without compelling clinical indication to do so; 17. Inappropriately palpated and/or massaged around the area of Patient B's perineum, labia and vaginal orifice and across her pelvic floor, using a cross fibre friction technique, inside her underwear whilst she lay on her front without compelling clinical indication to do so; 18. Inappropriately inserted his fingers into Patient B's vagina during the palpation and/or massage around the area of Patient B's perineum and vaginal orifice, whilst she lay on her stomach without compelling clinical indication to do so; 19. Inappropriately failed to respond to Patient B's pain score of 9/10 during the palpation and/or massage around the area of Patient B's perineum, labia and vaginal orifice and across her pelvic floor, in circumstances where he should have ceased the technique to suit the comfort of Patient B; 20. Failed to adequately document the treatment provided to Patient B in his clinical notes; 21. Having regard to matters including the particulars 14-19 inclusive above, failed to obtain informed consent from Patient B in relation to the treatment he provided. Patient C On 3 November 2009 the practitioner: 22. Failed to obtain an adequate and/or appropriate history from Patient C before commencing assessment and/or treatment; 23. Inappropriately prioritised and investigated the area of Patient C's vaginal orifice and pelvic floor region without having a compelling clinical indication to do so; 24. Inappropriately palpated and/or massaged around the area of Patient C's vaginal orifice and pelvic floor region, outside her underwear, whilst she lay on her front, without compelling clinical indication to do so; 25. Inappropriately palpated and/or massaged around the area of Patient C's vaginal orifice and pelvic floor region, inside her underwear, whilst she lay on her front, with complete disregard of the express wishes of Patient C; 26. Failed to adequately document the treatment provided to Patient C in his clinical notes; 27. Having regard to matters including the particulars 23-25 above, failed to obtain informed consent from Patient C in relation to the treatment he provided. 1. The Tribunal finds that all of these particulars are proved to the required standard and that the complaints of unsatisfactory professional conduct and professional misconduct are made out, for the reasons which follow. Procedural History 1. Mr Duggan was charged with a number of counts of indecent and sexual assault relating to these and other female patients in 2010, and was acquitted in criminal proceedings which concluded in 2012. 2. The HCCC lodged two complaints, of unprofessional conduct and professional misconduct, with the Tribunal on 9 June 2015. Mr Duggan made an application under Sch 5D cl 12 of the National Law for the Tribunal to terminate the inquiry. That application was denied: HCCC v Duggan [2015] NSWCATOD 142. 3. Mr Duggan was self-represented; and was provided the opportunity to appear for himself via telephone for procedural hearings and videoconference for the substantive hearing. In directions hearings on 15 January and 29 January 2016 Mr Duggan indicated that he would not defend the proceedings through written submissions or evidence, and elected not to appear at, or participate in, the hearing. Mr Duggan did not concede the complaints or any of the particulars. 4. The hearing thus proceeded largely on the basis of a significant volume of material drawn from the criminal proceedings, being: the three patients' police statements (following their agreement for the HCCC to use them in these proceedings); police statements from a friend of each of Patient A and B, and the partner of Patient C, whom they had each seen immediately after the relevant incident and spoken to about what occurred (the corroborating witnesses); and transcripts of the oral evidence at trial from each patient, two osteopathic expert witnesses (Ms Stone for Mr Duggan and Ms Adams for the prosecution), and the practitioner himself. The criminal process addressed both different legal questions and burden of proof, and the materials date back three or four years, such that we are aware that care must be taken not to unthinkingly transpose all aspects of such materials into these proceedings. In particular the practitioner's state of mind concerning patient consent was a critical issue in the criminal process but is not relevant in these proceedings, which address instead whether the conduct met objective professional standards. 5. The material generated for these proceedings the Tribunal had regard to was: written responses by Mr Duggan to the HCCC dated 5 August 2013 (concerning Patients A and B) and 5 September 2013 (concerning Patient C), expert peer reports by Ms Paull commissioned by the HCCC concerning Patients A and B, dated 23 August 2013, (and supplementary report dated 20 December 2013), and concerning Patient C, dated 1 December 2013, with a further supplementary report dated January 2016 addressing the views of the experts at the criminal proceeding. Ms Paull also appeared to give oral evidence and address questions from the Tribunal. Issues and Approach to the Evidence 1. The standard of proof is the civil standard as stated in Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3. However, by reason of the seriousness of the allegations and the gravity of the consequences the Tribunal must be comfortably satisfied that the matters in the complaint have been established. The Court of Criminal Appeal has cautioned against the use of "comfortably satisfied" as implying that matters must be proved according to a higher standard than that of the balance of probabilities: Gianoutsos v Glykis (2006) NSWLR 539 at 547-9, applied by the Medical Tribunal In re Suman Sood [2006] NSWMT 1 at 10. At common law there are only two standards of proof, the civil standard of proof upon a balance of probabilities, and the criminal standard of proof beyond reasonable doubt: Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [31]. The Briginshaw standard is not a third standard or proof. Rather, it is concerned with the quality or sufficiency of the evidence necessary to discharge the civil standard. 2. The particulars carefully separate different aspects of the professional conduct complained of, relating to diagnostic, assessment and treatment practices as well as to documentation and consent matters. Therefore, some of these separate particulars relate to the same factual event. Moreover, the incidents involve only one treatment consultation with Patients B and C, and two sessions on the same day with Patient A, all occurring over periods of approximately 40 minutes. For the sake of clarity and context each patient account from their original police statement is provided prior to findings concerning each of the particulars. 3. The major issues that run through all three incidents are whether what occurred was clinically justified and whether informed consent was obtained. The practitioner largely agreed with the account of the three patients as to what occurred in terms of the physical contact in each of their consultations with him. Where the practitioner differed from the patients was in his account of diagnostic and consent processes. We note below each particular where these differences arise. 4. We believe the women. On issues of disputed fact the Tribunal consistently prefers the evidence of the patients and rejects that of the practitioner. Even allowing for the fact that neither the patients nor the practitioner gave oral evidence in these proceedings, the material before the Tribunal was sufficient for clear findings of credit to be made. 5. The evidence of Patients A, B and C was credible, consistent, balanced, and was unshaken in cross-examination in the criminal trial. The police statements of Patients A and B were made within weeks of the incidents. They were supported by contemporaneous accounts given to friends immediately following the consultations, and a complaint made by Patient B to a university lecturer. Although the police statement of Patient C was made five months after the incident, it is also detailed and consistent, and is supported by a statement of her partner as to her contemporaneous account to him of what occurred and how she felt. 6. In contrast, Mr Duggan's clinical and contemporaneous notes were scant and his evidence at the criminal trial was very generalised, and at times incoherent or internally inconsistent. In addition it appears from the trial transcript that Mr Duggan failed to produce in the criminal proceedings contemporaneous notes that he claimed to have made concerning Patient A at the time of his arrest. Nor were these notes produced for these proceedings. We make a negative finding as to Mr Duggan's credibility as a result of his August and September 2013 responses to the HCCC, key elements of which are at odds with his trial evidence. In particular the practitioner's assertion of detailed conversations involving reported history and symptoms in the 2013 documents, not raised by him at any earlier point, suggests an attempt to belatedly identify symptoms to match the treatment provided rather than a genuine recollection of what occurred. This material is addressed in detail below. 7. On questions of clinical justification and professional standards the determinations rely heavily upon matters of clinical knowledge and professional judgment. We have regard to the evidence of the practitioner himself, of Ms Stone and Ms Adam at the criminal trial, Ms Paull in these proceedings, and the expertise of the professional members of the Tribunal. 8. We give little weight to the evidence of Ms Stone because it was very general in tenor, in that it was addressed to the question of whether the techniques used were osteopathic in nature, but did not address whether each technique was clinically justified in the particular circumstances of each patient's presenting complaint and symptoms. 9. Ms Adam and Ms Paull's views were largely in accord with each other, but greater weight is given to the evidence of Ms Paull. This is because her opinion more squarely addresses the issues in these proceedings, her views are more detailed, specific to the particulars, and her opinion was informed by a wider range of material, including her having the opportunity to read and review the transcripts of the patients' and the practitioner's evidence, and to address and attempt to explain or reconcile any difference of views of the other experts. Findings and Reasons Patient A 1. Patient A was a 21 year old university student, studying in a field related to osteopathy. 2. Patient A had met the practitioner socially on a few occasions prior to her undertaking a student placement under his supervision at his practice commencing 25 February 2010. Patient A had never attended the practitioner for osteopathy treatment prior to February 2010, although she had previously had a massage from another person in the practice. 3. The matters concerning Patient A occurred in two incidents that occurred on 26 February 2010. Patient A's account of the morning session, made in her police statement of 9 March 2010, was as follows: Either after the second or third consultation, Garth had some free time and he said, "Come into my room." We went into the room and he shut the door. Garth indicated for me to stand in front of him. I think he said something like, "We'll do a quick assessment on you." He sat down on a [stool] within the room and stood in front of him about half a metre away and faced the mirror. He was looking at my back. He lifted up my shirt and said, "Geez, how many layers do you have on?" (At the time I was wearing shirt and a singlet, which was tucked into my pants. Garth measured my hips by using both of his hand and placing them on the top of my hips. He then felt up my spine using his hand. He said, "Cross your arms over your chest". I did this and Garth wrapped both his arms around me and said, "Stand still". He was standing up at the time and then walked backwards and jerked my body so that my back cracked. I had no idea this was going to happen and I was shocked at the aggressive jerk. As I adjusted my shirt, Garth said, "Do you get period pain, because you look like the type of person who would?" l said, "Yes, but I get all kinds of symptoms." He said, "Do you ever get pain down there?" I said, "What do you mean?" He said, "Like, [do] you have trouble using tampons?" I said, "No, not really." I joked and said, "Maybe ask me in a couple of weeks." Then I said, "No, not really." Garth said, "Lie on the bed face up." I did this and he adjusted my legs, by pulling at them from the ankles. He got me to roll over onto my stomach. When lying on the bed he felt down my spine towards my buttocks and moved his hands right between my buttocks just above my anus. I was fully clothed at the time. I was [feeling] really awkward then because he was so close to my anus and pressing down right above it. He said, "How do you feel?" I laughed awkwardly and said, "Obviously uncomfortable. I don't understand what you are asking me." He said, "Does it hurt?" I said, "It feels like pressure." I felt really awkward at how close he was to my anus without telling me what he was going to do. Then he said, "You've got an inny." I said, "What does that mean?" Garth explained that for various reasons the tip of [my] coccyx was pulled inwards. Garth's wife [who worked in the practice] came and knocked on the door and said, "Your next patient is here." Garth and I were in the room together and alone for about 10 to 15 minutes. We both went out to the reception. Particular 1: Inappropriately offered to treat Patient A in circumstances in which she was regarded as a friend, was on student placement, was not actively seeking treatment, and there was limited time in between scheduled patients 1. Patient A was not scheduled for an appointment and did not pay for the consultation which occurred on 26 February 2010. No file was created for Patient A and no written record was kept of any history, assessment or treatment. 2. Patient A was clear in her evidence at trial that the practitioner had not indicated that he would do a quick assessment and treatment, stating he said "assessment". Patient A was emphatic that, "I was not seeking treatment for anything." 3. Ms Stone in her evidence for the practitioner at the criminal trial noted that even where a patient is known to a practitioner on a social level, one must still do "all the appropriate osteopathic things" but this can be done with an air of informality. In Ms Stone's view there was nothing inappropriate about a two-stage approach of morning and afternoon consult. 4. While the current Code of Conduct for Registered Health Practitioners, issued by the Osteopathy Board of Australia (2010), deals with the issues involved in treatment when there is a personal relationship [3.14]; this was not in place at the time. 5. Assessment or treatment of a person known to the practitioner, or a student on placement, is not necessarily improper. In Ms Paull's oral evidence before the Tribunal she noted that a demonstration of an assessment on the student could be appropriate as a teaching tool if properly explained and performed. We find that the practitioner's conduct cannot be so characterised. 6. In Ms Paull's written report she characterised the exchange between the practitioner and Patient A as lacking in any professional boundaries. In oral evidence Ms Paull opined that as a student on placement the practitioner had a greater degree of responsibility towards her, bearing in mind her youth, her gender and the power imbalance that comes through the supervisor/student dynamic; and the requirements upon him to demonstrate appropriate clinical and professional standards. 7. We find this particular is established because Mr Duggan acted below professional standards in offering an assessment, and providing a treatment, that was hasty and ill-considered in that it was not sought by, or explained to, the student. It did not meet any of the required diagnostic, assessment and consent standards as detailed in the later particulars, but neither did it meet any educational or professional objective in demonstrating practice and professional standards. Particular 2: Failed to obtain an adequate and/or appropriate history from Patient A before commencing assessment and/or treatment; 1. This is clearly established in Patient A's account. The practitioner admitted in his evidence at trial that he did not complete the usual "patient history form" prior to examining Patient A. His explanation for this failure was that he was just "treating her as a friend." 2. In the practitioner's letter of 5 August 2013 he provided, for the first time, a detailed "Patient History", much of which was not raised in, or differs from, his evidence at trial. We find that this was a belated attempt to justify the treatment provided and is not an accurate record of what Patient A reported to him in February 2010. 3. Ms Paull notes that the fact that the patient was a friend and not being charged was "irrelevant and do not relieve the practitioner from the requirement for professional conduct which includes taking an adequate history". 4. In his letter of 5 August 2013 Mr Duggan states that Patient A, "had previously watched me sit with every patient, going through their case history and she did not suggest at any time that she wanted me to go through a thorough history as opposed to doing the quick check." This evinces a profound failure to understand that it is the professional's duty, not the patient's, to ensure that a proper history is taken and recorded. Particular 3: Inappropriately said to Patient A words to the effect: "Do you get period pain, because you look like the type of person who would" 1. The practitioner at trial gave an account that involved a lengthy discussion with Patient A. He claimed that he said, "'It's common for me to find in my clinic that patients present that have posture like yours, will commonly have pain in these areas', and indicated the cervical spine, the thoracic area and the lumbar spine. 'As a result of the nerves that come from that area, it often affects their abdominal area, which is the gastrointestinal tract, leading to constipation and diarrhoea or bloating, and/or period pains'" and that Patient A "agreed" that she experienced such symptoms. In his letter of 5 August 2013 the practitioner referred to his "quick standing assessment" as involving him "guessing at symptoms or problems". 2. The patient denied this conversation. In addition to preferring her evidence overall, we note that her contemporaneous account to her friend of what occurred was that during the process the practitioner had "hardly talked at all". 3. Ms Adams, Ms Paull and the professional members of the Tribunal were in accord that there is no appearance of a person in posture that would suggest pelvic pain and that it is unprofessional to "guess" at such symptoms, nor is it appropriate to question a student about personal symptoms such as period pain in such an informal manner. Particular 4: Failed to adequately consider contraindications prior to performing a HVLA adjustment on Patient A 1. The practitioner admitted that he conducted a HVLA adjustment to Patient A's spine. No history was taken and we find that there was no screening for contraindications to HVLA. 2. At trial the practitioner asserted that "he knew" Patient A to be "quite a sporty person" and therefore it was "likely" that she did not have any serious pathology that would contraindicate treatment. This is manifestly an inadequate basis upon which to conclude that the treatment was safe and there were no contraindications. 3. In his letter of August 2013 the practitioner stated that he had specifically asked Patient A whether she had any serious injuries or problems such as osteopenia. This was not raised by him in evidence at trial. We reject this assertion and find that it reflects poorly on his credit. 4. Patient A's account of the afternoon session, which we accept as fact, is as follows: The last patient of the day left at approximately 4.45pm. That's when Garth came out to the reception where I was at the time and said, "Do you want to finish your assessment?" Garth's wife was going in between the clinic and the house at the time. Whilst at the reception Garth's wife was not there. On that day there was no receptionist working. I entered his room end again, he pulled my shirt up and checked my hips and started feeling my spine and shoulder blades while he asked, "Do you get tight in there?" (Indicating in the area of my shoulder blades), I tried to explain when I came in for a massage a couple of months earlier, I had a pinching in my back and it had moved up into my shoulder blades. He said, "Okay" and continued to feel my shoulder blades and chest. I tried to explain that sometimes I still get pinching, but he kept speaking about my tightness in my shoulder blades and didn't acknowledge my concern. He said, "Lie down on the bed face up." He pulled my feet together and said my hips were still equal from the manipulation he did earlier. He then moved to my neck and massaged and manipulated the muscles around my neck. He didn't talk about anything he was doing on my neck. He stopped working on my neck, moved his hands onto my stomach and felt and pressed around. He had already lifted my shirt and my stomach was exposed. I said, "What are you doing?" because I was interested in the purpose of looking at my stomach. He said, "I am feeling your intestinal track and things can become stiff and we want to create flow." The door to his room was open during this and Garth's wife was walking in and out talking to both of us during this time. When his wife was not in the room, Garth moved his hands to my pubic area and showed me with his thumbs that my pubic bone was sitting a little uneven. He massaged that area for a long while and I began to feel more uncomfortable. The treatment started feeling awkward. I [lay] there staring out the window and at the fan thinking that it was a weird situation to be in but not sure how to end the treatment without making it awkward or offending him. In a soft blasé' tone Garth stood up said, "I'll get some anti-inflammatory oil." He got it from his desk in the room. In my head I started to process what that meant and that oil meant contact with the skin. He came and sat back down and undid the bow on my pants. At the time I was wearing long trousers. I was shocked and didn't understand what he was doing. I said, "They are elastic pants." (The bow was just for looks.) Without saying anything, Garth lifted my pants and underwear and started pressing hard over my pubic symphysis. His hand was in direct contact with my pubic hair. He was not wearing gloves. He was asking if it hurt and if I said "No" he would then move further down my symphysis and press harder. He moved up and down my pubic symphysis a number of times and said, "This area is fibrous and needs to be broken down." He continued asking me if it hurt in different places. I said, "It feels weird and it hurts when you press hard." I continued to explain that to Garth, that it felt like when you rub over the bones and ligaments in your hand, feels kind of grainy. He continued to work on this area for a while. While he was massaging that area [he] mentioned the treatment for my coccyx. He said, "It's an internal treatment up the anal cavity. If I insert my finger up your anus, you will then need to squeeze your muscles to 'pop' your coccyx out." I laughed awkwardly and questioned if the treatment was necessary. Casually he said, "It is a good idea, as it is near the birth canal which could hit a baby's head (soft spot) during child birth.["] I laughed awkwardly and he said casually to think about it. Garth then began to move his hands to the right side of my pubic bone. He moved his fingers down the right side of my vulva pressing firmly til he stopped next to my vagina. He was pressing really hard here and said, "Squeeze your pelvic floor muscles. It's hard to know what you are hitting when you are flying blind." He had cupped my whole vulva area and was pushing on that muscle. He had moved my right leg outwards slightly with his free hand while he was feeling the pelvic floor muscle and asking me to squeeze. He worked his way up to my pubic symphysis and continued to massage that area again, asking "Does it hurt?" I said, "No" so he then pressed his fingers up and down my pubic symphysis asking if it hurt here or there. I said, "Yes" but was explaining obviously it was because he was applying pressure. He continued to move up and down my pubic symphysis until I said, "Now it just hurts like an angry pain." He said, "Well, we don't want it to be hurting." He continued to work on it for a little longer than I said, "It's just sore now." He stopped and pulled his hand out. I got up and went out to the reception area. Particular 5: Inappropriately prioritised and investigated the pelvic floor of Patient A without having a compelling clinical indication to do so 1. The practitioner's evidence was that Patient A was "shifting in her chair as a result of being uncomfortable or she had pain"; that she reported mild lower back pain; and that she had pinching between her shoulder blades and that she had "agreed" she got period pain. 2. Ms Paull stated in her report, "I can see little indication/reason to assess the pelvic floor in the detail described at this stage, given the lack of patient history and presenting complaint"; and that, "It would not be a priority to investigate coccyx or pelvic floor abnormalities in an initial consultation on the basis of these presenting symptoms". 3. Even if the Tribunal accepted Mr Duggan's account of the facts concerning a discussion between himself and Patient A as to presenting complaint, which it does not, we find based on the expertise of the professional members and expert views, that this investigation was not clinically indicated. Particular 6: Inappropriately purported to diagnose Patient A with a flexed coccyx without having a compelling clinical indication to do so Particular 7: Inappropriately suggested the intrarectal technique for treating Patients A's purported flexed coccyx 1. Ms Paull and Ms Adams concurred that there was no indication for assessment of the coccyx in an initial assessment, given no complaint of pain or injury was given. Ms Paull opined that palpation is insufficient to diagnose a flexed coccyx. We find that the diagnosis was inappropriate. 2. Both Ms Paull and Ms Adams stated that an x-ray of the area would be required prior to an intrarectal treatment. In addition we find that the suggestion of this treatment while touching the patient's pubic area was inappropriate. Particular 8: Inappropriately massaged Patient A's pubic symphysis inside her underwear 1. The practitioner admitted that he massaged the patient's pubic symphysis underneath her underpants using oil. His justification for this treatment was that after he had palpated the patient's diaphragm, and as a result of the patient stating she suffers from period pain, he palpated the patient's pubic symphysis area because, the "suprapubic region is very strongly correlated with dysmenorrhoea (period pain)". 2. The expert evidence of Ms Adams at the criminal trial was that if, "a person presents with a history of trauma to the pubic symphysis - it could be in childbirth- and/or they had pain over the pubic symphysis, then you would assess it. But otherwise it's not routinely assessed in back pain". 3. Ms Paull's opinion was that there was no clinical justification for this conduct. While there is a link between pubic symphysis dysfunction and dysmenorrhoea, dysmenorrhoea is a menstrual condition characterized by "severe and frequent menstrual cramps and pain associated with menstruation". No history of "severe and frequent" menstrual pain was given by Patient A. Even if it had been appropriate, a technique of palpating the pubic symphysis would not usually be done with oil and there would be no need to access underneath the patient's pants. Particular 9: Inappropriately assessed and/or palpated and/or massaged Patient A's pelvic floor inside her underwear or in the alternative outside her underwear Particular 10: Inappropriately assessed and/or palpated and/or massaged Patient A's pelvic floor inside her underwear without wearing gloves 1. The practitioner at trial gave evidence that he touched Patient A's pelvic floor outside of her clothing. On his account, he used oil to massage the patient on the pubic symphysis and in the pubic region, then moved to the outside of her underwear for a pelvic floor examination. We find that this is implausible, and prefer the evidence of Patient A that it occurred inside her underwear. 2. The clinically unjustified nature of this contact is established through the evidence relating to the particular above. 3. It is not in dispute that no gloves were worn at any time. Ms Adam's expert evidence at trial was that gloves are not required to examine areas of the external female genitalia, but are required if a mucus membrane covered surface might come into contact. Ms Stone's evidence at trial was that it was appropriate to touch a patient without gloves in the suprapubic and peripubic areas however "best practice that as you get to that mucosal layer of the central perineum and that perivaginal area and that you ….when you are that central area that you use gloves". Ms Paull noted that the use of a glove for contact in the pubic region goes beyond infection protection of the practitioner and, like other barriers such as towels and gowns, is important to ensure the comfort of the patient. 4. Particular 10 is thus established not because it is always inappropriate for a practitioner to be ungloved in this context, but because the lack of a glove exacerbated what is already established as unwarranted contact. Particular 11: Failed to adequately document the treatment provided to Patient A in his clinical notes 1. No clinical file was opened for Patient A so there was no record of her purported treatment made on the day it occurred. The practitioner in evidence at trial asserted that the next day, having received news that Patient A had made a complaint about what occurred, he wrote two pages of notes on his computer. The practitioner did not produce this record following his arrest or during his trial in September 2012 when it was called for. 2. We adopt Ms Paull's expert opinion that, "no matter what the relationship or how brief the assessment and treatment there must be some record." Particular 12: Having regard to matters including the particulars 1 and 3-10 inclusive above, failed to obtain informed consent from Patient A in relation to the treatment he provided 1. The Osteopath Code of Professional Conduct issued by the Osteopaths Registration Board of NSW, which was in place between 2005 and 2010, provides that: An osteopath must inform his or her patients at the commencement of a course of osteopathic management of the reasonably foreseeable implications, including risks, complications and reactions, and explain the nature and purpose of the osteopathic management. An osteopath must receive informed consent from his or her patient before commencing any form of osteopathic management. [9] 1. The practitioner in his letter of 5 August 2013 under the heading "How I obtained consent for my proposed treatment" gives a lengthy account of conversations he had with Patient A prior to and during her examination on 26 February 2010. This included him: ● asking Patient A an express question regarding "pelvic floor pain"; ● discussing the need for core stability exercises; ● demonstrating on a 'skeleton in the corner' an explanation of the coccyx region; ● seeking permission to do the HVLA adjustment; ● asking Patient A if she wanted to continue with "the treatment"; ● "telling" the patient that he was going to palpate her pubic symphysis ("which she agreed to") ● seeking permission to undo the bow on her pants; ● informing the patient that he wanted to assess the adductors and pelvic floor muscles that also attach to the pubic symphysis (to which she nodded); ● informing the patient that he was going to palpate her pelvic floor muscles (to which she said "ok"); 1. We reject this account and prefer the evidence of Patient A. 2. Ms Adams' expert evidence at trial was that informed consent had not been obtained. Ms Paull's expert opinion is that "matters of consent are clearly central to ensuring patient centred practice. Continually checking with a patient that they continue to be comfortable with the techniques is an essential requirement." 3. All of the professionals were in accord that a proper process for informed consent requires a discussion between practitioner and patient about the diagnosis, the options for treatment, the reasons why any option may be preferable and what the treatment involves, along with any risks, allowing time for the patient to process the information, question the practitioner and elect a course of action. When the treatment involves intimate touching in a sensitive area there is an additional need for time to reflect, preferably between consultations, and to choose to have another person present if the patient wishes. None of these elements were present in these incidents. Patient B 1. In 2009 Patient B received osteopathic treatment from the practitioner; the clinical records indicate this occurred on six occasions. Patient B noted that she saw the practitioner because he only charged students from the university osteopathic course $30 instead of his usual rate of $90 for an initial consultation and $75 thereafter. 2. The incident complained of occurred on 16 February 2010 when Patient B was a 26 year old second year student studying osteopathy at university. Five months had passed since she had last had a consultation with the practitioner, and her presenting complaint and symptoms were new. 3. Patient B's account of the consultation, as detailed in her police statement of 25 March 2010, is as follows: I felt that the treatment provided was unnecessarily invasive and inappropriate. At the beginning of my treatment I had asked to be treated for pain in the sternum and neck. I lay on the treatment table and he did a leg length check which he usually does at the beginning of treatment and I was told that I had a leg length variance. I thought this was unusual as I've never had a positive result from the test before, but accepted it. He palpated the area of pubic symphysis and found more tenderness on the left side. At the time was wearing my dra[w]-string shorts and a bra. During this palpation Garth said, "Is this tender?" as he palpated around the area above and beside the pubic symphysis. I confirmed that my left side was sore and my right side was not. Garth got up from where he was seated went to the cupboard and returned. Garth said words similar to, "This is a bit more serious than the upper body, so we'll deal with this first. I'll massage the area your pelvic floor and I'll get you to give me some direction. I'm going to use some oil." At this stage I felt surprised because I realised then that Garth was going to treat me with oil, with skin on skin contact. Prior to that I thought that he would treat me in this area with the use of a towel or through my shorts; Generally with some type of barrier. Garth placed one hand down my shorts and under my underwear and commenced to massage with cross-fibre friction techniques around the perineum and the vaginal orifice. At this stage I was still laying on my back. Garth massaged me in this area for about five to ten minutes. During this I was feeling uncomfortable and a bit shocked, I have had a lot of Osteopathic treatment in the past and it has never been necessary to be treated with such close contact in the pubic region. At the same time I placed trust in him to do the right thing, so I didn't question him about the nature of the treatment. At this point Garth said, "I'll get you to turn over onto your stomach. What's going to happen now is that I'm going to put on a glove," I said, "Yep" because I was relieved that he was actually going to put on a glove. I thought that it would have been necessary before this point. He got up and did so. He return[ed] to the treatment table where I was laying face down. Garth placed one hand up under my shorts and underwear. His hand came from inferiorly to superiorly. He kept using the same technique (cross-fibre friction) in the area of my perineum and vaginal orifice and I could feel some insertion of his fingers into my vagina. Although not deep, this still felt invasive. He continued to massage this area and he was using a pain scale. He said, "How would you rate the pain out of ten?" I said, "Probably about a nine." He continued to massage me. I was extremely uncomfortable with this treatment, however I didn't feel comfortable in asking him to stop. I think there was some denial because I didn't really want to admit to myself that he was acting out of line. He finished massag[ing] me and concluded the treatment with a High Velocity Low Amplitude (HVLA) technique, which is a manipulation, for the pubic symphysis. He did another leg length check and said, 'That's much better." I left the clinic feeling rather violated. I went home and the first person I told what had happened to me was [my friend]. I told her that I felt like I had just visited the gynaecologist, because the nature of the treatment had been so invasive, That night I had uncomfortable thoughts and trouble sleeping. Remembering this 'treatment' still bothers me and I try not to think too much about it. Particular 13: On or prior to 16 February 2010 the practitioner, failed to adequately document presenting health issues or a relevant history of Patient B in the clinical notes Particular 20: On 16 February 2010 the practitioner failed to adequately document the treatment provided to Patient B in his clinical notes 1. The clinical record in total, addressing seven consultations and a variety of presenting complaints and symptoms, including diagrams, is two pages in length. 2. Ms Paull's expert opinion was that the notes for Patient B are inadequate because of an insufficient history, a lack of clinical reasoning and an incomplete and incoherent process of assessment. This meant that the notes were insufficient for the practitioner to retrieve a coherent analysis in hindsight. The expert evidence of Ms Adams at trial was that the practitioner appeared only to have recorded his treatment of the patient and not his clinical findings. 3. Both the history and treatment record for 16 February 2010, which occupy only six lines of shorthand text, are manifestly inadequate. In particular we note that although there was a brief history recorded for the patient concerning the course of treatment in 2009, there was no further history taken concerning the consultation in 2010, when there had been a five month break between consultations and there were different presenting complaints. 4. The notes record in three lines presenting complaints for 16 February 2010 of pain in the chest for the last week with breaststroke and hunching shoulders and also head and finger pain. The notes do not accurately record the purported treatment which took place on 16 February 2010 in that there is no record of a pelvic floor assessment and no documentation of massage of the pubic symphysis. Particular 14: On 16 February 2010 inappropriately spent considerable time on the pelvic floor examination and treatment of Patient B without compelling clinical indication to do so 1. The practitioner's account was that, after conducting a leg length test and assessment of the pubic symphysis, he stated to the patient that she had a pelvic imbalance and that it was more important to treat that before her neck and sternum. Any finding of pelvic imbalance is not reflected in the clinical records. The practitioner did not treat Patient B's neck or sternum during the consultation. There is no clinical record to justify the basis upon which the practitioner could conclude that the pelvis was the primary issue requiring treatment instead of the presenting complaint. 2. The expert evidence of Ms Adams at trial was that given the patient had not complained of pubic symphysis pain (most commonly found in pregnant or post partum woman) she could not find a necessary basis for assessing the pubic area. Ms Adams noted that the presenting complaint was pain in the sternum, provoked by breaststroke and hunching shoulders, which suggested that a problem in that area was mechanically related. She concluded, "It's implausible to relate it to the pelvis or the pubic bone." 3. Ms Paull was also of the opinion that the pelvic floor examination and treatment was performed without compelling clinical indication. Particular 15: Inappropriately palpated and/or massaged Patient B's pubic symphysis, and above and beside it, whilst she lay on her back, without compelling clinical indication to do so 1. Ms Paull gave oral evidence before the Tribunal that the examination of the pubic symphysis could be appropriate and reasonable if a pelvic imbalance was present. There was however no clinical basis for the massage of the area, as determined in particular 14. Particular 16: Inappropriately palpated and/or massaged around the area of Patient B's perineum, labia and vaginal orifice and across her pelvic floor, inside her underwear, whilst using oil on his fingers and 'ungloved', using a cross fibre friction technique, whilst she lay on her back, without compelling clinical indication to do so 1. The practitioner originally stated in his evidence at trial that he massaged the patient whilst ungloved with oil and whilst she was on her back, moving his fingers down along to the pelvic floor outside her clothing, but in cross examination stated that this was under her clothing. He denied touching Patient B's perineum, vaginal orifice or labia at that stage. The practitioner characterised this as an assessment rather than a treatment. We find it implausible that the practitioner would use oil if touching outside clothing, and reject his account, preferring the evidence of Patient B. 2. The expert evidence of Ms Adams at trial was that she could find no reason for carrying out this assessment. She stated that the rubbing motion used in cross fibre massages causes friction between hair and skin and potential abrasions or pain and that when done it would normally be done through a towel or with gloves on. 3. Ms Paull's expert opinion was that the massage was not clinically justified. It was not necessary for the practitioner to massage any area inside the patient's underwear for the purpose of assessment. Particular 17: Inappropriately palpated and/or massaged around the area of Patient B's perineum, labia and vaginal orifice and across her pelvic floor, using a cross fibre friction technique, inside her underwear whilst she lay on her front without compelling clinical indication to do so 1. The practitioner stated at trial that after he asked the patient to turn onto her stomach, he "re-applied" oil, placed on a glove and treated what he claimed was discomfort found around the pelvic floor. 2. Ms Adam's view was that there was no rationale for either assessing or treating the pelvic floor in this case. 3. Ms Paull, having read the practitioner's letter of 5 August 2013, still found no clinical justification in that explanation as to the necessity for the assessment or treatment. Particular 18: Inappropriately inserted his fingers into Patient B's vagina during the palpation and/or massage around the area of Patient B's perineum and vaginal orifice, whilst she lay on her stomach without compelling clinical indication to do so 1. The practitioner in his examination in chief during the criminal proceedings was asked whether the tips of his fingers might have entered the patient's vagina to which he initially replied "Not at this stage." He was then asked "At any stage during the procedure did you intend to put your fingers into her vagina"? To which he replied "Absolutely not", however he then stated that, "it's possible that it could have occurred. It wasn't my understanding that it had occurred. I certainly wasn't aware of it if it did occur, but it's possible that it could occur". Later again he suggested that perhaps Patient B had mistaken the sensation of external contact with penetration. We prefer the account of Patient B. 2. Ms Paull's oral evidence before the Tribunal was that it would be a profound breach of competence for an osteopath to "inadvertently" insert his finger into a patient's vagina and that it was implausible that a woman might be confused as to whether penetration occurred. Particular 19: Inappropriately failed to respond to Patient B's pain score of 9/10 during the palpation and/or massage around the area of Patient B's perineum, labia and vaginal orifice and across her pelvic floor, in circumstances where he should have ceased the technique to suit the comfort of Patient B 1. The practitioner gave evidence at trial that the patient had said a number of times that her pain was nine out of ten when he initially assessed her pelvic floor while she was clothed on her back. He asserted that this complaint of pain in fact "prompted" him to continue treating her in that region, but claimed that he moderated the treatment accordingly by reducing the amount of pressure applied. We prefer the evidence of Patient B. 2. Ms Adams' opinion was that if Patient B had indicated several times the pain score was nine out of ten, then the practitioner ought to have stopped the procedure. Ms Paull's expert opinion was that the practitioner should have ceased or modified his treatment of the patient when she complained that the pain was nine out of ten. Particular 21: Having regard to matters including the particulars 14-19 inclusive above, failed to obtain informed consent from Patient B in relation to the treatment he provided. 1. Patient B's account of the consultation, accepted as factual, clearly establishes that informed consent was not obtained in relation to the pubic, pelvic and vaginal touching, even had they been clinically justified and appropriate. Patient B's contemporaneous reports to her friend and university lecturer of her feelings of distress and discomfort are further indications of her lack of consent as well as evidence of the impact that such conduct has upon a patient. 2. Both experts agreed that if the patient had not been specifically informed that her vaginal area was about to be touched, consent had not been obtained to such touching. Any general consent to treatment was inadequate to cover the specific consent required for this intimate touching. 3. Ms Adams and Ms Paull concurred that the proper approach to obtaining consent for assessments in the vaginal or pubic area, if they are to be done, would be to discuss and obtain consent prior to the patient lying down. Additionally, it is best practice to defer examination in those areas until a later consultation and to offer the option of a chaperone. Patient C 1. On 3 November 2009 Patient C sought osteopathic treatment from the practitioner for sciatica and neck and shoulder pain. Immediately upon returning home she spoke to her partner about feeling uncomfortable in relation to what had occurred during the consultation, but did not make a police statement until 7 April 2010, in response to a phone call from the practitioner which was made in the days following his arrest. 2. Patient C's account, in her police statement of 7 April 2010, is as follows: Garth kept going through the form with me and asked me about previous operations that [I] had written on the form that I had undergone. I can't remember exactly what he said but he was very interested in an operation that I had had on my bladder in 2007. He kept asking me questions about my bladder. Garth asked me a lot of questions that I felt uncomfortable to answer. One of the questions on the form was about pain during intercourse. As I have endometriosis I answered 'yes'. Garth asked me a lot of questions about this to the point that I felt uncomfortable. He paid more attention to this question than any of the other questions. This was very awkward because I was there to have treatment on my back. Garth kept talking about my 'whole body' and how everything was connected. I can't remember his exact words but it was something like, "your whole body is connected and to treat one thing you need to treat other things or start treating the other before you treat what you think is the problem." Garth talked more about my bladder [pain] during intercourse and suggested causes for it. He said, "it could be muscular." I was in a lot of pain with my back. I said, "No, that's okay, I just want my sciatica addressed at the moment." It seemed like I was sitting at the desk for a long time, I can't remember all of what we talked about hut I remember him asking a lot of questions about my bladder and pain during intercourse. Garth said, "I'll look at your back." He told me to take off my clothes down to my undies and bra. He told me to stand in front of the mirror in his office. The mirror is full length which is hung on the wall. Garth said, "Your hips and shoulders are out of line." He showed me how I was out of line and he told me that that could be the cause of the pain. He also told me that my posture was bad, I have had the exact same analysis before from Osteopaths and Physiotherapists but I have never had to strip down to my undies and bra. I was really uncomfortable. Garth got me to lie face down on the massage table. There was a little towel to cover me but remember being uncomfortable and feeling exposed. Garth started feeling for my back and sciatica and asking me where the pain was. Garth's hands went down into my inside thigh area. I moved because l felt uncomfortable. Garth said, "I'm going to feel your muscles to see if they are overworking or under working." I don't know if I said anything but I thought it was a bit strange. Garth's hands went around towards my vagina and he was pressing down onto my vagina through my undies. He was rubbing directly onto my vagina. He rubbed around my vagina for a little while, like a minute or so. I felt uncomfortable so I made a joke. I said, "So are the muscles overworking or underworking?" He said, "They seem like they are overworking but I will need to do an internal examination to check." I took me a moment to realise what he meant. I said, "No, that's okay." Garth went on about overworking. He said, "If you relax the muscles, we might be able to fix the problem." I said, "No. No, that's fine. I came for my back." He said, "I'll wear gloves." Garth wouldn't listen to me when I told him that I didn't want an internal examination. He left the room for a moment and I stayed [lying] on the treatment table. I trusted that he was a professional. Garth came back in and I was still lying face down on the bed. I still had the towel over me. Garth told me to pull my undies down [a] little bit so he could do an internal examination. I pulled my undies down to my mid thigh and I stayed face down. I didn't see his hands at all but I heard what sounded like glove[s] being put on. He put his hand between my legs from behind and he put what felt like two fingers inside my vagina. His fingers didn't go in a long way, my legs were still a bit together because my undies were still around my mid thigh. Garth didn't say anything when he put his fingers inside me. I was really uncomfortable with Garth because when I have been seen by a Gynaecologist, they always tell you what they are doing and I am always laying on my back. Garth kept his fingers in my vagina still. He wasn't massaging or moving them and he stayed like that for ages. I would guess for about one or two minutes. It felt like ages. I moved because I felt really uncomfortable. I didn't want an internal examination and I was worried about what he was doing. I tried to make light of what was happening because I was so uncomfortable. I said, "So are they overworking or underworking. What's the problem?" He said, "I'll just get you to tense your muscles." I tensed my muscles a couple of times. He said, "I want you to do it faster." I did what he asked. He said, "Your muscle strength is good but your fast muscle strength is bad." After that, he penetrated his fingers deeper into my vagina and he really hurt me. I moved and was panicking and was trying to think of what to say. I can't remember exactly what l said but it was something like, "I'm here for my back, can you look at my back now." He pulled his fingers out and I pulled my undies back up. After that, he looked at my back. …. I was in the treatment room for a really long time. I remember looking at the initial treatment time and knowing it went way over that. When I walked out of the treatment room, Garth looked at me in a really strange way. I felt really disgusting and I knew what he had done wasn't right. I went to the receptionist who was his wife, I thought that maybe I was overreacting because his wife was out in the next room, I paid for the treatment and left. I was never going back there again. When I got home, I told my partner [J] about what had happened. Over the following days and weeks, the more I thought about what happened, the more l became upset and I cried to [J] about what had happened. I felt really violated. … At 8.49am on Thursday, 1 April 2010, I answered a call on my mobile phone…A male voice said, "Hello, this is Garth DUGGAN from Feel Good Health. You came for a treatment last year and you didn't come back and I wondered if you felt uncomfortable at all with the procedure." I said, "Yes, I did feel uncomfortable and that's why I didn't come back." He said, "I wonder if any time during the treatment that you felt like you couldn't tell me to stop." I felt really uncomfortable and disgusting talking to him. I said, 'I'm sorry, I'm walking out the door. I don't have time to talk to you. I am very busy, I won't be able to call you back." He said, "I need you to call me back, it is very important to me that you call me back." He repeated this a number of times. I just wanted to get him off the phone and I had no intention in ringing him but I said, "I'll try and call you at lunch." I hung up. …. After that, I knew I definitely needed to go the Police. Particular 22: Failed to obtain an adequate and/or appropriate history from Patient C before commencing assessment and/or treatment 1. In the clinical record the practitioner wrote under "Problem List", "Right buttock pain-shooting down to calf, neck and shoulders-computer work", "shooting pain at times 9/10" and, under "Occupational Hazards", "lifting children" and "on feet all day". The practitioner recorded "onset of pain two weeks ago lifting child-instant pain". 2. In her pre-consultation questionnaire the patient recorded a circle around 'yes' to pain during sex, she also recorded painful periods when not on the pill. However there was no record concerning duration or intensity of such pain. These were not her presenting complaints. 3. Ms Paull's expert opinion was that "the critical questions on which a possible diagnosis and treatment for the presenting complaints could be based have not been asked or recorded". The main presenting problems were right buttock pain, shooting done to the calf, strongly indicating sciatica as the likely diagnosis and neck and shoulder/computer related pain. As these were the main complaints Ms Paull noted a relatively standard approach to eliciting the required history in order to discover the causes and develop a treatment plan, (including asking the patient to describe the location, severity and type of pain, in addition to the history of the pain and how it developed, aggravating and relieving activities and associated radiating symptoms such as numbness, tingling and weakness). The pain diagrams in the clinical notes did not directly indicate the two main presenting problems. 4. Ms Paull found the history taking to fall significantly below standards. Particular 23: Inappropriately prioritised and investigated the area of Patient C's vaginal orifice and pelvic floor region without having a compelling clinical indication to do so 1. The practitioner acknowledged that the patient had reported that her past history was "not of major concern to her today ‒ her big issue was her sciatica". He nonetheless proceeded with pelvic floor palpation and a pervaginal examination. 2. At trial the practitioner agreed under cross examination that he asked the patient a large number of questions about pain during sexual intercourse, and in his evidence went to great lengths to explain all the reasons why Patient C might have been experiencing pain during sexual intercourse. The practitioner also repeatedly referred to Patient C giving a history of "deep pain" during sexual intercourse. This is not recorded in the clinical notes and his claim of a report of "sharp deep pain" during sexual intercourse was rejected by the patient in cross examination. We prefer the evidence of Patient C. 3. Ms Paull's oral evidence before the Tribunal was that a pervaginal examination did not form the basis of any known treatment nor assessment with respect to investigating dyspareunia or endometriosis. 4. Ms Paull also noted the failures in the practitioner's examination with respect to what were the two main presenting problems of sciatica and neck/shoulder pain. There was no evidence that the practitioner conducted the standard orthopaedic, neurological testing or followed the normal approach for treating sciatica. There was no clinical basis to support a view that the patient's sciatica had a primary cause that required a pervaginal assessment. Ms Adams concurred in this view. 5. Ms Adams at trial gave expert evidence as to what would be expected in assessing this patient's presenting problem of sciatica. She stated amongst other things that an osteopath's assessment required consideration of the ergonomics of Patient C's work as a childcare worker, which appeared to be a significant causative factor. She further noted that prior pain episodes were both triggered by heavy lifting, indicating a mechanical loaded back problem, not a gynaecological problem. She did not believe that questions relating to pain during sexual intercourse were relevant to working out how to manage the back and leg pain because gynaecological pain does not refer down to the calf. 6. In Ms Adam's expert opinion it was not appropriate to conduct a pelvic floor or pelvic tissue examination on Patient C as there was no clinical indication that her presenting pain was gynaecological nor associated with menstruation; rather it was mechanical pain caused through lifting. She further stated that prior to any such investigation a "whole barrage of questions about pelvic floor control" would be asked by the practitioner prior to determining whether examination was necessary. Given there was no history regarding urinary incontinence, there was no basis for assessing the efficiency of the pelvic floor muscles for their ability to contract. 7. Ms Adams' expert opinion was that the purported treatment performed on Patient C was "grossly deficient" because it did not involve developing a diagnosis, ruling out a quite potentially serious problem of radicular pain. Particular 24: Inappropriately palpated and/or massaged around the area of Patient C's vaginal orifice and pelvic floor region, outside her underwear, whilst she lay on her front, without compelling clinical indication to do so; 1. This is established by the expert evidence noted above for particular 23. We also note Ms Paull's concern that any communication to ensure continuing consent to such sensitive treatment would be impeded by having the patient lying face down. Particular 25: Inappropriately palpated and/or massaged around the area of Patient C's vaginal orifice and pelvic floor region, inside her underwear, whilst she lay on her front, with complete disregard of the express wishes of Patient C 1. The practitioner denied that the patient said "no" or "no its ok" in his evidence at trial. He claimed that the patient verbalised "in some manner" that she was comfortable with the treatment. For the reasons noted earlier, the evidence of Patient C is preferred. Particular 26: Failed to adequately document the treatment provided to Patient C in his clinical notes 1. The only record of "differential diagnosis" relating to the treatment provided is "spoke about starting @ base + working up – patient agreed. Start w pelvis". The record of purported treatment in the clinical records is extremely brief and inadequate. While the record does note "weak contraction and poor isolation" in relation to the pelvic floor there is no detail concerning the need for, or provision of, the pervaginal contact. 2. The clinical notes are manifestly inadequate. The importance of sufficient documentation is even more pressing when treating sensitive areas to ensure that clinical justification is obvious and the process of informed consent is robust. Particular 27: Having regard to matters including the particulars 23-25 above, failed to obtain informed consent from Patient C in relation to the treatment he provided. 1. The practitioner gave evidence in chief at the criminal trial that he asked the patient a series of questions, namely "can you tell me if there's tenderness?"; "can you give me feedback regarding the areas I'm palpating?"; "let me know if at any stage you feel uncomfortable and would like me to stop"; and when placing his fingers at the entrance to her vagina said to her, "I'm just going to stay still in this particular position for a while to make sure your able to relax". This does not accord with Patient C's account, which is preferred. 2. The practitioner's clinical records state, "superficial and deep fibres with permission". Under the date 3 November 2009 the notes state, "Patient did not rebook. [She] consented to treatment after talking about it extensively with diagrams above and skeleton. Lots of communication during treatment. Glove used and consent given to treatment throughout on multiple occasions." The practitioner admitted in evidence at the criminal trial that this entry, although dated 3 November 2009, was only made in March 2010 after he was arrested for incidents relating to other patients. Accordingly, we give this record no weight. 3. The practitioner also relied upon the fact that the patient lowered her underwear when instructed to do so as indicating her "implied" consent. Ms Adam's expert opinion at trial was that the patient's actions of pulling down her underwear following an instruction made by the practitioner to that effect did not amount to consent to the specific touching, nor did the general consent form Patient C had previously signed. We find that such consent must be informed, considered, specific and expressed in order to be valid. 4. Ms Paull's strong criticism of the practitioner related to his complete, and continuing, failure to understand that careful preparation of a client is required to allow her or him to consider the proposed treatment if it requires touching in intimate areas. 5. The view of the experts is clear that informed consent for a procedure such as this requires: 1. a careful explanation of the kind of treatment and why it is required, as well as possible alternatives to the treatment, 2. specific consent to the relevant touching in advance; 3. time to reflect and preferably deferral of the treatment to a later consultation to allow a patient to consider the treatment; 4. the offer of a chaperone; 5. the use of barriers where appropriate; and 6. on-going communication throughout to ensure the consent is informed and continuing. The Appropriate Protective Orders 1. All of the particulars are established to the required standard. The matters concerning clinical record keeping and inadequate history taking are unprofessional conduct, as was the HLVA adjustment without consent. The matters concerning clinically unjustified touching of the patient's pubic, pelvic and vaginal areas, without informed consent, are each of such gravity in terms of their impact upon the patients, and the gross breach of professional and ethical standards involved, as to be professional misconduct in their own right. 2. Deregistration is the only appropriate protective order in the very serious circumstances of this case: HCCC v Jamieson [2014] NSWCATOD 56 at [102]; HCCC v Della Bruna [2014] NSWCATOD 31; Sabag v HCCC [2001] NSWCA 411; HCCC v Perroux [2011] NSWDC 99. 3. The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions: HCCC v Do [2014] NSWCA 307 [35]. 4. We noted in Duggan [2015], but repeat here, that the public interest in disciplinary proceedings is distinct from that in the criminal process: HCCC v Litchfield (1997) 41 NSWLR 630, [1997] NSWSC 297. 5. In Litchfield the NSW Court of Appeal noted the particular public interest in the maintenance of professional standards concerning intimate physical contact in health practices: "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. This matter involves a very grave breach of these obligations concerning not one but three female patients. The impact of such breaches upon the trust of the public in the osteopathic profession is very serious. In addition there is the very serious damage to the role and reputation of the profession in the education and training of future health professionals because of the role of this practitioner's misconduct in a clinical placement. The severity of the misconduct, the number of patients involved, and the impact upon clinical education all weigh in favour of a substantial period of deregistration to signal to the public and the profession, including students and educators, the extremely serious nature of the misconduct. 2. If the Tribunal either suspends or cancels a practitioner's registration under s149C(1) or (3) or if the Tribunal makes a disqualification order under s149C(4) of the National Law, it is then open to the Tribunal to consider imposing a prohibition order. The National Law requires that the Tribunal must be satisfied that a person "poses a substantial risk to the health of members of the public" prior to making a prohibition order under s 149C(5). 3. We find that a prohibition order, in conjunction with a lengthy period of deregistration, is required because the practitioner is so manifestly unaware of, or indifferent to, the core tenants of informed consent in practice, such that he poses a substantial risk to the health of the public. On the basis of our findings this risk is most acute concerning physical contact with young female patients but is also of concern regarding any one-on-one assessment or treatment undertaken by the practitioner in any health field requiring a consent process. 4. Because the Tribunal did not have the benefit of the practitioner's evidence in these proceedings, we must rely upon the material produced for the earlier criminal proceedings and his letters in response to the HCCC. A determination must be based on the most relevant and recent information available; not withstanding that even the most recent of this material is over two years old, it is the best available. In addressing the practitioner's fitness to practise in determining the appropriate period of deregistration, and the question of whether he poses a substantial risk to the health of the public for the purposes of any prohibition order, we are of the view that these materials plainly indicate that the risk posed by the practitioner is significant. 5. The practitioner's evidence at trial with respect to all three patients was that they were "obviously very confused" after treatment and that he "hasn't educated the patient well enough in the time that they were seeing me, to understand why I was doing what I was doing and that's led to confusion". This concession about a failure to "educate" the patients about what he was doing betrays a profound underlying failure in the practitioner's approach to informed consent evident in all three incidents. That is, even two years after the events, he saw his role as one of telling the patients what was about to occur, not as explaining the options for treatment to them and waiting for them to elect to participate in such treatment. 6. Taken together, these three patient accounts are of young women, each experiencing multiple layers of vulnerability or structural power imbalance in relation to the practitioner (as a student under his supervision who was not seeking treatment, a student training in his profession whose self-reported patient history strongly indicated anxiety and depression, a patient seeing him for the first time who was in extreme pain, and who also reported anxiety) who were briskly manoeuvred into clinically unjustified situations involving intimate touching. Consent is at the heart of all health care, but most especially that involving intimate touching, and the actions of the practitioner ensured that the women did not have time or space to reflect on, and possibly reject, his course of action. Small, but significant details from the women's stories illustrate this: the practitioner untying Patient A's pants rather than asking her to remove them, the practitioner "telling" Patient C to lower her underwear and his belief that this "implied consent", rather than asking if she were comfortable with this course. 7. In dealing with the particulars above we have addressed whether there was informed consent to each of the relevant acts and found that there was not. In conclusion, having found on the facts that the relevant acts of touching in the public, pelvic and vaginal areas were not clinically justified as either assessment or treatment, we also suggest that the patients could not have given informed consent for these acts. Simply: had the practitioner taken the time to explain and seek agreement to the proposed touching, any consent obtained would still arguably not be informed, as it would not have been based upon any objective clinical rationale or offer any health benefit to the patient. Orders: (1) The practitioner, Garth Duggan, is reprimanded in the strongest terms under s 149A(1)(a) of the National Law for his failure to adhere to the basic elements of informed patient consent; (2) Pursuant to s 149C(1)(b) of the National Law, the Tribunal declares that the practitioner's registration as an Osteopath on the National Register of Health Practitioners maintained by the Australian Health Practitioner Regulation Agency is cancelled from the date of this order; (3) Pursuant to s 149C(7) the practitioner may not make an application to the Tribunal under Division 8 to return to the register until 6 years from the date of this order; (4) The practitioner is prohibited, pursuant to s 149C(5)(a), from providing any "health services" as defined by s 4 of the Health Care Complaints Act 1993 (NSW) until such time as a reinstatement order is made; (5) A non-publication order under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting the disclosure or publication of the names of patients A-C in the schedule to the complaint, their corroborating witnesses, and any other patient or student named in evidence; this order supersedes and replaces order 1 in HCCC v Duggan [2015] NSWCATOD 142; (6) Costs in favour of the Commission pursuant to cl 13(1) of Sch 5D of the National Law as agreed, or failing agreement, liberty to restore to the list to be assessed. 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: 17 March 2016