Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Saedlounia [2017] NSWCATOD 5 Hearing dates: 27 October 2016, 16 November 2016 Date of orders: 11 January 2017 Decision date: 11 January 2017 Jurisdiction: Occupational Division Before: O'Meally ADCJ, Principal Member Dr G Abouyani, Professional Member Dr H Haikal-Mukhtar, Professional Member Dr Y Rowling, General Member Decision: (1) We make a finding of unsatisfactory professional conduct against the respondent in respect of Patient A and Patient B. (2) We make a finding of professional misconduct against the respondent in respect of Patient A. (3) We will hear submissions on the appropriate orders sought, on a date to be fixed. Catchwords: Unsatisfactory professional conduct – professional misconduct – inappropriate touching – failure to keep proper records – breach of patient confidentiality– inappropriate conversations Legislation Cited: Health Practitioner Regulation National Law (NSW) 2009 (No. 86a) Civil and Administrative Tribunal Act (NSW) 2013 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Saeid Saedlounia (Respondent) Representation: Counsel: P G Aitken (Applicant) Solicitors: Health Care Complaints Commission (Applicant) File Number(s): 1520258 and 1620148 Publication restriction: Pursuant to Schedule 5D clause 7 of the Health Practitioner Regulation National Law (NSW), publication or disclosure of the name, address or any evidence or information which might tend to or lead to the identification of the names of patients identified in these proceedings is prohibited. REASONS FOR DECISON INTRODUCTION 1. On 15 December 2015 the Health Care Complaints Commission (the applicant) commenced proceedings in the Tribunal against Dr Saeid Saedlounia (the respondent) seeking orders pursuant to ss 149A, 149B and/or 149C of the Health Practitioner Regulation National Law (NSW) (National Law) in respect of his treatment and consultation with Patient A, alleging that the respondent had been guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) and (d) of the National Law and/or professional misconduct within the meaning of s 193E of the National Law. 2. On 3 June 2016 an order was made for joinder of 1620148 (which relates to Patient B) with 1520258 (which relates to Patient A). THE RESPONDENT 1. The respondent is a graduate in medicine of the Islamic Azad University of Tabriz, Iran from which he graduated in 2002. 2. Between 2002 and 2005 he practised as a general practitioner at the Marand Health Service in Iran. He was first registered to practise in Australia on 1 March 2007 and between 2007 and 2008 practised as a general practitioner at the Wellington Aboriginal Health Service in Wellington, New South Wales. 3. Also between 2007 and 2008 he was a VMO at Wellington Hospital and between 2008 and 2009 he was a medical practitioner assistant at Worksafe Medics. 4. He worked as SRMO at the Drug and Alcohol Unit at Royal North Shore Hospital in Sydney between October and November of 2009 and then commenced full-time general practice, initially at the Elmwood Medical Centre, Wodonga, Victoria and later from 2012 until after the events with which the Tribunal is currently concerned, at the Rouse Hill Town Medical Centre in New South Wales. PATIENT A 1. Patient A is biologically female though identifies as a male. At the time of the events with which the Tribunal is concerned Patient A was 17 years old. At the time of giving evidence before us he was a student undertaking a diploma course in management. The gravamen of the complaints in respect of Patient A is that the respondent inappropriately touched and examined Patient A and failed to keep adequate records of his treatment and examination. The particulars of the complaints made in respect of Patient A will be considered in greater detail shortly. PATIENT B 1. At all relevant times Patient B practised as a clinical psychologist. She was a patient at the Rouse Hill Town Medical Centre and on 27 April 2014 she attended to seek a prescription for thyroid medication. Patient B had previously been diagnosed with breast cancer and had undergone extensive treatment and radical surgery. At the time of her attendance at the Medical Centre, Patient B was treating the domestic partner of the respondent. He then engaged in conversation with Patient B, in which he revealed he was aware that she had been treating his partner professionally. Moreover, in the presence of her husband and children, he questioned her about the details of surgery she had undergone and future treatment proposals. He also made inappropriate remarks in the presence of her family. 2. The particulars of the complaints in respect of Patient B will be considered more fully in due course. Complaints in respect of Patient A 1. The first complaint in respect of Patient A is that the respondent is guilty of unsatisfactory professional conduct within the meaning of s 139B of the National Law in that he engaged in conduct that demonstrates that the knowledge, skill or judgment possessed, or care exercised, by him in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience and that the respondent contravened s 139B(1)(b) and s 139B(1)(l) in that he engaged in improper or unethical conduct relating to the practise of medicine. 2. The second complaint in respect of Patient A is that the respondent engaged in professional misconduct contrary to s 139E of the National Law. Here, it is alleged that he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. Failure of the respondent to appear 1. Before proceeding to consider the particulars of the complaints in respect of each patient, it should be noted that the respondent did not attend the proceedings, nor was he represented before us. There had been earlier proceedings against the respondent under s 150 of the National Law and an appeal against the decision of the Medical Council was heard in the Medical Tribunal constituted by members other than those constituting this Tribunal. A number of the particulars in these proceedings were considered in the appeal proceedings. The respondent had been represented by a solicitor who communicated with the respondent and provided the Tribunal sitting on appeal with information concerning his conduct and his response to allegations made against him. 2. Transcripts of the respondent's evidence given before the Council and the Tribunal on appeal are before us. We also have the decisions of the Council and the Tribunal in respect of the action taken under s 150. Though we are not bound by the observations of the Tribunal, we conclude, as did the Tribunal, from the evidence before it that the respondent does have a history of dishonesty and lied about some issues. 3. On 3 June 2016 an order for substituted service of these proceedings was made and the respondent was served in accordance with the terms of that order. When he had legal representation his solicitor provided an email address to the applicant and the respondent was served at that address by email. Attached to successive emails sent to him were the complaints filed by the applicant and all documents in support of its applications. Copies of all documents placed before us have been served by email upon the respondent. Searches disclose that those emails were delivered to the respondent's email address, but deleted without having been read. 4. We are satisfied that adequate notice of these proceedings and the material relied upon by the applicant before us have been given or made available to the respondent. For whatever reason, he has chosen not to participate and the best evidence indicates that the respondent has returned to Iran. There is no evidence that he has returned to Australia, though there is evidence that he did leave the country with the intention of going to Iran. 5. We are satisfied that the respondent has had adequate notice of the hearing and accordingly we have decided to proceed in his absence in accordance with the provisions of s 165J(3) of the National Law. Duty of the Tribunal 1. At the outset we should remind ourselves, as we do, that our jurisdiction is protective in nature, not punitive. We are obliged to have regard to the maintenance of standards of the medical profession, preservation of public confidence in the profession and the protection of the community. Though protection of the public safety is a paramount consideration, we must also deter other practitioners from engaging in unsatisfactory professional conduct or professional misconduct of the type which might be found against the respondent. 2. By reason of the nature of the allegations made against the respondent we are required to be satisfied on the balance of probabilities of the matters alleged, having regard to the gravity and importance of the issues to be determined and the possible consequences of a finding of guilt. (See Briginshaw v Briginshaw (1938) 60 CLR 336 at 360‑363.) What is required here is comfortable satisfaction. Accuracy and reliability of Patient A's evidence 1. It has been submitted by the applicant that Patient A's evidence should be accepted, notwithstanding the fact that there are some inconsistencies in the various accounts he has given. It is important to recognise that Patient A has a prior history of depression and anxiety, probably related to the problems of dealing with his gender identity, and had attempted suicide. 2. Some of the inconsistencies are these: * Initially, Patient A recalled the bruise from an injection being on his right buttock. Photographic evidence and the description given by Patient A of the respective positions of himself and the respondent when the injection was given would suggest that the injection was given into the left buttock. * Patient A recalled arriving at the Medical Centre at about 5.00pm on 28 July 2014, the time he remembered as a result of looking at his phone. The treatment room record, however, shows that he arrived at 5.40pm. * In a statement to the police, Patient A did not mention that he stood on a stool when the injection was administered. A similar omission occurred when Patient A was describing to us the manner in which the injection was given. It was only after questions were asked by members of the Tribunal and an adjournment that Patient A was recalled to give a description of the position he was in and invited to draw a sketch. * Patient A gave an account of being touched initially on the bottom. He said it was through, that is on the top, of his underpants. In a statement to the police, he said his underpants were down near his knees, so that the touching must have been skin to skin. It is conceded that this could be viewed as an error affecting credibility, or it could be an error of recollection caused by the effluxion of time. 1. It is important to bear in mind that not only was Patient A but 17 years old at the time of the events complained of, but beforehand had attempted suicide and had been experiencing depression and anxiety. 2. The members of the Tribunal do not believe that Patient A was being dishonest or deceitful, but a majority of its members have doubts about the accuracy of some aspects of his evidence and are of the view that in some respects there was an element of reconstruction. Complaints in respect of Patient A 1. Patient A had attended the Rouse Hill Medical Centre on 26 July 2014 seeking treatment for a sore finger. Some treatment was given and he was advised by a doctor other than the respondent to return if prescribed medication had no relevant effect. On 28 July Patient A again attended the Rouse Hill Medical Centre because the pain in his sore finger had not abated. Upon presentation, he complained of feeling faint, of experiencing headache and also a small amount of stomach pain. Before being seen by a doctor, Patient A was given an ECG by a nurse in the treatment room. Here it should be noted that the respondent, when interviewed by police, following a complaint by Patient A, and in a subsequent statement provided by his solicitors, denied ever having treated Patient A. The respondent said he did recall seeing a male patient at the time recorded in the notes and in the treatment room, but says the patient was not Patient A. We do not accept this to be the case. 2. After having the ECG in the treatment room, Patient A fell asleep. When he awoke he was spoken to by a person whom we are satisfied was the respondent. He said: "I came to see you but you were asleep". Patient A said: "Sorry, I felt really bad as I've got a really bad sore finger and a headache and I feel faint and I've got a small amount of tummy pain". The conversation progressed. The respondent said: "Okay". Patient A said: "Look, I was here a couple of days ago 'cause of my finger and I was told to come back if it didn't get any better. It's still very sore". He said: "Okay, have you had any bleeding?". I said: "No, not at all". 3. The first of the particulars of complaint 1 are: 1. On 28 July 2014 the practitioner inappropriately asked Patient A if he had any bleeding whilst motioning towards his genital area in circumstances where he: (a) did not attempt to localise Patient A's abdominal pain; (b) did not take a menstrual history; (c) did not clearly ask Patient A whether he had any rectal bleeding. 1. The Tribunal heard the evidence of an expert qualified by the applicant, namely Dr Harry Nespolon, as well as having the benefit of a report prepared by him. 2. Noting that Patient A described his symptoms as "a really sore finger, headache and a small amount of tummy pain" Dr Nespolon thought the connection between the respondent's questioning and the patient's history to be remote. He observed that the respondent did not inquire to localise the pain and noted that it could have been anywhere in the abdomen. He thought it possible that the patient's being "faint" could have been the consequence of losing blood from an early pregnancy-related complication or significant menstrual blood flow. Dr Nespolon thought it would have been more appropriate for the respondent to have taken a menstrual history. 3. There is evidence that the respondent said that he believed Patient A to be a male. In that case, he might have thought that the patient was bleeding from the anus. Dr Nespolon thought the language used by the respondent was not appropriately framed. 4. It was Dr Nespolon's view that the respondent's conduct "was significantly below what is reasonably expected of a practitioner with the same training or experience as the practitioner complained about at the time of the events the subject of the complaint and invites strong criticism". 5. The members of the Tribunal are satisfied that the particulars alleged in paragraph 1 have been established. We accept the evidence of Patient A in respect of these particulars and we accept the opinion of Dr Nespolon. 6. Particular 2 is in these terms: 2. On 28 July 2014 the practitioner inappropriately and without any clinical indication requested Patient A to: (a) remove his pants; (b) remove his underpants; (c) roll over from his back to his side. 1. In his report, Dr Nespolon wrote that: If the patient were believed to have some rectal bleeding, examining the anus for hemorrhoids (for example, the most common cause) would be appropriate. The patient would not need to remove completely their pants. All the patient would need to do is to pull their pants and their underpants about 10cm below the inferior line of the gluteal muscles. Patients classically have their anal examination in the left lateral position. The patient would not need to remove their shoes to take their pants off. 1. Dr Nespolon noted that there was no history to suggest bleeding from the genitals or anus and as a consequence there was no need to examine the anus or the genitals. 2. He was of the view that the respondent's conduct was significantly below what is reasonably expected of a practitioner with the same training or experience and invites strong criticism. 3. Two members of the Tribunal are of the view that there was a clinical indication for the requests made by the respondent. Two, including the presiding member, are of the view that the opinion of Dr Nespolon taken together with the evidence of Patient A, should be preferred. The latter two are satisfied the respondent requested Patient A to remove his pants and underpants and to roll from his back to his side. They are also of the view that there was no legitimate reason for the request when the primary purpose of the consultation was for a sore finger. 4. Section 57(3) of the Civil and Administrative Tribunal Act 2013 (the CAT Act), provides that where the Tribunal members are equally divided, the opinion of the presiding member prevails. Accordingly, particulars 2(a), (b) and (c) have been established. 5. Particular 3 is: 3. On 28 July 2014 the practitioner inappropriately and without any clinical indication touched Patient A's buttocks for up to approximately two minutes. 1. Three members of the Tribunal thought it would be appropriate to touch the patient's buttocks to roll him over. However, they are not satisfied that the touching lasted for two minutes. 2. Accordingly, this particular has not been established. 3. Particular 4 is as follows: 4. On 28 July 2014 the practitioner inappropriately and without any clinical indication touched Patient A's left breast in circumstances where: (a) Patient A had not complained of any breast symptoms; (b) he did not seek permission to examine Patient A's breast (c) he touched Patient A's breast for up to approximately one minute; (d) the touching included squeezing Patient A's breast; (e) by reason of actions (a) to (d) above, engaged in inappropriate behaviour of a sexual nature in relation to Patient A. 1. Dr Nespolon was invited to provide an opinion on the appropriateness of the respondent moving his right hand along Patient A's body until he reached the breast; his left hand remaining on the middle of the patient's buttocks. He expressed the view that the only possible circumstance he could surmise would be "if the patient was about to fall off the couch, either during the examination, if the patient was required to roll over onto their back or when the patient is getting off the couch". Depending upon where a doctor were standing at the time, Dr Nespolon could envisage the doctor putting both hands on the patient. If the patient continued to roll then the hand could potentially touch a patient's breast but the hand on the buttock would then be trapped under the patient. 2. Dr Nespolon went on to say that most right handed doctors, when they examine a patient, would have the patient lying in the left lateral position to examine the anus. With the doctor standing behind the patient, facing the patient, the doctor's right hand would be on the buttock. So that, if these circumstances occurred, he said the doctor's right hand would be on the buttock and the left hand on the upper part of the patient. The doctor would be required to twist around to undertake the manoeuver so described. While this might be able to prevent the patient from falling, it would be a very awkward position for the doctor to leave the left hand on the patient's buttock and move the right hand all the way up to the patient's breast. 3. It is correct that Patient A had not complained of breast symptoms, but a majority of the members of the Tribunal are of the view that he had made complaints which, on clinical grounds, would justify a chest examination. The records of the practice from 28 July 2014 note that the patient had been experiencing dizziness and fogginess for a day. A respiratory examination was described as showing no abnormality. It is correct as alleged in particular 4(b), that the respondent did not seek permission to examine Patient A's breast. The majority of the Tribunal are of the view that while the respondent may have touched the left breast of Patient A, it was part of a clinical examination justified by the complaints made. 4. Particulars 4(a) and (b) have not been established. 5. Particular 4(c) alleges that the respondent touched Patient A's breast for up to approximately one minute. The Tribunal is not satisfied that the touching of the patient's breast endured for approximately one minute, though are of the view that the breast was touched. This particular is not established. 6. In respect of particular 4(d), that is, that the touching included squeezing Patient A's breast, the Tribunal is not satisfied that this occurred. The reason for that conclusion is that squeezing a breast would, in the opinion of a majority of the members, be a painful experience, but in his evidence and in his statement to the police, Patient A indicated that squeezing of the breast did not hurt. Accordingly, particular 4(d) has not been established. 7. A finding that particular 4(e) has been established depends upon a finding that particulars 4(a) to (d) inclusive have been established. In the light of the opinion of the majority of the Tribunal, particular 4(e) has not been established. 8. Particular 5 is as follows: 5. On 28 July 2014 the practitioner inappropriately and without clinical indication examined Patient A's pelvic region in that he: (a) asked Patient A to pull his underwear down; (b) asked Patient A to keep his feet together and bend his knees outwards; (c) touched Patient A's labia majora and spread it open; (d) engaged in the conduct particularised at (c) above without wearing gloves; (e) touched Patient A's vaginal opening for up to approximately one minute; (f) engaged in the conduct particularised at (e) above without wearing gloves; (g) by reason of actions (a) to (f) above, engaged in inappropriate behaviour of a sexual nature in relation to Patient A. 1. The evidence of the occurrence of the facts alleged in particular 5(a) come from Patient A himself. Two members of the Tribunal are not satisfied that this particular has been established. Two, including the presiding member, are of the view that it has. They accept the evidence of Patient A. Accordingly, in accordance with s 57(3) of the CAT Act, this particular is found established. 2. The position that the respondent asked Patient A to take is one in preparation for a vaginal and pap smear examination. Two members of the Tribunal are of the view that the description by Patient A is too technical and likely to be related to information acquired by the patient during nursing training and less likely by events that have occurred during the consultation. For this reason, those members are of the view that particular has not been established. However, two members of the Tribunal, including the presiding member, are of the view that particular 5(b) has been established. They accept the description given by Patient A. 3. In accordance with s 57(3) of the CAT Act particular 5(b) is established. 4. Particular 5(c) alleges that the respondent touched Patient A's labia majora and spread it open. A majority of members of the Tribunal are of the view that this particular has not been established. They come to this conclusion based upon their assessment of the reliability and accuracy of the evidence of Patient A and his description, which would be beyond his knowledge and experience. 5. It follows that particular 5(d), that is, that the respondent engaged in the conduct above described without wearing gloves, has not been established. 6. Particular 5(e) alleges the respondent touched Patient A's vaginal opening for up to approximately one minute. For the reasons earlier given in respect of sub-paragraphs 5(c) and (d), a majority of the Tribunal is not satisfied that this particular has been established either as to touching or as to time. 7. In light of the above findings, a majority of the Tribunal is of the view that particulars 5(f) and (g) which follow have not been established. 8. Particular 6 is as follows: 6. On 28 July 2014, prior to administering an injection to Patient A in his buttocks the practitioner inappropriately: 1. requested that Patient A pull down his pants and underpants; 2. placed his hand on Patient A's back. 1. The Tribunal is not satisfied that this particular has been made out. Accepting the facts alleged to have been established, the Tribunal is of the view that the injection was not administered inappropriately and the request to pull down pants and underpants and placing his hand on the patient's back were appropriate. 2. Particular 6 has not been established. 3. Particular 7 is as follows: 1. On 28 July 2014 after administering an injection to Patient A in his buttocks the practitioner inappropriately and without clinical indication: (a) touched Patient A's buttocks; (b) inserted his finger into Patient A's anus for up to approximately two minutes; (c) engaged in the conduct particularised at (b) above without wearing gloves; (d) by reason of actions (a) to (c) above, engaged in inappropriate behaviour of a sexual nature in relation to Patient A. 1. In respect of particular 7(a) the Tribunal is not satisfied that it was inappropriate and without clinical indication for the respondent to touch Patient A's buttocks after administering an injection. 2. In respect of particular 7(b) a majority of the Tribunal are of the view that the respondent did not insert his finger into Patient A's anus, as a rectal examination in that position would be very difficult to perform and would cause significant discomfort, if not pain. Patient A did not report pain in the initial complaint. 3. Particular 7(b) has not been established. 4. A finding of particular 7(c) depends upon an affirmative finding of particular 7(b). Such a finding has not been made and accordingly particular 7(c) also has not been established. 5. It follows also that particular 7(d) has not been established. 6. Particular 8 is in the following terms: 1. On 28 July 2014 after administering an injection to Patient A in his buttocks the practitioner inappropriately and without clinical indication: (a) touched Patient A's labia majora; (b) engaged in the conduct particularised at (a) above without wearing gloves; (c) inserted a finger in Patient A's vagina; (d) engaged in the conduct particularised at (c) above without wearing gloves; (e) by reason of actions (a) to (d) above, engaged in inappropriate behaviour of a sexual nature in relation to Patient A. 1. Prior to administering the injection the respondent asked Patient A whether he would prefer it to be administered in his arm or in his bottom. He also said that in the bottom was best. He then pulled down Patient A's pants and underpants to knee level. The respondent told him to bend over the bed (the examination couch) and, having done so, was pushed further down. 2. Patient A has given evidence that the respondent put the needle down and having done so put his hands on his buttocks, squeezing and feeling them. He spread the cheeks apart and touched Patient A's anus. Patient A said that he could feel that the respondent had no gloves on. Patient A then felt the respondent's finger go into his anus and then felt the respondent's finger go into his vagina. 3. In respect of particular 8(a), the evidence of Patient A is that having felt the respondent's finger go into Patient A's vagina he was touching outside as well. A more clinical description of the respondent's actions was given in a statement to the police on 11 August 2014. Though at the time Patient A had not identified the respondent as the attending doctor, we are satisfied it was the respondent. The respondent said: Bend completely over. Patient A said: I bent over and he pushed me down so that my stomach was flat on the bed. He put the needle and the alcohol swab on the bedside table next to my right side. He then placed both hands on my buttock cheeks. He slid his hands towards my buttock cracks and he spread my cheeks apart. I could still feel he was not wearing any gloves. One hand stayed on my buttock and his other hand slid down towards my anus. I felt a finger go a short way into my anus hole. I could feel the fingers were probing around the hole and I felt really scared and frightened and I froze. His other hand stayed on my buttock cheek. This happened for a few minutes although it felt like forever. I felt like I was just stuck there. He slowly pulled his finger out of my anus and then moved towards my vaginal opening. He put his finger into my vaginal opening and used his other fingers to touch my labia majora. I could feel that he was feeling inside my vagina. He did that for a few minutes. 1. Two members of the Tribunal, including the presiding member, are satisfied that particulars 8(a) and (b) have been established. They accept the evidence of Patient A. By operation of s 57(3) of the CAT Act, these particulars are established. 2. A majority of members of the Tribunal is not satisfied that particular 8(c) has been established. The reason for that is because of the position that Patient A had adopted and differences in his evidence in respect of standing on the stool, they believe there was a reconstruction. 3. It follows that particulars 8(d) and (e) have not been established. 4. Particular 9 is: 1. On 28 July 2014, the practitioner inappropriately and without clinical indication administered an injection of clear fluid to Patient A. 1. The Tribunal is satisfied that the respondent did administer an injection of clear fluid to Patient A. However, there is no recorded clinical indication, nor any other reason, for his so doing and accordingly we are satisfied that this particular has been established. 2. Particular 10 is: 10. On 28 July 2014, the practitioner inappropriately failed to refer to Patient A's clinical records prior to examining him. 1. This particular has been admitted by the respondent in evidence before the Medical Council and on the appeal and we find it established. His admission is justified. 2. Particular 11 is in these terms: 11. On 28 July 2014, the practitioner did not conduct an appropriate medical examination of Patient A given the presenting symptoms in that he: (a) did not examine Patient A's finger; (b) did not clarify the kind of "dizziness" Patient A was experiencing; (c) conducted a respiratory examination: (i) without clinical indication; (ii) without requesting Patient A to lift up his clothing; conducted as [sic] ECG on Patient A: (i) without clinical indication; (ii) in circumstances where Patient A's blood pressure and pulse were within the normal range; failed to document a relevant history for Patient A. 1. Patient A has given evidence that he informed the respondent that he had a sore finger and that had been present at the practice two days earlier. When interviewed by the police and in a statement provided by his solicitors to the applicant, the respondent denied that Patient A had mentioned his finger. We are satisfied that Patient A attended the surgery to have his sore finger attended to and was seen by the respondent. The clinical notes are sparse but there is no mention of the respondent having examined the finger of Patient A on 28 July 2014. 2. We are satisfied that particular 11(a) has been established. 3. We are also comfortably satisfied that particular 11(b) has been established. All that is recorded in the patient notes is that Patient A attended because "he has been having dizziness and fogginess for a day". There is no indication that the respondent sought further information in relation to the dizziness of Patient A, nor does the evidence of Patient A suggest that any inquiry was made by the respondent. 4. In respect of paragraph 11(c) a majority of the Tribunal is of the view that there was a clinical indication to conduct a respiratory examination on the basis that Patient A may have had influenza. In a statement made by the respondent, bearing date 2 September 2014, the respondent, amongst other things, said: the notes indicate the patient complained to me of dizziness and fogginess for one day. They indicate I performed a respiratory examination which I do by auscultation with a stethoscope; an aural examination with an auriscope and looked at the patient's throat by using a tongue depressor and a torch. 1. In the same statement in paragraph 13 the respondent said: I suspected the patient probably had contracted influenza or a cold as many other patients also had at that time. However, given the subjective complaint of dizziness in a relatively young patient I requested the nurse to perform an ECG. 1. A majority of the Tribunal is of the view that there was sufficient clinical indication for the respondent to conduct a respiratory examination and that it was conducted appropriately. 2. Particular 11(c) has not been established. 3. Particular 11(d) alleges the respondent conducted an ECG on Patient A without clinical indication and in circumstances where Patient A's blood pressure and pulse were within normal range. In his report, Dr Nespolon said that he thought it illogical that the ECG was performed, given the subjective complaints of dizziness in a relatively young patient. Dr Nespolon noted that the blood pressure of Patient A and his pulse rate were both normal. He expressed the view that there was no indication for an ECG in this patient and no history or physical examination would suggest that the patient had any cardiac dysrhythmia. He thought this examination was ill directed and seemed to him to be driven by convenience rather than medical need. 4. A majority of the Tribunal disagree with the opinion of Dr Nespolon. They believe that there was a clinical indication justifying an ECG notwithstanding the fact that Patient A's blood pressure and pulse were within normal range. 5. Particular 11(d) has not been established. 6. Particular 11(e) alleges a failure to document a relevant history for Patient A. The notes are in evidence and it is plain that a relevant history has not been documented. This particular is established. 7. Particular 12 of the complaint is as follows: 12. On 28 July 2014 the practitioner inappropriately prescribed Panadeine Forte to Patient A: (a) without clinical indication; (b) in circumstances where the relevant product information sheet cautioned against against [sic] administering the drug in patients with head injury; (c) in circumstances where the most common neurological side effect is "dizziness". 1. There is no recorded clinical indication for the prescription of Panadeine Forte to Patient A. Accordingly, particular 12(a) has been established. 2. The patient's notes indicated that Patient A denied having a head injury. Prescribing Panadeine Forte in that circumstance was not against the product information sheet. 3. Particular 12(b) has not been established. 4. Particular 12(c) causes some challenge. The members of the Tribunal do not see the allegation as constituting a complaint and are unable to come to a conclusion in respect of paragraph 12(c). 5. Particular 13 of the complaint is in these terms: 13. On 28 July 2014 the practitioner failed to keep proper medical records for Patient A in accordance with the requirements of the Health Practitioner Regulation National Law Regulation (NSW) 2010 Schedule 2 in that he failed to record: (a) an adequate history; (b) adequate clinical findings; (c) a diagnosis; (d) a management plan: (e) directions for use, the number of tablets prescribed and any repeats in relation to the Panadeine Forte prescription; (f) any preventative care being undertaken; (g) any follow-up to problems raised at previous consultations. 1. It is plain from looking at the patient records, and it was admitted in the S 150 proceedings, that an adequate history in respect of Patient A has not been recorded. 2. Particular 13(a) is established. 3. As to Particular 13(b) it might be said that a number of clinical findings were recorded but no mention was made of the finger. In that respect, we are satisfied that particular 13(b) has been established. 4. Particular 13(c) alleges the failure to record a diagnosis. None is recorded. That particular is established. 5. Neither was there a management plan recorded, as alleged in paragraph 13(d). This particular has been established. 6. Particular 13(e) the Tribunal finds has not been established. The respondent did give directions concerning the use and number of tablets to be consumed, this notwithstanding the prescription was without clinical indication. 7. We find that particular 13(f), that is, the failure to record any preventative care being undertaken, is not applicable in view of the circumstances and facts of the case. 8. Particular 13(g) is established from the notes themselves. It was admitted by the respondent that he did not look at the earlier entries in the patient notes. The notes speak for themselves. This particular has been established. Findings in respect of Patient A 1. During the course of the submissions by counsel for the applicant, it was urged upon us that we should make findings both of unsatisfactory professional conduct and of professional misconduct against the respondent. It was put to us that a finding of professional misconduct would be available in the event that we found that any of particulars 4, 5, 7 and/or 8 were proved individually or in any combination. If none of particulars 4, 5, 7 and/or 8 were found proved and findings were made on particulars which go beyond the account of the respondent, a combination of particulars could amount to professional misconduct. 2. We are satisfied the respondent is guilty of unsatisfactory professional conduct. Having regard to s 57(3) of the CAT Act and having found particulars 5(a) (pulling down underwear), 5(b) (keeping the patient's knees together and bending knees outwards), 8 (without clinical indication (a) touching the patient's labia majora and (b) without wearing gloves), we find the respondent guilty of professional misconduct. 3. At the conclusion of submissions it was suggested, and the Tribunal agreed, that depending upon the findings made, these proceedings would be adjourned to hear submissions on appropriate orders. PATIENT B 1. As earlier noted, Patient B is a clinical psychologist and because of her poor state of health, her evidence was accepted in written form. She was unfit to attend personally and give evidence, nor to give evidence by video link or telephone. 2. On 4 March 2015 the applicant wrote to the respondent informing him that a complaint had been made against him by Patient B, and on 5 March 2015 a Notice under s 34A of the Health Care Complaints Act 1993 was served upon the respondent by email. That notice required the respondent to provide information by responding to the allegations of Patient B which are embodied in the complaint made by the applicant. We are satisfied the respondent received Patient B's correspondence and also received the complaint and documents in respect of Patient B. 3. On 25 March 2015 Mr David Brown, solicitor (not the solicitor who acted in the s 150 proceedings), informed the applicant by email that he had been instructed to act for the respondent, that he had difficulty in contacting the respondent and that he understood the respondent would not be back in Australia until 16 May 2015. Earlier correspondence mentioned the respondent's absence overseas. Mr Brown expected there might be delay in responding to the s 34A Notice. In the result there has been no response to the Notice and, as earlier noted, it is probable that the respondent has not returned to Australia. 4. The complaint against the respondent in respect of Patient B is set out hereunder. Dr Saeid Saedlounia ("the practitioner") of an unknown address being a medical practitioner formerly registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. BACKGROUND TO COMPLAINT ONE On 27 April 2014 Patient B attended the Medical Centre and asked to consult with the first available medical practitioner. Patient B wanted a repeat script for her thyroid medication. Patient B had previously been diagnosed with breast cancer and had undergone extensive treatment. On 4 December 2014 Patient B attended the Medical Centre as she needed a repeat script for her thyroid medication and a specialist referral for a skin cancer assessment. PARTICULARS OF COMPLAINT ONE 1. On 27 April 2014 the practitioner inappropriately: (a) consulted with Patient B when he knew that Patient B was his domestic partner's treating psychologist; (b) attempted to discuss with Patient B information arising from Patient B's consultation with the practitioner's domestic partner when Patient B had asked for a recommendation for a therapist for the practitioner, using words to the following effect: "you know how you recommended that I see your friend Practitioner A, well she takes several months to get into." 2. On 27 April 2014, during a consultation, Patient B said words to the effect of: "I'm having a revision to the implant then a nipple reconstruction. Practitioner B my current surgeon has just started doing these procedures and I would be comfortable with him doing it". The practitioner inappropriately responded in that he: (a) laughed; (b) said words to the effect of "you must have some kind of special relationship with Practitioner B that you want him to do your nipples"; (c) engaged in the conduct set out at (a) and (b) in circumstances where Patient B's two children were present at the consultation. 3. On or prior to 30 October 2014 the practitioner breached Patient B's confidentiality in that he disclosed to his domestic partner that Patient B was one of his patients at the Medical Centre. 4. On 22 November 2014 Patient B wrote to the practitioner stating: "I am . . . writing explicitly [to] ask you to not make contact with me in any form, or for any reason (personal or professional)". On 4 December 2014 the practitioner inappropriately failed to comply with Patient B's request in that he approached and spoke to Patient B while she was in the waiting room at the Medical Centre. 1. On 16 December 2014 Patient B lodged a complaint against the respondent. Attached to that complaint was a statement of Patient B which, together with all documents relied upon by the applicant, has been served on the respondent. 2. Relevantly, that statement said: 27/04/14 On the 27th of April I attended the Rouse Hill town Medical centre as a patient and asked to see the first available doctor. I needed a repeat script for thyroid medication. Dr Saeid Saedlounia called me in. I had my two children with me ([X] – 11 and [Y] – 10). Dr Saedlounia was extremely flattering to me about feedback he had heard about me as a psychologist from "Persian clients" He spoke about me with such enthusiasm that I became uncomfortable. Dr Saedlounia then said to me, "You know how you recommended I see your friend Gemma Gilchrist – well she takes months to get into". I felt a chill go down my spine because the only person I had given the details of clinical psychologist Gemma Gilchrist to, was a client I am treating at my practice (client "X"). Client "X" had asked me to recommend a therapist for her partner to address concerns I cannot disclose here because of client confidentiality. In other words, Dr Saedlounia's disclosure to me identified him as directly connected to client "X" – a case I have some concerns about. As an aside – some points to clarify: ● Dr Saedlounia is NOT the referring doctor of client "X". ● Client "X" has not given permission to share any information about their treatment or the serious concerns I have about their case. ● I have sent a separate notification to AHPRA regarding the advice I have sought regarding the serious concerns I have with the client "X" case, and Dr Saedlounia's self-disclosed connection to it. I had my children in the medical room with me during this discussion with Dr Saedlounia and I felt instantly stressed and protective of them. I wanted to keep things clean and to leave as soon as possible. I kept a friendly demeanor and said to Dr Saedlounia: "She [Gemma] is very popular". He then asked me about my breast cancer treatment, which is not the direct reason I was there, but the GPs at the practice ask such questions so I answered him. I said I had more reconstruction scheduled this year. He asked me the nature of the next procedure. I told him I was having a revision to the implant and then a nipple reconstruction. He asked me which doctor would do the nipple reconstruction, and I said that possibly Dr [L], but Dr [F], my current surgeon, has just started doing these procedures and I would be comfortable staying with him. He laughed loudly, and, in a suggestive way, commented with innuendo, "You must have some special kind of relationship with Dr [F] that you want him to do your nipples". My children were an audience to this. I felt "creeped out" by Dr Saedlounia. I told my husband immediately afterwards that the session with Dr Saedlounia was "creepy". I decided not to see Dr Saedlounia again at the practice because he made me uncomfortable, and wanted to avoid any conflict of interest with regards to the treatment of client "X". The medical practice is very large and so it was relatively easy to avoid Dr Saedlounia to be treated by a different GP. 30-10-14: At my workplace, client "X" disclosed to me in a therapy session that they have been the patient of Dr Saedlounia. (I can't give details of what was said because of client confidentiality. Therefore, it is apparent to me that Dr Saedlounia has disclosed my private medical consultation to my client "X" and thus disregarded my rights as a patient.) For various additional reasons that came out of client "X's" session (that client "X's" confidentiality precludes me disclosing), I became concerned about Dr Saedlounia having any contact with me or knowing where I live. I spoke to Allison, the practice manager of the Rouse Hill Town Medical Centre where I am a patient, and I asked her to take my personal address out of their system. Allison assisted with this and replaced my home address with my work address. 1. On 22 November 2014, having complained to Police about the respondent's conduct, Patient B, on the advice of a member of the Police Service, wrote to the respondent requesting that he not contact her again, but on 4 December 2014, while seeking a repeat prescription at the practice, the respondent approached her in the waiting area and contrary to her express wishes, engaged in conversation. She was then with her husband and two children. 2. It should be emphasised that when Patient B attended the respondent as a patient on 27 April 2014, her children were of such an age to understand what was being discussed. Patient B's treatment for breast cancer had been significant and distressing. The remarks made by the respondent displayed an utter lack of professional judgment. Professional judgment was lacking in his reference to the patient's having recommended to one of her clients that the respondent see a clinical psychologist. She had been treating the respondent's domestic partner and the recommendation that the respondent see a psychologist had been made in consultation with the respondent's partner as a result of concerns that Patient B had with her client's case. Understandably, Patient B then determined not to see the respondent at the practice. 3. In October 2014 the respondent's domestic partner disclosed in a therapy session that she was aware that Patient B was a patient of the respondent. A breach of Patient B's confidentiality in the patient doctor relationship was demonstrated by that disclosure. It is perfectly understandable that Patient B then took steps to have her residential address removed from the records of the practice and her professional address substituted. 4. Following a further therapy session with the respondent's partner on 9 November 2014, a nurse, on behalf of the respondent, sought details of the psychologist that Patient B had originally been asked about by the respondent in April. 5. Having taken advice, Patient B wrote both to the practice and to the respondent again to request no further contact with the respondent. Despite this request, on 4 December 2014 when at the practice, the respondent approached her in what she regarded as an intimidating manner. Again, her husband and children were present. 6. It is submitted by the applicant that Patient B's evidence amply demonstrates a lack of judgment in the respondent as well as a failure to recognise both personal and professional boundaries, notwithstanding the request by the patient. Dr Nespolon's report expresses the view that the conduct of the respondent fell significantly below the appropriate standard and attracted his strong criticism. We agree. 7. We are satisfied that knowledge of the complaints in respect of Patient B has come to the attention of the respondent. We are satisfied from material emailed to him by the applicant that the respondent has been given notice of this inquiry and of the evidence presented to the Tribunal. 8. We are satisfied that each particular has been established and we are, accordingly, of the view that the respondent is guilty of unsatisfactory professional conduct as alleged in the complaints made in respect of Patient B. CONCLUSIONS 1. In respect of Patient A we are satisfied particulars 1, 2, 5(a) and (b), 8(a) and (b), 9, 10, 11(a), (b) and (e), 12(a) and 13(a), (b), (c) and (g) have been established. 2. We make no findings in respect of particulars 12(c) and 13(f). 3. We are not satisfied particulars 3, 4(a), (b), (c), (d) and (e), 5(c), (d), (e), (f) and (g), 6, 7(a), (b) and (c), 8(c), (d) and (e), 11(c) and (d), 12(b) and 13(e) have been made out. 4. In respect of Patient B we are satisfied all particulars have been established. FINDINGS 1. We make a finding of unsatisfactory professional conduct against the respondent in respect of Patient A and Patient B. 2. We make a finding of professional misconduct against the respondent in respect of Patient A. 3. We will hear submissions on the appropriate orders sought, on a date to be fixed. 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 January 2017