Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dr Safi (No2) [2017] NSWCATOD 69 Hearing dates: 6,7,8,9 and 10 February 2017, 6 and 7 April 2017 Date of orders: 09 May 2017 Decision date: 09 May 2017 Jurisdiction: Occupational Division Before: F Marks ADCJ Presiding Member Assoc Professor Dr H Haikal-Mukhtar Professional Member Dr G Yeo Professional Member M Kelly Community Member Decision: The respondent is found guilty of the conduct set out in Complaint Two Particulars 1 (a) and (b), 2 and 3 (a), (b) and (c). The respondent is found guilty of professional misconduct set out in Complaint Four in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration Otherwise Complaints and Particulars not made out. The proceedings are stood over for stage 2 hearing and application for interim orders at 10 AM on 20 June 2017. Catchwords: Medical practitioner-internal vaginal examination-held carried out in part constituting misconduct of a sexual nature-finding of professional misconduct-stood over for stage 2 hearing to determine protective orders Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336 HCCC v Do [2014] NSWCA 307 HCCC v Litchfield (1997) 41 NSWLR 630 Texts Cited: "Recommendations from the Scientific Study of Human Memory." British Psychological Society June 2008 Category: Principal judgment Parties: Health Care Complaints Commission (Complainant) Dr Mohamed Payenda Zhouand Safi (Respondent) Representation: Counsel: R Mathur (Complainant) P Strickland SC (Respondent Solicitors: Health Care Complaints Commission (Complainant) HWL Ebsworth (Respondent) File Number(s): 1620153 Publication restriction: Non-publication order with respect to the identity of or any material which might tend to identify Patient A REASONS FOR DECISION Introduction 1. These proceedings arise out of complaints brought by the Complainant, the Health Care Complaints Commission ("HCCC") against the Respondent, Dr Mohamed Payenda Zhouand Safi alleging unsatisfactory professional conduct and professional misconduct as defined in the Health Practitioner Regulation National Law (NSW) ("the National Law"). The allegations centre around and arise out of a consultation conducted by the Respondent with Patient A on 9 February 2012, and allege inter alia misconduct of a sexual nature. 2. The proceedings are constituted by an Amended Complaint, which is set out below. We have appended within the document the response of the Respondent as a means of clarifying the area of controversy to be determined by us: The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Mohamed Payenda Zhouand Safi ("the practitioner") of ( a suburb of Sydney, NSW) being a medical practitioner registered under the National Law, COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B(1)(a) of the National Law in that the practitioner has engaged in conduct that demonstrates the knowledge, skill 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. Each Particular in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars Particulars 1 and 2 are taken together, a finding of unsatisfactory professional conduct is justified BACKGROUND TO COMPLAINT ONE The practitioner was first registered in New South Wales in 1999. The practitioner commenced practising as a general practitioner at Argyle Street Medical Centre, Parramatta ('the Practice') in 2004 and continued to practise there until July 2012. Patient A attended the Practice on 9 February 2012 and consulted with the practitioner ('the consultation'). PARTICULARS OF COMPLAINT ONE 1. Prior to performing a pap smear on Patient A during the consultation, the practitioner failed to: (a) ask Patient A whether she had any abnormal bleeding, vaginal discharge or dyspareunia;(This is admitted) (b) obtain an adequate history in regards to Patient A's previous pap smears;(denied) (c) offer a chaperone to Patient A for the pap smear; (the fact is denied but the respondent denies that he should have done so) and (d) properly explain the procedure to Patient A in order to obtain her informed consent. (the respondent says did explain this, but concedes he could have explained more) 2. Prior to performing a bimanual examination on Patient A during the consultation, the practitioner failed to: (a) obtain an appropriate sexual and gynaecological history from Patient A; (the respondent says he did obtain such a history but could have obtained more) (b) offer a chaperone to Patient A for the bimanual examination; (the respondent admits he failed to do so, but says this was not necessary) and (c) properly explaining the procedure to Patient A in order to obtain her informed consent. (the respondent says he did explain this but admits he should have done more to explain the procedure) BACKGROUND TO COMPLAINT TWO The background to Complaint One is repeated. COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(l) of the National Law in that the practitioner has 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 PARTICULARS OF COMPLAINT TWO (The respondent denies this complaint in its entirety) 1. During the consultation, whilst performing a vaginal examination on Patient A the practitioner: (a) inappropriately touched Patient A's clitoris with his fingers and rubbed it with one or two fingers in a circular motion for one to two minutes; (b) inappropriately moved his fingers to the entrance of Patient A's vagina and rubbed it in a circular motion for about two minutes; and (c) inappropriately inserted up to three fingers into Patient A's vagina and moved them in a circular sweeping motion for about two minutes. 2. By reason of any of the matters referred to in Particulars 1 above, the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A. 3. At the end of the consultation, the practitioner: (a) hugged Patient A; and (b) kissed Patient A on her lips with an open mouth; and (c) sucked on her lips. COMPLAINT THREE is guilty of unsatisfactory professional conduct under s139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (NSW) Regulation 2010 BACKGROUND TO COMPLAINT THREE The background to Complaint One is repeated. PARTICULARS OF COMPLAINT THREE (All of these particulars are admitted except for 1(c).) 1. The practitioner failed to maintain adequate records in relation to the consultation of 9 February 2012 in accordance with Clause 7 and Schedule 2 of the Health Practitioner Regulation (NSW) Regulation 2010 in that the practitioner: (a) failed to record an adequate patient history; (b) recorded an inadequate description of Patient A's presenting problem; (c) recorded inaccurate information in relation to his findings; (d) failed to record information regarding obtaining informed consent for the pap smear and bimanual examination; (e) did not record any diagnoses or provisional diagnoses; and (f) did not record any plan of treatment for Patient A. COMPLAINT FOUR is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. 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 the suspension or cancellation of the practitioner's registration BACKGROUND TO COMPLAINT FOUR The background to Complaint One is repeated. PARTICULARS OF COMPLAINT FOUR (This complaint is denied in its entirety) 1 Complaints One, Two and Three and the particulars thereof are repeated and relied upon both individually and cumulatively. 1. The issue in the proceedings concerns what occurred in the respondent's rooms on 9 February 2012. The patient, known as Patient A for the purpose of the proceedings was, at the time of the consultation age 30. She was born in Nepal and was at that time married with three children the youngest of whom was 8 months old. She has resided in Australia since February 2008. Patient A and her family had been patients of the respondent at the medical centre where he worked since October 2011. She had visited the practice on a number of occasions when her children had become ill and she had previously consulted with him personally on 7 and 10 November 2011. 2. Patient A alleges, and the respondent vehemently denies that in the course of conducting an internal vaginal examination at the respondent's rooms on 9 February 2012 the respondent inappropriately and without any clinical medical reason rubbed her vagina and her clitoris. Following a complaint made by Patient A to the police, she was lawfully fitted by a police officer with a recording device and with that device in operation she attended the respondent again in his rooms on 29 February 2012, and had a conversation with him. The conversation was recorded, a written transcript is available, and the recording itself has become evidence in the proceedings. The parties are diametrically opposed about the meaning of what was said in the course of that recorded conversation, especially whether or not it corroborates the allegations made by Patient A about what happened at the consultation on 9 February 2012. 3. The respondent was charged by the police, a committal hearing was held and eventually the respondent defended criminal charges at a hearing conducted in the District Court of NSW, in which he was acquitted. Both Patient A and the respondent have made written statements which are in evidence in these proceedings. Patient A has given evidence in the committal proceedings and in the criminal trial and before this Tribunal. The respondent has given evidence in the criminal trial and in these proceedings. 4. The only evidence about what occurred during the course of the consultation and about the vaginal examination conducted by the respondent on 9 February 2012 is that of the respondent and Patient A. They were the only persons present. They were also the only persons present during the course of the later, recorded, consultation on 29 February 2012. In circumstances where the sexual nature of the conduct of the respondent is fiercely in issue, the credibility of each of these persons has been vigourously pursued by counsel for each of the parties. To this end there has been an exhaustive examination of all of the evidence, both in written and oral form given by each of them in the several proceedings and in these proceedings to ascertain whether and to what extent there have been any inconsistencies which would create some doubt about the veracity of their evidence and the accuracy of their recollections about what occurred. In order to deal with the detailed submissions made on behalf of each of the parties, it will be necessary for us to examine the evidence in some little detail. Furthermore, it will be necessary for us to examine in great detail what was said by each of Patient A and the respondent during the course of the recorded consultation on 29 February 2012 so as to determine whether what was said is supportive or destructive of the assertions made by each of them. Even though these proceedings arise out of one alleged incident of misconduct only, they have occupied many hearing days and have necessitated lengthy reasons for decision. We do not make this latter comment critically of either party or their legal representatives, but merely to explain why we have been compelled to undertake such a detailed examination and analysis of the evidence for the purpose of resolving these proceedings. The statutory matrix 1. Relevantly, sections 139B (part only) and 139E of the National Law are in the following terms; Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) "Unsatisfactory professional conduct" of a registered health practitioner includes each of the following- (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. …………………………………………………………. (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. The Standard of Proof 1. Before commencing our examination of the evidence given in the proceedings, it is appropriate to set out the relevant principles which will govern our determination of the factual issues. The principles themselves are not controversial, but their application will cause difficulty, as is the case in these proceedings. 2. It is generally accepted that we are required to be "comfortably satisfied" that the matters in the complaints have been established on the balance of probabilities. The well-known principles established in Briginshaw v Briginshaw [1938] HCA 34; (1983) 60 CLR 336 apply. At 361 – 363 Dixon J, as his Honour then was, said: Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish L.J. says: "No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct" (Panama and South Pacific Telegraph Co. v. India Rubber, Gutta Percha, and Telegraph Works Co.). In the same way, in dealing with the question in what county the publication of a criminal libel had taken place, Best J. said: "I admit, where presumption is attempted to be raised, as to the corpus delicti, that it ought to be strong and cogent; but in a part of the case relating merely to the question of venue, leaving the body of the offence untouched, I would act on as slight grounds of presumption as would satisfy me in the most trifling cause that can be tried in Westminster Hall" (R. v. Burdett). It is often said that such an issue as fraud must be proved "clearly", "unequivocally", "strictly" or "with certainty" (Cf. Mowatt v. Blake; Kisch v. Central Railway Co. of Venezuela Ltd.;Lumley v. Desborough). This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues (Doe d. Devine v. Wilson; Boyce v. Chapman; Vaughton v. London and North Western Railway Co.; Hurst v. Evans; Brown v. McGrath;Motchall v. Massoud; Nelson v. Mutton; Gerder v. Evans; sed quœre as to the statement of Swift J. in Herbert v. Poland see, further, Wigmore on Evidence, 2nd ed. (1923), vol. v., p. 472, par. 2498 (2) (1)). But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (citations omitted) 1. Briginshaw involved a consideration of the proof of adultery in family law proceedings. We find the following observation of Dixon J of assistance, albeit that it is applied to considerations of adultery at 368-369: Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find. 1. We shall approach the determination of whether the respondent is guilty of professional misconduct in the manner in which he conducted the vaginal examination consistent with this approach. We have used the words "professional misconduct" deliberately because, as was properly conceded by the respondent, if we find those particulars of the Complaint which are directed to this matter proven to the requisite standard, conduct of that kind would constitute professional misconduct. Patient A's version of events 1. We shall describe in much greater detail what is known about what occurred at the consultation on 9 February 2012. For present purposes, and for the purpose of setting the historical background we observe that Patient A asserts that the respondent conducted his vaginal examination inappropriately and that he hugged and kissed her after the examination. She said that she became upset after the consultation, went to the bathroom and cried. She left after she had composed herself. At first she did not tell her husband what had occurred but later informed him two days later, on the evening of the 11 February 2012. As a result of this discussion, and at the instigation of her husband she went with him to Parramatta Police Station on 12 February 2012 and made a statement to a police officer. Patient A police statement 12 February 2012. 1. This statement was made by her in English without the benefit of an interpreter. In her statement, Patient A said that she consulted the respondent on 9 February 2012 because she had had a stomach ache for three days. It was in the lower part of her abdomen. She attended the respondent alone. After some preliminary conversation concerning her baby, Patient A described her symptoms. The respondent was then asked to lie down on the examination bed. Whilst she remained fully dressed the respondent pushed down "gently" on her stomach. She told him that she felt pain "when he got to the middle of my stomach near my pubic area." There followed a conversation about whether she could have been pregnant, which she denied. The respondent then told her that he would like to perform an internal examination, explaining that it was uncomfortable but that it did not hurt. She said that she agreed. The respondent asked her to remove her pants and underpants which she did after he had pulled a curtain around the bed. 2. Patient A described how the respondent put on gloves and inserted gel into her vagina. He then put "an object" into her vagina and moved it around in a circular motion. She described it as being the size and shape of a pencil. After a few seconds he pulled it out and rubbed the end onto a glass, and then sprayed something onto the glass. She made no complaint about any of the conduct of the respondent to that stage. 3. Patient A said that the doctor then returned to the examination table wearing a glove on his right hand but no glove on his left hand. She said that he then touched her "sensitive part of my vagina" which she identified from a diagram as being her clitoris. She then said "With his right hand he used one of his fingers to touch this sensitive part. He moved his finger around and around in a circular motion. He placed his left hand on the lower part of my abdomen just above my pubic bone. He stood there moving his finger around my sensitive part for 1 to 2 minutes. It was definitely for that length of time. He didn't say anything while he did that and he just looks straight at my vagina while he was doing it. I felt scared and very uneasy. I wanted to push his hand away and question what he was doing but I felt like I had no right to do that because he is a doctor and I am not." Patient A then said that the respondent "moved his finger away from my sensitive part. With two fingers he started to rub around in a circular motion just above the mouth of my vagina." She had identified that part from the same diagram. She then said that the respondent had "rubbed around and around for about 2 minutes. It was definitely for that length of time. He didn't say anything while he did that and he continued to look at my vagina. I don't know why he was doing this to me. It didn't seem like it was a medical examination but I just remained silent hoping that what he was doing was a proper medical test." She then described the respondent moving three fingers around in a circular motion inside her vagina and said that he did this definitely for 2 minutes until someone knocked on the door. The respondent then immediately stopped the examination, wiped her vagina with a tissue, and left the treatment area after pulling the curtain across to cover the bed. She heard a conversation with a lady's voice. 4. Patient A then described seeing a wet patch on the paper near the position of where her vagina had been on the bed. After getting dressed she walked to the respondent's desk and he explained that she would need to do a urine test and gave her 2 plastic containers for this purpose. She said she stood up to leave and at that stage "in one hand I was holding the straps of my handbag and a mobile phone. In the other hand I was holding the piece of paper he had given me. He stepped up to me so that he was standing very close to me and he put both his arms around my shoulders and hugged me. I put my arms loosely around his waist and hugged him back to be polite. I did that for a few seconds and then removed my arms and moved backwards. (The respondent) kept his arms around my shoulders and moved his head forward as I moved backwards. He then kissed me on my lips with an open mouth. My mouth was closed. He sucked on my lips. I kept my mouth shut tight. He continued to kiss me like for 7 seconds." Patient A said that this had lasted for seven seconds because the police officer interviewing her had counted to 7 and she had stopped him when she thought that this approximated the time during which the respondent had kissed her. 5. Patient A then described feeling "very scared" and went to the toilet in the medical centre where she cried. After she had finished crying she took the urine samples for pathology and also had a blood test. 6. She described feeling upset and angry about what had taken place and that she had been "so naive and trusting" of the respondent. Between Thursday night and Saturday night her husband had asked her on number of occasions what was wrong with her and she eventually told her husband on the Saturday night what had happened. Patient A police statement 6 March 2012 1. Patient A made another statement on this date. In it she said that on 29 February 2012 she had attended Parramatta Police Station, and after speaking with a number of police officers had been fitted with a listening and recording device. She then proceeded to the medical centre where the respondent worked, and after waiting about 30 minutes she entered his consulting room and had a conversation with him which was recorded. We shall return to the substance of that recording shortly. 2. In this statement, Patient A's sought to "clarify that my native language is Hindu which is spoken in Nepal my country of origin. English is my second language however, I do have a good grasp of the English language and can converse freely in the English language. I do have some difficulty with the pronunciation of particular words in the English Language. I do have difficulty with the pronunciation of the word "Vagina." She explained that the pronunciation of the "V" sound sounds like a "B", and that this explained why her reference to "Vagina" sounds like "Bezami". There are references in the statements of Patient A and in her evidence to the word "Bezami". Based on her evidence, corroborated by one of the interpreters who was present during the course of the hearing whilst she gave evidence, we are satisfied that wherever Patient A has referred to "Bezami", she may be taken to have referred to "vagina." Patient A police statement 5 September 2012 1. The husband of patient A had given a statement to police officers in which he narrated what he said he had been told by his wife on the evening of Saturday, 11 February 2012. As will be seen, there are inconsistencies between what is set out in the husband's statement as to what he said he was told by his wife and that which Patient A asserts she told her husband. Furthermore, in oral evidence the husband conceded that the contents of his police statement did not accurately reflect what he had been told by his wife. Relevantly, for present purposes, the police statement made by the husband asserted that the respondent had massaged his wife's vagina and clitoris for 3 to 5 minutes. It transpired that this was an estimate that the husband had given to the police officer based on the husband's experience that his wife had usually reached a climax within 3 to 5 minutes. The husband also told the police in his statement that his wife had climaxed during the course of the vaginal examination being conducted by the respondent. Not only did Patient A deny that she had used a time period of 3 to 5 minutes, but she denied also that she had reached an orgasm on 9 February and that she had informed her husband of this. 2. In her statement of 5 September 2012, Patient A referred to a number of matters which she said she had told her husband on the night of 11 February 2012. She emphasised that when she had first mentioned what had happened with the respondent, her husband had rejected her statement, because he could not believe that a doctor would behave in this way. She said she was hurt by this in that her husband was accusing her of lying. Patient A police statement 7 December 2012 1. In this statement, Patient A clarified a number of matters referred to in her earlier statements. Relevantly, she realised that when she attended the respondent on 9 February 2012, she had had her stomach ache for 4 days, rather than 3 days. She also clarified the position of her legs when the respondent conducted the vaginal examination. Patient A police statement 27 June 2013 1. In this statement, Patient A referred to the statement made by her on 12 February 2012 and to a reference to an area which she had described as "just above the mouth of my vagina." There is attached to this statement a diagram provided to her by the police of "female genitalia." She made a notation on the diagram of the clitoris, below the vaginal opening, and below that the "area above the mouth of the vagina." The area was described in the statement as being "the internal surface of the vagina…… above the opening of the vagina which is positioned above the anus." 2. We observe that the language used in this statement is clearly not the language which would be used by Patient A having regard to other statements which she has given in her own words, and our observations of her oral evidence given in these proceedings. It may be assumed that the language used is that of the Senior Constable who assisted her to make this statement. Nevertheless, the language used does not necessarily detract from the information noted by Patient A on the diagram intended to indicate where the respondent inserted his fingers into her vagina as described in her statement of 12 February 2012. Patient A HCCC statement 16 June 2015 1. This statement was made to an HCCC investigator. She commenced the statement by saying that she could not read English very well, but that an officer of the HCCC had read the statements she made to the Police on 12 February 2012, 6 March 2012 and 5 September 2012.. She said those statements were her "true recollection of events" and they were attached to her statement. 2. Patient A then referred to another statement made to the Police on 7 December 2012 at Parramatta Court, "after going through all my previous statements with an interpreter. This statement was to clarify some of the information in my previous statements." She said that she had had previous vaginal examinations by doctors in Nepal, but not in Australia. Her first vaginal examination in Australia was conducted by the respondent. 3. Patient A said that she had had a Pap smear test once in Nepal and vaginal examinations related to her pregnancies as well as one when she was not pregnant. This occurred after her second son was born in 2004 and before she came to Australia in 2008. 4. Annexed to this statement is a diagram which she had drawn of the consultation room used by the respondent. Patient A said that she went by herself to the consultation with the respondent on 9 February 2012. The door to the consultation room was closed, but not locked. She said she had pain in her stomach and marked on a diagram where that pain was. 5. In referring to her communications with her husband after the consultation on 9 February 2012 Patient A said that she did not tell him what happened straight away "because I was worried that maybe he would blame me for what happened. I was worried that he would tell our family in Nepal, and they would think I was not good, because this is what happens in my culture." When she eventually told her husband on the Saturday she said she spoke to him in "my language" and told him that the respondent had touched her vagina and kissed her and demonstrated this to him. In relaying what she told her husband Patient A said "I said he touched my sensitive part, he played with my vagina, and he kissed me. I said he played with my vagina for between 5 and 10 minutes. I said he play with my vagina until someone knocked on the door. My husband asked me questions about how I was feeling when this was happening. I said I felt really uncomfortable with what the doctor was doing, and I wanted to push his hand away and telling to stop. That night, my husband told me he didn't believe me, he said a doctor wouldn't do those things. I asked him not to tell anyone else." 6. Patient A then narrated that she went to the police station the following day at the insistence of her husband. She referred to a conversation with police officers when she was asked to return to see the respondent wearing a listening device and was instructed how to behave during the consultation. She said that she was told "to talk to (the respondent) normally, softly, nicely, politely – not to get angry with him." 7. In that statement Patient A denied that she had at any time pulled down her pants to show her vagina during the course of this subsequent consultation with the respondent, and further denied that she had moved her chair at any time to block the door. She said the only time she moved to chair was when she got up to leave and she had to move her chair back "a little bit to stand up, but I do not believe it was blocking the door. My chair was in the same position it was during the previous consultation." Patient A HCCC statement 19 August 2015 1. In this statement patient A said "I cannot read English very well, so (an HCCC officer) has read me a statement I made to the Police 7 December 2012. I made reference to this statement in point 6 of my statement to the Commission of 16 June 2015." Patient A also said that the statement which she made to the police on 7 December 2012 was her "true recollection" of what occurred and that she had nothing further to add to it. Patient A evidence at committal hearing 1. Patient A gave evidence in a committal hearing on 11 December 2012 and was subjected to cross examination about what she had told her husband about the consultation with the respondent on 9 February 2012. In general terms, she said that her husband noticed that she was behaving in an unusual fashion until the time of the discussion which he had with her on the evening of 12 February 2012. She said that at first she was unable to speak to her husband "because of our religion, our culture, I couldn't express myself openly but because he is my husband about all these things I have to tell him at the end." She said that she told her husband that she had gone to see the respondent and that he had touched her vagina and kissed her. She was asked to recall the words that she had used in her discussion with her husband. She said, through an interpreter, "it has been almost a year that this thing has happened. I remember faintly and I can't remember everything clearly. I told him that I had gone to see the doctor because I had some problem in my stomach. I told him that the doctor kissed me. He didn't believe me at first." 2. Patient A was asked further questions directed to differences in the information which she had provided to the police in her statements and the information which she had given to her husband. She said that there were differences between what she had told the police and what she had told her husband. She said that she had given more details to the police than to her husband and that with respect to her husband "I haven't explained everything that happened there because I was really scared of him." 3. When questioned specifically about what she had told her husband in connection with the vaginal examination, she said at first that she did not think she remembered the exact time or for how long the respondent touched her vagina. She thought it was about 2 to 3 minutes. She said further that she had told her husband that the respondent had touched her clitoris for about 5 to 10 minutes. She specifically denied telling her husband that she had experienced any sexual pleasure. Patient A evidence in criminal trial 1. Patient A gave evidence in the respondent's criminal trial commencing on 18 November 2014. In discussing this evidence we shall refer only to those parts which we consider to be of significance in determining these proceedings, whether by way of her evidence as to what transpired on 9 February 2012, or in connection with any relevant discrepancies. 2. The evidence of Patient A concerning the initial part of the consultation on 9 February 2012 was essentially the same as that contained in her police statements. In terms of the examination itself, she repeated the initial portion when the respondent had inserted a pencil -like implement. In terms of the subsequent vaginal examination conducted whilst she was lying on the examination table Patient A said that after the respondent had put a glove on his right hand, and was resting his ungloved left-hand on her stomach just above the pubic area the respondent began to touch her vaginal area, initially her clitoris. She said that in doing so there was "touch and play" and that the respondent was playing with her clitoris. He was rubbing it in a circular motion. Although she could not see what part of his hand the respondent was using she said that she felt that it was his finger. This lasted between one and two minutes. Patient A said that at that stage she felt "very much at unease." She wanted to push his hands away but she was afraid. After a while she said that he commenced using 2 fingers. 3. After rubbing her clitoris, Patient A said that the respondent moved his right hand to the "vaginal opening" being the mouth of the vagina as depicted on a diagram. She said that the respondent began to rub his finger or fingers (she could not say how many), in a circular motion on the mouth of the vagina for around two minutes. At that stage she could see the respondent's face, and he was looking at her vagina. He was using light pressure, it was not painful, but she felt very uneasy and "very scared." She described the respondent's fingers as moving, in the circular motion, touching all of the walls of the vagina. 4. Patient A then described what happened after the internal examination had been interrupted by a knock on the door. The respondent had wiped her vagina and she had got dressed. The respondent handed her 2 containers for pathology tests. She said she then stood up. In one hand she was holding her purse and mobile phone and in the other she had a plastic bottle and piece of paper that had been handed to her. As she came closer to the respondent to leave his surgery she said that he approached her, and put two arms around her and hugged her. She said that as a matter of courtesy "and in compliance with the proper gesture according to our customs" she put her arms very lightly around his waist and then walked backwards. His arms at that stage were around her shoulders. She said that the respondent's head then came forward and he kissed her on her closed mouth. 5. Patient A was examined at some length about whether her own mouth was open or shut at the time that the respondent kissed her. She continued to respond by expressing the adverse feelings that she was suffering at the time. She was then taken to her statement to the police in which she had described the respondent as sucking on her lips. She said she had better recollection of what had occurred at the time that she had made her statement a few days after the incident. She also confirmed how she had estimated the period of seven seconds during which she had said that the respondent had kissed her. 6. In cross examination Patient A vehemently denied that after the vaginal manual examination the respondent again inserted into her vagina an object that looked like a pencil. She also denied that the respondent had inserted more than one implement into her vagina for the purpose of taking a swab. 7. Patient A said in cross examination that she was concerned about the wet patch on the bed. She did not think that it had come from the gel used by the respondent. 8. There was exploration with Patient A in cross examination about the manner in which the respondent had kissed her. She insisted that he had sucked on her lips. She also insisted that the respondent had hugged her as she had described it. There was also clarification in cross examination about the statement that Patient A had made to her husband that the respondent had rubbed her vagina for between 5 and 10 minutes. She said that this referred to the totality of the incident including both the clitoris and the vaginal area. She also conceded that her evidence concerning times was an estimation only and may not have been exact. Patient A evidence in these proceedings 1. Patient A gave lengthy evidence in these proceedings. That evidence by necessity traversed the statements which she had given to the police, her evidence in the committal proceedings, her evidence in the criminal trial and what she had told her husband on the evening of 12 February 2012 about what had occurred at the consultation with the respondent on 9 February 2012. Again, we shall not refer to this evidence in any detail unless the evidence given in these proceedings has some significance for our determination of what occurred, in particular on 9 February 2012 and on 29 February 2012 when Patient A again attended on the respondent with a listening device. 2. Most of the evidence given before us was through the services of a Nepalese interpreter, although from time to time Patient A responded to questions asked in English, in English. It is clear to us, especially from listening to the listening device recording that Patient A has a reasonable command of the English language, at least in the course of conversation, but that she felt more comfortable using an interpreter for the forensic purpose of giving sworn evidence. It is also clear, as conceded by Patient A in her evidence before us that her understanding of conversational English is much greater now than when she attended on the respondent in February 2012. 3. Patient A said that although both she and the respondent spoke English, she was able to understand what he was saying in a general sense, particularly when she had informed him that she did not understand what he was saying and he explained it again. 4. In her evidence, Patient A was clear that she had never had a Pap smear test in Australia since arriving in this country in February 2008. She thought that she might have had such a test once in Kathmandu. 5. We are satisfied that at the time that she gave evidence before us, Patient A was unable to recall the questions which had been put to her by the police officers, and, other than in a general sense, the precise answers which she had given in her statements. Nevertheless, she asserted that the contents of the statements which she gave to the police were true. 6. In cross examination Patient A said that at first she was not sure at the time of giving her evidence before us that the respondent had in fact sucked her lips, but she was adamant that he had kissed her. She thought she may not have appropriately distinguished between kissing and sucking of the lips. However, later in her cross examination she said that she was sure that the respondent had sucked her lips. 7. Patient A denied that she had told her husband that she had climaxed. She also denied giving her husband a timeline of between 3 and 5 minutes and, if she told her husband that there was a timeline of 5 to 10 minutes, that was wrong. She could no longer recall precisely what she had said to her husband at the time. Importantly, she was no longer able to say with any precision at the time of giving her evidence before us how long the examination had lasted and for how long the respondent had engaged in his alleged inappropriate misconduct. 8. Significantly, it was put to Patient A during the course of cross examination concerning the circumstances in which the listening device recording had been carried out that during that consultation she had very quickly pulled the waist band of her pants down to demonstrate what she was asserting had happened. She vehemently denied this. A 1. A is the husband of Patient A. As will have been seen by the evidence given by Patient A he first became involved in the circumstances giving rise to these proceedings on 12 February 2012 in the course of a discussion with his wife. It was at his instigation that the matter was reported to the police the next day. A made statements to the investigating police officers and gave evidence in the committal proceedings and in the criminal trial. He also gave evidence before us. As we understand the position of the respondent, the evidence given by A about what he was told by his wife is different in a number of respects from the evidence which Patient A gave about what she told her husband. The most significant difference relates to the time during which the respondent is alleged to have touched her clitoris and her vagina after inserting and removing the pencil like instrument.. During the course of his evidence before us, A recanted some of the information which he had given to the police and some of the evidence which he had given in the court proceedings. Without setting out in any particular detail the conflicting evidence of A and of his wife about what she told him that evening, we observe that in general terms we prefer the evidence of Patient A about what she told her husband to the extent that this impacts upon the veracity generally of her evidence in the context of the conflicting evidence of the respondent about what occurred during the course of the consultation on 9 February 2012. Furthermore, for reasons which we have advanced, it is apparent that Patient A does not now have a detailed recollection of what she said to her husband, or to the police officers during the course of their investigation. In the circumstances, it will be preferable to rely on the statements given by Patient A to the investigating police officers, and upon the evidence which she gave during the course of the committal proceedings and the criminal trial subject, of course, to any qualifications concerning the content of those statements and that evidence which we will address later in these reasons for decision. For these reasons, it is not necessary that we address the evidence of A in any detail, nor that we rely upon it in determining these proceedings. Nina Marie Dickson 1. Ms Dickson is the Practice Manager at the Medical Centre where the respondent worked. She has held that position since 2001. 2. In a statement given to an HCCC investigator Ms Dickson said that all of the consulting rooms at the Centre were fitted with duress alarms in 2010. She had shown all of the doctors at the practice, including the respondent, how to operate the alarms. As at 29 February 2012 she did not recall any problem reported to her about the operation of the duress alarms that day, nor did she hold any documentation indicating any problem. They were serviced annually and checked quarterly. The respondent did not indicate to her at any time on 29 February 2012 or the following day that the duress alarm was not functioning. 3. Ms Dickson demonstrated and was shown a photograph depicting the duress alarm fitted under the desk in the respondent's then consulting room. The alarm is activated by pulling it down, and in doing so it makes a clicking sound. Once activated, a blue light flashes in the reception area and someone will go to the particular surgery and ascertain whether there is a problem. The respondent had previously used the duress alarm when dealing with a drug seeking patient. 4. In the course of oral evidence, Ms Dickson said that some doctors had complained that they were not able to use the duress alarm, but this was because it had not been used correctly. She recollected that such a complaint had been made previously by the respondent. If there is no response to the duress alarm, the protocol is that the doctor concerned uses his or her telephone to seek assistance. 5. There was tendered into evidence a file note made by Ms Dickson on 29 February 2012 which set out the substance of a conversation which she had had with the respondent that day. The notation is; "(the respondent) asked if I was given a complaints form bec (which we understand, because not all of the material is reproduced to be "because") someone wanted to complain – no. No one-handed on", with the rest of the notation not shown on the photostat copy in evidence. Whilst the notation is clearly incomplete, it is equally clearly a reference to a request for information from the respondent about whether any complaint had been made about him by someone. There is no reference in this notation to any complaint made by the respondent that day that the duress alarm was not working. Statement of Constable N Day 1. There was tendered into evidence a statement of Constable Day made on 18 July 2012. In that statement she said that she was rostered for duty at Parramatta Police Station on 12 February 2012 and that she had initial contact with Patient A and her husband at about 10:20 AM that day. Patient A told her that she had a problem with a doctor, but because Patient A became "a little emotional" she was unable to understand the rest of her sentence. The husband told Constable Day that his wife had visited a doctor and had told him that day that the doctor had "touched her down there and he had kissed her." 2. Constable Day said that she took Patient A into a private interview room and asked her to tell her exactly what happened. She said that Patient A had explained "in detail" the actions of the respondent, that she was "very clear about what had occurred and stated that she felt very uncomfortable and very betrayed as she had trusted the doctor to care for her." Constable Day then stated that she had "recorded notes of this conversation in my official police notebook….." 3. There was attached to this statement a copy of the notebook of Constable Day. Relevantly, it contains the following notation "Had stomach ache for 3 days. Went to Dr. have attended same Dr previously with her children and on her own. Dr inserts plastic instrument and takes swab, removes all instruments, inserts fingers in vagina with right-hand. Placed left hand on outside of vagina. Knock on door. Closed curtain and went to door. Returned ,vic says, "are you done." Replies "yes" .vic puts pants back on. Asks Dr what is wrong, he says he doesn't know, gives paperwork for urine and blood test. Blood and urine taken by nurse. When vic leaves Dr's office, Dr hugs vic and kisses her on lips." 4. Senior counsel for the respondent fastened on this statement, and in particular the extract from the police notebook as demonstrating an inconsistency in the statements made by Patient A and the version of events narrated by her from time to time. It was said that this inconsistency, when aggregated with other inconsistencies would allow us to conclude that overall the evidence of Patient A was unreliable, and thus we should not believe her evidence if inconsistent with that of the respondent about what occurred on 9 February 2012. 5. We understand the statement of Constable Day to refer to her notebook as recording "notes" of what Patient A said had happened to her on 9 February 2012. It was clearly contemplated that Patient A would be providing a full statement to investigating police officers as she did that day, and we shall assume that the notebook was intended to set out some brief details concerning the complaints of Patient A. We are not prepared to infer from the available evidence, and in particular without having heard from Constable Day who was not called to give evidence, that the contents of the notebook were intended to set out everything that Patient A wished to say about what occurred. We reject the submissions that in some way any lack of detail contained in the notebook reflected adversely on the recollection of Patient A of what occurred on 9 February 2012. The respondent's evidence to sec 150 proceedings 29 March 2012 and sec 150A proceedings 23 April 2015 1. The respondent appeared before delegates of the Medical Council of NSW to participate in a section 150 enquiry on 29 March 2012. On legal advice there was no detailed discussion concerning the events which occurred on 9 February 2012. 2. By decision dated 7 May 2012 the delegates imposed practice conditions on the registration of the respondent which, in essence, restricted the number of patients seen to 40 in any one day and prohibited him from conducting a physical examination of a female patient except in the presence of a female chaperone. 3. On 23 April 2015 the respondent appeared before delegates of the Council to participate in section 150 A proceedings. It is not necessary that we refer to evidence given by the respondent to the delegates on that occasion. The respondent's evidence in the criminal proceedings 25 and 26 November 2014. 1. The respondent was arrested at the medical centre where he was working on 1 March 2012 and taken to a local police station where he was interviewed, in the presence of a solicitor. Not unnaturally, the respondent declined to provide detailed information to the investigating police officers. On that occasion he was given an opportunity of listening to a recording of the conversation which he had had with Patient A when she attended his rooms on 29 February 2012. 2. The respondent gave evidence in the criminal proceedings brought against him on 25 and 26 November 2014. He said that prior to consulting with Patient A on 9 February 2012 he had examined a male patient who had been referred by an insurance company for an opinion who had been told by him to return in 15 to 20 minutes to have his blood pressure taken again. He was still waiting for this patient to return when he commenced his consultation with Patient A. 3. In his evidence in chief the respondent said that when Patient A presented at the consultation on 9 Fairbury 2012 she had complained of mild lower abdominal pain for three days. She denied any bowel or bladder symptoms. He told her that he would like to have a look at her "tummy" and she agreed. He asked her to lie on the bed and to pull up her T-shirt. He pulled the curtain around the examination bed and then started feeling her abdomen. He then commenced "gently pressing" while looking at her face and asking whether she had any pain. She indicated that there was pain just above the pubic bone. He then enquired of her when she had had her last period, and whether she might be pregnant. She said that that was not possible because her husband had had a vasectomy, which he had arranged. He then told her that he wanted to carry out an internal examination and asked her whether she had had a Pap smear performed in the past. She appeared to be unsure. He asked her to undress and to take off her pants. At that stage, he returned to his desk "to make the stuff ready for the examination." The respondent then described how he performed the Pap smear using a speculum and a spatula and brush. 4. The respondent said that in the course of conducting the examination he was unable to see the cervix. He said he explained this to Patient A and informed her that he would need to conduct a manual examination to find the cervix, which he did by inserting, whilst wearing gloves, the index and middle finger of his right hand. His thumb was sticking up and the remaining fingers of his right hand were curled. He estimated that it took around 30 seconds to find the cervix using his fingers. He said that he might have incidentally touched her clitoris, and if this occurred it would have been "momentary." He then withdrew his hand and inserted the speculum again to acquire the sample. 5. Whilst collecting the sample the respondent said that he saw that there was a "bit of mucus in the entrance of the cervix" and had to clean it off with a swab stick in order to obtain "a good sample." He said that obtaining the sample using a Cytobrush was painful for the patient. 6. After he had obtained the sample, the respondent said that he wanted to conduct an internal bi-manual examination. He removed the glove from his left hand and told Patient A that he was going to feel her ovaries and uterus with two fingers of his right gloved hand. She agreed. He put some moisturiser on his fingers which he inserted into her vagina whilst feeling her abdomen with his left hand. Whilst he was doing this he said that there was a knock on the door and a female voice said "we are here." He said "yes" and then completed the bi-manual pelvic examination. He said that whilst he was moving her cervix up and down Patient A indicated that she felt tenderness. He said that the bi- manual examination lasted between half a minute and a minute. 7. After the bi-manual examination had been completed, Patient A got dressed and the respondent told her that he wanted some pathology tests to be carried out. He gave her a referral and a plastic jar so that she could give a urine sample. She stood up, he tapped her on the shoulder, opened the door and she left. The respondent denied that he had kissed Patient A. 8. The respondent then entered up the progress notes for that consultation before seeing the next patient. 9. The respondent was then taken in his evidence in chief in some detail to what occurred on 29 February 2012 during the consultation with Patient A. In order to understand the discussion of the cross examination of the respondent about this matter, it is appropriate that we now set out a copy of the transcript of the recorded consultation. In doing so we have utilised the transcript made available to us and which was used in the criminal hearing. We have edited the document by deleting reference to the name of Patient A. We should emphasise that we have had an opportunity on several occasions during the course of the hearing to listen in the presence of the parties to the actual recording taken on 29 February 2012. The recording brings another dimension to the transcript of what was said. We have been able to hear the tone and inflection of voice used by the respondent and Patient A, the manner in which the conversation evolved, together with pregnant pauses and the like and some background sounds to which we shall make later reference, and which are referred to by the respondent in his evidence. Hearing the actual voices enhances the meaning of what was said by each of the participants in the conversation. The transcript of the recording is as follows; Transcript of Surveillance Device Recording Conversation between PATIENT A and Dr. Mohamed SAFI on Wednesday 29 February 2012 SAFI Good morning PATIENT A Good morning doctor. How are you? SAFI Good thanks and you? PATIENT A I'm good thank you. SAFI How is baby? PATIENT A He's okay SAFI All new. PATIENT A mmm, He is sick. SAFI Huh? PATIENT A He is sick SAFI Why? PATIENT A He got flu and he vomiting yeah. SAFI Vomiting PATIENT A And he got fever and a couple of week I been hospital SAFI A couple of week PATIENT A That's why I can't come one time and see the report SAFI So he was in the hospital PATIENT A Yeah SAFI That's not good SAFI Children Hospital PATIENT A Yeah SAFI Is he now in the hospital? PATIENT A No he's in home now. He's okay. Do you remember I come in February 9th? SAFI No PATIENT A No? SAFI (Laughs) PATIENT A Why not? SAFI Did you? PATIENT A Yeah SAFI (Laughs) PATIENT A How is the report? SAFI Aaah, I think everything is fine. SAFI 9th of February. Yeah there was a few white cells in the urine don't know where does it come from. You don't PATIENT A In the urine? SAFI Yeah, you don't have problem passing urine? No discomfort? PATIENT A No, no, everything is okay. Any problem. SAFI Your vitamin D is much better, 68 PATIENT A Now is better, that's good. Before was 50, 49 or something like that. SAFI Yes. PATIENT A How the urine, blood test? SAFI Yeah the urine shows you know a bit of white cells but no blood. PATIENT A Oh, okay. SAFI And aaah, the pap smear was normal. PATIENT A was it normal SAFI Yeah it is, yeah PATIENT A Ok, how many check that pap smear? SAFI Hmm? PATIENT A How many tests one or two? SAFI The urine? PATIENT A Yeah, No its pap smear SAFI Pap smear? PATIENT A Yeah SAFI That was normal PATIENT A That was normal SAFI Normal yeah PATIENT A Okay SAFI So you know you need to do it every two years, that was normal PATIENT A Every two years, check the pap smear? SAFI Pap, pap smear, that sample to be take it from inside. It's a bit painful isn't it? PATIENT A Yeah it's a lithe bit painful SAFI But the urine, I don't know why. PATIENT A How many test did you pap me that time? SAFI Pap test. Only one you know I mean you take a few sample but you I mean, you apply them on the same glass PATIENT A Okay, just glass SAFI Apply it on the glass PATIENT A Okay SAFI ... send it, smear it on the glass you spray it and they look under microscope to see if there is any abnormal cells and they say its norm! PATIENT A Okay, and after? SAFI That's it PATIENT A And after? SAFI (Laughs) PATIENT A Do you remember that time? SAFI Yeah, yeah PATIENT A What you do? How many times do you play with my bezami? SAFI Hmmm? PATIENT A How many minute you play with my bezami? Do you remember SAFI Yeah. PATIENT A That time? Do you remember? SAFI Yes PATIENT A It is medically compulsory or? SAFI Hmmm? PATIENT A It's medically compulsory or? SAFI Which one? PATIENT A After the pap in test SAFI Pap smear? PATIENT A Yeah SAFI No. PATIENT A No? SAFI Every two years. PATIENT A No no you mean, I mean your first test the pap smear the glass is it? SAFI Mmmm. PATIENT A And after. You test and you play again my bezami. Do you remember that time? PATIENT A Do you remember or not? SAFI I don't understand what. you mean. PATIENT A (laughs) You take the pap smear, you take the glass. SAFI Yes. So you know that, that was the pap smear. PATIENT A Yeah. And then? SAFI And the, the urine test. PATIENT A Yeah SAFI Vitamin D test. Okay? Do you want me . do you have any question? PATIENT A I just want to ask you, you test my pap smear and after you play my bezami and you touch my right hand ... SAFI Yes. PATIENT A In the sensitive parts, yeah? SAFI Yes. PATIENT A And you push my finger in, two finger into bezami. Yes? ....And you playing couple of minute. Do you remember that time? PATIENT A And somebody knock the door and you say after, later. PATIENT A Just test only one pap test isn't it? SAFI And you see, this is all result. There is no evidence of neoplasia which means there is no cancer cells. PATIENT A Okay. SAFI Endo, PATIENT A Computer SAFI Endo-cervical component is present PATIENT A Present SAF! This is the sarnple from inside. PATIENT A Okay. SAFI You know when PATIENT A You take the something from inside SAFI From inside. Yeah. This is present they say, PATIENT A And you check the glass. SAFI That's the one, the glass test. Yes. PATIENT A Yeah. SAFI All right. PATIENT A And after? SAFI Well that's good that you're child is okay. Your baby is okay? PATIENT A No. I want talk to you more. SAFI What do you want to? PATIENT A After you test the pap gun, And you touch my sensitive part and you play with my bezemi couple of minute and your finger is in. Is this medically necessary or you just playing with my? SAFI Yeah, just wanted to test to see what's the results. PATIENT A But you just test only one not two. SAFI Yes. PATIENT A But you did two time. SAFI What do you want to know? Tell me what's, what's do you mean? PATIENT A I don't, I can't understanding why you playing my sensitive part and you pushing my finger inside bezami. I can't understanding why you do like that. SAFI You didn't like it? PATIENT A No I just ask you why do like that. Is this medically necessary or are you want.,_ SAFI Yeah, yeah well, you know, we do examine inside. PATIENT A Yeah, you do, that one time in the examination, yes SAFI Yes we do, yes we do. PATIENT A And after you again play SAFI No, no, we do it examine inside as well, yes.. PATIENT A You take just some glass or something, some stick or something? SAFI Samples PATIENT A You take something, take out something isn't it? SAFI Yes. We do test samples, yes. PATIENT A And after that you play ... SAFI And yeah we do, after that we do test to see how the aaah, how the ovaries are, the size of ovaries, all right? I'm sorry if you don't like it but nothing serious. PATIENT A No that time I'm little bit SAFI I'm sorry, I'm sorry if they didn't but nothing serious. PATIENT A Oh, and ... Okay. And this, I, I think, my view, but you are the doctor, you with the good but you playing my bezami? SAFI I'm sorry. I wasn't PATIENT A You play isn't it? SAFI Okay, I'm sorry. I mean I just .. PATIENT A And then Doctor, it's okay. And I thought that time you playing my bezami and you you playing my a couple of minute isn't it? SAFI I'm sorry, I'm lust terribly, i just can't say anything. PATIENT A And then i though, At that time I feel very uncomfortable you know? Because you understanding all my family isn't ft? SAFI Sure, sure. PATIENT A And I uncomfortable and I want push that down your hand but thought maybe you test something like that but after is not isn't it? SAFI Okay. I'm sorry. PATIENT A And Doctor, and why you kiss me? SAFI- I'm sorry PATIENT A You should be ask before me, can I kiss you? Isn't it?. You are the professional. I am the home wife you kn ow. SAFI Sure. PATIENT A Why you kiss me? SAFI I'm sorry PATIENT A It's not nice. SAFI Sorry PATIENT A It's not good SAFI Sure I understand PATIENT A You are very naughty doctor isn't it? SAFI I'm sorry PATIENT A Did you kiss me? SAFI No I didn't PATIENT A Yes, you did. You hug me and after you kiss me, isn't it? Did you ask me before kiss me? What you think? You think I want a sex with you? SAFI No. No. I'm sorry. PATIENT A And then, why you playing with my bezami? SAFI I'm sorry. PATIENT A And why you kiss me? SAFI I'm sorry. PATIENT A No, it's not an excuse. SAFI I'm sorry, I cant say anything else PATIENT A What happened with you? Because you are the doctor, you are understanding me. SAFI Yes. PATIENT A You are understanding what about the kiss? You understanding? Why you kissing me doctor? Can you tell me? SAFI Well I can't say anything else other than say sorry PATIENT A You have to Doctor. Because you know wh y? You have to ask me before me kissing. SAFI Yeah, sure. PATIENT A If I like or not. You understanding? SAFi Yeah well, uh, the only thing I can say is sorry, I can't say anything. I don't have any words, you know that. PATIENT A You, you, I, I, I think you are like my dad isn't it? SAFI Sure PATIENT A You are like my dad. How old are you? SAFI How old? Almost 60. PATIENT A 60, almost 60. My seven was seventy. Ten years less. SAFI Yes, yes. PATIENT A But you are like my dad. SAFI Sorry. PATIENT A Why you playing my bezami? SAFI Sorry, sorry. I'm terribly sorry. I can't say anything else. I don't know PATIENT A But you have to ask me before kissing me isn't it? SAFI Yeah, I say, I wish I would have got some explanation but I don't. I wish I had some. PATIENT A What you think? SAFI Um PATIENT A Because your wife working next door isn't it? SAFI That's, I don't know what happened, I just, PATIENT A What you think? SAFI Just I, just!, I don't know. PATIENT A You don't know SAFI Well I do but I don't know why PATIENT A You do isn't it SAFI I do but! don't PATIENT A You do kiss me isn't it? SAFI I don't know why PATIENT A You don't know why? Who know then? SAFI Urn PATIENT A If you don't know, who know then? PATIENT A I know it's first time it's test isn't it. You take glass something inside, I say yes. And after you playing my bezami isn't it doctor? PATIENT A Is it? PATIENT A What you think doctor for me? SAFI I just thinking of saying sorry, I'm sorry, I'm sorry, I'm sorry, I'm sorry. PATIENT A But just tell me, what you think for me? SAFI Urn PATIENT A Because you are the doctor I have to tell you everything isn't it? SAFI Yes you are right, yes PATIENT A Because you are doctor, SAF! Yes PATIENT A It's my problem if I don't tell you truth, SAFI Yeah PATIENT A You don't know my problem isn't it, that's tru e isn't it? SAFI That's true. That's true, That's right. PATIENT A You should me ask before you do something SAFI Sure, sure that's true PATIENT A But you didn't SAFI Yes that's my fault PATIENT A Yes that is your fault isn't it? SAFI Yes. PATIENT A What you do then? SAFI Er PATIENT A Can you tell me why do like that? SAFI I just, I that time, I'm sorry, that's it. PATIENT A Why? SAFI ! don't know PATIENT A What happened that day? SAFI I don't know PATIENT A Why you do like that? SAFI Urn PATIENT A Just tell me please. I want to know. I want to know please. SAFI I just thought you want it. PATIENT A Pardon me? SAFI I thought you want it. PATIENT A What means thought? I can't understand. SAFI Yeah, that was just my, my feeling was like you wantl it PATIENT A You, you think I want? SAFI That was, that was my… PATIENT A How? SAFI Was I, was I was wrong? PATIENT A because I have pain my stomach isn't it? SAFI Yeah sure PATIENT A The sensitive part I pain and you tell me which is that test, I can't remember. Pap smear or something like that? You want to test for ... I say I don't know Doctor, what it is, and you laughing about me and you don't know about that test? I say no I cant. Can you open pants and I open for you isn't it? And you test I know that it's a medical problem maybe you want to test and after that you playing and you touching my sensitive part and you pushing my finger and you playing and when I say I say, you when somebody knock the door and I say just second and you close the curtain and you take out the gloves and throw at the bin and you open the door and I say is it finished? and you say yes isn't it? PATIENT A And when! see the, when I stand up and I (inaudible) I see the bed, the seat it wet. Is it? PATIENT A I want to know doctor, why you do like that? Please tell me, want. PATIENT A Do you think anything about me? SAFI No I'm sorry, I'm just PATIENT A Okay then SAFI Sorry PATIENT A Okay thank you doctor SAFI I wish you ail the best for you and your baby PATIENT A Okay thank you 1. The respondent, in relating what happened that day said that when Patient A came into the room she moved the patient chair "from its usual position to a different position" and that she blocked the door which was the exit from the room. He said that during the early part of the consultation he thought that she was there to obtain her results. He thought that she was not understanding his explanation and he turned the face of his computer to her to show her "step-by-step what is written there and what does it mean." He realised that "she was not happy and she was asking the same question again and again, and then I realise that there must be something going on, and I thought that she misunderstood the way she had been examined, the entire physical examination, vaginal examination, the pap smear and then I told her, look, I am sorry, there was nothing serious but that was just an examination." 2. The respondent said that he had told Patient A that he was sorry because that was what he had been trained in general practice to do when confronted by a patient……"if a patient is upset, angry or doesn't understand, it's safe to say sorry. It's better to say sorry rather than confronting a patient. Also, our insurance agency or medical defence organisation been time to time having seminars, lectures,……. They have told us to – it's much safer to say sorry rather than confronting someone." 3. The respondent was asked to comment on the words used by him in the recorded conversation "I'm sorry if you didn't like it" He said that he used these words to refer to the fact that the examination was painful or uncomfortable. When asked why he said "like", he said "you probably remember the level of English she had – I believe she would not understand much other word." 4. The respondent denied that he had played with the patient's vagina or that he had kissed her. 5. When referred to that part of the recorded conversation when he had said "I don't know" and the words "well, I do, but I don't" the respondent said that he was referring to the fact that the patient was upset but he did not know why. 6. When referred to that part of the conversation where Patient A complained that he should have asked her before doing something, and his response "yes, that's true, it's my fault" the respondent said that he felt that he did not explain the whole part of the examination to her properly. 7. When referred to that part of the conversation where he had said "I just thought you want it" the respondent said he was using that word because he did not think that she knew what "consent mean." 8. After Patient A had left, the respondent said that he made some notes. As best we understand his evidence, the notes were made the same day but after he had seen some other patients. He said that after writing the notes "then I was thinking a little while what happened. I was just amused thinking why, what was the reason. And then I went to see someone to talk about it." He went to see the practice manager but could not find her, and then spoke to his wife who was also a medical practitioner working in the same surgery. She indicated that it was a serious matter and that the medical defence organisation should be informed. He said that that evening, with his wife, he wrote a report to the medical defence organisation on paper but was arrested the following morning before he could "take the letter". 9. The respondent was cross-examined at some length by the Crown Prosecutor concerning the manner in which he had conducted the examination of Patient A on 9 February 2012. He denied that he had touched her clitoris. He further denied that he had rubbed her clitoris in a circular motion for 1 to 2 minutes and that he had used one or two fingers to rub the external part of her vagina for 1 to 2 minutes. 10. The respondent confirmed that on the day of the examination he had already seen 47 patients before seeing Patient A, that there was nothing particularly unusual about the consultation and that there was nothing that caused him to particularly remember in detail the way that the consultation had been conducted. 11. The respondent was taken at some length to the transcript of the consultation on 29 February 2012. At the beginning of the conversation he was asked by Patient A whether he remembered the previous consultation on 9 February, he replied that he did not and then he was heard to laugh. He was asked why he had laughed and he responded that it was to "just keep the patient happy." It was then put to him that his notes were open on his computer in front of him and that he must have known that the patient had visited him on 9 February. He agreed with this. He was unable to explain why he had indicated to her that he did not remember that consultation. He agreed that his reply had been incorrect "but there was nothing wrong with that." He explained that he "just wanted to keep the consultation a bit alive, that amuse her that I don't remember" and that he was joking when he said that. He said he was carrying on the joke when he laughed again. The respondent conceded in evidence that he had remembered the prior consultation. 12. When asked why he replied "yeah" to the question put by Patient A "How many minutes you play with my bezami, do you remember?" the respondent said that he did not know what she was talking about, and was not concentrating on what she was saying because he was busy with his computer. He conceded that he was "perhaps not interested" in what she was saying. Despite the fact that he could hear her perfectly well and that she was sitting not far from him and he did not understand what she was saying, the respondent said that he was not interested in finding out what she was saying. He said "I was just reading her results on the computer." He said in the course of giving evidence that he did not recall hearing the words that she had said and did not recall that he had responded to them. When he had use the word "yeah" he said "that's what you automatically say to anyone talking to you." The respondent confirmed that he was "entirely ignoring" what Patient A was saying because he was busy reading her results on the computer. He would have replied "yeah" no matter what question she was asking. 13. The respondent was then taken to that part of the recorded conversation when Patient A had said that after taking the Pap smear he had played with her "bezami and you touch my right hand" and said that by that stage he was listening to what she was saying. When he replied "yes" he was referring to the Pap smear, but not the rest of the sentence because he did not understand what she was saying. He did not ask her to explain what she meant by the use of the word "bezami" and said that he was waiting for her to explain it. He therefore ignored it. When taken to the reference by Patient A to her "sensitive parts" the respondent said that the total examination related to sensitive parts. 14. We do not understand the respondent to have proffered any explanation in cross examination of what he understood Patient A was referring to when she accused him of pushing her fingers into her vagina. At that stage he said that he did not know that she was referring to her vagina. He was looking for some indication of what she might have been talking about in his computer notes. 15. The recording of the consultation of 29 February 2012 shows that there are a number of considerable pauses in the conversation. The respondent explained the pauses in conversation because he was busy trying to find something in his computer. The respondent said that there were different pages on the computer screen referable to the different pathology results. 16. There is an audible clicking sound on the recording of the consultation of 29 February 2012. The respondent said that that was the sound made by a computer mouse and keyboard of his computer while he was trying to find the results of her tests. 17. When pressed further in cross examination about why he did not seek to elicit more information from Patient A about what she was referring to when she talked about him playing with her bezami, he said that he probably heard her say "play" and "bezami", but did not understand what she was referring to. He made no enquiry of her about what she was saying, but nevertheless replied "you didn't like it?". He said that by that stage he understood that she was talking about her vaginal examination and she was calling this "play." He was not concerned that she was making any allegation of a serious kind concerning his conduct. Notwithstanding that at that stage, as he conceded, he understood that her reference to "bezami" was to her vagina, he did not fully understand what she meant by the word "play." When he finally understood what she was referring to, it was then that he denied her accusation, as appears later in the transcript. 18. The respondent conceded in cross examination that by the time that Patient A had accused him of kissing her that he was becoming concerned. And yet, he had answered "I'm sorry" to this accusation. He said this because he wanted to defuse the situation. He was concerned that the chair on which she was seated was positioned so that he was unable to leave the room. He said he tried then to use the duress alarm "a few times" but it did not work that day. 19. The respondent was taken in cross examination to that part of the transcript which contains a series of interchanges between Patient A and the respondent in which she commences by asking him why he kissed her. There are a number of questions along these lines, and the responses by the respondent indicate either acquiescence or an expression of regret. It was not until the final question that the respondent denied that he had kissed Patient A. He was asked to explain why he had waited so long before making a denial. In his response the respondent said; "By that time when I explained to her that, listen, we've done this physical examination, there was nothing serious, and I'm sorry which was the honest sorry of diffusing the consultation which is perfectly appropriate – in any medical consultation, and then she started saying, you play with my bezami, and I am sorry saying that and she stand up and pulled her hand down and showing me her – vagina, and that was the time that I realise, go God, what is happening." It was suggested to the respondent that this was the first occasion that he had ever mentioned to anyone that Patient A had pulled down her pants and shown him her vagina during the course of that conversation, and certainly it had never been mentioned by him in his evidence in chief given while he was being examined by his own barrister. The respondent said that he had told his legal team about this. The respondent was asked to elaborate on what part of the conversation was taking place when Patient A pulled down her pants as he alleged. He said that it occurred after she had said to him; "Oh, and… Okay. And this, I, I think, my view, but you are the doctor, you with the good but you playing my bezami?" He then said; "I'm sorry. I wasn't" and it was at this stage that she pulled down her pants. He did not press down the duress alarm until after this occurred. It was put to him that despite the patient pulling down her pants he continued to carry on a conversation with her as if nothing had happened. The respondent replied that he was busy pressing the duress alarm. 20. The respondent said that he had not reported the duress alarm not working on that occasion. It was put him in cross examination that he should have reported the fact that day, but he said that "there was more important things to do." He said that he told the practice manager the following day that it was not working, and named her as Ms Dickson. 21. The respondent was asked in cross examination why, if he was concerned about the seriousness of what was being put to him by Patient A he simply did not leave his office. His first response was that she had locked the door. He then said that she had blocked the door by blocking the way out. It was then put to him that he could have walked around her and reached the door. He said that it would have been unsafe for him to have done so because "she could have attacked me" and he was afraid of her. He then clarified this by saying that even though he was not fearful of a physical attack, he was concerned that she would make another "sexual allegation" if he walked past her. It was then put to him that she could have made that allegation whether or not he was walking past her, and he replied that it was less likely if he was sitting in his chair. 22. The respondent was taken back in cross examination to his assertion that Patient A had stood up, pulled down her pants and shown him her vagina. In doing so she did not move her chair backwards. He said that he was "so scared that I was unable to say anything else other than say sorry, I'm terribly sorry or very sorry." He was unable to explain why there was no sign of shock in his voice at that stage of the conversation. 23. The respondent was asked why he did not pick up his telephone and call reception if he was scared that she might attack him by "attacking and screaming that this doctor has sexually abused me or sexually attacked me." He was also scared that she was going to hug him. His feeling of being scared was why he continued to say that he was sorry. When asked why, later in the conversation, he had said that he wished he had some explanation but did not, he said he was meaning to say; "I wish I has some explanation to tell you now, but I can't explain to you because you are such a aggressive woman sitting there blaming me – accusing me, falsely, so what could I tell you. How could I explain to you." 24. When taken in cross examination to the part of the conversation where he had replied "I just thought you want it" the respondent said that he was replying only to that part of the conversation which had immediately preceded that statement which concerned the overall physical examination which he had conducted, and he was ignoring totally the allegations that she had made about his inappropriate conduct. He asserted that he was not really responding to what she had been saying in proffering this explanation. He formally denied in cross examination that he was making up this explanation. The respondent's statement 3 December 2016 1. The respondent filed and relied upon a detailed statement dated 3 December 2016. He commenced the statement by referring to the Complaints brought against him and a number of the Particulars of complaint. We have already noted on the form of complaint document in brief terms the response of the respondent to each of the Particulars of complaint, and we shall not repeat them where they appear in this statement. However, by way of amplification, the statement contains the following comments; Complaint One 1. Particular 1 (a). The respondent asserted that he did ask Patient A about her menstrual cycle history by asking her when was her last period. He conceded a failure to ask about abnormal bleeding or vaginal discharge, and whether there had been painful sexual intercourse 2. Particular 1 (b). The respondent asserted that he had asked Patient A if she had ever had a Pap smear, and she conceded this. He ascertained that she had not had a Pap smear for more than two years. 3. Particular 1 (d). The respondent said that he had explained that he would undertake a Pap smear and showed her the speculum. He assumed she was familiar with pelvic and vaginal examinations as she had had three children. 4. Particular 2 (a). The respondent asserted that he had obtained an appropriate sexual and gynaecological history. He asked Patient A when she had had her last period and whether she was pregnant. She also gave information about her menstrual cycle and any previous Pap smear. The history given warranted performance of a bimanual examination and Pap smear. 5. Particular 2 (c). The respondent conceded that he should have taken more time to have given an explanation but he did explain that he would undertake a pelvic examination and the purpose therefor. Complaint Two 1. All of the particulars of this complaint were vehemently denied Complaint Three 1. In general terms, the respondent asserted that he had made certain records but conceded that they were either inadequate or not complete. He also admitted that he had failed to record information regarding the informed consent for the Pap smear and bimanual examination and that he did not record any diagnosis, provisional diagnoses or treatment plan. 2. The respondent's statement commenced by referring to a consultation on 8 October 2011 when he had first met Patient A and her family. She again attended on 7 November 2011 complaining of feeling tired and lethargic. He conducted an abdominal examination. On 10 November 2011 when Patient A consulted him again he discussed the results of certain tests with her and the fact that she had low vitamin D readings. 3. The statement then set out in specific terms details concerning the 9 February 2012 consultation. The respondent's records indicated that she saw him at 4:06 PM. He made clinical notes of the consultation at 4:30 PM, and this indicated that this consultation did not exceed 24 minutes and "was probably shorter." The respondent referred in his statement to the evidence given by him in the criminal trial, and confirmed that that evidence was true. There was brief reference in the statement to the examination carried out on that occasion 4. The bulk of the remainder of the statement is concerned with the consultation of 29 February 2012. The respondent said that he had been taught to defuse unhappy situations or encounters with difficult patients by saying sorry, and that he did not regard doing so as an admission of guilt. He also emphasised that English was his third language. When thinking, he said that as at February 2012 he would think in Pashtu or a mixture of Pashtu and English and then translate those thoughts into English. He said that "I do not always use English words with the shade of meaning or nuance that a native English speaker does. When I feel stressed, my English becomes less precise." We would comment that we do not find this extract typical of the language used by the respondent in the evidence given by him in these proceedings. We shall assume that the statement represents his thoughts about this matter, but in all probability is expressed in the language used by the person assisting him in making it, presumably his solicitor. We do not regard the probable involvement of the solicitor in the formulation of the statement in any adverse manner. 5. In his statement, when referring to his conversation with Patient A on 29 February 2012 the respondent said that he knew that she was Nepalese and that English was not her native tongue. He said that he tried to use simple words and phrases and that "Sometimes the words I used when speaking to her did not fully capture the nuance or shade of meaning I was intending to convey, for example, my use of the word "like" and "want"". These latter two words are contained in the transcript of the conversation on that day. 6. In his statement the respondent repeated much of the evidence that he had given in the criminal proceedings about what occurred during this consultation and what was recorded in the transcript, and we shall not repeat the narration or refer specifically to the contents of the statement unless necessary. 7. The respondent did state specifically that he had been looking at the computer records of Patient A before calling her into the consultation rooms and that he knew that he had last seen her on 9 February. He repeated that he was laughing when he said that to be "light hearted. My laughter was to try to keep the mood light and friendly in the consultation." 8. The respondent also repeated that it was not for some time that he was aware that the reference by the patient to "bezami" was a reference to her vagina. He said that when she was asking him about the Pap smear and playing with her bezami he thought she was asking about the pelvic examinations including the Pap smear as well as the bimanual examination. He was busy looking up the test results which he wanted to show her on the computer screen and therefore "was not fully concentrating" on what she was saying to him or his responses to her. He repeated also that he understood, when she used the word "play" that she was referring to touching or examining her and did not realise at first that this word had sexual connotations. His reference to whether or not she liked the examination was a reference to whether it was uncomfortable, and not a reference to any sexual pleasure. 9. When he first realised that Patient A was making an allegation of sexual misconduct he denied for the first time that he had done so, but because he was in shock and in "panic mode" he kept apologising. Some of his later expressions of being sorry were to acknowledge the fact that she felt uncomfortable, but not that he had done anything inappropriate. He had the same reaction when she accused him of kissing her. He said he kept saying sorry to calm her down and it was about this time that he started to press the duress alarm. 10. Specifically, the respondent repeated that when he made comments along the lines; "I just thought you want it" he was referring to her consent to the pelvic examinations. 11. The respondent again referred to the fact that Patient A had "momentarily" pulled down her pants to show her pubic area. He said that this action "took a fraction of a second." 12. The respondent said that he had attempted to activate the duress alarm "many times". He proffered an explanation that there was a radiographer at the practice who sometimes opened the fire exit to go outside to smoke and that this might stop the duress alarm from working. The respondent's oral evidence in the hearing 1. The respondent gave oral evidence during the hearing before us and was cross-examined. Much of his evidence traversed evidence that he had previously given in the criminal trial, and we shall not repeat this evidence in any detail. 2. The respondent said that he now had no specific recollection of carrying out the examination of Patient A on 9 February 2012 and was relying on his usual practice in conjunction with his reference to his clinical notes 3. The respondent did not recollect whether he had asked Patient A in the course of the consultation of 9 February 2012 if she understood what he had been saying. He now accepted that he should have made sure she understood what he was going to do. He described how he inserted the speculum and that the cervix was not visible. He removed the speculum to look for the cervix with his fingers. He said the speculum had been inserted for about 15 seconds. He said he told her that he was unable to find the cervix with the speculum and that he would have to use his fingers. Once he had found the cervix he reinserted the speculum. He denied rubbing her clitoris or her vagina. The respondent then described in some detail the process which he said he undertook, including the taking of swaps. 4. The respondent said that after he had taken the Pap smear sample he explained again that he would do an internal examination with his fingers. He acknowledged that he should have explained why he was doing this. He said he inserted two fingers of his right hand into the vagina using a pistol grip at about 45° angle and felt the four walls of the vagina. He agreed that it might be inferred that he was doing this in a circular motion. He moved the cervix gently with his fingers. He asked her whether this was sore and she said "yes." He then performed a bimanual examination with his left hand on her abdomen, and described in some detail how this was undertaken. He said that the manual examination had taken "something more than 30 seconds." He said that he continued with the examination even after hearing a knock on the door because he heard the door being opened and then shut. 5. After the examination had been completed, and Patient A had cleaned herself up, she came to the table where he was sitting. He gave her a urine sample jar and papers to take to pathology. He said that they both got up, she had things in both hands and her arms were in that position, namely outright. He thought she was going to give him a hug to thank him. He said he touched her on the shoulder and opened the door and she left. He denied hugging or kissing Patient A and denied that she hugged or kissed him. 6. The respondent said that he wrote up the progress notes as soon as Patient A had left the room. 7. The respondent then gave some detailed evidence about the consultation on 29 February 2012 and what he meant when he had said "sorry". He said that he was reading from his computer while she was talking to him and whilst he was saying "sorry." and during all of the conversation. 8. After listening to the recording of the conversation, a clicking noise is heard .towards the end of the conversation. The respondent said that that was the sound of him clicking the duress alarm. He operated it by pressing it down and that is what made the clicking noise. He was operating the duress alarm, which was under his desk, whilst not looking under the desk and he was "attempting to push the lever sitting up." He said that he had had difficulties operating the duress alarm on at least two prior occasions. 9. In cross examination, the respondent said that the clinical notes which were in evidence were not a complete record and that there were other notes concerning Patient A in the system held by the medical centre. We have not seen those notes. With respect to the entries of 29 February 2012, these were made after Patient A had left the room but he was unable to recall whether he made them before seeing the next patient. He said that the entries were definitely made that day but was unable to say when. They may not have been made at the same time. He thought that the notes had been written before he approached the practice manager and his wife. 10. The respondent's notes entered in the clinical records of Patient A following the consultation on 29 February 2012 read; "however, she has now told me that she was not happy about her vaginal examination and testing. I have explained to her the Pap smear and Reason for bimanual, but she was asking again and again. To make her feel good a said I am sorry." 11. The respondent was cross-examined at some length about these clinical notes. He conceded that he had not made a notation of the allegations that she had made concerning his inappropriate conduct in the manner in which he had carried out the internal vaginal examination and in kissing her. We do not attribute any culpability on the part of the respondent for having failed to make a notation of these serious matters, especially before seeking advice about them. 12. He said that he had, however, made handwritten notations about what had occurred and was in the process of recording them on his computer when the police arrived and he was arrested and taken away. He said that he had not had an opportunity of saving his notes on the computer and they were lost and unable to be retrieved from his computer, as far as he was aware. Furthermore, he no longer has the handwritten notes. This was the explanation given by him that he had made no report that the duress alarm which he had endeavoured to activate was not working, while Patient A was blocking the doorway and when she had stood up and showed her vagina. 13. In cross examination the respondent said that he had not reported what had occurred to the practice manager because "I could not tell her everything – she had a clerical role." He had however, on 29 February 2012 asked the practice manager whether any complaint had been made about him. The three line entry which he had written in the clinical notes was written before he had seen the practice manager, but he was unable to say at what time that day. 14. In general terms, the respondent was taken in cross examination at the hearing to the evidence which he had given at the criminal trial. His evidence before us was relevantly consistent with that which he had given at the criminal trial. 15. The respondent was, however, cross-examined about the clicking sound that may be heard in the audio recording of the consultation on 29 February 2012. He said that he was unable to distinguish any difference in the sound made by the computer mouse and keyboard from that made by the duress alarm when he had attempted to activate it. 16. The respondent was adamant that Patient A was angry and aggressive during the course of the consultation to the extent that he was genuinely concerned that she might attract undue attention. The expert medical evidence 1. Each of the parties retained expert medical opinion. The complainant retained Dr Kinga Price an experienced general practitioner practising in Melbourne, and the respondent retained Dr Craig Lilienthal, an experienced general practitioner practising in Sydney. Each of these practitioners is qualified to give expert evidence in these proceedings. Both provided written reports and both gave oral evidence, concurrently. We shall deal with their evidence as it applies to a number of discrete issues in the proceedings including the circumstances leading up to and the nature and extent of the internal vaginal examination, the history obtained, whether a chaperone should have been arranged, whether appropriate consent was obtained to the procedure and the status of the respondent's clinical notes. Was a Pap smear justified? 1. Dr Price said that the respondent should have ascertained whether a Pap smear had been carried out within the previous two years. The evidence is that the patient had not had a Pap smear for at least four years as ascertained by the respondent. This criticism has no basis and is rejected. The failure to offer a chaperone 1. Dr Price said that a chaperone should have been offered in all the circumstances. She relied on a publication by the RACGP for this conclusion. However, during the course of the hearing it became clear that that publication had been superseded by another publication from the RACGP which was operative as at February 2009 and which was much less assertive about the need to offer a chaperone. 2. In circumstances where the patient agreed that the respondent had explained to her what he was about to do and why, and where the patient had willingly engaged in the examination by removing her own pants and underwear without, on the evidence, expressing any concern about doing so it is our opinion that there were no circumstances which would have militated towards the offer of a chaperone either for the Pap smear or the internal vaginal examination which followed. After discussion between both experts during the course of giving concurrent evidence, they both agreed that in all the circumstances there was no failure on the part of the respondent to comply with the standard in not offering a chaperone. The manner in which the internal examination was carried out. 1. Dr Price said that lubricants should be avoided when carrying out a Pap smear. Dr Lilienthal disagreed that this represented a breach of the standard. On the basis of the evidence available to us, we do not find that in using gel the respondent was in breach of the relevant standard 2. Dr Price said there was an inadequate explanation before carrying out the internal examination and the respondent should have noted that informed consent had been obtained. Dr Lilienthal disagreed and in doing so stated that it is rare for a GP to document informed consent for a physical examination, and it was unnecessary to do so in circumstances where no invasive procedure such as the insertion of an IUCD or hormone implant was being undertaken. We agree with the assessment of Dr Lilienthal as to what is the appropriate standard. 3. Dr Price said the internal examination should only last a few seconds. Dr Lilienthal said that different doctors will take different times to perform a bimanual examination. He doubted whether such an examination would take more than 30 seconds. There is no evidence that this represents a general standard, breach of which would constitute misconduct. 4. Dr Price said that taking about 30 seconds to find the cervix was below what is reasonably expected. "Taking 30 seconds to 1 minute to examine the uterus and ovaries without an explanation is unecessarily long." There is no evidence that the timeline set by Dr Price represents a standard which if broken would constitute misconduct. 5. Dr Price said there was no medical necessity to examine the clitoris unless there were abnormal findings on inspection of the vulva. She said there was a failure to perform a bimanual examination at the time the respondent removed the speculum to manually find the cervix, so as to avoid the need to repeat the procedure. Dr Lilienthal disagreed. Once he established the position of the cervix by manual examination, the respondent "needed to reinsert the speculum to visualise the cervix and perform the Pap smear. At some stage he needed to perform a bimanual examination and he may have done this twice – the second time because it is routine to do so following the removal of the speculum." In the circumstances Dr Lilienthal said that the performance of a second bimanual examination, if this occurred, did not fall below the relevant standard. We agree with his opinion. 6. Dr Price said there was a failure to take swabs for microbiology, culture and PCR testing because of the presence of mucus on the cervix. The respondent said, and Dr Lilienthal agreed, that because the mucus was not coloured did not look purulent and did not smell it was appropriate to record "no discharge" and therefore "there were no obvious or pressing clinical indications to perform cervical swabs for pathological examination." We prefer the opinion of Dr Lilienthal in this regard. The state of the respondent's clinical notes 1. 135 Dr Price said the respondent should have obtained a more detailed gynaecological and sexual history before performing a bimanual examination and should have enquired about bowel symptoms and asked her for her diet, weight change, he should have taken her temperature and checked her blood pressure. Dr Lilienthal said that Dr Price was applying an ' aspirational' standard rather than a "normative" standard. He said; "In a busy General Practice, GPs learn to refine our professional thought and examination processes to deal with different presentations without taking too wide a history or performing unnecessary examinations and investigations. We use shortcuts and favoured methods of history taking and examination to get quickly to the heart of the matter. Clinical guidelines and algorithms are the order of the day. The items listed above in (Dr Price's) statement are perfectly valid and ideal. Unfortunately we do not work in an ideal world." In expressing an opinion that the respondent's standard of care did not fall below the relevant level expected of him Dr Lilienthal said that the respondent had "quickly triaged the patient, concluded she was not seriously ill, excluded illnesses that required immediate treatment and proceed (sic) to order tests to exclude not so obvious conditions. He did not over investigate or unnecessarily treat (Patient A) and correctly concluded that he could observe her in the clinical sense to see if any disease entities developed." 2. Dr Lilienthal said that the respondent should have taken a more detailed clinical history but in any event a bimanual examination was still indicated. The standard of care was below that expected of the respondent "but not significantly." We agree with the opinion of Dr Lilienthal for the reasons which he has given. 3. Both Dr Price and Dr Lilienthal agreed that the nature and extent of the respondent's clinical notes was below the relevant standard, but not significantly so. The consultation of 29 February 2012 1. Both experts agreed that this had been handled badly by the respondent in that he had failed to identify the subject matter of his apology. Dr Lilienthal stressed that it is important for a medical practitioner confronted with an unhappy patient to establish rapport by stating that he or she has some empathy for the circumstances of the patient. This would involve a practitioner saying that he or she was sorry for the patient's circumstances. This did not necessarily involve an admission of guilt. In circumstances where the subject matter of what occurred on 29 February 2012 is a matter which we must determine, it seems more appropriate that we have less regard for the opinions expressed by the experts in the absence of any determination made by us. 2. For completeness, we note that we had available to us expert reports of Dr Maria Nittis and Dr Lilienthal prepared for the purpose of the criminal proceedings, together with transcript of their evidence. For reasons which will become obvious, it is not necessary that we refer to this material in these reasons for decision. What happened on 9 February 2012? 1. At the heart of these proceedings, and certainly at the heart of the most significant aspect of the several complaints is whether during the course of conducting a Pap smear and bimanual vaginal examination the respondent engaged in conduct involving rubbing the clitoris and vaginal area of Patient A in a manner which had no clinical justification and which can substantially be inferred to have occurred for sexual gratification. 2. Patient A has been consistent in saying what happened at the consultation in conversations with her husband a few days later, to the police the next day, and during the course of giving evidence at the committal hearing, the criminal trial and these proceedings. She has consistently maintained that during the course of the internal examination which the respondent conducted on 9 February 2012 he rubbed her clitoris and her vagina. The precise details of the duration of this conduct are not totally consistent. Nevertheless, she has consistently maintained that this conduct occurred. She has not wavered from that position even under intense cross examination. In the same way, Patient A has consistently maintained that the respondent hugged and kissed her. 3. There is no reason to suggest any motive on the part of Patient A other than one of complaint about the respondent's behaviour. It is clear that she was manifestly emotionally disturbed by her experience at the consultation. This is corroborated by the fact that she wept in the toilet area at the practice immediately after the consultation, and was observed by her husband and Constable Day to be upset when she initially spoke to both of them. 4. The respondent has equally maintained his denial of the conduct alleged against him by Patient A during the course of his evidence at the criminal trial and in the course of his evidence before us. Given this strenuous denial, it might arguably be difficult to make any determination about whether we would be comfortably satisfied that the respondent's conduct occurred as alleged by Patient A. There can be no doubt that Patient A was distressed following the internal examination. It might be, by way of speculation only, that she reacted adversely to the sensation of an internal vaginal examination conducted appropriately in an orthodox manner. Her reaction might, hypothetically, have been exacerbated by her experience of being hugged and kissed, albeit that this is denied by the respondent. 5. However, we have before us the recording and the transcript of that recording of what occurred on 29 February 2012. As we have previously commented, the advantage of listening to the recording has brought the interchange between both these persons alive, albeit that we only have an aural recording and there is no visual recording. Nevertheless, the spoken words bring greater immediacy and authenticity than is depicted by reading the spoken words alone. 6. There is nothing remarkable in the exchanges between the parties at the commencement of the consultation until Patient A asks the respondent whether he remembers her coming in on February 9. The respondent is heard to laugh. She questioned him again and he laughs again. Prima facie this seems to be a "knowing laugh", conveying some concept of complicity concerning that prior consultation. However, we acknowledge that it is possible that in some way this might have been something like a "nervous laugh" and perhaps a mannerism of the respondent. The respondent said in evidence that he was merely trying to create a relaxed and informal environment. We must say that his laughter seemed out of place and inappropriate if done for this purpose, but in saying this we should not be seen to be judging his conduct, because we do not know him well enough to assess whether or not this was a technique that he used with patients. 7. There then follows an interchange about the Pap smear process interspersed with allegations by Patient A that the respondent had played with her "bezami". The respondent indicated that he did not know what she was talking about. This is consistent with the respondent's assertion that he did not understand that the word being used by Patient A was intended to refer to her vagina. And then Patient A referred to what happened after the Pap smear namely that the respondent played with her vagina and touched her in the "sensitive parts". It is at this stage that a tapping sound may be heard which, on the evidence of the respondent given in the criminal proceedings and before us was the sound of his computer mouse. Patient A then continued with allegations in the same vein and it seems clear from the transcript that at that stage the respondent was endeavouring to show her some test results on the computer screen. It may be assumed that at that stage the chair on which Patient A was seated was sufficiently close to the respondent for her to see what was on the screen. 8. Patient A then becomes insistent in endeavouring to get the respondent to respond to her allegations that he touched her sensitive parts and played with her vagina "couple of minute and your finger is in. Is this medically necessary or you just playing with my?" The respondent then asked her what she wanted to know and what did she mean. She repeated her assertion saying that she could not understand why he did that to her. He then responds "you didn't like it?". We would understand this question as being a reference to whether Patient A liked what had happened in the sense of "enjoyment", or it being a pleasant experience. In his evidence the respondent said that he was referring to whether or not Patient A felt pain or discomfort and that "it" was a reference to the vaginal examination rather than a reference to playing with her vagina or touching her clitoris. In circumstances where the respondent has denied this conduct, he has proffered the only explanation which could possibly justify his evidence concerning the use of the words "like it". However, there is nothing in the words used or the tone of voice of either participant in the exchange that would lead us to conclude that the word "like" did not bear its normal connotation, and that it referred to the vaginal examination per se. 9. The respondent at this stage continues to talk about an internal examination and seems to infer that what Patient A was complaining about was undertaken in the course of that examination. He then, during the course of an interchange says "I'm sorry if you don't like it but nothing serious." The respondent said that he made this statement indicating that there were no serious results obtained. However, the statement is equally capable of meaning that what occurred was not serious and that no harm was done to the patient. 10. Patient A again accused the respondent of playing with her vagina. He replied "I'm sorry. I wasn't." She said "you play isn't it?" At that stage in his evidence in the criminal proceedings while under cross examination and for the very first time the respondent said that Patient A stood up, pulled down her pants and exposed her vagina. The version of what happened as contained in the statement of the respondent prepared for the purpose of these hearings is that Patient A "grabbed at her pants and began tugging at them, momentarily pulling them down to show her pubic area" and that this action took "a fraction of a second." He further modified this in evidence before us to refer to her showing the upper part of her vagina. 11. Tellingly, there is no audible sound on the recording which would indicate that Patient A did stand up and, if she had to, move her chair. Likewise, there is no change in the tone of voice of either of them which would indicate that either Patient A had suddenly stood up and pulled down her pants or that the respondent had witnessed this. The conversation continues with no indication that a dramatic event of this nature had ever occurred. In fact, the respondent continues by saying that he is sorry, with Patient A again repeating her allegation that he had played with her vagina for a couple of minutes. We would add for completeness that Patient A denied in evidence that she had engaged in any activity by way of pulling down her pants. 12. Following this interchange the respondent responds to assertions made by Patient A saying words "I'm sorry, I'm just terribly, I just can't say anything." In effect, the respondent is heard agreeing with what Patient A continues to assert. 13. The respondent attempted to explain his use of the word "sorry" by reference to what he had been taught by his professional indemnity insurer and others about the use of that word when confronted by patients with concerns about inappropriate treatment and the like. Documentation and other material issued by Avant, his professional indemnity insurer, explains the use of this word in the context of "open, honest, timely and concerned communication" as being "a most important factor in maintaining a therapeutic relationship even when a clinical consequence occurs that results in harm to a patient." The use of this word is intended to be part of an overall management of a complaint made by a patient. However, the respondent makes no effort in the context of the interchange between himself and Patient A on 29 February 2012 to use "sorry" as a mechanism for defusing the concerns being expressed by her. There is no measured attempt to undertake some process to discuss the totality of what occurred on 9 February 2012 and to put the concerns of the patient within the context of, for example, a normal vaginal examination. In saying this, we recognise that the respondent had realised by this time that Patient A was making serious allegations about his conduct and it may be understandable that he would not necessarily react in an entirely rational, logical and measured manner. Nevertheless, our understanding of what occurred on this occasion, reinforced by our ability to hear what was recorded leads us to believe that the respondent was acknowledging what Patient A had said occurred and was expressing his regrets for his conduct. He was not at that stage maintaining any denial that he had touched her vagina and her clitoris. Indeed, a rereading of the transcript will see that there were several occasions on which the respondent expressed the fact that he was sorry. 14. Although the respondent initially denied that he had kissed Patient A, when confronted with a question about whether she thought he wanted her to have sex with him, he immediately said that he was sorry, and repeated that he was sorry in response to allegations that he had played with her vagina and kissed her. He continued to use language which can only be consistent with an acknowledgement that he engaged in the conduct which Patient A continued to allege, particularly using the words "sorry", "I'm terribly sorry. I can't say anything else. I don't know" and "yeah, I say, I wish I would have got some explanation but I don't. I wish I had some." 15. Towards the end of the transcript, as Patient A continued to persist with her allegations of inappropriate conduct and was pleading with the respondent to explain why he conducted himself in that way he responded "I just thought you want it." He repeated this statement and when Patient A said that she could not understand why he thought that he said; "yeah, that was just my, my, feeling was like you want it." The respondent then conceded that he was "wrong." We should add that the explanation given by the respondent in evidence about this part of the transcript and recording was that "I thought you want it" referred to the internal vaginal examination and indicating consent to it. We find this explanation incredulous, and completely out of context with the totality of the interchange between the respondent and Patient A which was occurring at that time. We reject this assertion made by the respondent by way of explanation as lacking any credibility. We regard the respondent as having indicated to her that he thought she wanted to have her vaginal area touched by him. 16. In the course of his evidence the respondent said that once he realised the nature and extent of the allegations which were being made against him by Patient A and how serious they were he became fearful and concerned. He initially said that he was concerned for his safety but conceded that he was not troubled about his physical safety. He said he felt trapped because Patient A was sitting in a chair which blocked the only door to the consulting room which was the only exit. However, he conceded that in fact he could have walked around Patient A to access the door to leave the room. He then explained that he was concerned that Patient A might make a scene by alleging further sexual misconduct and that she was very angry. However, the unlikelihood of this further explanation is demonstrated by the tone of voice used by Patient A during the course of the interchange with the respondent. At all times she used a measured tone, and did not raise her voice when continuing to persist in her questioning of the respondent. There is no hint of any anger such as might cause her to raise her voice and "make a scene." Finally, the assertion by the respondent that he was concerned about Patient A's anger is entirely inconsistent with the final few sentences exchanged between them. After saying that he is sorry twice and after Patient A thanked him, he said "I wish you all the best for you and your baby." for which she thanked him. Pleasantries of this kind are entirely inconsistent with the picture that the respondent endeavoured to paint about her temperament and presentation on that occasion. 17. It is clear from the nature and extent of the interchange between Patient A and the respondent as recorded on 29 February 2012 that he conceded that he had played with her vagina and touched her clitoris as well as hugging and kissing her as she had alleged. This is undoubted corroborative evidence of what Patient A says occurred during the course of the consultation on 9 February 2012. This interchange occurred only 20 days after the 9 February consultation when it might be thought that the details of such would be fresh in the minds of both of them. In expressing these conclusions, we are conscious that Patient A knew that the consultation would be recorded and to that extent there might be seen to be some form of entrapment of the respondent. However, there is no suggestion of any undue pressure been brought to bear on the respondent, it cannot be said that any of the questions asked by Patient A were inappropriately ambiguous other than by reference to the use of the word "bezami", and that she conducted herself overall in a manner which would have caused the respondent to have, in effect, confessed to conduct of which he was not guilty. Furthermore, any ambiguity created by the use by Patient A of the word "bezami" was clarified during the course of the conversation. 18. We are unable to detect from listening to the recording of this consultation that there is any noticeable difference between the tapping or clicking sound which the respondent said was made whilst he was using the computer mouse and keyboard from that which he said was made when he attempted to activate the duress alarm. There is no other evidence before us concerning the sound that any of these implements makes, and therefore there is nothing within the sound recording which would give substance to the assertion made by the respondent. That said, there is some confusion about whether the duress alarm was or was not working, and whether the respondent did attempt to activate it. In circumstances where there was no indication of any kind in the tone of voice used by the respondent that he had sufficient concern about what was happening for him to activate the duress alarm, his reliance on this evidence is of less significance. 19. We add for completeness that the complainant made a number of submissions concerning inconsistencies in the evidence of the respondent which, it was said, would cast doubt overall on the truthfulness of his evidence. Counsel pointed to matters such as an initial reference to the door to the consulting room having been "locked" which the respondent changed to "blocked", the late assertion that the tapping sound heard on the recording made on 29 February 2012 was of him endeavouring to use the duress alarm, and the late assertion that Patient A had pulled down her pants and exposed her vagina which was changed in later evidence. It may well be that the respondent has engaged in ex post facto rationalisation when considering the evidence in the proceedings, whether subconsciously or intentionally. Because of the view that we have taken concerning the conclusions which we are comfortably able to make based on the evidentiary material apart from a consideration of these matters, it is not necessary that we address them. Consideration of the Complaints and particulars Complaint One 1. Particular 1(a). For reasons set out above, we agree with the opinion of Dr Lilienthal that the failure of the respondent to seek this information was conduct below the relevant standard, but not significantly so and therefore this particular is not made out because it does not meet the standard set in sec 139B(1)(a) of the Act. 2. Particular 1 (b). There is evidence from Patient A that the respondent had asked her whether she had ever had a Pap smear. She was uncertain whether she had had this test in Nepal, but it was clear that she had not had this test since arriving in Australia. This constitutes the obtaining of an adequate history, and this particular is not made out. 3. Particular 1 (c). We agree with the submissions of the respondent that there was nothing in the circumstances of the presentation of this patient to the respondent that indicated that a chaperone should be offered. He had seen and examined Patient A previously and she had expressed no concerns about undertaking a Pap smear and a vaginal examination. This particular is not made out. 4. Particular 1 (d). It is clear from the evidence of Patient A that the respondent proffered some explanation to her of what was involved in the taking of the Pap smear and the vaginal examination. The respondent said that he had informed her in a summary fashion of what was involved. He conceded that he should have done more to explain the procedure in greater detail. The precise recollections of each of them concerning these matters must be tainted by the passage of time. Despite the concession made by the respondent, but based on the fact that in general terms there was an explanation proffered, we are not comfortably satisfied that in all the circumstances this particular has been made out. Complaint Two 1. Particulars 1 (a) and (b). It is appropriate to deal with both these matters together, because on the evidence of Patient A, which is critical if these Particulars are to be established, the two actions of the respondent followed one another during the course of the examination which he was conducting. The respondent in maintaining that neither of these actions occurred emphasised that there were a number of inconsistencies in the evidence of Patient A which, in the aggregate, would cast doubt about whether her critical evidence about these matters should be accepted. 2. The respondent submitted that the totality of the scenario painted by Patient A involving inappropriate and sexually motivated misconduct by him was inherently implausible. The door to his consulting room was unlocked, and, on the evidence, his wife who was working in the same practice occupied a consulting room nearby. As against this, the respondent had appropriately placed a curtain around the examination table. It might be surmised that if he were engaging in the kind of conduct alleged by Patient A that it would be unlikely that anyone entering the consulting room and realising that the respondent was conducting an examination within the privacy of a curtain would enter the curtained area. Furthermore, there is no evidence of any sound or noise being made by either the respondent or Patient A other than conversation initiated by him which might draw attention to any inappropriate conduct by the respondent. Whether something is implausible is a matter of impression. We are not prepared, on the basis of such evidence as is available to us, to conclude that these circumstances might be regarded as implausible. 3. Senior counsel for the respondent attacked the veracity of the initial detailed statement taken by a police officer from Patient A. Clearly, Patient A had difficulty understanding the English language, and the police officer spoke to her only in English. She said in evidence that she did not read the statement before she signed it but that it had been read out to her by the police officer who had explained the medical terms that she did not understand. It was said that the words and style used in the statement were clearly not that of Patient A. Finally, it was suggested that the police officer must have asked Patient A "leading questions" presumably in the sense that the questions were designed to elicit a particular response. We accept all of these criticisms and observations concerning the manner in which the statement was obtained. However, we do not accept that these matters necessarily detract from the veracity of the information which Patient A was intending to convey by way of the statement about what happened in the course of the consultation with the respondent on 9 February 2012. In order to reach such a conclusion we would need to be satisfied that Patient A intended to convey information which was not truthful or, even, which was inaccurate and that in some way the police officer concerned endeavoured to have Patient A say something which was not accurate or which was not truthful for some ulterior purpose. We observe that if the truth or accuracy of a statement made by any person to a police officer, other investigator or to a legal practitioner was prima facie to be regarded as tainted because questions of a leading nature were asked, this would call into question the efficacy and utility of much of the work of the police force and, more significantly, the legal profession. There is simply no appropriate basis upon which the truthfulness of the information contained in the statement can be attacked by reference to the manner in which the statement was obtained by the investigating police officer. 4. The respondent submitted that there were a number of matters of detail in the evidence given by Patient A, particularly before this Tribunal which were clearly inaccurate and which should cause us to exercise considerable care in considering the totality of her evidence, especially as it concerns what occurred on 9 February 2012. Our general impression is that whilst giving evidence before us the recollection of Patient A was unclear with respect to many of the details of what she told the respondent and what he told her, as well as the manner in which the vaginal examination was conducted. Patient A freely admitted as such. Indeed, if she had said otherwise we would have been concerned. 5. Senior counsel for the respondent made available to us a report published by the British Psychological Society in June 2008 entitled "Recommendations from the Scientific Study of Human Memory." Whilst the report appears to advocate the use of "memory experts" as witnesses to assist court and other forensic processes, it does contain some succinct material which is worth repeating as assisting us in evaluating the evidence given in these proceedings. We refer to the following propositions contained in the report, some of which we have paraphrased; 1.memory is a record of a person's experience of reality, but not necessarily a record of the reality itself 2.."Remembering engages many different brain areas; brings together episodic and conceptual knowledge; features visual imagery; and can also include information from other modalities. Memories contain general knowledge of experiences and an understanding of the meaning of an experience. Thus, memory is not only about particular experienced events, but also includes more general autobiographical knowledge…….. Hence, memories may be wrong with regard to precise details and yet accurate with regard to more general contextual information." 3 ."Memory is a part of the cognitive, emotional, physical, social, cultural, historical, and belief context in which they are recalled, with all that entails." 4 ."Highly vivid memories are retained for long periods….. And may be resistant to forgetting, or at least to the normal process of forgetting. It seems that the main property of vivid memories is their durability rather than their verisimilitude." 5." Rehearsal is one of the key mechanisms for retaining memories and knowledge. Talking and thinking about remembered experiences powerfully improves retention and confers resistance to forgetting. Nevertheless, it should be noted, and this is an especially important point, that each instance of recall also offers an opportunity for distortion and error to be assimilated to a memory and, possibly, incorporated into it on a longer term basis." 1. There can be no doubt that the experience of Patient A during the course of the vaginal examination on 9 February 2012 affected her emotionally. Whilst she did not act in any assertive manner by asking the respondent to stop at the time that she became concerned about what was happening, she said that she was scared and went straight into the toilet of the medical centre and sat down and cried. She said she was afraid. It was clear that her husband had noticed that she was upset in the days following the consultation and it was this that motivated him to ask her to tell him what had happened. She was also upset, according to the evidence of Constable Day at the time that she presented to the police station. We have no reason to doubt that Patient A reacted emotionally to the vaginal examination conducted by the respondent. It is more likely that an emotionally experienced event of this kind would create a "highly vivid memory" and would be remembered, and continue to be remembered, albeit that some of the ancillary details such as precisely what questions were asked of her by the investigating police officer might not be so remembered with any degree of precision. Furthermore, Patient A was given an opportunity of repeating by way of "rehearsal" of her memory of what occurred on several occasions not long after the event. All of these matters give credibility to her recollection of what occurred at the consultation on 9 February 2012. There is simply no basis to consider that Patient A fabricated her story for any apparent reason. 2. We do not regard the reaction of Patient A as resulting from a misunderstanding or misapprehension concerning the nature of the vaginal examination. It is clear that she did not fully understand what the respondent was intending to do during the course of the vaginal examination although we do accept the respondent endeavoured to explain it to her in simple and general terms. Is also clear that because of her supine position that Patient A could not see what the respondent was doing during the course of the examination. But what is crystal clear is that she experienced the sensation of the respondent rubbing her clitoris with his fingers in a circular motion and moving his fingers on the outside of her vagina. She was familiar with these experiences because this is what her husband had done to her. She knew that they had sexual connotations. These sensations caused her to feel considerable alarm. The sensations were of a different kind to that which Patient A experienced when the respondent inserted some fingers into her vagina and moved them in a circular motion. We accept, and we are comfortably satisfied that Patient A experienced the sensations of having her clitoris and the outside of her vagina rubbed in a circular motion by the respondent. 3. We should add that we considered that Patient A did her best to give her evidence as accurately as possible. There is evidence that she attempted to ensure that the statements which she had given at various times were as accurate as possible and she took steps to amend them. We have previously referred to the further statements given by her to clarify particular matters on 5 September and 7 December 2012, 27 June 2013 and 19 August 2015. 4. It is clear from the expert evidence of Dr Price and of Dr Lilienthal that if the respondent while carrying out an internal vaginal examination for an appropriate clinical purpose had touched the clitoris or the outside of the vagina of the respondent, this would only have occurred momentarily and unintentionally. It would not have created the sensation experienced by Patient A of having her clitoris or the outside of her vagina rubbed in the manner asserted by her, and which we accept occurred. 5. We repeat the conclusions which we have expressed earlier in these reasons for decision that, overall, the content of the interchange between Patient A and the respondent which occurred on 29 February 2012 corroborates the allegations made by her that the respondent engaged in conduct on 9 February 2012 consisting of rubbing her clitoris and vagina and in hugging and kissing her. This corroboration coupled with our assessment of the veracity and credibility of the recollection of Patient A as we have earlier described it results in our being comfortably satisfied that the respondent engaged in this conduct on that occasion. 6. There is, however, one further aspect of these Particulars which needs to be considered. It is alleged that the clitoris was rubbed in a circular motion "for 1 to 2 minutes" and that the entrance to the vagina was rubbed "for about two minutes." Patient A made these time estimations when she originally gave her statement to the police officer, and repeated them in general terms during the course of evidence which she gave in the committal proceedings and at the criminal trial. It is true that there is other evidence in which Patient A is alleged to have given estimates of between 5 and 10 minutes, and 2 to 3 minutes. 7. The respondent submitted that we could not be satisfied on the basis of the evidence given by Patient A that the time periods contained in each of the Particulars had been established to the requisite standard. This was because there must be some doubt that Patient A was able to accurately recall the time taken for each of these processes, and the fact that she had given evidence on other occasions of other time periods must cast doubt about the accuracy of her evidence. It was said that this was an essential part of the Particulars. We accept the explanation of Patient A that her assessment of a time period of 5 to 10 minutes was intended to refer to the totality of the length of the vaginal examination including the Pap smear, notwithstanding that her evidence in this regard was not consistent on each occasion. In circumstances where there is no other evidence about how long the respondent rubbed her clitoris and her vagina, and because there is no particular reason to disbelieve her estimate of the time during which the respondent did so, we find that the conduct of the respondent complained of in these Particulars occurred for 1 to 2 minutes and about 2 minutes respectively, as alleged. 8. We should add that we do not agree that the particular time periods specified in the Particulars represent essential ingredients of the misconduct alleged against the respondent. The misconduct focuses on the fact that the respondent inappropriately touched both of these areas and did so in a manner which could not be said to be momentarily or unintentionally associated with an internal vaginal examination conducted in an orthodox manner. It is not the precise time taken, but the fact that the respondent did rub the clitoris and vagina of Patient A, as we have found. These activities have, on the evidence, no clinical purpose. 9. Because these activities have no clinical purpose, as we have found, it follows that the only reason why the respondent would have undertaken them was for a sexual purpose. On this basis, we conclude to the requisite standard that the respondent engaged in inappropriate conduct of a sexual nature as particularised in Particulars 1 (a) and (b) of Complaint Two. 10. Particular 1 (c). This particular refers to the internal examination conducted by the respondent when he inserted his fingers into the vagina of Patient A. The expert evidence is to the effect that such an examination could give the feeling of being conducted by using a circular motion, and this is consistent with the evidence of the respondent as to how he normally conducts such examinations. The allegation is that this examination occurred for about two minutes. In his evidence the respondent said that he conducted examination for somewhere between half a minute and a minute. Both experts agreed that such an examination should be conducted in about 30 seconds. 11. In considering this Particular we note that on the evidence the internal examination was performed in accordance with an orthodox bimanual examination conducted for clinical purposes. In this regard it is to be contrasted with the touching of the clitoris and the vagina, which, as we have found, could not be considered as having been conducted for clinical purposes. Because of this reason, and given the uncertainty concerning the precise period of time involved we are not comfortably satisfied that we are able to conclude that this particular feature of the consultation can be characterised as inappropriate conduct of a sexual nature, and we find that this Particular has not been made out. 12. Particular 3. Patient A has consistently maintained that at the conclusion of the examination on 9 February 2012 the respondent hugged her and kissed her. She initially maintained that the respondent had "sucked" on her lips for about seven seconds. The consistency of her evidence has been maintained from the moment she initially told her husband about the consultation, during the investigation conducted by the police, and in her evidence during the course of three hearings. There may be some doubt arising from her evidence in cross examination before us about whether or not the respondent actually sucked her lips as opposed to kissing them with some vigour because she maintained that she kept her lips closed. 13. As was the case with the rubbing of her clitoris and vagina, this was an experience which had, on her evidence, a profound effect on Patient A. It was at this stage that she realised that the rubbing of her clitoris and vagina had a sexual connotation and was not part of an orthodox clinical medical examination. Because of this profound emotional effect, it is more likely that Patient A will have, and will have maintained, a clear recollection of what occurred. When this conclusion is combined with the overall impression gained from the transcript of the consultation on 29 February 2002 coupled with listening to what was recorded, that the respondent, despite his initial denial, overall agreed that he had hugged and kissed Patient A we are comfortably satisfied that this Particular has been made out. Complaint Three 1. We have already noted that the respondent conceded that he had failed to maintain adequate records as particularised except for Particular 1 (c). Drs Price and Lilienthal agreed that the respondent's records were below the relevant standard, but not significantly so. 2. With respect to Particular 1 (c) the failure was said to be constituted by a recording of "no discharge" even though the respondent had found cervical mucus. He said that the mucus was clear and did not indicate anything of a sinister nature, and for that reason he did not characterise it as a discharge. Dr Lilienthal agreed with this characterisation, and as we have previously commented, we prefer the opinion of Dr Lilienthal to that of Dr Price in this regard. 3. It follows that we do not find any of the Particulars of this complaint proven. Complaint Four 1. We have found Complaint Two to have been made out. There can be no issue that conduct of this kind constitutes unsatisfactory professional conduct, and we formally so find. We do not apprehend that the respondent sought to argue that conduct of this kind did not constitute professional misconduct as alleged in this Complaint. Nevertheless, for the purpose of making a formal finding is necessary that we have regard to the statutory matrix against which such a determination must be made, and briefly, to some relevant authorities. 2. By reason of the definition contained in section 139E which we have set out above, it is necessary to determine whether the unsatisfactory professional conduct is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or there is "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." This directs attention to a consideration of those circumstances which would justify suspension or cancellation of registration. Whilst this involves the exercise of a value judgement having regard to all of the relevant factual circumstances, it must be undertaken in the context of the statutory regime which applies to these proceedings. 3. It is well-established that the jurisdiction of this Tribunal is primarily protective in nature. In exercising this jurisdiction there are a number of matters to which we must have regard. They have been most recently, succinctly, referred to in the judgement of Meagher JA in the New South Wales Court of Appeal in HCCC v Do [2014] NSWCA 307 (Basten and Emmett JJA agreeing). At [35] and following his Honour said; 35. The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 36. In Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Mahoney JA described (at 441) the scope of the objective of protecting the public interest in the context of disciplinary proceedings against a solicitor as follows: "The protection of the public has been described as, for example, the primary purpose or primary object of such proceedings: ... In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done. But, in my opinion, it would be wrong to confine the objects of disciplinary proceedings and the purposes to be achieved by the orders made in them strictly to matters of this kind. Those purposes and objectives have traditionally been seen as having a wider operation. In the end, the question to be determined is whether the solicitor is a fit and proper person to be a solicitor of the Court and the orders to be made are to be directed to ensuring that, to the extent she is not, her practice is restricted." 37. In Herron v McGregor (1986) 6 NSWLR 246 McHugh JA referred more briefly to the same consideration (at 258): "It is, of course, of fundamental importance to bear in mind the public interest in disciplining doctors who are guilty of professional misconduct. In many cases the protection of the public and the maintenance of professional standards requires that the names of doctors be removed from the register. However, it is present fitness to practise which is the principal and ultimate issue of public interest." 1. We should make it clear that in determining whether the conduct of the respondent may be characterised as professional misconduct justifying cancellation or suspension of registration, such a characterisation is not necessarily determinative of any consequential appropriate protective orders. Our concern for present purposes is to determine whether or not the conduct is such that cancellation or suspension is warranted. In determining this matter we have regard to the protection of the public, the maintenance of public confidence in the integrity of the profession, and the deterrent effect both on the respondent and on other medical practitioners. 2. We have already concluded that the misconduct of which we have found the respondent guilty carries with it sexual connotations of a most serious kind. The background to which the conduct of the respondent is to be considered is succinctly and appropriately summarised by the following extract from the judgement of the New South Wales Court of Appeal; 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."( HCCC v Litchfield (1997) 41 NSWLR 630 at 638). 1. We apprehend that the respondent concedes that if found guilty of the conduct alleged in Complaint Two and thus in Complaint Four, we would be justified in concluding that he is guilty of professional misconduct. Even without such a concession, the evidence of Doctors Price and Lilienthal is that conduct of this kind is of such seriousness that it would justify a finding of professional misconduct. Of course, the determination about whether the respondent is guilty of professional misconduct is one to be made by us. It cannot be doubted that a medical practitioner who engages in conduct of the kind which we have found to have occurred, without any clinical basis and obviously of a sexual nature constitutes professional misconduct. Hopefully it is only necessary to refer to the extract from the judgement in Litchfield set out above to make this abundantly clear. 2. Consequent upon our findings of misconduct as set out in Complaint Two Particulars 1 (a) and (b), 2 and 3 (a), (b) and (c) we find the respondent guilty of professional misconduct as alleged in Complaint Four in that he has engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. Partial dismissal of Complaints 1. It follows that for the reasons which we have given, Complaints One and Three together with Complaint Two (1) (c) are dismissed. Further proceedings 1. At the very conclusion of the hearing of these proceedings, shortly after 4 PM on 7 April 2017 the complainant sought to make an application that if we were to find the respondent guilty of professional misconduct, we should make an interim suspension order. Both counsel had informed us that they were going on leave immediately after the end of the hearing, and senior counsel for the respondent had indicated that he was due to leave Sydney on a vacation within 2 to 3 hours. There was simply no time to consider such an application brought at such a late stage. Accordingly, we determined that we would deal with any interim application for suspension or any other interim application at the date set for the stage 2 hearing to determine what protective orders should appropriately be made, namely on 20 June 2017. If the complainant feels compelled to make an application for interim orders on a more urgent basis, we grant liberty to apply which should be exercised upon notice to the respondent and by written notification to the Registrar, 2. The proceedings are stood over for stage 2 hearing at 10 AM on 20 June 2017. ********** 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: 09 May 2017