Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Dowla [2018] NSWCATOD 33 Hearing dates: 13, 14 September 2017; 15 November 2017 Date of orders: 08 March 2018 Decision date: 08 March 2018 Jurisdiction: Occupational Division Before: K P O'Connor, AM, ADCJ, Deputy President Associate Professor M Krause, Senior Member Dr A Reid, Senior Member J Barker, General Member Decision: 1. The Tribunal finds the respondent guilty of professional misconduct in relation to the conduct the subject of Particular 1. 2. The Tribunal finds the respondent guilty of unsatisfactory professional conduct in relation to part of the conduct the subject of Particular 3 and the whole of the conduct the subject of Particular 4. 3. The matter is to be listed for a further hearing in relation to the appropriate disciplinary orders (Stage 2). Catchwords: PROFESSIONAL DISCIPLINE – Medical Profession – Consultation with Female Patient –Improper Physical Examination – Provision of Personal Phone Number to Patient – Finding of Professional Misconduct. Legislation Cited: Health Practitioner Regulation National Law (NSW) No 86a Civil and Administrative Tribunal Act 2013 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Texts Cited: Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014) Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mohammed Shareef-Ud Dowla (Respondent) Representation: Counsel: A Britt (Applicant) C Jackson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Legal (Respondent) File Number(s): 2017/00083334 Publication restriction: The Tribunal orders that any disclosure of the name or other identifying particulars of Patient A is prohibited otherwise than is required by the parties for the proper conduct of the proceedings. Order made under Health Practitioner Regulation National Law (NSW), Sch 5D, cl 7 and under s 64 of the Civil and Administrative Tribunal Act 2013. The reasons have been amended and are to be read with the supplementary reasons published 12 April 2018 - MNC [2018] NSWCATOD 52 REASONS FOR DECISION 1. On 17 March 2017 the Health Care Complaints Commission, applied to the Tribunal under the Health Practitioner Regulation National Law (NSW) No 86a ('the National Law') for disciplinary findings and disciplinary orders to be made against the respondent, a registered medical practitioner. This decision deals only with the application for disciplinary findings (stage 1). The Application for Disciplinary Findings 1. The application concerns a consultation in which it is alleged the respondent made unnecessary contact of a sexual nature with a female patient in the course of a physical examination, and engaged in other inappropriate conduct. There are five particulars of the conduct alleged. 2. The charges are of a cumulative kind, as is common in proceedings of this kind. They rely on the same particulars. The first charge asserts that the particulars if proven warrant at the least a finding of unsatisfactory professional conduct. The second charge asserts that they may warrant the more serious finding of professional misconduct. In the case of a finding of professional misconduct the Tribunal may, but is not compelled, to suspend or cancel the registration of a practitioner. 3. The respondent lodged a formal Reply to the charges and particulars (9 August 2017). The respondent denied both charges and all of the particulars except in respect of one aspect of particular 4. We will now set out the particulars, noting the respondent's position. Particular 1 (Denied) On 1 December 2015 during a consultation with Patient A, the Practitioner (a) lifted Patient A's pants (jeggings) up and away from her stomach, exposing her pubic area and in doing so failed to: (i) obtain Patient A's consent; (ii) provide an appropriate cover to preserve Patient A's modesty. [We interpolate. 'Jeggings' is a new word drawn from the hybrid nature of the garment. It refers to leggings made of an elasticised cling-tight material which have the look of jeans but are not made of denim - thus 'jeggings': see further Oxford English Dictionary (first entry, 2015).] (b) put his hand inside Patient A's pants (jeggings) and underpants, touched his hand in a swiping manner against Patient A's vagina, and failed to: (i) obtain Patient A's consent to do so; (ii) have a valid clinical indication or reason for doing so. (c) touched Patient A's thighs whilst his hand was on the inside of her underpants and failed to obtain Patient A's consent to do so. (d) rubbed Patient A's thighs in a slow rubbing motion whilst his hand was on the inside of her underpants and failed to obtain Patient A's consent to do so. (e) rubbed Patient A's vagina slowly using his fingertips whilst his hand was on the inside of her underpants and failed to: (i) obtain Patient A's consent to do so; (ii) have a valid clinical indication or reason for doing so. Particular 2 (Denied) On 1 December 2015 the Practitioner engaged in an inappropriate sexual act in the presence of Patient A in that he masturbated under the desk whilst speaking to her. Particular 3 (Denied) On 1 December 2015 the Practitioner asked Patient A questions concerning her personal life whilst masturbating under the desk. Particular 4 (Denied in Part) On 1 December 2015 the Practitioner failed to observe appropriate professional boundaries in that he wrote his mobile phone number on a piece of paper, gave it to Patient A, and asked her to contact him if she developed a mobile phone application or 'app'. Respondent's Reply: I admit I provided Patient A with my mobile number. I deny that I failed to observe appropriate professional boundaries, or that in doing so, my conduct was significantly below standard. I gave Patient A my number for the confined purpose of texting me if she made an app, with the intention of encouraging her to make apps. Particular 5 (Denied) The Practitioner engaged in inappropriate conduct of a sexual nature by reason of his actions set out in Particular 1(b) and 1(e), 2 and 3. 1. Under the National Law 'unsatisfactory professional conduct' may be demonstrated in the variety of ways set out in paragraphs (a) to (l) of s 139B. In this case two of the paragraphs, the first and last - (a) and (l) - are relied upon: 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 significantly below reasonable standard 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) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. Under the National Law 'professional misconduct' has the following meaning: 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. 1. In the case of a finding of unsatisfactory professional conduct, the sanctions available to the Tribunal do not extend to orders of suspension or cancellation of registration. As previously noted, in the case of a finding of professional misconduct, the Tribunal may, if it considers it appropriate in the circumstances, go further and make orders for suspension or cancellation of the practitioner's registration. See generally, National Law [NSW], s 149, ss 149-E. 2. Paragraph 8 deleted for the reasons explained in the supplementary reasons delivered on 6 April 2018. The Hearing 1. The hearing took place on 13 and 14 September 2017. The Tribunal's membership included two professional members, a neurologist (Associate Professor Krause, DMed, FRACP) and a senior practitioner (Dr A Reid, MB BS, MHA, FFPHM), as well as a community member (Ms J Barker). 2. The Tribunal had before it the following material: Applicant: A bundle of documents, dated 25 August 2017, (Ex A1) that included Patient A's original complaint (8 January 2016); the respondent's response (11 March 2016, Tab 14); a formal typed written statement made by Patient A with the assistance of the applicant (17 March 2017); a statement by Patient A's sister; an expert report from Professor Bruce Brew, Professor of Medicine (Neurology) at the University of NSW, in relation to the propriety or otherwise of the respondent's alleged conduct; the Medical Board Good Medical Practice Code; the respondent's clinical records (Tab 18); and print outs of Patient A's treatment records from the referring practice, the Mt Druitt Health Care Medical Centre, covering the period 17/9/2015 to 3/6/2016 (Tab 19). Respondent: A bundle of documents, dated 25 August 2017 (Ex R1) that included a statement from the respondent additional to his statement in reply to the complaint made 11 March 2016 (at tab 14 of applicant's bundle); the additional statement was headed Qualifications and Experience (9 August 2017, Ex R1,Tab 1); and the respondent's formal Reply to the Application, to which we have also referred (7 August 2017). The folder also included a number of character references primarily from medical colleagues and former employees. The parties agreed that this material was relevant to the disciplinary orders stage of the hearing (stage 2) if that point is reached. 1. In addition the following material was placed before the Tribunal at hearing: 1. a diagram of the lay out of the consulting room drawn in hand by Patient A (Ex A2); 2. medical records relating to Patient A from the Blacktown Community Mental Health Service, belonging to three principal periods, 2003-04, 2013 and 2016-17, provided to the Tribunal on or about 25 July 2017 in reply to a summons issued at the request of the respondent (Ex R2), but not seen by the Tribunal members ahead of the hearing; and 3. print outs additional to those behind Tab 19 of Ex A1 relating to the referring practice's treatment of Patient A, covering the period 17/9/2015 to 27/4/2017. The print outs were filed in response to a summons issued at the request of the respondent made returnable shortly prior at 9.30am on the morning of the hearing, and not seen by either the parties or the members of the Tribunal until that time. 1. We mention these matters because the submissions made on behalf of the respondent at hearing sought to take account of the Mental Health Service material. The submissions questioned the reliability of Patient A's account of what occurred in the consultation room, having regard to the Mental Health Service records and also the referring practice's records. The records note, for example, that Patient A had reported sexual abuse as a child, and that she had a recent assessment of borderline personality disorder. 2. The following documents were marked for information: an extract (pages 39 to 41 from a US Department of Justice report (November 2000) on the Prevalence, Incidence and Consequences of Violence Against Women (from the applicant); and a summary of Patient A's mental health treatment history and diagnoses drawn from the Blacktown Community Mental Health Service patient records, prepared by the respondent. 3. Patient A, Dr Brew and the respondent each gave oral evidence. Patient A and the respondent were cross-examined. Further Hearing 1. In the course of our deliberations, we reached the view that it would be desirable to give the respondent an opportunity to answer questions we had in relation to the contents of the report he sent to the referring GP after the consultation under notice. We reconvened on 15 November 2017 for that purpose. 2. The parties asked for the opportunity to make final written submissions taking account of the transcript of evidence. The Tribunal agreed to give parties access to the transcript of the earlier hearing, and to obtain a transcript of the resumed hearing and provided access to it. Respondent's counsel filed written submissions on 8 December 2017, and the applicant's counsel filed written submission in reply on 19 December 2017. (Applicant's counsel had also filed written submissions in conjunction with the original hearing (dated 14 September 2017).) Background 1. The respondent practises as a specialist in neurology and clinical neurophysiology. 2. He graduated MB BS from the University of Dhaka, Bangladesh, in 1983 at the age of 24. He completed an internship and migrated to Australia in 1985. He obtained an Australian Medical Council certificate in 1986. He has now practised in Australia for 31 years. 3. He was employed as a resident medical officer and in similar capacities between 1986 and 1993, primarily at the Concord and Woden Valley hospitals. In 1993 he passed the FRACP exam and started Neurology Advanced Training in Clinical Neurophysiology in hospitals in metropolitan Sydney, completing his studies at Prince of Wales Hospital in 1999. He has held registration in New South Wales continuously since 1994. Since 2001 he has practised as a specialist consultant in neurology and clinical neurophysiology in both public hospital and private practice settings. 4. He presently practises at Suite 4, Hereward Specialist Medical Centre, 11 Hereward Highway, Blacktown. 5. The consultation under notice occurred a few days before Patient A turned 29. She had two children, who were then aged about 5 and 2. She had frequently raised with various GPs at the referring practice her concern over pain that she reported regularly experiencing in her lower abdomen, arms and legs. They had been unable to find any physical cause for the pain, raising the possibility that the cause might be psychosomatic. On 11 November 2015 a GP (Dr M Mirshahmir) decided to refer her to the respondent for an assessment that resulted in the consultation under notice. Patient A stated she also raised with Dr Mirshahmir her continuing concern that a possible source of her pain (which she often described as 'pins and needles') was the caesarean scar (usually referred to as a c-section scar) on her stomach. She had had both her children by caesarean section. 6. As will emerge below, the letter of referral did not refer specifically to this possibility. Patient A raised her concern with the respondent during the consultation on 1 December 2015. He decided to examine manually her c-section scar. The nature of his manual examination is the key issue in this case. 7. She lodged a complaint with the HCCC on 8 January 2016 (details below). The Medical Council considered it appropriate to impose conditions on the respondent's registration pursuant to s 150(10(b) of the National Law. The respondent consented to the proposed conditions, and they took effect on 25 January 2016. The detail of the conditions is set out in the HCCC's material for these proceedings (see further ExA1, Tab 14). 8. They were subsequently varied on two occasions. 9. They imposed various reporting obligations on changes to the nature and location of his practice, and his relationship with other doctors. Their main feature was the imposition of chaperone conditions in relation to any procedures on female patients. Patient Complaint 1. On 8 January 2016 Patient A made a complaint to the HCCC. 2. She stated that she arrived at the respondent's practice at about 3.50pm on 1 December 2015. A staff member (Mr Partington) conducted a nerve conduction test on Patient A's arms. She was then taken to the respondent's consulting room. She continued as follows (we have amended some of the spelling): ... (Dr Dowla) showed me to his office. I walked through his office door first then he followed closing the door behind him. Dr Dowla walked over to his chair that looked like a leather office swivel one and sat down as I walked over to my chair that seemed to be the same one; but cannot be sure. After Dr Dowla told me my test results, I told him my doctor wanted me to ask him about the pain I am having across my c-section scar and that I have been having shooting pain going down my legs from each end from the c-section. After I told him I stood up and showed him with my hands where the shooting pain is on each leg at the same time, over my pants. Dr Dowla told me he would like to have a look and he showed me to the medical bed in his office. Dr Dowla pulled back the curtains and I propped myself up on the bed and laid back. I pulled my leggings down just under my c-section scar because I am a private person. As Dr Dowla was examining my c-section he was saying that he noticed I have excess skin about my scar from having large babies, he also observed that my c-section was barely noticeable and that he believes there to be little scarring beneath the c-section scar. Then without any warning or permission given, Dr Dowla lifted both my pants as well as my underwear and slid his hand down my leg through my underwear with his hand rubbing my vagina as he made his way to my inner thigh. He then slowly rubbed back up and down my inner thigh with his fingertips. Then with his fingertips he slowly touching [sic] my vagina as he moved his fingertips to my other thigh. Whilst he was performing these indecent acts he was asking me where the shoot pain [sic] was and generally acting as if what he was doing was ok. I was froze-up [sic] and too nervous to say something. I was trying not to cry. After he was done he pulled his hand out of my pants and pulled the bottom of my shirt back over my lower stomach. I then returned to my seat feeling unsure of what to do. Dr Dowla then returned to his chair behind his desk and told me that everything seem [sic] to be fine. He then started asking me inappropriate and personal questions like – am I single, am I close to my family, if I have any friends, if I am working, what do I do in my spare time. I was very upset and nervous at the time so I was answering very quickly and trying to wrap up the conversation. Once he had learned that I am in an off and on again relationship, not very close to my family and have no friends and studying app development at home while not working he made a remark that [made] me even more nervous. It was something along the lines of 'so you're all alone at home?". Throughout these exchanges I couldn't help but notice the movement of his chair, which was noticeably jerking up and down. When I first noticed this I realised that at least one of his hands was below the desk. I cannot say for sure where the other hand was as I quickly averted my eyes not wanting to see anything else. I truly believe that Dr Dowla was masturbating while asking me questions. As I got up to leave he asked me if he could give me his number. When I asked him why he said that I could make him an app even though I explained to him I just started my course. I took the number just to hurry up to get out of there. As I took the number he added that I should not call him but only contact him by TXT. Even though I had no intentions of contacting him in any way. Once I got outside of the building I broke down crying. I had put my trust in Dr Dowla as a health professional and he had betrayed my trust and made me feel as though there is nowhere I can feel safe. I have been anxious and scared every day since and I can hardly bring myself to go to the local shopping centre out of fear that I might have to have any kind of interaction with a man on a daily basis [and?] have panic attacks. 1. As we noted in our introduction, the respondent acknowledged in his reply to the application that he did provide Patient A with his mobile number but only for the confined purpose of texting him if she made an app. He said his intention was to encourage her to make apps. Medical Records 1. The medical records relevant to the consultation are as follows: (a) Letter of Referral The material part is as follows: Dear Michael, Thank you for seeing [Patient A] for an opinion and management regarding bilateral wrists nerve studies ?carpal tunel syndrom [sic]. Current medications are: Citalopram 40mg Tablet 1 Daily Lyrica 150mg Capsule 1 Twice a day Allergies Nil known Past Medical History: Not recorded. (b) Clinical Notes The respondent's handwritten notes of the consultation are found in a pro forma document headed 'Patient Cover Sheet'. The sheet is divided into three sections: 'allergies and alerts', 'medication' and 'past history'. The notes are written across the first two parts of the document, and use abbreviations. They appear to note the following: 1. Patient A had depression at age 14, that she is a mother with two children, 2 and 5, is 28 years old, and is separated. 2. The medication taken by the patient recording the same quantities and dosages seen in the letter of referral 3. Her level of alcohol consumption and appears to note it as 50 gr-80 grams twice per week 4. That she has experienced pain in the wrists for 2 months. 5. That the patient has 'vague numbn pa' of the hand which we interpret to mean numbness and paraesthesia of the hand. 6. That she can't lift anything. 7. That since her two caesareans she has experienced pain in the form of burning pain in the groin and legs, on and off. (c) Report back to Referring Doctor dated 1 December 2015 The respondent reported back by letter, as follows (formal parts omitted): Diagnoses: [Patient A's identity details] Depression. Somatoform pain disorder Many thanks indeed for referring this 28-year-old single mother who presents with 2 months of intermittent pain in her wrist and also vague numbness and paraesthesia and numbness in both hands. Sometimes, she will have an episode where she is unable to lift anything due to severe paraesthesia but will last only a few minutes and then goes away. It is usually triggered by stress. She also suffers from severe episodic burning pain in her groin and legs for no apparent reason. She links it with caesarean section on 2 occasions. [Patient A] is living with her 2 children, 2 and 5 years of age. She smokes 15 cigarettes per day. She also drinks 50 to 80g on 2 occasions per week. She is currently taking citalopram 40mg daily and also Lyrica 150mg twice a day. On examination she was alert, orientated and cooperative. All cranial nerve functions were normal including visual field and fundi on panoptic ophthalmoscopy. Muscle tone, power and reflexes were normal and symmetrical with down going toes. There was no cranial tenderness or bruit. She had no weakness, wasting or sensory impairment. All tendon reflexes were present and symmetrical. A nerve conduction study of her upper limbs was performed as follows: [TABLE OF RESULTS SET OUT, divided into: Sensory NCS, L Hand and R Hand following by graphical tables; Motor NCS divided into R Median – APB (Palm) and R Ulnar – ADM; and H Reflex divided into R Median – FCR and R Radial ECR] Conclusion: The study shows no evidence of focal or geralized [sic] neuropathy. Opinion: I suspect her symptoms are functional and there are elements to suggest somatoform pain disorder. I suggested her to continue her usual medication. She should be referred to a psychologist. Respondent's Initial Response to Complaint 1. On 29 February 2016 the applicant invited him to respond formally in writing to the following matters raised by the complaint. We set out the entirety of this letter, as the respondent's limited response to the questions asked was a close focus of cross-examination at hearing. Please provide a detailed explanation of your consultation with [Patient A] on 1 December 2015. In providing the explanation please ensure you address the elements she raised in the complaint: 1. That you placed your hand inside her leggings and underwear whilst she was laying on the examination table; 2. That you did not gain consent from her before placing your hand inside her leggings and underwear; 3. That you touched her vagina; 4. That you touched her inner thigh; 5. That after the examination you asked her a number of personal questions such as her relationship status; 6. That you appeared to be masturbating under the desk whilst you asked these questions; 7. That you gave her your mobile phone number; 8. That you instructed her not to call you on the mobile number you gave her but to send text messages. Please provide your response, a copy of [Patient A's] medical records, and a copy of your current CV which includes full details of your current employer within 14 days. 1. The respondent replied by letter dated 11 March 2016, as follows: I saw [Patient A] on one occasion on 1st December 2015 at around 4.00pm. She came in with a complaint of pain, paraesthesia (tingling) and numbness in her hands and wrists (as requested in the referring general practitioner letter by Dr M Mirshahmir). During the consultation she also complained of burning pain in groin and legs on and off. Initially she underwent a nerve conduction test ... She then saw me in the next room no 4. I explained the test results to her and she then told me that she thought that her doctor had sent her to check on her pain around her caesarean section. I showed her Dr Mirsharmir's referral letter which requested assessment of her wrist pain with no mention of lower abdominal pain. [Patient A] stood up and showed her lower abdomen around the caesarean section and thighs where the pain was originating and radiating. [Patient A] requested that I examine her and indicated that she would not like to leave without getting an answer to this pain. I agreed to assess this to satisfy her and stood up and asked her to lie down on the couch. The curtains were not pulled back. She lowered her leggings only to the level of the caesarean scar. He underpants were not lowered. At no time did I place my hand inside her leggings and underwear. I never asked her to pull down her underpants. I never touched her vagina. My hand never went below the caesarean scar. There was no question of gaining consent for something I was not going to do. I have reassured her that her caesarean scare was unlikely to be the cause of her symptoms. I strenuously deny the allegation that I masturbated during the consultation. I did not find any explanation for her wrist or lower abdominal pain. My preliminary diagnosis was 'Somatoform pain disorder' as the underlying cause. Asking family history and social psychodynamics is a normal set of questions I usually ask any given patient with suspected 'Somatoform pain disorder' or 'somatic symptom disorder – SSD'. I did ask who she lived with and about children, but I did not ask anything directly about her partners. I only found out about her previous relationships following receipt of the HCCC complaint. I did discuss her interest in 'apps'. I have keen interest in 'apps' development. Since 2014 multiple IT consultants visited me and I have lengthy discussions about app developments. I gave her my mobile phone number only to encourage her to make 'apps', not to have any social relationship. I asked her to text me so that I am not disturbed during patient consultations and to keep evidence why I need to call a person back. The phone lines in our medical centre are usually busy and I often get complaints from patients and doctors about this. About 5-10% of my patients have a mobile number. They are reliable and do not abuse this privilege. This gives me reliable information about any problems my patients or referring doctors are facing in obtaining an appointment. At the end of the consultation I told her that she did not require any further follow up from my end. I then dictated my letter where I put 'Somatoform pain disorder' as a diagnosis. The letter also recommended a psychological review. The letter was posted to Dr Mirsharmir in the next few days. Patient's Formal Statement 1. On 17 March 2016 Patient A completed a formal statement, prepared for her signature by the applicant. A day earlier her sister (who will refer to as X so as to assist in ensuring the effectiveness of the suppression order relating to Patient A's identity) also completed a typed statement. It referred primarily to the account given by Patient A to her sister a few days after the consultation of what she said occurred, and their discussions about what action she should take. 2. In the formal statement Patient A expanded on her account of the conduct of the respondent. It is not clear whether she had at that point seen or been made aware of the contents of the respondent's statement dated 11 March. 3. In relation to the circumstances of her arrival at the respondent's rooms she said (para 6): I was told to go to a room for the nerve conduction tests and as I was walking down the hallway to the room I saw two males who looked like they worked there 'oogling' me [sic]. I was wearing a black t-shirt with a low cut scoop neck that was made of a thin material that was almost see-through so I felt self-conscious when they started looking me up-and-down. 1. In para 7 of the statement she expanded on the conversation between her and the respondent over the nerve conduction results. She said: Dr Dowla explained the results of the nerve conduction tests and in so doing said to me, words to the effect 'you don't have carpel tunnel'. He also said something about the pain being stress related. I felt very relieved as I knew that recovering from surgery for carpel tunnel would be very difficult. There was then silence of a moment and I said words to the effect 'oh that's right, my doctor told me to tell you about my C-section scar'. I started to explain to Dr Dowla about my pain and was demonstrating to him where the pain in my legs was. Dr Dowla said to me words to the effect 'can you stand up and show me'. I stood up and showed him with my hands a straight line running from end of my C-section scare along the top of my thigh bones down each thigh. 1. At hearing Patient A gave a demonstration of how she placed and moved her hands. 2. In para 8 she gave a similar account to that in her complaint as to her exposing that region of her body to enable him to see the c-section scar. She said: I was wearing a T-shirt and jeggings (jean leggings). He didn't give me any instructions but I lifted my shirt a little and pulled my jeggings down to just below the C-section scar so that just the lower section of my stomach was showing. 1. In para 9 she gave a fuller account of the respondent's actions with his hand. She said: Dr Dowla then, without any notice, or consent, lifted my jeggings and started rubbing in a deep circular motion with hard pressure my C-section scar. I felt uncomfortable that he had lifted up my jeggings and could see into my underwear. I said to Dr Dowla words to the effect 'sorry about that' referring to the small ingrown hairs in that area. Dr Dowla then put his other hand inside my jeggings and under my underwear and through the leg hold of my underwear. As he did this he swiped his hand against the top of my vagina with his fingers. Dr Dowla then rubbed my left inner thigh and made a slow rubbing motion, movement that an intimate partner would make. As he did this he said words to the effect 'so you get pain down along here'. I said words to the effect 'yes, yes, yes' but I was clenching my jaw and feeling very uncomfortable. He then moved his hand back up my inner thigh, and across the inner thigh of my right leg. In doing so he slowly rubbed the top of my vagina again, using his fingertips. He again asked me words to the effect 'and here?'. Again I said words to the effect, 'yes, yes, yes'. Dr Dowla then pulled his hand out from underneath my jeggings. 1. She continued at para 10: We then sat back at the desk. I'm not sure if the desk was a straight desk or whether it curved around but we were on either side of it. Dr Dowla said words to the effect 'I don't feel any deep tissue scarring'. He said something else briefly but I don't recall what. 1. At para 11 she set out the exchanges between her and Dr Dowla about he social life and her interest in developing apps. 11. Dr Dowla then started to ask me a number of questions and was looking straight at me almost staring at me. We had a conversation consisting of words to the effect of: Dr Dowla: do you have any friends? Me: No Dr Dowla: Are you close to your family? Me: No I'm not. Dr Dowla: Do you have a boyfriend? Me: On and off again. Dr Dowla: What do you do? Are you working? Me: No I do a TAFE course. Dr Dowla: what do you do? Me: I do a gaming course. Dr Dowla: Why do you do that? Me: Cause I want to make apps. 12. I was feeling very nervous so I answered the questions quickly to try and wrap up the conversation. 1. There is no dispute that a conversation along these lines occurred, though Dr Dowla denies that it was unnecessarily intrusive. 2. At paras 13 and 14 she referred to her perception that he masturbated in her presence during this conversation. Her statement was more specific in some respects than her original complaint. For example she said relevantly: 13 ... I couldn't help but notice the movement of his chair and of Dr Dowla himself noticeably jerking up and down. I could only see Dr Dowla from the belly-button up as he was sitting at the desk. I can't recall if one hand or both hands were under the desk. I think the chair he was sitting on had wheels and it was an office chair. The chair was quite springy. It immediately occurred to me that the type of movement that Dr Dowla and the chair were making was consistent with someone masturbating. I didn't want him to know that I knew what he was doing and tried to look away. 14. I didn't notice him making any similar movements at any other time during the consultation. 1. In para 15 she referred to the exchange that led up to the respondent giving her his mobile number. 15. Dr Dowla then said words to the effect 'Oh if you make an app give me a call'. Dr Dowla wrote a mobile number on a small piece of paper and handed it to me. I said to him words to the effect 'No no no I just started, I don't know anything yet, I'm in the very beginning of my course'. Dr Dowla was insistent and said words to the effect 'Take my number. Don't call me, just text me.' I took the piece of paper. 1. Her statement went on to refer to the emotional distress after she left the building, her call to her partner telling him of her anger over what had happened. In that regard she said 17. When I got home [NAME] was at the house. I asked him to get a bottle of alcohol. I don't normally drink but a drank a lot as I was feeling so upset at what had happened. I took it out on [NAME] but he stayed with me that night. 1. She went on to refer to the conversation she had with her sister, X, a couple of days later, the steps she took to get legal advice, and the receipt of advice to make a complaint to the applicant. 2. In her statement, her sister X referred to her conversation with Patient A a few days later. In relation to the critical issue of the extent of the practitioner's manual examination of her lower abdomen and thigh, X gave the following account of what Patient A told her: [A] said the doctor was pushing around on her stomach and down her thigh. I can't recall whether she was dressed, she may have said something about the doctor pulling her pants down a bit low to look at her scar. She said he wasn't examining her like a normal doctor but he instead he was rubbing or massaging her thigh. She used the words 'very inappropriate' in describing how he was doing this. [A] said something about the doctor moving his hand from one thigh to the other and in doing so he moved his hand across her private area. [A] said he did this 'purposely'. [A] said this confirmed for her that he was purposely touching her inappropriately. [A] said she felt 'too scared' to say anything or get up and that, words to the effect 'all I wanted to do was cry'. 1. In the course of the investigation, there was no further substantive statement from the respondent. 2. It emerged at hearing from consideration of Patient A's statements and her oral evidence, and in answer to questions from the Tribunal, that she, and the particulars, had not used the term 'vagina' with its strict anatomical meaning. She did not allege that the respondent's hand or fingers had reached inside her to touch her internal genital organs or the birth canal of her body. The allegation is that the respondent had touched her in and around the pubic bone (pubis) in the area immediately above the genital area. 3. The parties agreed that we should proceed on the basis that the conduct in issue had not involved any entry into the vagina as such, but concerned alleged touching in the pubis, as described. Patient A's Evidence at Hearing 1. Patient A adopted the account given in her complaint and in the statement made 17 March 2016. Her answers in cross-examination were substantially consistent with the statement made in her complaint and the formal statement made 17 March 2016. 2. She acknowledged that as she was lying on her back when the respondent conducted the physical examination she could not see what the respondent was doing and her account is based on what she felt. 3. Counsel for the respondent placed before her the records acquired by summons from the Mental Health Service, in particular clinical notes made by Dr Ganda. The Tribunal file shows that they were provided to the Tribunal on 27 July 2016 and uplifted by the applicant on 2 August 2017, with the applicant agreeing to provide a copy of the documents to the respondent at a summons hearing held 30 August 2017. It is not clear when the respondent's representatives first saw these documents. 4. We were concerned over the witness being confronted by professional records of mental health consultations. We moved the proceedings into closed session to hear submissions from counsel about how this line of questioning might proceed. 5. The medical members of the Tribunal expressed concern over Patient A being called on to interpret and respond to questions relating of the contents of detailed professional notes and records of statements she had made confidentially to her treating doctors and to the conclusions recorded in those notes, without any prior notice or opportunity to see those notes. They also expressed concern over the possible psychiatric impact on Patient A of proceeding in this way. Her history suggested she had mental health vulnerabilities. 6. Ultimately, respondent's counsel agreed not to place the medical records in front of her in the way initially contemplated, but sought leave to refer in submissions to the medical history revealed by the two sets of medical records, those from the referring practice and those from the Mental Health Service. The Tribunal indicated it would prefer this course to be adopted. 7. On resumption, cross-examination continued. In response to questions that suggested that her account of what occurred in the respondent's consulting room may have been coloured by her reported history of abuse by men, she agreed that this history had made it difficult for her to be with men and be confident in their presence especially in intimate situations. But she said that she had not had this concern in the past with male professionals such as doctors, and felt safe. She had always trusted male doctors. 8. She acknowledged that her sister X's account of their conversation a few days after the consultation did not indicate that she had made any reference to the degree to which the respondent's hand or finger touched her 'vagina' or vaginal area. She said that she probably only said to her sister that he brushed her private area, and had only specifically mentioned his action in relation to her thigh. 9. She firmly denied the suggestion that the respondent did not put his hand inside her jeggings or underpants. Expert Evidence 1. We will refer to Dr Brew's evidence more fully later in these reasons. There was no substantial challenge by the respondent to Dr Brew's conclusions that the conduct alleged by Patient A, if found proven, would justify the entry of serious adverse disciplinary findings. The Respondent's Evidence at Hearing 1. The respondent firstly adopted and confirmed his statement made to in his letter to the applicant on 11 March 2016. 2. In response to questions by way of examination-in-chief from his counsel, he referred in fuller detail than had appeared in his statement of 11 March 2016 to the way he examined her c-section scar area. He said he had run the fingers of his right hand along the scar, to check whether the scar was tender, whether there were any nodules, and asked her questions about whether it was burning, whether she felt any burning sensation and what the area was of any pain. He said she was talking to him all the time, and no discomfort was reported. He said that at the most, a finger might have been slightly below the level of the scar. 3. Over objection, he then proceeded to give evidence of his touching of her thigh area. In the statement of 11 March 2016 he had made no reference to this aspect of Patient A's complaint despite being asked to do so by the applicant's covering letter (question 4). 4. He said he used the tendon hammer on her knees and thighs to check her reflexes, and after that, he proceeded to check manually her lower limbs. He said that he touched her upper thighs. He said that her jeggings were still on, and he did not touch under them. 5. He was closely cross-examined in relation to his additional evidence. 6. He was questioned as to the likely reliability of his recollection of the consultation. He said that he had about 20-25 patients on a full day. He worked three full days a week and he also worked two half days when he saw 12-15 patients. He agreed that by the time the notice of complaint reached him (sometime in mid to late January 2016) he would have seen perhaps another 300 patients. He claimed to have a specific memory of the consultation with Patient A, and to remember exactly whom he saw before and after her. 7. In relation to the issue of professional boundaries (the subject matter of Particular 4), he agreed that he had no medical reason for giving Patient A his mobile phone number. He accepted that he had thereby crossed a professional boundary. We will refer more fully to this evidence when setting out our findings. 8. His account in cross-examination of the first stage of the consultation with Patient A was similar to that given by Patient A. He agreed that she lay on the examination couch, and adjusted her clothing so as to expose the c-section scar. 9. He said he palpated her scar, and was not wearing gloves. He acknowledged that he had a modesty blanket on hand in the room but had not used it, as he did not want to take off her jeggings. He then went to the lower limb, the leg and the thigh. He tested the reflexes. He did not think it was necessary to test power in the leg. He said that in that process his finger did touch the outer thigh on the outside of her clothing. He said he never touched the inner thigh. 10. He acknowledged that he did not ask permission to touch the thigh, as he was only asking her to indicate where the pain was getting to. He said his finger was on the jeggings – limited to the middle and outer thigh areas. 11. Counsel put to the respondent Patient A's version of events. He acknowledged the general accuracy of paragraphs [7] and [8] of her formal statement of 11 March 2016, but firmly denied most of the detail of para [9] except for the touching of the (clothed) thigh on the outer and middle areas. 12. In relation to his activities at the desk he said that he had a fountain pen in his hand and he was writing down what she was saying but he did not record everything. 13. He denied that he had engaged in any act of masturbation in her presence. 14. He agreed that any manual examination of the kind alleged by Patient A, any touching in or near her genital regions and masturbation on his part amounted to unprofessional conduct of a serious kind. 15. In reply to Dr Reid, the respondent agreed that this was the only occasion on which he had seen Patient A, and he had not expected to see her again. 16. His evidence had been that he had been interested by her comment that she was interested in developing an app for use in connection with health practice. That had led him to offer ongoing assistance as needed. To a question as to how realistic that was, he answered that he was 'not sure' if she had sufficient knowledge of medical practice to be in a position to develop an app with such a use. 17. He went on to say that he had discussed this subject with her as a way of encouraging her interest. He commented that his was not a Western style of medicine in this respect but rather an Eastern style. He said that it was in his nature to encourage patients to pursue positive interests and developments. He said that in about 1 in 20 cases he would end by giving his mobile number sometimes for medical reasons, sometimes for social reasons with patients from his own ethnic background. He went on to refer to his interest in IT and the development of apps generally, and described the technician at his practice who attends to the IT needs of the practice as 'a great IT guy'. 18. In answer to Professor Krause, he said that he did not perform a full neurological examination on Patient A but he did examine the cranial nerves in an eye examination. He said that he usually examines patients with their clothes on. Further Evidence at Resumed Hearing (15 November 2017) 1. Professor Krause questioned the respondent on the contents of his report back to the referring GP dated 1 December 2015. Professor Krause expressed the view that the text of that report would appear to suggest that the respondent undertook a full neurological examination. The report said relevantly: On examination she was alert, orientated and cooperative. All cranial nerve functions were normal including visual field and fundi on panoptic ophthalmoscopy. Muscle tone, power and reflexes were normal and symmetrical with down going toes. There was no cranial tenderness or bruit. She had no weakness, wasting or sensory impairment. All tendon reflexes were present and symmetrical. ... 1. In reply the respondent acknowledged that his evidence did not reflect a full neurological examination of the kind depicted in this text. He said that the text was an auto-text inserted in reports of this kind. He repeated his previous evidence that he had only touched her outer and middle thigh along neurological pathways. 2. Dr Reid questioned him on his practices in relation to preparing reports to referring GPs. He said he dictates first of all, and then inserts any psychiatric history after the patient has left. That material goes to the typist, and neurophysiology data is inserted (the nerve conduction study report in this case) and it is printed out and he signs. He said sometimes he deletes or adds text before he signs. He conceded that a GP receiving this letter would have read it as indicating that he had undertook a full neurological examination. 3. In response to those questions, respondent's counsel asked him to describe the kind of examination he undertook. The respondent reiterated his previous evidence that he had run his fingers along the outer and middle thigh areas following nerve pathways, over her jeggings. 4. Applicant's counsel asked questions comparing his handwritten clinical notes with the contents of the report back to the referring GP. The respondent conceded that his handwritten notes did not expressly refer to the issue of the c-section scar as a possible pain source. They referred to her experiencing pain in her wrists for the last 2 months and that she had vague numbness of the hand and paraesthesia in the hand, and difficulties lifting. (We note in that regard that the last of his handwritten notes did note the fact of her caesareans and the experiencing of pain in the groin and legs.) He said that the c-section scar issue had been raised as a secondary issue, after those notes had been made. 5. As to the use of autotext, the respondent said the third paragraph (the one set out above) was autotext. He said he had dictated paragraphs 1 and 2. We note that paragraphs 1 and 2 do closely accord with his handwritten notes. In answer to respondent's counsel questioning, he said that the autotext paragraph, paragraph 3 was 'accurate'. Onus of Proof 1. The applicant must prove its case on the civil standard, the balance of probabilities. The balance is to be struck in the case of grave allegations in a way that is mindful of the caution sounded by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 363: 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. 1. As higher courts have repeatedly emphasised in recent times, there is only one standard in civil litigation, the balance of probabilities. Briginshaw does not set a different standard for certain classes of proceedings such as disciplinary cases. Consideration Particular 1 1. There are five sub-particulars. They are the critical matters in this case. The respondent denies each of them. They deal with the events at the physical examination stage of the consultation. 2. The patient has given a detailed and consistent account of her encounter with the respondent. She has described in a generally consistent way the physical examination that he conducted. She made her initial complaint five weeks after the consultation. It is a carefully expressed complaint. Her sister's evidence is that Patient A talked about it in similar terms to her, but in a less specific way. Patient A's formal statement to the applicant, given on 11 March 2016, was generally consistent with her original statement and the account reported by her sister, and contained some additional detail, as we have noted earlier in our reasons. 3. Patient A was, in our view, a good witness at hearing. She recounted her evidence and answered questions in a clear and thoughtful way. She was prepared to acknowledge limitations in her evidence, especially in relation to the extent to which she could be certain that the respondent had been engaged in an act of masturbation when he was seated opposite her behind his desk with his lower body hidden from view. 4. She firmly rejected challenges to her testimony in relation to the intrusiveness of the respondent's physical examination. 5. In our view Patient A's testimony was at all stages consistent and specific. While (as noted below) we have found not proven the particular relating to an alleged act of masturbation, we note that Patient A's accounts have consistently been qualified, and she has made it clear at all times that she did not see directly an act of masturbation but inferred that was what was happening from surrounding circumstances. She was, we consider, consistent and careful at all times in the scope of the allegation she made in that regard. 6. The main objection raised to acceptance of Patient A's testimony is based on the material found in the medical and mental health records produced at hearing. It is plain that Patient A has received counselling and treatment for conditions diagnosed as depression and has been assessed in recent times with borderline personality disorder marked by high stress levels. 7. We have noted in our introduction the lateness of the stage of the proceedings when these records were summonsed and became available. We accept that they point to a history of mental health difficulties on the part of Patient A. But no evidence has been placed before us of an expert kind as to whether the information found in those records suggest a degree of mental disorder at the time that Patient A attended on the respondent or at the time she made her complaint statements (8 January 2016, 17 March 2016) that might cause us to doubt their accuracy, or conclude that they might have been affected by a propensity to imagining wrongful conduct or exaggerating and misinterpreting proper medical practice. We also note that in his report back to the referring doctor, the respondent described Patient A as 'alert, orientated and co-operative'. 8. We note that the patient gave a similarly consistent and detailed account to her treating doctor at the Mental Health Service on 20 January 2016 (see pp 43-47 of the medical records summonsed from Dr Ganda). (We note one page, 45, is marked 19/1/15, this is clearly a clerical error.) 9. In our view, she presented at hearing as sound in mind, and did not engage in any exaggeration or embellishment of the evidence she gave. We acknowledge, as respondent's counsel submitted, that she did indicate some discomfort being around men in general, but we also accept her evidence that until this event she did not have that anxiety in relation to male doctors. 10. A central difficulty with the respondent's evidence is that only at hearing did he acknowledge that he had engaged in an examination below the c-section scar. He did not refer to this in his statement in reply to the complaint dated 11 March 2016. In his formal Reply (9 August 2017) to the disciplinary application he made general denials. He still gave no account of any examination below the c-section scar. In his statement of 11 March 2016 he referred to one limited form of examination, involving the surface of the c-section scar. He did not address the specific question put to him by the applicant (Q4) as to whether he had touched her inner thigh. At hearing he gave evidence that he had touched both thighs (clothed) in their middle and outer regions. He did not in our view give an adequate explanation of his failure to refer to these aspects of his examination in his letter of 11 March 2016. 11. His evidence at hearing on this point tended therefore to strengthen rather than weaken the applicant's account of the sites of examination that followed the c- section scar examination. In his initial reply he said his hand never went below the c-section scar, with the implication that he did not examine any other part of her body. Nor did he refer in the letter of 11 March 2016 to his testing reflexes using the tendon hammer. There is no reference in any of Patient A's evidence to him using the tendon hammer. We do not accept that he used a tendon hammer. 12. He was unconvincing as to why he had not reported to the applicant at the first opportunity that he had engaged in a below c-section scar examination that had involved the general areas of the body referred to by the patient in her complaint – the region of her groin and her upper legs. 13. We had difficulty, as the decision to hold a further hearing reflects, over the apparent inconsistency between his report back to the referring doctor as to the extent of the neurological examination undertaken and the actuality as described by him in evidence. He chose to tell the referring doctor that he had completed a neurological examination of a comprehensive kind. Such an examination would routinely involve direct physical contact between the hands of the doctor and the skin of the patient, or between instruments used by the doctor (such as tendon hammers) and the skin of the patient. We have rejected his evidence that he used a tendon hammer. There were other aspects of the respondent's evidence, which we found problematic. We refer later in these reasons to his implausible explanation for giving her his mobile phone number. We think his conduct in that regard carries some weight in forming a view as to the possibility of a sexualised examination of the patient. 14. He failed to give a full account of his examination in his first response to the HCCC. On the day of the hearing he gave a different account. Neither account tallied in significant respects with his clinical notes or the report he gave to the referring doctor. We reject his explanation of an automated text (autotext) inserted by his staff to explain these discrepancies. The claimed autotext is unstructured and repetitive. 15. We are satisfied that Patient A was lying flat on her back after she got up on the examination bed, and lowered the top of her jeggings enough to expose fully her c-section scar. Her account of what then occurred is based on her feeling of the movement of the respondent's fingers and hand rather than direct visual observation. The critical allegations are that he ran his fingers and hand under her jeggings and underpants, and then proceeded to continue to run fingers or a hand along her inner thighs. 16. Dr Reid and Professor Krause note that these areas do contain nerve pathways related to a c-section scar that for proper neurological reasons may have to be examined. There may be circumstances in which an examination where indicated, involving these intimate and erogenous zones of the body may be sufficiently able to be conducted by moving along the outer garments of the patient especially where those garments are thin and tight-fitting in the way jeggings are. 17. One of the difficulties we (deleted for the reasons explained in the supplementary reasons delivered on 6 April 2018) have with the respondent's evidence is that he does not report having given any warnings to the patient that he was about to embark on a course of touching that involved those areas of her body (even if, as he says, in the case of the thighs he confined his examination to the relatively non-erogenous middle and outer thigh regions through her jeggings). She reports no warnings as to the procedure he was about to undertake, and he has given no evidence of providing any warnings. 18. In our view, the patient's evidence is to be preferred over the respondent's. We are satisfied as to her credibility. We are satisfied that hers is a generally accurate account of what occurred, in particular in relation to the respondent placing his hand and fingers under her jeggings after lifting them and proceeding to run his hand across her pubic area, and then running his hand down onto her thighs touching her inner thighs in the process. We reject his evidence that he only engaged in an examination that took place on the outside of her clothing and did not involve the inner thighs. 19. In preferring the patient's account on these matters, we have taken into account that we have not preferred her account on the primary matter the subject of Particulars 2 and 3 (the allegation of masturbation). In that regard we do not doubt the genuineness of the patient's testimony. We simply do not think, it contained sufficient direct evidence of the actions he is said to have engaged in to justify a finding on the balance of probabilities against the respondent. Her evidence was too inexact. 20. Equally we have given some weight in preferring the patient's version of events in relation to Particular 1 to our findings in respect of Particular 4. In our view, the possibility that the respondent had taken an interest in the patient of a sexual kind (reflected by an inappropriate physical examination) is strengthened by the highly inappropriate conduct in which he engaged in the last part of the consultation (providing his personal mobile phone number to a young female patient who he had never met before, and who was unlikely to see him again). In our view, his evidence at hearing involved a belated attempt to engage with Patient A's consistent evidence that he had engaged in a physical examination of the kind she had described. With his new version of what occurred, he sought to describe a form of examination that was of a non-sexualised kind, involving the running of the hands over the outer garment, and touching areas of the body not ordinarily regarded as erogenous zones. There is nothing in his original statement, in his clinical notes or his report back to the referring doctor that might confirm or corroborate such an account. 21. In our view, each of the factual particulars alleged is established to the civil standard of proof as informed by the observations in Briginshaw v Briginshaw, with the general qualification that the touching involved the pubic area as distinct from the vagina itself. The further particulars are established. He undertook the physical examination without the consent of the patient, and he did so without a valid clinical indication or reason for doing so (sub particulars (b) and (e)) and he did so without providing an appropriate modesty cover (sub particular (a)). 22. In our view, this misconduct was so grave that it constitutes professional misconduct in that it is a form of unsatisfactory professional conduct that is of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration (see s139E). Particulars 2 and 3 1. Both Particulars includes an allegation that the respondent engaged in an act of masturbation while at his desk and asking her questions. 2. To reiterate the Particulars are: 1. On 1 December 2015 the Practitioner engaged in an inappropriate sexual act in the presence of Patient A in that he masturbated under the desk whilst speaking to her. 2. On 1 December 2015 the Practitioner asked Patient A questions concerning her personal life whilst masturbating under the desk. 1. Patient A did not in her complaint or subsequent formal statement give any evidence of directly seeing actions on the part of the respondent that involved masturbation. She has consistently said that she inferred that he was engaged in that act as he spoke to her, because of the way his chair and the desk were moving, and the lack of visibility of at least one of his hands. For example, in her complaint, she said: 'I cannot say for sure where the other hand was'. 2. In her formal statement she gave a similar account, and said the type of movement was 'consistent with someone masturbating'. 3. At hearing she stated that she 'believed' he was masturbating in her presence 'but couldn't see what he was doing' (because of the desk). 4. In our view, these proofs are too inexact to allow us to reach a state of reasonable satisfaction on the balance of probabilities as to their accuracy. 5. We find Particular 2 not proven. 6. Particular 3 has two components. The second component refers to the act of masturbation, which we have found not proven. We accept the patient's evidence that he did ask her personal questions of the kind she listed. 7. The personal questions may have gone unremarked had they occurred as part of an introductory background discussion between a practitioner and a patient without any surrounding misconduct. But here these questions were asked after an examination that elicited no abnormalities and that, according to our findings in relation to Particular 1, had a sexual connotation. 8. We are satisfied that at the point these questions were being asked the neurological examination was no longer orthodox, and there did not exist a proper professional basis for the asking of questions of this kind. A patient having experienced an examination that had a sexual dimension would, we think, reasonably regard the asking of personal questions shortly thereafter as having the same sexual dimension, and find them offensive and intrusive. 9. We find Particular 3 proven, to the extent that the respondent asked personal questions without having established a proper clinical foundation for them. Particular 4 1. This particular is not widely cast. To reiterate it is that: On 1 December 2015 the Practitioner failed to observe appropriate professional boundaries in that he wrote his mobile phone number on a piece of paper, gave it to Patient A, and asked her to contact him if she developed a mobile phone application or 'app'. 1. There is no dispute by the respondent as the facts asserted in this Particular. This event occurred in the last part of the consultation. 2. He has acknowledged that he had no medical reason for his conduct. He conceded at hearing that his action was inappropriate. While he sought to justify the giving of a mobile phone number to patients for social reasons on an ethno-cultural basis, those factors were not present in this encounter. Patient A is not from his ethno-cultural background. 3. In our view his conduct clearly amounts to unsatisfactory professional conduct. It was conduct that, in our opinion, demonstrated that the judgment displayed by the respondent was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Our conclusion is similar to that reached by Professor Brew (see tab 10). 4. It is important to the maintenance of public trust and confidence in health professionals that they be seen to deal with patients in a detached and case-specific way. Normally, medical practitioners exercise great care in the extent to which they make personal contact details, such as personal mobile phone numbers, directly available to patients. We recognise that there may be limited circumstances where the giving of a private mobile number is appropriate for care reasons, especially where the patient may have a condition that can alter suddenly. 5. The respondent's answers at hearing pointed to an undisciplined and careless approach to this issue. 6. In this case he was dealing with a young woman who he was meeting for the first time and in circumstances where he was unlikely, given his recommendation to the referring GP, to have any further need to see her. He had ascertained that she had a troubled medical history. The justification that he gave her his mobile number because he was interested in any apps that she might develop was implausible. Patient A had no special expertise or knowledge in IT or in the practice of medicine and the respondent already has the services of a competent IT technician. We do not accept his evidence that he gave her his number because he was keen to encourage her interest in IT. In our view, he gave her his number with a view to fostering a personal relationship with Patient A. In our view, Patient A rightly saw that interest (see both her statements) as unwanted, unwelcome and inappropriate. 7. We find the Particular proven, and the conduct to amount to unsatisfactory professional conduct in that it was conduct that fell significantly below the standard reasonably expected of a practitioner of an equivalent level of training and experience, and was improper and unethical. It is unnecessary we think in this case to go into any detailed consideration of the ethical guidelines on the issue of maintaining proper boundaries in professional relationships, especially with young, vulnerable patients that may have a troubled emotional history marked by episodes of treatment for depression. See further, Good Medical Practice: A Code of Conduct for Doctors in Australia (March 2014), [8.2], Professional Boundaries. Orders 1. The Tribunal finds the respondent guilty of professional misconduct in relation to the conduct the subject of Particular 1. 2. The Tribunal finds the respondent guilty of unsatisfactory professional conduct in relation to part of the conduct the subject of Particular 3 and the whole of the conduct the subject of Particular 4. 3. The matter is to be listed for a further hearing in relation to the appropriate disciplinary orders (Stage 2). ******** 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 Amendments 19 March 2018 - 12 April 2018 - The reasons have been amended and are to be read with the supplementary reasons published 12 April 2018 - MNC [2018] NSWCATOD 52 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: 12 April 2018