Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Hopper [2018] NSWCATOD 39 Hearing dates: 12 and 13 February 2018 Date of orders: 16 March 2018 Decision date: 16 March 2018 Jurisdiction: Occupational Division Before: O Shub, Principal Member Dr S McKelley, Senior Member Dr S Philipson, Senior Member Ms J Hollen, General Member Decision: 1. The Respondent is found guilty of Unsatisfactory Professional Conduct and Professional Misconduct. 2. The Respondent's registration as a registered chiropractor is cancelled. 3. The Respondent is not permitted to seek re-registration for a period of 12 months. 4. The Respondent is to pay the costs of the Hearing. Catchwords: Chiropractor, Unsatisfactory Professional Conduct, Professional Misconduct, criminal charge, improper touching, indecent assault, gowning down, removal of clothing and underpants Legislation Cited: Health Care Complaints Act 1993 Health Practitioner Regulation Law (NSW) (National Law) Crimes Act 1900 Cases Cited: Briginshaw v Briginshaw 1938 HCA 34; 1983 60 CLR 336; Gaed v Walton (1997) NSWSC 279; Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Howe (2010) NSWMT 12 at [113]; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 613; Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [67]; NSW Bar Association v Meakes [2006] NSWCA 340; Prakash v Health Care Complaints Commission (2006) NSWCA 153 at [91]; Sudath v Health Care Complaints Commission (2012] NSWCA 171;84 NSWLR 474 at (100); Texts Cited: Code of Conduct for Chiropractors Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Mr James Ellis Hopper (Respondent) Representation: Counsel: Mr L Fernandez (Applicant) Mr S Barnes (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Unsworth Legal Pty Ltd (Respondent) File Number(s): 2017/00269898 Publication restriction: Non-publication Order with respect to the identity of, and in relation to, Patient A REASONS FOR DECISION 1. The proceedings arise out of complaints brought by the Health Care Complaints Commission (HCCC) having consulted with the Chiropractic Council of New South Wales in accordance with s. 39(2) and s. 90(3) of the Health Care Complaints Act 1993 and s. 145(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), whereby the Applicant complains that the Respondent, being a Chiropractor registered under the National Law is guilty of Unsatisfactory Professional conduct and Professional Misconduct, and has been convicted of a criminal offence in the State of NSW. 2. The Respondent was first registered as a Chiropractor on or around 11 February 2005. At all times relevant to the complaint, the Respondent operated a private practice known as Active Healing ("The Practice"). 3. Patient A had attended The Practice for treatment on approximately 53 occasions between 24 November 2011 and 7 July 2015. The complaint alleges that the Respondent has been convicted of a criminal offence in the State of New South Wales. 4. For the purpose of clarifying the issues, each particular of the Claim is followed by the Respondents' position, in bold. 5. PARTICULARS 6. On 28 October 2016 the Respondent entered a plea of not guilty at Hornsby Local Court to one charge of assault with act of indecency pursuant to section 61(L) of the Crimes Act 1900 and was convicted of the offence, following a hearing. Admitted. 1. The circumstances of the offence, as particularised in particulars 3 to 25 below, render the practitioner unfit in the public interest to practise the profession of chiropractic. Does not admit. 1. On 7 July 2015 Patient A attended the Practice for treatment with the practitioner at the scheduled appointment time of 5.30pm ("The Consultation"). The Consultation commenced at approximately 5.45pm at which time the Respondent and Patient A were alone at the practice premises. Admitted. 1. Patient A had attended the practitioner for chiropractic treatment on over 50 prior occasions in relation to tightness in her back and a tilted pelvis. At previous consultations the Respondent had performed pressure point massages on Patient A. Previous consultations had lasted for approximately 30 to 40 minutes and never longer than 45 minutes. Admitted. 1. At previous consultations where the Respondent performed massage treatment, Patient A had changed into a hospital type gown under which she wore her bra and underpants. As part of the massage treatment the Respondent would, at times, adjust the gown and unhook the clasp on Patient A's bra. Admitted. 1. At the commencement of the consultation the Respondent asked Patient A to lie on her stomach, untied her gown and stated that he was going to give Patient A a massage. Deny. When Patient A attended, the Respondent spoke with her in the consulting room. He obtained a history and recommended treatment by way of remedial massage. He then showed Patient A to the physiotherapy room as the treatment table was more appropriate for massage. 1. The Respondent commenced massaging Patient A's back and unclasped Patient A's bra. He then said words to the effect of "let's get this off" before removing Patient A's gown and both bra straps. Deny. The Respondent asked Patient A if he could undo the clasp of her bra to enable massage of her back. Patient A consented. 1. The Respondent continued the massage then placed Patient A's hand on his upper thigh, close to his groin area, later placing it back next to Patient A's head. Deny. The Respondent placed Patient A's hand on his mid-thigh whilst he massaged her shoulder and upper arm. 1. The Respondent continued massaging down towards Patient A's lower back. He then placed his hand on the waistband of Patient A's underpants and said words to the effect of "do you mind if I take these down a bit?", to which Patient A said "yep''. The Respondent then pulled Patient A's underpants halfway down her thighs. Admitted. 1. Whilst massaging Patient A's lower back and bottom, he massaged in an up and down motion which involved touching the area between Patient A's bottom cheeks. The Respondent agrees that he may have massaged Patient A's gluteal muscles, and may have come in contact with her gluteal cleft, but did not touch her anus. 1. The Respondent moved downwards towards Patient A's legs and removed Patient A's underpants from her left leg so that they remained hanging from her right ankle. At this time Patient A was completely naked. Admitted, but notes Patient A's underpants were not removed from her left leg until the Respondent was massaging her lower legs. 1. The Respondent massaged Patient A's upper, inner thighs and in doing so touched Patient A's outer labia with his fingers. Admitted. 1. The Respondent then removed Patient A's underpants from her right ankle and placed them on a chair. Admitted. 1. The Respondent then held up a towel and asked Patient A to turn onto her back, covering her breasts and groin area with the towel. Admitted. 1. The Respondent massaged Patient A's head before moving to her shoulder and chest area at which time he moved the towel so that Patient A's right breast was exposed. Admitted, but notes that the towel moved during massage. The Respondent did not move it. 1. The Respondent then massaged the sides of Patient A's breasts followed by both breasts at the same time including touching Patient A's nipples at times. Admitted, but notes that the massage of both breasts occurred from the insertion of the pectoralis major muscles laterally. 1. The Respondent then massaged Patient A's stomach before pulling the towel up to cover her breasts, thereby exposing her groin. Patient A adjusted the towel to cover her groin and the Respondent then further adjusted it so as to expose Patient A's groin again. Admitted, but the Respondent does not accept the towel exposed Patient A's groin. It covered her groin and upper legs. 1. The Respondent then massaged Patient A's inner thigh, at times bringing his hands into contact with the outer labia. Admitted. 1. The Respondent then bent Patient A's right leg out to the side and continued massaging Patient A's inner thigh, at times placing his fingers between the outer labia. The Respondent then performed the same action in relation to Patient A's left leg. Admitted that each leg was externally rotated at the hip, for the purpose of massaging Patient A's thigh. The Respondent does not admit placing his fingers between Patient A's labia, but rather admits that the side of his hand touched the outside of her labia. 1. The Respondent then bent both of Patient A's legs out to the side and massaged her vagina in an up and down motion with strong pressure including using his fingers to massage in between the outer labia. Deny. The Respondent admits that both of Patient A's legs were slightly externally rotated at the hip to about 15 degrees. The Respondent does not admit touching Patient A's vagina, or massaging it in an up and down motion. 1. Whilst massaging Patient A's vagina, the Respondent said words to the effect of offering her a "happy ending" and "How are you feeling?" "Do you want more?". The Respondent denies massaging Patient A's vagina. The Respondent admits making the comment "I should almost offer you a happy ending". 1. Patient A then said words to the effect of "I'm alright. It's enough" after which the Respondent moved down to massage Patient A's legs and feet. Admitted. 1. The Respondent concluded the massage and instructed Patient A to sit up on the table and handed her the gown. He then performed spinal alignments for approximately 5 minutes. Admitted. 1. Following the conclusion of the consultation the Respondent charged Patient A $56, the cost of a standard consultation. He did not charge Patient A for the massage, for which the Respondent would ordinarily charge an additional fee. Admitted, but notes that he was unable to charge any alternative fee as a result of his being a Medibank Private preferred provider. 1. The Consultation lasted for approximately 1 hour and 30 minutes. Admitted. STATUTORY MATRIX 1. Relevantly, s. 139B (part only) and s. 139E of the National Law are in the following terms. Meaning of "unsatisfactory professional conduct" of a registered health practitioner generally (NSW) 139B meaning of unsatisfactory conduct of registered practitioner is: 1.Unsatisfactory professional conduct includes each of the following: a. Conduct that demonstrates that the knowledge, skill or judgment possessed or care exercised by the practitioner in the practice of the practitioners profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and b. 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: 1. Unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioners registration; or 2. 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. 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. 2. It is generally accepted that we are required to be "comfortably satisfied" that the matters and complaints have been established from the balance of probabilities; a well-known principle established in Briginshaw v Briginshaw (1938) HCA 34; (1983) 60 CLR 336. 3. Briginshaw involved a consideration of the proof of adultery in Family Law proceedings. We find the following observation of Dickson at [368] – [369] of assistance albeit that it applied to considerations of adultery: "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 survives, a careful scrutiny and appear precise and not loose and inexact. Further circumstantial evidence cannot satisfy a sound judgment of a stated fact if it is susceptible of some other not-improbable explanation. But if the proof is produced 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 unsatisfactory professional conduct or professional misconduct in the manner which he conducted himself when treating Patient A in the early evening of 7 July 2015. PROTECTED JURISDICTION OF THE TRIBUNAL 1. s. 3A of the National Law states: "In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration". 1. The jurisdiction of the Tribunal is protective rather than punitive. The Tribunal's jurisdiction is to be exercised both for the protection of the public, and for the protection of the profession. Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 613. 2. The Tribunal's role in protecting the health and safety of the public is not limited to consideration of the direct protection of individual members of the public from the incompetent or unethical practice of the relevant practitioner in proceedings, but rather extends to an interest in protecting the public more broadly by maintaining and communicating professional standards, signalling disapproval of unethical and incompetent conduct and thereby enhancing both professional standards and the public's trust in the health professions. Health Care Complaints Commission v Do [2014] NSWCA 307 at [35]. 3. In exercising the protective jurisdiction the Tribunal is required to take into account the maintenance of the standards of the chiropractic profession, preserving public confidence in the chiropractic profession and the protection of the community. Gaed v Walton (1997) NSWSC 279; Prakash v Health Care Complaints Commission (2006) NSWCA 153 at [91]; Health Care Complaints Commission v Howe (2010) NSWMT 12 at [113]; Health Care Complaints Commission v Litchfield (1997) NSWSC 297; (1997) 41 NSWLR 630 at [637]. 4. Section 149C(1)(c) of the National Law provides that the Tribunal will cancel the registered health practitioner's registration, if the Tribunal is satisfied that: (c) The practitioner has been convicted of, or made the subject of, a criminal finding for an offence, either in or outside this jurisdiction and the circumstances of the offence render the practitioner unfit in the public interest to practice the practitioner's profession. ISSUES FOR DETERMINATION 1. The Tribunal is required to consider the evidence of Patient A and to determine whether the evidence in regard to the touching by the Respondent of Patient A's anus, breasts, nipples, vagina and clitoris should be accepted and that such touching was not incidental or accidental in relation to the treatment. In addition, the Tribunal is required to consider the findings of the Magistrate who found the Respondent guilty of inappropriate touching by the Respondent of Patient A and imposed a sentence of 200 hours of community service upon the Respondent. It is clear that the Tribunal is entitled to have regard to the transcript of evidence in the Magistrate's Court hearing and to the decision made by the Magistrate in His judgment, but it is also clear that the Tribunal is not bound by the decision of the Magistrate. 2. The Tribunal has to consider the evidence given by the Respondent and the Respondent's conduct over the period of time since the complaint was made, the appearances before the Chiropractic Council and his evidence in the Tribunal hearing and to determine whether the Tribunal accepts that the Respondent's touching of Patient A in the places alleged was incidental or accidental. 3. APPLICANT'S EVIDENCE 4. The Applicant tendered as Exhibit 1, a bundle of documents with Tabs 1 to 31, which included, inter alia: 1. a Certificate of Conviction; 2. the transcript of Local Court proceedings on: 1. 14 March 2016; 2. 8 July 2016; 3. 28 October 2016; and 4. 7 December 2016. 1. Statements made by various parties to the police; 2. Expert statements of Dr Andrew Paul and Dr Roger Ingle; and 3. S. 150 proceedings (transcripts) dated 16 July 2015 and 11 November 2016. 1. The Applicant indicated that it was not intended to call any witnesses and the Respondent stated that no witnesses were required for cross-examination. 2. That concluded the evidence of the Applicant. RESPONDENT'S EVIDENCE 1. The Respondent tendered as Exhibit 2, a bundle of documents containing Tabs 1 to 4. 2. The Respondent was then called to give evidence and was sworn. 3. The Respondent was asked to confirm his statement, contained as part of Exhibit 2. He did so. He was also asked whether he had had time to reflect on what had happened, and confirmed he was extremely sorry and remorseful for what he did to Patient A and to the name of the profession. He was questioned on what he would do if he were allowed back to practise, and he indicated that he would not do any massage work, would not work on a female patient and would not call for "gowning down". 4. That concluded the evidence given by the Respondent and the Respondent was cross-examined. 5. Much of the particulars of the complaint have been admitted. In particular, the Respondent admitted that he touched Patient A's buttocks in the process of massaging the gluteal muscles, but denied that he had touched her anus. 6. In regard to the removal of the bra, it is admitted that the bra was removed, but there is conflict over whether he said "let me get this off" and stated that he would have used words such as "can I unclasp your bra?". When challenged as to whether he would have said that or whether he remembers having said that, he responded that he did say that. It was put to him that Patient A said that he just took it off, which he denied. 7. There was extensive cross-examination of him in regard to whether he touched her breasts or did not, and he consistently denied the fact that he had touched her breasts. In his evidence he stated that he would have touched the muscles next to the breasts. 8. Significant questioning proceeded on whether this was the first occasion on which the Respondent had massaged Patient A's buttocks. He indicated that he "supposed so". 9. In respect of touching of the vagina and clitoris area, the questioning went to the removal of Patient A's underpants down to her ankle, leaving the underpants hanging from one ankle only, which he stated he did in order to massage her thighs. 10. He admitted that subsequently, he removed the underpants entirely. He was questioned extensively on why he removed the underpants, as opposed to simply lowering them when necessary and returning them to the waist when he had finished the massage in particular areas. His explanation was that he had done that because he did not want to stain her underpants with oil which he was using during the massaging process. It was put to him that he removed the underpants because he wanted to see her naked, which he denied. 11. In respect of an allegation that in conducting the massage the Respondent was touching Patient A lightly in a playful manner, he denied this and stated that he had been putting strong pressure on Patient A's muscles. 12. In respect of the allegations made in the particulars of the complaint that he touched the outside of Patient A's vagina, that he touched her pubic hair and that he touched her clitoris, the Respondent sought to consistently deny that it had happened, but subsequently admitted that if it had happened, it would have been accidental or incidental to the general massage which he was conducting. 13. He was asked whether the massage which he was conducting could have been done with Patient A "gowned down" and wearing a bra and underpants, he conceded that this could have been done. 14. Cross-examination then turned to the touching of the breasts and the use by the Respondent of a towel to give some privacy to Patient A, who was now naked. The towel was described as being rectangular with a long section that could have gone from Patient A's neck to below Patient A's groin, and probably to her knees, whereas the Respondent had chosen to place the towel so that the narrow side of the towel would have gone from Patient A's breasts to just below Patient A's groin. 15. In the process of massage, the Respondent confirmed that the towel would have moved while he was massaging various parts of Patient A's body and that at some time the breasts or the groin could have been exposed. He stated that in respect of the breasts, he did massage the pectoralis muscles that are under the breast. It was put to him that he also touched her nipples four to five times, to which he said that he did not think so. He was cross-examined on the fact that he would have known what nipples feel like and that he would have known if he had touched her nipples, but indicated that he didn't recall that and didn't believe so. 16. Cross-examination then turned to the fact that massage of this nature would normally be only one pectoralis muscle at a time so that the other breast could have been covered, but that he had used both hands which was unusual. He conceded that he had done so. It was suggested that he went over her nipples over and over again, to which he responded that he had not done that intentionally. He did however confirm, that there were times when her breasts were exposed and her groin was exposed. He stated that her groin would have been exposed when he lifted her knee to massage her thigh. The towel would have fallen slightly down and her groin would have been exposed. 17. Finally, the Respondent was questioned about his reference at the end of the massage when he stated he should give her a "happy ending". This he stated was intended as a joke and that he did not intend it to have a sexual connotation. He did however concede that it was inappropriate language, and that it was more appropriate to a change room, than to a treatment room. The Respondent was pressed on his understanding of the words "happy ending" as having a sexual connotation, and said that he did not think of it as a sexual issue when he made the statement, and compared it to men in a locker room talking about having a "rub and tug". It was put to him that that would be a sexual reference to masturbation. He was only prepared to concede that it could be perceived that way. The Respondent was referred to the transcript of the Magistrate's Court hearing at Tab 5 of Exhibit 1, and in particular pages 101 and 102, where it was put to him that "happy ending" means orgasm. He denied that he meant an orgasm. 18. It was put to him that he was offering to bring Patient A to a climax, which he denied. 19. Cross-examination continued to address questions regarding the touching and the Respondent consistently maintained that if he had touched Patient A, it would have been accidental or incidental to the massage, but in the end conceded that he had probably touched Patient A in the places alleged, but still maintained that it was accidental. 20. In regard to the evidence he gave in response to questions by his Counsel regarding his remorse and the feeling of sorrow for what he had done, he was asked whether his concern related to the Patient or to himself. He stated that he was concerned for himself. He had been shamed and did wrong, and he has to accept it for what it is. It was put to him that he doesn't accept that he was found guilty on the criminal charge. He stated that he did accept that he was found guilty of touching Patient A's anus, breasts and vagina, but he denied that it was sexually motivated. 21. That completed the cross-examination and there was no re-examination. 22. Questions were put to him by the Tribunal members; in particular the Respondent was asked why he did not ask Patient A whether she felt uncomfortable to have her underpants removed. He stated that he did ask her and she said that he could take them off. 23. The Respondent was questioned on the style of treatment he was conducting on Patient A, and the fact that he hardly does massage treatment. It was put to him that he changed rooms, he used oil which he had not previously done, and did a massage which he states that he doesn't usually do, particularly with Patient A who he had seen multiple times previously. He stated that his only concern about taking off the underpants was because the oil that they use could stain her underpants. He was asked whether he removed underpants before, and confirmed that he had loosened bras previously. 24. Questions were put to him about which pectoral muscles were being treated, he stated that the upper pectoral muscles were being treated and then moving lower. 25. In respect of touching Patient A's vagina he confirmed that the touching could have been contact between his hand and her vagina where the leg meets the pelvis. It was put to him that where the vagina is does not meet where the leg meets the pelvis, but he stated that he worked on the side and not in the middle. 26. The evidence then concluded and the matter was adjourned to allow for submissions. APPLICANT'S SUBMISSIONS 1. The Applicant made written and oral submissions to the Tribunal which are set out below. 2. The Magistrate's findings make clear that the circumstances of the offence render the Respondent unfit in the public interest to practise the Respondent's profession (Exhibit 1, Tab 5, at 4-5; emphasis added): One could well imagine that in carrying out proper therapeutic massage, the kind of treatment involved here and the kind of areas involved, there may on one or two odd occasions, or the occasional accidental touching particularly through clothing, that might be innocent and accidental. But here the allegation is of several components of touching and whilst it can be incidental and accidental coverage or contact, the evidence here seems to be of contact well beyond that but not only that we have a position where the panties have been removed, the length, circumstances of the consultation and the "happy ending" comment made by the Respondent. When one looks at the picture in its entirety one gets a fairly clear and compelling picture. 1. The Magistrate found (Exhibit 1, Tab 5, at 5-6; emphasis added): The question is what was the overall context circumstance evidence of what actions were made and done by the Respondent. Clearly if the production allegation [sic], the allegations coming forward from the patient are made out, it is clearly well beyond any issue of appropriate treatment. The overall circumstances seem to show a progression of action by the Respondent moving from area to area, perhaps emboldened by the circumstances he emphasised in the record of interview and to an extent his evidence in court, and that is that the patient was not complaining, she was being compliant. … Again the overall picture we have here is a fairly clear one. A longer than normal massage, a belief of some relationship beyond that of just patient and treating professional. No-one else around, An attractive young woman, removing her paties has never been done before. She is fully naked, very scant coverage by towels as might be the case in a professional action being taken. Exposed, even on his own evidence, significantly exposed and a touching which on part he says might have been incidental, accidental, but clearly on the evidence of the patient it would amount to deliberate touching of the nipples, anus and then also the vulva and the location – well around the clitoral area. Again, the context of a sexual environment and emboldened action, a comment by him about "happy ending". No dispute, it is a well-known expression know [sic], common knowledge as to what is meant by that expression, that is finishing off a massage for a patient by bringing them to orgasm, the reference to happy ending is in part the action of some quick rubbing of the clitoral area is consistent with that although certainly there is no evidence that it progressed to a sustained action of that kind or indeed ended with an orgasm by the patient. So in those circumstances I am satisfied the evidence is more than sufficiently cogent to establish intentional touching of those areas as indicated, that that clearly is well beyond any proper consent from the patient, well beyond any proper action in terms of therapeutic treatment. It constitutes an assault, it constitutes acts of indecency. I therefore find the matter proved. 1. The Magistrate made findings at the hearing on the criminal standard of proof, which is proof beyond reasonable doubt. That is a much higher standard than the standard of proof in this Tribunal, which was stated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 - 363 as: 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. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. 1. Dr Hopper denies any intentional conduct involving Patient A. Circumstances frequently arise where a factual question entrusted to an administrative tribunal has previously been the subject of inquiry or resolution by a court or another tribunal: Minister for Immigration and Border Protection v Truong [2016] FCAFC 54 at [67]. 2. The role of the Tribunal in these circumstances is to "exercise its own judgment with an eye to the performance of its duty to protect the public": Sudath v Health Care Complaints Commission [2012] NSWCA 171; 84 NSWLR 474 at (100). 3. Dr Hopper's case that any contact with Patient A was accidental was not accepted by the Magistrate, and should not be accepted by this Tribunal. Patient A described a course of conduct by the respondent, which occurred over 45 minutes. It involved Dr Hopper deliberately touching Patient A's breasts, nipples, buttocks, anus, vagina, labia and clitoris. Dr Hopper did this after he had fully undressed Patient A and she lay naked in front of him. And following the above conduct, while Patient A was fully naked, he made a clearly sexual reference to a "happy ending". 4. The circumstances of the offence were very serious because: 1. Dr Hopper had Patient A lie completely naked and then massaged her without specific injury to the sacral attachments of the gluteus maximus or piriformis muscles (Statement of Dr Andrew Paul,[9]). 2. It was not appropriate for Dr Hopper to place Patient A's hand higher up onto his thigh nearer to his groin {Statement of Dr Andrew Paul, (10]). 3. There would be no reason in a general massage to be massaging the breast tissue and nipples. If breast tissue was required to be massaged such as in the need to perform lymphatic drainage of the issue one breast would be done one at a time and not both breasts as Patient A described (Statement of Dr Andrew Paul,(11)). 4. Dr Hopper said that it was a definite possibility that he rubbed the outer lips of Patient A's vagina. This was even more concerning because he massaged this region for 5 - 8 minutes (Statement of Dr Andrew Paul,[13]). 5. Dr Hopper recalled his little finger coming into contact with Patient A's vagina for up to a minute. Dr Hopper should have been very careful so as not to touch the labia of the vagina (Statement of Dr Andrew Paul,[14]) . 6. Dr Hopper said, "I should give you a, you know, happy ending after that" while massaging Patient A's inner thigh muscles while Patient A was lying on her back with her leg bent and out to the side, her underpants removed from one leg and at least part of her pubic hair and genitals exposed. This was completely inappropriate. It was a sexual comment made after the contact with Patient A's breasts, nipples and vagina. 7. Patient A's genital region was completely exposed during the treatment (Statement of Dr Andrew Paul, [17]). 8. Patient A was left exposed and uncovered, with no appropriate draping of towels or some other material while Dr Hopper worked on sensitive areas such as the genitals and breast tissue. To be working on the patients legs and having the pelvis and pubic bone and vagina in full view without coverings was very unprofessional (Statement of Dr Andrew Paul,[18)) . 9. There was no adequate clinical reason for why Dr Hopper removed Patient A's underpants as he massaged her leg. Massage of the leg muscles in question can be adequately performed with the underpants on and in their original position. There is no explanation as to why Dr Hopper left the underpants on one leg. There was no reason for Dr Hopper to pull Patient A's underpants down below the buttocks or to remove them at all (even from one leg) given the treatment he was administering on that day (Statement of Dr Roger Engel, 4). 10. Given the nature of the presentation (i.e. tight pectoralis muscles), performing massage of the chest in the manner that he did on a female patient lying face up with her underpants pulled down to around one ankle and draped with a towel that exposed at least part of her pubic hair and genitals shows extremely poor judgement (Statement of Dr Roger Engel, 6). 11. Dr Hopper's actions during the consultation on 7 July 2015 clearly breach s. 3.2(g) of the Code of Conduct for Chiropractors, developed by the Chiropractic Board of Australia under s. 39 of the National Law. Dr Hopper's actions also raise serious questions about his judgment as a health professional {Statement of Dr Roger Engel,8). 12. Considering all of the conduct together, Dr Hopper's actions can only be seen to be about getting some form of sexual gratification (Statement of Dr Roger Engel, 8), or as some precursor to further sexual contact with Patient A. 1. Dr Hopper's conduct involved a serious breach of the boundaries that he should have had with Patient A, as well as a very grave breach of trust. His breach of trust was similar to that described by the Court of Appeal in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 [at 638]; emphasis added ): Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe. In this context we would adopt, with respect, the following statement from the dissenting judgment of Priestley JA in Richter v Walton (15/7/93, unreported) at 8- 9: "The degree of trust which patients necessarily give to their doctors may vary according to the condition which takes the patient to the doctor. Even in regard to the most commonplace medical matters the trust a patient places in a doctor is considerable. In some cases, of which the present seems to me to be an example, the patient's trust cannot help but be almost absolute. The doctor's power in regard to the patient in such cases is also very great. I do not mean power in an abstract way but as a matter of fact; the extent of the power will vary according to the temperament of the patient, but the doctor with some patients and for limited periods, because of the relationship in which they are temporarily placed, is in a position to do whatever the doctor wants with the body of the patient. This is one of the reasons why doctors are subject to correspondingly great obligations and are expected to maintain very high standards: all this being very much in the public interest." 1. Dr Hopper's conduct involved a serious breach of the boundaries that he should have had with Patient A. The impact of his breach upon the trust of the public in the chiropractic profession is very serious. 2. Dr Hopper: 1. Does not accept the deliberateness of his conduct, despite the clear finding of guilty and the determinations of the Chiropractic Council. 2. Continues to assert accidental touching, showing that he has not accepted the wrongfulness of his conduct. 3. Does not accept the clear sexual motivation in his conduct. That motivation is evident by the fact that Dr Hopper took all of Patient A's clothes off. There was no clinical basis for him to do this. He could have performed the whole consultation with Patient A wearing her underpants. 4. Refuses to accept the clearly sexual reference in "happy ending". This refusal is to minimise his conduct, although he clearly recognised the sexual reference involved when he appeared before the Chiropractic Council (Tab 23). His answer to the Council about the offer of a happy ending being akin to offering a male a "rub and tug" is very clear. 5. Is remorseful only because he took off Patient A's underwear, because he did not drape a towel over her, and because he did not seek proper consent. He is not remorseful for his deliberate conduct towards Patient A. 6. Is concerned only about himself and not patients or chiropractic practise. He believes that he needs to be careful to protect himself only. He has no thought for his patients or for his profession. 7. Cannot practise in a way in which the protection of the health and safety of the community is assured. His proposal to never undress a patient, and to only ever treat clothed patients, is dangerous to the care of any future patients. 8. Has proposed conditions which mean that he needs to be accompanied all the time. 9. Has no understanding or focus on his patients' perceptions. He is concerned only with himself and with protecting himself, and appears suspicious of all patients, thinking they may make false allegations against him if they were disgruntled. 10. Has no insight into any of the psychological issues that led to his conduct (Exhibit 2, tab 3 at 5). 11. To this day, remains oblivious to Patient A's reactions (Exhibit 2, tab 3 at 9). 12. Lacks a fundamental understanding of consent and how to deal with patients. 1. In NSW Bar Association v Meakes [2006] NSWCA 340 Basten JA stated: "[l]t may also be noted that the protective purpose may operate in different ways. First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession. The underlying purpose is not self-aggrandisement on the part of the profession, but a recognition of the social value in the availability of the services provided to the public, combined with an understanding of the vulnerability of many who require such services." 1. The need to deter others from engaging in conduct similar is a significant aspect of this Tribunal's protective orders. 2. The Applicant sought Orders that: 1. Dr Hopper's registration is cancelled pursuant to s. 149C(l)(c) National Health Law. 2. Dr Hopper is prohibited from providing health services for the period of the cancellation pursuant to s. 149C(S). 3. Dr Hopper may not apply for a review of the cancellation order for a period of 2 years pursuant to s. 149C(7). 4. Costs. 1. In addition to the written submissions provided by the Applicant, the Applicant made certain oral submissions at the conclusion of the hearing. The Applicant submitted that there has been a Magistrates' Court hearing and although the decision of the Magistrate can be challenged, and could have been challenged in the hearing, nevertheless the Magistrate's hearing accepted Patient A's evidence and that acceptance was not challenged. 2. In addition, the Applicant submitted that the Tribunal should accept the findings of the Magistrate. 3. In response to the Respondent's written submissions, and in particular paragraph 7 of those submissions where it was stated: The presiding magistrate did not make any specific findings as to what he regarded as to what had occurred other than to indicate he found the offence proven (Exhibit 1 Tab 6 pp 13-15). When attempts were made in the patient's evidence to have her precisely indicate where she claimed the Respondent actually touched her vagina she was not able to do so, the Applicant referred the Tribunal to Tab 5, page 127, lines 25-30 where the facts that he looked at are recorded. The Applicant then referred the Tribunal to Tab 5, page 131, lines 34-43 and page 132, line 4-8 and submitted this is in contradiction to the submission made at paragraph 7 of the Respondent's submissions. 4. In addition, the Applicant referred to the Respondent's submissions at paragraph 19, where the Respondent, in referring to Orders, sought to have the Tribunal conclude that the Respondent is not a sexual predator but that his behaviour was somewhat naïve or incidental or accidental touching. 5. The Applicant submits that it was an extended touching of areas which did not require massaging. The Applicant submitted that the Respondent was an experienced chiropractor who had been working for a long period of time. This was not incidental or accidental touching. 6. RESPONDENT'S SUBMISSIONS 7. The Respondent made written and oral submissions to the Tribunal. 8. On some matters there was agreement between the Respondent and Patient A, whilst on others there was not. 9. The Respondent admitted that he intentionally massaged the patient's gluteal muscles which necessarily involved her buttocks. 10. The Respondent admitted he massaged the patient's pectoral muscles which involved the top part of her breasts but denied massaging the lower part of the breasts. 11. The Respondent denied that he massaged the patient's vagina. Part of the massage treatment he provided to the patient involved her thighs. Whilst the Respondent conceded the possibility that in providing that treatment he may have touched the patient's external genitalia, any such touching was inadvertent. He had no specific recollection of actually touching the patient's external genitalia. 12. The presiding magistrate did not make any specific findings as to what he regarded as to what had occurred other than to indicate he found the offence proven (Exhibit 1 Tab 6 pp 13-15). When attempts were made in the patient's evidence to have her precisely indicate where she claimed the Respondent actually touched her vagina she was not able to do so. 13. The Respondent at all times denied that in performing the treatment he was motivated by any subjective intention to obtain sexual gratification. As he has done in these proceedings, he maintained that his sole focus was to attempt to alleviate the patient's pain and discomfort. 14. Evidence was given in the criminal proceedings by Dr Andrew Paul and Dr Roger Engel, registered Chiropractors and Osteopaths. Their evidence is relied upon in these proceedings by the Applicant. 15. In cross-examination Dr Paul gave the following evidence: 1. the actual treatment massaging the patient's gluteal, hamstrings and calves was fairly normal from a massage perspective (Ex 1 Tab 5 p 63:9-13); 2. if a patient had a bicycle accident or fall or had other soreness or issue in the muscles in their legs attaching to their pelvis, that could be treated as the Respondent did (Ex 1 Tab 5 p 64:7-10); 3. there appeared to have been a therapeutic basis for the treatment provided (Ex 1 Tab 5 p 64:45-47); 4. the description given by the patient of the treatment of the adductor muscles was normal (Ex 1 Tab 5 p 66:42-48); and 5. in treating the patient there was the risk of inadvertent touching of both the breast and vagina (Ex 1 Tab 5 p 68:3-5). 1. Dr Engel in cross-examination gave the following evidence: 1. the positioning of the patient for treatment of the inner thigh was appropriate subject to appropriate draping (Ex 1 Tab 5 p 73:38-50); 2. massaging the pectoral muscle may bring one close to the area of the breast (Ex 1 Tab 5 p 77:15-18); 3. massaging the most proximal end of the adductus muscle would bring one close to the patient's vagina (Ex 1 Tab 5 p 77:49- p 78:33); and 4. with it the possibility of inadvertent touching (Ex 1 Tab 5 p 79:16-29). 1. The Respondent denies that the treatment or any aspect of it was motivated by any subjective intention to obtain sexual gratification. 2. He accepts he should have better consented the patient (Statement paragraph 20); had her put her underwear back on once he had finished massaging her gluteal muscles (Statement paragraph 21) and had the patient put her bra back on after massaging her pectoral muscles (Statement paragraph 22). 3. The Respondent was so preoccupied with trying to obtain a good outcome for the patient that he lost sight of the very important issues of maintaining the patient's modesty and ensuring she properly understood what he was doing and was comfortable with it. 4. The Respondent has agreed in his evidence to the Tribunal that by the end of the consultation he had begun to sense the patient's unease which caused him to make the entirely inappropriate comment about a 'happy ending' 5. The Tribunal would not be reasonably satisfied that was an offer to provide some sort of sexual service. 6. The Respondent now has a criminal record. He performed 200 hours of community service for an offence the Court found fell at the middle of the range of severity. 7. On 11 November 2016 he was suspended. He had to close the practice at Chatswood and his family has had to relocate to Queensland to enable his wife to find full-time employment while he remains at home as the carer of their young daughter. 8. In respect of Orders the Respondent submitted that the Tribunal should not conclude that the Respondent is a sexual predator, such that cancellation of his registration is the only option. Rather it should conclude he is somewhat naïve and at the time of the consultation was deficient in his knowledge of patient boundaries and the necessity to obtain proper consent. 9. Significantly the Respondent has no other complaints against him of similar conduct despite what he described as widespread publicity concerning the criminal proceedings. 10. He has expressed contrition and remorse for the discomfort the patient undoubtedly felt when the treatment was performed. 11. The Tribunal would appropriately protect the public by lifting the Respondent's suspension and imposing conditions upon his registration including the following: 1. that he only practise as an employee; 2. that when he is working there be at least 1 other registered chiropractor in attendance; 3. supervision; 4. mentor; and 5. Chiropractic Council be the appropriate review body. 1. If the Tribunal felt it necessary to impose more significant orders in order to protect the reputation of the profession it might consider an order that the Respondent be suspended for some additional period of time. 2. The Respondent made oral submissions at the end of the hearing and submitted the fundamental issues are really what Orders should be made. 3. It is true that Patient A's evidence was not challenged, but in fact her evidence was in Exhibit 1 in the transcript Tab 5, and that was challenged in the Court hearing. The Respondent challenged the reference by the Magistrate to the word "vulva" (Tab 5, page 131, lines 34-43). The Respondent referred to Tab 5, page 18, line 5 and submitted that on Patient A's evidence alone, hardly grounds a finding of touching her clitoris. The Respondent has specifically accepted that he might have touched the outside of her vagina. 4. In addition, the Respondent denies that he touched the Respondent's nipples. 5. In respect of the removal of her underpants, he said that he did that but with consent, and he removed them to avoid soiling by the oil. 6. In reference to paragraph 15 of the HCCC submissions, the Respondent submitted that it is inappropriate to compare the Respondent with the position in Litchfield, it is quite different. He stated that the Respondent has had no complaint of this kind made against him, and therefore seizing on the worst case and using this for comparison is not reasonable. 7. The Respondent then addressed paragraph 17, suggesting that the Respondent has shown no insight into his behaviour. The Respondent submitted that the first s. 150 hearing was preliminary in nature and no witnesses, other than the evidence of the Respondent, was heard. They imposed conditions (Tab 23, page 4, line 36). 8. In regard to the second s. 150 hearing they determined, after the decision of the Magistrate, to suspend him pending the Tribunal's hearing. 9. In regard to paragraph 17(c) of the Applicant's submissions, the Respondent submitted that it would have been far worse if the Respondent had suddenly admitted that he intentionally, with sexual gratification in mind, changed his evidence and admitted to what he had not admitted in the criminal trial. 10. In regard to the criticism that the Respondent suggests that he take steps to avoid any potential future complaints is not unreasonable. A person having been through this experience could well be expected to provide defensive medicine going forward. 11. In answer to sub-paragraph (g), the Respondent referred to Exhibit 2, Tab 3, page 5, where he was not admitting to setting up for his own sexual gratification, but that he was considering Patient A. 12. In respect of sub-paragraph (k). Exhibit 2, Tab 3, page 9,. The Respondent submitted that Dr Walkley is not saying that he is oblivious to the Patient's reactions today, but he was at that time and the Tribunal should not find that he is currently oblivious to Patient A's reaction. 13. In respect of sub-paragraph (l), the Respondent admits that he should have explained more to this Patient, but there is no evidence that he lacked consent in relation to the Patient. 14. In reply, by the HCCC to the Respondent's oral submissions, the HCCC referred to various parts of the evidence in contrast to what had been submitted by the Respondent and in particular, Exhibit 1, Tab 5, page 18, line 37:"Yes he was touching my clitoris", Exhibit 1, Tab 24, page 6-13&14. DECISIONS AND REASONS 1. The Tribunal had regard to all the evidence before it, and the submissions both written and oral made by the Parties. In essence, the matter comes down to a question as to whether the Respondent behaved appropriately in the circumstances of his treatment of Patient A. 2. While the Respondent denied that there was anything intentional in his treatment of Patient A and the touching of various parts of her body with any sexual intent or for any reasons of sexual gratification, the Tribunal had considerable difficulty in accepting these submissions and evidence by the Respondent regarding his behaviour on that day. 3. The Tribunal has concerns about the fact that this treatment was done totally differently to treatment that he had ever done before with Patient A, and in fact, on his own evidence, with any other patients. The Respondent saw Patient A at a time when there was nobody else in his rooms. He took Patient A to a different room, he used oil which he had never done before and he removed her clothing, whether with or without her consent being irrelevant, and proceeded to conduct a massage for a period of time which he had never done before. In all the circumstances, and having regard to the evidence which has been given and tested, both in the Magistrate's Court hearing and in the hearings at the Chiropractic Council, the Tribunal is comfortably satisfied that it can come to no other conclusion but that the touching of Patient A in the places and in the manner in which this was done, and the removal of the clothing of Patient A when on all the evidence, was unnecessary for the type of treatment which the Respondent was giving to Patient A, that the Respondent's behaviour on this occasion, warrants a finding by the Tribunal that the Respondent's behaviour was intentional and for reasons of sexual gratification at a minimum. 4. While the Tribunal does not believe that the Respondent is a sexual predator, nevertheless behaviour of this nature by a chiropractor who works regularly on the body of patients, and who has direct touch on the body of their patients, is totally unacceptable and requires the strongest message to be sent, not only to the Respondent but to all members of professions where the treatment conducted by those professionals including, in particular, chiropractors, requires them to be in direct contact with the body and body parts of their patients. 5. In all the circumstances the Tribunal is comfortably satisfied that the complaint made against the Respondent is made out and makes the following Orders: 1. The Respondent's registration as a registered chiropractor is cancelled. 2. The Respondent is not permitted to seek re-registration for a period of 12 months. 3. The Respondent is to pay the costs of the hearing. 1. DECISION 1. The Respondent is found guilty of Unsatisfactory Professional Conduct and Professional Misconduct. 2. The Respondent's registration as a registered chiropractor is cancelled. 3. The Respondent is not permitted to seek re-registration for a period of 12 months. 4. The Respondent is to pay the costs of the Hearing. 1. RECOMMENDATIONS 2. The Tribunal strongly suggests that: 1. The Respondent engages a psychologist to work with him on his lack of insight into his conduct and the difficulty which he has in accepting that his behaviour and conduct was unprofessional and found to have been both criminal and professional misconduct. 2. The Respondent should engage a senior chiropractor as a mentor to work with him on a regular basis whilst undergoing sessions with a psychologist. 3. It would be wise for the Respondent to undertake normal occupational continuing professional development requirements for a registered chiropractic practitioner. In particular, the following areas should be addressed: 1. Trigger point therapy; 2. Anatomy and terminology used in chiropractic techniques; and 3. Professional communication courses. ******** 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: 16 March 2018