Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Cusi [2018] NSWCATOD 83 Hearing dates: 9, 10 and 11 April 2018 Date of orders: 01 June 2018 Decision date: 01 June 2018 Jurisdiction: Occupational Division Before: D A Cowdroy ADCJ, Principal Member Associate Professor A Garnham, Senior Member Dr S Howle, Senior Member S Lovrich, General Member Decision: 1.The Tribunal finds that the practitioner has engaged in unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and (l) of the Health Practitioner Regulation National Law (NSW) by reason of the findings proven above. Catchwords: PROFESSIONS AND TRADES - Medical practitioner – medical practitioner allegedly requiring female patient to remove clothing and bra for the purpose of conducting medical examination of sacroiliac joint – practitioner allegedly touching female patient on breasts and another patient on breast and other portions of her body allegedly for sexual gratification– whether such conduct occurred––whether appropriate explanation of manipulative treatment in close proximity to breast area was adequately explained- whether patient was provided with appropriate clothing and privacy- whether manipulative treatment necessarily involved touching to breast area. Legislation Cited: Health Practitioner Regulation National Law (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Briginshaw v Briginshaw (1938) 60 CLR 336 Chen v Health Care Complaints Commission [2017] NSWCA 186 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Harvey v Law Society of New South Wales (1975) 49 ALJR 362 Health Care Complaints Commission v Do [2014] NSW CA 307 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Hughes and Vale Pty Ltd v New South Wales (No2) (1955) 93 CLR 127 Mark Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 Refjek v McElroy (1955) 112 CLR 517 Sabag v Health Care Complaints Commission [2001] NSWCA 411 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Manuel Cusi (Respondent) Representation: Counsel: A Petrie (Applicant) C Jackson (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Avant Lawyers (Respondent) File Number(s): 2017/00273840 Publication restriction: An order is made under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) prohibiting publication of the name of the patients set out in the Schedule to the complaint. REASONS FOR DECISION 1. By application for disciplinary findings and orders filed on 8 September 2017, the applicant (HCCC) alleges that the respondent (the practitioner) is guilty of unsatisfactory professional conduct within the meaning of s 139B(1)(a) and (l) and/or professional misconduct within the meaning of s 139E of the Health Practitioner Regulation National Law (NSW) ("National Law"). 2. The complaint filed against the practitioner raises three separate grounds. Complaint One 1. Complaint One alleges unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law in that the practitioner has engaged in conduct that demonstrates the judgement possessed, or care exercised by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level or training or experience; and secondly, has engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Particulars of Complaint One 1. The particulars relate to the treatment of a 22 year old female (Patient A) who the practitioner was treating for a sacroiliac joint dysfunction. The first of three consultations occurred on 21 November 2011. Particular 1 alleges that the practitioner failed to provide an appropriate explanation to such patient or to obtain appropriate informed consent from her before he: 1. Told the patient to undo the button and zipper on her trousers in order to conduct an examination; 2. Pulled the patient's shirt up and tucked it into her bra. 1. Particular 2 alleges that during such consultation the practitioner failed to provide adequate privacy for the patient in that he did not provide shorts or a robe nor did the practitioner leave the room to allow the patient to remove her pants in private. 2. Particular 3 alleges that during the consultation on 21 November 2011, after asking the patient to remove her pants, the practitioner: 1. Rubbed the front of his trousers against Patient A's legs on up to 2 occasions; 2. Positioned himself behind the patient allowing his groin area to come into contact with the patient's buttocks in circumstances where the patient was: 1. Dressed only in her underwear; 2. Bent over the examination table with her feet on the ground and her stomach on the examination table. 1. Particular 4 alleges that on 15 December 2011, during the second consultation with Patient A the practitioner asked the patient to remove her bra to undertake an examination of her thoracic spine and a musculoskeletal assessment of the movement of her ribs in circumstances where it was not necessary for the patient to remove her bra to enable the practitioner to conduct such examinations. 2. Particular 5 alleges that during the consultation with Patient A on 15 December 2011, whilst the patient had her bra removed, the practitioner stood behind her and inappropriately: 1. Cupped both of Patient A's breasts in his hands for a short period of time; 2. Released his grip on one of Patient A's breasts and used that hand to apply pressure to the patients back and spine whilst keeping his other hand on the patient's other breast; 3. Repeated the process described above at para 8(2) in relation to Patient A's other breast. 1. Particular 6 alleges the practitioner engaged in inappropriate conduct of a sexual nature towards Patient A by reason of any of the matters referred to: 1. Particulars 3 and/or 5 above; 2. Particulars 1, 2 or 4 in combination with Particulars 3 and/or 5 above. Complaint Two 1. This complaint alleges that the practitioner breached s 139B(1)(a) and (l) of the National Law in relation to another female patient (Patient B). This patient, aged 26 years at the time of the consultation, was examined by the medical practitioner at the Concord premises. Particulars of Complaint Two 1. Particular 1 alleges that on 17 June 2015 during a consultation for a sacroiliac joint dysfunction, the practitioner failed to provide an appropriate explanation to Patient B or obtained informed consent from her before he: 1. Conducted an examination on her whereby he palpated the pubic bone by pushing into Patient B's groin area close to the top of her vagina; 2. Placed his hand inside Patient B's bra and on her breast while he held her rib. 1. Particular 2 alleges that during such consultation and whilst the practitioner was standing behind the patient, the practitioner conducted an adjustment of the patients back by manual therapy in a manner which was inappropriate in circumstances when it is not clinically indicated or appropriate in that he: 1. Placed his hand inside Patient B's bra; 2. Placed his hand on the patient's rib cage under and pushing into her left breast. 1. Particular 3 alleges that the practitioner engaged in inappropriate conduct of a sexual nature towards such patient by reason of the matters referred to in: 1. Particular 2 above; 2. Particular 1 in combination with Particular 2 above. Complaint Three 1. It is alleged that the practitioner is guilty of professional misconduct under s 139E of the National Law in that he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration or that he engaged in more than one instance of such conduct and that when the instances are considered together, they amount to conduct of a sufficiently serious nature to justify suspension or cancellation of registration. The particulars relied upon are those referred to under Complaint One and under Complaint Two. Practitioner's Reply Complaint One 1. The practitioner, in answer to Particular 1(a) denies that he did not provide an appropriate explanation and did not obtain informed consent as alleged. 2. As to Particular 2 the practitioner denies that he failed to provide adequate privacy although he acknowledges that he did not provide shorts or a gown to Patient A to wear after he requested her pants removed. The practitioner states he does not specifically remember what happened and cannot admit the facts pleaded in particular 2(b) of Complaint One. The practitioner denies Particular 3 that he acted inappropriately. 3. In answer to the allegations of Particular 4, the practitioner states he does not specifically recall asking the patient to remove her bra but would not have done so unless felt it necessary to conduct that the examination. The practitioner states it is rarely necessary to remove the bra entirely, and it was unlikely that he required the Patient A to do so. 4. With regard to the allegation in Particular 5 that he applied his hands on the patient's breast and used his hands to apply pressure to the patient's back and spine while cupping the other hand on a breast, the practitioner denies the allegation and denies any conduct of a sexual nature as referred to in Particular 6. Complaint Two 1. In respect of Complaint Two, which relates to Patient B, the practitioner admits that he conducted an examination on 17 June 2015 but denies that he failed to provide adequate explanation as alleged in Particular 1. As to the allegation that he placed his index finger with the base of the patient's breast, he admits that his index finger may have come into contact with the base of the patient's breast and that his index finger and thumb may have been inside the bottom edge of the bra. However, he denies he placed his hand on the patient's breast. 2. In respect of the allegation in Particular 2 that on 17 June 2015 he placed his hand inside patient B's bra and placed his hand on Patient B's rib cage under and pushing into her left breast, he denies the manual therapy provided was not clinically indicated and was not appropriate. Further, he denies Particular 3, namely that there was inappropriate conduct of a sexual nature towards Patient B. 3. In answer to Complaint Three, the practitioner denies that he is guilty of professional misconduct. Complaint One: Evidence of HCCC 1. Statements have been provided by Patient A dated 20 January 2016 and 1 March 2016. Further, a statement has been provided by the mother of Patient A dated 8 March 2016. 2. Patient A states in her statement dated 20 January 2016 that she saw the practitioner for the first time on 21 November 2011. She was approximately 22 years of age at that time, and she was accompanied by her mother. She had been treated initially by her general practitioner, Dr Lee Starr of the Drummoyne Medical Centre, then by a sports medicine specialist, Dr John Best, for a sacroiliac joint dysfunction. Dr Best recommended that Patient A should consult the practitioner. 3. At the first consultation with the practitioner, Patient A was accompanied by her mother. The patient states that she was wearing black pants at the time and the practitioner asked her to undo the button and zip on her pants so that he could check her pelvis. The patient states that she unbuttoned or unzipped her pants, but the practitioner then requested her to take her pants off completely as it was difficult for him to continue with his assessment with them remaining on her. She said she felt uncomfortable but trusted the doctor. 4. Patient A states that she was then asked to sit up on the bed by the practitioner so that he could check her lower spine. The practitioner then pulled the patient's shirt up and tucked it into her bra. She states words to the effect: "Dr Cusi stood very close to me while he was assessing me and I felt the front of his pants touch my leg. I tried to move my leg away and he moved closer to me. I felt very uncomfortable as I felt his groin touching my leg." 1. The patient states that she felt very shocked and uncomfortable as she left. 2. A second consultation occurred on the 15 December 2011 when the patient was unaccompanied. She changed into shorts which she had brought with her and Dr Cusi remained in the room whilst she changed. She states: "Dr Cusi asked me to sit upon the bed so that he could check my back and my collarbone. Dr Cusi then asked me to take my bra off. I hesitated but then took it off as I thought I could trust him as a medical practitioner. After I had taken my bra off, Dr Cusi cupped both of my breasts in his hands while he pressed on my back. After he had finished with his assessment he asked me to get dressed and I left the consultation feeling embarrassed and confused." 1. The third and final consultation was on 30 January 2012. The patient describes the consultation as "very quick." 2. In her second statement dated 1 March 2016, Patient A relevantly stated in respect of the first consultation: "I wish to further add that after I taken my bra off, Dr Cusi stood behind me. From behind me, he cupped both of my breasts in both of his hands for a short time. He then released his grip on my breast and used his hand to apply pressure to my back whilst at the same time cupping my other breast. I could feel the palm of his hand applying pressure along my spine between my ribs and my neck. I recall he moved his hand two or three times. I liken this movement similar to the examination a doctor would perform with a stethoscope when they are listening to your breathing. He then released his grip on my other breast and used his hand to apply the same pressure to my back." 1. The mother of Patient A was present throughout the first consultation. This witness has been a registered nurse in orthopaedics since 1980 and has worked in the area of orthodontics and jaw surgery as a practice manager for 17 years until 2014. Thereafter and continuing, she has been a surgical bookings/medical secretary at a major hospital. 2. The mother recalls the practitioner asking her daughter to remove her clothing down to her underwear. She expected the practitioner would provide her with shorts or a gown to change into or a place where she could remove her clothing and private, but no such provision was made. The witness relevantly states that after Dr Cusi asked Patient A to remove her clothing down to her underwear: "I recall him (the practitioner) telling her to bend over the examination table. [Patient A] did this by standing on the ground and placing her stomach on the examination table. Dr Cusi then moved his body behind her with his groin touching her behind. I liken this position similar to that of a sexual position referred to as "doggy style" and recall thinking that it was very inappropriate and compromising." "I recall clearly that I began to stand up and say something but before I could speak Dr Cusi directed [Patient A] to sit on the examination table. He then moved her into a different position to examine her hip further. I was still in total shock and disbelief that Dr Cusi had placed [Patient A] into such a compromising position considering I was in the room." 1. The mother of Patient A states that she was unable to attend the second consultation with the practitioner on 15 December 2011. She was most concerned that she could not take time off work. She states that her daughter contacted her sometime later that day following the consultation and was extremely upset she states: "I recall her saying something similar to 'He insisted on a quick examination of my back, which I wasn't expecting, and he cupped my breasts.' She said she had not told me soon as she was so embarrassed and angry that she had gone to this appointment again." 1. Patient A's mother stated that following the last visit to the practitioner, she obtained counselling for her daughter. Complaint Two: Evidence of HCCC 1. The second complaint relates to Patient B, whom the practitioner examined on 17 June 2015. This witness provided a statement dated 7 December 2015. The witness described the consultation with the practitioner in which she described her pain in her left hip, lower back, and in the middle of her back. The witness stated that she informed the practitioner that she had had an MRI as a result of which her physiotherapist considered that her sacroiliac joint may have been injured. The practitioner requested Patient B to change in a side room adjacent to his surgery and provided basketball shorts to wear. The practitioner requested the patient to strip down to her bra, which she did. Thereafter she entered the consultation room and lay down on a treatment bed. 2. Patient B stated relevantly: "At one point during the consultation, I lay on my back and Dr Cusi pushed into my groin area, close to the top of my vagina which made me feel quite uncomfortable, but I assumed it was part of his assessment process. Dr Cusi explained to me that he thought I was very tight in my rib cage and upper back and wanted to do a few more manual adjustments. It felt like chiropractic adjustments. Dr Cusi did four or five of those adjustments. He then came around behind me while I was sitting upright on the treatment bed. Dr Cusi said to me, words the effect, "I'm going to do one more adjustment and if this doesn't work, I need to go into your bra." I can't remember exactly where he put his hands, but I know it was close to my rib cage and then my upper back. Dr Cusi then tried to do the same adjustment and, while he was standing behind me he placed his hand into my bra and felt my rib cage under my left breast… Dr Cusi completed the adjustment and took his hand out of my bra. He said to me words to the effect, 'That should help loosen up your back.' Most of the issue was in my hip area so I asked him, words to the effect, 'What are we going to do about my hip?' Dr Cusi told me to get changed and that he would explain to me what he had done. Dr Cusi saw me crying and put his hand on my shoulder. Dr Cusi said, words the effect, 'I didn't mean to hurt you.' I put my clothes back on and went back into his office area. I was still crying. Dr Cusi showed me on a model spine why I had so much pain in my upper back and why he did the adjustments that he did. Dr Cusi also told me he wanted me to get a Spect CT scanned because he didn't know if my sacroiliac problem was mechanical or inflammatory." 1. Patient B states that she was most upset following the consultation and reported the matter to her partner. She also called the NSW Sexual Assault Helpline, who provided counselling for about one hour. 2. Ms X, the partner of Patient B, provided a statement in which she verified having received an email from Patient B shortly after the consultation with the practitioner in which Patient B expressed her distress at the events of the consultation. She then had a telephone conversation with Patient B and stated that Patient B was very upset. She complained that the practitioner had touched her inappropriately by reaching into her shirt touching her breast. Patient B informed Ms X that she was confused why such touching was necessary considering that she had no pain in her chest which was the subject of the examination. 3. Ms Roisin McNulty, physiotherapist, provided a statement in which she records that she had treated Patient B from 13 May 2015 for non-specific lower back pain. She subsequently saw such patient on nine occasions. On 17 June 2015 she received a telephone call from Patient B who complained that the practitioner had been inappropriate during her consultation "reporting that he had placed his hand inside her bra and groped her breast." Ms McNulty said that the patient was very distressed. Expert evidence of HCCC 1. The HCCC sought an expert opinion from Dr Hamish Osborne. Dr Osborne provided a report dated 13 October 2016. 2. Dr Osborne relevantly stated in his report, in relation to the manipulation provided by the practitioner to Patient A: "Dr Cusi's examination technique as outlined in his response is very thorough and appropriate for the presenting complaint of the patient. Some of the clinical record is in shorthand outlining the results of the tests... It is hard to determine from the shorthand notes whether all the tests described were done and whether there were any other observations not recorded. I have no reason to suspect that the shorthand notes are an inaccurate record of the examination technique results as described. There is a constant tension when examining a patient between adequate exposure of the patient so that a doctor can see enough to not miss things and examined thoroughly, and patient modesty and comfort. These tensions are at odds … Current undergraduate and postgraduate teaching at University level and Australasian College of Sport and Exercise Physician training errs on the side of covering up patients/or at a minimum offering the opportunity to wear very loose fitting clothing or gowns so as to help to ensure their modesty and comfort but not stopping the treating doctor from being able to see the whole patient as needed. Dr Cusi describes his 'normal' examination technique regarding disrobing and patient exposure in his response letter dated 6 December. Needing to remove lower clothing garments so as to examine through the underwear could be done by using a gown opened judiciously or baggy shorts, maintaining patient comfort and still allowing adequate examination." 1. The report continues: "The examination on 21 November 2011 as described by Dr Cusi was consistent with what is reasonably expected of a practitioner with the same training or experience as the practitioner complained about at the time of the events the subject of complaint." 1. Dr Osborne was asked to give his opinion, assuming Patient A's complaint is correct, whether such conduct was appropriate. Dr Osborne relevantly responded: "[Patient A] had expected to be provided with shorts and describes being uncomfortable having had to remove her trousers down to her underwear … However, this part of the examination was consistent with what is reasonably expected of a practitioner with the same training or experience as the practitioner complained about at the time of the events the subject of the complaint. Tucking a patient's shirt tail into a bra from behind to allow greater exposure but allow modesty is a simple efficient technique requiring very brief explanation and consent of both lifting up the shirt and tucking it in. When done in conjunction with lower outer clothing being removed it eases the risk of the patient being made to feel uncomfortable as in this case. Consent is a complicated area and includes, but is not limited to, the individual patient having adequate information for them at that point in time to make a decision. As a doctor there is no need to rub the front of one's trousers against a patient for any examination technique. While it occasionally happens by accident in the same way that occasionally one brushes a woman's breast in a social or clinical situation it is usually very clear that it was accidental and usually followed by a quick 'sorry.' People are usually equally clear when there is touching that is intentional especially when they move away from the touching which is then repeated by the clinician. In my opinion this is not appropriate behaviour nor part of the examination." 1. Dr Osborne continued: "In my opinion Dr Cusi's examination technique of [Patient A] with her trousers off and her shirt tucked into her bra lacked adequate explanation and consent and was below what is reasonably expected of a practitioner with the same training or experience as a practitioner complained about at the time of the events the subject of the complaint. In my opinion Dr Cusi's rubbing of the front of his trousers on two occasions against [the patient] was significantly below what is reasonably expected of a practitioner…." 1. Dr Osborne provided the following opinion: "Dr Cusi should have offered shorts or a gown or chose not to proceed if the patient was not comfortable to remove her trousers and be examined in her underwear. The other option is to remove the trousers and use a bed sheet or towel to maintain some modesty. Patients should always be allowed to change in private. In my opinion not to offer shorts nor allow her to change in private was below what is reasonably expected of a practitioner with the same training or experience as the practitioner complained about at the time of the events the subject of the complaint." 1. Dr Osborne stated that the practitioner should not have stayed in the room whilst Patient A was undressing. His report states: "He should not have stayed in the room – it is so easy to leave a consulting room briefly and show respect for the patient. In my opinion this was well below what is reasonably expected of a practitioner…." 1. As to removing her shirt during the interview, Dr Osborne stated that examination of the chest wall and thoracic spine requires adequate exposure of the area to be able to see it, palpate the important parts, and examine quality and quantity of the range of motions of the joints. He stated relevantly: "This is very difficult to do with a patient wearing a shirt. It is appropriate for Dr Cusi to ask for the clothing to be removed. It is important to have the patient either disrobed down to underwear or have a gown or loose singlet available for this to proceed with a patient still having some coverage." 1. He continued: "In my opinion asking her to remove her shirt was consistent with what is reasonably expected of a practitioner with the same training or experience as a practitioner complained about.…" 1. Dr Osborne was asked whether it was appropriate for the practitioner to request Patient A to remove her bra. He responded: "This was done as part of the examination of the thoracic spine and musculoskeletal assessment of the movement of the ribs. There are several ways to do this in regard to manual therapy examination and treatment techniques to the thoracic spine and ribs … Given these options it is not necessary to remove the bra. This is significantly below the standard expected and invites my strong criticism." 1. Dr Osborne was also asked whether cupping both of Patient A's naked breasts for a short time before cupping one of her breast while applying pressure along the spine with his other hand during the consultation on 15 December 2011 was necessary. Dr Osborne relevantly stated "When palpating the thoracic spine and ribs at the back sometimes counter-pressure is needed so as not to push the patient forward … This counter pressure can be applied safely to the shoulder or after asking to the chest wall above the breasts or sometimes to the chest bone which may also include lower down between the breasts. It is never appropriate or necessary to cup the breast/s to apply this counter pressure. Cupping both breasts at the same time is not part of Sport and Exercise Medicine practice. Cupping a single breast to apply counter pressure as one palpates the thoracic spine posteriorly as described above is unnecessary. This is significantly below the standard expected and invites my strong criticism." 1. Dr Osborne was also asked whether it was necessary for the practitioner to place his hand beneath the patient's breast when palpating the sternocostal joints, holding the rib with the index finger front and the thumb was appropriate. Dr Osborne stated relevantly: "In treating the rib movement as in [Patient A's] case it can be done in several ways including techniques that don't involve needing to undo the bra, remove the bra and/or cup the breast. In my opinion Dr Cusi's examination technique described was below what is reasonably expected of a practitioner…." 1. Dr Osborne is also asked whether the consent process was below what was to be reasonably expected of a practitioner. Dr Osborne responded that the consent process was below what is reasonably expected of a practitioner. He continued: "…Removing her bra does not imply consent. In my opinion this was significantly below what is regularly expected…." 1. With regard to the adequacy of the record keeping of the practitioner, Dr Osborne considered that the notes are adequate. However, in respect of the overall care of Patient A, Dr Osborne said: "His overall care which includes, but is not limited to, listening carefully, examining respectfully, providing expert diagnosis and treatment, paying attention to dignity and psychological wellbeing, was significantly below what is reasonably expected … and invites my strong criticism." 1. With respect to Patient B, Dr Osborne considered that the consent obtained from the patient was inadequate. He stated: "The issue appears to be lack of informed consent rather than anything inappropriate … In my opinion Dr Cusi's consent process for this part of the examination was below what is reasonably expected…." 1. As to the allegation that the practitioner placed his hand inside the patient's bra, Dr Osborne said that since there were several manual therapy techniques, there is no need for the practitioner to put his hand inside the patient's bra and to have his hand on her breast as he holds the rib during treatment. He considered that such technique was "significantly below what is reasonably expected of a practitioner…." 2. Dr Osborne also considered that the consent process and explanation to the patient was inadequate. He said: "In my opinion his consent process was below what is reasonably expected of a practitioner with the same training or experience as a practitioner complained about at the time of the events the subject of complaint." 1. In respect of the adequacy of the record-keeping, Dr Osborne considered that the content of a letter of the practitioner concerning the patient's history, assessment investigation and management was consistent with what was to be reasonably expected of a practitioner of the same training or experience. 2. As to the overall care provided, Dr Osborne repeated his observations with regard to Patient A, namely that the overall care was significantly below what was reasonably expected of a practitioner. Evidence of Practitioner 1. The practitioner has provided an extensive statement dated 6 February 2018, and a supplementary statement dated 4 April 2018. In his first statement the practitioner states that he currently was engaged until recently at four Orthosports clinics in Sydney. However, he now sees clinical patients at Meadowbank and occasionally consults for the purpose of medico-legal work in Parramatta. He holds an appointment as Adjunct Associate Professor, School of Medicine, University of Notre Dame. 2. The practitioner referred to his practice of examining patients for sacroiliac joint problems. However, he stated although he recalled Patient A, he did not have a specific recollection of the consultation. He acknowledges that his record shows that he saw her on the three occasions, namely 21 November 2011, 15 December 2011 and 30 January 2012. 3. The practitioner states that in respect of the first consultation, this is one of the rare occasions when shorts were not available either because they were in another room or at a laundry. However, he tried to minimise disrobing as much as possible. He has now changed his practice as a result of the consultation. He states what he believes would have occurred, but in view of the fact that he acknowledges that he had no specific recollection of all of the consultation, much of his detail is speculation and reconstruction. However, he stated at no time did he intentionally rub the front of his trousers against Patient A's legs, nor does he recall it happening by accident. He denies the remainder of the allegations. 4. With respect to Patient B, again the practitioner does not have a specific recollection of all the details of her consultation. His recollection is accordingly based upon his medical records and his standard practice. In essence, he denies that he engaged in any conduct of the kind complained of. Further, he denies there was any inappropriate conduct of a sexual nature towards the patient. Background of Practitioner 1. The practitioner obtained His Bachelor of Medicine and surgery at the University of Barcelona, Spain in 1972. In 1992 he obtained a Certificate of Sports Medicine, RACGP, Sydney and in 1996 obtained a Fellowship, Australian College of Sports Physicians (FACSP). The practitioner was awarded Foundation Fellowship, Faculty of Sports Exercise Medicine, Royal College of Surgeons (FFSEM) (UK). In 2013 he was awarded a PhD by the School of Medicine, Sydney, University of Notre Dame on the topic of "Novel Approaches to the Sacroiliac Joint." 2. The practitioner has held many positions in public hospitals here in New South Wales, including the position of VMO and is a physician to numerous sporting clubs. Medical Council of NSW 1. On 30 August 2013 the Medical Council of New South Wales conducted an interview with the practitioner. The purpose of the interview was to consider the complaints made against him resulting from the first consultation with Patient A. 2. In its conclusions, the interviewers formed the opinion that the practitioner lacked sensitivity "regarding the vulnerability of a patient asked to undress in a consultation and needed to be reminded to take a more active role in providing for modesty." The interviewers recommended that no further action be taken. Observations 1. The Tribunal has heard evidence from both the HCCC witnesses and from the practitioner over three days. 2. Evidence was taken from Patient A by video link. She provided her evidence in a forthright manner. Following the first consultation on 21 November 2011, she said she was very shocked and uncomfortable "but I did not know what to do about it. "I made a note to myself to take shorts with [sic] to the next consultation with Dr Cusi." No complaint was made at that time. 3. The second consultation took place on 15 December 2011. Patient A took her own shorts with her. At this consultation the patient states that Dr Cusi touched her breasts, as set out in the particulars. However, the Tribunal found that the evidence concerning the touching of the breasts was confused. The statement of the patient states that the practitioner "cupped both of my breasts in his hands while he pressed on my back". In evidence the patient gave testimony that this did not occur simultaneously, that is that the breasts were cupped in both hands for a short time, then one breast was held whilst the other hand of the practitioner was behind her back. The Tribunal endeavoured to clarify the evidence, but it seemed as if the patient reverted to the evidence in her statement. 4. No complaint was made following the second consultation. The third consultation took place on 30 January 2012. Again, no complaint was made until almost 10 months later namely on 6 November 2012 when Patient A lodged a complaint with the HCCC. The patient said that she and her mother had been watching a television show involving medical malpractice and her mother said words to her "I hope nothing like this ever happens to you." The patient said this was "like a light bulb" and she revealed to her mother what had happened during the second consultation. The complaint was then lodged, as the patient stated that she felt that what had happened "was wrong." 5. During her evidence, Patient A said that she "99%" remembered going straight to the examination table. However, she then said it was possible that "I stood up and touched my toes at the desk." She stated there was no palpation by the practitioner near the doctor's desk but "he may have asked me to touch my toes." She said that after that "He asked me to go to the examination table." She acknowledged that her recollection was not clear after seven years but said there was no talking during the examination; it was very awkward; that she was asked to unbutton and unzip because the practitioner said, "I want to feel the bones of the pelvis." However, she was not given a description of what he was about to do. The patient stated, "I felt uncomfortable: I had never been asked to unzip or undo the button before." She said it was "traumatic. I haven't seen it before. At the time I felt that something inappropriate occurred." 6. Patient A said that whilst she was on the examination table, the practitioner was standing in front of her. He then moved to the side, straddled her then moved to the other side. 7. Patient A acknowledged that she trusted the practitioner sufficiently to go back for the second consultation although she wasn't very happy about it. She stated that she just "wanted him to fix my hip." 8. At the second consultation she stated that the practitioner did examinations with both hands first, then separately. She reiterated that the practitioner "cupped both of my breasts in his hands for a short time, estimated to be for a period of five seconds." 9. Patient A returned for the third visit but she stated that there was no physical examination on that day. 10. Patient A stated that she lodged the complaint to the HCCC in respect of the sexual assault during the second visit. The complaint refers to the events on the examination table in the first consultation. She states that the practitioner stood "very close to me. The front of his pants touched my leg. I moved my leg away but he moved closer to rub up against me again. This was very uncomfortable." In respect of the second consultation, the complaint refers to the cupping, "both my breasts in his hands while he pressed on bones in my back." Oral evidence of mother of Patient A 1. The mother of Patient A gave oral evidence. She was clearly hostile towards the practitioner, because she believed that the practitioner had placed her daughter in a compromising position. She acknowledged that when she was sitting in the consultation room, she was behind the practitioner whilst he was conducting the examination and his back was to her. 2. Whilst the mother provided evidence in an emphatic manner, the Tribunal was troubled by certain aspects of it. For example, in her written statement she gave detailed evidence how her daughter was extremely upset on the day of the second interview and she complained that the practitioner "had cupped her breasts". She gave detailed evidence of the explanation she sought from her daughter as to why she had not revealed this event earlier. In evidence, the mother acknowledged that this was wrong, and that she was not aware of the events of the second consultation until 11 months later. 3. The mother stated that she very clearly recalled the layout of the consultation room. However, the practitioner stated that his consultation room layout had not changed and it did not accord with the description provided by the witness. He also produced a photo to show that the layout was identical to his diagram which was quite different to that described by the mother. 4. The Tribunal formed the view that the mother was most protective of her daughter. She was affronted and angry by what she believed she saw at the first consultation. She was clearly further angered by her daughter's revelation, made in November 2012 relating to the daughter's version of the events of the second consultation. The mother provided an explanation that she could not take time off work to accompany her daughter to the second consultation and that her daughter's boyfriend was unable to attend also because of his university examinations. The mother stated that she had attempted to complain following the first consultation but received little support or assistance from the Medical Council of NSW or from the HCCC. On 25 September 2012 the mother accompanied her daughter to consult Dr Best, who had referred the daughter to Dr Cusi, and a complaint was made to Dr Best concerning Dr Cusi. Patient B 1. Patient B provided impressive evidence. She recalled Dr Cusi pushing into her pubic area and then placing his hand over her shoulder to beneath her breast whilst he was standing behind her. She could not recall whether it was the right or left hand. She did recall, prior to such movement, the practitioner stating words the effect: "If this doesn't work, I'll have to go inside your bra." She stated that the practitioner's index finger was directly under the breast. She stated that the practitioner's hand did not linger when it was under the breast and she stated that she felt that he was "trying to conduct an examination." 2. Patient B complained that there was a lack of rapport between herself and the practitioner, and that she was not anticipating such an examination. She burst into tears, at which time the practitioner stated that he was sorry and that he did not wish to hurt her. 3. The events caused immediate distress to Patient B, who immediately emailed her partner for support. Subsequently she complained to her physiotherapist Ms Roisin McNulty. Ms McNulty provided evidence by video link. She confirmed that Patient B had communicated with her in which Patient B stated that the practitioner had placed his hand inside her bra. There was doubt whether the words "and groped her" as referred to in Ms McNulty's written statement was actually stated by Patient B or was the impression gained by Ms McNulty. Dr Osborne 1. Dr Osborne provided extensive testimony by video link. The important aspects of his evidence are stated above and for present purposes it is only necessary to summarise his testimony. He confirmed that there were many techniques available for treatment of issues relating to the thoracic spine, but none of them require removal of the bra. He acknowledges that from time to time it may be necessary for a finger to be placed under the bra but that there was no need to touch the breast. He acknowledged that it may be necessary to hold the rib immediately below the breast as part of the manipulation. The Practitioner 1. The practitioner testified that he had followed his method of manipulative treatment following instruction he received in the United States in 1992. The procedure is known as the rib mobilisation technique which requires considerable pressure and firm movement to the ribs. Ribs 4, 5 and 6 are in the mid-thoracic area and in close proximity, in females, to their breasts. 2. The practitioner acknowledged that he did not recall many aspects of the consultations. The practitioner categorically denied, with respect to Patient A, that he asked her to lie, face down, across the examination table and moved in behind her. He said such a manoeuvre is never part of the treatment which he undertakes, and he would have had no reason to do so on this occasion. He states that at the commencement of an interview, his usual practice is for patients to be asked to bend over while he stands behind to observe their spine. Then he asks them to move to the examination table where he stands to one side. There is no occasion when he would be straddling the patient. He believes that in this instance, the patient is confusing the manoeuvres which were undertaken in accordance with his usual practice. The practitioner denied that he ever tucked up Patient A's shirt into her bra. It is necessary however to hold the ribs firmly. 3. The practitioner acknowledges that his explanation of the manoeuvres which he would be undertaking may have been inadequate. He stated: "Possibly they did not get the full meaning of what I was trying to convey." The practitioner also acknowledges that no shorts were available on the occasion of the first consultation with Patient A, as they were at the laundry. He has a recollection of speaking to the practice manager concerning their unavailability at the time of the consultation. 4. In respect of the second consultation with Patient A, the practitioner has no specific recollection of the events. However, he acknowledged that the back of the fingers can come into contact with the underneath of the breast. He denied that he ever used the palm of his hands to touch the breasts of Patient A and never cupped the breasts of this patient. 5. The practitioner denies that he ever placed his hand inside the bra of Patient B but acknowledges that he placed his finger under the base of the bra after he had at attempted to hitch up the ribs from the top. He also acknowledges that it is necessary to touch the patient near the groin area. The practitioner denies that there was any "groping" of the patient as suggested by Ms McNulty. Summary of Practitioner's Evidence 1. As to Complaint One: 1. Particular 2(a): The practitioner acknowledges that shorts were not available. 2. Particular 2 (b): There was a curtain in the room. The practitioner states it was his usual practice to draw the curtain but has no specific recollection. 3. Particular 3(a) and (b): Denied. The practitioner states he does not position himself in the manner described, but any contact would have been inadvertent. 4. Particular 4: No recollection, but highly unlikely. Any request to undo the bra may have been interpreted as removal of the bra. Certainly, his fingers may have been under the bra to establish the necessary grip. 5. Particulars 5 and 6: Denied. 1. As to Complaint Two: 1. Particular 1(a): Some pressure in the groin area is necessary as part of the investigation. 2. Particular 1(b): Denied. 3. Particular 2(a): Denied. 4. Particular 2(b): This may have been required as part of the examination. 5. Particular 3: Denied. Principles 1. The jurisdiction of the Tribunal is protective: s 3A of the National Law requires that the "protection of the health and safety of the public must be the paramount consideration" when considering an application to practise medicine. Further, the person seeking to practise medicine must be considered to be a "fit and proper person to practise." Such expression was considered in Hughes and Vale Pty Ltd v New South Wales (No2) (1955) 93 CLR 127 at 156 – 157 where Dixon CJ, McTiernan and Webb JJ said of it: "The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgement and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty knowledge and ability…." 1. It is no part of the function of disciplinary proceedings to punish: rather to ensure that they have the requisite qualities required for good practice: see Harvey v Law Society of New South Wales (1975) 49 ALJR 362 at 364 per Barwick CJ; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202. 2. The Tribunal must also consider the risk of a recurrence by a practitioner who has failed to observe the requisite standards. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [380] (Toohey and Gaudron JJ) when referring to the risk of recurrence of a failure said: "…the question may be…whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur." 1. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35], Meagher JA said: "It [the nature of the jurisdiction] includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise…." 1. It has been held that matters involving findings of unsatisfactory professional conduct by a practitioner can lead to the conclusion that the conduct constitutes professional misconduct: see for example Chen v Health Care Complaints Commission [2017] NSWCA 186 especially at [19] – [20], [23], and [75]. See also Health Care Complaints Commission v Karalasingham [2007] NSWCA 267; Sabag v Health Care Complaints Commission [2001] NSWCA 411 at [42]. 2. Where sexual activity between a medical practitioner and the patient is alleged, the provisions of the NSW Medical Board Policy Statement Entitled "Medical Practitioners and Sexual Misconduct" dated 27 October 1985 is relevant. It provides: 1. It is an absolute rule that a medical practitioner who engages in sexual activity with a current patient is guilty of professional misconduct. 2. While not detracting from the fundamental impropriety of such activity, that sanction applied as a result of a finding of misconduct may vary according to the circumstances of the case. 3. Factors to be considered include the degree of dependence on a doctor/patient relationship, evidence of exploitation, the duration of the professional relationship and the nature of the services provided. The Allegations 1. The allegations against the medical practitioner are serious. Accordingly, the Tribunal must be satisfied to a high degree that the conduct alleged is established. The standard of proof for such matters in a court is at referred to in Briginshaw v Briginshaw (1938) 60 CLR 336. However there is some degree of doubt whether Briginshaw applies to proceedings in a tribunal: see Mark Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Full Court) per Logan J at [29]. Irrespective, it has been established by the High Court that the "degree of satisfaction for which the civil standard of proof calls may vary according to the gravity of the facts to be proved": see Refjek v McElroy (1955) 112 CLR 517 at 521. Assessment 1. The events relating to Patient A occurred seven years ago. The first complaint was made almost 12 months after the alleged occurrences. The Tribunal accepts that Patient A and her mother have given evidence of what they genuinely believed occurred. However, the Tribunal takes into account that other interpretations of the alleged actions of the practitioner need to be considered especially in the sacro-iliac and sub-mammary anterior thoracic area, i.e. near the breast tissue portion of the body which is very sensitive, especially in a female patient. Further, the lapse of time can cause recollections to become more vivid and therefore unreliable. 2. The evidence provided by Patient B was clear. However, the patient acknowledged that she made no complaint concerning the touching of the groin area, and that she did not believe that when the practitioner placed his hand inside her bra, as she recollects, it was placed there for any sinister motive but as part of a manoeuvre. 3. The Tribunal also takes into consideration the evidence of the practitioner. It notes that on occasions the practitioner frankly acknowledged that he did not recall certain matters, when it would have been possibly in his interest to have done so. Findings 1. The Tribunal states hereunder its findings: 1. Complaint one particulars: 1. The Tribunal finds that the practitioner failed to provide an appropriate explanation to Patient A or to obtain appropriate informed consent before he conducted his examination. The practitioner says he explained his usual practice, but Patient A was adamant that she received no explanation of the procedures which were about to be undertaken in the consultation. The Tribunal considers that her recollection is preferable, and that if an explanation was provided, it was inadequate. 2. The Tribunal also finds that the practitioner failed to provide adequate privacy to Patient A because he did not provide her with shorts or a gown after he requested she remove her pants. The practitioner acknowledges that no shorts were available for the consultation even though he usually has shorts available. The practitioner states that he asked the practice manager for shorts, but it appears they had been sent to the laundry. Irrespective, the practitioner acknowledges that no shorts were used for the consultation. The Tribunal also finds that the practitioner did not leave the consultation room whilst the patient was removing her pants. 3. In respect of the allegations in particular 3 (a) and (b) and the allegation in particular 4, and the particular alleged in 5 (a), the Tribunal finds that these particulars are not established to the requisite standard of proof. 4. In respect to the allegations referred to in particular 5 (b) and (c), the Tribunal finds that the allegation that the practitioner gripped the patient's breasts is not established, to the requisite standard of proof. The practitioner conducted clinical manoeuvres which required a degree of contact with the patient's breasts as part of the practitioner's usual investigative procedures. In the absence of a clear explanation of the procedure and the consent of the patient, such actions were inappropriate. However, this conclusion does not imply that the practitioner had a sexual motive in conducting his examination. 5. In answer to particular 6, the Tribunal finds that such allegation is not established. 1. Complaint 2 1. The Tribunal finds that in respect of the allegation contained in particular 1 (a), the practitioner failed to provide an appropriate explanation to Patient B before he conducted his examination as referred to in particular 1 (a). With respect to the allegation contained in particular 1 (b), the Tribunal is not satisfied that the conduct referred to occurred. Irrespective, the Tribunal is satisfied that the practitioner failed to provide an appropriate explanation or obtain consent for the procedures which necessarily involved contact with the patient's breast tissues. 2. In answer to particular 2 (a), the evidence concerning the practitioner placing his hand inside Patient B's bra is conflicting. The patient described quite clearly that the practitioner placed his hand over her shoulder and inside her bra momentarily. The practitioner states that he did not undertake such manoeuvre but acknowledges that he placed his hand beneath the patient's bra from below to enable him to insert his hand beneath the bra as part of his clinical examination of the rib. The patient acknowledged that the practitioner reached into her bra to access the rib, and that she did not regard the manoeuvre as one for sexual gratification. In the absence of a clear explanation and consent from the patient, such procedure was inappropriate. However, it is not established that there was any sexual motive for the practitioner's actions. 3. In answer to particular 2 (b), the Tribunal finds that such procedure, in the absence of a clear explanation and consent of the patient, was inappropriate. The Tribunal does not conclude that the procedure was clinically indicated, for the reason expressed above. 4. As to particular 6, the Tribunal is unable to conclude that this particular is established. Summary 1. Both patients had symptoms around the pelvic girdle area. They knew that they were seeing someone who is a specialist in that area and expected physical examination relevant to the pelvic girdle. 2. In the course of normal consultation, the expectation of physical assessment of the area in question leads to tacit approval of this, and the consent process need be little more than a mutual acknowledgement to proceed. The practitioner should be alert to circumstances which vary from this, such as an assessment on behalf of a third-party, religious/cultural differences, minors, and those of advanced age. Without quoting the exact words, Patient B said that she initially experienced a physical examination much like she would have at the physio or chiropractor, and was accepting of such examination. 3. Whilst it may have been routine for Dr Cusi, assessment in a different area, being the rib cage and thoracic spine, and then a series of treatment manoeuvres, were not part of the patient's expectations and explanation was required and consent given. Even then, the patients were unlikely to expect something as confronting or invasive as it turned out to be. 4. Patient A and Patient B were keen to resolve their problem, and would have been accepting of the physical handling required if they knew why the practitioner was performing the examination and could reasonably expect it to be of benefit. With respect to Patient A, the removal of her bra as part of the examination using the rib mobilisation technique was fraught with the invasion of the plaintiff's privacy. 5. Whilst the Tribunal does not make a finding of sexual intent by the practitioner, the patients have not been able to provide informed consent, and there was a breach of their trust. That is significantly below the expected standard. Complaint One, Particulars 1 and 2 are proven, and Complaint Two, Particular 1 is proven. Order 1. The Tribunal finds that the practitioner has engaged in unsatisfactory professional conduct within the meaning of ss 139B(1)(a) and (l) of the Health Practitioner Regulation National Law (NSW) by reason of the findings proven above. ********** 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: 01 June 2018