Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Skandaliaris [2018] NSWCATOD 199 Hearing dates: 13, 14 August 2018 Date of orders: 21 December 2018 Decision date: 21 December 2018 Jurisdiction: Occupational Division Before: L Pearson, Principal Member Dr R Boland, Senior Member N Loneragan, Senior Member G Alder, General Member Decision: 1. Each of the complaints brought against the respondent is established. 2.The respondent is guilty of unsatisfactory professional conduct. 3.The respondent is guilty of professional misconduct. 4.The following directions are made: (a) The parties are to advise the Tribunal by 16 January 2019 of their available dates in February and March 2019, including whether the matter will require more than one day; (b) The applicant is to provide to the Tribunal and the respondent any further evidence and submissions, on or before 23 January 2019; (c) The respondent is to provide to the Tribunal and the applicant any further evidence and submissions, on or before 13 February 2019; (d) The applicant is to provide to the Tribunal and the respondent any further material in reply, on or before 20 February 2019; (e) The proceeding will be listed for hearing on a date after 20 February 2019. Catchwords: TRADES AND PROFESSIONS – health practitioner – physiotherapist – treatment of work colleague – whether adequate history or assessment – failure to keep notes – whether treatment inappropriate – whether informed consent – failure to comply with chaperone condition – provision of false or misleading information to regulatory body – whether professional misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 Health Practitioner Regulation National Law (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Campbell v Campbell [2015] NSWSC 784 Chen v Health Care Complaints Commission [2017] NSWCA 186 Re Dr Than Le (Medical Tribunal decision, 20 September 2001) Evans and Braddock [2015] NSWSC 249 Forster v Hunter New England Area Health Service [2010] NSWCA 106 Health Care Complaints Commission v Chowdhury (No 2) [2015] NSWCATOD 127 Health Care Complaints Commission v Dr Il-Song Lee [2011] NSWMT 12 Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264 Health Care Complaints Commission v Little [2016] NSWCATOD 146 Health Care Complaints Commission v Ng [2015] NSWCATOD 85 Health Care Complaints Commission v Perceval [2014] NSWCATOD 38 Health Care Complaints Commission v Perera [2018] NSWCATOD 112 Ng v Health Care Complaints Commission [2017] NSWSC 53 Prakash v Health Care Complaints Commission [2006] NSWCA 153 Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Ioannis Skandaliaris (Respondent) Representation: Counsel: S Maybury (Applicant) G Jauncey (Respondent) Solicitors: Health Care Complaints Commission (Applicant) M J Woods & Co Lawyers (Respondent) File Number(s): 2017/00388303 Publication restriction: Pursuant to cl 7 of Sch 5D to the Health Practitioner Regulation National Law (NSW) the names of Person A and Patients A, B, C, D, E, F, G, H and I identified in the Schedule to the Complaint are not to be disclosed. REASONS FOR DECISION 1. On 22 December 2017 the Health Care Complaints Commission (the HCCC) applied to the Tribunal for disciplinary findings and orders under the Health Practitioner Regulation National Law (NSW) (the National Law) against Ioannis Skandaliaris, a registered physiotherapist. 2. The first complaint is a complaint of unsatisfactory professional conduct in relation to treatment Mr Skandaliaris provided in April 2014 to Person A, a receptionist employed at the medical centre at which Mr Skandaliaris was working. The second complaint is a complaint of unsatisfactory professional conduct in relation to his failure to comply with a chaperone condition subsequently imposed on his registration under s 150 of the National Law by the Physiotherapy Council in June 2014. The third complaint is a complaint of unsatisfactory professional conduct in relation to the provision of reports to the Physiotherapy Council as to his compliance with the s150 conditions from November 2015 to May 2016. The fourth complaint is a complaint of professional misconduct arising from the same matters. 3. The Tribunal has anonymised the name of the medical centre and the staff and persons associated with the medical centre, in order to avoid disclosing information that could identify Person A or any of the patients referred to in Complaint Two. We refer in these reasons to the Medical Centre, and to the other witnesses by reference to their position at the Medical Centre. We note that Person A and the other witnesses refer in their evidence to Mr Skandaliaris as "Johnny". The Complaint 1. The HCCC seeks orders pursuant to ss 149A, 149B, and/or 149C of the National Law, alleging that Mr Skandaliaris has been guilty of unsatisfactory professional conduct within the meaning of s139B(1)(a), (c) and (l) and/or professional misconduct within the meaning of s139E of the National Law. 2. The Complaint (amended following the hearing to correct details of the dates relevant to Complaint Two: ex A4) is that Mr Skandaliaris: COMPLAINT ONE is guilty of unsatisfactory professional conduct under section 139B (a) and (l) of the National Law in that the practitioner has: i. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of physiotherapy is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of physiotherapy. Each particular of Complaint One justifies an individual finding of unsatisfactory professional conduct. Each sub paragraph of particular 2 justifies an individual finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT ONE At all relevant times the practitioner was employed as a physiotherapist at [the Medical Centre] ('the medical centre'). In April or May 2013 Person A commenced working as a receptionist at the medical centre. In October 2013 Person A was involved in a car accident and sustained injury to her right back, hip and leg. On 28 March 2014 Person A was working at the medical centre and felt pain in her right back, hip and leg. The practitioner observed Person A walking in a strange manner and offered her treatment. The practitioner provided treatment by using the tip of his elbow and palms to massage and stretch Person A's hip on the acupuncture points. On 4 April 2014 Person A sought further treatment from the practitioner at the medical centre as she continued to experience pain in her right back, hip and leg ('the consultation'). Person A was wearing underwear, pants and a bra and a tight top with long sleeves, and lay on the treatment table on her stomach with her face down. PARTICULARS OF COMPLAINT ONE 1. At the consultation the practitioner failed to obtain an adequate and/or appropriate history from Person A before commencing assessment and/or treatment; 2. At the consultation the practitioner: (a) inappropriately and without prior explanation pulled Person A's top halfway up her back, above her bra and undid her bra; (b) inappropriately and without prior explanation pulled Person A's pants and underwear down at the same time so that half of her buttocks were exposed; (c) inappropriately and without prior explanation used one of his hands to grab the right side of Person A's top and pull it up towards her head so that the front of Person A's top moved up over her body and over her breasts; (d) inappropriately and without prior explanation pulled Person A's pants and underwear down further so that her whole bottom was completely exposed; (e) inappropriately and without prior explanation applied his hands in a forceful manner on Person A's inner thighs and kept his hands in this position, despite Person A saying a word to the effect of "Hey" when he applied his hands to her inner thighs; (f) inappropriately and without prior explanation reached around the front of the right side of Person A's body and put one of his hands inside Person A's underwear, touching her pubic hair and moving his hand sideways as he rubbed the right side of Person A's groin area; (g) inappropriately continued to touch Person A in the manner described above at (f), despite Person A's attempt to use her right hand to grab the practitioner's hand to make him stop and saying words to the effect of "Hey don't"; (h) inappropriately and without prior explanation pushed Person A on her upper back so she was pushed and/or forced into the treatment table; (i) inappropriately and without prior explanation grabbed Person A's right forearm and pulled it behind her back in a hard manner so that the top half of Person A's body lifted off the table exposing her breasts in circumstances where the practitioner should have ensured that Person A was adequately covered and that private areas of her body were not exposed; (j) inappropriately let go of Person A's arm so that her body collapsed on the treatment table in circumstances where the practitioner should have assisted Person A safely back on the treatment table; (k) inappropriately and without prior explanation used both of his hands to rub between Person A's thighs; (l) inappropriately and without prior explanation used his fingers to rub and touch the outside of Person A's vagina, gently moving up and down; (m) inappropriately and without prior explanation touched the inside of Person A's right thigh with two fingers while using his other hand to rub the outside of her vagina when Person A used words to the effect of "Hey Johnny what are you doing?"; (n) inappropriately and without prior explanation continued to move his hands up and down Person A's back in a rough manner despite Person A using her right hand to attempt to push the practitioner's hands away and as she collapsed on the treatment table, saying words to the effect of "Johnny I hurt my back"; (o) inappropriately and without prior explanation climbed on top of Person A's body after he hooked her bra and pulled up her underwear and whilst fully clothed lay against her for approximately 2 seconds in circumstances where Person A felt the practitioner's penis touching her buttocks; (p) having regard to matters including the particulars (a) to (o) above, failed to obtain proper informed consent from Person A in relation to the treatment he provided; (q) by reason of any of the matters referred to in (a), (b), (c), (d), (e), (f), (g), (i), (k), (l), (m), (o) and (p) above, individually or cumulatively, the practitioner engaged in inappropriate conduct of a sexual nature towards Person A. 3. The practitioner, in breach of clause 3.14 of the Physiotherapy Board of Australia Code of Conduct, failed to document in his clinical notes the treatment he provided to Person A on: (a) 28 March 2014; and (b) 4 April 2014. COMPLAINT TWO Is guilty of unsatisfactory professional conduct under section 139B(c) and (l) of the National Law in that the practitioner has contravened conditions to which his registration was subject. Each particular of Complaint Two justifies an individual finding of unsatisfactory professional conduct. Each sub paragraph of particular 1 justifies an individual finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT TWO On 16 June 2014 the Physiotherapy Council of New South Wales ("Council") conducted proceedings pursuant to s 150 of the National Law. Between 16 June 2014 and 1 August 2016 the practitioner's registration as a physiotherapist was subject to the following conditions, 1.The practitioner is to obtain the approval of the Council before changing the nature of and place of practice. (Condition 1) 2. The practitioner is not to consult, treat, interview or examine any female patient including work colleagues in any practice context, including any research position unless a chaperone (an adult third person) is continuously present a. prior to any such examination/treatment or interview he must inform each female patient/parent or other adult carer of each child patient of the necessity for a third person/chaperone to be present at all times. b. The chaperone must be acceptable to the patient and may only be a spouse, or other family member who is over the age of 18 years, or a guardian/carer of the patient. The chaperone may not be a member of the practitioner's family. In the absence of a spouse or family member or guardian/carer of the patient, the chaperone must be a female adult over the age of 18 years who has no personal or professional association with the practitioner. c. If the practitioner is employed in a hospital: i. a female member of the nursing staff will satisfy the requirements of the condition, without the need for prior Council approval; and ii. the practitioner must notify the Nursing Unit Manager of any Department in which he is employed and the hospital's Director of Physiotherapy of these practice conditions and must forward to the Council within seven (7) days of the effective date and on commencing any new employment a copy of these conditions signed by each of these persons. If the practitioner is employed in private practice, he must i. notify the principal(s) of the practice, practitioner manager and any other registered health practitioner(s) who may be working on site with him of these practice conditions; and ii. forward to the Council within seven (7) days of the effective date of these conditions and on commencing new employment, a copy of these practice conditions signed by each one of the above persons iii. within seven (7) days of the effective date of these conditions and on commencing new employment send to the Council for it approval, a list of possible chaperones, except in the circumstances where the chaperone is a spouse or family member of the patient iv. forward to the Council within seven (7) days of the end of each calendar month a report listing all patients as described in this condition, who have been examined/consulted, treated or interviewed by him during the calendar month, showing in respect of each patient the date of every examination and the name or names of the person or persons present during that examination. This report must include: • Printed notation of the names of each patient and the chaperone • Contemporaneous signature of the chaperone and each adult patient • Date and time of each examination • Where applicable, the relationship of the chaperone to the patient If the practitioner is engaged in a research role which involves consulting, interviewing and examining female persons, he must i. Notify his employer, supervisor or collaborator of these practice conditions. ii. Forward to the Council within seven (7) days of commencing such role, a copy of these practice conditions signed by his employer, supervisor, collaborator or any other person with an ongoing role in his research activities iii. Forward to the Council within seven (7) days of the end of each calendar month a report in similar terms as to that required for private practice. (Condition 2) 3. The practitioner is to authorise each and every chaperone to immediately inform the Council of any concerns that may arise in the course of undertaking the role of chaperone. (Condition 3) On 28 June 2016 the Council authorised a routine inspection of the practitioner's practice to ascertain his compliance with his chaperone condition. The practitioner's registration remained subject to the conditions until 20 July 2016 when further proceedings were held pursuant to section 150 of the National Law at which time the Council imposed a revised set of conditions on the practitioner effective 1 August 2016. PARTICULARS OF COMPLAINT TWO 1. The practitioner contravened Condition 2, the Chaperone Condition, in that he consulted, treated, interviewed or examined the following female patients in circumstances where a chaperone (an adult third person) was not continuously present: (a) Patient A on: i. 5 April 2016; ii. 17 May 2016. (b) Patient B on 17 May 2016; (c) Patient C on: i. 22 March 2016; ii. 5 April 2016. (d) Patient D on: i. 22 March 2016; ii. 5 April 2016. (e) Patient E on 5 April 2016; (f) Patient F on 1 December 2015; (g) Patient G on: i. 24 November 2015; ii. 1 December 2015 (h) Patient H on 1 December 2015; (i) Patient I on: i. 24 November 2015; ii. 1 December 2015. COMPLAINT THREE Is guilty of unsatisfactory professional conduct under section 139B (l) of the National Law in that the practitioner has engaged in improper or unethical conduct relating to the practice of physiotherapy. Each particular of Complaint Three justifies an individual finding of unsatisfactory professional conduct. BACKGROUND TO COMPLAINT THREE The background to Complaint Two is relied upon and repeated. PARTICULARS OF COMPLAINT THREE 1. In or about November 2015 the practitioner made a false and misleading representation when he provided to the Council a report as required by Condition 2 (iv) purporting to include all female patients examined, consulted, treated or interviewed by him during the calendar month, in circumstances where Patients G and I whom he had treated were omitted from the report. 2. In or about December 2015 the practitioner made a false and misleading representation when he provided to the Council a report as required by Condition 2 (iv) purporting to include all female patients examined, consulted, treated or interviewed by him during the calendar month, in circumstances where Patients F, G, H and I whom he had treated were omitted from the report. 3. In or about March 2016 the practitioner made a false and misleading representation when he provided to the Council a report as required by Condition 2 (iv) purporting to include all female patients examined, consulted, treated or interviewed by him during the calendar month, in circumstances where Patients C and D whom he had treated were omitted from the report. 4. In or about April 2016 the practitioner made a false and misleading representation when he provided to the Council a report as required by Condition 2 (iv) purporting to include all female patients examined, consulted, treated or interviewed by him during the calendar month, in circumstances where Patients A, C, D and E whom he had treated were omitted from the report. 5. In or about May 2016 the practitioner made a false and misleading representation when he provided to the Council a report as required by Condition 2 (iv) purporting to include all female patients examined, consulted, treated or interviewed by him during the calendar month, in circumstances where Patients A and B whom he had treated were omitted from the report. COMPLAINT FOUR is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration BACKGROUND TO COMPLAINT FOUR The background to Complaints One and Two is repeated. PARTICULARS OF COMPLAINT FOUR 1. Particular 2 of Complaint One, particular 1 of Complaint Two and particulars 1, 2, 3, 4 and 5 of Complaint Three are relied upon and repeated individually; or 2. Complaints One, Two and Three and the particulars therein are repeated and relied upon cumulatively. Reply to the Complaints 1. Mr Skandaliaris responded to the HCCC's Complaints in a Reply to the application for disciplinary findings filed on 30 July 2018. His response to Complaints Two, Three and Four is as follows: 1. Complaint Two: he admits the factual allegations but denies the allegation that the failure to record all the female patients treated by him during the relevant periods was a deliberate attempt to deceive the Council, but rather the result of an inadequate business model; 2. Complaint Three: he admits that he failed to particularise all the females treated by him during the relevant periods in the reports referred to in paragraphs 1 to 5 of the Particulars of Complaint Three; 3. Complaint Four: he concedes that the admissions made could amount to unsatisfactory professional conduct but denies that the conduct was serious either individually or when considered together to amount to professional misconduct. 1. Mr Skandaliaris' response to Particulars 1 and 2 of Complaint One in the Reply filed on 30 July 2018 is as follows: 1. Particular 1: he denies that he failed to obtain an adequate history from Person A and asserts his treatment was limited in accordance with the limited history; 2. Particular 2: 1. He admits the action but says he first obtained Person A's consent; 2. He admits the action but denies his actions were inappropriate or without explanation; 3. He admits moving Person A's top but denies that his actions were inappropriate and made without prior explanation or consent; 4. He admits to adjusting Person A's pants and underwear in order to properly treat her but denies that her bottom was completely exposed or that the action was undertaken without prior explanation or consent; 5. He denies applying his hands to Person A's inner thigh. He massaged Person A's hamstring with his elbow. He admits to massaging her left thigh but with consent; 6. He denies the allegation; 7. He denies the allegations; 8. He denies the allegation; 9. He denies the allegation; 10. He denies the allegation; 11. He denies the allegation; 12. He denies the allegation; 13. He denies the allegation; 14. He did massage Person A's back but denies that Person A used her right hand to attempt to push his hands away or that Person A collapsed; 15. He denies lying against Person A or touching her buttock with his penis; 16. He denies that he failed to obtain proper informed consent; 17. He denies the allegation. 1. A Statement of Agreed Facts provided at the hearing (ex A3) addresses Complaint One as follows: 1. In April or May 2013 Person A was employed as a receptionist in a medical centre in which Mr Skandaliaris practised as a physiotherapist; 2. In October 2013 Person A was involved in a motor vehicle accident; 3. On 28 March 2014 Mr Skandaliaris massaged Person A in the medical centre, at a time Person A was suffering pain in her right back, hip and leg; 4. On 4 April 2014 Person A approached Mr Skandaliaris requesting that he treat her because she was continuing to experience pain; 5. Person A was fully clothed, wearing her underwear, pants, bra and a tight top with long sleeves; 6. Person A lay face down on a treatment table during the treatment; 7. The treatment was undertaken in a small area close to the reception area which was cordoned off by blinds; 8. Mr Skandaliaris pulled Person A's top approximately half way up her back above her bra and undid her bra (Particular 2(a) Complaint 1); 9. Mr Skandaliaris pulled Person A's pants and underwear down at the same time so that approximately half of Person A's buttock was exposed (Particular 2(b) Complaint 1); 10. To the extent that Mr Skandaliaris treated Person A he admits he breached cl 3.14 of the Physiotherapy Board of Australia Code of Conduct in failing to document in his clinical notes the treatment he provided to Person A (Particular 3 Complaint 1). Background 1. Mr Skandaliaris is 46 years old. He has qualifications in nursing (Bachelor of Nursing 1995) and physiotherapy (Bachelor of Applied Science (Physiotherapy) 2002), and has been a registered Nurse since 1996 and a registered Physiotherapist since 2003. 2. Mr Skandaliaris set up his practice at the Medical Centre in 2004, and in March and April 2014 was working as a physiotherapist there three days a week, on Monday, Wednesday and Friday. Person A was employed as a receptionist, and worked on Thursday, Friday, Saturday and Sunday. Mr Skandaliaris provided treatment to Person A on 28 March 2014 and 4 April 2014. 3. On 4 June 2014 Mr Skandaliaris was charged with six offences of assault with act of indecency. The offences related to two women, one being Person A. Details of and about the other person have been redacted from all the documents in evidence in these proceedings. At the hearing of those charges in the Downing Centre Local Court, evidence was given by Person A and Mr Skandaliaris, and by five other witnesses who were persons associated with the Medical Centre: the Practice Manager, the Receptionist, the General Practitioner, the Medical Director, and the Nurse. On 3 September 2015, after four days of evidence on 11 and 12 December 2014, 21 and 22 May 2015, and prior to hearing submissions, the Magistrate who was hearing the matter disqualified herself. The parties agreed to the matter being concluded by a different Magistrate based on the transcript, with submissions. Mr Skandaliaris was acquitted of all charges on 15 December 2015. 4. Conditions were imposed on Mr Skandaliaris' registration as a nurse under s150 of the National Law, and the matter referred to the HCCC. The conditions included a condition that Mr Skandaliaris not undertake any nursing practice which involves the provision of direct or indirect clinical care. 5. Conditions were imposed on Mr Skandaliaris' registration as a physiotherapist under s 150 of the National Law on 16 June 2014, being the conditions the subject of Complaint Two. Further conditions were imposed under s 150 of the National Law on 20 July 2016, after an officer from the Health Professionals Councils Authority authorised as an inspector under the National Law attended the practice to conduct a check of Mr Skandaliaris' compliance and identified instances where female patients appeared on his daily schedule or appointment list who did not have a corresponding entry on the relevant chaperone log. The conditions then imposed, and which remain in place, include a condition that Mr Skandaliaris not consult, treat, interview or examine any female patient including work colleagues in any practice context. Issues 1. The issues requiring determination by the Tribunal are: 1. Whether Particulars 1 and 2 (a)-(q) of Complaint One are established; 2. Whether on the basis of Mr Skandaliaris' admissions or on the findings of the Tribunal any of the Complaints considered individually constitute unsatisfactory professional conduct or professional misconduct; and 3. Whether Mr Skandaliaris is guilty of professional misconduct under s 139E of the National Law. 1. The HCCC submits that the Tribunal should find Complaint One established, accepting the evidence of Person A in preference to that given by Mr Skandaliaris. Having found that all the Complaints are made out, the Tribunal should find that individually, and together, they constitute professional misconduct. Even if Complaint One is not established, the failure to keep adequate records constitutes unsatisfactory professional conduct and the breach of the s150 conditions, and providing misleading reports to the Physiotherapy Council, individually constitute professional misconduct. The Tribunal should find that considered cumulatively, Mr Skandaliaris is guilty of professional misconduct. 2. Mr Skandaliaris submits that the Tribunal should not find Particular 2 to Complaint One established. As to the other Complaints, Mr Skandaliaris submits that while he accepts that he failed to keep records of his treatment of staff, that is understandable in context; and the breaches in reporting are understandable in the circumstances. Overall, considering the circumstances his failure to keep records, the breach of the chaperone condition, and failure to report details of the persons he treated, are deserving of censure as unsatisfactory professional conduct and not professional misconduct. Evidence 1. Mr Skandaliaris provided a written statement dated 9 May 2018 (ex R1). He gave oral evidence at the Tribunal hearing and was cross-examined. 2. The HCCC provided a bundle of documents in two volumes (ex A1, A2). Those documents include: 1. Documents relating to the prosecution of Mr Skandaliaris, including the Facts Sheet; witness statements in the Police Brief; and the transcript of proceedings at Downing Centre Local Court on 11 and 12 December 2014, 21 and 22 May 2015, 3 September 2015, 10 December 2015 and 15 December 2015; 2. An expert report provided by Tracey Powell dated 12 April 2017; 3. Documents relating to the s150 proceedings and the imposition of conditions on Mr Skandaliaris' registration as a physiotherapist. 1. The HCCC documents included a statement given by Person A to NSW Police on 1 May 2014 (ex A1 tab 6). That statement was admitted over objection. Person A gave oral evidence and was cross-examined. The Tribunal was assisted by an interpreter for Person A's evidence. Relevant Law 1. The HCCC brings the Complaints relying on s 139B(1)(a), (c) and (l) of the National Law. Complaint One alleges unsatisfactory professional conduct under s 139B(1)(a) and (l); Complaint Two under s139B(1)(c) and (l); and Complaint Three under s139B(1)(l). Those provisions are as follows: 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following— (a)Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (c) Contravention of conditions of registration or undertaking A contravention by the practitioner (whether by act or omission) of— (i) a condition to which the practitioner's registration is subject; or (ii) an undertaking given to a National Board. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 1. The words "improper" and "unethical" as used in s 139B(1)(l) are not defined in the National Law but have been considered in a number of Tribunal decisions. The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of professional conduct". As was the case in Health Care Complaints Commission v Little [2016] NSWCATOD 146 the Tribunal adopts the dictionary definition in construing these words as they appear in the National Law. The relationship between s139B(1)(a) and (l) was also considered in Little, where at [59] the Tribunal held that s 139B(1)(l) is directed at a broader range of conduct than s 139B(1)(a), and that conduct can be both "significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience" and improper or unethical conduct relating to the practice or purported practice of the practitioner's profession. 2. Complaint Four is that Mr Skandaliaris is guilty of professional misconduct, which is defined in s 139E as follows: 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration. 1. The purpose of orders made in disciplinary proceedings is to protect the public, as provided in the objects stated in s 3 of the National Law, and in s3A of the National Law which states: 3A Objective and guiding principle [NSW] 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 onus or burden of proof is that of the HCCC, and due to the protective nature of the jurisdiction, and the seriousness of the complaints, if established, both for the practitioner and the public, the standard of proof is the civil standard on the balance of probabilities, to the level of satisfaction described by the High Court in Briginshaw v Briginshaw (1938) 60 CLR 336: Health Care Complaints Commission v Perceval [2014] NSWCATOD 38 at [99]. The Tribunal is not bound by the rules of evidence in these proceedings (cl 2 Sch 5D National Law). Acknowledging that there is some recent debate as to the extent to which the Tribunal is obliged to apply the Briginshaw principle (see Ng v Health Care Complaints Commission [2017] NSWSC 53 at [56] (Davies J)), the Tribunal approaches the question of proof in these proceedings applying the principles as stated by Macfarlan JA (with whom McColl JA and Sackville AJA agreed) in Forster v Hunter New England Area Health Service [2010] NSWCA 106 at [22]: 22. In the decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 the plurality indicated that in the context there under consideration epithets designed to assist in identifying the strength of the evidence necessary to establish a matter on the balance of probabilities test were "at best unhelpful and at worst misleading" (110 ALR at 451). They said that "[t]he most that can validly be said [in the type of case under consideration] is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion. Ultimately, however, it remains incumbent upon the trial judge to determine the issue by reference to the balance of probabilities" (ibid). 23. Likewise, in the present context, it is not in my view of assistance to attempt to refine the description of the standard of proof beyond saying that the word "satisfied" in s 82(3)(c) requires the court to reach its conclusion on the balance of probabilities and in doing so to have regard to the gravity of any allegations made and to the seriousness of the consequences that may flow from the making of a particular finding or order. The need to have regard to such matters was authoritatively stated by Dixon J in the seminal decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, especially at 362 (see also Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521-2). 1. The reference to Briginshaw is to the following passage in the judgment of Dixon J at 362: But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations that must affect whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences. Complaint One Particular 1 1. It was not in dispute that Mr Skandaliaris treated staff at the Medical Centre. His oral evidence to the Tribunal that he treated everyone at the Medical Centre, including the doctors, was confirmed by the oral evidence given to the Local Court by the Receptionist, the Nurse and the Practice Manager that he had treated them. 2. The Tribunal finds, based on his evidence, that Mr Skandaliaris regarded his treatment of staff as different to that provided to patients at the Medical Centre, and that his treatment of staff was not as comprehensive as that provided to patients. In his statement of 9 May 2018 Mr Skandaliaris conceded at [24] that when treating staff he did not adopt his usual procedure, described at [20], of making a detailed assessment of history, lifestyle, posture and movement and then evaluating and diagnosing the patient's problem and deciding on the most appropriate techniques. He states at [24] and [25] that he treated staff differently because they were already receiving treatment, and that he obtained a history in relation to the pain that was disturbing them and formed an initial diagnosis. That his treatment of staff was less comprehensive than that provided to patients is supported by Mr Skandaliaris' evidence to the Tribunal that his usual appointment time was 20-30 minutes, and that in treating Person A first for 5 minutes and on the second occasion for 10 minutes the time was shorter because she was a colleague. 3. In responding to Particular 1 to Complaint 1, Mr Skandaliaris denies that he failed to obtain an adequate history from Person A and asserts his treatment was limited in accordance with the limited history. His evidence was that he knew of the background to Person A's injury, and he palpated the area on 28 March 2014. He did not take much of a history because it was an unofficial treatment, and he did not inquire what other treatment Person A was receiving. He adopted a conservative approach, aiming not to do any harm and to provide her with some relief. Findings 1. Section 3.14 of the Physiotherapy Board of Australia Code of Conduct requires practitioners to recognise that providing care to those in a close relationship, which includes work colleagues, can be inappropriate; and that when a practitioner chooses to provide care, good practice requires that adequate records are kept and adequate assessment occurs. Providing good care includes assessing the patient taking into account their history, views and an appropriate physical examination where relevant; and the history includes relevant psychological, social and cultural aspects: cl 2.1(a) Physiotherapy Board of Australia Code of Conduct. 2. Having decided to provide treatment for Person A, Mr Skandaliaris was obliged to comply with all ethical and professional principles. Any treatment would have to be based on an adequate assessment and history so as to inform a diagnosis, and in the absence of a diagnosis there could be no justification for treatment. Mr Skandaliaris justified his treatment of Person A based on the location of her pain. However, the area of symptoms may justify the focus of an examination, but not the form of treatment or where it should be directed. Mr Skandaliaris acknowledged as much in his evidence in the Local Court when he agreed that the sacroiliac joint issue could be a symptom of a number of issues (22 May 2015, T 174). 3. The Tribunal is satisfied that Mr Skandaliaris' approach of a limited treatment based on a limited history was not appropriate or consistent with good physiotherapy practice. His failure to take a better history was conduct that demonstrated that the care exercised by him was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It was also contrary to his obligations under the Physiotherapy Board of Australia Code of Conduct, and was thus unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law. Particular 2 1. It was not in dispute that Mr Skandaliaris provided treatment to Person A on 28 March 2014, and on 4 April 2014, on the latter occasion at her request. There was no issue raised as to the treatment provided on 28 March 2014. The critical issue is the allegation that Mr Skandaliaris' actions during the treatment of Person A on 4 April 2014 were inappropriate and done without explanation or consent. 2. Mr Skandaliaris admits some of the actions particularised, but denies that those actions which he does admit were inappropriate or undertaken without explanation or consent, and denies the other allegations. 3. Person A and Mr Skandaliaris have given different accounts as to what took place on 4 April 2014. 4. The HCCC submits that the Tribunal should accept the evidence of Person A in preference to that given by Mr Skandaliaris, because: 1. The Tribunal has had the benefit of seeing Person A give evidence; 2. She made a contemporaneous complaint about the events of 4 April 2014 to work colleagues a week afterwards; 3. Her complaint was consistent with her statement to NSW Police less than one month after the events; 4. Person A affirmed her detailed statement to Police, which was given with an interpreter present; 5. Person A was not cross-examined in the Tribunal on her evidence as to the incident; 6. The evidence of Person A is supported by the evidence of two work colleagues as to Person A's relatively contemporaneous complaints; and 7. In contrast, Mr Skandaliaris made no note, and did not give evidence about the incident with Person A until May 2015, and has admitted to a deliberate breach of the s150 conditions and failure to keep records. 1. Mr Skandaliaris' representative submits that it is not necessary for the Tribunal to decide which version of the events of 4 April 2014 it prefers, as based on the totality of the evidence: 1. There is no evidence of a contemporaneous complaint because: 1. while it is accepted that Person A spoke to the Psychologist who worked at the Medical Centre on the Friday evening, there is no evidence as to what was said; 2. Person A did not complain to the Receptionist at the time; 3. Over the weekend Person A sought to contact Mr Skandaliaris; and 4. The evidence of the Receptionist and the Practice Manager as to what was said on the following Monday was confused; 1. Mr Skandaliaris attended the meeting the following week where the allegations were raised, and at which he expressed surprise; and 2. Mr Skandaliaris is a respected employee at the Medical Centre, with no complaints by patients or staff. Person A's evidence 1. The evidence of Person A as to what occurred on 4 April 2014 and subsequently is in her statement to NSW Police of 1 May 2014, and her oral evidence in the Local Court proceedings on 11 and 12 December 2014. At the Tribunal hearing Mr Skandaliaris did not cross-examine her on her statement to Police of 1 May 2014, and relied on the transcript of oral evidence given by Person A at the Local Court. 2. In oral evidence to the Tribunal Person A confirmed her statement of 1 May 2014. She gave evidence as to her background, her understanding of English, and her use of English in her work, and she was cross examined on those issues. Statement of 1 May 2014 1. In her statement of 1 May 2014 (ex A1, tab 6) Person A describes the treatment provided by Mr Skandaliaris on 28 March 2014, which she said took 5-10 minutes because she was working, with her fully clothed. She states that she had pain in her right back, hip and leg, and describes that treatment as "very formal and professional", and that "I thought Johnny was a little but rough but I thought he was a good physiotherapist". 2. On Friday 4 April 2014 the Receptionist was also working and she asked her to stay a bit longer after work so she could see Mr Skandaliaris. Person A recounts that she was wearing underwear underneath her pants, a bra and a tight top with long sleeves. When Mr Skandaliaris came into the treatment room: 1. he asked her to undo the buttons on her track pants, which she did, and she lay on the massage table on her stomach face down; 2. he pulled her top half way up her back, above her bra and undid the clips on her bra. He did not ask permission to do this and she thought it was a bit strange; she felt uncomfortable but thought she should not be so rigid and should trust him; 3. all of a sudden he pulled down her track pants and underwear together down her body so half her buttocks were exposed. She convinced herself to keep trusting him because he was a professional but she felt uncomfortable; 4. he threw a small towel on the top of her back, and used massage oil to massage her gently with both hands from where he had undone her bra to her hip; 5. after this he kept one hand massaging her back and with the other hand grabbed the right side of her top and pulled it towards her head so the front of her top moved up her body over her breasts. It happened quickly and she felt strange and like she needed to protect her breasts so he couldn't see them; 6. he continued to massage her and suddenly he pulled her track pants and underwear down underneath her buttocks, so her buttocks were completely exposed. She was shocked, embarrassed and confused, and felt shy to ask what he was doing because he is a colleague and professional. She tensed her body and put her legs tight together; 7. he kept trying to rub the right side of her hip but she was tight. She could feel his hands very hard on her thighs between her legs, and she said "Hey"; 8. he kept putting his hands in between her thighs very fast, and all of a sudden he moved his hands very quickly. He reached around the front of her body with one of his hands, and put his hand down her underwear. She felt his hand touching her pubic hair and he moved it sideways across her groin area rubbing her. He said "You are here, you are here", and she said "Hey don't"; 9. she used her right hand and tried to grab his hand to make him stop but he kept continuing to touch her. All of a sudden he moved his hand and she felt him push her on her upper back so she was forced into the massage couch; 10. he grabbed her right forearm and pulled it back behind her body, and the top of her body lifted up off the massage couch and turned to the right with her breasts exposed. She tried to use her left hand to protect herself but he started to rub her ribs underneath her right breast and it was very painful. He said "You have pain here"; 11. he was using his thumb for a while in two places in her ribs underneath her right breast and she was in great pain. When he let go of her arm she collapsed onto the massage couch. As soon as he stopped he moved both of his hands to her buttocks again and started rubbing between her thighs again, rubbing her right thigh; 12. she was still in pain from where he had been rubbing her on her ribs, and she felt his fingers moving on her skin between her thighs and they were rubbing and touching the outside of her vagina gently moving up and down. At first she thought maybe this was an accident but he kept rubbing her vagina; 13. she felt two of his fingers touching inside her right thigh with one of his hands and the other hand was rubbing the outside of her vagina. She felt something was not right, she said "Hey Johnny what are you doing?"; 14. he did not stop, he kept rubbing her between her thighs and on the outside of her vagina. Then he moved both his hands to her back and being very rough it was causing her pain. She used her right hand and tried to push his hands away but he didn't stop. She was in so much pain she collapsed again on the massage couch. She spoke to him seriously "Johnny I hurt my back"; 15. he went back to massaging her formally, stretching her body and pressing on the acupuncture points; 16. after she had been on the couch roughly about twenty or twenty five minutes he said "It's done"; he hooked her bra and pulled her underwear up, then he climbed on top of her body. She was still lying face down on the massage couch and he lay on top of her so the front of his body was touching her back. She felt his penis against her buttocks, he lay on top of her for about two seconds then got off. He said "You hurt your nerve, next treatment you have to take off your pants"; 17. he left the room and she got off the couch and got dressed. She felt stunned and shocked. She felt awkward and confused because he was her colleague and she didn't know how to face him in the future. To avoid awkwardness she tried to remain calm and asked him about how to make a payment. 1. Person A said that she continued at work because the Receptionist had to go home. She kept working and tried to remain calm but was very upset and wanted to cry. After work she went home, couldn't sleep and was upset about what he had done. When he had been treating her he touched her unprofessionally but he tried to make it part of the treatment. She went to find the Psychologist who works at the Medical Centre and told him what happened, and he told her to go to the Police. She saw the Psychologist again on Saturday morning and again he told her to report Johnny to the Police. 2. She sent Mr Skandaliaris a text message to try to arrange a time to meet. She went to work at 1.00pm and still wanted to arrange payment because she didn't want there to be any problems. 3. Person A states that on Monday 7 April 2014 she sent a message to the Practice Manager that she was not able to work for the week. On the afternoon of Tuesday 8 April the Practice Manager and Receptionist came to her home and she told them that Mr Skandaliaris "be rude to me". The Psychologist sent her a text message later that night with details for a counsellor at the Hospital for her to go and talk with a female, and she went to the hospital about 10.00pm that night. There was a meeting at work on Thursday 10 April with the Practice Manager, the Medical Director, another doctor and the Nurse, and they asked what happened and made notes. There was another meeting at the Medical Centre on Friday 11 April 2014. She went to the police station on 18 April 2014 to make a report. Evidence in the Local Court 1. Person A gave evidence over two days during the trial, and while there was an interpreter, most of her evidence was given in English. 2. Person A described the treatment on 28 March 2014 as proper treatment, and that she felt better after the treatment. She did not take off her clothes. 3. On 4 April 2014 she felt pain and asked the Receptionist to stay back for a while and she would have physio for a while. She went to the treatment room but could not find Mr Skandaliaris, so she called him and then he came. He asked her to unbutton the button of her pants. She then was face down on the couch. Mr Skandaliaris undid her bra without asking her, which made her feel weird because the other physio would ask. At the other place she would do it herself, and even if they did it they will ask. The transcript records that in response to the question why she did not say anything, Person A stated (11 December 2014, T39): Because I feel weird. Just he's my – was my colleague and then I have to trust a person, then I feel awkward to – like, ask something like this kind of question is like too much or something. Yeah. Because I trust as a person, you know. Yeah. And I did – I think that just …(not transcribable)…ask me won't hurt me. Maybe I just – I just confused. Yeah. 1. Through the interpreter Person A said Mr Skandaliaris then "pull down pant together with my undie" half way down her buttock. He did not ask permission. At that point she felt weird "but I just quiet". She stayed quiet "Because I feel a bit embarrassing but I still thinking." Mr Skandaliaris then used the massage oil and a towel, and (through the interpreter) "initially he was very slow and do thing in a proper way", just rubbing up and down her back from top to bottom. Mr Skandaliaris then pulled up her top, which was a tight one: the whole breast was exposed, but because the bra was still with her body she lay down so she did not expose anything. He then pulled down her underwear with the pants under her buttock, so her whole buttock was exposed. Mr Skandaliaris had not said anything, and just did everything suddenly. Asked how she was feeling, Person A stated "…I was embarrassing, I was scared, I were feel like awkward". She did not want to expose too much and tried to turn her body, she tried to close her leg very tight and turn her body. Mr Skandaliaris was trying to still massage her on her right side with his left hand higher on her body and his right hand lower on the right side of her body. He put his hand in the middle of her legs, and tried to open her legs, using both hands. She said "Hey" because she was scared. Mr Skandaliaris then moved his hand under her front, starting from the back (11 December 2014, T 45): Witness: Yeah. One hand come in front of me and put in my underwear. Interpreter: Yeah. He put his hand inside my undie. Witness: I still remember very, very clear it's on my right side. 1. When asked did she feel where his hand went, Person A replied "I thought he put inside my underwear – hand go around pubic area", confirming through the interpreter that she was referring to the pubic hair (T45). She was scared and trying to refuse, and Mr Skandaliaris said "You are here. You are here." Person A then states he put a hand under her pubic hair and rubbing (11 December 2014, T 45-46), Q.He was rubbing did you say? Witness: Yeah. From the public hair, left, right, left, right. And then – Q.He was rubbing your pubic hair, left, right, left, right? Witness: Left, right. And then because I hurt my right, right – Interpreter:The, the groin area. Witness: Right side nerve. Nerve. Interpreter:Your Honour, I should ask the person to say in Mandarin. Witness (Through interpreter) Well, the nerves in my groin area. Witness: Yeah. Was right leg, right tight. Okay. Witness (Through interpreter) The right hand side nerve in the groin area, your Honour. Witness: You know, I was like – he keep doing rubbing and rubbing. "You are here. You are here." I was try to stop. "Hey". I try to – you know, I think I try to stop him. I got scared. I tried to pull him but he don't, he don't bother me. 1. Person A said she tried to pull Mr Skandaliaris' hand away and he did not stop. Then suddenly he pushed her back down very hard to the couch. He pulled her right hand and then her body was half lifted from the couch. Her bra was loose, and she tried to protect, and she fell down and everything was exposed. He then started rubbing on her rib. She was in pain and maybe screamed: "I just scream. I didn't say anything. I just scream because pain" (11 December 2014, T 49). It was not a loud scream because it was her workplace. Mr Skandaliaris then moved to the bottom again, and she felt fingers at the area between her legs, at the top of her legs. She could feel his finger "rubbing me up and down on my vagina and you know what, also I could feel finger also in my right, left nerve, right nerve". She told him "I'm back pain". Then he went back to proper massage. He told her he was finished and he wanted to help her put back her bra, he helped her put her underwear and pants back. He told her that next time she would have to take off her pants. Person A then gave evidence that after he did up her bra and pulled up her pants Mr Skandaliaris "then whole body climb on top to me, head to head, leg to leg, and then I could feel his penis is on top of my buttock and is, is hard" (11 December 2014, T 54). He quickly got off her body. Mr Skandaliaris' evidence Evidence in the Local Court 1. Mr Skandaliaris gave evidence in the Local Court proceedings on 22 May 2015. His evidence was that there was no prior arrangement for him to treat Person A, and she called him from the treatment room on his mobile. She was on the plinth and he asked her to undo her trouser button as he needed to lower it down, which she did, and when he said he was going to have to lift her shirt and undo her bra she turned her head and nodded. He undid the bra and raised the shirt mid chest, under her breast. He had quickly diagnosed her problem on the previous Friday as right sacroiliac joint pain. He assessed her quickly and when he pressed the area he thought was involved she said "pain, pain". He used oil for about three minutes and then used the towel as on the previous occasion for about ten minutes. He then left the room, having had already done the bra up. 2. In cross-examination Mr Skandaliaris denied pulling Person A's pants to the bottom of her buttocks, pulling her right shoulder back and lifting her up off the couch. He agreed that neither of those were necessary in the treatment he was giving, as would be touching her groin or vagina or between her legs. His response to the proposition that he did not explain the treatment to Person A, was "that's a fair comment" (22 May 2015, T 190). He denied that he would accidentally touch a patient's breast or slip his hand between their legs. He agreed there was never a need to climb on top of a patient, and said that he may lean over them. He denied placing his hand inside her pants or rubbing around her vagina; forcing her right forearm behind her back; pressing into her ribs and underneath her breasts; rubbing her vagina between her legs, being on top of Person A; or that he had an erection while treating her. Person A was not distressed and looked normal when she left. At some certain points she was in pain. Evidence in the Tribunal 1. In his statement of 9 May 2018 Mr Skandaliaris states that while he understood that English was Person A's second language he did not realise she had any problems communicating in English until she required the services of an interpreter at the trial. He would have made a greater effort to ensure she understood him if he had appreciated that there was a language problem. 2. On 4 April 2014 Person A called him while he was in the pathology room, and there was no prior arrangement for him to treat her on that day. She agreed to him using oil, and complied with his request that she undo the buttons on her trousers so he could lower them down. She reacted by nodding to his statement that he was going to have to lift up her shirt. He asked her to undo her bra. He estimated that he raised her shirt to mid chest level. This treatment lasted about ten minutes, during which he applied oil and massaged her using a towel; she was in the room for about 12 minutes. At the end of the treatment he walked out of the area to give her some privacy while she dressed herself, after assisting her to replace her bra. Mr Skandaliaris rejects any allegation that he grabbed Person A, placed his hands between her legs or moved his hands around the front of her. When on the following Friday the Medical Director told him there was an allegation against him by Person A that he had touched her inappropriately, he said "not true" and he was dumbfounded and disappointed by the allegation. 3. In oral evidence to the Tribunal Mr Skandaliaris confirmed that he asked Person A to undo her trouser button when she was lying down. He could not remember whether he undid Person A's bra strap, but knew it was undone, and he asked permission to undo it. He always gets consent. When taken to his statement and his Local Court evidence, Mr Skandaliaris accepted that he undid the bra strap. He agreed he moved Person A's underwear with her pants, and said he would have asked her to lower them down. He already had information about where the pain was from 28 March and he followed up on that area. He denied all the other paragraphs in Particular 2, responding that each that it "did not happen". He agreed there would be no need to touch Person A's inner thigh or groin, or pull her off the plinth or expose her breasts. Discussion and findings 1. The allegations in Particular 2 of Complaint One are detailed, and serious, and for the most part denied by Mr Skandaliaris. In order to determine whether Particular 2 to Complaint One is established the Tribunal is required to decide which of the competing versions of the events of 4 April 2014 it should accept. The Tribunal approaches that task with caution, acknowledging that the totality of the evidence must be considered. In Health Care Complaints Commission v Ng [2015] NSWCATOD 85, proceedings in which the Tribunal was required to determine what took place during the course of a consultation by an osteopath, the Tribunal relied on the principles as stated by Sackar J in Campbell v Campbell [2015] NSWSC 784 at [73]-[75]. After noting the fallibility of human memory, and the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses, his Honour had referred to the decision of the UK Supreme Court in McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477, where that court … emphasised that, especially in cases where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, and the trial judge's assessment of the character of witnesses and the manner in which the witnesses give evidence, is of primary importance. 1. At [75] his Honour noted: In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane JA (as he then was) made the observation that "the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation." This remark was cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt (2014) 86 NSWLR 226 at [56]. 1. At [76] his Honour referred to the summary of principles by Hallen J in Evans and Braddock [2015] NSWSC 249, which included: 73 The credibility of a witness and his, or her, veracity may also be tested by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to his, or her, motives, and to the overall probabilities: Armagas Ltd v Mundogas S.A. (The "Ocean Frost") [1985] 1 Lloyd's Rep 1, per Robert Goff LJ, at 57. Also see, In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547, per Black J, at [7]. 74 A court, in cases involving events which occurred long before the litigation, usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable and, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation: Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J, at [1247]. Greater weight is usually accorded to such documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at [157]. 1. The appeal from the Tribunal's decision in Ng did not take issue with the Tribunal's reliance on those principles: Ng v Health Care Complaints Commission [2017] NSWSC 53. 2. In this proceeding the Tribunal has not only had the benefit of hearing oral evidence from Mr Skandaliaris, and more limited oral evidence from Person A. In addition to that oral evidence, there is the transcript of the Local Court proceedings, which included oral evidence given by both Person A and Mr Skandaliaris, and the evidence given on 21 May 2015 by the Medical Centre Practice Manager, the Receptionist, the Doctor, the Medical Director, and the Nurse. The Tribunal also has the witness statements forming part of the Police brief by the Receptionist (24 April 2014), the Nurse (16 May 2014), the Medical Director (22 May 2014), the Doctor (27 May 2014), and the Practice Manager (29 May 2014). Assessing the evidence of Person A and Mr Skandaliaris 1. On the first day of the hearing Mr Skandaliaris' representative stated that he relied on the transcript of the Local Court proceedings and would not be cross examining Person A on her statement of 1 May 2014 as to what took place on 4 April 2014. The Tribunal raised with the parties a concern about Person A's ability to communicate in English as reflected in that transcript. There is some confusion evident at places in the evidence, for example, in the evidence as to the first treatment on 28 March 2014 (11 December 2014, T 34-35). There are other instances where it is apparent Person A did not understand a question, or that the lawyers or Magistrate did not understand her answer. On the second day of her evidence, during cross examination, the Magistrate reminded Person A of the importance of using the interpreter so that she could understand the questions and be understood. 2. Person A's statement to Police on 1 May 2014 was given with the assistance of an interpreter, and included the following statement: 47.When I made the statement to Police there was a Mandarin interpreter with us at all times. She interpreted the Police Officer's questions and my answers. The interpreter read this statement to me before I signed it. 1. Coincidentally the interpreter booked for the Tribunal hearing was the interpreter who had been present at the interview at the Police Station on 1 May 2014. The interpreter gave sworn evidence to the Tribunal as to her regular practice when interpreting on such occasions. Her evidence, which the Tribunal accepts, was that she would check each paragraph of the statement with the person, noting anything that needed to be corrected, and then sign it. 2. Person A's evidence to the Tribunal was that she left her country of birth at age 20, having been schooled there. Her primary language at home and school was Mandarin. After she came to Australia in July 2012 she started to use English. She has had no formal English classes and has learnt it by using it. She was not able to hold a conversation, and made notes while others talked and used a dictionary. She started work at the Medical Centre in April or May 2013 as a casual receptionist and did paperwork as she was not able to answer the phone. The Receptionist encouraged her to not be scared, and by April 2014 she could answer the phone but sometimes could not understand accents properly. Even now sometimes she does not understand English. 3. Having regard to the evidence as to how the statement of 1 May 2014 was taken at the Police station, and the role of the interpreter in assisting Person A to provide that statement, the Tribunal is satisfied that that is an accurate statement of Person A's evidence given on that occasion as to what took place on 4 April 2014. In contrast, it is apparent from the transcript that Person A had difficulty giving oral evidence to the Local Court. She stated that her proficiency in English was less than 100%, in the order of 50-60%. That is consistent with her evidence to the Tribunal as to her educational background and her current level of understanding of English. The assistance of the interpreter in the Local Court proceedings was sporadic, and at times both she and the interpreter were responding to questions. Her oral evidence to the Tribunal, with the proper assistance of the interpreter, was in comparison clear and comprehensive. Person A took time to consider her responses to questions, including seeking clarification of some terms used, for example, when the Tribunal referred to "transcript". 4. The Tribunal has reservations as to whether all of Person A's oral evidence to the Local Court as recorded in the transcript accurately reflects her understanding of and responses to questions in chief and in cross-examination. While noting those reservations, on a careful reading of the transcript the Tribunal concludes that overall, the substance of her evidence was consistent with the statement she had made to Police on 1 May 2014, some 18 months earlier. 5. In considering Person A's evidence as to the events of 4 April 2014, it is relevant (and was not in dispute) that she had been receiving treatment from another physiotherapist (on referral from a doctor at the Medical Centre) since her accident in October 2013. She described that treatment, which had occurred on more than three occasions, as involving physiotherapies, a machine, and acupuncture, and that that physiotherapist had used oil and asked permission to move her clothing (11 December 2014, T 80). 6. It is clear from the 1 May 2014 statement and her Local Court evidence that what occurred on 4 April 2014 was different to what had occurred in Person A's treatments by the other physiotherapist, and in the earlier treatment by Mr Skandaliaris on 28 March 2014. The reactions described by Person A, which included shock, embarrassment and confusion, are consistent with her perception that Mr Skandaliaris' actions were not what she was expecting, and were not properly explained. In oral evidence to the Tribunal Person A maintained that Mr Skandaliaris had not asked her any questions during the treatment on 4 April 2014. 7. That something occurred on 4 April 2014 which troubled and distressed Person A is supported by: 1. The evidence of the Receptionist that when Person A came out of the treatment room her hair was messy and her face was a bit red, and she looked stunned and shocked with a blank expression on her face, and looked different to her normal appearance (ex A2, tab 52), and that she looked a bit spaced out (21 May 2015, T53); 2. The concern of the Practice Manager and the Receptionist on the following Monday that Person A was not answering their calls (21 May 2015, T 35), and their visit to her home on Tuesday, which the Receptionist said was because of their concern for Person A's safety (21 May 2015, T 36); 3. The evidence of the Practice Manager (ex A2, tab 57) that when she and the Receptionist went to Person A's home she stated that the physio touched her and undid her bra, and she was crying and a little distressed; 4. The evidence of the Receptionist that on that occasion Person A said that Mr Skandaliaris had been trying to do the massage but he put his hand "around here", and he pulled her pants down (ex A2, tab 52); 5. The evidence of the Nurse that on the following Wednesday Person A told her that Mr Skandaliaris had touched her inappropriately (ex A2, tab 53); and 6. The notes taken by the Medical Director at the meeting with Person A on the following Thursday (ex A2, tab 59), during which he advised her she needed to talk to the Police. 1. Having regard to the consistency of Person A's evidence, her complaints made to colleagues less than a week later, and their corroboration of her evidence that the events during the treatment were both inappropriate and distressing, the Tribunal regards the evidence of Person A as to what took place on 4 April 2014 as more reliable than that of Mr Skandaliaris, for the following reasons. 2. First, the evidence of Person A has been consistent throughout the course of events from shortly after the treatment on 4 April 2014. While her difficulties in giving oral evidence at the Local Court were apparent, she was able to provide evidence generally consistent with her statement to Police on 1 May 2014. She was not shaken in that evidence, including on the important question of the time the treatment took place, despite that being disputed during the course of her evidence in the Local Court. Her evidence as to the time the treatment took place was subsequently corroborated when adjusted calculations from the CCTV footage to account for daylight saving time were made (12 December 2014, T46). Her estimate as to the length of the treatment, at 20-30 minutes (11 December 2015, T 87-88) was close to the CCTV recording that she was in the treatment room for 18 minutes. 3. In contrast, Mr Skandaliaris' evidence was less persuasive. He made no contemporaneous notes, and his oral evidence to the Tribunal and the Local Court was in places equivocal, for example the inconsistency as to whether he had undone Person A's bra strap or had asked her to do it. In contrast to Person A's evidence that he did not ask permission to move her underwear and pants, Mr Skandaliaris' evidence was not consistent, agreeing that he moved her underwear and pants and then stating that he would have asked her to lower them down. There is limited support for his denials, in the evidence of the Nurse and the Medical Director that Mr Skandaliaris was shocked when told about the allegation at the meeting on the following Friday, and the statement of the Medical Director that Mr Skandaliaris had not hesitated to speak to Person A after the meeting on Friday 11 April 2014 (21 May 2015, T 87). 4. Secondly, Person A's evidence is supported by what she told the Receptionist, the Practice Manager, the Nurse and the Medical Director in the following days after 4 April 2014. The oral evidence of the Receptionist in the Local Court supported her witness statement in which she had said that Person A told them that Mr Skandaliaris had pulled her pants down, and touched her there, indicating the vaginal area (21 May 2015, T 39). The Practice Manager's witness statement is consistent, while less detailed. The Tribunal places weight on that witness statement, which was provided to Police on 29 May 2014 some 7 weeks after the event, in preference to her oral evidence which was vague, and in which the Practice Manager claimed not to be able to recall what took place. The Nurse's witness statement includes the statement that on the Wednesday she spoke to Person A using the Practice Manager's phone, and in response to her question as to what happened Person A said that "John touched me inappropriately". The Tribunal places greater weight on that statement, made 5 weeks after the event, in preference to the Nurse's oral evidence on 21 May 2015 in which she stated that Person A had phoned her on the Wednesday night and when asked whether Mr Skandaliaris had touched her private parts, said No. The Nurse accepted that she had not recorded this in her statement to Police, and that it was important, and her evidence as to when that conversation took place was unclear and inconsistent (21 May 2015, T 106-7). Person A's record of what took place during the treatment is also consistent with the detailed notes taken by the Medical Director at the meeting on the following Thursday. 5. Mr Skandaliaris submits that countering that evidence is that Person A attempted to contact Mr Skandaliaris on Saturday 5 April 2014; she failed to speak to anyone at the Medical Centre over the weekend, despite being at work on Saturday and Sunday (tab 60); and there is no evidence from the Psychologist as to what was said on the Friday evening. 6. Having regard to Person A's reactions of embarrassment and confusion as recorded in the 1 May 2014 statement, in particular her statement that she felt awkward and confused because Mr Skandaliaris was a colleague and she did not know how to face him in the future, the Tribunal accepts Person A's explanation given in cross examination in the Local Court on 11 December 2014 that she did not speak to anyone at the Medical Centre on the weekend because she "feel shame to speak to anyone" (T 106). It was not in dispute that Person A sent a text message to Mr Skandaliaris on Saturday 5 April 2014 wanting to talk to him, and her evidence was that she wanted to ensure that she paid him. Given the evidence as to Person A's state of confusion and embarrassment about having to face Mr Skandaliaris as a work colleague, the Tribunal does not place significant weight on her attempts to contact him. There is no indication as to why the Psychologist did not give evidence as to the conversations with Person A. It was not put to Person A that she was not telling the truth as to what she told the Psychologist. The Tribunal accepts that whatever was said to or by the Psychologist prompted Person A's attempts to speak to a counsellor, and accepts her evidence that she told the Psychologist what had happened. The Tribunal does not regard any of these factors as diminishing the reliability of Person A's evidence. Discussion and findings as to Particular 2 of Complaint One 1. Each of paragraphs (a) to (o) of Particular 2 of Complaint One asserts that Mr Skandaliaris' actions were inappropriate. In considering whether any of these complaints are made out the Tribunal first considers what treatment was clinically justified. 2. Mr Skandaliaris' evidence to the Local Court and to the Tribunal was that he had understood Person A to have injured the right sacroiliac joint. In the Local Court he stated (22 May 2015, T 173-4): So in this type of condition you have to resolve right hip – in that situation on the right side it's right hip flexors, okay, and also – … And the hamstring region on the contralateral side – the other side which is the left leg but there's more to it because you've got to think about – see that's a biomechanical way of looking at it; you have to consider even if there was functional problems like if she – which I didn't assess her – if you had a leg length, you know discrepancy or anything like that, you know. She might have a herniation, who knows. … She might have other spinal problems in relation to that also. Q.The sacroiliac joint issue thing you say can be a symptom of a number of other issues, is that correct? A.Yes. Q.Or a by product of a number of other symptoms? A.Yes. Q.Did you inquire as to any of those from her? A.No, I assessed her quickly, she pointed out – and when I pressed the area that I thought were involved she said "Pain, pain", so that's how I went by it. Q. If you pressed somewhere and she said "Pain", what would you do? A.You either can try and stretch it out or just put a trigger point on it and just leave it and it should just resolve. Q.Did you say, "I try to put a trigger point on it"? A.Yeah, just apply more pressure on it and hopefully that will resolve the pain. 1. In oral evidence to the Tribunal Mr Skandaliaris stated that he had treated the sacroiliac joint because Person A had pointed to that region. In response to a question from the Tribunal as to how he knew whether it was a joint problem or a soft tissue problem, Mr Skandaliaris said he tried a PA thrust, that is a push from back to front, and Person A was in pain. He did not do a motion test or aggravation test because it was an unofficial treatment and she was a colleague. He interpreted it as a joint problem, but palpated around the region and she reacted to that. The sacrum is a stability joint and if he could release the soft tissue her symptoms could resolve. 2. There is no explanation as to why, if Mr Skandaliaris was treating a sacroiliac joint problem, he considered it necessary to have Person A unclip her bra, or for him to engage in any massage or treatment of her upper body or ribs. If Mr Skandaliaris was applying a soft tissue treatment it would have been justified for him to expose some of Person A's buttocks as described at paragraph (b) of Particular 2, by lowering of her pants to the mid buttocks. However, such exposure could only have been appropriate following consent from an informed patient. 3. Person A's description of Mr Skandaliaris as being a bit "rough" is supported by the Receptionist, who stated that Mr Skandaliaris massages "really hard" (21 May 2015, T 34); the evidence of the Nurse (ex A2, tab 53) in her witness statement that Mr Skandaliaris is strong; and the Medical Director who stated in response to a question as to whether he had had any other complaints about Mr Skandaliaris "Of a painful nature, yes, because he does hurt" (21 May 2015, T 87). It may be that Mr Skandaliaris' treatment was more vigorous or stronger than Person A was expecting, or was misunderstood by Person A. If that is so, Mr Skandaliaris had an obligation to explain what he was doing and why, and to act consistently with the obligation imposed under cl 2.2(i) of the Physiotherapy Board of Australia Code of Conduct that good care requires talking steps to alleviate the symptoms or distress of patients or clients. It may be that Mr Skandaliaris was attempting to massage the sacroiliac area while Person A was distressed and tensing her body, resulting in the actions as stated in paragraphs (h), (i), (j), (k) and (n) of particular 2. Even if that is so, the Tribunal is satisfied that having regard to Person A's vocal interjections, and Mr Skandaliaris' evidence that he had not realised the extent of her language difficulties, that whatever actions Mr Skandaliaris was undertaking, were not explained appropriately to Person A. In that context, his continued treatment was inappropriate. 4. Paragraph (p) of Particular 2 alleges that Mr Skandaliaris failed to obtain proper informed consent from Person A in relation to the treatment he provided. Person A's references in her 1 May 2014 statement and in her oral evidence to Mr Skandaliaris' actions occurring "all of a sudden", and her expressions of shock, embarrassment and confusion, are consistent with her evidence both to the Local Court and to the Tribunal that Mr Skandaliaris did not explain what he was doing and why during the course of the treatment. That is supported by Mr Skandaliaris' statement in oral evidence in response to the proposition that he did not explain the treatment to Person A, "that's a fair comment" (T 190). In the absence of a proper explanation, Mr Skandaliaris could not have obtained informed consent. At its highest his evidence that he did so was that Person A nodded when he said he needed to lift her shirt and undo her bra. The Tribunal finds paragraph (p) of Particular 2 established. 5. The Tribunal's findings in relation to paragraphs (a) to (j) and (n) are as follows: (a) inappropriately and without prior explanation pulled Person A's top halfway up her back, above her bra and undid her bra; 1. Mr Skandaliaris concedes that the action occurred. The Tribunal is not satisfied, given the identification of the source of Person A's pain to be her right sacroiliac joint, that it was appropriate for treatment to have that part of her body exposed. However, even if it were clinically justified, for example to move tight clothing so as to access the area of treatment, the Tribunal finds that Mr Skandaliaris did not ask permission for this, or explain why it was required. (b) inappropriately and without prior explanation pulled Person A's pants and underwear down at the same time so that half of her buttocks were exposed; 1. Mr Skandaliaris concedes that the action occurred. The Tribunal is satisfied, given the identification of the source of Person A's pain to be her right sacroiliac joint, that it was appropriate for treatment to have that part of her body exposed. However, the Tribunal finds that Mr Skandaliaris did not ask permission for this, or explain why it was required. (c) inappropriately and without prior explanation used one of his hands to grab the right side of Person A's top and pull it up towards her head so that the front of Person A's top moved up over her body and over her breasts; 1. Mr Skandaliaris admits that this action occurred. The Tribunal is not satisfied it was clinically justified. Even if it were, if Mr Skandaliaris required Person A to move and there was a risk of her modesty being compromised, he should have taken steps to cover her and preserve her modesty. The Tribunal finds that Mr Skandaliaris did not explain why this was required or ask permission. (d) inappropriately and without prior explanation pulled Person A's pants and underwear down further so that her whole bottom was completely exposed; 1. Mr Skandaliaris accepts that he adjusted Person A's pants and underwear but denies that her bottom was completely exposed. There was no justification for exposing fully Person A's buttocks. The Tribunal finds, based on Person A's evidence, that he did so, and that he did not explain why this was required, or ask permission. (e) inappropriately and without prior explanation applied his hands in a forceful manner on Person A's inner thighs and kept his hands in this position, despite Person A saying a word to the effect of "Hey" when he applied his hands to her inner thighs; 1. Mr Skandaliaris denies applying his hands to Person A's inner thigh and states he massaged her hamstring with his elbow and massaged her left thigh with consent. The Tribunal finds that Mr Skandaliaris did not explain any of these actions or ask permission. The Tribunal finds, based on Person A's evidence to the Local Court that she tried to close her legs and he tried to open them (T 43-44), that this action occurred. There was no clinical justification for this action. (f) inappropriately and without prior explanation reached around the front of the right side of Person A's body and put one of his hands inside Person A's underwear, touching her pubic hair and moving his hand sideways as he rubbed the right side of Person A's groin area; 1. Person A has been consistent in her allegation that Mr Skandaliaris put his hand inside her underpants, both in her 1 May 2014 statement, and in her oral evidence. That evidence is supported by the witness statement of the Receptionist as to what Person A said on the following Tuesday (ex A2, tab 52), and in the notes taken by the Medical Director on the following Thursday (ex A2, tab 59). While the comments recorded in the witness statement of the Practice Manager (ex A2, tab 57) are less detailed, they do not contradict what the Receptionist records. It must be acknowledged that there was some confusion initially in Person A's oral evidence in the Local Court as to whether this occurred on 28 March or 4 April 2014 (11 December 2014, T 109). Based on the subsequent oral evidence of Person A, as recorded above at paragraph [48], and the complaints made by her to her work colleagues, the Tribunal finds that that action occurred. It was not clinically justified, and was not explained. (g) inappropriately continued to touch Person A in the manner described above at (f), despite Person A's attempt to use her right hand to grab the practitioner's hand to make him stop and saying words to the effect of "Hey don't"; 1. The Tribunal accepts Person A's evidence that she tried unsuccessfully to get Mr Skandaliaris to stop. (h) inappropriately and without prior explanation pushed Person A on her upper back so she was pushed and/or forced into the treatment table; 1. The Tribunal finds based on Person A's evidence that this action occurred, and that she did not understand what Mr Skandaliaris was doing or why. There was no clinical justification for this action, and no informed consent. (i) inappropriately and without prior explanation grabbed Person A's right forearm and pulled it behind her back in a hard manner so that the top half of Person A's body lifted off the table exposing her breasts in circumstances where the practitioner should have ensured that Person A was adequately covered and that private areas of her body were not exposed; 1. The Tribunal accepts Person A's evidence that this action occurred, as part of the sequence of actions detailed in the previous paragraphs. For the same reasons as in paragraph (c) above, this action was not consistent with Mr Skandaliaris' obligations to take steps to preserve Person A's modesty. It was not clinically justified and was done without informed consent. (j) inappropriately let go of Person A's arm so that her body collapsed on the treatment table in circumstances where the practitioner should have assisted Person A safely back on the treatment table; 1. The Tribunal accepts Person A's evidence that this action occurred, as part of the sequence of actions detailed in the previous paragraphs. There was no clinical justification for this action, and it was done without informed consent. (n) inappropriately and without prior explanation continued to move his hands up and down Person A's back in a rough manner despite Person A using her right hand to attempt to push the practitioner's hands away and as she collapsed on the treatment table, saying words to the effect of "Johnny I hurt my back"; 1. The Tribunal finds based on Person A's evidence that this action occurred, and that she did not understand what Mr Skandaliaris was doing or why. There was no clinical justification for this action, and no informed consent. 2. The complaints in paragraphs (k), (l), (m), (o) and (q) are of a different order. Person A has been consistent in saying that after he rubbed her ribs Mr Skandaliaris moved his hands to her buttocks again and rubbed between her thighs and on the outside of her vagina. However, even acknowledging the difficulties in giving evidence to the Local Court without sufficient assistance from the interpreter, those parts of the oral evidence relating to this latter part of the treatment were difficult to follow. The specific allegations particularised in paragraphs (l) ("gently moving…), and (m) that two fingers were used, are not clearly reflected in the oral evidence, including whether it was one or more fingers (11 December 2015, T 50-51). In the case of the allegation particularised in paragraph (o) that Mr Skandaliaris lay on top of Person A, the extremely brief time (being only a couple of seconds) in which this is said to have occurred may point to it being inherently unlikely that anything more occurred than that Mr Skandaliaris leaned on Person A. We accept that at the time when these actions are alleged to have occurred, towards the end of the treatment and shortly before she was observed by the Receptionist, Person A was in a distressed state. The Tribunal is satisfied that there is at least a possibility that the particular conduct occurred as alleged. However, given the seriousness of the allegations for what is sexual misconduct, and the consequent caution required for the Tribunal to reach the state of satisfaction required in order to find that the conduct occurred, the Tribunal is not comfortably satisfied that these actions occurred as asserted in the particulars. The Tribunal is unable to be satisfied, in the sense discussed in Forster, that paragraphs (k), (l), (m), (o) and (q) of Particular 2 are established. 3. The Tribunal finds that paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (n) and (p) of Particular 2 are established. Mr Skandaliaris engaged in conduct that was not clinically justified for the proper care of Person A, and failed to properly explain what he was doing or to obtain informed consent for the treatment. In respect of each of these paragraphs Mr Skandaliaris has engaged in conduct that demonstrates that the care exercised was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. He engaged in improper and unethical conduct, as defined in Little. Mr Skandaliaris is guilty of unsatisfactory professional conduct under both s 139B(1)(a) and (l) of the National Law. Particular 3 1. Mr Skandaliaris concedes he failed to create clinical records in relation to staff. In his statement of 9 May 2018 he explains (at [26]) that that was because they were not seeking ongoing treatment and generally were already receiving treatment, and he simply massaged areas of their bodies to provide some pain relief. A different explanation in relation to his failure to keep records was given in evidence at Downing Centre Local Court, when Mr Skandaliaris stated that he did not keep patient records for staff members as it was pro bono and he was looking after his colleagues, Person A was not his patient, he was helping a friend, and he maintained he was acting more like a colleague not as a physio (22 May 2015, T 163). 2. Mr Skandaliaris' representative submits that the failure to keep records is explicable in the social setting of the workplace, where Mr Skandaliaris was providing free assistance. Person A's evidence was that she discussed payment with Mr Skandaliaris at the end of the treatment, and tried to pay by leaving money at the reception. That Mr Skandaliaris sometimes accepted payment from work colleagues is supported by the oral evidence of the Receptionist that for the five or six times Mr Skandaliaris treated her, she sometimes used her health fund to pay (21 May 2015, T55-56). Discussion and findings 1. The Tribunal has difficulty reconciling Mr Skandaliaris' explanations for his failure to keep notes of his treatment of Person A. While he told the Tribunal that Person A was not a patient, he had accepted in oral evidence to the Local Court that he had provided his services to Person A in the scope of his profession as a physiotherapist, and he gave Person A the same professional service he would give to a patient (22 May 2015, T 184). In oral evidence to the Tribunal Mr Skandaliaris agreed that it was an error of judgment not to make notes. He accepted that the failure to make notes of his treatment was a breach of cl 3.14 of the Physiotherapy Board of Australia Code of Conduct. 2. The Tribunal finds that Mr Skandaliaris failed to comply with his professional responsibility to keep accurate notes, a requirement for good practice and continuing good care of patients as discussed at 8.4 of the Physiotherapy Board of Australia Code of Conduct. Even though he was providing what he referred to as limited treatment, and whether or not he expected or received payment, he was providing treatment in his professional capacity. He was obliged by section 3.14 of the Code of Conduct to keep adequate records when providing care to those in a close relationship, which includes work colleagues. 3. The Tribunal finds that Particular 3 is established. This was conduct significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience, and contrary to his obligations under the Physiotherapy Board of Australia Code of Conduct, and thus unsatisfactory professional conduct under s 139B(1)(a) and (l) of the National Law. Complaint Two 1. Mr Skandaliaris has admitted the factual allegations in Complaint Two. 2. Condition 2 imposed under s 150 of the National Law on 16 June 2014 required that Mr Skandaliaris not consult, treat, interview or examine any female patient including work colleagues in a practice context unless a chaperone, that is an adult third person, was continuously present. The specific particulars as to dates and patients for whom he provided treatment without a chaperone while working at a different medical centre are confirmed in the report of Alison Tankard, authorised person of the Monitoring, Inspection and Scheduling Unit of the HPCA, who carried out a routine inspection to check patient/chaperone records on 28 June 2016. The report of her inspection identified the names of those patients who had been treated, based on the Daily Schedules, but who did not appear on the Chaperone Report sheets for the relevant dates (ex A1, tab 27, p 66). There were nine female patients, and 14 consultations during the period 24 November 2015 to 17 May 2016. 3. Mr Skandaliaris has given differing explanations as to why he did not comply with the requirement in condition 2 of the s150 conditions. In his Reply, he denies that the failure to record those female patients was a deliberate attempt to deceive. In his statement of 9 May 2018 at [113] he states that he thought the conditions "would simply fall away as a result of my acquittal". That is not consistent with what he is recorded to have said to Ms Tankard (ex A1, tab 27, p 6) that he became lenient, that he was embarrassed, and that he knew he should have had a chaperone and was trying to get his business back to normal. In his oral evidence to the Tribunal, Mr Skandaliaris said that he thought it would go away after the acquittal. That contradicts his further oral evidence that he knew he still had the conditions and did not think it would be that serious, and it was having a significant impact on his practice and he was under financial stress. Mr Skandaliaris denied that he failed to comply because of financial reasons, however the Tribunal finds that it is more likely than not that financial reasons, together with his embarrassment, and resistance from some of his older female clients, that were behind his failure to comply with the chaperone condition. 4. Mr Skandaliaris has provided letters from Patients A, B, C, D, E, F, G, and H who support his treatment of them, and who state that they do not need a chaperone (ex A1, tabs 30-37, 40, 41). Discussion and findings 1. As noted by the Tribunal in Health Care Complaints Commission v Perera [2018] NSWCATOD 112 at [89], the authorities on the necessity to comply with conditions are clear and unambiguous. A registered health practitioner is required to comply scrupulously with conditions imposed on his or her registration: Re Dr Than Le (Medical Tribunal decision, 20 September 2001); Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [74]; Health Care Complaints Commission v Chowdhury (No 2) [2015] NSWCATOD 127 at [20]. The conditions imposed by the Physiotherapy Council on 16 June 2014 were imposed pursuant to s150(1) of the National Law, in circumstances where the Council was satisfied that it was appropriate to do so for the protection of the health or safety of any the public (ex A1, tab 25, p 49). At that time the Council considered it necessary that Mr Skandaliaris' continued practise be without risk to the health and safety of his female patients including work colleagues. While it may be accepted that some of the patients treated by Mr Skandaliaris without a chaperone present had no concern that he had done so, his failure to comply with the condition constitutes unsatisfactory processional conduct as defined in s 139B(1)(c). His failure to comply with the condition was not inadvertent, and was improper conduct as defined in Little, constituting unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law. Complaint Three 1. Mr Skandaliaris admits that he failed to provide details of all the females treated by him during the relevant periods in the reports he forwarded to the Council in November 2015, December 2015, March 2016, April 2016 and May 2016. 2. Condition 2(c)(iv) required Mr Skandaliaris to forward to the Physiotherapy Council within seven days of the end of each calendar month a report listing all patients examined/consulted or treated by him during the calendar month, showing the date of examination and the name or names of persons present during the examination. The Patient Log/Chaperone Reports provided by Mr Skandaliaris, and the Medical Centre Daily Schedule of appointments for those months, are in evidence (ex A1, tab 28), and confirm that Mr Skandaliaris did not list in his reports all female patients treated for whom a chaperone was required, as required by Condition 2(c)(iv). 3. In oral evidence to the Tribunal Mr Skandaliaris agreed that he knew the records were false because not all patients were listed, and agreed he had stated that he had complied with the s 150 conditions. He accepted that it was an error, but not that he had been dishonest. 4. In omitting details of Patients A, B, C, D. E, F, G, H and I from the reports provided to the Council Mr Skandaliaris failed to provide accurate information from which the Council could substantiate whether he had complied with the chaperone condition. The Tribunal is satisfied, based on his evidence, that the omissions were deliberate. Based on the documents in evidence (ex A1, tab 28), the omissions were repeated, in five reports over six months. Whether or not the representations could be found to be "false", in the sense discussed in Health Care Complaints Commission v Dr Il-Song Lee [2011] NSWMT 12 at [27] as requiring a conscious element of deceit, in the absence of that information the reports provided to the Council were misleading. 5. In Health Care Complaints Commission v Kesserwani [2017] NSWCATOD 149 the Tribunal said: 98.It is essential to the smooth operation of the system of regulation and discipline that practitioners are truthful and candid in their dealings with the regulatory authorities. Practitioners should uphold the highest standards of honesty and integrity in their dealings with those authorities: see HCCC v Chowdhury [2015] NSWCATOD 65 at paragraph 81. 1. Mr Skandaliaris has not demonstrated the requisite level of candour and honesty with the regulatory authority that is required of a health practitioner. His failure to inform the Council as to the female patients treated by him in breach of the chaperone condition was a substantial failure of judgment, and conduct that fell significantly below the standard expected of a practitioner of equivalent level of training or experience. His conduct was not in conformity with standards of professional conduct and practice and as such was improper and unethical. The Tribunal is satisfied that Mr Skandaliaris' conduct amounts to unsatisfactory professional conduct pursuant to s139B(1)(a) and (l) of the National Law, and Complaint 3 is established. Complaint Four 1. In considering whether any of the established conduct is of sufficient seriousness to constitute professional misconduct, we note that the gravity of professional misconduct is not to be measured by reference to the worst cases, but by the extent to which it departs from the proper standards: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264. 2. As explained by Basten JA in Chen v Health Care Complaints Commission [2017] NSWCA 186 at [19], the term "professional misconduct" does not have a specific meaning, and it is merely a category of "unsatisfactory professional conduct" which is sufficiently serious to justify suspension or cancellation. At [20] his Honour continued: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. It follows that the legislative scheme is inconsistent with the implication of the abstract condition sought to be imposed by the practitioner on the language of s 149C(1). 1. The Tribunal's findings in relation to Complaints One, Two and Three go to Mr Skandaliaris' compliance with: 1. the ethical obligations and the standard of care required of a health practitioner; 2. the conditions imposed on his registration under s 150 of the National Law for the protection of the health or safety of the public; and 3. his obligations as a health practitioner to be candid and honest in his dealing with the regulatory authorities. 1. The findings as to Particular 2 of Complaint One demonstrate a serious breach of the standard of care expected of a health practitioner in a position of trust. 2. We are satisfied that the conduct in relation to Person A as established in Particular 2 of Complaint One is of sufficient seriousness to constitute professional misconduct. We are also satisfied that Mr Skandaliaris' breach of Condition 2 of the conditions imposed under s 150 of the National Law, and his failure to disclose information that he was not complying with that condition in his reports to the Physiotherapy Council, are of sufficient seriousness to constitute professional misconduct. Even if we are wrong and the conduct established in regard to each of the particulars of Complaints One, Two and Three can properly be regarded individually as constituting unsatisfactory professional conduct, the complaints are, considered together, of such seriousness as to constitute professional misconduct. 3. The matter is to be listed for hearing as to what protective orders should be made as a consequence of the Tribunal's findings, on a date to be fixed by the Registrar taking into account the availability of the parties and their representatives. Orders 1. The orders of the Tribunal are: 1. Each of the complaints brought against the respondent is established. 2. The respondent is guilty of unsatisfactory professional conduct. 3. The respondent is guilty of professional misconduct. 4. The following directions are made: 1. The parties are to advise the Tribunal by 16 January 2019 of their available dates in February and March 2019, including whether the matter will require more than one day; 2. The applicant is to provide to the Tribunal and the respondent any further evidence and submissions, on or before 23 January 2019; 3. The respondent is to provide to the Tribunal and the applicant any further evidence and submissions, on or before 13 February 2019; 4. The applicant is to provide to the Tribunal and the respondent any further material in reply, on or before 20 February 2019; 5. The proceeding will be listed for hearing on a date after 20 February 2019. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 21 December 2018 - Patient H in orders 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: 21 December 2018