CHIROPRACTIC BOARD OF AUSTRALIA and LOURIE
[2023] WASAT 129
•20 DECEMBER 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 (WA)
CITATION: CHIROPRACTIC BOARD OF AUSTRALIA and LOURIE [2023] WASAT 129
MEMBER: JUDGE K GLANCY, DEPUTY PRESIDENT
MR J O'SULLIVAN, SENIOR MEMBER
DR S CARLIN, SENIOR SESSIONAL MEMBER
HEARD: 13, 14, 15 AND 16 FEBRUARY 2023 AND 8 MARCH 2023
WRITTEN CLOSING SUBMISSIONS FILED ON 22 MARCH 2023, 19 APRIL 2023 AND 10 MAY 2023
DELIVERED : 20 DECEMBER 2023
FILE NO/S: VR 12 of 2021
BETWEEN: CHIROPRACTIC BOARD OF AUSTRALIA
Applicant
AND
DAVID PECK LOURIE
Respondent
Catchwords:
Vocational regulation - Health practitioner - Chiropractor - Disciplinary proceedings - Conduct only - Allegations of professional misconduct, alternatively unprofessional conduct or unsatisfactory professional performance - Order pursuant to s 196(1) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) - Allegations of inappropriate conduct of a sexual nature and below the standard reasonably expected by members of the public and professional peers committed against a female patient - Allegations of failing to keep adequate clinical notes - Adequately assess the patient - Develop an appropriate management plan and obtain informed consent - Whether alleged conduct occurred - Turns on own facts
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 4(1), s 5, s 6, s 39, s 193(1), s 193(1)(a), s 193(2), s 196(1), s 196(1)(b), s 196(2)
Health Practitioner Regulation National Law Regulation 2018 (WA), reg 4
State Administrative Tribunal Act 2004 (WA), s 32
Result:
Practitioner found to have engaged in unprofessional conduct
Category: B
Representation:
Counsel:
| Applicant | : | S Taylor & A Murphy |
| Respondent | : | A Ayers & J Davies |
Solicitors:
| Applicant | : | Minter Ellison |
| Respondent | : | Meridian Lawyers (Perth) |
Cases referred to in decision:
Briginshaw v Briginshaw (1938) 60 CLR 336
Chiropractic Board of Australia and Ebtash [2020] WASAT 86
Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43
Medical Board of Australia and Tan [2022] WASAT 57
Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361
Panegyres v Medical Board of Australia [2020] WASCA 58
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction and overview
In an Application filed on 25 February 2021 and amended on 18 May 2021 (Application) made under s 193(1)(a) of the Health Practitioner Regulation National Law(WA) Act 2010 (WA),[1] the Chiropractic Board of Australia (Board) alleges that Dr David Peck Lourie (Dr Lourie), a chiropractor, behaved in a way that constitutes professional misconduct (alternatively unprofessional conduct or unsatisfactory professional performance) in relation to his conduct and clinical management of a patient (Patient). The allegations relate to nine consultations over a period between November 2015 and May 2018 (the Consultations).
[1] Section 4(1) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) provides that the Health Practitioner Regulation National Law (National Law) set out in the Schedule applies as a law of WA.
The Application contains six grounds[2] which, in summary, were to the following effect. In Ground 1 the Board alleged that Dr Lourie failed to make adequate and accurate clinical records with respect to the Consultations. In Ground 2, the Board alleged that on two occasions Dr Lourie made inappropriate physical contact of a sexual nature with the Patient by touching her buttock and lower abdominal area without the Patient's informed consent (or any consent). In Ground 3, the Board alleged that Dr Lourie failed to obtain the Patient's informed consent prior to providing her with chiropractic treatment during the Consultations. In Ground 4, the Board alleged that Dr Lourie failed to adequately assess the Patient during the Consultations. In Ground 5, the Board alleged that Dr Lourie failed to formulate a management plan or program of care for the Patient. In Ground 6, the Board alleged that Dr Lourie massaged the Patient's right breast for several minutes during the consultation on 14 May 2018 without obtaining the Patient's informed consent or any consent and without any clinical justification.
[2] See Amended Grounds of Application pursuant to Order 1 made on 6 May 2021, dated 18 May 2021 and filed 19 May 2021.
Outcome
For the reasons that follow, we find that Grounds 1, part of Ground 2, and Grounds 3, 4 and 5 of the Application are proved (although not in respect of every particular). We are satisfied, and we find, that Dr Lourie's conduct as we have found it in relation to each Ground was of a lesser standard than that which might reasonably be expected of him by the public or his professional peers and therefore constitutes unprofessional conduct for the purposes of the National Law.
We have found that the Board has not proved the allegations in Grounds 2, save that we have found that the touching of the Patient's buttocks and abdomen occurred without consent. We have also found that the Board has not proved the allegation in Ground 6.
The Tribunal will next proceed to determine the penalty which should be imposed and the issue of costs after hearing about those issues.
Matters dealt with in the reasons for decision
In these reasons for decision, we deal with the following matters:
(a)the relevant law;
(b)overview of the application;
(c)findings concerning the referral of the Patient to Dr Lourie;
(d)the Grounds;
(e)the issues for determination;
(f)the onus and standard of proof;
(g)the relevance of consent;
(h)overview of the evidence;
(i)findings regarding Dr Lourie's qualifications, experience, practice and disciplinary history;
(j)our findings as to the credibility and reliability of the witnesses of fact, and as to the expertise of the expert witnesses;
(k)Ground 1 – The evidence and our findings;
(l)Ground 2 – The evidence and our findings;
(m)Ground 3 – The evidence and our findings;
(n)Ground 4 – The evidence and our findings;
(o)Ground 5 – The evidence and our findings;
(p)Ground 6 – The evidence and our findings; and
(q)the orders which should be made as a consequence of our findings.
Relevant law
Pursuant to s 193(1) of the National Law, the Board must refer a matter about a registered health practitioner to the Tribunal[3] if the Board reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct.[4]
[3] For the purposes of the National Law, the Board is the National Board under reg 4 of the Health Practitioner Regulation National Law Regulation 2018 (WA), and the Tribunal is a 'responsible tribunal' pursuant to s 6 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
[4] National Law, s 193(1) and s 193(2).
After hearing a matter referred to it, the Tribunal may make one or more of the decisions set out in s 196(1) of the National Law.[5] Relevantly, these include that the practitioner concerned has behaved in a way that constitutes unsatisfactory professional performance, unprofessional conduct, or professional misconduct. Those terms describe categories of behaviour of different gravity[6] and are defined[7] as follows:
[5] National Law, s 196(1)(b).
[6] Panegyres v Medical Board of Australia [2020] WASCA 58 (Panegyres) at [139] (Vaughan JA).
[7] National Law, s 5.
(a)'unsatisfactory professional performance' means:
[T]he knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience[;]
(b)'unprofessional conduct' means:
[P]rofessional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes [specific examples of conduct which constitute unprofessional conduct set out in paras (a) – (h) of the definition][;][8]
(c)'professional misconduct' includes:
(a)unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c)conduct of the practitioner, whether occurring in connection with the practice of the health practitioner's profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession[;]
[8] The definition of unprofessional conduct is inclusive of, but not limited to, the conduct specified in paras (a) – (h). Such specified conduct (which includes, for example, contraventions of particular laws and convictions for certain kinds of offences) necessarily constitutes, but is not required for the Tribunal to find, unprofessional conduct: see Ebtash at [47]. In this case none of (a) – (h) are relevant.
In Panegyres, Vaughan JA (with whom Buss P and Murphy JA relevantly agreed) observed, in relation to 'professional misconduct' so defined, that:
(a)… the definition of professional misconduct is inclusory and does not contain an exhaustive statement of what may constitute professional misconduct (accordingly, the concept of professional misconduct is wider than that which is provided for in pars (a) to (c));[9]
[9] Panegyres at [149] and [152].
(b)the definition has both a 'performance component' (in pars (a) and (b)) and a 'conduct component' (in par (c));[10] and
[10] Panegyres at [150].
(c)as to the 'performance component' under pars (a) and (b):
(i)… there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct;[11]
[11] Panegyres at [151].
(ii)… there is a difference between pars (a) and (b) of the … definition … Paragraph (a) is concerned with a single instance of unprofessional conduct, par (b) is concerned with more than one instance … (ie multiple instances) of unprofessional conduct;[12]
[12] Panegyres at [150].
(iii)a finding of professional misconduct under this component involves, in substance, two elements:
1.First, the practitioner's conduct as established must constitute one (in the case of par (a)) or more (in the case of par (b)) instance or instances of unprofessional conduct. (As to this element it is necessary to draw on the s 5 definition of 'unprofessional conduct').
2.Second, the conduct must individually (in the case of par (a)) or taken together (in the case of par (b)) amount to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
The second element involves answering three questions:
1.What level of training or experience is possessed by the practitioner?
2.What standard of conduct would be reasonably expected of a registered health practitioner of that level of experience?
3.Was the conduct of the practitioner substantially below the standard identified in answer to question 2?
The enquiry as to the second element is thus potentially different to the question that must be considered under the designated meaning of the term unprofessional conduct. For unprofessional conduct the standard is what might reasonably be expected of the practitioner by the public or his or her professional peers. Often, depending on the evidence, that will be the same standard of conduct that would be reasonably expected of a registered health practitioner of the practitioner's level or experience (as applicable under pars (a) and (b) of the definition of professional misconduct). But the standard may not always be the same. More significantly, for professional misconduct it is not enough that the practitioner's conduct is merely less than the standard. The departure must be 'substantially below' the standard[;][13]
(d)the 'conduct component' under par (c):
(i)expounds the concept of professional misconduct in terms of conduct that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession; and
(ii)provides part of the context in which pars (a) and (b) are to be construed, giving an indication of the degree of serious departure from the Requisite Standard required for conduct to be 'substantially below' the standard, and the gravity of making such a finding.[14]
[13] Panegyres at [153] – [155].
[14] Panegyres at [157].
As Buss P and Murphy JA observed in Panegyres, the question in disciplinary proceedings is not whether the impugned conduct is in breach of a code of conduct. It is not to be assumed that any departure from the provisions of a code of conduct will necessarily constitute the bases for a finding of unsatisfactory professional performance, unprofessional conduct or professional misconduct. This is especially so if the code of conduct is expressed in vague and general terms, or in terms which ought to properly be viewed as aspirational in nature, in preference to being designed to prescribe particular standards of behaviour.
As the Tribunal observed in Medical Board of Australia and Tan,[15] while the Code does not determine the Requisite Standard, it succinctly encapsulates the essence of what compliance with the Requisite Standard entails and the practical content of the Requisite Standard is established by the evidence of the expert witnesses.
[15] Medical Board of Australia and Tan [2022] WASAT 57 at [203] – [204].
If any finding is made under s 196(1)(b) of the National Law, the Tribunal may decide to take one or more of the steps set out in s 196(2) in respect of a practitioner. They include:
(a)caution or reprimand the practitioner;
(b)impose a condition on the practitioner's registration[;]
…
(c)require the practitioner to pay a fine of not more than $30 000 to the National Board that registers the practitioner;
(d)suspend the practitioner's registration for a specified period;
(e)cancel the practitioner's registration.
In dealing with the application the Tribunal is not bound by the rules of evidence although it is bound by the rules of natural justice.[16]
[16] State Administrative Tribunal Act 2004 (WA), s 32.
Overview of the Application
In the Application, the Board applied to the Tribunal for:
(a)an order or orders pursuant to s 196(1)(b) of the National Law, that the conduct alleged against Dr Lourie amounted to professional misconduct, alternatively unprofessional conduct or unsatisfactory professional performance, each of which would require a finding that Dr Lourie's conduct had fallen below the Requisite Standard; and
(b)the imposition of a sanction or sanctions pursuant to s 196(2) of the National Law.
The referral of the Patient to Dr Lourie
We make the following findings regarding how the Patient came to be treated by Dr Lourie.
(1)The Patient first attended on Dr Lourie on 20 November 2015[17] at his Kelmscott Clinic (Clinic) at the suggestion of her mother who was, at that time a patient of Dr Lourie.[18]
(2)The Patient saw Dr Lourie on another eight occasions being 11 September 2017, 14 September 2017, 12 October 2017, 18 October 2017, 30 November 2017, 12 January 2018, 20 March 2018 and 14 May 2018.[19]
(3)The Patient obtained a referral to Dr Lourie from her General Practitioner (GP) on 31 August 2017.[20] In that referral the GP noted that the Patient had been experiencing 'pain in her back for a few weeks now and has not settled'. The GP said that, from their examination, it 'looks like a musculoskeletal strain'. In the care plan attached to the referral[21] the GP referred to the Patient having 'chronic back pain'.
[17] ts 70, 14 February 2023.
[18] ts 57, 14 February 2023.
[19] Exhibit 1.29(d).
[20] Exhibit 1.29(f) and Exhibit 1.29(g).
[21] Exhibit 1.29(h).
The Grounds and Dr Lourie's response
We next set out the Board's allegations and Dr Lourie's response in relation to each ground.
Ground 1
By Ground 1, the Board alleges that in respect of the Consultations Dr Lourie failed to make adequate or accurate clinical notes in that the clinical notes:
(a)are not sufficiently legible;
(b)do not record the Patient's presenting complaint(s) or symptoms;
(c)do not record the relevant details of the Patient's clinical history;
(d)do not record that the Respondent obtained informed consent from the Patient to the treatments that he provided to her, or any changes to the Patient's previous consent;
(e)do not record any diagnosis, clinical impressions, working diagnosis, therapeutic trials or management plans;
(f)do not record any relevant subjective information regarding the Patient's response to the treatment provided by the Respondent;
(g)do not record relevant objective information about the examinations or investigations conducted by the Respondent;
(h)do not record the Respondent's relevant findings and determinations;
(i)do not record any information given by the Respondent to the Patient;
(j)do not record all procedures conducted, techniques used, and advice or instructions provided to the Patient; and
(k)do not record all the items prescribed, administered or supplied for the Patient.
The Board relies on their Code of Conduct (March 2014) (Code) published under s 39 of the National Law which is admissible under s 41 of the National Law, as evidence of what constitutes appropriate professional conduct or practice for the health profession.[22] The Board also relies on their publication 'Guidelines - Clinical Record Keeping for Chiropractors' (22 March 2013) (Guidelines), Dr Lourie's formal admissions and the Report of Dr Innes and Dr Stevenson entitled 'Expert Conferral for SAT' dated 21 June 2022[23] (Joint Expert Report) for that same purpose.[24]
[22] Panegyres at [15] and [16] per Buss P and Murphy JA at [385] per Vaughan JA.
[23] Exhibit 1.18.
[24] Board's Opening Submissions, para 19.
Dr Lourie made the following admissions as to the Requisite Standard for a practitioner's clinical notes:[25]
[25] Respondent's response to amended grounds of application dated 14 June 2021 (Response), paras 16 – 17 referring to paras 12 and 13 of the Amended Application.
12.A chiropractor must make clear, adequate, appropriate, factual, and accurate clinical notes in respect of consultations with patients, in order to;
(a)comply with clause 9.4 of the Code;
(b)comply with clause 3 of the Applicant's Guidelines – Clinical Record Keeping for Chiropractors (22 March 2013) (Guidelines) published under the National Law; and
(c)to ensure the safe and appropriate continuum of care for the patients of the chiropractor.
13.Adequate and accurate clinical notes must accurately and legibly record:
(a)the dates of consultation;
(b)the reason for the person presenting for care/consultation;
(c)relevant details of clinical history;
(d)details of any informed consent including when there are changes to any previous consent, along with notes on the parameters of the change;
(e)relevant diagnoses, clinical impressions, working diagnoses, therapeutic trials and care plans;
(f)relevant subjective information including the patient's response to any treatment;
(g)relevant objective information about any examination or investigation conducted;
(h)relevant clinical findings and determinations;
(i)all procedures conducted, techniques used and advice or instructions provided to the patient;
(j)all items prescribed, administered or supplied for the patient;
(k)the documentation of any offer of a chaperone to patients, or when any such request is made by a patient; and
(l)any unusual sequelae of treatment or changes in contra‑indications or health alerts.
Dr Lourie admits that the clinical notes do not record:
(1)that he obtained informed consent from the Patient to the treatment that he provided to her, or any changes to the Patient's previous consent;[26]
(2)any diagnoses, clinical impressions, working diagnoses therapeutic trials or management plans;[27]
(3)relevant subjective information regarding the Patient's response to the treatment provided;[28]
(4)the relevant objective information about the examinations or investigations he conducted;[29]
(5)his relevant findings and determinations;[30] or
(6)any information given by him to the Patient.[31]
[26] Response, para 18(iv).
[27] Response, para 18(v).
[28] Response, para 18(vi).
[29] Response, para 18(vii).
[30] Response, para 18(viii).
[31] Response, para 18(xi).
Dr Lourie also made the following qualified admissions:
(1)his clinical notes are not sufficiently legible but says they are sufficiently legible for a Gonstead practitioner to understand;[32] and
(2)his clinical notes do not record all procedures conducted, techniques used, and advice or instructions provided to the Patient but says he is able to use the notes to determine the procedures conducted, techniques used, and advice or instructions provided to the Patient.[33]
[32] Response, para 18(i).
[33] Response, para 18(x).
Dr Lourie denied the clinical notes:
(1)do not record the Patient's presenting complaint(s) or symptom(s);[34]
(2)do not record relevant details of the Patient's clinical history and says the notes record the Patient's presenting complaints and symptoms, but not in circumstances where she received 'routine maintenance';[35] and
(3)do not record all items prescribed, administered or supplied for the Patient.[36]
[34] Response, para 18(ii).
[35] Response, para 18(iii).
[36] Response, para 18(xi).
As a consequence of the admissions made by Dr Lourie, it is not in dispute that his clinical notes failed to meet the Requisite Standard. However, in light of Dr Lourie's denials in relation to some of the Board's contentions and the qualifications he attached to some admissions, a question remains as to the extent to which it can be said his notes depart from the Requisite Standard.
Ground 2
By Ground 2, the Board alleges that on two occasions prior to 14 May 2018, Dr Lourie made inappropriate sexual and/or physical contact with the Patient by touching the Patient's lower abdomen and buttock when there was no clinical justification, or any consent for him to do so and without obtaining the Patient's informed consent.
The Board alleges that on one occasion Dr Lourie stood to the Patient's side and, whilst he was explaining the importance of tensing the muscle in her buttocks when she walked, he placed one of his hands on her buttocks.[37]
[37] Amended Application, para 3F(a).
Further, the Board says on another occasion, the Practitioner stood to the Patient's side and whilst he was explaining the importance of pulling in her stomach and lower abdominal muscles, he placed his hand on her lower abdominal area.[38]
[38] Amended Application, para 3F(b).
The Board alleges that on each occasion the Patient felt uncomfortable but did not say anything.[39] It also alleges that at no time did the Practitioner seek or obtain the Patient's informed consent.[40]
[39] Amended Application, para 3F(c).
[40] Amended Application, para 3F(d).
Dr Lourie concedes that his clinical notes do not record having obtained the Patient's informed consent, however, he maintains that the physical contact in questions was not inappropriate.[41]
[41] Respondent's Opening Submissions dated 25 January 2023 (Respondent's Opening Submissions), para 3b.
Dr Lourie says that on 20 November 2015, he explained and demonstrated to the Patient the importance of activating the gluteal muscles to improve posture and reduce lower back pain because correct movement is vital in ensuring that the pelvic floor works optimally.[42]
[42] Response, para 4.1.1.
Dr Lourie's case was that he explained to the Patient that deactivated gluteal muscles alter the position of the pelvis, which leads to the forward tilting of the pelvis which can contribute to lower back, hip, thigh, knee and foot pain.[43]
[43] Response, para 4.1.2.
Dr Lourie says that, while he was explaining how to activate her gluteal muscles, he placed his index finger on one of the Patient's gluteal muscles to ensure that the gluteal muscle was being activated as required[44] and said words to the effect of 'do you feel that?' whilst he was standing in front of the Patient monitoring her feet.[45]
[44] Response, para 4.1.3.
[45] Response, paras 4.1.4 and 5.
Dr Lourie contends that similar instructions were provided to the Patient on 14 September 2017 and 30 November 2017.
In response to the Board's allegation in relation to the second occasion,[46] Dr Lourie says that he noted that the Patient had an anterior pelvic tilt, meaning her pelvis was tilting forward to counteract tight hip flexors.[47] He then explained to the Patient that a pelvic tilt caused instability in the spine and contributes to instability and lower back pain.[48] He claimed that he explained to the Patient how to pull the stomach muscles in and tighten the gluteal muscles to flatten the back and tilt the pelvis up on the anterior[49] and placed his thumb and first finger on the Patient's abdominal muscles to ensure they were moving correctly.[50]
Ground 3
[46] See Amended Application, para 3F(b).
[47] Response, para 4.ii.1.
[48] Response, para 4.ii.2.
[49] Response, para 4.ii.3.
[50] Response, para 4.ii.4.
In Ground 3, the Board alleges that in respect of the Consultations, Dr Lourie failed to obtain the Patient's informed consent prior to providing her with chiropractic treatment.[51]
[51] Amended Application, para 11C.
Dr Lourie denies that he failed to obtain informed consent from the Patient.[52] However, he concedes that his clinical notes do not adequately document that he had obtained the Patient's informed consent.[53]
Ground 4
[52] Response, para 15.
[53] Respondent's Opening Submissions, para 3C.
In Ground 4, the Board alleges that in respect of the Consultations, Dr Lourie failed to adequately assess the Patient in breach of clause 2.1(a) of the Code.[54]
[54] Amended Application, para 11A.
The Board says that Dr Lourie failed to take an adequate history on 20 November 2015 and failed to take any history from the Patient at any subsequent consultation.[55]
[55] Amended Application, paras 11A(c) and (d).
The Board says further that Dr Lourie failed to re-assess the Patient on 11 September 2017 or at any subsequent consultation and did not conduct an appropriate physical examination of the Patient prior to commencing chiropractic treatment on each of those occasions.[56]
[56] Amended Application, paras 11A(b) and (e).
Dr Lourie denies failing to adequately assess the Patient and says that he:
(i)did adequately assess the Patient on 20 November 2015;
(ii)did reassess the Patient on 11 September 2017 and at each of the subsequent consultations;
(iii)did take an adequate history from the Patient on 20 November 2015;
(iv)did take a history from the Patient on 11 September 2016 and at each of the subsequent consultations;
(v)did conduct an appropriate physical examination of the Patient prior to commencing chiropractic treatment at the Consultations; and
(vi)advised the Patient to return in four weeks or sooner if she had any other issues.[57]
[57] Response, para 14.
So far as the consultation on 14 May 2018 is concerned, Dr Lourie's case is that he did obtain a clinical history of the Patient's presenting complaints and symptoms. He said that she had reported being tired after a busy week and that she had complained of experiencing right hip pain, right shoulder pain and neck stiffness.
Dr Lourie's case is that he did examine the Patient's right shoulder, including identifying whether the Patient's shoulder showed any deformity, asymmetry and muscular atrophy. He also contends that he palpated the right shoulder's associated structures including movement on the lateral dorsi, lower trapezius and pectoralis group. Dr Lourie further contends that he assessed the range of motion of the Patient's right shoulder, noting it was tight when compared to the same muscle on the left and presented with limited range of motion in the right arm and muscle tension to the right dorsi on lifting of the right arm compared to the left.[58]
[58] Response, paras 11(i) – (iv).
We note that in his opening submissions Dr Lourie reiterated that he did adequately assess the Patient during each consultation but concedes that his assessments were not adequately recorded in his clinical notes.[59] While a concession in these terms is relevant to Ground 1, it does not amount to a concession that Dr Lourie did not adequately assess the Patient.
Ground 5
[59] Respondent's Opening Submissions, para 3d.
In Ground 5, the Board alleges that in respect of the Consultations, Dr Lourie failed to formulate and implement a management plan or program of care in breach of paragraph 2.1(d) and Appendix 3 of the Code.[60]
[60] Amended Application, para 11B.
No doubt as a consequence of an oversight, Dr Lourie did not respond to this Ground at all in his Response. Dr Lourie's opening submissions assert that he consulted with the Patient on an 'as needed' basis and, as such, concedes that he did not formulate and implement a management plan or program of care for the Patient.[61]
[61] Respondent's Opening Submissions, para 3e.
As will become apparent later in these reasons, there is a lack of clarity in relation to this concession. It appears that Dr Lourie's position at the conclusion of the hearing was that if a patient is being treated on an open‑ended return policy or a per needed basis, that constitutes a management plan.
Ground 6
In Ground 6, the Board alleges that during the consultation on 14 May 2018 Dr Lourie made inappropriate sexual and/or physical contact with the Patient by massaging her naked right breast.
The Board alleges that the Patient booked the consultation because she was suffering from pain in her right hip and was sore and tired as a consequence of having worked long hours doing strenuous physical work for seven days in a row at a flower farm in the lead up to Mother's Day.[62]
[62] Amended Application, para 6A.
The Board says further that prior to entering the treatment room for the consultation, the Patient removed her top and bra and changed into a gown which opened at the back, leaving her pants on.[63]
[63] Amended Application, para 7.
The Board alleges that while the Patient was seated on a stool and Dr Lourie was massaging her neck and shoulders, Dr Lourie said words to the effect that the movement in the Patient's right shoulder appeared to be more limited than in her left, and that a massage would help to loosen the muscles and help with movement. Dr Lourie is then alleged to have said words to the effect that the cyst in the Patient's right breast tissue could be affecting her muscle movement and contributing to the tightness on her right side. We pause to observe that the Board alleges that the Patient had previously informed Dr Lourie about the cyst in her right breast on a number of occasions. The Board alleges that at Dr Lourie's request, the Patient then lay on her back on the treatment table while Dr Lourie put massage oil on his hands. Dr Lourie is alleged to have then said words to the effect that he would massage her right upper arm and shoulder to try and loosen the muscles in that area.[64]
[64] Amended Application, paras 8(a) – (d).
The Board further alleges that Dr Lourie stood to the Patient's right side and held the Patient's right arm while stretching and massaging the area between her right shoulder and her right bicep for approximately two minutes. Dr Lourie is then alleged to have said words to the effect that he was going to massage the top of the Patient's chest area, following which he moved the Patient's gown aside and exposed her entire right breast before massaging the Patient's right armpit and upper right breast, in the area of the Patient's cyst, using his right hand.[65]
[65] Amended Application, paras 8(e) – (h).
The Board alleges that Dr Lourie massaged the Patient's entire right breast with the fingers of his right hand, using a circular motion and a pinching motion, during which his fingers skimmed across her nipple. It is alleged that this conduct lasted for approximately five minutes[66] and was sexually motivated.
[66] Amended Application, para 8(i).
The Board further alleges that Dr Lourie massaged the Patient's right breast when there was no clinical diagnosis, clinical impression or other clinical basis to do so, because he had not obtained any or an adequate clinical history of the Patient's presenting complaint(s) and symptom(s); examined the Patient's shoulder including observing any deformity, asymmetry, muscular atrophy or scars or palpated the right shoulder's associated structures, muscle attachments or bellies, including the pectoralis muscles or assessed the range of motion of the Patient's right shoulder.[67]
[67] Amended Application, paras 9(a) – (d).
The Board also alleges that Dr Lourie failed to obtain the Patient's informed consent in that he did not advise the Patient of any diagnosis, clinical impression or other clinical basis requiring the massage of her right breast or explain why it was necessary to expose her right breast or that he intended to do so or inform her of his intention to massage her breast.[68]
[68] Amended Application, paras 11(a) – (d).
Dr Lourie denies massaging the Patient's right breast. His case was that at the 14 May 2018 consultation he examined the Patient by scoping her with a neuroscope, visualisation and motion palpation while she was both sitting and standing. Dr Lourie determined that the Patient had restrictions of her right sacroiliac, T9, T4, C7 and that her right shoulder was not moving well when compared to the left shoulder. Dr Lourie also contended the latissimus dorsi; muscle on the Patient's right side was tight when compared to the same muscle on the left and presented with limited range of motion in the right arm and muscle tension to the right dorsi; on lifting of the right arm compared to the left.[69]
[69] Response, paras 10(i) – (iii).
Dr Lourie's case was that because he had tried to treat the Patient's right shoulder on five previous occasions in the standing position, he decided to work on her right shoulder while on the Hilo table with the Trigenics muscle stretch. Dr Lourie contended that he spent approximately a minute working on the Patient's subscapularis muscle which is a muscle that can be quite painful and irritated quite easily. This was to get more rotation into the lateral portion of the scapular and interior portion of the shoulder.[70]
[70] Response, paras 10(iv) – (v).
Dr Lourie's case was that he then worked on the pectoralis major and minors on the right side where they attach into the humerus and then took the Patient's right arm up and backwards while she was laying on her back on the table. Dr Lourie contends that he continued to work on stretching those two major muscles until the arm had better rotation and the muscle was able to stretch further.[71]
[71] Response, paras 10(vi) – (vii).
Dr Lourie says that after he worked on the Patient's shoulder, he demonstrated a latimus dorsi stretch against a door to help the Patient get more range of motion in her right shoulder in order to help her raise her right shoulder.[72]
[72] Response, para 10(vii).
Dr Lourie denied that the Patient discussed with him the cyst in her right breast during one or more of the consultations she attended prior to 14 May 2018.[73]
[73] Response, para 6.
The issues for determination
The hearing was concerned only with whether the Board had established each of the allegations it made against Dr Lourie. It follows, therefore, that the issues for the Tribunal to determine are whether, in relation to each of the Grounds of the application, the Tribunal is satisfied:
(a)that Dr Lourie engaged in the conduct alleged by the Board; and
(b)if so, whether that conduct fell below the Requisite Standard; and
(c)if so, the degree to which Dr Lourie's conduct fell below the Requisite Standard.
The onus and standard of proof
As the Tribunal observed in Medical Board of Australia and Tan,[74] it is uncontentious that the Board bears the onus of proving its case against Dr Lourie to the civil standard (being on the balance of probabilities).
[74] Medical Board of Australia and Tan [2022] WASAT 57 (Tan) at [6].
However, given the seriousness of the allegations of professional misconduct advanced by the Board in this case:[75]
[C]ogent evidence will be required to establish the facts on which those allegations depend. Satisfaction that such serious conduct … has been proved will not be achieved by inexact proofs, indefinite testimony, or indirect inferences.
[75] Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (Ebtash) at [55].
The Tribunal is required to have regard to the nature and consequence of the facts sought to be established, the seriousness of the allegations made against a practitioner, the inherent unlikelihood of an experienced practitioner behaving in the manner alleged and the gravity of the consequences that might flow from a finding of professional misconduct in determining whether the standard has been met.[76]
[76] Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw).
The Board's case, particularly in so far as it relates to Ground 6, relies in part on inferences. In Palmer v Dolmann,[77] Ipp JA referred to what are now well-established principles for determining whether an inference of fraud or other serious misconduct may be drawn from circumstantial evidence in civil proceedings.
[77] Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 at [41].
More recently, in Legal Profession Complaints Committee and Goldsmith[78] those principles were applied in proceedings in the Tribunal such that the Tribunal must:
(1)consider the weight to be given to the united force of all of the circumstances taken together;
(2)apply the standard of proof at the final stage in the reasoning process;
(3)weigh the inferences to be drawn from the proved facts against realistic possibilities as distinct from possibilities that might be regarded as fanciful; and
(4)find the allegation is not proved where there are competing possibilities of equal likelihood or where the choice between them can only be resolved by conjecture.[79]
[78] Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43 (Goldsmith).
[79] Goldsmith at [31].
In these reasons, when we express ourselves to be satisfied, and make a finding, we do so on the balance of probabilities and on the basis of evidence which we regard as clear and cogent, having regard to what was said in Briginshaw.
Relevance of consent
As the Tribunal observed in Ebtash,[80] a failure by a medical or health practitioner to obtain consent to touch a patient may have a number of legal consequences. The touching may give rise to a criminal sanction for assault. It may attract civil liability for the tort of assault and battery or may be an element of the tort of negligence on the part of the practitioner. Or it may be relied upon to establish that the conduct of the practitioner fell below the standard of skill or care reasonably expected of practitioners of equivalent training and expertise, so as to warrant a disciplinary sanction.
[80] Ebtash at [57].
The Tribunal, in Ebtash, went on to acknowledge that the law concerning consent, or informed consent, to treatment by a medical or health practitioner is an area involving some complexity, in which the law continues to develop. In each of these different contexts – criminal, civil (tortious) and disciplinary – the requisite content and quality of the consent may be different, and there are different requirements for who bears the onus of proving an absence of consent. Thus, it is important to clearly identify the relevance of the requirements of consent in the particular context in which it arises. Just as it did in Ebtash, the question of consent arises in two contexts so far as the allegations against Dr Lourie are concerned.
The first context relates to Grounds 2 and 6 in that Dr Lourie is alleged to have failed to obtain the Patient's consent to the alleged conduct which is said to have been sexually motivated. The absence of consent and the lack of clinical justification for the conduct and, in Ground 6, some surrounding circumstances, are advanced by the Board for the purpose of establishing the sexual nature of the conduct.
The second context concerns Ground 3, and Ground 2 in the event that we find that the conduct was not sexual in nature. The Board says that Dr Lourie failed to obtain the Patient's consent because he failed to inform her of what he intended to do by way of treatment or touching.
Overview of the evidence adduced at the hearing
The hearing was conducted over five days on 13, 14, 15 and 16 February 2023 and 8 March 2023.
In addition to their oral submissions, each of the parties filed written submissions as follows:
(a)Applicant's Opening Submissions filed 16 December 2022;
(b)Respondent's Opening Submissions filed 25 January 2023;
(c)Applicant's Closing Submissions filed 22 March 2023;
(d)Respondent's Closing Submissions filed on 19 April 2023; and
(e)Applicant's Closing Submissions in Reply filed 10 May 2023.
Documentary evidence
Each party tendered documents in their case which became exhibits in the proceeding.
Expert evidence
The Board and Dr Lourie each called an expert witness as follows:
(a)the Board called:
(i)Dr Stanley Innes, B App Sc (Chiro), BA (Hons), M Psych, PhD, Senior Lecturer Clinical Chiropractic; Discipline of Psychology, Exercise Science, Counselling and Chiropractic (PESCC); College of Science, Health, Engineering and Education (SHEE); Murdoch University.
(b)Dr Lourie called:
(i)Dr Andrew D Stevenson, BSc, MChiro, Grad Cert Sp Chiro ICSSD.
A joint expert conferral between Dr Innes and Dr Stevenson took place on 8 June 2022. This resulted in the preparation of the Joint Expert Report.[81]
[81] Exhibit 1.18.
Both experts attended the hearing by video-link and gave concurrent evidence on 8 March 2023.
Other witnesses
The Board called the following witnesses:
(a)the Patient; and
(b)Benita Rochelle Piesse, a friend of the Patient.
Dr Lourie gave oral evidence in his case. He also called the following witnesses:
(a)Penelope Mackenzie, Chiropractic Assistant at the Clinic;[82]
(b)Dr Evelyn Jane Cooper, Chiropractor,[83] (as a character witness); and
(c)Dr Brian Chris Nook, Associate Dean of Academic Affairs at Palmer College of Chiropractic West, San Jose, California,[84] (as a character witness). Dr Nook gave his evidence by video link from California.
[82] ts 294, 16 February 2023.
[83] ts 311, 16 February 2023.
[84] ts 325, 8 March 2023.
Dr Lourie's qualifications, experience, practice and disciplinary history
Dr Lourie's qualifications, experience and practice as a chiropractor were not in issue. We are satisfied and make the following findings of fact in relation to those matters.
Dr Lourie qualified as a chiropractor in 1984. He completed his Doctor of Chiropractic from Palmer College, Davenport, Iowa in the United States.[85]
[85] ts 120, 15 February 2023.
Dr Lourie practised as a chiropractor in Western Iowa for six months before moving to Vermont. He practised in Vermont for five years and then moved to Australia.[86]
[86] ts 120 and 121, 15 February 2023.
Upon arriving in Perth in 1990, Dr Lourie commenced working for another chiropractor at the Clinic. In 1991, he purchased the Clinic and continues to practice there.[87]
[87] ts 122, 15 February 2023.
In 2004, Dr Lourie opened (what he referred to as) a satellite clinic in Bull Creek.[88] He now divides his time between both clinics.[89] Dr Lourie describes himself as the sole owner and sole trader of both clinics.[90]
[88] ts 122, 15 February 2023.
[89] ts 123, 15 February 2023.
[90] ts 122, 15 February 2023.
As at mid‑2018, there were about 14,000 patients on the books at the Kelmscott Clinic and 3,000 – 4,000 on the books at the Bull Creek Clinic.[91]
[91] ts 124, 15 February 2023.
On any given week he saw 200 patients or approximately 40 patients every day in a fiveday working week.[92]
[92] ts 269, 16 February 2023.
Dr Lourie is a chiropractor who is trained in and practises a method of chiropractics' known as Gonstead chiropractic.
Dr Lourie has no prior disciplinary history.[93]
Credibility and reliability of the witnesses of fact and as to the expertise of the expert witnesses
Ms Piesse
[93] ts 124, 15 February 2023.
Ms Piesse is a friend of the Patient. She gave limited evidence in relation to the issues in dispute. Ms Piesse's evidence was confined to recounting what the Patient told her about the consultation with Dr Lourie on 14 May 2018. We had no reason to doubt that Ms Piesse was an honest and reliable witness. We find that she was.
Dr Cooper
Dr Cooper is a chiropractor who gave character evidence about Dr Lourie. Dr Cooper had first met Dr Lourie in 2011 when she was studying at Murdoch University and Dr Lourie was teaching.[94] Later, she worked with Dr Lourie at the Clinic for 18 months.[95] There was nothing about Dr Cooper's evidence that caused us to doubt she was a truthful witness. We find that she was.
Dr Nook
[94] ts 311, 16 February 2023.
[95] ts 312 – 313, 16 February 2023.
Dr Nook is the Associate Dean of Academic Affairs at Palmer College of Chiropractic West in San Jose, California. Dr Nook first met Dr Lourie in 1995[96] and last worked with him in 2017.[97]
[96] ts 327, 8 March 2023.
[97] ts 328, 8 March 2023.
Dr Nook's associations with Dr Lourie arose as a consequence of their involvement as part of a delegation of the International Federation of Sports Chiropractic (IFSC).[98] We found Dr Nook to be a truthful witness.
The Patient
[98] ts 327 – 328, 8 March 2023.
The Board filed extensive written submissions directed to why we should find that the Patient was a credible and reliable witness.[99] The Board asserted that the Patient gave her evidence clearly and confidently and that there was nothing in her demeanour that would cause us to view her evidence as unreliable.[100]
[99] Board's Closing Submission dated 22 March 2023 (Board's Closing Submissions), paras 18 – 42.
[100] Board's Closing Submissions, para 19.
The Board submits that the Patient had an excellent recall of the layout of the Clinic and what occurred during the consultation on 14 May 2018.[101]
[101] Board's Closing Submissions, paras 20 – 31.
The Board says that the Patient did not embellish her evidence and was forthright.[102] In support of this proposition the Board refers to the Patient's following responses to questions asked in cross-examination.
[102] Board's Closing Submissions, para 22.
First, when asked very specific questions about what Dr Lourie might have said on 14 May 2018 concerning his assessment of her right shoulder, she acknowledged that she could not recall precise details and could only recall the discussion in general terms.
Second, the Patient did not seek to embellish her evidence by attempting to specify the precise dates on which she had previously advised Dr Lourie of the cyst in her right breast.[103]
[103] Board's Closing Submissions, para 23(b).
Third, the Patient was forthright in giving evidence that Dr Lourie had explained to her why he touched her gluteal and abdominal muscles without embellishing the specifics of that conversation.[104]
[104] Board's Closing Submissions, para 23(c).
The Board contends that the Patient's descriptions of how Dr Lourie massaged her right breast was 'physically possible and entirely plausible'. In particular, the Board points to the Patient's evidence that the arm length on the gown was short and extended to just beyond her shoulder and that the armhole was sufficiently loose to permit Dr Lourie to insert his right hand to access her shoulder and for the gown to be moved across her chest to expose her breast.[105]
[105] Board's Closing Submissions, para 24.
The Board also relies on the fact that after having attended the Clinic for more than eight months she never returned after 14 May 2018,[106] as evidence which supports the truth of her allegation.
[106] Board's Closing Submissions, para 31.
The Board says we can find that the Patient gave honest evidence because she had no motive to lie and nothing to gain from doing so.[107]
[107] Board's Closing Submissions, para 35.
The Board also relies on the fact that the Patient discussed the matter with her friend, Ms Piesse shortly after the consultation on 14 May 2018 and then reported the incident to the WA Police on 22 May 2018 and to the Australian Health Practitioner Regulation Agency (AHPRA) on 10 August 2018 as conduct which supports the truth of her evidence.[108]
[108] Board's Closing Submissions, paras 38 – 39.
Finally, the Board says that the Patient's conduct during and immediately after the consultation on 14 May 2018, was plausible and not inconsistent with the allegations being true. The Board contends that the Patient's credibility is not undermined by the fact she did not resist Dr Lourie.
In response to the Board's submissions, Dr Lourie makes the following observations:
(i)The fact the Patient gave evidence consistent with an unshakeable belief that what she alleged occurred does not make it so.[109]
(ii)The Patient's ability to recollect the layout of the treatment room and other incidental matters is immaterial to the allegations made given she has been there many times and provided a statement shortly after 14 May 2018.[110]
(iii)The Patient's willingness to accept some of the details put to her on Dr Lourie's behalf and reject others is demonstrative of no more than a willingness to concede details that do not impact on the substance of her account but an unwillingness to concede any aspect of the details of her allegation.
(iv)The Patient's concession that she could not remember the dates on which she advised Dr Lourie of the cyst in her right breast does not logically support or refute, as a matter of fact, whether she had done so.[111]
(v)The Patient's concessions as to discussions with Dr Lourie about the touching of her abdominal and gluteal muscles and his reasons for doing so is not supportive of the Patient's credibility as it gives rise to an inference that it was clinically appropriate treatment.[112]
(vi)Evidence of the Patient having no motive to lie is an unhelpful exercise in speculation.[113]
(vii)The fact that the Patient booked no further consultations with Dr Lourie after 14 May 2018 supports her belief in the correctness of her recollection as to what took place, but it does not, in conjunction with other evidence, support in itself the fact that what she alleges actually occurred.[114]
(viii)The Patient reporting her allegations to the WA Police and to AHPRA does not support the objective likelihood of her evidence being accurate and reliable. If this were the case, then merely to make an allegation in any given circumstance would support the likelihood of it being true. This is obviously illogical and unhelpful reasoning.[115]
(ix)The Patient made no complaint or objection at the time of the alleged touching, either within the consultation room or prior to leaving the Clinic.[116]
[109] Respondent's Closing Submissions dated 19 April 2023 (Respondent's Closing Submissions), para 25.
[110] Respondent's Closing Submissions, para 26.
[111] Respondent's Closing Submissions, para 29.
[112] Respondent's Closing Submissions, para 30.
[113] Respondent's Closing Submissions, para 34.
[114] Respondent's Closing Submissions, para 33.
[115] Respondent's Closing Submissions, para 35.
[116] Respondent's Closing Submissions, para 35.
Having addressed the Board's submissions in support of the Patient being found to be a credible witness, Dr Lourie referred to the following matters as things that should cause us to find her evidence was not honest, accurate and reliable:
(i)the Patient's demonstrated morbid sensitivity to the fact of her right‑sided cyst, such that Dr Lourie's alleged repeated reference to it was capable in her mind of amounting to sexual grooming behaviour;[117]
(ii)that the Patient had drawn an erroneous conclusion of sexual grooming arising from the touching of her gluteal and abdominal muscles in a context where Dr Lourie was demonstrating ways in which the Patient might correct aspects of her posture with a view to addressing the very issues for which she was being clinically treated;[118]
(iii)that the Patient had come to an illogical and baseless conclusion that Dr Lourie wiping his hands after using massage oil and going to the bathroom following the conclusion of treatment were in themselves capable of being inferred as further instances of behaviour that made the Patient feel sexually violated;[119]
(iv)that the Patient had an illogical and ill-founded feeling that the asking of questions, plainly designed to ascertain the existence of physical trauma giving rise to injury, were invasive and too personal to be posed; [120] and
(v)that the Patient's description of her thought processes following the alleged breast massage showed that, at the time, she herself was unsure about how she had been touched during treatment and her description of sitting in the car 'processing what had happened' was not merely an expression of shock or a turn of phrase.[121]
Findings
[117] Respondent's Closing Submissions, para 21(zi).
[118] Respondent's Closing Submissions, para 21(zii).
[119] Respondent's Closing Submissions, para 21(ziii).
[120] Respondent's Closing Submissions, para 21(ziv).
[121] Respondent's Closing Submissions, para 21(zv).
Having regard to the totality of the Patient's evidence, we are satisfied that the Patient gave evidence which she regarded as truthful. We accept that she genuinely believes that she was inappropriately touched by Dr Lourie during the Consultations at which he accepted that he had touched her lower abdomen and gluteal muscles and in the consultation on 14 May 2018.
We also accept that the Patient did not embellish her evidence and was prepared to acknowledge the fact that she could not recall certain matters.
We also find that she had a good recall of the layout of the Clinic and the reasons for her attending the Clinic for treatment.
Much of her evidence about how the Consultations progressed, while quite general as a result of her inability to recall specifics owing to the passage of time, was not inconsistent with that given by Dr Lourie.
However, in the end we were unable to find that the Patient's evidence as to the incidents where it was alleged that she was inappropriately and sexually touched by Dr Lourie (Grounds 2 and 6) was reliable and accurate.
There were several reasons for coming to our conclusion as to the accuracy and reliability of the Patient's evidence in relation to the alleged touching.
First, we find that the Patient's perception of certain events was not reasonable and that instead she saw routine questions and conduct as sinister.
For example, the Patient's evidence was that she believed that Dr Lourie had groomed her over the consultations leading up to 14 May 2018. When the Patient was asked to explain what she meant by the assertion that Dr Lourie was engaging in 'grooming behaviour', the Patient said he had been overly friendly during appointments in that he would often ask personal questions that she felt were prying into her personal life. By way of example, the Patient referred to being asked by Dr Lourie if her bursitis had been caused by a car accident and telling him that she got bursitis from falling over on the footpath. She gave evidence that she regarded being asked whether she had been in a car accident as a personal question. The following exchange then took place between counsel for Dr Lourie, Mr Eyers and the Patient:[122]
[122] ts 112, 14 February 2023.
MR EYERS: Well, how is that a personal question that made you feel a little uncomfortable? …
PATIENT: Well, why did he need to ask me that?
MR EYERS: Because it gave rise to a bursitis which caused you pain in your right hip, which you went to him for treatment … perhaps?
PATIENT: He had already taken X-rays to see where the – where the misalignments were in my spine.
MR EYERS: All right. So just to cover off on this, you felt that his inquiring into how you caused – or how – what happened to cause that injury, which necessitated treatment for you, was too personal a question, in your opinion?
PATIENT: That's correct.
MR EYERS: Eliciting details of you falling over while walking a dog was – had invaded your personal space, you concluded?
PATIENT: Yes.
We are unable to understand how the Patient, who had been referred to Dr Lourie for musculoskeletal problems, could rationally conclude that questions directed to the cause of her pain and the cause of her bursitis were too personal. This caused us to doubt her perception of events.
Secondly, there were inconsistencies in the Patient's evidence. For example, when initially asked if Dr Lourie said, 'do you feel that?', whilst attempting to activate her gluteal muscles, the Patient replied – 'I don't remember him saying that, no'. When asked the same question for a second time, the Patient responded, 'that's incorrect'.[123] Yet, when the question was pressed for a third time, the Patient said 'he may have done, yes. I don't recall'.[124]
[123] ts 95, 14 February 2023.
[124] ts 95, 14 February 2023.
Another example of an inconsistency in the Patient's evidence concerns the evidence which the Patient gave about what Dr Lourie said when he touched her buttock. In relation to which buttock muscle Dr Lourie touched, the following exchange took place:[125]
MR EYERS: … when he contacted you on your buttock muscle, which buttock muscle did he contact?
PATIENT: The right one.
MR EYERS: Any doubt at all about which buttock muscle he contacted?
PATIENT: No.
MR EYERS: I mean, you were sure at the time and there is no reason for anything – being anything less than sure subsequently?
PATIENT: That's correct.
[125] ts 101, 14 February 2023.
Subsequently, the Patient was directed to her statement dated 19 December 2019 in which she said:[126]
While he [Dr Lourie] explained that I should tense my bum muscles, he held one of my bum cheeks with his hand. (I cannot recall which bum cheek he held.)
[126] ts 114, 14 February 2023.
Inconsistencies about these matters caused us to have concerns about the accuracy and reliability of the Patient's evidence about the crucial issues we were required to determine.
Thirdly, in light of the Patient's apparent feeling of discomfort in being asked personal questions and her concession that none of the problems (including her shoulder) for which she consulted Dr Lourie were connected to the benign cyst in her right breast,[127] it is hard to reconcile why the Patient would voluntarily inform Dr Lourie about the cyst as she said she had done on more than one occasion. We find it implausible that she did so.
[127] ts 88 – 89, 14 February 2023.
We accept that the Patient made a complaint about having been massaged on her breast by Dr Lourie to her friend Ms Piesse about a week after the relevant consultation. We also accept that she went and subsequently made a complaint about that matter to the police and to the AHPRA. This evidence is said to demonstrate conduct consistent with that which might be expected of someone who had been treated in the way alleged. We accept that that is so, and it is evidence to which we have had regard in assessing the Patient's credibility. However, the fact that a complaint is made does not add to the truthfulness of the complaint and repetition of a complaint does not make it true.
We also accept that the fact that the Patient did not return for further treatment at the Clinic after 14 May 2018 is consistent with the conduct one might expect of someone who had been sexually touched during that consultation.
We do not accept that the evidence which the Patient gave to the effect that after the consultation on 14 May 2018 she sat in her car for 10 minutes to 'process what had happened'[128] damaged her credibility. We did not understand that evidence to mean that she was unsure whether the breast massage had occurred as she said it did. Rather, we regard it as an expression of shock.
[128] ts 67, 14 February 2023.
As the Tribunal observed in Ebtash at [267]:
… It is a matter of common human experience that victims of assaults of different kinds (physical, verbal, sexual, and/or violent) react in different ways. Some are forthright and confident, and immediately challenge their abuser. But others are fearful or lack confidence to speak up, or do not wish to risk causing offence or creating a 'scene', and say nothing for those reasons. In a medical, or allied health, setting, where patients do not have the knowledge or training to assess for themselves whether their practitioner is touching their body in a clinically appropriate and justified way, some patients may be unsure whether particular touching about which they feel uncomfortable, is in fact clinically justified or appropriate, and may lack the confidence to question the treatment at the time. In cases where the touching is of short duration, or takes place in the context of other touching which appears more likely to be clinically justified, the impropriety of the touching may not be immediately and unambiguously clear to the victim[.]
Dr Lourie
The Board advances five reasons why Dr Lourie was not a credible or reliable witness.
First, the Board says that Dr Lourie had every motivation not to be frank in his evidence.[129]
[129] Board's Closing Submissions, para 44.
Secondly, the Board contends that Dr Lourie's evidence demonstrated an indifference to touching sensitive areas of the Patient's body. The Board points to Dr Lourie's statement that he did not feel that 'just touching the lateral side of someone's glute with my fingertip is that sensitive'. The Board says that this apparent indifference to obtaining consent reflects poorly on Dr Lourie's credibility.[130]
[130] Board's Closing Submissions, para 45.
Thirdly, the Board contends that Dr Lourie repeatedly gave evidence which lacked candour. In particular, the Board says, that Dr Lourie was intent on being an advocate for his self-serving positions and demonstrated a consistent willingness to embellish his evidence such that it was demonstrably untrue.[131] The Board points to seven examples where this occurred. They are:
(i)The Board says that with respect to the initial consultation Dr Lourie did not make any reference in his evidence‑in‑chief to assessing the Patient's basic vital signs other than her blood pressure. In cross-examination Dr Lourie stated that he did measure the Patient's heart rate and that it was '60 beats per minute which is general'. Shortly thereafter, however, Dr Lourie accepted that he could not recall precisely what the Patient's heart rate actually was.[132]
(ii)According to the Board, Dr Lourie's evidence regarding his clinical notes was initially to the effect that those notes represented the totality of the treatment he provided, and that those notes were adequate for him to know with precision what treatment he provided to the Patient. However, the Board says that when pressed in cross-examination, Dr Lourie conceded his notes were inadequate.[133]
(iii)In addressing the Patient's leg numbness on 20 November 2015, Dr Lourie provided detailed evidence as to the Patient's description of that numbness including that it emanated 'from her right gluteal or buttock area, SI joint down into the back of her leg but not extending below her knee'.[134]
When asked how he could recall such precise detail, Dr Lourie said 'it was right there in my notes'. Dr Lourie went on to explain that the Patient had drawn a line on the lower back of a diagram of the human body. Thereafter, having conceded he had no independent recollection of what the Patient had described about her leg numbness, Dr Lourie sought to justify his position by contending that a lay patient would recognise that their lower back might be the source of their leg numbness.
(iv)In his evidence in relation to the consultation on 20 March 2018, Dr Lourie said that 'you could see where the muscles were physically tight'[135] and that he made 'a good adjustment' to the Patient's right fibula[136] only to concede that that is what he 'would have done' by reference to his usual practise and that he did not have any specific recollection of his treatment of the Patient on 20 March 2018.
(v)Dr Lourie initially gave clear and unambiguous evidence that he specifically remembered asking the Patient about a correlation between her headaches and her menstrual cycle during the consultation on 20 November 2015, only to subsequently concede that the only basis for his earlier answer was because it would be a standard question he would ask.[137]
(vi)In relation to the consultation on 11 September 2017, Dr Lourie initially gave clear evidence that he specifically remembered that the Patient's bursitis had been present for a long duration. However, Dr Lourie subsequently accepted that the onset of the bursitis was not recorded in his notes, and he did not actually remember the details.[138]
(vii)When asked about the duration of the Patient's lower back pain at the consultation on 20 November 2015, Dr Lourie said it was 'for a long duration'. Subsequently Dr Lourie was unable to answer that question.[139]
[131] Board's Closing Submissions, para 48.
[132] Board's Closing Submissions, para 49.
[133] Board's Closing Submissions, paras 50 – 51.
[134] ts 197, 15 February 2023.
[135] ts 165, 15 February 2023.
[136] ts 165, 15 February 2023.
[137] Board's Closing Submissions, para 55.
[138] Board's Closing Submissions, para 56.
[139] Board's Closing Submissions, para 54.
Fourthly, the Board says that Dr Lourie refused to accept reasonable matters which were put to him. The Board relies on Dr Lourie's evidence in relation to the Patient's leg numbness, as an example.
Fifthly, the Board contends that Dr Lourie's evidence was inconsistent with the 'overall probabilities'. The Board submits that Dr Lourie gave detailed evidence about matters concerning his assessment and treatment of the Patient which we should find was simply not credible given the events occurred between five – seven years ago and that he had almost no notes from which he could have refreshed his memory. The Board submits that the number of patients Dr Lourie was seeing at the relevant time, and has seen since, makes it implausible that he could have remembered much detail of the events.
The Board also relies on Dr Lourie's resort to what he would have done in response to questions as to what he could actually recall.[140] That is, he was not giving evidence of what he actually did in connection with his treatment of the Patient but was giving evidence of his usual practice.
Findings
[140] Board's Closing Submissions, paras 59 – 63.
The Board's submission that Dr Lourie had motive to lie cannot pass without comment.
Dr Lourie would only be motivated to lie in the event that he had acted inappropriately. Thus, the Board's submission presumes Dr Lourie's guilt.
In proceedings of this kind the Board bears the onus of proving the allegations. A practitioner is neither presumed to be guilty nor required to prove anything.
In this case, Dr Lourie did give evidence and we must scrutinise that evidence with care, as we must do with every witness's evidence.
The Board contends that Dr Lourie's evidence demonstrated an indifference to touching sensitive areas of the Patient's body such that he did not feel it was necessary to expressly seek consent to do so, and that this apparent indifference reflects poorly on his credibility. As to that submission, we make the following observations.
First, we do not understand how a view about whether the abdomen or glutes are sensitive parts of the body should lead us to find his evidence was not credible. It seems to us quite feasible that reasonable minds might differ about that issue and that a health practitioner, accustomed to dealing with the body, might perceive things differently to a patient. Dr Lourie acknowledged as much in his evidence.[141] That is not to say that a health practitioner should not be alert to the likelihood that others might regard things differently, only to say we did not find Dr Lourie's view about the sensitivity of the abdomen and buttocks influenced our view of his credibility.
[141] ts 218, 15 February 2023.
Secondly, the fact that Dr Lourie did not view abdominals and buttocks as particularly sensitive areas of a patient's body does not lead to the conclusion that he would hold that same view about a patient's breasts. In fact, Dr Lourie expressly conceded that massaging the Patient's right breast (had it occurred) would constitute inappropriate sexual conduct.[142]
[142] ts 275, 16 February 2023.
We find that Dr Lourie embellished aspects of his evidence. Dr Lourie gave evidence that he recalled certain things that happened during Consultations with the Patient. For example, he gave evidence that he specifically recalled asking the Patient at the consultation on 20 November 2015, whether the onset of her headaches correlated with her menstrual cycle and that she had not responded to that question.[143] His clinical notes recorded only 'headaches 1x month'.[144] When it was put to him that he did not remember that he had asked about headaches he gave evidence that he would have asked her about the correlation because she was having a headache every month and it would be usual for him to ask about a possible correlation between the headache and a menstrual cycle in such a situation.[145] That evidence, along with other examples where Dr Lourie's evidence about what he did in circumstances where it was implausible that he had an actual memory of the events given the paucity of his notes, the passage of time and the number of patients he has seen, caused us to have some reservations about the honesty of that evidence.
[143] ts 204 – 205, 15 February 2023.
[144] Exhibit 1.29(a).
[145] ts 204 – 205, 15 February 2023.
However, there was nothing about the way in which he gave evidence that caused us to reject his emphatic denial of massaging the Patient's breast on 14 May 2018. We return to that issue when dealing specifically with Ground 6.
Character witnesses
In general terms, the character witnesses gave evidence that they regard Dr Lourie highly and from their interactions with him over many years, find him to be a skilful, respectable and professional chiropractor who has contributed to the profession and the community. The character witnesses gave evidence that Dr Lourie had not given them any concern as to his ethics or moral character. We bear that evidence in mind in considering the likelihood that Dr Lourie would have acted in the way alleged in Grounds 2 and 6. We also take Dr Lourie's reputation as an ethical and moral practitioner into account in assessing the weight we can give to his evidence and whether or not we believe his denials and accept his evidence to be truthful and reliable.
At the same time, we acknowledge, and bear in mind, that people do act inappropriately for the first time and that conduct of an inappropriate sexual nature is typically not made known to others by the perpetrator and we have borne in mind that if we regarded the Patient's evidence to be convincing it is not to be overwhelmed by the character evidence given by Dr Lourie's witnesses.
However, having regard to the following matters:
(a)that Dr Lourie has practised for many years without any disciplinary history; and
(b)the evidence from those who have known Dr Lourie as a chiropractor for many years that they regard him as someone of good character; and
(c)the fact that Dr Lourie himself accepted that aspects of his conduct fell below the standard the public are entitled to expect of competent chiropractors.
We find that we have no reason to reject Dr Lourie's emphatic denial of any sexually motivated touching of the Patient.
Ms Mackenzie
Ms Mackenzie is the Chiropractic Assistant at the Clinic. Her evidence primarily focused on the number of patients treated at the Clinic on any given day and the time between consultations. Nothing in her evidence gave us any reason to doubt that she was an honest and reliable witness. We find that she was.
The experts
The Board and Dr Lourie each relied on the evidence of an expert witness in relation to the requirements of the Code and Guidelines and their opinion as to whether aspects of Dr Lourie's conduct met those requirements. They also addressed the question of whether certain conduct could be clinically justified.
The Board relied on the evidence of Dr Stanley Innes, B App Sc (Chiro), BA (Hons), M Psych, PhD who produced an expert report dated 14 March 2022.[146]
[146] Exhibit 1.17.
Dr Lourie called Dr Andrew Stevenson, B Sc M Chiro Grad Cert Sp ICSSD who produced an expert report dated 20 April 2022.[147]
[147] Exhibit 1.16.
Both experts participated in an expert conferral facilitated by a Senior Member of the Tribunal on 8 June 2022. That conferral resulted in the preparation of a Joint Expert Report entitled 'Expert Conferral for SAT' (Joint Expert Report).[148]
[148] Exhibit 1.18.
Both experts attended the hearing and gave concurrent evidence.[149]
[149] Dr Innes and Dr Stevenson appeared by video-link.
Their oral evidence focused on the adequacy of Dr Lourie's clinical notes and his assessment and management of the Patient and the absence of any clinical justification for touching the Patient in the way in which she alleged that Dr Lourie did.
We accept that both Dr Innes and Dr Stevenson were appropriately qualified and had the appropriate expertise to assist the Tribunal to understand the Requisite Standard in relation to those matters.
The Board submitted that some of Dr Stevenson's opinions were without factual foundation. One example of such an opinion was Dr Stevenson's view, set out in the Joint Expert Report, that Dr Lourie's treatment of the Patient was 'excellent'.[150] In cross-examination Dr Stevenson accepted that he could not say that the treatment provided by Dr Lourie was 'excellent'.[151] He accepted that the reason that he could not do so was because the only material on which he could base an assessment of the quality of the treatment was Dr Lourie's inadequate notes. He accepted those notes were inadequate to enable him to form any view of the quality of Dr Lourie's treatment.[152] In any event, this assessment of the quality of Dr Lourie's treatment of the Patient was irrelevant to the issues which we had to decide because there was no allegation made that the quality of the treatment provided to the Patient was below the Requisite Standard.
[150] Exhibit 1.18, page 14.
[151] ts 353, 8 March 2023.
[152] ts 353, 8 March 2023.
Another example was where Dr Stevenson made assumptions about what Dr Lourie would have done by way of an assessment of the Patient, based on his knowledge of what Gonstead practitioners would generally do, without any actual knowledge of what Dr Lourie in fact did, or said, given that all he had to make his assessment upon was Dr Lourie's scant notes.[153]
[153] ts 360, 8 March 2023.
We find that there were aspects of Dr Stevenson's evidence contained in the Joint Expert Report for which there was no factual foundation. We give no weight to all of the opinions expressed by Dr Stevenson in the section of the Joint Expert Report entitled 'Dr Stevenson's Other Comment' because they are either:
(1)not relevant to the issues which we needed to decide; or
(2)because they were based on assumptions and had no factual foundation.
Ground 1: inadequate clinical notes - the evidence and our findings
Clause 9.4 of the Code provides that good practice involves a number of criteria including:
(1)keeping accurate, up-to-date, contemporaneous and legible records that report relevant details of clinical history, clinical findings and determinations, investigations, information given to the patients, medication and other management details in a form that can be understood by other health practitioners';[154] and
(2)ensuring that records contain sufficient information to allow another chiropractor the management of the patient and to facilitate continuity of chiropractic care.[155]
[154] Code (Exhibit 1.59) clause 9.4(a).
[155] Code (Exhibit 1.59) clause 9.4(d).
The Code identifies that more detailed guidance about the content of clinical records is provided in the Guidelines.[156]
[156] Code (Exhibit 1.59) clause 9.4.
Clause 3 of the Guidelines[157] identifies the information which a practitioner is required to record in their clinical record at an initial or new presentation. Clause 3 provides as follows:
[157] The Guidelines, Exhibit 1.58.
3.Information to be recorded at an initial or new presentation
The following information forms part of the clinical record and is to be recorded, at the initial presentation about that consultation:
a.identifying details of the patient, including name, preferred name, contact details, date of birth and occupation
b.contact details of the person the patient wishes to be contacted in an emergency (not necessarily the next of kin)
c.presenting complaint
d.examinations and investigations conducted and relevant clinical findings
e.relevant diagnosis(es)/clinical impressions/working diagnosis(es), therapeutic trails or management/care plan(s)
f.current health history including a relevant medical history, systems review, work history, 'red flags', current medications/supplements, allergies, referrals
g.any contraindications or health alerts
h.relevant family history
i.relevant social and lifestyle history including cultural background (where clinically relevant)
j.name of the consulting practitioner.
Clause 4 of the Guidelines sets out the information which a practitioner is required to record in their clinical notes at a 'subsequent consultation or any consultation where care or advice is provided'. Clause 4 provides as follows:
4.Information to be recorded at a subsequent consultation or any consultation where care or advice is provided
For each presentation, clear documentation of information relevant to that consultation including the following clinical details:
a.date of the consultation
b.any change in consulting practitioner
c.name of the person providing information if not the patient, e.g. parent, guardian
d.reason for care/consultation
e.relevant subjective information including response to any treatment, including that provided by other practitioners
f.relevant objective information about any examination or investigation conducted and relevant clinical findings
g.the documentation of any offer of a chaperone to patients or when any such request is made by a patient
h.details of any informed consent (see Code of Conduct or Chiropractors section 3.5)
i.when there are changes to any previous consent i.e. withdrawn, extended, modified, along with notes on the parameters of the change
j.changes to a documented working diagnosis or therapeutic trial
k.changes to a documented management/care plan
l.procedures conducted, techniques used and advice/instructions given
m.items prescribed, administered or supplied for the patient
n.any referrals, letters, correspondence, clinical records, reports, or any relevant communications regarding the patient
o.any unusual sequelae of treatment or changes in contra-indications or health alerts
p.any relevant diagnostic data, including accompanying reports
q.setting and context (e.g. after hours, home visit or at a sporting event)
r.details of anyone contributing to the chiropractic care and record.
The Board's allegations in paragraph 11B of the Amended Application is expressed in broad terms in that it does not specify which of the matters in Appendix 3 of the Code Dr Lourie is said to have breached. It simply says there was non-compliance with Appendix 3.
As we noted earlier, Dr Lourie did not address Ground 5 in his Response. However, in his written opening submissions Dr Lourie says he consulted with the Patient on an as needs basis and concedes he did not formulate and implement a management plan or program of care for the Patient.
Subsequently, in his closing submissions Dr Lourie contended that his management plan was to treat the Patient on an 'open ended return policy' or a 'as needed basis'.
Whether it is described as 'an open ended return policy' or 'an as needs basis', we understand such a policy to involve a patient deciding whether to return for further treatment as they see fit.
The Board disputes that Dr Lourie was seeing the Patient on an as needs basis.[254] Moreover, the Board says that even if he was, that is not a sufficient reason not to comply with Appendix 3 of the Code which is the 'Guideline in relation to duration and frequency of care' which directs that it is to be read in conjunction with clauses 2.1 and 2.2 of the Code.[255]
[254] Board's Closing Submissions, para 97.
[255] Board's Closing Submissions, para 98.
Dr Innes provided the following evidence:
A management plan is an expression of the collaboration between the practitioner and the patient of what treatment – what the agreed treatment will be based around what the patient would like the – what the patient selects as the most appropriate care for them and then a selected outcome and then ways of monitoring that to get to the point of where they can see how the progress is going, moving toward that point.[256]
[256] ts 377, 8 March 2023.
In the Joint Expert Report, the experts observed:[257]
[257] Exhibit 1.18, page 7.
It is our agreed opinion that we could find no evidence that Dr Lourie had formulated or implemented a management plan for any of the presenting complaints detailed in the clinical notes. The provided clinical notes do not meet the program of care as outlined in Appendix 3 [of the Code] in that they are deficient because they do not include:
•a rational that demonstrates the care is based on clinical need;
•consideration of the natural history of the condition;
•evidence that it is based on a reasonable; clinical impression/diagnosis;
•any proposed management;
•expected measurable outcome of care;
•a reasonable estimate of the timeframe for achieving expected outcomes;
•a plan for review/reassessment;
•validated objective and subjective outcome measures;
•evaluation of the benefit of care to the patient;
•identification of whether the original diagnosis/clinical impression should be modified;
•clinical justification for care to continue, or not;
•the number of further visits proposed;
•understanding and agreement by the patient of the aims surrounding the proposed program of care.
The opinion of the experts that they found no evidence that Dr Lourie formulated and implemented a management plan and therefore that Dr Lourie's management plan was inadequate[258] is entirely based on the absence of those matters from Dr Lourie's notes. As much was acknowledged by Dr Stevenson in his oral evidence.
[258]Exhibit 1.18, page 6.
Dr Lourie maintains that an open-ended return policy is a management plan. He says that the Patient made improvements in her treatment[259] and that the assessment of improvements is indicative of management. Dr Lourie also refers to the fact that there were follow up treatments attended by the Patient and that his advice to the Patient, consistent with his standard procedure, was that if there was any condition or any problem that did not settle down, she was to return in four weeks as evidence of the existence of a management plan.[260]
[259] ts 250, 16 February 2023.
[260] ts 250, 16 February 2023.
Dr Lourie was asked in cross-examination 'so what was your plan'. His answer was, in summary, that the Patient was being seen on a per needed basis and that on each occasion she attended he would assess how she had responded between attendances and whether she was adopting the habits or exercises that he had given to her.[261]
[261] ts 253 – 254, 16 February 2023.
Dr Lourie relies on that fact that the Patient returned for numerous consultations as evidence of the existence of a management plan, even if it was an open ended management plan.
Dr Lourie also submits that his evidence that he asked the Patient about her presenting complaints at the start of each consultation is also evidence of the existence of a management plan.
In support of his position, Dr Lourie relies on the evidence of Dr Stevenson that returning to care on an open ended return policy or per needed bases[262] is 'something that some chiropractors do'.[263]
[262] ts 253 and 257, 16 February 2022.
[263] ts 356 – 357, 8 March 2023.
Finally, although Dr Lourie concedes that a written plan was not in place, he says that does not mean an adequate management plan was not in existence.
As we have noted previously the fact that something is not recorded in the notes does not of itself mean it did not happen.
While we accept it is always a patient's prerogative to make or cancel an appointment, we find that the Patient was not being treated on an as needs basis. The evidence establishes, and we find, that Dr Lourie was on most occasions advising the Patient to attend for another consultation in three or four-weeks' time. We find also that treating a patient on an as needs basis neither constitutes a management plan nor absolves a practitioner from formulating a management plan that complies with Appendix 3 of the Code. Nor do we accept that Dr Stevenson said that an open ended return policy constitutes a management plan. This is evident when regard is had to the full text of Dr Stevenson's evidence:
TAYLOR, MR: And so there, in effect, you express your opinion that:
Some chiropractors instruct their patients to seek care on an as-they-think-they-require it basis and do not set a prescribed number of consultations over a predetermined timeframe.
STEVENSON, DR: That's correct.
TAYLOR, MR: And you say that because of that, it becomes difficult to implement a management plan.
STEVENSON, DR: I guess that almost becomes the management plan. Do I necessarily agree with it? No. Is it something that some chiropractors do? Yes, it is. Is that what has taken place in this particular situation? I don't know. It hasn't been recorded in the notes.
Accordingly, we find that Dr Lourie did not have a management plan or program of care for the Patient that included expected measurable outcomes of care or reasonable estimates of the time frame for achieving expected outcomes or a plan for review/reassessment as required by Appendix 3 of the Code.
Accordingly, we find the allegation in Ground 5 proven.
Ground 5: Characterisation of the conduct
As Dr Innes makes clear, appropriate patient care requires that a practitioner develop in collaboration with the patient a suitable management plan or program of care.[264] Such a plan is important because a patient is entitled to understand how their treatment is likely to progress, what improvements they are entitled to expect and a reasonable estimate of how many consultations they require.
[264] ts 377, 8 March 2023.
As we have found there is no evidence that Dr Lourie had in place a management plan or program of care. Accordingly, we are satisfied that his conduct in this regard did not meet the standard that might reasonably be expected of a chiropractor by the public and his professional peers and therefore constitutes unprofessional conduct.
Ground 6: The evidence and our findings
The Board alleges that during the consultation with the Patient on 14 May 2018, Dr Lourie massaged the Patient's right breast without clinical justification for between two and five minutes. The Board alleges that this conduct was sexually motivated.
The Patient's evidence was that she attended the Clinic on 14 May 2018 as she had been undertaking strenuous work at a flower farm in preparation for Mother's Day and as a consequence her hip was becoming very painful. She also had problems with her right shoulder and back.[265] We so find.
[265] ts 63, 14 February 2023.
According to the Patient she arrived at about 11.30 am. Prior to entering the treatment room, she removed her top and bra and changed into a gown provided by the Clinic. The Patient gave evidence that the gown she was wearing had an open-back which fastened with either velcro or ties.[266] The Patient then proceeded to treatment room two. We accept that evidence and we so find.
[266] ts 63, 14 February 2023.
The Patient testified that she had previously told Dr Lourie that she had a cyst in her right breast and that he said words to the effect that the cyst could be affecting her right shoulder movement and he wanted to loosen up the muscles around that area.[267]
[267] ts 65, 14 February 2023.
The Board alleges that Dr Lourie used his prior knowledge of the Patient's pre-existing cyst as a means to legitimise massaging the Patient's breast.
The Patient's evidence was that Dr Lourie said he would like to perform a massage of her right shoulder. She said she then lay face upwards on the Hilo table and Dr Lourie applied frangipani scented massage oil to his hands and proceeded to massage her right arm and shoulder for several minutes.
The Patient's evidence was that Dr Lourie then moved her gown to the centre of her chest thereby exposing her right breast[268] and massaged the entire breast for around 2 – 5 minutes.[269]
[268] ts 85, 14 February 2023.
[269] ts 67, 14 February 2023.
The Patient said that the breast massage was quite painful and uncomfortable, and that Dr Lourie told her she should have a hot shower over the next few days as it would help loosen up the muscles.[270]
[270] ts 66, 14 February 2023.
The Patient described the massaging motion as circular and a pinching motion.[271]
[271] ts 66, 14 February 2023.
According to the Patient, after the massage finished, she pulled the gown back over to cover herself and Dr Lourie then lifted the bed back up and said that the consultation was finished, and she should come back in three to four weeks.[272] The Patient said she then went into the changing cubicle and put the gown into the laundry basket and changed into her clothes.[273]
[272] ts 67, 14 February 2023.
[273] ts 67, 14 February 2023.
The Patient testified that as she was walking to the reception area, she saw Dr Lourie go into the toilet. Her evidence about this was as follows:
Just the way he wiped his hands afterwards and then went straight to the toilet, made me feel violated.
The Patient's evidence was that after paying for the consultation and a bottle of sodium phosphate, she went and sat in the car.[274]
[274] ts 67, 14 February 2023.
The Patient said that she sat in the car for about 10 minutes to try and process what had happened. She felt in shock and asked herself 'did that really happen'.[275] She said that after the massage her breast felt quite sore and tender mainly where the cyst is.[276]
[275] ts 67, 14 February 2023.
[276] ts 67, 14 February 2023.
The Patient's evidence was that about a week later she spoke to her friend, Ms Piesse, about what had happened. She said Ms Piesse told her if she wanted to go to the police, she would go with her.[277] Her evidence about this was consistent with Ms Piesse's evidence which was that the Patient told her that the chiropractor had massaged her breast.[278] We find that the Patient did tell Ms Piesse that Dr Lourie had massaged her breast.[279] We find that the Patient did provide a statement at Armadale Police Station on 22 May 2018.[280]
[277] ts 68, 14 February 2023.
[278] ts 40, 13 February 2023.
[279] ts 109, 14 February 2023.
[280] ts 68, 14 February 2023.
Dr Lourie gave evidence about the consultation of 14 May 2018. He said that during the consultation he examined the Patient in a manner consistent with his usual practice. His evidence was that after an initial examination of the Patient, he carried out a number of adjustments and then explained to the Patient that she 'still had that forward translation of the shoulder in the anterior compartment, on her right side'.[281]
[281] ts 166, 15 February 2023.
Dr Lourie said that he explained to the Patient that the muscles on the anterior shoulder were too tight resulting in them activating on the front of the shoulder and pulling it forward. He said that he then advised the Patient that he wanted to put her on the Hilo table on her back in order to stretch those muscles (i.e. the pectoralis major).[282]
[282] ts 167, 15 February 2023.
Dr Lourie's evidence was that when he explained to the Patient what he wanted to do, the Patient responded by saying 'no problems' and then moved to the Hilo table.[283] Dr Lourie said he stood on the right side of the Patient and while controlling her right wrist, he took her arm down in a flex position to stretch the right brachial muscle with his left hand. Dr Lourie said he then moved on to stretching the subscapularis muscle which is under the armpit.[284]
[283] ts 168, 15 February 2023.
[284] ts 170, 15 February 2023.
Dr Lourie gave evidence that he used almond oil scented with frangipani essence on his fingers because when 'stripping out the muscle' this allows him to feel the muscle better and creates a 'better contact'. He said that using the oil also creates less friction, which is good for the patient because stretching the muscles in this way can be quite irritating to the patient.[285]
[285] ts 172, 15 February 2023.
Dr Lourie gave evidence that he contacted the Patient's subscapularis muscle through the armhole of her gown which he described as extending to the upper humorous. His evidence was that he was able to access the relevant muscles via the armhole in the gown by pushing the sleeve up.[286]
[286] ts 172, 15 February 2023.
Dr Lourie gave evidence that after working on the subscapular muscle he then moved to an area on the pectoralis major below the AC joint and anterior to the head of the humorous where he was trying to get the muscle to stretch.[287]
[287] ts 172, 15 February 2023.
Dr Lourie denied exposing the Patient's breast. When asked whether he moved the right armhole of the gown so far to the left that the Patient's right breast was fully exposed while he massaged it, Dr Lourie said 'it's impossible to do that'.[288]
[288] ts 175, 15 February 2023.
Dr Lourie also denied massaging the Patient's right breast including her nipple in circular pinching movements for two to five minutes. Dr Lourie denied inadvertently contacting the Patient's nipple while performing the treatment.[289]
[289] ts 176, 15 February 2023.
When asked about the gown the Patient was wearing, Dr Lourie said that two typical gowns were seized by AHPRA. Dr Lourie's evidence was that the gowns used in his Clinic have not changed in 30 years.[290]
[290] ts 176, 15 February 2023.
It was Dr Lourie's evidence that the Patient did not say anything in relation to feeling pain or discomfort during the treatment.[291]
[291] ts 177, 15 February 2023.
His evidence was that after the treatment he provided on the Hilo table, he brought the Patient back into an upright position. He said that once she was standing, he reminded her to make sure she rotates her foot to the outside so that she activated each of the gluteal muscles and the lower abdomen.[292]
[292] ts 177, 15 February 2023.
Dr Lourie gave evidence that he then took the Patient to the closed door of the treatment room and instructed her to stand facing the door as close to the door as she could and then to put her arms or her fingertips as high on the door as was comfortable for her. His evidence was that he then instructed the Patient to drop her knee down a little bit in order to stretch her latissimus dorsi muscle.[293]
[293] ts 178, 15 February 2023.
When he was asked if anything else happened on that day, Dr Lourie answered that because the Patient had presented with body odour, he had suggested she purchase sodium phosphate tablets.[294]
[294] ts 178, 15 February 2023.
Dr Lourie's evidence was that after the consultation was finished, he went to the toilet because it was the end of the morning shift. He gave evidence that after he finished washing his hands, he went to the cabinet to get a bottle of sodium phosphate which he subsequently gave to Ms McKenzie at the front desk. Dr Lourie said he did not notice anything unusual about the Patient at the conclusion of the consultation.[295]
[295] ts 179, 15 February 2023.
Dr Lourie's evidence was that at no stage from 20 November 2015 up to and including the consultation on 14 May 2018, did the Patient mention the fact that she had a benign cyst in her right breast.[296] Dr Lourie said that there had been no mention of the cyst on the referral form from the Patient's GP and that he had never received any documentation in relation to it.[297]
[296] ts 179, 15 February 2023.
[297] ts 179, 15 February 2023.
Dr Lourie's evidence was that a cyst in a breast would have nothing to do with a chiropractor and that massaging a cyst would be totally contraindicated.[298]
[298] ts 180, 15 February 2023.
Dr Lourie was then asked about the payment transaction report for the Clinic on 14 May 2018. Dr Lourie gave evidence that the record shows that the client who preceded the Patient had paid at 12.08 pm and that the Patient had paid at 12.30 pm, being 22 minutes after the previous recorded transaction. His evidence was that this was the last consultation of the morning.[299]
[299] ts 182, 15 February 2023.
Dr Lourie was cross-examined about the length of the consultation with the Patient on 14 May 2018. Specifically, Dr Lourie was asked if the payment transaction report accurately reflected the length of each consultation. Dr Lourie's evidence was that most of the time the payment transaction report would be reflective of the time spent during a consultation. However, he qualified that answer by explaining that the payment transaction record was reflective of the time at which a patient pays rather than being a record of the time at which a consultation ended. He gave evidence that the payment record may not be reflective of the duration of a consultation depending on how long the particular patient took to get to the front desk to pay.[300]
[300] ts 190 – 191, 15 February 2023.
Dr Lourie gave evidence that once he finishes with a patient, he has no idea how long the patient takes to change out of the gown, or whether or not they go to the bathroom before attending the front desk to make payment.[301]
[301] ts 262, 16 February 2023.
Dr Lourie was asked in cross-examination to explain why the payment transaction report for the consultation on 20 March 2018 records the time as only six minutes whereas for the 14 May 2018 it records 22 minutes.[302] Dr Lourie's evidence was that he had done a lot more muscle work on 14 May 2018, which was very unusual, and accounted for the consultation being of a longer duration. Dr Lourie accepted that the assessment process which he undertook on 20 March 2018 and 14 May 2018 were identical but gave evidence that on 20 March 2018, he went on to work on the right fibula and hamstring whereas, on 14 May 2018, he treated the Patient's right shoulder.[303]
[302] ts 263, 16 February 2023.
[303] ts 264, 16 February 2023.
Dr Lourie denied that the reason the appointment on 14 May 2018 was the longest appointment was because he spent a considerable amount of time massaging the patient's right breast.[304]
[304] ts 265, 16 February 2023.
Dr Lourie agreed with the proposition that using conservative figures he saw approximately 200 patients per week, which, working five days a week, amounted to 40 patients per day.[305]
[305] ts 267, 16 February 2023.
Dr Lourie also agreed that he became aware of the Patient's allegations on 26 July 2018.[306]
[306] ts 268, 16 February 2023.
Dr Lourie said he went to Armadale Police Station where he was interrogated by two detectives for two and a half hours. Dr Lourie gave evidence that 'we went through everything we did … and by looking at that file … I could recall every single aspect of that time'. His evidence was:[307]
There is no doubt in my mind. It has been burned into my head, and I will die with this memory. So you cannot say that I have a distant recollection.
[307] ts 268, 16 February 2023.
Dr Lourie was then cross-examined about his knowledge of the patient's cyst in her right breast. Once again, he denied any knowledge of the cyst. He repeated his evidence that a cyst has nothing to do with chiropractic saying, 'it's not to be fooled around with and is clinically irrelevant'. Dr Lourie also gave evidence that the Patient was 'very private, modest and sensitive' and was, therefore, not the kind of person who would have discussed her breast with him and had not done so.[308]
[308] ts 273, 16 February 2023.
Dr Lourie agreed that there would have been no clinical justification for massaging the Patient's breast and that to do so would constitute inappropriate physical contact.[309] He also agreed that the Patient's breast is a sensitive area and if the breast was massaged it would have been inappropriate sexual contact.[310]
[309] ts 274, 16 February 2023.
[310] ts 275, 16 February 2023.
When Dr Lourie was cross-examined about the gown the Patient was wearing, he maintained his evidence that it was physically impossible to expose the entirety of a patient's breast by moving the armhole of the gown across the Patient's breast.[311] Dr Lourie gave evidence that the Clinic has gowns of three different sizes, being children's gowns, average size gowns and larger gowns. He also said that the sizes of the gowns have not changed for 30 years because new gowns are made from the pattern of old gowns.
[311] ts 274, 16 February 2023.
Dr Lourie gave evidence that he thought the gowns were colour coordinated. His evidence was that the receptionist provides a gown to a patient having made an estimate of the patient's size.[312]
[312] ts 281, 16 February 2023.
In re-examination Dr Lourie said that he received legal advice that when interviewed by the police that he had right to silence but he did not rely on it and answered in full the questions put to him by the police.[313] He also said that the focus of the police interview was the consultation on 14 May 2018, and he did his best to bring to mind all of the details he could recall.[314]
[313] ts 287, 16 February 2023.
[314] ts 289, 16 February 2023.
Dr Lourie also said that had the Patient mentioned she had a cyst, he would have included it as a red flag in his notes.[315]
[315] ts 288, 16 February 2023.
With respect to the time of the treatment on 14 May 2018, in reexamination Dr Lourie said that the treatment of the Patient's shoulder took five to seven minutes.[316]
[316] ts 291, 16 February 2023.
Ms McKenzie gave evidence that she had been the chiropractic assistant at the Clinic for just over nine years. She ceased working at the Clinic in January 2022.[317] Ms McKenzie said that the time a patient took to make their way to the reception area after a consultation varied.[318]
[317] ts 294, 16 February 2023.
[318] ts 297, 16 February 2023.
Ms McKenzie gave evidence that she remembered the Patient attending the Clinic on 14 May 2018 because a regular older patient had attended around the same time and that he and the Patient were the last two patients for that shift.[319] Ms McKenzie said she did not remember anything remarkable about the Patient's mood after the consultation.[320]
[319] ts 296, 16 February 2023.
[320] ts 298 – 299, 16 February 2023.
We accept Ms McKenzie's evidence and make findings in accordance with her evidence.
The Board points to a number of matters it says support a finding that Dr Lourie massaged the Patient's right breast for between two and five minutes.
First, the Board says the fact that the consultation of 14 May 2018 was longer than all of the other subsequent consultations support the Board's case that there was sufficient time for Dr Lourie to massage the Patient's right breast for two to five minutes.
We note consistent with the evidence of Dr Lourie and Ms McKenzie that the payment transaction records do not provide a reliable guide as to the length of the consultation. Moreover, Dr Lourie has explained why the consultation was longer than usual, which includes the extra time spent on the Patient's shoulder, the exercises at the end of the consultation and the fact he went to the toilet, washed his hands and provided the Patient with sodium phosphate tablets.
Second, the Board points to the Patient's evidence that she told Dr Lourie prior to 14 May 2018 of the existence of a benign cyst in her right breast. The Board says this information was used by Dr Lourie to provide clinical justification for the massage of the Patient's right breast.
We have already found that we are not satisfied, we can reject Dr Lourie's evidence that he was unaware of the cyst. It follows, therefore, that that evidence has not caused us to reject Dr Lourie's evidence that no breast massage occurred.
We accept Dr Lourie's evidence, which was corroborated by Ms McKenzie, that the time a payment was made by a patient after the previous payment does not establish accurately the length of a consultation. We so find.
We do not accept the Board's submission that Dr Lourie's evidence was not reliable because he could not possibly have had an accurate recollection of the consultation which took place on 14 May 2018 given the number of patients he had seen since that time. We accept Dr Lourie's explanation that his memory was refreshed at a time much closer to 14 May 2018 (i.e. 26 July 2018). We do not discount his account of what occurred at that consultation for the reason advanced by the Board.
We accept Dr Lourie's evidence that it took some time after the Patient's treatment was provided for him to go to the toilet and then obtain the sodium phosphate tablets before the Patient made payment for her consultation and purchase of the sodium phosphate tablets. We so find.
We find that on either version of the consultation there would have been time for Dr Lourie to massage the Patient's breast in the way alleged. The duration of the consultation does not make it more or less likely that Dr Lourie massaged her right breast as she alleges.
To the extent that the Patient's evidence that the fact that Dr Lourie went to the toilet and washed his hands after massaging her breast might be said to support her version of events, we cannot reject Dr Lourie's account of why he did so. His explanation was that he wiped the oil off his hands and went to the toilet because it was the end of the morning shift.
Both parties made submissions as to whether the gown the Patient was wearing made it more or less likely that her right breast could be fully exposed. In the event it could be moved across her chest. As neither party produced the gown the Patient was wearing or one said to be the same, the evidence concerning the gown did not assist us one way or another to resolve Ground 6.
In the end, we are left with the Patient saying that that Dr Lourie massaged her breast and Dr Lourie saying he did not. In this circumstance, bearing in mind:
(1)that we have found that the Patient's evidence is not entirely accurate and reliable;
(2)that Dr Lourie has practised for many years without disciplinary history;
(3)that Dr Lourie is someone others in his profession regard as an ethical and moral practitioner;
(4)the seriousness of the allegation and the seriousness of the likelihood consequence of a finding of professional misconduct of this kind; and
(5)that we have no reason to discount Dr Lourie's denial that the conduct occurred,
we find that we do not feel an actual sense of persuasion that Dr Lourie massaged the Patient's exposed breast during the consultation on 14 May 2018.
Accordingly, we find that the allegation in Ground 6 has not been made out.
Orders
As a consequence of the findings we have set out in our reasons, we make the following orders:
1.The Tribunal finds that the Respondent behaved in a way that constitutes:
(a)unprofessional conduct within the meaning of s 196(1)(b)(ii) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law) in that he:
(i)failed to make adequate and accurate clinical records of his nine consultations with the Patient;
(ii)failed to obtain the Patient's informed consent on 11 September 2017 prior to providing the Patient with chiropractic treatment;
(iii)on 20 November 2015 and 14 September 2017, he touched the Patient's lower abdomen and buttock without her prior consent;
(iv)failed to adequately assess the Patient during the consultations on 20 November 2015, 11 September 2017 and 14 September 2017; and
(v)failed to formulate a management plan or program of care for the Patient.
2.By 24 January 2024, the parties are to lodge and file in the Tribunal an agreed minute of orders programming the matter to hearing as to penalty and costs.
3.If the parties are unable to agree to the terms of the minute of orders referred to in Order 2, they are, by 24 January 2024, each to file their own minute of proposed orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS
Associate to Judge Glancy
20 DECEMBER 2023
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