Chiropractic Board of Australia v Ebtash - [2020] WASAT 86

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION:   CHIROPRACTIC BOARD OF AUSTRALIA and EBTASH [2020] WASAT 86
MEMBER:   JUSTICE PRITCHARD, PRESIDENT
MS P LE MIERE, MEMBER
MR S CARLIN, SENIOR SESSIONAL MEMBER

HEARD:   12 - 20 AUGUST 2019; FURTHER WRITTEN EVIDENCE AND SUBMISSIONS 6, 9 AND 16 SEPTEMBER 2019
DELIVERED          :   31 JULY 2020
FILE NO/S:   VR 48 of 2018
BETWEEN:   CHIROPRACTIC BOARD OF AUSTRALIA
Applicant
AND
SOROUSH EBTASH
Respondent

Catchwords:

Vocational regulation - Health practitioner - Chiropractor - Disciplinary proceedings, conduct only - Allegations of professional misconduct and unsatisfactory professional performance - Orders sought pursuant to s 196(1) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) - Code of conduct for chiropractors - Allegations of inappropriate conduct of a sexual nature, or conduct clinically inappropriate and below the standard reasonably expected of a chiropractor with an equivalent level of training or experience committed against female patients - Allegations that the respondent's clinical knowledge, skills and judgment were below the standard reasonably expected of a chiropractor of equivalent training or experience - Allegations of failing to keep adequate clinical notes - Whether alleged conduct occurred - Whether professional misconduct or unprofessional conduct - Turns on own facts

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA)
Health Practitioner Regulation National Law Regulation 2018 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Findings of professional misconduct made
Finding of unsatisfactory professional performance made

Category: B

Representation:

Counsel:

Applicant	:	Mr S Vandongen & Ms M Naylor
Respondent	:	Mr AE Eyers

Solicitors:

Applicant	:	Tottle Partners
Respondent	:	Anthony Eyers

Case(s) referred to in decision:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Briginshaw v Briginshaw (1938) 60 CLR 336
Commissioner for Consumer Protection v Carey [2014] WASCA 7
Johnson v Ramsden [2019] WASC 84
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170
Panegyres v Medical Board of Australia [2020] WASCA 58
R v Harkin (1989) 38 A Crim R 296
Vella v Commissioner of Police (NSW) [2019] HCA 38; 93 ALJR 1236

TABLE OF CONTENTS

Introduction

Structure of the reasons

1. Overview of the Board's case against Dr Ebtash, his response, the legislative framework for the case and the relevance of consent

(a) Overview of the Board's case and Dr Ebtash's response

(b) The witnesses

(d) The legislative framework for these proceedings

(e) The standard of proof which applies in proceedings of this kind

(f) Relevance of consent

2. Findings of fact

(a) The circumstances leading to Dr Ebtash's provision of chiropractic treatment to the cast members

(i) Dr Ebtash's qualifications and practice

(b) Alleged conduct in relation to JL (ground 2 of the Application)

(i) The Board's allegations and Dr Ebtash's response

(ii) How JL came to be treated by Dr Ebtash on the First Occasion

(iii) The injuries JL reported to Dr Ebtash

(iv) The alleged touching of JL's breast

(v) The alleged touching of JL's buttocks

(vi) The alleged touching of JL's genitals

(vii) JL's complaints to other cast members

(viii) Notes made by Dr Ebtash

(i) The Board's allegations and Dr Ebtash's response

(ii) When and where LN's treatment took place

(iii) The injuries and soreness LN reported to Dr Ebtash

(iv) Where LN was treated in the Treatment Room

(v) LN's allegation that Dr Ebtash touched her labia

(vi) The alleged touching of LN's breasts

(vii) LN's reaction to Dr Ebtash's conduct

(viii) Events after LN's treatment

(ix) Did LN consent to being touched on her labia and breasts by Dr Ebtash?

(x) Notes made by Dr Ebtash

(xi) Was there any clinical justification for Dr Ebtash to touch LN on her labia or breasts?

(xii) Findings as to LN's credibility and reliability

(xiii) Findings as to SN's credibility and reliability

(xiv) Findings as to Mr Maddison's credibility and reliability

(xv) Dr Ebtash's credibility and reliability

(d) Alleged conduct in relation to MT (ground 4 of the Application)

(i) The Board's allegations and Dr Ebtash's response

(ii) The circumstances leading up to Dr Ebtash's treatment of MT

(iii) MT's initial interaction with Dr Ebtash

(iv) The injuries MT reported to Dr Ebtash

(v) Treatment of MT's elbow

(vi) Dr Ebtash's alleged exposure of MT's pubic bone by pulling down her clothing

(vii) The alleged touching near the entrance to MT's vagina

(viii) Other aspects of MT's treatment

(ix) MT's reaction to Dr Ebtash's conduct

(x) MT's complaints to others

(xi) Did MT consent to being touched by Dr Ebtash in the manner alleged?

(xii) Was there any clinical justification for Dr Ebtash's conduct?

(xiii) The notes made by Dr Ebtash in relation to his treatment of MT

(xiv) Findings as to credibility and reliability

(xv) Mr Maddison's credibility and reliability

(xvi) Dr Ebtash's credibility

(e) Alleged conduct in relation to MS (ground 5 of the Application)

(i) The Board's allegations and Dr Ebtash's response

(ii) Dr Ebtash's alleged conduct on the First Occasion

(iii) Dr Ebtash's alleged conduct on the Second Occasion

Consent

(iv) Our findings as to the credibility and reliability of MS and Mr Maddison

(f) Discussion between the cast members about Dr Ebtash's conduct

(i) Evidence as to whether the female cast members discussed their treatment after the First Occasion but prior to the Second Occasion

(ii) Evidence as to whether the female cast members discussed their treatment after the Second Occasion, prior to making complaints to the police

(iii) Evidence as to whether the female cast members discussed their treatment in advance of the hearing

(g) Dr Ebtash's response to concerns expressed on behalf of the cast members about his inappropriate conduct

(h) Alleged conduct in relation to KM (ground 1 of the Application)

(i) The Board's allegations and Dr Ebtash's response

(ii) The evidence

(iii) KM's reaction to Dr Ebtash's conduct

(iv) How KM came to report her allegation that Dr Ebtash touched her inappropriately

(v) Was there a clinical justification for Dr Ebtash to touch KM's breasts?

(vi) Did KM consent to being touched on her breasts?

(vii) KM's credibility and reliability

(vii) Our findings in relation to Dr Ebtash's credibility and reliability

(i) Dr Ebtash's credibility

(j) Dr Ebtash's contention that each complainant's evidence was contaminated by their knowledge of the other complainants' allegations

(k) Tendency and coincidence reasoning

(l) Summary of factual findings in relation to grounds 1 to 5 of the Application

(i) Ground 1: Conduct in relation to KM

(ii) Ground 2: Conduct in relation to JL

(iii) Ground 3: Conduct in relation to LN

(iv) Ground 4: Conduct in relation to MT

(v) Ground 5: Conduct in relation to MS

3. Characterisation of Dr Ebtash's conduct grounds 1 to 5 of the Application

(a) Did Dr Ebtash's conduct, as established, constitute one, or more than one, instance of unprofessional conduct?

(b) What level of training or experience did Dr Ebtash have?

(d) Conclusion in relation to whether the conduct found fell within the definition of unprofessional conduct

(e) Conclusion as to professional misconduct: Did the various instances of Dr Ebtash's conduct, considered individually, or taken together, amount to conduct that was substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience?

4. Ground 6 of the Application - alleged unsatisfactory professional performance

(a) The allegations and Dr Ebtash's response

(b) Requirements for unsatisfactory professional performance

(i) What is the practitioner's level of training or experience?

(ii) What standard of knowledge, skill or judgment, or care, is reasonably expected of a health practitioner of an equivalent level of training or experience to the practitioner?

(iii) Was Dr Ebtash's knowledge, skill or judgment, or his exercise of care, below the standard reasonably expected of a practitioner of an equivalent level of training or experience?

(d) Alleged failure to treat the patient in an area which preserved their confidentiality and privacy

(e) Alleged inadequate communication in relation to treatment proposed, alternatives to treatment and material risks of treatment

(f) Alleged failure to treat each patient with respect

(g) Alleged failure to undertake a neurological examination in light of MS's reported symptoms - paragraph 6.3 of the Application

(h) Was Dr Ebtash's knowledge, skill or judgment in his treatment of KM below the standard applicable to practitioners of an equivalent level of training and experience - paragraph 6.4 of the Application

(i) Conclusion in relation to ground 6 of the Application

5. Ground 7 of the Application - alleged unsatisfactory professional performance in relation to the clinical notes made by Dr Ebtash in respect of KM, JL, LN, MT, MS, SN, GR and SS

(a) The allegations and Dr Ebtash's response

(b) Were the Notes below the standard reasonably expected of a chiropractor of an equivalent level of training or experience, and thus an instance of unsatisfactory professional performance?

(i) Dr Ebtash's level of training and experience

(ii) What standard of knowledge, skill or judgment, or care, in relation to the preparation of clinical notes, is reasonably expected of a health practitioner of an equivalent level of training or experience to the practitioner?

6. The orders which should be made

REASONS FOR DECISION OF THE TRIBUNAL

Introduction

Dr Ebtash is a chiropractor who has been registered as a chiropractor since 2004.[1] He operates a business called the Wellness Place.
[1] Exhibit 1.4; Respondent's Written Outline of Opening Submissions [25].
The Chiropractic Board of Australia (Board) seeks an order or orders, pursuant to s 196(1)(b) of the Health Practitioner Regulation National Law (National Law)[2] that Dr Ebtash has behaved in a way that constitutes professional misconduct, or alternatively unprofessional conduct or unsatisfactory professional performance.
[2] The National Law is set out in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (HPRNLWA Act), and applies as a law of Western Australia: s 4(1) of the HPRNLWA Act.
There are three planks to the Board's case against Dr Ebtash. The first, and most serious, comprises allegations set out in grounds 1 to 5 of the Board's Substituted Application (Application) that in the course of chiropractic consultations with five female patients (complainants), Dr Ebtash engaged in conduct which was either inappropriate conduct of a sexual nature, or clinically inappropriate and below the standard reasonably expected of a chiropractor of an equivalent level of training or experience. In summary, the inappropriate conduct is said to have involved either touching the complainants' breasts (through their clothing) or their genitals (through their clothing), touching the complainants' body in close proximity to their genitals, or in one case, leaning a complainant back into Dr Ebtash's body so that the front of his pelvis and groin were pressing against her buttocks (through her clothing). The Board alleges that Dr Ebtash failed to obtain the consent of each complainant to the particular touching alleged. The Board also alleges that there was no proper clinical justification for Dr Ebtash to touch each complainant in this way. The Board contends that in so conducting himself, Dr Ebtash acted in breach of s 9.1 and s 9.2 of the Board's Code of Conduct for Chiropractors (Code).
Dr Ebtash denies that he touched the complainants in the manner alleged by the Board in grounds 1 to 5 of its Application, either in a manner amounting to inappropriate sexual conduct, or in an inappropriate clinical manner which was below the professional standard required of him. Dr Ebtash maintains that he obtained proper consent to touch the complainants in the manner in which he in fact touched them.[3]
[3] ts 32.
The second plank of the Board's case (ground 6 of the Application) is that in his conduct with respect to four of the complainants, Dr Ebtash's clinical knowledge, skills and judgment were below the standard reasonably expected of a chiropractor of equivalent training or experience, and that his conduct constituted a breach of s 2.1(a), s 1(d), s 3.2(a), s 3.3(d), s 3.3(e) and/or s 3.3(g) of the Code.
Dr Ebtash initially denied that his clinical knowledge, skills and judgment were below the standard reasonably expected of a chiropractor of equivalent training or experience, but in the course of the hearing his counsel acknowledged that at least to the extent that Dr Ebtash admitted some of the breaches of the Code alleged by the Board, he did not dispute that his clinical knowledge, skills and judgment were below the required standard.
The third plank of the Board's case (ground 7 of the Application) is that in relation to eight patients (the five complainants, and three male patients) Dr Ebtash's clinical notes were below the standard reasonably expected of a chiropractor of an equivalent level of training or experience, and that in failing to keep adequate notes, Dr Ebtash was in breach of s 2.2(d), s 9.4(a) and s 9.4(d) of the Code and the Board's 'Guidelines - Clinical Record Keeping for Practitioners' (Guidelines).
Initially, Dr Ebtash denied the allegations in ground 7 of the Board's Application,[4] but in the course of the hearing, counsel for Dr Ebtash informed the Tribunal that those allegations were accepted.
[4] Substituted Response par 7.1 and 7.2.
Four of the complainants, and four male patients (collectively, cast members), who were treated by Dr Ebtash, were members of the cast of a show (Show) which was running at a venue in Perth (Venue). Prior to the hearing the Tribunal ordered that the names of the patients involved, images of the relevant patients, or any information or image identifying any organisation for which the relevant patients work, not be disclosed, distributed or published in any way.[5] In order to ensure that the information in question is not able to be deduced, the names of the cast members, the name of the Venue at which the Show was performed, and the dates on which those patients were treated (the First Occasion and Second Occasion) have all been anonymised in these reasons, as have identifying details in relation to the remaining complainant. A list of the anonymised references which have been used is set out in the Appendix to these reasons, publication of which will be suppressed by a further order of the Tribunal. The four female cast members (JL, LN, MS and MT), the male cast members (SN, GR, SS and HJ) and the remaining female complainant the subject of these proceedings (KM) are referred to in these reasons by those initials and without titles. No disrespect is intended.
[5] Order made by Deputy President Judge Sharp on 20 August 2018, and varied by Acting President Judge Sharp on 18 February 2019, pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA).
For the reasons which follow, we are satisfied that the Board has proved the allegations in grounds 1 to 5 and 6 to 7 of the Application, and we find that Dr Ebtash has engaged in conduct that constitutes professional misconduct, and unsatisfactory professional performance, respectively, for the purposes of the National Law.
The Tribunal will now proceed to hear and determine the penalty which should be imposed in light of those findings.

Structure of the reasons

In these reasons for decision, we deal with the following matters:
1.Overview of the Board's case against Dr Ebtash, his response, the legislative framework for the case and the relevance of consent
2.Findings of fact:
a.The circumstances leading to Dr Ebtash's provision of chiropractic treatment to the cast members
b.Alleged conduct in relation to JL (ground 2 of the Application)
c.Alleged conduct in relation to LN (ground 3 of the Application)
d.Alleged conduct in relation to MT (ground 4 of the Application)
e.Alleged conduct in relation to MS (ground 5 of the Application)
f.Discussion between the cast members about Dr Ebtash's conduct
g.Dr Ebtash's response to concerns expressed on behalf of the cast members about his inappropriate conduct
h.Alleged conduct in relation to KM (ground 1 of the Application)
i.Dr Ebtash's credibility
j.Dr Ebtash's contention that each complainant's evidence was contaminated by their knowledge of the other complainants' allegations
k.Tendency and coincidence reasoning
l.Summary of factual findings in relation to grounds 1 to 5 of the Application
i.Ground 1: Conduct in relation to KM
ii.Ground 2: Conduct in relation to JL
iii.Ground 3: Conduct in relation to LN
iv.Ground 4: Conduct in relation to MT
v.Ground 5: Conduct in relation to MS
3.Characterisation of Dr Ebtash's conduct grounds 1 to 5 of the Application
4.Ground 6 of the Application - alleged unsatisfactory professional performance
a.The allegations and Dr Ebtash's response
b.Requirements for unsatisfactory professional performance
c.Alleged failure to assess each patient and to formulate a management plan
d.Alleged failure to treat the patient in an area which preserved their confidentiality and privacy
e.Alleged inadequate communication in relation to treatment proposed, alternatives to treatment and material risks of treatment
f.Alleged failure to treat each patient with respect
g.Alleged failure to undertake a neurological examination in light of MS's reported symptoms - paragraph 6.3 of the Application
h.Was Dr Ebtash's knowledge, skill or judgment in his treatment of KM below the standard applicable to practitioners of an equivalent level of training and experience - paragraph 6.4 of the Application
i.Conclusion in relation to ground 6 of the Application
5.Ground 7 of the Application - alleged unsatisfactory professional performance in relation to the clinical notes made by Dr Ebtash in respect of KM, JL, LN, MT, MS, SN, GR and SS
a.The allegations and Dr Ebtash's response
b.Were the Notes below the standard reasonably expected of a chiropractor of an equivalent level of training or experience, and thus an instance of unsatisfactory professional conduct?
i.Dr Ebtash's level of training and experience
ii.What standard of knowledge, skill or judgment, or care, in relation to the preparation of clinical notes, is reasonably expected of a health practitioner of an equivalent level of training or experience to the practitioner?
6.The orders which should be made

Overview of the Board's case against Dr Ebtash, his response, the legislative framework for the case and the relevance of consent

(a) Overview of the Board's case and Dr Ebtash's response

There is no dispute that at around the time of the First Occasion and Second Occasion, each of the cast members was performing in the Show. The Show appears to have involved elements of burlesque and cabaret, and the cast members' performances involved some athleticism.
There is no dispute that Dr Ebtash offered to provide free chiropractic services to members of the cast. The Board says that that offer was made after Dr Ebtash saw the Show. The Board contends that Dr Ebtash's offer of complimentary treatment was motivated by his sexual interest in the cast members. Dr Ebtash says he offered to provide chiropractic services for free at the suggestion of his publicist, and he made that offer for professional and commercial reasons, with a view to promoting his business.[6]
[6] Respondent's Written Opening Submissions [6].
Dr Ebtash says that his publicist arranged a meeting with CA, who was a representative of the Show, to discuss the offer of complimentary chiropractic treatment for cast members. That meeting was held on the First Occasion.
Immediately after that meeting, on the First Occasion, Dr Ebtash went to the Venue and provided chiropractic treatment to those members of the cast who wished to avail themselves of that opportunity for treatment. The chiropractic treatments on the First Occasion were conducted in a room on the first floor of the Venue known as the Green Room (Green Room).
Two of the female cast members - MS and JL - received chiropractic treatment from Dr Ebtash on the First Occasion, as did GR.
While MS and JL were being treated by Dr Ebtash on the First Occasion, other cast members - namely, GR and HJ - were present in the Green Room.
Dr Ebtash returned to the Venue a few days later, on the Second Occasion, to provide further chiropractic treatments for cast members. On that occasion, Dr Ebtash was accompanied by Mr Mark Maddison, who was a friend and colleague of his. At that time Mr Maddison was a personal trainer who was studying for his Master of Physiotherapy degree.[7] (By the time of the hearing, Mr Maddison was working as a contractor at the Wellness Place.[8])
[7] ts 612-613.
[8] ts 613.
The chiropractic treatments provided on the Second Occasion were undertaken in a large room on the second floor of the Venue[9] which was ordinarily used by the cast members as a rehearsal space, and was referred to by some of them in their evidence as the rehearsal room or the chorus room.[10] (In these reasons, we refer to that room as the Treatment Room.)
[9] ts 152.
[10] ts 51,52,136.
LN, MS and MT were treated by Dr Ebtash on the Second Occasion. Three of the male members of the cast - SN, HJ and SS - also received treatment from Dr Ebtash on the Second Occasion.
On the Second Occasion, Mr Maddison was present in the Treatment Room while Dr Ebtash treated LN, MS and MT. SS, HJ and SN were also present at various times while Dr Ebtash treated the female cast members.
Shortly after the Second Occasion, JL, LN, MS and MT decided to report Dr Ebtash's conduct to the police. No criminal charges have ever been pursued against him.[11]
[11] Respondent's Written Opening Submissions [8].
After the female cast members made their complaints to the police, KM reported that Dr Ebtash had engaged in inappropriate conduct of a sexual nature with respect to her. KM is a police officer. The Board's case is that in the course of her work as a police officer, KM happened by chance to hear of the reports made by the female cast members about Dr Ebtash's conduct. After hearing about their reports, KM made a complaint to the police that Dr Ebtash had engaged in inappropriate conduct of a sexual nature in the course of treating her at the Wellness Place in Bassendean about 12 months before. At the time of that alleged inappropriate conduct, KM was a patient of Dr Sean Laurie, a chiropractor who was a colleague of Dr Ebtash and had a consulting room at the Wellness Place. Dr Laurie had asked Dr Ebtash to assist in administering a chiropractic technique to treat vertigo, from which KM was then suffering. KM's complaint was that Dr Ebtash engaged in inappropriate conduct of a sexual nature on one of the occasions on which he treated her for her vertigo. Before making her complaint to the police, KM had not reported that incident to anyone.
The Board's case is that during the treatments conducted on JL, LN, MS and MT, Dr Ebtash engaged in inappropriate conduct of a sexual nature, or alternatively conduct which was clinically inappropriate and below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.
Similarly, in respect of KM, the Board alleges that in a consultation with KM in or about late October to early November 2015, at the Wellness Place in Bassendean, Dr Ebtash engaged in conduct which was either inappropriate conduct of a sexual nature, or clinically inappropriate and below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.
The Board alleges that in a number of other respects, in his treatment of the female cast members, Dr Ebtash's clinical knowledge, skills or judgment were below the standard reasonably expected of a chiropractor of equivalent training or experience.
The Board alleges that the clinical notes Dr Ebtash made in respect of his treatment of KM, JL, LN, MS, MT, SN, GR and SS, were below the standard reasonably expected of a chiropractor of an equivalent level of training or experience, and that his failure to maintain adequate clinical notes constitutes a breach of the Code and the Guidelines.[12] Dr Ebtash admits those allegations.
[12] It was clear that the reference to clinical notes in ground 7 was a reference to both the Assessment Notes and the Clinical Notes (as we have described them): ts 739; 1-20.
This is a convenient point to mention that throughout these reasons, we refer to various notes made by Dr Ebtash of the complainants' injuries or treatment. When we refer to the Patient Forms we mean forms completed by some of the complainants prior to their treatment in which they noted areas of injury or soreness. When we refer to the Assessment Notes we mean notes made by Dr Ebtash on a form entitled 'Sports Club Assessment / Screening / Treatment'. When we refer to Clinical Notes we mean more detailed notes made by Dr Ebtash some time after the treatment of each of the complainants.
Dr Ebtash's response is that the alleged inappropriate conduct of a sexual nature simply did not occur. Consequently, the question whether that particular conduct was clinically appropriate was not actively disputed by Dr Ebtash.
On Dr Ebtash's case, no question arises of whether he obtained each complainant's consent to his touching them in the inappropriate manner that they alleged, because no touching of that kind occurred.[13] Dr Ebtash maintains that he obtained the proper and fully informed consent of each complainant to all aspects of the assessment and treatment he actually conducted on each of them.
[13] Respondent's Written Opening Submissions [31]-[33].
Dr Ebtash says that the evidence of the four female cast members is not credible or reliable. He says that other people were present in the Green Room and the Treatment Room at the time when the alleged conduct occurred, and none of them saw the alleged conduct. Dr Ebtash notes that the female cast members did not complain to him, or to anyone else in the Green Room or the Treatment Room, at the time and the four complainants did not complain to the police until over a week after the Second Occasion. Dr Ebtash also contends that the credibility and reliability of the evidence of each of the female cast members has been compromised because they discussed their allegations about his conduct amongst themselves. He contends that there was a real prospect that their evidence has been subconsciously contaminated as a result of those discussions. He does not contend that the female cast members deliberately concocted false evidence.
Dr Ebtash also says that KM's evidence should not be accepted, and notes that KM made no contemporary complaint at all, and only made a complaint about his conduct many months later, after hearing about the complaints made by the female cast members. Dr Ebtash also notes that KM continued to see him for chiropractic treatment, and to receive treatment from her usual treating chiropractor at the Wellness Place, Dr Laurie, after the alleged conduct was said to have occurred.
Dr Ebtash also relies on evidence as to his good character, which was given by witnesses who have known him for many years. Dr Ebtash relies on evidence from Dr Nadine Perlen (a general practitioner) and Ms Maria Furina (the former office manager at the Wellness Place). He points to the fact that he has practised as a chiropractor since 2003, without any finding of professional misconduct, or any complaint from the patients he has treated at his business. He says he has had a professional interest in treating elite sportspeople, and has treated many of them, without complaint, over the course of his career.

(b) The witnesses

Evidence in support of the Board's case was given by each of the complainants, by CA and by SN. Dr Ebtash gave evidence, as did Mr Maddison.
Given that the credibility of the witnesses was central to the case, the Tribunal ordered that each of the witnesses should give the totality of their evidence orally (rather than by the tender of a witness statement as their evidence in chief followed by cross-examination).
JL, LN, MS, MT, SN and CA each gave their evidence by video link from other locations, outside Western Australia, where they were living. The quality of the video link in each case was excellent. Occasionally there was a slight delay between the visual and audio inputs, but when that occurred, the Tribunal asked the witness to pause in giving their evidence, while an adjustment was made by technicians to synchronise the visual and audio inputs. The quality of the video link permitted the Tribunal to closely and clearly see the witnesses deliver their evidence.
The evidence of Dr Laurie, Dr Perlen and Ms Furina was received by the tender of their witness statements, and they were not required for crossexamination.
We discuss our findings in relation to the credibility and reliability of the key witnesses - JL, LN, MS, MT, KM, Mr Maddison and Dr Ebtash - in detail below. In so far as the other witnesses are concerned, and save to the extent that we identify below any particular part of their evidence which we are unable to accept, we found those witnesses to be credible and reliable, and we accept their evidence.
Expert evidence was also given by Dr Stanley Innes and Dr Colin Crawford, both of whom have many years' experience in chiropractic practice and in teaching chiropractic at the tertiary level. Their expertise was not in dispute. Each provided a written report,[14] and a supplementary report.[15] In addition, after conferral they filed a joint report indicating the areas of their agreement and disagreement.[16] They gave evidence concurrently in the course of the hearing.

(c) Documentary evidence

[14] Exhibit 1.18 (Dr Innes) and Exhibit 1.20 (Dr Crawford).

[15] Exhibit 2.7 (Dr Innes) and Exhibit 2.8 (Dr Crawford).

[16] Exhibit 16.

A number of documents, and some video recordings, were tendered in evidence. One of the videos[17] included footage of the Show which ran in Perth.[18] The other video was prepared by JL and in it she demonstrated how she says Dr Ebtash touched her.[19] We discuss the video recordings later in these reasons, in the course of assessing the totality of the evidence to which those video recordings relate.
[17] Exhibit 2.5.
[18] Exhibit 2.5; ts 327-328.
[19] Exhibit 2.3.
The only dispute in relation to the authenticity of any of the documents concerned the Clinical Notes Dr Ebtash claimed were made very shortly after seeing the female cast members, especially on the Second Occasion. The Board contends that those notes were made some time later, with a view to falsely corroborating Dr Ebtash's version of events, and thus that the Clinical Notes do not constitute an accurate record of Dr Ebtash's treatment or conduct in relation to the female cast members. For the reasons explained below we also do not regard the Assessment Notes constituting an accurate or comprehensive record of Dr Ebtash's treatment of LN, MT or MS. We discuss those issues in more below at [226] [242], [385] [415], and [598] [611].
Leaving to one side the Assessment Notes and Clinical Notes, there was no basis to doubt the authenticity of the documentary evidence. Apart from the Assessment Notes and the Clinical Notes, and the written responses sent to the Board by Dr Ebtash, or on his behalf, in the course of the Board's investigation, which were also in evidence, when we rely in these reasons on evidence drawn from any of the documentary evidence as the basis for a finding of fact, we do so because we find that evidence to be reliable.

(d) The legislative framework for these proceedings

Under the National Law, the Board[20] is obliged to refer a matter about a registered health practitioner to the Tribunal[21] if the Board reasonably believes that the practitioner has behaved in a way that constitutes professional misconduct, and that behaviour occurred in Western Australia.[22]
[20] The Board is a National Board for the purposes of the National Law: see reg 4 of the Health Practitioner Regulation National Law Regulation 2018 (WA) by which the Board is continued as a National Health Practitioner Board for the chiropractic profession.
[21] The Tribunal is a responsible tribunal for Western Australia for the purpose of the National Law: see HPRNLWA Act, s 6.
[22] National Law s 193(1) and s 193(2).
After hearing a matter about a registered health practitioner, the Tribunal may make one or more of a number of decisions set out in s 196(1) of the National Law. Relevantly for present purposes, these include that the practitioner has behaved in a way that constitutes unsatisfactory professional performance, that constitutes unprofessional conduct, or that constitutes professional misconduct.[23] If the Tribunal makes one of those findings, it may decide to take any one or more of the steps set out in s 196(2) of the National Law.
[23] National Law s 196(1)(b).
Under the National Law, 'unsatisfactory professional performance' means:[24]
[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.
[24] National Law s 5.
'Unprofessional conduct' means:[25]
[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 …
The definition sets out specific examples of conduct (set out in par (a) - (h)) which constitute unprofessional conduct. These include, by way of example, contraventions of particular laws, including the National Law;[26] convictions for offences the nature of which may affect the practitioner's suitability to practise in the profession;[27] and accepting a benefit as an inducement or reward for referring another person to a health service provider.[28] The conduct set out in those paragraphs is clearly not intended to be exhaustive of the conduct which constitutes unprofessional conduct. If the Tribunal finds that conduct of a practitioner falls within one of the categories in par (a) - (h) of the definition, that conduct is necessarily unprofessional conduct, and it is not necessary for the Tribunal to also be satisfied that the conduct constitutes professional conduct that is of a lesser standard than that which might reasonably be expected of the practitioner by his or her professional peers.[29]
[25] National Law s 5.
[26] Par (a) of the definition of 'unprofessional conduct'.
[27] Par (c) of the definition of 'unprofessional conduct'.
[28] Par (f) of the definition of 'unprofessional conduct'.
[29] Panegyres v Medical Board of Australia [2020] WASCA 58 at [147]-[148] (Vaughan JA, Buss P and Murphy JA agreeing on this point).
Finally, 'professional misconduct' is defined in the National Law in the following way:[30]
[P]rofessional misconduct, of a registered health practitioner, 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.
[30] National Law s 5.
That definition is an inclusive one, and does not contain an exhaustive statement of what may constitute professional misconduct.[31]
[31] Panegyres v Medical Board of Australia [2020] WASCA 58 at [149] (Vaughan JA, Buss P and Murphy JA agreeing).
In Panegyres v Medical Board of Australia, Vaughan JA (with whom Buss P and Murphy JA agreed on this point) explained the operation of the definition of 'professional misconduct' in the National Law in the following way:[32]
[32] Panegyres v Medical Board of Australia [2020] WASCA 58 at [150]-[157].
As so defined 'professional misconduct' has both a performance component (par (a) and par (b)) and a conduct component (par (c)). … It should also be noted that there is a difference between pars (a) and (b) of the non-exhaustive definition of 'professional misconduct' in s 5. Paragraph (a) is concerned with a single instance of unprofessional conduct; par (b) is concerned with more than one instance of unprofessional conduct, ie multiple instances. ...
Under pars (a) and (b) of the definition of 'professional misconduct', there is no category of unprofessional conduct which is incapable, depending on the circumstances, of giving rise to professional misconduct.
It follows from the non-exhaustive nature of its definition that the concept of professional misconduct is wider than that which is provided for in pars (a) to (c). 'Professional misconduct' under the National Law can include conduct which does not fall within any of pars (a), (b) or (c) in the definition; for example, conduct which was infamous conduct in any professional respect in the sense of being conduct that would be reasonably regarded as disgraceful or dishonourable by a practitioner's professional brethren of good repute and competency would be professional misconduct. …
A finding of professional misconduct under pars (a) or (b) of the s 5 definition 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 or 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.
Some indication of what is required before conduct constituting unprofessional conduct will be classified as professional misconduct because it is conduct that is 'substantially below' the requisite standard is provided by par (c) of the definition of professional misconduct. Paragraph (c) is relevant as it provides part of the context in which pars (a) and (b) are to be construed. Paragraph (c) of the inclusive definition 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.
Accordingly, for conduct to be 'substantially below' the requisite standard it ought to reflect a corresponding degree of serious departure from the standard reasonably expected of a practitioner of an equivalent level of training or experience. That is not to suggest that conduct is only substantially below the relevant standard where the conduct is inconsistent with the practitioner being a fit and proper person to hold registration. That approach would leave pars (a) and (b) without an independent scope of operation. The relevance of referring to par (c) is to acknowledge the gravity of a finding of professional misconduct - something that is properly taken into account in exercising the evaluative judgement required by pars (a)'s and (b)'s criterion of unprofessional conduct 'substantially below' the appropriate standard. (footnotes omitted)

Under the National Law, a National Board may develop and approve codes and guidelines to provide guidance to the health practitioners it registers and about other matters relevant to the exercise of its functions.[33] The Board made the Code and the Guidelines in the exercise of that power.[34]
[33] National Law s 39.
[34] Exhibit 1.1 p2; Exhibit 1.2 p32.
A code or guideline approved by a National Board is admissible in proceedings under the National Law against a health practitioner in a profession for which the Board is established, as evidence of what constitutes appropriate professional conduct or practice for that health profession.[35] Copies of the Code and the Guidelines were in evidence.[36] Relevant provisions of the Code and the Guidelines are discussed in the course of the reasons.
[35] National Law s 41.
[36] Exhibit 1.1, Exhibit 1.2.
In Panegyres, Buss P and Murphy JA referred to the Code of Conduct made by the Medical Board, which was relevant in that case, and said:[37]
As Vaughan JA has also observed, there are parts of the Conduct Code that are more aspirational than standard setting. For example, good medical practice is said to involve being considerate to those close to the patient and respectful of their role. It cannot be assumed that any departure from the conduct or practice referred to in the Conduct Code will in all cases amount to conduct to which consequences attach under s 196 of the National Law.
Ultimately, in disciplinary proceedings against a medical practitioner, the question is not whether the impugned conduct is in 'breach' of the Conduct Code. It is whether the conduct, as found, is behaviour on the part of a practitioner that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.
[37] Panegyres v Medical Board of Australia [2020] WASCA 58 at [17-18].
Those observations apply equally in relation to the Code and to the Guidelines in the present case, breaches of which are said by the Board to constitute unprofessional conduct by Dr Ebtash.

(e) The standard of proof which applies in proceedings of this kind

The Board bears the onus of proving its case against Dr Ebtash. There was no dispute that the civil standard of proof applies. However, the allegations against Dr Ebtash are very serious. That is especially so in the case of the Board's allegations of inappropriate conduct of a sexual nature, which are similar in nature to allegations of unlawful indecent assault. The seriousness of the allegations is such that cogent evidence will be required to establish the facts on which those allegations depend.[38] Satisfaction that such serious conduct as has been alleged here has been proved will not be achieved by inexact proofs, indefinite testimony, or indirect inferences.[39]

(f) Relevance of consent

[38] Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J); and cf Vella v Commissioner of Police (NSW) [2019] HCA 38; 93 ALJR 1236 at [42] (Bell, Keane, Nettle and Edelman JJ) in relation to proof of facts to establish unlawful conduct.

[39] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ); Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

This is a convenient point to mention the relevance of the question of consent by the complainants to treatment by Dr Ebtash, which arises in relation to a number of grounds of the Application.
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.[40] 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 in the interests of the protection of the public. The law concerning consent, or informed consent, to medical treatment, 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.[41] Consequently, it is important to clearly identify the relevance and requirements of consent in the particular context in which it arises.
[40] See, eg, Rogers v Whitaker (1992) 175 CLR 479.
[41] See, eg, the discussion in White v Johnston [2015] NSWCA 18 at [53]-[130] (Leeming JA); and Dean v Phung [2012] NSWCA 223 at [48]-[67] (Basten JA).
As part of its case, the Board alleges that Dr Ebtash failed to obtain consent from each complainant to his treatment or touching of them. As we understood it, the issue of consent arises in two ways on the Board's case.
First, in grounds 1 to 5, the Board alleges that Dr Ebtash failed to obtain the consent of each complainant to the alleged inappropriate conduct of a sexual nature. We understood that the absence of consent was advanced by the Board for the purpose of establishing the sexual nature of the conduct, including that Dr Ebtash did not have a clinical justification for his conduct in each case. In that respect, the Board alleges that Dr Ebtash failed to inform each complainant, before commencing treatment, that he intended to, or might, touch their breasts, genitals, or mons pubis in close proximity to their genitals, or in MT's case, that he intended to, or might, retract her pants to expose her mons pubis; that he did not explain why he intended to, or might, do so; and that he did not seek permission to do so, before the touching occurred. Dr Ebtash does not contend that the alleged inappropriate touching (which he denies occurred) was clinically justified. In the factual context of each of grounds 1 to 5 of the Application, the question of consent thus largely concerns whether each complainant was told of the proposed conduct beforehand, and gave her permission for it to occur, rather than whether the consent expressly or impliedly given by each complainant to being treated by Dr Ebtash, either generally, or for any specific injury, constituted consent to the alleged inappropriate touching.
Secondly, Dr Ebtash's alleged failure to obtain consent from his patients is the basis for one of the allegations in ground 6, namely that Dr Ebtash failed to comply with the requirements of sections 3.3(d), (e) and (g) of the Code with the result that his knowledge, skill or judgment, or exercise of care, was below the standard reasonably expected of a practitioner of equal training and experience. As we discuss below, those sections in the Code require chiropractors to inform patients of the nature and relevance of all aspects of their clinical care, to discuss with them their condition and other available health care options, and to ensure that patients are informed of the material risks associated with any part of a proposed management plan.
While those requirements of the Code might be referred to, in shorthand, as a requirement to obtain 'informed consent' to treatment, the question is whether those requirements of the Code were met, rather than whether Dr Ebtash obtained consent (or informed consent) of the content or quality required by the law for other purposes.
Finally, in this case, the Board accepts (and Dr Ebtash agrees) that the Board bears the onus of proving the absence of consent. We have proceeded on that basis.

Findings of fact

(a) The circumstances leading to Dr Ebtash's provision of chiropractic treatment to the cast members

Dr Ebtash's qualifications and practice

Dr Ebtash qualified as a chiropractor in 2003. He completed a Bachelor of Clinical Science and a Bachelor of Chiropractic Science with honours at RMIT in Melbourne. He also has a post graduate qualification in Sports Chiropractic.[42]
[42] ts 438-439.
In about 2005 or 2006 he started up a small chiropractic practice in Bassendean, and not long after that he moved into larger premises nearby to establish a business called the Wellness Place.[43] He continues to practice from that location in Bassendean. In addition, in about 2013, Dr Ebtash established a second premises for the Wellness Place, which operates out of a single consulting room at the Next Generation Health Club in Kings Park.[44]
[43] ts 439.
[44] ts 441.
Dr Ebtash described himself as the sole director and the principal of the Wellness Place practice.[45] The Wellness Place is a multidisciplinary health centre, comprising a total of 16 practitioners consulting from there, practising in areas such as chiropractic, physiotherapy, occupational therapy, massage, pilates, yoga, nutrition, and functional medicine.[46]
[45] ts 440.
[46] ts 440.
Dr Ebtash's evidence was that all of the practitioners who work from the Wellness Place premises are self-employed practitioners, who lease the space from Dr Ebtash.[47]
[47] ts 441.
The Wellness Place appears to have been very a successful business. Dr Ebtash estimated that in 2015 he was personally undertaking, on average, 180 to 200 client treatment sessions per week, and in peak periods as many as 300 treatment sessions per week.[48]

How Dr Ebtash came to offer complimentary chiropractic treatment to the cast members

[48] ts 440.

Much of the evidence in relation to how Dr Ebtash came to provide complimentary chiropractic treatment to the cast members was uncontentious. We accept the evidence of the witnesses to which we refer below.
The only issue in dispute concerned Dr Ebtash's motivation for offering to provide the free treatment. The Board's case was that the Show contained aspects of sexual innuendo and that, as a result of seeing the Show, Dr Ebtash decided to offer free chiropractic treatment to the cast members, because of his sexual interest in the female cast members, and that that motivation supported the inference that his conduct in relation to the female cast members was sexually motivated. Dr Ebtash denied that that was the case. We set out our findings in relation to the issue of Dr Ebtash's motivation in offering free chiropractic treatment at the end of this section of our reasons.
Shortly before the First Occasion, Dr Ebtash decided to engage the assistance of a publicist (publicist). The publicist also represented the Show. Dr Ebtash and his publicist discussed opportunities to grow the Wellness Place and she suggested that an affiliation with the Show would be an opportunity to do that. That led to a discussion about creating that affiliation by offering complimentary services to the cast members of the Show. Dr Ebtash said that that conversation took place before he had seen the Show.[49]
[49] ts 443.
Dr Ebtash explained that to develop his skills and knowledge as a chiropractor, he had regularly offered complimentary services to athletes and performers, and since 2005 had done so in respect of over 16 organisations.[50] He saw working with sportspeople as a crucial component of his personal development, in addition to his work at the clinic.[51] Dr Ebtash said he had treated athletes and performers on a complimentary basis 'many, many times'.[52] He said he had also been involved with countless charities over the years to assist patients who may not be able to afford to pay for his services.[53]
[50] Exhibit 1.11 (p 69).
[51] ts 442.
[52] ts 442.
[53] ts 442.
Dr Ebtash and his wife attended the Show at the invitation of his publicist. Dr Ebtash described the show as 'a fun show. It was a show that couples went [to].'[54] He agreed that the show had sexual overtones, but denied that the show had excited him sexually.[55] He said that 'the sexual element was completely the side note. It … was smart. It was athletic … [I]t had nothing to do with explicit material.'[56] He denied that the nature of the Show was behind his offer of providing complimentary services for the cast members. He explained that he had looked after other performers in similar shows, and expressed admiration for their abilities.[57]
[54] ts 614.
[55] ts 614.
[56] ts 614.
[57] ts 614.
The videos in evidence[58] contained some promotional footage of the Show, and some parts of the Show which ran in Perth. There was no evidence that the promotional footage was of the actual performance seen by Dr Ebtash. We have not taken the content of that video footage into account as evidence of the actual performance seen by Dr Ebtash. However, counsel for the Board submitted that the video of the Show which ran in Perth depicted the nature of the Show and we have had regard to it on that basis.[59] Having watched that footage, it is apparent, and we find, that the nature of the performances in the Show contained sexual innuendo, and that the female performers were scantily clad. Dr Ebtash accepted that that was the case.[60]
[58] Exhibit 2.5.
[59] ts 326-327.
[60] ts 606.
Dr Ebtash denied that he found the Show so sexually stimulating that he devised a plan to engineer his interaction with the cast members so that he could get into close physical proximity with them and touch them sexually.[61] In cross-examination, it was put to Dr Ebtash that he saw the Show, and that that made him interested in the female cast members, and when he treated them on the First Occasion and Second Occasion, he touched them with a sexual intent. Dr Ebtash maintained that he made the offer of complimentary chiropractic treatment before he saw the show, and he denied emphatically the suggestion that he took advantage of the female cast members.[62]
[61] ts 653-4.
[62] ts 647.
The documentary evidence indicated that Dr Ebtash's offer of complimentary chiropractic treatment was made after he saw the Show.
Two days before the First Occasion, CA, who was the stage manager for the Show[63] (but whose role also extended to looking after the cast members, and attending to any concerns they had[64]) received an email from the publicist.[65] The publicist advised:[66]
One of our new clients, Dr Soroush Ebtash, is a very well respected sports chiropractor and owns a Wellness clinic in Perth. He came to see the show … and absolutely LOVED it!
He suggested to us that he would be happy to provide complimentary treatments to the cast … He's looked after professional sportsmen, the WA Ballet and circus performers before so definitely knows his stuff.
If this is of interest he [h]as suggested he can treat the cast at the [Venue] once or twice a week, and provide what they need ie chiro, physio … on evaluation …
Let me know if this is of interest to the cast …
[63] ts 133.
[64] ts 148.
[65] ts 134, 149.
[66] Exhibit 1.23.
After receiving that email, CA told the cast members about Dr Ebtash's offer of free treatment.[67] The cast members were very interested in the offer and wanted to hear more about it. As MT explained, the athleticism in the Show was wearing on the cast members' bodies, and they were all 'going to physio and osteo and sometimes [to a] chiropractor by ourselves anyway … [So] more treatments are always welcome.'[68]
[67] See, eg, ts 49-50.
[68] ts 168.
A meeting was then arranged for CA and interested cast members to meet with Dr Ebtash.[69] That meeting was held at about 4.00 pm on the First Occasion, at a coffee shop just outside the Venue.[70] We note that LN thought that the meeting was held on a date two days before the First Occasion.[71] However, as we explain below, her recollection of the dates on which these events occurred was clearly mistaken, and we do not accept that part of her evidence.
[69] ts 135.
[70] ts 50, 135, 150, 303.
[71] ts 50.
Almost all of the cast attended the meeting with Dr Ebtash.[72] CA recalled that Dr Ebtash told them that he and his wife 'really enjoyed the show. I'm happy to look after you in terms of complimentary chiropractic services for the two weeks [of the Show]'.[73] LN recalled that Dr Ebtash told them that he had seen the show and he was interested in helping them 'because he knew how physical our job was, and I'm not sure if he was opening a new business or he was trying to expand his business but it was in terms of physiotherapy and helping our bodies'.[74]
[72] ts 50, 151, 234. MT was not present at the meeting: ts 168.
[73] ts 151.
[74] ts 51.
We find that Dr Ebtash's offer of complimentary treatment for the cast members was made after he saw the Show, but that the idea for complimentary treatment had been discussed with his publicist prior to his seeing the Show.
We find that the Show contained aspects of sexual innuendo, but we are not satisfied that Dr Ebtash's motivation for offering free chiropractic treatments to the cast was with a view to providing him with an opportunity to touch the female cast members with a sexual intent, for the following reasons. First, while we have found that the offer of complimentary chiropractic treatment was made after Dr Ebtash saw the Show, he had discussed that proposal with his publicist prior to seeing the Show. Secondly, it was not in dispute that Dr Ebtash had an interest in treating sportspeople and athletes or athletic performers. The publicist's email referred to Dr Ebtash's previous work in that area, and Mr Maddison gave evidence to the effect that he had accompanied Dr Ebtash on visits to treat sportspeople in the past.[75] Thirdly, Dr Ebtash's decision to make that offer was consistent with his evidence that he had offered complimentary services to athletes on many occasions in the past. Fourthly, there were male as well as female cast members in the Show, yet Dr Ebtash's offer of complimentary treatment was not confined to female members of the cast, and he had no control over which members of the cast might take up the offer of complimentary treatment.

What happened after the meeting with cast members on the First Occasion

[75] See generally ts 669-701.

After the meeting with the cast members on the First Occasion, almost all of the cast members wanted to avail themselves of complimentary chiropractic treatment. CA arranged for Dr Ebtash to provide some treatments to the cast members.[76] Dr Ebtash had offered to treat the cast at one of his clinics,[77] but CA and the cast members preferred that any chiropractic treatments should take place at the Venue, and Dr Ebtash was happy to accommodate that request.[78]
[76] ts 135-136.
[77] ts 231, 650.
[78] ts 152, 239.
Consequently, after the meeting on the First Occasion, Dr Ebtash went with CA and the cast members to the Venue, to look for a suitable room in which the treatments could be given. Dr Ebtash requested that a private area be made available for the treatments, but he did not choose the rooms where the treatments would be conducted.[79] Instead, it was the cast members who chose the rooms in which the treatments would be undertaken.[80]
[79] ts 155, 653.
[80] ts 653.
The Treatment Room was chosen as the room where the treatments would take place, because it was the quietest suitable space at the Venue.[81] The Treatment Room was described as a 'really, really big room'[82] which was located on the second floor of the Venue.[83] It was similar to a dance studio, but also contained tables, chairs and sofas along some of the walls.[84] A floor plan of the Venue was in evidence which depicted the floor space of the Treatment Room as that area is presently configured.[85] Counsel for the Board, without objection by counsel for Dr Ebtash, identified the total area which, as at the Second Occasion, was used as the Treatment Room.[86] The dimensions of that area were marked on the plan. Having regard to those dimensions, the total area of that space appears to have been in the vicinity of 105 square metres.
[81] ts 153, 155.
[82] ts 155; see also ts 136, 227.
[83] ts 136, 152.
[84] ts 155.
[85] Exhibit 15.
[86] ts 722-723.

Mr Maddison's recollection of the Treatment Room was consistent with the evidence given by the cast members. It was a large room of about 15m by 10m. On the opposite wall but nearest to the door were two couches, which were nearly touching each other.[87] Dr Ebtash and Mr Maddison used the couches to treat some of the cast members.
[87] ts 685.
The Green Room was adjacent to the cast members' dressing rooms.[88] It was on the first floor of the Venue. The Green Room was much smaller in size than the Treatment Room. The floor plan of the Venue which was in evidence showed the dimensions of the Green Room as 6.6m by 6.8m.[89]
[88] ts 304; Exhibit 2.1.
[89] Exhibit 15; ts 721-723.
Dr Ebtash said that he had not intended to treat any of the cast members on the First Occasion but after the meeting at the café, GR told Dr Ebtash that he would like some treatment, and Dr Ebtash agreed to have a look and try to help him.[90] Dr Ebtash did not bring a treatment table to the Venue on the First Occasion, no doubt because he had not planned to undertake any treatments.
[90] ts 455.
CA recalled that those treatments were 'just some little … bits but … no kind of substantial treatments'.[91] Those treatments were carried out in the Green Room.[92] Dr Ebtash had not been in the Green Room or the Treatment Room before.[93]
[91] ts 139.
[92] ts 153.
[93] ts 653.
Three of the cast members - JL, MS and GR - received treatments on the First Occasion.[94]
[94] ts 154, 239.
Dr Ebtash returned on the Second Occasion at about 4.00 pm in the afternoon to provide treatments for the cast members. On that occasion, he brought a treatment table with him to the Venue,[95] and some elastic exercise bands.[96] He was accompanied by Mr Maddison.
[95] ts 136, 138, 154-155.
[96] ts 684.
On the Second Occasion, Dr Ebtash provided chiropractic treatment to SS, LN, SN, MS, HJ and MT.
Mr Maddison explained that a few days before the Second Occasion, he was approached by Dr Ebtash who told him that 'he had a unique opportunity to work with [the cast of the Show] and this would make for an excellent opportunity for me to see some chiropractic techniques performed and work alongside Dr Ebtash in an exercise rehab setting'.[97] Mr Maddison said that he 'thought it was an excellent opportunity to follow someone with a wealth of knowledge like Dr Ebtash who had been in the industry for quite some time'.[98] Mr Maddison said that he and Dr Ebtash had previously worked together in a similar fashion treating a local football team.[99]
[97] ts 684.
[98] ts 684.
[99] ts 699.
On the Second Occasion, Dr Ebtash met Mr Maddison at Next Generation Health Club in Kings Park and they drove to the Venue from there.
Dr Ebtash and Mr Maddison arrived at the Venue at about 3.00 pm.[100] When they arrived, they were met at the stage door by the stage manager, whom Mr Maddison said was called C.[101] She took them upstairs to the Treatment Room and they set up.[102]

(b) Alleged conduct in relation to JL (ground 2 of the Application)

The Board's allegations and Dr Ebtash's response
[100] ts 684.
[101] ts 685. The transcript indicates that Mr Maddison said that the stage manager's name was K, but this is an error in transcription. He in fact correctly referred to CA by her first name.
[102] ts 685.

The Board alleges that in a consultation with JL on or about the First Occasion, in a room at the Venue, Dr Ebtash engaged in the following conduct, which was either inappropriate conduct of a sexual nature or clinically inappropriate and below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.[103]
[103] Application par 2.1.
The conduct alleged was that:[104]
(a)While purporting to treat JL's shoulders, Dr Ebtash touched the edge of JL's left breast through her clothing for approximately 5 seconds; and
(b)While purporting to treat her adductor muscles, used his thumb, index finger and middle finger in a cup shape on the outside of her clothing, to touch JL's labia major, and drag his thumb across her clitoris and the entrance to her vagina.
[104] Application par 2.2.
Dr Ebtash admits that he engaged in a professional consultation with JL on or around the First Occasion in a room at the Venue but otherwise denies these allegations, and says that the nature of the treatment alleged was neither offered nor provided.[105]
[105] Substituted Response par 2.1, 2.2.
The Board also alleges that Dr Ebtash failed to properly inform JL, before commencing treatment, of the nature of the treatment and failed to give her adequate opportunity to question or refuse that treatment, because:[106]
(a)He did not advise JL that he intended to or might touch her breast or external sexual organs before touching them;
(b)Although he asked JL for permission to touch her pelvis, he did not ask for her permission to touch her external sexual organs before touching them or indicate that he may touch them;
(c)He did not ask JL for permission to touch her breast or external sexual organs before touching them; and
(d)He did not explain to JL why he intended to or might touch her breast or external sexual organs before touching them.
[106] Application par 2.3.
Dr Ebtash denies each of these allegations concerning consent, on the basis that the treatment alleged was neither offered nor provided.[107]
[107] Substituted Response par 2.3.
The Board alleges that there was no proper clinical justification for Dr Ebtash to touch JL's breasts and external sexual organs at that consultation, and it was inappropriate for him to have touched those areas.[108]
[108] Application par 2.4.
Dr Ebtash denies this allegation, on the basis that the treatment alleged was neither offered nor provided.[109]

How JL came to be treated by Dr Ebtash on the First Occasion
[109] Substituted Response par 2.4.

JL attended the meeting of the cast members with Dr Ebtash on the First Occasion.[110] After the meeting, some of the cast members took Dr Ebtash into the Venue so that he could inspect the available spaces where he could conduct chiropractic treatments.[111] However, JL did not accompany the other cast members and Dr Ebtash, and instead went into her dressing room while that was occurring. Later, she came out of dressing room, which opened into the Green Room, and saw that Dr Ebtash had been treating other cast members.[112] Prior to that point, Dr Ebtash had treated GR and MS.[113]
[110] ts 303.
[111] ts 304.
[112] ts 304.
[113] ts 472.
Just as JL came out of her dressing room, Dr Ebtash asked if anyone else would like a treatment. JL agreed to participate.[114]
[114] ts 304.
Dr Ebtash described the First Occasion as 'only a meet and greet and very short assessment'[115] and said that when he treated JL, he merely 'highlighted some areas of tension'.[116] JL described the treatment as 'more of a demo before he actually treated any of us'.[117] In our view, it matters not for present purposes whether the interaction is described as an assessment or treatment of JL. It was of short duration, but nevertheless involved Dr Ebtash palpating (prodding and poking with fingertips) and touching various parts of JL's body, as we describe below.

The injuries JL reported to Dr Ebtash
[115] ts 474.
[116] ts 474.
[117] ts 304-305.

JL's evidence was that on the First Occasion, she was suffering from two long standing injuries.[118] The first was a sore shoulder in the vicinity of her shoulder blade, in the muscles between the bone of her shoulder blade and her spine. In addition, JL had a tight left adductor muscle in her inner left leg, in the top half of her upper leg.[119]
[118] ts 305-306.
[119] ts 306.
There was no issue taken with whether JL told Dr Ebtash about her sore shoulder. However, there was a dispute as to whether JL told Dr Ebtash that her left adductor was sore, or whether she told him she had a sore groin.
JL's evidence, at first, was that she told Dr Ebtash that she had a sore shoulder and a tight left adductor.[120] JL acknowledged that in the statement she provided to the police (which was not in evidence), she had stated that she told Dr Ebtash that she had a tight adductor, but did not mention that the problem lay in her left adductor.[121] However, in her evidence, JL said that she made clear to Dr Ebtash that she had a problem with one of her adductors in particular.[122] In cross-examination, JL did not deny the suggestion that she merely told Dr Ebtash that she had tight adductors, but responded that 'if that was the case, I would have touched my left leg.'[123] She agreed that her statement to the police made no mention of her tapping her adductor,[124] and later acknowledged that 'I can't 100 per cent say that [she had tapped her adductor], but when somewhere is sore, usually you place a hand on it … to show that is where you're sore'.[125]
[120] ts 305.
[121] ts 337.
[122] ts 337.
[123] ts 337.
[124] ts 337.
[125] ts 340.
Dr Ebtash's evidence was that JL 'said that she has got a groin problem and … [a] neck and a shoulder problem'.[126] When asked if JL had mentioned her left adductor, he acknowledged that 'she pointed to her left side' but denied that she had mentioned her left adductor and maintained that 'she said she's got a groin problem and neck and left shoulder problem'.[127] Dr Ebtash later said that JL had:[128]
[M]entioned about her groin pain and she did mention about adductor tightness … She did point to her left side … She did point to the left, but she did say she has got groin pain, and she said her adductors, with - with the plural, are very tight… .
[126] ts 473.
[127] ts 473.
[128] ts 480.
Dr Ebtash sought to emphasise, on a number of occasions in his evidence, that JL mentioned her groin pain several times.[129]
[129] ts 473, 480.
In her evidence, MS recalled that after her treatment on the First Occasion she was in her dressing room, adjacent to the Green Room, preparing for that evening's performance. Her door was open and she could hear Dr Ebtash talking with JL about problems with her adductor muscles, and 'something [to do] with the hips'.[130] MS said that she heard JL tell Dr Ebtash that she had pain in her adductor.[131] MS did not mention hearing any reference to groin pain.
[130] ts 243.
[131] ts 244.
It was clear that MS did not witness the entire interaction between JL and Dr Ebtash. However, her evidence as to the conversation she overheard partly corroborates JL's recollection of how she described her injuries to Dr Ebtash.
Having regard to MS's evidence, and to our findings (below) as to the credibility of JL and Dr Ebtash, we prefer the evidence of JL to that of Dr Ebtash, to the extent that their evidence differed, in relation to how JL described her injuries. We find that JL told Dr Ebtash that she had a sore shoulder, and soreness or pain in her adductor muscles. We find that JL did not tell Dr Ebtash that she was experiencing groin pain.
We also find that when JL told Dr Ebtash about her sore adductors, she indicated that the problem concerned her left leg. Although Dr Ebtash's evidence was that he examined both adductors, it is apparent both from JL's evidence, and from Dr Ebtash's evidence, that the focus of his attention was her left adductor.

The alleged touching of JL's breast

JL's evidence was that she was first treated by Dr Ebtash in the Green Room. JL recollected where she was in the Green Room at each point where she was treated by Dr Ebtash. After these events occurred, she used a computer program to prepare a picture of the Green Room showing the nearby dressing rooms, the location of the furniture in the room, the locations in the room where she was treated, and the location of other cast members who were in the Green Room at particular points in time.[132]
[132] Exhibit 2.1; ts 308.
The first aspect of JL's treatment involved JL's shoulder.[133] While Dr Ebtash was treating her shoulder, JL and Dr Ebtash were standing at a point which was a short distance between a table and chairs, and one of the couches, in the Green Room.[134] Dr Ebtash was standing behind JL,[135] on her left hand side. They were both facing away from the dressing rooms.[136] At the time of her treatment, JL was wearing tights and a tightfitting singlet.[137]
[133] ts 105.
[134] ts 310.
[135] ts 307, 474.
[136] ts 342.
[137] ts 305.
There was no dispute as to the initial part of Dr Ebtash's treatment of JL's shoulder. JL accepted that initially Dr Ebtash felt her trapezius above her shoulder blade area. While she denied that he palpated the area between her trapezius and the top of her pectoral muscle,[138] she described him as pushing through her shoulder, and then down under her collarbone and onto her pectoral muscle.[139]
[138] ts 343-344.
[139] ts 343.
JL also acknowledged that prior to doing this, Dr Ebtash lifted her arm up, although she could not recall how high he had lifted it, and did not recall whether he had applied some resistance as he did so.[140] She denied that at any stage Dr Ebtash put his hand under her arm.[141]
[140] ts 344-345.
[141] ts 346.
Dr Ebtash's evidence was that:[142]
I felt her upper traps, which were extremely tight. Then I … I asked her to raise her arm up and down, looking at any form of pain that may begin and looking at the ranges and the degrees that the pain will come in. I did test her … some of the tendons around the rotator cuff … And then following that, I did describe to her - so usually my approach with my patients is as I am doing things I'm talking to them. I'm explaining to them what I'm noticing, what I'm doing. So I mentioned to her about the - the upper traps being tight. I'm talking about the muscle insertion such as the upper traps and the pecs having an effect on the shoulder. I felt her pecs as well and explained to her how tight they are.
[142] ts 474; see also ts 642.
JL's evidence was that she felt Dr Ebtash using his thumb and fingers and that he was:[143]
[P]oking around my shoulder blade and up through over my shoulder, over my neck, to my pec and then down to the side of my breast as well. So the whole shoulder treatment was poking around the back of my shoulder, to the neck, to the front, to the pectorial [sic] muscle and then down along the side of my breast.
[143] ts 306-307.
JL described what occurred in more detail as follows:[144]
He worked my shoulder and then he came round the front and lifted my arm up and worked through my pec and then went down the side of my breast … [T]hat's a common thing, you know, for a physio to lift your arm up and feel around at the same time. And, then, yes, he felt around my pec and down to the side.
[W]hen his hands were on my pec he was touching skin and singlet … He was touching my strap and skin. And, then, as he moved down, my singlet did cover my breast. It did cover my breast and he was poking my breast, not any other muscles. Not any other side, under my armpit, my actual breast.
[144] ts 307.
JL described how Dr Ebtash touched her breast as follows:[145]
[H]e was pressing my pec and said '[t]hat's really right', referring to my pec being tight. And then, as he kept talking to me and said my pec was tight, he just pressed down, one, two, three, four - like, you know, just pressed his fingers down and then it was quite done. It was very fast and quick.
[145] ts 308.
JL disagreed with the suggestion that Dr Ebtash had not approached any closer towards her left breast than the top right-hand side of her left pectoral muscle.[146]
[146] ts 346.
Dr Ebtash emphatically denied that he touched JL on the breast during the course of that pectoral examination,[147] and he denied palpating or touching her breast tissue on the left-hand side of her left breast.[148] He maintained that he 'palpated [JL]'s insertion point of her pec minor into her shoulder'.[149] He accepted that the pectoral insertions are near the breasts, in that they are near the shoulder[150] and he explained that the 'pectoralis minor is very close to the breast region'[151] however he denied that he performed the treatment, or examination described by JL, in which she said that his hand moved down into her breast region.[152]
[147] ts 619-620.
[148] ts 474, 620.
[149] ts 619.
[150] ts 620.
[151] ts 620.
[152] ts 620.
There are three further aspects of the evidence to which we should refer at this point.
The first is JL's evidence that while Dr Ebtash was treating her, one of the other cast members, GR, was sitting on a couch in the Green Room.[153] That couch was diagonally opposite and slightly to the right of the point where JL and Dr Ebtash were standing while he treated her shoulder. JL accepted that GR would have been in a position to see the profile of her body across the top of the couches which were between them.[154]
[153] ts 340.
[154] ts 342.
GR was not called to give evidence. However, while GR may have been in a position to see JL being treated, at least while JL was standing, there was no evidence to suggest that GR was actually watching JL while she was being treated. That being the case, and in circumstances where the evidence was that the cast members lived and worked outside of Australia, we draw no adverse inference from the fact that GR was not called to give evidence[155] (nor were we asked to do so).
[155] Cf Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
Secondly, there was no specific evidence as to whether JL reacted in any way when Dr Ebtash touched her breast, or when he touched her in the ways she regarded as inappropriate. We discuss the evidence about her responses later in this section of our reasons, and in the course of our assessment of JL's credibility.
Thirdly, as we discuss below, while there was evidence that immediately after her treatment finished, JL reported to other cast members that Dr Ebtash had touched her inappropriately, there was no evidence that she told them that he had touched her specifically on the breast. Instead, the evidence suggested that she reported only that Dr Ebtash had touched her on her genitals. We have taken that into account in the course of our assessment of JL's credibility.
There was thus a clear dispute on the evidence given by JL and by Dr Ebtash as to whether, after palpating her pectoral muscles at the top of the left hand side of JL's chest, Dr Ebtash then palpated down the side of JL's left breast. For the reasons set out below in our findings as to the credibility of JL and Dr Ebtash, we prefer the evidence of JL to that of Dr Ebtash, in so far as their evidence was inconsistent. We therefore find that Dr Ebtash did touch the side of JL's left breast, and that this involved Dr Ebtash pressing with his fingers, four times, in a very quick motion, on the left hand side of JL's left breast.

The alleged touching of JL's buttocks

The next aspect of the evidence in relation to JL was not the subject of a specific allegation of misconduct but was adduced by the Board as evidence relevant to Dr Ebtash's credit..
After Dr Ebtash treated her shoulder, and touched her on the breast, JL and Dr Ebtash went over to a mirror which was on one side of the Green Room, nearest the dressing rooms. JL had told Dr Ebtash that she had a sore leg. She had been told that she had one leg which was shorter than the other, and she attributed her leg soreness to that.[156] Dr Ebtash said that he moved JL over to stand near the mirrors because he wanted to conduct a postural screen examination.[157]
[156] ts 310, 347.
[157] ts 475.
JL said that Dr Ebtash: [158]
[B]ent down behind me and looked at my legs and my bottom and he inserted his fingers underneath my bottom and jiggled them… they were in the crease of the bottom of my bottom and my legs and he was jiggling them to see if I had one leg shorter than the other and he continued to go 'Look in the mirror, you see'.
[158] ts 311.
JL indicated that when he did so, Dr Ebtash's hands were in a pistol shape, with his index and middle finger pointing outwards and his thumb pointing upwards.[159] JL explained that his fingers were in the crease where her buttocks overhung her legs and his fingers were lifting her bottom up and down.[160]
[159] ts 311.
[160] ts 312.

Dr Crawford's evidence was that:[1255]
A risk is material if 'in the circumstances of the particular case, a reasonable person in the patient's position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it'.
[1255] Exhibit 1.20 (p4).
Dr Crawford's view was that if a diagnostic procedure or treatment required contact with parts of a patient's anatomy that are of an intimate nature, or may be perceived as such by the patient, good or appropriate practice required that the patient be provided with:[1256]
[A] detailed explanation of such contacts, the rationale for and benefit/s of the use of such contacts and the manner in which they will be used in order for the patient to make an informed decision to proceed or otherwise with the diagnostic procedure or treatment.
The [Code] (section 3.5) includes information … that chiropractors should provide, including the need to provide more information where the risk of harm (and this includes psychological harm) is greater and likely to be more serious. This could reasonably be extrapolated to include the need for greater transparency where non-standard techniques or treatments are used that may include contacts with parts of the anatomy that are of, or potentially perceived to be of, an intimate or personal nature.
[1256] Exhibit 1.20 (p2).
The evidence given by the female cast members at the hearing suggested that Dr Ebtash engaged in limited discussion of his diagnoses, proposed interventions or the possibility of other healthcare options.
Dr Innes' opinion was that having regard to the account given by each of the female cast members, and to the Notes made by Dr Ebtash, there was no evidence that Dr Ebtash had discussed with the female cast members the matters identified in paragraphs 3.3(d), (e) and (g) of the Code.[1257]
[1257] Exhibit 1.18 (p8-9).
Dr Crawford was of the opinion was that Dr Ebtash did not communicate effectively with JL, LN, MT and MS in relation to the proposed treatment or alternatives to treatment.[1258]
[1258] Exhibit 1.20 (p13. 19, 24, 29).
We are satisfied that the Board has established that Dr Ebtash's exercise of care in relation to his communication with each of the female cast members was below the standard reasonably expected of a practitioner of an equivalent level of training and experience.

(f) Alleged failure to treat each patient with respect

As already noted, Dr Ebtash maintained his denial of the allegation in paragraph 6.2(e) of the Application.
The Board relies on paragraph 3.2 of the Code as indicating the standard of knowledge, skill, judgment or care reasonably expected of practitioners with training and experience equivalent to that of Dr Ebtash. That paragraph relevantly provides:
A good partnership between a chiropractor and the person they are caring for requires high standards of personal conduct. This involves the chiropractor:
(a)Being courteous, respectful, compassionate and honest.
At the outset, we note that this standard is expressed in broad and very general terms.
Touching a patient on or near an intimate part of their body, without their consent, and in circumstances importing a sexual connotation to the touching, implicitly involves a lack of respect. But conduct of that kind is already the subject of the allegations in grounds 1 to 5 of the Application. Similarly, failing to treat a patient in a private room, or to properly communicate with them in relation to proposed treatment, may also reflect a lack of respect for the patient. However, conduct of that kind is the subject of discrete allegations in relation to ground 6 of the Application.
We did not understand the Board to point to discrete conduct, not otherwise particularised in support of grounds 1 to 5, or ground 6, of the Application, as the basis for a failure by Dr Ebtash to treat the female cast members with respect. In those circumstances, we do not consider that this allegation adds anything to the other allegations of professional misconduct or unsatisfactory professional performance which we have already addressed.

(g) Alleged failure to undertake a neurological examination in light of MS's reported symptoms - paragraph 6.3 of the Application

The Board alleges that on her Patient Form, MS had indicated that she had symptoms of 'tingling', but that Dr Ebtash failed to conduct a neurological examination of her upper and lower limbs, which was necessary because that symptom might have indicated neurological involvement.[1259]
[1259] Application par 6.3.
We understand this allegation should be understood as a further example of Dr Ebtash's failure to undertake a proper examination of the female cast members.
Dr Ebtash initially denied this allegation[1260] but at the commencement of the hearing, he admitted it.[1261]
[1260] Response par 6.3.
[1261] Respondent's Statement of Facts Issues and Contentions and Opening Submissions [26].
Dr Crawford explained that experiencing a symptom such as tingling:[1262]
[C]an indicate neurological involvement and mandates neurological examination of the upper and lower limbs and possibly the cranial nerves given she also complained of headaches and migraines, after a thorough history, to determine possible causes of such symptoms. This does not appear to have been performed.
[1262] Exhibit 1.20 (p27; see also p 29).
Dr Innes was also of the opinion that MS's report of tingling should have resulted in 'further questioning and a comprehensive orthopaedic and neurological examination. I can find no evidence that Dr Ebtash has conducted any sort of physical, orthopedic/neurological examination or functional assessment to this end for [MS]'.[1263]
[1263] Exhibit 1.18 (p11-12).
We find that in failing to undertake an examination to identify whether there was a neurological issue underlying the symptoms of tingling reported by MS, Dr Ebtash failed to comply with the standards of knowledge, skill, judgment and care reasonably expected of practitioners of an equivalent level of training and experience. Given the specific symptom of tingling which was reported by MS, and the fact that that symptom indicated a possible underlying neurological issue, the failure by Dr Ebtash to conduct an examination, and thus to permit consideration of whether chiropractic treatment, or alternative treatment, was warranted, is an instance of a more serious failure by Dr Ebtash to comply with the applicable standards.

(h) Was Dr Ebtash's knowledge, skill or judgment in his treatment of KM below the standard applicable to practitioners of an equivalent level of training and experience - paragraph 6.4 of the Application

The Board alleges[1264] that in the case of KM, Dr Ebtash failed to:
(a)appropriately assess her in breach of s 2.1(a) of the Code;
(b)formulate a reasonable management plan for treatment, in breach of s 2.1(d) of the Code; and
(c)treat her with respect, in breach of s 3.2(a) of the Code.
[1264] Application par 6.4.
Dr Ebtash denies each of these allegations.[1265]
[1265] Substituted Response par 6.4.
Paragraphs 2.1(a) and (d) and 3.2(a) of the Code are set out above at [1052] and [1083] respectively.
Some of the opinion evidence given by Dr Crawford and Dr Innes, in relation to these allegations, concerned the inappropriate touching of KM which was the subject of ground 1 of the Application.[1266] From that perspective, the allegations in paragraph 6.4 of the Application, and in particular, the allegation that Dr Ebtash failed to treat KM with respect, did not materially add to the allegation the subject of ground 1 of the Application.
[1266] See, for example, Exhibit 1.20 (p4-8,).
KM's evidence, which we have accepted, outlined how Dr Ebtash came to be involved in treating her vertigo at the request of her treating chiropractor, Dr Laurie. KM noted that Dr Ebtash explained the Epley manoeuvre, but nothing in her evidence suggested that he undertook any examination of her, to confirm the diagnosis of vertigo, or to ascertain that the performance of the Epley manoeuvre was a treatment which was appropriate in the circumstances, or that he formulated a management plan to manage the treatment of that condition.
Dr Crawford also noted that having regard to the Clinical Notes made by Dr Ebtash, it appeared that KM had been diagnosed with vertigo by her general practitioner, but there was no indication that Dr Ebtash had undertaken a clinical assessment to make or confirm that diagnosis.[1267] Dr Crawford's unchallenged evidence was that in the absence of any record in the Clinical Notes that Dr Ebtash had undertaken a clinical assessment of KM, he was unable to conclude that Dr Ebtash had appropriately assessed KM.[1268]
[1267] Exhibit 1.20 (p3).
[1268] Exhibit 1.29 (p5).
Furthermore, Dr Crawford's evidence was that Dr Ebtash's Clinical Notes did not include a formal management or care plan in respect of his treatment of KM for her vertigo. While the treatment which was performed was outlined, in his opinion, that did not constitute a management or care plan for her treatment, which met the requirements set out in the Code.[1269]
[1269] Exhibit 1.20 (p5-6).
Having regard to that evidence, and to the evidence given by KM, we are satisfied that the Board has established that Dr Ebtash failed to appropriately assess KM, and that he failed to formulate a reasonable management plan for treating her vertigo with the Epley manoeuvre, and, in those respects, we are satisfied that his knowledge, skill, judgment or care was below the standard reasonably expected of practitioners of an equivalent level of training and experience.

Conclusion in relation to ground 6 of the Application

We are satisfied that the Board has established that Dr Ebtash's conduct in relation to JL, LN, MT, MS and KM constituted unsatisfactory professional performance in that his knowledge, skill, judgment or care was below the standard expected of practitioners of an equivalent level of training or experience, in the following respects:
•Dr Ebtash failed to appropriately assess each of the female cast members by undertaking an appropriate physical examination, of the kind contemplated by section 2.1(a) of the Code;
•In view of MS's report of tingling symptoms, Dr Ebtash failed to conduct an appropriate examination of her as contemplated by paragraph 2.1(a) of the Code;
•Dr Ebtash failed to formulate a reasonable management plan for the treatment of each of the female cast members, as contemplated by paragraphs 2.1(d) of the Code;
•Dr Ebtash failed to engage in effective communication with the female cast members, in that he failed to inform them of the nature and relevance of aspects of their clinical care, to give them an adequate opportunity to question or refuse interventions and treatment, to discuss other available healthcare options, and to ensure that they were informed of the material risks associated with any part of a proposed management plan, as contemplated by paragraphs 3.3(d), (e) and (g) of the Code;
•Dr Ebtash failed to appropriately assess KM, by undertaking an examination to confirm the reported diagnosis of vertigo and the basis or cause for that condition, as contemplated by paragraph 2.1(a) of the Code; and
•Dr Ebtash failed to formulate a reasonable management plan, for treating KM's vertigo with the Epley manoeuvre, as contemplated by paragraph 2.1(d) of the Code.

5. Ground 7 of the Application - alleged unsatisfactory professional performance in relation to the clinical notes made by Dr Ebtash in respect of KM, JL, LN, MT, MS, SN, GR and SS

(a) The allegations and Dr Ebtash's response

The Board alleges that in respect of KM, JL, LN, MT, MS, SN, GR and SS, Dr Ebtash's clinical notes were below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.[1270] We understood the reference to the clinical notes was a reference to all of the notes (Assessment Notes and Clinical Notes) made by Dr Ebtash in relation to KM, and to the cast members - that is, to both the Clinical Notes (as we have defined them) and to the Assessment Notes in relation to the cast members. To avoid any confusion, we will refer to all of these notes collectively in this section of our reasons as the Notes. We refer to records of this kind in general terms as 'clinical notes'.
[1270] Application par 7.1.
As we have already observed, counsel for the Board submitted that the failings the subject of paragraph 7 of the Application would be likely to constitute unsatisfactory professional performance as defined in the National Law.[1271]
[1271] Applicant's Statement of Facts Issues and Contentions and Opening Submissions [62].
The Board alleges that in failing to maintain adequate Notes, Dr Ebtash was in breach of par 2.2(d), 9.4(a) and 9.4(d) of the Code and of the Board's 'Guidelines Clinical Record Keeping for Chiropractors'.[1272] As with the allegations in ground 6 of the Application, we understand paragraph 7.2 to inform the allegation of unsatisfactory professional performance set out in paragraph 7.1 of the Application.
[1272] Application par 7.2.
Dr Ebtash initially denied these allegations.[1273] However, at the commencement of the hearing, Dr Ebtash admitted the allegations in ground 7 of the Application. Counsel for Dr Ebtash confirmed that Dr Ebtash accepted that the Notes were below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.[1274] Furthermore, he confirmed that Dr Ebtash agreed that the effect of his accepted default in the keeping of the Notes 'does give rise to a consideration of the breach of par 2.2(e), 9.4(a) and 9.4(d) of the Code and the Guidelines.'[1275]

(b) Were the Notes below the standard reasonably expected of a chiropractor of an equivalent level of training or experience, and thus an instance of unsatisfactory professional performance?

Dr Ebtash's level of training and experience
[1273] Substituted Response par 7.1.
[1274] Respondent's Written Outline of Opening Submissions [12].
[1275] Respondent's Written Outline of Opening Submissions [12].

As we observed at [63], Dr Ebtash has tertiary qualifications in chiropractic, and is a practitioner with many years of experience as a chiropractor.

What standard of knowledge, skill or judgment, or care, in relation to the preparation of clinical notes, is reasonably expected of a health practitioner of an equivalent level of training or experience to the practitioner?

The Board's case was that a practitioner with an equivalent level of training or experience to Dr Ebtash - that is, a practitioner with tertiary qualifications in chiropractic, obtained in 2003, and many years of experience following his registration - would reasonably be expected to demonstrate the standards of knowledge, skill or judgment, and to exercise the care, described in the Code and in the Guidelines in relation to clinical notes.
The Board relied on par 2.2(d), 9.4(a) and 9.4(d) of the Code and on the Guidelines as indicative of the standard of knowledge, skill, judgment or care reasonably expected of a practitioner of Dr Ebtash's training and experience in relation to the preparation and content of clinical notes.
Par 2.2(d) of the Code provides:
Maintaining a high level of professional competence and conduct is essential for the good practice of the profession. Good practice involves:
…
(a)Maintaining adequate records (see Section 9.4 Health records).
Section 9.4 of the Code relevantly provides:
Maintaining clear, appropriate, factual, objective and accurate health records is essential for the continuing good care of patients. Detailed guidance on this matter is available in the Guidelines for clinical record-keeping for chiropractors published by the National Board. Chiropractors should be aware of relevant state and territory legislation in relation to health records management. Good practice involves:
(a)Keeping accurate, up-to-date, contemporaneous and legible records that report relevant details of clinical history, clinical findings and determinations, investigations, information given to patients, medication and other management details in a form that can be understood by other health practitioners;
…
(d)ensuring that records contain sufficient information to allow another chiropractor to continue the management of the patient and to facilitate continuity of chiropractic care.
The Guidelines were in evidence.[1276] They make detailed provision in relation to record keeping by chiropractors. The Guidelines are expressed in terms of the 'minimum requirements for clinical records'.[1277]
[1276] Exhibit 1.2.
[1277] Exhibit 1.2 (p1).
The general principles established by the Guidelines are as follows:
2.General principles to be applied
a.Clinical records can be kept in either paper or electronic format. Any electronic format should be the equivalent of any paper format and should be able to be printed.
b.Each patient should have an individual health record containing all the health information (radiographs excepted) held about them.
c.A chiropractic clinical record should be made at the time of the consultation or as soon thereafter as practicable or as soon as information (such as test results) becomes available. It must be an accurate and contemporary reflection of all consultations or interactions. If the date the record is made is different to the date of the consultation, the date the record is made and the time and date of the consultation must be noted.
d.Entries on a clinical record must be made in chronological order.
e.Chiropractic clinical records must be legible and understandable and of such a quality that another chiropractor could read and reasonably understand the terminology and abbreviations used and, from the information provided, be equipped to manage the care of the patient …
f.If documents are scanned to the record, such as external reports, the scanning needs to be undertaken in a way that retained the legibility of the original document.
g.Chiropractic clinical records must be able to be retrieved promptly when required.
h.Chiropractic clinical records must be stored securely and safeguarded against loss or damage, including a process for secure transmission and a backup of electronic records.
i.All comments in the clinical record should be clinically relevant, respectful of the patient and be couched in appropriate clinical, objective language.
j.Chiropractors should be familiar with, and adhere to the requirements in the Board's Code of Conduct for Chiropractors that relate to record keeping.
k.Corrections can be made to a clinical record either at or after the time of original entry. The correction must be initialled, dated and tracked by the practitioner and the original entry must still be visible or digitally traceable.
…
Clause 3 of the Guidelines provides as follows:
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 …
b.contact details …
c.presenting complaint
d.examinations and investigations conducted and relevant clinical findings
e.relevant diagnosis(es)/clinical impressions / working diagnosis(es), therapeutic trials or management / care plans
f.current health history …
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 relevantly provides:
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 eg 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 for Chiropractors section 3.5)
i.when there are changes to any previous consent …
j.changes to a documented working diagnosis or therapeutic 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 …
r.details of anyone contributing to the chiropractic care and record.
We did not understand there to be any dispute that the provisions of the Code and the Guidelines relied upon by the Board, in relation to the preparation and content of clinical notes, identify the standards of knowledge, skill or judgment, or the exercise of care, which are reasonably expected of chiropractors with a level of training or experience equivalent to that of Dr Ebtash, and we find that to be the case.

In the preparation and content of the Notes, was Dr Ebtash's knowledge, skill or judgment, or his exercise of care, below the standard reasonably expected of a practitioner of an equivalent level of training or experience?

While Dr Ebtash admitted the allegations in paragraphs 7.1 and 7.2 of the Application, it is necessary to briefly discuss the nature of the unsatisfactory professional performance which is admitted, and to consider some examples, from the evidence, of the deficiencies in the preparation and content of the Notes, so as to permit a proper assessment of the extent to which Dr Ebtash's knowledge, skill or judgment, or exercise of care, was a departure from the standard of care reasonably expected of a practitioner of equivalent training or experience in the circumstances.
Dr Crawford gave evidence as to his opinion of the implications of the requirements of the Code and the Guidelines for the content of clinical notes. Two examples will suffice to illustrate the import of his evidence. In respect of MT's treatment, Dr Crawford's evidence was that the Clinical Notes were not of the standard which one would expect of a chiropractor with an equivalent level of training or experience, for the following reasons:[1278]
It is unclear which notes are 'contemporaneous': the notes on [Assessment Notes] or the [Clinical Notes].
…
The clinical assessment (history and examination) as recorded is inadequate. While Dr Ebtash's Clinical Notes record some history details, there is no reference in the first part outlining, for example, that [MT] has "pain' … in the low back, which elbow is involved, the cause of the various injuries reported (acute injuries or chronic injuries), etc. There is no detailed documentation of previous treatment that [MT] had received which is significant as she reports … having 'had lots of experience of receiving physiotherapy and chiropractic treatments and am aware of their procedures and generally know what to expect'. A significant aspect of an appropriate clinical history related to pain presentations is the presence or otherwise of referral of pain. Low back pain is referred to on the [Assessment Notes] but is not listed on the Clinical Notes … . There is no reference to any significant other past medical history or past or current use of medications.
The annotation 'consent acquired' appears after the recording of an adjustment for both the 'post ulnar' and 'adjusted lx'. One would reasonably expect, in contemporaneous clinical notes that consent would appear after a diagnosis and plan of management.
There is no indication how the (presumably) lumbar spine was adjusted, e.g. patient position, etc. which would usually be the case with chiropractic adjustments. It is unclear which psoas was 'released' and which hamstring was treated and how, for example, in the supine or prone position.
[1278] Exhibit 1.20 (p25).
By way of further example, Dr Crawford explained the deficiencies in the Notes kept by Dr Ebtash in relation to KM as follows:[1279]
The Code emphasizes that maintaining clear, appropriate and accurate health records is essential for the continuing good care of patients. Further, keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings and determinations, investigations, information given to patients, medication and other management is expected.
The Guidelines … outlines the National Board's expectations on the appropriate standards for clinical record keeping and address how chiropractors should maintain clinical records related to their practice.
…
From my review the documentation provided in the brief I do not consider that Dr Ebtash's record keeping is of an appropriate standard. There is no documentation of the clinical assessment for (at least) the presentation of dizziness, including history and objective or examination findings from which one could consider a differential diagnosis. As primary contact health care practitioners by training and registration, chiropractors, I believe, are responsible for and have a duty of care to clinically assess the presenting complaints of a patient. This includes taking an appropriate history and undertaking an appropriate physical examination. In this case it does not appear that Dr Ebtash did this - at least as far as the documentation provided for review. It appears that the diagnosis of BPPV was made by [KM's] medical practitioner. It is my opinion that a registered chiropractor who graduated in 2003 from the Royal Melbourne Institute of Technology (RMIT) has the requisite skills by training to make or at least confirm this diagnosis by undertaking the appropriate clinical assessment. This does not appear to have been done based on the records provided for review. This is irrespective of Dr Ebtash being requested to see [KM] by a colleague in the same clinic. Furthermore, there is no evidence provided of informed consent being given by [KM] to undertake treatment either spinal manipulation or adjustments, or the Epley manoeuvre.
Moreover, there is no documentation regarding consent to or treatment involving touching [KM's] breasts as alleged by [KM].
Dr Ebtash's clinical notes are not of the standard which one would expect of a chiropractor with an equivalent level of training or experience.
[1279] Exhibit 1.20 (p7).
We accept Dr Crawford's evidence in relation to the Clinical Notes that Dr Ebtash made in relation to KM.
It was Dr Crawford's opinion that the Notes prepared by Dr Ebtash in relation to the female cast members were below the standard which would reasonably be expected of a chiropractor with equivalent training or experience.[1280] We accept that evidence.
[1280] Exhibit 1.20 (p14, 20, 25, 29).
Dr Crawford's opinion is entirely consistent with the views we formed as to the adequacy of the Assessment Notes and the Clinical Notes as accurate and contemporaneous records of Dr Ebtash's treatment. At [238] [242], [405] – [416], and [862], we found that the Assessment Notes and Clinical Notes that Dr Ebtash made in relation to the female cast members could not be regarded as a contemporaneous, accurate, or comprehensive record of his treatment of the female cast members. By way of example, the Notes do not comprehensively record the history taken, the clinical findings and determinations, the investigations undertaken or the information given to the patients. The Notes therefore cannot be regarded as adequate records (as contemplated by paragraph 2.2(d) and 9.4(a) of the Code) and do not meet the minimum requirements for clinical records, as set out in the Guidelines (including cl 2(c), cl 4(d)-(f), (h) and (l) of the Guidelines).
The Assessment Notes made in relation to GR, SN or SS were in evidence. We do not propose to set them out here. It suffices to say that those Notes were similar in content to the Assessment Notes made in relation to the female cast members. There was no evidence that any Clinical Notes were made in relation to GR, SN or SS. As there was no evidence as to the content of the examination or treatment of those patients, it is not possible form any view as to whether the Notes in respect of GR, SN or SS reflected what occurred during those consultations. However, there was expert evidence in relation to the adequacy of those Assessment Notes in other respects, by comparison with the requirements of the Code and the Guidelines.
Dr Crawford noted that the Assessment Notes contained a brief note relating to SN's treatment on the Second Occasion. In Dr Crawford's view, those notes were:[1281]
[I]nadequate, and did not include details of clinical assessment, past medical history, current medications, etc, as would be expected of a chiropractor with an equivalent level of training or experience. There is no reference to informed consent. The side of the ITB, hip and SIJ involvement is not listed which is a significant oversight.
Thus, with regard to [SN], Dr Ebtash's clinical notes were not of the standard which one would expect of a chiropractor with an equivalent level of training or experience.
[1281] Exhibit 1.20 (p31).
In relation to GR, Dr Crawford noted that there was a brief note regarding GR on the Assessment Notes. In Dr Crawford's opinion, those notes were:[1282]
[I]nadequate and do not include details of clinical assessment, past medical history, current medications, etc., as would be expected of a chiropractor with an equivalent level of training or experience. It is unclear if treatment [was] provided but … it appears that GR requested an adjustment of lumbar and SIJ [sacro iliac joints].
[1282] Exhibit 1.20 (p31).
In so far as SS was concerned, Dr Crawford noted that there was a brief note relating to him on the Assessment Notes. In Dr Crawford's opinion, those notes were:[1283]
[I]nadequate and do not include details of clinical assessment, past medical history, current medications, etc,, as would be expected of a chiropractor with an equivalent level of training or experience. It appears that consent was obtained but it is unclear what was discussed as part of the consent process.
[1283] Exhibit 1.20 (p32).
We accept Dr Crawford's unchallenged evidence in relation to the Notes prepared by Dr Ebtash in relation to GR, SN and SS.
We are satisfied, and we find, that the Board has established that in the preparation and content of the Notes made in relation to the complainants, and in relation to the Notes Dr Ebtash made in relation to GR, SN and SS, Dr Ebtash's knowledge, skill or judgment, fell below the standard reasonably expected of a chiropractor of an equivalent level of training or experience.

The orders which should be made

We will hear from the parties as to the terms of the orders which should be made to reflect these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
EH
Associate to the Honourable Justice Pritchard
4 AUGUST 2020

ANNEXURE A
(SUPPRESSED)