Health Care Complaints Commission v Sultan

[2018] NSWCA 303

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Health Care Complaints Commission v Sultan [2018] NSWCA 303
Hearing dates:	15 June 2018
Decision date:	11 December 2018
Before:	Beazley P at [1]; Meagher JA at [159]; Simpson AJA at [174]
Decision:	1.   Appeal dismissed.  2.   Appellant to pay the respondent’s costs of the appeal.
Catchwords:	OCCUPATIONS – health care professionals – medical practitioners – Health Practitioner Regulation National Law (NSW) - unsatisfactory professional conduct – professional misconduct – where respondent admitted unsatisfactory professional conduct - whether Tribunal erred in finding that professional misconduct had not been established – whether Tribunal failed to consider cumulative effect of findings of unsatisfactory professional conduct   ADMINISTRATIVE LAW – judicial review – errors of law – whether Tribunal findings of fact unreasonable irrational or illogical – whether Tribunal failed to have regard to relevant evidence – whether Tribunal erred in failing to consider or make a finding in relation to admitted complaint – whether Tribunal failed to apply the correct legal test for professional misconduct
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29 Health Practitioner Regulation National Law (NSW), ss 139B, 139E, 144, 144D, 145D, 149, 149C, 165H, 165M, Sch 5D, cls 2-5 Health Practitioner Regulation National Law (NSW) Amendment (Review) Act 2016 Health Practitioner Regulation (New South Wales) Regulation 2010, cl 7, Sch 2, cls 1 and 2
Cases Cited:	Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd (2018) 359 ALR 350; [2018] NSWCA 107 D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242; [2013] NSWCA 187 Duncan v Independent Commission Against Corruption [2016] NSWCA 143 Harkin v R (1989) 38 A Crim R 296 Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802 King v Health Care Complaints Commission [2011] NSWCA 353 Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 Ryan v The Queen (1967) 121 CLR 205 SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 Swift v SAS Trustee Corporation [2010] NSWCA 182 Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353
Category:	Principal judgment
Parties:	Health Care Complaints Commission (Appellant) Dr Aamer Sultan (Respondent)
Representation:	Counsel: C Webster SC; B Tronson (Appellant) R Mathur (Respondent)   Solicitors: Health Care Complaints Commission (Appellant) Avant Law Pty Ltd (Respondent)
File Number(s):	2017/268697
Decision under appeal	Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: Health Care Complaints Commission v Sultan [2017] NSWCATOD 47; Health Care Complaints Commission (No 2) [2017] NSWCATOD 121 Date of Decision: 30 March 2017; 7 August 2017 Before: J L O’Meally ADCJ, Principal Member; Dr G Abouyanni, Medical Member; Dr A Reid, Medical Member; M Kelly, Lay Member File Number(s): 2016/378622

Headnote

[This headnote is not to be read as part of the judgment]

The respondent, a medical practitioner, was working in the Emergency Department at the Shoalhaven District Memorial Hospital (the Hospital). Patient A had been treated by the respondent on a number of occasions. She was admitted as an inpatient on 21 October 2013, and was allocated a bed in the surgical ward. The respondent was not part of Patient A’s surgical team on this occasion.

On 24 October 2013, at some point after 10:30 pm, the respondent, who was not on the surgical team, attended Patient A’s surgical ward. She consented to him conducting a chest examination. In the course of doing so, he noticed that he had become sexually aroused, and moved away from the bed. Patient A went to the bathroom. When she returned, the respondent was reading her clinical notes. He informed her that he needed to remove the cannula in her right arm and proceeded to do so. He did not make any record of his attendance or treatment of Patient A the hospital notes. Nor had he obtained approval from Patient A’s surgical team for the examination or treatment. In an interview with senior medical officers of the Hospital the respondent admitted that he had experienced sexual feelings and thoughts towards Patient A during his examination of her.

In 2016, the Health Care Complaints Commission (HCCC) brought proceedings against the respondent in the Occupational Division of the Civil and Administrative Tribunal. Complaints One and Two alleged that the respondent was guilty of unsatisfactory professional conduct, pursuant to s 139B of the Health Practitioner Regulation National Law (NSW) (the National Law). Complaint Three alleged that the conduct alleged in Complaints One and Two, either taken individually or cumulatively, amounted to professional misconduct: pursuant to s 139E. The respondent admitted some, but not all, the particulars of the Complaints.

In March 2017, the Tribunal found the respondent guilty of unsatisfactory professional conduct, pursuant to s 139B of the National Law, but it was not satisfied that he was guilty of professional misconduct, pursuant to s 139E. The Tribunal later made consequential orders reprimanding the respondent and imposing conditions on his registration as a health care practitioner.

The HCCC appealed the Tribunal’s finding that it was not satisfied that professional misconduct had been established. The appeal was limited to a question of law under the Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29. The issues on appeal were:

1.   whether the Tribunal erred in failing to have regard to evidence of central relevance to the question whether the respondent’s conduct was sexual in nature (ground 6) (the evidence of the respondent’s admission of having sexual feelings and thoughts towards Patient A);

2.   whether the Tribunal’s finding that it was not satisfied that the respondent’s inappropriate behaviour was sexual in nature towards Patient A was unreasonable, irrational, and/or illogical (grounds 4 and 5);

3.   whether the Tribunal erred in failing to consider and/or make a finding on Complaint Two, which the respondent had admitted in full (ground 3); and

4.   whether the Tribunal failed to apply the correct legal test for professional misconduct or failed to take into account a relevant consideration (ground 1).

The Court (Beazley P, Meagher JA and Simpson AJA) held, dismissing the appeal:

In relation to ground 6

Per Beazley P (Simpson AJA agreeing) and Meagher JA in separate reasons

(i)   The Tribunal did not fail to consider relevant information: [61]-[62]; [164]-[165].

Per Beazley P (Simpson AJA agreeing)

(ii) The admission, in respect of which the HCCC contended that the Tribunal did not have regard, had been qualified by the respondent in his evidence, and the Tribunal had accepted that evidence. There was no error of law in the Tribunal accepting the respondent’s explanation: [60]-[62].

Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317; Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443, referred to.

In relation to grounds 4 and 5

Per Beazley P (Simpson AJA agreeing)

(i) It was apparent from the HCCC’s submissions and the way in which the case was conducted before the Tribunal, that the gravamen of the case advanced in the contested particulars was that the respondent had intended to sexualise his interaction with Patient A or had a sexual intention in undertaking the examination. The HCCC could not complain if the Tribunal based its decision upon the case that was actually, and indeed, emphatically, run before it: [97]-[100].

(ii) The Tribunal’s rejection of the relevant particulars could not be said to be unreasonable, irrational, or illogical: [101]-[106].

Per Meagher JA in separate reasons

(iii) The Tribunal was not rationally compelled to assume that all contact with a woman’s breast which, objectively assessed, is medically inappropriate or unnecessary, is inherently sexual. Its reasoning, including as to the involuntariness of Dr Sultan’s arousal and his discomfort and embarrassment after becoming aroused, was transparent, intelligible and defensible on the evidence. Thus, its conclusions were not unreasonable: [172].

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Duncan v Independent Commission Against Corruption [2016] NSWCA 143; Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353; King v Health Care Complaints Commission [2011] NSWCA 353; Harkin v R (1989) 38 A Crim R 296, considered;

D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242; [2013] NSWCA 187; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Minister for Immigration and Border Protection v SZVFW (2018) 357 ALR 408; [2018] HCA 30; Harkinv R (1989) 38 A Crim R 296; King v Health Care Complaints Commission [2011] NSWCA 353, referred to.

In relation to ground 3

Per Beazley P (Simpson AJA agreeing)

(i) The making of a wrong finding, whether or not that is due to a misapprehension of, for example, evidence, or as in this case, an admission, does not constitute a failure to make a finding. Nor does the making of a wrong finding, of itself, constitute an error of law. At best it is an error of mixed fact and law: [131].

Per Beazley P (Meagher JA and Simpson AJA agreeing)

(ii) Subject to an error the Tribunal made in recording what was involved in the respondent’s admission, the Tribunal had sufficiently complied with the National Law, s 165M(2). This required that the Tribunal set out any findings on material questions of fact, refer to the evidence or other material on which the findings were based, and give reasons for the decision. Although the Tribunal did not expressly state why it had not made a finding of professional misconduct, it was apparent from its reasons why it had considered that the conduct was unsatisfactory professional conduct and not professional misconduct: [135].

Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136; [2001] FCA 1802; D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242; [2013] NSWCA 187; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184, considered.

In relation to ground 1

Per Beazley P (Meagher JA and Simpson AJA agreeing)

(i) The question for the Court was not whether it would characterise the conduct as professional misconduct, but whether the Tribunal failed to consider that question. The HCCC had not argued that the Tribunal’s reasons were inadequate or that there had been a failure to comply with its statutory obligation under s 165M: [152].

(ii) In circumstances where the Tribunal had made an express finding in respect of the Complaint Three, it could not be said that the Tribunal did not apply the National Law, s 139E, to the facts as found: [153].

(iii) Having regard to the Tribunal’s reasons as a whole, it was apparent that the Tribunal had sufficiently engaged in the evaluative process required to determine the question whether the respondent’s conduct constituted professional misconduct: [156].

Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, considered; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6, referred to.

Judgment

1. BEAZLEY P: On 30 March 2017, a Panel of the Occupational Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) determined a Complaint filed by the Health Care Complaints Commission (the HCCC) against the respondent, Dr Aamer Sultan, finding him guilty of unsatisfactory professional conduct pursuant to the Health Practitioner Regulation National Law (NSW) (the National Law), s 139B: Health Care Complaints Commission v Sultan [2017] NSWCATOD 47. The Complaint concerned the respondent’s conduct on 24 October 2013 in relation to a patient in the hospital where he was working. The patient will be referred to throughout the judgment as Patient A.

2. On 7 August 2017, the Tribunal made consequential orders, reprimanding the respondent and imposing conditions on his registration as a health care practitioner: Health Care Complaints Commission v Sultan (No 2) [2017] NSWCATOD 121.

3. The HCCC, by an amended notice of appeal, has appealed pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29 against the Tribunal’s finding that it was not satisfied that professional misconduct had been established pursuant to the National Law, s 139E. The appeal is on a question of law only. If the appeal is upheld, the HCCC seeks that the matter be remitted to the Tribunal for reconsideration.

4. The details of the HCCC’s amended complaint filed in the Tribunal are set out below. It is sufficient to note at this point that, as argued, the appeal concerned two central contentions: first whether, as particularised, the respondent’s conduct in visiting and examining Patient A in the surgical ward at the Shoalhaven District Memorial Hospital (the Hospital) on 24 October 2013, “was inappropriate behaviour of a sexual nature towards Patient A”, in the sense that it was intentionally sexual; and secondly, whether the Tribunal erred in failing to determine whether the complaints as admitted or proved taken either individually, together or in any combination were such that the respondent’s conduct amounted to professional misconduct.

Background facts

5. The respondent obtained medical qualifications in Iraq in 1992 and practised medicine there for a number of years. He arrived in Australia as an asylum seeker in 1999. In July 2005, he became qualified to practice medicine in Australia. Since February 2007, he has practised as a general practitioner in New South Wales, Queensland, and the Australian Capital Territory. In June 2013, the respondent commenced work as a locum in the Emergency Department of the Hospital.

6. Patient A had attended the Hospital on a number of occasions between August and October 2013. She first came under the care of the respondent on 4 October 2013, when he treated her for hidradenitis suppurativa 1, a disease which causes the lymph nodes to become inflamed and infected with cysts. Patient A attended the Emergency Department at the Hospital on five separate occasions, on 4, 5, 6, 8 and 10 October 2013, to have wounds on her underarms cleaned and dressed. She was treated by the respondent on each occasion with the exception of 8 October. On at least one occasion when she was being treated by the respondent, Patient A complained of pains in her stomach.

7. Patient A was admitted as an inpatient on 10 October 2013 and discharged on 18 October 2018. The respondent was not a member of the surgical team treating Patient A during this period of admission. The respondent made a social visit to the patient in the surgical ward after his shift in the Emergency Department finished at around 10:30pm on 10 October 2013.

8. Patient A was re-admitted as an inpatient on 21 October 2013 and discharged on 25 October 2013. She underwent operations on 22 October and 24 October 2013. During her stay at the Hospital, the patient was allocated one of two beds in Room 6 of the surgical ward. She was under the care of the surgical team during her period of admission. In addition to nursing staff at the ward, a medical registrar was rostered overnight at the Hospital to cover all calls for ward patients.

9. The respondent was not part of the surgical team for Patient A’s admission on this occasion. He was rostered as the Resident Medical Officer (RMO) in the Emergency Department on three occasions during this period, including between midday and 10:30 pm on 24 October 2013.

10. Following her surgery on 24 October, Patient A attended the Emergency Department with the intention of thanking the respondent for his earlier care and treatment. As the respondent was busy, Patient A was unable to speak to him and after an hour, she returned to the ward. She asked the receptionist at the Emergency Department to let the respondent know that she had stopped by to thank him.

11. At some point after 10:30pm, having completed his shift in the Emergency Department, the respondent attended the surgical ward where Patient A was hospitalised. There was another patient present in the other bed in the room. Patient A was asleep when the respondent arrived, but woke up shortly afterwards. At that time, she had a vacuum dressing under her left armpit with a tube attached to drain fluid from the wound; a small dressing under her right armpit; and two small dressings on facial wounds.

12. The respondent told Patient A that he wished to check her stomach and breathing, and she agreed. At the respondent’s request, the patient sat up on the bed with her back facing the head of the bed and her legs on the bed. The respondent sat directly behind her at a 45 degree angle with his feet touching the floor and carried out a respiratory examination. In conducting this examination the respondent placed his stethoscope under the hospital gown on Patient A’s back. He then moved the stethoscope under her right arm to the top of her breastbone and to two or three other places down the breastbone and under the patient’s breast. The respondent noticed that he had become sexually aroused, and moved away from the bed. He moved his hand in the direction of his penis.

13. Patient A went to the bathroom and stayed there for around 10 minutes. When she re-entered the room, the respondent was reading Patient A’s clinical notes. He informed her that he needed to remove the cannula in her right arm and proceeded to do so. This took around five minutes. The respondent then left the room. He did not make any record of his attendance or treatment of Patient A in the hospital notes. The respondent agreed before the Tribunal that he should not have examined or treated Patient A without first obtaining approval from the surgical team.

The legislative scheme

14. The National Law provided, relevantly:

“139B   Meaning of ‘unsatisfactory professional conduct’ of registered health practitioner generally [NSW]

(1)   Unsatisfactory professional conduct of a registered health practitioner includes each of the following—

(a)   Conduct significantly below reasonable standard

Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner’s profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

(b)   Contravention of this Law or regulations

A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.

…

(l)   Other improper or unethical conduct

Any other improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession.

…

139E   Meaning of ‘professional misconduct’ [NSW]

For the purposes of this Law, professional misconduct of a registered health practitioner means—

(a)   unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration; or

(b)   more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner’s registration.

…

144   Grounds for complaint about registered health practitioner [NSW]

The following complaints may be made about a registered health practitioner—

(a)   Criminal conviction or criminal finding

A complaint the practitioner has, either in this jurisdiction or elsewhere, been convicted of or made the subject of a criminal finding for an offence.

(b)   Unsatisfactory professional conduct or professional misconduct

A complaint the practitioner has been guilty of unsatisfactory professional conduct or professional misconduct.

(c)   Lack of competence

A complaint the practitioner is not competent to practise the practitioner’s profession.

(d)   Impairment

A complaint the practitioner has an impairment.

(e)   Suitable person

A complaint the practitioner is otherwise not a suitable person to hold registration in the practitioner’s profession.

…

144D   Complaints to be in writing [NSW]

(1)   A complaint, other than a complaint made by a Council or the Secretary, must—

(a)   be in writing; and

(b)   contain particulars of the allegations on which it is founded.

(2) A complaint need not be made in terms that are strictly consistent with the terminology of section 144 or 144A.

…

145D   Serious complaints must be referred to Tribunal [NSW]

(1)   Both a Council for a health profession and the Commission are under a duty to refer a complaint to the Tribunal if, at any time, either forms the opinion that it may, if substantiated, provide grounds for the suspension or cancellation of a registered health practitioner’s or student’s registration.

…

…

149   Powers may be exercised if complaint proved or admitted [NSW]

The Tribunal may exercise any power conferred on it by this Subdivision in relation to a registered health practitioner or student if—

(a)   it finds the subject-matter of a complaint against the practitioner or student to have been proved; or

(b)   the practitioner or student admits to it in writing to the Tribunal.

…

149C   Tribunal may suspend or cancel registration in certain cases [NSW]

(1)   The Tribunal may suspend a registered health practitioner’s registration for a specified period or cancel the registered health practitioner’s registration if the Tribunal is satisfied—

(a)   the practitioner is not competent to practise the practitioner’s profession; or

(b)   the practitioner is guilty of professional misconduct; or

(c)   the practitioner has been convicted of or made the subject of a criminal finding for an offence, either in or outside this jurisdiction, and the circumstances of the offence render the practitioner unfit in the public interest to practise the practitioner’s profession; or

(d)   the practitioner is not a suitable person for registration in the practitioner’s profession.

…

…

165H   No inquiry required if complaint admitted [NSW]

No inquiry need be conducted into a complaint referred to the Tribunal under this Law if the registered health practitioner or student who is the subject of the complaint admits the subject-matter of the complaint in writing to the Tribunal.

…

165M   Tribunal to provide details of decisions [NSW]

(1)   As soon as practicable after making a decision on an inquiry or an appeal under this Law (bearing in mind the public welfare and seriousness of the matter), the Tribunal must give a written statement of the decision to—

(a)   the parties; and

(b)   the Council for the health profession in which the practitioner or student is registered (regardless of whether it is a party).

(2)   The statement of a decision must—

(a)   set out any findings on material questions of fact; and

(b)   refer to any evidence or other material on which the findings were based; and

(c)   give the reasons for the decision.

(3)   The Tribunal may also provide the statement of a decision to the persons the Tribunal thinks fit.

(4)   Unless the Tribunal has ordered otherwise, the Tribunal is to make publicly available a statement of a decision given by it under this section if the decision is in respect of a complaint that has been proved or admitted in whole or in part.

(5)   This section applies to a decision on an inquiry that is conducted into a complaint referred to the Tribunal under this Law where the subject-matter of the complaint is admitted in writing to the Tribunal.”

15. The Civil and Administrative Tribunal Act, Sch 5, cl 29 provides, relevantly:

“(8)   In determining a non-lawyer appeal, the court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:

(a)   the decision under appeal to be confirmed, affirmed or varied,

(b)   the decision under appeal to be quashed or set aside,

(c)   the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(d)   the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the court.”

The Complaint

16. In the further amended complaint, dated 28 November 2016, the HCCC alleged that the respondent was guilty of unsatisfactory professional conduct: Complaints One and Two; and that the conduct alleged in Complaints One and Two, either taken individually or cumulatively was of a sufficiently serious nature to justify suspension or cancellation of his registration as a medical practitioner such that the respondent was guilty of professional misconduct: Complaint Three.

Complaint One

17. Complaint One alleged that the respondent had engaged in unsatisfactory professional conduct pursuant to s 139B(1)(a) and/or s 139B(1)(l) of the National Law in that he had:

“i.   engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or

ii.   engaged in improper or unethical conduct relating to the practice or purported practice of medicine.”

Each of the particulars to Complaint One was said to justify a finding of unsatisfactory professional conduct; alternatively, two or more of the particulars taken together was said to justify such a finding.

18. The particulars to Complaint One were as follows:

“(1)   Sometime between 10:30 pm and midnight on 24 October 2013 the practitioner failed to maintain appropriate professional boundaries by visiting Patient A on the Surgical Ward in circumstances where:

(a)   he had completed his shift in the Emergency Department;

(b)   he was not part of Patient A’s treating team;

(c)   the purpose of his visit was a social call;

(d)   it was late at night;

(e)   he did not ensure a nurse or chaperone was present

(2)   Sometime between 10:30 pm and midnight on 24 October 2013, in circumstances where he was not part of Patient A’s treating team, the practitioner woke Patient A and:

(a)   informed her he wanted to check her ‘breathing and stomach’;

(b)   proceeded to conduct a chest examination of Patient A;

(c)   …

(d)   engaged in the conduct referred to at (a) and (b) above when there was no clinical basis or need to conduct such an examination at the time it was carried out.

(3)   During the course of the chest examination conducted on 24 October 2013, the practitioner failed to maintain appropriate professional boundaries in that he sat on Patient A’s hospital bed, positioning himself very close behind Patient A, and:

(a)   used his right hand to position a stethoscope under Patient A’s hospital gown beneath her bare right breast;

(b)   brushed his hand across Patient A’s bare right breast on more than one occasion and up to five times, in circumstances where it was not necessary for him to have contact with Patient A’s breast to conduct the examination;

(c)   became sexually aroused;

(d)   engaged in inappropriate behaviour of a sexual nature towards Patient A, by reason of his actions at (a) – (c) above alone or in any combination.

(4)   On 24 October 2013, immediately following the chest examination and after having become sexually aroused, the practitioner failed to maintain appropriate professional boundaries in that he:

(a)   stood up and remained in close proximity to Patient A;

(b)   …

(c)   made a movement with his hand in the area of his penis;

(d)   engaged in inappropriate behaviour of a sexual nature towards Patient A, by reason of his actions at (a) and (c) above alone or in any combination.

(5)   On 24 October 2013, after examining Patient A, the practitioner proceeded to review Patient A’s medical notes and removed a cannula from her hand, the removal of which cannula was inappropriate in circumstances where:

(a)   the cannula had been inserted by the Surgical Team;

(b)   the practitioner was not part of Patient A’s treating team;

(c)   he did not notify Patient A’s treating team of his actions, including by making a record in her medical records or otherwise.”

Complaint Two

19. Complaint Two alleged that the respondent was guilty of unsatisfactory professional conduct under the National Law, s 139B(1)(b), in that he had breached the Health Practitioner Regulation (New South Wales) Regulation 2010 (the Regulation), cl 7, and Sch 2, cls 1 and 2. This complaint consisted of the following particulars:

“(1) The practitioner breached Clause 7 and Schedule 2, Clauses 1 and 2, of the Regulation by failing to make a record of his clinical interaction with Patient A including:

(a)   the date and time of his visit to Patient A;

(b)   the details of his physical examination of Patient A;

(c)   any examination findings;

(d)   his reasons for removing Patient A’s cannula;

(e)   the fact of his removal of Patient A’s cannula.”

Complaint Three

20. Complaint Three alleged that the respondent had engaged in professional misconduct under the National Law, s 139E in that he had:

“i.   engaged in unsatisfactory professional conduct of a sufficiently serous nature to justify suspension or cancellation of the practitioner’s registration, or

ii.   engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner’s registration.”

21. The Complaint was particularised in the following terms:

“Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively.”

The respondent’s pleaded response

22. The respondent admitted some, but not all, of the particulars of the Complaints.

23. The respondent admitted Complaint One, Particulars 1(a), (b), (d) and (e). He did not admit 1(c), saying that his visit to Patient A was initially “a social call” which then became a consultation. He admitted that his conduct in Particular 1 amounted to unsatisfactory professional conduct.

24. The respondent admitted Complaint One, Particulars 2(a) and (b), but did not admit 2(d). In response to that particular, the respondent admitted that there had been no need to conduct the medical examination, but did not concede that there was no clinical basis for it. However, he admitted that his conduct in Particular 2 amounted to unsatisfactory professional conduct.

25. The respondent made a general qualified admission to Complaint One, Particular 3, in that he stated he “now admit[s]” this conduct. He said that he “believed at the time” that he was carrying out the respiratory examination in accordance with proper procedure, but that in view of Dr Golding’s report, he accepted that his “manner of examination was not appropriate in the circumstances and was a failure to maintain appropriate professional boundaries”. Dr Golding was a specialist in Emergency Medicine and provided an expert report for the purposes of the Tribunal hearing.

26. The respondent admitted Particulars 3(a) and (c). In response to Particular 3(b), he admitted the conduct, but pleaded that he had not deliberately brushed his hand against Patient A’s breast, but “may have inadvertently and briefly” done so in the course of the stethoscope examination.

27. The respondent did not admit Particular 3(d) and further responded to that particular in the following terms:

“There was no intent on my part to sexualise the visit or the medical examination I conducted. I regret that I became sexually aroused but this was not the result of any intention by me to engage in any sexual behaviour. I was embarrassed by my arousal and I promptly ceased the examination when I realised I was aroused.”

28. The respondent admitted that his conduct in relation to Complaint One, Particular 3 amounted to unsatisfactory professional conduct. That admission, it should be accepted, only extended to the admitted particulars.

29. The respondent admitted Complaint One, Particulars 4(a) and (c), but said the conduct concerned “was done in a moment of embarrassment”. The respondent did not admit Particular 4(d). In response to Particular 4 as a whole, the respondent admitted that his conduct in becoming sexually aroused “should not have happened” and amounted to unsatisfactory professional conduct. As with his admission in respect of Particular 3, it should be accepted that the admission of unsatisfactory professional conduct only extended to the admitted particulars.

30. The respondent admitted that his conduct in relation to Complaint One, Particular 5, amounted to unsatisfactory professional conduct.

31. The respondent admitted the conduct alleged in Complaint Two and its particulars and that it amounted to unsatisfactory professional conduct. The respondent did not admit Complaint Three and in further response to it maintained that it was not his “intention to seek sexual gratification from Patient A”.

Evidence before the Tribunal

32. The matter proceeded before the Tribunal by way of an agreed statement of facts; documentary evidence relating to the respondent’s qualifications and registration; Dr Golding’s expert report; the transcript of the reasons of the Magistrate in the Local Court for dismissing the criminal charge that was brought against the respondent based on Patient A’s complaint about his conduct; and statements by Dr Street, the Acting Director of Clinical Services at the Hospital at the time the impugned conduct occurred, and Dr Irvine, the Director of Emergency at the Hospital at the time of the Tribunal hearing. The respondent also tendered statements from Mr Walker, his clinical psychologist since 2010 and Dr Bird, the clinical director of a multi-disciplinary health centre who, subsequent to the incident on 24 October 2013, had contracted the respondent to provide general practitioner services and was supervising his transition from the emergency department to general practice. The Tribunal also had access to Patient A’s clinical records. Dr Irvine, Mr Walker and Dr Bird gave oral evidence before the Tribunal. The respondent also gave oral evidence.

33. Patient A did not give evidence before the Tribunal and her absence was unexplained. The respondent made a Jones v Dunkel submission that Patient A’s evidence would not have assisted the HCCC’s case. The Tribunal stated, at [27], that her evidence could have been of assistance in determining whether the HCCC’s version of the matters alleged in Complaint One Particular 3 that the respondent had not admitted had been established. No submissions were made on appeal as to that part of the Tribunal’s reasons, but it is appropriate to observe at this point that the Tribunal accepted the respondent’s evidence that he had no intention or motive to engage in sexual conduct with Patient A.

34. Dr Golding’s evidence is of particular importance in understanding the Tribunal’s reasons as he provided an expert opinion on each aspect of the respondent’s conduct that was subject to the particulars, other than Particulars 3(d) and 4(d). His evidence, relevantly, was as follows:

“8.   From his seated position behind Patient A, [the respondent] using his right hand to move the stethoscope under Patient A’s right arm to the area at the top of Patient A’s breastbone, and moving the stethoscope to two or three other places down the breastbone and under Patient A’s bare breast.

All clinical interactions carry with them a chance of benefit and a risk of harm: good medical decision making involves considering the relative balance between them in each circumstance. In this situation, it seems to me, there is little, if any potential benefit and a number of obvious risks.

This examination is taking place late at night, without a chaperone, by a doctor not part of the responsible treating team on a patient recovering from an anaesthetic who has been woken from sleep. The anterior chest is being examined when there has been no indication of any abnormality reported on auscultation of the posterior chest of Patient A. While having little or no potential benefit, this type of examination is inevitably going to place the Doctors hands in close proximity to Patient A’s breasts.

…

In my opinion, this conduct is significantly below the standard expected of a practitioner of an equivalent level of training and invites my strong criticism.

9.   In the course of moving the stethoscope, [the respondent] brushing Patient A’s right breast on more than one occasion and up to five times.

In any interaction with a patient, there is a decision making process that takes place balancing the chance of benefit of the interaction with the risk of harm.

…

It is my view, that in the circumstance the risk of harm from touching the bare breast of Patient A clearly outweighs any chance of benefit – particularly considering the already compromised position of [the respondent] having commenced visiting Patient A for social reasons.

In my opinion, this conduct is significantly below the standard expected of a practitioner of an equivalent level of training and experience and invites my strong criticism.

10.   [The respondent] becoming sexually aroused during the chest examination of Patient A.

A medical professional should not allow a situation to develop which results in sexual arousal while clinically interacting with a patient.

[Redacted] A relationship that is professional is palpably different to one that is not and part of the responsibility of a treating doctor is to recognize and manage the boundaries between one and the other.

[Redacted]

In my opinion, this conduct is significantly below the standard expected of a practitioner of an equivalent level of training and experience and invites my strong criticism.

11.   [The respondent] standing up from the bed, remaining in close proximity to Patient A and making a movement with his hand in the area of his penis.

In the (unusual and regrettable) event that sexual arousal does occur during an interaction with a patient, the appropriate response is to minimize the damage to the therapeutic relationship in whatever way possible. My view is that remaining in close proximity to Patient A after this had occurred and making a movement towards his own penis cannot be viewed as [Redacted] risk mitigation. A more appropriate response would have been to terminate the examination immediately, apologize, leave the room, make an entry of the encounter in the medical notes and discuss with the treating team.

In my opinion, this conduct is significantly below the standard expected of a practitioner of an equivalent level of training and experience and invites my strong criticism.”

Tribunal’s reasons

35. Having regard to the admissions the respondent made in his response to the Complaint, the matters in issue before the Tribunal were Complaint One, Particulars 2(d); 3(b); 3(d) and 4(d) and Complaint Three.

36. The Tribunal held, at [34], that Complaint One, Particular 2(d), which alleged that there was no clinical basis or need to conduct an examination of Patient A’s stomach or chest, was established. This finding was based upon Dr Golding’s evidence, to which the Tribunal referred at [31], stating that “there was no reasonable professional reason for this examination”, given the lapse of time following the respondent’s examination of Patient A in the Emergency Department and the fact that the respondent was not part of the responsible treating team at that time. The Tribunal, at [33], considered that this last matter was “profoundly significant”, stating that:

“It was not for [the respondent] to conduct a clinical examination, whether or not the patient had made complaints about her breathing and stomach.”

37. The Tribunal, at [35]-[41], examined Particular 3(d), which the respondent denied, in conjunction with Particular 3(b), which the respondent admitted, but qualified, by stating that he had not intentionally brushed his hand against any part of Patient A’s breast and that any touching was inadvertent. The Tribunal’s focus on these particulars was whether the respondent’s conduct involved any intention on his part to engage in sexual behaviour. As I have already indicated, the Tribunal commented that it would have been assisted by Patient A’s evidence in respect of these particulars.

38. The Tribunal, at [40] considered that:

“… it has not been established that the manner in which the respondent’s hand came into contact with the breast of Patient A was sexual in nature but occurred in an ineptly conducted and very ill advised examination.”

39. The Tribunal concluded therefore, at [41], that it was “not comfortably satisfied that there was any sexual motivation in [the] examination”.

40. The Tribunal examined Complaint One, Particular 4, at [42]-[45]. Only Particular 4(d) was in contention. The Tribunal, at [45], accepted Dr Golding’s evidence that a medical practitioner ought not to allow a situation to develop “which results in sexual arousal while clinically interacting with a patient”, but considered that “[i]mplicit in that observation is that there is an intention or a purpose in a medical practitioner to produce a sexual arousal.”

41. The Tribunal concluded, having heard the respondent give his evidence and having given that evidence “the most careful scrutiny”, that it accepted that the respondent’s “erection was involuntary and spontaneous”. The Tribunal noted that when this had occurred, the respondent had stepped back and had not remained with the patient. The Tribunal also stated that it was “troubled by the absence of evidence from which ‘close proximity’ referred to in particular 4(a) may be determined”.

42. The Tribunal, at [46]ff, made a number of general observations in respect of professional boundaries. It is apparent from these observations that the Tribunal considered that these boundaries had not been appropriately observed by the respondent. It stated that a social visit to a former patient “should be brief, conducted during ordinary business hours and with the knowledge of the ward staff”. The Tribunal added that examinations or treatment should never be carried out on a social visit. The Tribunal observed that professional boundaries must always be observed in relation to a practitioner’s interaction with a patient and as between medical professionals. In this regard, the Tribunal stated, at [48]:

“In a hospital setting, when the care of a patient is transferred from one practitioner to another or to a team, the first practitioner must ensure that any subsequent interaction with a patient occurs with the full knowledge and consent of the treating practitioner.”

43. The Tribunal, at [49], found that Particulars 2(d) and 3(b), which were in contention, had been established, but that Particulars 3(d) and 4(d) had not. The Tribunal stated that it made the “same findings” on Complaint Two and held that Complaint Three had not been established. The Tribunal concluded that the respondent’s conduct constituted unsatisfactory professional conduct, but was not satisfied that a case of professional misconduct had been made out. The Tribunal reasoned, at [50]:

“In our view, it is significant that from the very outset the respondent admitted the objective nature of his conduct, that is to say, he admitted what had occurred, but did not agree that his motives or intention, where they are relevant, were those which form the basis of the complaints against him. In this respect, we accept his evidence and are of the view that while he is guilty of unsatisfactory professional conduct we are not satisfied that professional misconduct has been established.”

The appeal

44. Although there were five separate grounds of appeal, there were, as I have said, two central issues, namely whether the respondent had a sexual motivation in visiting and examining Patient A, which was the subject of appeal grounds 4 and 5; and whether the Tribunal had failed to apply the correct legal test for professional misconduct or failed to take into account a relevant consideration, as contended in appeal ground 1. Appeal grounds 3 and 6 were also relevant to the overall determination of the appeal. Appeal ground 2 was withdrawn.

45. It is convenient to commence the determination of the appeal by reference to ground 6, which challenged the Tribunal’s failure to consider the respondent’s evidence that he experienced sexual gratification when he undertook the examination of Patient A. Although not directly relevant to grounds 4 and 5, it is nonetheless relevant to the question whether the respondent’s conduct and reactions in undertaking the examination of Patient A on 24 October 2013 had a specifically sexual connotation. Material relevant to ground 6 also provides a context for certain submissions that were made in respect of grounds 4 and 5.

Whether the Tribunal erred in failing to have regard to evidence of central relevance to one of more of Complaint One, Particulars 3(d) and 4(d) and Complaint Three: appeal ground 6

46. The HCCC submitted that the Tribunal had failed to have regard to the respondent’s admission to Dr Irvine and Dr Street on 29 October 2013, that he had “experienced sexual feelings and thoughts of sexual gratification towards Patient A” during his examination of her. The HCCC submitted that this was of central relevance to the issue of whether the respondent’s conduct was sexual in nature for the purposes of Complaint One, Particulars 3(d) and 4(d), and thus to Complaint Three. The HCCC submitted that, given this admission, no conclusion was open other than that the respondent’s examination of Patient A and interaction immediately thereafter was sexual in nature.

47. The respondent pointed out, however, that the admission on which the HCCC relied in the agreed statement of facts had been the subject of a qualification by Dr Irvine in her evidence before the Tribunal. He also submitted that the Tribunal was not obliged to refer to all the material before it which a party or reviewing court might think would constitute relevant evidence: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [77] and [111]-[112]; Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 per Basten JA at [65]-[66].

48. The respondent submitted, therefore, that in light of the qualification to the admission in Dr Irvine’s evidence and his evidence in response to Dr Irvine’s evidence, it was open for the Tribunal to find that the admission went no further than the undisputed evidence that he had experienced an erection during the course of his examination of Patient A. The respondent submitted that even if the Tribunal had erred in not expressly referring to evidence of the admission, this was not a case where the Tribunal’s decision might have been different had that error not occurred.

Consideration

49. It is necessary, in order to determine whether this ground of appeal has been made out, to have regard first to the admission contained in the agreed statement of facts and then the evidence of Dr Irvine and of the respondent in relation to this particular matter.

50. The agreed statement of facts records at para (43)(v), under the heading “Post 24 October 2013”, that at the meeting with Dr Irvine and Dr Street on 29 October 2013, the respondent made the statement that “during the examination of Patient A on 24 October he experienced sexual feelings towards Patient A and thoughts of sexual gratification”. Dr Irvine gave evidence before the Tribunal and was cross-examined about her note of this meeting that formed the basis of this statement in the agreed statement of facts.

51. Dr Irvine agreed that her notes, which in part had abbreviated or ‘shorthand’ references in them, were later typed up “verbatim as they appeared in [her] shorthand version and then [she] expanded upon the notes by adding [her] translation of [her] shorthand”. Dr Irvine further explained that words that were in italics in the typed version “were written verbatim in full hand at the time of the meeting”, otherwise her handwritten notes were “the gist” of what was said.

52. Dr Irvine stated that when she recorded in her notes that the respondent had thoughts in his head of sexual gratification, the words “sexual gratification” appeared in her notes “in italics” as they were words used by him.

53. Dr Irvine was then cross-examined as follows:

“[COUNSEL]: - - - doctor, I am suggesting to you, it may be that what he said about the phrase sexual gratification was that he had feelings of sexual gratification as opposed to thoughts of sexual gratification. Do you think that’s a possibility?

[DR IRVINE]: I’ve used the word, ‘he said he had thoughts in his head’ so I would presume that that was the words used or similar words used during that interview, because that’s what I’ve actually written on the notes.

[COUNSEL]: If he said feelings of sexual gratification during the examination, would you think that was substantially different? So far as the substance of what he was conveying to you is concerned?

[DR IRVINE]: Not really, and he – there is a note further down the page saying he said he felt sexual feelings to her during the examination, so that word was used also.”

54. At the conclusion of cross-examination and re-examination, Tribunal member Dr Abouyanni asked a number of questions of Dr Irvine as follows:

“DR ABOUYANNI: … Dr Irvine … in that same paragraph, Dr (indistinct) said he’d had thoughts you said of sexual gratification. Can you remember if the question was about (indistinct) prior to attending to the wound, or during the examination?

…

DR IRVINE: Dr Street had asked the nature of the review that occurred on the ward and the following bullet points were the answers received by [the respondent] during that interview in relation to that question.

DR ABOUYANNI: So you can’t recall whether he expressed that this was (indistinct) thoughts actually happened before, or he had intention to – to go to the ward to gratify himself, or it developed as a feeling during examination? That was not explored?

DR IRVINE: No, it was felt that we shouldn’t continue the interview.”

55. The respondent, in his oral evidence before the Tribunal, was questioned about the interview with Drs Irvine and Street. He agreed that he had used the term “sexual gratification” during the interview. He then gave the following evidence:

“[COUNSEL]: Did you explain what the nature – did you explain in any detail what the nature of the sexual gratification was?

[RESPONDENT]: I did mention that meeting that was – the feelings I had during the examination, which I was referring, sorry, to the erection.

[COUNSEL]: Right. Did you mention the erection?

[RESPONDENT]: No, not in the word.

[COUNSEL]: Right.

[RESPONDENT]: I was embarrassed to say it.

[COUNSEL]: But what did you mean when you were – when you used the term ‘sexual gratification’?

[RESPONDENT]: It’s exactly what I meant at the time. I believe it was that I have the sexual feeling of arousal and erection and she also – during the examination – and she also stated that in the statement.

[COUNSEL]: Excuse me a moment. Now, during the examination there’s an allegation which you’ve conceded that based upon the assertion made by [Patient A] that you brushed your hand across her right breast in the course of doing a stethoscope examination. Do you remember brushing your hand across her breast in the course of the examination?

[RESPONDENT]: No.

[COUNSEL]: Okay. But you’ve nevertheless conceded based on her allegation that you have done that.

[RESPONDENT]: Could have.

[COUNSEL]: Is that so?

[RESPONDENT]: It could have happened, yes.

[COUNSEL]: Is that because she said so?

[RESPONDENT]: Because of the nature of the examination itself.

[COUNSEL]: Right. Assuming you did brush her breast with your hand on one or more occasions, was that something that you deliberately intended to do?

[RESPONDENT]: No.

[COUNSEL]: And can you tell the tribunal, was any part of your examination motivated by a desire to gain some sexual gratification from the patient in the course of examining her?

[RESPONDENT]: Definitely not.

[COUNSEL]: All right. Can I ask you this: you recognise that you developed an erection at some stage during the examination. Is that right?

[RESPONDENT]: Yes.

[COUNSEL]: How long was it once, you recognised you had an erection, before you ceased the examination?

[RESPONDENT]: Immediately.

[COUNSEL]: So far as the decision that was taken – I withdraw that. When you – after you developed the erection and you ceased the examination, there’s an allegation that you made a motion with a hand – with your hand towards your penis. Do you remember doing that?

[RESPONDENT]: I remember very embarrassed and did something to try to make it less obvious.

[COUNSEL]: Because your penis was – apparently from looking at you – poking your pants out, I assume, was it?

[RESPONDENT]: I was hoping that no one – that she was not noticing, but I was aware of it. Yes.

[COUNSEL]: Do you remember adjusting yourself or putting your hand near your penis at one stage?

[RESPONDENT]: My best recollection – my best recollection is that through my pants outside, very quickly, made a move towards that. I think it was also kind of a reflex reaction very quickly to - - -

[O’MEALLY ADCJ]: I don’t know that you’ve quite answered the question that was put to you, that is, did you motion with your hand towards your penis?

[RESPONDENT]: Yes.” (emphasis added)

56. Counsel for the HCCC did not cross-examine the respondent on the explanation he had given of what he meant when he had used the phrase “sexual gratification” in the meeting with Drs Irvine and Street, nor did she directly question him in terms that when he went to the ward or during his visit to Patient A, he had a sexual motivation, in the sense that he was seeking sexual gratification.

57. The Tribunal, at [23], set out para (43) of the agreed facts, including 43(v), which contained the statement that the respondent “experienced sexual feelings towards Patient A and thoughts of sexual gratification”.

58. At [38], the Tribunal referred to the respondent’s evidence that: he had no intention to sexualise the visit or the medical examination; he was embarrassed and regretted that he had become sexually aroused; he asserted that it was not his intention to engage in any sexual behaviour; and he had ceased the examination and stepped away from the bed immediately when he became erect. The Tribunal accepted the respondent’s evidence that “he was very uncomfortable and embarrassed”.

59. In circumstances where the explanation given by the respondent was not the subject of cross-examination and given the Tribunal’s acceptance of the respondent’s evidence that “he was very uncomfortable and embarrassed”, and the balance of its reasons, it is apparent that the Tribunal at [38], accepted the respondent’s explanation that he had no intention to sexualise his visit to Patient A.

60. That being so, the “agreed fact” upon which the HCCC relied in this ground of appeal was to be understood having regard to the explanation given by the respondent in his oral evidence. It was apparent from the respondent’s explanation that the statement that “he experienced sexual feelings towards Patient A and thoughts of sexual gratification”, was a reference to the fact that he became sexually aroused and had an erection. The Tribunal did not have to accept the respondent’s evidence, but that was a matter for the Tribunal. There was no error and, in particular, there was no error of law in the Tribunal accepting the respondent’s explanation.

61. In my opinion, the HCCC’s contention that the Tribunal failed to consider relevant evidence is incorrect. The admission in para (43)(v), in respect of which the HCCC contended the Tribunal did not have regard, had been qualified by the respondent in his evidence and the Tribunal had accepted that evidence.

62. It follows, in my opinion, that ground 6 should be rejected.

Whether the Tribunal erred in finding that Complaint One, Particulars 3(d) and 4(d) had not been made out: appeal grounds 4 and 5

63. In grounds 4 and 5, the HCCC contended that the Tribunal’s finding that it was not satisfied, in respect of Complaint One, Particulars 3(d) and 4(d), that the respondent’s inappropriate behaviour was sexual in nature towards Patient A, was “unreasonable, irrational and/or illogical”. The HCCC emphasised that the conduct the subject of Particular 3(d) related to conduct that occurred during the course of the chest examination. The conduct the subject of Particular 4(d) concerned the respondent’s conduct after the examination, but whilst he was still in the surgical ward with Patient A.

64. Before embarking upon the consideration of these grounds, it is necessary to observe that there was a dispute between the parties first, as to whether implicit in Particulars 3(d) and 4(d) was an allegation that the respondent’s visit to Patient A was sexually motivated and involved sexualised conduct and secondly, whether the HCCC had conducted its Complaint before the Tribunal on that basis. The HCCC accepted that if the Court was satisfied that these Particulars involved allegations of conduct that involved the respondent having a sexual motivation or intention towards Patient A, then it would fail in respect of grounds 4 and 5, as that case had not been proved.

65. The HCCC’s position on the appeal was that in order to establish that the respondent’s behaviour was “inappropriate behaviour of a sexual nature”, as alleged in each of Particulars 3(d) and 4(d), it only needed to establish that a “basic feature or character or quality” of the act was sexual. In this regard, it relied upon the Oxford living online dictionary definition of “nature” to mean “basic, inherent feature, character or quality”.

66. The HCCC’s focus in its oral submissions echoed its written submissions, in that it contended that the Tribunal erred in its understanding that Complaint One, Particulars 3(d) and 4(d), involved an allegation of intentional sexual conduct. The HCCC submitted that the Particulars did not allege intentional sexual conduct and that this had not been its case before the Tribunal. In support of this, the HCCC referred to the chapeau to Particulars 3 and 4 which alleged a failure to maintain appropriate professional boundaries.

67. The HCCC also referred to the observation in King v Health Care Complaints Commission [2011] NSWCA 353, at [65], that guidance as to “what constitutes sexual conduct in the present context can be obtained from decisions in the field of criminal law concerning indecent assault”.

68. The respondent submitted that it was apparent from the way in which Particulars 3(d) and 4(d) were framed, that implicit in each was an allegation of sexual intention or motivation. The respondent submitted that this was apparent from use of the word “engaged” in each particular, together with the phrase “towards Patient A”.

63. The respondent also submitted that the principal way in which the HCCC conducted its case before the Tribunal related to his intention in visiting Patient A and in conducting the respiratory examination. The respondent said that this was apparent from the HCCC’s opening submission to the Tribunal, where the HCCC’s counsel stated:

“MS LOWSON: … [the HCCC’s] case is that the primary position is that on the admitted facts alone, the tribunal would be satisfied that the respondent’s actions are significantly more serious than an error of judgment and would warrant a finding of professional misconduct. The complainant says, further that the appropriate inferences to be drawn from the admitted facts and, if other contested matters are found proven, those further facts that the proper inference is that [the respondent] either initiated the visit to patient A and/or initiated the chest examination and/or conducted the chest examination in the way that he did, for the purpose of his own sexual gratification … and the decision not to record any notes of his visit or to make a report about his sexual arousal

… the only reasonable explanation from that conduct, is that [the respondent] deliberately took advantage of the doctor/patient relationship to touch patient A’s breasts and make her aware of his sexual arousal, for his personal gratification and not, as [the respondent] would invite you to believe, that the breast touching and sexual arousal were the inadvertent by-product of an otherwise appropriate clinical examination. That is the opening on behalf of [the HCCC].” (emphases added)

70. The respondent also pointed to his counsel’s statement to the Tribunal, as to what he understood the case to be against him, as follows:

“… the heart of this really was crystallised by Dr Abouyanni’s question to Dr Irvine, if the tribunal finds on the one hand that [the respondent] went to the consultation with sexual gratification in mind, that is one very serious circumstance. If on the other hand, you find that the sexual arousal took place inadvertently not with any intention, then that is unsatisfactory professional conduct as Dr Sultan has conceded but it puts a very different light on the nature and extent of the seriousness of it. So that decision, amongst others, has to be made by the tribunal, we say, before we can - - -”

71. The respondent pointed out that the HCCC’s counsel did not refute this observation insofar as it related to intention. It followed, on the respondent’s submission, that there was no error in the Tribunal’s understanding that these particulars involved allegations of intentional conduct in the sense that the respondent visited Patient A with the intention of engaging with her in a sexual manner.

72. Although neither party referred to them, it is also appropriate to refer to the HCCC’s closing written submissions to the Tribunal:

“25.   If the chest examination was not clinically indicated then in accordance with the Court of Appeal decision in King v Health Care Complaints Commission [2011] NSWCA 353 at [149] the Tribunal must decide whether the examination was a result of ignorance, inexperience or incompetence, or was misconduct.

26.   The Tribunal would find, based on the evidence, that the chest examination, performed in the way that it was, gave rise to a significant and appreciable risk that [the respondent] would touch Patient A’s breast.

27.   The touching of Patient A’s breast was sexual in nature and, in the absence of any proper clinical purpose of the examination being conducted at the time that it was or in the manner that it was, the appropriate conclusion is that the chest exam was performed for a sexual purpose.

…

28.   For the first time in cross examination [the respondent] gave evidence that, close in time to realising he had an erection, he noticed his breath on Patient A’s neck, and noticed the ‘scent’ of Patient A’s skin. To the extent necessary the complainant adds these facts as sub-particular to Particular 3 and relies on this evidence, together with the use of the stethoscope on Patient A’s bare breast, the breast touching, the fact that [the respondent] developed an erection, and his admission he failed to maintain appropriate professional boundaries with Patient A, to support a finding that [the respondent] engaged in conduct of sexual nature with Patient A. Even if [the respondent’s] awareness of his breath and Patient A’s scent occurred over a short period of time, and notwithstanding his rejection of this characterisation, what he described was not a chest examination but an intimate embrace. [emphasis added]

…

29.   [The respondent] described a high degree of embarrassment and that this was why he remained in close proximity to Patient A whilst moving his hand towards his erect penis. He had no explanation of why he did not simply turn on his heel and walk away from Patient A. Ultimately, whether or not he did these things out of embarrassment, there is no doubt that his conduct was sexual in nature. Further, although he has admitted that developing an erection was unsatisfactory professional conduct, this Tribunal should go further and find that he failed to maintain appropriate professional boundaries.”

73. In addition to this question, the HCCC made specific challenges to the Tribunal’s determination of Particulars 3(d) and 4(d).

Particular 3(d)

74. Particular 3 first identified three specific aspects of the respondent’s behaviour: the placement of the stethoscope underneath Patient A’s bare right breast: Particular 3(a); the brushing of his hand across her breast up to five times when it was not necessary to do so for the purposes of the examination: Particular 3(b); and that he became sexually aroused: Particular 3(c). There then followed the general allegation in Particular 3(d). The HCCC submitted that any of the conduct particularised in Particulars 3(a)-(c), alone or in combination, constituted “inappropriate behaviour of a sexual nature” as alleged in Particular 3(d).

75. The HCCC submitted that in order to establish that the respondent’s conduct constituted “inappropriate behaviour of a sexual nature” as particularised, it did not need to prove that the respondent “consciously intended or planned or was motivated to sexualise the visit”. In summary, it contended that it was sufficient that it establish that: the respondent had become sexually aroused in circumstances where the visit itself was inappropriate, as the respondent was not the treating doctor and the visit had occurred late in the evening; this in turn reduced the likelihood of there being witnesses to observe the visit to the ward, and thereby avoided oversight of the visit; and that the examination had no clinical justification and was not conducted appropriately. In this last respect, it should be noted that the respondent, having read Dr Golding’s report, had accepted that the examination had not been conducted in an appropriate clinical manner.

76. The HCCC also relied upon the statement in the agreed facts that “during the examination of Patient A [the respondent] experienced sexual feelings towards Patient A and thoughts of sexual gratification” and that he knew that those feelings were inappropriate. However, for the reasons given in respect of appeal ground 6, reliance on the statement in the agreed facts can be put aside for the purposes of deciding appeal grounds 4 and 5.

77. The HCCC contended, therefore, that the Tribunal’s rejection of Particular 3(d) was not “reasonable, rational or logically open to it”.

Particular 4(d)

78. The specific particulars of Particular 4 were that after having become sexually aroused, the respondent stood up and remained in close proximity to Patient A: Particular 4(a); and made a movement with his hand in the area of his penis: Particular 4(c).

79. The HCCC’s essential complaint in respect of the Tribunal’s finding in respect of Particular 4(d) was to the same effect as its complaint in respect of Particular 3(d). It pointed out that the Tribunal, at [45], focused only on whether there was an “an intention or a purpose … to produce a sexual arousal” and that it did not examine whether an inherent or basic feature of the conduct itself was sexual.

80. The HCCC pointed to the context in which the respondent had an erection, stating that the “sexual nature of the conduct” followed the respondent’s examination of Patient A in which he had brushed his hand across her breasts. The HCCC submitted that even if it were accepted that the respondent’s erection was spontaneous and involuntary, that did not alter the fact “that the movement of [his] hand in the area of his penis was inherently sexual in nature”.

81. The HCCC submitted that the Tribunal had misunderstood Dr Golding’s evidence that “a medical professional should not allow a situation to develop which results in sexual arousal while clinically interacting with a patient”. As stated above, the Tribunal, at [45], had interpreted that observation as having implicit in it that “there is an intention or a purpose in a medical practitioner to produce a sexual arousal”. The HCCC submitted that that was not an available reading of Dr Golding’s evidence.

82. The HCCC also submitted that there was “no rational basis” for the Tribunal’s observation, at [45], that it was “troubled by the absence of evidence” from which “close proximity” between the respondent and Patient A, after the respondent realised that he had an erection, might be determined.

Consideration

83. The HCCC’s appeal to this Court pursuant to the Civil and Administrative Tribunal Act, Sch 5, cl 29, is on a question of law only. The HCCC in appeal grounds 4 and 5 challenged the Tribunal’s findings that Particulars 3(d) and 4(d) had not been established on the basis that the findings in respect of each were “unreasonable, irrational and/or illogical”.

84. In the context of jurisdictional error, Crennan and Bell JJ, in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16, observed, at [131]:

“… the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.”

85. In Duncan v Independent Commission Against Corruption [2016] NSWCA 143, Bathurst CJ observed, at [278], that “findings or inferences of fact can be challenged if the decision was irrational or illogical and not based on findings or inferences of fact supported by logical grounds”. That observation was made in respect of jurisdictional error, but equally applies to the question whether there was an error of law.

86. To the same effect, but expressly in relation to error of law, is the observation in Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353, where the Court (McDougall J, myself and Simpson JA agreeing) stated, at [73], that there was an error of law where findings of fact were “not reasonably open on the whole of the evidence”. See also D’Amore v Independent Commission Against Corruption (2013) 303 ALR 242; [2013] NSWCA 187 at [76]-[83]. However, as the Court pointed out in Minister for Immigration and Citizenship v SZMDS at [31], there will be no jurisdictional error or error of law where reasonable minds might differ as to the conclusion that might be reached on the facts as found or the inferences drawn from the found facts.

87. It is clear from the Tribunal’s findings at [40]–[41], set out above at [38]-[39], that it had understood the complaint made in Particular 3(d) was that the manner in which the respondent touched Patient A’s breast was “sexual in nature” and that the respondent had a “sexual motivation in this examination”. The Tribunal had understood Particular 4(d) to also involve a sexual intent or purpose: see reasons at [45]. The Tribunal rejected that that case had been made out in respect of either particular. The physical acts and responses: the examination, the touching of the breasts, the erection, and the moving of his hand towards his penis, were of course, admitted. The Tribunal found that the examination was conducted ineptly and was ill-advised and that the erection was involuntary and spontaneous.

88. The Tribunal held that it had not been established, in respect of that conduct, that the respondent had “engaged in inappropriate behaviour of a sexual nature towards Patient A”.

89. In order to determine whether the Tribunal erred in law in coming to that conclusion, it is necessary to determine the basis on which the case was conducted before the Tribunal. The HCCC submitted that it had not advanced its case before the Tribunal on this basis. Rather, it contended that its case was that the conduct in question was sexual in nature and that was sufficient for it to establish each of Particulars 3(d) and 4(d). In other words, the HCCC submitted that the physical acts and responses including the touching of the breasts and the respondent’s erection of themselves were sexual acts and the fact of those acts and reactions established that the respondent had “failed to maintain appropriate professional boundaries” as was alleged in respect of each of Particulars 3 and 4.

90. The HCCC acknowledged that unless this Court accepted its contention that no element of intentional sexual conduct was involved in these particulars, appeal grounds 4 and 5 would fail.

91. As I have indicated above, the HCCC, in support of its argument that Particulars 3(d) and 4(d) did not involve an allegation of intentional sexual conduct towards Patient A, relied upon the observation in King v Health Care Complaints Commission that assistance can be gained as to what constitutes sexual conduct from decisions in the criminal law concerning indecent assault. Relevantly, in that case, the Tribunal had found that the manner in which the appellant had conducted pap smears on two adult patients was sexual in nature. The issue on the appeal was whether there had been a denial of procedural fairness, which in turn raised the question whether the complaint had alleged sexual misconduct as had been found by the Tribunal.

92. Macfarlan JA, at [66], in drawing assistance from the criminal law extracted the following passage from Harkin v R (1989) 38 A Crim R 296 at 301 per Lee CJ at CL:

“It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault … if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent … The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.” (emphasis added)

93. The HCCC emphasised the observation in Harkin which is bolded in the passage set out above.

94. For myself, I have not found the decision in Harkin to be of particular assistance, except that it makes the point, as is self-evident, that conduct must be considered in context. In the case of an interaction between a medical practitioner and patient, context and circumstances, including the nature of and how a medical examination is undertaken, are of critical importance.

95. Any medical examination involves intentional conduct. The intentional conduct particularised was “inappropriate conduct of a sexual nature towards Patient A”. However, the allegation in Particular 3 was that the respondent “failed to maintain appropriate professional boundaries in that he sat on Patient A’s hospital bed” and “engaged in inappropriate behaviour of a sexual nature towards Patient A” by reason of one or more of the actions particularised. The complaint in Particular 4 was the same, except that the conduct constituting the failure to maintain professional boundaries was the conduct particularised as “after having become sexually aroused”.

96. Notwithstanding the ambiguity of the wording “engaged in inappropriate behaviour of a sexual nature towards Patient A” in Particulars 3(d) and 4(d), when construed in the context of the chapeau and each of the particularised acts and reactions, there is some force in the HCCC’s contention that the Complaint it brought against respondent did not plead intentional sexual conduct.

97. However, that is not the way, or not the only way, in which the Complaint was conducted before the Tribunal. It is apparent from the HCCC’s opening, set out above at [69], that the gravamen of its case advanced in these particulars was that the respondent had intended to sexualise his interaction with Patient A or had a sexual intention in undertaking the examination. There is also the absence of any response to or correction of the respondent’s counsel’s submission referred to above at [70].

98. When regard is then had to the HCCC’s closing submissions, there is nothing in them that dissuades me that the case as conducted was that the respondent had a sexual intent in conducting the examination. Indeed, it is to the contrary, as I explain below. It is not irrelevant that the closing submissions were in writing, so it cannot be argued that there was a slip of the tongue or any ambiguity in those submissions.

99. The sexual intent alleged was given particular emphasis in the submission that “what [the respondent] described was not a chest examination but an intimate embrace”. This submission cannot be dismissed as a mere advocate’s flourish. In my opinion, it demonstrates that at the front and centre of the HCCC’s conduct of the Complaint before the Tribunal was that the respondent had intentionally engaged in sexual conduct towards Patient A.

100. As already stated, the HCCC conceded that unless this Court was satisfied that its case was not, or at least was not confined to, a complaint of intentional sexual conduct towards Patient A, then grounds 4 and 5 would fail. As I have indicated, I do not accept that the case as it was conducted before the Tribunal was based on the respondent’s interaction with Patient A being “conduct of a sexual nature” either of itself or resulting in sexual arousal, being “inappropriate behaviour of a sexual nature”. The case sought to be made before the Tribunal was of intentional sexual behaviour towards Patient A. The HCCC cannot complain if the Tribunal based its decision on the case that was actually and, indeed, emphatically run.

101. But even if the case against respondent did not involve an allegation of intentionally sexualised conduct, the Tribunal’s rejection of Particulars 3(d) and 4(d) could not be said to be unreasonable, irrational or illogical, as grounds 4 and 5 allege. A medical examination may involve touching a patient’s sexual organs. A breast examination is the classic example. It could not be said in that circumstance that the medical practitioner who undertook such an examination “engaged in conduct of a sexual nature”. This is apparent from Dr Golding’s evidence. Whilst Dr Golding was highly critical of the respondent’s conduct, including that he had become sexually aroused during the examination, it is apparent from his evidence that that is not only a possibility that can occur during the course of a doctor/patient relationship, but that is something that must be managed.

143. The respondent submitted that the Tribunal had identified from the outset that his state of mind was the key consideration in assessing the gravity of his conduct and had made relevant findings on that question. These included that it was “not comfortably satisfied that there was any sexual motivation in this examination”: at [41]; that having heard the respondent and given his evidence “the most careful scrutiny”, it accepted “the evidence that his erection was involuntary and spontaneous”: at [45]; that Particulars 3(d) and 4(d) of Complaint One had not been established: at [49](b); and that it accepted the respondent’s evidence that whilst the conduct had occurred, his motives or intention were not those which formed the basis of the complaints against him: at [50].

144. The respondent argued that, having found in the respondent’s favour on the central issue, namely whether the respondent had a sexual intention in undertaking the examination, “[l]ittle else was required by way of reasons in these circumstances”.

145. The respondent also submitted that the HCCC’s complaint arose in circumstances where it had not particularised in its complaint which particular instances of conduct, alone or in combination, amounted to conduct that was of a sufficiently serious nature to constitute professional misconduct, the point being, as I understand it, that the Tribunal was not given any guidance on how this aspect of its Complaint should be determined. The respondent made the same point in relation to ground 3: see above at [126].

Consideration

146. Ground 1 of the appeal as framed raised two issues: first, that the Tribunal failed to apply the correct legal test pursuant to s 139E; and secondly, that it failed to have regard to a relevant consideration, namely, whether the proved misconduct amounted to conduct of a sufficiently serious nature to justify suspension or cancellation of the respondent’s registration as a doctor.

147. However, as the appeal was argued, the HCCC’s contention on this ground of appeal was that the Tribunal erred in law in that it failed to give any consideration to what was involved in professional misconduct separately from the question of the admitted unsatisfactory professional conduct. The HCCC reiterated throughout its submissions that there was “simply no reference at all to the test in s 139E”, and that it was necessary for the Tribunal to determine whether the admitted or proved unsatisfactory professional conduct was sufficiently serious to warrant a finding of professional misconduct.

148. In making this submission, the HCCC did not raise any question of statutory construction as to the meaning of “professional misconduct” although reference was made to the decision of the Court in Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186, to which I refer below.

149. The HCCC contended that, even accepting that Complaint One, Particulars 3(d) and 4(d) were not established, the otherwise admitted or proved conduct in Complaints One and Two either on their own or together were such that the Tribunal ought to have made a finding of professional misconduct. It was an aspect of this argument that even though the particulars of the Complaint as admitted and proved were all part of a single incident and, accepting that it started from the respondent’s initial misjudgement in visiting Patient A, there were a number of occasions on which the respondent could have discontinued his conduct but he did not do so.

150. The HCCC pointed out that the respondent had accepted that was so during the course of his cross-examination. For example, he said:

“MS LOWSON: … [Patient A] having woken up in your presence, why didn’t you maintain a very short social call of five minutes like you had on the previous occasion?

[RESPONDENT]: In the way walking to the – to the surgical ward, there was a thought in my head, ‘Maybe this is not the right thing to do. Maybe I should wait until the morning,’ but at the other hand, I was kind of like really obliged – I was honoured by any patient coming and waiting for me more than an hour to thank me. It was just that, ‘Shall I really turn back? Would it be better to say: yes, the doctor came and thanked me tonight rather than wait in the morning?’ This doubt was in my head. Could I have turned? Yes, I could. Why didn’t I? It’s a matter of milliseconds, I would say. I don’t know. I don’t know how to answer that.”

151. Section 139E, which defines “professional misconduct”, is set out above. In Chen, Basten JA observed that:

“[19]   … The term ‘professional misconduct’ does not have a specific meaning; it is merely a category of ‘unsatisfactory professional conduct’ which is sufficiently serious to justify suspension or cancellation. The phrase ‘unsatisfactory professional conduct’ is broadly defined by reference to 12 separate categories of conduct relating to professional practice. They include demonstrating competence or care below the standard reasonably expected of a practitioner of an equivalent level of training or experience … and … any other improper or unethical conduct relating to the practice of the practitioner’s profession.

[20]   There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be ‘sufficiently serious’ to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal.” (footnotes omitted)

152. The question for this Court’s determination is not whether it would characterise the conduct as professional misconduct but whether the Tribunal failed to consider that question. In identifying the relevant question of law in that way the HCCC eschewed any suggestion that its complaint, under this ground of appeal, was that the Tribunal’s reasons were inadequate. Nor did it, in respect of this ground of appeal, contend that there had been a failure to comply with its statutory obligation under s 165M.

153. In my opinion, in circumstances where the Tribunal made an express finding in respect of Complaint Three, namely, that it had not been established, it cannot be said that the Tribunal did not apply s 139E to the facts as found. If that submission were to be accepted, it would be tantamount to saying that the Tribunal had made an express finding to which it had given no consideration at all.

154. Alternatively, the effect of the submission was that the Tribunal had failed to apply the correct legal test or failed to have regard to a relevant consideration, notwithstanding that it had referred to s 139E at [1] of its Reasons; set out the terms of Complaint Three, which was cast in the express terms of s 139E; noted at [20] that Complaint Three was not admitted; and at [21] stated: “[t]hus, the respondent admits he is guilty of unsatisfactory professional conduct but does not admit he is guilty of professional misconduct”.

155. I do not consider that such a conclusion is open having regard to the Tribunal‘s reasons as a whole, including the matters to which I have just referred. Not only do the Tribunal’s Reasons demonstrate that the Tribunal knew that the question whether the respondent’s conduct constituted professional misconduct was one of the matters in issue, I consider that it is apparent from [50] of the Reasons that the Tribunal determined that matter.

156. As the Court observed in Chen, whether conduct constitutes professional misconduct is an evaluative judgment. Whilst the Tribunal’s conclusion at [50] is stated in brief terms, it expressly rejected that the respondent’s conduct amounted to professional misconduct. In doing so, its focus was on the question whether the respondent’s conduct on 24 October 2013 in visiting and whilst visiting Patient A in the surgical ward was sexually motivated. Nonetheless, it had in the immediately preceding paragraph made its specific finding in respect of each complaint. Relevantly for the purpose of this ground of appeal, the Tribunal found that Complaint Three, which alleged professional misconduct, was not established. In my opinion, the Tribunal sufficiently engaged in the evaluative process required to determine the Complaint.

157. It follows, in my opinion, that this ground of appeal should be rejected.

158. I propose the following orders:

1.   Appeal dismissed.

2.   Appellant to pay the respondent’s costs of the appeal.

159. MEAGHER JA: These reasons assume a familiarity with the judgment of Beazley P, which I have had the benefit of reading in draft. I agree with her Honour that the appeal should be dismissed with costs. My reasons for rejecting grounds 6, and then 4 and 5, follow. As to ground 3, I agree with her Honour’s reasons at [135] that the complaint identified in [121] is not made out. Finally, insofar as ground 1 asserted a failure to consider whether Dr Sultan’s conduct amounted to “professional misconduct”, it was misconceived for the reasons at [152]–[153]. The Tribunal’s finding on that issue was reasonably open for the reasons at [156], and not otherwise legally erroneous, including for the reasons below.

Failure to consider evidence (ground 6)

160. Ground 6 asserts three propositions: first, that a failure to have regard to evidence “of central relevance” to particulars of a claim amounts to an error of law; secondly, that Dr Sultan’s admission to having “experienced sexual feelings and thoughts of sexual gratification towards Patient A” made to Drs Irvine and Street was of central relevance to the allegations in Particulars 3(d) and 4(d) of Complaint One and in Complaint Three that he “engaged in inappropriate behaviour of a sexual nature towards Patient A, by reason of his actions” in Particulars 3(a)–(c) and 4(a) and (c) of Complaint One; and thirdly, that the Tribunal failed to have regard to that evidence.

161. As to the first, the requirement to have regard to relevant considerations was traditionally limited to elements or integers of a claim, as distinct from mere evidence said to establish such allegations of fact: see eg Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396; [2001] FCA 1196 at [79] (Allsop J). In response to perceived difficulties in distinguishing between evidence and integers of a claim, recent authority has favoured extension of that requirement to embrace some “substantial and consequential” evidence: Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111] (Robertson J), citing SHKB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 545 at [24] (Selway J).

162. More specifically, Basten JA in Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [65] (McColl and Simpson JJA agreeing) observed that “to ignore or overlook apparently credible and relevant information, which might support an essential step in the reasoning process if the claim were to be upheld, may itself constitute a constructive failure to exercise the function conferred on the Tribunal” (emphasis added). That proposition has been applied in dismissing an appeal from the Tribunal exercising powers under the National Law: Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [103]–[105], Payne JA (Basten and Leeming JJA agreeing). For present purposes, what matters is that any such requirement to have regard to evidence must derive from an express or implicit prescription in the statute conferring the applicable power or regulating its exercise: Torbey at [67].

163. As to the second proposition above, Dr Sultan’s admission was only relevant insofar as it tended to prove the existence of a state of mind that could render his behaviour “inappropriate” or “sexual”, particularly an intention to obtain sexual gratification. Thus, ground 6 presupposes that some allegation as to Dr Sultan’s state of mind was an element or integer of the HCCC’s claim before the Tribunal, whose reasons explicitly consider Dr Sultan’s “intention” and “motivation” (at [38], [40], [41] and [45]).

164. These propositions need not be examined further because the third is plainly not borne out by the reasons of the Tribunal, read as a whole and fairly considered: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271–272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Those reasons refer to Dr Sultan’s admission in setting out the statement of agreed facts (at [23]). In recording (at [41]) that the Tribunal was “not comfortably satisfied that there was any sexual motivation in this examination” (emphasis added), they acknowledge that the admission was capable of being some evidence of such a motivation: cf Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 at [22] (Basten JA, McColl and Macfarlan JJA agreeing), noting that “to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion”.

165. More to the point, the Tribunal found “no basis” for rejecting Dr Sultan’s oral evidence as recently invented (at [44]). That evidence included a general denial of any intention to engage in any sexual behaviour (identified at [38]), and an explanation of the admission as referring only “to the erection”. In that context, the Tribunal may be taken to have accepted his explanation, which avoided the need to resolve a potential inconsistency in the evidence.

166. This analysis should not be taken to suggest that any failure by the Tribunal to consider, and record in its reasons its consideration of, the consistency and probative value of evidence would have amounted to an error of law or jurisdictional error. Issues of weight are committed to the Tribunal for determination: Abebe v The Commonwealth (1999) 197 CLR 510; [1999] HCA 14 at [197] (Gummow and Hayne JJ). And, at least in some statutory contexts, “if the conclusion cannot be challenged as legally erroneous, the reasoning cannot be challenged as legally inadequate to justify the conclusion”: Cockram Construction Ltd v Fulton Hogan Construction Pty Ltd [2018] NSWCA 107; (2018) 359 ALR 350 at [17] (Basten JA).

167. Furthermore, National Law, s 165M(2) requires the “statement of decision” to “set out any findings on material questions of fact” (para (a)) and to “refer to any evidence or other material on which the findings were based” (para (b)). That being so, an obligation not only to refer to contrary evidence, but also to its weight, cannot readily be implied, or regarded as within the remaining requirement to “give the reasons for the decision” (para (c)): see also Swift v SAS Trustee Corporation [2010] NSWCA 182 at [45] (Basten JA, Allsop P agreeing) observing that reference to “proper, genuine and realistic consideration”, where “[t]aken out of context and without understanding [its] original provenance”, is “apt to encourage a slide into impermissible merit review”, quoted in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 at [30].

Legal unreasonableness (grounds 4 and 5)

168. Particulars 3(d) and 4(d) of Complaint One allege that Dr Sultan “engaged in inappropriate behaviour of a sexual nature towards Patient A, by reason of his actions” in Particulars 3(a)–(c) and Particulars 4(a) and (c), respectively, of that Complaint. Those particulars are extracted by Beazley P (at [18] above). For ease of reference, Particulars 3(a)–(c) allege that the respondent positioned a stethoscope under Patient A’s hospital gown, unnecessarily brushed his hand two to five times on her bare breast, and became sexually aroused; and Particulars 4(a) and (c) allege, in turn, that he stood close to her and moved his hand in the area of his penis.

169. The Tribunal accepted (at [40]) that this “examination was unnecessary and was conducted inappropriately and in the absence of a chaperone”. But it refused to find (at [40], [41] and [45]) “that the manner in which the respondent’s hand came into contact with the breast of Patient A was sexual in nature”, “that there was any sexual motivation in this examination” or (implicitly) “that there [was] an intention or a purpose in [Dr Sultan] to produce a sexual arousal”. It therefore concluded (at [49(1)] that Particulars 3(d) and 4(d) had not been established.

170. The conclusion as to each of these particulars is impugned as legally unreasonable by grounds 4 and 5, respectively. More specifically, the HCCC challenges the Tribunal’s apparent finding that in the relevant circumstances Dr Sultan’s behaviour was not to be characterised as “sexual” in “nature”, unless accompanied by a sexual state of mind. The issue for this Court may thus be described as being whether that finding as to the characterisation of that conduct “lacks an evident and intelligible justification”: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ); but see Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 357 ALR 408 at [59] (Gageler J), noting that “[r]easonableness is not exhausted by rationality; it is inherently sensitive to context; it cannot be reduced to a formulary”.

171. Analysis of that issue is assisted by two distinctions from the criminal law. The first is between acts that are merely “voluntary” – willed, as opposed to accidental – and those accompanied with an particular “intention”: see Ryan v The Queen (1967) 121 CLR 205 at 213 (Barwick CJ). So, to allege that one has “engaged” in behaviour “towards” another contemplates acts that are voluntary and directed, but that need not be intended to produce any particular consequence. The second distinction is between acts that “unequivocally offer a sexual connotation” – typically because of the body part to which they are directed or with which they are performed – and those that are only sexual if accompanied by an intention to obtain or provide sexual gratification: Harkin v R (1989) 38 A Crim R 296 at 301 (Lee CJ at CL, Woods and Mathews JJ agreeing).Of course, consensual contact with a person’s breasts, genitals or anus by a medical practitioner will not invariably carry any “sexual connotation”: King v Health Care Complaints Commission [2011] NSWCA 353 at [67]–[68] (Macfarlan JA).

172. The method adopted by Dr Sultan for the examination (described at [36] of the reasons) included placing his right hand under Patient A’s breast. The fact that this method was medically inappropriate or unnecessary might have supported an inference of sexual intention. But, having refused to draw such an inference, the Tribunal was not rationally compelled to assume that all contact with a woman’s breast which, objectively assessed, is medically inappropriate or unnecessary is inherently sexual. As to Dr Sultan’s arousal, the Tribunal accepted (at [45]) “that his erection was involuntary and spontaneous”. That finding was taken to negate an assumption underlying Dr Golding’s evidence that “[a] medical professional should not allow a situation to develop which results in sexual arousal while clinically interacting with a patient”.

173. Likewise, as to Dr Sultan’s actions after becoming aroused, the Tribunal accepted (at [38]) “that he was very uncomfortable and embarrassed”. A gesture towards his penis prompted by such embarrassment could reasonably be characterised as not sexual in nature. Taken as a whole, then, the Tribunal’s reasoning in relation to Particulars 3(d) and 4(d) was transparent, intelligible and defensible on the evidence: see Li at [105] (Gageler J). It follows that its conclusions were not unreasonable, and that grounds 4 and 5 should be rejected.

174. SIMPSON AJA: I agree with the orders proposed by Beazley P, and with her Honour’s reasons therefor. I also agree with the additional analysis of Ground 6 by Meagher JA, which I do not understand to be inconsistent.

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Amendments

11 December 2018 - Minor typographical errors corrected

Decision last updated: 11 December 2018