Health Ombudsman v Kumar - [2024] QCAT 132

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION: Health Ombudsman v Kumar [2024] QCAT 132

PARTIES:

HEALTH OMBUDSMAN

(applicant)

v

PRAVEEN KUMAR

(respondent)

APPLICATION NO/S: No. OCR 226 of 2022

MATTER TYPE: Occupational regulation matters

DELIVERED ON: 8 April 2024
22 May 2024 (ex tempore)

HEARING DATEs: 16, 18–19, 23–27 October, 27 November, 12 December 2023 & 22 May 2024

HEARD AT: Brisbane

DECISION OF: Judicial Member Murphy SC
Professor P Baker, Medical Practitioner Panel Member
Dr J S Phipps, Medical Practitioner Panel Member
Ms C Ashcroft, Public Panel Member

ORDERS:
8 April 2024:

1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct.

2.       As to sanction:

(a)     Oral submissions by the parties or their legal representatives will be heard by the Tribunal at 10:00am on 22 May 2024.

(b)     The parties or their legal representatives shall file by email to [email protected], and serve by contemporaneous backcopy to the other party and their legal representative, a written outline of submissions and authorities relied upon, according to the following timetable:

(i)        the applicant, no later than 4:00pm on 8 May 2024; and

(ii)      the respondent, no later than 4:00pm on 15 May 2024.

22 May 2024:

1. Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:

(a)     the contents of a document or thing filed in or produced to the Tribunal;

(b)     evidence given before the Tribunal; and

(c)     any order made or reasons given by the Tribunal;

is prohibited to the extent that it could identify or lead to the identification of any patient of the respondent or any family member of those patients, or any family member of the respondent, save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).

2.     Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:

(a)     a judicial member;

(b)     a tribunal member;

(c)     an associate appointed under the:

(i)        Supreme Court Act 1991 (Qld);

(ii)      District Court Act 1967 (Qld);

(iii)     Land Court Act 2000 (Qld); or

(iv)      Queensland Civil and Administrative Tribunal Act 2009 (Qld);

(d)     any assessor appointed to assist the Tribunal;

(e)     the staff of the Tribunal registry;

(f)      any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or

(g)     the parties to this proceeding.

3. Pursuant to s 125(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the reasons for decision in respect of sanction delivered ex tempore on 22 May 2024 be consolidated with the reasons for decision as to conduct delivered on 8 April 2024 and thereafter be published in consolidated form.

4. Pursuant to ss 151(2)(b) and (3)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the relevant day from which the time limit for the filing of an application for leave to appeal or an appeal against this decision is the date of the publication of the consolidated reasons.

5. Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.

6. Pursuant to s 104(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner indefinitely.

7. Pursuant to ss 102(1) and 107(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent shall pay the applicant’s costs of the proceedings, fixed in the amount of $60,000.00.

CATCHWORDS:
PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCIPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT — GENERALLY — where disciplinary proceedings commenced against general practitioner — where multiple allegations of inappropriate conduct — where the respondent is a wholly deceitful and unreliable witness — professional misconduct established

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCIPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT — DEPARTURE FROM ACCEPTED STANDARDS — where allegations made that respondent’s care and clinical practice fell substantially below standard of peers — professional misconduct established

PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCIPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT — SANCTION — where the respondent’s registration is cancelled — where the respondent is prohibited from applying for registration indefinitely

ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — disciplinary referral under Health Ombudsman Act 2013 (Qld)

ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — COSTS — where Ombudsman referred complex proceedings to Tribunal — where the practitioner unnecessarily impeded the progress of the proceedings — where the applicant was ultimately found to be deceitful and wilfully obstructive — where the Ombudsman incurred significant expense — approach to costs — whether the interests of justice require an order for costs — whether aspects of practitioner’s resistance unreasonable — order for fixed, limited costs made

Health Ombudsman Act 2013 (Qld)

Health Practitioner Regulation National Law (Queensland)
Human Rights Act 2019 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Australian Securities and Investment Commission v Hellicar [2012] HCA 17; 247 CLR 345
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Brockhurst v Rawlings [2021] QSC 217
Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545
Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167; 124 SASR 300
Health Care Complaints Commission v Haasbrook (2018) NSWCATOD 177
Health Care Complaints Commission v FLJ (2023) NSWCATOD 7
Health Ombudsman v ANP [2022] QCAT 6
Health Ombudsman v Antley [2016] QCAT 472
Health Ombudsman v Arora [2019] QCAT 200
Health Ombudsman v Duggirala [2021] QCAT 326
Health Ombudsman v Fletcher (No 2) [2021] QCAT 241
Health Ombudsman v Hoddle [2022] QCAT 142
Health Ombudsman v JTM [2020] QCAT 394
Health Ombudsman v YPG [2022] QCAT 422
Health Ombudsman v XPW [2021] QCAT 403
Helton v Allen [1940] HCA 20; 63 CLR 691
Hewett v Medical Board of Western Australia [2004] WASCA 170
Honey v Medical Practitioners Board of Victoria [2007] VCAT 526
Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149
Longman v The Queen [1989] HCA 45; 168 CLR 79
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
Medical Board of Australia v Dolar [2012] QCAT 271
Medical Board of Australia v Duggirala [2015] QCAT 557
Medical Board of Australia v Griffiths [2017] VCAT 822
Medical Board of Australia v Jansz [2011] VCAT 1026
Medical Board of Australia v POS [2019] VCAT 1678
Medical Board of Queensland v Alroe [2005] QHPT 4
Morley v Australian Securities and Investments Commission [2010] NSWCA 331; 247 FLR 140
Parker v QFES Commissioner & Anor [2020] QSC 370; 6 QR 361
Queensland Building and Construction Commission & Benton v Egan (No 2) [2023] QCATA 163
Ratten v The Queen [1974] HCA 35; 131 CLR 510
Re Day [2017] HCA 2; 340 ALR 368
Refjek v McElroy [1965] HCA 46; 112 CLR 517
Tamawood Ltd v Paans [2005] QCA 111; [2005] 2 Qd R 101
TRG v Board of the Trustees of the Brisbane Grammar School [2019] QSC 157
Trustees of the Property of Cummins v Cummins [2006] HCA 6; 227 CLR 278

APPEARANCES & REPRESENTATION:

Applicant:

C Templeton instructed by Office of the Health Ombudsman

Respondent: G M Elmore instructed by Beavon Lawyers

Index to Reasons for Decision

Reasons For Decision — 8 April 2024

How Does the Health Ombudsman Frame its Case?

What Legal and Procedural Issues are Raised by Dr Kumar?

Is Dr Kumar Disadvantaged by Delay in the Proceedings?
What Is the Effect of Evidence Not Called?
What is the Role of Published Guidelines and Codes of Conduct?
Is The Right to Privacy Relevant?
Do Allegations of Criminal Conduct Affect the Standard of Proof?

What Conduct Is Alleged and Proved?

A. Allegations Of Forgery and False Documents

Who Authored and Witnessed Ms JW’s Statutory Declaration?
Who Authored and Signed Ms B’s Statutory Declaration and Letter?
Who Signed and Witnessed Ms W’s Consent Forms?

B. Ms D’s Allegations of Rape and Sexual Relationship

Was There a Sexual Relationship Between Doctor Kumar and His Patient Ms D?
Are Ms D’s Allegations of Rape Established?

C. Other Allegations of Sexual Conduct

Was There a Sexual Relationship Between Dr Kumar and His Patient Ms B?
Was Ms JW Dr Kumar’s Patient During Their Sexual Relationship?
Did Dr Kumar Inappropriately Touch Ms V?

D. Allegations of Coercion and Coercive Behaviour

Did Dr Kumar “Coerce” Ms B into a Sexual Relationship?
Did Dr Kumar “Coerce” Ms JW’s Statutory Declaration?
Did Dr Kumar “Coerce” Ms JW to Remove Her Temporary Protection Order?
Did Dr Kumar Coerce Ms D to Withdraw Complaints?

D. Assaults, Threats and Abusive Language

Allegations Concerning Ms D
Allegations Concerning Ms B
Allegations Concerning Ms JW

E. Allegations of Monetary Inducements

Did Dr Kumar Offer Ms D Money to Make a False Complaint?
Did Dr Kumar Offer or Arrange a Monetary Inducement to Ms V’s Father?

F. Financial Transactions with Patients

Did Dr Kumar Receive Money From His Patient Ms B?
Did Dr Kumar Receive Money and Jewellery From Ms D?

G. Medical Procedures and Clinical Practice

Was Pre-Procedure Advice and Assessment Appropriate and Adequate?
Was Dr Kumar Qualified to Perform the Procedures Undertaken?
Were Procedures Performed Below the Standard Expected?
Were Clinical Notes and the Post-Procedure Plan and Care Adequate?
Did Dr Kumar Fail to Engage With Ms W’s Post-Procedure Concerns?
Was Dr Kumar’s Clinical Environment Inadequate to Conduct the Procedures?

H. Other Allegations By the Health Ombudsman

Established Conduct - Summary Of Findings

Forgery and False Documentation
Sexual Conduct
Assaults, Threats and Derogatory and Abusive Language
Monetary Inducements
Financial Transactions with Patients
Medical Procedures and Clinical Practice
False or Misleading Conduct Involving the Health Ombudsman

Is Professional Misconduct Established?

Conduct Other Than Relating to Medical Performance
Conduct Relating to Medical Performance

Is Dr Kumar a Fit and Proper Person to be registered?

Sanction

Orders — 8 April 2024

Reasons For Decision — 22 May 2024 (Ex Tempore)

What issues are to be determined?

What are the applicable principles?

Is cancellation of Dr Kumar’s registration appropriate?

What factors should inform the decision as to the period of prohibition?

The Referral History and General Character
Insight, Remorse and Appreciation of Ethical Standards.
The Seriousness of the Conduct and the Comparative Cases

What is meant by the submission that prohibition should extend indefinitely?

Costs

Orders — 22 May 2024

Schedule To The Written Reasons For Decision Of The Tribunal

REASONS FOR DECISION — 8 APRIL 2024[1]

[1]On 22 May 2022 it was ordered that the reasons containing findings as to conduct delivered on 8 April 2024 be consolidated with the reasons pertaining to sanction and costs delivered ex tempore on 22 May 2024.

In August 2000, Dr Praveen Kumar became registered as a medical practitioner in Australia. Four years later he commenced practice as a general practitioner in Townsville. In 2011 he became a Member of the Royal Australian College of General Practitioners and was registered as a specialist general practitioner in August 2012.
Dr Kumar set up his own practice in 2008 and practised at its clinics in the Townsville area until 30 August 2016. On that date, Dr Kumar’s registration was suspended. He remains suspended.
That suspension was the culmination of a lengthy investigation by Health Ombudsman investigators. Included among the matters investigated are seven allegations of rape by one complainant. Those allegations were the subject of separate criminal proceedings which were aborted for issues relating to the jury not currently relevant. Ultimately a nolle prosequi was entered on 24 February 2023.
These proceedings result from the subsequent Referral by the Health Ombudsman to this Tribunal.

HOW DOES THE HEALTH OMBUDSMAN FRAME ITS CASE?

The Referral, and Dr Kumar’s Response, are each in a form more familiar to a pleading in civil litigation. The Referral enumerates seven “Allegations”. Almost all “plead” an assertion of alleged conduct followed by what are said to be “particulars”. While some of the matters so “pleaded” meet that description, most are in fact separate allegations of conduct which themselves might meet the relevant statutory definitions.[2]
[2] Health Practitioner Regulation National Law (Queensland) (‘National Law’).
Discussions during the hearing as to the necessity for the Health Ombudsman to identify and prove specific conduct led to its closing submissions articulating 64 separate allegations of conduct now framed as the relevant conduct to which Dr Kumar’s responsive submissions are directed and to which these reasons pertain. The conduct sought to be proved is set out in Grounds in the attached Schedule. The Schedule forms part of these reasons.
The conduct alleged by the Health Ombudsman arises from complaints made by five women, anonymised in these reasons as Ms B, Ms JW, Ms D, Ms V and Ms W.
It is not suggested by Dr Kumar that the women have colluded in making their respective allegations. Neither does any evidence before the Tribunal point to that possibility.
By way of broad overview, the alleged conduct consists of the following:
(a)Sexual conduct including seven allegations of rape (Ms D) and sexual conduct with a patient (Ms D; Ms B; Ms JW; Ms V);
(b)Forging signatures on documents including statutory declarations; a letter to investigating health authorities; and consent forms for procedures. (Ms B; Ms JW; Ms TW);
(c)Physical assault and the use of derogatory and abusive language towards women (Ms D; Ms B; Ms JW);
(d)Coercing Ms D to withdraw complaints to the health authorities and the police and coercing Ms JW to withdraw a temporary protection order;
(e)Offering a payment to withdraw a complaint (Ms V) and offering a payment to make a false complaint about another doctor at the practice (Ms D);
(f)Engaging in financial transactions with two women who were patients (Ms D; Ms B) and failing to return all of the money provided; and
(g)Performing procedures not qualified to perform; performing those procedures to an inadequate standard and other clinical failures (Ms W).
Some of the conduct grounds alleged by the Health Ombudsman are expressed as criminal offences they might be (for example, “rape” and “forgery”) or as conduct that might amount to criminal offences (for example, coercive threats).[3] Submissions by counsel for Dr Kumar directed to asserted ramifications for the standard of proof are addressed below.
[3] Respectively, Criminal Code 1889 (Qld) (‘Criminal Code’) ss 349, 488 and 359.
A separate point should also be made at the outset. Dr Kumar has not been convicted of those, or any, criminal offences. These proceedings are not a de facto criminal trial. Just as these proceedings are not a competition between truth and lies,[4] nor are they directed to whether the elements of a criminal offence have been proved. The proceedings are properly directed (in the first instance) to whether identified conduct has been established on the balance of probabilities.
[4] See, eg, Hewett v Medical Board of Western Australia [2004] WASCA 170, [119] (‘Hewett’).

WHAT LEGAL AND PROCEDURAL ISSUES ARE RAISED BY DR KUMAR?

A number of legal and procedural propositions are advanced in final submissions by counsel for Dr Kumar. They are said to be of general application to all of the allegations made against Dr Kumar and effectively impact upon all of the findings to be made. Those issues should be dealt with at the outset.

Is Dr Kumar Disadvantaged by Delay in the Proceedings?

It is submitted that “the Longman direction as it has been applied to civil cases should apply to every aspect of the applicant’s case”,[5] because it:
… calls for circumstantial inferences to be drawn to establish forgeries, falsifications, and deception” and Dr Kumar’s ability to defend these allegations other than baldly denying them is disadvantaged by the passage of time. … [and Dr Kumar has] “lost the usual safeguards in a criminal trial concerning the joinder of criminal complaints”.[6]
[5]Written Submissions of Dr Kumar, [24] referring to Longman v The Queen [1989] HCA 45; 168 CLR 79 and the civil cases of Brockhurst v Rawlings [2021] QSC 217; TRG v Board of the Trustees of the Brisbane Grammar School [2019] QSC 157; Parker v QFES Commissioner & Anor [2020] QSC 370; 6 QR 361.
[6] Written Submissions of Dr Kumar, [26]–[27].
The delay in these proceedings has been caused in large part because of the need to await the outcome of criminal proceedings pertaining to the rapes alleged by Ms D.
It is accepted that significant delay can impede recall, in particular the recall of detail. It should also be accepted that delay is capable of causing prejudice to a respondent to disciplinary proceedings.[7] Whether disadvantage is in fact established is a different question. The claimed disadvantage “must be actual and specific, not theoretical, hypothetical or assumed”.[8] Axiomatically, the disadvantage must be identified and explained. Neither requirement is satisfied here.
[7] See, eg, Hewett (n 4).
[8] Cross on Evidence, 13th Aust ed, JD Heydon (2021), p 651, [17295] (‘Cross’).
Dr Kumar’s affidavit of evidence in chief (sworn on 4 October 2023, some 12 days prior to the commencement of the Tribunal hearing) does not refer to, or hint at, any specific disadvantage or issue caused by delay. The same is true of a second affidavit filed by Dr Kumar on the fourth day of the hearing.
The submissions on Dr Kumar’s behalf do not assert any specific disadvantage occasioned by delay. For example, it is not asserted that witnesses were desired to be called but could not be contacted or were otherwise unavailable. No inability to recall germane events was asserted by reason of the effluxion of time (or at all). Indeed, the opposite is true. Dr Kumar contends for, and evidenced, a clear recall of detail. A good example is his evidence as to whether he was the author of specific text messages sent or received some years ago.
As to the balance of the submission, the Tribunal does not consider the reference to the protections of criminal procedure against joinder is apt to the instant circumstances.
First, there are of course patent differences between the instant proceedings and the strict procedural and evidentiary requirements of a criminal trial. The instant proceedings are an investigation into conduct in which the rules of evidence do not apply and where the Tribunal “may inform itself in any way it considers appropriate”.[9]
[9] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28 (‘QCAT Act’).
Secondly and in any event s 5 of the National Law envisages in terms[10] the Tribunal deciding multiple allegations of conduct, including similar conduct, so as to form a conclusion as to whether conduct meets the statutory definitions.
[10] National Law s 5, sub-paragraphs (b) and (c) of the definition of “professional misconduct”.

What Is the Effect of Evidence Not Called?

A number of different but related submissions are made by counsel for Dr Kumar pertaining to evidence not called by the Health Ombudsman. It is submitted that the Health Ombudsman has “failed to obtain relevant and probative evidence”. A failure to obtain and tender a “sexual assault assessment” which Ms D admits she underwent when complaining of rape to the police is an example.[11]
[11] Written submissions of Dr Kumar, [29].
It is contended, apparently similarly, that the Health Ombudsman’s investigators[12] “failed to follow up ensuring the integrity of evidence”, citing a number of examples in respect of allegations made by Ms JW. [13] Similarly, it is contended there was a failure “to call material witnesses”. Eight specific instances are referred to. They pertain to allegations emanating from each of the complainants.[14]   In a similar vein, it is said with respect to Ground 26 that “[n]o corroborative witnesses were called about this occurrence despite [Dr Kumar] purportedly being with someone when this happened”.[15]
[12]The expressions “Health Ombudsman investigators” or “investigators” are used generically in these Reasons to describe investigations by all relevant regulatory bodies.
[13]        Written submissions of Dr Kumar, [30].
[14]        Ibid, [31], sub-paragraphs (a)–(f).
[15]        Ibid, [32]
Those submissions are rejected. The Health Ombudsman was under no obligation to call the evidence to which Dr Kumar’s submissions refer. Tribunal proceedings are a long way removed from the rules and strictures of a criminal trial, yet:
… even a criminal trial ‘is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence’. Each side in a criminal trial “is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility”.[16]
[16]Australian Securities and Investment Commission v Hellicar [2012] HCA 17; 247 CLR 345, [142] citing Ratten v The Queen [1974] HCA 35; 131 CLR 510, 517 per Barwick CJ.
Of course, the absence of evidence may, in appropriate circumstances, be taken into account but “the way in which [that may be done is] confined by known and accepted principles”.[17] Those principles, including, for example, the “rule in Jones v Dunkel”, are not relied upon here. In any event, the circumstances do not permit the application of any such principle. The submissions on behalf of Dr Kumar do not identify what evidence would have resulted from the mooted sources or what factual issues would have been elucidated. Conjecture about what may or may not have been the content of the mooted evidence is insufficient.[18]
[17] Ibid, [165].
[18] See, eg, Hellicar (n 16), [160], [163]; Cross (n 8), p 45, [1215].
The real thrust of the submission is that the absence of the asserted corroboration and other evidence goes to the lack of strength or persuasiveness of the Health Ombudsman’s case. In oral submissions, it was said the failure to call the evidence should be seen “through the lens of Briginshaw”[19] — that is, “the evidence adduced … is not sufficiently strong enough, or so unreliable, it cannot sustain any criminal finding”.[20]
[19] Transcript of proceedings, 12 December 2023, p 1-40, l 49.
[20]Written submissions of Dr Kumar, [22]. (The reference to a “criminal finding” should be seen as referring to what was earlier said in the submissions about the seriousness of the alleged conduct amounting in many instances to allegations of criminal conduct).
Counsel’s submission should not properly be seen as a submission which sustains the proposition that additional or other evidence should have been called; it is a submission as to the conclusions which should be drawn ultimately from the whole of the evidence called on a particular issue. Whether the evidence is persuasive to the required standard in the absence of “missing” evidence falls to be considered, not with respect to any asserted missing or “uncorroborated” evidence, but rather by reference to whether the evidence which was in fact called or tendered in respect of each issue reaches the required degree of persuasion.
Submissions for the Health Ombudsman contend an adverse inference should be drawn from the failure to adduce evidence from Ms R (called in Dr Kumar’s case) as to an alleged incident of assault for which Ms R was present.[21] The Tribunal declines to draw any such inference. The reason lies in findings to be made about Ms R’s evidence more broadly which will be discussed below.
[21]Health Ombudsman’s final submissions, [93], citing in respect of the latter Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, 418–419.

What is the Role of Published Guidelines and Codes of Conduct?

Counsel for Dr Kumar submits:
In all practical terms, the applicant’s case is essentially one involving allegations of contraventions of the Medical Codes. In fact, sections of the Medical Codes are relied upon as having been “breached” …[22]
[22]Written submissions of Dr Kumar, [10]–[11]. “Medical Codes” refers to five specified codes or guidelines at [10].
It is true that at least some allegations are framed by the Health Ombudsman in a manner that suggests a “breach” of relevant codes or guidelines gives rise to a finding of professional misconduct. It is contended that the Tribunal would “act in error” if “a breach of the Medical Codes automatically permits a finding that conduct is unprofessional conduct or professional misconduct.”[23] That submission is accepted.
[23] Ibid, [12] (emphasis in original).
A broader submission is:
On one view then, to establish a case by reference to the Medical Codes, the applicant must establish that the respondent’s conduct:
a.Varied significantly [and was]
b.Serious and repeated.[24]
[24] Ibid, [15].
An example is given from “Good Medical Practice: A Code of Conduct for Doctors in Australia – July 2009”:[25]
If your professional conduct varies significantly from this standard, you should be prepared to explain and justify your decisions and actions. Serious or repeated failure to meet these standards may have consequences for your medical registration.
[25] Quoted in Written submissions of Dr Kumar, [14] (emphasis in quote).
The point is expanded in oral submissions which frame a finding of “significant variance” from the code as being directly relevant when it comes to assessing Briginshaw.[26] Counsel also submitted:
If it’s asserted that the breach of the code is professional misconduct … if this tribunal then looks to the code to establish professional misconduct and in the entire document of that code, the code says it’s set out significant variation or a serious repeated failure, then plainly, in my submission, it is a relevant factor to whether or not professional misconduct has been established by a particular factual allegation if there’s been significant variation or it’s been serious and repeated failure.[27]
[26] Transcript of proceedings, 12 December 2023, p 1-50, ll 20–21; p 1-51, ll 19–22.
[27] Ibid, p 1-44, ll 2–8.
That submission is rejected as in effect requiring proof of a matter not referred to in the relevant definition of sanctionable conduct contained in s 5 of the National Law.
Section 41 of the National Law accords to codes or guidelines the status of evidence in relevant disciplinary proceedings. In doing so, the legislation makes clear what, in the absence of legislative provision, might otherwise be the subject of uncertainty or argument. The “wide-ranging consultation” required prior to formulation and promulgation of the codes required by s 41 of the National Law suggests the contents of professional codes or guidelines can be a valuable piece of evidence in assessing whether specific conduct falls below the prescribed s 5 standards.
However, the legislation neither accords that evidence particular weight or importance nor makes any finding of “breach” of a code or guideline a pre-condition for meeting the statutory definitions. The legislation includes eight forms of conduct, including specified transgressions and contraventions, as included within the definition of “unprofessional conduct”. Contravention or “breach” of the codes or guidelines is not included. Nor indeed are professional codes or guidelines mentioned at all.
Indeed, it is doubtful whether it is correct to refer to the codes being “breached” at all – at least in so far as that word connotes a prescribed standard non-adherence to which is productive of related outcomes. As has been put in Codes or Guidelines themselves:
This code is not a substitute for the provisions of legislation and case law. If there is any conflict between this code and the law, the law takes precedence.[28]
The Guide sets out general principles in relation to the practice of medicine. It is not exhaustive and cannot cover all forms of professional practice or conduct which may bring your registration into question … The Guide complements the current legislation regulating medical practice in Queensland and provides a commentary on good medical practice that is consonant with that legislation.[29]

[28]Medical Board of Australia, ‘Good Medical Practice: A Code of Conduct for Doctors in Australia’, October 2020, [1.3] (‘Code of Conduct’).

[29]Medical Board of Queensland, ‘Good Medical Practice’, 22 February 2005 (‘Good Medical Practice Guide’).

Is The Right to Privacy Relevant?

Written submissions on behalf of Dr Kumar contend:
… disciplinary tribunals should be reluctant to make findings that private text exchanges between [domestic] partners are capable of amounting to unprofessional conduct or professional misconduct”. This reluctance is informed by the need to on the one hand enforce the statutory framework of medical practitioner’s regulation, balanced against the right to privacy”.[30]
[30] Written submissions of Dr Kumar, [36].
The general principle there advanced is accepted. The Tribunal (and relevant investigatory bodies) should be conscious of, and interpret and exercise their wide powers compatibly with, truly private matters remaining private.[31] However, there is a line - albeit perhaps imperfectly marked - beyond which matters that some might see as private and distinct from a practitioner’s professional bearing and performance, can and should be intruded upon.
[31] See, eg, Human Rights Act 2019 (Qld) s 48.
Many areas of the law, including the criminal law, properly intrude upon what might be considered “private matters”. Family violence — once wrongly and egregiously regarded as the private concern of domestic partners — is an example. So too is the proscription of solitary investigation and possession of particular forms of online material. Behaviour is sanctioned because the protection of the public, or sections of the public, overrides any claims to privacy.
Transgressions of laws of that type have been properly held by Tribunals to constitute professional misconduct.[32] The underlying rationale is effectively the same. The National Law is primarily directed to protection of the public.[33] That protection extends to the maintenance of the trust and good standing bestowed by the public upon the profession. Actions that jeopardise that trust and good standing can properly be classified as professional misconduct.
[32]See, eg,, Health Care Complaints Commission v Haasbrook (2018) NSWCATOD 177; Health Care Complaints Commission v FLJ (2023) NSWCATOD 7; Health Ombudsman v JTM [2020] QCAT 394; Health Ombudsman v YPG [2022] QCAT 422; Health Ombudsman v XPW [2021] QCAT 403; Health Ombudsman v ANP [2022] QCAT 6, noting that in each the practitioner was convicted of offences.
[33] National Law ss 3A, 4.
It is the overriding protection of the public that justifies intrusion into a practitioner’s private life and prevents that intrusion being an “unlawful[ ] or arbitrar[y] interfer[ence]”[34] with a right to privacy.
[34]Using the words of s 25 of the Human Rights Act 2019 (Qld) referenced at [37] of Dr Kumar’s written submissions.
Counsel’s submissions have force to the extent that questions of degree and the particular circumstances of a case must necessarily remain relevant, particularly where conduct asserted to be a private matter has not been the subject of charge and sanction under the general law.

Do Allegations of Criminal Conduct Affect the Standard of Proof?

Many of the allegations against Dr Kumar are framed in language more familiar to the criminal law. Counsel for Dr Kumar contends, “where a civil tribunal is asked to find as facts things that would amount to criminal conduct, the evidence must be strongest when the consequences are the most severe”.[35]
[35]Written submissions of Dr Kumar, [21] citing Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (‘Briginshaw’); Morley v Australian Securities and Investments Commission [2010] NSWCA 331; 247 FLR 140, [746].
While this inquiry is not directed to whether criminal offences are made out, the fact that established conduct might also otherwise meet the description of serious criminal offences is an indicator of the seriousness of the asserted conduct. It is the seriousness of the conduct (and the seriousness of the ramifications of findings for the practitioner) that have a consequent impact upon the degree of persuasion required for a finding that the conduct occurred. However, that does not reframe the nature of the inquiry.
As the High Court has held:
… in a civil proceeding, facts which amount to the commission of a crime have only to be established to the reasonable satisfaction of the tribunal of fact, a satisfaction which may be attained on a consideration of the probabilities”.[36]
[36]Helton v Allen [1940] HCA 20; 63 CLR 691, cited in Refjek v McElroy [1965] HCA 46; 112 CLR 517, 519.
That is, the standard of proof remains the balance of probabilities but:
The tribunal must feel an actual persuasion of the occurrence or existence of a fact before it can be found. … An inference will be no more than conjecture unless some fact is found which positively suggests or provides a reason in the circumstances particular to the case, that a specific event happened, or a specific state of affairs existed”. [There must be more than] … conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture.[37]
[37]Re Day [2017] HCA 2; 340 ALR 368, [18] per Gordon J (citations omitted); See also, Trustees of the Property of Cummins v Cummins [2006] HCA 6; 227 CLR 278, 292.
Some of the instant allegations of misconduct can be seen as markedly less serious than other conduct. (Compare, for example, Ground 2 with Ground 17). Nevertheless, the Tribunal is conscious of each allegation sitting within the context of a much broader picture, particularly as it may apply to any consideration of whether Dr Kumar is a fit and proper person to be registered as a medical practitioner. The pause upon making findings on the balance of probabilities by reference to “inexact proofs, indefinite testimony, or indirect inferences”[38] should extend to all of the allegations of conduct in the instant case.
[38] Briginshaw (n 35), 361.

WHAT CONDUCT IS ALLEGED AND PROVED?

A number of allegations made by all of the complainants will require findings to be made as to which of two competing versions should be accepted without reference to any evidence beyond those competing versions. The words of Gordon J earlier quoted[39] ring loud.
[39] At [46] above.
In respect of very serious allegations concerning documents provided to the Health Ombudsman as part of its investigation, evidence other than from the immediate protagonists was called by the Health Ombudsman. It is proposed to deal with those allegations at the outset.
As will be seen, the Tribunal is entirely persuaded that certain conduct is established. A consequence is that a long and dark shadow is cast over the veracity and reliability of Dr Kumar’s sworn evidence before the Tribunal more generally.

A. ALLEGATIONS OF FORGERY AND FALSE DOCUMENTS

The Health Ombudsman alleges:
(a)a statutory declaration signed by Ms JW on 2 May 2013 was authored by Dr Kumar; was not witnessed in her presence and that Dr Kumar forged the signature of a Justice of the Peace, Ms A, whose full name appears as the purported witness;
(b)a letter dated 8 July 2011 sent to the Health Ombudsman purportedly by Ms B was authored by Dr Kumar and contained false information relevant to the Health Ombudsman’s investigation;
(c)the same letter attached a statutory declaration purportedly signed by Ms B on 8 July 2011. It is alleged Dr Kumar forged Ms B’s signature on the statutory declaration and it contained false information relevant to the Health Ombudsman’s investigation; and
(d)two consent forms purportedly dated 17 September 2015 and 9 October 2015 respectively said to relate to two procedures performed by Dr Kumar for Ms W were, contrary to what appeared on the face of each, not signed by Ms W and were not witnessed by his practice nurse, Ms KW. The Health Ombudsman alleges Dr Kumar forged both signatures in about May 2016. It is said no consent forms were signed ahead of either procedure.
It is alleged the purpose of each and all of those false documents was to deceive the Health Ombudsman and curtail or impede its proper investigation.

Who Authored and Witnessed Ms JW’s Statutory Declaration?

When the then 43-year-old Dr Kumar met the then 19-year-old Ms JW, she was working at McDonald's. Dr Kumar struck up conversations with her and later provided his business card to her. In the second half of 2009, Ms JW became a medical receptionist at Dr Kumar's clinic.
The Statement of Agreed Facts filed with the Tribunal admits that a sexual relationship subsisted “from about January 2010 to late 2013”. That accords with Ms JW’s evidence, noting that she says the relationship ended in September 2010 as did her employment. The relationship was, it seems, “on again, off again” after that, and finally ended late in 2013 when Ms JW’s imposed “deadline about [Dr Kumar] ending his relationship with [Ms R]” was not met.
On 10 May 2013 Dr Kumar sent an email to the Health Ombudsman which said in part:
[T]o help me in my defence, I was pursuing a stat dec from [Ms JW], which I managed to get from her late last week because she was busy in a friend's wedding and uni work. I am submitting it attached with my previous email.

Who Authored the Statutory Declaration(s)?

As is self-evident from that email, Dr Kumar represented to the Health Ombudsman that the statutory declaration was authored by Ms JW.
The statutory declaration purportedly authored and signed by Ms JW and forwarded to the Health Ombudsman declares relevantly:
I have never received text messages from Dr Praveen Kumar threatening to commit suicide.
I attempted to get a domestic violence order against Dr Praveen Kumar after being influenced by [a former partner], but upon realising that I was being misled, I withdrew the application. …
Ms JW admits signing the statutory declaration but denies being its author. She also denies it was declared and signed before the Justice of the Peace whose signature, name and details appear on the document or, indeed, declared and signed before any witness.
Ms JW contends the statutory declaration was authored by Dr Kumar, amended by him at her request, and ultimately signed by her after that amendment. She says the statutory declaration she signed was preceded by two earlier drafts, each also authored by Dr Kumar, which she refused to sign.

The documentary evidence before the Tribunal includes three emails sent to Ms JW by Dr Kumar. The first email was sent on 23 March 2013. It attaches an “AHPRA notification”. The email says, “Here’s the paperwork! I had replied to them [i.e. Ahpra] in Sept, denying everything but now they are back with the DVO issue added to it. PK”. (The signature “PK” refers to how Dr Kumar is commonly known to many people and was used during the proceedings to refer to Dr Kumar not only by Ms JW but also, for example, by Ms R and Ms D).
The second email was sent by Dr Kumar on 28 March 2013 says, “Hi. Check this out please. PK”. The email attaches a “Commonwealth Statutory declaration form”. The third email sent by Dr Kumar to Ms JW is dated 1 May 2013 and says, “Hope this one sounds better”. It too attaches a “Commonwealth Statutory declaration form”.
Ms JW says she refused to sign two earlier versions of the statutory declaration that had been sent to her by Dr Kumar because they contained a false statement that she had not received telephone calls where Dr Kumar had threatened to kill himself. Having raised those differences with Dr Kumar, she says he sent a third statutory declaration on 1 May 2013 which she ultimately signed. That evidence is accepted.
There is no evidence which calls into question the provenance of the emails. The documentary evidence supports an inference consistent with Ms JW’s evidence. No one other than Dr Kumar had an interest in forwarding that (false) information to investigators. The language used in Dr Kumar’s emails suggests clearly that he authored the emails and the versions of the statutory declarations they attached.
Contrary to Dr Kumar’s sworn evidence, the Tribunal finds that Dr Kumar authored all versions of the statutory declaration, including that which Ms JW signed.

Who Witnessed the Statutory Declaration Signed by Ms JW?

The statutory declaration signed by Ms JW records on its face that it was witnessed by Ms A as a Justice of the Peace. Ms A swore an affidavit and gave evidence before the Tribunal. Ms JW agrees with Dr Kumar that the statutory declaration was signed by her at a McDonalds near his practice. However, Dr Kumar’s account of what there occurred is entirely different to Ms JW’s account and Ms A’s account).
Dr Kumar’s account was confusing and contradictory. For example he said, [Ms A] was seated in a corner and we went to her table and I sat down and – we sat down. She signed the document and she left,[40] only later to say that Ms A remained about three tables away. That occurred, he said, because Ms JW made it clear she did not want to have contact with Ms A with the result that:
I picked up the document and went to [Ms A] and told her, ‘That was [Ms JW] that just signed. Can you witness this, please’.[41] …
[Ms JW] didn’t want to meet anybody to – who had anything to do with the practice because she knew that [Ms A] and I used to witness our – all the documents at the practice.[42]
[40]        Transcript of proceedings, 26 October 2023, p 7-4, ll 41–42 (emphasis added).
[41]        Ibid, ll 42–44.
[42]        Ibid, p 7-5, ll 12–14.
As to the prior arrangements with Ms A, Dr Kumar swore in answer to questions from counsel for the Health Ombudsman:
So is your evidence that you arranged for [Ms A] to attend the McDonald’s?---Yes.
Did you speak to her about the person who would be signing the statutory declaration -- -Yes.
You – you’re saying that - - -?---She knew – she knew about [Ms JW] and me.
Right. Had you told [Ms A] what the purpose of having [Ms JW] sign the statutory declaration was?---No. The – she – it was just a witness situation, and I didn’t have to tell her all that.[43]
[43] Ibid, 7-5, l 42–p 7-6, l 5.
Dr Kumar conceded he was aware it was necessary for a JP witness to a statutory declaration to observe the declarant declare and sign the document.[44]
[44] Ibid, p 7-7, ll 43–47.
In his earlier sworn affidavit Dr Kumar did not name the Justice of the Peace who he asserted had witnessed Ms JW’s signature. He deposed that was “because I forgot her name”. That claim should be seen against the fact that Ms A’s name is readily apparent on the statutory declaration which Dr Kumar himself provided to the Health Ombudsman. That claim by Dr Kumar is succeeded by him deposing that he thought the JP had died. That led to an exchange where Dr Kumar was asked how he could be aware of the state of existence of someone whose name he had forgotten. Dr Kumar recognised the incongruity of his position: “Okay. Fair enough. Alright”.[45]
[45]Affidavit of Dr Kumar affirmed 4 October 2023, [71]; Transcript of proceedings, 23 October 2023, p 7–14, l 25.
Ms A is 80 years of age and is a registered nurse. She became a Justice of the Peace in 1996. She had been Dr Kumar’s patient at an earlier time. She had witnessed documents for Dr Kumar in the past, but to the best of her recollection “[i]t was only one or two documents, and it was quite some time ago”.[46]
[46] Affidavit of Ms A sworn 21 July 2022, [8].
Ms A was particularly careful to avoid self-serving answers, saying for example that the signature on the statutory declaration “looks to be mine" before giving precise evidence as to the differences between that signature and her own.[47] Her conclusion was carefully considered: “… there are just too many things missing from the document for me to have signed the Statutory Declaration” and “… I have not signed my signature in that way for over nine years and it is unlikely that I would have used it for this document.[48]
[47]For example, the signature is missing the “JP (MAG. CRT.)” and stamp both of which she invariably attaches and differences in the way the date is written and differences in an individual letter (D) and number (3).
[48] Affidavit Ms A sworn 21 July 2022, [10]–[15].
Ms A was a thoroughly impressive witness. She was careful and considered in her answers. She made appropriate concessions. For example, she readily conceded she could not recall every document she had witnessed.
When her capacity to recall this particular document was questioned, she gave the following evidence which the Tribunal considers compelling:
I would remember that context. In all the stat decs and different documents I’ve witnessed, that one stands out well and truly and I do have an excellent memory.
All right. No one is challenging your memory insofar as that issue might be concerned. But in terms of when you said you have an excellent memory and it stands out, does it stand out because you witnessed it or does it stand out because of its content? --- Because of it’s [sic] context. If someone had come to me with that context in a stat dec I probably would not – I would have been very reluctant to sign it. I would’ve referred them to – go to the police because it – it’s an [sic] matter of assault - - -
All right?--- - - - or suicide. Something like that is something that needs to be [indistinct] dealt with by police, not by me.
Okay?---And, then, this person needs guidance and counselling. …
I have never ever, and I can state that truthfully, had a stat dec that stated somebody was threatening suicide.[49]
[49] Transcript of proceedings, 18 October, p 2-20, ll 6–20.
The effect of Ms A’s evidence is she:
(a)did not know Ms JW and “her name is not familiar to me”;
(b)had never met Ms JW;
(c)was not present at a McDonalds restaurant with Dr Kumar and Ms A;
(d)had not seen the statutory declaration prior to it being shown to her much later by investigators; and
(e)did not witness the statutory declaration.
The Tribunal has no hesitation in accepting Ms A’s evidence. It is in any event corroborated by the evidence of Ms JW whose evidence is also accepted.
Ms JW swore she:
(a)did not know Ms A;
(b)had never met Ms A;
(c)did not declare the statutory declaration before Ms A (or anyone else); and
(d)was not made aware of the presence of anyone at the McDonalds who was to witness her signature.
It will be seen later in these reasons that the first statement in the extract from the statutory declaration signed by Ms JW[50] is plainly untrue; text messages were received by her in which Dr Kumar had threatened suicide.
[50] At [57] above.
Ms JW says there was no intention to declare an untrue statement when she signed it. She deposes that it was only after receiving the printouts of text messages previously provided by her to the Health Ombudsman on a USB disc that she realised that Dr Kumar did in fact send her text messages where he threatened to kill himself and where he claimed he was depressed.[51]
[51] Affidavit of Ms JW affirmed 25 August 2023, [68].
The Tribunal accepts her evidence that she had felt pressured and harassed by Dr Kumar over a period of about two years prior to signing the statutory declaration.
It might at first blush seem unlikely that Ms JW was, as she deposes, unable to recall “[a]t the time of being asked to sign the statutory declaration … if [Dr Kumar] had made any of these threats [to commit suicide] via text message”,[52] but the large volume of text messages passing between the two, and their content, gives that claim proper context as does her evidence that, initially, she recalled those threats being confined to telephone calls.
[52] Ibid, [59].
Dr Kumar did not contend for any inability to recall or admit of the prospect of his evidence being mistaken.
No account of the signing or witnessing of the document was given in Dr Kumar’s affidavit of evidence nor in a second affidavit filed on the fourth day of the hearing. His evidence emerged only in cross-examination.
The Tribunal wholly rejects Dr Kumar’s account of the witnessing of the document. The Tribunal finds his evidence before the Tribunal is an untruthful concoction.

Did Dr Kumar Forge Ms A’s Signature?

The Health Ombudsman contends that the “overwhelming inference” to be drawn from the facts as found is that Dr Kumar forged Ms A’s signature.
The Tribunal accepts that Dr Kumar had a motive to forge the signature of the witness to the statutory declaration. Doing so was an essential part of (falsely) answering the allegations being investigated.
There is no evidence that anyone other than Dr Kumar (and Ms JW who signed it) was involved in the production of the false statutory declaration. However, the absence of that evidence does not lead to an inference that Dr Kumar forged Ms A’s signature. As will be seen when later discussing allegations involving Ms V, there is evidence accepted by the Tribunal that Dr Kumar has had friends act on his behalf in an attempt to impede a potential complaint.
It cannot be said that there was no reasonable opportunity for someone other than Dr Kumar to forge Ms A’s signature. Ms JW signed the statutory declaration on 2 May but it was forwarded to the Health Ombudsman by Dr Kumar eight days later.
No expert evidence was called in respect of Ms A’s purported signature with the consequence there is no expert evidence which compares Dr Kumar’s signature or writing with the false signature on the document.
There is certainly a suspicion that Dr Kumar signed Ms A’s signature. However, suspicion is merely conjecture. Forgery of a statutory declaration is a grave allegation (and a serious criminal offence). Ultimately, the Tribunal is not persuaded that it should be inferred from the established facts that it was Dr Kumar who forged Ms A’s signature.
However, an inference can and should be drawn that Dr Kumar was knowingly concerned in, and acquiesced in, the forging of Ms A’s signature on the statutory declaration. He had motive; he wrote the statutory declaration and letter; he knew Ms A had witnessed documents in the past for him; and he plainly wanted his (false) assertions to be clothed in the solemnity of a statutory declaration.

Findings

The Tribunal finds:
(a)Dr Kumar authored a statutory declaration knowing it contained at least one significant falsehood;
(b)Dr Kumar authored a letter to investigators that was false in that it asserted Ms JW authored the statutory declaration which he knew to be false;
(c)Dr Kumar forwarded to investigators a statutory declaration that he knew contained a forged witness attestation and signature;
(d)Before this Tribunal, Dr Kumar gave an untruthful account of the witnessing of the document;
(e)Dr Kumar was knowingly concerned in, and acquiesced in, the forging of Ms A’s signature of the statutory declaration; and
(f)The only purpose Dr Kumar can have had in providing false information to investigators was to mislead them in their investigations and to curtail or impede their investigation into relevant allegations against him.
Given that the Tribunal will need to decide, among other things, whether Dr Kumar is a fit and proper person to be registered as a medical practitioner, it is important to also record the Tribunal’s finding that Dr Kumar’s false evidence to the Tribunal has indirectly impugned the integrity of a Justice of the Peace whose evidence, the Tribunal considers, plainly reveals an honest person who takes her responsibilities as such earnestly and responsibly.

Who Authored and Signed Ms B’s Statutory Declaration and Letter?

Ms B was a patient of Dr Kumar at four of his clinics between about 2005 or 2006 and 2012. She was being treated for depression and diabetes. She consulted Dr Kumar regularly at his various practices. Ms B suffers from a slight cognitive impairment as a result of a childhood medical incident. She says in her affidavit, “I can't read and write very good”.[53] Ms B’s impediment was plain during her oral evidence. She gave evidence with the assistance of a support person.
[53] Affidavit of Ms B affirmed 15 August 2023, [7].
Dr Kumar’s clinical notes record numerous social and psychological issues confronted by Ms B at the time of her consultations. For example, it is recorded on 19 and 27 August 2009 respectively: “going through a real tough time”; and “depressed++” / grandmother passed away / her partner is in hospital ”.
On 8 July 2011, a letter was received by AHPRA purportedly signed by Ms B. It said “the allegations I made against Dr Praveen Kumar were false and […] I was misled by a [named nurse][54] who used to work at My Family Doctors”.
[54]The named nurse is not Ms KW who is the practice nurse whose evidence is integral to the allegations involving consent forms for procedures performed by Dr Kumar on Ms W, to be discussed below.
The letter attached a statutory declaration to similar effect, also purportedly signed by Ms B. It declares in part:
Dr Kumar did not take any money from me and … I gave the money to [Ms R].
She has given me some money and has entered into an agreement to pay back the rest of the money.
Dr Kumar has never made any sexual advances towards me.
Ms B denies signing or sending the letter. She denies signing the statutory declaration.
The statutory declaration indicates on its face that it was declared in front of a named female person and gives a specified address and a registration number for her. No written or oral evidence was called from the alleged witness.

The Expert Evidence

The Health Ombudsman called expert opinion evidence from Ms K, a forensic document examiner employed by the Queensland Police Service. Ms K deposes to 23 years of experience. Her qualifications, experience and expertise were not challenged. No expert evidence was tendered or called by Dr Kumar.
Ms K’s ultimate “qualified opinion” was that Ms B “did not write” the signatures on the letter and the statutory declaration. The “qualified opinion” was given by reference to five standardised “levels of opinion" used by document examiners. The instant opinion falls into category 2:
The evidence provides qualified support for the proposition that the questioned material was written by the writer of the comparison material. This opinion level is used when there is an identifiable limitation associated with the examination process.
Ms K explained the “identifiable limitation” in the instant was the “non-original nature of” the letter and statutory declaration – that is, she was provided with a copy of each.
In cross examination Ms K agreed with counsel for Dr Kumar that she had identified more similarities than differences in the signatures but went on to say, “there's more pictorial overall gross similarity, yes, but there is also the inconspicuous dissimilarities”.[55] It was put that “the inconspicuous dissimilarities [are] much more difficult to pick up in a copy”,[56] to which Ms K replied, “Yes, they can be, but in this one you can clearly see the differences of the slant, the alignment and the P and the R”.[57]
[55]          Transcript of proceedings, 16 October 2023 p 1-31, ll 15–16.
[56]          Ibid, ll 18–19.
[57]        Ibid, ll 19–20.
In answer to a question from Tribunal Member Professor Baker, Ms K responded:
That’s where I indicated there is some evidence of attention to the writing process. It doesn't look fluent. It doesn't look – it looks yeah it just lacks fluency… It doesn't look right might be the easier way to say it for a layperson.[58]
[58] Ibid, p 1-34, ll 42–46.
The evidence of Ms K was careful, cogent, and persuasive. No expert opinion challenged it. It was not dinted in cross-examination. The Tribunal has no hesitation in accepting her evidence.
The Tribunal also accepts the Health Ombudsman’s submission that there are plainly observable marked differences in language, style, and sophistication employed in a handwritten letter to the Health Ombudsman expressed in Ms B’s own words and that purportedly employed by her in the instant letter and in the statutory declaration.
The Tribunal also accepts the Health Ombudsman’s submission that, despite her obvious impairment, Ms B was “doing her best to give forthright, honest evidence”. That accords with the Tribunal’s impression and the observations of her in the witness box. Ms B’s evidence that she did not write the letter and did not sign either the letter or the statutory declaration is accepted.
The Tribunal finds that a person other than Ms B authored and signed both documents.

Did Dr Kumar Author the Documents and Forge Ms B’s signature?

Considerations similar to those already discussed in respect of Ms JW apply to the instant question. Again, the Health Ombudsman contends in closing submissions that the factual findings just made lead to an “irresistible” inference that Dr Kumar drafted and signed them [i.e. he forged Ms B’s signature].
At the time the letter and statutory declaration were forwarded to the Health Ombudsman, Dr Kumar was well aware of the complaint made to it by Ms B in 2010; by that time, he had received a copy of the documents relevant to those complaints. He plainly had a motive to both author and sign each of the letter and the statutory declaration and to forward both to investigators, namely purporting to answer the allegations made against him.
Dr Kumar was not the only person with knowledge of the allegations of “taking money”; “agreement to pay back the rest of the money”; and “sexual advances” to which the statutory declaration refers. Ms R – his former de facto and practice manager – also knew of the allegations. As will be seen, she was integrally involved in Ms B transferring money into a bank account in the joint names of herself and Dr Kumar.
The fact that two people are identified by the evidence as having knowledge of the allegations does not eliminate the possibility of others having that knowledge or being involved in production of the documents. In the same vein, it cannot be said on the evidence that Dr Kumar was the only person with the opportunity to author and sign the relevant documents.
The observable differences in style, tone and sophistication point only to a person other than Ms B authoring the documents.

The expert evidence is to the effect that the documents do not contain signatures written by Ms B. However, the expert did not compare that writing with any writing provided by Dr Kumar. The Tribunal accepts the submission of Counsel for Dr Kumar that:
There is insufficient evidence to conclude that [Dr Kumar] forged the signatures of [Ms B]. The handwriting expert was not given any handwriting of [Dr Kumar] to compare. The evidence is a negative conclusion being it wasn’t [Ms B]. The Tribunal is then asked to draw inferences from the comparison.[59]
[59] Outline of Submissions of Dr Kumar filed 5 December 2023, [67].
Again, a suspicion is raised that Dr Kumar both authored the documents and forged Ms B’s signature, but, again, suspicion is merely conjecture.
Forgery is a grave allegation (and a serious criminal offence). Ultimately, the Tribunal is not persuaded that it should be inferred that it was Dr Kumar who both authored the documents and forged Ms B’s signature.
However, it can and should be inferred that the documents would not have been authored without Dr Kumar being knowingly involved in, and acquiescing in, the writing of both. His motive is obvious; the documents had the sole purpose of seeking to answer complaints made about him; their timing coincided with the Health Ombudsman investigation; and he plainly had an interest in the assertions being clothed in the solemnity of a statutory declaration. It is inconceivable that another person or persons would have authored the documents, forged Ms B’s signature or forwarded the documents to the Health Ombudsman without Dr Kumar’s knowledge and acquiescence.
These reasons will later find that, contrary to what is asserted in the statutory declaration, Dr Kumar did make “sexual advances towards” Ms B. Indeed, a finding will be made that they had a sexual relationship while she was his patient. To that extent, the letter containing Ms B’s forged signature also contained a false assertion.
The only purpose of the false letter and statutory declaration can have been to mislead the Health Ombudsman and to impede their investigation.

Findings

The Tribunal finds Dr Kumar:
(a)was integrally involved in, and acquiesced in, authoring and forwarding to the Health Ombudsman a false statutory declaration relevant to the investigation into his conduct;
(b)was integrally involved in, and acquiesced in, the forging of Ms B’s signature on the statutory declaration;
(c)was integrally involved in, and acquiesced in, authoring, and forwarding a letter to the Health Ombudsman containing a statement he knew to be false relevant to the investigation into his conduct;
(d)was integrally involved in, and acquiesced in, forwarding to the Health Ombudsman a letter and statutory declaration knowing that each contained a forged signature; and
(e)sought to mislead Health Ombudsman investigators in their investigations and to curtail or impede their investigation by his involvement in forwarding to them the statutory declaration and letter containing information he knew to be false.

Who Signed and Witnessed Ms W’s Consent Forms?

Consequent upon a complaint to AHPRA by Ms W in respect of two procedures carried out by Dr Kumar in 2015, he provided two consent forms to investigators through his then solicitors.
The two consent forms were purportedly signed by his patient, Ms W, on 17 September 2015 and 9 October 2015 respectively. Each was also purportedly witnessed by “Practice Nurse [Ms KW]” on those days. Dr Kumar is alleged to have forged both signatures on both documents. Dr Kumar denies that and also denies forwarding the consent forms to investigators knowing them to contain forged signatures and false information.
Ms W was an impressive witness. She was careful to attend to the facts and not infect her evidence with any feelings of animosity toward Dr Kumar in respect of what she contends were significant adverse effects of his procedures and which she says are, to some extent, ongoing. The events of which Ms W spoke were (and are) significant for her and her recollections were clear. Her evidence was consistent and cogent. It was not put to her that her recall was impaired by the effluxion of time, and the Tribunal saw no evidence of that being the case.
Ms W’s evidence is that she did not sign a consent form for either procedure at any time. That evidence is accepted. Consequently, the Tribunal finds that someone other than Ms W signed the two documents as patient.
Ms KW was, at the relevant time, Dr Kumar’s practice nurse. She swore an affidavit in the Health Ombudsman’s case and was cross-examined. Ms KW swears:[60]
(a)the witness signatures on the consent forms “look like my signature, however neither is my actual signature”;
(b)she “did not witness [Ms W’s] signature on either of those consent forms”;
(c)Dr Kumar asked her to sign each of those consent forms after the procedures had been concluded, but she refused;
(d)she “doesn’t recall Ms W’s signature on the consent forms when Dr Kumar first asked me to sign them”;
(e)when Dr Kumar approached her to sign the consent forms, [Ms MT], was present; and
(f)when Ms KW refused, Dr Kumar “then took the consent forms back to his room. When he came back out later, both forms were signed”.
[60] Affidavit of [Ms KW] sworn 14 October 2023, [21]–[22].
Ms MT was at the relevant time a receptionist at Dr Kumar’s practice. She too swore an affidavit in the Health Ombudsman’s case and was cross-examined.
Ms MT deposes to Dr Kumar bringing two consent forms into the reception area and saying to Ms KW that the forms “were about [Ms W’s] complaint”. She says that when Dr Kumar “came to [Ms KW] to have her sign the consent forms, she told [Dr Kumar] that she wouldn’t sign the forms because the procedures had already been done”. She never saw Ms KW sign the forms at any time. [61]
[61] Affidavit of Ms MT sworn 5 October 2023, [9], [11].
Ms MT goes on to depose that a short time later, Dr Kumar came back to the reception area with, she says, the same forms:
I saw the documents and they appeared to have signatures on the forms. I don’t know whose signatures they were but all of the signature lines were written on with what appeared to be different signatures or writing.[62]
[62] Ibid, [12].
When the versions deposed to by Ms KA and Ms MT were put to Dr Kumar, he said “nothing like that happened”. He denied there was any conversation about consent forms with Ms KW for which Ms MT was present.[63]
[63] Transcript of proceedings, 23 October 2023, p 4-64, ll 12–13.
It was not suggested to either Ms KW or Ms MT that they had colluded or were giving false evidence. Both were cross-examined about the extent and accuracy of their recall.
Ms KW readily conceded that, as Dr Kumar’s practice nurse, she had witnessed consent forms for numerous patients and, generally, could not recall the details surrounding specific forms for specific patients. However, Ms KW remembered the circumstances surrounding Ms W because “Dr Kumar brought me the forms to sign after the complaint [to the Health Ombudsman] had been made. That’s the only reason I remember what happened”.[64]
[64] Transcript of proceedings, 18 October 2023, p 2-35, ll 11–14.
Ms MT denied having any difficulties with her recall, saying “an event like that stands out quite well”. The context for that answer appears in the cross-examination which preceded it:
All right. And in this case, you just saw consent forms. You didn’t see what was on them?---That’s right. I just saw the consent forms.
And so when we’re talking about the incident involving the consent forms, it could be something completely unrelated to or it couldn’t – it could not relate to something involving Dr Kumar entirely and – couldn’t it?---I disagree. Dr Kumar had asked [Ms KW] to sign the paper – the forms and handed it over to her [indistinct]
All right. But you don’t know whether or not these consent forms related to [Ms W’s] complaint, do you?---I do, because he’s made – he named the patient.
Well, but didn’t you say a moment ago that you don’t recall what was in them – in the consent forms?---I – they were consent forms. When he came – all the consent forms do look the same. They were not signed. [65]
[65] Transcript of proceedings, 18 October 2023, p 2-42, l 35 – p 2-43, l 3.
Dr Kumar’s affidavit evidence in respect of this issue was initially confined to:
I did not forge any signatures on any forms whatsoever. The fact that she [i.e. Ms W] presented herself for the procedure and paid for it, she automatically consented to the procedure.[66]
[66] Affidavit of Dr Kumar affirmed 4 October 2023, [60].
In a second affidavit filed on the fourth day of the hearing - after Ms W; Ms KA and Ms MT had given evidence and been cross-examined – Dr Kumar deposes relevantly:
At one point, I refused to conduct the surgery on [Ms W] because I believed she could be a troublesome patient.
I informed [Ms KW] of this and told her to get consent forms from [Ms W] before the surgery …
… [Ms KW] filled out consent forms for [Ms W] after the surgery.[67]
No reference was made in that affidavit to the evidence of Ms MT. Dr Kumar confirmed in cross-examination that the evidence just referred to applied to both procedures.
[67] Affidavit of Dr Kumar affirmed 23 October 2023, [15]–[16], [19].
Dr Kumar had previously given evidence that his clinic’s records were electronic. Documents such as consent forms are scanned into the records. Ms W’s alleged consent forms were not. When asked why the consent forms were not scanned in, he said, “That’s what – I mean, I – I – there was a lot of things that used to happen at the practice so – the practice had become a bit too big - - -”.[68]
[68] Transcript of proceedings, 23 October 2023, p 4-67, ll 12–14.
Notwithstanding Dr Kumar’s evidence that he made relevant entries in Ms W’s clinical records - including as to Ms W’s alleged troublesome behaviour - he said in cross-examination that he did not check the records for the consent forms, nor did he notice they were missing. The first occasion he noticed their absence was when he “went searching” many months later at the time of the complaint and investigation. He says it was only at this time that he raised the issue of consent forms with Ms KW and:
… she went and looked for it and brought it back to me … I talked to her about it and she said it was done then - - -
Done when?--- - - - at the procedure – at the time of the procedure and she had put it in the pile [for scanning]. [69]
[69] Ibid, p 4-68, ll 22–36.
Dr Kumar deposed in his affidavit sworn that very morning (an affidavit which he said he dictated to his solicitors) that Ms KW completed the consent forms prior to the procedures. It is a discrepancy Dr Kumar realised as it was being put to him:
So it was done – she told you it was done before the procedures were - - -?---Yes. Around the time of the procedure. But here it’s written after the surgery.
MR TEMPLETON:   Yes. Well - - -
MEMBER:   Yes - - -
MR TEMPLETON:   So - - -?---That’s – that’s a slip up.[70]
[70]        Ibid, p 4-68, ll 38–45.
To the extent that the use of the expression “slip up” is intended to convey an oversight or mistake, that explanation is rejected. A “slip up” is not an adequate explanation for sworn accounts, contradicted within hours of each other, about an important issue of which Dr Kumar had notice. Prior to his cross-examination, Dr Kumar had not provided a discursive account of what he says occurred in respect of the consent forms. There is no suggestion by him that his evidence is affected by an inability to recall as a result of the passage of time.
Rather, the “slip up” is consistent with the Tribunal’s general view of Dr Kumar’s evidence on this issue which is that it was untruthful and was being constructed as his cross-examination progressed.
The Tribunal accepts the evidence of both Ms KW and Ms MT. The Tribunal considers each gave truthful and reliable evidence. Despite the passage of time, their recall was clear. Their evidence was not dented in cross-examination. The reason given by each for recalling relevant events that might otherwise have evaded recollection was cogent and plausible: Health Ombudsman complaints and investigations are not an everyday occurrence.
The Tribunal finds that the witness signatures on both consent forms forwarded to investigators were not those of Ms KW. Someone other than Ms KW appended her purported signature to both documents.

Did Dr Kumar Forge the Signatures of Ms W and Ms KW?

The question which arises is whether, as the Health Ombudsman alleges, an inference should be drawn from the established facts that it was Dr Kumar who forged both signatures.
There is no expert evidence before the Tribunal in relation to the signatures that appear on the consent forms.
Dr Kumar plainly had a motive to present to the Health Ombudsman written consent forms purportedly obtained prior to both procedures being carried out. He was aware of the complaints made by Ms W and the Health Ombudsman’s investigations. He had engaged solicitors to respond to that investigation and their response on his behalf specifically referred to consent forms and attached two.
There is in the Tribunal’s view a major point of difference between the circumstances as found in respect of the consent forms and those pertaining to the relevant documents in the cases of Ms JW and Ms B. The Tribunal’s findings are that that a request to sign blank consent forms; a refusal to sign the blank forms; and two signed consent forms thereafter appearing all occur on the one occasion for which two witnesses whose evidence is accepted were present.
Although there is no estimate of the precise time frame between Dr Kumar presenting the consent forms to Ms KW for signature, in Ms MT’s presence, and his re-emergence with signed forms with both of them present, there was on their respective accounts no reasonable opportunity for anyone other than Dr Kumar to have signed the forms. On the accepted evidence of both Ms W and Ms MT, the signed forms emerged in direct response to Ms KW’s refusal to sign the documents. Despite the forms referring to procedures conducted more than three weeks apart, both were presented to Ms JW at the same time, her refusal applied to both and both re-emerged signed.
It is true that Ms MT did not see the form of the signatures on the two forms with which Dr Kumar re-emerged. It is also true that Ms KW gave no evidence of the signatures she saw on the documents. Dr Kumar does not suggest that the events described by Ms KW and Ms MT do not pertain to the consent forms for Ms W’s procedures; he says the events described did not occur at all. His implausible account of how the relevant purported signatures came to be on the consent forms submitted to the Health Ombudsman has been rejected.
The circumstances described by both Ms KW and Ms MT and accepted by the Tribunal do not reasonably admit of the signed forms with which Dr Kumar emerged being other than those pertaining to Ms W’s procedures.
Notwithstanding the persuasive burden created by the seriousness of the allegations, the Tribunal is firmly persuaded that it should be inferred that Dr Kumar forged the signatures of both Ms W and Ms KW on the consent forms forwarded by his then solicitors forwarded to Health Ombudsman investigators.

B. MS D’S ALLEGATIONS OF RAPE AND SEXUAL RELATIONSHIP

Seven instances of rape of Ms D by Dr Kumar are alleged as specific instances of professional misconduct.
The allegations are, of course, grave. A finding that each occurred is in large measure dependent upon acceptance of Ms D’s evidence and a rejection of Dr Kumar’s denials. Dr Kumar denies there was any sexual activity at all between the two of them.
Ms D’s evidence of rape emerges from her evidence as to the existence of a sexual relationship with Dr Kumar and its nature. Her evidence also emerges within a series of statements said to be true at the time which were later disavowed. Statements which were said to be true and then said to be false are now again said to be true and form the basis of Ms D’s evidence to this Tribunal.
Ms D swore an affidavit of evidence for the Tribunal on 31 August 2017. That affidavit swears to the truth of a statement given to investigators on 30 August 2016. By agreement between the parties, the transcript of Ms D’s evidence in the criminal prosecution of Dr Kumar for rape was relied upon as her evidence in respect of the rapes. If that evidence, the 30 August 2016 statement, and her additional evidence before the Tribunal is to be accepted as truthful and reliable, it must be accepted that:
(a)a statutory declaration declared to be true by Ms D on 30 January 2015 is false;
(b)two emails of 21 December 2015 sent to the Health Ombudsman declaring her complaint to it to be false, are themselves false;
(c)her 9 May 2016 email to the Health Ombudsman saying she had made up allegations and they were untrue, is itself untrue;
(d)her 23 September 2016 email to the Health Ombudsman stating her 30 August 2016 statement was untrue, is itself untrue; and
(e)she was, by reason of her earlier statements which are now said to be untrue, complicit with Dr Kumar in seeking to mislead Health Ombudsman investigators.

Ms D’s Varying Versions in Context

The chronology of Ms D’s contradictory claims; her statements to the police that remained unsigned for a considerable period of time; and when specific allegations of rape arose is important.
On 30 January 2015, Ms D declared a statutory declaration which denied any “affair” with Dr Kumar. She there declared she was sending messages to him not because of a sexual relationship with him but in order get her job back as a receptionist at his clinic and because Dr Kumar and Ms R were teaming up against her. She contends in her Tribunal evidence that the document was authored by Dr Kumar and sent to investigators at his behest.
Later that year, on 14 December 2015, Ms D made a complaint to the Health Ombudsman alleging sexual conduct by Dr Kumar while she was his patient.
A week later, on 21 December 2015 Ms D emailed the Health Ombudsman withdrawing the complaint. She said: “whatever I mentioned was all false. I made up this story … Dr Kumar has never made any sexual remarks or said such things which I mentioned in my story before”. Two hours later, Ms D sent a further email to the Health Ombudsman purporting to be from her ex-partner (and father of their child), Mr B to similar effect.
Ms D did not initially follow up her December 2015 complaint. On 9 May 2016, the Health Ombudsman wrote to her. Ms D’s reply email sent the same day said she “still held the same grudge” against Dr Kumar’s clinic as a result of her sacking. She said: she had “a lot of anger and anxiety issues”; she “made up a lot of allegations that are untrue” and she wished to withdraw her complaint.[71]
[71] Transcript of District Court criminal proceedings, 7 February 2023, p 2-29, ll 5–40.
On 11 July 2016, Ms D did not attend a scheduled appointment with the Health Ombudsman investigators. She subsequently made a statement on 30 August 2016. The account given there was declared to be true. It contradicted her earlier emails. She said Dr Kumar had dictated the May 2016 email. She complied with sending it to investigators because Dr Kumar said if she didn’t withdraw her complaint, he would kill himself.
On 20 August 2016, Ms D gave a statement to the police. That statement alleges Dr Kumar anally raped her three days previously. However, that statement was not signed.
The 30 August 2016 statement to Health Ombudsman investigators gives an account of an anal rape occurring on 17 August.

Those things said, the evidence before the Tribunal and the findings emerging from it lead to the Tribunal’s view that it is difficult to see what future changes might occur that would render Dr Kumar a fit and proper person to ever be a member of the medical profession.
It is proposed to order that Dr Kumar be prohibited indefinitely from applying for registration as a medical practitioner, such an order following the wording of the subsection referred to which delineates the Tribunal’s relevant power.

COSTS

In Queensland Building and Construction Commission & Benton v Egan (No 2),[190] I referred to differences in opinion among judicial members of the Tribunal as to the interpretation of ss 100 and 102 of the QCAT Act.[191]
[190] [2023] QCATA 163 (‘Egan (No 2)’).
[191] Egan (No 2) (n 190), [10]–[39].
Ultimately, I came to the conclusion that I preferred the view expressed by Judicial Member D J McGill SC in the decision of Marzini v Health Ombudsman (No 4).[192] That decision in turn referred to a number of earlier decisions, including a decision by reference to legislation different to the instant context, referred to by Keane JA (as his Honour then was) in the decision in Tamawood Ltd v Paans.[193]
[192] [2020] QCAT 365 (‘Marzini (No 4)’); Egan (No 2) (n 190), [28].
[193] [2005] QCA 111; [2005] 2 Qd R 101 (‘Tamawood’).
In Health Ombudsman v Antley,[194] Judicial Member the Hon J B Thomas AM KC set out a number of considerations relevant to the ordered costs specific to disciplinary proceedings. In Health Ombudsman v Fletcher (No 2),[195] Judicial Member McGill SC expressed agreement with what was said there. I respectfully agree with what was said by both of those judicial members.
[194] [2016] QCAT 472 (‘Antley’).
[195] [2021] QCAT 241 (‘Fletcher (No 2)’).
In essence, as expressed by Judicial Member McGill SC, the default position in s 100 of no order for costs “should not be too readily departed from and will be the usual order”. However, departure from that position is justified when, as section 102 provides, the “interests of justice” require it. [196]
[196] Fletcher (No 2) (n 195), [2].
Judicial Member Thomas AM KC refers at length to the “crippling burden” a costs order may create for a litigant in circumstances where the sanction itself brings with it financial ramifications. The difference between disciplinary proceedings at the suit of a public organisation and commercial matters is also referred to. The Judicial Member also said this:
Factors favouring a costs order may well exist when a respondent protracts litigation by mounting an unmeritorious defence or by needlessly complicating the litigation, but the present case is not of that kind.
There will also be cases where it will be desirable to place some limitation or cap upon an award of costs, or to expressly limit costs to a particular aspect or issue in the litigation. QCAT’s discretion to award costs is a wide one, and the QCAT Act encourages the Tribunal to fix the costs itself.[197]
[197] Antley (n 194), [76]–[77] (citations omitted).
Again, I respectfully agree. The circumstances in the instant case point to justice requiring an order for costs. Here:
(a)the dishonest obfuscation of the investigative process by Dr Kumar is an important consideration;
(b)details of Dr Kumar’s response were not discursively set out in affidavits filed by him but emerged only during the course of a lengthy hearing under cross-examination;
(c)witnesses, including an expert witness, were effectively required to be called by the Health Ombudsman to prove the falsity of Dr Kumar’s assertions. Those assertions related to important matters involving dishonest solemn documents; and
(d)Dr Kumar’s witness, Ms R, failed to appear to continue her evidence, necessitating the issue and service of a notice to attend.
This is a case where it is desirable in the interest of justice that an award of costs be made.
In making an award of costs, it is also important to take into consideration that the Health Ombudsman framed its case in such a way that 64 separate allegations were mounted and 29 of those allegations failed. Additionally, this case was prepared, as it were, in-house by the Health Ombudsman with relevant referrals made to counsel at the private bar. The submissions of the Health Ombudsman reflect these matters by seeking an order for costs that is fixed in a sum that effectively refers only to disbursements.
Counsel for the Health Ombudsman indicates that even within that restriction, disbursements to a counsel who was initially briefed but unable to continue in the matter are not included, and as ultimately proposed, the amount sought represents approximately 80 per cent of the actual disbursements incurred by the Health Ombudsman. It seems to the Tribunal that this is a significant consideration.
However an exhibit tendered this morning on behalf of Dr Kumar indicates that he is currently in receipt of a Commonwealth benefit and reference has already been made to the fact that there has been a period of almost eight years during which he has been unable to earn an income as a medical practitioner. Furthermore, the orders that will be made by the Tribunal today will preclude him from earning income as a medical practitioner into the indefinite future.
Taking all of those matters into account, the Tribunal accepts the alternative submission made on behalf of the Health Ombudsman that in the event that the Tribunal was not persuaded to order fixed costs in the amount initially sought, then an amount equivalent to $60,000.00 or approximately 75 per cent of those disbursements should be ordered, and an order will be made to that effect.
An order will be made that the non-publication order made by Deputy President, Dann DCJ on 5 September 2022 be varied relevantly.

ORDERS — 22 MAY 2024

Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
(a)     the contents of a document or thing filed in or produced to the Tribunal;
(b)     evidence given before the Tribunal; and
(c)     any order made or reasons given by the Tribunal;
is prohibited to the extent that it could identify or lead to the identification of any patient of the respondent or any family member of those patients, or any family member of the respondent, save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).
Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
(a)     a judicial member;
(b)     a tribunal member;
(c)     an associate appointed under the:
(i)        Supreme Court Act 1991 (Qld);
(ii)      District Court Act 1967 (Qld);
(iii)     Land Court Act 2000 (Qld); or
(iv)      Queensland Civil and Administrative Tribunal Act 2009 (Qld);
(d)     any assessor appointed to assist the Tribunal;
(e)     the staff of the Tribunal registry;
(f)      any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
(g)     the parties to this proceeding.
Pursuant to s 125(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the reasons for decision in respect of sanction delivered ex tempore on 22 May 2024 be consolidated with the reasons for decision as to conduct delivered on 8 April 2024 and thereafter be published in consolidated form.
Pursuant to ss 151(2)(b) and (3)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the relevant day from which the time limit for the filing of an application for leave to appeal or an appeal against this decision is the date of the publication of the consolidated reasons.
Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.
Pursuant to s 104(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner indefinitely.
Pursuant to ss 102(1) and 107(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent shall pay the applicant’s costs of the proceedings, fixed in the amount of $60,000.00.

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

Applicant

AND

PRAVEEN KUMAR

Respondent

SCHEDULE TO THE WRITTEN REASONS FOR DECISION OF THE TRIBUNAL

Allegations of Forgery and False Documents

Complainant	Grounds
Ms JW	Ground 6 Dr Kumar forged the signature of Ms A as purported witness of the statutory declaration made by Ms JW dated 2 May 2013
Ms B	Ground 36 Dr Kumar forged Ms B’s signature on a letter dated 8 July 2011, which letter falsely stated that the allegations she had made against Dr Kumar were false.
Ground 37 Dr Kumar forged Ms B’s signature on a statutory declaration dated 8 July 2011, which statutory declaration falsely stated that Dr Kumar did not take any money from Ms B and Dr Kumar never made any sexual advances towards Ms B.
Ms W	Ground 49 In or about May 2016, Dr Kumar forged [his patient] Ms TW’s signature and [his practice nurse] Ms KW’s signature on a consent form purportedly dated 17 September 2015, which consent form falsely represented that Ms TW had provided written consent to the procedure “Mini Face Lift” and that such written consent had been witnessed by Ms KW.
Ground 50 In or about May 2016, Dr Kumar forged [his patient] Ms TW’s signature and [his practice nurse] Ms KW’s on a consent form purportedly dated 9 October 2015, which consent falsely represented that Ms TW had provided written consent to the procedure “Eye Lift” ant that such written consent had been witnessed by Ms KW.

Allegations of Rape and Sexual Conduct

Complainant	Grounds
Ms D	Ground 8 On or about 8 September 2014, Dr Kumar used the confidential information on Ms D’s medical records to obtain her address and attend there uninvited in order to engage in sexual intercourse with her.
Ground 9 Dr Kumar engaged in a sexual relationship with Ms D, a person whom he had treated as a patient, from in or about 8 September 2014 until in or about June 2016.
Ground 17 On or about 11 June 2016, Dr Kumar raped Ms D by penetrating her vagina with an eggplant without her consent
Ground 18 On or about 11 June 2016, Dr Kumar raped Ms D by penetrating her vagina with a bitter melon without her consent.
Ground 19 On or about 11 June 2016, Dr Kumar raped Ms D by penetrating her vagina with his penis without her consent.
Ground 20 On a date unknown between 1 August 2016 and 16 August 2016, Dr Kumar raped Ms D by penetrating her mouth with his penis without her consent.
Ground 21 On a date unknown between 1 August 2016 and 16 August 2016, Dr Kumar raped Ms D by penetrating her vagina with his penis without her consent.
Ground 22 On or about 17 August 2016, Dr Kumar raped Ms D by engaging in anal intercourse with her without her consent.
Ground 25 On or about 4 March 2017, Dr Kumar raped Ms D by penetrating her vagina with his penis without her consent.
Ms B	Ground 31 Dr Kumar engaged in a sexual relationship with Ms B, a person whom he had treated as a patient, from in or about 2006 to in or about 2010.
Ms JW	Ground 1 Dr Kumar engaged in a sexual relationship with Ms JW, a person whom he had treated as a patient, from in or about January 2010 until late January 2013.
Ground 2 Dr Kumar provided medical treatment to Ms JW, a person with whom he was in a close personal relationship, on dates unknown. (Said to constitute unprofessional conduct and not professional misconduct)
Ms V	Ground 51 On or about 5 August 2013, Dr Kumar met with Ms V, a patient, in his car at Bunnings car park for the purported purposed of discussing Ms V’s employment at his practice and kissed her on the arm or hand several times.

Allegations of Coercion and Coercive Behaviour

Complainant	Grounds
Ms B	Ground 30 Dr Kumar coerced Ms B into engaging in a sexual relationship with him.
Ms JW	Ground 5 Dr Kumar coerced Ms JW into signing a statutory declaration dated 2 May 2013, which statutory declaration contained a statement Dr Kumar knew to be false namely, “I have never received text messages from Dr Praveen Kumar threatening to commit suicide”
Ground 7 Dr Kumar coerced Ms JW into removing a Temporary Protection Order (TPO) which she had obtained against Dr Kumar, and which was in force (through a series of TPOs) until 20 Jully 2012.
Ms D	Ground 15 Dr Kumar coerced Ms D into withdrawing her complaints to te Office of the Health Ombudsman and to the police.
Ground 16 Dr Kumar attempted to coerce Ms D into withdrawing her complaints to the Office of the Health Ombudsman and to the police.

Assaults, Threats and Derogatory and Abusive Language

Complainant	Grounds
Ms D	Ground 23 On or about 19 August 2016, Dr Kumar assaulted Ms D by striking her four times around the head and neck.
Ground 26 On or about 5 March 2017, Dr K threatened Ms D by holding a knife in front of her face and saying to her “Fuck off from here otherwise I will stab you”.
Ground 27 On or about 5 March 2017, Dr Kumar assaulted Ms D, occasioning her bodily harm, by pushing her into a pool table, causing her to hit her head on the corner of the pool table (for which assault Dr Kumar was convicted on his own plea of guilty on 2 September 2020 in the Magistrates Court at Townsville).
Ground 28 On or about 5 March 2017, Dr Kumar did wilful damage by using a pool cue to smash the front windscreen and left hand passenger window of Ms D’s vehicle (for which wilful damage Dr Kumar was convicted on his own plea of guilty on 2 September 2020 in the Magistrates Court at Townsville).
Ground 29 On or about 5 March 2017, Dr Kumar engaged in threatening and violent conduct towards Ms D by yelling at her and threatening to strike her; swearing at Ms D and calling her a “whore”, “a fucking prostitute”, and a “cunt”; pushing Ms D in the face; holding a knife toto Ms D’s face; striking Ms D with a leather belt; threatened to strike Ms D with a pool cue; and/or grabbing Ms D around the neck with force and hitting her head repeatedly on the door grille.
Ground 13 Dr Kumar used derogatory and abusive language towards Ms D when communicating with her in person, by telephone ~~and in text messages.~~
Ms B	Ground 34 Dr Kumar used derogatory and abusive language towards Ms B when she asked him to return the balance of the $78,508.19 held in trust for her.
Ms JW	Ground 3 Dr Kumar used derogatory and abusive language towards Ms JW when communicating with her in person, by telephone and in text messages.
Ground 4 Dr Kumar sent text messages to Ms JW stating that he was depressed and threatening suicide.

Allegations of Monetary Inducements

Complainant	Grounds
Ms D	Ground 24 On or about 17 October 2016, Dr Kumar offered to pay Ms D the sum of $10,000 if she would make a false complaint to the Health Ombudsman against Dr DS alleging that Dr DS had had a sexual relationship with her.
Ms V	Ground 52 On or about 6 or 7 August 2013, Dr Kumar spoke by telephone to Ms V’s father RV and requested that he not report the incident with Ms V [see Ground 51] to the Medical Board.
Ground 53 On or about 6 or 7 August 2013, Dr Kumar caused two individuals to speak by telephone to Mr V and request that he not report the incident with Ms V to the Medical Board
Ground 54 On or about 6 or 7 August 2013, Dr Kumar caused to be made an offer, through a mutual friend [K], to pay Mr V $10,000 to drop any complaint about the incident with Ms V. [the subject of Ground 51]

Financial Transactions with Patients

Complainant	Grounds
Ms B	Ground 32 On or about 15 July 2009, Dr Kumar received (into an account held jointly with his de facto partner) from Ms B, a person whom he had treated as a patient, the sum of $78,508.19 to be held on trust for her.
Ground 33 Dr Kumar caused Ms B, a person whom he had treated as a patient, to pay the sum of $6,000 to one of his employees, Michael H, after having led Ms B to believe that the money would be repaid to her.
Ground 35 Dr Kumar failed (sic, to) return, or cause to be returned, to Ms B, the full amount of the $78,508.19 which he had received from her.
Ms D	Ground 10 In or about April 2015, Dr Kumar received from Ms D, a person he had treated as a patient, the sum of $15,000 and jewellery to be held on trust for Ms D and failed to return the money and jewellery when requested to do so.
Ground 11 In or about September 2016, Dr Kumar returned $12,500 of the $15,000 in order to induce Ms D to withdraw her complaints about him to the Office of the Health Ombudsman and the Police
Ground 12 Dr Kumar did not return $500 of the $15,000 or the jewellery to Ms D

Allegations Concerning Medical Procedures and Clinical Practice

Complainant

Grounds

Ms W

Ground 38

Dr Kumar performed surgical procedures on Ms W on 17 September 2015 (a ‘mini face lift’ / simple crescenteric preauricular skin excision) and 9 October 2015 (a bilateral upper blepharoplasty) which he was not qualified, or adequately qualified, to perform

Ground 39

Dr Kumar failed to perform any or any adequate preoperative examination or assessment with Ms W.

Ground 40

Dr Kumar failed to perform any or any adequate assessment of whether Ms W was a suitable candidate for cosmetic or other surgery to the face

Ground 41

Dr Kumar failed to provide Ms W with any or any adequate information about the surgical procedures, their risks and benefits so as to enable her to make an informed decision about whether to undergo the surgical procedures.

Ground 42

Dr Kumar failed to obtain Ms W’s formal written consent for the surgical procedures.

Ground 43

Dr Kumar performed the surgical procedures at the clinic which was an inadequate clinical environment.

Ground 44

Dr Kumar’s performance of the surgical procedures was below the standard that was reasonably to be expected in that: the surgical procedures were not appropriate to treat the clinical condition for which Ms W sought advice and treatment; the choice of placement for incisions was poor; the surgical procedures did not resolve Ms W’s dribbling; and the surgical procedures resulted in excessive scarring and facial asymmetry.

Ground 45

Dr Kumar failed to formulate and implement any or any adequate discharge plan for Ms W.

Ground 46

Dr Kumar failed to provide adequate post-operative follow-up care to Ms W.

Ground 47

Dr Kumar failed to maintain adequate clinical records of his consultations with Ms W and of the surgical procedures he performed on 17 September 2015 and on 9 October 2015.

Ground 48

Dr Kumar failed to respond to or engage with Ms W following the surgical procedures when she attempted to express her concerns about the outcomes of the surgical procedures.

Allegations Raised by the Health Ombudsman

Complainant

Grounds

Ground 55

On or about 14 November 2015, Dr Kumar attended at the residence of Ms [R], and sent a text message to [Ms R], in breach of a bail condition that he not have contact with [Ms R].

Ground 56

On or about 10 August 2020, Dr Kumar sent a letter to AHPRA which was false in the respects that it stated he had refused to keep money for Ms B (where, in fact, he had not so refused) and he had not had a sexual relationship with Ms Barr (where, in fact, he had)

Ground 57

On or about 3 September 2012 sent an email to an officer of AHPRA denying that he had sent text messages to Ms JW which included threats of suicide or statements that he was depressed, which email was false because Dr Kumar had sent text messages to Ms JW which included threats of suicide.

Ground 58

On or about 1 September 2016, Dr Kumar made a false statement to investigating officers of the Office of the Health Ombudsman, namely that he had commenced a sexual relationship with Ms JW vprior to treating her as a patient

Ground 59

On or about 1 September 2016, Dr Kumar made a false statement to investigating officers of the Office of the Health Ombudsman, namely that Ms JW only became a patient after she became pregnant.

Ground 60

On or about 1 September 2016, Dr Kumar made a false statement to investigating officers of the Office of the Health Ombudsman, namely that he had not had a sexual relationship with Ms D.

Ground 61

On or about 10 May 2013, Dr Kumar provided to an officer of AHPRA the statutory declaration made by Ms JW which statutory declaration contained a statement Dr Kumar knew to be false, namely, “I have never received text messages from Dr Praveen Kumar threatening to commit suicide” and which Dr Kumar knew not to have been witnessed by Ms KA.

Ground 62

On or about 8 July 2011, Dr Kumar sent (or caused to be sent) a letter dated 8 July 2011 to AHPRA on which letter Dr Kumar had forged Ms B’s signature and which falsely stated that the allegations she had made against Dr Kumar were false.

Ground 63

On or about 8 July 2011, Dr Kumar sent (or caused to be sent) a statutory declaration dated 8 July 2011 to AHPRA on which statutory declarartion Dr Kumar had forged Ms B’s signature and which falsely stated that Dr Kumar did not take any money from Ms B and Dr Kumar never made any sexual advances towards Ms B.

Ground 64

On or about 2 June 2016, Dr Kumar caused his then solicitors (White & Mason Lawyers) to provide to an officer of AHPRA consent forms which falsely represented that Ms TW had provided written consent to procedures referred to therein and that such written consent had been witnessed by Ms KW.