Health Ombudsman v Moosawi
[2020] QCAT 391
•23 October 2020
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Health Ombudsman v Moosawi [2020] QCAT 391
PARTIES: HEALTH OMBUDSMAN (applicant)
v
ALI AL MOOSAWI (respondent)
APPLICATION NO/S:
OCR026-18
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
23 October 2020
HEARING DATE:
3, 4 & 6 September 2019
HEARD AT:
Brisbane
DECISION OF:
Judge Allen QC, Deputy President
Assisted by:
Dr D Khursandi
Dr D Ellwood
Ms J FeltonORDERS: 1. Pursuant to s 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
2. The non-publication order made on 14 March 2018 and amended on 3 September 2019 is further amended by deletion of the words, “the respondent (or any family member of the respondent),”.
CATCHWORDS: PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – where the respondent medical practitioner is alleged to have engaged in boundary violations with a patient – where the boundary violations are alleged to include sexual relations – where the respondent denies such conduct – whether the respondent engaged in the alleged conduct – where the respondent is alleged to have interfered with the patient as a witness in an investigation by the Office of the Health Ombudsman into his conduct – whether the respondent engaged in the alleged conduct – whether the conduct of the respondent should be characterised as professional misconduct or unprofessional conduct.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether a non-publication order or redactions of the reasons of the tribunal should be made to avoid embarrassment to non-parties
Health Ombudsman Act 2013 (Qld), s 103, s 104, s 107
Health Practitioner Regulation National Law (Queensland), s 5
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66Brigginshaw v Brigginshaw (1938) 60 CLR 336
John Fairfax Group Pty Ltd v Local Court of New South Wales [1991] 26 NSWLR 131
J v L&A Services Pty Ltd (No.2) [1995] 2 Qd R 10
APPEARANCES & REPRESENTATION:
Applicant:
M Nicolson instructed by the Office of the Health Ombudsman
Respondent:
G W Diehm QC instructed by Avant Law
REASONS FOR DECISION
Introduction
Dr Ali Al Moosawi (the respondent) is, and was at all material times, a “registered health practitioner” as defined by the Health Practitioner Regulation National Law (Queensland) (National Law) and the Health Ombudsman Act 2013 (Qld) (HO Act), registered under the National Law as a medical practitioner holding general registration with the Medical Board of Australia.
The Director of Proceedings on behalf of the Health Ombudsman (the applicant) has referred a health service complaint against the respondent to the Tribunal pursuant to s 103(1)(a) and s 104 of the HO Act. The referral particularises two charges. In respect of each charge, it is alleged that the respondent engaged in “professional misconduct” or, alternatively, “unprofessional conduct”, within the meaning of those terms as defined in s 5 of the National Law.
Charge 1 alleges that the respondent engaged in a breach of the professional boundary between himself and a patient[1] (the patient), including having sexual relations with the patient. The patient gave evidence of such conduct by the respondent. The patient’s evidence was supported to some extent by other evidence adduced by the applicant; in particular, what is alleged to be an exchange of text messages between the respondent and the patient shortly before they met to engage in sexual relations and the contents of subsequent recorded telephone conversations between the respondent and the patient which the applicant contends demonstrate a consciousness of guilt on the part of the respondent. The respondent denies the alleged conduct and gave evidence that no sexual contact occurred between him and the patient. The respondent contends that the patient has concocted her account of the events and fabricated the text messages so as to incriminate the respondent.
[1]A non-publication order made pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) prohibits the identification of the patient and any family member of the patient and, accordingly, some references in these reasons to the material before the Tribunal will be redacted. See further at paragraph [130] of these reasons.
Charge 2 relates to the recorded telephone conversations between the respondent and the patient mentioned above. These are relied upon by the applicant, not only in proof of charge 1, but also in proof of charge 2 that the respondent interfered with the patient in her capacity as a witness in the context of an investigation by the Office of the Health Ombudsman (OHO) into the conduct basing charge 1. The respondent does not deny the content of such conversations between himself and the patient but contends that the Tribunal should not draw the inference of consciousness of guilt of the respondent contended for by the applicant and that such conduct by the respondent is consistent with an innocent person bolstering a just cause.
The respondent resists a finding that he has behaved in a way that constitutes professional misconduct or unprofessional conduct.
General matters
The Tribunal must determine whether the respondent has engaged in the conduct alleged in each of the two charges and whether such conduct as the Tribunal finds established by the evidence should be characterised as professional misconduct or unprofessional conduct. Because of the potential consequences to the respondent of adverse findings on such matters, the Tribunal can only find that the respondent engaged in the alleged conduct and that such conduct should be characterised as professional misconduct or unprofessional conduct if satisfied of such matters to the standard enunciated by the High Court in Brigginshaw v Brigginshaw.[2]
[2](1938) 60 CLR 336.
There are two charges to be considered. The charges are not the same and it does not necessarily follow that the conclusion as to whether a charge is proved or not will be the same for both charges. For example, both parties conceded that if charge 1 was not proved, it might still be open to the Tribunal to find charge 2 proved. It would also be possible that the Tribunal could be satisfied that charge 1 was proved, but not satisfied that charge 2 was made out. The Tribunal must consider each of the two charges separately and determine, on the evidence relevant to the respective charges, whether either is proved to the Brigginshaw standard. Only if the alleged conduct is so proved will the Tribunal then consider whether the proved conduct should be characterised as professional misconduct or unprofessional conduct. Such ultimate determination will also be after applying the Brigginshaw standard.
The onus of proof remains upon the applicant. The respondent did not undertake any burden of proof in electing to give and call evidence. His evidence and that of his witnesses is to be assessed in the same ways as the evidence of any other witness. Although this case could be described as a case of “word against word”, in that the complainant gave evidence that sexual relations occurred between her and the respondent and the respondent has given evidence denying that any such sexual relations occurred, the Tribunal’s task is not simply one of forming a preference for one of the two primary witnesses over the other. It is only if, after a consideration of all the evidence, the Tribunal finds those matters alleged by the applicant to be established to its satisfaction on the Brigginshaw standard that the charges can be proven and any finding of professional misconduct or unprofessional conduct made.
Referral charges and particulars
Charge 1 alleges a “Boundary violation” in that, between 28 October 2014 and 12 November 2014, the respondent engaged in a breach of the professional boundary between himself and the patient. The particulars are summarised in a redacted form as follows:
1.1Between 14 August 2013 and 31 October 2014 the respondent worked as a locum general practitioner at a general practice (the practice) in a Queensland regional town (the town).
1.2When working at the practice the respondent had the use of a unit at the rear of the practice (the unit).
1.3The patient had previously been a patient of the practice and became a patient of the respondent on 16 August 2013.
1.4The patient’s daughter had also been a patient of the practice and became a patient of the respondent.
1.5At about 2pm on 29 October 2014 the patient and her daughter had a medical consultation with the respondent at the practice.
1.6The respondent consulted with both the patient and her daughter, then asked the patient’s daughter to wait outside.
1.7During the consultation, while alone with the patient:
(a) the patient showed the respondent injuries to her breast, thigh and knee;
(b) the respondent engaged in inappropriate intimate contact with the patient, namely:
(i) he ran his hand up the patient’s thigh;
(ii)he placed his hand on the patient’s underwear;
(iii) he rubbed the outside of the patient’s underwear;
(iv) he kissed the patient on the lips; and
(v) he placed the patient’s hand on his crotch;
(c) the respondent told the patient that he could get into a lot of trouble for his conduct but that he trusted her not to say anything;
(d) the respondent suggested that the patient should meet him at his unit the following night;
(e) the respondent wrote the patient prescriptions for medication.
1.8Just after 7pm that night the respondent telephoned the patient twice on her mobile telephone from his mobile telephone.
1.9The patient had not provided the respondent with her telephone number for personal use.
1.10The patient did not answer the calls, but shortly after receiving them:
(a) the patient returned the telephone call she had received;
(b) the patient and the respondent had a telephone conversation in which the respondent asked the patient to meet him that night.
1.11Around 9pm that night the respondent had a text message conversation with the patient.[3]
1.12At about 9.30pm the patient met the respondent at a service station and the respondent drove the patient to the unit.
1.13Once inside the bedroom in the unit, the respondent put on blue medical gloves and then engaged in sexual acts with the patient, which included:
(a) digital penetration of the patient’s vagina;
(b) fellatio; and
(c) sexual intercourse.
1.14On 11 November 2014, the respondent telephoned the patient and spoke with her on her mobile telephone. During that conversation, the respondent said to the patient that:
(a) they could have sex again when he was back in the town;
(b) the relationship must remain a secret.
[3]Detailed in paragraphs [21] and [22] of these reasons.
Charge 2 alleges “Interfering with a patient witness” in that, between 12 December 2014 and 19 December 2014, the respondent interfered with the patient who was the subject of a notification to the OHO on 9 December 2014. The particulars detail steps taken in an investigation of the respondent by the OHO on 12 and 16 December 2014 and some of the contents of recorded telephone conversations between the respondent and the patient on 13, 17 and 18 December 2014. I will not repeat those particulars now. The events and the contents of the conversations will be referred to in a consideration of the evidence. Suffice it to say at this stage that the applicant alleges that the respondent contacted the patient to discuss the health service complaint and encouraged her to deny the existence of a sexual relationship between them.
Evidence-in-chief of the patient
The patient swore two affidavits on 29 and 30 October 2018 and gave oral testimony during the hearing on 3 September 2019.
In her affidavit sworn on 29 October 2018, the patient deposed that she was in her mid‑30’s when she was a patient of the respondent. She deposed to attending medical appointments with the respondent at the practice on a number of occasions but could not recall the exact dates of all the appointments or when her first consultation with the respondent occurred.
The patient deposed to attending a consultation with the respondent at the practice soon after separating from her partner at Easter time in 2014. She deposed to complaining of rectal bleeding as a result of a sexual assault by her partner and the respondent conducting a rectal examination. She deposed to revealing to the respondent personal details including details of the abusive relationship she had recently left. She deposed to showing the respondent some photographs of dildos on her mobile telephone at his request. She deposed to the respondent telling her he would not put private information she told him on her medical file but would keep it private between them. She deposed to the respondent putting his arms around her at the conclusion of the consultation.
The patient deposed to taking an older friend (the older friend) to see the respondent in late October 2014. On that occasion, the respondent said that the older friend had to make her own appointment and had to leave the room. The respondent deposes:
“I felt this was really weird as we normally presented together.”
The patient deposed to another occasion prior to 29 October 2014 when she attended the practice with her daughter who required a medical certificate for her school.
The patient deposed that on 29 October 2014 she attended the practice with her daughter. The older friend waited in reception during the consultation. The patient spoke with the respondent about obtaining an exemption for her daughter to continue schooling by distance education. After they had finished discussing the distance education exemption the respondent asked the daughter to wait outside while the patient remained in the consultation room. The patient deposes as follows [footnotes added]:
“19. Dr Ali asked me how I was doing and told him that I had recently been run over by a seeding machine. This occurred the day before the consultation. As a result, I had two cuts down my left breast and had black bruising on my right knee and up the outside of my thigh.
20. At the request of Dr Ali, I pulled the left side of my dress down to expose my left breast so that he could inspect the injury. I did not fully expose my breast; I just pulled down the top of my dress enough to show Dr Ali my injury. I then lifted up my dress to show Dr Ali the bruising on my right knee and the outside of my right thigh.
21. I had been sitting down but I stood up to show Dr Ali my injury. When I lifted up my dress, I was standing on my feet but with bent knees. Dr Ali was sitting down but crouched over in his seat. When I lifted my dress, Dr Ali looked at the bruising on my thigh. He placed his right hand on the inside of my right thigh and moved his hand up my leg and placed it on my vagina on the outside of my underwear. Dr Ali’s left hand was on my right knee.
22. Dr Ali said that could get into a lot of trouble for this but he trusted me not to say anything. Dr Ali then got me to stand up straight and he lifted my dress up further around my waist. He stood looking at me for five minutes while rubbing the outside of my vagina through my underwear.
23. Dr Ali started kissing me on my lips and it got pretty steamy. Dr Ali then said he could lose his job and that what he was doing was wrong. He also kept telling me what beautiful kids I have and how pretty I was and that he would not treat me like any of the other males had treated me in the past.
24. Dr Ali kept grabbing my hand and putting it on his crotch and saying how beautiful I was.
25. Dr Ali said that I should meet him at his unit at [another regional town] on Thursday that same week.
26. He then wrote me prescriptions for [medication] and I left the consultation room.
…
28. Later, on the night of 29 October 2014, my mobile phone started to ring. My mobile telephone number at this time was [redacted]. I didn’t recognise the number of the caller and didn’t know who was calling so I didn’t answer the phone. I then received another call from the same number and again didn’t answer the phone. I then returned the call but received a message saying the caller was unavailable or similar words to this effect.
29. I then received another call from the same number, which was [redacted]. This time I answered my phone and Dr Ali told me it was him and asked me how I was. I had not ever given Dr Ali my mobile phone number.
30. Dr Ali said that instead of going to [the other regional town] that I should meet him in [the town] that night. I told Dr Ali that I had my [redacted] daughters at home and I would have to find someone to look after them if I did go out. Dr Ali agreed to call me back in one hour.
31. Dr Ali called me back and asked me if I had made any arrangements for someone to look after the girls. Dr Ali told me everything that I wanted to hear. He told me how I was really special, that he wouldn’t do anything to hurt me and that he wasn’t like any other male. Dr Ali said that he could get into so much strife, but it didn’t matter which way I went, it wouldn’t change his mind or opinion of me.
32. After this phone conversation Dr Ali sent me a text message saying he was sorry for putting me into a difficult situation.
33. I sent a text message back to Dr Ali and asked if he had he [sic] changed his mind. He said he hadn’t changed his mind and asked me to update him with the time I was free.
34. We then exchanged a series of text messages where we agreed for Dr Ali to pick me up at the phone box near the [redacted] service station on [redacted] Street, [the town].
35. Dr Ali told me that I needed to get condoms as he couldn’t get them from the hospital without being seen.
36. The phone calls and text messages I received from Dr Ali were made from the number [redacted]. This was the only telephone number used by Dr Ali to contact me that night. I have provided images from phone to the Office of the Health Ombudsman in respect of these calls and text messages. These images contain the content of the text messages as well as other data relating to these telephone calls and messages.[4]
[4]Detailed in paragraphs [21] and [22] of these reasons.
…
37. I later drove to the [redacted] Petrol Station on [redacted] Street in [the town]. [The older friend] and my kids were in the car at the time and I remember it was raining. [The older friend] went into the petrol station and purchased a packet of cigarettes for herself and some condoms for me. This occurred at approximately 8.45 pm.
38. I later drove by myself to the phone box near the [redacted] petrol station to meet Dr Ali.
39. I arrived at approximately 9.30pm to 9.35pm. I then saw Dr Ali driving a little white four door car down [redacted] Street past the police station. I don’t know the make or model of the car although it may have been a Toyota. It was the same type of car that all the doctors used.
40. The car lights were turned off as the car was still driving down the road. Dr Ali stopped the car near the phone box and kept his engine running. I noticed he had the window down and it was raining.
41. Dr Ali told me to get in the car. I got into the front passenger side and he told me to lay the seat down so no one could see me. I felt this was weird and wondered why you would arrange to meet someone and lay the seat down so they couldn’t be seen.
42. I gave Dr Ali the packet of condoms when I got into the car.
43. Dr Ali didn’t talk much but just kept saying how no one would know.
44. Dr Ali drove down [redacted] Street onto the highway and then around a few more streets.
45. Dr Ali drove past the [practice] on [redacted] Street and then he pulled up at the back of the surgery which has a unit attached to it.
46. When Dr Ali pulled up he got out of the car and had a look around. He then unlocked the door to the unit and came back to the car and told me to jump out and run out into the unit so that I wasn’t seen. You had to go up a couple of steps to get inside the unit, but inside it was all one level.
47. Dr Ali came inside the unit and told me to stand inside the door. I took five or six steps into the unit. I stood next to the fridge, which was on the left hand side of the doorway, while Dr Ali locked the door. On the right hand side there was a sitting room, in an open area.
48. Dr Ali grabbed me by the hand and took me up a long hallway. We turned left at the end of the hallway into a bedroom.
49. There was a purple and green doona thing like a cover on the bed and heaps of pillows. There was a wall-mounted air-conditioner and two bedside lamps on either side of the bed.
50. I did not go anywhere else in the unit.
51. Dr Ali told me he was on call and if he was to be called out then I had to just wait there for him to come back.
52. Dr Ali left the room and when he came back he undressed himself completely at the end of the bed near the wall. He then came over and started undressing me, until I was completely naked.
53. We started kissing, and then sat on the bed before laying down. Dr Ali held me in his arms for a bit. Then Dr Ali then kept telling me he wanted me to touch him. He asked me if I was clean of STDs and asked me if I had been a prostitute.
54. I asked Dr Ali to turn the light off as I don’t like the light on but he said he didn’t want it off as he wanted to see how beautiful I was. He kept telling me how he was really sorry how others had treated me and that he was nothing like them.
55. Dr Ali was on top of me and he lent out with his right hand and opened the bedside drawer and pulled out a set of blue doctor’s gloves and put them on. When I asked him what the gloves were for, he said so that there would be no trace whatsoever of my bodily fluids or pubic hair on him.
56. Dr Ali was clean shaven everywhere and did not have a single hair on his body. I did not notice whether he had any tattoos. He appeared to be an average build and had brownish, tan-grey coloured skin.
57. Dr Ali kept kissing my left breast and biting me on the nipple. My breast was sore because of the two cuts I sustained the previous day. I asked him if would [sic] stop as my left breast was sore. He did not.
58. Dr Ali then starting fingering me with his gloves on. He kept saying, ‘I know that you are enjoying it.’ He kept telling me I need to let myself go so that I would cum for him. That went on for ages.
59. Dr Ali then said he wanted me to give him a blow job. I went down on him and sucked his penis while he held the back of my head with both his hands. He ejaculated in my mouth and told me to swallow.
60. Dr Ali then left the room and was gone for a couple of minutes. When he came back we talked about my ex-partner. Dr Ali said he couldn’t understand how any man could treat a woman like that.
61. Dr Ali told me that he had many offers from women but had not taken them up and had not crossed the line.
62. We talked for a bit and he started touching me again with the gloves. He then took a condom from the packet which was on top of the bedside drawers, gave me the condom and asked me to put it on his penis with my mouth, which I did.
63. Dr Ali then told me to get on my knees in order for him to do doggy style, which I did. We then had intercourse in this position for about four minutes.
64. Dr Ali then left the room. I believed he left the room to clean himself, as I heard running water. When he returned to the bedroom, he was no longer wearing the gloves. While he was out of the room, I was throwing my clothes on.
65. Dr Ali told me that has three children, who were 8, 10 and 13 years old I think.[5] He told me that he is married, but miserable in his marriage. He said his wife was really jealous and he couldn’t speak to another woman without his wife blowing up. Dr Ali told me I was nothing like his wife.
[5]The respondent gave evidence that he had four children at such time.
66. Dr Ali then asked me where the local ATM machine was. I told him that there was nothing open at this time of night. I asked him why he needed money and he said, ‘To pay you for the services’. Dr Ali did not withdraw any money from an ATM and did not provide me with any money.
67. While I was in Dr Ali’s unit his mobile phone kept ringing but he wouldn’t answer it. He checked his phone when it called and I asked him if he was going to answer it he said it was okay. Dr Ali did not tell me who was calling.
68. Dr Ali then drove me back to my car. I don’t know what time I got back to my car but believe it was about 11:20 pm.
69. When I returned home that night, I told [the older friend] what had happened. I had previously told her about what had happened during my consultation with Dr Ali earlier that day.
70. I later told a number of others about what happened that night. The next day, I told [redacted]. Approximately a day or two after the incident, I told my friend, [redacted], over the telephone. I subsequently went to the hospital and tried to tell a woman called [redacted] or something similar. However, I gave up on waiting for her and left the hospital. By chance, I met her husband shortly afterwards and told him what had happened.
71. Since that night I have not seen Dr Ali but I received three or four telephone calls from him prior to 16 December 2014, and spoke with him on each occasion. I knew it was Dr Ali because he would identify himself; I took no notice of the telephone number. My recollection of these conversations is outlined in the following paragraphs.
72. I do recall that on 11 November 2014, Dr Ali telephoned me and told me again how much he had enjoyed himself on 29 October 2014. Dr Ali told me that we could hook up again for sex when he is back in [the town] but he would give me some notice so I could organise a baby sitter. He told me again that our relationship must remain a secret. I know this telephone conversation occurred on 11 November 2014, as I have since confirmed the date by looking at the call list on my mobile phone.
73. On 12 November 2014, I saw Jagqui Appleby from the Royal Flying Doctor Service and told her what had happened between me and Dr Ali. I discussed this with her as I felt used by Dr Ali.
74. I recall on one occasion on a date I can’t recall that Dr Ali rang me and talked about my daughter [redacted] and the letter of exemption I needed for her I needed to complete her schooling by distance education. I knew the call was from Dr Ali as he identified himself at the commencement of the call.
75. I recall that on one other occasion on a date I can’t recall Dr Ali rang me and talked about our encounter on 29 October 2014, and how nobody could know about this. I know this call was from Dr Ali as he identified himself at the commencement of the call.
76. On 13 December 2014, I [redacted] received a telephone call from a private number. I answered the call and Dr Ali identified himself. I know he was at a phone box as I could hear the coins going into the phone.
77. Dr Ali mentioned something about the Ombudsman and he wanted to know if I had made any complaint against him. He spoke about his wife being up in arms and his kids crying. He said he hadn’t eaten in three days. I think he said this to make me feel bad.
78. Dr Ali told me that he would go to jail for 15 years if anyone found out about our relationship. Dr Ali also spoke about sending my daughters and me a gift. My daughters and I have not received any gifts or money from Dr Ali.
79. I know this phone conversation occurred on 13 December 2014, as I have since confirmed this by looking at the call list on my mobile phone.
80. I recorded most of this conversation by placing the call on loud speaker and then recording it on my iPad. I did not tell Dr Ali as I was recording the conversation.
81. I have since provided a copy of the recording to the Office of the Health Ombudsman.
82. On the afternoon of 15 December 2014, at approximately 5.41 pm, I received a phone call from a private number. I handed my phone to my friend [redacted] who answered the call and placed the call on loudspeaker.
83. [Redacted] answered the phone and the caller identified himself as Dr Ali. Dr Ali said he wanted to talk to me. [Redacted] again stated her name and advised Dr Ali she was speaking on my phone. Dr Ali then kept asking to speak with me before hanging up.
84. Almost immediately afterwards I received another phone call from a private number. [Redacted] again answered the call and placed the call on loudspeaker. [Redacted] identified herself and advised she was talking on my phone. The caller identified himself as Dr Ali and again started asking to speak with me. He didn’t sound happy.
85. My phone then lost reception and the call dropped out.
86. I provided images from my phone to the Office of the Health Ombudsman in respect of these calls. These images depict data relating to these telephone calls and messages.
…
87. I subsequently received a number of telephone calls from Dr Ali on 17 and 18 December 2014, which I recorded on my iPad. I was in Queensland on each occasion that I recorded these telephone conversations. I subsequently provided these recordings to the Office of the Health Ombudsman.
88. I used these recordings to refresh my memory in respect of the dates, times and contents of the telephone calls.
89. Between 17 December 2014 and 18 December 2014, I received five phone calls from a private number. I believed Dr Ali to have made these telephone calls to me. I have had previous phone conversations with him and I believe it was him on the phone during these calls.
90. On 17 December 2014, I received a call from a private number. I did not answer this call. However, I got my iPad and prepared it to record any further phone calls.
91. I received a second phone call on 17 December 2014, at 4.51pm that went for approximately two minutes and 56 seconds. This call came from a private number.
92. I identified the caller as Dr Ali based on previous phone conversations with him.
93. During this call, Dr Ali said things along the lines of:
a.He had a copy of my statement and that my medical records had been pulled from the surgery; and
b.He asked me to withdraw the statement and say nothing had happened.
94. I received a third phone call at approximately 4.54 pm on 17 December 2014, that went for approximately 12 minutes and 41 seconds. This call came from a private number.
95. I identified the caller as Dr Al Moosawi based on previous phone conversations with him. During this call, Dr Ali said things along the lines of:
a.He wanted me to say that nothing had happened so that he did not get interrogated. If I dropped the complaint he could come back to [the town];
b.He told me that he could go to jail for 10-15 years; and
c.He asked me to deny any gossip that was going around town and to delete any text messages and phone numbers of his.
96. On 18 December 2014, I received a fourth phone call at 1.00 pm that went for approximately 6.50 seconds. This call came from a private number.
97. I identified the caller as Dr Al Moosawi based on previous phone conversations with him. During this call, Dr Al Moosawi said things along the lines of:
a.He had spoken to [redacted], Director Nursing at [redacted] Hospital and wanted me to go and talk to [redacted] or the other Dr [redacted] at [the practice], whichever one I felt comfortable with but not to do it that day.
98. This phone call then cut out.
99. The phone rang again on 18 December 2014, at an unknown time. This call came from the telephone number [redacted]. The call lasted for approximately 11 minutes and 55 seconds.
100. I identified the caller as Dr Al Moosawi based on previous phone conversations with him.
101. During this call, Dr Ali said things along the lines of:
a. If I dropped the complaint that it would save his life; and
b.[Director Nursing] knows what’s happening and he asked me to help by saying nothing happened.”
Before moving to the evidence under cross-examination of the patient, it is convenient to refer to other evidence relied on by the applicant in proof of the charges:
(a)evidence of witnesses relied upon as providing some support for the patient’s account of events on 29 October 2014;
(b)evidence of voice calls and text messages between the patient’s mobile phone and the respondent’s mobile phone on the evening of 29 October 2014;
(c)evidence as to the complaint by the patient and the subsequent investigation;
(d)evidence of voice calls between the patient and the respondent in November and December 2014.
Other witnesses re 29 October 2014
The older friend of the patient[6]passed away prior to the hearing. Her evidence could not be tested by cross-examination. She gave a statement on 15 January 2015 in which she stated:
[6]Referred to at paragraphs 37 and 69 of the affidavit of the patient sworn on 29 October 2018.
“6.On 29 October 2014, when [the patient] took her daughter, [redacted], to see Dr Ali Al Moosawi at [the practice] to sign a medical certificate. I was waiting for them in the waiting room. {Redacted] came out of the consultation room whilst [the patient] remained with Dr Al Moosawi.
7.When [the patient] come out of the consultation room she looked visibly upset. When we were in the car I asked her what was wrong and she said that Dr Al Moosawi had made advances towards her. I am unable to recall exactly what she said happened but recall she mentioned that he put his hand up her dress and he kissed her.
8.On the evening of 29 October 2014, [the patient], myself and her two daughters drove to the [redacted] Service Station in [the town] at approximately 8.45pm so I could purchase some cigarettes.
9.As we were driving to the service station [the patient] asked me if I would be able to purchase a packet of condoms for her. Her daughters did not hear her ask me this.
10.[The patient] advised me that the condoms were for her meeting with Dr Ali Al Moosawi later that night.
11.I purchased cigarettes and condoms from the [redacted] Service Station in [the town]. I paid for these items by credit card.
12.After purchasing the items we returned home to [redacted].
13.[The patient] received and made telephone calls and text messages that evening; however, I do not recall how many. I did not ask [the patient] any details about the telephone calls or text messages.
14. At approximately 2130 hours [the patient] said was leaving to meet Dr Al Moosawi.
15.When [the patient] returned that night at approximately midnight she was very quiet and did not talk.
16.[The patient] was upset the following morning and I asked her what had happened but she wouldn’t divulge anything.
17. [The patient] confided in me that she had slept with Dr Al Moosawi but did not discuss the particulars of what occurred on 29 October 2014. I am unable to recall when she told me this information; however, I recall she mentioned he had gloves on and every part of his body was shaved. She said she felt repulsed, dirty and used.”
A statement from an employee of the service station made with reference to relevant CCTV footage and a receipt tends to confirm the purchase of condoms by the older friend of the patient at the service station at around 8.30pm on 29 October 2014.
Telecommunications evidence – 29 October 2014
Telstra call records for a mobile phone owned by the patient and a mobile phone owned by the respondent at material times confirm the fact, times and approximate lengths of voice calls, including missed calls, and text messages between those two phones on the evening of 29 October 2014. There is photographic evidence of the content of the text messages between the two phones that was retained on the patient’s mobile phone. These facts themselves are not in dispute. What is in dispute is whether or not the respondent operated his mobile phone at the time of the calls and text messages on 29 October 2014. The patient gave evidence that she was engaged in an exchange of calls and text messages with the respondent. The respondent denies making or receiving calls or text messages on that phone on that evening. His contention is that the patient must have purloined his mobile phone, presumably at the time of her consultation with him earlier that day, and that evening operated his mobile phone, thus concocting false evidence against him.
The evidence establishes the following activity between the patient’s mobile phone and the respondent’s mobile phone on the evening of 29 October 2014:
Time
Caller
Receiver
Length of voice call (seconds) or text message
19:16:34
Respondent
Patient
4 (missed call as confirmed by photograph of messages at 7.16 pm on 29 October 2014 stored on the patient’s phone.)
19:17:26
Respondent
Patient
7 (missed call as confirmed by photograph of messages at 7.16 pm on 29 October 2014 stored on the patient’s phone
19:17:54
Patient
Respondent
364
20:54:32
Respondent
Patient
Text message
20:55:09
Patient
Respondent
Text message
20:56:04
Respondent
Patient
Text message
20:56:48
Patient
Respondent
Text message
20:57:31
Respondent
Patient
Text message
20:58:18
Patient
Respondent
Text message
20:59:41
Respondent
Patient
Text message
21:00:07
Patient
Respondent
Text message
21:01:00
Respondent
Patient
Text message
21:01:22
Patient
Respondent
Text message
21:02:08
Respondent
Patient
Text message
21:02:38
Patient
Respondent
Text message
21:03:14
Respondent
Patient
Text message
21:03:29
Patient
Respondent
Text message
The content of the exchange of text messages between the patient’s phone and the respondent’s phone at around 9.00pm on 29 October 2014 is as follows:
Respondent
Sorry to put u in difficulties xxx
Patient
Have you changed your mind
Respondent
No bit update me the time
Patient
Do you know where the [redacted] servo is
Respondent
Yes I know
Patient
Pick me up there in half hour ill park near the phone box
Respondent
Do u think it will be safe no body will know
Patient
No one will know
Respondent
9.30 will be ok for you
Patient
Yes is it okay for you
Respondent
Done
Patient
Okay meet you soon
Respondent
Soon will be 9.30
Patient
Yes
The call records for the patient’s mobile phone also showed a call from the patient’s phone to another mobile phone number at 21:04:29 lasting 349 seconds. This phone call was the subject of cross-examination of the patient which will be referred to later.
The respondent owned a second mobile telephone as at 29 October 2014. There is no suggestion that is was not under his control on the evening of 29 October 2014. Telstra call records for that mobile phone show that on 29 October 2014 between 20:56:07 and 22:16:16 there were four calls diverted to 101 message bank. The calls could have been diverted because the phone was either switched off or unanswered.[7]
[7]As per agreement of parties with emails and supplementary submissions from parties admitted as exhibits 5 and 6 on 18 September 2019. The respondent’s evidence would suggest that they were unanswered – see paragraph [63] of these reasons.
There was evidence from the respondent and his wife and documents produced concerning a telephone call between the respondent and his wife on the evening of 29 October 2014. The evidence was somewhat inconsistent in its details but ultimately was to the effect that the respondent used his other mobile phone and an app, Viber, to talk to his wife, and possibly other family members, for a period of up to 20 minutes in the period between about 8.45pm and 9.30pm.[8] The effect of such evidence was of little consequence; the fact that the respondent may have been on such a call would not have prevented him texting on his other mobile phone. The documentary evidence suggested the call took place between 9.16pm and 9.29pm and thus could have finished before the respondent met the patient at the service station.
[8]See the discussion of the evidence at paragraphs [62] and [72] of these reasons.
Complaint and investigation
I have regard to the following evidence as to the terms of complaints by the patient:
(a)memorandum of CCC complaints officer dated 1 December 2014 recording information received from Jagquie Appleby, RFDS counsellor, on 13 November 2014, including terms of complaint by the patient to the counsellor;
(b)statutory declaration of the patient dated 28 November 2014;
(c)statement of the patient dated 16 December 2014;
(d)addendum statement of the patient dated 20 January 2015.
The evidence of OHO investigator, Luke Massey, was of importance in assessing the significance of the evidence of telephone conversations between the respondent and the patient in December 2014. Mr Massey swore an affidavit on 11 April 2019 exhibiting a file note made on 17 December 2014 recording the contents of a telephone conversation with the respondent on 12 December 2014. Mr Massey deposed to the accuracy of such file note and that, during a conversation with the respondent on 12 December 2014, he did not divulge the identity of the patient the subject of the OHO investigation. That contention was disputed by the respondent.
In the file note, Mr Massey states:
“I telephoned Dr Moosawi and introduced myself. I explained the office had recently received a complaint about his conduct and had commenced an investigation. I advised that at this early stage of the investigation I was not at liberty to divulge the specifics of the complaint. However, I advised the complaint alleged he had engaged in a sexual relationship with a patient.
…
Dr Moosawi asked if the complaint had been made by a patient. I reiterated I was not in a position at this stage to provide full details of the allegations but that when we met with him we would provide him with the details and he would be given the opportunity to respond.”
I note the subsequent correspondence between the OHO and Avant Law on behalf of the respondent and, in particular, the terms of the letter dated 16 December 2014 from the OHO to the respondent via email to Avant Law. In that letter, the patient is named and the health service complaint is said to raise concerns including the respondent engaging in sexual misconduct with the patient on 29 October 2014 and his conduct towards the patient since that date.
Mr Massey was cross-examined in a challenge by the respondent to Mr Massey’s evidence that he had not disclosed the name of the patient to the respondent on 12 December 2014. In summary, it was suggested to Mr Massey that:
(a)given the respondent was contacting the OHO to inquire about an investigation, he had obviously been alerted to the fact of the investigation;
(b)he had quite likely become aware of the investigation because of the OHO earlier issuing notices seeking information, including a notice to the practice by email on 9 December 2014 seeking documents relevant to the patient and her daughter (Mr Massey said he could not recall whether he had a belief the respondent would have already received information naming the patient the subject of the investigation);
(c)given that knowledge, he would not have been concerned with keeping the identity of the patient confidential on 12 December 2014;
(d)having alerted the respondent to the nature of the investigation there was no logical reason for withholding the name of the patient revealing the name of the patient; any concerns about prejudice to the investigation would not be exacerbated by releasing that additional information;
(e)he intended to reveal that information in any event when he spoke to the respondent in a weeks’ time; there was no reason to withhold it until then;
(f)there was no material change in circumstances between 12 and 16 December 2014 when the patient’s name was revealed in correspondence;
(g)the accuracy of the file note and the recollection of Mr Massey was impaired by the five day delay between conversation and file note;
(h)he had named the patient during his conversation with the respondent on 12 December 2014.
Mr Massey adhered to his evidence that he had not named the patient during his conversation with the respondent on 12 December 2014, stating that he considered he was withholding such information in accordance with the direction of the Executive Director with whom he had spoken prior to speaking to the respondent. Mr Massey’s evidence suggested a belief on his part that it was a matter for someone superior to him to make a decision under the HO Act as to notifying or withholding the details of a complaint and that belief constrained him. In that regard, I note the contents of the letter from the OHO to the respondent dated 16 December 2014 in which the Executive Director, Investigations provides “Notice of investigation (in accordance with section 82 of the (HO) Act”.
I note the video and photographic evidence of the interior of the unit at the rear of the practice.
I note the contents of the practice’s records for the respondent and her daughter.
Telecommunications evidence – post-29 October 2014
Call records showed and the respondent agreed that he used his mobile phone to call the patient on 11 November 2014.
Of significance were the recordings of telephone conversations between the respondent and the patient in December 2014. The patient gave evidence that she recorded those calls by putting her mobile phone on loud speaker and using her iPad to record the audio of the call.[9] Helpful transcripts of those calls were admitted into evidence. They have been of assistance but the evidence is what I heard when the recordings were played. I have listened to them carefully. I have considered the whole of the contents of those conversations, and do not ignore that context when extracting the following portions of conversations as particularly significant.
[9]Some of the recordings thus produced contain video as well as audio but the video is of no consequence.
The respondent phoned the patient on 13 December 2014. The respondent told the patient that a complaint had been made to the Ombudsman relating to a serious allegation by a lady in the town. The respondent asked the patient if she had lodged any complaint against him and she denied doing so. The following exchange occurred:
“Respondent: So I trust you, you know, if it is lodged from the hospital, you know, or somebody say that, you know, you have the answer, am I right? You have good answer. I’m very sure you are very honest, you know.
Patient:Yeah yeah. Well what’s…
Respondent: I’m feeling down you know, they stop me coming, you know, it’s true. It’s stop for me to come to [the town].
Patient: Yeah.
Respondent: But just in case, you know, but I’m very sure you are not the kind of person who is doing that, you know, I’m very sure 100 per cent, you know. I just want to make sure from that, that it’s not been you, you know, that’s all.
Patient:Well, what’s the complaint?
Respondent: Well I don’t know. They didn’t tell me. They going to interrogate and they said, you know, there is alleged allegation or something like that, you know?
Patient:Yeah.
Respondent: Yeah and I said if in [the town], they specified in [the town]. So I haven’t had anything to eat, food, you know, for 3 days you know, believe me, you know.
Patient:God.
Respondent: Yeah so I just want to know that if any question come to you or anything like that, you know, you know.
Patient:No I don’t know anything.
Respondent: Ah, thank you very much for that, you know.
Patient:Well, they’re not going to come to me are they?
Respondent: Huh?
Patient:They’re not going to come and ask me anything are they?
Respondent: Well if they ask you, you have the answer, you know, and I am, you know, I am in denial, you know, because, you know, I know you, you know, I see who you are, you know, I never change my mind about you, you know, regardless of whatever, you know. You are honest, you are in your work, you know.”
In response to another query from the patient as to the nature of the complaint, the respondent stated:
“I don’t know. They say sexual harassment or something like that. I said well look, my hand is very clean, you know, you know I mean I treat overseas professionally and all this stuff, you know, but if the hospital – if the hospital, they lodge this kind of things, you know, just in case you know… you have very good answer, you know – denial and that’s it, you know?”
The conversation continued:
“Patient: Ok, so what, just tell them…
Respondent: Otherwise you know, I will be in prison for 15 years and you know, I lose my job, not come to [the town] and all this stuff, you know.
Patient:Holy shit.
Respondent: Yeah, yeah. But definitely not, I’m very sure you are not.
Patient:Definitely, no I don’t know anything about it. Absolutely nothing.
Respondent: Absolutely, no?
Patient:Absolutely.
Respondent: I thank you very much for that. Well, I relieve now so I can go and have something to eat.”
Later during the conversation of 13 December 2014:
“Respondent: But I just want to make sure that you are not the one.
Patient: No no no it’s not me.
Respondent: Sure, [redacted]?
Patient: Absolutely.
Respondent: Thank you very much for that, thank you.
Patient: Absolutely, God don’t you tell them that this …
Respondent: Million times, million times my friend. Million times, you know.
Patient:You’re not going to tell them that we slept together are ya?
(The respondent can then be heard to laugh)
Patient:Fuck.
Respondent: Thank you very much for that, [redacted].
Patient:What – do they think that something untoward’s gone on or?
Respondent: Well look, I mean if they ask, it’s easy to say that, you know, for us you know, it’s somebody whose lodged a complaint you know, somebody you know, somebody which I haven’t had deal with …
Patient:Yeah, yeah.
Respondent: …you know, I have my answer but it’s come to you, you know, you know just in case, you know, somebody might see something or anything and you know.
Patient:Well what do you want me to say so it matches what you say, so I know what to say?
Respondent: You just say that Dr Ali is very professional and I haven’t seen him and I haven’t, you know, the only thing is my daughter, you know, my report and that’s all.
Patient:Okay.
Respondent: You know, full stop. You know. He used to treat me professionally and he tried to help my daughter, that’s it.
Patient:Okay, yeah.
Respondent: You know, other issues, you know, is with me, you know, he’s a doctor, he sees me like any other patient.
Patient:Yeah.
Respondent: That’s all, you know, and I have nothing to do with him. I haven’t, you know, done this and that, you know.”
Further in the same conversation the respondent stated, in response to the patient’s question whether he was to be spoken to by investigators:
“Yeah they come to see me but I will let you know if they mention your name, you know.”
Later in the same conversation the respondent said, “But just keep it between you and me, you know, this, you know.”
The following exchanges occurred:
“Patient: Yeah, yeah, yep. Did you enjoy that night though?
Respondent: Say hello to the kids, you know, say hello to the kids and I – just keep it between us, you know.
Patient:I definitely, most definitely.
Respondent: Thank you very much for that, appreciate it, very much appreciate it.
Patient:Yeah. Did you enjoy that night though?
Respondent: [Laughing] Sorry I am scary, I’m just [indistinct] you know, you know, I’m scary so, yeah. I mean if anything happened, you know, they will stop me to come to [the town] but I don’t want that, you know.
Patient:Yeah.
Respondent: But I’m still – if they mention your name, just in case, I give my word, I say nothing. Everything is professional. You know, I’m done - nothing. Denial, you know?
…
Respondent: Yeah, yeah so I just need your help, you know that.
Patient:Yeah, yeah, you’ve got that, 100 per cent.
Respondent: Thank you very much.”
Towards the end of the conversation on 13 December 2014 the following exchanges occurred:
“Respondent: But you know, I treat you very nice – and full respects – you know.
Patient:Yeah, I mean sleeping with me.
Respondent: [Indistinct] problem, you are serious, you are honest, you are, you know, explain this and that, in the good way, you
…
Patient:I mean our sleeping together really nothing to do with anyone but they’re certainly not going to hear it from me.
Respondent: Yeah, nah nah nah.
Patient:That’s for sure.
Respondent: All right, Okay.
Patient:Jesus. All right.
Respondent: Thank you very much. You give me good review now.”
The respondent phoned the patient on 17 December 2014. The following exchanges occurred during the course of that conversation:
“Respondent: Okay it’s come in your name again.
Patient: What?
Respondent: There is a complaint come from you again at me.
Patient: From me?
Respondent: Yes.
Patient: What do you mean from me?
Respondent: From you, you know they said that you go – you went to the hospital and you talked to somebody in department of health.
…
Respondent: Alright, okay [redacted] I just need your help – what are you going to say if they interrogate you?
Patient:Well I don’t know anything – absolutely nothing …
…
Patient:What do you want me to say? So that we get this – is it honestly in my name?
Respondent: This is [patient’s name]. You know she has sexual misconduct with her and she’s thinking that you are not a professional and all this stuff.
…
Patient:Fuck. Can you – can you read it to me?
Respondent: Yes, yes. I will read it for you, you know.
Patient:Is that okay?
Respondent: Huh?
Patient:Is that okay for you to do that?
Respondent: Yeah I will read it but, you are honest you know.
…
Respondent: Do you know what they did? They took all your files to the Ombudsman interrogation.
Patient:Well, who’s done that?
Respondent: Without your permission, you know. I don’t know how’s that, you know they say…
Patient:Who’s taken it?
Respondent: The Ombudsman, the interrogation health department.
Patient:Can they do that?
Respondent: Yes but they do that but if you – if you interrogate – they interrogate you and you said you are not allowed to do that and nothing happened, they will drop the proceedings, they will drop everything.”
The respondent immediately continued on. That portion of the conversation which occurs at the very end and very beginning of two different electronic files is difficult to discern but the respondent appears to be quoting from the following paragraph of the letter to the respondent from the OHO dated 16 December 2014:
“At this time, the investigation will consider whether your conduct of engaging in sexual conduct with your patient, [redacted] is inconsistent with you being a fit and proper person to hold registration in the profession.”
As the conversation continues, the respondent continues to encourage the patient to say that nothing untoward occurred between him and the patient. He refers to the possible damage to her reputation in a small town. He attempts to engender sympathy by referring to his loss of weight, his crying children and that he will go to jail for 10 to 15 years. The respondent states:
“Believe me, believe me. So I just need your help, my friend, you know? I just need you to be honest, very honest, when they interrogate you, you say nothing like that, Dr Ali, full stop, they will drop everything, and everything will be okay. That’s it.
… but don’t tell them that I told you.
… All right, so all my life in your hand, that’s it. You know, and I need your help, you know. Whatever they interrogate you, denial. You know? Except the consultation.”
The respondent tells the patient that he needs the patient “to delete any message or any number of me, you know?” The following exchange is significant:
“Respondent: But the best thing to do, nothing happened. That’s it, full stop OK? Dr Ali is a professional. I have nothing to do with him.
Patient:Like there – there was no-one there that night when we went into the unit, was there?
Respondent: Exactly, exactly, exactly, but I just need to you to be, you know, very very careful when you say it.”
As is the following:
“Patient:My God. If they find out we slept together, you lose everything.
Respondent: Yes, so but I just need your …
PatientSo you – you’re definitely going to tell them that we never slept together, nothing happened?
Respondent: Absolutely.
Patient: Right.
Respondent: I will do that, absolutely. No doubt.
Patient: Yeah, yeah.
Respondent: Yeah but this is dependent on you, because they depend on you. If you say no, that’s it, you know. I will say no, they drop it. They say ah this is just false by the person in the hospital, you know.”
The respondent telephoned the patient on 18 December 2014. He suggested persons that the patient could speak to in an endeavour to cease the investigation by the Health Ombudsman. When speaking about the information apparently available to the investigators, he states:
“They say [patient’s name], this this this and the guy who called the hospital, you know, who called the hospital, he knows every detail – everywhere, you know. Everywhere. Everything, you know. So I don’t know.”
The respondent tells the patient not to tell the person that the respondent had called her and talked to her. The following exchange occurs:
“Respondent: You’ll save my life, you know. I am very sure it didn’t come from you, I’m very sure – that it came in your name, you know, from somebody, you know. With a lot of details, a lot of details, you know.
Patient:Like, what you do mean details?
Respondent: You know they said, you know, he came and picked me up from the – from the station – from the station, la la la. He’s not happy with his wife, he did this and that for me and all this.
Patient:Oh my God. Was there anyone at the unit that night, around the … ?
Respondent: No, no, no, no.”
Cross-examination of the patient
Cross-examination of the patient demonstrated inconsistencies and weaknesses in her evidence adverse to her credibility and reliability:
(a)Contrary to paragraphs 6, 10 and 11 of her affidavit sworn 29 October 2018, where the patient deposed as to the respondent performing a rectal examination and viewing photographs of dildos during a consultation soon after the patient separating from her abusive partner around Easter 2014:
(i) the patient conceded the accuracy of matters recorded in progress notes from a consultation on 26 April 2014 (Easter Sunday was 20 April 2014) and such notes did not record any complaint re rectal bleeding;
(ii) the patient could only recall one occasion she complained of rectal bleeding;
(iii) progress notes from a consultation on 1 May 2014 recorded a complaint of minor rectal bleeding, the patient refusing the offer of a rectal examination with a chaperone and declining a referral for that purpose to a female doctor at another town’s hospital; the patient admitted to a recollection of the offer of referral;
(iv) despite referring to her first consultation with the respondent and showing photographs of dildos in her statement dated 16 December 2014, the patient made no mention of a rectal examination in that statement.
(b)Contrary to paragraph 14 of her affidavit sworn 29 October 2018, the patient attended consultations with the respondent on 1 and 15 May 2014;
(c)Examination of the circumstances of the patient’s consultation with the respondent with her older friend in October 2014 (progress notes placing it on 22 October 2014) suggested there was nothing particularly “weird” about her older friend remaining outside during the consultation (in contrast to paragraph 16 of the patient’s affidavit sworn 29 October 2018);
(d)Contrary to paragraph 17 of the patient’s affidavit sworn 29 October 2018, the progress notes suggested that the only consultation with the respondent relating to a medical certificate for her daughter was on 29 October 2014 and not before that date;
(e)The patient’s evidence of telephone communications between herself and the respondent on 29 October 2014 was inconsistent between statements and was inconsistent with the call records:
(i) The call records show only one voice call between the two phones but the patient gives details of two calls in her statement dated 16 December 2014 and her affidavit sworn on 29 October 2018;
(ii) In her statutory declaration dated 28 November 2014, statement dated 19 December 2014 and affidavit sworn on 29 October 2018 the patient describes answering voice calls made from the respondent’s phone but the call records show the only voice call was made from the patient’s phone to the respondent’s phone (at 19:17:54).
(f)The patient made no mention of the respondent putting her hand on his crotch in her statutory declaration dated 28 November 2014.
The patient was further cross-examined as to:
(a)her evidence that on 29 October 2014 the respondent examined injuries on her breast from an accident the day before in light of evidence of an excisional biopsy of her breast weeks before;
(b)the extent of the bruising to her leg she said the respondent examined on 29 October 2014;
(c)whether in fact the 29 October 2014 consultation was primarily about the patient’s daughter’s psychological issues as recorded in the progress notes, rather than any alleged injuries from the previous day;
(d)her allegation that the respondent suggested meeting her at another regional town, one and a half hour’s drive away, as to which evening that was to occur, and the absence of any evidence from her as to her response to such suggestion;
(e)her inability to explain a phone call to her ex-partner immediately after the text exchange between the respondent’s phone and the patient’s phone on the evening of 29 October 2014; and
(f)her description of the interior of the unit, in particular the location of the fridge, the length of the hallway and the colour of a doona, as compared to photographic evidence of such things.
Evidence of the respondent
The respondent gave evidence by an affidavit sworn on 21 March 2019 and oral testimony on 4 September 2019.
It is not necessary, at this stage of proceedings, to refer to his evidence, and the other evidence before the Tribunal, detailing his personal history and professional qualifications and experience.
In his affidavit, the respondent deposed to suffering erectile dysfunction from late 2012 with complete impotence within six months from the time of onset. In 2013 he spoke to his GP, Dr Baha Ali, and obtained samples of Viagra on about three occasions during 2013 and the first half of 2014. The medication did not enable him to achieve an erection. Counselling in September 2013 did not assist. He was unable to engage in sexual intercourse with his wife due to erectile dysfunction throughout 2014. On 6 August 2014 he obtained, by prescription by Dr Baha Ali, 12 100mg tablets of Vasafil. The respondent states:
“Although I had not had any success with the samples of Viagra I requested the prescription to satisfy my wife who was keen that I persist in exploring active treatment for the condition.
…
Unfortunately the vasafil was ineffective and I remained unable to achieve an erection.”
The respondent goes on to depose as to subsequent treatment for erectile dysfunction from January 2015 including consultations with Dr Andrew Troy, urologist.
The respondent deposed as follows as to the events of 29 October 2014 and following:
“26. I consulted with [the patient] and her daughter on 29 October 2014 and the notes from that consultation are contained in the medical record of [the patient]. The primary purpose of the consultation was [the patient]’s request that I complete a form about her daughter’s anxiety and school avoidance issues and her need to therefore participate in distance education. [The patient] asked her daughter to wait in the waiting room so that we could discuss her daughter’s anxiety without having to do so in front of her. I did not ask [the patient]’s daughter to leave the consultation room.
27. After [the patient]’s daughter left the consultation room we discussed issues concerning her daughter. Towards the end of the consultation as a side issue [the patient] showed me a bruise on her lower leg which she reported she had suffered recently in an accident involving a seeding machine a week or so earlier.
28. I noted that [the patient] had walked into the treatment room without limping or any other difficulties and so I formed the view that it was a soft tissue injury which was over one week old and was resolving. I did not examine the bruise further as I did not feel there was a need to do so.
29. [The patient] offered to show me an old wound on her chest from a biopsy which had been performed by another doctor at the practice a number of weeks earlier. It was on an exposed part of her chest and visible without [the patient] having to remove or adjust her clothing. I noted that the scar appeared to be healing well and there were no obvious signs of complications so I declined to examine it further as I did not feel there was a need to do so.
30. At no point during that consultation did [the patient] discuss a bruise on [the patient]’s thigh. I did not examine [the patient]’s leg or breast, nor did I touch them. I did not otherwise examine or touch [the patient] during my consultation with her that day.
31. At the end of the consultation day, as I was leaving to go back to the unit at which I stayed, I was packing up my personal belongings and noted that I could not find my Telstra mobile phone (telephone number [redacted]) which I kept on the desk in the consultation room.
32. I recall looking for my mobile phone and asking the receptionist whether she had seen it. She had not. After spending a few minutes looking for my extra phone, I could not find it so I left the practice for the day and closed the door to the clinic.
33. At that time, I kept more than one phone as it was not uncommon for me to have to drive between [the town] and [another regional town] or to rely on my mobile for long periods of time when I travelled back to Melbourne. To ensure that I would not run out of battery and be left without a phone, I kept more than one mobile phone.
34. When I went home that evening, I went about my usual business. Using my other mobile phone, I telephoned my wife as I did many evenings. I also spoke with my children as I cooked dinner, cleaned the kitchen and packed my bags in preparation to depart [the town] the next day.
35. I did not leave my unit that evening. I did not call, text or otherwise contact [the patient]. I did not in any way engage in sexual activity with [the patient] that evening or on any other occasion.
36. The next morning I recall going to my car before work and found my extra mobile phone sitting on the bonnet of the car covered with leaves and a small branch which appeared to have been snapped off a tree. At that time, I thought it was unusual. However I could not explain how it had gotten there, but was happy to have found the phone so I went about my day.
37. I do not know how my mobile phone got from my desk in the consultation room to the bonnet of the car, however I did not place it there, nor did I use that mobile phone during the period it was missing.
38. Sometime later, I contacted [the patient] on the mobile number which she had given the Medical Centre, to discuss the report which she had requested that I complete in respect of her daughter. I do not now recall the specific date of that telephone call.
39. On or about 12 December 2014 I had a telephone conversation with someone from the Office of the Health Ombudsman (OHA). I was asked if I knew [the patient] and I noted that she was a patient of the practice where I had worked [the town].
40. During that call I was then advised that the OHO had received a complaint about me alleging I had a sexual relationship with the patient. Subsequently, I received correspondence from the OHO confirming the allegations. I was surprised and very upset to have those allegations made against me and my life turned upside down.
41. I telephoned [the patient] approximately three times in the following week or two. The purpose of the calls was to discuss the allegations which had been made and to encourage her to tell the truth. To be the subject of such allegations was distressing and embarrassing so I encouraged [the patient] to keep the matter, being the existence of allegations, confidential.”
The respondent testified that English was not his first language. When composing text messages, he never used abbreviations such as “u” instead of “you”.
The respondent gave evidence that on 29 October 2014 he had a CPAP machine on the bedside table next to his bed in the unit. He took his own linen to use in the unit including a beige doona cover.
The respondent gave evidence that he was taking Prednisolone for rheumatoid arthritis in October 2014.
The respondent gave evidence that he had four children.[10]
[10]Contrary to the patient’s evidence that he referred to having three children.
The respondent gave evidence that on the evening of 29 October 2014 he used his other mobile telephone and an app, Viber, to call his wife. When cross-examined the respondent gave evidence that he had called his wife at about 8.45 pm with the call lasting 12 or 13 minutes and finishing at around 9.00 pm. Screenshots from a mobile phone were tendered including a page said to show a call from the respondent to his wife commencing 9.16pm on 29 October 2014 and lasting about 12 and a half minutes.
The respondent gave evidence of calls to his other mobile phone that went unanswered on the evening of 29 October 2014 whilst he was cooking and cleaning dishes.
The respondent gave evidence that there was an occasion prior to October 2014 when the patient made a complaint of rectal bleeding. He did not perform any physical examination of her rectum or backside at all. He offered to do so with a chaperone or to arrange examination by another doctor. At the end of that consultation the patient started to show him photographs of sex toys on her mobile phone.
The respondent gave evidence that he did not shave off his body hair in October 2014.
The respondent agreed that he used his mobile phone to telephone the patient on 11 November 2014 concerning the medical report for the patient’s daughter.
Under cross-examination, the respondent testified that he only used the Vasafil prescribed by Dr Ali in August 2014 on one occasion:
“I use it once. It didn’t work. I left it, and I think my wife, she just chucked in the rubbish bin. She said, ‘I don’t want the kids to see it, just in case.’”
The respondent gave evidence that after he had retrieved his mobile phone from the bonnet of his motor vehicle on 30 October 2014, he did not investigate to see if it had been used to make voice or text calls.
The respondent was cross-examined at length about the terms of his conversations with the patient in December 2014 and I have carefully considered that evidence.
Evidence of the respondent’s wife
The respondent’s wife swore an affidavit on 22 March 2019 and gave oral testimony on 6 September 2019.
In her affidavit, the respondent’s wife deposed that the respondent started to experience erectile dysfunction in 2013 which made it difficult to achieve penetration during sexual intercourse. By the second half of 2013, he was unable to achieve any erection at all. This inability continued despite occasions when he tried Viagra. Counselling in September 2013 did not assist the respondent. Subsequently, the respondent continued to try taking Viagra from time to time with no success.
The respondent’s wife deposed that on the evening of 29 October 2014 the respondent was on the telephone to herself and their children from shortly after 9.00pm for 20 or so minutes.
Under cross-examination, the respondent’s wife testified that the respondent did use Viagra tablets unsuccessfully during the period from August to December 2014. She could not say whether he used Viagra tablets in 2015, but he did use Viagra in 2016 on a couple of occasions without success.
The respondent’s wife testified that she recalled the respondent having Viagra tablets in August 2014 and that she threw a box containing tablets in the rubbish at that time.
The respondent’s wife gave evidence that the respondent did not shave his body hair.
Medical evidence regarding erectile dysfunction
Dr Baha Ali deposed that he has been the respondent’s treating general practitioner since 2012. He deposed that, sometime in 2013 or 2014, the respondent disclosed to him that he suffered from erectile dysfunction and had done so for some time. The respondent requested that Dr Ali provide him with a sample of Viagra. Samples of Viagra provided by pharmaceutical companies to general practitioners for patients to trial contained one 50 milligram or 100 milligram tablet. Dr Ali provide the respondent with a sample of Viagra on about three or four occasions. He prescribed Viagra for the respondent on 6 August 2014, and on 14 April 2016. He went on to depose as to subsequent consultations with the respondent regarding his continuing his ongoing erectile dysfunction.
Prescription records exhibited to Dr Ali’s affidavit also record a prescription of Viagra tablets on 22 September 2015. They also confirm the respondent’s use of Prednisolone during the second half of 2014.
The respondent’s treating urologist, Dr Andrew Troy, swore affidavits on 29 January 2019 and 3 September 2019 and provided oral testimony on 4 September 2019. He first consulted with the respondent on 14 January 2015. The respondent reported having problems achieving an erection for two years prior to the consultation, having unsuccessfully tried taking oral medications and Caverject injections to assist in achieving an erection. Dr Troy recommended further evaluation with a Penile Duplex Ultrasound as well as other investigations relating to the respondent’s bladder issues.
At a consultation on 13 October 2016, the respondent reported that his erectile dysfunction was ongoing and remained non-responsive to oral agents.
At a third consultation on 17 September 2018, the respondent reported unfortunate side effects after an administration of Caverject. Dr Troy deposed:
“I examined his penis and the findings were consistent with Peyronie’s Disease. Prior to the consultation, he had undergone a Penile Doppler ultrasound, without Caverject injection, which confirmed the presence of several Peyronie’s plaques with the largest on the left side. … The ultrasound report indicated that no Doppler signal was obtained in either cavernosal artery.”
Dr Troy deposed as to his opinion that the respondent has advanced impotence which does not respond to medical management and as follows:
“In my opinion, it is likely that Dr Al Moosawi did suffer from erectile dysfunction of some degree in 2013 and 2014.”
In his affidavit sworn on 3 September 2019, Dr Troy deposed as follows:
“1. I have read the opinion of Dr Nigel Dunglinson attached to his affidavit dated 23 April 2019 and in general terms I agree with that opinion. I have read the affidavit of [the patient] dated 29 October 2018.
2. I agree with Dr Dunglinson’s response to Question 7 of his report. Psychological distress and anxiety along with the medicinal treatment for Dr Al Moosawi’s rheumatoid arthritis were likely to be contributing factors in Dr Al Moosawi’s presentation.
3. If the clinical history provided to me by Dr Al Moosawi at the time of my initial consultation with him is accepted to be correct, then I accept that it is possible that he may have been able to achieve an erection on occasion.
4. However I consider it would be unlikely for a man of his age with no sexual dysfunction to achieve an erection, ejaculate and then achieve another erection sufficiently capable of effecting penetrative sex, within the time period described in paragraphs 39 to 68 of [the patient]’s affidavit. It would be even less likely in a situation where factors such as stress/anxiety and medication including prednisolone may be negatively impacting on erectile function.
5. While the use of an oral agent such as Viagra taken at least 30 minutes prior to the first occasion of sex would likely assist in achieving an initial erection, any further oral agents taken after the initial ejaculation would not be of any additional assistance in achieving another erection.
6. Further, the use of a condom during penetrative sex would reduce stimulation which would further negatively impact the ability to maintain an erection.”
Dr Troy testified that the time interval between an ejaculation and the ability to have a second erection would vary from person to person but increase as a person got older and in a patient who was suffering from erectile difficulties. Viagra would improve the ability to have an erection and would probably decrease to some degree the lag time between an ejaculation and the next erection. Dr Troy conceded the possibility that the respondent could achieve an erection in October 2014. He conceded the possibility of obtaining a second erection after ejaculation but that doing so in anything less than 30 minutes would be improbable. That would be with the aid of an oral agent. Without the aid of an oral agent the interval would be longer.
The applicant obtained a report from Dr Nigel Dunglinson, urological surgeon, dated 5 April 2019 and called Dr Dunglinson to give evidence on 4 September 2019. The contents of his report included the following (footnotes added):
“4. Do you agree with Dr Troy’s opinion that the practitioner did suffer from erectile dysfunction of some degree in 2013 and 2014?
It is possible that the patient did suffer from erectile dysfunction to some degree in 2013 and 2014 as he had sought the advice of his general practitioner and being empirically PPDE5 inhibitors[11]. It was unclear as to the cause for this erectile dysfunction and is likely to be multi-factorial with at [sic] contribution by psychological distress and perhaps Prednisone taken for his rheumatoid arthritis influencing his testosterone levels.
[11]The witness explained that these included Viagra.
5. What is Peyronie’s disease?
Peyronie’s disease was described in 1743; it is a relatively common connective tissue disorder involving the growth of fibrous plaque within the tunica albuginea of the corporal bodies leading to pain, abnormal curvature +/-indentation, loss of girth, shortening and erectile dysfunction.
6. Whether it can be said with certainty that the practitioner Dr Al Moosawi, suffered from Peyronie’s Disease in October 2014?
Dr Al Moosawi’s Peyronie’s disease was first identified by Dr Al Moosawi after an intracavernosal injection of Caverject in and around September 2018. At around that time, Dr Troy’s report notes that the examination findings were consistent with the duplex ultrasound findings of Peyronie’s disease. I note that Dr Al Moosawi had been reviewed by Dr Troy on 14th January 2015 and on 13th October 2016 but it is not noted in Dr Troy’s report whether the corporal bodies were examined for the presence of Peyronie’s plaques at that time.[12]
[12]Dr Troy testified that he had not made any physical examinations during those consultations.
I note that in the reports of both Dr Troy and his general practitioner Dr Ali, that whilst he reported erectile dysfunction he did not report the accompanying features typically reported by patients with Peyronie’s disease which would include penile pain, penile chordee (curvature), penile shortening; I think it is unlikely that Dr Al Moosawi was suffering from a significant Peyronie’s disease in October 2014.
7. Assuming that the practitioner was not suffering from Peyronie’s disease in October 2014 and bearing in mind the practitioner’s then age and health:
(i)What other factors might have contributed to his alleged erectile dysfunction at the time?
Factors contributing at the time would include psychological distress and perhaps Prednisolone taken for management of his rheumatoid arthritis.
(ii)In those circumstance, would it be possible for the practitioner to achieve an erection at that time (Both with and without medical treatment)? Could you kindly expound upon the reasons for your opinion?
Dr Al Moosawi self-reports having had erectile dysfunction for up to 2 years prior to October 2014 and had sought and been provided with medicinal treatment sometime in 2013 or 2014 from his general practitioner. I note that he was provided with samples and prescriptions for Viagra but the record of erectile dysfunction was not made in his notes at his request. It would be possible for Dr Al Moosawi to both report erectile dysfunction but also to achieve an erection both with and without medicinal treatment. Erectile dysfunction can be a progressive disorder but can also be a disorder that fluctuates in its intensity. Dr Al Moosawi had reported considerable psychological distress and this was considered to be contributing to his erectile dysfunction, perhaps the medicinal treatment for his rheumatoid arthritis was contributing to the pathogenesis of his presentation. The condition, erectile function will fluctuate and at times where there is less psychological distress and perhaps more desire then erectile function is likely to be better. Dr Al Moosawi’s erectile dysfunction is at least in part contributed to by correctable features, I expect at times his erectile function would have been acceptable and other times have been unfavourable.”
During his testimony, Dr Dunglinson gave evidence that Viagra would provide benefit in erectile function for a period of about four hours and as follows:
“You won’t maintain an erection for that period of time but, certainly, the turgor would be supplemented during that time and so, whilst I agree it’s a challenge for a 54 year old man with erectile dysfunction to achieve an erection and ejaculate twice, I don’t think it’s impossible, and I think the medication might have supplemented that ability.
…
Certainly, the Viagra, once you take the medication, it enables the increase in the blood flow within the corporal bodies. That blood flow in the situation with Viagra is improved for about four hours and it’s during that period of time that you can have intercourse and, certainly, people report that, you know, having had intercourse, they do maintain some sort of increased turgor or semi-rigidity of the penis without any additional stimulation, for a period following the taking of that medication.”
Under cross-examination, Dr Dunglinson agreed that if a condom was put on a penis that was only semi-erect one would expect it to have a retarding effect upon the erection. The fact that it was possible to put a condom on a penis would suggest that the penis had “quite considerable rigidity”. Dr Dunglinson agreed with the opinion of Dr Troy as to a recumbency period of about 30 minutes between an ejaculation and achieving a second erection. He agreed that such potential was in the context of the use of Viagra and that it was also possible that a second erection could not be obtained, despite the use of Viagra. Which possibility was right would depend very much on individual circumstances including psychological state.
Applicant’s submissions
The applicant submitted that the evidence of the patient as to the events of 29 October 2014 was supported by the evidence of the statement of her deceased older friend and the evidence confirming the older friend’s purchase of condoms at the service station. The applicant submitted that the patient’s account was also supported by the call records evidence of a voice call and text messages between the patient’s mobile phone and the respondent’s mobile phone on the evening of 29 October 2014 and that the respondent’s explanation for such evidence is inherently implausible. The expert evidence does not exclude the possibility that the respondent was able to achieve an erection on 29 October 2014.
The applicant submits that the contents of the telephone calls between the patient and the respondent in December 2014 should be regarded as admissions by conduct. The respondent’s responses to suggestions from the patient as to their previous sexual relations should be regarded as admissions of those matters. The respondent contacting the patient and attempting to persuade her to act in a way that would frustrate an investigation should be regarded as evidencing a consciousness of guilt on the part of the respondent.
The applicant submitted that, notwithstanding those criticisms made of the patient’s credibility, the Tribunal would be satisfied on all the evidence to the requisite standard that the respondent engaged in the conduct charged and that charges 1 and 2 are both made out.
The applicant submitted that such conduct was contrary to the relevant codes of conduct and such as to meet all three limbs of the definition of professional misconduct in s 5 of the National Law.
Respondent’s submissions
The respondent referred to and relied upon those matters adverse to the patient’s credibility and reliability referred to in paragraphs [51] and [52] of these reasons.
Further on the issue of the inconsistency of the evidence of the patient as to a voice call or calls between the patient and the respondent on the evening of 29 October 2014 (referred to in paragraph [51](e) of these reasons), it was submitted that such inconsistencies cannot be explicable by reason of innocent mistake on the part of the patient. The only conclusion that could be reached is that the patient was not telling the truth when she gave her accounts, but was making it up.
The circumstance of the patient’s call to her ex-partner immediately after the conclusion of the text message exchange between the two phones and the patient’s inability to recall or explain such call was so inexplicable and inconsistent with the patient’s version of events as to suggest that her version of events was not a true one.
The patient’s description of the interior of the unit was not compelling. The doona cover she described was not proven to have existed. The hallway could hardly be described as a long one. Her description of the position of the fridge was ambiguous. Other features were commonplace. She did not recall seeing the respondent’s CPAP machine.
The patient’s claim in paragraph 69 of her affidavit to have told her older friend on her return home on the night of 29 October 2014 what had happened was contradicted by the contents of the statement of the deceased older friend.
The respondent suffered from a condition of erectile dysfunction which meant that it was more than unlikely that the events described by the patient occurred. Whilst the expert evidence could not exclude the possibility of being able to obtain an erection there were circumstances meaning that it was very unlikely that the respondent could have achieved an erection. The respondent would likely be deterred from the potential embarrassment of being unable to perform from even inviting the patient to his unit. The stress associated with the alleged circumstances of the liaison would reduce the likelihood of the respondent being able to achieve an erection. It was most unlikely that the respondent would be able to achieve a second erection in the timeframe permitted by the version given by the patient. Whilst it was not known with precision on the patient’s version the time interval allegedly involved, it was likely to be very short with the possibility that it was only 5 to 10 minutes not being rejected by the patient and being consistent with her narrative. A recumbency period of half an hour was the best that the circumstances more likely would have required for a man of the respondent’s age even without erectile dysfunction. With it, even with Viagra, it still seems highly unlikely. The application of a condom on a semi-erect penis, as described by the patient, would have a negative effect and retard development of an erection.
As to the content of the telephone calls between the patient and the respondent in December 2014, it was submitted that there was a preliminary issue which was how the respondent knew that the patient was the subject of a complaint. The respondent said it was because Mr Massey told him. Mr Massey’s evidence that he had not told the respondent the name of the patient should not be accepted because of those matters referred to in paragraph [30] of these reasons. The Tribunal would be satisfied that Mr Massey did tell the respondent that the complaint was not only one of a sexual relationship with a patient but who the patient was.
The fact then of the respondent’s contact with the patient, whilst ill-advised, was explicable by reference to an attempt to encourage the patient to tell the truth that no such event had occurred. It was not evidence of consciousness of guilt on the part of the respondent.
When considering the content of the conversations, it was important to bear in mind a number of matters:
(a)English is not the respondent’s first language;
(b)Whilst the audio recordings provide evidence as to what the patient was able to hear at her end of the phone call, they did not demonstrate what the respondent was in fact able to hear and discern at his end of the phone call and the Tribunal would accept the respondent’s evidence as to his difficulty in discerning what was said to him by the patient;
(c)The respondent was taking a conciliatory approach and avoiding conflict with the patient and encouraging her to tell the truth.
The Tribunal would not be satisfied that the responses to the respondent’s claims of sexual relations were in fact admissions by conduct or that the fact the respondent contacted the patient and attempted to persuade her to do things was evidence of consciousness of guilt. It was simply an attempt on the part of the respondent to persuade the patient to tell the truth, that is, that no sexual relations had occurred.
The Tribunal would not be satisfied that the respondent had sexual relations with the patient and would not be satisfied that charge 1 was proved. In those circumstances, the conduct basing charge 2 would not sustain a finding of professional misconduct but, if anything, at the highest, one of unprofessional conduct.
Consideration
Consideration of demeanour of witnesses has played no part in my determination of this matter. I derived no assistance from observing the way in which the witnesses gave their evidence. There was nothing about the way the witnesses, including the patient and respondent, gave evidence which either detracted from or enhanced their credibility.
As to the crucial matters for determination, I prefer the evidence of the patient to that of the respondent. I find that the patient was an honest witness and reliable as to the crucial matters for determination. Her evidence overall had a logical internal consistency and a level of detail inconsistent with concoction. It was consistent with the telecommunications evidence and the CCTV evidence from the service station. It was also supported by the statement of her deceased old friend. On the other hand, the version of events contended for by the respondent was implausible and inconsistent with the telecommunications evidence. Notwithstanding the evidence of the respondent’s erectile dysfunction and those matters adverse to the credibility and reliability of the patient, I am satisfied to the requisite standard that sexual activity occurred between the patient and the respondent during the afternoon consultation and during the patient’s later visit to the unit on 29 October 2014 as described by the patient. I find that the respondent subsequently contacted the patient in an endeavour to frustrate an investigation into his misbehaviour.
In detailing my reasons for such conclusions, I will necessarily need to deal with aspects of the evidence and submission of the parties in a serial fashion. That should not be misunderstood as suggesting that I have approached my consideration of the evidence in such a piecemeal fashion.
A finding as to who was operating the respondent’s mobile phone to make voice calls and text calls on the evening of 29 October 2014 is an ultimately decisive finding as to the respective credibility of the patient and the respondent. If I am satisfied that it was the respondent operating the phone and that he has lied in his evidence to the contrary, such a finding is damning. If so found, there is no reasonable explanation for the telecommunications evidence other than the respondent’s guilt of charge 1. On the other hand, if I was left with a substantial doubt as to whether the patient may have fabricated such evidence, I would not be satisfied to the requisite standard that the case against the respondent was proved.
I am satisfied to the requisite standard that it was the respondent operating his mobile phone on the evening of 29 October 2014. The respondent’s contention to the contrary is simply implausible. His contention requires acceptance that the patient has managed to purloin his phone during the course of the consultation without the respondent noticing her doing so. The patient has then engaged in an elaborate ruse of fabricating missed calls, text message exchanges and the fact of a voice call between the two phones before travelling to the unit to leave the phone on the respondent’s car. What would motivate the patient to undertake such an extraordinary deception is entirely unclear. On the respondent’s scenario, not only has the patient chosen to engage in such a deception, but she has apparently recruited her older friend to do so, at least to the extent of giving a false account of the movements of the patient on the evening of 29 October 2014, but also it would seem in the purchase of condoms from the service station for the further embroidery of such a concocted fiction. That the patient would seek to deceive her older friend for such a purpose or, alternatively, successfully recruit her to engage dishonestly in such a deception is a further unlikely aspect of the respondent’s contended version of events.
I have concluded that the evidence of the patient as to the exchange of telephone calls and text messages on 29 October 2014 should be preferred to the denial of the respondent notwithstanding those matters detracting from the credibility of the patient generally and her evidence as regards to the mobile phone use in particular. I have taken into account those matters referred to in para [51](e) and [92] of these reasons. Further in that respect, I note the terms of the patient’s initial complaint as recorded in the memorandum of the CCC complaints officer dated 1 December 2014. The patient is reported as referring to only one telephone voice call conversation initiated by her, consistent with the objective telecommunications evidence. In her statutory declaration dated 28 November 2014, the patient also refers to only one voice call conversation, albeit one initiated by the respondent, rather than the patient. Upon a consideration of all the evidence, I am of the view that the inconsistencies in the patient’s evidence in this regard are explicable by frailty of recollection and honest mistake on the part of the patient.
As to the matters referred to in para [51](a) of these reasons and the question whether the respondent had ever conducted a rectal examination of the patient, I am not satisfied to the requisite standard that such an examination actually occurred. I find that it may well have occurred but the discrepancies in the evidence are not such that I would have been satisfied of such matters if such conduct was the subject of a charge, which it is not. I have taken my doubts as to such matter into account when assessing the credibility and reliability of the patient as to the matters that are the subject of charge 1. Neither my doubts as to that matter or the other matters adverse to the credibility of the complainant discussed elsewhere in these reasons prevent me from concluding that the patient was an honest and reliable witness as to the matters the subject of charge 1.
In that regard, I have also taken into account those matters referred to in paragraphs [52] and [93]-[95] of these reasons. Those matters did not cause me concern as to the credibility and reliability of the patient.
The evidence of the patient as to the events of 29 October 2014 was supported by the statement of her deceased older friend and the CCTV evidence tending to confirm the purchase of condoms on that evening. Her evidence of missed calls during the course of events in the unit was consistent with the telecommunications evidence of missed calls and the respondent’s evidence of missed calls.
As to the respondent’s contentions regarding his erectile dysfunction, the expert evidence did not exclude the possibility of the respondent being able to achieve an erection and achieve a second erection following upon ejaculation. Notwithstanding the uncertainty of the patient’s evidence as to the time gap between the respondent’s ejaculation and the second episode of sexual intercourse, the timeframe established by the evidence of the patient as to when she met the respondent at the service station and the evidence of the patient as to when she returned to her car and the evidence of her older friend as to the time of her return to her home was such as to permit a passage of time greater than 30 minutes between the act of ejaculation and the second episode of sexual intercourse. The evidence as to the respondent’s erectile dysfunction was not such as to positively exclude the fact of such events occurring. It is quite likely that the respondent’s erectile function was aided by medication. He had tried Viagra to achieve erections on previous occasions and had been prescribed Viagra in August 2014. I find that it is likely that he had such medication available for use on 29 October 2014 notwithstanding the evidence of the respondent and his wife as to disposal of a box of tablets after their prescription in August 2014. The explanation given for the disposal of the tablets was not a convincing one. It was inconsistent with the attempts of the respondent and his wife to have sexual intercourse with the assistance of such medication on occasions prior to and subsequent to October 2014. The whole of the evidence is such that I am comfortably satisfied as to the facts alleged to base charge 1 notwithstanding the evidence led as to the respondent’s erectile dysfunction.
It is not for the respondent to establish some motive on the part of the patient to make false allegations. False allegations of sexual impropriety can be made for reasons not discernible by anyone other than the complainant. It is relevant though that there seems to be no discernible reason why the patient would choose to purloin the respondent’s mobile phone, engage in an elaborate ruse by way of fabrication of evidence and then make a complaint regarding the respondent about two weeks later. If the account of the patient’s initial complaint given by the RFDS counsellor to the CCC complaints officer is accurate, the patient was uncertain as to whether she wished to pursue a complaint, concerned about the possible consequences but motivated by a concern that other women could be the victims of similar behaviour. There is nothing to suggest that the patient’s subsequent pursuit of the complaint was motivated by self-interest. She never sought any price from the respondent for withdrawal of such a complaint notwithstanding the opportunity to do so during the course of conversations with the respondent in December 2014. Nothing has been suggested as a possible motivation of ill will by the patient towards the respondent other than her feelings of being used by the respondent.
In considering the relevance of the evidence of the telephone conversations in December 2014 to proof of each of charge 1 and charge 2, it is necessary to make findings as to the contested evidence of Mr Massey. Notwithstanding those criticisms of his evidence detailed in paragraphs [30] and [97] of these reasons, I am satisfied that Mr Massey was an honest and reliable witness in his evidence that he did not reveal the name of the patient during his conversation with the respondent on 12 December 2014. I accept his evidence that he withheld the name of the patient because he had been directed to do so by the Executive Director with whom he had spoken prior to speaking to the respondent. Such a finding is consistent with the statements made by the respondent during his conversations with the patient on 13 December and 17 December 2014. During his conversation with the patient on 13 December 2014 the respondent reveals knowledge that a complaint has been made of a sexual nature but indicates that details of the complaint and been withheld from him. He does not claim that he has been told that the patient is the subject of the complaint. That is to be contrasted with his statements in the conversation of 17 December 2014 to the effect that it is the patient who is the subject of the complaint. That change is consistent with the identity of the patient being first communicated by the OHO to the respondent by way of the letter dated 16 December 2014. I find that Mr Massey did not reveal the identity of the patient to the respondent during his conversation on 12 December 2014. The first communication of that fact was by way of the letter from the OHO to the respondent dated 16 December 2014.
Such a finding is significant because the respondent does not suggest that he received knowledge as to the identity of the patient the subject of the complaint from any source other than Mr Massey. Given my finding to the contrary, the only reasonable explanation for the respondent contacting the patient on 13 December 2014 and talking to her in the terms of the recorded conversation was his own guilty knowledge that he had had sexual relations with the patient. The fact of the phone call itself reveals a consciousness of guilt on his part of those matters basing charge 1.
In considering the further relevance of the contents of the conversations between the patient and the respondent in December 2014, I have carefully considered those matters contended for by the respondent and referred to in paragraphs [99] and [100] of these reasons. After carefully listening to the recordings of the conversations, I am quite satisfied that the respondent was able to hear what was being said to him by the patient and choose his responses accordingly. The mechanics of the telephone conversations and any language or cultural considerations relevant to the respondent are not such as to substantially detract from the incriminatory nature of the statements by the respondent.
I find that the respondent made admissions by his conduct in responses to statements by the patient suggesting previous sexual relations between them. Further, statements made by the respondent directed towards persuading her to frustrate the OHO investigation, including by deleting any record of telephone contact between them, is incapable of any reasonable explanation other than a consciousness of guilt on the part of the respondent of his conduct basing charge 1.
I find that the contents of the conversations between the patient and the respondent in December 2014 constitute cogent evidence supporting the patient’s account of events basing charge 1 and constitute cogent evidence establishing proof of charge 2 to the requisite standard.
After a consideration of the whole of the evidence, I am satisfied to the requisite standard of those matters alleged in the particulars of charges 1 and 2. I am satisfied that the respondent has engaged in the conduct the subject of charges 1 and 2.
Characterisation of the conduct
The conduct the subject of charge 1 was an egregious violation of the boundary expected to be maintained by a medical practitioner between himself and any patient. For reasons known to the respondent, the patient was particularly vulnerable. The respondent’s conduct was in clear breach of specific guidelines in the relevant codes of conduct. Such serious misconduct was compounded by the attempt to escape the consequences of such misconduct by the conduct basing charge 2.
I have no hesitation in finding that the respondent has engaged in conduct which meets each of the three limbs of the definition of “professional misconduct” in s 5 of the National Law:
“professional misconduct, of a registered health practitioner, includes –
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.”
Pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.
Amendment of non-publication order
At an early stage in the proceeding, the Tribunal made a non-publication order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) prohibiting publication of any information that might identify any patient or any family member of any patient. At the commencement of the hearing on 3 September 2019, upon application by the respondent, that order was amended so as to also include the respondent and any family member of the respondent. That was in circumstances where the evidence would include the evidence as to the respondent’s erectile dysfunction and in light of the embarrassment that might be caused to the respondent and his wife in the respondent responding in that manner to as yet unsubstantiated allegations. I indicated at that time that the question of the continuance of the non-publication order would be revisited prior to the time of publication of reasons.
A draft of these reasons was forwarded to the parties who were invited to make any submissions they wished as to the proposed amendment of the non-publication order.
The respondent submits that publication of the reasons without de-identification of the respondent or redaction of all reference to evidence regarding the respondent’s erectile dysfunction will cause significant embarrassment and ridicule to the respondent’s wife and his children. The nature of the community where the respondent and his wife reside and the uniqueness of his surname raise the likelihood of the respondent’s wife and family being identified to an almost certainty if the respondent is named. Publication of evidence concerning the respondent’s erectile dysfunction and the details of the sexual relationship between him and his wife will cause significant embarrassment, ridicule and distress to the respondent’s wife and family. If the Tribunal was to amend the non-publication order so as to not prohibit identification of the respondent, the following paragraphs of the reasons should be redacted from the publically published reasons: [55], [56], [67], [71], [73], [74], [76] – [86] inclusive, [96], [111].
Section 66 of the QCAT Act provides as follows:
“(1) The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order –
(a) the contents of a document or other thing produced to the tribunal;
(b) evidence given before the tribunal;
(c) information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
(2) The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
(a) to avoid interfering with the proper administration of justice; or
(b) to avoid endangering the physical or mental health or safety of a person; or
(c) to avoid offending public decency or morality; or
(d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
(e) for any other reason in the interests of justice.”
The exercise of the discretion pursuant to s 66(1) of the QCAT Act is informed by the paramount principle of open justice:
“Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interest in the open administration of justice, freedom of speech, a free media and an open society require the court proceedings to be open to the public and able to be reported and discussed publicly.”[13]
“… information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other ‘collateral disadvantage’…”[14]
“… an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders and their various alternative forms.”[15]
[13]J v L&A Services Pty Ltd (No.2) [1995] 2 Qd R 10 at 44.
[14]Ibid, 45.
[15]John Fairfax Group Pty Ltd v Local Court of New South Wales [1991] 26 NSWLR 131 at 142-143.
I do not consider that any of the criteria in s 66(2)(a) to (d) of the QCAT Act are available to enliven a discretion to continue non-publication of the identity of the respondent or make the redactions sought by the respondent.
I do not consider that it is otherwise in the interests of justice to continue to prohibit publication of the identity of the respondent. Given the substantiation of the charges against the respondent, it is no longer appropriate that the non-publication order extend to the identity of the respondent or any family member of the respondent (although I have taken care in these reasons not to refer to any family member by their name) and the non-publication order will be amended accordingly.
Notwithstanding the embarrassment and distress likely to be caused to the respondent’s wife and family, I do not consider it is in the interests of justice that the Tribunal redact these reasons in the way sought by the respondent. The issue of the respondent’s erectile dysfunction was relied upon by the respondent as an answer to the charges brought against him. It was not a peripheral issue but a central one for the Tribunal’s deliberation. Redaction of the reasons in the way sought by the respondent would result in the publication of a significantly incomplete account of the issues in dispute in the proceeding and the Tribunal’s reasons. The important principle of open justice and the ability of the public to scrutinise and understand the Tribunal’s reasons outweighs the unfortunate consequence of embarrassment and distress likely to be caused to the respondent’s wife and family.
The order will continue to prohibit publication of any matter that might lead to identification of the patient and her daughter, including, as the redactions in these reasons would suggest, the identity of the patient’s deceased older friend and the town in which the events occurred.
The Tribunal will make directions as to the further hearing and determination of the proceeding after hearing from the parties.
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