MEDICAL BOARD OF AUSTRALIA and ARUNKALAIVANAN

[2021] WASAT 127

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

CITATION:   MEDICAL BOARD OF AUSTRALIA and ARUNKALAIVANAN [2021] WASAT 127

MEMBER:   JUDGE K GLANCY, DEPUTY PRESIDENT

MR D AITKEN, SENIOR MEMBER

DR P WINTERTON, SENIOR SESSIONAL MEMBER

HEARD:   12 FEBRUARY 2021, 15 FEBRUARY 2021, 17 FEBRUARY 2021, 22 MARCH 2021 AND 23 MARCH 2021

DELIVERED          :   23 SEPTEMBER 2021

FILE NO/S:   VR 71 of 2020

BETWEEN:   MEDICAL BOARD OF AUSTRALIA

Applicant

AND

ANGAMUTHU ARUNKALAIVANAN

Respondent

Catchwords:

Vocational regulation ­ Medical practitioner ­ Disciplinary proceedings ­ Allegations of professional misconduct ­ Allegations of sexual conduct in guise of examinations ­ Failure to obtain consent to examinations ­ Examination without clinical justification ­ Use of propensity evidence

Legislation:

Good Medical Practice: a code of conduct for doctors in Australia (March

2014), s 3.1, s 3.2, s 3.2.6
Guidelines: Sexual Boundaries in the Doctor­Patient Relationship (12 December 2018), cl 3, cl 3.1
Health Practitioner Regulation National Law (WA) Act 2010, s 3, s 4, s 4(1), s 5, s 6, s 31, s 39, s 41, s 151, s 151(1)(a), s 151(1)(d), s 151 (1)(f), s 151(2), s193(1), s 193(2), s 196, s 196(1)(b), s 196(2)
Sexual Boundaries: Guidelines for Doctors (28 October 2011), cl 3, cl 4
State Administrative Tribunal Act 1990 (WA), s 32(2)(a), s 32(4)

Result:

Finding made that the practitioner has no case to answer and no further action is to be taken

Representation:

Counsel:

Applicant	:	Ms F A Stanton & Ms H R Millar & Ms J M McKenzie
Respondent	:	Ms L B Black & Ms M Lalli

Solicitors:

Applicant	:	Minter Ellison
Respondent	:	Panetta McGrath Lawyers

Case(s) referred to in decision(s):

Allinson v General Council of Medical Education and Registration (1894) 1 QB 750

Azarian v The State of Western Australia [2007] WASCA 249 Bernadt v Medical Board of Australia [2013] WASCA 259 Briginshaw v Briginshaw (1938) 60 CLR 336

Chiropractic Board of Australia and Ebtash [2020] WASAT 86

Craig vMedical Board of South Australia [2001] SACS 169; (2001) 79 SASR 545

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Jemielita v Medical Board of Australia (Unreported, SCt of WA, Library No.

920584, 13 November 1992)

Jones v Dunkel [1959] HCA 9; 101 CLR 298.

Medical Board of Australia and Roberts [2014] WASAT 76

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

Panegyres v Medical Board of Australia [2020] WASCA 58 Qidwai v Brown (1984) 1 NSWLR 100

Singh v Medical Board of Australia [2019] WASCA 51
SPW v The State of Western Australia [2012] WASCA 41 Suresh v The Queen [1998] HCA 23; (1988) 72 ALJR 769

New South Wales Bar Association  v Evatt [1968] HCA  20

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. The Medical Board alleges that Dr Arunkalaivanan,[1] who is a specialist obstetrician and gynaecologist, behaved in a way which constituted professional misconduct, or alternatively unprofessional conduct, or alternatively unsatisfactory professional performance, in the course of a consultation with Patient A on 1 November 2018 and during a consultation with Patient B on 25 October 2019.  The grounds for such a finding have been set out in the Board's application dated 31 August 2020.  Details of the grounds are set out later in these reasons.  The most significant allegation in respect of each patient is the allegation that Dr Arunkalaivanan touched them inappropriately (in a way that would constitute an indecent assault and a sexual penetration without consent in the criminal law respectively) in the course of a medical examination.  The Board says that the touching in each case was not done for a legitimate medical purpose but rather was motivated by Dr Arunkalaivanan's desire for sexual gratification.

   [1] Many witnesses referred to Dr Arunkalaivanan as Dr Arun.  His counsel informed us that he was happy to be referred to in that way.  Unless we are quoting a witness' evidence we will refer to the respondent as Dr Arunkalaivanan throughout these reasons.

2. Dr Arunkalaivanan denies that he touched either complainant in the manner alleged by the Board and denies all of the Board's other allegations.  Dr Arunkalaivanan maintains that the examination he conducted in each case was medically appropriate, was performed in a manner consistent with recognised medical techniques, was carried out after consent had been given by each patient and that each examination took place in the presence of a chaperone.

Outcome

1. For the reasons which follow, we are not satisfied that the Board has proved any of the allegations against Dr Arunkalaivanan to the requisite standard.

Grounds

1. The Board alleges in its application dated 31 August 2020, that Dr Arunkalaivanan has behaved in a manner that constitutes professional misconduct or unprofessional conduct or unsatisfactory professional performance for the purposes of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law) because his conduct was substantially below the conduct reasonably expected of a registered health practitioner of an equivalent level of training or experience in that he:

   (a)squeezed Patient A's breasts when there was no clinical basis or need to conduct such an examination at the time it was carried out;

   (b)failed to obtain informed consent or to act in accordance with cl 3 of the Board's guidelines ­ Sexual Boundaries:  Guidelines for Doctors (28 October 2011) (2011 Guidelines) or s 3.2.6 of the Board's code Good Medical Practice: a code of conduct for doctors in Australia (March 2014) (Code), in that he squeezed Patient A's breasts without her informed consent;

   (c)failed to maintain high standards of professional conduct, appropriate professional and sexual boundaries or to act in accordance with s 3.2.6 of the Code or cl 3 or cl 4 of the 2011 Guideline in that he:

   (i)failed to arrange for a chaperone to be present during his physical examination of Patient A;

   (ii)used both hands to squeeze her breasts simultaneously, in a manner that was not in accordance with the expected standards of an orthodox breast examination;

   (iii)used both hands to squeeze her breasts simultaneously when there was no clinical indication for any examination of Patient A's breasts to be performed;

   (iv)became sexually aroused while squeezing Patient A's breasts;

   (v)pressed his erect penis against Patient A's left kneecap while squeezing her breasts;

   (vi)engaged in inappropriate behaviour of a sexual nature towards Patient A;

   (d)breached the condition which was placed on his registration on 27 June 2019 which prohibited him from having contact with a female patient without the physical presence of a Board approved practice monitor who directly observed the entire contact and by conducting the vaginal examinations of Patient B while a practice monitor was not observing the examinations;

   (e)failed to obtain Patient B's informed consent or to act in accordance with cl 3 of the Board's guidelines ­ Sexual Boundaries in the Doctor-Patient Relationship (12 December 2018) (2018 Guidelines) or s 3.2 of the Code;

   (f)failed to maintain high standards of professional and sexual boundaries or to act in accordance with s 3.2.6 of the Code or cl 3.1 of the 2018 Guidelines during the consultation with Patient B in that he conducted the vaginal examination in a manner that was forceful and rough.

Issues

1. The primary issues to be resolved in this matter are:

In respect of Patient A:

1.Did Dr Arunkalaivanan touch Patient A in the manner in which she alleges that he did while sexually aroused?

2.If the touching was not sexually motivated, was there a clinical indication for the examination of Patient A's breasts?

3.Even if the examination was medically appropriate, did Dr Arunkalaivanan fail to arrange a chaperone to be present while it was performed?

4.How to characterise the conduct if we find that Dr Arunkalaivanan did any of the things alleged in grounds (a) - (d) (see para 4).  Dr Arunkalaivanan accepts that if the examination was conducted as Patient A alleges then his conduct will be found to amount to professional misconduct.[2]

[2] ts 20, 12 February 2021.

In respect of Patient B

5.Was a practice monitor present and directly observing the entire contact Dr Arunkalaivanan had with her?

6.Did Dr Arunkalaivanan breach cl 3 of the 2018 Guidelines or s 3.2 of the Code when he examined Patient B?

7.Did Dr Arunkalaivanan perform a vaginal examination which was forceful and rough?

1. Determining those issues also requires us to resolve what use we can make of findings that:

   a.Dr Arunkalaivanan squeezed the breasts of a patient in England (the English patient) eight years earlier in a way which the Board alleges is strikingly similar to his conduct in respect of Patient A; and

   b.Dr Arunkalaivanan performed a speculum and vaginal examination on another patient, Ms F, in 2019 without having first obtained her informed consent;

which the Board says demonstrates a tendency or propensity on Dr Arunkalaivanan's part to:

c.in the case of the English patient, behave in the way alleged by Patient A; and

d.in the case of the findings regarding Ms F, fail to obtain informed consent before conducting vaginal examinations.

1. Dr Arunkalaivanan has objected to the admissibility of certain documents.  Those objections relate to evidence of complaints being made by the patients to third parties about Dr Arunkalaivanan's conduct towards them.  The objection is made on the basis that the evidence contained in those documents does not meet the requirements that would make them admissible as evidence of recent complaint.  The objections to the documents, which were provisionally tendered, need to be resolved in order to determine what use, if any, we can make of them in deciding this matter.

Structure of these reasons

1. We have structured our reasons as follows:

   1.First, we have set out relevant provisions of the National Law concerning the Board, the role of the State Administrative Tribunal in these proceedings, the meaning of the relevant disciplinary standards and the findings that can be made by the Tribunal in disciplinary matters of this kind.

   2.Second, we have set out the relevant provisions of the 2011 Guidelines, 2018 Guidelines and the Code.

   3.Third, we have set out the standard and onus of proof which applies in disciplinary proceedings of this kind.

   4.Fourthly, we deal with the admissibility of the documents to which objection has been taken.

   5.Fifthly, we deal with the issue of whether the findings made in respect of the English patient and Ms F establishes the propensity contended by the Board.

   6.Sixthly, we set out our findings in respect of Dr Arunkalaivanan's qualifications, training and experience.

   7.Seventhly, we record our findings concerning credibility of Ms Verma, Ms Trimby and Dr Arunkalaivanan.

   8.Eighthly, we set out our findings in respect of the allegations made by Patient A and the reasons for them.

   9.Ninthly, we deal with the allegation that the breast examination conducted by Dr Arunkalaivanan on Patient A was not clinically indicated.

   10.Tenthly, we deal with the issue of whether the breast examination on Patient A was carried out in accordance with the standards of an orthodox breast examination.

   11.Eleventhly, we set out our findings in respect of the allegations made by Patient B and our reasons for those findings.

   12.Twelfthly, we deal with the allegation that Dr Arunkalaivanan did not obtain informed consent from Patient B before conducting the vaginal examination.

   13.Finally, we set out the orders we made as a consequence of our findings.

The National Law

1. Section 4(1) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (HPRNL(WA) Act) provides that the Health Practitioner Regulation National Law set out in the Schedule to the HPRNL(WA) Act (National Law) applies as a law of Western Australia and as so applying, is part of the HPRNL(WA) Act.

2. The Board[3] is established under s 31 of the National Law.

   [3] The Board is a National Board for the purposes of the National Law: see reg 4 of the Health Practitioner Regulation National Law Regulation 2018 (WA) by which the Board is constituted as a National Health Practitioner Board for the medical profession.

3. Section 4 of the National Law provides that an entity that has functions under the National Law (in this case the Board) to exercise its functions having regard to the objectives and guiding principles of the national registration and accreditation scheme set out in s 3. Those objectives include:

   1.regulating health practitioners;[4] and

   [4] National Law, s 3(1)(a).

   2.providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practice in a competent and ethical manner are registered.[5]

   [5] National Law, s 3(2)(a).

4. Disciplinary proceedings are brought for the protection of the public and are not punitive.  Penalties which are imposed as a result of adverse findings being made against a practitioner are imposed for the primary purpose of protecting the public rather than punishment of the practitioner in the sense in which punishment is imposed under the criminal law.[6]  As a result, the penalty may be greater or less than that which may have been imposed if punishment were the purpose of the penalty.[7]

   [6] Singh vMedical Board of Australia [2019] WASCA 51 [31] (Quinlan CJ and Pritchard JA) and [55] (Allanson J).

   [7] Craig v Medical Board of South Australia [2001] SACS 169; (2001) 79 SASR 545 [44] (Doyle CH, Williams and Martin JJ agreeing) cited with approval in Singh v Medical Board of Australia [2019] WASCA 51 [30] - [31] (Quinlan CJ, Pritchard JA with Allanson J agreeing).

5. The Tribunal is 'the relevant Tribunal' under s 6 of the National Law. Pursuant to s 193(1) and s 193(2) of the National Law, the Board is required to refer a registered health practitioner to the Tribunal if the Board reasonably believes that the practitioner has behaved in a way that constitutes 'professional misconduct' and that conduct occurred in Western Australia.

6. The outcomes which may be reached after a hearing of a matter referred to the Tribunal are set out in s 196 of the National Law. Section 196(1) provides that the Tribunal may decide:

   a.that the practitioner has no case to answer and that no further action is to be taken in relation to the matter; or

   b.one or more of the following:

   (i)the practitioner has behaved in a way that constitutes unsatisfactory professional performance;

   (ii)the practitioner has behaved in a way that constitutes unprofessional conduct;

   (iii)the practitioner has behaved in a way that constitutes professional misconduct;

   (iv)the practitioner has an impairment;

   (v)the practitioner's registration was improperly obtained because the practitioner or someone else gave the National Board established for the practitioner's health profession information or a document that was false or misleading in a material particular.

7. If the Tribunal makes one of the findings referred to in s 196(l)(b) of the National Law, it may decide to take any one or more of the actions set out in s 196(2). They range from issuing a caution or reprimand, to cancelling the practitioner's registration.

The Code, the 2011 Guidelines and the 2018 Guidelines

1. Section 39 of the National Law provides that a National Board may develop codes and guidelines to provide guidance to the health practitioners it registers and about other matters relevant to the exercise of its functions.

2. Section 41 of the National Law provides that a code or guideline approved by a National Board is admissible in proceedings brought under the National Law against a health practitioner in a profession for which the particular National Board is established, as evidence of that which constitutes appropriate professional conduct or practice for that particular profession. Copies of the Code, the 2011 Guidelines and the 2018 Guidelines, which applied at the time of each consultation, were in evidence.[8]

   [8] Applicant's Book of Documents, Volume 2, dated 9 February 2021 (Exhibit 8).

3. In Panegyres v Medical  Board  of  Australia[9], Buss P and Murphy JA referred to the Code of Conduct made by the relevant National Board which applied in that case and noted that aspects of it were aspirational rather than standard setting.  After doing so they said:

   [9] Panegyres v Medical Board of Australia [2020] WASCA 58 [17] - [18].

   17It cannot be assumed that any departure from the conduct of practice referred to in the Conduct Code will in all cases amount to conduct to which consequences attach under s 196 of the National Law.

   18Ultimately, in disciplinary proceedings against a medical practitioner, the question is not whether the impugned conduct is in 'breach' of the Conduct Code. It is whether the conduct, as found, is behaviour on the part of a practitioner that constitutes unsatisfactory professional performance, unprofessional conduct or professional misconduct.

1. Those observations apply equally in this case.

The Code

1. The Code applied at the time Dr Arunkalaivanan saw both Patient A and Patient B.  The Board alleges that Dr Arunkalaivanan failed to act in accordance with s 3.2.6 of the Code in the course of consultations with each of the complainants.

2. Section 3.2.6 of the Code comes under the heading 'Working with Patients'.  The Introduction to that section at 3.1 states:

   Relationships based on respect, openness, trust and good communication will enable you to work in partnership with your patients.

Section 3.2 then relevantly provides:

A good doctor­patient partnership requires high standards of professional conduct.  This involves:

3.2.1…

3.2.6Recognising that there is a power imbalance in the doctor­patient relationship, and not exploiting patients physically, emotionally, sexually or financially.

2011 Guidelines

1. The 2011 Guidelines applied at the time of Patient A's consultations with Dr Arunkalaivanan.  As we have noted above, the Board alleges that Dr Arunkalaivanan failed to act in accordance with clauses 3 and 4 of the 2011 Guidelines.

2. Clause 3 of the 2011 Guidelines is headed 'Understanding and defining sexual boundaries'.  The introductory paragraph states:

   Sexual misconduct covers a range of inappropriate professional behaviours including sexualised behaviour, sexual exploitation or abuse, entering into a sexual relationship, and sexual assault. Criminal offences will be investigated by the police.

The clause then provides information about managing sexual boundaries and in doing so states:

In managing sexual boundaries a doctor should be aware that:

•…

•Inappropriate disrobing or inadequate draping for a physical examination and conducting intimate examinations without adequate prior explanation (and thus without informed consent) may be considered a breach of sexual boundaries.

•Sexual assault ranges from physical touching (or examination without consent) to rape and is a criminal offence that should be investigated by the police.

•…

1. Clause 4 of the 2011 Guidelines relevantly provides as follows:

   Why breaching sexual boundaries is unethical and usually harmful

   A breach of the sexual boundaries is unethical and unprofessional because it exploits the doctor-patient relationship, undermines the trust that patients (and the community) have in their doctors and may cause profound psychological harm to patients and compromise their medical care.

   Power imbalance

   The doctor-patient relationship is inherently unequal. The patient is often vulnerable. In many clinical situations, the patient may depend emotionally on the doctor. It is an abuse of this power imbalance for the doctor to enter into a sexual relationship with a patient.

   Trust

   Trust is the foundation of a good doctor-patient relationship. Patients need to trust that their doctors will act in their best interests. It is a breach of trust for a doctor to enter into a sexual relationship with a patient. This breach of trust may impact on a patient's (or other patients') ability to trust other doctors.

   …

2018 Guidelines

1. The 2018 Guidelines replaced the 2011 Guidelines.  The 2018 Guidelines applied at the time of Patient B's consultation with Dr Arunkalaivanan.  The Board alleges that in the course of the consultation with Patient B, Dr Arunkalaivanan failed to act in accordance with cl 3 of the 2018 Guidelines when he failed to obtain her informed consent to the vaginal examination and that he failed to act in accordance with cl 3.1 of the 2018 Guidelines in that he conducted the vaginal examination in a manner that was forceful and rough.

2. Clause 3 of the 2018 Guidelines is headed 'Breaches of sexual boundaries (spectrum of behaviours)'.  It provides:

   There is a wide range of behaviours that breach sexual boundaries, from making unnecessary comments about a patient's body or clothing, to criminal behaviour such as sexual assault. Unwarranted physical examinations or inappropriate touching during a consultation and examination may constitute sexual assault. AHPRA will advise and support notifiers to report criminal behaviour to the police.

   3.1Spectrum of  behaviours

   Breaches of sexual boundaries include:

   •engaging or seeking to engage in a sexual relationship with a patient regardless of whether the doctor believes the patient consented to the sexual relationship;

   •conducting a physical examination which is not clinically indicated or when the patient has not consented to it. An unwarranted physical examination may constitute sexual assault or abuse;

   •behaviours of a sexual nature including:

   …

   •sexual exploitation or abuse;

   •sexual harassment;

   •sexual assault.

The disciplinary standards

1. The Board alleges that Dr Arunkalaivanan's conduct could be found to amount to professional misconduct, unprofessional conduct or unsatisfactory professional conduct.  We therefore set out below the meaning of each of those terms.

2. The expression 'professional misconduct' is defined in s 5 of the National Law as follows:

   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.

3. The expression professional misconduct is defined to include 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. The definition is inclusory and is not an exhaustive statement of that term. Therefore, professional misconduct under the National Law can include professional misconduct which does not fall within any of the paragraphs in the definition of that term, for example conduct which is characterised as professional misconduct or its equivalent under earlier vocational disciplinary legislation.[10]

   [10] Medical Board of Australia and Roberts [2014] WASAT 76 at [174].

4. The expression professional misconduct has been found to have a performance component (conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or expertise) and a conduct component (conduct, 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).[11]

   [11] Bernadt vMedical Board of Australia [2013] WASCA 259 at [23].

5. At common law, professional misconduct is regarded as conduct which could reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency, or such breach of written or unwritten rules of the profession as would reasonably incur the strong reprobation of such colleagues.[12]

   [12] Allinson v General Council of Medical Education and Registration (1894) 1 QB 750 at 761 (Lord Esher MR); Qidwai v Brown (1984) 1 NSWLR 100 at 105.

6. The expression unprofessional conduct is also defined in s 5 of the National Law. The definition is lengthy. Relevantly it is:

   unprofessional conduct, of a registered health practitioner, means professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner's professional peers, and includes —

   …

Many of the matters that are then listed in paras (a) ­ (f) of the definition are irrelevant in this case.  Of relevance are the matters which are included within the definition in paras (b) and (d).

(b)a contravention by the practitioner of ­

(i)a condition to which the practitioner's registration was subject; or

(ii)an undertaking given by the practitioner to the National Board.

and

(d)providing a person with health services of a kind which are excessive, unnecessary or otherwise not reasonably required for a person's well­being.

1. The definition of unprofessional conduct is, like that of professional misconduct, inclusory.  That is, other conduct not specifically referred to in paras (a) - (f) may amount to unprofessional conduct.

2. Unprofessional conduct is conduct of a less serious nature than professional misconduct.  Whether or not a practitioner is guilty of unprofessional conduct must be judged in accordance with the standards of his or her profession.

3. Like professional misconduct, the definition of unprofessional conduct also has both a performance component and a conduct component. The performance component is professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or by the practitioner's professional peers. The conduct component is, for example, the conviction of the practitioner for an offence under an Act other than the National Law, the nature of which may affect a practitioner's suitability to continue to practise the profession.[13]

   [13] See definition in s 5(c) of the National Law.

4. The expression unsatisfactory professional performance is defined in s 5 of the National Law as follows:

unsatisfactory professional performance, of a registered health practitioner, means the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.

1. Unlike professional misconduct and unprofessional conduct, the definition of the term unsatisfactory professional performance is an exhaustive statement of that term.  It refers to a medical practitioner's performance as a practitioner rather than their conduct.  Unsatisfactory professional performance has only a performance component (the knowledge, skill or judgment possessed, or care exercised by a medical practitioner is below the standard reasonably expected of a medical practitioner of an equivalent level of training and experience).

2. The definition of unsatisfactory professional performance suggests a generalised deficiency in the way in which a practitioner handles his or her professional affairs.  In Jemielita v Medical Board of Western Australia,[14] Owen J was considering the meaning of 'incompetency' under the now repealed Medical Act 1894 (WA). His Honour said:

   it is likely that a finding of unsatisfactory professional performance will occur where the performance of the practitioner concerned has consistently fallen below the expected standard as a medical practitioner, or where the practitioner has never attained that standard.

   [14] Jemielita v Medical Board of Western Australia, unreported; SCt of WA (Owen J); Library No. 920584; 13 November 1992 [19].

3. The issue for the Tribunal is whether the Board's allegations, to the extent that they have been established, amount to professional misconduct, unprofessional conduct or unsatisfactory professional performance although, as we have already noted, it is not in issue that if Dr Arunkalaivanan's examination of either patient occurred as the patient recounts, the conduct is to be characterised as professional misconduct.

Standard and onus of proof in disciplinary proceedings

1. It is not in dispute that the Board bears the onus of proving its case against Dr Arunkalaivanan and that the civil standard of proof applies.

2. However, because the allegations made against Dr Arunkalaivanan are extremely serious, in determining whether that standard has been met, the Tribunal recognises that cogent evidence will be required to establish the facts on which those allegations depend and that satisfaction will not be achieved by inexact proofs, indefinite testimony, or indirect references: Briginshaw v Briginshaw.[15]

   [15] Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (Dixon J).

3. As the High Court explained the position in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[16] the significance of Briginshaw is that the seriousness of the matter and of its consequences does not affect the standard of proof, but the strength of the evidence necessary to establish a fact required to meet that standard on the balance of probabilities may vary according to the nature of what is sought to be proved.

   [16] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ).

4. In this case, because of the seriousness of the allegations and the possible consequences of a finding being made against Dr Arunkalaivanan, the Tribunal will therefore need to feel an actual persuasion of the occurrence or existence of the relevant facts before being satisfied that an allegation has been made out.

Admissibility of Certain Documents Evidencing Complaints Made to Others by Patient A and Patient B After their consultations

1. Both Patient A and Patient B communicated with third parties immediately after their respective appointments with Dr Arunkalaivanan.  In Patient A's case, her appointment, although scheduled for 10.15 am, commenced at 10.21 am.[17]  Between 10.57 am and 11.06 am she sent nine short text messages to her wife in terms which are fairly consistent with her evidence about the incident.  The precise text messages are set out later in these reasons.  Patient B's appointment was at 11.30 am.[18]  She sent a text at 12.34 pm to her friend Jasmine saying 'Can u ring me. I just went to a male gynaecokogist [sic] and I'm thinking of putting in a complaint.'[19]  Between 4.09 pm and 8.12 pm Jasmine then sent her numerous text messages which refer in some way to the consultation.[20]  The details of the messages are set out later in these reasons.

   [17] Medical Board's Book of Witness Statements (Exhibit 3), page 19; Book of Documents dated 26 June 2020 (Exhibit 1), page 4.

   [18] Exhibit 1, pages 126 and 262; ts 24, 12 February 2021.

   [19] Exhibit 1, page 127.

   [20] Exhibit 1, pages 127 ­ 128.

2. The Board seeks to rely on Patient A's messages to bolster her credibility and upon those sent by Patient B to bolster the credibility of her account.

3. In a criminal context, evidence of what a complainant told someone else about what occurred is generally inadmissible hearsay evidence.  In the case of alleged sexual offending however, evidence of prior consistent recent complaint is admissible by way of an exception to the hearsay rule.[21]  This is because people tend to assume (not necessarily correctly) that the victim of a sexual offence will complain at the first reasonable opportunity and if a complaint is not made at that time, a later made complaint is likely to be false.

   [21] Suresh v The Queen [1998] HCA 23; (1988) 72 ALJR 769 [4] (Gaudron and Gummow JJ).

4. Recent complaint evidence is admissible not to prove the facts in issue but as evidence which buttresses the credibility of the complainant by demonstrating consistency of conduct.[22]  Evidence of the making of a prior consistent complaint is only admissible in a criminal trial if it tends to have the effect of buttressing the credibility of the complainant.  When determining whether it meets that test the Court has regard to:

   a.whether the evidence of a complaint was made proximate to the event about which the complaint is made;

   b.what happened between the events complained of and the making of the complaint;

   c.whether there is a question about the statement having been put into the mouth of the complainant;

   d.whether there is a question of the complaint having been made by a suggestible mind responding to a suggestible question;

   e.whether the complaint was induced by the relationship between the complainant and the person to whom the complaint was made; and

   f.all of the circumstances alleged to exist.[23]

   [22] Azarian v The State of Western Australia [2007] WASCA 249 [24] (Pullin JA); SPW v The State of Western Australia [2012] WASCA 41 [68].

   [23] Azarian v The State of Western Australia [122]-[124]; SPW v The State of Western Australia [67] - [68].

5. Dr Arunkalaivanan accepts that the evidence of the first communication made by each of Patient A and Patient B to a third party is admissible as recent complaint evidence, but he objects to the admissibility of the subsequent communications because he says it does not meet the criteria of being a complaint made at the first reasonable opportunity.  Dr Arunkalaivanan accepted that the documents could be provisionally tendered and that the objection could be resolved as part of the decision.[24]

   [24] ts 24, 12 February 2021.

6. While Dr Arunkalaivanan's objection to the admissibility of the disputed documents may well be upheld in a criminal trial, these disciplinary proceedings are not criminal in nature. Further, the Tribunal is not bound by the rules of evidence: s 32(2)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). It may inform itself of matters as it sees fit: s 32(4) SAT Act. In our view, the guiding principle when dealing with admissibility questions, therefore, must be that in order to be admissible the evidence must be relevant and probative of a fact in issue.

7. Applying that test, we have come to the conclusion that all of the documents of complaints having been made to others which the Board sought to tender reveal that each of Patient A and Patient B made complaints to third parties about their examinations and that the content of those complaints is relevant and probative and, therefore, admissible evidence of the issue of whether or not the incidents described by Patient A and Patient B occurred as they claim.  Each communication has the potential to buttress its maker's credibility.  We therefore admit all of that evidence in these proceedings.

8. In order to determine whether those communications support a finding that Dr Arunkalaivanan touched the complainants in a sexual way it is necessary to consider the actual content of the communications, when they were made and whether anything else may have occurred that may have influenced their content.  Therefore, while that evidence is admissible and thus forms part of the evidence in this matter, the issue that remains for us to resolve is what weight we give to it and what influence it has upon our determination.  We will make clear our findings in respect of those matters when we deal with the findings we make about the allegations made by each patient later in these reasons.

Propensity evidence and similar fact evidence

1. The Board submitted that we may use similar fact evidence and propensity evidence to assist us in determining this application.  Both expressions, similar fact evidence and propensity evidence, refer to evidence which shows that on some other occasion a person has acted in a manner which is strikingly similar to, or that there is an underlying unity or pattern of behaviour to, the way in which it is presently alleged the person has behaved.

2. There are three matters of evidence that the Board says we may use in that way.  They are:

   1.the evidence that Dr Arunkalaivanan was the subject of findings in relation to his examination of the English patient in October 2012, which the Board says was 'strikingly similar' to those made by Patient A;

   2.the evidence of the findings made in respect of a complaint made by a different person, a Ms F, about her consultation with Dr Arunkalaivanan in 2019; and

   3.that the evidence given by Patient A may be used as propensity evidence when considering the evidence given by Patient B and vice versa.

3. The Board submitted that:

   a.similar fact and propensity evidence is admissible in disciplinary proceedings when their admissibility is logically probative of a fact in issue;

   b.such evidence is admissible in disciplinary proceedings notwithstanding that the evidence may not have been admissible in a hypothetical, analogous criminal trial; and

   c.that approach is consistent with s 151(2) of the National Law.

4. We accept that propensity and similar fact evidence is admissible in these kinds of proceedings and that we may engage in propensity reasoning.  That such evidence is admissible in disciplinary proceedings is settled.[25]

   [25] Purnell v Medical Board of Queensland [1997] QCA 253; Zaidi v Health Care Complaints Commission [1998] NSWSC 335; Chiropractic Board of Australia and Ebtash [2020] WASAT 86.

5. We do, however, note the matters referred to by the President, Justice Pritchard in Chiropractic Board of Australia and Ebtash:[26]

   Although subject to exceptions, the use of similar fact or propensity evidence in criminal cases has, historically been prohibited, not least because of its highly prejudicial effect upon the jury. The concerns which arise in relation to the use of such evidence in criminal proceedings do not arise in civil proceedings. Furthermore, in tribunals such as this Tribunal, the rules of evidence do not apply. There is authority in other jurisdictions for the proposition that similar fact or propensity evidence may be admitted in disciplinary proceedings, provided it is relevant, and logically probative of a fact in issue. The use to which such evidence may be put, and the weight to be given to such evidence, may of course be matters over which reasonable minds may differ. The extent of the similarity of different complaints, and whether a complainant's complaint was made independently of, and was unaffected by, another complainant's account, will be amongst the factors relevant to the probative force of such evidence.

   [26] Chiropractic Board of Australia and Ebtash [2020] WASAT 86 [973].

6. We turn then to consider each matter relied upon by the Board as propensity evidence.

The conduct involving the English patient

1. The Board submitted that the fact that Dr Arunkalaivanan was the subject of allegations made by the English patient who he had treated in England on 28 October 2010 were strikingly similar to the allegations made against him by Patient A.  The Board submitted that as a result, the findings of the Panel of the General Medicine Council in 2013 and as recorded by the High Court in its decision on the appeal from the findings of the Panel, constitute probative tendency or propensity evidence in this case.  That is, the Board submitted that it reveals a propensity or tendency on Dr Arunkalaivanan's part to inappropriately grab and squeeze the breasts of patients during consultations under the guise of a proper medical examination.  The Board submitted that this evidence makes it more likely that Patient A's account of what occurred to her in her consultation with Dr Arunkalaivanan is true.

1. The Board also submitted that that evidence cannot be seen in isolation and must be viewed in the context of two other matters.  First, that the events in England would have had a big impact upon Dr Arunkalaivanan and second, that as a result of the allegations having been made, Dr Arunkalaivanan spent a day with a breast surgeon in England learning, among other things, an appropriate method of examining breasts.

2. The Board said that the sexual motivation for the breast examination as alleged by Patient A can be inferred from those two facts.  That is, Dr Arunkalaivanan would have learned a salutary lesson from the events in England and would not have mistakenly examined Patient A's breasts in the manner in which she says that he did.  The Board submitted that we should find that the only reason for acting as he did towards Patient A must have been sexual gratification.

3. We accept that, in the event that we were to find that the incident of which Patient A gave evidence in fact occurred, we might find that the motivation was sexual, relying both upon Patient A's evidence that she felt his erect penis pushing against her knee at the time and because we would find Dr Arunkalaivanan was very familiar with the correct way of conducting a breast examination as a result of his experience involving the English patient, and that we could draw that conclusion even though the High Court was unable to say that the examination of the English patient was sexually motivated for the reasons advanced by the Board.

4. However, we are not persuaded that the evidence establishes a propensity on Dr Arunkalaivanan's part to touch patients' breasts in the manner alleged when the opportunity arose such that it makes Patient A's account more likely to be true.  We have come to that view for the following reasons:

   1.We decline to attribute a pattern of conduct to Dr Arunkalaivanan where the only evidence before us in support of the alleged pattern is a finding that an examination occurred in a particular way in 2010 and Patient A's allegations of similar squeezing of her breasts on 1 November 2018.  This is particularly so in the absence of evidence as to how many breast examinations Dr Arunkalaivanan has performed over that time.

   2.We are not satisfied that the examinations were conducted in a manner that could be said to be strikingly similar.  The finding in respect of the English patient was that she had consented to a breast examination but that Dr Arunkalaivanan had performed it by standing behind her while simultaneously cupping and squeezing each breast with his hands.  Patient A's evidence was that Dr Arunkalaivanan stood in front of her and squeezed her breasts.  There was some confusion in her evidence about precise details of how that took place.  For example, in cross-examination Patient A was unable to recall whether he squeezed one breast first and then the other or both simultaneously, and nor could she recall whether he squeezed with two hands on each breast or one hand on each breast.[27]  Yet in her witness statement her evidence was that 'with both his hands he immediately placed them onto each of my breasts.  He started squeezing my breasts repeatedly'.[28]

   3.We are not satisfied that Patient A's account of her breast examination was not influenced by her knowledge of  what occurred in relation to the English patient.  While we accept that Patient A's initial complaint was made before she knew about the facts of the conduct in respect of the English patient, the account given by Patient A to her wife at that time was merely that Dr Arunkalaivanan had squeezed her breasts.  It was only later, and after she had had an opportunity to learn about the allegations made by the English patient, did her account include that the squeezing of both breasts occurred simultaneously.

   [27] ts 168 - 169, 15 February 2021.

   [28] Exhibit 3, page 5.

5. While we accept that two strikingly similar incidents can be demonstrative of a tendency, even when separated by a significant period of time,[29] in this case where the two incidents were separated by a period of eight years, where the two accounts are not 'strikingly similar', where Patient A, when she gave her more detailed account, had knowledge of the incident involving the English patient[30] and where Dr Arunkalaivanan gave evidence that he would conduct a breast examination on patients where, in the course of a gynaecological examination, he determined that it was warranted as a result of complaints being made of breast pain,[31] we regard the tendency evidence to be very weak.

   [29] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJER 1045.

   [30] ts 151, 15 February 2021.

   [31] ts 357, 22 March 2021.

6. In the circumstances, while the evidence of the findings made by the High Court in relation to the English patient was admissible in the proceedings, we are not persuaded that Patient A's account is bolstered to any significant degree by the findings in relation to the UK conduct.

Ms F notification and outcome letter

1. The Board submitted that allegations made by a Ms F, in respect of which the Board took 'no further action' in relation to the notification, should be taken into account as demonstrating a pattern of conduct by Dr Arunkalaivanan. The Board submitted that such reasoning is permitted by s 151(2) of the National Law because the existence of the section is demonstrative of the intention of the legislature to allow participating tribunals under the national scheme to take into account tendency and propensity evidence, including when it arises in relation to notifications extraneous to the subject notification.

1. Section 151(1) provides that a National Board may take no further action in relation to a complaint in various circumstances. They include circumstances where:

   (i)the Board believes that the notification is frivolous, vexatious, misconceived or lacking in substance: (s 151(1)(a));

   (ii)the subject matter of the notification has already been adequately dealt with by the Board: (s 15l(l)(d)); and

   (iii)the health practitioner concerned has already taken adequate steps to remedy the matter the subject of the notification and the Board reasonably believes that no further action is required in relation to the notification: (s 151(1)(f)).

2. Section 151(2) of the National Law then provides:

   A decision by a National Board to decide to take no further action in relation to a notification does not prevent a National Board of adjudication body taking the notification into consideration at a later time as part of a pattern of conduct or practice by the health practitioner.

3. It is clear, therefore, that the Tribunal is able to revisit matters which have been the subject of a no further action decision by the Board when, in retrospect, and in light of further facts, they can be seen to evidence a pattern of conduct.

4. The Board submitted that the findings in relation to the Ms F notification to AHPRA in June 2019 which alleged, among other things, that Dr Arunkalaivanan inserted a Mirena without prior explanation as to how this was going to occur and as to what she should expect to occur during the procedure[32] is evidence of a tendency or propensity on Dr Arunkalaivanan's part to fail to give patients the necessary information to enable them to give informed consent to an intimate examination.

   [32] Applicant's Book of Documents, Volume 3 (Exhibit 10).

5. By letter dated 20 November 2020 (the Ms F Outcome Letter[33]) the National Board informed Dr Arunkalaivanan that it had made a finding that his performance with respect to the placement of the IUD, a preceding 'internal examination' and the release of the patient's health information to her sister in June 2019 'is or may be unsatisfactory in each of those respects'.  As a result, the Board imposed certain conditions on his registration. The conditions required Dr Arunkalaivanan to undertake further education regarding informed consent and patient confidentiality for the improvement of his practice in those areas.[34]

   [33] Exhibit 10, pages 35 ­ 46.

   [34] The conditions were recorded on the National Register maintained under the National Law: s 222 / s 225. Annexed to the index filed by the Board on 22 February 2021 as attachment 39 (Exhibit 11), pages 32 ­ 33.

6. Dr Arunkalaivanan did not appeal those findings and accepts that he is therefore bound by them.

7. The F Outcome Letter set out the findings which the Board made in relation to the complaint.  They include that Dr Arunkalaivanan did not provide Ms F with adequate information prior to conducting the intimate examination as necessary to obtain her informed consent.[35]

   [35] Exhibit 10, paras 13 and 16.

8. We find from the evidence of Dr Arunkalaivanan, and Patient B herself, that Dr Arunkalaivanan had informed Patient B that he proposed to conduct a speculum examination followed by a bimanual examination of her vagina.  That Patient B was expecting an internal examination can be inferred from the fact that she had been referred to a gynaecologist as a result of concerns that her cervix appeared to display some abnormality and that in the course of the consultation she moved within the consulting room to the curtained area where the examination bed was located and removed the clothing below her waist and waited on the examination bed for Dr Arunkalaivanan to enter the examination area.[36]  On her evidence, the second time that Dr Arunkalaivanan inserted his fingers into her vagina he performed a pain free, and therefore, proper examination which was observed by the practice monitor.  No complaint is made that she did not provide informed consent to that properly performed examination.  The allegation is that she did not provide informed consent to what she says was the initial, rough and painful and unexpected conduct which she says took place in the absence of the practice monitor.

   [36] Exhibit 3, page 38; ts 83, 15 February 2021.

9. While we accept that Patient B was unaware of the F findings at the time she made her complaint about Dr Arunkalaivanan's conduct, and that both involve allegations of failing to obtain consent to vaginal examinations, the factual circumstances in which the failures are said to arise are otherwise very different.  The facts as found by the Board in Ms F's case are that Dr Arunkalaivanan did not adequately explain to the young and inexperienced patient the reason for conducting a vaginal examination prior to inserting her Mirena, although she had attended his practice for that purpose.  There was no finding that the examination he actually conducted was not medically appropriate or that there was anything clinically wrong about the way it was performed by Dr Arunkalaivanan.

10. The evidence in relation to Ms F does not establish a tendency to behave in the manner alleged by Patient B.  That is, we are unable to reason from a finding that Dr Arunkalaivanan failed to ensure that Ms F properly understood the reason for the examination to the conclusion that it is more likely that Patient B gave honest and credible evidence that Dr Arunkalaivanan, having reason to conduct a bimanual examination, gratuitously and painfully penetrated her vagina in the absence of the practice monitor before properly carrying out the examination when the practice monitor was present.  The evidence concerning Dr Arunkalaivanan's examination of Ms F, therefore, does not lead us to reason that Patient B's account is more likely to be true.

Patient A's evidence as propensity evidence in Patient B's case, and vice versa

1. The Board asked us to then take the conduct in respect of Patient A and the English patient into account in assessing the likelihood that Dr Arunkalaivanan behaved in the way that Patient B said he did, which although not conduct in the course of a breast examination was, in the Board's submission, similar in that it involved quick brazen conduct in the midst of what was otherwise an appropriate vaginal examination.

2. The Board submitted that, if instead we deal first with the allegations made by Patient B, we can use the findings in respect of the conduct towards her as highly probative propensity evidence in respect of the allegations made by Patient A.

3. For reasons which we have set out below, we have not been satisfied on the balance of probabilities that Patient A's account was accurate and reliable.  We therefore cannot use her evidence as propensity evidence in relation to the allegations regarding Patient B.

4. Likewise, we were not satisfied that Patient B's evidence was accurate and reliable.  Therefore, we cannot use her account as evidence that makes it more likely that Patient A's account was true.

Dr Arunkalaivanan's qualifications, training and experience

1. Before turning to consider the evidence in relation to the consultations with Patient A and Patient B, we will deal with the findings we make regarding Dr Arunkalaivanan's background, professional qualifications and experience.  In doing so, we note that his evidence as to these matters was largely unchallenged.

2. Without repeating all of the evidence regarding his qualifications and work history, we accept that the unchallenged evidence established that Dr Arunkalaivanan obtained a Bachelor of Medicine/Bachelor of Surgery from the University of Madras, India in 1988 and in 1993 obtained post-graduate qualifications in, among other things, Obstetrics and Gynaecology.  Between 1993 and 1995 Dr Arunkalaivanan worked in various positions in India.  He relocated to the United Kingdom in 1995.  Dr Arunkalaivanan worked as an obstetrician and gynaecologist in the UK from 1995 to 2013 when he relocated to Australia.  In 1996 he became a Member of the Royal College of Obstetricians and Gynaecologists, UK.  In 2009 he became a Fellow of the Royal College of Obstetricians and Gynaecologists, UK.  When he moved to Australia Dr Arunkalaivanan initially held honorary positions as a Senior Fellow in Obstetrics and Gynaecology at the University of Melbourne and as a teacher in obstetrics and gynaecology at Goulbourn Valley Health between February 2013 and 30 November 2014.  Dr Arunkalaivanan moved to Perth in December 2014 and was granted limited registration as a specialist medical practitioner in the speciality of obstetrics and gynaecology.  His registration was subject to the condition that he undertake education in relation to the Code, including the 2011 Guidelines.  That condition was lifted in early March 2015 after Dr Arunkalaivanan satisfied the Board that he had complied with the education condition.

3. Dr Arunkalaivanan became a Fellow of the Royal Australian and New Zealand College of Obstetricians and Gynaecologists in 2015.  He has worked as a Consultant Obstetrician and Gynaecologist in both the public and private health systems in Australia.  He began work at Fiona Stanley Hospital in Murdoch upon being granted limited registration.  He continued in that role until 21 September 2015.  His evidence was also that between 1 October 2015 and 26 June 2019, he worked at Waikiki Private Hospital.  Between 1 September 2016 and 10 December 2019, he worked at the Perth Specialist Centre.  Between 1 July 2018 and 26 June 2019, he worked at the Maddington Specialist Centre and between 1 February 2019 and 10 December 2019, he worked at the Rockingham Women's Health Centre.

4. The evidence also established that Dr Arunkalaivanan has held numerous teaching positions in Australia and the UK.  He has authored and co­authored over 30 publications in peer reviewed journals on subjects related to his field of specialty.  Since 2005, Dr Arunkalaivanan has been an editorial Board Member of the European Journal of Obstetrics and Gynaecology and Reproductive Biology.  Between 2007 and 2009 Dr Arunkalaivanan was the Editor of the European Journal of Obstetrics and Gynaecology and Reproductive Biology.

5. We also accept his evidence and find that before being suspended in December 2019, Dr Arunkalaivanan was seeing approximately 30 - 38 patients per week and that approximately 75% - 80% of patients referred to him required surgical examination or treatment.  The most common examinations he performs include abdominal, speculum and bimanual pelvic examinations.  We accept his evidence that when it was clinically indicated, he would also perform rectal and breast examinations.

6. As will already be apparent, in 2013 Dr Arunkalaivanan was disciplined in the UK for inappropriately carrying out a breast examination.  His evidence, which we accept, was that after the allegations were made and before the High Court determined the appeal in April 2014, he did some professional development with Dr Jenny Williamson, Associate Specialist - Breast Surgery, City Hospital.  That included training in how to conduct clinical breast examinations, how to interpret mammographic findings and the role of the Triple Assessment and Rapid Access Breast Clinic and Screening.  We have come to the view that Dr Arunkalaivanan overstated the position when he referred to this day as 'a course in conducting clinical breast examinations' in his witness statement.[37]  It was apparent to us from the letter from Dr Williamson[38] that rather than a 'course', what Dr Arunkalaivanan did was accompany Dr Williamson in the Rapid Access Breast Clinic for a day in order to be 'updated and to gain additional experience in clinical breast examinations'.  We are satisfied however, that whether described as a course or not, the time spent with Dr Williamson would have been for the purpose she described and that at that time he would have observed one of the accepted ways of performing clinical breast examinations.

   [37] Witness Statement of Dr Angamuthu Shenbagavalli Arunkalaivanan dated 17 November 2020 (Exhibit 4), page 10, para 43.

   [38] Exhibit 4, page 74.

7. From his evidence we are satisfied that Dr Aunkalaivanan is a very well qualified and experienced gynaecologist and obstetrician whose practice primarily focused on gynaecology and who has significant experience in evaluating and treating all aspects of gynaecological referral from general practitioners including urinary incontinence, pelvic organ prolapse, chronic pelvic pain, abnormal pap smears, heavy periods, vulva disorders and pudendal neuralgia.

8. We also find that by the time Patient A consulted Dr Arunkalaivanan, he was aware of how to conduct an appropriate clinical breast examination.

Credibility of Ms Verma and Ms Trimby

1. Before coming to the evidence of the principal witnesses in this matter, Patient A and Patient B, we will record our findings in respect of the credibility of:

   (1)Ms Verma, the receptionist who acted as Dr Arunkalaivanan's chaperone at the Maddington Specialist Centre, who Dr Arunkalaivanan says was the chaperone who observed his examination of Patient A;

   (2)Ms Trimby, who was the Board approved practice monitor who says (as does Dr Arunkalaivanan and Patient B herself) that she was present at the time of Patient B's consultation with Dr Arunkalaivanan; and

   (3)Dr Arunkalaivanan.

Twinkle Verma

1. Ms Verma worked part-time as a receptionist at the Maddington Specialist Centre from early in the second half of 2018[39] until June 2019.  Her evidence in chief was primarily given in two witness statements dated 10 June 2019 and 16 July 2020 which were tendered in evidence.[40]

   [39] Witness statement of 10 June 2019 (Exhibit 3) says she commenced in June 2018 but in evidence (ts 32, 12 February 2021) she said she commenced in August.  Nothing turns on the matter.

   [40] Exhibit 3, pages 29 ­ 34.

2. We find that Ms Verma was a witness who gave her oral evidence in a straightforward and honest way.  She acknowledged that she could not specifically recall Patient A's attendance at the Maddington Medical Centre and therefore could not say for certain that she acted as a chaperone while Dr Arunkalaivanan examined Patient A.   She was frank with us that her evidence was based on having reviewed Dr Arunkalaivanan's notes about Patient A's consultation and also on what she recalled to be the usual practice which was employed when Dr Arunkalaivanan was meeting a new patient at the Maddington Specialist Centre, as Patient A was.

1. We accept that her evidence was honest, accurate and reliable although, as will be seen later in these reasons, it assists very little in the resolution of the Board's allegations concerning his conduct during his consultation with Patient A.

2. Ms Verma gave evidence that it was Dr Arunkalaivanan's standard practice to have a chaperone present on occasions when he conducted an examination of a patient and that part of her duties included acting as a chaperone for Dr Arunkalaivanan.  She said she would act as chaperone whenever Dr Arunkalaivanan asked her to do so.  Her evidence was that Dr Arunkalaivanan would request her presence by telephoning her on the intercom from his consultation room.  She said she had never refused a request to attend to act as chaperone and would never have done so.

3. In her statement of 10 June 2019 Ms Verma said she may have acted as a chaperone for Patient A's medical examination.  She thinks this may have been the case because she has seen that Dr Arunkalaivanan's medical notes record that Patient A was examined with consent and a chaperone.  In cross-examination Ms Verma accepted that she now has no independent recollection of Patient A's attendance on and consultation with Dr Arunkalaivanan.[41]

   [41] ts 36, 12 February 2021.

4. In her statement of 16 July 2020 Ms Verma's evidence was that she has never checked Dr Arunkalaivanan's notes to ascertain whether he had ever conducted an examination without a chaperone.[42]  She said she had not done so because she has no reason to check his notes and regarded them as confidential between Dr Arunkalaivanan and the patient  concerned.[43]

   [42] Exhibit 3, page 33, para 8.

   [43] Exhibit 3, page 22, para 8.

5. Her evidence was that she did not recall Dr Arunkalaivanan ever performing a breast examination while she was present as a chaperone.  She accepted that it might have happened and she may have just forgotten about it.  In cross-examination she accepted that apart from intimate examinations, she could not recall any other types of examinations that Dr Arunkalaivanan had conducted in her presence on any patient.

6. Ms Verma's evidence was that most consultations with a new patient would involve Dr Arunkalaivanan conducting an intimate exam, which was the term she used to describe an examination of a patient's vagina.

7. She accepted that it was possible that she had forgotten that Dr Arunkalaivanan had examined Patient A's breasts.

8. Ms Verma's evidence was that she has no recollection of Patient A being distressed or angry after her consultation with Dr Arunkalaivanan.  Her evidence was that she would have recalled a patient becoming distressed or angry in the course of, or following, a consultation.  Implicit in that statement is an inference that Patient A was not distressed or angry at the end of her consultation with Dr Arunkalaivanan because if she had been, Ms Verma would remember.

9. Her evidence was that she did not recall anything unusual occurring on the day Patient A attended the clinic for her appointment.

10. Ms Verma accepted in cross-examination that there may have been cases where a new patient attended to see Dr Arunkalaivanan where she was not called in to act as chaperone.  She said there would have been cases where no intimate exam was performed.

11. Her evidence was that she could not recall an occasion when Dr Arunkalaivanan acted in a way that was out of the ordinary towards a patient.  She never saw Dr Arunkalaivanan with an erect penis under his trousers.

12. In re-examination Ms Verma was asked to describe where she stood in relation to Dr Arunkalaivanan and a patient when he was performing an intimate examination at which she was present as a chaperone.  Her evidence was that she stood to the right of the examination bed (which was up against a wall) and a bit behind Dr Arunkalaivanan.  She said that if Dr Arunkalaivanan was not standing at the foot of the bed she would be able to see the upper half of the body of a patient who was lying on the examination bed but she accepted that if Dr Arunkalaivanan was standing at the foot of the bed she could not see 'much' or would be able to see 'nothing at all'.[44]  She also gave evidence that the room was small and when the curtain was closed there was not enough space for her to see.[45]

Jacqueline Trimby

[44] ts 42 ­ 43, 12 February 2021.

[45] ts 44, 12 February 2021.

1. Ms Trimby is a registered nurse who was the Board's approved practice monitor employed by Dr Arunkalaivanan to observe the entirety of his consultations after the condition requiring a practice monitor to do so was placed on his registration on 27 June 2019.

2. Her evidence was that although she did not have a specific recollection of Dr Arunkalaivanan's examination of Patient B, she would have been present for the entirety of the consultation, she would have seen if Patient B had jumped from the bed or made any movements to indicate that she found the vaginal examination to be painful and that she rejected Patient B's account of the examination.

3. We find Ms Trimby to have been a most impressive and compelling witness.  We have no doubt that she was telling the truth when she said that she regarded her role as practice monitor in part to be to protect Dr Arunkalaivanan's patients, given there had already been allegations of misconduct made against him and, in part, to be to protect Dr Arunkalaivanan from any false allegations that might have been made by patients.  We also have no doubt that she was truthful when she denied that her evidence that she observed the entire consultation with Patient B was motivated by a realisation that if we were to find that the incident occurred, she would be found to have been derelict in her duty as practice monitor.  We believed her when she gave evidence that she had left other jobs after speaking out about things which she regarded to be wrong.  We also believed her when she said that her evidence was not coloured by fear of losing her job even though she was still employed in the practice by Dr Arunkalaivanan's wife.

4. We also find that Ms Trimby had a very good recollection of the way in which she worked at the Rockingham Women's Health Centre although she did not recall Patient B's actual consultation and examination.

Dr Arunkalaivanan

1. Dr Arunkalaivanan gave evidence that he had no actual recollection of his consultation and examination of either Patient A or Patient B.  He said this was because they took place quite some time ago and were uneventful.[46]  His evidence was that he would recall a consultation with a patient that was unusual or eventful but not one that was not.  He therefore says there would have been nothing unusual about his consultations with Patient A and Patient B.

   [46] ts 432, 22 March 2021.

2. There was nothing about Dr Arunkalaivanan's evidence that caused us to have any concerns about his honesty.  However, we acknowledge that the way in which a witness gives evidence can be a poor indicator of truthfulness and where possible, it is better to rely on contemporaneous materials, objectively established facts and the apparent logic of events.[47]

   [47] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [30] ­ [31] (Gleeson CJ, Gummow and Kirby JJ).

3. Dr Arunkalaivanan said that his evidence about his consultation with each of Patient A and Patient B was based on a review of his notes in relation to each complainant and upon his usual practice.  His notes record that each Patient A and Patient B were examined in the presence of a chaperone and with consent.[48]

   [48] Exhibit 4, page 27 and 45.

4. Dr Arunkalaivanan gave evidence that his examination of each of Patient B and Patient A were proper medical examinations and were not sexually motivated in any way.  He denied acting in the way in which each complainant said he did.

5. His evidence was that his experience in the UK (where he was found to have performed a breast examination in a way that was clinically unacceptable and described as clumsy and inappropriate but not sexually motivated, albeit that the patient was left feeling that it was sexually motivated) had been a salutary lesson for him.  His evidence was that since that time he has always had a chaperone present when he performs an intimate examination on a patient.  Indeed, he said that at the time he saw each of Patient A and Patient B he thought that this was a legal requirement in Australia, as it was in the United Kingdom.[49]

   [49] ts 346, 22 March 2021.

6. Dr Arunkalaivanan gave his evidence in a confident and forthright manner.

7. At times during cross-examination he became frustrated, defensive and impatient with the Board's counsel.  We consider that response was understandable in the circumstances he was facing and the matters which were being put to him at the time.  For example, it was put to him that the textbook, ABC of Breast Diseases, to which he referred in his evidence to support his position that the breast examination he conducted on Patient A was orthodox, was written for breast physicians, not gynaecologists.  The inference from that question being, it seemed to us, as it did to Dr Arunkalaivanan, either that he was lying that he had read it or that it was somehow inappropriate for him to have done so.  He became frustrated at the question and the inference that came with it.  We accept his evidence that he read it and can see no justifiable criticism to be levelled at him for doing so.  We do not regard his occasional infelicitous response to questions asked in cross­examination to be unusual in the circumstances of this case and we draw no adverse conclusions against him from them.

8. Dr Arunkalaivanan's notes were consistent with his oral evidence.

9. Our view of Dr Arunkalaivanan's credibility is reinforced by the fact that his evidence in relation to the examination of Patient A was consistent with that given by the chaperone Ms Trimby, whose evidence we have accepted for the reasons we have already set out above.

Evidence and findings in relation to the allegations made concerning Patient A

1. For the reasons which follow, the Tribunal is not persuaded, even to the civil standard, that Patient A's account of what occurred to her during her visit to Dr Arunkalaivanan on 1 November 2018 is honest, accurate and reliable.

2. First, while Patient A gave evidence that she was able to recall the specific consultation with Dr Arunkalaivanan and what occurred at that time, she had difficulty in recalling details of another medical examination which she had at around the same time.  That caused us to have concerns about the genuineness of her recollection and her memory.  Specifically, Patient A said in cross-examination that she had no recollection of ever declining a speculum or vaginal examination in the days before her appointment with Dr Arunkalaivanan.[50]  In fact, in evidence she said she did not recall attending King Edward Memorial Hospital 10 days or so before seeing Dr Arunkalaivanan.[51] Ultimately she gave evidence that she recalled going to the hospital but not the date.[52]  She said she was unable to recall ever inserting a speculum into her own vagina but the hospital records from 19 October 2018 record that she inserted first a blue speculum, which she was unable to tolerate, and subsequently a green speculum.[53]

   [50] ts 141, 15 February 2021.

   [51] ts 142, 15 February 2021.

   [52] ts 143, 15 February 2021.

   [53] Supplementary Book of Documents (Exhibit 7), pages 243 ­ 244.

3. Second, her account of what occurred during the consultation changed in a significant respect between the making of her first and second witness statements.[54]  It is notable that Patient A's second statement was provided after Patient A and her wife had, through Google searches, found and had regard to information from a newspaper report (Daily Mail Online[55]) which related to a breast examination performed by Dr Arunkalaivanan on the English patient in which it was reported that Dr Arunkalaivanan had told the English patient, 'this is how we do it in India' in response to her complaint about the breast examination.  In Patient A's second witness statement she states that she challenged Dr Arunkalaivanan about his examination of her breasts telling him she was uncomfortable with the examination to which she said that he responded 'That's how we do it in India'.[56] That is, her evidence in that second statement is that he used the exact words recounted as having been used by Dr Arunkalaivanan in the newspaper article which she had read between writing her first and second statements.

   [54] Exhibit 3, Witness Statements of Patient A dated 11 March 2019 and 12 June 2019.

   [55] Copy of Daily Mail article headlined "Gynaecologist told patient 'this is how we do it in India' during inappropriate breast examination": (Exhibit 9).

   [56] Exhibit 3, witness statement of Patient A dated 12 June 2019, para 37.

4. In cross-examination when she was asked about the possibility that she included that information in the second statement after seeing the account in the newspaper, Patient A accepted that she had seen the newspaper account before making the second statement but maintained that she recalled that those were the words that Dr Arunkalaivanan said to her when she challenged him.[57]

   [57] ts 151 and 154 ­ 155, 15 February 2021.

5. Dr Arunkalaivanan submitted, and we accept, that this additional information being provided in the second witness statement and the use of the very same words as those which were attributed to Dr Arunkalaivanan in the newspaper article which Patient A had read by the time the second account was given, suggest that Patient A's account is not reliable.

6. Third, Patient A's evidence was that she did not tell Dr Arunkalaivanan in the course of the consultation that she was experiencing breast pain because she was not experiencing any breast pain.  Indeed, her evidence was that she had never reported to any doctor that she was experiencing breast pain.  That evidence is inconsistent with the following evidence before us:

   1.Dr Arunkalaivanan's notes, which record that Patient A mentioned in the course of the consultation that she was experiencing breast pain;[58]

   2.Dr Arunkalaivanan's oral evidence, which was that Patient A had reported to him that she had been experiencing breast pain;[59]

   3.Patient A's other medical records, which reveal that several doctors have noted that Patient A reported experiencing right breast pain to them in the course of consultations with them;[60] and

   4.Patient A's medical records, which reveal that Patient A had an ultrasound of her right breast in January 2017.[61]

   [58] Exhibit 1, page 4.

   [59] ts 357, 22 March 2021.

   [60] Exhibit 7, pages 5 and 25.

   [61] Exhibit 7, page 25.

7. Patient A's explanation for her failure to recall that she had had an ultrasound on her breast in January 2017 and returned to her doctor two days later to be informed of the result was:

   I was going through a lot of stuff. Like, how do you say hard (indistinct) so I was going through court and all the stuff. I don't remember.[62]

   [62] ts 133 ­ 134, 15 February 2021.

8. While we accept that a person might be unable to recall specific details of particular medical appointments as a result of the passage of time (for example, the name of doctors she saw at particular times or perhaps even which breast had been the subject of an ultrasound examination or because they had a lot of other matters on their mind at the time), we think it is implausible that Patient A would not recall even having raised with any doctor that she had experienced breast pain, let alone that she had had an ultrasound of her breast.

9. Fourthly, because other aspects of her oral evidence are inconsistent with written records, we have real concerns about the honesty, accuracy and reliability of her evidence as to the manner in which the breast 'examination' was performed by Dr Arunkalaivanan.  By way of example we refer to:

   a.Patient A's evidence that she could not recall ever having refused a vaginal examination.[63]  Records from King Edward Memorial Hospital that that Patient A refused a vaginal or speculum examination on 9 May 2017,[64] 10 May 2017,[65] 12 May 2017[66] and 19 October 2018[67] despite attending the emergency department at KEMH on those occasions complaining of pain and a vaginal examination having being recommended on each occasion as a result.  Indeed, the notes of the attendance on 19 October 2018 record 'blue speculum was inserted by the patient and not tolerated, replaced with green speculum inserted by patient and tolerated however unable to open spec due to patient discomfort; and

   b.Patient A's evidence that she did not remove her own Mirena instead of having it removed by medical staff at King Edward Memorial Hospital.  That evidence is contradicted by the medical records which state that on 13 May 2017 an attempt was made to remove the Mirena however the patient became distressed and did not tolerate the speculum examination and ultimately stated:

   Mirena removed by pt herself with assistance from MW.  Mirena visualised by staff.[68]

   [63] ts 141 ­ 142, 15 February 2021.

   [64] Exhibit 7, page 220.

   [65] Exhibit 7, page 220.

   [66] Exhibit 7, page 230 and Exhibit 7, page 221.

   [67] Exhibit 7, pages 243 ­ 244.

   [68] Exhibit 7, page 223.

10. When the medical records about those matters were put to her, Patient A maintained her evidence that she did not remember any occasion where she removed her own Mirena or refused a vaginal examination or inserted a speculum into her own vagina rather than allow medical staff to do so.[69]

    [69] ts pages 143 ­ 145, 15 February 2021.

11. We accept that the medical records are an accurate record of the events to which they relate.  They were written by independent third parties about matters unrelated to these events prior to Patient A's consultation with Dr Arunkalaivanan and the accuracy of their contents was not challenged by the Board.  From those records we find that Patient A did in fact refuse vaginal examinations and remove her own Mirena on occasions which preceded her consultation with Dr Arunkalaivanan.

12. We find that Patient A's denial of any recall of those occasions, and in particular the removal of her own Mirena, is inherently implausible.  We find it unlikely that she would honestly be unable to recall any of these events and yet have an accurate recall of the details of her consultation with Dr Arunkalaivanan.  As a result of this evidence we have real doubts about the honesty, accuracy and reliability of Patient A's evidence more generally.

13. Fifthly, Patient A's evidence was that the breast examination left her feeling dirty, such that after it had taken place she refused to have Dr Arunkalaivanan perform the vaginal examination she had been expecting and thereafter left the clinic.  Dr Arunkalaivanan's evidence was that his notes record that Patient A declined the vaginal examination but consented to the breast examination before either examination was performed.  He said that although he did not recall the consultation with Patient A, his notes would be accurate.  In light of our finding that Patient A had refused vaginal examinations on earlier occasions and in light of Dr Arunkalaivanan's evidence that his notes record Patient A refused the vaginal examination before any examination of her breasts had taken place, we are not satisfied on the balance of probabilities that her evidence on that issue was honest, accurate and reliable.

14. Sixthly, Patient A's account of requesting a chaperone and what happened thereafter is directly contradicted by Dr Arunkalaivanan who we find to have been an honest and compelling witness.  Even if we had not believed Dr Arunkalaivanan and had put his evidence to one side we would not be satisfied, based on the concerns we have identified about the honesty, accuracy and reliability of Patient A's evidence, that the Board has established on the balance of probabilities that Dr Arunkalaivanan touched her breasts in the way she alleges that he did.

15. Seventhly, we are not satisfied to the requisite standard that Patient A's evidence that she felt Dr Arunkalaivanan's erect penis against her leg while he was squeezing her breasts is reliable.  In cross­examination, Patient A accepted the possibility that what she felt against her leg while the breast examination took place could have been something other than Dr Arunkalaivanan's penis, although she ultimately maintained that she thought it was his penis.  In cross­examination the following exchange took place:[70]

    [70] ts 182 ­ 183, 15 February 2021.

    So all I'm asking you is do you accept the possibility that what you felt was not his penis?---It's not a key. It's not. There was – if there was a key it will be something like a – you can notice difference, yeah.

    And what I secondly want to suggest is you wouldn't have been able to tell one way or the other whether he did have an erection from looking?­­­Well, I think there's something there.  It's like ­ ­ ­

    What could you see?---He was standing.

    Yes?---And from his stance he was (indistinct) you can see something there. I don't know what it was.

    What do you mean something?---I don't know what it was. It could be his penis. It was erect, yes. It had to be that because what else could be in that area?

    Patient A, you just said then "I didn't know what it was.'' Do you agree with me you didn't know what it was?---No, it was his penis.

    How did you know that?---What else could it be? A key, a pen? There's no way the phones are in this side. This part, it was used for the phone.

    What was he wearing on his bottom half?---I don't recall what he was wearing - - -

    Well - - -? ­­­ ­ ­ ­ but he was – obviously you can see what

    ­ ­ ­

    No, no, no, just - do you remember what he was actually wearing on his bottom half?­­­I don't recall.

    Do you know if he was wearing jeans?­­­I don't recall.

    But if you saw – or did you say you saw the lump in his pants?­­­It was something showing up in his pants.

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   18 NOVEMBER 2022

FILE NO/S:   VR 71 of 2020

BETWEEN:   MEDICAL BOARD OF AUSTRALIA

Applicant

AND

ANGAMUTHU ARUNKALAIVANAN

Respondent

Catchwords:

Applicant's disciplinary proceedings brought against respondent dismissed - Costs orders sought by respondent - Whether costs should be awarded against vocational regulatory body

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 193(1), s 195
State Administrative Tribunal Act 2004 (WA), s 60(2), s 87, s 87(1), s 87(2), s 87(4), s 89

Result:

Respondent's application for costs dismissed

Category:    B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Minter Ellison
Respondent	:	Panetta McGrath Lawyers

Case(s) referred to in decision(s):

Medical Board of Australia and Arunkalaivanan [2021] WASAT 127

Medical Board of Australia and McCarthy [2020] WASAT 12 (S)

Medical Board of Australia and Teasdale [2012] WASAT 62 (S).

Motor Vehicle Industry Board and Dawson [2006] WASAT 8

Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S)

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

Young v Legal Profession Complaints Committee [2022] WASCA 52

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction and outcome

1. On 23 September 2021, we determined that the applicant had not proved to the requisite standard the allegations it had brought against the respondent.[112]  Accordingly, we dismissed the application.

   [112] Medical Board of Australia and Arunkalaivanan [2021] WASAT 127.

2. The respondent now seeks an order that the applicant pay his costs of that application.  The costs order is opposed by the applicant.

3. The parties filed submissions in support of their respective positions and sought an oral hearing in relation to the issue. We determined that we could deal with the costs application on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

4. For the reasons which follow, we have concluded that no costs orders should be made.

The jurisdiction to award costs

1. The starting point for consideration of the application for costs is s 87 of the SAT Act. That section provides as follows:

   87.Costs of parties and others

   (1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

   (2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.

   (3)The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.

   (4)Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal's review jurisdiction, the Tribunal is to have regard to —

   (a)whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;

   (b)whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.

   (5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.

   (6)The Tribunal may order that the representative of a party, rather than the party, in the representative's own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.

2. Section 89 of the SAT Act provides that costs that have been ordered by the Tribunal but not fixed are to be assessed or settled in accordance with the rules.

3. In this case, the enabling Act referred to in s 87(1) of the SAT Act is the Health Practitioner Regulation National Law (WA) Act 2010 (WA) and the Health Practitioner National Law which is scheduled to that Act (National Law). Section 195 of the National Law provides that the Tribunal may make any order about costs it considers appropriate for the proceedings.

4. In Young v Legal Profession Complaints Committee[113] (Young), Buss P[114] (with Quinlan CJ and Beech JA agreeing) recently approved of statements made about the Tribunal's discretion to award costs by Murphy JA (with which Corboy J agreed) in Western Australian Planning Commission v Questdale Holdings Pty Ltd[115] (Questdale).  Although made in the context of disciplinary proceedings against a legal practitioner, we consider that they are apposite in these proceedings.  Those statements included that the Tribunal’s discretion to award costs must be exercised if it is fair and reasonable in all of the circumstances; that the purpose of a costs order is not to punish the person against whom it is made, but to compensate the person in whose favour it is made; and that the onus lies on the party seeking an order in its favour to satisfy the Tribunal that it is fair and reasonable that it should be reimbursed for the costs it incurred.[116]

   [113] Young v Legal Profession Complaints Committee [2022] WASCA 52.

   [114] Young at [259].

   [115] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 at [46]­[51].

   [116] Questdale at [49]-[57].

5. The established practice in the Tribunal in relation to costs in vocational disciplinary matters is to award costs to a successful vocational regulatory authority.[117]  The reasoning behind the general position was explained in Medical Board of Australia and McCarthy[118] where the Tribunal stated:

   The Tribunal's established practice in relation to the exercise of its discretion as to costs under s 87(2) of the SAT Act in vocational disciplinary proceedings is that a successful application by a vocational regulatory body, such as the Board, will usually result in an order for costs being made in favour of the vocational regulatory authority; Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman) at [30], referred to with approval in Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 at [35]. As the Tribunal said in Roberman, the policy basis is that vocational regulatory bodies 'perform a function which promotes the public interest, and usually with limited resources', and '[t]he financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented'.

   There is, however, no presumption that a disciplinary body will always be awarded costs if successful.  Each case must be considered individually on its merits. 

   [117] Young at [42] (Quinlan CJ and Beech JA) and at [261] (Buss P).

   [118] Medical Board of Australia and McCarthy [2020] WASAT 12 (S) at [89]­[90].

1. Of course, in this case, the applicant was entirely unsuccessful in its disciplinary action against the respondent.

2. The policy underpinning the established practice of awarding costs where a vocational regulatory body is successful in disciplinary proceedings is also relevant in determining costs where such a body is unsuccessful.  That is, if a vocational regulatory body were to be routinely ordered to pay costs of unsuccessful proceedings, the financial burden involved might deter it from bringing proceedings in all but the most obvious of cases, thereby undermining its important public function.  Of course, the caveat that each case must be considered on its merits to determine what is just and reasonable is also applicable.

3. These policy considerations have led to a well-established position that unless it can be established that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against it.[119]

   [119] Motor Vehicle Industry Board and Dawson [2006] WASAT 8 at [43] and [47]­[48].

4. In Medical Board of Australia and Teasdale[120] (Teasdale), Chaney P explained what might constitute unreasonable conduct on the part of regulatory body.  He said:[121]

   It is necessary that a vocational regulatory body continually review and assess its allegations, in the case which it is to present, during the currency of proceedings before the Tribunal.  The process of mediation which the Tribunal usually undertakes … often throws light on the issues in a way which calls for critical review by both parties as to their respective positions.  There will be cases, however, where it is necessary for a hearing to take place before final conclusions can be drawn on the evidence.  Depending on the nature of the allegations, there will be cases where it is in the public interest for the issues to be fully ventilated at a hearing rather than simply abandoned by a vocational regulatory body because, depending on how the evidence emerges, the allegations might be dismissed at hearing.

   It needs also to be recognised that, in a practical context, any critical review of the evidence by the Board, or those advising it, will lack the benefit of a full testing of all of the evidence which is achieved by a hearing.  

Consideration of whether to award costs in this case

[120] Medical Board of Australia and Teasdale [2012] WASAT 62 (S).

[121] Teasdale at [23]­[24].

1. The respondent points to a number of discretionary considerations which, he submits, support an order for costs in his favour being made.  They are said to be:

   1.whether the applicant genuinely attempted to make a decision on its merits;

   2.whether the applicant unreasonably prolonged the hearing of the matter;

   3.whether the applicant conducted itself unreasonably and inappropriately in its conduct of the proceedings in a manner which increases the costs to the respondent;

   4.whether the applicant maintained a position that was without merit;

   5.whether the party seeking costs suffered other expense, loss, inconvenience or embarrassment resulting from the proceedings or the matter because of which the proceedings were brought; and

   6.the nature of the matters, its complexity, its importance, urgency and the amount of time and effort required to properly prepare and present the case. 

2. In support of the submissions that the discretionary consideration identified at point 1 in [14] above is relevant in determining this costs application, the respondent referred to s 87(4) of the SAT Act. By its terms, s 87(4) applies where the Tribunal is exercising its review jurisdiction. In support of the submissions that the discretionary considerations identified at points 3 and 4 in [14] above are relevant in determining this costs application, the respondent referred to Ransberg Pty Ltd and City of Bayswater[122] (Ransberg).  That case concerned considerations relevant to the determination of costs applications in matters within the Tribunal's review jurisdiction.  In determining a disciplinary matter of the kind in this case, the Tribunal is not exercising its review jurisdiction[123] and, therefore, reliance on s 87(4) of the SAT Act and the criteria identified in Ransberg is misplaced.

   [122] Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S).

   [123] Acknowledging that certain applications made to the Tribunal under the National Law may involve the exercise of its review jurisdiction. For example, a review of a decision of the Medical Board of Australia to take immediate action would be a matter within the Tribunal's review jurisdiction.

3. Nevertheless, in accordance with the position we have identified at [12], whether the applicant has brought a claim that had no merit, or maintained a position that had no merit, or acted unreasonably with the result that the hearing of the matter was prolonged, or has otherwise acted unreasonably in a way that has increased the respondent's costs, are matters to which we should have regard in determining the costs application. 

4. The respondent submits that the conduct of the applicant in this proceeding justifies the making of a costs order in this case.

5. The respondent essentially particularises that submission in the following way:

   1.The complainants' evidence was so unreliable that the proceedings should never have been brought by the applicant.

   2.Alternatively, after the complainants had given their evidence, the applicant, appreciating that the evidence was so unreliable, should have discontinued the proceedings rather than putting the respondent to the cost of continuing to defend it.

   3.The applicant's application for leave to adduce new evidence, which was largely refused by the Tribunal, unreasonably and unnecessarily caused the respondent to incur the costs associated with opposing the application.

   4.The filing of supplementary closing submissions late and the inclusion of matters not within the ambit of the purpose for which leave to file the supplementary closing submissions was given, justifies the award of costs to the respondent.

6. We will deal with each of those matters in turn below.

The assertion that the proceedings lacked merit and should not have been commenced or should not have been continued after the complainants' evidence

1. The applicant submits that it has no discretion to elect when to refer a matter to the Tribunal. It says that it must refer a matter to the Tribunal when the statutory requirements of s 193(1) of the National Law are met. That section provides:

   193.Matters to be referred to responsible tribunal

   (1)A National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if —

   (a)for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason —

   (i)the practitioner has behaved in a way that constitutes professional misconduct; or

   (ii)the practitioner's registration was improperly obtained because the practitioner or someone else gave the Board information or a document that was false or misleading in a material particular;

   or

   (b)for a registered health practitioner or student, a panel established by the Board requires the Board to refer the matter to a responsible tribunal.

2. While we are not undertaking a review of the applicant's decision to refer the matter, in determining the respondent's costs application we regard the conduct of the disciplinary body in the course of the proceedings, including referring the allegations to the Tribunal, to be relevant to the issue of whether departure from the usual position as to costs is justified. 

3. Our decision to dismiss the applicant's application turned largely on our finding that we could not be satisfied that any allegation made against the respondent had been made out to the requisite standard.  In very large part, that was because we were not satisfied that the evidence of either complainant was honest, accurate and reliable.

4. Despite that, we do not consider that the applicant was unjustified in bringing the proceedings or that the proceedings lacked merit.  In circumstances where:

   a)the applicant has had conferred upon it the important public function of regulating the medical profession for the benefit of the public so as to ensure that the high standards of conduct which are expected of medical practitioners are maintained; and

   b)the applicant had before it two allegations made by unrelated complainants of the respondent engaging in inappropriate conduct during the course of medical examinations which, on their evidence, had a sexual component to it;

   c)each complainant had, at a very early opportunity, indicated to another that they were concerned about the examination;

   d)each complainant had made a signed statement or statements as to the way in which they were examined; and

   e)the respondent accepted that if the allegations were true, the conduct would amount to professional misconduct,[124]

   we do not accept that the Board was unjustified in bringing the proceedings.  In all of the circumstances, we consider that this case was the kind of case referred to in Teasdale, where very serious allegations needed to be resolved following the consideration of all of the relevant evidence led at the hearing.

   [124] ts 20, 12 February 2021.

5. The respondent submits that following the cross-examination of the complainants (Patient A and Patient B), it should have been obvious to the applicant that its case would not succeed and that continuing the hearing beyond that point put the respondent to unnecessary costs.  On the second day of the hearing, following the completion of the complainants' evidence, the Tribunal invited the applicant to consider its position overnight.[125]  At that point, following cross-examination, it would have been obvious to the applicant that Patient A's and Patient B's credibility was seriously in issue.  However, the evidence had not concluded, and the applicant's position was that the evidence of each complainant (and other evidence still to be led) was similar fact or propensity evidence which, if accepted, may have bolstered the credibility of the other complainant.  Further, the applicant led other evidence it submitted had that same effect and endeavoured to lead further evidence for that purpose which was excluded on relevance and fairness grounds.  In our view, in the circumstances, it was not unreasonable for the applicant to continue with the proceedings after the completion of the complainants' evidence, particularly in light of its important public function. 

   [125] ts 197, 15 February 2021.

6. The fact that, in Patient B's case, the respondent's denial of the conduct was supported by the evidence of Ms Trimby does not of itself make it inappropriate for the applicant to have brought or maintained the allegations in respect of the respondent's examination of Patient B.  While the applicant called Ms Trimby in its own case, this did not mean that it had no basis for exploring with her whether:

   i)because she was at the time of Patient B's examination, and continued to be, an employee of the respondent's medical practice, she may have had a personal reason to support his position; and

   ii)her evidence may have been motivated by concern that her own professional competency was in issue if we were to find that the alleged conduct occurred because it would mean that she had not performed her role of practice monitor satisfactorily.  

7. These were matters which we consider were appropriate to be explored in evidence.

8. The respondent also submits that the applicant should not have proceeded with the allegations made in respect of Patient A because the evidence of Dr Mitchell, an expert it briefed but did not call in its own case,[126] did not support the allegations. 

   [126] Dr Mitchell gave expert evidence in the respondent's case.

9. Dr Mitchell's opinion was contingent upon certain factual assumptions, including that Patient A had complained of breast pain at the consultation and, importantly, that Patient A's breast examination had proceeded in the manner described by the respondent rather than in the manner described by Patient A.  We accept the applicant's submission that Dr Mitchell's evidence did not mean that the applicant's case would not succeed if Patient A's evidence was accepted by the Tribunal.  To the contrary, Dr Mitchell's evidence, which was to the effect that it was not unreasonable for a doctor in the respondent's position to perform a breast examination on a patient presenting and complaining of breast pain, was only relevant if the respondent's evidence that Patient A had complained of breast pain was accepted over Patient A's evidence that she had not. 

1. The applicant was not obliged to rely on Dr Mitchell's opinion.  There was nothing improper about the applicant seeking another expert opinion.  The applicant disclosed Dr Mitchell's report and the respondent relied upon both it and Dr Mitchell's oral evidence.  In our view, there was nothing in the applicant's conduct arising from Dr Mitchell's report for which it should be criticised. 

Other conduct of the applicant was unreasonable and prolonged the hearing of the matter and increased costs to the respondent

1. The respondent submits that the applicant's conduct, in essentially expanding its case in the middle of the hearing by seeking to rely on propensity reasoning, which:

   i)had not been particularised in the application; and

   ii)was not referred to in the applicant's written or oral openings; and

   iii)required it to seek leave to tender many additional documents that had not been in the applicant's bundle of documents which had been filed in the course of the preparation for the hearing,

   put the respondent to additional costs and embarrassed the respondent. 

2. The application to file additional documents was made on 16 February 2021. It was resolved by the Tribunal on 17 February 2021. It was said by the applicant at the time that the documents had only just come to the attention of the instructor at the applicant. While that may be the case, given the nature of the documents, they must have all been in the possession of the applicant well before 16 February 2021,[127] and the fact that they had only come to its solicitor's attention is not an answer to whether the applicant acted reasonably in seeking its tender when it did.

   [127] The documents for the most part were notifications made about other conduct of the respondent on earlier occasions or matters related to other earlier allegations made about the respondent.

3. While the issue arose late in the proceedings, the substance of the evidence which the applicant sought to lead as propensity evidence was within the respondent's own knowledge concerning, for the most part, other notifications which had been made about his conduct or reports of proceedings which had been brought against him in another jurisdiction.  The respondent's experienced counsel had no difficulty responding to the applicant's submissions about the purpose for which it sought to lead the evidence and did not require any adjournment of the hearing to deal with those documents.  The application did not prolong the hearing.  The evidence that was scheduled to be heard on 16 and 17 February 2021 was completed on those days.  As a result of determining that most of the proposed evidence was inadmissible, either because it was not relevant to the issues to be determined in the proceedings or because its admission at such a late stage would have been unfair to the respondent because it would have delayed the hearing, the need for any adjournment of the hearing to allow the respondent time to amend its witness statements to address that evidence was avoided.

The late provision of closing written submissions and the fact that they went beyond the scope of what was to be dealt with in them

1. On 23 March 2021, the Tribunal made orders permitting the applicant to make further oral submissions in response to those made by the respondent, confined to the issue of propensity evidence and factual errors which the applicant said had been made in the respondent's closing submissions.  The respondent was granted leave to file any submissions in reply.  The respondent submits that the fact that the applicant filed its supplementary closing submissions approximately one week late (after already having been granted an extension of time) and that the submissions went well beyond the scope of the matters the submissions were intended to deal with, is further justification for a costs order.  The respondent submits that the ongoing delay continued to cause him extreme stress and prejudice as his registration had, at that time, already been suspended for over 15 months.  While we accept that this extra delay will have caused the respondent stress, in the context of an application that was commenced on 31 August 2020, and having regard to the fact that even after the submissions had been exchanged the outcome would have been unknown for as long as it took us to publish our decision, we do not think the applicant's short delay in filing the additional submissions unduly or unreasonably delayed the resolution of the proceedings. 

2. Further, the fact that the submissions canvassed matters which were not within the scope of the leave given could not be said to have particularly burdened the respondent in the preparation of his reply.  Indeed, the respondent simply declined to make submissions in relation to those matters.

The practitioner's conduct

1. We accept the respondent's submission that there was nothing in his conduct that would disentitle him to an award of costs were we minded to have made one.  We do note, for the purposes of completeness, that the respondent was also late in complying with orders as to the filing of certain documents on one occasion in the course of preparation for the hearing.[128]

Conclusion

[128] The respondent was ordered on 14 September 2020 to file witness statements by 14 October 2020.  The respondent's statements were filed on 3 November 2020.

1. As we have set out above, we have concluded that there is nothing in the applicant's conduct of this matter that would justify departing from the usual position that the applicant is not ordered to pay costs in vocational regulatory proceedings of this kind.

2. We will make an order dismissing the respondent's costs application.

3. In accordance with these reasons, the Tribunal makes the following orders.

Orders

The Tribunal orders:

1.The costs application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MA
Associate to Judge Glancy

18 NOVEMBER 2022