Medical Board of Australia v Al-Naser (Occupational Discipline)

[2024] ACAT 7

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

MEDICAL BOARD OF AUSTRALIA v AL-NASER (Occupational Discipline) [2024] ACAT 7

OR 2/2022

Catchwords:               OCCUPATIONAL DISCIPLINE – application for disciplinary action – medical practitioner – section 193 of the Health Practitioner Regulation National Law (ACT) – whether professional misconduct is confirmed through clinical performance and professional boundaries towards patients – grounds of complaint are proved – decision on costs is reserved.

List of Legislation: ACT Civil and Administrative Tribunal Act 2008 ss 9, 39(2)

Health Practitioner Regulation National Law (ACT) ss 5, 193, 195, 196

List of Cases:              Al-Naser v Medical Board of Australia (No.2) (Occupational Discipline) [2019] ACAT 110

Briginshaw v Briginshaw (1938) 60 CLR 336
Council of the Law Society of the Australian Capital Territory v The Legal Practitioner (Stephen Stubbs) (occupational Discipline) [2010] ACAT 2
Medical board of Australia v Al-Naser (No.2) (Occupational discipline) [2019] ACAT 111
The Medical Board of Australia v Al-Naser (Occupational Discipline) [2019] ACAT 52

List of Text /Papers:   Good Medical Practice: A Code of Conduct for Doctors in Australia, 2010 and 2014 editions

Royal College of General Practitioners, Prescribing drugs of dependence in general practice, 2000 and 2015 editions
Medical Board of Australia, Sexual Boundaries: Guidelines for Doctors, 2011 edition
Medical Board of Australia, Guidelines: Sexual Boundaries in the Doctor-Patient Relationship, 2018 edition
Stewart F H et al, Clinical Breast and Pelvic Examination Requirements for Hormonal Contraception: Current Practice vs Evidence (2001) 285(17) JAMA, 2232

Tribunal:Senior Member Prof T Foley

Senior Member Dr R Davies

Date of Orders:  26 May 2023
Date of Reasons for Decision:         26 May 2023

AUSTRALIAN CAPITAL TERRITORY            )
CIVIL & ADMINISTRATIVE TRIBUNAL       )          OR 2/2022

BETWEEN:

MEDICAL BOARD OF AUSTRALIA

Applicant

AND:

NATHEM AL-NASER

Respondent

TRIBUNAL:Senior Member Prof T Foley

Senior Member Dr R Davies

DATE:26 May 2023

ORDER

1. The Tribunal finds Grounds 1-4 of Complaint in the Referral are proved.

2. The application is set down for further submissions on sanction for half a day on 9 June 2023 at 12.30pm, with liberty to apply regarding an alternative date and/or time.

3. The decision on costs is reserved.

4. Pursuant to section 39(2) of the ACT Civil and Administrative Tribunal Act 2008:

   (a)Unless by their consent, publication of the names or any identifying details of the applicant’s witnesses and matters contained in documents filed with the Tribunal or received in evidence that might enable the identification of any patient or lay witness giving evidence in this matter are prohibited from publication.

………………………………..

Senior Member Prof T Foley

For and on behalf of the Tribunal

REASONS FOR DECISION

1. The Medical Board of Australia (the applicant) has by application dated 30 March 2022 applied for disciplinary action in relation to Dr Nathem Al-Naser (the respondent/practitioner) pursuant to section 193(1)(a)(i) of the Health Practitioner Regulation National Law (ACT) (the National Law).

2. Jurisdiction to review the respondent’s decisions is conferred on the Tribunal by section 193 of the National Law which is an authorising law for the purposes of section 9 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). The review is an application for review by the ACT Civil and Administrative Tribunal pursuant to section 68 of the ACAT Act.

3. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the member who heard the application.

The hearing

1. The matter was heard on 5, 6, 8 and 9 December 2022. The Tribunal had before it the documents provide by the applicant on which its decision was based (the T Documents or T-Docs) and the various submissions of the parties. The applicant was represented by Ms P Bindon of counsel. The respondent was represented by Mr D Crowe of counsel.

2. The applicant gave evidence and called both lay and expert evidence. The applicant’s counsel made submissions and responded to questions of the Tribunal. The respondent called lay and expert evidence and its counsel made submissions and responded to questions of the Tribunal.

3. At the conclusion of the hearing, the Tribunal reserved its decision and indicated it would provide written reasons. These are those reasons.

Overview of the applications

1. The respondent gained his medical qualifications at Jordan University, moved to Australia in 1994, and obtained registration as a medical practitioner in 1995. He has practiced medicine in Australia for 25 years. He is the director of, and practices as a doctor at, the Condor Medical Centre and the Belconnen Medical Centre.

2. On 14 May 2019, the Australian Health Practitioner Regulation Agency (AHPRA) advised the respondent that it had received notifications made under the National Law with respect to his treatment of a Patient AC. These notifications form Grounds 1 and 2 of the disciplinary action brought in this matter.[1] On 23 May 2019, the respondent responded to the complaints and denied any wrongdoing.[2]

   [1] T19, T Documents

   [2] T14, T Documents, pages 299-304

3. On 27 May 2019, AHPRA advised the respondent that it held a reasonable belief that, because of his conduct, he posed a serious risk to persons and that it had made an Immediate Action Decision to impose conditions on his registration, inter alia, a gender-based restriction that the respondent not have contact with female patients.[3]

   [3] T21, T documents

4. The respondent appealed these conditions before the ACAT. The tribunal varied these conditions in its decision, Al-Naser v Medical Board of Australia (No.2) (Occupational Discipline) (the immediate action proceedings)[4]. As a consequence of this (and other disciplinary matters), the respondent’s registration to practice is now subject to a number of restrictions:

   (a)    That the respondent must not practice as a medical practitioner other than at the Conder and Belconnen locations (May 2019 to date).

   (b)That the respondent must not have any professional contact with female patients (May 2019 to date).

   (c)That the respondent’s clinical record keeping be subject to external audit on a six monthly basis for a two-year period (January 2021 – December 2022, and subject to renewal).[5]

   [4] [2019] ACAT 110

   [5] Medical board of Australia v Al-Naser (No.2) (Occupational discipline) [2019] ACAT 111

5. On 30 June 2020, AHPRA advised the respondent it had received a further notification made under the National Law with respect to his treatment of a Patient LB and was investigating his conduct.[6] This notification forms Grounds 3 and 4 of the disciplinary action brought in this matter. By letters dated 24 August 2020, 15 December 2020 and 10 September 2021, through his solicitors, the respondent responded to the complaint and denied any wrongdoing.[7]

   [6] T24, T Documents, pages 1190-1194. The notification provided to Associate Professor Teague in AHPRA’s briefing letter re LB (T16, T documents, pages 402-429) is dated 29 April 2020.

   [7] T27-T29, T Documents, pages 1210-1247

6. On 12 January 2022, AHPRA advised the respondent that it had made a decision to refer the complaint to the ACAT for hearing.[8]

   [8] T31, T -Documents

7. The application for disciplinary action arises from the applicant’s reasonable belief that the respondent has behaved in a way with respect to the above complaints that constitutes professional misconduct on four grounds:

   (a)Ground 1 – Clinical performance in relation to AC:

   (i)      During the relevant treatment period, the respondent failed to properly assess, diagnose and treat patient AC;

   (ii)     During consultations on 20 May 2010 and 3 July 2012, the respondent performed breast examinations on AC in a way that was inappropriate.

   (b)Ground 2 – Failure to maintain professional boundaries in the treatment of AC:

   (i)      In the relevant treatment period, and in the course of treating AC, the respondent made inappropriate physical contact with AC, and made inappropriate comments which were of a personal or sexual nature.

   (c)Ground 3 – Clinical performance in relation to LB:

   (i)      The respondent’s clinical performance in relation to LB in a consultation on 15 May 2004, which involved conduct of a breast examination in the context of LB requesting an oral contraceptive pill, was deficient in a number of respects.

   (d)Ground 4 – Failure to maintain professional boundaries in the treatment of LB:

   (i)      In the context of conducting the breast examination of LB during the consultation on 15 May 2004 the respondent commented to LB, “your boyfriend is very lucky”.

The relevant law

1. From the National Law the relevant definitions in section 5 provide:

   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.

   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—

   (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 that registers the practitioner;

   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.

2. Relevant provisions of the National Law relating to disciplinary proceedings are sections 193, 195 and 196, which provide:

   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)The National Board must—

   (a)refer the matter to—

   (i)the responsible tribunal for the participating jurisdiction in which the behaviour the subject of the matter occurred; or

   (ii)if the behaviour occurred in more than one jurisdiction, the responsible tribunal for the participating jurisdiction in which the practitioner’s principal place of practice is located; and

   (b)give written notice of the referral to the registered health practitioner or student to whom the matter relates.

   195Costs

   The responsible tribunal may make any order about costs it considers appropriate for the proceedings.

   196     Decision by responsible tribunal about registered health practitioner

   (1)After hearing a matter about a registered health practitioner, a responsible tribunal may decide—

   (a)the practitioner has no case to answer and 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; or

   (2)If a responsible tribunal makes a decision referred to in subsection (1) (b), the tribunal may decide to do one or more of the following—

   (a)caution or reprimand the practitioner;

   (b)impose a condition on the practitioner’s registration, including, for example—

   (i)a condition requiring the practitioner to complete specified further education or training, or to undergo counselling, within a specified period; or

   (ii)a condition requiring the practitioner to undertake a specified period of supervised practice; or

   (iii)a condition requiring the practitioner to do, or refrain from doing, something in connection with the practitioner’s practice; or

   (iv)a condition requiring the practitioner to manage the practitioner’s practice in a specified way; or

   (v)a condition requiring the practitioner to report to a specified person at specified times about the practitioner’s practice; or

   (vi)a condition requiring the practitioner not to employ, engage or recommend a specified person, or class of persons,

   (c)require the practitioner to pay a fine of not more than $30,000 to the National Board that registers the practitioner;

   (d)suspend the practitioner’s registration for a specified period;

   (e)cancel the practitioner’s registration.

   (3)If the responsible tribunal decides to impose a condition on the practitioner’s registration, the tribunal must also decide a review period for the condition.

   (4)If the tribunal decides to cancel a person’s registration under this Law or the person does not hold registration under this Law, the tribunal may also decide to—

   (a)disqualify the person from applying for registration as a registered health practitioner for a specified period; or

   (b)prohibit the person, either permanently or for a stated period, from doing either or both of the following—

   (i)providing any health service or a specified health service;

   (ii)using any title or a specified title.

3. During the relevant treatment periods, the following codes and guidelines developed by the applicant under section 39 of the National Law applied to the respondent and his provision of medical care. Section 41 provides that a code or guideline is admissible in evidence as to what constitutes appropriate professional conduct or practice for the health profession:

   (a)“Good Medical Practice: A Code of Conduct for Doctors in Australia” 2010 (2010 Code of Conduct) was in force up to 16 March 2014.

   (b)“Good Medical Practice: A Code of Conduct for Doctors in Australia” 2014 (2014 Code of Conduct) was in force from 16 March 2014.

   (c)Sexual Boundaries: Guidelines for Doctors, 28 October 2011 edition (2011 Sexual Boundaries Guidelines) was in force up to 11 December 2018.

   (d)Guidelines: Sexual Boundaries in the Doctor-Patient Relationship, 12 December 2018 edition (2018 Sexual Boundaries Guidelines) was in force from 12 December 2018.

4. The respondent identifies as a member of the Royal Australian College of General Practitioners (RACGP). During the relevant treatment periods, the following guidelines “Prescribing drugs of dependence in general practice”, 2000 and 2015 editions (the RACGP Drugs of Dependence Guidelines) were available to him.

Standard of proof

1. As the tribunal said in earlier proceedings with respect to the respondent,[9] “a high standard of probability is required due to the gravity of the allegations in issue”. This is a principle which finds its origins in the High Court case of Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw). It has been applied in a number of cases in this tribunal, one of them being Council of the Law Society v The Legal Practitioner [2010] ACAT 2 (Council of the Law Society) as follows:

   Rich J’s test of “comfortable satisfaction” provides a succinct description of the standard to be applied in such cases. Proof beyond reasonable doubt is not required; but the standard requires more than a mere balancing of the scales. The evidence must be weighed, according to the gravity of the facts to be proved, to the extent that a conclusion is reached about those facts with a feeling of comfortable satisfaction that it is just and correct. (footnotes omitted)[10]

   [9] The Medical Board of Australia v Al-Naser (Occupational Discipline) [2019] ACAT 52 at [5]

   [10] Council of the Law Society at [12]

2. The Tribunal must apply the above statement of principle in considering the evidence in this case.

Disputed facts

1. The scope of the factual dispute is now not large. The respondent admits most facts, save the particulars alleged in Ground 1 with respect to breast examination that he did not offer a chaperone and that he pressed his leg against AC while conducting the examination. He also does not admit the particulars alleged in Ground 2 that he kissed AC, that he made inappropriate disclosures to AC about his sexual relationship, and that he inappropriately massaged AC’s shoulders during consultations, or made inappropriate statements to or about AC. He also disputes the inappropriate statement to LB attributed to him in Ground 4.

Particulars of conduct

1. The applicant relies on certain conduct of the respondent in support of each of the four grounds particularised and submits that this conduct involved breaches of the 2010 Code of Conduct, the 2014 Code of Conduct, the 2011 Guidelines and the 2018 Guidelines.

   Ground 1 – Clinical performance in relation to AC: During the relevant treatment period, the respondent failed to properly assess, diagnose and treat patient AC.

   Particulars

2. The respondent’s management of AC’s symptoms through the prescription of various medications was haphazard and did not reflect an evidence-based approach.

3. The respondent’s prescribing practices placed AC at risk of developing drug dependency, without clinical justification.

4. The respondent’s record keeping highlighted deficient treatment or alternatively, was itself deficient in so far as:

   (a)     there is no record of the respondent having ever taken a comprehensive history or relevant examinations to determine the cause of AC’s ongoing symptoms;

   (b)     there is no documentation of when and/or how diagnoses were made (including diagnoses of fibromyalgia, anxiety and panic disorder), or the evidence and diagnostic reasoning on which those diagnoses were based;

   (c)     there is a lack of information providing clinical justification for the medications that were prescribed;

   (d)      there is rarely any record of AC being advised of the potential side effects and/or addictive potential of medications that were prescribed, or of discussion about treatment options;

   (e)     there is no record of the respondent having or following considered treatment or management plans;

   (f)      there is a lack of documentation in relation to how medical referrals were followed up (if at all).

5. The care provided by the respondent, as recorded in clinical records, demonstrated knowledge deficits, or alternatively, a lack of attention to the potential negative impact that particular medications could have on AC.

1. The respondent’s primary medication approach to managing the patient’s mental health was the use of benzodiazepines, and this occurred over a long period of time’ this was inconsistent with the RACGP Drugs of Dependence Guidelines.

2. The respondent prescribed a combined oral contraceptive pill to AC, despite her history of depression and migraine headaches.

   Ground 1 – Clinical performance in relation to AC: During consultations on 20 May 2010 and 3 July 2012, the respondent performed breast examinations on AC in a way that was inappropriate.

3. He did not offer her a chaperone.

4. He pressed his leg against her while conducting the examination.

   Ground 2 – Failure to maintain professional boundaries in the treatment of AC: In the relevant treatment period, and in the course of treating AC, the respondent made inappropriate physical contact with AC, and made inappropriate comments which were of a personal or sexual nature.

   Particulars

5. In or around 2013, at the end of a consultation at Belconnen Medical Centre, the respondent kissed AC.

6. The respondent made inappropriate disclosures to AC about his personal and sexual life, including speaking to AC about his sexual relationship with his wife and asking AC about whether sex toys or marijuana enhanced sexual experience.

7. The respondent inappropriately massaged the shoulders of AC during consultations.

8. The respondent made inappropriate statements to or about AC, including:

   (a)comments about her physical appearance, and that of her daughter;

   (b)referring to her as his ‘friend’;

   (c)comments to the effect that he looked forward to their appointments;

   (d)comments recommending a single male patient to her;

   (e)in the context of a conversation about having a pap smear done, saying “I could do it for you…or are you just chicken”;

   (f)asking who the father of AC’s daughter was, and suggesting that her daughter resembled another patient at the clinic;

   (g)regularly asking AC about whether she was sexually active, when this was not relevant to the consultation;

   (h)asking about whether she had ever earned money through sexual activity with men;

   (i)frequently telling her that having an active sex life was the best way to reduce symptoms of menopause.

   Ground 3 – Clinical performance in relation to LB: The respondent’s clinical performance in relation to LB in a consultation on 15 May 2014, which involved conduct of a breast examination in the context of LB requesting an oral contraceptive pill, was deficient in a number of respects.

   Particulars

9. A breast examination was not clinically justified or consistent with standard medical practice.

10. It was not at the time, standard practice to conduct a clinical breast examination in circumstances where an otherwise healthy young woman requesting the oral contraceptive pill and had:

    (a)no increased risk of breast cancer;

    (b)no medical or family history of breast cancer; and

    (c)no concerns about her breasts.

11. The respondent conducted the breast examination without taking procedural steps to ensure that LB’s dignity and privacy were respected and maintained:

    (a)The respondent did not offer LB a modesty covering, or in the alternative, acted inappropriately in failing to document the offer of a modesty covering.

    (b)The respondent either did not offer LB a chaperone, or in the alternative, acted inappropriately in failing to document the offer of a chaperone and LB’s response.

12. The respondent either failed to explicitly seek LB’s consent to the breast examination or failed to appropriately document the patient’s consent to the examination.

13. The respondent acted negligently in proceeding to prescribe an oral contraceptive pill after discovering a breast lump and forming the view that it should be investigated through ultrasound scan.

    Ground 4 – Failure to maintain professional boundaries in the treatment of LB: In the context of conducting the breast examination of LB during the consultation on 15 May 2004 the respondent commented to LB, “your boyfriend is very lucky”.

    Particulars

14. No additional particulars provided.

Reliance on expert evidence

1. Associate Professor Peta-Ann Teague provided expert evidence on behalf of the applicant. In total, she provided four written reports and gave oral evidence at the hearing. Dr Teague holds specialist general practice qualifications and has worked as a GP since 1995. She has been a medical educator for undergraduate students and registrars for more than 25 years. She has been a GP supervisor for over 20 years. Dr Teague is the director of the James Cook University GP Training Program. She is an MBA appointed Performance Assessor. She is experienced in evaluating medical records and assessing practitioner performance.

2. Associate Professor Vince Roche provided expert evidence on behalf of the respondent. He provided two written reports and gave oral evidence at the hearing. Dr Roche has practised as a rural procedural GP practicing in Moss Vale, NSW for 35 years and has been a Visiting Medical Officer at the Bowral & District Hospital for 32 years. Dr Roche has been involved in the teaching of medical undergraduate students and registrars on a regular basis. He is an Honorary Clinical Associate Professor at the University of Wollongong. He has been a GP expert witness for 14 years and is experienced in evaluating medical records and assessing practitioner performance having completed approximately 750 cases.

3. The guidance and expertise of Drs Teague and Roche was of great assistance to the Tribunal.

The applicant’s evidence with respect to Ground 1

1. The applicant’s evidence with respect to Ground 1 comprises primarily the expert evidence of Associate Professor Teague provided in her reports dated 8 February 2021 and 8 October 2022.[11] Dr Teague also gave oral evidence and was subject to cross-examination.

   [11] Applicant’s outline of submissions dated 24 October 2022 at [14]

2. In her report dated 8 February 2021,[12] Dr Teague expressed a view as to whether the respondent appropriately prescribed pain relief medication to AC for a clinically justified reason. She identifies the first period of consultation as seven consultations between April 2000 and April 2001 but with only four medical record entries. The respondent issued prescriptions in that period for, inter alia, Panadeine forte and Endep, both of which medications are used for pain management. She says, “the medical record contains no information to justify the prescribing of these medications.”[13] In March 2007, AC returned to attending the practice and between then and December 2008, she had 40 consultations by practitioners other than the respondent. She again consulted the respondent as from 16 March 2009. Dr Teague says the clinical record from that consultation record the reason for contact as “anxiety” but record “no history or examination…and there is no diagnostic reasoning process” recorded.[14] By July 2010 there was an assumption that AC’s pain was attributable to Fibromyalgia but there is no evidence in the clinical record as to how and when that diagnosis was made.[15] Similarly, Dr Teague says there is no documented history and examination recorded to reach a diagnosis of anxiety. Dr Teague says at this point “the competent practitioner would have realised that this situation represented one where there was a real risk of significant patient harm”.[16]

   [12] T17, T Documents, Report to AHPRA Investigator by Associate Professor Teague 8 February 2021 (mislabeled as 8/1/2020)

   [13] T17, T Documents, page 432

   [14] T17, T Documents, page 434

   [15] T17, T Documents, page 432

   [16] T17, T Documents, page 435

3. Dr Teague’s conclusions are that the respondent “did not appropriately prescribe pain relief medication to AC for a clinically justified reason”. As such, she concluded the respondent’s “standard of care in this case is significantly below the expected standard”.[17]

   [17] T17, T Documents, page 440

4. Dr Teague was asked to express a view as to whether the respondent should have involved a pain management specialist to guide AC’s therapy. Her view is that given the clinical records show frequent attendances over many years for ongoing pain and anxiety non-responsive to treatment, early involvement of a specialist pain service “would be the expected standard of care”.[18] She concluded “a specialist pain service should [have been] involved in AC’s care” and the failure to do so is “significantly below expected standard”.[19]

   [18] T17, T Documents, page 441

   [19] T17, T Documents, page 442

5. She is also of the view that his record keeping “around the treatment of AC is inadequate and is significantly below the expected standard”.[20]

The respondent’s response with respect to Ground 1

[20] T17, T Documents, page 445

1. The respondent’s evidence with respect to Ground 1 comprises his affidavits dated 19 August 2019[21] and 28 October 2019 (filed in the immediate action proceedings),[22] and his affidavit dated 16 November 2022. Additionally, it includes the expert evidence of Associate Professor Roche provided in his report dated 18 July 2022.[23]

   [21] T9, T Documents, pages 54-208

   [22] T13, T Documents, pages 250-257

   [23] ST1.1, T Documents, pages 1-30

2. In his report dated 18 July 2022, Dr Roche provided an opinion as to whether the respondent’s prescription of medications to AC for her health issues generally, including depression and fibromyalgia, were appropriate. He said forming that opinion was made difficult by the lack of recording of how the diagnoses of her conditions were made and the medications prescribed.[24] His opinion took into account a number of factors, namely that the effectiveness of the medications prescribed was “probably poor”; there were many doctors involved in her care with little if any record given of the reason for discontinuance or change in medications; and the nature of the “very difficult personal circumstances of AC which made it difficult for any type of antidepressant medication to be beneficial”. Taking account of those factors his opinion was that “In general terms, I believe Dr Al-Naser’s prescription of antidepressant medicine was mostly reasonable and appropriate and not below standard”.[25]  His view was that, given the vast majority of prescriptions provided to AC in the 8 years (2001-2009) before AC re-consulted the respondent, were for the highly addictive Xanax, AC “likely had a significant benzodiazepine addition by the time that Dr Al-Naser took over her care and it would have been very difficult to reduce her dose or cease the medication”.[26] He analysed AC’s clinical records which showed she was prescribed benzodiazepines on 85 occasions between March 2007 and February 2019 by eleven different doctors. The respondent prescribed benzodiazepines on about 33 of these occasions, 20 of which were for Xanax. His view from this analysis was that the respondent “appears to be the most conscientious …in his attempts to change from Xanax to a ‘safer’ slower acting benzodiazepine (Valium) and reduce her dosage.”[27] His conclusion in his report was that the respondent’s prescription of benzodiazepine medication for anxiety and depression was mostly reasonable and appropriate, and if below standard, I would judge to be mildly below standard and not significantly below standard”.[28] However he conceded in his evidence in cross examination that he now accepted it was significantly below standard.[29]

   [24] ST1.1, T Documents, pages 5

   [25] ST1.1, T Documents, page 6

   [26] ST1.1, T Documents, page 7

   [27] ST1.1, T Documents, page 8

   [28] ST1.1, T Documents, page 9

   [29] Transcript of proceedings, 8 December 2022, page 241, line 5

3. With respect to the respondent’s prescription of painkilling medications for fibromyalgia, Dr Roche considered it mostly reasonable and appropriate, and while mildly below standard this was mostly due to lack of documentation associated with the prescribing and lack of awareness of possible medication abuse, it was not significantly below standard.[30] This was his view in his report. When it was put to him in cross-examination that it was “significantly below [the] standard of practice” he did not agree, maintaining his written opinion.[31]

   [30] ST1.1, T Documents, page 11

   [31] Transcript of proceedings, 8 December 2022, page 242, lines 31-34

4. Dr Roche was asked to comment on Dr Teague’s critique of the respondent’s failure to involve a pain specialist which she said fell significantly below the expected standard. Dr Roche said it was his “experience that patients [such as AC] do poorly when they see a pain specialist or attend a pain clinic. There is often neither the health literacy or the insight needed for well recognized pain management strategies such as exercise, mindfulness, stretching and Cognitive Behavioural Therapy” to work.[32] Given this Dr Roche’s view was “On that basis, I would only be mildly critical of Dr Al-Naser’s failure to make more effort to get the patient to attend a specialist pain management service over the years.[33]

   [32] ST1.1, T Documents, page 12

   [33] ST1.1, T Documents, page 13

5. While Dr Roche sees some improvement in the respondent’s record keeping from 2015, it still rarely documents any examination or uses “tick box negatives” in the sense of absence of abnormality, the effect of which is “leaving a grave suspicion that little or none of this examination was done”. He has similar suspicions as expressed by Dr Teague where the respondent used “auto text” to complete management records.[34] His opinion is that prior to 2017 the respondent’s records are significantly below expected standard. Between 2017-2018 his records remain below the expected standard. As from 2019, noting that Dr Roche only had records to March 2019 when writing his report, his view is that they were “approaching the expected standard.”[35]

   [34] ST1.1, T Documents, page 14

   [35] ST1.1, T Documents, page 15

6. In his report, Dr Roche was asked for his opinion as to whether certain other aspects of the respondent’s care and treatment of AC were within standard practice:

   (a)The respondent’s management of AC’s mental health care was mildly below, but not significantly below, the expected standard;[36]

   (b)The respondent’s management of AC’s Combined Oral Contraceptive Pill prescription was mildly below, but not significantly below, the expected standard.[37]

   [36] ST1.1, T Documents, page 17

   [37] ST1.1, T Documents, page 19

7. Dr Roche expressed the summative opinion that AC was “a very complex, difficult and demanding patient, and I would suggest it appropriate to take this into account when determining the quality of Dr Al-Naser’s management over the years”.[38]

The applicant’s further evidence with respect to Ground 1

[38] ST1.1, T Documents, page 21

1. In her report dated 6 October 2022, Dr Teague provided further comments in response to Associate Professor Roche’s report of 18 July 2022.[39] As the applicant submits, Dr Teague was not persuaded to depart from her opinions but rather reinforced the basis of her views with specific reference to documentary material and relevant literature.[40]

   [39] T51, Supplementary T Documents, pages 1698-1718

   [40] Applicant’s outline of submissions dated 24 October 2022 at [18]

2. Dr Teague responds to Dr Roche’s review of clinical records which suggested the respondent’s prescription of benzodiazepines was lower than his fellow practitioners. Dr Teague identified by review of Medicare billing data that between February 2011 and May 2019, 136 of the total 197 consultations, 69%, were with the respondent.[41] She says, “it is reasonable therefore to form the view that the practitioner was the primary provider of general care to the patient” and primarily responsible for the prescriptions of medications.[42]

The applicant’s evidence with respect to Ground 2

[41] T51, Supplementary T Documents, page 1701

[42] T51, Supplementary T Documents, page1701

1. The applicant’s evidence with respect to Ground 2 comprises primarily the notifications, statements, and affidavit of AC;[43] the notification and affidavit of AC’s psychologist;[44] the affidavit of AC’s daughter EC;[45] and the affidavit of KW.[46]

   [43] T5, T Documents, pages 32-38 (notification); T6, T Documents, pages 39-44 (statement); T11, T Documents, pages 216-247 (affidavit)

   [44] T4, T documents, pages 21-31 (notification); T10, T Documents, pages 209-215 (affidavit)

   [45] T12, T Documents, pages 248-249

   [46] T54, T documents, pages 1740-1741

2. AC ceased treatment with the respondent as from 7 March 2019. On 3 April 2019, she completed a notification of complaint with AHPRA. The substance of that complaint is essentially in the same terms as that detailed in Ground 3. In particular, she details the allegation that in about 2013, at the end of a consultation when she was suffering from vertigo and dizziness from a bad flu, the respondent followed her to the door as she left, and when she turned to say goodbye, he grabbed her by both shoulders and kissed her briefly on the mouth with an open mouth. A week later AC went back to the clinic and confronted the respondent about what had happened. She says that she “explained to him that she valued the care he had given to her but what he had done was not an ok thing to do”.[47] On 15 April 2019, AC was interviewed by AHPRA investigators and provide a statement. She repeats the allegation but does not relate confronting the respondent soon after. She details other people she told about the incident, including her then psychologist (who practiced in the respondent’s Belconnen clinic).[48]

   [47] T5, T Documents, page 35

   [48] T6, T Documents, page 40 at [7]-[8]

3. On 13 September 2019, AC affirmed her affidavit filed in earlier proceedings OR 17/2019. AC refers to “this kiss” and, based on a review of her medical records made available to her, says “I think that this kiss happened at the end of the appointment with Dr Al-Naser on 26 March 2013”.[49] She repeats her statement that she confronted the respondent on the next occasion she consulted him, which from her review of the notes she says occurred on 8 April 2013. She relates a part of that conversation in some detail but says “This is not the sum total of what I said. I remember speaking for several minute without interruption, but as I was quite upset it was a repetition of the above, or to a similar affect”.[50] Though more than six years had passed between April 2013 and September 2019 when she made her affidavit, we accept her recollection of the conversation as largely accurate given that confronting her GP in this manner would have taken some courage and most likely was something she prepared for and practiced.

   [49] T11, T Documents, page 218 at [39]

   [50] T11, T Documents, page 219 at [41]-[42]

4. AC also relates in detail what occurred at her last consultation with the respondent on 7 March 2019. She says that on 21 February 2019 she had been prescribed “pain killer patches” by another GP at the medical clinic.[51] She says she asked the respondent to prescribe these for her in place of Panadeine Forte which she was on a very high dose of. She says the respondent refused and said she needed to be referred to a pain clinic. She says she told the respondent she did not want this.[52] She records a detailed conversation she says she could recall with the respondent at that consultation.[53] She says she said to the respondent that she had a friend who “told me that she only takes one pain killer every day. I think it was OxyContin. Is there something similar you can prescribe?”. She says the respondent said, “I won’t prescribe you S8’s”. She says when pressed about this, the respondent “visibly bristled and looked angry”. She records him as then saying “I don’t want to see you again. You can see Dr Raj [the GP who had prescribed Norspan patches]”. She records that in the course of further conversation the respondent said “I have always looked after you. I have not prescribed S8s again. I have always tried to do the right thing”. She records her response as “I am not sure that that’s true, look at what happened years ago with the kiss. I felt like that was wrong”.[54] AC says the conversation culminated in the respondent prescribing Norspan patches, but that he “did not ever want to see her again. He made me feel like a drug addict, which I am not”.[55] The conversation AC relates of her last consultation with the respondent on 7 March 2019 is quite a detailed recollection of a conversation which had occurred six months earlier. It is difficult to accept that AC’s recollection could be that sharp, but rather that the conversation has been reconstructed. Nonetheless, we accept the substance of what was recorded as said and that the kiss from 2013 was again referred to. There was nothing recorded as being said at that time about the respondent’s other inappropriate sexual references.

   [51] T20, T Documents, page 589 (AC’s Clinical records, Norspan patch - a Schedule 8 drug)

   [52] T11, T Documents, page 221 at [71]-[74]

   [53] T11, T Documents, pages 221-222 at [75]

   [54] T11, T Documents, page 222 at [75]

   [55] T11, T Documents, page 222 at [76]

1. AC visited her psychologist on 13 March 2019. AC made disclosures to her that raised a mandatory reporting obligation and her psychologist completed a notification to AHPRA on 18 March 2019.[56] It seems this prompted contact by AHPRA investigators with AC when they assisted her in lodging her notification on 3 April 2019 and recorded a statement from her at interview on 15 April 2019. AC’s psychologist’s outline of AC’s complaint (and her concerns) in the notification are largely consistent with the allegations AC had made.[57] AC’s psychologist also filed an affidavit in the immediate action proceedings. Relevantly, she relates her recollection of her session with AC on 13 March 2019 and provides an excerpt from her consultation notes for that visit.[58] What is recorded as being told to her is largely consistent with AC’s version except that the notes appear to confuse what occurred at the consultation with the respondent on 7 March 2019 with the events which occurred when AC confronted the respondent shortly after the alleged kiss in 2013 (AC “reported she was told to sit in his chair…”).[59] However, that discrepancy appears to be of no moment.

   [56] T4, T Documents, pages 21-31

   [57] T4, T documents, page 31

   [58] T10, T Documents, pages 209-215

   [59] T10, T Documents, page 214

2. AC’s daughter, EC, affirmed an affidavit filed in the immediate action proceeding.[60] She was then aged 21, and the respondent had been her GP since she was 12. Her mother had attended every appointment EC had had with the respondent.[61] She says the respondent and her mother’s interactions were so familiar during appointments she though the respondent was a family friend.[62] She says following an appointment in about mid-2015, she questioned her mother about this familiarity and says she was told “He is just our doctor. I think he has always had a bit of a crush on me. Around 2-3 years ago he leaned in and kissed me as I was leaving an appointment”.[63]

   [60] T12, T Documents. pages248-249

   [61] T12, T Documents, page248 at [4]-[5]

   [62] T12, T Documents, page248 at [6]

   [63] T12, T Documents, page248 at [11]

3. AC’s long term friend KW gave evidence that, in or around 2013, she received a phone call from AC while she was at work. She recalls AC “was leaving a doctor’s appointment and she was very upset and distraught”.[64] She did not speak to her then but called back in her lunch break. She says AC told her “My doctor grabbed me and kissed me.” In the course of the conversation, KW says she said to AC “Are you sure?”. She says AC responded, “Well I wouldn’t make it up?”.[65] KW says AC told her she was “going to make an appointment with her doctor and confront him about the kiss”. She says that she does not recall being told about what happened at that appointment.[66]

The respondent’s response with respect to Ground 2

[64] T54, Supplementary T Documents, pages 1740-1741

[65] T54, Supplementary T Documents, page 1741 at [7]

[66] T54,Supplementary T Documents, page 1741 at [9]

1. The respondent says in his outline of submissions that there is a “factual context” in respect of Ground 2. While he concedes his relationship had become “overly familiar over the years he treated [AC]”, he denies:

   (a)     Kissing her with an open mouth;

   (b)     Discussing his sex life with her; or

   (c)     Communicating with her in any other sexualised manner”.[67]

   [67] Respondent’s Outline of Submissions dated 21 November 2022 at [12]-[13]

2. The respondent’s evidence with respect to Ground 2 comprises of his affidavit of 19 August 2019 filed in the immediate action proceedings which refers and relies on his letter to AHPRA of 23 May 2019,[68] his further affidavit of 28 October 2019 filed in the immediate action proceedings,[69] and his affidavit of 16 November 2022 filed in these proceedings.[70]

   [68] T9, T Documents, pages 54-63 (respondent’s affidavit); T20, T Documents, pages503-1159 (respondent’s letter).

   [69] T13, T documents, pages 250-257

   [70] Affidavit of Nathem Al-Naser sworn 16 November 2022

3. In his affidavit of 19 August 2019, the respondent denies the allegations (expressed in slightly different terms) made in the notifications of AC’s psychologist and AC.[71] He says the last time he treated AC on 7 March 2019, “she asked me to prescribe OxyContin and she said words to the effect, ‘[A]ll my friends are getting OxyContin’. I refused, and shortly thereafter these complaints were made”.[72] The respondent recorded the substance of that conversation in AC’s clinical records.[73] In his letter to AHPRA of 23 May 2019, the respondent refers to AC’s clinical records and says, “My version of events [recorded there] is very different to those recounted by [AC]”. He says, “I believe that [AC] has made the notification because I refused to prescribe her OxyContin at the appointment on 7 March 2019”.[74]

   [71] T9, T Documents, page 55 at [7]-[12]

   [72] T9, T Documents, page 56 at [16]

   [73] T20, T documents, page 590

   [74] T20, T documents, page 504

4. In his letter to AHPRA of 23 May 2019 the respondent refers to AC’s allegation that he kissed her in 2013. He says he saw her twice February 2013 (the 22^nd and 26^th) in relation to dizziness. He denies he kissed her at those appointments, or at any time. He says “she never raised any issue with me, or with any of the other doctors that she saw at my practice or with any of the nurses, and has not reported any incident”.[75] He notes AC says she reported the incident to her then treating psychologist, CW, a week later.[76] He notes that AC’s psychologist says in her notification that the psychologist, CW, was a colleague of the respondent in his practice and had “played it down”. He encouraged AHPRA to obtain CW’s records in this regard.[77]

   [75] T20, T Documents, page 505

   [76] T20, T Documents, page 543 - Appointment on 7 March 2013

   [77] T20, T Documents, page 505. Record of CW produced under subpoena ST5.3, Supplementary T Documents, pages 252-253 consultation dated 26 March 2013. The entries for a consultation dated 26 March 2023 make no reference to a disclosure about the respondent’s conduct at that time.

5. In his affidavit of 28 October 2019, the respondent says in relation to EC’s affidavit of 13 September 2019 he says he never knew who her father was. He makes no other comment to the matters raised in that affidavit. In relation to an affidavit of KW, presumably an earlier affidavit filed in the immediate action proceedings, he says “I have never met this woman before”.[78]

   [78] T13, T Documents, page 250 at [2]-[3]

6. In his affidavit of 16 November 2022, the respondent now concedes he “did have a level of familiarity with AC and that some of our communication was of a personal nature”. He continues to deny he “behaved in any sort of sexually way towards AC’ or that his “communication with AC [was] of a sexualised nature”.[79]

   [79] Affidavit of Nathem Al-Naser sworn 16 November 2022 at [6]-[7]

7. He, however, makes this further concession:

   …[I]f I did say or do anything to leave AC with the impression that I said the things she alleges, then, with the benefit of my further experience and education since the relevant events, I can certainly see such behaviour is not acceptable in a doctor/patient relationship and I would never conduct myself in that way in the future.[80]

The applicant’s evidence with respect to Ground 3

[80] Affidavit of Nathem Al-Naser sworn 16 November 2022, paragraph 6

1. The applicant’s evidence with respect to Ground 3 comprises primarily the expert evidence of Associate Professor Teague provided in her reports dated 30 December 2020 and 13 September 2022.[81] Dr Teague also gave oral evidence and was subject to cross-examination.

   [81] Applicant’s Outline of Submissions date 24 October 2022, paragraph 23

2. In her report dated 30 December 2020, she provided an opinion as to the breast examination performed by the respondent on LB. She divides that opinion into three parts:

   Clinical indication for the breast examination

3. Her evidence was that routine clinical breast examination as a component of assessing whether or not a well woman should commence on an oral contraceptive pill has not been evidence based clinical practice since the 1990s. She cites various publications available to practitioners, which has outlined this for over 20 years, most notably an article which appeared in the Journal of the American Medical Association (JAMA article) in 2001.[82] She says the respondent’s assertion that he performed the examination to check for early signs of breast cancer was not consistent with standard medical practice at the time. She cites xx in this regard.[83] She says the respondent’s assertion that he conducted the examination to provide a “baseline” prior to the use of the contraceptive pill had no clinical justification at that time. She concluded that performing a clinical breast examination in the circumstances outlined was a serious departure from standard medical practice.

   The procedure used to conduct the breast examination

   [82] T18, T Documents, page 471-472; F H Stewart et al, ‘Clinical Breast and Pelvic Examination Requirements for Hormonal Contraception: Current Practice vs Evidence’, Journal of the American Medical Association (2001) 285(17) JAMA, 2232

   [83] T18, T Documents, page 471

4. Her evidence was that there was no indication in the clinical records made by the respondent as to the procedure used to examine LB’s breasts. She notes LB says in her statement to AHPRA dated 13 September 2020[84] that she was not offered a chaperone and was not given a sheet, modesty gown or other covering to use. She concludes that the absence of a discussion regarding a chaperone and the absence of providing suitable covering for the patient are both serious departures from standard medical practice.[85]

   Dr Al-Naser’s consent processes

   [84] T8, T Documents, pages 49-53

   [85] T18, T Documents, page 472

5. Her evidence was that no consent to breast examination recorded in the respondent’s notes. Nor did the notes record LB being offered a chaperone. She concludes the absence of such records is significantly below the expected standard. She says the 2018 Sexual Boundaries Guidelines states that conducting a physical examination which is not clinically indicated or when a patient has not consented to it is “included in the spectrum of behaviours which breach sexual boundaries”. She concluded the breast examination of LB was a breach of sexual boundaries.[86]

   [86] T18, T Documents, page 473

6. Dr Teague’s evidence was that the respondent acted negligently in proceeding to prescribe an oral contraceptive pill after discovering a breast lump:

   …having detected the breast lump, I think it was an error, a clinical error on his part, and quite a grave one, to go ahead and prescribe a higher dose oestrogen contraceptive pill in the absence of any documented follow-up.[87]

   [87] Transcript of proceedings, 6 December 2022, page 95, lines 28-32

7. The applicant’s evidence with respect to Ground 3 is also supported by the statement made by LB to AHPRA.[88] LB gave oral evidence and was subject to cross examination. In her evidence as to the respondent’s alleged failure to obtain her consent to the breast examination, she said “I don’t recall Dr Al-Naser asking for my consent to do the breast exam. I didn’t sign anything.” She added that she had the impression that to have the oral contraceptive pill prescribed, she needed a breast examination.

The respondent’s response with respect to Ground 3

[88] T8, T Documents, pages 49-53

1. The respondent’s evidence with respect to Ground 3 comprises firstly his affidavits dated 19 August 2019[89] and 28 October 219[90] (filed in earlier proceedings) and his affidavit dated 18 November 2022 filed in these proceedings. Additionally, it includes the expert evidence of Associate Professor Roche provided in his report dated 24 August 2021.[91] Dr Roche also gave oral evidence and was subject to cross-examination.

   [89] T9, T Documents, pages 54-208

   [90] T13, T Documents, pages 250-257

   [91] T29, T Documents, pages 1224-1247

2. The respondent’s evidence was that he could not recall the consultation after some 16 years. While he accepted that, over time, it ceased to be standard practice to perform a breast examination when prescribing the oral contraceptive pill, he disputes that standard practice had reached that stage in 2004.[92] But he does accept that “contrary to his early training (which was the source of his belief at the time of treating LB in 2004)…there is no clinical justification for a breast examination on a patient with LB’s presentation”.[93]

   [92] Respondent’s outline of submissions dated 21 November 2022 at [14]

   [93] Respondent’s outline of submissions dated 21 November 2022 at [4(b)(iii)]

3. The respondent admitted in his amended response to the referral of 6 December 2022 that there was no documented offer of a modesty cover or chaperone but says the absence of such a record does not establish no such offer was made.[94] He says it was his standard practice at the time to offer both a modesty cover and a chaperone in such circumstances.[95]

   [94] Respondent’s amended response to referral dated 6 December 2022 at [24]

   [95] Respondent’s amended response to referral dated 6 December 2022 at [24]

4. The respondent admitted in his amended response to the referral of 6 December 2022 that there was no documented record of LB’s consent to a breast examination but says the absence of such a record does not establish the absence.[96] He says it was his standard practice at the time to seek a patient’s consent before conducting a breast examination.[97] He says LB did not say in her evidence that he had failed to obtain her consent.[98]

   [96] Respondent’s amended response to referral dated 6 December 2022 at [25]

   [97] Respondent’s amended response to referral dated 6 December 2022 at [25]

   [98] Respondent’s outline of submissions dated 21 November 2022 at [18]

5. The respondent denies he acted negligently in proceeding to prescribe an oral contraceptive pill after discovering a lump in LB’s breast. He says he considered the lump was overwhelmingly likely to be benign and referred LB for an ultrasound as a precautionary measure. He says there was no risk in LB commencing on the pill in these circumstances.[99]

   [99] Respondent’s amended response to referral dated 6 December 2022 at [26]

6. In his affidavit sworn 18 November 2022, the respondent says he conducted a breast examination on LB when prescribing the oral contraceptive pill for the first time, because that was his training. He only did so after obtaining consent. He accepts medical knowledge has changed since 2004 and from about 2007 he stopped this practice.[100]

   [100] Affidavit of Dr Nathem Al-Naser sworn18 November 2022 at [8]

7. In his report dated 24 August 2021, Dr Roche provided an opinion as to the breast examination performed by the respondent on LB. He said it is difficult to state with certainty when the standard practice of performing breast examination (and pelvic examination) for the purpose of prescribing the oral contraceptive pill ceased to be standard practice. He said, “I recall a general attitudinal change that began in the late 1990s and gradually took effect in the 2000s”.[101] His view was that in the late 1980s and early 1990s it was considered obligatory, and it was his own practice. He gradually changed his own practice, such that by the early 2000s he no longer felt obliged to do the examinations as a routine. By the late 2000s, few GPs followed the practice. He said, “I do not think it possible to give an exact date”.[102] He notes the articles cited by Associate Professor Teague in her report of 30 December 2020 are dated in the mid-2000s.

   [101] T29, T Document, page1226

   [102] T29, T Documents, page 1227

8. Dr Roche’s view was that “I do not believe the standard practice had universally or even generally changed by 15 May 2004”. On that basis, he concludes that the breast examination conducted by the respondent “cannot be considered to be a serious departure from standard medical practice.”[103]

   [103] T29, T Documents, page 1230

9. Dr Roche’s view, as to whether it was standard practice as at 15 May 2004 for a GP to record that a patient had been offered a chaperone and a covering for a breast examination, was that (based on experience in his own practice, in observing his peers, in teaching registrars and medical students and in viewing many clinical records for medico legal purposes) that “I have rarely seen the documentation of the offering of a chaperone, and never seen the recording of modesty covering for a breast examination”. This is despite his belief that such a modesty covering is an absolute necessity.[104]

   [104] T29, T Documents, page 1231

10. Dr Roche was asked for his view, as to whether it was standard practice as at 15 May 2004, to obtain consent from a patient such as LB for a breast examination. His evidence was that it was his practice then, as now, to explain why he wished to do the examination and then finish with a question such as “Is that OK?” or words to that effect. He also said he would look and listen for language or body language suggesting reluctance or hesitancy.[105] It was his evidence that the consent process of the respondent as outlined to him “would have resulted in a proper consent being obtained by Dr Al-Naser for the breast examination conducted on LB”.[106]

    [105] T29, T Documents, page 1232

    [106] T29, T Documents, page 1232

11. In his report, Dr Roche answered in the affirmative to each of these additional questions:

    (a)In your opinion, was the breast examination conducted by Dr Al-Naser done properly, professionally and within standard practice?

    (b)Based on the material provided and Dr Al-Naser’s responses, do you consider that sufficient history was taken by Dr Al-Naser from LB for the purpose of prescribing her the contraceptive pill?

    (c)     Based on the material provided and Dr Al-Naser’s responses, do you consider that Dr Al-Naser had properly advised LB about the effectiveness, benefits, adverse effects and precautions related to the contraceptive pill prescribed to her?[107]

    [107] T29, T Documents, pages 1233-1234

12. There appears to have been no opinion sought from Dr Roche as to whether he considered the respondent acted negligently in proceeding to prescribe an oral contraceptive pill after discovering a breast lump following the examination conducted on LB.

The applicant’s further evidence with respect to Ground 3

1. In her report dated 27 September 2022, Dr Teague provided further comments in response to Dr Roche’s report of 24 August 2021. While Dr Teague agreed that attitudinal change is difficult to chronicle, her view was that the change was significant and extended beyond “attitude”. It extended to the knowledge and skills required in competent clinical practice.[108] She considered the change in practice occurred much earlier than Dr Roche appreciated.[109] Her recollection was that “from the 1990s…the discussions about breast cancer and the oral contraceptive pill, and routine IPEs [intimate physical examinations], were very ‘hot topics’”. As such, “by the early 2000s there was therefore an evidence-based move away from offering routine clinical breast examination or breast self-examination in well women towards facilitating women being ‘breast aware’”.[110] Dr Teague’s view was, contrary to that of Dr Roche, offering a breast examination was not indicative of a “serious commitment to providing best care” but rather showed “a lack of up-to-date knowledge”.[111] She refers again to the 2001 JAMA article[112] and quotes from its abstract to the effect that “consensus developed during the last decade supports a change in practice”.[113] In her view, a “serious commitment to providing best care” was not to perform routine IPEs.[114]

   [108] T53, Supplementary Documents, page 1726

   [109] T53, Supplementary Documents, page 1726

   [110] T53, Supplementary Documents, page 1727

   [111] T53, Supplementary Documents, page 1730

   [112] T 53, Supplementary Documents, page 1728

   [113] T 53, Supplementary Documents, page 1728

   [114] T53, Supplementary Documents, page 1730 (emphasis in original)

1. Dr Teague’s opinion was that it was best practice to record whether a patient has been offered a chaperone. That is her practice and her expectation of any registrar she supervises.[115] She agrees it is not standard practice to record whether suitable covering is offered in a breast examination. But it is assumed that a competent practitioner would provide this routinely.[116]

The applicant’s evidence with respect to Ground 4

[115] T53, Supplementary Documents, page 1731

[116] T53, Supplementary Documents, page 1732

1. The applicant’s evidence with respect to Ground 4 comprises primarily the statements made by LB and by her husband to AHPRA.[117] LB also gave oral evidence and was subject to cross-examination.

   [117] T8, T Documents, pages 49-53; T7, T Documents, pages 43-46

2. LB’s evidence was that she was not given any covering during the examination and she “felt completely exposed”.[118] She said, either just as the respondent started to touch her breasts or as he was just about to commence the examination, he said “your boyfriend is very lucky”. She said “He wasn’t laughing or joking, but it was inappropriate. It made me feel self-conscious, and uneasy”.[119] She said “the exam did not bother me. It was the commentary that felt inappropriate”.[120] The evidence of her husband (previously boyfriend) was that he was not in the appointment with LB, but he can recall she told him about the respondent’s comment. He understood this as the respondent “essentially…making a comment about the size of her breasts.” He said, “It was the comment Dr Al-Naser made that seemed to concern [LB], not the exam itself.”[121]

The respondent’s response with respect to Ground 4

[118] T8, T Documents, pages 50-51 at [11]

[119] T8, T Documents, page 51 at [16]

[120] T8, T Documents, page 51 at [18]

[121] T7, T Documents, page 45 at [4]

1. The respondent’s amended response to the referral of 6 December 2022 pleads that he does not recall making the comment alleged but that:

   However, if he made such a comment or something similar, the respondent says any such comment:

   a.  Was not made during the performance of the breast examination itself;

   b.    Was an attempt at being light-hearted.[122]

   [122] Respondent’s Amended Response to Referral dated 6 December 2022 at [29]-[30]

2. The amended response further pleads:

   Whatever the explanation for the comment, the respondent accepts that, if made, it was inappropriate in the context of an intimate personal examination and apologies for the way it made LB feel.[123]

   [123] Respondent’s Amended Response to Referral dated 6 December 2022 at [31]

3. In his oral evidence before the Tribunal, the respondent went further and accepted in cross examination that he “may have said it”. He accepted that it would not sound “light hearted or innocuous” but rather it would have sounded like the sexualised interpretation that LB heard.[124]

   [124] Transcript of proceedings, 8 December 2022 page 201, line 13-24

4. In his affidavit sworn 18 November 2022, the respondent concedes “it is possible I made a remark along the lines of what is alleged”, but that he would not have made it while conducting the examination. While he characterises it as “a poorly-judged attempt at being light-hearted” he now concedes, if made, it was inappropriate and made LB feel uncomfortable and he apologised for that.[125]

The Tribunal’s consideration of the factual matters in dispute

[125] Affidavit of Dr Nathem Al-Naser sworn 16 November 2022 at [9]-[10]

1. As identified, the scope of the factual dispute is not large. The respondent does not admit or to some degree disputes the following facts:

   (a)     particulars alleged in Ground 1 with respect to breast examination that he did not offer a chaperone and that he pressed his leg against AC while conducting the examination.

   (b)     particulars alleged in Ground 2 that he kissed AC, that he made inappropriate disclosures to AC about his sexual relationship, and that he inappropriately massaged AC’s shoulders during consultations.

   (c)     particulars alleged in Ground 3 that a breast examination was not clinically justified or consistent with standard medical practice.

   (d)     allegation in Ground 4 that in the context of conducting the breast examination that he commented to LB, “your boyfriend is very lucky”.

   The allegation in Ground 1 that Dr Al-Naser did not offer a chaperone and that he pressed his leg against AC while conducting the examination.

2. Dr Al-Naser disputes the allegation that he did not offer AC a chaperone, but his absence of clinical records places him the position that he simply cannot refute the assertion. He says it was his “usual practice” to offer a chaperone, but this usual practice was also to record virtually nothing in the clinical notes in the period 2010-2012. Though Dr Roche supports the practitioner in his evidence that virtually no GP at the time did record offering a chaperone, he harbours “a grave suspicion” that the absence of notes means things simply were not done. The Tribunal can only conclude a chaperone was not offered to AC. As to AC’s accusation that he pressed his leg against AC while conducting the examination, the practitioner denied the accusation in his amended response and his oral evidence. But AC’s evidence has the appearance of verisimilitude when she relates that he maintained similar body contact leaning into her when he conducted other routine examinations such as taking blood pressure or looking into her ears.[126] The Tribunal is satisfied the allegation is made out.

   The allegation in Ground 2 that Dr Al-Naser kissed AC, that he made inappropriate disclosures to AC about his sexual relationship, that he inappropriately massaged AC’s shoulders during consultation, and that he made inappropriate statements to and about AC.

   [126] T11,T Documents, page 218 at [37]

3. As Briginshaw provides, these are matters in which a high standard of probability is required due to the gravity of the allegations. The “comfortable satisfaction” test as reiterated in Council of the Law Society is the operative standard that must be reached.

4. The practitioner denies that in or around 2013, at the end of a consultation with her he kissed AC. AC, on reviewing the clinical records provided in the T Documents, identified the date of the appointment as 26 March 2013. In submissions filed on his behalf, his denial is qualified somewhat in that “he denies kissing her with an open mouth”.[127]

   [127] Respondent’s outline of submissions dated 21 November 2022 at [13a]

5. The allegation AC makes in her summary of complaint to AHPRA is that “it was a ‘proper kiss’…He placed his hands on her shoulders and kissed her with an open mouth. It didn’t last very long”.[128] On the same day, she revealed what had happened to KW and KW gave evidence confirming this.[129] What lends the allegation authenticity is that AC says that on her next appointment with the practitioner she confronted him about the kiss. She records part of the conversation which she says took place, in her affidavit of 13 September 2019.[130] As we have said, we accept that conversation as broadly accurate given it was likely prepared and practised.

   [128] T 5, T Documents, page 35

   [129] T54, Supplementary T Documents, pages 1740-1741

   [130] T11, T Documents, page 219 at [42]

6. In her recollection of that conversation, AC recalls the practitioner as saying “You and I have been friends for a long time. I do that with all my friends. I kiss everyone hello and good bye”.[131] This is consistent with the qualified denial he makes in his submissions, and the denial he makes in his affidavit of 16 November 2022 “that I behaved in any sort of sexually motivated way towards AC”.[132] AC’s response, at the time she confronted him about the kiss, was to the effect, “That was more than a hello or goodbye kiss”.[133] This shows the impact on her was real and disturbing. We accept that the kiss took place, and it was perceived by AC as a breach of the professional boundary she was entitled to accept from the practitioner. The Tribunal is satisfied the particulars alleged are made out.

   [131] T11, T Documents, page 219 at [42]

   [132] Affidavit of Dr Nathem Al-Naser sworn 16 November 2022 at [6]

   [133] T11, T Documents, page 219 at [42]

7. The practitioner further denies that he failed to maintain professional boundaries in terms of the allegation of making inappropriate disclosures about his personal and sexual life to AC, inappropriately massaged AC and making the various inappropriate statements alleged. However, in submissions filed on his behalf, he concedes his relationship with AC “became overly familiar over the years he treated her”.[134] He takes this concession further in his affidavit of 16 November 2022 saying, “some of our communication was of a personal nature”.[135] But he denies that he behaved “in any sort of sexually motivated way” towards her,[136] and maintained that denial in cross examination.[137]

   [134] Respondent’s Outline of Submissions dated 21 November 2022 at [13]

   [135] Affidavit of Dr Nathem Al-Naser sworn16 November 2022 at [5]

   [136] Affidavit of Dr Nathem Al-Naser sworn16 November 2022 at [6]

   [137] Transcript of proceedings, 6 December 2022, page 150, line 5-7

8. What the practitioner failed to grasp both in his written statements and in his oral evidence is that the crucial consideration was not his intention in making “friendly” inappropriate disclosures, physical contact, or statements, but rather the impact and impression they had, and left on AC. In reference to merely one of the assertions about inappropriate statements, asking who the father was of her daughter and suggesting that her daughter resembled another patient at the clinic, AC says she was “appalled by this question” affidavit 13 September 2019.[138] It is reasonable to conclude that she was likewise appalled by all the other inappropriate conduct alleged. The Tribunal is satisfied the particulars alleged are made out.

   The allegation that breast examination was not clinically justified or consistent with standard medical practice in 2004.

   [138] T11, T Documents, page 221 at [69]

9. Dr Teague and Dr Roche express divergent opinions in their written reports as to whether this was standard medical practice by 2004. Both experts were questioned further about the issue in their oral evidence. Dr Roche’s reiterated his view that the change was gradual and progressive. He agreed with the proposition that “medical consensus to change what has been a standard procedure is a process that occurs over time”.[139] He agreed that when he referred to a process of “general attitudinal change” he meant by that “medical consensus”.[140] Dr Teague took issue with his term “attitudinal change” saying it was more than just an attitude change. In a similar way, Dr Roche took issue with Dr Teague’s characterisation that in the 1990s routine intimate physical examinations in the context of the prescription of the oral contraceptive pill was a “hot topic”. He said, “I don’t think it was ever a hot topic, but it was certainly a topic”.[141]

   [139] Transcript of proceedings, 8 December 2022, page 219, lines 33-36

   [140] Transcript of proceedings, 8 December 2022 page 219, lines 45-47

   [141] Transcript of proceedings, 8 December 2022 page 223, line 7

10. Given this divergence, the Tribunal must rely on any other objective material put in evidence by the parties. The respondent’s counsel focused on her examination of Dr Roche on one of the four articles cited by Dr Teague in her report of 30 December 2020 as illustrating the evidence base that built up on the topic at the relevant time.[142] This is the JAMA article dated May 2001. Dr Teague refers again to this article in her later report of 27 September 2022[143] responding to Dr Roche’s report of 24 August 2021. We agree that this article, which provides something of a meta-analysis of existing literature, provides useful objective evidence as to when breast examination ceased to be seen as clinically justified or consistent with standard medical practice. The abstract and background section of the article was referenced by both counsel in their respective cross-examination of Drs Teague and Roche. Dr Teague had quoted in her report the second paragraph of the article[144] which includes the sentence “Consensus developed during the last decade supports a change in practice”. She was directed in cross-examination to the first sentence of the remaining preceding paragraph to the effect that “Clinical breast and pelvic examination are commonly accepted practices prior to provision of hormonal contraception”.[145] Similarly, Dr Roche was directed in cross-examination to the first sentence of the background section of the article to the effect that “Over the last 7 years, several international and US professional organizations have formulated revised recommendations for hormonal contraception users”.[146] He was then asked to scan the organisations that had published recommendations (ten in number) and was taken to the final one (Royal College of Obstetricians and Gynaecologists) which had mentioned breast as well as pelvic examinations, and was asked:

    Q: Do you agree that if the College in the UK is issuing guidelines in 2000 to that effect, that is a practice that would have been implemented very soon after, at least in the UK?

    A: Yes, I think so…But I agree, the question is how long would that knowledge take to wash back into Australia. I would say it would take a number of years…[147]

    [142] T18, T Documents, page 471

    [143] T53, Supplementary T Documents, page 1728

    [144] T53, Supplementary T Documents, page1728

    [145] Transcript of proceedings, 6 December 2022, page 98, lines 37-38

    [146] Transcript of proceedings, 8 December 2022, page 225, lines 14-21; F H Stewart et al, ‘Clinical Breast and Pelvic Examination Requirements for Hormonal Contraception: Current Practice vs Evidence’, Journal of the American Medical Association (2001) 285(17) JAMA, 2232

    [147] Transcript of proceedings, 8 December 2022, page 225, lines 30-40

11. Both Dr Teague’s and Dr Roche’s responses suggest the JAMA article was correctly identifying and tracing a change in practice. But it is significant that the subtitle of the article is “Current Practice vs Evidence”, suggesting that in mid- 2001 in the United States clinical breast examinations remained a commonly accepted practice but that a significant body of research suggested the practice was not justified and this was leading to professional bodies to recommend the practice be abandoned. What can be drawn from this is, three years prior to 2004, it remained standard medical practice. In the intervening years, it ceased to be consistent with standard medical practice, most immediately in the US and then in the UK. In Australia there is no clearly available evidence for the Tribunal when standard practice can be said to have changed. Taking Dr Teague’s view at its highest, “it is my opinion that by May 2004 a majority, the majority, opinion had shifted away”[148], this does not support the contention that breast examination was not clinically justified or consistent with standard medical practice in 2004. We find this particular is not made out.

    The allegation in Ground 4 that in the context of conducting the breast examination that Dr Al-Naser commented to LB, “your boyfriend is very lucky”.

    [148] Transcript of proceedings, 6 December 2022, page 97, lines 16-17

12. The practitioner in submissions filed on his behalf essentially “concedes the possibility he made a comment to her [LB] during the consultation along the lines of what is alleged”.[149] He makes a similar concession in his affidavit of 16 November 2022.[150] He concedes in his oral evidence that “it’s possible that you said it; yes?”.[151] However, he denies making the comment during the course of the actual breast examination, and also characterises it as “a poorly-judged attempt at being light-hearted”.[152] Again, this shows an appalling lack of insight into its effect on LB. To remove any doubt, we find this ground to be made out.

The Tribunal’s Conclusions

[149] Respondent’s outline of submissions dated 21 November 2022 at [20]

[150] Affidavit of Dr Nathem Al-Naser sworn 16 November 2022 at [9]

[151] Transcript of proceedings, 8 December 2022, page 201, lines 21-22

[152] Affidavit of Dr Nathem Al-Naser sworn 16 November 2022 at [9]

1. The Tribunal has reached the following conclusions with respect to each Ground of Complaint and the particulars alleged with respect to each ground.

   Ground 1 – Clinical performance in relation to AC: During the relevant treatment period, the respondent failed to properly assess, diagnose and treat patient AC.

   Particulars

2. The respondent’s management of AC’s symptoms through the prescription of various medications was haphazard and did not reflect an evidence-based approach. We find the respondent’s management of AC’s symptoms through the prescription of various medications was haphazard and did not reflect an evidence-based approach.

3. The respondent’s prescribing practices placed AC at risk of developing drug dependency, without clinical justification. We find AC was probably drug-dependent at the time she returned to consult the respondent in 2009 and he sought to reduce the risk of increasing and prolonging drug dependency.

4. The respondent’s record keeping highlighted deficient treatment or alternatively, was itself deficient in so far as:

   (a)there is no record of the respondent having ever taken a comprehensive history or relevant examinations to determine the cause of AC’s ongoing symptoms – We find this particular made out.

   (b)there is no documentation of when and/or how diagnoses were made (including diagnoses of fibromyalgia, anxiety and panic disorder), or the evidence and diagnostic reasoning on which those diagnoses were based – We find this particular made out.

   (c)there is a lack of information providing clinical justification for the medications that were prescribed – We find this particular made out.

   (d)there is rarely any record of AC being advised of the potential side effects and/or addictive potential of medications that were prescribed, or of discussion about treatment options – Save for one or two mentions in the clinical records, we find this particular made out.

   (e)there is no record of the respondent having or following considered treatment or management plans – We find this particular made out.

   (f)there is a lack of documentation in relation to how medical referrals were followed up (if at all) – We find this particular made out.

5. The care provided by the respondent, as recorded in clinical records, demonstrated knowledge deficits, or alternatively, a lack of attention to the potential negative impact that particular medications could have on AC:

   (a)The respondent’s primary medication approach to managing the patient’s mental health was the use of benzodiazepines. This occurred over a long period of time and was inconsistent with the RACGP Drugs of Dependence Guidelines – We find this particular made out.

   (b)The respondent prescribed a combined oral contraceptive pill to AC, despite her history of depression and migraine headaches – We find this particular made out.

6. We find with respect to Ground 1 that during the relevant treatment period, the respondent failed to properly assess, diagnose, and treat patient AC.

   Ground 1 – Clinical performance in relation to AC: During consultations on 20 May 2010 and 3 July 2012, the respondent performed breast examinations on AC in a way that was inappropriate.

   Particulars

7. He did not offer her a chaperone – We find this particular made out.

8. He pressed his leg against her while conducting the examination – We find this particular made out.

9. We find with respect to Ground 1 that during consultations on 20 May 2010 and 3 July 2012, the respondent performed breast examinations on AC in a way that was inappropriate.

10. The applicant contended in paragraph 12 of the Application for Disciplinary Action that the respondent’s conduct as particularised in paragraph 10 of Ground 1 involved breaches of the 2010 and the 2014 Codes of Conduct. The relevant conduct was between 16 March 2009 when AC returned to his care and 7 March 2019 when she ceased to be in his care. The codes were in place during this period – the 2010 code until March 2014 and the 2014 code thereafter. The codes specify, in very similar terms,[153] standards for working with patients which include recognising the power imbalance in the doctor-patient relationship and not exploiting that imbalance. We are satisfied the respondent’s conduct breached the standards set by the codes.

    [153] T 44, T Documents, page 1432 at [3.2] (‘Good Medical Practice: A Code of Conduct for Doctors in Australia 2010’); T 45, T Documents, page 1432 (‘Good Medical Practice: A Code of Conduct for Doctors in Australia 2014’)

1. The applicant contended in paragraph 13 of the Application for Disciplinary Action that the respondent’s conduct as particularised in paragraph 10.4.1 of Ground 1 was inconsistent with the RACGP Drugs of Dependence Guidelines. The guidelines do not set standards in the sense that they can be said to have been breached. However, they identify the role of GPs in addressing the misuse of prescription opioids and specify in terms similar to the codes an obligation to maintain professional boundaries in prescribing drugs of dependence.[154] We are satisfied the respondent’s conduct was inconsistent with the standards provided for in the guidelines.

   [154] T 47, T Documents, page 1493, at [1.3] and page 1509 at [4.1.1] (‘Prescribing drugs of dependence in general practice (Parts A and B) 2015')

2. The applicant contended in paragraph 14 of the Application for Disciplinary Action that the respondent’s conduct as particularised in paragraph 11 of Ground 1 was inconsistent with the 2011 Sexual Boundaries Guidelines. The 2011 Guidelines were in force from October 2011 to December 2018. The guidelines identify ‘sexual misconduct’ as including “making sexual remarks”, “touching patients or clients in a sexual way”, “making suggestive comments about a patient’s appearance or body”, or “discussing his or her own sexual problems or fantasies”.[155] We are satisfied the respondent’s conduct was inconsistent with the standards provided for in the guidelines.

   [155] T 46, T Documents, page 1474 at [3] and page 1474 at [6] (‘Sexual Boundaries: Guidelines for Doctors 2011’)

3. We find that the charge in Ground 1 is proved.

   Ground 2 – Failure to maintain professional boundaries in the treatment of AC: In the relevant treatment period, and in the course of treating AC, the respondent made inappropriate physical contact with AC, and made inappropriate comments which were of a personal or sexual nature.

   Particulars

4. In or around 2013, at the end of a consultation at Belconnen Medical Centre, the respondent kissed AC – We find this particular made out.

5. The respondent made inappropriate disclosures to AC about his personal and sexual life, including speaking to AC about his sexual relationship with his wife and asking AC about whether sex toys or marijuana enhanced sexual experience – We find this particular made out.

6. The respondent inappropriately massaged the shoulders of AC during consultations – We find this particular made out.

7. The respondent made inappropriate statements to or about AC, including:

   (a)comments about her physical appearance, and that of her daughter;

   (b)referring to her as his “friend”;

   (c)comments to the effect that he looked forward to their appointments;

   (d)comments recommending a single male patient to her;

   (e)in the context of a conversation about having a pap smear done, saying “I could do it for you…or are you just chicken”;

   (f)asking who the father of AC’s daughter was and suggesting that her daughter resembled another patient at the clinic;

   (g)regularly asking AC about whether she was sexually active, when this was not relevant to the consultation;

   (h)asking about whether she had ever earned money through sexual activity with men;

   (i)frequently telling her that having an active sex life was the best way to reduce symptoms of menopause.

8. We find the particular that the respondent made inappropriate statements to or about AC made out.

9. We find with respect to Ground 2 that in the relevant treatment period, and in the course of treating AC, the respondent made inappropriate physical contact with AC, and made inappropriate comments which were of a personal or sexual nature.

10. The applicant contended the respondent’s conduct in Ground 2 constituted a failure to observe professional boundaries (including sexual boundaries) between a medical practitioner and a patient. However, nothing is particularised on which we can make a finding and such a failure is better determined against the standards set in the 2010 and the 2014 Codes of Conduct.

11. The applicant contended the respondent’s conduct in Ground 2 constituted a breach of the professional relationship of trust between the respondent and AC. However, nothing is particularised on which we can make a finding of breach of trust.

12. The applicant contended the respondent’s conduct in Ground 2 involved breaches of the 2010 and the 2014 Codes of Conduct. The codes were in place during this period – the 2010 code until March 2014 and the 2014 code thereafter. The codes specify, in very similar terms,[156] obligations to maintain professional boundaries. We are satisfied the respondent’s conduct breached the standards set by the codes. The applicant also contended the respondent’s conduct in Ground 2 involved breaches of the 2011 and 2018 Sexual Boundaries Guidelines. The guidelines are not mandatory and so cannot be said to have been breached. However, the guidelines identify ‘sexual misconduct’ as including “making sexual remarks”, “touching patients or clients in a sexual way”, “making suggestive comments about a patient’s appearance or body”, or “discussing his or her own sexual problems or fantasies”.[157] We are satisfied the respondent’s conduct was inconsistent with the standards provided for in the guidelines.

    [156] T 44, T Documents, page 1440 (‘Good Medical Practice: A Code of Conduct for Doctors In Australia 2010’ at [8.2] T 45, T Documents, page 1464 (‘Good Medical Practice: A Code of Conduct for Doctors In Australia 2014’)

    [157] T 46, T Documents, page 1473 at [3] (‘Sexual Boundaries: Guidelines for Doctors 2011’) and page1474 at [6]

13. We find that the charge in Ground 2 is proved.

    Ground 3 – Clinical performance in relation to LB: The respondent’s clinical performance in relation to LB in a consultation on 15 May 2014, which involved conduct of a breast examination in the context of LB requesting an oral contraceptive pill, was deficient in a number of respects.

    Particulars

14. A breast examination was not clinically justified or consistent with standard medical practice.

    (a)It was not at the time, standard practice to conduct a clinical breast examination in circumstances where an otherwise healthy young woman requesting the oral contraceptive pill and had:

    (i)      no increased risk of breast cancer;

    (ii)     no medical or family history of breast cancer; and

    (iii)   no concerns about her breasts.

    We find this particular is not made out.

    (b)The respondent conducted the breast examination without taking procedural steps to ensure that LB’s dignity and privacy were respected and maintained:

    (i)The respondent did not offer LB a modesty covering, or in the alternative, acted inappropriately in failing to document the offer of a modesty covering – We find this particular made out.

    (ii)The respondent either did not offer LB a chaperone, or in the alternative, acted inappropriately in failing to document the offer of a chaperone and LB’s response – We find this particular made out.

    (iii)The respondent either failed to explicitly seek LB’s consent to the breast examination or failed to appropriately document the patient’s consent to the examination – We find this particular made out.

    (iv)The respondent acted negligently in proceeding to prescribe an oral contraceptive pill after discovering a breast lump and forming the view that it should be investigated through ultrasound scan – This particular was not pressed.

15. We find with respect to Ground 3 that the respondent’s performance was deficient in relation to a breast examination conducted on patient LB during a consultation on 15 May 2004 in the context of LB requesting an oral contraceptive pill.

16. The applicant contended the respondent’s conduct as particularised in paragraphs 17.1, 17.2 and 17.3 of the Application for Disciplinary Action constituted a failure to observe professional boundaries (including sexual boundaries) between a medical practitioner and a patient. We have found the allegations made in paragraphs 17.2 and 17.3 are made out. At the relevant time in 2004 the standards set in the 2010 and the 2014 Codes of Conduct were not in place. Nonetheless, we find the conduct constituted breaches of professional boundaries by the respondent.

17. We find that the charge in Ground 3 is proved.

    Ground 4 – Failure to maintain professional boundaries in the treatment of LB: In the context of conducting the breast examination of LB during the consultation on 15 May 2004 the respondent commented to LB, “your boyfriend is very lucky”.

18. We find the allegation of Ground 4 is made out.

19. The applicant contended the respondent’s conduct in Ground 4 constituted a failure to observe professional boundaries (including sexual boundaries) between a medical practitioner and a patient. At the relevant time in 2004, the standards set in the 2010 and the 2014 Codes of Conduct were not in place. Nonetheless, we find the conduct constituted breaches of professional boundaries by the respondent.

20. The applicant contended the respondent’s conduct in Ground 4 constituted a breach of the professional relationship of trust between the respondent and LB. However, nothing is particularised on which we can make a finding of breach of trust.

21. We find with respect to Ground 4 that the charge that the respondent failed to maintain professional boundaries in the treatment of LB is proved.

22. The Tribunal has found each of the Grounds of Complaint in the Referral are made out. The parties have each made written submissions with respect to characterisation and sanction. However, the Tribunal would be assisted by further oral submissions before proceeding to penalty.

Decision

1. The Tribunal finds Grounds 1-4 of Complaint in the Referral are proved.

2. The application is set down for further submissions on sanction for half a day on 9 June 2023 at 12.30pm with liberty to apply regarding an alternative date and/or time.

3. The decision on costs is reserved.

4. Pursuant to section 39(2) of the ACT Civil and Administrative Tribunal Act 2008:

   (a)Unless by their consent, publication of the names or any identifying details of the applicant’s witnesses and matters contained in documents filed with the Tribunal or received in evidence that might enable the identification of any patient or lay witness giving evidence in this matter are prohibited from publication.

………………………………..

Senior Member Prof T Foley

For and on behalf of the Tribunal

Date(s) of hearing:	5, 6, 8 and 9 December 2022
Counsel for the Applicant:	Ms P Bindon
Solicitors for the Applicant:	Mr T Ellison, Australian Government Solicitor
Counsel for the Respondent:	Mr D Crowe
Solicitors for the Respondent:	Ms A Li, HWL Ebsworth