Medical Board of Australia v Helmy
[2017] ACAT 85
•19 October 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MEDICAL BOARD OF AUSTRALIA v HELMY (Occupational Discipline) [2017] ACAT 85
OR 6/2017
Catchwords: OCCUPATIONAL DISCIPLINE – medical practitioner – unprofessional conduct – whether allegations made are proved – the character of the doctor’s conduct – whether there was inappropriate and/or intimate conduct – whether there was a boundary violation – whether there was a breach of an undertaking – pattern of conduct – whether Evidence Act 2011 applies – weight to be given to representations made by complainants when they are not called to give evidence or cross-examined – whether complainants were ‘unavailable’ as defined in the Evidence Act 2011
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 8, 26
Evidence Act 2011 ss 63, 64, 67
Health Practitioner Regulation National Law (ACT) ss 5, 39, 41, 151, 193, 195, 196
Cases cited: ACT Medical Board v Newcombe [2012] ACAT 43
Briginshaw vBriginshaw (1938) 60 CLR 336
Browne v Dunn (1893) 6 R 67
Health Care Complaints Commission v Wingate [2007] NSWCA 326
Helmy v Medical Board of Australia [2016] ACAT 97
Medical Board v Hocking [2015] ACAT 44
Nursing and Midwifery Board of Australia v Singh (Review and Regulation) [2014] VCAT 1171
Purnell v Medical Board of Queensland Court of Appeal Queensland 15 August 1997, unreported
Re Veron ; Ex parte the Law Society (1966) 84 WN (NSW)(Pt 1) 136
Sam Hadzic v Bristol Paint Limited Trading As Bristol Paint and Wallpaper [1994] ACTSC 121
Zaidi v Health Care Complaints Commission [1998] NSWSC 335
List of
Texts/Papers cited: Good Medical Practice: Code of Conduct for Doctors in Australia
Sexual Boundaries: Guidelines for Doctors
Tribunal: Senior Member B Meagher SC
Member R DaviesDate of Orders: 19 October 2017
Date of Reasons for Decision: 19 October 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 6/2017
BETWEEN:
MEDICAL BOARD OF AUSTRALIA
Applicant
AND:
DR MOHAMED HELMY
Respondent
TRIBUNAL: Senior Member B Meagher SC
Member Dr R Davies
DATE:19 October 2017
FINDINGS
The Tribunal finds that:
1.In respect of Grounds C and D of the amended application:[1]
[1] A copy of the amended Application is annexed to these reasons
(a)The allegations made in paragraphs 16, 17, and paragraph 18 that the respondent inappropriately touched SV in a sexual or intimate manner by hugging her and in paragraph 23 by kissing her during a medical consultation during which he provided medical services to her as her general practitioner are proved.
(b)The allegations made in paragraphs 19, 21, 24, and 26 are proved.
(c)The allegations made in paragraphs 20 and 25 with the word ‘substantially’ omitted are proved.
(d)The said conduct is unprofessional conduct.
2.In respect of Ground F of the amended application:
(a)The allegations regarding a breach of undertaking made in paragraphs 35, 36, 37, 38, 40, 42 and 43 are proved.
(b)The allegations in paragraph 41 are proved but the consultations listed in (i) – (iv) do not amount to a breach of the undertaking.
(c)In respect of paragraph 39 the reference to paragraph 36 (i) should read paragraph 38 (i) and in so far as it alleges that on 17 November 2015 that entry together with the presentation of SV on 17 November 2015 indicated that the respondent knew or ought to have known that SV had suffered or was suffering from a form of mental dysfunction, that allegation is proved.
(d)The allegation in paragraph 44, with the word ‘substantially’ omitted, is proved.
(e)The said conduct is unprofessional conduct.
3.In respect of Ground E of the amended application:
(a)As alleged in paragraph 28 the Board did receive two prior notifications regarding alleged similar inappropriate sexualised conduct by patients of the respondent.
(b)The particulars of the notification in respect of patient RJ are accurately described in the application.
(c)The particulars in respect of JB accurately describe a summary made by the first person to have received the complaint but do not accurately describe the allegations later detailed by JB.
(d)The matters as particularised in paragraph 28 (a) and (b) are not proved.
(e)The fact that the respondent hugged RJ and probably held her hands also is proved.
(f)The fact that in respect of RJ and SV the respondent engaged in inappropriate physical contact is proved.
(g)The conduct found in Grounds C and D was reckless having regard to the prior notifications.
(h)The allegations in paragraph 29 (a), (b), (e) and (f) are proved.
(i)The allegations in Ground E that are proved amount to unprofessional conduct.
4.It is noted that the findings do not include a finding that the inappropriate physical contact was subjectively motivated by sexual intent.
ORDER
The Tribunal orders that:
1.The matter is to be relisted on a date to be fixed for directions in respect of penalty.
………………………………..
Senior Member B Meagher SC
Delivered for and on behalf of the Tribunal
REASONS FOR DECISION
Introduction and application
1.On 10 April 2017 the Medical Board of Australia (the Board) made an application to the Tribunal pursuant to section 193 of the Health Practitioner Regulation National Law (ACT) (the National Law) for professional disciplinary orders. The application was amended to delete some of the matters in the original application and the amended application is dated 6 August 2017.
2.The application alleges that Dr Helmy (the respondent) has behaved in a way which constitutes professional misconduct,unprofessional conduct unprofessional conduct or unsatisfactory professional performance.
3.The application sought an order that the respondent’s medical registration be cancelled or alternatively suspended for two years. It sought conditions to be imposed if he returned to practice. It also sought a reprimand and costs.
4.Orders were made by Presidential Member McCarthy on 24 April 2017 fixing issues in respect of the matter for hearing. He made orders preventing public access to information about the matter and restricting publication of the names and means of identification of patients, complainants and their medical records. The hearing was to be in private. The issues were whether and if so, which of the allegations are proved and the character of the respondent’s conduct having regard to any allegations proved. At the hearing, the parties agreed that this was intended to split the hearing between culpability and penalty, if any.
5.The application alleges that at material times, the respondent was working as a general practitioner at the Conder Surgery in the ACT. This is an agreed fact.[2]
[2] Paragraph 5 of the respondent’s statement of facts and contentions
6.It alleges in respect of patient SV, a young adult female, that he hugged and kissed her on 4 March 2016. It initially alleged that the kiss including putting his tongue in her mouth. That allegation was deleted and it was made clear that the allegation relied on was an admission by the respondent that he kissed her on the cheek. The application has separated this into two distinct counts. Count C relates to the hug and Count D relates to the kiss. Perhaps it was thought necessary to do this to avoid duplicity but, from the evidence led, it is clear that the two counts relate to a single course of conduct occurring within a short space of time. It is alleged that this is inappropriate sexual and /or intimate[3] conduct and is a boundary violation. It is alleged that it failed to meet the standard of practice in clauses 1.4, 2.1.4, 2.4.1, 3.2.1, 3.2.6, 3.11.4, 3.13, 8.1 and 8.2.2 of the Good Medical Practice: Code of Conduct for Doctors in Australia[4] and in the standards in Sexual Boundaries: Guidelines for doctors[5], guidelines approved under section 39 of the National Law. It was alleged that this fell substantially below the required standard. It is alleged that each act constituted sexual harassment, sexual exploitation and sexual misconduct as described in the Guidelines.
[3] The alternative that it was intimate is contained only in Count C that relates to the hug.
[4] the Code of Conduct
[5] the Guidelines
7.In Count E the application alleged a pattern of inappropriate and unprofessional sexualised conduct in respect of the SV notification[6] and two prior notifications from female patients RJ and JB. The conduct towards SV was described as alleged inappropriate sexualised conduct. The two former patients were described as vulnerable.
[6] As will be seen a notification is the complaint made to the APHRA that is referred to the Board
8.In respect of patient RJ her allegations in broad terms were described as:
(a)an attempt to engage in sexual intercourse with her;
(b)digital penetration of her without consent;
(c)an attempt to coerce her into a sexual relationship; and
(d)hugging her without consent.
9.In respect of JB her allegations were described as follows:
(a)He tried to have sex with her.
(b)He was raping or molesting her.
(c)He suggested they get a hotel room together.
(d)He said if JB had money worries she should come and see him.
(e)He had conducted himself in an inappropriate manner for years.
10.The application alleged that the two prior notifications when considered in conjunction with the notification made by SV indicate a pattern of inappropriate conduct towards vulnerable female patients which includes but is not limited to:
(a)Inappropriate and unwelcome sexual and/or intimate contact.
(b)Inappropriate and unwelcome physical contact.
(c)Attempts to coerce patients into a sexual relationship.
(d)Performance of sexual acts without consent.
(e)Exploitation of the power imbalance in the doctor-patient relationship.
(f)Inappropriate levels of intimacy with patients such as kissing, hugging. touching patients on the shoulder “as if they were an old friend”.
11.It was alleged in the application that this behaviour demonstrated a pattern or a propensity for inappropriate and unprofessional sexual conduct whilst working as a health practitioner. It was alleged that it failed to meet the same standards and guidelines mentioned in respect of Counts C and D.
12.The fourth separate count in the application, Count F, alleges a breach of undertaking. It contains some history that explains why there are not separate counts in respect of RV and JB. RV had made a complaint to the police. The Australian Federal Police (AFP) notified the Board. The notification included the matter alleged in Count E. The Board referred the matter back to the police because of its potential criminal nature and took no further action against the respondent in respect of that matter.
13.In respect of JB, the Board accepted an undertaking given on 31 August 2015 from the respondent not to attend to JB or communicate with her when she visits the Conder Surgery and not consult any mental health patients or patients with drug addiction.
14.The undertaking was to be read with a letter from the respondent’s solicitor that defined a mental health patient as someone who is mentally dysfunctional or mentally ill. ‘Mental dysfunction’ meant a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion. There were other definitions.
15.The undertaking was said to be breached by ten further consultations with patient SV after the undertaking was given.
16.Reference is made to the Conder Surgery clinical notes. They indicate that in her past medical history SV had suffered from a dissociative disorder in 2008. She first consulted the surgery when she saw the respondent on 16 October 2012. She attended the surgery on sixteen occasions between then and 21 August 2015. The undertaking was first given on 21 August 2015. SV was consulted on 26 August 2015. The amended undertaking was then given. There were ten further consultations with SV. The last consultation was 11 March 2016.
17.On 17 November 2015, SV attended and was described as “depressed, anxious, at times confabulating, unsure of antidepressants”. It also noted she would come back to discuss treatments. The consultation was billed as a mental health care consultation Medicare Item 2713. There were five further consultations after that, one of which was on 4 March 2016, when the matters in Ground C and D were said to have occurred. The application says all the attendances after the undertaking were in breach of the undertaking but relied at least on the consultation on 17 November 2015 and all attendances thereafter. This breach was alleged to be substantially below the expected standards and below the standard in the Code of Conduct and refers to the same clauses as set out in the other counts with some omitted and adds clauses 6.2.1, 6.2.5, 8.10.1 and 8.10.2.
Other background facts
18.The Board had made a decision to take immediate action after the SV notification and an appeal was lodged with the Tribunal by the respondent. That was decided by the Tribunal in Helmy v Medical Board of Australia [2016] ACAT 97. It resulted in a number of conditions being imposed; the main one being the need for a chaperone when consulting female patients.
19.More background will be described in outlining the material in the nature of evidence[7] relied on by both sides.
The respondent’s position
[7] There was considerable debate about admissibility which will be described later. The rules of evidence do not apply by virtue of section 8 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) and the Tribunal may inform itself in any way it deems appropriate under section 26. The use of the word evidence in these reasons is not intended to describe it as satisfying the requirements of the Evidence Act 2011 unless that is clear from the context
20.Before examining the evidential material and the relevant legislation it is useful to know in general terms what the respondent’s position is in respect of the allegations. He has provided responses to the Board and statements in these proceedings and in the appeal from the immediate action. He denies the matters asserted by RJ and JB. SV had made other allegations that are not in the application and he denied them too.
21.For reasons that will be explained, the Board did not propose to call the three complainants and did not. The respondent understandably sought to raise this as a reason to terminate the proceedings early and at the commencement of the case made a no case submission. That was refused and the respondent gave sworn evidence and was cross examined. He also called other evidence.
22.In summary form, he admitted that on 4 March 2016 at the end of the consultation, whilst showing her out, SV had given him a hug. He returned the hug and kissed her on the cheek. Whilst there was debate about whether this could be described as sexual, the basic facts in Grounds C and D were not in dispute. In respect of the breach of undertaking, the clinical notes produced by the Conder Surgery established that the past history of SV included a diagnosis of dissociative disorder. It also disclosed the matters alleged to have occurred after the undertaking was given. Whilst there was some disagreement by the respondent as to whether he had breached the undertaking, there was no issue about what had happened.
23.The main controversy arose in respect of Ground E. The basic facts were denied by the respondent and he maintained that denial in the witness box. Issues concerning the fair manner of dealing with the evidential material and its interaction with the Evidence Act and the National Law were debated at length. This will be explained in more detail later.
Some relevant legislative provisions
24.From the National Law the definitions in section 5 include:
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.
39 Codes and guidelines
A National Board may develop and approve codes and guidelines—
(a)to provide guidance to the health practitioners it registers; and
(b)about other matters relevant to the exercise of its functions.
Example
A National Board may develop guidelines about the advertising of regulated health services by health practitioners registered by the Board or other persons for the purposes of section 133.
41 Use of registration standards, codes or guidelines in disciplinary proceedings
An approved registration standard for a health profession, or a code or guideline approved by a National Board, is admissible in proceedings under this Law or a law of a co-regulatory jurisdiction against a health practitioner registered by the Board as evidence of what constitutes appropriate professional conduct or practice for the health profession.
151 When National Board may decide to take no further action
(1)Subject to section 150, a National Board may decide to take no further action in relation to a notification if—
(a)the Board reasonably believes the notification is frivolous, vexatious, misconceived or lacking in substance; or
(b)given the amount of time that has elapsed since the matter the subject of the notification occurred, it is not practicable for the Board to investigate or otherwise deal with the notification; or
(c)the person to whom the notification relates has not been, or is no longer, registered by the Board and it is not in the public interest for the Board to investigate or otherwise deal with the notification; or
(d)the subject matter of the notification has already been dealt with adequately by the Board; or
(e)the subject matter of the notification is being dealt with, or has already been dealt with, adequately by another entity.
(2)A decision by a National Board to decide to take no further action in relation to a notification does not prevent a National Board or adjudication body taking the notification into consideration at a later time as part of a pattern of conduct or practice by the health practitioner.
(3)If a National Board decides to take no further action in relation to a notification it must give written notice of the decision to the notifier.
(4)A notice under subsection (3) must state—
(a)that the National Board has decided to take no further action in relation to the notification; and
(b)the reason the Board has decided to take no further action.
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.
195 Costs
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 that registered the practitioner 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 from using a specified title or providing a specified health service.
The case including evidence relied on as formulated by the applicant in the statement of facts and contentions and its counsel’s opening
25.Ms Musgrove, who appeared for the Board relied on documents that were in two folders and provided to the Tribunal and the respondent. They have been described in shorthand as T (for Tribunal) documents. There were 76 separate documents and there were pages numbered 1 to 574. She also relied on a letter of Dr Phillip Reid dated 18 August 2017. It was supplementary to document T70 in the T documents. It contained his CV and a statement that he abided by the expert code of conduct and was made part of T70. Initially, it had been foreshadowed that Dr Reid would be required for cross examination and there had been a preliminary argument about whether that might be by phone. Mr Purnell SC, who appeared for the respondent with Ms K Oldfield, waived this and agreed to accept the report. Also relied on by the Board were subpoenaed Medicare records relating to patient SV which disclosed the item numbers and description of services provided by the respondent to SV.
26.Ms Musgrove then disclosed that she intended to call none of the three women who had made the complaints nor the mother of SV who had provided a statement which is one of the T documents.
27.Mr Purnell then made an application which initially was objecting to receiving into evidence or taking into account for any purpose documents, statements or ‘evidence’ from RJ, JB, SV or SV’s mother. He provided two helpful written outlines of submissions.[8] Whilst the application was unsuccessful because the rules of evidence do not apply, it was a useful exercise as it highlighted the issue as to the weight that might be given to the ‘evidence’. As will be seen the evidence would not have been admissible if the rules of evidence applied. The Tribunal informed Mr Purnell that it could not say in advance what weight if any such evidence might have until it had heard the whole of the evidence. However during the course of later argument the Tribunal indicated that it would apply the principles explained in the cases in assessing such evidence. There is a useful summary of them in Medical Board v Hocking [2015] ACAT 44 at [16]-[21] where the Tribunal said:
[8] dated 16 August 2017 (signed by Ms Oldfield) and 21 August 2017 (signed by Mr Purnell)
16 It is accepted in professional disciplinary proceedings that the Board bears the onus of proving matters, and that the standard of proof in civil matters is the balance of probabilities. In disciplinary hearings of this kind, that is often expressed as requiring comfortable satisfaction or an ‘actual persuasion’.
17 The Board, in its closing submission, submitted that the Tribunal should be ‘comfortably satisfied to the Briginshaw standard’ that its charges were made out. Counsel for Dr Hocking reminded the Tribunal that its findings require an ‘actual persuasion, and not merely a mechanical comparison of probabilities’.
18 The Tribunal accepts that the rules of evidence ‘are founded upon principles of common sense, reliability and fairness’ and, to that extent the principles arising from the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J should apply. In so saying, the Tribunal is indicating its appreciation of ‘the need not lightly to reach conclusions carrying grave consequences’.
19 As Logan J observed in Sullivan at [8]:
… the Tribunal’s conclusions must be based on logically probative material [and] where that conclusion may have grave consequences for a party to the review … it would not lightly be reached and this factor intrudes on what the Tribunal should regard as probative in the making of a reasonable decision.
20 The Tribunal also notes, in the context of the reference to the ‘Briginshaw standard’, that in Sullivan, the Full Court of the Federal Court rejected a submission that the AAT had made an error of law in failing to adhere to the Briginshaw principle and confirmed that tribunals are not bound to apply the rules or principles of evidence, such as those arising in Briginshaw. As the majority in Sullivan observed, such a principle:
..would be inconsistent with the well-entrenched acceptance of the proposition that curial proceedings are inherently different from the tasks entrusted to decision-making by administrative tribunals and the Administrative Appeals Tribunal in particular; and would be inconsistent with the flexibility of procedure deliberately entrusted by the Legislature to the Tribunal.
21 That statement of principle is consistent with the recent observation of the High Court in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at 396 per French CJ:
The exercise of the Tribunal's freedom from the rules of evidence should be subject to the cautionary observation of Evatt J in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [(1933) 50 CLR 228] that those rules “represent the attempt made, through many generations, to evolve a method of inquiry best calculated to prevent error and elicit truth”. It is a method not to be set aside in favour of methods of inquiry which necessarily advantage one party and disadvantage another. On the other hand, that caution is not a mandate for allowing the rules of evidence, excluded by statute, to “creep back through a domestic procedural rule. (Footnotes omitted and our highlighting)
28.There are similar statements in numerous other cases. In ACT Medical Board v Newcombe [2012] ACAT 43 the Tribunal at [26] having adverted to the fact that the rules of evidence did not apply said:
given the serious nature of the proceedings it is appropriate that the Tribunal carefully scrutinise the information provided to it and ensure that only information that has a probative value is taken into account.
29.The obvious reason why the rules of evidence have a rule against hearsay and provides the opportunity to the adverse party to test evidence by cross examination is so that the adjudicator can assess the credibility of the person making the relevant representation and the person accused might have a fair hearing. We have borne in mind these principles in assessing the information that has been provided.
30.Whilst there is a suggestion that the test of being comfortably satisfied on the balance of probabilities articulated by Rich J in Briginshaw vBriginshaw (1938) 60 CLR 336 may not be obligatory, the Board accepted that it should bear that onus and bearing in mind the gravity of the allegations, we would be wrong not do so here.
31.In any event Mr Purnell drew attention to the facts that established that it could not be said that the witnesses were unavailable as defined in the ACT Evidence Act 2011. In doing so he took us to a chronology of the applicant[9] at T-documents page 412 (T62) and a number of T documents that contained the relevant material. This was a helpful way of reading the T documents and we will set out relevant contents of them where it assists in understanding the case against the respondent and what the respondent asserts are its shortcomings.
Allegations of JB
[9] It was prepared for an application to review an immediate action decision by the Board and in fact the applicant was the doctor as explained in paragraph 18 above
32.On 21 December 2016, the Board decided not to take any further action in relation to the “sexualised behaviour component”[10] of the complaint[11] primarily due to her reluctance to participate in the AHPRA[12] process.[13] At T183 it is clear that the Board made a deliberate decision not to proceed in respect of this aspect as it “considered that the evidence was insufficient … as the credibility of the notifier is likely to be an issue.. (JB) was unwilling to assist the Board and retracted both her draft statement and her willingness to participate.”
[10] The complaint also was that he inappropriately prescribed drugs of addiction to JB who had a drug dependent history
[11] Applicant’s statement of facts and contentions at [26]
[12] Australian Health Practitioner Regulation Agency
[13] This can be ascertained from T29
33.The notification was received on 13 August 2015. It is contained in T15 at T page 59. It was a telephone call to Matt Hingston who was a Health Services Commission Officer with the ACT Human Rights office. He then rang JB’s father. He sent an email of his notes of these calls to Stacey Yeats of AHPRA. The notes list in bullet point form the following conduct relating to sexual behaviour:
(a)Trying to have sex with her.
(b)Raping her.
(c)Molesting.
(d)Suggested that they could get a hotel room together.
(e)Saying if he has money issues she should go to see him.
(f)This conduct was happening for years.
34.The father told Mr Hingston that he was aware of the allegations and that they had been going on for about three years. JB had been mentally ill for 16 years which included bi-polar, drug addiction and PTSD as a result of being raped twice. The father added that the respondent:
(a)took advantage of JB who was vulnerable;
(b)there was sexual intercourse that occurred in the surgery;
(c)the conduct included fondling and asking to take her to a motel;
(d)doesn’t know if consensual but her capacity to consent was affected; and
(e)latest episode was 4-6 weeks ago when he tried to put his hands down her pants.
35.The matter was referred to the AFP. There was considerable email traffic between the AFP officer and AHPRA indicating that JB was not willing to complete her statement. There is a note of what she told the police when she first saw them at T-documents pages 174-177. In summary, she said the following. When he (referring to the respondent) put her on a Valium contract he started doing the wrong thing by her and being inappropriate. It started off with him sitting on the other side of a table and because she got teary he started holding her hands across the table. When she got up to go he would cuddle her. She had a breast enlargement in 2014 through another doctor. Afterwards he noticed and started kissing her. He started pushing himself on to her. She could feel him thrusting and kissing and putting his hand down her pants. This was nearly every visit. He also put his hands up her top and referred to her breasts as twins and asked to see them. He touched her breasts with his mouth. He got her to turn around so he could look at her bum. On an occasion when he was fasting as part of Ramadan and she had a cold sore he started kissing her, then he was groping her, and putting his hand up her top and trying to undo her pants. She was unable to react and said she froze. She said he had sex with her once in the doctor’s room.[14] She said she had been blackmailed into prostitution in the past and felt worthless. He said if you ever need money ask. He asked her to go to motels but it never happened.
[14] What that entailed is not explained but it would appear to mean intercourse
36.Subsequently Mr Walker SC[15], who had been briefed by the Board, had a conference with her on 9 June 2016 and prepared a statement[16] for her for the purpose of the immediate action review sought by the respondent in ACAT. On 14 June 2016 she told the Board’s solicitor that what she had told them – referring to her meeting with Mr Walker SC and the solicitor Ms Tilbrook was a “heap of shit.” This was part of a conversation with Ms Tilbrook in which she said she did not want to give evidence and would not cooperate.[17] The statement was still sent to the respondent’s lawyers on 18 June 2016 as was the statement from Ms Tilbrook about her conversation with JB. What she had told them was by reference to the AFP documents.[18] The AFP documents do not have the notes of the police officer referred to in the previous paragraph. They seem to have been made on 14 January 2016 (referred at T-document page 375). It does contain the note made by Mr Hingston. She withdrew the allegation of rape. The conduct had started in 2013 but reaffirmed the balance of the remarks with some irrelevant corrections.
[15] This is contained in a statement from Ms Tilbrook at T-document page 366
[16] T-document page 377
[17] T55. JB’s full remarks are at T-documents page 367 at [14]
[18] Ms Tilbrook says there were nine pages obtained on subpoena. There were only eight pages attached to her statement. They refer to starting a statement from JB on 14 January 2016 but not the content. This was obtained by AHPRA from the AFP by email and is T28 and contains many more pages. The crucial pages are 174-177
37.By way of comment, the remarks made to Mr Hingston are very general and if there was to be oral evidence about what happened there would need to be much more precise and specific descriptions of what in fact occurred and when. The police notes, when the officer was commencing to take a statement, are directed towards forming a proper proof of evidence. The statement taken by Ms Tilbrook and Mr Walker SC does not remedy this problem even if JB was prepared to adopt it and give evidence. That is not a criticism of the lawyers as there may be reasons why more could not be done then.
38.The Board by a letter of 31 July 2017 said they would not subpoena JB. No notice was given under section 67 of the Evidence Act 2011.[19] JB was not unavailable as defined in the Act[20] as there was no medical evidence establishing she was incompetent or mentally or physically incapable of giving evidence and she was not subpoenaed.
[19] This is a requirement for the admissibility of a statement by the witness who is not to be called. (sections 63 and 64) The statement is inadmissible hearsay in the absence of the person making the representation unless she is unavailable and notice has been given-although the notice can be dispensed with in appropriate circumstances
[20] (1) For this Act, a person is taken not to be available to give evidence about a fact if—(a) the person is dead; or (b) the person is, for any reason other than the application of section 16 (Competence and compellability—judges and jurors), not competent to give the evidence; or (c) the person is mentally or physically unable to give the evidence and it is not reasonably practicable to overcome that inability; or (d) it would be unlawful for the person to give the evidence; or (e) a provision of this Act prohibits the evidence being given; or (f) all reasonable steps have been taken, by the party seeking to prove the person is not available, to find the person or to secure the person's attendance, but without success; or (g) all reasonable steps have been taken, by the party seeking to prove the person is not available, to compel the person to give the evidence, but without success. (2) In all other cases the person is taken to be available to give evidence about the fact
39.As the rules of evidence do not apply here admissibility is not an issue. However, the weight to be given to the JB representations must be affected by the above circumstances. There is no signed statement and the content of the notification is the note by Mr Hingston and the note of the AFP officer on 14 January 2016.
40.It was submitted that JB’s derogatory description of what she told Mr Walker SC meant that she disavowed all her evidence. The AFP records and the interaction between JB and the Board or its lawyers make it very clear that she was always a reluctant witness and had to be coaxed to pursue the matter. She advanced her own instability and feeling of no self-worth as concerns. The fact remains that she did complain to Mr Hingston and later confirmed aspects of this to the AFP. Some weight must be given to the fact that she took what for most women – but particularly for her – was a courageous step in making the complaint. Whilst she did disparage what she told Mr Walker SC, it seems to us the most probable explanation for this was a wish to emphasise her unwillingness which was motivated by her fragile mental health. She didn’t tell him much. As can be seen she was not shown the AFP note of the 14 January 2016 anyway. Nonetheless, we accept that her remarks should not be narrowly confined to the corrections of the specific AFP documents but was intended to extend to her complaint generally. This conclusion means that we think that she was lying to Ms Tilbrook in order to convince her to leave her alone. This is an issue that would affect credit.
41.As was noted, the Board made the conscious decision not to proceed with this aspect of the complaint because they were worried about JB’s credit and that she may be a hostile witness. Nonetheless, the Board seeks to rely on it not as a separate complaint but part of a pattern. We shall return to this later.
Allegations of RJ
42.In August 2012[21], RJ made a complaint to the AFP. T7 describes it. RJ says she went to the medical centre to get a prescription, and the respondent touched her sexually whilst she was trying to pull away, and saying no. The respondent said book a double appointment next time. On 24 August the AFP officer wrote to AHPRA and said that RJ wanted to make a statement but wanted counselling first. Her date of birth was noted and showed that she was then 25.
[21] This is said to be 16 August but there doesn’t seem to be a document with that date. There is T7 which have emails from the AFP referring to an earlier phone call on 17 August about the complaint
43.On 4 September the Board decided not to take immediate action but to investigate.
44.On 11 September, there is an AFP note that RJ wants him to admit it to the Medical Board and if he does, she won’t proceed with police action but if he does not, she will make a statement.
45.On 15 September, the respondent wrote to AHPRA[22] He denied that he had sexually assaulted RJ. He agreed he had seen her on 15 August. She was accompanied by her husband, another new patient, who waited outside. She was very emotional. She was denied access to her children from a prior marriage because she had converted to Islam. She was planning leaving Canberra for Adelaide. He recalls putting his arms around her to give her some comfort. He ascertained she had made another appointment from the receptionist. That afternoon her husband confronted him and said “I’ll get you for what you did to my wife, you son of a bitch. Remember my face because I will come after you for what you did to my wife.” He did not then have any details of the assault alleged and expressed concern and volunteered to provide his notes if the patient consented.
[22] the chronology that is common ground apparently says the respondent was told of the matter by AHPRA on 28 August
46.From the chronology, AHPRA told the respondent about the investigation on 15 October.
47.On 19 October AHPRA asked AFP why they had not investigated and was told she wanted them to go first.
48.She spoke with an employee of AHPRA on 9 November 2012.[23] She said on 15 August 2012 she went to the surgery of the respondent. She saw him because he was Muslim. She had seen the respondent twice before. Her husband had also seen him. She was suffering from endometritis and a laparoscopy had weakened her bladder. The initial part of the meeting involved a discussion about medication including anti-depressants. She was upset and very emotional as she was worried about her physical and mental health at the time. The doctor reached his hand across the desk and said “Can I kiss you?”. She said “What?” He then tried to kiss her. She pulled away. He came around the desk on her left. He put his right hand on top of her clothes over her left breast. She said “No, No” and pulled down his hand. He “went underneath”. Again she said no and he started kissing her. He had already printed out the scripts. She pulled away and said “I need to get the scripts.” He kept on grabbing her. He went back to his seat and was flustered and said something to the effect “What am I doing?” under his breath. He gave her the scripts. He did not stay at his desk but was close to her and she felt intimidated. She tried to leave. He approached her again. He took off his belt. He asked her to get up on the bed. She said “No”. He was trying to usher her to the bed. She could see he was aroused. She was in shock. He said something like “Imagine what this would be like inside you”. She said “I have to go. I will come back another time.” He said “you are lying to me”. She said “I will come back tomorrow”. He said, “This is a busy day come back on Wednesday and book a double appointment.” She agreed. He then hugged her and wouldn’t let go and was trying to kiss her. She was pulling away and he put his hand down her pants and went inside her. She was numb but got away and he said I won’t follow you out pointing to his erection. She was still numb and went to the receptionist and made another appointment as she didn’t know what he might do. Her husband had been waiting for her. She cried all the way home. Her husband thought it was because of her health problems. She eventually told him and he returned and confronted the respondent much to her embarrassment. Her husband believed her and she decided to go to the police.
[23] T-documents page 50
49.The summary of the interview as above was sent to her on 12 November (T10). She appears to have sent it back on 11 December 2012[24] but the document is not clearly legible but there is a copy signed by her and the interviewer.
[24] T-documents page 49
50.On 28 November, the Board decided to refer it to the police as it was an alleged crime and take no further action.[25] The matter was closed and the respondent was told this on 4 January 2013.[26] The police also did this because they had no further contact with RJ.
[25] T-documents page 48
[26] T-documents page 58
51.There is no more information given to us about RJ and she has not been contacted or asked to assist with this hearing. Without making any conclusions about what happened on 15 August, it seems that this matter fell between the two agencies. This is regrettable. It is to be hoped that RJ has been able to put it behind her and has not been adversely affected by the way the matter was handled or not handled.
52.Clearly, it cannot be said that RJ is unavailable for the purpose of the Evidence Act and her representations also would not be admissible, if the Act applied.
53.There is also a submission in all matters that the documents relied on are not signed statements and their authenticity is not directly established. Theoretically it would be necessary to call the persons to whom the relevant allegations were made to establish this. It seems to us that in the context of this case we can accept that the officers who took the details are doing so in good faith and with care and that the notes they made are an accurate reflection of what was said by the notifiers. The summary of the interview with RJ is signed and there is an affidavit by SV (T 71).
Allegations of SV
54.On 11 March 2016 SV rang AHPRA[27] and said she had contacted the AFP to report the respondent and was waiting for them to take her statement.[28] SV said that she had been a patient of the respondent for three years and he had been grooming her. Grooming meant holding her hand and requesting her to wear certain clothing. On 4 March 2016 she said she had initiated a hug and he responded by kissing her. She returned on 11 March to confront him with a friend but the friend was not supportive of confrontation. She said he was nervous and anxious at this consultation.
[27] T Document 31
[28] Applicant’s statement of facts and contentions at [28c]
55.On 16 March she provided a written summary.[29] In it she said she had first started seeing him when she was nearly 20. He asked her not to wear a foxtail as it covered her bottom and he wanted a better view. He asked her to wear short skirts. He would touch her shoulder when she was leaving and hold her hands when she was upset. He suggested longer appointments. He felt her up when having to do physical examinations. On one occasion she had a mole cut out from her leg. He kept putting his hands very far up her inner left thigh in full view of a female nurse who was assisting. She believed the nurse was complicit in keeping this under the radar. She then was very suspicious. On 4 March she hugged him as a thank you for his help. He did not prevent the hug and tongue kissed her. She pulled away and asked if he had an ugly wife. He said “Don’t you like me?” She took a friend the next time but the friend was not up for a confrontation. She thought he was nervous. She decided to contact the police.
[29] T32
56.On 17 March 2016, an Immediate Action Committee (IAC) met and decided to impose conditions.[30] The respondent was notified the next day. It led to the review application decided by Presidential Member Daniel on 19 August 2016 that imposed conditions also. The IAC also decided to commence an investigation.
[30] T35
57.On 20 or 23 May 2016 AHPRA was told that AFP had no records. It contacted the AFP who said they were waiting for the AHPRA investigation.[31]
[31] T45
58.At T71 there is an affidavit of SV dated 7 November 2016. It is consistent with the other documents but has more detail and is in admissible form. In respect of the mole removal, she describes where the mole was. It was on the front of the thigh a fair way up. There is also a photo of the fox tail. She says she wears short skirts for comfort reasons because of her health issues.
59.She explained there was a nurse present during the mole removal procedure. She said the respondent kept putting his hand up her inner thigh and she told him to stop and he did not. The nurse was looking right at it and didn’t seem to mind.
60.There is also a statement from SV’s mother T69. It indicates that SV had confided in her about her concerns in a general way and also in relation to some specifics. Without going in to great detail there are possible inconsistencies between what the mother says and what SV says. It might be seen as some corroboration if it could be a contemporaneous complaint. It is not expressed in language that makes that clear. In a Court it would otherwise be inadmissible hearsay even if she did attend the Court.
61.Ms Tilbrook is told by SV on 1 August 2017 that she no longer wished to cooperate as she was pregnant and it was high risk. She did not need this traumatic experience and did not want to be involved and she would not sign a statement or attend the hearing of the review of the immediate action decision. Ms Tilbrook has provided a further statement dated 2 August 2017. It is not part of the T documents and was not referred to by Ms Musgrove in her opening. However it has been filed and served and we will treat it as part of the Board’s case.
62.For the same reasons as those in respect of JB and RJ she is not unavailable under the Evidence Act and her statements would be inadmissible in a Court where the rules of evidence were applicable.
The course of the hearing
63.In respect of the application the respondent was told that the Tribunal agreed that the out of court statements or evidential material emanating from the three notifiers would not be admissible in a Court of evidence but we could have regard to them. He was also advised, on enquiry, that the weight to be given to such material was something that needed to be considered on completion of all the evidence. There was also some debate of the term tendency evidence and how it might apply. Assuming the Evidence Act applied the tendency evidence would need to be admissible in form and probative. As the Act does not apply it is a moot point. Nonetheless, it is of some moment when considering what is necessary for there to be a pattern of conduct arising from the notifications and on a practical level how probative the out of court statements may be, given the lack of opportunity to test their veracity and like considerations.
64.Mr Purnell SC made a no case submission anyway and that was not granted as there was material that if accepted would be capable of establishing the allegations. Also attention was drawn by the Tribunal to the cases of Health Care Complaints Commission v Wingate[32] and Re Veron; Ex parte the Law Society.[33] These cases deal with the duty of a professional to cooperate with any enquiry and affect the forensic decisions that may be made in disciplinary cases as opposed to a criminal case. In this context it should be considered if deciding whether to call the respondent. In any event for whatever reason he was called and cross examined. We will refer to that shortly.
[32] [2007] NSWCA 326
[33] (1966) 84 WN (NSW)(Pt 1) 136
65.In the course of her submissions, Ms Musgrove said that there was no right to cross examine witnesses and gave authority for that in Tribunals such as this. She also questioned what was lost by not being able to do so. It is worth repeating here what was said at page 37 of the transcript.
SENIOR MEMBER MEAGHER: Can I just ask you one question about that? If the complainants were here and cross-examined, it may turn out that they’re shown not to be telling the truth. Whereas, if they’re not here and they’re not-cross examined, we don’t know that. Whilst as you say correctly, that there’s no automatic right of cross-examination, we do have an obligation to provide fairness to both sides, and if there’s an allegation made, of series (sic) misconduct, which will have devastating impacts upon the person against (indistinct) made, and subject to anything (indistinct), it seems to me, would it be unfair not to allow the person concerned, to have the opportunity to cross-examine that complainant, if it was possible.
66.What was really being submitted was that the elements of three of the matters were in effect admitted or objectively established. It did not deal with Count E dealing with a pattern of conduct.
The course of the hearing after the respondent’s application
67.The Tribunal was told that Dr Reid was not needed for cross examination. His evidence is at T70. He is a psychiatrist. He explains what is meant by the term dissociative disorder. It is a mental illness. The relevance of this was in considering whether the respondent had breached his undertaking to the Board referred to earlier. SV had a record in the clinical notes of having a dissociative disorder in 2008. This was described by Dr Reid as a disruption of the usually integrated function of consciousness memory identity and or perception. It will be recalled that SV on her visit of 17 November 2015 was confabulating. This is a psychiatric term. It was partly explained by the respondent when he gave evidence. This will be referred to shortly.
68.The Board also relied on the Medicare records which showed that the consultation of 17 November was billed as a mental health consultation.
69.There was no other evidence from the Board in chief. In the statement of facts and contentions the Board has set out what parts of the T documents represent the case being made by the respondent in various statements supplied. They will be described below.
The respondent’s case: the evidence
70.The respondent relied on statements made in the immediate action review.
71.T38 is a statement the respondent made in respect of SV. He enclosed a copy of her clinical notes. They are in T41. He says he first consulted her on 16 October 2012 for a certificate for mobility parking. He saw her on 31 occasions. She also consulted other GPs at the practice on three occasions during this period. He listed the medical conditions for which he saw her. The conditions are all physical. Some may have required intimate examinations e.g. STI test; breast lump (twice), swollen glands in the groin region; polycystic ovaries, haemorrhoids and pelvic pain.[34] There were lengthy periods when she did not see him at all.
[34] This is our observation not his
72.He responded to the specific allegations. He agreed he did ask her not to wear a foxtail. Apparently this was attached to the back of her pants and came down past her other clothing. He did not recall when he did this. It may have been late 2013 or early 2014. After he made the request she continued to see him without it.
73.He asked her to do so because he had comments from other patients in a family practice and he did not want them affected.
74.He did not say to remove it to give him a better view of her backside. He also did not ask her to wear short skirts.
75.He did not recall touching her shoulder but it was possible that he did, while showing her out as a friendly gesture.
76.He agreed he did hold her hands on one occasion. It was after she had difficulties with her mother. He did not know in advance that was why she came to see him. He was aware of his undertaking not to treat mentally ill patients. Although he had noted that she had a prior mental health history in 2008 he had never seen her for such a condition. SV was extremely emotional. She was confabulating by which he meant she was speaking as though her mother was in the room.
77.He took her hand to try and calm her down, to comfort her, empathise with her and to try and get her to focus. It was his intention to calm her down enough to focus so he could determine what to do next. With the benefit of hindsight he regretted doing this as he can see how that appears to have been misconstrued. She did calm down. He told her if she wanted to seek further treatment for her feelings to come back and see him and he would arrange a referral to another colleague. The reference to anti-depressants in the clinical notes was in part to see if she needed a referral for an urgent mental health consult and medication or whether she was simply upset and merely wanted to talk. He rejected the suggestion that he had held her hands on other occasions.
78.He did suggest she make longer appointments on occasion but does not remember when. SV was a disjointed and difficult historian and would often change the subject and not answer questions directly. The reason for suggesting longer appointments was to give him time to get a coherent account of what was needed and to avoid inconvenience to other patients.
79.He rejected that he tried to feel her up. He did examine her for breast lumps twice after a report of a lump and this was followed with diagnostic ultrasounds, He also examined her chest for possible chest infection, He examined her pelvis once after she had a miscarriage. It was followed by a diagnostic ultrasound. He excised a mole from the left thigh and later removed sutures.
80.In respect of the incident of 4 March 2016, he agreed that she hugged him before he had opened the door to show her out. At the conclusion of the hug he did kiss her on the cheek lightly and with a closed mouth as he would to welcome or farewell a friend. He did not kiss her with his tongue. He agreed that before the hug she asked him if his wife was ugly and he said she was not. In retrospect he should not have reciprocated and can see how a friendly interaction was misconstrued.
81.On 11 March 2016, SV did attend with a woman. He did not ask what their relationship was. He did not speak to the other woman. He heard some whispering but did not hear what they said.
82.She advised him she had given up marijuana. They discussed the ultrasound results for the pelvis and breast and other matters. He was not flustered.
83.He rejected that he was ‘grooming’ her.
84.In respect of RJ, he said that the complaint was by RJ’s husband and was not investigated by AHPRA. He had never been contacted or charged by the police. In respect of JB he cooperated with the investigation and freely gave the undertaking. He denied the allegations and has never been told about any steps taken in the investigation.
85.He said it was unfair to use these complaints against him as though they are statements of fact, when no investigation had been fully undertaken by AHPRA and the police had not contacted him about the matters.
86.In respect of the undertaking, he had not treated SV for mental health issues prior to giving the undertaking and felt he had not breached it. He had personally referred twelve patients since the undertaking. He had made the practice aware not to give him such patients and he believes consequently a number of potential patients have been redirected to other practitioners.
87.The balance of the statement, which was made at the time of the immediate action review, deals with the impact of the conditions.
88.There is also a statement T51 that deals with the impact of the conditions.
89.Also, there is a statement T59 dated 27 June 2016. In it he says he had not previously seen the summary of RJ’s interview. He denied its contents.
90.Similarly he had not previously seen the JB documents and in particular the notes of the AFP of her proposed statement made on 14 January 2016. He denied these allegations. He had previously made a statement for the Board in respect of JB and he attached it. It is similar in content to what has already been said.
91.There are also other documents, he submitted, in the T documents. His letter to AHPRA about RJ has already been referred to. There are also the following documents. His signed undertakings (T3); a statutory declaration of 14 March 2016 (T5)[35]; a statutory declaration of 22 January 2016 (T26);[36] further statutory declaration about employment status dated 14 September 2016 (T65); statement (T68 and T69) denying the contents of the SV affidavit and SV’s mother’s statement.
[35] He says he is not practising and will tell AHPRA if that changes
[36] He says he is complying with the undertaking
92.The respondent relied on a number of statements by others namely Faye Salcedo of 22 March 2016 (T39); Kim Stratford of 22 March 2016 and 30 May 2016 (T40 and T52) and Samantha Cleary of 1 July 216 (T61).
93.Apart from Ms Salcedo none were required for cross examination and the contents were accepted.
94.Ms Stratford was the practice manager of the medical centre. She is aware of the SV complaints. She has spoken to SV many times over the years. On her observation when SV left the respondent’s consulting room after a visit she appeared happy and talkative. She often stopped for a chat. She never appeared stressed or upset when she left the room. On 4 March 2016 she does not recall speaking to SV. She saw her before and after the consultation of 11 March 2016. She did not see her looking upset or uncomfortable before the consultation and SV waved goodbye when she left. She saw there was another person with her but that was not an unusual event. SV had never made any complaints to her about the respondent but had about an “unfriendly” receptionist. She knows of the undertaking and had personally referred over 40 patients to other doctors in order for the undertaking to be complied with.
95.In the second statement, she says that since the conditions imposed, the respondent had not worked at all and she explains the patient mix and the practical difficulties caused by the conditions.
96.Ms Cleary was at reception on 12 August 2012 and recalled RJ’s husband demanding to see the respondent and eventually he did and spoke to the respondent in a raised voice and afterwards the respondent was apparently flustered and shocked.
97.Ms Salcedo was the nurse who assisted with the mole removal from SV’s leg. In her statement she says she is a registered nurse and has been employed at the Conder Surgery since about April 2014. She is aware of the SV complaints. She reviewed the notes and confirmed that a mole removal procedure occurred on 29 August 2014. The mole was high up on the outside of the patient’s left upper thigh towards the hip. She placed SV on her back in one of the treatment rooms while waiting for the respondent to finish with another patient.
98.They chatted. SV was wearing extremely short shorts and a long tail with fluffy boots. When the respondent entered the room he said “Why are you wearing those things? Didn’t I tell you not to...”. SV was not upset and she was laughing with the respondent. The procedure took about ten and fifteen minutes. The respondent was in the room for about 5 and 10 minutes and he excised the mole and stitched the wound. She finished the procedure by dressing the wound. She did not see the respondent putting his hand on her inner thigh. After the respondent left SV seemed happy and relaxed. She discussed her returning for the stitches to be removed and how to look after the dressing. She had not seen SV upset or uncomfortable when she had seen her attending the surgery.
99.Ms Salcedo was called. She is now employed elsewhere. She confirmed her statement was true and correct. She then was asked to visualise the events without the aid of her statement and she then gave an account that was totally consistent with it. She described the interchange about clothes as the respondent speaking in a fatherly way. She was on one side and the doctor on the other. The mole was on the anterior lateral side of the left thigh. The respondent had sterile gloves on and he sterilised the area with Betadine. He then injected a local anaesthetic to the area of the excision. There was a wait of three minutes for it to take effect. He then excised the mole and it is sent for a biopsy. He stitched the wound. She does not recall any conversation. She did not see the respondent put his hands anywhere inappropriate. He left and she dressed the wound. SV seemed happy. She was very close and could see the thigh and the doctor. She did not hear SV saying anything to the doctor about his hands. She had to have things ready for the doctor and may need to look away from the scene directly in front of her momentarily. There were no complaints made by SV to her or the respondent then or after the respondent left the room. The respondent was not alone with her during this procedure. In cross examination, she agreed that she walked around to the other side as well and had to look where she was walking. She also had to look at the tray to collect the next item. She had to maintain observation of the procedure so she would know what to do next. It was possible that, if it took place, she may not have seen the respondent put his hand on SV’s upper thigh.
100.The respondent was called. He said that the statements he had provided were true and correct. He started at the practice in 2010. He was asked about SV and the hug. He agreed he had put his arms around her too. SV was shorter and her arms would have been around his waist. His arms around her back closer to the shoulders. His hands would have been on her back.[37] He hugged patients on occasions and said it was his cultural background. This was later clarified as Italian, as although born in Egypt, he spent his formative years in Italy. He said he did not regard the hug as intimate or sexual. He kissed her on the mid cheek. It was a friendly kiss. He said:[38]
Again, I have patients currently that hugging and kissing on the cheek is part of the relationship doctor/patient. Without any malice. It's not – it has no content except being a friendly gesture.
Would you describe that kiss as intimate or sexual?---No, I don’t 'describe them as intimate and sexual. In hindsight, however, I have should have declined or rejected the hug and all what followed.
[37] Transcript of proceedings page 59
[38] Transcript of proceedings page 60
101.He was then asked about the clinical notes and explained when he had first seen her and that she had not demonstrated any mental issues from then. The 2008 past history was not an evidently ongoing problem and he did not see her as a patient with a current mental illness at least up until the 17 November 2015 and he had no indication until she arrived that she might be. He went through his notes and explained as he had in his statements what had occurred. He drew a distinction between a reactive upset and an ongoing mental illness. He thought she was probably only reactive and did not believe he was in breach of his undertaking.
102.He denied he had engaged in sexual conduct with or digitally penetrated RJ. He denied he had sought to coerce her into a sexual relationship. He did hug her and does not know whether it was consensual.
103.He did not try and have sex with JB. He denied he raped or molested her. He denied he said they should get a hotel room together. He denied he had invited her to ask for money from him and said he was on a tight budget then. He denied doing anything of a sexual nature with RJ and JB.
104.He was cross examined. He agreed he understood the Medicare item numbers. He agreed that on 17 November 2015 when SV was depressed and confabulating, it was he who chose the item number. He agreed that depression was a DSM-V mental disorder. He agreed that he had billed it as a mental health consultation. He agreed that the presentation met the description of what was prohibited by his undertaking. He agreed that this extended to temporary conditions. The consultation was over 20 minutes. He agreed that it went for over 20 minutes but thought stopping the consultation once the problem was recognised would be difficult as she was upset.
105.At transcript page 68 he accepted he was in breach of his undertaking but argued it would have been difficult to abruptly terminate the consultation. He insisted that if she came back again needing medication he would have referred her on. It was suggested he would not and did not.
106.He did not demur from the suggestion that every time he treated SV afterwards he was in breach of his undertaking but said that he had not treated her for mental issues.[39]
[39] Transcript of proceedings page 69: “But in light of what she's told you on 17 November, and in light of the fact that you've actually charged it as a mental healthcare consultation, you are actually in breach of your obligation, your undertaking, to the board, aren't you? On each occasion after 17 November, you're in breach of your undertaking? ---I accept that I am in breach of - of - I am - my undertaking on 17 November. But subsequently, I never treated her for any mental illness.”
107.It should be noted that she complained of stress related acne when she came back the next time and the existence of the stress may well have flowed from the events the source of the episode on 17 November and he had not referred her on.
108.In respect of RJ he agreed she was upset and crying. It was suggested he held her hand across the desk. He did not recall but shrugged his shoulders when he said that.
109.He denied the specifics of the three complaints.
110.He agreed he held patients hands when they were upset on occasion.[40]
[40] Transcript of proceedings page 75, line 26
111.There was no direct challenge to his assertion in chief that the SV kiss was not sexual. However at page 80 such a statement was challenged by reference to the fact that he had agreed when first registered to abide by the rules; that he knew the Board frowned on physical or inappropriate contact; and the complaints of RV and JB; and yet he had still thought it appropriate to hug and kiss SV. He accepted that it was a breach of the code of conduct.
112.He said in answer to a question from the Tribunal that he did not know what RJ’S husband was upset about as he did not say. He thought it may have been about the advice he gave RJ to stay in the ACT where her children were and not to go to South Australia as her husband wanted.[41]
[41] During argument the Tribunal raised this answer as not convincing. However, having read the transcript it is not an obviously untrue response from the respondent and is arguably a neutral matter. The words used by RJ’s husband were fairly extreme and were consistent with what RJ said to AHPRA. It is probable that that is what she told her husband and the language he used reflects that. It seems over the top if all he was angry about was the advice to stay in the ACT. However, assuming the respondent is innocent of wrongdoing with RJ, it is consistent with that position as he could not have known then and was not told by the husband. He is thus trying to make sense of it by reference to what he does know. We refer to this later.
113.In addition, the respondent tendered from subpoenaed documents a note from a Dr Goel who was in the same practice. It was marked R1. It shows Dr Goel was not prepared to allow SV to misbehave. She called him beautiful. There was an objection to it on the basis that we did not know its context and whether it could be relevant to the issues regarding her conduct towards the respondent. It was allowed on the same basis that the Tribunal was not bound by the rules of evidence and would give it such weight as it might bear based on the contrary submissions about it. It was argued by the respondent to show that SV was prone to initiating boundary violations. It may also throw doubt on the credit of SV. We will refer to this later.
The arguments
114.We were assisted by even more written submissions from both sides in respect of their closing addresses.
The Board’s case
115.At the hearing the respondent addressed first but it seems useful to start with the Board’s final address as it explained the case that was being met by the respondent.
116.The statutory framework was explained. We have already set out a number of the relevant provisions. The standards that are imposed on registered doctors were also addressed. There is no argument about what they provide. Most relevant in this context is T76 entitled ‘Sexual Boundaries: Guidelines for doctors’. [42] At T-documents page 570 clause 8.2 it states “Professional boundaries are integral to a good doctor-patient relationship.” It explains why. It adds that good medical practice involves never using your professional position to establish or pursue a sexual, exploitative or other inappropriate relationship with anybody under your care. It explains that to do so is a breach of trust and unethical even if consented to. It describes the power imbalance between a doctor and patient. At 8.3 it states that sexual misconduct covers a wide range of inappropriate professional behaviours and gives examples. It is said to include touching patients in a sexual way. It says sexualised behaviour includes any words or actions that might reasonably be interpreted as being designed or intended[43] to arouse or gratify sexual desire. Later it says “the doctor’s intention… does not minimise the seriousness of the behaviour.” Later again, it says that a sexual relationship describes the totality of the relationship between two people when there is some sexual element including any sexual activity and this is the position even where the patient initiated the sexual relationship.
[42] This is made admissible by section 41 of the National Law
[43] Our highlighting
117.The Board submitted that the conduct was in each instance established unprofessional conduct at least and in respect of Count E relating to a pattern of conduct it amounts to professional misconduct.
118.It was submitted that the respondent admitted he had breached the boundaries in respect of SV in respect of the hug and kiss.
119.The Board accepted that it had the onus of proof and the standard of proof in respect of facts to be established was to the Tribunal’s comfortable satisfaction on the balance of probabilities. In respect of Count E, section 151 of the National Law allows the Tribunal to take into account a pattern of conduct from prior notifications even though the Board took no action in respect of the prior notifications.
120.There were four counts. Ground C related to the hug of SV. Ground D related to the kiss of SV, conceded to be on the cheek. Ground E related to the pattern of conduct in respect of the three women and Ground F related to the breach of undertaking.
121.It was not in issue that the respondent was a registered medical practitioner.
122.In respect of Ground C, the Board relied on T31 which is the summary of the verbal notification by SV; T32 which is her statement; T71 her affidavit; T38 which is a statement of the respondent; T68 a further statement of the respondent; the standards and guide at T73 and T76 and the oral evidence of the doctor.
123.In respect of Ground D, the kiss, the Board relies on the same material.
124.The hug and the kiss are admitted. The respondent conceded he was aware of the conduct code and agreed he was in breach of it.
125.In relation to Ground E there are three notifications involved. The information regarding SV is the same as for Grounds C and D. In respect of RJ the Board relies on T7, the AFP emails to AHPRA; T10, the interview with RJ by AHPRA; T12 the note from RJ and the interview summary signed by her and the interviewer; T8 the letter from the respondent (he admits putting his arms around her for comfort, denied being inappropriate and described the later angry confrontation by her husband).
126.In respect of JB the Board relied on T15, described as an email chain between the AFP, JB and her father. It actually starts with an email from Matt Hingston from the Human Rights Commission as described earlier. T27 another email chain involving the AFP and JB and AHPRA. It shows the failed attempts to get her to follow up with her complaint. Also relied on is T28 which has similar emails but at pages 174-177 is her initial statement to AFP made on 14 January 2016. Its contents have been described earlier in these reasons. In fairness T55 was also included being the statement of Ms Tilbrook the solicitor and it has the draft statement prepared for JB but which she later described as a heap of shit.
127.It was submitted that JB does not resile from what she told the AFP but only what she told Ms Tilbrook and Mr Walker SC. Counsel made the following submission at page 119 of the transcript.
MS MUSGROVE: In my submission, she had told Ms Tilbrook that she told her nothing but “A heap of shit” because she was emotional fragile, and she was not in a position to proceed with this. And what she said to Ms Tilbrook was not truthful - and her emotional fragility is actually reflected in her interaction with the police as well.
128.It was submitted that although the three patients had not been called, we could have regard to it by reason of section 151 of the National Law. There was a dialogue with the Tribunal about how that works in practice where the complainants are not called. Reference was made to tendency evidence and the recent case of Hughes v The Queen [2017] HCA 20 in the High Court about section 97(1)(b) of the Evidence Act. Hughes was the Hey Dad actor who was said to have engaged in numerous sexual acts with younger girls. It is important as it corrected a divergence between NSW and Victoria on how to apply the section. The section is as follows:
Breach of undertaking Ground F
153.In our view, there is no doubt that he had breached the undertaking. We accept that this was not done until 17 November 2015. Whilst there was a past history of a mental illness in 2008 the respondent did not start to treat her until 2013. The signs of eccentricity in SV cannot reasonably be said to indicate she was still affected by her 2008 problem. It was not unreasonable for the respondent to see her as a patient without any continuing mental illness. However, after 17 November there was no excuse. We accept that he did not know that SV was coming to see him about an emotional issue and that it would have been reasonable not to end the contact abruptly. However, he did not end it at all and billed it as a lengthy mental illness consultation. His notes reveal a number of clear mental illness issues and there is no evidence he referred her at all. He continued to treat her although not in respect of mental illness. He should have done what Dr Goel did and arrange for her care to be with someone more appropriate. It was after this that the 4 March 2016 allegations arose. His initial attempt to distance himself from being in breach was unconvincing and not to his credit. However in effect he conceded his breach when pressed in cross examination. This attempt at justification is a matter that might be seen as adverse to his credit to some extent
154.The question of how one categorises the conduct must take into account the unchallenged evidence of Ms Stratford of the number of patients actually referred on. We see it as unsatisfactory conduct but not misconduct.
Ground E Pattern of conduct
155.To unravel this we must examine the quality of the evidence against him from each notifier.
156.In respect of SV only the hug and kiss were seen as acts that should be alleged separately. The kiss was said by her to be a tongue kiss. The Board has not accepted this and run a case that it was a cheek kiss as was admitted by the respondent. Whilst section 151 allows the pattern claim to proceed even though the original claim did not, this does not seem to apply to SV as there is a claim made in respect of her notification. The pattern might be used as ‘tendency’ evidence to support it but the groping and inappropriate comments were abandoned. They are not alleged in Ground E either.
157.Further she was not called and the weight that can be given to her written notification is slight. Her reasons for not coming may well be understandable but the respondent is denied his opportunity to test her evidence. The Tribunal is required to be fair. It is required to be persuaded that her allegations are correct. It can’t be in these circumstances.
158.Additionally, her evidence is contradicted by Ms Salcedo in respect of the mole removal allegation and we believe Ms Salcedo. She has acted oddly with Dr Goel as well. We are not saying she had no cause for complaint but only that we are not satisfied about the other conduct alleged in her notification. Thus her evidence supports the other two only to the extent of the particulars in Ground C and D. It may be that the other two notifications are relevant to the subjective state of mind of the respondent in respect of Ground C and D.
159.In respect of JB, she was lying about something – either her initial complaint or about her description of it to Ms Tilbrook. The particulars given in the application are inappropriate anyway. They are taken from the initial notes of Mr Hingston. They are generalised and vague. They are to some extent inconsistent with the initial notes taken by the AFP officer on 14 January. The matters in that note would have been appropriate to allege. Whilst they might enable an allegation of rape on one occasion that is by no means clear. There is no corroboration and her generalised assertion to Mr Hingston is wrong in part. She said this in her draft statement that was attached to Ms Tilbrook’s statement. It should be noted too that the application does not even allege that these matters are true. In order to make sense of the allegations we have assumed that this is to be an implied allegation.
160.We are inclined to accept that JB’s reason for not coming to give evidence is due to her strong wish to avoid being emotionally threatened. It fits with the difficulties the AFP had in trying to progress the matter. However, bearing in mind the standard of proof and the absence of any oral evidence or corroboration we are not actually persuaded that these events occurred. This does not mean that we reject that they may have, only that we cannot be satisfied that they did. Additionally the respondent did give evidence denying them and was cross examined and there was nothing in that to reject his denials.
161.In respect of RJ there is nothing about her statement that is inherently problematic. It is in admissible form. The language of her husband to the respondent is consistent with her telling her husband what she told AHPRA. There is nothing incredible about T7 the letter written by the respondent to AHPRA. There is nothing about his oral evidence that might affect his denials in this regard. We are left with two equally possible outcomes. The respondent has not had the opportunity to cross examine RJ. There is no real explanation about why not. The respondent admits he hugged her and may have held her hands. The hug would appear to be in breach of the code of conduct. The respondent admits to handholding on other occasions. Whilst we do not reject the statements in the notification we must be comfortably satisfied that it happened. In her interview with AHPRA shortly after the consultation with the respondent, she said that she cried all the way home, had a shower and went to bed. Such a response is consistent with being sexually assaulted. The reaction of her husband is also consistent. Therefore, even though neither the husband nor RJ gave oral evidence, the complaint gets weight from the early complaint, the internal coherence of the statement and the dramatic response of the husband and the behaviour described by RJ of crying, showering and going to bed. Unlike the other two notifications, there are no obvious credit issues in this material. We are certainly not comfortably satisfied that it did not happen.
162.On the other hand, the reason we know what the husband said is because the respondent told us. We do know he was angry and confronted the respondent from the evidence of the receptionist and from what RJ said. The respondent could have not volunteered the words used in the conversation but he did so unasked. If he is lying about his conduct why would he provide such a potential damaging version of events.
163.As we have already noted, the rules of evidence would not enable the RJ statement to be received. Also, as noted, the reason why the rules exist is to ensure the truth is obtained and here we have been deprived of the opportunity to assess the evidence and the respondent has been denied the opportunity to test it. Additionally, there is nothing in the way the respondent was cross examined about this matter that could lead us to be concerned about his credit.
164.On balance with some misgivings we are not in a position to be comfortably satisfied that the respondent committed the very serious acts alleged.
165.Having said that we are persuaded that three women, unknown to each other, all felt that they had been inappropriately dealt with sexually and were sufficiently discomfited to inform the police and AHPRA. Whilst it is possible that some or all of them are lying about all or some of it we do not think that it is probable they are all lying about all of it. We cannot conclude that each person is telling the truth about each matter but the fact that each has made assertions with the similarities described by Counsel for the Board leads us to believe that objectively the admitted conduct is sexual behaviour. We cannot make a finding that any of the specific events – other than those admitted – occurred particularly the most serious matters.
166.We also are persuaded that the respondent was at best reckless with JB and more so SV given the serious allegations already made against him by RJ and then by JB and the concern that the Board had expressed about it.
167.In the circumstances, we find that Counts C and D together and Count F amount to unprofessional conduct. Whilst this does not involve a finding that he has committed the serious sexual acts particularised in E he is also in breach of the Code in respect of RJ in his admitted hugging of her and that is also unprofessional conduct. We are persuaded that the objective circumstances are such that there is real sexual aspect to the acts in C and D and the hugging of RJ in E and that the respondent was reckless in allowing this and other acts of hugging to occur.
168.The findings we make do not include any adverse findings about specific acts other than those listed but do accept the conclusions in Counts C, D and E as to the way the conduct may be described. We have considered whether this globally might be professional misconduct. It is certainly arguable that it is but in view of the fact that we have not made findings about the most serious allegations we have not been persuaded to so find.
………………………………..
Senior Member B Meagher SC
Signed for and on behalf of the Tribunal
ANNEXURE A
MEDICAL BOARD OF AUSTRALIA
Applicant
v
DR MOHAMED HELMY
Respondent
AMENDED GROUNDS OR ALLEGATIONS RELIED UPON IN SUPPORT OF
APPLICATION FOR OCCUPATIONAL DISCIPLINARY ACTION
1.Dr Helmy, a registered health practitioner, has behaved in a way which constitutes:
(a) professional misconduct; or
(b)in the alternative, unprofessional conduct; or
(c) further in the alternative, unsatisfactory professional performance,
within the meaning of section 5 of the National Law, as outlined in paragraphs 3-42 below.
2.At all material times, the respondent was working as general practitioner at the Conder Surgery.
A.Boundary Violation – inappropriate sexual comments
3.Between approximately October 2012 and March 2016, the respondent engaged in professional misconduct by making inappropriate comments of a sexual nature to patient SV during consultations during which he provided medical services to her as her general practitioner.
4.Patient SV had been a patient of the Condor Surgery from approximately 16 October 2012 until 11 March 2016. Patient SV regularly attended upon the respondent, except when he was on leave when she would see another practitioner at the practice.
5.Patient SV was approximately 20 years old when she first attended upon the respondent as a patient.
6.During the named period, the respondent made inappropriate sexualised comments to Patient SV by:
(i)asking her not to wear certain items of clothing so he could obtain a better view of her backside;
(ii)asking that she wear short skirts when attending consultations with him; and
(iii)asking her to make longer appointments with him (without providing a legitimate medical reason).
7.The respondent’s inappropriate suggestive and sexual comments (to patient SV) during the named period posed a serious risk to persons and the patients he was treating, and could endanger public health and safety. The respondent’s actions also had the potential to endanger the health and safety of patient SV.
8.The respondent’s inappropriate comments of a sexual nature towards patient SV, whilst working as a health practitioner, is conduct substantially below that reasonably expected of a registered health practitioner of an equivalent level of training or experience and fails to meet the standard of practice articulated in clauses 1.4, 2.1.4, 2.4.1, 3.2.1, 3.2.6, 3.11.4, 3.13, 8.1, 8.2.1, and 8.2.2 of the relevant code of conduct (Good Medical Practice: A Code of Conduct for Doctors in Australia).
9.The respondent’s behaviour, by making inappropriate sexual comments towards Patient SV, fails to meet the standard of practice outlined in Sexual Boundaries: Guidelines for Doctors – a guideline developed and approved by the applicant pursuant to section 39 of the National Law which provides specific guidance to practitioners regarding sexual boundaries in the doctor-patient relationship.
10.The respondent’s behaviour also meets the descriptions of “sexual misconduct”, “sexual exploitation” and “sexual harassment” within Sexual Boundaries: Guidelines for Doctors – a guideline developed and approved by the applicant pursuant to section 39 of the National Law.
B.Boundary Violation – inappropriate sexual comments
11.On 4 March 2016, the respondent made inappropriate sexual comments to Patient SV by stating words to the following effect:
(i)[after pulling away from a hug with Patient SV] “But don’t you like me?”;
(ii)“[his wife] was not that ugly”;
(iii)“I like you and I thought you liked me?”
12.The respondent’s inappropriate sexual comments to patient SV during the consultation on 4 March 2016 posed a serious risk to the patients he was treating, and had the potential to endanger public health and safety. The respondent’s actions also had the potential to endanger the health and safety of Patient SV.
13.The respondent’s inappropriate comments of a sexual nature towards Patient SV, whilst working as a health practitioner, is conduct substantially below that reasonably expected of a registered health practitioner of an equivalent level of training or experience and fails to meet the standard of practice articulated in clauses 1.4, 2.1.4, 2.4.1, 3.2.1, 3.2.6, 3.11.4, 3.13, 8.1, 8.2.1, and 8.2.2 of the relevant code of conduct (Good Medical Practice: A Code of Conduct for Doctors in Australia).
14.The respondent’s behaviour, by making inappropriate sexual comments towards Patient SV, fails to meet the standard of practice outlined in Sexual Boundaries: Guidelines for Doctors – a guideline developed and approved by the applicant pursuant to section 39 of the National Law which provides specific guidance to practitioners regarding sexual boundaries in the doctor-patient relationship.
15.The respondent’s behaviour meets the descriptions of “sexual misconduct”, “sexual exploitation” and “sexual harassment” within Sexual Boundaries: Guidelines for Doctors – a guideline developed and approved by the applicant pursuant to section 39 of the National Law which provides specific guidance to practitioners regarding sexual boundaries in the doctor-patient relationship.C.Boundary Violation – inappropriate sexual contact
16.Patient SV had been a patient of the Condor Surgery from approximately 16 October 2012 until 11 March 2016. Patient SV regularly attended upon the respondent, except when he was on leave when she would see another practitioner at the practice.
17.Patient SV was approximately 20 years old when she first attended upon the respondent as a patient.
18.On 4 March 2016, the respondent engaged in professional misconduct by inappropriately touching Patient SV in a sexual and/or intimate manner by hugging her during a consultation during which he provided medical services to her as her general practitioner.
19.The respondent’s inappropriate sexual and/or intimate contact with Patient SV during the consultation on 4 March 2016 posed a serious risk to the patients he was treating, and could endanger public health and safety. The respondent’s actions also had the potential to endanger the health and safety of Patient SV.
20.The respondent’s inappropriate sexual contact with Patient SV, whilst working as a health practitioner, is conduct substantially below that reasonably expected of a registered health practitioner of an equivalent level of training and/or experience and fails to meet the standard of practice articulated in clauses 1.4, 2.1.4, 2.4.1, 3.2.1, 3.2.6, 3.11.4, 3.13, 8.1, 8.2.1, and 8.2.2 of the relevant code of conduct (Good Medical Practice: A Code of Conduct for Doctors in Australia).
21.The respondent’s behaviour, by engaging in the inappropriate touching of Patient SV in a sexual and/or intimate manner, fails to meet the standard of practice outlined in Sexual Boundaries: Guidelines for Doctors – a guideline developed and approved by the applicant pursuant to section 39 of the National Law which provides specific guidance to practitioners regarding sexual boundaries in the doctor-patient relationship.
22.The respondent’s behaviour also meets the descriptions of “sexual misconduct” and “sexual exploitation” and “sexual harassment” within Sexual Boundaries: Guidelines for Doctors – a guideline developed and approved by the applicant pursuant to section 39 of the National Law which provides specific guidance to practitioners regarding sexual boundaries in the doctor-patient relationship.
D.Boundary Violation – inappropriate sexual contact
23.On 4 March 2016, the respondent engaged in professional misconduct by inappropriately touching Patient SV in a sexual manner by kissing her
and placing his tongue in her mouthduring a consultation during which he provided medical services to her as her general practitioner.24.The respondent’s inappropriate sexual contact with Patient SV during the consultation on 4 March 2016 posed a serious risk to the patients he was treating, and could endanger public health and safety. The respondent’s actions also had the potential to endanger the health and safety of Patient SV.
25.The respondent’s behaviour, by engaging in the inappropriate touching of Patient SV in a sexual manner, whilst working as a health practitioner, is conduct substantially below that reasonably expected of a registered health practitioner of an equivalent level of training or experience and fails to meet the standard of practice articulated in clauses 1.4, 2.1.4, 2.4.1, 3.2.1, 3.2.6, 3.11.4, 3.13, 8.1, 8.2.1, and 8.2.2 of the relevant code of conduct (Good Medical Practice: A Code of Conduct for Doctors in Australia).
26.The respondent’s behaviour, by engaging in the inappropriate touching of Patient SV in a sexual manner, fails to meet the standard of practice outlined in Sexual Boundaries: Guidelines for Doctors – a guideline developed and approved by the applicant pursuant to section 39 of the National Law which provides specific guidance to practitioners regarding sexual boundaries in the doctor-patient relationship.
27.The respondent’s behaviour meets the descriptions of “sexual misconduct”, “sexual exploitation” and “sexual harassment” within Sexual Boundaries: Guidelines for Doctors – a guideline developed and approved by the applicant pursuant to section 39 of the National Law which provides specific guidance to practitioners regarding sexual boundaries in the doctor-patient relationship.
E.Pattern of inappropriate and unprofessional sexualised conduct
28.Prior to receiving the notification from Patient SV regarding the alleged inappropriate sexualised conduct of the respondent towards her, the Board had received two earlier notifications regarding similar towards two former vulnerable female patients of the respondent. In broad terms, the details of those notifications are as follows:
(a) Patient RJ alleged that, during the course of medical consultations, the respondent:
(i)attempted to engage in sexual intercourse with her;
(ii)performed digital penetration of her without her consent;
(iii)attempted to coerce her into a sexual relationship; and
(iv)hugged her without her consent.
(b) Patient JB alleged that, during the course of medical consultations, the respondent:
(i)tried to have sex with her;
(ii)was raping and/or molesting her;
(iii)suggested they could get a hotel room together;
(iv)said if Patient JB had money issues, she could come to see him; and
(v)had conducted himself in an inappropriate manner for years.
29.The prior notifications by Patient RJ and Patient JB, when considered in conjunction with the notification made by Patient SV, indicate a pattern of inappropriate conduct towards vulnerable female patients by the respondent. The inappropriate conduct complained of includes, but is not limited to:
(a) inappropriate and unwelcome sexual and/or intimate contact;
(b) inappropriate and unwelcome physical contact;
(c) attempts to coerce patients into a sexual relationship;
(d) performance of sexual acts with/on patients without consent;
(e) exploitation of the power imbalance in the doctor-patient relationship; and
(f) inappropriate levels of intimacy with patients, such as kissing, hugging and touching patients on the shoulder “as if they were an old friend”.
30.The respondent’s behaviour demonstrates a pattern of, or a propensity for. inappropriate and unprofessional sexual conduct whilst working as a health practitioner, and is conduct substantially below that reasonably expected of a registered health practitioner of an equivalent level of training or experience and fails to meet the standard of practice articulated in clauses 1.4, 2.1.4, 2.4.1, 3.2.1, 3.2.6, 3.11.4, 3.13, 8.1, 8.2.1, and 8.2.2 of the relevant code of conduct (Good Medical Practice: A Code of Conduct for Doctors in Australia).
31.The respondent’s behaviour of engaging in a pattern of inappropriate and unprofessional sexual conduct whilst working as a health practitioner fails to meet the standard of practice outlined in Sexual Boundaries: Guidelines for Doctors – a guideline developed and approved by the applicant pursuant to section 39 of the National Law which provides specific guidance to practitioners regarding sexual boundaries in the doctor-patient relationship.
32.The respondent’s pattern of behaviour meets the descriptions of “sexual misconduct”, “sexual exploitation” and “sexual harassment” within Sexual Boundaries: Guidelines for Doctors – a guideline developed and approved by the applicant pursuant to section 39 of the National Law which provides specific guidance to practitioners regarding sexual boundaries in the doctor-patient relationship.
F.Breach of undertaking to the Board
33.On 24 August 2012, the applicant received a notification from ACT Police advising that it had received a complaint about the respondent from one of his patients, Patient RJ. ACT Police informed the applicant it was investigating the following allegations which were said to have occurred during the course of medical consultations with the respondent:
(i)That the respondent had attempted to coerce Patient RJ to engage in sexual intercourse without her consent on two occasions;
(ii)That the respondent performed digital penetration of Patient RJ without her consent; and
(iii)That the respondent had hugged the patient.
This notification was subsequently referred to ACT Police by the applicant due to its potential criminal nature and no further action was taken by the applicant.
34.On 13 August 2015, the applicant received a notification from a patient of the respondent, Patient JB. Patient JB alleged that, throughout the preceding three years, during the course of medical consultations, the respondent had:
(i)Engaged in inappropriate sexual conduct towards Patient JB;
(ii)Engaged in sexual intercourse with Patient JB without her consent;
(iii)Made unsolicited sexual advances towards Patient JB; and
(iv)Asked Patient JB to commence a sexual relationship with the respondent.
35.In response to the notification from Patient JB, the applicant proposed to take immediate action against the respondent by imposing conditions on his registration. However, the applicant instead accepted undertakings from the respondent on 31 August 2015 in the following terms:
(i)Not to attend to [Patient JB] or communicate with her when she visits Condor Surgery; and
(ii)Not consult any mental health patients or patients with drug addiction.
36.By written letter dated 8 September 2015, the respondent proposed that the following definitions apply to the undertaking:
“mental health patient” : “someone who is mentally dysfunctional or mentally ill”.
“Mental dysfunction means a disturbance or defect, to a substantially disabling degree, of perceptual interpretation, comprehension, reasoning, learning, judgment, memory, motivation or emotion.
Mentally ill means a condition that seriously impairs (either temporarily or permanently) the mental functioning of a person and is characterised by the presence in the person of any of the following symptoms: (a) delusions; (b) hallucinations; (c) serious disorder of thought form; (d) a severe disturbance of mood; (e) sustained or repeated irrational behaviour indicating the presence of symptoms referred to paragraph (a), (b), (c) or (d).”
“patient with drug addiction”: “persons displaying drug-seeking and non-compliant behaviour rather than a person who meets the criteria for substance dependence or substance use disorder as defined under the DSM IV or someone who is displaying such symptoms although has not been formally diagnosed.”
37.Patient SV first attended on the respondent as her medical practitioner on 16 October 2012. Between 16 October 2012 and 21 August 2015, Patient SV attended at least 16 consultations with the respondent.
38.The following entries are extracts from Conder Surgery patient records for Patient SV:
(i)Past Medical History
2008 – Dissociative disorder
Associated with pseudoseizures
(ii)Consultation with [the respondent] on 4 March 2016
“Stopped smoking 5 days ago including marijuana”
(iii)Consultation with [the respondent] on 17 November 2016
“Depressed, anxious, at times confabulating. Unsure of antidepressants. Upset with her mother and states her only support person is not ther (sic) for her.
Not keen on antidepressants at this stage.
Will come back to discuss treatments.”
(iv)The respondent describes the “reason for contact” for the consultation on 17 November 2015 as “Mental Health Care Consultation – Item 2713”
39.As a minimum, the entry replicated at paragraph 36(i) indicates that the respondent knew, or ought to have known, that Patient SV had suffered, or was suffering from, a form of mental dysfunction which at least warranted further investigation.
40.By his own admission in Patient SV’s notes on 17 November 2015, Patient SV required mental health care, and the Respondent authorised Patient SV’s consultation on that day to be billed to Medicare as a mental health care consultation. Following that consultation, the respondent consulted with Patient SV on a further five occasions: see paragraph 39 (vi), (vii), (viii), (ix) and (x) below.
41.After providing his initial undertaking to the applicant on 21 August 2015, the respondent consulted Patient SV on 26 August 2015. He then offered an amended undertaking which was accepted by the Board on 31 August 2015. The respondent then subsequently consulted Patient SV on the following ten occasions:
(i)23 September 2015
(ii)30 September 2015
(iii)7 October 2015
(iv)19 October 2015
(v)17 November 2015
(vi)2 December 2015
(vii)9 December 2015
(viii)4 January 2016
(ix)4 March 2016; and
(x)11 March 2016.
42.The respondent’s continued treatment of Patient SV on the five subsequent dates after billing Patient SV for a mental health consultation on 17 November 2015 (those dates are identified at paragraph 39 (vi) – (x)) was a direct contravention of the undertakings provided to the applicant on 21 August 2015 and 31 August 2015.
43.The respondent’s contravention of the undertakings provided to the applicant had the potential to endanger the health and safety of his patients, but more particularly Patient SV.
44.The respondent’s repeated breaches of his undertaking to the Board is conduct substantially below that expected of a registered health practitioner of an equivalent level of training and experience and fails the meet the standard of practice articulated in clauses 1.4, 2.1.4, 3.2.1, 3.2.6, 6.2.1, 6.2.5, 8.1, 8.10.1, 8.10.2 of the relevant code of conduct (Good Medical Practice: A Code of Conduct for Doctors in Australia).
...............................................................
ACT Government Solicitor
Solicitor for the Applicant
Date:
10 April 201716 August 2017HEARING DETAILS
FILE NUMBER:
OR 6/2017
PARTIES, APPLICANT:
Medical Board of Australia
PARTIES, RESPONDENT:
Dr Mohamed Helmy
COUNSEL APPEARING, APPLICANT
Ms Musgrove
COUNSEL APPEARING, RESPONDENT
Mr Purnell SC, Ms K Oldfield
SOLICITORS FOR APPLICANT
ACT Government Solicitor
SOLICITORS FOR RESPONDENT
Ken Cush and Associates
TRIBUNAL MEMBERS:
Senior Member B Meagher SC, Member R Davies
DATES OF HEARING:
21 & 22 August 2017
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