Medical Board of South Australia v Christpoulos (No 1) No. DCCIV-99-353

MEDICAL BOARD OF SOUTH AUSTRALIA v CHRISTPOULOS
[2000] SADC 47 (1)

His Honour Judge Kitchen and Member Wicks

By a complaint dated 29th September 1999 the Medical Board of South Australia (“the Board”) pursuant to Section 58 of the Medical Practitioners Act, 1983-1986 (“the Act”), alleged that Jim Christpoulos (hereinafter referred to as “the practitioner”) had been guilty of unprofessional conduct in that (paragraph 12 of the complaint):-
“(a).. He gave inconsistent, false and misleading accounts of his consultation with the child to the Elizabeth CIB, the Registrar of the Medical Board and the Supreme Court.
(b)He failed to conduct an adequate examination of the child in all of the circumstances.
(c).... He failed to keep and maintain notes of his consultation with the child.
(d)He failed to give adequate consideration to the possibility of non-accidental injury and to make adequate enquiries or investigations into that possibility.
(e).... He failed to make a notification pursuant to Section 11 of the Children’s Protection Act in circumstances where he suspected, or ought to have suspected, that the child had been abused.”
The child referred to in the complaint was Kirk Dorovata-Chapman, the son of Grace Dorovata to whom we will sometimes refer as “the mother”. Kirk was born on 12th November 1994.
The events upon which the complaint is based occurred on and followed 19th February 1997. On that date the practitioner, then a contractor to the Adelaide Metropolitan Locum Service, went to the house premises of Michael Andersen in Harvey Road, Elizabeth Grove, where the mother and the child were, in response to a call made to the locum service. The call communicated to the practitioner was that the child had a bruise in the right groin. The acts or omissions of the practitioner on that date concerning the child are the subject of the grounds 12(b) to (e) inclusive in the complaint. Subsequently on 29th April 1997 the practitioner gave a statement to the police, he wrote to the Registrar of the Board on 13th January 1998 and on 6th April 1998, and on 12th October 1998 he gave evidence in the Supreme Court at the trial of Michael Andersen, upon a charge of murdering the child; what the practitioner stated or said on those occasions is the subject of the charge in paragraph 12(a) of the complaint.
The practitioner admitted before the Tribunal the unprofessional conduct charged in paragraph 12(b) to (e) inclusive but said it was not done deliberately. Concerning paragraph 12(a) he responded, in effect, that he was not guilty of such conduct. That became the focus of the proceedings before the Tribunal. The Board’s case in respect of that allegation is that the practitioner deliberately, that is he knowingly, gave inconsistent false and misleading accounts to the police, to the Registrar of the Board and to the Supreme Court of his consultation with the child.
By consent the Tribunal received a number of exhibits which comprise the material on which the Board relies, and the Board called Dr Terence George Donald, the head of the Child Protection Unit at the Women’s and Children’s Hospital.
The exhibits included the statement of Grace Dorovata, given to a police officer on 27th February 1997, a transcript of an interview conducted with her on 5th March 1998 by an investigator appointed by the Board, and the evidence she gave at the trial of Michael Andersen. That trial resulted in Andersen being convicted of the manslaughter of the child. Except for an assertion by the mother that, on the occasion the practitioner saw the child on 19th February 1997 the practitioner said words to the effect that the child Kirk “had been in the wars and beaten up every which way”, which the Board expressly declined to rely on, the content of the mother’s two statements and her evidence given at the trial of Andersen is before the Tribunal on the same basis as the material in the other exhibits, namely as evidence of the matters asserted and to be given such weight as the Tribunal thinks fit in making findings of fact.
In her statement to the police dated 27th February 1997 (Exhibit P4) the mother said that she did not live with the child’s father Stephen Chapman. She spoke of the relationship she formed with Andersen beginning in December 1996 and also of episodes when the child would go “into a trance-like state” which occurred more frequently after his second birthday, the episodes sometimes extending over two to three minutes. Her statement goes on to relate events beginning on 17th February 1997.
“At about 5.30 p.m. on Monday 17th February, 1997, Kirk’s grandmother, Denise CHAPMAN picked Kirk up from my house. Kirk was going to spend the night at her house which is at 56 Whittington Road ELIZABETH FIELDS.
At about 7.30 pm.. on Tuesday 18th February, 1997 Denise dropped Kirk off at my mother’s house, Kathleen DOROVATA, 86 Goodman Road ELIZABETH SOUTH. I picked Kirk up from there at about 8.30 p.m. Kirk was well but seemed tired. I then took Kirk back to my house. I put Kirk straight to bed. Kirk woke up about 2 hours later because he was thirsty. As he was getting out of his bed I heard a small bang from his bedroom. I heard him cry a little bit, but by the time he got out to the kitchen he had stopped crying. I gave him a drink and then put him back to bed in his cot rather than his bed. Michael came over to my house at about 1.30 a.m. on the Wednesday morning.
On Wednesday morning, 19th February, Kirk got up at about 9.30 a.m. I noticed that Kirk had a bruise down his right temple. I assumed Kirk had fallen out of bed the night before and that is what had caused the bruise. At about 12 p.m. Michael, Kirk and I walked to Michael’s house. When we got there Kirk was very tired so I put him to bed in his cot at Michael’s. I changed Kirk’s nappy before putting him to bed. I did not see any injuries at that time. I stayed at Michael’s house for the afternoon. Michael went out to a friend’s house for about half an hour.
Kirk woke up at about 5 p.m. I changed his nappy and noticed that Kirk’s penis was red. It looked red like a bruise near the base of his penis. It looked very sore. I thought he had been bitten by something such as a spider. I then got Michael to call a locum Doctor. About 30 minutes later the Doctor arrived and examined Kirk. He said that his penis was bruised and to give him some panadol. I told the Doctor about Kirk falling out of bed and the Doctor looked at his head. Kirk seemed alright. Kirk and I stayed the night at Michael’s house.”
The mother went on to state that on Thursday 20th February 1997 she visited her mother, Kathleen Dorovata, and showed to her “the bruise on (the child’s) groin”. Kathleen Dorovata stated to the police (Exhibit P17) that around lunch time on 20th February 1997 she saw “that Kirk’s testicles were bruised, his penis was bruised and the area just above his penis was bruised and appeared swollen. Kirk did not seem to be upset by the bruises. The bruises were a reddy-blue colour. I saw that Kirk also had a bruise on his right temple. The bruise appeared to be fading”. On the following day Friday, 21st February 1997 the mother attended at a college of TAFE during the morning, leaving the child with Andersen. Soon after leaving the college she received a message that the child had been admitted to the Lyell McEwin Hospital and then transferred to the Women’s and Children’s Hospital.
The child was received into the accident and emergency section of the Lyell McEwin Hospital at about 11.45 am on 21st February 1997. He was unconscious. He was examined by Dr Barrett who observed (Exhibit P8) the following injuries:-
“(i)    Bruising above and to the right of the penis and on the penis;
(ii)... A bruise to the central forehead and a small scratch to the left of the bruise. This bruise was approximately 3cms x 2cms and was raised;
(iii)   A bruise to the right temporal area;
(iv) . Bi-lateral corneal abrasions, which made visualisation of the child’s Fundi difficult, however there did appear to be a haemorrhage in the right Fundus;
(v)     A slightly red right ear drum.”
On the same day Dr Barrett arranged for the child to be transferred to the Women’s and Children’s Hospital where he was examined by Dr Donald who observed and recorded (Exhibit P10) apparent injuries to the child’s head and face, and also:-
“There was bruising over Kirk’s supra pubic and genital area involving the dorsal part of his distal penis and the supra pubic area adjacent to the base of his penis. There was swelling of the supra pubic area which may have been due to subcutaneous haematoma and/or inflammatory response. This area of bruising was red-blue. The trauma that had caused the injury was severe. It is most likely that Kirk’s penis was pulled hard, and possibly twisted, being held by the foreskin or distal penile shaft. The stretching and direct compression would account for the distal bruising. The bruising and swelling over the supra and pubic area, adjacent to the base of the penis is most likely to have occurred as a result of the tissue damage which occurred when the penis was pulled and twisted. I subsequently learned that the swelling in the supra pubic area was haematoma. This supports the aetiology of pulling and twisting of Kirk’s penis.”
Photographs were taken of the child’s genital area some time after 3 pm on Friday 21st February 1997. They are Exhibit P20.
The child died on 22nd February 1997, the cause of death being determined, at autopsy (Exhibit P8) to be:
“Immediate: Anoxic brain death
Secondary to: Closed head injury with subdural haematoma attributed to
severe head trauma and/or shaking”
On 29th April 1997 the practitioner gave a statement to the police which was reduced to writing and signed by him on that day (Exhibit P12). It includes:-
“At sometime on Wednesday, 19th February, 1997, I was on duty in the northern suburbs. I can not remember what time it was when I received a call to attend at 149 Harvey Road ELIZABETH GROVE. The message that I had received on my pager indicated that a small child had a bruise on the right groin. When I attended at the house I was met by a woman who I presumed to be the mother of the child. I can not remember any other adults being at the house. I then examined a small male child. The child was about two to two and a half years old. The woman told me that the child had a small bruise on his groin and asked whether it could have been appendicitis. I then examined the child. The child was naked at the time. I saw that the child had a small bruise about 1 cm long, 2-3 cm below the right inguinal canal, marginally left to the mid line anterior aspect of the right thigh. There was no other bruising present in the groin or testicles. I also examined the child’s abdomen. His abdomen was soft and non tender. There was no rebound, no guarding and no rigidity in the abdomen. His chest was clear, and heart sounds were dual with no added sounds. I asked the mother how the child got the bruise, but she did not know. My opinion was that the child was healthy other than the bruise on his thigh. I told her to see her own doctor if she had any further concerns.
I usually keep all my medical notes in relation to consults, but I am unable to locate the notes in relation to this consultation. I have recalled this incident to the best of my memory.”
On 8th December 1997 Dr Donald wrote to the Registrar of the Board. The letter is Exhibit P2. In the letter he related that he examined the child on 21st February 1997 and went on:-
“I found Kirk to have signs of inflicted injury. He had significant facial and head bruising to the right side of his head and face. Also, he had bruising to his penis and the adjacent supra pubic area. The supra pubic bruising was clinically associated with subcutaneous collection of blood, which was confirmed on post mortem examination.
My concern is that Kirk’s mother, Grace Dorovato, told the admitting doctor and then subsequently me that she had called a locum to her house on Wednesday 19/2/97. At that time she reported that she was concerned with the bruising to Kirk’s genital area.
She reported the doctor to have said to her that it looked to him (the doctor) that someone had hit Kirk. The doctor did not take the matter any further (he did not notify FACS of a suspicion of child abuse).
From Kirk’s presentation to hospital the injury he suffered which led to his death must have occurred on Friday 21/2/97. Therefore, it seems distinctly possible that if a notification to FACS had been made on Wednesday 19/2/97 a different sequence of events may have occurred.”
On 31st December 1997 the Board wrote to the practitioner enclosing a copy of Dr. Donald’s “complaint”. The practitioner replied (Exhibit P3):-
“Thank you for your letter of 31 December 1997 and for enclosing a copy of Dr. Donald’s complaint.
In one sense, Dr. Donald is right. If a notification to F.A.C.S. had been made “....... on Wednesday 19/2/97 a different sequence of events may have occurred”.
However, when I was called to 149 Harvey Road, Elizabeth Grove to see Kirk Dorovata, on 19 February 1997, I did not see anything which would have led me to report to the F.A.C.S.
The clinical record I made at the time has been misplaced. However, I gave a statement to Detective Dodd of Elizabeth CIB, on 29 April 1997, a copy of which is enclosed.
I deny that I suggested to the child’s mother that it looked to me as though the child had been hit. Such a statement would have been inconsistent with my findings.
It is disappointing that Dr. Donald, who saw the child on 21 February 1997, did not contact me at any time. I am somewhat bemused he waited until 8 December 1997, to lodge his complaint”
Ms Frankie Anderson, an investigator appointed by the Board, interviewed the mother on 5th March 1998. It is to be noted this was more than twelve months after the events of 19th February 1997. The transcript of that interview is Exhibit P5. It includes the following:-
‘A’ is Anderson; ‘D’ is Dorovata.
“D.... .... At 5 o’clock in the afternoon he woke up, I went to change his nappy and he had a massive bruise on his groin.
A.And when you say a massive bruise on his groin, what colour was it, what do you mean?
D.... Well it was like really dark purplish colour, and it was sort of - yes all around that whole region.
A.And when you say his groin, are you meaning around his penis, or around his testicles, or where?
D.... His testicles, his penis, and around it.
A.So they are all a purple colour?
D.... Yes.
A.And his penis is purple?
D.... Yes.
A.Testicles are purple?
D.... Yes. I thought he’d got bitten by a spider or something.
A.So you thought he’d been bitten by a spider?
D.... Yes.” (pp5/6)

The practitioner then attended at about 6 pm. At pages 12-21

“A.... So when the doctor arrives who speaks with him?
D.I do.
A.... What did you tell him.
D.He walked in and said ‘what’s the problem’. I said ‘well he’s got a bruise there and I think he’s been bitten by a spider’. He just then quickly glanced at my son.
A.... So is Kirk still laying in the cot?
DNo he’s just sitting on me, like I had him sitting on my lap at that time. So he didn’t - hurt him like sit up or nothing.
A.... So he’s sitting on your lap, doesn’t have a nappy on?
D.No.
A.... Has he got anything on at all?
D.No.
A.... Alright, so he’s naked, sitting on your lap, and you indicate to the doctor this bruise?
D.Yes.
A.... What does the doctor do?
D.He glanced at it very quickly and he told me, ‘well it’s a bruise’. And I said ‘I know but what, you know, can you check that something’s bitten him or what?’ and he said ‘no it’s just a bruise’, and asked - ‘has there been any other kids around or something and it looks like it’s been pinched or punched or something’. And I said ‘no, there’s been no-one around and there was no marks, he’s been asleep, he‘s woken up, can you tell me if something’s bitten him?’ And he didn’t like bother to touch or check to see whether it was sore or anything, told me to put some ice on it and then got me to sign a Medicare slip.
A.... Did the doctor sit down?
DNo.
A.... So the doctor stays standing?
D.Yes.
A.... Does he touch your son at all?
D.No. Oh with my Medicare card he tapped him on the head three times.
A.... It was just a playful gesture I take it.
D.Either as a playful gesture, but I took it as to see whether he’d flinch or not considering he said he’d been hit.
A.... Oh, I see, alright. And when the doctor said to you that he - that Kirk had been hit.
D.Yes.
A.... You said to me he’s asked if there was any other children around.
D.Yes.
A.... And it looks like he’s been pinched, you said, and what else did you say.
D.Punched.
A.... Punched. And you said no.
D.No. And with the pinching he’s said you know, like he’s gone to urinate or something, and someone has just pinched him to stop it or something like that. And I said ‘well, no, that hasn’t happened’ so you know and I’m still trying to get to see if something’s bitten him or not and look for little marks or something.
A.... Have you yourself looked for any little marks.
D.Yes I had, and I couldn’t see any.
A.... You didn’t find anything. So then he asked for your Medicare, or does the Medicare form, the doctor does.
D.Yes.
A.... Did he say anything else to you.
D.No just ‘sign this’.
A.... How long was he here or how long was he at the house for?
D.About two minutes.
A.... Two minutes.
D.Yes.
................
A.Did you have any concerns at any stage Grace that Kirk may have an appendicitis.
D.... No.
A.You didn’t mention it to anybody, no-one mentioned it to you?
D.... No.
A.Do you know whether Kirk’s stomach was sore, you don’t remember him sore or tender or anything like that?
D.... No I don’t really know like, he used to come up and pull his shirt up so that I like I’d tickle his tummy.
A.Yes.
D.... And he was doing that that day, but as I was going to do it he’d just sort of look at me and walk off.
A.Did the doctor check his stomach.
D.... The doctor didn’t touch him. The doctor also told me that if he wasn’t, like if his bruising wasn’t any better by Friday to take him to the doctor, my normal doctor.
..........
A.... Did the locum doctor listen to Kirk’s chest.
D.No.
A.... Or his back?
D.No.
A.... Did he take any instruments out of his bag?
D.No.”

Ms Anderson interviewed the practitioner on 6th April 1998. Before that interview commenced the practitioner (or Dr Bruce Walker, who was present with the practitioner) handed to Ms Anderson a letter dated 6th April 1998 signed by the practitioner. It is Exhibit P3. It reads:-
“Complaint by Dr T. Donald.
On 13th January 1998, I wrote to you about this complaint. I refer you to the fourth paragraph of my letter which relates to my statement to Detective Dodd of Elizabeth CIB. I now realise that my statement contained two errors. Firstly, I referred to the child being naked at the time of my examination and secondly, I stated that there was no bruising present in the groin or the testicles.
The facts are that the child was dressed in a nappy and I did not examine the groin or testicles. I apologise to the Board for these errors and recognise the seriousness of signing a document when it contains errors of fact.”
The interview of the practitioner by Ms Anderson is exhibit P13. The practitioner said that he only recalled the name Kirk Dorovata-Chapman “from these enquiries that are being made of me” and he did not recall the house where he saw the child. He said he generally made handwritten notes at the time of consultations such as that he had with the child but he had not been able to find his notes which had been stored in a box in his parents’ garage. He described that his notes were normally in triplicate and “I can either give one to the patient, I may or may not, and one may get sent to the GP and the third one you can hardly read because it doesn’t come out so I tend to keep one anyway - I tend to keep at least two because I can’t read the third one”. He explained, concerning the two copies he kept, that “initially they got stored in the boot of my car once they pile up a bit they get stored in the garage”, that he had searched both the garage and the boot of his car and had not been able to find his notes. The interview continued; in this extract “A” is Anderson. “C” is the practitioner and “W” is Walker.
“W... Can I just add there is some question about the identity of this child. I don’t think Dr Christpoulos knows that it’s this particular child?
C.I don’t even have a clue if that’s the child I saw, he was just a child, whether it was Kirk Dorovata, I wouldn’t have a clue.
A.... So the statement you gave the police about this child, you’re not certain is the right child?
C.No, that’s right, I mean I don’t remember if it was the right child. He was a child on the bed.
W... Identified to him by mother as whoever.
C.Mm.
A.... So you have memory, doctor, of going to 149 Harvey Road or not?
C.No, I have memory of going into a house but I mean actually going to the road into the actual house itself, I have no recollection of the actual house itself, I see so many people after hours, I don’t recall the houses I’ve been to or what their address is.
A.... Okay. So do you recall seeing a young child of around two years of age in February 1997 that had bruising to the groin area?
C.To the upper thigh area.
A.... And it’s through your involvement with the police you now understand that child to have been Kirk Dorovata-Chapman? (?I would presume)
C.That’s right, yes.
W... Said to have been.
C.Said to have been, yes. Whether it was him or not, I don’t know.
W... Obviously it’s of significance that Dr Christpoulos is suggesting maybe an entirely different child?
A.The child that you saw, Dr Christpoulos, what did you understand you were going to that house for, what was the reason of your visit?
C.... Initially for a right groin bruise but whatever you get on the pager does not necessarily mean that’s what you actually go to see the patient for and what you actually normally do is get the pager, you actually see the patients name and address and you walk into the house and you ask the patient generally what’s wrong. What’s on the pager tends to be a lot of times quite irrelevant or different to what the patient says to you in the house, so that’s why you ask the patients or whoever what’s wrong. You don’t go by what the pager says, generally speaking.
A.So on this occasion when you got to the house, you say you saw a child in the bedroom?
C.... Yes, he was actually on the bed.
A.Who was with him?
C.... From what I recall, a lady.
A.You don’t recall the name of this child?
C.... No, I don’t.
A.Did you - do you have any memory as to what the relationship of the female and the child was?
C.... I presume it was his mother.
A.This child can’t speak to you?
C.... No.
A.What are you told is wrong with the child?
C.... I asked what the problem was and then she actually points to a bruise in the thigh and she goes to me has my, somewhere along the lines, is that a bruise in his groin and I go which bruise are you talking about, so she pointed to the thigh bruise, and I go is that the bruise you are talking about and she goes, yes. And I said to her, no, that’s a thigh bruise not a groin bruise. Then she asked me afterwards has the child got appendicitis and I examined him and his abdomen and that was it.
A.So, when you say which bruise are talking about, how many bruises were there?
C.... There was only one bruise, the one I saw because she actually told me, I said what’s the problem. She said to me my child has got a bruise on his groin and I go is that the bruise you’re talking about and she goes yes.
A.You nominate the bruise, you question, you point to the bruise and say is that the bruise you’re talking about?
C.... She goes yes, is that what you’re concerned about, she goes yes, and I told her that’s the thigh, it’s not the groin.
A.So her concern of a bruise in the groin, should’ve been described a bruise in the thigh, is that right?
C.... Initially, yes, I would imagine, yes. That’s right.
A.And you now couldn’t tell me whether there was any bruise in the groin or not, could you?
C.... No, because the child was wearing a nappy. I didn’t take off the nappy because you just don’t go taking nappies off children and secondly, unless the mother specifically asks, is there a bruise anywhere else or whatever, you don’t go looking for it or you don’t go looking for other pathology.
A.Do you know what history you got from the mother or the female person present, did she give you any history about the bruise?
C.... I asked how did the child get the bruise and nobody knew, or she didn’t know.
A.Was the child distressed at the time you saw him, doctor?
C.... No, not at all.
A.What examination did you carry out?
C.... Abdominal, I observed the thigh bruise of course and then abdominal and cardio-respiratory examination.
A.How long do you think you were at the home for?
C.... Not more than about ten minutes I would imagine.
A.To do an abdominal examination, how do you do it, what do you physically do?
C.... You actually observe the abdomen and then you actually palpate the abdomen and then you can actually, if necessary, percuss and then auscultate the abdomen.
A.So you actually put your hands on the child’s abdomen?
C.... Yes.
A.Did you use any instruments on the child’s stomach, or abdomen?
C.... No.
A.Any instruments on the child at all?
C.... A stethoscope, if that’s what you call an instrument.
A.Yes, that’s an instrument, you used a stethoscope?
C.... Mm.
A.On what part of the child?
C.... The heart and lungs that’s it.
A.Doctor, are you recalling this because this is your general practice or this is because what you remember you did to this particular child?
C.... No, that’s what I remember I did to this particular child.
A.Do you know what advice you gave to the female person?
C.... I said to her that the child has not got appendicitis and of course, that’s the thigh bruise, if she has any more concerns, see her GP and that’s a standard thing, see your GP if she had any more concerns.
A.The bruise that you saw on the thigh, what did it look like?
C.... A bluish, a light bluish bruise, something like that colour there.
A.Of the chair?
C.... Yes, something very light, yeah.
A.Could you age it, date it, estimate how old it is?
C.... It was probably, I would imagine a reasonably fresh bruise because it wasn’t discoloured, there wasn’t any yellowish discolouration or purplish discolouration so.
A.Size.
C.... Not very large, about a centimetre in diameter, not large.
A.You say to me that you told the mother the child did not have appendicitis, that’s because she asked you, did the child have appendicitis?
C.... That’s right, yes.
A.Did you ask her why she thought the child may have appendicitis?
C.... No.
A.Any reason why a bruise would lead to a suggestion of appendicitis or the other way around?
C.... When you do a lot of after hours home visits, you can get called out for something really ludicrous and an example is you get called out for somebody for a child that’s actually got a little bit of hair missing. Eventually you work out that that child’s taken a pair of scissors and cut off a bit of hair and the mother is wondering what on earth happened. So no, you don’t actually go asking why the parent asks these kinds of questions, why they ask you to actually examine one area to another, they ask a variety of different things, examine this, examine that and from my experience you just tend to be specific in what they ask and examine. Unless of course somebody has got heart failure then you tend to examine the appropriate areas, simple as that.
A.For you to get the pager message saying the child has a bruised groin and then the mother to say, you know, a bruised groin, in your opinion what you were seeing was a bruised thigh?
C.... That’s right.
A.But you checked for appendicitis because mum asked you or the woman asked you to?
C.... That’s right, or whoever, that’s right.
A.The statement that you provided the police or I believed you signed on December 1997, is that your signature doctor?
C.... Yes, that’s right.
A.That’s a statement you provided to the police in April?
C.... That’s right.
A.Everything else in the statement other than the two points you’ve clarified at the beginning, is accurate?
C. . Yes.
A.True to the best of your ability?
C.... Yes.
A.The mother of the child is alleging that she arranged for a locum to call, yourself, because when the child awoke from a sleep she had seen a massive dark purplish colour bruise in the area around the child’s penis, testicles and surround. Do you have any memory of her mentioning any injury like that?
C.... No. (She never mentioned anything like the above)
A.And you obviously wouldn’t know if there was an injury like that because you didn’t see the child’s penis or testicles?
C.... No, that’s right, but if it was a massive bruise you would have thought it was coming under the nappy to have such a massive bruise.
A.Do you recall what sort of nappies this child was wearing, you know, like cloth or disposable?
C.... Look, I mean, I can guess fifty fifty ---
A.No, don’t guess, don’t guess if you don’t know, say you don’t know.
C.... No, I don’t know.
A.But when you when you look at the right thigh and see this bruise, I take it it’s high in the thigh or is it where, in comparison to the knee, how high up?
C.... It’s probably I would say about a quarter of the way between the, quarter or a third of the, a quarter of the way between the inguinal canal and the knee or I mean, two or three centimetres below the inguinal canal. I mean in a small child like that that’s just an approximation. I mean, I could actually tell you where it was on me as ---
A.Okay, for a lay person like me, it was about two or three centimetres down from where the leg joins the rest of the body?
C.... Somewhere along those lines, yes.
A.Do you have any memory of the mother suggesting to you or questioning you as to whether the child could have been bitten by a spider?
C.... No.
A.Did you have any conversation with the mother about any other children being present or being near the child?
C.... Not that I recall, no.
A.The mother is suggesting doctor, that you suggested to her that maybe the child have been pinched or poked?
C.... By a child?
A.The mother suggests to me that you said to her, has there been any other kids around or something, it looks like it’s been pinched or punched or something?
C.... No, I don’t think.
A.No memory of that?
C.... No.
W.It would be a nice comment, a one centimetre bruise ---
A.... Sorry?
W.It would a (sic) be a nice comment for a one centimetre bruise.
A.... Do you remember whether you gave the mother any advice as to what she should do about the bruise you did see?
C.I basically told her that the bruise will fade away, any more concerns see your local doctor, there’s nothing much we can say about a small thigh bruise. You are not going to put ice on a child of that age, he won’t tolerate it, so.
A.... You did not suggest she should put ice on it?
C.No, it was such a small bruise there was no - I mean, you are not going to get a two and a half year old whatever, sitting there with a lump of ice on the thigh bruise.
A.... You’re quite clear doctor, that you carried out a physical examination of this child?
C.Yes.
A.... Because the mother alleges that you didn’t touch the child?
C.Well, I did examine the child, yes.
A.... She alleges that the only contact you had was when you tapped the Medicare card on the child’s head, do you have any memory of doing that?
C.Look I play with kids a lot of times in their home, now, I can curl their hair or laugh with them, I don’t know. I mean I do play with children, I may have done that, I may not have done that, I don’t know.
A.... Did you observe any other marks on the child other this bruise on the right thigh?
C.No.
A.... Do you recall the mother drawing your attention to a bruise on the child’s temple?
C.No.
A.... Did you observe the child’s head?
C.Well, I mean if the child - did I observe the child’s head?
A.... I mean, is it possible that the child did have a bruise and you didn’t see it?
C.Not on the temple, the child was very happy, the child I saw appeared very happy and I suspect if he had such a major bruise in his testicle or groin at least he would have grimaced when I examined the lower part of the abdomen. I mean, any human being or a dog would’ve grimaced or at least had some guarding but this child didn’t.
A.... So the concern doctor, if I’ve understood is that you did examine a child or you did go to a place, do you know it was Harvey Road, or you don’t even know that?
................
C.... No, I mean, I did house visits last night, now, if you were to tell me, I mean I will recall events and people from last night but if you were to tell me did you go to that house, I’d probably recall it from last night but if you were to leave it for two months, I wouldn’t recall the house, unless I’ve been to the house two or three times. I mean, I went to a house last night which I thought I’d never been to, it just happened I had and that’s because the patient I’d seen before, and I never thought I was in that address ever again. So, I mean, I don’t recall the house I actually recall where Harvey Street is, it’s a long street, I don’t recall the house. All the houses in Elizabeth, if you’ve every been up there, look the same, a couch at the front, they’ve all got floorboards and they’ve all got sparse furniture and everything looks around about the same especially at Elizabeth South, so if I’s going to sit there and start criticising people’s homes and picking what I’ve seen in a house, it’s ludicrous.
A.Did you sit down in this house?
C.... I don’t know if I sat down in the house. I may have sat down next to the child and examined his abdomen but I don’t recall, sorry.
A.Do you recall seeing any other adult person there other than the woman that’s with the child?
C.... No, not initially maybe after the consult, maybe somebody came through a door, I don’t know, I can’t tell you, I don’t remember.
A.The details of the child you examined and the examination you conducted you only now think that that is Kirk Dorovata-Chapman because of the connections the police have since had with you?
C.... That’s right, that’s the only reason. I mean, I can tell you I saw no child that’s got any bruises on his temple, no child had bruises on I think there was another mention of bruises elsewhere on the body by Dr Donald and I saw no child with any bruise in the groin because they didn’t take off the nappy. Simple as that.
A.Can you tell me doctor why it is that now on 6 April today, the day of our interview, you now recall this information that’s contained in the letter to the Registrar?
C.... Because the initial information I gave there was a mistake, the one, that’s it.
A.The information you gave the police in –
C.... It was a mistake and I mean ---
A.In April.
C.... I mean once you get keep on sending letter after letter by the Medical Board, Dr Donald, by whoever, by yourselves you tend to rack your brain a bit to try and remember what on earth is going on and why you are actually getting alleged that you’ve missed something or done something wrong.
A.These letters today were prepared by whom?
C.... By ---
W.Me.
C.... By Dr Walker.
A.By Dr Walker?
C.... Mm.
A.Doctor, are you aware of your mandated responsibility to report suspected child abuse to Family and Community Services?
C.... Yes.
A.As a result of what you saw on this particular child, did you think it warranted a notification?
C.... No because there was nothing unusual which I saw.

Both the mother and the practitioner gave evidence at the trial of Michael Andersen.
In her evidence (Exhibit P6) the mother said that on Wednesday 19th February 1997 she changed the child’s nappy and put him to bed at about noon. She saw nothing unusual about the child’s groin or penis when she changed the nappy. The child woke up at about 5 pm and she saw the child’s “testes and his penis were all purple and just above it was slightly purple, too”. At her request, Andersen telephoned for a doctor. The transcript continues:-
“Q.... Did the doctor eventually arrive.
A.Yes, about an hour later.
Q.... Where were you.
A.At Michael’s house.
Q.... Can you tell us what happened when the doctor got there.
A.He told me it’s a bruise, took my Medicare card, tapped Kirk on the head three times and walked out the door.
Q.... What was Kirk wearing when the doctor got there.
A.Nothing, I don’t think.
Q.... What room of the house was Kirk in when the doctor got there.
A.In the lounge. I was sitting on the edge of the chair with Kirk on my lap.
Q.... Is that where Kirk was when he was examined.
A.Yes.
Q.... Did you point anything out to the doctor or show him anything.
A.Yes, I showed him the bruise and I said ‘I think he’s been bitten by a spider’. He just said ‘It’s a bruise’, and he just glimpsed at it and as he was walking out the door I kind of said ‘He’s also got this bruise on his head.’ [And he said ‘Getting beaten around, aren’t you’ and walked out.]
We note that the words in [ ] are not relied on by the Board.
Q.Which bruise was that.
A.... The one on the temple.
Q.Was that the only bruise he had.
A.... Yes, bruises.
Q.Did you make any other enquiries.
HIS HONOUR
Q.The question was ‘Was that the only bruise he had?’ and the witness has answered ‘Yes, bruises’.
XN
Q.So what, if any, other bruises did he have.
A.... That’s all I really noticed.
Q. We have one to the side of the eyebrow.
A.... Yes.
Q.Right eyebrow, is that right.
A.... Yes.
Q.And have told us about the bruising to his penis and testes.
A.... Yes.
Q.Any other bruises apart from those.
A.... Not that I noticed.
Q.Did you ask the doctor to look at anything else.
A.... No, I was too annoyed with him to even bother with him.”
(Pages 35 to 36)
In cross-examination the mother said that when the practitioner arrived she was seated in the lounge with the child, naked, on her lap, that she did not suggest appendicitis to the practitioner, that she did not ask the practitioner to look at, and neither did she point out to him, a bruise on the child’s thigh - she said there were no bruises there - that the practitioner did not look at the child’s head injury, he did not use a stethoscope on the child but he suggested putting ice on the groin injury and told her “to go back to my normal doctor on Friday” if it did not get better.
In his evidence (Exhibit P14) the practitioner said that he was called out “to see a child who had a bruise in the right groin”. He related:-
“Q.... Can you tell us what you recall of your visit here and what you did and saw.
A.I walked into this home and I was actually told to go and see a child which was lying in a bed and I was actually told by the mother that she actually thought that the child has a bruise in his groin, and I somewhere along the line happened that I asked her ‘Can you show me the bruise?’, and she pointed to a bruise in the thigh and I asked her ‘Is that what you are concerned about?’ and she goes ‘Yes’, and I told her ‘That is a bruise in the right upper thigh, not in the groin’.
Q.... Going back on that, can you tell us the approximate age of the child.
A.I would say about two.
Q.... Do you know if the child was wearing anything when you saw it.
A.He was wearing a nappy.
Q.... Was the nappy removed at any stage during the consult.
A.No.
Q.... You have spoken about a bruise and described it. Could you stand up and indicate the area where you recall the bruise being.
WITNESS INDICATES
HIS HONOUR
Q.The inner aspect of the right upper thigh.
A.... Yes.
Q.Quite near the groin area.
A.... Yes, just under the nappy.
XN
Q.... Were there any other injuries or marks you observed on the child.
A.Nothing.
Q.... Were any other injuries or marks drawn to your attention.
A.No.
Q.... You have told us of the child being present. Was someone you took to be the mother present during the consult.
A.There was a lady present; I presumed that to be the mother.
Q.... Were there any other people present.
A.I can’t recall that there were, there could have been; I don’t recall, to be exact. The mother was asking afterwards does the child have appendicitis, and after I examined the abdomen I said there was no appearance of appendicitis, there was nothing there to suggest any indicate of appendicitis.
Q.... How long did the consult last.
A.It would have lasted no more than ten minutes.
Q.... Did you recommend follow-up or further treatment.
A.Yes to see a GP further, because that is standard.
Q.... Finally, the general demeanour of the young child; can you describe that to us.
A.He was a happy, pleasant child, there was nothing else.”
(pages 200- 202)
In cross-examination the practitioner was questioned about the events at his visit:-
“Q.... Did you, in fact, examine the right groin.
A.No.
Q.... The bruise you saw on the inner aspect of the right thigh is below the nappy line.
A.Yes.
Q.... Would that make it two or three inches below the groin area. That might be non-specific but is that the vicinity.
A.That would be reasonable.
Q.... What was the bruise like.
A.A small light bluish bruise.
Q.... One, two, centimetres in diameter.
A.About a centimetre in diameter.
Q.... It was roughly circular or ovoid.
A.Roughly circular.
Q.... Did that colour suggest any particular age of the bruise to you, at least on observation.
A.It was a lightish issue bluish colour probably like on that desk thing. (INDICATES).
Q.... Light blue.
A.Yes.
Q.... What sort of age would you place that bruise in.
A.    Probably a fresh bruise, within a couple of days.
Q.    Would you be able to estimate how long such a bruise would last.
A.... A bruise should last at least another three to four days because it becomes discoloured purplish-yellowish discolouration.
Q.If the mother were to say that the nappy was off when you saw the child, that’s not right.
A.... No.
Q.Did the mother suggest a spider bite was the possible cause of the injury to the child.
A.... I don’t remember that bit.
Q.Can you exclude her saying such a thing, or is it something you might remember.
A.... I can’t honestly tell you. She may have, I will give her the benefit of the doubt, she may have.
Q.Did she mention or suggest the possibility of her using ice on the injury.
A.... There was a mention about ice and I said there’s no need to use ice on this small bruise because a two year old child would not tolerate you putting ice on a lump, and the bruise will fade without ice.
Q.Who raised the topic of ice, you or her.
A.... I can’t say who raised the topic of ice.
Q.Did anybody suggest the use of ice.
A.... The topic of ice was raised, and I said there was no need for any ice.
Q.Do you remember which of you raised the topic.
A.... No, I don’t.
Q.Did you look to see if there were any other marks on the child in the abdominal or leg area.
A.... There were no other marks on the abdominal area or the leg area that I noticed.
Q.Did you check to see if there were any other injuries.
A.... I did not note any.
Q.If she suggested there was a bruise on the child’s head or facial region, could that have happened.
A.... No, the child was quite happy. It was unlikely he had bruising on the face or any other region, he was smiling and happy. I would have noticed.
Q.You would have noted if there was a bruise on the forehead, temple or cheek; you would have seen that.
A.... Yes.
Q.She certainly didn’t draw your attention to such a bruise, you would say.
A.... No.
Q.Is it usual where you are called to a residence for a particular purpose, according to the message you received, not to examine the area referred to in the message.
A.... I hardly ever go by what message you get on the pager. You always get either an incorrect message on the pager or somebody wanting you to go out to see something for a reason which they are not honest about in the first place; so you ask them what they want when you get to the patient’s house.
Q.Do you as a matter of prudence refer to the particular ailment referred to on the message received.
A.... No, because you ask the patient what is wrong and they tell you.
Q.Did you ask her to remove the nappy to check the child’s groin area.
A.... No.
Q.I take it the mother didn’t suggest that you remove the nappy to check the child’s nappy area.
A.... I wouldn’t have removed the nappy. Even if she would have suggested it, I would have told her to do it.
Q.There was no suggestion from either you or she that the nappy be removed by either of you for you to check the groin.
A.... No.
Q.Which of you raised the topic of appendicitis.
A.... The mother.
Q.As a result of that you took certain action to check for appendicitis, did you.
A.... Yes.
Q.Palpating the abdomen.
A.... Yes.
Q.How hard did you palpate the abdomen to do that.
A.... How hard? On a small child? Enough to actually see if there is any tenderness there.
Q.That would not be very hard.
A.... Depends.
Q.Can you remember palpating the abdomen in this particular case.
A.... Yes.
Q.I know it is difficult in this environment, but I’m trying to get some idea of the pressure that might have been applied to the abdomen in this child’s case.
A.... You apply enough pressure to actually elicit a pain response if there is pain the abdomen, so you don’t just put your little finger on there and actually just tap there. You have to put a reasonable amount of pressure on the abdomen to see if you get a pain response, and anybody who has had had (sic) an abdominal examination must know how much pressure a doctor would actually use to elicit a pain response.
Q.I hasten to say there is no criticism in this, but could the sort of pressure applied to the child to test for appendicitis lead to some minor bruising of the lower mesentery.
A.... No.
Q.That’s not possible.
A.... When I palpate the abdomen I can cause bruising to the child, is that what you are implying?
Q.As I said, I’m not criticising, I’m asking whether that’s possible; that that level of pressure might cause some bruising in the lower mesentery.
A.... No, not if you did it reasonably.
Q.Can you remember what pressure you applied in this case.
A.... I applied enough pressure not to cause a bruise.
Q.If the mother were to say that you made some comment about the child being ‘in the wars’, or something along those lines, can you comment on whether you made such a remark.
A.... I’ve heard that before. I don’t actually - I’ve never said anything like that, ever in my life, and I don’t use those kind of figure of speeches.
Q.Did you say something about the child being knocked around a bit, or something like that.
A.... No.
Q.Was there ever any suggestion the child has been struck.
A. . No.
Q.You have said that this was in a bedroom. Can you tell us where that bedroom was in relation to the front door.
A.... I’d be guessing, but you walk through the front door, go through the lounge, turn right, then you get into the main bedroom. That’s about the standard houses in Elizabeth South.
Q.You have obviously visited a large number of those.
A.... That’s right.
Q.Can you tell us whether the child was in a bed or a cot.
A.... He was on a bed.
Q.Did it look like an adult’s bedroom or a child’s bedroom, or you were not able to say.
A.... It was an adult’s bedroom. There was a large bed, so it must have been an adult’s bedroom.
Q.Do you know whether there was sound equipment in that room. Can you remember.
A.... There is hardly anything in most of those houses, so I don’t do a checklist on what’s in the rooms.
Q.Can you remember whether or not there were posters all over the wall.
A.... No, I’ve seen lots of posters in every house, so I can’t say that I remember posters on a wall.
Q.If the mother were to say that the examination took place on a couch in the lounge, and not in a bedroom, could you be mistaken about it being in a bedroom.
A.... No, because I remember being called into a bedroom.
Q.Is this the only child you saw on that day, that afternoon.
A.... I can’t tell you. You have to get the notes from the locum service, the printout, to find out.
Q.You have been interviewed about this matter, obviously, more than once.
A...... Yes.
Q.Was there anyone else in that bedroom.
A.... I don’t remember.
Q.I need to suggest to you that, in fact, your examination took place on the lounge, in the lounge room, and not in the bedroom. I say again, could you be mistaken about that.
A.... Well, I mean, no, I saw the child in the bedroom.
Q.When were you first asked to direct your attention to which room in the house it was that you examined the child.
A.... When? When you walk through the door.
HIS HONOUR
Q.... When did anybody after this incident ask you to try to remember which room you examined the child in.
A.I think Detective Dodd did, is that what you are saying, Detective Dodd.
XXN
Q.You made a statement to Detective Dodd at some point of time, is that right.
A.... Yes.
Q.How long was that after.
A.... That was about two months after.” (Pages 202 to 208)
“Q.In that statement you suggested that the child was naked at the time of examination, is that right.
A.. Correct.
Q.Later you corrected that, when you wrote the medical report, is that right.
A.. Correct.
Q.You remembered when you contacted the medical board that, in fact, the child did not have the nappy removed.
A.. Correct.
Q.In other words, you were mistaken about what you had first told the police.
A.. I did make a mistake, yes, in what I first told the police.
Q.Also, you told Detective Dodd initially that there was, except for a bruise on the thigh, no other bruising present in the groin or testicles.
A.. Correct.
Q.That’s another statement that you corrected when you wrote to the     medical board, is that right.
A.. Correct.
Q.Again, because your memory about the event was not perfect, and you had recollected things differently later, is that right.
A.. No, I recollected things more appropriately later, not differently.
Q.Is it possible you may be mistaken about whether you examined this child in a lounge or a bedroom, or would you still stand by your original answer that it was in the bedroom.
A.. Yes.
Q.You could not be mistaken about that.
A.. No, unless they have got a bed in the lounge.
Q.Was there any suggestion from the mother about how the thigh bruise occurred.
A.. No.
Q.Did you ask her.
A.. I did ask her, yes.
Q.Did you get any sort of response.
A.. Nobody knew.” (Pages 208 to 209)
The trial of Michael Andersen was conducted before Acting Justice King sitting without a jury. In his reasons for verdict his Honour found:-

that bruises to the child’s forehead found at post mortem were not present on Wednesday 19 February 1997 and were not caused by the child possibly falling from its bed as the mother had related;

the bruising in the supra pubic and genital area “was severe and was first seen by Grace Dorovata on the Wednesday afternoon. She had not observed it when she last changed Kirk’s napkin before noon. She was alarmed and sent the accused to the nearby telephone box to summon a doctor. Dr. Christopolous (sic) a doctor with a locum service arrived shortly afterward. She showed him the bruising. He advised her to see her own doctor if it had not improved by Friday. I accept her version of the doctor’s visit and reject the doctor’s version. As the conflict between them as to what took place during the doctor’s visit is not material to the resolution of this case, I do not delay to elaborate my reasons for preferring her version”. (Exhibit P15 at page 5).

We interpolate at this point to isolate the material before the Tribunal concerning bruising to the child’s groin area.
The mother’s first description of the groin injury, in her statement Exhibit P4, is that she noticed at about 5 pm on 19th February 1997 that “Kirk’s penis was red. It looked red like a bruise near the base of the penis. It looked very sore”. Kathleen Dorovata’s description of what she saw at about 1 pm the following day is “Kirk’s testicles were bruised, his penis was bruised and the area just above his penis was bruised and appeared swollen .... The bruises were a reddy-blue colour”. That description conveys to our mind a more grievous appearance than the mother’s first telling of it, particularly taken with the mother’s comment that she thought it might be the consequence of a spider’s bite, but the second and third descriptions given by the mother (to Ms Anderson and later in her evidence) more closely resemble what Kathleen Dorovata and Dr Donald each said they saw.
Dr Donald gave evidence at the trial of Michael Andersen. In his evidence he expressed the opinion that the appearance of injury he observed, and depicted in the photographs Exhibit P20, was caused by the penis being grabbed and pulled hard producing haemorrhaging almost at the end of the penis and also at the point where the traction force of the pulling separated the penis from its base (Exhibit P19 pages 558/559 - in giving that opinion Dr Donald was referring to photograph 11 in Exhibit P20). He went on to discuss the “tracking” of blood from a bruise.
In his reasons for verdict King AJ wrote (page 6):-
“It is not clear whether the injury to the penile area is a separate injury from that to the supra pubic area. It would be possible for blood to track down from the supra pubic bruise to the penis. Whether one or two injuries, the trauma required would have been significant and painful. The injury is consistent with a blow or blows from a blunt instrument. If the penile bruising is the result of a separate injury, it is consistent with having been caused by someone yanking or twisting the penis with some severity.”
The evidence, and King AJ’s findings, prompts a question as to just what was to be seen of signs of injury to the supra pubic area and the penis at the time the practitioner visited the child. There is a real possibility that what was to be seen in those areas on the Thursday, as described by Kathleen Dorovata, and on the Friday, as described by Dr Wright, was the consequence of two separate injuries the second occurring after the visit by the practitioner. King AJ observed in the course of his reasons he had “some reservations about some aspects of (the mother’s) evidence where I thought she was endeavouring to assist (Andersen)”. The appearance of injury when the practitioner saw the child may well not have been so gross as the photographs depict, but rather the lesser signs suggested in the mother’s first description of them in her statement to the police; even so the mother’s description to the police was that the child’s penis was red and there was a bruise near the base of the penis.
It was put to Dr Donald by counsel for the Board that the mother described the injuries she saw to the child on 19th February 1997 to be “large areas of bruising on the penis and around the base of the penis which she said looked very sore, and areas of swelling”; Dr Donald said that description “sounds as though” it was consistent with what he had observed on 21st February 1997. He said that:-
“in an ideal situation if a doctor sees an injury, then the doctor should do their best to ascertain the mechanism and, if there is no clear mechanism available and they are dealing with a child, they should consider the possibility that the child has been harmed by somebody, or an event has occurred which may place the child in further danger, due to some unsafe equipment or whatever ...... You would at least need to draw some conclusion like that, and, in an injury that’s unusual or serious, I think you need to be as sure as you can that you’ve got to the basis of what caused it, and this would be, in my view, an unusual injury”. (Page 34).

He went on to describe what note ought to be made by the doctor and said “with a thing like this, if you weren’t aware of the cause, I think that you would want to make fairly comprehensive notes, because of the nature of the injury - the fact that it’s rare and unusual - and you don’t really know what’s caused it” (page 35) “and if the mother were present at the examination the doctor should question her concerning her knowledge of circumstances in which it occurred, whether there had been similar problems before and the child’s day-to-day activities, noting those things and his other observations for future reference; where the doctor does not recognise a diagnosis for the particular problem a careful examination should be carried out.

Dr Donald was asked whether a practitioner, who saw injuries of a kind the mother described she saw on 19th February 1997, and there being no satisfactory explanation for the occurrence of the injuries, should be suspicious of the possibility “that someone had done it to the child”. He responded (page 36-37):
“A.... Probably, but I’m not sure that - it’s very difficult, from my point of view. I mean, I’d say yes, but I’m trying to put myself into a position that’s realistic. I think my expectation of this kind of situation would be that it should not be left unanswered. There needs to be something further initiated. Like if, in this situation, a GP said ‘Look, I don’t know what’s going on here, but it’s weird. I’ve never seen this before. I think you need to take your little boy to your family doctor tomorrow, and I’ll give him a call and he can have a look and see what he thinks’, I’d have difficulty disagreeing with that response. If, though, I did think, either because of what I saw there, or because of what I saw when I looked at the child thoroughly - because that would be also necessary - if I thought ‘Well, maybe there is some problem here with someone harming this child’, then, once I thought that, I would hope that I would immediately respond in an appropriate way, which would be to alert the authorities to the possibility that the child has been harmed by someone. So, I think I have to look at it from those two points of view.
Q.So, you are saying that if the practitioner formed a view that it looked like the child had been pinched or punched -
HIS HONOUR That isn’t quite what Dr Donald said, Mr Stevens.
HIS HONOUR
Q.... As I understand it, you are saying you find yourself in a position of difficulty, because of your frequent exposure to injuries of this kind, or in these sort of circumstances, but, as I understand what you said, it is that you could not take any exception to a response, on the part of a general practitioner, if it had been to advise the parent to take the child to the GP the next day and he would telephone the GP to alert him.
A.Yes; not just leave it as it was.
Q.... On the other hand, if, indeed, the general practitioner had the thought cross his mind that the child may have been harmed, then you would expect a different response.
A.Yes.
Q.... That’s what you said.
A.Yes.”
It is to be recalled that the mother related, in her statement to the police or her interview with the Board’s investigator, or in her evidence:
·.. that the practitioner said to her “has there been other kids around or something and it looks like it’s been pinched, or punched or something”; “like he’s gone to urinate or something and someone has just pinched him to stop it or something like that”;
·.. the practitioner told her “(the child’s) penis was bruised and to give him some Panadol”; “to put some ice on it” and “if (the child’s) bruising wasn’t any better by Friday to take him to the doctor, my normal doctor” she understanding that to mean that “if it doesn’t look any worse on Thursday then I will take him on the Friday”.
The practitioner’s defence was conducted on the basis that because he had not found his consultation note, or any copy of it, he was unable to disagree with or refute the mother’s version of events concerning his consultation with the child.
In his evidence to the Tribunal the practitioner described that his work as a locum in the period of five years to the year 1997 was generally carried out after hours. He attended patients ninety-five per cent of whom had never consulted him before and he never saw them again. The reason for a call-out ranged from the trivial (he exampled a blister, a groin rash or a wart which had been evident for a week or more) to the very serious. He said a check of the records of the locum service he worked for in 1997 showed that between 1st January and 19th February he had attended approximately five hundred call-outs to patients.
The practitioner said that he thought it was about one week before he gave his statement (Exhibit P12) that he was asked by Detective Dodd to make a statement concerning, as best the practitioner remembers, a child named Kirk Dorovata who had massive bruising to the groin and testicles. He said that the name meant nothing to him, he had looked for but could not find his consulting notes and he then checked the locum services computer where he found two records, one for a child Kirk Dorovata aged less than one year and the other for a child Kirk Dorovata-Chapman aged less than two or three years. A print of those records is part of Exhibit P7.
The practitioner said his consulting notes were stored in the garage and he believes his father, who suffered from dementia at the time, may have thrown them out or burnt them.
The practitioner’s evidence is that “to this day” he has never had a recollection of seeing a child at a consultation in the circumstances described by the mother. He said that when he made his statement to the police “I was confused. I did have in mind a child which I had seen but not the child that Dodd was describing to me”. Asked by his counsel to respond to the Board’s allegation that he deliberately gave a false statement to the police he said “I did not try to mislead the police. I did not give a false statement to them. I was honestly confused as I did not have any notes. I had to base my statement to them on my recollection and I was trying to be as helpful as possible to the police officer”. (Transcript page 58).
The practitioner said that when he received the letter from the Board enclosing Dr. Donald’s complaint he spoke to a Dr Bruce Walker of the Medical Defence Association of South Australia and it was he who drafted the letter (Exhibit P3) which the practitioner sent to the Board in reply. At the time he sent the reply, he said, he had no recollection of the particular child, the subject of the complaint but he did not intend to mislead the Board and genuinely believed that the contents of his letter were true.
On learning that Ms Anderson wished to interview him, the practitioner spoke again to Dr Walker and also to Constable Frank Jacevic, whom he had known for some seventeen years and who worked in the police prosecutions service; he explained why he spoke to Jacevic and what advice he was given:-
“A.... Because when I got the complaint from the Medical Board, I started to think how on earth could I have missed such massive bruising to a child’s groin, testicle. I had never seen any such bruise to a child’s groin testicle. I thought about it more and more. I believe I may have made an honest mistake and the child had worn a nappy and I confused the case. I gave Frank my version of the events in my statement. Frank said to me ‘If you realise you’ve made a mistake, then you should correct yourself and change your statement’.
Q.When you say how you could have missed such ‘massive bruising’, were you thinking in your own mind the child must have been wearing a nappy.
A.... Yes.
Q.When you spoke to Mr Jacevic, did you talk about the issue of how it would look if you changed your statement.
A.... I told him I was very concerned that if I was to correct myself and change the statement then I would look like a liar and I wouldn’t be believed but Frank goes ‘If you think you’ve made an honest mistake, change your statement, and if people think you are a liar, so be it’ but also said ‘You can’t be blamed for making an honest mistake’.
Q.Did you take that advice.
A.... Yes.” (Pages 59-60).

The substance of his conversation with Jacevic is supported in Exhibit R21, notes of a conversation between the practitioner’s solicitor and Jacevic tendered by the practitioner with the consent of counsel for the Board.

The practitioner related that in his conversation with Dr Walker before being interviewed by Ms Anderson, Dr Walker “basically told me if I was unsure next time I should not give a statement, if I am unsure”. Dr Walker drafted the letter (Exhibit P4) which was handed to Ms Anderson before her interview with him commenced. The practitioner’s evidence is that he honestly believed the information in the letter was correct and he did not intend to mislead. His evidence is, also, that when interviewed by Ms Anderson he endeavoured to tell the truth and that, at the time he gave evidence in the trial of Michael Andersen, he honestly believed it to be true, on neither occasion intending to mislead.
In cross-examination the practitioner explained that in his work as a locum he carried with him a pad, like exhibit R14, provided by the locum service. The pad is segmented into groups of three sheets, the second and third recording a carbon copy of what is written on the first sheet. He said that for each patient he visited he wrote, among other things under “clinical notes”, his observations at and other pertinent matters derived from the consultation. Depending on the legibility of the second carbon copy, it was his practice to hand one of the carbon copies to the patient, retain another and deliver, we understand, the first sheet to the office of the locum service, from whence it would be sent to the patient’s general practitioner. The practitioner said that his memory is he did make such a note at the time of his consultation with the child but not only could his retained copy not be found, because of the circumstances he described, but also enquiries concerning the copy sent to the general practitioner had been unsuccessful.
In our view the practitioner’s system to store his own copy of his consultation notes was extremely poor. Further, the practice which resulted in the locum service not having a copy of the consultation notes for its own records is to be deprecated. On the practitioner’s evidence he has not been able to retrieve a copy of his notes and in consequence, he claims, he was deprived of the means to properly respond to questions about the events concerning the child. The practice of this locum service in relation to consultation notes, and other practices which have a similar system, should be reviewed if that has not already happened to prevent or minimise the risk of a locum doctor being placed in a position where there is no extant copy of the note.
Pressed in cross-examination as to his memory of the events of 19 February 1997 at the time he gave his statement to Dodd, the practitioner said he was “confused as to which consult it was .... I remembered a consultation but because I did not have my notes, my recollection was not very good” but the consultation he did remember when speaking to Dodd was with a child that was naked. His cross-examination went on:
“Q.... And at no time since then have you had any recollection of a consultation with Kirk.
A.I have had no recollection of a consultation with that child with massive bruises to the groin or testicle.
Q.... And no recollection of a consultation that you can say was with the boy Kirk.
A.No.
Q.... So when you wrote to the registrar of the Medical Board and said that the child was wearing a nappy at the time of the consultation, that was mere speculation on your part, was it not.
A.I believed at that point in time I was telling the truth, and I believed the child had a nappy on.
Q.... At that point in time you still had no recollection of a consultation with Kirk.
A.I had no recollection of a consultation with the child with massive bruises to the groin or testicle.
Q.... You had no recollection of any occasion which might fit this description when you had examined a child with a nappy on.
A.All I could recall was that I believed I examined a child that had a nappy on.
Q.... You see, you have told us that apart from recalling an occasion when you examined a child with no nappy on, the occasion you were thinking of when you gave the statement o Detective Dodd - apart from recalling that occasion, you have told us you have got no independent recollection.
A.I don’t have any -
Q.... Of any occasion.
A.Of any occasion for what?
Q.... Of any occasion, any particular occasion, when you examined a child. The truth of the matter is that when you wrote the letter on 6 April 1998, you had no memory of any relevant consultation, did you.
A.I had a recollection of a case, and I was confused. I did not, and I tried to correct myself. That’s it.
Q.... When you gave your evidence about your letter of 6 April, you said this ‘I started to think about how I’d missed such a large injury. I thought more. I thought the child may have been wearing a nappy.’
A.Yes.
Q.... That wasn’t because you remembered the child waring a nappy, was it. It was because you were guessing.
A.No, I was believing that that child was wearing a nappy.
Q.... And you said in your evidence ‘the child must have been wearing a nappy.’ That was not something you knew, was it. That was just a guess.
A.No, I was not trying to guess.
Q.... How is it that in February of 1997 - sorry, April of 1997 you had no recollection, no recollection at all, of this incident, but a year later you purport to recall the incident and to say that the child was wearing a nappy.
A.Because after the complaint I started to think more, and more, and more about the case, and what, as I said in my statement, could have gone wrong, and how on earth I could have missed a child with such a huge bruise to the groin or testicle. I have never seen a child with a bruised groin or testicle to that description, and then I believed that the child was wearing a nappy.
Q.... So, at the very best, your claim that the child was wearing a nappy was speculation.
A.My recollection was poor because I didn’t have my notes.
Q.... It wasn’t a case of your recollection being poor. You say that you had no recollection at all.
A.No, my recollection was poor.
Q.... You say you had no recollection at all.
A.Of a child that actually had bruises to the groin or testicle. I have no recollection of seeing a child with that description.
Q.... So you have got no identifier, no occasion identified at all, that you can remember.
A.Not to that description, no.
Q.... If you are telling the truth about that, the question of nappy or no nappy is just a guess on your part.
A.Well, possibly.” (T. 72-74).
The practitioner said that the statement he gave to Dodd was about an incident which “more than likely .... I cannot be certain, I was confused. I didn’t have my notes, so my recollection was not very good”, concerned not Kirk but a different child because he did not remember a consultation with Kirk at all.
He agreed that if he had seen on 19th February 1997 a child with injuries to the penis and the pubic area like those depicted in photographs Exhibit P20 he would have remembered them because they were highly unusual, he would have wanted an explanation for them, and if there was no explanation he would have been suspicious and reported them to FACS. He said he did not see and had never seen a child with such injuries and rejected the suggestion that when he was contacted by Dodd he did remember he had seen bruising to the child’s penis, that he knew he had not, as he should have done, reported what he had seen to FACS and thought he would be “blamed” for the child’s death a few days later from non-accidental injuries.
The practitioner was taxed about his reasons for changing what he told Dodd to assert that the child he examined on 19th February 1997 was wearing a nappy:
“Q.... I suggest that you, therefore, gave a full story to Dodd in the beginning, claiming that you’d seen no injury, but, when things got serious and you had to be questioned by a government investigator, you realised that that story was going to make you look very silly.
A.I realised that that story was going to make me look silly, but I realised I had made a mistake, that the child maybe was wearing a nappy, and I corrected my statement at that point in time, and I realised, if I corrected my statement, people like yourself will think I’m a liar.
Q.... You realised, didn’t you, that if you didn’t change your statement, you would have to give evidence in the criminal trial, and you’d have to answer questions about why you had not notified or done anything about the bruising to the penis of the child.
A.As I said, I honestly believed, after I thought about it, that the child did have a nappy on, and I was not trying to hide anything, and going to the Supreme Court, I realised I was getting publicity out of it, and that was it.
Q.... You realised, didn’t you, that the child had been examined in a hospital and that notes would have been made about the injuries to the penis area.
MRS SHAW: When? When my friend said ‘You realised’ -
A.... No, I didn’t.
XXN
Q.... At the time that you wrote the letter of 6 April, or signed the letter of 6 April.
A.I’m not a forensic pathologist, so I can’t say ‘Yes’ or ‘No’ to that.
Q.... You realised that you might well find that there was evidence which established that those injuries were there when you examined the child.
A.No.
Q.... You realised that you might have the job, in court, of trying to explain why you didn’t see them, or, if you did see them, didn’t do anything about them.
A.As I said, I did not realise all these things you are saying.
Q.... It was a convenient excuse for you to change your story and to say ‘Well, the child had a nappy on’.
A.No, it was not a convenient excuse.
Q.... You wondered whether changing your story would get you into trouble, so you asked Frank Jacevic.
A.No, I asked him -
Q.... And he told you -
MRS SHAW: Please, let the witness finish.
XXN
Q.I will allow you to finish. Do you want to say any more about that.
A.... I asked Frank for his advice. That’s it.
Q.What you were concerned to know was what sort of trouble you were going to get in if you changed your story.
A.... No.
Q.He assured you that, as long as your previous statement had been made honestly, you wouldn’t get into any trouble.
A.... I did make a previous - the previous statement was an honest statement; a mistake, but an honest statement -
MRS SHAW ASKS THAT THE WITNESS BE ALLOWED TO FINISH HIS ANSWER WITHOUT INTERRUPTION.
Q.... Do you want to answer that further.
A.Can you repeat the question?
SECOND TO LAST QUESTION READ BY REPORTER
A.He didn’t assure me that I would not get into any trouble at all. He said ‘You cannot be blamed for a mistake’.
Q.... Therefore, it was convenient for you to claim that you’d made a mistake, and to change your story to something that will get you out of trouble.
A.No, it wasn’t convenient, and I realised the version I gave, or the statement I gave in the Supreme Court would have got me into trouble anyway, worse than what it was, so it’s not as if I changed my story or my statement to make myself look better.
Q.... By changing your statement to say that the child had a nappy on, you immediately gave yourself an excuse for not having reported the injury to the penis, didn’t you.
A.We have already - I have already admitted guilt on that part. Whether I’ve seen a bruise or not, I’ve already admitted guilt to it.
HIS HONOUR
Q.What did you say.
A.... Whether I’d seen a bruise or not, my counsel and I have already admitted guilty to (b), (c) (d) and (e) from the Medical Board complaint.
XXN
Q.... But that hadn’t happened back when you changed your statement, had it.
A.I don’t remember - no.
Q.... That happened today.
A.Yes.
Q.... I suggest that, by changing your statement, you thought it would just be a matter of your word against the mother’s as to whether the child had a nappy on.
A.Not at all.
Q.... Whereas, otherwise, if you stuck to your original story, you might be up against the forensic evidence as well.
A.No.
Q.... You gave your same story in your evidence in the Supreme Court.
A.I believe so.” (T. 85-89).

It is reasonably possible that in his wish to be as helpful as he could with the investigation by the police, but not having his consultation notes and where (as we consider it also possible) the extent of the injury to the child’s penis and pubic area or one of them was not apparently as serious as the photographs depict, the practitioner may as he claims have had no memory of such serious injury at the time he gave his statement to Dodd and he was therefore careless about the accuracy of what he stated to be his recollection. The giving of such a statement, and the reason for it as the heading to his statement makes clear, was one where in our view a practitioner should not provide it unless the practitioner is absolutely sure of its truth, or if there are some concerns about recollection then that should be clearly stated. Here, we find, in giving his statement to Dodd the practitioner failed to comply with the heavy duty cast upon him to attest only to what he truly remembered; rather he put forward and signed a version of events which was not clear in his mind. He should have declined to make any statement unless he could retrieve his consulting notes, his evidence as to the loss of which was not so shaken that his explanation should be rejected. The evidence of Dr J Asimakopoulos to the effect that the practitioner was a competent and full note taker of his consultations indicates that but for the loss of his notes the practitioner would likely not have committed himself to the content of his statement to Dodd. We infer that the Board has made inquiries without success after the copy of the note which, the practitioner said, would have been sent by the locum service to the client’s general practitioner.
The circumstances and the content of the practitioner’s letter dated 6th April 1998 to the registrar (Exhibit 3) his questioning by Ms Anderson (Exhibit 13) and his evidence at the trial of Andersen is in our view a more serious matter.
The practitioner admitted that following receipt of the complaint by Dr Wright he, in effect, mused how it was, or it might have been, he did not observe injuries to Kirk’s penis and pubic area to the extent and of the nature described in Dr Donald’s complaint. He had no recollection of consulting a child “with massive bruises to the groin and testicle” (page 72) so “I started to think how on earth could I have missed such massive bruising to a child’s groin and testicle. I have never seen any such bruise to a child’s groin, testicle. I thought about it more and more. I believe I made an honest mistake and the child had worn a nappy and I confused the case. I gave (Jacevic) my version of the events in my statement. (Jacevic) has said to me “if you realise you’ve made a mistake, then you should correct yourself and change your statement” (page 60). This was at a time when, as the practitioner admitted, he realised that adhering to what he had told Dodd “was going to make me look silly but I realised I had made a mistake, that the child maybe was wearing a nappy” (our emphasis).
The onus of proof upon the Board is not to the standard of proof beyond reasonable doubt required upon the charge of a criminal offence; it is proof on the balance of probabilities but “the seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the Tribunal”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J. In the context of allegations of unprofessional conduct the civil as opposed to the criminal standard of proof was held to be the correct onus in Rajagopalan v The Medical Board of South Australia (SA Court of Appeal Judgment No. S6667 dated 5 May 1998 unreported) where the court cited with approval the approach of O’Bryan J in Basser v Medical Board of Victoria (1981) VR 953 who wrote at page 969:
“I am satisfied that the civil standard of proof is applicable here. The decision in Mercer v Pharmacy Board of Victoria (1968) VR 72 requires that, where the allegations are serious and grave, involving professional misconduct and incompetence, the court should not be satisfied that the allegations are true unless the evidence is precise and can survive careful scrutiny. That is proof on the balance of probabilities, the civil standard of proof, with the proviso that the evidence must produce a reasonable state of satisfaction in ones mind: Briganshaw v Briganshaw (1938) 60 CLR 336; (1938) ALR 334. The matter must not be approached with hindsight or by drawing indirect inferences.”
The Board’s case is that as to each of the practitioner’s statement to the police, his letters to the Registrar and his evidence to the Supreme Court, the practitioner deliberately stated what he knew to be false, that is that he lied, concerning the state of the child’s dress and what the practitioner did or observed in his consultation with the child. There can be no doubt that this submission, which is made in relation to paragraph 12(a) of the complaint, is tantamount to categorising the practitioner’s conduct as criminal, albeit the proceedings before the Board charge unprofessional conduct and the standard of proof is upon the balance of probabilities as explained in Rajagapalan’s case.
The practitioner appears before the Tribunal as a man of positive good character and a reputation for honesty and competence. These are matters which should be borne steadily in mind not only as affecting whether the practitioner is likely to have engaged in deliberate falsehood but also in assessing the credibility of the explanations he has given, on his oath, for the different versions of events given to Dodd and later the Registrar and the Supreme Court.
As we observed earlier, the appearance of injury to the child’s penis and pubic area, or one of them, on 19th February 1997 may not have been as gross as that depicted in the photographs Exhibit P20 taken on 21st February 1997 or indeed that to be inferred from Kathleen Dorovata’s description of them when observed by her at about 1 pm on 20th February 1997. We see no reason to reject the practitioner’s evidence that if he had seen injuries of the nature and extent of those shown in the photographs he would have reported them. We accept that what he did observe (injuries of the kind first described by the mother to the police, a description which the practitioner has not challenged) should have brought him to suspect that the child had been abused and to notify the Department for Family and Community Services, a failure which the practitioner admits was unprofessional conduct on his part. The practitioner was then next faced with a police officer seeking a statement from him concerning his part in the events of 19th February 1997. He says he does not remember what he was told by the police officer except that he wanted a statement from the practitioner concerning a child with massive bruises to the groin and testicle. There is no evidence from the police officer to assist the Tribunal as to what the practitioner was told; the officer was not called. Clearly if the practitioner had been told in some detail of the nature and extent of the child’s injuries it would have been difficult to accept the practitioner’s evidence that he must have “confused” consultations with two or more children. The proffering of his statement to the police may well have been to an extent a product of confusion but in our opinion it was careless in the sense it was given without sufficient thought by him of the seriousness of what he was being required to do. It is more likely than not the practitioner did not learn of the child’s penile and pubic area injuries in any detail until he received Dr Donald’s complaint, and at that point it is consistent with his evidence that he began to question in his own mind how he could not have seen such injuries if the child had been naked. It is, we find, the decision the practitioner made after his musings on that topic which is more reprehensible than the carelessness, as we have categorised it, evident in the giving of the statement to the police; he embarked upon a process of rationalisation to arrive at a reason to excuse, if not to others then to himself, why he did not observe what he had learned may have been there to be seen when he consulted the child. The change he made, that the child was wearing a nappy when he examined it, was not put forward to the Registrar, the investigator or in his evidence at Andersen’s trial for what it was - a conclusion he had reached in his mind to account for not seeing the gross injuries to the penile and pubic area described by Dr Donald - but to all appearances as an unqualified fact.
But for the practitioner’s positively attested to reputation for honesty and trustworthiness and the possibility on the material before the Tribunal that the child’s apparent injuries on 19th February 1997 were not as gross as is evident in the photograph, his evidence that he did believe or perhaps more accurately he had come to believe that the child was wearing a nappy on 19th February 1997 and that there was still confusion in his mind between that and some other consultation would have been very difficult to accept. The seriousness of the allegation that the practitioner knowingly lied in each of the several statements he made requires that on all the evidence we must be satisfied the preponderance of the probabilities is that he did so. We are not so satisfied. However we have no doubt as the practitioner admits that his approach to the matter of his reconsideration, or further consideration, of the events of 19th February 1997 when he was made aware by Dr Donald’s complaint of the extensive and severe nature of the injuries to the child’s penis and pubic area, was improper and unethical in a practitioner placed in the position of this practitioner. In our view he should have frankly stated that, motivated by a conviction he would not have failed to observe injuries of the nature of those described by Dr Donald, he had come to the conclusion that although he had no certain memory it was the case that the child must have been wearing a nappy; his position as a medical practitioner, the need in that connection (having regard to what he was about to do) to be accurate and scrupulously frank required that he not assert as unqualified fact what in reality was supposition.
The practitioner admitted in respect of the matters alleged in paragraph 12(a) of the complaint that his words were false, misleading and inconsistent but that he did not knowingly intend them to be so. That admission accords with our findings on those matters. It will be a factor in the penalty to be imposed.
The practitioner does not, he says he cannot, deny the mother’s version of the events of his consultation with the child on 19th February 1997. On that state of the evidence and his admissions concerning paragraphs 12(b) to 12(e) inclusive the practitioner is guilty of unprofessional conduct. Even if the child’s injuries were of the lesser severity implied in the mother’s first description of them in her statement to the police they required the practitioner to carry out a physical examination of the child, and make more searching inquiries of the mother than he did; that he judged, according to the mother, the child had been pinched or punched in the genital area of itself shows there was a need for the practitioner to seriously consider that the child had been abused by a person with whom the child resided and to also consider his responsibility under the Act. He did none of those things. His failure to adequately examine the child with his mind turned to his responsibilities under the Act as a medical practitioner may have been, as Dr Donald allowed, in part a deficiency in his training in common with many other practitioners but his examination of the child was so perfunctory it shows reprehensible conduct considerably below the standard to be expected of any medical practitioner placed in the position of this practitioner even allowing for his work-load as a locum.
The practitioner is 37 years old. He graduated with the degree MBBS from Adelaide in 1989 and since that time he has done some casualty work, some general practice work and some locum work. In 1997 he was admitted to a fellowship of the Royal Australian College of General Practitioners after a course of study beginning in 1992, the same year in which he began work as a locum. Between 1993 and 1997 he worked under the supervision of Dr Arthur Giannopoulos (who was accredited for general practitioners’ training courses), first as a trainee and then as an associate. Dr Giannopoulos gave evidence to the effect that the practitioner was thorough and methodical in his work and he found the practitioner to be honest. Written testimonials were tendered on the practitioner’s behalf from Dr Michael Pincus and Mr Paul Mavris.
Beginning in about June 1999 the practitioner attended some six training sessions concerning the detection of and the approach to child abuse which he arranged through Dr Donald, and included training in reporting what is required to be reported pursuant to section 11 of the Childrens Protection Act 1993; Dr Donald said that the practitioner had shown interest, enthusiasm and understanding in the sessions he attended. The practitioner has also accepted an invitation from Dr Donald to continue to attend fortnightly seminars in the Child Protection Unit to, as we understand, further his knowledge and experience in the identification of children subjected to abuse.
The purpose of proceedings of this nature before the Tribunal is not punishment -
“..... but to protect the public, even though in the course of imposing discipline, some sanction in the nature of punishment may be ordered such as a fine or suspension.” Rajagapalan at page 10 per Mulligan J.
“.....(the) purpose remains, from first to last, ..... the protection of the public who deal with medical practitioners upon the assumption of their integrity and ethical behaviour.” Richter v Walton (unreported SC of NSW, Court of Appeal, 15 July 1993 per Kirby P and O’Keefe AJA).
In our opinion it is a matter of very considerable importance that a medical practitioner when requested, as in this practitioner’s case, to make a statement to an investigating police officer that is to be used in criminal proceedings, or when responding to a complaint made to the Medical Board, and most particularly when giving evidence before a court, should commit him or herself only to the matters of which there is a clear and certain memory. Further a medical practitioner called to examine a patient must carry out an examination which is adequate in all the circumstances, and record and keep a full note of his examination, so that the practitioner is equipped to properly consider the matters which may give rise to the reporting obligation imposed upon all medical practitioners by Section 11 of the Children’s Protection Act, an obligation which is obviously for the protection of a vulnerable section of the public. All of these matters were of such importance, and the practitioner’s acts and omissions concerning them fell so short of the necessary standard, that in our opinion the only appropriate penalty is a period of suspension. In our view the order of the Tribunal should be that the registration of the practitioner be suspended by removing his name from the general register for a period of two months.

MEDICAL BOARD OF SOUTH AUSTRALIA V CHRISTPOULOS
[2000] SADC 48 (2)

Members Last and Stott
Medical Practitioners Professional Conduct Tribunal

We will not repeat the detailed preliminary information contained in His Honour Judge Kitchen’s reasons. Our reasons primarily canvas, but are not confined to, the particulars in paragraph 12(a) of the complaint, namely:-
“He gave inconsistent, false and misleading accounts of his consultation with the child to Elizabeth CIB, the Registrar of the Medical Board and the Supreme Court”.
Insofar as the facts can be ascertained, it seems that the following sequence took place:-
On 19th February 1997 Dr Christpoulos was called to see Kirk Dorovata-Chapman because the child’s mother, Grave Dorovata, saw something wrong with his penis. She was shocked by it and very concerned. In her evidence to the Supreme Court she said she “freaked”. She was unimpressed with Dr Christpoulos’ examination and resented his implication that the child could have been injured by another person, whether a child or an adult.
Next morning she took Kirk to see her mother, Kathleen Dorovata, to seek her advice on what to do. Kathleen Dorovata gave her own description of the bruised genitalia.
The following morning Kirk received fatal injuries, and soon afterwards Grace Dorovata’s friend Michael Andersen was arrested and charged with murder. He was not Kirk’s father and had a child of his own by another woman. He was subsequently convicted of manslaughter and sentenced to prison.
On 29th April 1997 Dr Christpoulos made a statement to Detective Dodd of Elizabeth CIB. He concluded this by claiming to have lost his clinical notes and that he was relying on his memory. He correctly quoted the message on his pager (“bruised groin”). Before the Tribunal he did not contest that he falsely claimed that the mother was concerned at possible appendicitis. He described with apparent exactitude a non-existent bruise of the thigh (as confirmed by Exhibit P20) a story to which he adhered in the Supreme Court 18 months later. He made the specific statement “There was no other bruising present in the groin or testicles”. He described a clinical examination, including use of the stethoscope, which he did not contest did not take place.
Almost a year later, and after taking advice from Frank Jakacic, a police officer, Dr Christpoulos signed a letter drafted by Dr Bruce Walker of the Medical Defence Association, including “The facts are that the child was dressed in a nappy and I did not examine the groin or testicles”.
On that day Dr Christpoulos was interviewed by a Government investigator in the presence of Dr Walker. Dr Walker raised the question of confusion of Kirk with another patient but Dr Christpoulos did not refer to such a possibility in his police statements, his letters to the Medical Board or in his Supreme Court evidence. This was not raised until he appeared before the Tribunal.
The statement made to Elizabeth CIB, together with the subsequent “correction” a year later, did not describe the non-contested facts, namely that Kirk Dorovata-Chapman was naked and that Dr Christpoulos undoubtedly examined the bruised genitalia, which was the reason for the call in the first place. The description of a bruised thigh and of a detailed clinical examination was false and it was misleading. His statement was inconsistent with the non-contested facts of the case.
Both of Dr Christpoulos’ letters to the Medical Board were brief. The most important statement is “However, when I called to 149 Harvey Road, Elizabeth Grove to see Kirk Dorovata, on 19th February 1997, I did not see anything which would have led me to report to the F.A.C.S.”
The follow-up letters of 6th April 1998 claimed that the child wore a nappy and that Dr Christpoulos did not examine the genitalia.
In pleading guilty, Dr Christpoulos did not contest that he did see Kirk naked. He undoubtedly saw the significant genital bruising. We do not accept his remark, “If I had seen it”. [Page 76, line 26 of his evidence before the Tribunal]. There is no doubt that he saw it, albeit probably only casually and superficially.
Bearing in mind that the first formal component of a medical examination is inspection, followed by palpation, percussion (if relevant) and auscultation (if relevant) this is undoubtedly false. It is misleading. It is inconsistent with the facts in that Dr Christpoulos and his counsel, in pleading guilty to the other components of the charge, did not contest the accounts of the consultation given by the child’s mother, Grace Dorovata.

The most important aspect of this charge [12(a)] is Dr Christpoulos’ evidence to the Supreme Court. Here the long intervals involved are very important, especially in the context of his claims in evidence before the Tribunal of having been confused and, by implication, doubtful.

19 February 1997 Dr Christpoulos saw Kirk Dorovata-Chapman once only.

29 April 1997............. Dr Christpoulos’ first statement to Detective Dodd of Elizabeth CIB gave no hint of doubt or confusion beyond not having clinical notes to consult. “I have recalled this incident to the best of my memory.”
19 January 2000         “... I was confused. I didn’t have my notes, so my recollection was not very good.” He did not say so until appearing before the Tribunal.
8 December 1997...... Complaint to the Medical Board.
13 January 1998         First response by Dr Christpoulos to the Medical Board.
19 January 2000......... “... after the complaint I started to think more and more, and more about the case, and what, as I have said in my statement, could have gone wrong, and how on earth I could have missed a child with such a huge bruise to the groin or testicle ...”
6 April 1998     Letters of ‘correction’ to the Medical Board and Elizabeth CIB, which were false, misleading and inconsistent with the non-contested facts.
6 April 1998............... At the interview with the Government Investigator, Dr Walker raised the question of confusing Kirk Dorovata-Chapman with another patient. Dr Christpoulos stated “I don’t even have a clue if that’s the child I saw, he was just a child, whether it was Kirk Dorovata, I wouldn’t have a clue”.

Nevertheless, Dr Christpoulos did not amend his second statements to the Police and the Medical Board, dated that day, to suggest this possibility.
He had a further six months to “think more and more and more” before giving evidence at the trial of Michael Andersen in the Supreme Court on 12th October 1998. In Judge Kitchen’s judgment the copy of the transcript of Dr Christpoulos’ evidence in that trial takes up eight pages of transcript. It was prolonged, detailed and displayed firm confidence throughout. He explicitly denied that his “recollection was not very good”.
In the Supreme Court Dr Christpoulos claimed that Kirk Dorovata -Chapman was wearing a nappy. In spite of having no notes and the interval of 20 months, he gave a clear account of the non-existent bruise on the right thigh. He described an examination for suspected appendicitis, which he does not now contest he did not undertake.
“Q.... Can you remember palpating the abdomen in this particular case?
A.Yes.”
He described the examination as taking place on a bed in a bedroom, and before the Tribunal did not contest that it was on the mother’s knee on a couch. On being pressed in the Supreme Court he was emphatic about this detail.
In the Supreme Court, on being pressed about changing his recollection of Kirk wearing a nappy,-
“Q.... Again, because your memory about the event was not perfect, and you had recollected things differently later, is that right?
A.No, I recollected things more appropriately later, not differently.”
There was no hint that “I cannot be certain, I was confused”. In the Supreme Court he was emphatically confident of his memory.
In the Supreme Court Dr Christpoulos’ evidence was undoubtedly false and misleading. It was inconsistent with what he and his counsel accepted before the Tribunal as the non-contested facts of the case.
Accordingly, we conclude that in all three components of 12(a) Dr Christpoulos’ verbal and written statements were false, misleading and inconsistent with the facts as he did not contest them to be.
Before the Tribunal he claimed that he had made honest mistakes. That is not consistent with the benefit of having had so long to ponder on “what, as I have said in my statement, could have gone wrong, and how on earth I could have missed a child with such a huge bruise to the groin or testicle ...”. If they were honest mistakes, why did he not correct them in the Supreme Court, or at the very least express doubt on the accuracy of his memory?
In his judgment in the trial of Michael Andersen, Acting Justice King raised the possibility that perhaps Kirk Dorovata-Chapman had two separate injuries to his genitals. This possibility was not raised before the Tribunal in evidence or by counsel, other than in providing as Exhibit P15 a copy of the judgment of King AJ.
Whether it was so or not (and there is no possible means of knowing) the prime fact is that the sole reason for calling Dr Christpoulos to the home was because the child’s mother saw obvious evidence of injury to the penis and adjacent tissues, which she described as “a massive bruise on his groin .... His testicles, penis and around it.”She said of her emotional reaction that she “freaked”. She was so concerned that she took the child to her mother for advice as soon as she reasonably could do so.
If Dr Christpoulos deliberately set out to be false, misleading and inconsistent, obviously we must consider his motive for doing so. Initially he had nothing to gain from not telling the truth to Detective Dodd, although perhaps at that time he had no proper memory of the consultation or confused it with another one. He may have been ashamed to say so and invented a plausible story.
Dr Christpoulos claimed to have searched in vain for his clinical notes, but there is a possibility that he never made any. In his statement to the Government Investigator and in his evidence before the Tribunal he referred to the range of clinical problems he saw as a locum, including some so trivial as not to justify a call in the first place. He stated that in the locum service it was his standard practice to take written notes, but he did not state that he invariably did so.
We are critical that, if the Medical Board undertook a search for the copies of the notes which should have been sent to Kirk Dorovata-Chapman’s usual medical practitioner, we were not informed of the outcome. Dr Christpoulos claimed to have looked for the copy or copies of the triplicate forms which he stated he usually retained in the boot of his car or in his garage.
Dr Christpoulos was contacted by Detective Dodd for information and to make a formal statement concerning a child he saw only once two months previously. By our calculations, at that time he was making about 14 house calls per late afternoon and night over a considerable area. We were not told whether he had a second job during conventional working hours. Without notes, he responded with details which were not consistent with the non-contested facts. Perhaps he did indeed confuse Kirk Dorovata-Chapman with another child who had a bruise on the thigh, not the genitals, but what is crucial is that he did not say so - to Detective Dodd, to the Registrar of the Medical Board or in the Supreme Court.
In assessing the practitioner’s credibility on his oath and whether he is likely to have deliberately lied, we have given due weight to his reputation for honesty and competence, attested to by witnesses and the testimonials to the Tribunal; however, when he received the copy of the complaint to the Medical Board, we believe that he found it easy to concoct what seemed at first to be a plausible story, until he confronted the implications of being in breach of the statutory obligations to report non-accidental injury in children.
We further believe that, having not been frank with his original statement to Detective Dodd, he deliberately lied to try to cover himself from the charge of not having met his statutory duty to report apparent non-accidental injury to Kirk Dorovata-Chapman. In the Supreme Court, he continued to lie, even in the face of vigorous questioning by counsel.
We are convinced, on the balance of probabilities, and bearing in mind the implications, that Dr Christpoulos is guilty of all components of charge 12(a).
Penalties imposed by the Tribunal are not punitive or a matter of retribution. The only basis is protection of the public, which includes the effects of publicity surrounding cases brought before a Medical Practitioners Professional Conduct Tribunal on both the medical profession and the general public.
It was submitted by his counsel that Dr Christpoulos’ statutory obligation was reduced because he was a locum, not the patient’s usual doctor. We reject this contention.
A little boy died who might have lived had Dr Christpoulos done his duty by taking a proper history; conducting an adequate examination; supporting an anxious mother; personally contacting the child’s usual doctor; and discharging his statutory responsibility to report apparent non-accidental injury.
This case justifies more than a reprimand, but less than cancellation of registration. What is required is a period of suspension. None of the other penalties under the Medical Practitioners Act would be appropriate.
We consider that an appropriate period of suspension is six months.

[2000] SADC 47

14 April 2000