Medical Board of South Australia v Cowie No. Dcadd-02-171

MEDICAL BOARD OF SOUTH AUSTRALIA V COWIE
[2003] SADC 84
Judge Kitchen, Members Dr O Wicks, Dr P Last, Rev K Chessell
Administrative and Disciplinary Division

By a Complaint dated 10^th April 2002, made by the Medical Board of South Australia (“the Board”) pursuant to Section 58 of the Medical Practitioners Act 1983 (“the Act”), it is alleged that Stephen Paul Cowie (to whom we will refer as “the respondent”) has been guilty of unprofessional conduct in relation to the practice of medicine.
The Complaint comprises nine pages divided into five paragraphs, each with several sub-paragraphs.
Paragraphs 1-3 inclusive of the Complaint allege that at the material times the practitioner was registered pursuant to the Act, that he practised as a general practitioner at Bunyana Clinic, Whyalla Norrie and that between approximately 1988 and 1998 Ms Elaine Crowhurst (in the Complaint called Ms Elaine Yager) and her three children , Trisha, Nicholas and Taylor-Kate consulted the respondent for the purpose of medical treatment. None of this is disputed. Those three paragraphs then allege, on the part of the practitioner, conduct during the period from in 1993 to in 1998 toward or in relation to Ms Crowhurst and also on one occasion in September 1998 toward Ms Crowhurst’s daughter Trisha, which it is claimed constituted unprofessional conduct by the practitioner in the practice of medicine.
Paragraphs 4 and 5 of the Complaint set out, by reference to the conduct alleged in paragraphs 1 to 3 inclusive, the Board’s contentions that the conduct of the practitioner amounted to unprofessional conduct as alleged by the Board.
The practitioner pleaded not guilty to the charges in the Complaint.
In substance the Complaint alleges:
Paragraph 1- in relation to Ms Crowhurst
·that the respondent, in the course of consulting Ms Crowhurst at his surgery, on numerous occasions hugged Ms Crowhurst when they were both standing or when Ms Crowhurst was seated on the respondent’s lap, and on three occasions hugged Ms Crowhurst when they were both on the respondent’s examination couch and on one occasion kissed Ms Crowhurst on the lips.
·that the respondent made telephone calls to Ms Crowhurst’s house unrelated to his treatment of her as her medical practitioner, that he invited her to meet him at a location known as The Drag Club on Eight Mile Creek Road, Whyalla and that he invited her for a swim in the pool at his house.
·that in approximately 1998 the respondent telephoned to speak to Ms Crowhurst at the house of her friend, Mr Crowhurst, purportedly concerning a blood test Mrs Crowhurst had had, when no such blood test had occurred.
Paragraph 3 – in relation to Ms Crowhurst
·that the respondent offered to give Ms Crowhurst a pen, with the appearance of syringe, piece by piece “in exchange for favours”.
Paragraph 2 – in relation to the child Tricia
·that the practitioner, when consulted at his surgery by Trisha about her large breast size and one of her shoulders being lower than the other, cut off a lock of Trisha ’s hair assuring her “that trimming one side of her hair would fix her problems as no-one would be able to tell that one of her shoulders was lower than the other”.
Paragraph 4 of the Complaint alleges that by engaging in the conduct alleged in paragraphs 1 and 3 of the Complaint the respondent was guilty of unprofessional conduct in that he:
“4.1failed to ensure that his relationship with the patient remained professional and objective;
4.2failed to make and retain adequate records as to his treatment of the patient;
4.3exceeded the boundaries of appropriate behaviour by a general medical practitioner towards a patient;
4.4acted in a manner which was likely to confuse the patient as to the nature of the relationship and thus to be detrimental to the therapeutic relationship and the treatment of the patient;
4.5attempted to pursue a personal friendship with the patient for his own gratification;
4.6attempted to pursue an intimate emotional and/or sexual relationship with the patient for his own gratification;
4.7abused the trust placed in him by the patient by virtue of his position as her treating general medical practitioner;
4.8acted in a manner which was likely to result in the patient subsequently feeling exploited, upset and angry at his abuse of trust.”
Paragraph 5 of the Complaint alleges that by engaging in the conduct alleged in paragraph 2 of the Complaint the respondent was guilty of unprofessional conduct in that he:
“5.1Failed to properly assess and seriously consider the patient Trisha’s complaint and concerns.
5.2Acted in a manner which was likely to result in the patient Trisha feeling embarrassed, humiliated and upset.
5.3Failed to cause any or any further investigations into the cause of the patient Trisha’s complaint, and failed to appropriately address the presenting medical complaint.”
Ms Crowhurst, her daughter Trisha and Mr Crowhurst, whom Ms Crowhurst met in January 1998 and has married since the events the subject of the Complaint, gave evidence in the Board’s case. Counsel for the Board also tendered by consent a transcript of an interview of the respondent on 19 November 1999 by Ms F Anderson, an investigator instructed by the Board.
Ms Crowhurst was born on 8^th September 1960. By the date of her first consultation with the respondent (she said it was in 1987) Ms Crowhurst and her daughter Trisha were living with her then partner Mr Yager. In 1989 Ms Crowhurst suffered at her work-place an injury to her back for which she subsequently (in 1990 she thought) underwent a spinal fusion operation – thereafter she continued to have trouble with back pain and, she described, with her nerves for which she was treated with anti-depressants. Her son Nicholas was born in October 1990. In early 1992 Ms Crowhurst “overdosed” with her prescribed medication which resulted in her being referred for treatment by a psychiatrist. In October 1992 Ms Crowhurst married Mr Yager, with whom she had been living for about seven years, and in April 1993 she gave birth to her daughter Taylor.
Throughout these years the respondent was Ms Crowhurst’s general practitioner and she frequently consulted him for the treatment of her, and her children’s, medical problems. Ms Crowhurst described the respondent to be “a brilliant doctor… a good family doctor. He seemed to be very caring, very approachable”.
In December 1993, when Taylor was about seven months old, Mr Yager left Ms Crowhurst. She said that was not anticipated by her, she thought she had the perfect marriage, and she was devastated. Following the birth of Taylor Ms Crowhurst had been taking medication, Maxolon, so that she could breast-feed Taylor; the departure of Mr Yager from the matrimonial home at Loring Street, and the marriage, so upset Ms Crowhurst that she became unable to breast-feed Taylor. She went to consult the respondent on, it appears, 29^th December 1993.
Ms Crowhurst’s evidence is that when she was shown into the respondent’s consulting room he said something to the effect of “What’s the matter Elaine, you look like someone that was expecting a solitaire for Christmas and only got a cluster”; she began to cry and told him what had occurred concerning her husband and feeding Taylor. The respondent, she said, was very compassionate and he suggested the dosage of Maxolon be increased and offered to prescribe an anti-depressant for her but she was reluctant about the latter. She went on:
(P27-28)
"QWhat happened then.
ADr Cowie said to me that I looked like I could do with a hug and we both stood up and he hugged me.
QCan you describe what you were both doing as you hugged.
AJust his arms around me and my arms around him.
QYou said you stood up so do I take it it was a hug in a standing position.
AThat’s correct.
QYou each had your arms around each other.
AThat’s correct.
QCan you give us some idea of how close your bodies were.
ATouching, our bodies were touching.
QI take it you were in a face to face position.
OBJECTION: MS BROWN OBJECTS ON GROUNDS OF LEADING WITNESS
QUESTION REPHRASED
QWhat position were you in.
AWe were standing facing one another. He had his arms around me. I had my arms around him. Our bodies were touching.
QAre you able to give any idea as to how long you remained in that position with him.
AIt wasn’t for very long at all it was just a brief hug.
QWhat happened then.
AThen I left the consult room. He ushered me out.
QHow did you feel about what had occurred.
AThat he cared a great deal for me as a patient. That I didn’t really feel anything untoward about it that he was just being compassionate to the position that I was in.”
Ms Crowhurst said that during 1994 there were other occasions when the hugs occurred;
(P29)
"AMainly if it was my birthday, maybe it was New Years or Christmas, Easter. I was being harassed frequently by my husband’s new girlfriend and children who said(sic) about setting fire to my car, to my house. My husband didn’t have any contact with the two younger children at all for a period of two years. Dr Cowie and I would quite often discuss the impact that was having on the children and myself. He would quite often say to me at the end of a consult that I look like I could do with a hug and he’d hug me.”
She said she viewed the hugs as the respondent showing care for her and compassion toward her, but “I also flirted with Dr Cowie and toward the end of 1994 early 1995 I felt the hugs became more intimate”; she described that the respondent “would do things like I could hear him sniffing me which I found a bit strange and due to the fact that I’m a smoker and I know Dr Cowie is an anti-smoker and he would comment that I smelt nice”.
Ms Crowhurst’s evidence is that toward the end of 1995 the respondent suggested “a new way of hugging” – he, seated on the wheeled chair he used during consultations, asked her to sit on his lap; she described that she straddled his legs between hers, sat on his lap facing him and “like he would hug me, put his arms around me, sniff me and I would get off very quickly like in all honesty I can’t say the hugs went for any more than probably 10-15 seconds”. Ms Crowhurst said that thereafter the “stand-up hugs occurred nearly every visit, the sit down hugs probably occurred one in every four visits but they never occurred together”. Ms Crowhurst said she was consulting the respondent at his surgery about every two weeks for herself as well as making other visits to the surgery for treatment of her children and the hugs would occur after the respondent locked the door of his consulting room having sent the children out of the room. In cross-examination she said the respondent “would lock (the door) if he felt that I needed a hug”.
Ms Crowhurst described the respondent’s consulting room to be separated by an archway, equipped with a curtain, from an examination room to which there was a door giving access to the same passage into which the door of the consulting room opened. She said that on one occasion, after the respondent had sent her children out of the consulting room and locked the door to that room, her son Nicholas came through the door to the examination area, into the consulting room “and caught Dr Cowie and I hugging … Dr Cowie jumped back from me and I took that opportunity to leave”.
Ms Crowhurst’s evidence is that on an occasion “in late 1996 mid 1997 (the respondent) said once again that I looked as if I could do with a hug and then suggested that we should try hugging on the examination bed”; they went into the examination area adjoining the consulting room and:
(P36-37)
"A… Dr Cowie laid down on the bed and invited me to get up and lay on top of him, which I did.
QWas there some means of getting up onto the bed.
AThe examination bed was quite high and there was steps – two steps, wooden steps – that were movable that you could use to get up and down off the bed from.
QDescribe for us what happened when you got up to the bed.
AI got up on the bed and straddled him, I used my elbows to support my upper body and laid down against him, he hugged me and stiffed (sic) me. I then quite quickly got up and got off.
QHow was Dr Cowie dressed whilst he was lying on the bed.
AHe was fully clothed.
QYourself.
AI was fully clothed myself as well.
QAre you able to give any estimate of how long you were on the bed.
AIt was brief.
QWhy was that.
AI felt very uncomfortable, it wasn’t just a hug.
QWhat do you mean by that.
AIt had gone past him consoling me by standing up and hugging, it had reached a stage where I felt that it was no longer for my needs, it was now for his needs.”
Ms Crowhurst said that the same thing occurred on no more than four occasions, two of which were when the respondent had asked her to come to the surgery after 5 o’clock, and all of them “were only brief hugs on the bed … because I felt totally disgusted in myself for even being there”. On one occasion when getting down from the bed she said she caught her foot and almost tripped; in cross-examination she identified that occasion to be the last of the examination couch incidents.
The respondent’s records (P5) concerning Ms Crowhurst show that she last consulted him on 17^th March 1999; Ms Crowhurst said she disagreed that was the case and she was “almost” sure the last time she saw the respondent was a couple of months before that date. She changed her evidence to say (P.38) that it was probably in October 1997 that the first incident on the examination couch occurred.
Ms Crowhurst said that when she lived at Loring Street the respondent would “ring me quite regularly” after hours and the calls were hardly ever about medical matters, they were “just general chit-chat. Basically what I had been up to in the time between seeing him last and his phone”. Some calls from the respondent, made at weekends between late 1994 and late 1997, were to invite Ms Crowhurst to meet him at a Drag Club at Eight Mile Creek Road to which she said she responded “We’ll see” but she did not go to meet him on any occasion.
With no reference to any particular period of time, other than it was when she was consulting the respondent, Ms Crowhurst said that the respondent asked her about her sex life and they would exchange what she described as “dirty” jokes. She also said that on two separate occasions “after the lay down hugs had started … so between mid 1996 and the beginning of 1998” the respondent answered the telephone in his consulting room – on the first occasion the respondent kissed her on the top of the head and on the second occasion, which occurred when they were hugging, “he kissed me on the lips”; she said two of the lay-down hugs and one of the kissing incidents occurred after she met Mr Crowhurst.
Ms Crowhurst said that on an occasion after 27^th November 1997 when her daughter Trisha damaged her ankle in an accident, an injury for which she was treated by the respondent, the respondent came to her house at Loring Street. He inquired how Trisha was managing with the plaster cast on her leg. Then she (Ms Crowhurst), Trisha and the respondent went out of the house into the front garden. The respondent told Trisha to go back into the house:
(P46)
"A… because he wanted to talk to me on his own. He then produced a pen out of his pocket that looked like a syringe which I’d seen on an earlier occasion in his surgery, and said to me did I still want this pen that I’d shown an interest in, and I said ‘Yes, I told you that I’d do anything for that pen’, and he said to me ‘How about I give it to you piece by piece in return for favours’. I asked him what he meant by favours, and he said that he felt – that he was sure that I could work out what he meant by favours.”
Ms Crowhurst said that just after Christmas 1997 when she was at the respondent’s consulting room the respondent produced the pen; “I said what about the favours and he said just consider it a Christmas present and he gave it to me”.
The pen is Exhibit P2. Ms Crowhurt said it was matter of common knowledge that she would steal pens from the surgery but she “had stopped stealing pens for a little while”. She said she did not steal the syringe pen from the respondent.
Ms Crowhurst related that she had first met her present husband Andrew Crowhurst during the January 1998 long weekend. She said the respondent telephoned her and invited her to go to his house for a swim on the Saturday night, 31 January 1998, telling her his wife would be away; she told him she would be going to the cinema that night to see the film called ‘The Full Monty’ and he suggested she go to his house afterwards. After the cinema, Ms Crowhurst said, she went to an hotel and met Mr Crowhurst “then I went home and actually phoned (the respondent) at home”, and told the respondent she would not be going to his house; she related:
(P41)
"AI said that I wasn’t coming and he said that he’d gathered that much, because by this time it was early hours of the morning, and I could hear his machine going in the background and I could hear this beeping going in the background and I asked him what that was, this like alarm noise was, and he told me it was his machine, that he suffered from machine apnoea, I think it’s called and that he actually wore this machine of a night time to wake him if he didn’t breathe.”
In 1998, Ms Crowhurst said, when her daughter Trisha was in High school, she observed what she described to be Trisha’s poor posture, a noticeable drooping of her right shoulder and a lump on the back of her neck. Trisha, who had developed large breasts when in Year 9 at school, was complaining about aching in her shoulders.   Ms Crowhurst said she took Trisha to see the respondent, recalling it was on a day subsequent to 20^th November 1998 when the respondent had sutured an injury which Trisha had suffered to her head:
(P52)
"AI pointed out to him the lump on the back of her neck; I pointed out to him how her shoulder had dropped, and he responded – and that could we please see a plastic surgeon in regards to the size of her breasts, to have her breasts reduced. He said to me that he didn’t think that was necessary;   that I was probably over-reacting to Trisha’s problem. He agreed with me that there was a noticeable drop in one of her shoulders, that you could see that her shoulder was dropping, but he suggested that if you cut the opposite side of her hair that you wouldn’t be able to notice that that shoulder was dropped – had actually dropped – and Dr Cowie, while he was telling me about cutting her hair, he actually cut her hair and he put it in the front of her folder.”
(P55)
"QWhilst you were with Dr Cowie had he given you any diagnosis for this condition.
AHe said the lump on the back of the neck was genetic, it was something her father probably had or someone in my family probably had, that it wasn’t caused by her breasts.
QWhat about the shoulder.
AThat she needed to regain her posture and that I shouldn’t go on about the size of her breasts to her which I explained to him that I hadn’t been. That Trisha had been coming to me about them.
QJust to explain that, why had she been coming to you, what had she been coming to you about.
ABecause she’d been taunted at school.
QDid Dr Cowie recommend any treatment in relation to the breasts or the shoulder.
ANone whatsoever.”
She identified a lock of hair in the respondent’s medical file for Trisha (Exhibit P3) to be that which was cut off by the respondent on this occasion.   Ms Crowhurst said the respondent asked Trisha to take Ms Crowhurst’s other two children out of the consulting room because he wished to speak to Ms Crowhurst; Trisha did so, the respondent locked the door to the consulting room and “we had one of the lie down hugs”.

Ms Crowhurst related that about two weeks later she took Trisha to another doctor who arranged for a consultation with a plastic surgeon; Trisha was placed on a waiting list for a breast reduction.
During 1998, Ms Crowhurst explained, she and her children were living sometimes at Loring Street and sometimes at the house of Mr Crowhurst until, later in the year, they went to permanently reside at Mr Crowhurst’s house. She said there was an occasion Mr Crowhurst told her the respondent had telephoned his house to speak to her about blood test results. Ms Crowhurst’s evidence is that she had not had a blood test and she went to see the respondent at his surgery:
(P58-59)
"AI said to him that it wasn’t a very bright thing to do, to phone Andrew’s place and he said that he knew that. And I said to him that it left me with some explaining to do about a mystery blood test that I hadn’t had and he apologised for that and more or less shrugged it off. He wasn’t really interested in the fact that I was cross about the phone call.
QCan you recall what he said to you.
ANo, I can’t, I’m sorry.
QDid Dr Cowie suggest to you that you had in fact had any blood tests done.
ANo
QDid he give you any results of any blood tests at that point in time.
ANo.
QDid he give you any explanation for why he might have said that there were blood test results.
AIt was the first thing that came to his mind.
QDid he indicate to you why he was calling you on that occasion in the phone call.
ABecause he hadn’t heard from me for a while at all.”
Ms Crowhurst said that in the period 1994 to early 1999 she was working at night in a bakery. At about Easter time in 1998:
(P59-60)
"AThere was, on one occasion, I went to him after I’d knocked off at work and was having a bit of a whinge because I was so tired and he suggested to me that he could help me out as such, instead of me working at the bakery earning $6 an hour, that he could probably pay me that much a week and for me to do other stuff for him.
QWhat further was said about that.
AI asked him what he meant and he said that he felt that I could probably work out what he was indicating.”
Ms Crowhurst stated that in early 1999 she became the patient of another doctor:
(P64)
"AI, by this stage, had decided what was happening in his rooms definitely wasn’t right. I felt that I was probably responsible for a lot of what was happening in the rooms due to my behaviour because I flirted with him so much – because he’d phoned Andrew’s. I was also worried that the relationship that I had with Andrew was in jeopardy and that probably worried me the most. I’d been on my own by this stage for five years. I didn’t think he was ever going to let up, even after I took Andrew’s daughter to him hoping that if he seen I was in a relationship with someone else then he would go on – go back to being a family doctor. The hugs still happened so I felt that it was up to me to move on. That the only way it was every(sic) going to stop is if I went to someone else.”
She said the respondent had not, at any time, suggested she should go to another practitioner.
In cross-examination Ms Crowhurst said that since she ceased regular paid employment, in January 1993 as we understand, she has been receiving a disability pension because of the injury to her back from which she experienced fairly severe pain, including in 1997 and 1998, and she was taking a large number of pain killers prescribed by the respondent – she said she was conscious of her back every day and careful about what she did although she played basketball on occasions.
She agreed that manoeuvring herself to sit on the respondent’s lap, as she had described, when the respondent was seated on a wheeled chair about the size of a typist’s chair was precarious and awkward and difficult, even for a person without a back injury, but she rejected the suggestion no such incident occurred. Taxed about the incidents she said occurred on the examination couch (which we accept from the respondent’s evidence was about 79inches long and 25 inches wide) Ms Crowhurst described, in some detail, how she climbed on the couch to lie on top of the respondent; she said it was awkward even for someone who did not have a sore back but insisted the incidents did happen. She agreed her consultations with the respondent over the years were for the management of her back condition and for other conditions, including depression and the fear of a return of agoraphobia to cause her to lose control of her life.
Concerning the hugging which occurred in the first couple of years, 1994 and 1995, Ms Crowhurst said that happened when it was her birthday or some other event such as when her car and her bedroom were, as she believed, maliciously set on fire by some person. She agreed that if the respondent’s notes record (as we accept they do) she told him of the house fire on 11^th March 1997 and the car fire on 7^th April 1997 then that is when they probably occurred. Clearly those events did not happen in the years 1994 or 1995. Ms Crowhurst rejected the suggestion the respondent never hugged her, as she described, or that on only two or three occasions had he placed a comforting arm around her shoulders.
Concerning her evidence that she attended the respondent’s surgery after hours, that is after 5 p.m., Ms Crowhurst said that occurred on no more than ten occasions the last of which she thought was in January 1998. Ms Crowhurst agreed that in her statement to Ms Anderson made in September 1999, and signed by her in November 1999, this appears:
(P104)
“So I was going to the surgery to collect my script and it was after hours. I did that about three or four times and then I started feeling too uncomfortable so I stopped that. When I went to collect the script he would just ask about me. I was under a Dr Wright from Adelaide for pain management and also Dr North from Adelaide who took the rods out of my back. So I didn’t have much need to see Dr Cowie but he would just ask what had been going on and that he hadn’t seen me for a while.”
She then describes lying on the examination couch, and went on:
“That was the last after hours consult I had with him and I think this last after hours consult was about twenty months ago.”
Ms Crowhurst agreed that she last saw Dr Wright in early 1995 and Mr North in December 1995 and counting back twenty months from the date she made her statement took her to February 1998. She said “Well, I’d have to say that I feel there was more than three or four” after-hours consultations and some of them were after December 1995 and after February 1998. We find her explanation for the inconsistency between her evidence and her signed statement on the same topic adversely reflects on her credibility.
Questioned by the respondent’s counsel when it was the last of the incidents on the examination couch occurred, Ms Crowhurst said it could have been the day the respondent cut a lock of hair from Trisha’s head. She said she was annoyed with the respondent “(he) made me feel that he had belittled the problem we had gone to see him about”:
(P110)
"Q“You say that consultation occurred, you were annoyed, he cut her hair, he belittled the problem and then he asked you to come and jump on the couch with him and you do so. Is that what you are telling the tribunal.
AThat’s what I’m telling them, yes.”
She said it is not possible that the occasion when the respondent cut a lock of
Trisha’s hair was when Trisha was 10 years old and in Grade 5, that is about 1994. Ms Crowhurst said she knew Trisha had made a statement to Ms Anderson that the respondent had cut a lock from her hair when she was in Grade 5, in about 1994, and not when she consulted the respondent about her drooping right shoulder. Ms Crowhurst said she did not believe that to be true, so she spoke to Trisha, told her she “needed to tell the truth about what happened” and a different statement on the topic was made by Trisha to Ms Anderson.
Ms Crowhurst said that in 1997 and 1998 she would “try” to make the times for her consultations with the respondent coincide with appointments made for her sister or her mother to see the respondent so that “I would not be on my own with Dr Cowie”. To the suggestion there was only one occasion in each of 1997 and 1998 that she and either her sister or her mother had a consultation at the surgery on the same day, Ms Crowhurst said “that is not true”.
The respondent’s practice notes concerning Ms Crowhurst record that on 24^th July 1998 she consulted the respondent and he provided to her a prescription for Mersyndol Forte and Mogadon. Ms Crowhurst agreed that a day or so later she telephoned the respondent’s surgery to ask that a search be made for her prescription because she might have left it in the surgery; the respondent required her to attend the surgery to see him and when she did so (she said it was an after-hours appointment) he told her the chemist had reported that the prescription had been dispensed. She said she told the respondent she would have to ask Mr Crowhurst whether he had presented the script for dispensing. Ms Crowhurst denied there was any confrontation with the respondent to the effect she knew the prescription had been filled and that she was trying to “get a second script”, and she denied there were no further consultations with the respondent until 9^th January 1999; she said she did have appointments to personally consult with the respondent as well as seeing him concerning her children and she also “had prescriptions that I ordered over the phone”.
The consultation which Ms Crowhurst had with the respondent on 24^th July 1998 when the Mersyndol Forte and Mogadon was prescribed for her, included discussion about possible menopause. Ms Crowhurst said she does not remember blood being taken for sampling, but she remembered speaking to the respondent about possible menopause at some stage in 1998 when, she thought, she had known Mr Crowhurst (whom she met in January 1998) for about six months and she was oscillating between living at her house and in Mr Crowhurst’s house. It is the case, we find, that Gribbles provided to the respondent a report dated 24^th July 1998 relating to a specimen of Ms Crowhurst’s blood upon the topic of follicle stimulating hormone. Ms Crowhurst denied that the telephone call she said was made by the respondent to Mr Crowhurst about a blood test was at the time of the result obtained on 24^th July 1998; she said the phone call occurred before that time, it was earlier in the year, and there was no “talk” about menopause or blood having been taken when, she said, she confronted the respondent concerning the telephone call.
Trisha Bradshaw
Trisha was born on 27^th April 1984.
Trisha said that on the occasions when she, her brother and sister and Ms Crowhurst together went into the respondent’s consulting room, the respondent would sometimes ask her and her siblings to leave the room and Ms Crowhurst remained in the room.
Trisha’s evidence is that on a date after 26^th November 1997, when she had broken her ankle, the respondent came to the house at Loring Street; he asked her how her ankle was, then Ms Crowhurst and the respondent went into the front garden. She said she was able to see them through the lounge window, heard them talking and saw the respondent waving “at my mum’s face” something, part only of which she could see, that had a red casing but there was nothing unusual about it. On an occasion when, she said, she and her mother were in the respondent’s consulting room the respondent took from his desk and showed to her mother a pen with red liquid in it that looked like a syringe, and said “Look what I’ve got” then put it back in his desk. She said that she subsequently saw the pen when her mother showed it to her at Loring Street. She identified P2 to be the pen she saw.
Trisha said the respondent visited the house at Loring Street on only one other occasion – Ms Crowhurst was out and he left, but she said she saw the respondent on four or five occasions ride his bicycle past the house and that he had also telephoned to the house.
Taken to a time after the respondent treated her on 20^th November and 30^th November 1998 for a head laceration, Trisha said she and Ms Crowhurst consulted the respondent about her (Trisha’s) drooping shoulder, and a lump on the back of her neck; her mother suggested to the respondent a breast reduction for Trisha. Trisha said she could not remember what the respondent said about a breast reduction, but he stated she (Trisha) should sit up straight, hold her shoulders back and her head up, and, in relation to her drooping shoulder, have her hair cut shorter on one side “so no-one would notice it”; then he cut from her head a lock of hair which he “stuck” in her medical folder. Concerning that act she said :“I was shocked. I didn’t really think much of that at the time.” She denied she asked the respondent to cut off a piece of her hair. Her evidence is that this incident occurred when she was in Year 10 and before she was due to go on a school camp on the following Easter Monday; we infer the year was 1999.
Trisha said she was interviewed by Ms Anderson who showed to her the lock of hair affixed to the respondent’s medical records concerning Trisha and asked her how it came to be there. She said she did not tell Ms Anderson the truth:
(P.177)
"ABecause I was embarrassed.
QIt might be obvious, but can you just explain why you were embarrassed.
ABecause – I do not like talking to strangers about my breasts and my shoulders and my neck, and I was angry at mum.
QWhy was that.
ABecause she told a stranger about my breasts and why I was seeing Dr Cowie about that.
QBy that do you mean she told Frankie Anderson.
AYes.
QSo you were a bit angry with her.
AYes.”
and after she received from Ms Anderson a copy of “the statement” she corrected it to be truthful.
In cross-examination Trisha agreed she signed a transcript record of her interview (on 30^th March 2000) with Ms Anderson, in which she stated that on an occasion she consulted the respondent “probably for hay-fever” at a time when she was in about Year 5 (circa 1994) she had “two bits of hair hanging down”, the respondent cut them off and stuck them in her folder. In the transcript record of the interview Ms Anderson then asked Trisha if she had “ever suffered from a condition or a complaint to do with heaviness in your breasts”, to which Trisha stated she had seen the respondent about a lump on the back of her neck “from it” and he had said, to Ms Crowhurst, that she (Trisha) “has to learn to sit up straight, hold her neck up and not slouch”; this, she said to Ms Anderson, would have been about 1997. Asked in cross-examination why she stated to Ms Anderson it occurred in 1997, she said it had happened some time before she spoke to Ms Anderson and she could not “put dates to things”.
The cross-examination of Trisha about the substantial difference between, on the one hand, what she told Ms Anderson of the hair cutting incident and consulting the respondent about her breasts, and, on the other hand, her evidence to the Tribunal on those topics brings us to be cautious of accepting her evidence as supporting Ms Crowhurst’s evidence concerning those incidents. She said she thought that she and Ms Crowhurst left the respondent’s consulting room together as soon as the consultation about her breasts finished.
Trisha agreed she said to Ms Anderson, and it was correct, that, except she was a bit embarrassed, not upset, in her consultation with the respondent about her breasts, she had no “issues” or “concern” with the respondent and the reason she had subsequently gone to consult another doctor, a female, was Ms Crowhurst thought that better because Trisha was getting older.
On the topic of the object Trisha said she saw the respondent, in the front garden of the house at Loring Street, waving in her mother’s face, she said she thought she had seen the syringe pen at the respondent’s surgery before that incident, but when her attention was drawn to answers she gave to Ms Anderson said that it was possible she had not seen the syringe pen before that incident.
Mr Crowhurst
Mr Crowhurst said he first met Ms Crowhurst on the Australia Day long weekend in 1998, and a week or two later they were to meet on a Saturday night after Ms Crowhurst had been to the cinema to see ‘The Full Monty’. They met at the Spencer Hotel at about 11 p.m. and then they went to Mr Crowhurst’s house where they remained during the rest of the night and the next day. That evidence is in clear conflict with Ms Crowhurst’s evidence that, after seeing the film, she met Mr Crowhurst at an hotel and then went to her own house where, in the early hours of the morning, she telephoned the respondent to inform him she would not be going to his house for a swim.
Mr Crowhurst related there was an occasion, which he identified to be “I would say in late April/May of 1998”, when the respondent telephoned his house and asked to speak to Ms Crowhurst but she had gone out to collect her children from school; the respondent informed him he had the results of a blood test. Mr Crowhurst said he had not been told by Ms Crowhurst she had had a blood test and she seemed surprised when he informed her about the respondent’s call.
He said he met the respondent for the first time in about the middle of 1998, on an occasion he drove Ms Crowhurst to the surgery because Ms Crowhurst “was having trouble with her back”.
Mr Crowhurst said that when Ms Crowhurst and her children were living at his house, Trisha often complained about sore shoulders. After a few such complaints, and Ms Crowhurst informing him the size of Trisha’s breasts may have had something to do with the sore shoulders, Ms Crowhurst took Trisha to see the respondent. Mr Crowhurst related, without objection, that when they returned home from the appointment Ms Crowhurst “was not very happy about what had happened…. She told me how he had cut a piece of hair off one side of her, to level up her shoulders”. He said this incident occurred “very close” in time to the occasion Trisha required stitches to her head, but he could not say whether it was before or after that injury.
In cross-examination Mr Crowhurst said he remembered being told by Ms Crowhurst she had had blood tests concerning menopausal problems, the first of which he thought was after they had been living together for more than a year -“It could have been ten months, it could have been, you know, eight months”, but he did not remember the occasion being in July 1998.
In relation to prescriptions for Ms Crowhurst, he said that he would never go to the chemist to have those dispensed unless he was specifically asked to do so by Ms Crowhurst. Asked if there was an occasion Ms Crowhurst told him she could not find a prescription and enquired whether he had “(filled) it out” without telling her, he said “Not that I recall. She may have but I don’t think so”.
The Respondent
The respondent has been in general practice for 22 years.
Since about 1990, when his then partner Dr Connelly left the practice, the respondent has practised as a sole practitioner in Whyalla, employing two nurses and three part-time receptionists one of whom, Ms Melissa Clifton, has been in his employment since January 1990. Beginning in about 1996 he has been the, or a, police doctor. His working week, with regular or emergency visits to hospitals and visits to nursing homes outside of surgery hours, has been long, involving evening and week-end work to, as he put it, catch up on his paper-work which included, after reviewing the relevant file, writing prescriptions in response to patients’ telephoned requests. He said that on a busy day he could see up to seventy patients at his surgery and then a further twenty or thirty patients at the hospital in the evening.

The respondent suffers from asthma and hay-fever, (he said it has sensitised him to perfume, talc and smoke) and sleep apnoea for the latter of which he has at his home a machine which, he described, makes a gentle hissing noise in operation and is used in conjunction with a device that emits a high pitched “scream” if his blood oxygen level drops below 94%. For exercise he rides a bicycle to and from his work-place and at week-ends he cycles for three hours in what he described as bush areas to the west of Whyalla, one of the routes to which takes him along Loring Street.
The respondent produced a sketch (Exhibit D10) showing the floor plan of the rooms at his surgery, on the reverse side of which the dimensions of the examination couch (33.46 inches(h) 79 inches (l) 25.19 inches (w)) are written. He said the door to the passage next to the examination room remained locked so that staff, or patients, could not enter were he to be examining a patient, but the door from the adjoining consulting room into the same passageway, although normally shut, was not locked. He estimated that on a busy day a receptionist or nurse would enter his consulting room on up to fifteen occasions, the procedure being they would knock at the door and he would call them in – he said there had never been an occasion the consulting room door had been locked when a staff member had wanted to enter the room, but because of these allegations against him he remembered one occasion four or five years ago when, needing to talk to Ms Crowhurst about the children, and they being very noisy, he locked the door to keep the children out so he could do that.
Taken to an occasion when Ms Crowhurst consulted him on 29^th December 1993, his note of which includes “separation chat”, and he prescribed for her Normasin, a mild sleeping tablet, because she was distraught and very upset that her husband had left her, the respondent said:
(P.234-237)
"AIn this situation I would have expected that there would have been me touching or holding her hand for a short while or possibly putting an arm over her shoulder in a compassionate act.
QWe heard from her that you said something like, I think, you look like you need a hug. Do you remember saying that.
ANo.
QIs it possible that’s the sort of thing you may have said.
AIt’s possible.
QWhat is your procedure as far as hugging or touching patients.
AIf the patient is definitely distraught and upset I may feel the need to console them by holding a hand or hand on the shoulder. With men who are tearful it’s not socially acceptable to hold hands but they still often don’t mind a hand on the shoulder or an arm over the shoulder.
QYou’ve heard Mrs Crowhurst give evidence that you hugged her on that occasion in an embrace face to face. Can you tell us what you say about that.
AIt’s (?not) my habit ever to do that and I don’t remember doing that on this occasion.
QDo you remember ever doing that to Elaine.
ANo.
QSo you think you may have touched her in some way and it may have been something she could interpret as a hug.
AIt could be.
QAnd you don’t actually recall what you did.
ANo. I see – I have 15,000 consultations per year. We are now looking at 10 years ago almost. We are talking 150,000 consultations ago and I’d be doing very well to remember really what happened then.
QWhat about as far as her touching you, do you remember on that first occasion in December ’93 when Grant had left whether she made any physical contact with you.
AThat’s quite likely that she did. I mean I can only speculate because of the length of time. But the normal situation – I mean to put it another way, I have as a general practitioner for 22 years have spent time with many, many recently separated persons who are grieving, upset, distraught and the usual thing would be for a person in this situation would be to reach out, to touch my hand out of a feel, a need for human warmth, compassion.
QSo they may touch you and in response –
AWell I would be rude an(sic) ignorant not to return it to a degree.
QAnd that’s by an arm around their shoulder.
ACorrect.
QAn arm on their shoulder.
ACorrect.
QAn arm on their should.(sic)
AYes.
QPerhaps touching their hand.
AOr holding hands, or an arm over the shoulder on the way up when standing up.
QHas there ever been an occasion where you’ve given any patient an embrace face to face.
AWhyalla being relative to Adelaide a small town many of my friends are also patients and it’s normal for me to give friends a greeting like that on occasions in times of trouble or excitement or celebration. And technically then you could say I was giving these people a front to front embrace of a type.
QAs far as Elaine goes, have you ever had an embrace of that nature.
ANo.”
As to other occasions he might have hugged Ms Crowhurst in any way he said:
“I’m only going to remember events that are out of the ordinary but there’s certainly no occasion that I can remember that anything out of the ordinary happened.”
and on no occasion did he kiss Ms Crowhurst, explaining, concerning her evidence that he kissed the top of her head when answering the telephone, “It’s the old telephone system that’s thrown out and been replaced a year ago. I don’t think the wire was that long. If – suppose it did happen, she would have had to come over to where the phone was to receive the kiss”.
The respondent, as to Ms Crowhurst’s evidence that on occasions he had “sniffed” her and commented she “smelt nice”, said he does not sniff perfume because his nose would become blocked which, if it were to persist into the evening, would prevent him from using his sleep apnoea machine and he had never commented upon the perfume smell of Ms Crowhurst or any patient. He said he knew Ms Crowhurst to be a cigarette smoker and he would not “deliberately come up and sniff smoke”, explaining his sensitivity to smoke is such that he has identified episodes of sneezing, when consulting a patient, to be caused by the patient being a smoker.
Asked to comment upon Ms Crowhurst’s evidence that she “flirted” with him, and about her personality, the respondent said;
(p.240)
"AShe would be light-hearted in her demeanour, she would be slightly more personal than what one would expect from a patient in a doctor-patient relationship, although it never troubled me until this inquiry. There’s a couple of consultations in the notes when she had some problems with her breasts and there was some behaviour from her then that I thought was unusual, and that’s why I can actually remember it to this day.”
He went on to relate that on two occasions when Ms Crowhurst consulted him, on 27^th June 1997 and 22^nd September 1997, complaining of some problem with her breasts, her demeanour was “flippant”. He had directed her to the examination room so that he might examine her breasts, asked her to remove her upper clothing and handed to her a short gown for her use, then returned to the consulting room, closing the curtain between the two rooms. He said that when Ms Crowhurst called out she was ready, he went into the examination room: “I remember on both occasions, rather than with the gown on, with the gap at the back tied, she was completely naked from the waist up, sitting on the edge of the (examination couch)”, the gown as he recalled being on the couch.
In her evidence Ms Crowhurst said there were two occasions she had consulted the respondent with concerns about possible lumps in her breasts and told the respondent of her fears. On the first occasion, she said, she lay on the examination couch, hands behind her head, and the respondent leaned across the end of the couch, at the position of her head, to palpate her breasts. On the second occasion, she said, she sat on the edge of the couch, and the gown provided to her kept slipping off so “I just let it fall”. Questioned about the second incident, she denied on that occasion she, in a “flirty” way, said to the respondent she would not mind if the respondent visited her at her house and the respondent replied that “I’m not interested in that sort of thing”.
The respondent said his memory of any comments during the breast examinations “makes me think of the word ‘brazen’”.
Asked whether there was an occasion when Ms Crowhurst had been “more flirty than appropriate” the respondent said “she was probably a little bit more flirty than appropriate for the last 10 years that I saw her” and went on to relate that, on what he described to be her last consultation with him, on 6^th January 1999, Ms Crowhurst was in a “flippant mood”; she locked the door to the consulting room then sat on his lap (he was sitting on his wheeled consulting chair) “plonking herself side-ways down on my knees”. He lifted her off his lap and “admonished” her for her behaviour:
(P247-248)
"ALifted her off. I did stand up and had a stand up face-to-face conversation with her. I was happy to ignore her flippant mood and just get on with whatever she needed and in a general practice too busy to worry about someone who’s being a bit flirty and suddenly I realised things had changed.
QWas this the first occasion that you recall that you thought things had changed or were there any other comments during the course of your consulting where you had some thoughts.
AThe episode with the breast examination that we’ve talked about, I was a bit concerned about those two occasions but they were separated by enough time and life was busy enough for me to not to do anything about it then.
QIn hindsight, doctor, do you believe you would have or should have behaved differently.
AYes, I do.
QWhat can you tell us about that.
AAt a much earlier stage I should have admonished her about her flippant behaviour and politely recommended that she find another doctor.
QWhen you say her flippant behaviour, can you just describe to us what you mean by that.
AHer body language was not appropriate, really, for a woman with a doctor. It was more like a woman, teenager going to a party as she walks in looking happy and so forth. Her speech was mildly salacious at times.
QCan you tell us what you mean by salacious.
AWell, she would talk about her – we talked about the example where she said she had the neighbours confused and talked about it as if she was proud of that, occasional jokes that I didn’t consider appropriate at the time, personal inquiries that I considered unwarranted but not unexpected for Elaine.
QPersonal inquiries of you.
AOf myself, and irrelevant facts about herself revealed to me, irrelevant to a general practitioner. I’d class them not as straight social discussion. I’d class them as perhaps more personal than what I wanted to know.
QYou’re telling the tribunal that you didn’t ever tell her to stop saying these things.
AIt was Elaine. That’s how she was.”
He said there was no other occasion Ms Crowhurst sat on his lap.
The respondent’s evidence is that he and Ms Crowhurst did not lie on the examination couch as she related, explaining that “the couch is narrow and two people on the couch is actually dangerous and against Occ Health and Safety. It wouldn’t be something that people would try again … For the purpose of today … my fiancé, Anna … attempted to lie on the couch on top of me and it certainly wasn’t really possible.”
Asked about telephone calls he made to Ms Crowhurst, the respondent said there was no occasion he telephoned for “non-medical reasons”. He said it was quite possible he had spoken to Mr Crowhurst on the telephone and left with him a message concerning Ms Crowhurst’s blood test.
(P260)
"QWas there ever an occasion when you did that and, in fact, there were no blood-test results to talk about.
AThere’s none that I know of but that can happen with normal human error, especially with our old system of case notes and with lab error with the wrong names being at the top of reports, bloods becoming mixed up with wrong reports for a wrong patient and these are rare examples of errors but they will never be totally eliminated.
QIs there ever an occasion you’re aware of where you made such an error with Elaine.
ANone that I recall.”
He said that because the result of the Gribble blood test on 24^th July 1998 was normal, and were he to have been expecting that result, then unless Ms Crowhurst were to have been concerned to know the result he would not have communicated the result to her, but he could not remember whether he did so or not.
The respondent related his memory of the incident concerning the prescription he provided to Ms Crowhurst on 24^th July 1998. He said that, having learned from his receptionist (Ms Clifton) the prescription had been dispensed, he required Ms Crowhurst to see him concerning her request for another prescription; when she came to his surgery he told her he could not provide the same prescription again because it had been dispensed. He said Ms Crowhurst was “quite indignant. I suppose in a colloquial term she was sort of snubbish. She was indignant, snubbish, head back, stomped out … She’d been caught out she thought. Of course, she may not have been. Someone else might have dispensed the script from the family and she may not have realised that, but she felt caught out. She felt that we were calling her a liar”.
The respondent’s evidence is that he recalled Ms Crowhurst had come to his surgery at least once to collect a prescription after his receptionist had left at 5.30 p.m., but on no occasion did he ask her to come to the surgery, or was she in his consulting room, after hours, and he denied inviting Ms Crowhurst to his house for a swim or, by telephoning her using his mobile phone, or otherwise, ask her to meet him at the Drag Club.
Asked about Ms Crowhurst’s evidence concerning the syringe pen, the respondent said he had obtained two or three pens of that type one of which was on the desk in his consulting room for a while where Ms Crowhurst saw it “and showed appreciation for its rarity”, but although it was possible he had visited Ms Crowhurst’s house when Trisha had her leg in plaster he did not recall any occasion he showed the pen to Ms Crowhurst at the Loring Street house. Asked whether there were any circumstances where that might have happened:
(P275)
"AShould I be doing lunchtime house-calls or calls to nursing homes I may grab one pen off the desk and just go out the door and if the syringe pen was there I may take it. It seems unlikely though because it’s a different sort of pen that we really didn’t want to have it getting into the community.
QSo it’s possible you may have had it with you at some stage.
AIt’s possible”
He denied there was an occasion he offered the pen to Ms Crowhurst, piece by piece, in exchange for favours or that he gave the pen to her as a Christmas present. He said “There was no need to give Elaine pens because she took them, but she might have taken the pen at one stage and said “That’s my Christmas present””.
Taken to the evidence of Ms Crowhurst and Trisha concerning him cutting a lock of Trisha’s hair, the respondent said he did not recall any occasion when he was consulted about Trisha’s large breast size or a problem with her shoulders, but he did have a memory of something to do with him cutting a piece from Trisha’s hair “because it was unusual for me cut hair on teenagers”.
“I remember her saying flippantly, as her mother would ‘I’m having a hair cut tomorrow. Could you cut a piece of my hair to put in the notes so that I can remember what it looked like when it was long?’ or something to that effect.”
He said her request was unusual, that is why he remembered it, but he did not think it unreasonable. He was asked “Do you remember in that consultation about Trisha’s breast size or shoulder problem”,
(P270-271)
"AI don’t even know if that hair was taken during a consultation. She may have been in the consultation room with another relative and she may not have had an appointment. Actually, if the – a piece of hair’s in the notes, the notes would have been on the desk, which suggests she had an appointment.
QIs the hair attached to the manilla folder cover of the notes.
AI don’t know.
PATIENT’S FOLDER HANDED TO WITNESS
Yes, it’s inside the front cover of the folder. Being in the folder suggests that the folder was present in the consulting room when that hair was cut, but it’s not conclusive because she could have said, ‘Cut my hair and put it in my folder, please,’ and I could have said ‘Your folder’s not here.’ And I could have said ‘Or give it to one of the receptionists and ask them to do it if you really want it.’
QRight, but you can’t say. You don’t know.
AI can’t say. I’ve got no recall.”
He said the last consultation he had with Trisha was on 30^th November 1998 concerning headaches following the injury to her head which he had sutured on 20^th November 1998, and he had no recollection of the date on which he cut the piece from
Trisha’s hair.
The respondent was asked what effect the allegations against him have had upon his life and practice.
(P279)
"AI would consider the effect – negative effect on my life – as dramatic and negative as a marriage break-up or worse. Marriage break-ups are common, generally well handled by the people – this is a very personal thing on me as a person and me as a professional person.
QHas it affected the practice of your general practice.
AIt certainly has. No longer do I – no longer am I generous with my trust, I outwardly maintain a compassionate attitude to patients but inwardly I wonder who is going to turn treacherously and viciously upon me.
QIs there anything in your treatment and behaviour with Elaine that was inappropriate or unprofessional.
AI wouldn’t use the word, ‘unprofessional.’ Looking back, I consider the appropriate thing for me to do at some stage when her attitude went from slightly flippant to more flippant would have been to ask her to leave and help arrange summary letters for another doctor.
QDid you ever hug, kiss or touch her in any inappropriate manner whatsoever.
ANo.”
In cross-examination the respondent was taken to his evidence that he had checked his records to identify on which days Ms Crowhurst and either her sister or her mother had consulted him or been at his surgery on the same day; his evidence was that in each of the years 1997 and 1998 there were only two such occasions. It appears from Exhibit P4 that in 1997 and 1998 Ms Crowhurst consulted the respondent on eighteen occasions and eight occasions respectively. The respondent said he had not checked to find when one or other of Ms Crowhurst’s children had consulted him on a day her sister or her mother had also consulted him, but his memory is that would have been an infrequent occurrence.
The respondent authorised Ms Anderson to obtain records of calls made, prior to 19^th November 1999, from the telephones at his home and at his surgery and also from his mobile phone, and he provided the numbers of each service including one mobile telephone, the number of which appeared to him to be an analogue phone. He said that in the period prior to 19^th November 1999 there was at one stage an analogue phone, then an analogue and a digital phone and then only a digital phone as the analogue phones were phased out. He said he preferred to use the digital phone but he could not remember when that service became available to him. He agreed he understood Ms Anderson wanted access to telephone records for the period 1994 to 1999 and it was very likely that in that period he used several mobile telephones, other than that which appears in the authority (Exhibit P12) he provided to Ms Anderson in March 2000.

We accept the evidence of Ms Crowhurst and Trisha that there was concern about Trisha’s posture and discomfort in her shoulders. We have no doubt Ms Crowhurst took Trisha to the respondent and expressed those concerns to him, including the possibility that the size of Trisha’s breasts was a cause of her discomfort. The evidence of the piece of Trisha’s hair retained in the respondent’s medical notes for Trisha clearly required some explanation from the respondent about the circumstances in which that occurred. Ms Crowhurst’s and Trisha’s evidence of how that came about was not shaken in cross-examination; Trisha had been untruthful in what she said to Ms Anderson concerning the occasion when the respondent cut her hair but her explanation for that when giving evidence is entirely acceptable to us – she was a young child and the criticism by the respondent’s counsel of the reasons Trisha gave for the initial untruth has not persuaded us her telling of the events at the respondent’s consulting room when a piece of her hair was cut off should not be relied upon.
The respondent’s evidence of how it was he cut a lock of Trisha’s hair is another example in our view of the respondent’s tendency to respond to questions with answers which were lengthy and convoluted, appearing in our assessment of him to move from having some memory to a very detailed recall. He said he had a memory of something to do with Trisha’s hair, then related Trisha “flippantly, as her mother would” asked him to cut off a piece of her hair; he could not recall whether that occurred during a consultation but went into an explanation about why it may or may not have been on such an occasion.
The respondent has no record of a consultation with Trisha concerning the matter of her posture or her breasts, and he said he has no memory of such a consultation. He explained how it was the topic may have been discussed, that is as a minor separate matter on an occasion Trisha was present when another member of her family was consulting him. If that was the case then it is not surprising that the respondent did not make a note of the matter.
Except for the complaint concerning the alleged consultation with respect to Trisha’s posture, in our opinion the Board’s case against the respondent relies entirely upon the evidence of Ms Crowhurst which is not supported as to any material fact fundamental to the proof of the several charges.
Counsel for the respondent in her submissions analysed, in our view with considerable skill and in encompassing detail, the evidence in the Board’s case, particularly that of Ms Crowhurst to contend that the Board has failed to prove the charges against the respondent to the reasonable satisfaction of the Tribunal.
In the course of these reasons we have identified a number of matters where in our judgment Ms Crowhurst’s reliability as a witness has been seriously undermined. Counsel for the respondent pointed to other matters in submitting Ms Crowhurst’s evidence is not credible or inherently plausible, some but not all of which we have adverted to.
Counsel for the Board urged that Ms Crowhurst should be accepted as an essentially reliable, truthful and accurate witness concerning the substance of her evidence upon which the Board crucially relies in proof of the charges against the respondent, submitting that differences or inconsistencies internal to her evidence or between her evidence and that of other witnesses should not bring the Tribunal to determine her evidence as insufficient to find the Board’s case has not been proved. He was critical, and in our opinion justifiably so, concerning the respondent’s demeanour during and the detail of some of his evidence.
We have carefully considered all the evidence before the Tribunal and submissions of counsel.
The respondent, as we have observed in the course of these reasons, was in some matters an unsatisfactory witness but it is for the Board to prove its case and that is not accomplished by pointing up the respondent’s failings as a witness.
The matters which we have identified where we have found Ms Crowhurst to be unreliable on what on any view were crucial matters brings us to conclude that they so seriously undermine our confidence in her as a reliable, accurate and truthful witness we are not satisfied the Board has proved the allegations in paragraphs 1and 3 of the Complaint.
Concerning paragraph 2(2) of the Complaint, the allegation that the respondent cut a piece of hair from Trisha’s head and told her that would fix the “problem” of her drooping shoulder, this was an incident which Trisha was likely to well remember.
Ms Crowhurst’s evidence about this incident was somewhat more detailed than Trisha’s. The respondent has no memory of speaking to Trisha, and Ms Crowhurst, about Trisha’s posture, or her breasts; he said “It is unlikely but possible I would not recall if that happened or not”. We accept Trisha’s evidence that it occurred sometime after 20 November 1998 and that she did not ask the respondent to cut off a piece of her hair after he told her she should have her hair cut shorter on one side. We reject the respondent’s evidence to the contrary which was, we find, a re-construction without any real memory of the incident.
The matter of concern with which Trisha, through her mother, presented to the respondent is not one where there is any sufficient evidence to show that the standards of a reasonable medical practitioner, in the position of the respondent, required that Trisha be immediately referred for an assessment whether breast reduction surgery was indicated. Neither has it been proved the respondent’s advice to Trisha that she should give attention to her posture was inappropriate in the circumstances or fell so far short of the professional assistance a medical practitioner is reasonably required to give in the interests of his or her patients medical health and well-being, that it amounted to professional misconduct.
The act of the respondent in cutting a piece from Trisha’s hair was, objectively, not a rational thing to do. However, Trisha had been the respondent’s patient since her birth, she had trust and confidence in him and more likely than not the respondent’s act was done to down-play reconstructive breast surgery as a solution to Trisha’s complaints.
The respondent’s act of cutting off a piece of Trisha’s hair was foolish, but we find it did not amount to unprofessional conduct in the practice of medicine.
We find the respondent not guilty of the charges of unprofessional conduct made against him in the complaint.

[2003] SADC 84

30 May 2003