MEDICAL BOARD OF WESTERN AUSTRALIA and MOFFSON - [2009] WASAT 190

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: MEDICAL ACT 1894 (WA)

CITATION: MEDICAL BOARD OF WESTERN AUSTRALIA and MOFFSON [2009] WASAT 190

MEMBER: JUDGE J ECKERT (DEPUTY PRESIDENT)
DR P QUATERMASS (SENIOR SESSIONAL MEMBER)
PROF M KAMIEN (SENIOR SESSIONAL MEMBER)
MS D ZAMBOTTI (SENIOR SESSIONAL MEMBER)

HEARD: 10 14 AUGUST 2009

DELIVERED : 25 SEPTEMBER 2009

FILE NO/S: VR 76 of 2008

BETWEEN: MEDICAL BOARD OF WESTERN AUSTRALIA
Applicant
AND
DR AVRON MOFFSON
Respondent

Catchwords:

Standard of proof in disciplinary proceedings Requirements of the Briginshaw test Sexual assault victim Model complainant Expert evidence credibility

Legislation:

Medical Act 1894 (WA), s 13, s 13(1)(a)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr R Hooker and Ms F Vernon
Respondent: Mr J Ley and Mr D Burke

Solicitors:

Applicant: Tottle Partners
Respondent: Clayton Utz

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Hewett v Medical Board of Western Australia [2004] WASCA 170
Jemielita v The Medical Board of Western Australia (unreported, WASC; Library No 920584; 13 November 1992)
Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Medical Board of Western Australia alleged that the medical practitioner was guilty of infamous or improper conduct contrary to s 13(1)(a) of the Medical Act 1894 (WA). The Medical Board made the allegations based on the complaints of a former patient of the medical practitioner. The complaints referred to two alleged incidents. The first was on a day in 2007 that the patient could not recall. She said that she gave the practitioner oral sex at his instigation because she assumed that if she did not do so, he wouldn't give her a prescription for opiates, to which she was addicted.
The patient said that the second alleged incident occurred on 10 January 2008 and that on that occasion the practitioner sexually assaulted her by digitally penetrating her. She subsequently went to the Sexual Assault Resource Centre and complained to the police and the Medical Board. It was at this time that the patient disclosed for the first time that the first alleged incident occurred.
The medical practitioner denied the allegations.
The patient had a long history of drug addiction which manifested itself in many ways, including by manipulating medical practitioners and others within the health system for prescriptions or for dispensed drugs, and in doctorshopping on a regular basis. At the time that the patient was seeing the medical practitioner, she was seeing a total of 16 doctors, excluding attendances at emergency departments of public hospitals.
The Tribunal heard arguments as to what reliance should or could be placed on the patient's history. The Tribunal took that history into account in assessing the patient's credibility as a witness, as it formed an integral and necessary part of the allegations made against the medical practitioner. The Tribunal also relied on the patient's demeanour and lack of clear corroborative evidence in deciding that, on the balance of probabilities to the standard of Briginshaw v Briginshaw (1938)60 CLR 336, the Tribunal preferred the medical practitioner's evidence over the patient's evidence.
The Tribunal also placed substantial reliance on the expert evidence before it. Although not decisive, the Tribunal made reference to the joint experts' conclusion that the wounds sustained by the patient and identified by the examining doctor at the Sexual Assault Resource Centre were not caused at the time of the second alleged incident. More importantly, the experts agreed that it was impossible to assault the patient in the manner described by her and this conclusion not only affected the patient's credibility but was valuable evidence for the Tribunal in deciding that the second alleged incident did not occur.
In placing reliance on the expert evidence, the Tribunal noted that the Medical Board was obliged to prove the allegations to the requisite standard; the medical practitioner is not required to disprove the allegations.
On the balance of probabilities, the Tribunal found that the allegations had not been proved to the requisite standard and dismissed both allegations against the medical practitioner.

The allegations

The Medical Board of Western Australia (Board) alleges that the medical practitioner, Dr Avron Moffson, is:
1)guilty of infamous or improper conduct contrary to s 13(1)(a) of the Medical Act 1894 (WA) (Act) in that he engaged in a sexual act with a patient as set out in the Board's application on one or more of the dates referred in the application to the Tribunal (the first alleged incident); and
2)guilty of infamous conduct contrary to s 13(1)(a) of the Act in that on 10 January 2008, he sexually assaulted a patient as set out in the Board's application to the Tribunal (the second alleged incident).
The practitioner denies both allegations.

The standard of proof

Both parties concede that if we find either or both of the allegations proven, then there should be a finding of infamous conduct by the practitioner in breach of s 13 of the Act. We accept that.
The Board contends that if we make a finding of infamous conduct, then the only appropriate sanction in light of the nature of the contravention is that the practitioner's name be removed from the register of medical practitioners.
However, before we can reach a conclusion as to whether or not the alleged conduct occurred, as alleged by the Board and as described by the practitioner's patient, Ms CD, who was the complainant to the Board, we must 'feel an actual persuasion of the occurrence of the events or the existence of facts which are in issue': Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw) at 361 363. The significance of the Briginshaw test is that the seriousness of the matter and its consequences do not affect the actual standard of proof that is required to be shown. That standard is the civil standard of the balance of probabilities. Rather, the Briginshaw test goes to the strength of the evidence necessary to establish a fact required to meet that standard. Sufficiently clear and cogent evidence will be required before a finding against the practitioner can be made (See Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 at [63]).
Therefore, although the applicable standard of proof in these proceedings is that we must be satisfied on the balance of probabilities that the conduct alleged to have occurred actually occurred, the test outlined in Briginshaw applies because of the potentially extremely serious impact on the life, reputation, standing and livelihood of the practitioner if a finding that either or both of the alleged incidents occurred.
Both parties agree that the Briginshaw test applies in these proceedings and therefore we approached our consideration of the evidence very carefully assessing and weighing it with that proposition at the forefront of our minds.

The witnesses

The Board filed witness statements for the complainant Ms CD; her mother; a pharmacist and former friend of Ms CD, Ms Hidy Chan; and Dr Fiona Sluchniak, who was an expert witness. Counsel for the Board, Mr Ley, advised the Tribunal that it did not challenge the witness statements of Ms CD's mother or Ms Chan and accordingly, they were not called to give oral evidence or subjected to crossexamination. However, Ms CD gave oral evidence and was subjected to crossexamination. The Board produced additional evidence from Ms CD regarding the examination conducted by Dr Boyatzis at the Peel Health Campus on 11 January 2008, prior to Ms CD attending her appointment at the Sexual Assault Resource Centre (SARC). She was then subjected to comprehensive crossexamination by Mr Ley.
The practitioner filed witness statements and called the following witnesses:
1)The practitioner, who gave some limited additional oral evidence in chief and was then subjected to rigorous crossexamination by Mr Hooker, counsel for the Board;
2)Ms Bronwen Crofts, a receptionist at the Gemini Medical Centre (medical centre);
3)Ms Claire Martin, another receptionist at the medical centre;
4)Dr Kiran Balasa, another medical practitioner at the medical centre;
5)Dr Boyatzis, who gave video evidence and was crossexamined as to his report and findings from his attendance on Ms CD some 24 hours after Ms CD's appointment with the practitioner at which she says the conduct comprising the second alleged incident took place and four hours before her appointment with Dr Sluchniak at SARC; and
6)Professor Ian Hammond, a gynaecological oncologist, clinical professor and adjunct professor. He was an expert witness who gave evidence jointly with Dr Sluchniak.
As mentioned, we heard concurrent evidence from Dr Sluchniak of SARC and from Professor Hammond. In accordance with the Tribunal's usual practice, programming orders for expert witnesses had been made. Each expert filed their reports with the Tribunal; they then discussed their findings without lawyers or the parties present, and filed with the Tribunal and gave to both parties their joint report arising from their discussions. As required, the joint report identified the issues within their expertise, the matters on which they agreed in respect of those issues, the matters on which they disagreed in respect of those issues and the reasons for their disagreement. The two experts then gave evidence together, being first questioned by the Tribunal and then by counsel. We found this process to be very helpful, giving rise to meaningful and useful discussion and evidence.

The uncontested facts

Ms CD and the practitioner gave vastly different accounts of what each of them says happened at the two consultations at which Ms CD said the conduct comprising the two alleged incidents occurred. However, leaving aside those critical aspects of the evidence, there is a large amount of evidence that is uncontested or in unimpeachable documentary form and which paints a background into which the two allegations sit. This evidence also assists us to some small degree in ascertaining what we believe is the true story. Sometimes, it is the lack of this sort of hard evidence that has helped guide us. We set out below what we find to be the undisputable or accepted evidence.

The practitioner

The practitioner is a registered medical practitioner who graduated in medicine from the University of Cape Town in South Africa in 1963. Between 1964 and 2000, he practised extensively in private practice and in hospitals in various locations throughout South Africa. For 15 years, he was parttime district surgeon at Worcester, which is the equivalent of a parttime coroner. During this time, he conducted 7,000 post mortems and hundreds of examinations involving sexual assault and criminal offences.
The practitioner is currently 69 years old. He came to Western Australia in 2000 under contract to practise for six months in the Greater Southern Division of the Western Australian Council for Rural Medicine. He did that until Easter 2001 and then practised for five years under contract in general practice in Lake Grace. He remained with the same employer, which by then had become known as Gemini Medical Services Pty Ltd. In 2006, the practitioner practised for five months in Leinster and seven months in Leonora. In April 2007, his employer, Gemini Medical Services, transferred the practitioner to Mandurah to open the medical centre and he has practised fulltime at the medical centre since that time. At the time of the allegations and currently, the practitioner estimates he would see 30 patients a day, five or six days per week. He is always fully booked. The two receptionist witnesses confirmed this. He also regularly goes to mine sites for several days at a time. The practitioner seems to be highly regarded and wellliked by staff and other doctors at the medical centre. He is one of the senior practitioners at the medical centre.

Ms CD

We had before us the medical records for Ms CD. We had her records from Sir Charles Gairdner Hospital, from Medicare, from Peel Health Campus, from Murray Health Centre and from SARC. We also had various other documents relating to her.
Ms CD is now 39yearsold and she complains of a dysfunctional upbringing which included being physically abused by her father. She said she was digitally penetrated by others as a 12yearold, but her father told her that she deserved it. She says that her concepts of 'the norm' are not necessarily aligned with general Western middleclass values. It is fair to say that the practitioner does not necessarily agree with that summary of Ms CD, but it is accepted that it is the description that she applies to herself.
Ms CD left home at 15, though returned briefly at one stage. She has been a longterm drug user since she was 15 and that has been well chronicled in the Western Australian health system, although she did spend some time in Victoria. She says she is currently not using drugs or smoking, that she has found God and that she has been in this position for three months.
The receptionists at the medical centre describe her as extremely chatty, outgoing and friendly. She has apparently had a wide range of jobs from bricklaying and truck driving to prostitution and being a stripper. She has a history of doctorshopping and attending hospitals to obtain opiates. She alleges she has a recurring chronic back injury and is therefore on sickness benefits. She has not worked for some years.
The medical centre opened in April 2007. Ms CD first attended on 1 May 2007 and she saw Dr Balasa. She complained of pain and an increased frequency in micturation. Dr Balasa ordered a urine test and prescribed her Septrim and Baclofen tablets.
Ms CD attended Dr Balasa again on 4 May 2007 to obtain her test results. She advised him that she wanted to transfer all of her records to the medical centre and then asked for a script of OxyContin 80 milligram. Dr Balasa, who was new to Australia, prescribed 20 x 80 milligram OxyContin tablets.
Ms CD attended Dr Balasa again on 7 May 2007 complaining of a bad backache and headaches. She was on crutches and she said that she felt nauseous. She wanted a CT scan of her brain, for which he referred her. He also prescribed 20 x 100 milligram Indocid suppositories, 25 Stemetil tablets, and 20 x 40 milligram OxyContin tablets.
Two days later, on 9 May 2007, Ms CD attended Dr Balasa again to discuss her CT scan and she obtained another prescription of 20 x 80 milligram OxyContin tablets. On 14 May 2007, she again asked Dr Balasa for OxyContin, but by this stage, he knew that he required authorisation to be able to continue to prescribe opiates for her. He had spoken to a doctor at the Sir Charles Gairdner Pain Clinic and to Dr Wu at the Murray Medical Centre, who had the appropriate authorisation to prescribe opiates to Ms CD. Ms CD asked Dr Balasa to obtain another authorisation. He prescribed another 20 x 80 milligram OxyContin tablets at that consultation. It would appear that he made it clear to Ms CD that he could not prescribe any further OxyContin for her.
On 16 May 2007, Ms CD attended the practitioner for the first time and he wrote a prescription for 20 x 40 milligram OxyContin tablets.
At a further consultation on 22 May 2007, the practitioner advised Ms CD that he had no authority for opiates and prescribed her 10 Bactrim tablets and 20 Mersyndol Forte tablets. She did not return to the practice again until 14 July 2007 when she saw Dr Balasa and his notes say that Ms CD 'came for the scripts'. He prescribed her 50 x 100 milligram Doloxene tablets and 50 x 5 milligram Valium tablets. On 25 July 2007, Ms CD saw the practitioner and asked him for some Proladone. Proladone is oxycodone in the form of a suppository. The practitioner prescribed Ms CD 12 x 30 milligram Proladone suppositories which he said is equivalent to 4 days supply to cover her breakthrough back pain. He also prescribed 20 x 100 milligram Indocid suppositories and 50 x 5 milligram Antenex tablets. Antenex is another trade name for Valium (diazepam).
On 18 August 2007, Ms CD attended the practitioner and he prescribed her 28 x 20 milligram Lovan capsules; 50 x 5 milligram Antenex tablets and 12 x 30 milligram Proladone suppositories. His notes on that day say 'affective disorder' and it may be on that day that she advised him that she took dexamphetamine under prescription through a psychiatrist. On 29 August 2007, Ms CD had a consultation with another doctor in the practice, Dr Scholze. His notes say that she needed new prescriptions and no new problems reported. She was stable with no psychosis or low mood. He prescribed 25 x 5 milligram Stemetil, 50 x 100 milligram Doloxene and 12 x 30 milligram Proladone suppositories.
Ms CD consulted with Dr Scholze again on 11 September 2007. His notes are remarkably extensive when compared to those that the practitioner made. His notes say that '[n]o new problems reported. Lower back pain reasonably controlled on TENS machine. Loves ''to be in touch with her senses'' and other stuff. Proud of her secondhand Triumph from one previous owner and in "perfect shep" [sic], she can feel ''(dead) owner's knee on her'''. He prescribed her 25 x 10 milligram Temazepan tablets, 50 x 5 milligram Valium tablets, 10 Augmentin Duoforte tablets and 12 x 30 milligram Proladone suppositories.
On 29 September 2007, Ms CD again consulted the practitioner. He gave her two Vitamin B injections and made no notes as to her condition. He also prescribed:
1)50 x 100 milligram Doloxene Capsules;
2)100 x 25 milligram Baclofen;
3)25 x 10 milligram Temaze tablets;
4)20 x 100 milligram Indocid suppositories (with 1 repeat);
5)12 x 30 milligram Proladone suppositories; and
6)two x 100 gram Aristocort ointment tubes.
Ms CD again consulted the practitioner on 10 October 2007. His notes merely say 'Proladone'. He prescribed her 12 x 30 milligram Proladone suppositories; 25 x 10 milligram Temaze tablets and 50 x 5 milligram Antenex tablets. She returned on 23 October 2007. The practitioner's notes say 'cervical spondylosis'. He prescribed her the following:
1)20 x 100 milligram Alphamox capsules;
2)50 x 100 milligram Doloxene capsules;
3)one x 50 gram tube of ReTrieve cream;
4)two x 100 gram tubes of Celestone at 0.2 milligram/gram; and
5)12 x 30 milligram Proladone suppositories.
On 2 November 2007, at consultation, the practitioner again prescribed:
1)12 x 30 milligram Proladone suppositories;
2)25 x5 milligram Antenex tablets; and
3)25 x 10 milligram Temaze tablets.
On 19 November 2007, the practitioner's notes say 'LUMBAGO' and he prescribed her:
1)two x 100 gram tubes of Aristocort ointment at 0.02%;
2)50 x5 milligram Antenex tablets;

3)12 x 30 milligram Proladone suppositories;
4)50 x 100 milligram Doloxene capsules ;
5)25 x 10 milligram Temaze tablets; and
6)two x 1 millilitre injections of Vitamin B.

On 27 November 2007, at a further consultation, the practitioner's notes say 'infected hair follicle' and he prescribed Ms CD 20 x 500 milligram Ibilex capsules of antibiotics; he also wrote the usual prescriptions:
1)25 x 5 milligram Stemetil tablets;
2)12 x 30 milligram Proladone suppositories;
3)20 x 10 milligram Buscopan tablets; and
4)12 x 2 millligram Gastro-stop capsules.
Six days later, on 3 December 2007, Ms CD again attended the practitioner. His notes merely say 'Proladone' and he prescribed:
1)one x 20 gram tube of Retin-A cream at 0.05%;
2)12 x 30 milligram Proladone suppositories;
3)two x 1 millilitre injections of Vitamin B; and
4)25 x 10 milligram Temaze tablets.

On 21 December 2007, Ms CD attended another practitioner at the medical centre, Dr Coetzee. His notes say that 'scripts needed and discussed use of these and not on Oxycontin'. On that basis, he prescribed the following:
1)12 x 30 milligram Proladone suppositories;
2)25 x 10 milligram Temaze tablets;
3)20 x 500 milligram Ibilex capsules; and
4)75 Vitamin B capsules.
On the next day, 22 December 2007, Ms CD attended Dr Scholze who said 'no new problems reported. Now quit smoking and working for the church to help youths against addiction. Repeat [prescriptions]'. Dr Scholze prescribed 50 x 100 milligram Doloxene capsules. On 31 December 2007, Ms CD again consulted with the practitioner who gave her a prescription for 12 x 30 milligram Proladone suppositories and two Vitamin B injections. He made no notes of that appointment.
On 5 January 2008, Ms CD saw the practitioner and his notes say that she 'fell a few days ago; seen by chiropractor yesterday he says [is] joint has ... illegible ... I dysfunctionphysio'. He prescribed her the following:
1)12 x 30 milligram Proladone suppositories;
2)100 x 25 milligram Baclofen ;
3)50 x 100 milligram Doloxene capsules ; and
4)50 x 5 milligram Antenex tablets.
Five days later on 10 January 2008, which is the day of the second alleged incident, Ms CD attended the practitioner and his notes say 'nausea exag bs' which he described in evidence as meaning 'exaggerated bowel sounds' and he prescribed 25 x 5 milligram Stemetil tablets and 12 x 30 milligram Proladone suppositories. It is at one of the other consultations with the practitioner during 2007 that Ms CD says the first alleged incident took place, although she is unable to identify which occasion and whether it was in the morning or afternoon.
It is clear from the patient's medical history kept by the medical centre that Ms CD managed to obtain prescriptions on a regular basis for a large number of drugs, including opiates.
According to Medicare records, between Ms CD's first consultation at the medical centre on 1 May 2007 and her last on 10 January 2008, she saw 16 different doctors and obtained 101 prescriptions for narcotics and psychotropics. The practitioner wrote 24 of those prescriptions, Dr Balasa wrote 12 of them. These statistics relate to Medicare consultations and do not include attendances at public hospitals.
It is a little difficult to work out what illnesses Ms CD was suffering from and what medications she was taking regularly during her period of consultation at the medical centre. However, it would appear she had the following conditions:
1)she was Hepatitis C positive;
2)she suffered from chronic back pain, although copies of scans and radiological reports are somewhat equivocal in this regard;
3)she was diagnosed with ADHD and is hyper-kinetic (this is from the reports of Dr Fern Chua and the notes of her psychiatrist, Dr Chris Carter);
4)depression;
5)obsessive compulsive disorder; and
6)previous endometriosis.
During the time Ms CD consulted the practitioner, Dr Wu of another medical practice had the authority to dispense oxycodone as OxyContin to Ms CD, which he did through one pharmacy only and in very limited amounts. As set out above, Ms CD also regularly took a range of other medications.
Ms CD says she takes three x 5 milligram dexamphetamine tablets each morning and another three at lunchtime. This was supported by the documentary evidence. On the first day she gave evidence, she had had her dexamphetamine in the morning and at lunchtime and on the second day, she had had it in the morning. This was in accordance with her prescribed dosage (T: 14 15, 10/08/09).
Ms CD suffers from perpetual bad luck; there has been a constant stream of troublesome circumstances centred around her and, at any given time, something is going wrong with her health and in her life.
Ms CD now lives with her mother and was living with her at the time that she was attending the medical centre. She was injecting the drugs she obtained from the medical centre doctors and elsewhere, generally into her neck, or smoking or snorting it if she had to; but generally, she was injecting.
The medical centre is a 'paperless office' and all patient notes were done by the doctor straight to the computer. Therefore, notes were relatively short. In the case of the practitioner, they were often nonexistent.
On 11 January 2008, Ms CD attended the Peel Health Campus emergency department where she was seen by Dr Boyatzis and then she attended at SARC in Subiaco where Dr Sluchniak carried out a thorough forensic examination.

The contested evidence

Ms CD's version

In her witness statement at para 37, Ms CD says she went to the medical centre because it was 'close to where my mother lives'. She also says she went there because she thought she might be able to obtain opiates (including OxyContin) from a new doctor in a new medical centre (witness' statement at para 4). She confirmed this in her oral evidence (T: 20 and T: 21, 10/08/2009).
She admits that she was 'doctorshopping' during the time she attended the medical centre, although she was a little evasive and circular when the question was first put to her by Mr Ley. However, in her witness statement at para 5, she says that she did 'go to see a lot of doctors at different practices, to attempt to persuade them to prescribe OxyContin and other drugs, to me'. Initially, in cross-examination, Ms CD said that maybe she went to one or two doctors and there was some discussion as to what was meant by 'a lot'. Ultimately, she was unclear about it in her crossexamination (T: 18 and T: 19, 10/8/2009). However, we accept the documentary evidence set out in her Medicare records and referred to above.
Ms CD admits she would seek opiates for her back pain which she said was chronic and was caused by numerous injuries. She would tell the practitioner (and other doctors) that she couldn't sleep so that she would obtain prescriptions for Valium and Temazepan (or other sleeping tablets). She would also complain about nausea or diarrhoea in order to obtain prescriptions for antiemetics such as Stemetil. Antiemetics would assist Ms CD (and her friends) when suffering from withdrawal symptoms.
Ms CD says at para 10 of her witness statement, that in her first consultation with the practitioner, he offered her OxyContin for her back pain, but she considers it was more likely that she asked for a prescription for OxyContin as that would have been her usual practice. At the second consultation with the practitioner, when she asked for OxyContin, the practitioner said he could not give it without an authority and she encouraged him to apply for one, knowing that there could be only one valid authority and at the time, that was held by Dr Wu at Murray Medical Centre.
When she went to see the practitioner for the third time, Ms CD asked him for Proladone, a suppository form of oxycodone. He prescribed a four day's supply for her. She continued to see the practitioner and obtained a prescription for Proladone and various other medications at each consultation as set out above.
Ms CD was most unclear on when the first alleged incident occurred. She says it was 'early into ... when I saw the practitioner' (T: 30, 10/08/09). At para 19 of her witness statement, she says it was after she had purchased her car and after 11 September 2007 based on the medical centre notes, but 'it might have been before' (T: 30, 10/08/09). When questioned by Mr Ley about when it was, she said 'I didn't know morning from afternoon, full stop' (T: 31, 10/08/09). Yet she is most precise about all other details that occurred at the consultation, including what she was wearing.
Ms CD says in para 23 of her witness statement that at the consultation when the first alleged incident occurred, she discussed breast augmentation with the practitioner and he told her that she had 'nice breasts'. She said she felt uncomfortable when he said that.
Ms CD says she asked the practitioner for Proladone and he said he would 'deal with that later' (at para 24 of Ms CD's witness statement). She asserts that the practitioner said he needed to examine her back and that he was mumbling as he guided her to the bed in his room. She says that the practitioner pulled the curtain around the bed. In her witness statement and in oral evidence, Ms CD gives a graphic description of giving the practitioner oral sex at his instigation, including a detailed description of his penis. However, in her witness statement, she could not say whether or not the practitioner was circumcised. She 'assumed' from this that 'what he wanted was for me to give him oral sex and that if I did not do so, I would not get my prescription for Proladone' (para 25). She reinforced this belief in crossexamination.
In her witness statement and on the first day of crossexamination, Ms CD said that the practitioner pushed her head down; on the second day, she forcefully contended that he pulled her down by the shoulder.
Ms CD told no one of this incident until she reported the second alleged incident. She said this was because in her world, what the practitioner expected of her, was the norm. The following exchange between Ms CD and counsel is instructive (T: 36 and T: 37, 10/08/09):
He didn't say that, did he? He didn't say, 'If you don't do this, you don't get your Proladone.' Of course he's not going to say that. But he emphasised - he said, 'Don't worry, we'll just talk about that later,' and mumbling and mumbling.
Why didn't you just say, 'Look, I'm not going to do this?' --- Why? Because I didn't have any courage then, love. I didn't have a soul. OxyContin had a hold of it, tucked in a box with Pandora. Now my soul has come out and I don't put up with no bonkers from no one.
So you think that day you were completely under the influence of the OxyContin and … ? --- No, I was completely fine. It doesn't make you bonkers in the head like acid, LSD, ecstasy, fantasy, GBH, all of that. I've done studies, I'm not a silly-billy. When you take morphine or an opiate, right, first you get a little high, you might get (indistinct) but after a while you need that just to feel normal, sweetheart. A spoonful of sugar, you know, like you have your coffee in the morning to get out of bed. Morphine, you need it to function normal. I've read an article and a doctor stating that out of all drug addicts, he would prefer a morphine or a heroin addict to operate on him as opposed to a person with schizophrenia or speed. You know what I'm saying? It doesn't harm anything in your body. There's tests been shown. Maybe if you're shooting up morphine with wax in it and that, but opiate does not harm anything in your body. Methadone, yes, but no, I wasn't high.
So it didn't affect what you were doing? You knew what you were doing? I thought I had to do it.
You didn't ever think about saying, 'No, I'm not going to do this, you dirty little man, get away from me'? --- No, because I hadn't been taught that, love.
At T: 39, 10/08/09, Mr Ley asked Ms CD:
Can I suggest to you that you're fabricating this? This is a lie? --- No, I don't fabricate anything, love. The truth will set you free. Say what you mean, mean what you say, or don't say anything at all. Be yourself, or don't be at all. I'm not fabricating anything, dear.
Are you okay? Do you want … ? --- I'm fine, I just can't believe fabrication, my golly. That's metalwork to me. I don't tell lies.
It's the case, though, isn't it, that you never complained about this oral assault? --- I never complained about jack-squat-diddly.
Ms CD says she continued to see the practitioner because she wanted her Proladone prescriptions, but after the first alleged incident, she was cautious and always took someone with her to the consultations, except on 10 January 2008. The evidence was inconclusive as to whether or not this was the case and whether or not a person who attended with Ms CD went into any or all of the consultations with her.
Ms CD says the second alleged incident occurred on 10 January 2008 at around 10.15 am. She described the second alleged incident in detail in her witness statement and on numerous occasions in her crossexamination. She also gave a statement to police on 14 January 2008 where she set out details of the second alleged incident and that statement is quoted at length in her witness statement before this Tribunal. We note that criminal proceedings were not pursued against the practitioner.
Ms CD says she went unaccompanied to the medical centre at 10 am on 10 January 2008 because she was suffering from diarrhoea. She had telephoned earlier and was informed that she would be seeing the practitioner. She said she felt uneasy that she would be seeing him as she was alone. It is helpful to set out Ms CD's account of the alleged second incident as she put it in her police statement and which was quoted in full in her statement of evidence before this Tribunal:
34.On Thursday the 10th of January 2008 I woke up feeling nauseous and unwell. I thought I was getting gastro.
35.My back was sore also due to an earlier injury.
36.I rang the medical centre in Erskine at about 9.30 am and asked if I could get an appointment.
37.The lady asked me to come down to the surgery, she asked me to be there by 10.00 am.
38.I think it was Bronwyn [sic] I spoke to, she told me that I would be seeing Doctor MOFFSON.
39.I've seen Doctor MOFFSON before. I had an incident with him about 6 weeks ago when he grabbed me in a sexual way.
40.I told Mum about that but I didn't report it.
41.When I found out I was seeing him again I felt really uneasy. I asked Mum to come with me but she couldn't.
42.Doctor MOFFSON is about 60 years old and is a short little man. He has white curly hair and is solid build.
43.He wears glasses and is South African, he's Caucasian, but he's not pale skinned.
44.I was concerned but I thought I'd be ok.
45.I drove Mums [sic] car to the surgery and parked out the front of the surgery.
46.I was wearing black pants, black high neck short sleeve skivvy and a yellow cardigan.
47.I arrived at about 10.00 am.
48.I went to reception when I arrived, they asked me to take a seat and I went and sat at the back wall.
49.I got called at quarter past ten by Doctor MOFFSON and I went to his room.
50.He asked what was wrong and I told him that I had some gastro, and he asked how my back was.
51.I've seen him before about my back, and I told him I needed some pain relief for my back.
52.Then he told me to get up on the table, I was straight away sceptical.
53.I lay down on the bed and he drew the curtain.
54.He was trying to undo my pants, he was gritting his teeth.
55.I held my pants and underpants down low so he could use the stethoscope.
56.He listened to my belly and said something about how my bowel was spasming.
57.He asked me to roll onto my side so he could look at my back.
58.He had a look at my back, and said that is [sic] looks ok.
59.At this point, I had the zipper to my pants down and the front of my pants and undies were low on my stomach.
60.I got off the bed and I was standing over doing up my pants. I was looking down when Doctor MOFFSON moved in front of me and pinned me against the examination bed.
61.He pushed his right hand down the front of my pants; it was inside my pants but outside my knickers.
62.I said 'No, what are you doing?' I was pushing back at him saying 'No, don't do that'.
63.I grabbed his arm and tried to pull it out.
64.I felt his arm move and I thought he was going to take it out.
65.He lifted his arm and then pushed it back down inside my undies.
66.He grabbed my clitoris between his finger and thumb and was rubbing it together. It was really hurting.
67.He was making this horrible face; he was gritting his teeth together and saying 'You like that'.
68.He then put his hand a little lower and grabbed my labia and again squeezed them between his finger and thumb.
69. I was shocked and in a lot of pain.
70.I was asking him to stop. I was telling him he was hurting me.
71.He then put his finger inside me and scratched me with his horrible nails.
72.He was also pushing me back and saying 'Lie down on the bed, lie down on the bed'. He still had his finger inside me.
73.I couldn't think of what to do, so I said to him 'I'm going to throw up on you'.
74.He quickly pulled his hand back, he pulled the curtain back and went over and quickly washed his hands.
75.I was in shock. I did my pants up and sat down.
76.The Doctor wrote my scripts out and I walked out.
77.I just got to the reception desk when he came out and asked me if I'd dropped my phone.
78.I said 'Yes' and 'Thank you'.
79.He gave the phone to one of the ladies who gave it to me.
80.I signed the thing for Medicare, I asked Bronwyn about a motorbike magazine, she said I could have it.
81.But I was in shock and left the magazine there.
82.I left the surgery and was feeling really sore, I walked to the car.
83.I drove over to the shopping centre and put my script in at the pharmacy.
84.I was really sore so I sat down at the pharmacy.
85.They told me that they didn't have what I needed and sent to Pharmacy 777 in the Forum.
86.I drove to the Forum and handed my script in there. They told me there was going to be a wait.
87.I said I'll come back in 15 minutes.
88.I walked up to the car park chemist where my friend Hidy works.
89.I saw her and was crying, she asked me what was going on and I told her that a Doctor just assaulted me.
90.She gave me the number for the Sexual Assault Helpline.
91.I left there and rang my mum, I returned to Pharmacy 777 where I sat down.
92.Judy saw me crying and asked what was wrong, I told her what had happened.
93.I paid the script and drove home.
94.I was at home and was upset and in pain. I fell asleep on the lounge.
95.I went to my best friend's house at about 5.00 pm; I stayed there for a couple of hours and then went home.
96.I was in a lot of pain, I'd been to see some friends.
97.I had a shower at about 2.00 am and saw that I had bruising. I telephoned the Sex Assault Resource Centre [sic].
98.They referred me to the Peel Health Campus at about 10.00 am on Friday the 11th of January 2008.
99.I was examined there and they referred me back to the Sex Assault Resource Centre [sic].
100.I was in so much pain I went back to the car park Chemist where I was given two Morphine tablets to get me to Perth.
101.I got to SARC at about 2.30 pm and was examined there.
102.I got home at about 7.30 pm and Mum called the Police.
Ms CD clarifies her statement in a number of ways and in subsequent paragraphs of her witness statement as follows:
104.This statement is true except that Hidy Chan (incorrectly spelt as Heidi) who is a pharmacist at the Car Park Pharmacy is no longer my friend and I am not allowed entry to that pharmacy.
105.The incident referred to in that statement, where I say Dr Moffson grabbed me in a sexual way, is the first incident described in this statement, where I performed oral sex on Dr Moffson.
106.I have been informed that it is alleged that Dr Moffson performed a digital rectal examination on me at the consultation on 10 January 2008. That did not occur.
107.I have been informed that it is alleged that I asked the practitioner for Valium at the consultation on 10 January 2008. I note that the medical centre notes say Dr Moffson had prescribed 50 tablets of Antenex which I know as Valium, on 5 January 2008. I don't believe I would have asked for more Valium from the same doctor so soon after receiving that prescription.
108.I have been informed that it is alleged that I asked Dr Moffson for OxyContin at the consultation on 10 January 2008. I don't believe that I would have asked him to do so as he told me he could not without an authority and he was prescribing Prolodone for me.
109.I am informed that it is alleged that at the consultation on 10 January 2008 I asked Dr Moffson whether [DH] had an appointment with him that day and implied that he should prescribe opiates for [DH].
110.I knew [DH] and I am aware that he had obtained OxyContin from Dr Moffson. I also recall having a conversation similar to the one described at a consultation with Dr Moffson. That conversation did not, however, take place at the consultation on 10 January 2008.

Ms CD admits she attended the Peel Health Campus emergency department on the morning of 11 January 2008, but she denies that she had told SARC that she was bleeding heavily or at all. Dr Boyatzis says that the reason for his examination was that Dr Nixon of SARC had told him that Ms CD was bleeding heavily, and this was the only reason why she had to see him. However, Ms CD is scathing of Dr Boyatzis, dismissing his conclusions and reports as the result of judging her to be 'just a piece of tar' (T: 7, 10/08/2009). She says his examination and attitude was 'blasé' (T: 10, 10/08/2009). She says 'he was so rude to me' (T: 11, 10/08/2009) and (at T: 7, 10/08/2009) 'just degrading a little bit. You know, peasant'.
It is not in dispute that Ms CD attended SARC in the afternoon of 11 January 2008 and that Dr Sluchniak made the findings set out in her report.
In addition to the quote above from the police statement and witness statement, in cross-examination, Ms CD volunteered repeated accounts of the night of 10 to 11 January 2008 and the extreme pain she says she was in. She said that she examined herself with a compact mirror and noticed what she thought might be a 'slight cut' (T: 13, 10/08/09). However, she then pulled back from that explanation and said that it 'felt like' a cut.
In addition, with respect to her attendance at Peel Health Campus, Ms CD agrees that she asked Dr Boyatzis for two OxyContin tablets as she did not have any because she had left her medication in Jurien where she had been staying with her younger sister. Dr Boyatzis rang Dr Wu and then declined to give her the OxyContin. She subsequently obtained it from a pharmacist prior to travelling to SARC in Subiaco.

Dr Moffson's version

The practitioner denies that the first alleged incident and the second alleged incident ever occurred. The practitioner also denies that he and Ms CD discussed breast augmentation at any consultation she had with him.
The practitioner said that he made a comprehensive examination of Ms CD's back at the first consultation and having done that, he would not have thought it necessary to examine Ms CD's back again. We note that the medical notes made by the practitioner do not record an examination of Ms CD's back at any consultation. However, we accept that in such a busy practice and under the undisputed time pressures, it would not be necessary to examine Ms CD's back, provided the practitioner had thoroughly examined it at the first consultation as contended by the practitioner.
The practitioner concluded that Ms CD had a 'mechanical back' which caused her to suffer localised pain in her back as a result of facet joint irritation, but which did not involve the impingement of the sciatic nerve (para 30 practitioner's witness statement). He could not detect any structural problems in Ms CD's neck. The practitioner confirms that at the first consultation, Ms CD asked him for OxyContin and he was aware that it was a drug of addiction but did not have any particular problem prescribing it for her. He was also aware of the requirements of the Health Department regarding prescribing OxyContin. He says that at the second consultation, Ms CD encouraged him to apply for an authorisation, which he did. However, it was declined and he was advised that Dr Wu held the current authorisation to prescribe OxyContin to Ms CD, with limited dispensing. Ms CD had not told the practitioner about Dr Wu or any of the other doctors she was seeing. Ms CD asked him to prescribe OxyContin at the consultation on 25 July 2007, but the practitioner declined. She then asked for Proladone which he was willing to prescribe for her. He emphasised that it was for her 'breakthrough back pain' and he was comfortable prescribing it, so long as it was in suppositories. Throughout all of her consultations, the practitioner said that he prescribed Ms CD Proladone and a range of other medications including, where necessary, antibiotics and Temazepan for her sleeping problems. At the consultation of 23 October 2007, he examined her neck and diagnosed her to be suffering from cervical spondylosis (para 77 practitioner's witness statement).
In his witness statement, the practitioner sets out the details of each consultation and what he prescribed for Ms CD. At no time did he offer or attempt to treat her back or neck pain or sleeping problems any other way than through the prescription of medication. With respect to the consultation on 10 January 2008, the practitioner says that Ms CD advised him that she was suffering from nausea and she asked him for a prescription of Stemetil. He was of the view that she was probably suffering from viral gastroenteritis, but he considered that he should examine her to exclude something more serious, such as appendicitis or a bowel obstruction (para 99 practitioner's witness statement). He said that he asked her to lie on the bed and he asked her to pull down her trousers and underpants slightly at the front to enable him to examine her abdomen. He did this by placing the stethoscope on her abdomen and listening to her bowel sounds which he thought were 'exaggerated' (para 104 practitioner's witness statement).
The practitioner continues in his witness statement as follows:
105Accordingly, I considered that I should perform a rectal examination to ascertain whether she was suffering from any serious abdominal or bowel condition.
106I made that recommendation to Ms CD and she agreed to me performing a rectal examination.
107I then asked her to roll onto her left side, facing the wall of the surgery and to pull her trousers and underpants down below her buttocks.
108Ms CD did those things and I then put a surgical glove on my right hand, applied a lubricant and performed the rectal examination.
Ultimately, he concluded that Ms CD was not suffering from any serious condition and that she was suffering from viral gastroenteritis. Accordingly, he wrote out her usual prescriptions. However, she asked him for a script for Valium which he declined as he had written one for Antenex only five days earlier. She then asked for a Valium script dated in the future, which he refused to supply.
The practitioner says that at the end of that consultation, Ms CD asked him if he had an appointment with her friend DH. He checked his appointments and advised her that he did not and she said DH would come to see him anyway. The practitioner said he made it very clear that he was not prepared to prescribe opiates for DH. He said that Ms CD accepted that and then said to him 'I hear you are going on holidays'. He was, in fact, flying to Leinster to do a locum for two weeks and so, he replied, 'not really. A working holiday' and at that point Ms CD left his room.
The practitioner denies that he ever offered OxyContin or any opiate to Ms CD, but that she always asked him to prescribe them for her back pain. He said he accepted her back pain and the history of her back injury. He also denies that there was ever any discussion about breast augmentation (para 152 and para 156 of the practitioner's witness statement). The practitioner says that he performs approximately eight rectal examinations a day (T: 105, 11/08/09).
The practitioner says he was, as usual, professional in every way in his dealings with Ms CD as his patient. The practitioner describes himself as a holistic practitioner, which he says does not mean that he is an evidence-based medical practitioner, but that he looks at all of the patient's records at the practice when he sees the patient, including the screens related to any pathology or other tests that had been ordered.

Dr Boyatzis

Dr Dean Boyatzis practises in emergency medicine. He was employed at the Peel Health Campus from November 2007 to January 2008 and was on duty when Ms CD attended for her examination.
Dr Boyatzis had no independent recollection of his examination of Ms CD. However, his notes were extensive. He did have independent recollection of various circumstances surrounding Ms CD's attendance at Peel Health Campus.
The purpose of Dr Boyatzis conducting an examination of Ms CD was to ascertain how much she was bleeding, whether she was haemodynamically stable, and whether she had low blood pressure or was in shock. Dr Nixon from SARC had advised the Peel Health Campus that as a result of an assault, Ms CD had said she was bleeding heavily from the genitals. Dr Nixon also wanted Dr Boyatzis to ascertain whether Ms CD had any major lacerations to her genitals.
Dr Boyatzis read Ms CD's Peel Health Campus file notes prior to her attendance. She was admitted at 10.10 am and Dr Boyatzis attended her with a female nurse present at all times. Ms CD described the second alleged incident to Dr Boyatzis and said that as a result of the assault her genitals were red, inflamed and very sore. She confirmed to Dr Boyatzis that she had been bleeding. Ms CD informed him that she had no vaginal discharge and no pain or difficulties with urinating. He said that Ms CD appeared agitated and restless whilst he was talking to her. However, she was cooperative and responded directly to all of his questions (para 42 and para 43 of his witness statement). However, although she said her genitals were inflamed and very sore following the assault, she did not complain of any internal pain or any pain in any area other than her genitals.
Dr Boyatzis did not conduct an internal examination. He did not find any bleeding from the vagina and he did not see any lacerations to the external genitals. He found there was very mild redness, which is a common finding. No abnormalities were detected.
At the end of the examination, Ms CD asked for some OxyContin for her back pain because she said she had left her supply in Jurien Bay. Dr Boyatzis was not prepared to write her a script to 'tide her over' (para 63 of his witness statement). Ms CD then advised him that Dr Wu had an authorisation. She gave him Dr Wu's telephone number and asked Dr Boyatzis to telephone him and get the authority to give her the necessary OxyContin.
Dr Boyatzis said he was now suspicious of Ms CD's motives and that although she had come to the Peel Health Campus for an examination related to a sexual assault, he thought her main focus was on obtaining opiates.
Dr Boyatzis considered Ms CD to have a borderline personality disorder and that she was manipulative in her efforts to obtain opiates. He suspected she might have been an addict. Dr Wu was not prepared to authorise any OxyContin as he had a 'no replacement agreement' with Ms CD. Dr Boyatzis said that Ms CD then became even more agitated and asked him to ring the Pain Clinic at Sir Charles Gairdner Hospital. She named several doctors at the Pain Clinic who, she said, would authorise OxyContin for her. Dr Boyatzis said he telephoned the Emergency Department at Sir Charles Gairdner Hospital but there was no answer.
Dr Boyatzis then telephoned Dr Nixon at SARC and advised that Ms CD was not suffering from any blood loss and that he had not found any lacerations or abrasions to her external genitalia.
Dr Boyatzis also gave extensive evidence on his view of the examination of Ms CD at SARC and differences in what she told him and what she appeared to have told SARC.
Dr Boyatzis was defensive of his professionalism. We accept his evidence that he did not judge Ms CD in the manner she describes. As Dr Boyatzis said, he would not seek to work in emergency and like areas if he was unwilling to accept all patients at face value, or if he formed the kind of judgmental attitude referred to by Ms CD.
It is possible that Dr Boyatzis missed the 4 millimetre laceration found by Dr Sluchniak and he concedes this. However, we are not convinced to the requisite standard that he did miss it. Dr Boyatzis did not conduct an internal examination as he was not instructed to and we accept that he did not want to destroy any forensic evidence. In any event, Ms CD was quite clear that she would not have allowed Dr Boyatzis to conduct a more detailed investigation as she was in so much pain.

The experts

Dr Sluchniak and Professor Hammond gave joint evidence. They agreed that the injuries were likely to have been made by blunt force. That could have been caused by an accident, an assault or be selfinflicted, or a mixture of any of those. Dr Sluchniak said that at SARC, they often try to identify which it is.
We note that Dr Sluchniak's role was to perform the forensic examination of Ms CD. Professor Hammond had been asked by the practitioner's lawyers to advise on the differences between Dr Sluchniak's report and Dr Boyatzis' report, and the fact that Dr Boyatzis did not see any of the lacerations which were subsequently found by Dr Sluchniak.
Of concern to us was the existence of a small amount of fresh blood in the upper cervix. It seemed unlikely, if not impossible, that the blood would be present from an assault and injury caused 27 hours previously. The experts confirmed this. They agreed that there would be a pool of blood in the vagina unless it was thoroughly cleaned or douched or if a tampon had been used. The effect of an icepack would be to reduce swelling and perhaps to increase redness, but there would be no impact on internal injuries.
The experts also agreed that genital injuries heal very quickly because of a good blood supply to the area. Dr Sluchniak concluded that the injury she saw in the cervix was more than likely, if not definitely, less than 27 hours old. They both concluded that an accident was most unlikely. However, the experts were not able to say conclusively whether or not the wounds were selfinflicted. Professor Hammond, in particular, gave evidence of how difficult it would be to injure the cervix in the manner in which it was injured. Professor Hammond also gave evidence that it was most unlikely that an assailant could reach the top of the cervix in the manner described by Ms CD. This was particularly so when the woman was not receptive and would be even more difficult if she tightened her sphincter muscles as Ms CD said she did. The difficulty is compounded if clothes are worn. He gave evidence that as a specialist medical practitioner, if required to do so for medical purposes, he would find it difficult to do what was alleged, even if the patient was under anaesthetic. However, if the victim is taller than the assailant, as is the case here, then it might be slightly easier.
We accept the evidence of the experts, particularly that it would have been virtually impossible for the practitioner to physically assault Ms CD in the manner she describes and that the injuries seen by Dr Sluchniak were less than 27 hours old. It is not necessary for us to conclude what the cause of the injuries was, except to say that based on the expert evidence, they cannot have been caused by the practitioner at the consultation at 10.15 am on 10 January 2008; however, that is not conclusive as to whether or not the alleged assault occurred. It merely means that the injuries were not the result of conduct by the practitioner at the consultation on 10 January 2008. More persuasive is the conclusion that the practitioner could not have reached the top of the cervix and assaulted Ms CD in the manner alleged by the Board.

Ms Hidy Chan

Ms Chan is a pharmacist who was at work in a Mandurah pharmacy on 10 January 2008. Ms CD was a regular customer and she came to the pharmacy looking upset. Ms Chan said she appeared to be trying to contain herself (para 15 witness statement). Ms Chan said that Ms CD started crying after she said hello to her and she told her what the practitioner had allegedly done to her. Ms CD said that the practitioner had sexually assaulted her and told Ms Chan the details and that it caused her terrible pain. Ms Chan provided her with the 1800 phone number for the Sexual Assault Hotline.

Ms CD's mother

Ms CD's mother provided a witness statement. She was not required to attend for crossexamination. Her witness statement includes her evidence that she went with her daughter to attend the practitioner in November 2007 because her daughter felt the practitioner was a bit 'sleazy' (para 3 of her witness statement). She goes on in her witness statement to say that in January 2008, around midday, she got a telephone call from her daughter who was crying. She said her daughter said something about the doctor, but she couldn't understand what she was saying and told her to get home straightaway. In para 22 of her witness statement, the mother says that Ms CD gave her the details of what happened when she returned home on that day. However, we note that Ms CD's evidence is that she did not tell her mother until the next morning (T: 12; 10/08/09). Her mother took Ms CD to SARC in Subiaco on 11 January 2008.

Ms Bronwen Crofts

Ms Crofts is a receptionist at the medical centre and she gave evidence that Ms CD always asked to see the practitioner. She said that Ms CD was always very outgoing and talkative, and would often engage in social chatter (para 8 and para 9 of her witness statement). She gave evidence that on no occasion did Ms CD complain that the practitioner required her to give him oral sex and on 10 January 2008, after her appointment, she was as friendly and talkative as she usually was and did not appear upset, distressed or angry (para 37 and para 38 of her witness statement).
She also gave evidence that later in the day Ms CD returned to the medical centre to collect the motorcycle magazine that she had left there after the consultation.

Ms Claire Martin

Ms Martin is also a medical receptionist at the medical centre and is, at times, the acting practice manager. She gave evidence that when she made appointments for Ms CD to see a doctor, Ms CD always asked for the practitioner (para 28 of her witness statement). This was apart from her initial attendances when she saw Dr Balasa. She could not recall that Ms CD was upset in any way on any occasion after a consultation with the practitioner. She also gave evidence about Ms CD demanding to see the practitioner on Christmas Eve 2007.
Finally, Ms Martin gave evidence that on 10 January 2008, Ms CD was the same as usual, friendly and talkative, and did not appear distressed or upset in any way after her consultation with the practitioner (para 71 and para 72 of her witness statement).

Dr Balasa

Dr Balasa provided a letter to the Tribunal stating that he had examined the practitioner's penis and that his description of it was not consistent with the description given by Ms CD.
Dr Balasa came to Western Australia in March 2007 and began practice at the medical centre in the second half of April 2007. His consultation room is next to the practitioner's. He gave evidence about his consultations with Ms CD and the prescriptions that he wrote for her.
Dr Balasa also gave evidence that he had not discussed these allegations with the practitioner at all. We find that rather difficult to believe. However, that does not cause us to doubt the balance of Dr Balasa's evidence.

The submissions

Board's submissions

The Board's counsel, Mr Hooker, asks us not to judge Ms CD. He says that the law is well settled, that we should not look at the evidence based on assumptions of how the complainant, that is, the victim of sexual assault, reacts to the assault. Mr Hooker says the practitioner's arguments are based on those assumptions which are oldfashioned notions of women in a 'princess dress', being untouchable and remote. There is no such thing as a 'model complainant' and yet the practitioner's arguments are based on there being one. Mr Hooker says Ms CD did tell her mother, the pharmacist Ms Hidy Chan, and her friend Judy about what had happened to her and that was unchallenged. Mr Hooker asserted that sexual assault is an expression of power in a power-ascendant relationship.
Mr Hooker points out that Ms CD's consistency about the core allegations is 'striking'. She is incredibly upset; she tells her mother and contacts SARC. With respect to Dr Boyatzis, Mr Hooker says he had a mindset to look only for major injuries, as requested by SARC, and that affected his task. He took into account the fact that Ms CD was a drug addict, and he thought she had a borderline personality disorder and was used to manipulating people. He made an 'utterly unfair characterisation' of Ms CD; although he is a competent, diligent and professional doctor, he judged her and therefore made a superficial examination.

Mr Hooker recommends that credibility be resolved by looking at the complainant's demeanour, opportunity, motive and motivation, and the content of her evidence. He points to Ms CD's lack of motive to make the allegations and the practitioner's inability to deal properly with the allegations.
Mr Hooker concedes that it is possible that Ms CD inflicted injuries on herself to make the assault more believable, but that should not deter us from finding that the assault occurred. He points out that it was not explored with Ms CD in crossexamination. Mr Hooker acknowledges Professor Hammond's comments with respect to the difficulty that the practitioner would encounter in the assault, but he posits that Professor Hammond is looking at the situation in a sanitised, static position and that in all likelihood, there was a few seconds of very chaotic behaviour which could have facilitated the conduct occurring.
Mr Hooker asks us to give minimum weight to Dr Boyatzis' evidence and, in particular, minimum weight to the fact that he did not see the 4 millimetre laceration because the purpose of his examination was to look for major lacerations and a 4 millimetre laceration is not major. Because he had prejudged her, Mr Hooker contends Dr Boyatzis carried out a very superficial examination with a pre-existing mindset. On that basis, Mr Hooker says there is a strong likelihood that the injuries were already there.
Mr Hooker points out that the practitioner had both the motive and the opportunity to assault Ms CD in the way alleged. He would continue writing her scripts for Proladone, knowing that she would continue coming to him for the scripts, thereby building his power over her. On the other hand, he points out that there was no motive for Ms CD to go to SARC, the Medical Board, the police and ultimately to give evidence before the Tribunal. On her own admission, she went to numerous doctors, but she has not accused any of them of sexual assault.
With respect to the practitioner's evidence, Mr Hooker drew our attention to a number of inadequacies and inconsistencies. In particular, the practitioner was evasive and avoided answering questions and often did not directly address the issues put to him. For example, with respect to the letter from the Health Department, the following exchange took place between Mr Hooker and the practitioner (T: 71 73, 11/08/09).
Did you discuss any other form of treatment other than her taking medication at any time subsequently during 2007? --- I can't recall.
It would have been worthwhile, wouldn't it, rather than simply just lapsing into the habit of giving her a narcotic every time she lobbed up at your practice and complained of back pain? --- But this was the recommendation of the specialists at Charles Gairdner Hospital. Do you want me to go against their judgment?
When you say this was the recommendation, what's the 'this' that you're referring to? --- The treatment.
There's no treatment suggestion being put to you by anyone at Sir Charles Gairdner Hospital, is there? --- It was the recommendation of the Pain Management Clinic. In December, and I said this before, and I'll read it for the third time, 2006, 'for treatment of this patient in this manner'.
Yes, and that sentence is tied to the fact that Dr [Wu] held an authorisation to prescribe oxycodone tablets with limited dispensing. That's the obvious --- ? --- But you can't take a sentence of treatment out of a full paragraph. It doesn't exist.
No, I'm keeping it in the paragraph. I'm saying that sentence is explaining why it is that Dr [Wu] has got --- ? --- No, it's not, it says the recommendation of the Pain Management Clinic ---
'For treatment of this patient ---' ? --- Read it again and let's hear.
Yes, 'for treatment of this patient in this manner?' --- Correct.
That's right? --- Yes.
So you took that sentence to be a justification for you, separately to what Dr [Wu] is doing, to time after time --- ? --- I've got nothing to do with Dr [Wu]. This is a specialist clinic that gives an expert opinion. Do you want to argue with that? This is their opinion, I'm not arguing with that.
I'm not arguing with them, Dr Moffson? --- But you're arguing with me now.
I'm not arguing with you. I'm asking you whether you took the meaning of that sentence in that letter to be a justification to you in your treatment of this lady to time after time in the second half of 2007 give her another narcotic in addition to what she's getting already from Dr [Wu]? --- Yes. This is the treatment as proposed by them.
So was it your assessment in the second half of 2007 that your hands were tied? --- No, not at all.
Your hands weren't tied? --- No.
You didn't have to keep giving her prescriptions for Proladone at all? --- In fact, I don't have to see the patient if I don't want to. I can recuse myself.
But given that you are - and at no point did you recuse yourself, did you, Dr Moffson? You always saw her when she was booked in to see [you]? Yes, there was no reason to recuse myself. I believed that she had back pain, chronic back pain.
It was your choice and your choice only to continue prescribing her another form of narcotic, distinct to OxyContin, each time she came to see you in the second half of 2007? --- Yes, so did two of my other colleagues.
When you exercised that individual choice on each occasion that you saw her in the second half of 2007, your hands weren't tied by any recommendation of the Pain Management Clinic, were they? --- No, my hands were never tied, were never tied, by anyone.
You made your own assessment of what the treatment of Ms [CD] required, quite apart from what is in that letter of the Health Department of 29 May 2007? --- No, that letter forms part of the management.
Formed part of the management. So you took it into account? --- Yes.
But you weren't unduly influenced in any way by what the Health Department said? --- Well, I am influenced, but my hands are not tied. There's a difference in the semantics you're putting to me now.
If you feel I'm making semantic distinctions, you make that clear --- I make it clear, yes.
I don't want to be cross-examining you on the basis of any mere semantic distinction. --- Yes, let's keep it straight.
It was your choice on each occasion during the second half of 2007 to prescribe this lady a narcotic medication rather than pursue options other than medication? --- I don't think there were any other options. She was a non-surgical option.
She was a non-surgical option? --- Mm
Alternative forms of medicine work for some patients, don't they, Dr Moffson? --- Yes, as a general statement.
You didn't think of exploring that with Ms [CD]? --- I think this had been explored by the Pain Management Clinic in detail already.
Did you know that? --- I get a lot of letters from Pain Management Clinic, where all these patients have gone through the various departments at Charles Gairdner Hospital.
You didn't get a letter from them concerning Ms [CD], did you? --- No, except for that one letter.
Which wasn't from the Pain Management Clinic, it was from a delegate of the CEO of the Health Department? --- But they referred to the Pain Management Clinic. Surely, it's clear.
Did you speak to Dr Balasa during 2007 about your treatment of Ms [CD]? --- I can't remember whether I spoke to him.
Did you speak to Dr [Wu]? --- No.
Mr Hooker asked us to contrast the manner in which the practitioner gave his evidence with how Ms CD gave her evidence. He said Ms CD's evidence and manner was not 'bizarre' as contended by the practitioner's counsel if one approached her evidence without preconceptions about what a witness should be. He says that her demeanour was spontaneous and that 'the look in her eyes spoke volumes'. He said that Ms CD is a complex person who is not used to forums such as this Tribunal and that she was genuine in giving her evidence, with no airs and graces.

Practitioner's submissions

Mr Ley drew our attention to the relevant case law regarding definitions of 'improper' and 'infamous'. Mr Ley referred us to Owen J's definition of 'infamous' in Jemielita v The Medical Board of Western Australia (unreported, WASC; Library No 920584; 13 November 1992), that the conduct of the practitioner must be 'disgraceful or dishonourable'. That would seem to be uncontested and we accept it.
With respect to assessing credibility, Mr Ley said that we should look at the witnesses as people and their background; the manner in which they gave their evidence and the actual content of their evidence are all relevant. He made extensive submissions on credibility, which was appropriate in light of the allegations being based entirely on the evidence of Ms CD. He asked us to look at Ms CD's evidence in light of the witness' background, the manner in which it was given and the actual content. Mr Ley told us that if we do not accept Ms CD's evidence, then that is the end of the matter and we need consider the allegations no further. He noted that the onus of proof in these proceedings is on the applicant Board and the practitioner is not required to prove anything.
Mr Ley then went on to describe in detail Ms CD's background, focusing in particular on the more negative aspects of it. Mr Ley made much of Ms CD being a drug addict for 24 years and a doctorshopper who has in the past worked as a stripper and a prostitute. He referred to her manner of giving evidence as 'bizarre, that she showed no respect and her language and manner was totally inappropriate, particularly her crude asides'. He said she behaved as though she was at a social occasion. He said Ms CD articulated every emotion she was feeling as she felt it. She managed to contort herself in the witness box to show how things happened, despite having an injured back. She admitted to taking three dexamphetamine tablets before giving evidence. Mr Ley also contends that her oral evidence was contrary to her witness statement. He described her demeanour as highly dramatic. Mr Ley says the reason for going to the medical centre that she gives in her witness statement was different to her oral evidence, but we find this is not to be the case and that she mentioned both reasons (para 3 and para 4 of her witness statement). However, Mr Ley's other references to contrary statements are correct, particularly her reference to being touched in a 'sexual way' and referring to the oral sex as constituting that, and then later to what happened immediately following the alleged oral sex.
Mr Ley emphasised that Ms CD did not tell anyone immediately after either alleged incident and that she remained calm and displayed her usual personality traits.
On the other hand, Mr Ley refers to the practitioner in terms of the great service that he has provided to the community and that he did nothing to reflect adversely on his credibility. He says the practitioner made concessions contrary to his own interests which is what, Mr Ley submits, 'a truthful witness does'.
Mr Ley submits that Ms CD now believes passionately that the allegations occurred as she has described. He says Ms CD's 'grip on reality is tenuous at best'. Mr Ley contends that as a drug addict, Ms CD has deceived people for 24 years to get what she wants.
Ultimately, with respect to the first alleged incident, Ms CD's account is so 'unbelievable and ridiculous' that we should not accept it.
Equally, he says that we should not accept the allegations surrounding the second alleged incident because the conduct complained of is physically impossible, apart from everything else.
Mr Ley also draws our attention to the contention by Ms CD that she was scared of the practitioner after the first alleged incident and took friends with her to subsequent consultations. However, he points out that she was seeing numerous other doctors at the time and in fact, did not have to go and see the practitioner at all. He drew our attention to the reasons of Miller J in Hewett v Medical Board of Western Australia [2004] WASCA 170 in this regard.

Findings

The practitioner has put before us a picture of a complainant who is an ex-stripper, ex-prostitute junkie who would do anything so long as it resulted ultimately in obtaining narcotics. She is immoral as to how she gets them. But always upper most in her mind was the need to obtain opiates and it governed everything she did. On the other hand, the Board would have us believe that we have before us an oldfashioned, autocratic and controlling doctor who wanted to strengthen his power over the complainant, fully understanding her desire and physical needs for opiates and who believed that she would do anything for him, so long as he wrote her a script. She was the victim who would not report him or tell anyone about his little indiscretions, driven, we are to assume, by modern drugs.
The question is who do we believe and why? Ultimately, we must decide if either or both of the alleged incidents occurred.
The practitioner is not required to prove that the incidents did not occur. Rather, the Board must prove on the balance of probabilities that they did occur. We must be persuaded that on balance, either or both of the alleged incidents occurred; further, we must feel an actual persuasion that they occurred.
What evidence has the Board put before us so that we feel that actual persuasion as required by Briginshaw? We had the evidence of Ms CD which is to some extent corroborated, after the fact, by her mother and her pharmacist friend, Ms Hidy Chan, in that she told them that the assault occurred. Also unchallenged, is Ms CD's evidence that she told her friend Judy. She also told Dr Boyatzis at the Peel Health Campus and Dr Sluchniak at SARC. The practitioner casts some doubt on this evidence as being driven by a scheme to obtain opiates.
We have the evidence of Dr Sluchniak from SARC, but that is not particularly supportive of the Board's allegations. In fact, in parts it is contrary to Ms CD's story of what occurred. Also contrary to the allegations is the evidence of Dr Boyatzis that the injuries were not present when he examined Ms CD four hours prior to the SARC examination. However, the experts gave evidence that injury is often very minor or non-existent in sexual assault cases and the absence of the injuries when examined by Dr Boyatzis does not of itself mean that the sexual assault did not occur. However, it does reflect badly on Ms CD's credibility as a witness.
There are some inconsistencies in Ms CD's evidence, but generally her story remains constant. Also, there are inconsistencies in the practitioner's evidence but, again, he remains constant in his version of events.
We accept that the practitioner was at times evasive and even aggressive towards Mr Hooker during cross-examination. In our view, this does not display dishonesty, rather, it may be perceived as a degree of arrogance. The practitioner's reliance on the letter from the Health Department declining him an authority was far-fetched at best, and we do not accept it. The practitioner's patient notes were scant and generally not helpful. He put this down to being a 'one-finger slow typist' who found it difficult to type notes within the pressured time constraints imposed at the medical centre, but it is something that clearly needs attention. However, that does not detract from his credibility as a witness. It was not put to us and it would be unlikely that his notes were scant only with respect to Ms CD.
On balance, we are not persuaded to the requisite standard that the alleged incidents occurred. There is inadequate corroborative evidence particularly in documentary form supporting Ms CD's claims before us. To the contrary, there is documentary evidence and other expert evidence pointing to it not occurring. We accept Mr Hooker's submissions that it is vital that we not approach Ms CD's evidence with assumptions about a hypothetical complainant in sexual assault cases. We must not pre-judge Ms CD based on her past or her actions immediately following the alleged assault. We do not. However, Ms CD gave evidence of her drug addiction and its manifestations; it was not disputed that she is manipulative in order to get what she wants; she gave evidence of her doctorshopping and the stories or lies that she would tell to obtain opiates. She admits to taking six dexamphetamine on the first day before giving evidence and three on the second day. However, she took the dexamphetamine which were properly prescribed for her by her psychiatrist as a valid treatment for her ADHD. According to her medical records, the purpose of taking the dexamphetamine was to calm her and to focus her. In our view, she was far from calm or focused when she gave evidence. The practitioner said that in his view, Ms CD's performance was a 'dexamphetamine rant'. Ms CD was open in her evidence and honest in her appraisal of herself. She went offtrack easily and repeatedly; she made endless noises and ludicrous faces; she was dramatic and acted out various scenarios; she was endlessly repetitive - it seemed at times that she had forgotten what she had just told us. She was not an entirely convincing witness despite not wavering from her core allegations. She repeated them so often it was though she had convinced herself of them. She was relatively consistent in her story and she was, in her own way, earnest, but we have come to the view that she now passionately believes this story regardless of the truth. This is known as 'confabulation', being where people remember events that occurred some time ago and which have subsequently become contentious and they remember them in a way in which they would have liked them to have happened as distinct from the way in which they in fact happened.
Ms CD, in our view, suffers from confabulation in these proceedings. We do not know why this story was developed. It would be a reasonable conclusion to say that it may have begun as a new means of getting drugs, but we just do not know. The argument that she would not have allowed the process to come this far unless it was all true holds no weight with us. This story has become enmeshed in the life of Ms CD, a life in which we struggle to separate fact and fantasy, and where the complainant also seems to have lost sight of the difference. These allegations have a very serious impact on the practitioner which is why we need to feel an actual persuasion that they occurred. It is why, in our view, some stronger evidence is required to convince us that either or both the alleged incidents did, in fact, occur. We accept that it is difficult because there were no other witnesses present in the consultation room and therein lies a lesson for the practitioner. We accept that the complainant told her mother and her friend. But there is then inconsistency in that the complainant told SARC that she was bleeding heavily and Dr Nixon at SARC relayed that to Dr Boyatzis. That was the reason for Ms CD attending the Peel Health Campus. Yet she denies she was bleeding and she denies telling anyone that she was bleeding. And she denies it in a way that renders it a peripheral detail of little concern. There is the inconsistency regarding the extent of her physical injuries. Dr Sluchniak gave evidence that in the majority of cases of sexual assault there is no genital injury. And the experts, particularly Professor Hammond, said it would have been physically impossible for the practitioner to have assaulted Ms CD in the manner described. We accept that expert evidence. Professor Hammond gave his evidence without the knowledge of Ms CD's evidence that she clenched her sphincter muscles at the onslaught of the practitioner's fingers; this would have made the assault as described even more difficult, even more likely to be impossible.
Therefore, based on the expert evidence which does not support Ms CD's account, we do not accept that the second alleged incident occurred. We find that the first alleged incident also did not occur, but rather was made up in order to bolster the second alleged incident.

For these reasons, we do not accept Ms CD's evidence and we dismiss the Board's allegations against the practitioner.

Order

The application is dismissed.

I certify that this and the preceding [134] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT