Osteopathy Board of Australia v Caminiti (Occupational Discipline)
[2025] ACAT 37
•29 May 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
OSTEOPATHY BOARD OF AUSTRALIA v CAMINITI (Occupational Discipline) [2025] ACAT 37
OR 5/2024
Catchwords: OCCUPATIONAL DISCIPLINE – where complainant reported that respondent osteopath had digitally penetrated her whilst massaging her, without her consent – where respondent later accessed patient’s mobile telephone number, without her consent, and sent her a text message asking her not to disclose the sexual assault – whether respondent’s conduct breached code of conduct – whether respondent’s conduct constituted professional misconduct – appropriate determinations
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 9, Dictionary
Health Practitioner Regulation National Law (ACT) ss 3A, 5, 39, 41, 140, 141, 193, 195, 196
Health Practitioner Regulation National Law (ACT) Act 2010 s 8
Cases citedBriginshaw v Briginshaw (1938) 60 CLR 336
Council of the Law Society of the Australian Capital Territory v R (a pseudonym) [2025] ACAT 8
Chinese Medical Board v Zhou [2020] SACAT 23Dental Board of Australia v Pathmaperuma [2024] ACAT 49
Health Care Complaints Commission v Cain (No.2) [2017] NSWCATOD 171
Health Care Complaints Commission v Safi (No 4) [2017] NSWCATOD 102
Health Care Complaints Commission v Ng [2015] NSWCATOD 139Howard v Psychology Board of Australia [2018] ACAT 127
Hoyle v The Queen [2018] ACTCA 42
Medical Board of Australia v Bradshaw [2020] VCAT 584
Medical Board of Australia v CDA [2023] ACAT 64
Medical Board of Australia v Cukier [2017] VCAT 109
Medical Board of Australia v Gopal [2024] VCAT 380
Medical Board of Australia v Hmood [2023] VCAT 603
Medical Board of Australia v Jansz [2011] VCAT 1026
Medical Board of Australia v McClymont [2025] ACAT 32
Medical Board of Australia v Moschou [2021] SACAT 30
Nursing and Midwifery Board of Australia v Lakicevic (Corrected) (Review and Regulation) [2020] VCAT 2
Oshlack v Richmond River Council [1998] HCA 11
Osteopathy Board of Australia v Caminiti [2024] ACAT 72
Physiotherapy Board of Australia v Espedido (No 2) [2023] VCAT 1056
Stirling v Legal Services Commissioner [2013] VSCA 374
Tribunal:Presidential Member J Lucy
Date of Orders: 29 May 2025
Date of Reasons for Decision: 29 May 2025
Date of Publication: 5 June 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 5/2024
BETWEEN:
OSTEOPATHY BOARD OF AUSTRALIA
Applicant
AND:
DANIELE CAMINITI
Respondent
TRIBUNAL:Presidential Member J Lucy
DATE:29 May 2025
ORDER
The Tribunal orders that:
The disclosure of information which might enable the identification of the complainant in this matter is prohibited.
A non-party to the proceedings is prohibited from inspecting the tribunal’s file in this matter, without first obtaining the tribunal’s leave to do so.
The respondent has behaved in a way that constitutes professional misconduct.
The respondent is reprimanded for his conduct in touching a patient’s genital area and digitally penetrating the patient without clinical justification, for a sexual purpose.
The respondent is reprimanded for his conduct in accessing a patient’s clinical records to obtain her confidential personal information without consent and for breaching professional boundaries with the patient by contacting her for a non-clinical purpose.
The respondent’s registration is cancelled.
The respondent is disqualified from applying for registration as a registered health practitioner for a period of 7 years from the date of these orders.
7A.The respondent is prohibited from providing any health service to a female patient for a period of 7 years from the date of these orders.
The respondent is to pay the applicant’s costs, as agreed or assessed.
………………………………..
Presidential Member J Lucy
REASONS FOR DECISION
The respondent is an osteopath. One of his patients complained that the respondent had digitally penetrated her without her consent during a consultation. She also claimed that the respondent had later accessed her mobile telephone number, without her permission, and sent her a message asking her not to tell anyone about what he did. The Osteopathy Board of Australia (the Board) applied to the Tribunal for disciplinary action against the respondent.
The respondent left Australia shortly after the allegations against him were made and has been practising since that time in Italy. He did not participate in the tribunal proceedings.
I am comfortably satisfied that the allegations against the respondent have been substantiated. Given the seriousness of the respondent’s conduct, it is appropriate to reprimand him, to cancel his registration and to disqualify him from applying for registration as a registered health practitioner for a period of 7 years. I have made orders to that effect.
Background
The respondent, Mr Daniele Caminiti, is an Italian citizen. Mr Caminiti worked in Singapore as an osteopath before moving to Australia. He obtained provision registration with the Board in October 2021. In 2022, Mr Caminiti practised as an osteopath in Canberra.
Following a complaint about Mr Caminiti, the Board suspended Mr Caminiti’s registration on 11 May 2022.
On 28 March 2024, the Board referred a matter about Mr Caminiti to the Tribunal under section 193 of the Health Practitioner Regulation National Law (ACT) (National Law). The Board alleges that, in 2022, Mr Caminiti behaved in a way that constituted professional misconduct.
The Tribunal is satisfied, on the basis of the evidence provided by the Board, that Mr Caminiti is practising at two locations in Italy.
Following an application by the Board for substituted service orders, I made orders authorising the Board to serve the initiating application on Mr Caminiti by post to his practice addresses in Italy and by email.[1] I am satisfied that Mr Caminiti was served with the initiating application in accordance with those orders.
[1] Osteopathy Board of Australia v Caminiti [2024] ACAT 72
A hearing was held on 4 February 2025. The applicant was represented by counsel and solicitors and relied upon written submissions, affidavits of Shauna Roeger (a solicitor) with annexures, and books of documents.
Mr Caminiti did not take part in the proceedings.
Legal framework
The Board carries the burden of proof. The standard of proof is the normal civil standard: on the balance of probabilities. In the context of disciplinary proceedings, the standard is to be applied having regard to the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336. The Tribunal must be “comfortably satisfied” of the facts in issue.[2]
[2] Medical Board of Australia v Bradshaw [2020] VCAT 584 at [95]
A National Board is required to refer certain matters to a “responsible tribunal” (that is, ACAT).[3] Section 193 of the National Law provides:
193 Matters to be referred to responsible tribunal
(1) Subject to section 193A, a National Board must refer a matter about a registered health practitioner or student to a responsible tribunal if—
(a)for a registered health practitioner, the Board reasonably believes, based on a notification or for any other reason, the practitioner has behaved in a way that constitutes professional misconduct; or …
[3] Health Practitioner Regulation National Law (ACT) Act 2010, s 8
The term “professional misconduct” is defined in section 5 of the National Law as follows:
professional misconduct, of a registered health practitioner, includes—
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(c) conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
Section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides that a person may apply to the tribunal if an authorising law provides that the application may be made. An “authorising law” means, relevantly, a territory law that provides that an application may be made to the tribunal.[4] That is, it includes the National Law.
[4] ACAT Act, Dictionary
Section 39 of the National Law provides that a National Board may develop and approve codes and guidelines to provide guidance to the health practitioners it registers and about other matters relevant to the exercise of its functions. Such a code or guideline is admissible in proceedings under the National Law against a registered health practitioner as evidence of what constitutes appropriate professional conduct or practice for the health profession.[5]
[5] National Law, s 41
Under section 196(1) of the National Law, after hearing a matter about a registered health practitioner, a responsible tribunal may make a number of decisions. These include that the practitioner has behaved in a way that constitutes professional misconduct.[6]
[6] National Law, s 196(1)(b)(iii)
If the tribunal makes such a decision, it may then decide to do a number of other things, being cautioning or reprimanding the practitioner; imposing a condition on the practitioner’s registration; requiring the practitioner to pay a fine of up to $30,000; suspending the practitioner’s registration for a specified period; and cancelling the practitioner’s registration.[7] If the tribunal decides to cancel a person’s registration under the National Law, the tribunal may also decide to do one or more of the following:
[7] National Law, s 196(2)
(a)disqualify the person from applying for registration as a registered health practitioner for a specified period;
(b)prohibit the person, either permanently or for a stated period, from doing either or both of the following—
(i)providing any health service or a specified health service;
(ii)using any title or a specified title;
(c)impose restrictions, either permanently or for a stated period, on the provision of any health service or a specified health service by the person.[8]
Jurisdiction
[8] National Law, s 196(4)
I am satisfied that the Tribunal has jurisdiction to hear the matter despite Mr Caminiti’s residence in Italy. The entirety of the alleged conduct occurred in the Australian Capital Territory and ACAT is the responsible tribunal under the National Law.[9]
Interim application for non-publication orders
[9] See the discussion on jurisdiction in Osteopathy Board of Australia v Caminiti [2024] ACAT 72. For a decision as to a tribunal’s jurisdiction in comparable circumstances, see Medical Board of Australia v Gopal [2024] VCAT 380 at [19]
The Board sought orders under section 39 of the ACAT Act:
(a)limiting the inspection of the tribunal’s file in this matter to the parties to the proceeding; and
(b)prohibiting or restricting the disclosure, by publication or otherwise, of any information which might enable the identification of any person to whom an allegation relates, or any witness in this matter, except for the respondent.
Section 39 of the ACAT Act does not, on its terms, authorise the making of the orders sought. Section 39(2)(b) authorises the making of non-publication orders, but not general non-disclosure orders. Section 39(2)(c) authorises orders prohibiting the disclosure of evidence to parties only.
The tribunal also has implied incidental powers to limit the application of the open justice principle, where the Tribunal forms the view that the exercise of such a power is necessary in the interests of justice.[10] That includes a power to make an order prohibiting the disclosure of information which might enable the identification of an alleged victim of a sexual assault.
[10] Council of the Law Society of the Australian Capital Territory v R (a pseudonym) [2025] ACAT 8 at [18]
I am satisfied that it is in the interests of justice to make an order prohibiting the disclosure of information which might enable the identification of the complainant in this matter, who is the alleged victim of a sexual assault by Mr Caminiti. I will refer to her in these reasons as the Patient.
I also consider that it is in the interests of justice to make an order limiting the inspection of the tribunal’s file in this matter to the parties to the proceeding, to protect the complainant’s identity and the identity of other notifiers. However, that order should be subject to leave being granted to a non-party to inspect the file. That allows for the Tribunal to consider any application by a non-party for such inspection. The parties would be given an opportunity to respond to such an application, as a matter of procedural fairness.
Otherwise, the orders sought by the Board go beyond what is necessary in the interests of justice. An order prohibiting the disclosure of information identifying any witness would capture the identity of the applicant’s witness (a solicitor). Orders of narrower scope effectively achieve the objective of maintaining the privacy of the complainant, without unduly compromising the principle of open justice.
Allegations against Mr Caminiti
On 6 April 2022, an osteopath who had treated the Patient made a notification to the Board. He said that the Patient had informed him (on 4 April 2022) that, on 28 March 2022, Mr Caminiti entered her vagina with one or more digits during a consultation. He reported that the Patient described this as having a sexual motivation. He stated that she said she did not give informed consent for that to occur, but made it clear that she did not consent to this happening. The osteopath reported that Mr Caminiti then sent the Patient a text message from his personal mobile number, apologising for what he had done and asking the Patient not to tell anyone.
The clinical records made by Mr Caminiti regarding the Patient’s treatment on 28 March 2022 do not document any internal vaginal technique being administered, and do not document Mr Caminiti expressing any concerns about what occurred.
A photograph of the mobile phone message, sent from Mr Caminiti’s mobile number to the Patient on 4 April 2022, is in evidence. The message states that Mr Caminiti wants the Patient to know “how ashamed and sorry I feel for what happened.” It also states: “please don’t mention this to anyone, it could jeopardise my entire career, destroy my family.”
On 4 April 2022, Mr Caminiti’s employer wrote to him, stating that it had been made aware of serious allegations against him, and instructing him not to attend work, pending the completion of an investigation.
On 6 April 2022, a police report was made in relation to the incident.
On 7 April 2022, Mr Caminiti’s lawyers wrote to his employer on his behalf, asking for more particulars of the allegations and more time so he could obtain advice.
On the same day, Mr Caminiti’s employer wrote to him again, providing him with an opportunity to respond to the allegations that he massaged the Patient’s vagina and penetrated her vagina with his finger. It also asked him to respond to a report that, on 4 April 2022, he accessed the Patient’s file, without consent, to obtain her personal mobile number, then sent her the text referred to above.
On 8 April 2022, Mr Caminiti wrote to his employer, stating that he had decided to resign, on the basis that the way his employer had managed the allegations had undermined the trust and confidence he had in the employment relationship. He stated that he denied the allegations against him.
An email from a Border Force officer to AHPRA dated 20 June 2024 indicates that Mr Caminiti departed the country bound for Italy on 9 April 2022 and, as at 20 June 2024, had not returned to Australia.
On 14 April 2022, Mr Caminiti’s employer sent him a letter stating that it had terminated his employment.
On 26 April 2022, Mr Caminiti’s lawyers wrote to Mr Caminiti’s employer, informing them that Mr Caminiti had resigned on 8 April 2022, and stating that he disputed the finding of serious misconduct.
On 11 May 2022, the Board decided to take immediate action in respect of Mr Caminiti’s registration and suspended his registration.
On 12 October 2022, the Patient made a statement (the Statement) to the Australian Health Practitioner Regulation Agency (AHPRA).
In the Statement, the Patient stated that she attended the practice in which Mr Caminiti worked, initially seeing other practitioners. She was suffering from hip and sciatica pain and rheumatoid arthritis. The Patient stated that, during her first consultation with Mr Caminiti, he asked her to take off all her clothes and put on a robe, then he left the room. She took off her clothes, other than her underwear, and he massaged her hip and did acupuncture on her hip, glutes and left lower back. He started doing this with gloves, but removed them after about five minutes.
The Patient stated that, at the beginning of the second consultation, Mr Caminiti again asked her to take off all her clothes and put on a robe, then he left the room. Again, she took her clothes off but left her underwear on, then put a robe on. She stated that Mr Caminiti did not use a towel or gloves during the consultation. On this occasion, he massaged her inner thigh and under the underwear line. He also massaged her upper thigh and underwear line, which caused her say that she was not in pain there. The Patient stated that he did not respond. Mr Caminiti continued to massage on her underwear line, massaging closer and closer and then around her underwear near her vagina. He had oil on his hands.
For the third consultation, the Patient stated in the Statement that Mr Caminiti again asked the Patient to take off all her clothes and put on a robe, and she again left her underwear on. At first, Mr Caminiti asked the Patient to lie facing down and massaged her back. He then asked her to lie facing up, which she did. He massaged her legs then lifted her knees and put her in a position as if she were giving birth. Mr Caminiti massaged her legs with oil, slowing moving up her thigh, not wearing gloves. According to the Statement, he massaged her slowly with two hands in her inner groin, getting closer to her underwear line. The Patient told Mr Caminiti that she was not hurting there, but he did not respond. The Patient reported that Mr Caminiti then massaged her labia, before inserting his index finger into her vagina.
In the Statement, the Patient said she then jumped off the bed, saying “what are you doing?” Mr Caminiti apologised, saying he was really sorry. The Patient saw that Mr Caminiti’s penis was hard through his pants. The Patient reports that she was in shock and said, “it’s okay, I forgive you” and Mr Caminiti continued treatment, with her lying face down. He did acupuncture and adjusted her bones. Once he had finished, according to the Patient, Mr Caminiti left the room and the Patient got dressed, went to reception and paid the bill, made another appointment and left.
The Patient stated that she did not tell anyone, on that day, what had happened. She reported:
I kept replaying in my mind what happened, trying to make sense of it all. Every hour I was crying, I didn’t know who to tell, I was so scared and embarrassed. He was my practitioner and I trusted him.
The Patient also said, in the Statement, that she rang the clinic on the morning of her next appointment and told the receptionist that she did not want Mr Caminiti to touch her body again because he had inserted his finger into her vagina. She booked in to see another practitioner instead.
The Patient described bursting into tears at the beginning of her appointment, then telling the other practitioner what Mr Caminiti had done to her. She reported that, while she was in the treatment room with the other practitioner, Mr Caminiti tried to enter the room to talk to her, but the other practitioner blocked him from entering the room. She stated that Mr Caminiti asked whether he could talk to the Patient, and the other practitioner said he could not and shut the door.
On 23 January 2023, the osteopath to whom the Patient had made the disclosures on 4 April 2022 made a witness statement to AHPRA. In that statement, he confirmed that the Patient had disclosed to him that Mr Caminiti entered her vagina with his finger and that she had described this as having a sexual motivation. He stated that the Patient had told him she had not given informed consent for that to occur. The osteopath stated that the Patient was extremely distressed about what happened to her and was reluctant at first to confide in him or take the matter further. He said he advised her to contact the police and AHPRA. The osteopath also said that Mr Caminiti had knocked on the door asking to speak to the Patient during the consultation and he made it clear to Mr Caminiti that in no circumstances was he to enter the room and that he should not approach her thereafter.
On 25 October 2023, a regulatory adviser from AHPRA emailed the Patient, asking her to confirm whether she provided Mr Caminiti personally with her mobile phone number. The Patient responded by email on the same day, stating that she had never personally provided her mobile phone number to Mr Caminiti.
Application for disciplinary action
Ground 1 of the application for disciplinary application, described as “Failure to maintain professional boundaries with a patient,” is as follows:
1. On or about 28 March 2022 the Respondent, in the course of a consultation, touched [the Patient], including touching around her genital area, touching of her labia and penetrating her vagina with his finger:
1.1in a manner which was inappropriate and/or without clinical indication or justification; and/or
1.2for a sexual and/or inappropriate and/or non-clinical purpose.
Ground 2 of the application for disciplinary action, described as “Access to records and failure to maintain professional boundaries,” is as follows:
2. The Respondent accessed the clinical records of [the Patient] to obtain her confidential personal information without consent and breached professional boundaries with [the Patient] by contacting her for a non-clinical purpose.
Ground 1 – Failure to maintain professional boundaries with a patient
The Patient has made detailed allegations against Mr Caminiti in the Statement. Those allegations are described above.
The Patient’s allegations are credible on their face. It might seem strange that the Patient allowed Mr Caminiti to continue treating her after he had inserted his finger in her vagina, and that she booked another appointment with him immediately afterwards. However, this may be at least partly explained by her evidence that she was in shock.
There is a growing awareness that victims of sexual assault do not necessarily respond in the ways people assume or expect that they would respond to an assault. In some criminal trials, expert evidence is given as to the way victims of sexual assault typically behave, including that a victim of sexual violence may experience a “freeze response”.[11] No such evidence has been given in this case. However, to make an assumption, in the absence of expert evidence, that the Patient’s initial decision to continue treatment with Mr Caminiti is inconsistent with her having been sexually assaulted would be erroneous, just as it would be erroneous to make a finding that her behaviour was typical of sexual assault victims, in the absence of expert evidence to that effect. Accordingly, as there is no expert evidence on the topic, I have not treated the Patient’s decision to continue treatment, or her making of a subsequent appointment with Mr Caminiti, as being relevant to her credibility.
[11] See, for example, Hoyle v The Queen [2018] ACTCA 42 at [223]
The allegations made by the Patient are consistent with the disclosures she made to another osteopath on 4 April 2022, shortly after the alleged sexual assault by Mr Caminiti on 28 March 2022. They are also consistent with the police report of 6 April 2022. These reports were both made only days after the consultation on 28 March 2022, supporting the credibility of the allegations.
The circumstances that the osteopath to whom she made the disclosures considered her to be extremely distressed about what happened, and initially reluctant to confide in him, also support the conclusion that the allegations were not invented. That is consistent with her own evidence of her distress.
Although Mr Caminiti denied the allegations made by the Patient in a letter to his employer, the text message he sent to the Patient on 4 April 2022 is an admission of wrongdoing. Mr Caminiti has not provided any explanation of what he meant when he told the Patient that he wanted her to know “how ashamed and sorry I feel for what happened.” It is consistent with her report that he sexually assaulted her. The statement in the text message that disclosure of what he did “could jeopardise my entire career, destroy my family” is also consistent with him having sexually assaulted the Patient. The text message corroborates the Patient’s allegations.
The circumstance that Mr Caminiti attempted to enter the treating room, where the Patient was in the care of another osteopath, after the incident, and wanted to talk to her, gives further support to the allegations. This occurred after he had asked her, by text message, not to disclose what he had done. She had not replied. There is no apparent reason why Mr Caminiti would want to talk to the Patient whilst she was in a treating room with another practitioner, other than to ask her in person not to make a disclosure, and possibly to attempt to stop her from making a disclosure to the treating osteopath.
Mr Caminiti did not provide any evidence to contradict the allegations, nor did he challenge them by participating in the tribunal proceedings.
Having regard to those matters, I am comfortably satisfied that the allegations contained in the Statement, as summarised at paragraphs 37 to 44 above, are true.
I make the following findings of fact, being findings which are sought by the Board, on the basis of the Patient’s evidence in the Statement and other material which is before the Tribunal:
(a)On 28 March 2022 at around 11.00am, the Patient attended an osteopathy appointment with Mr Caminiti.
(b)The Patient removed her clothes except her underwear, and put on a robe.
(c)Mr Caminiti instructed the Patient to lay face down and massaged her back. Mr Caminiti then instructed the Patient to lay face up, and massaged and moved her legs using a twisting technique.
(d)Mr Caminiti lifted the Patient’s knees up and massaged her legs with oil, moving up her thigh. Mr Caminiti was not wearing gloves.
(e)Mr Caminiti massaged the Patient’s inner thigh, with both hands, moving closer to her underwear line. The Patient mentioned she was not hurting there and the Respondent did not respond.
(f)Mr Caminiti did not inform the Patient that he would need to move or touch under her underwear, or conduct an internal vaginal examination.
(g)Mr Caminiti did not seek or obtain consent from the Patient (either verbally or in writing) to move or touch under her underwear, or to conduct an internal examination.
(h)Mr Caminiti then massaged the Patient’s labia, pulling it out with his fingers, and lifted the Patient’s underwear up and inserted his finger into her vagina.
(i)The Patient questioned what Mr Caminiti was doing and he apologised. Mr Caminiti was wearing work cargo pants and had an erect penis as he walked backwards. The Patient stated that she forgave Mr Caminiti and then he continued treatment by doing acupuncture and adjusting the Patient’s bones, without speaking.
(j)Mr Caminiti did not inform the Patient of the process for making a complaint or referring the Patient to another practitioner. When treatment concluded, Mr Caminiti left the room and the Patient quickly dressed herself, paid the bill at reception and left the practice.
Expert opinion
The Board provided the Tribunal with an “Independent Opinion Report”, dated 4 December 2024, by Kevin James, registered Osteopath. Mr James is a Senior Osteopath at Clinical Supervisor at Balance Health Phillip Island. Since 2016, he has held the position of Clinical Educator / Industry Practitioner at RMIT University, teaching undergraduate osteopath students. He has been a clinical supervisor, supervising final year students in clinical placement, since 2022. Mr James is involved in a number of professional bodies concerned with research and practice.
In his report, Mr James provided the opinion that the internal vaginal technique, reported by the Patient, was not clinically indicated or justified. He expressed the view that internal vaginal techniques were occasionally used to treat lower back pain after exhausting conservative treatment alternatives. However, he stated that it was crucial to obtain a thorough case history, clinical justification and informed consent from the patient first. In Mr James’s opinion, when proposing an internal vaginal technique, practitioners should ensure that they provide patients with a thorough explanation of the procedure, including the specific steps involved and the rational for the examination. If the treatment is performed, gloves should be worn. Further, verbal consent should generally be documented within clinical records prior to commencing the procedure.
I accept Mr James’s evidence that there was no clinical indication or justification for Mr Caminiti using an internal vaginal treatment technique on the Patient, given her presenting concerns.
I also accept his evidence that Mr Caminiti’s clinical records regarding the Patient’s treatment on 28 March 2022 do not accurately reflect the treatment provided to her in that they do not document any internal vaginal technique being administered, and they do not include any record of the concerns that the Patient expressed, or any record of Mr Caminiti’s apology to the Patient.
Code of Conduct and Guidelines
The Board’s Code of Conduct (March 2014) (Code of Conduct) states that it has been developed under section 39 of the National Law. I accept that that is so and that the Code of Conduct is evidence of what constitutes appropriate professional conduct or practice for the health profession of osteopathy.[12]
[12] National Law, s 41
Paragraph 8.1 of the Code of Conduct provides that, in professional life, practitioners must display a standard of behaviour that warrants the trust and respect of the community, and that that includes observing and practising the principles of ethical conduct.
Paragraph 8.2 of the Code of Conduct provides that good practice involves maintaining professional boundaries, and never using a professional position to establish or pursue a sexual, exploitative or otherwise inappropriate relationship with anybody under a practitioner’s care.
I am satisfied that Mr Caminiti’s conduct in inserting his finger into the Patient’s vagina was a breach of paragraphs 8.1 and 8.2 of the Code of Conduct. It was unethical to touch a patient’s vagina without her informed consent, and with no clinical justification. I am satisfied that Mr Caminiti did this for a sexual purpose, in circumstances where the Patient saw that he had an erection immediately afterwards and there was no clinical justification for his conduct.
The Board’s “Sexual and professional boundaries: Guidelines for Osteopaths” (April 2013) (the Guidelines) state that they were developed under section 39 of the National Law. I accept that that is the case and that the Guidelines are evidence of what constitutes appropriate professional conduct or practice for the health profession of osteopathy.[13]
[13] National Law, s 41
Part 6 of the Guidelines is headed “Professional standards in examinations and treatment.” In this part, the Guidelines relevantly provide:
Good osteopathic practice in conducting physical examinations includes:
· only providing services for which the practitioner is competent and on the basis of a sound evidence informed clinical rationale
· explaining to the patient what is to occur in the treatment and providing an opportunity for the patient to ask questions. This is particularly important when treating … intimate areas
· gaining the consent of the patient to conduct an examination and treatment…
· be sensitive to any sign the patient has withdrawn consent
· not continuing with an examination when consent is uncertain or where consent has been refused or withdrawn
· keeping appropriate records of intimate area contact
· …
· using examination gloves when conducting internal examination or treatment…
I find that Mr Caminiti’s treatment of the Patient on 28 March 2022 was not consistent with good osteopathic practice under the Guidelines. There was no clinical rationale for the intimate area contact, he did not explain to the Patient what was proposed to occur, he did not gain her consent or stop when she first indicated she was not comfortable, he kept no records of intimate area contact and he did not use examination gloves.
Conclusion on Ground 1
For the reasons given above, the Board has established a factual basis for the allegations in Ground 1. I am comfortably satisfied that Mr Caminiti failed to maintain professional boundaries with a patient in the ways specified in that ground.
Ground 2 - Access to records and failure to maintain professional boundaries
By Ground 2, the Board alleges that Mr Caminiti accessed the Patient’s clinical records to obtain her confidential personal information without consent and breached professional boundaries with the Patient by contacting her for a non-clinical purpose.
I am comfortably satisfied, on the evidence provided to the Tribunal by the Board, that the Board has established the following facts:
(a)On 4 April 2022, the Patient called the practice to cancel her appointment with Mr Caminiti and was booked in for an alternative appointment with another practitioner that day.
(b)The Patient did not at any time provide Mr Caminiti with her mobile phone number.
(c)Sometime on or around 4 April 2022, Mr Caminiti accessed and retrieved the Patient’s mobile phone number from her confidential patient record held by the practice.
(d)On Monday, 4 April 2022 at approximately 10.28 am, Mr Caminiti sent a SMS text message from his personal mobile phone number to the Patient’s personal mobile phone number, which stated:
“Hello [name of patient], its Daniele here. I am sorry if I text you personally. I wanted to do so since last week. I want you to know how ashamed and sorry I feel for what happened. I am not that kind of person, I have never done anything like that before. I feel very much sorry and if I only could I would rewind and never do that. I am not expecting you to come and see me again, but please don’t mention this to anyone, it could jeopardise my entire career, destroy my family. I am very very sorry and I hope inside your heart you can forgive what I did. You are a very nice person and I hope you will understand how bad I feel for that. I will not contact you anymore. This was just to let you know my feelings. Take good care and all the best. Daniele.”
(e)The Patient did not respond to the text message.
(f)Later on 4 April 2022, the Patient attended an appointment at the practice with another practitioner. During the consultation Mr Caminiti tried to enter the treatment room and tried to speak to the Patient. The other practitioner prevented Mr Caminiti from entering.
I find, as the Board submits, that Mr Caminiti’s conduct in accessing the Patient’s mobile telephone number without her consent and messaging her on it for a private purpose, which included asking her not to disclose his conduct to others, was inconsistent with the following paragraphs of the Code of Conduct:
(a)Paragraph 1.2, which provides practitioners must be ethical and trustworthy. That paragraph also provides that patients or clients trust practitioners because they believe that, in addition to being competent, practitioners will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. It states that patients or clients also rely on practitioners to protect their confidentiality.
(b)Paragraph 3.4, which provides that practitioners have ethical and legal obligations to protect the privacy of people requiring and receiving care. It also provides that patients or clients have a right to expect that practitioners and their staff will hold information about them in confidence.
(c)Paragraph 8.1, which provides that in professional life, practitioners must display a standard of behaviour that warrants the trust and respect of the community. This includes observing and practising the principles of ethical conduct.
(d)Paragraph 8.2, which provides that good practice involves maintaining professional boundaries.
I am comfortably satisfied that the Board has established the allegations in Ground 2.
Characterisation of the conduct
The Board submits that the Tribunal should make a finding that Mr Caminiti engaged in:
(a)professional misconduct within the meaning of paragraphs (a) and (c) of the definition in section 5 of the National Law (ground 1); and
(b)professional misconduct within the meaning of paragraph (a) of the definition in section 5 of the National Law (ground 2).
The conduct the subject of Ground 1, being serious sexual misconduct, falls substantially below the standard reasonably expected of a practitioner of equivalent training or experience as Mr Caminiti, within paragraph (a) of the definition of “professional misconduct.” It is also conduct which is inconsistent with Mr Caminiti being a fit and proper person to hold registration in the profession, within paragraph (c) of the definition of “professional misconduct”.
As the Board submits, the conduct the subject of Ground 2 also warrants a finding of professional misconduct. I accept the Board’s submission that, while not all circumstances of misuse of patient information and breaches of patient boundaries necessarily amount to professional misconduct, this breach is particularly egregious in that it flows from the conduct in Ground 1. Mr Caminiti had the explicit goal of discouraging the Patient from reporting the incident on 28 March 2022.
Registered health practitioners are mandatory reporters under the National Law. A registered health practitioner who, in the course of practising his or her profession, forms a reasonable belief that another registered health practitioner has behaved in a way that constitutes notifiable conduct, must notify the National Agency of that conduct.[14] “Notifiable conduct” includes engaging in sexual misconduct in connection with the practice of the practitioner’s profession.[15]
[14] National Law, ss 141(1) and (2)
[15] National Law, s 140
Mr Caminiti’s conduct in attempting to suppress the disclosure of his own notifiable conduct is contrary to the purpose of the mandatory notification provisions, even though they did not apply to him, on their terms, in that situation. It was also antithetical to the main guiding principle of the national registration and accreditation scheme, being that protection of the public and public confidence in the safety of services provided by registered health practitioners and students are paramount.[16]
[16] National Law, s 3A
I find that Mr Caminiti’s conduct in obtaining the Patient’s personal contact details and contacting her for a non-clinical purpose, in the circumstances of this case, falls substantially below the standard reasonably expected of a practitioner of equivalent training or experience as Mr Caminiti, within paragraph (a) of the definition of “professional misconduct”.
For these reasons, I have decided, under section 196(1)(b)(iii) of the National Law, that in relation to the conduct the subject of Grounds 1 and 2 of the application for disciplinary action, Mr Caminiti has behaved in a way that constitutes professional misconduct.
Determinations
The purpose of determinations is protective. As Presidential Member McCarthy observed in Dental Board of Australia v Pathmaperuma [2024] ACAT 49 at [23], the law relating to the making of determinations was extensively considered in Medical Board of Australia v Jansz.[17] It may be summarised as follows:
[17] [2011] VCAT 1026 at [358]-[373]
(a)the purpose of the imposition of determinations is to protect the public;
(b)determinations are intended to maintain proper ethical and professional standards for the protection of the public and also for the protection of the profession in the sense of maintaining stature and integrity in the eyes of the public;
(c)determinations should in no way be punitive;
(d)the objectives of determinations can be achieved by specific deterrence, that is, the deterrence of the person concerned from further inappropriate conduct; by general deterrence, that is, the deterrence of other practitioners minded to conduct themselves similarly; and by facilitation of rehabilitation on the part of the practitioner;
(e)personal matters such as shame, personal ordeal, and financial difficulty are of little relevance save insofar as they contribute to the specific deterrence of the practitioner;
(f)the likelihood of recidivism, or, put another way, an assessment of the ongoing risk posed by the practitioner, should be central to the imposition of a determination;
(g)the degree to which the practitioner has acquired insight into his or her conduct is relevant to the assessment of the continuing risk posed by the practitioner;
(h)insight can include as an understanding of the nature of the conduct, an acceptance that the conduct was wrong, an appreciation of why the practitioner engaged in that conduct;
(i)empathy with the consequences, and/or a willingness to take measures to identify risk factors and to do what is necessary to avoid further transgressions; and
(j)any form of official censure is of consequence. It has been observed by the Courts that a reprimand is a serious matter for a professional person and should not be considered a “slap over the wrist”.[18]
[18] Dental Board of Australia v Pathmaperuma [2024] ACAT 49 at [23]
Those considerations are not exhaustive.
I have decided to take a global approach to determinations, by imposing determinations in response to the conduct the subject of both grounds, considered together. This is appropriate as the conduct the subject of each ground is so closely connected, as to be “inextricably interwoven”.[19]
[19] Stirling v Legal Services Commissioner [2013] VSCA 374 at [72] and [75]
I accept the Board’s submission that, if proven to the criminal standard, the conduct the subject of ground 1 could have constituted the criminal offence of sexual assault. Further, Mr Caminiti’s conduct in accessing and misusing the Patient’s personal details amounts to a gross breach of trust.
Mr Caminiti did not engage with APHRA’s investigation, nor with the tribunal proceedings. Although he apologised to the Patient, this apology was followed by an inappropriate request that she keep his conduct secret. I accept the Board’s submission that Mr Caminiti’s text message to the Patient should not be taken as a genuine expression of remorse or insight as it was self-serving and sent for the purpose of discouraging a report.
Mr Caminiti’s conduct has the capacity to significantly erode trust in the profession, particularly among female and vulnerable patients.
It is appropriate to reprimand Mr Caminiti for his conduct. A reprimand indicates to the public, patients and other practitioners that the standards expected of a practitioner have not been met and that the practitioner has been censured.[20]
[20] Nursing and Midwifery Board of Australia v Lakicevic (Corrected) (Review and Regulation) [2020] VCAT 2 at [42]
I am also satisfied that cancellation of Mr Caminiti’s registration is an appropriate determination in this matter, given that the conduct the subject of Ground 1 amounts to serious sexual misconduct, in relation to which Mr Caminiti has not shown any genuine insight or remorse. On the contrary, he has left the country and continued to practise elsewhere, and has not taken part in the disciplinary process. He also denied the allegations against him to his employer.
The Board submits, and I accept, that disqualifying Mr Caminiti from applying for registration for a lengthy period in the range of 5 – 8 years would serve the functions of both specific and general deterrence. The Board submits, and I accept, that this would serve a protective function for the public, in circumstances where Mr Caminiti has provided no evidence of insight, remorse or rehabilitation, and therefore there may be a significant risk of him engaging in further misconduct were he to return to Australia and seek to resume practice as an osteopath.
It is useful to refer to some comparable cases in which practitioners have been disqualified for a period of time from applying for registration.
In Pharmacy Board of Australia v Tan [2016] VCAT 1653, a pharmacist sexually assaulted his victim under the pretext of needing to inspect a rash for which she had been prescribed treatment. After the incident, he attempted to leave the country and he attempted to persuade others not to notify the Board. He was convicted of rape and sentenced to six months’ imprisonment and a 3 year community corrections order. The tribunal accepted he regretted and was remorseful for his conduct. He was disqualified for 4 years, the tribunal noting that he was relatively young and if he could be rehabilitated, it may be in the public interest for him to return to practice.
In Medical Board of Australia v Cukier [2017] VCAT 109, Dr Cukier engaged in inappropriate behaviour, including physical conduct of a sexual nature, in relation to Patient A, during a medical consultation at Dr Cukier’s place of practice. He also misused his position to access Patient A’s personal information, including her telephone number and home address rang and spoke to her including asking her not to tell anyone what happened and went to her home. He also engaged in conduct that was inappropriate in that it was unwanted physical contact and of a sexual nature with Patient B, and accessed and misused Patient B’s personal information, placing pressure on her not to complain about his conduct.
The tribunal imposed a period of 18 months disqualification from re-applying for registration. It noted:[21]
In fixing that period, we have taken into account Dr Cukier’s cooperation with the Board in this matter and given him credit for having saved the complainants from attending; those matters reduce the period of disqualification which would otherwise have been imposed.
[21] [2017] VCAT 109 at [123]
In Health Care Complaints Commission v Safi (No 4) [2017] NSWCATOD 102, the practitioner rubbed the victim’s clitoris for 1-2 minutes and her vaginal opening for 2 minutes during a vaginal examination, followed by him hugging and kissing her at the end of the consultation. He was acquitted in the criminal proceedings. The tribunal found that conduct was proven on the balance of probabilities. The tribunal cancelled his registration and disqualified him for 18 months, as the tribunal lacked substantive information concerning insight, contrition and remorse.
In Chinese Medical Board v Zhou [2020] SACAT 23, a registered Chinese Medicine Practitioner was convicted of rape after he digitally penetrated a patient whilst giving her a massage. The practitioner denied the allegations and did not demonstrate any insight or remorse. He was disqualified from applying for registration for a period of 15 years, backdated to the date of the hearing.
In Medical Board of Australia v Gopal [2024] VCAT 380, a general practitioner was charged and convicted of raping two patients (digitally) and was sentenced to four years imprisonment with a non-parole period of 21 months. He also inappropriately examined the breasts and nipples of a third patient. The practitioner did not engage with the proceedings and returned to India after completing his sentence. The tribunal cancelled his registration and disqualified him from applying for registration for a period of 15 years.
These cases and others to which the Board referred me[22] provide some guidance as to the length of disqualification imposed in other cases, although there are significant differences in the length of the period for which practitioners, found to have sexually assaulted patients, have been disqualified from applying for registration. Ultimately the determination in each case must be made according to its particular circumstances, having regard to the objectives of protecting the public, and of providing for adequate deterrence.
[22] Other cases to which the Board referred include Health Care Complaints Commission v Ng [2015] NSWCATOD 139 (digital penetration of victim; 18 months); Medical Board of Australia v Moschou [2021] SACAT 30 (vaginal examination without informed consent, permanent prohibition); Physiotherapy Board of Australia v Espedido (No 2) [2023] VCAT 1056 (touching of genitals without clinical justification, 6 years); Medical Board of Australia v Hmood [2023] VCAT 603 (unnecessary physical examinations for a sexual purpose; 8 years).
Mr Caminiti’s conduct was very serious. It caused a significant amount of distress to his victim. Although he apologised to her, this was followed by a request that she conceal his misconduct. Mr Caminiti denied the allegations when his employer put them to him and did not participate in the AHPRA investigation or the tribunal proceedings. A significant period of disqualification from applying for registration is appropriate in circumstances where there is no evidence that Mr Caminiti is remorseful or that he has any insight into his behaviour.
The conduct occurred just over three years ago and Mr Caminiti’s registration has been suspended since that time, due to the Board’s immediate action decision. Having regard to the period of time for which he has already been suspended, I consider that a disqualification period of seven years is appropriate. That recognises the seriousness of his conduct, whilst also allowing for the possibility of insight and rehabilitation, noting that the conduct occurred very early in Mr Caminiti’s career.
Costs
The Board sought its costs of the application.
Section 195 of the National Law provides that the Tribunal may make any order about costs it considers appropriate for the proceedings. The general principle is that costs follow the event.[23] The presumption that the successful party in proceedings will receive their costs is generally displaced only in circumstances where there has been some disentitling conduct by the successful party.[24]
[23] Medical Board of Australia v CDA [2023] ACAT 64 at [19]; Medical Board of Australia v McClymont [2025] ACAT 32 at [125]-[131] and Howard v Psychology Board of Australia [2018] ACAT 127 at [22]
[24] Medical Board of Australia v CDA (Occupational Discipline) [2023] ACAT 64 at [20]; Health Care Complaints Commission v Cain (No.2) [2017] NSWCATOD 171 at [32] (albeit in relation to a different costs provision); Medical Board of Australia v McClymont [2025] ACAT 32 at [3], [131]-[136]; Oshlack v Richmond River Council [1998] HCA 11 at [40]
There has been no disentitling conduct on the Board’s part in this matter. As the Board successfully sought determinations against Mr Caminiti, it is appropriate that he be ordered to pay the Board’s costs in this proceeding, pursuant to section 195 of the National Law.
………………………………..
Presidential Member J Lucy
| Date of hearing: | 4 February 2025 |
| Counsel for the Applicant: | P Bindon |
| Solicitors for the Applicant: | Australian Government Solicitor |
| Respondent: | No appearance |
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