Physiotherapy Board of Australia v Lazarus - [2014] QCAT 477

CITATION:

Physiotherapy Board of Australia v Lazarus [2014] QCAT 477

PARTIES:	Physiotherapy Board of Australia (Applicant/Appellant)
v
Samuel Lazarus (Respondent)

APPLICATION NUMBER:

OCR250-11

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

7 May 2013

HEARD AT:

Brisbane

DECISION OF:

Judge Alexander Horneman-Wren SC, Deputy President
Assisted by:
Mr Stephen Boyd
Ms Mara Bennett
Mr Michael Yau

DELIVERED ON:

24 September 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The referral is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – PHYSIOTHERAPISTS – where it is alleged the respondent’s clinical conduct was not of the standard expected of a physiotherapists – where it is alleged the respondent engaged in sexual misconduct – where complaints arose from four consultations with one patient – where the complainant recorded several accounts of what occurred – where the respondent recorded an account of the consultations in his notes – whether grounds for disciplinary proceedings have been established

Health Ombudsman Act 2013 (Qld), s 314, s 321
Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld), s 124(1)(a)
Briginshaw v Briginshaw (1938) 60 CLR 336
J McPhee and Son (Aust) Pty Ltd v Australia Competition and Consumer Commission (2000) 172 ALR 532
Palmer v R (1998) CLR 1
R v Uhrig (Unreported, Court of Criminal Appeal (NSW); 24 October 1996)
Ramsay v Watson (1961) 108 CLR 642
Vissenga v Medical Practitioner’s Board of Victoria [2004] VCAT 1044

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms J Farr, instructed by Minter Ellison Lawyers

RESPONDENT:

Mr G Deihm SC, instructed by Corrs Chambers Westgarth

REASONS FOR DECISION

The Physiotherapy Board of Australia alleges that the respondent, Samuel Moses Lazarus, has behaved in ways that constitute unsatisfactory professional conduct pursuant to s 124(1)(a) of the Health Practitioners (Disciplinary Proceedings) Act 1999 (Qld) (‘Disciplinary Proceedings Act’).[1] The Board alleges that Mr Lazarus has engaged in:
(i)Professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant by the public or the registrant’s professional peers;
(ii)Professional conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care, in the practice of the registrant’s profession;
(iii)Infamous conduct in a professional respect;
(iv)Misconduct in a professional respect;
(v)Conduct discreditable to the registrant’s profession; and/or
(vi)Other improper or unethical conduct.[2]
[1]At the time of the commencement of the proceedings the Disciplinary Proceedings Act was called the Health Practitioners (Professional Standards) Act 1999 (Qld) (‘Professional Standards Act’). Its name was changed by the Health Practitioner Registration and Other Legislation Amendment Act 2013 (Qld), s 23. The Disciplinary Proceedings Act was repealed on 1 July 2014 by operation of s 321 of the Health Ombudsman Act 2013 (Qld) which commenced operation on that day. By operation of s 314 of the Health Ombudsman Act 2013 (Qld) QCAT is able to decide this matter under the Disciplinary Proceedings Act as if that Act had not been repealed.
[2]These allegations reflect the conduct set out in paragraphs (a), (b), (c), (d), (e) and (i) of the definition of unsatisfactory professional conduct in the dictionary contained in the schedule to the Disciplinary Proceedings Act.
The alleged unsatisfactory professional conduct stems from four treatment consultations provided by Mr Lazarus to a patient in June 2009. In respect of each of the four consultations the Board alleges that Mr Lazarus’s documentation of the consultation, his assessment of the patient, and his clinical reasoning and treatment of the patient were inadequate and/or not to the standard that could be expected of someone in the profession of a physiotherapist. These matters can be conveniently referred to as complaints about clinical conduct.
The Board further alleges that in respect of each of the last three consultations Mr Lazarus engaged in what might be conveniently described as sexual misconduct.

Mr Lazarus

Mr Lazarus is the Director of Physiotherapy at the Mt Isa Hospital. He took up that position in 2008. He attained his undergraduate qualifications in physiotherapy from the University of Health Sciences in Bangalore in 1999. Upon graduating he worked at the Bangalore Baptist Hospital.
He migrated to Australia in 2003 and commenced work as a technical assistant. He sat the examinations prescribed by the Australian Examining Council for overseas Physiotherapists in 2004. He passed those examinations at his first attempt. He passed his practical examination in 2005. Prior to sitting that practical examination he worked at the Shoalhaven District Hospital in Nowra, New South Wales. After passing the practical examination he moved to Adelaide, South Australia, where he worked for the Department of Disability until taking up his appointment at Mt Isa Hospital.

The Patient’s Referral to Mr Lazarus

The patient was referred to Mr Lazarus, as the Director of Physiotherapy at the Mt Isa Hospital, by her general practitioner. The referral letter, dated 1 May 2009, sought a review of the patient who had dislocated the patella of her right knee while walking on uneven ground. An apparent weakness around the medial collateral ligament was noted. The Doctor felt there were indications for strengthening exercises.
Separately, the Doctor also noted that the patient suffered from scoliosis of her cervical spine which possibly was giving her referred pain to the left shoulder. The Doctor felt there were indications for an ultrasound of that shoulder joint.

Sexual Misconduct

The First Consultation

The patient first consulted with Mr Lazarus at the outpatients’ physiotherapy clinic at the hospital on 2 June 2009. In her evidence, the patient referred to Mr Lazarus having treated her back, legs, shoulders and knees on that occasion. She says that she never asked Mr Lazarus to treat her for any conditions other than those for which she had been referred to him.
Notwithstanding the matters for which she was referred, at the first consultation Mr Lazarus took a history from her. The Peripheral Assessment Form records, under the heading ‘Conditions/Request’, ‘right knee post patella dislocation, lower back pain, neck pain, shoulder pain’.
The patient’s current history is recorded as her having dislocated her right patella while walking along an uneven surface. It was reduced by a friend and iced. More recently she had injured her left knee, a week prior to the consultation, when she slipped whilst dancing. Quite obviously, that more recent injury was sustained subsequent to the referral by her GP. She was recorded as having reported lower back pain and sore shoulders.
Under the heading ‘Past History’ she was recorded as having reported falling off the back of a 4 wheel drive and hurting her back in 2006. She was incontinent at times and had degenerative L4, L5 and S1 discs.
Under ‘General Health’ she was recorded as having lower back pain and neck pain.
Under ‘Observations’ a scoliosis of the left thoracolumbar spine was noted.
The following notations were also recorded.
Under the heading ‘Swelling/Muscle Wasting’ was the notation ‘Traps – L+R’.
Under ‘Palpation’:
TOP – Cx Spine – Lx Spine, L₄ – S₁
Ant’ Quad’
Hams’ – tight
Glutes – tight
ITB - tight
Under ‘Quick Tests’:
SLR R 95^O L 100^O
DTR
R Knee ↓↓ - Sluggish
Mr Lazarus’s analysis and diagnosis was recorded as lower back pain due to posture, scoliosis and a weak core.
His treatment plan included stretching of the lower limbs, soft tissue massage of the ‘Glut, Hams, ITB, Quads’, the provision of a home exercise program and review after two weeks.
In evidence, Mr Lazarus said that his practice in accordance with his training was to treat the patient, not the referral letter. This was the purpose of obtaining a detailed history of the patient, including the present complaints.
Mr Lazarus said that within the hospital physiotherapy department 30 minutes were allocated to initial consultations with 20 minutes being allocated to subsequent consultations.

The Second Consultation

The second consultation occurred on 10 June 2009. Unlike the first consultation during which the matters to which I have referred were recorded in the Peripheral Assessment Form, further consultations are recorded in a ‘Physiotherapy Continuation Record’. The proforma record has provision only for the date of the consultation and ‘Assessment and Treatment’.
The patient’s account of what occurred in this consultation, and the two subsequent, is recorded in three documents which are in evidence. The first is a file note made by a person within the, then, Physiotherapists Board of Queensland to whom the patient spoke when she complained about the conduct of Mr Lazarus. This occurred on 26 June 2009; the day following the last consultation. In her affidavit the patient confirms that the file note is ‘generally consistent’ with her recollection of the conversation. The only exception which she notes is that the file note refers to her having stated that she was sexually assaulted by Mr Lazarus, whereas she does not recall referring to his conduct using that expression.
In respect of the second consultation the file note records:
Also, the second time [the patient] saw him (she cannot remember the date), she was getting her back and shoulders massaged and he went under knickers (at the back) to work on her gluteus maximus. She did not say anything at that consult but she was very uncomfortable. She recalls that she told him that she had her periods on that day (she called it her “ladies days”) because that inflames her back. R never told [the patient] what he was doing or why. There was no drapes over her body for privacy and he did not wear gloves.
The second document in which the patient’s account of the consultations is recorded is a document dated 26 June 2009 which she emailed to the Board on that date. It was prepared by her with the assistance of her boyfriend. The person with whom she had spoken to at the Board had requested that she provide a written account of her treatment experiences. She had commenced preparing such a document on 25 June 2009, the day of her final consultation, but she added further detail on 26 June 2009 before sending it to the Board.
In respect of the second consultation she said:
On the second session Sam was kneading knots out of my bottom, and he went beneath my underwear. He did get close to my genitals but didn’t touch them on this occasion.
The third document which records the patient’s account is a statement taken by Police on 27 June 2009. She had, by then, made a criminal complaint against Mr Lazarus. She deposes to the statement having been prepared over approximately eight hours at the police station. A redacted copy of the statement was exhibited to her affidavit. She deposes to that being an accurate account of the relevant events. She says that in preparing that statement she was quite calm and able to recall things much more clearly and in an ordered fashion. By contrast, she says that during her initial complaint to the Board, and in preparing her initial written account, she was still quite emotional. For the purposes of the proceedings she adopted the police statement saying that whilst she still had an independent recollection of events, it was not to the same level of detail as recorded in the police statement.
Of the second consultation she said in that statement:
The following week I had my second appointment. I am not sure of the date but I think it was the 10th of June 2009 at 3pm. I had an appointment card with this date on it. At the time of my appointment I was wearing a pair of tights, and denim shorts over the top and I can’t remember what sort of top I was wearing. I usually wear singlets or jumpers with my outfits. When I got to my appointment I entered one of the treatment rooms which had a treatment bed in it that was like a double sized massage table with a hole in the top of it.
I lay down on the bed on my tummy in full clothing. All of my consultations with Sam have been in full clothing.
Sam began to massage my lower back and then slid his hands into my shorts from the waist and under my underwear and tights and was kneading knots out of my bottom. By this I mean my buttocks area, and also under my buttocks cheek and then just inside my inner thigh area. Sam did that for around 5 to 10 minutes.
It hurt when he did it but I felt that was normal because it usually hurts when I get massaged in this area of my glutes. I remember I instantly felt uncomfortable when he put his hands inside my underwear because he didn’t warn me first and didn’t say anything at all while he did it. I remember my butt cheeks were clenched because I felt quite uncomfortable. The reason I felt uncomfortable was because I had not been asked before he put his hands in my pants and nothing was explained to me.
It didn’t feel right that he would do this and not pre-warn me or given me any explanation. Also during this consultation I emphasised that my shoulder was also causing me concern as it was preventing me from getting employment due to being so painful. My shoulder was my major complaint at the time.
Also during the consultation Sam manipulated my spine to realign things. He did some other general routine things but I can’t recall everything. He did not touch my genitals on that occasion. At the end of that appointment I asked him what he was doing by massaging my buttocks area. He said something like “you have a lot of knots throughout your body that I was working on”. I was content with that explanation at the time and that his treatment to that area was legitimate however I still believed that he should have asked me or warned me before putting his hands into my underwear.
The patient gave evidence that the shorts which she was wearing on this occasion to which she had referred in her police statement were secured at the front with a zip and button. They were secure around the waist and not falling down. They remained done up during the consultation. Mr Lazarus did not request she remove any items of clothing.
It was suggested to her in cross examination that it would be physically impossible for Mr Lazarus to access the region of her inner thighs in the manner described, standing beside her, with her shorts secured in that way.
She said that, at the time, she did not think that what she describes Mr Lazarus as doing was odd or strange. This is notwithstanding that she had previously had massage therapy from others and had been asked to remove clothing down to her underwear, albeit being draped, and had not experienced an approach quite like that of Mr Lazarus.
Mr Lazarus denies the allegations concerning the consultation. Mr Lazarus’s notes at the second consultation record:
OPD r/v :- S – slipped in the kitchen vinyl floor – hard surface, landed on back slipped on ® Leg on Monday. Spasm on ® side of leg. Neck stiffness. (L) knee pain uses (L) leg more.
O :- N/A
Ax :- TOP over Gluteal region R<L, Neck C₇ – 8, Lumbo saccral region
Plan – STM – Neck
-Cervical Mobs
-Lumbar Mob’s
-Stretches – UL, LL
-Core strengthening
Rx – STM over neck
-Mobs – Cervical spine, lumbar spine
-Stretches
r/v in 1/52
[Signature] (Sam Lazarus)
10/06/09
The patient’s account was also recorded in a fourth document; but it is not in evidence. The whereabouts of that document was not explained. When asked about it, the patient said that she did not have it and that she did not know where it was. That document was the first created. In the notes made by the Board on 26 June 2009 the fact of its creation is recorded; and so too its purpose. It records the patient having said that ‘she wrote everything down yesterday so she wouldn’t get it all muddled’.

The Third Consultation

The third consultation occurred on 16 June 2009.
In the file note taken of the complaint to the Board no mention is made of anything untoward having occurred on this occasion.
In the document which she prepared on 26 June 2009 the patient refers to this consultation in these terms:
On the second last occasion Sam asks how I was feeling. I said that I had my ladies days and that my back hurts more when I get them. On this consult he did go beneath my underwear to work on my bottom and got close to my pad.
In the police statement she says:
About another week later I had my third consultation with Sam. This was a Tuesday which would have been approximately the 16th of June 2009 at 3pm. When I arrived Sam came and got me from the reception area and said to one of the other staff something like “we’re going to use the back area today, the back room, the back area”. He said it a few times in different ways repeating himself and talking quite quickly. He then said words to the effect of “I’m just letting you know, we’ll be using the back room, down the back”. I know the person was a staff member or colleague of his but I can’t remember who.
I then walked with Sam down to the back area which was past the other treatment room. None of the treatment rooms have doors, they all have curtains, and the back room that we went to can be blocked off from the other areas by pulling a curtain all the way across. It wasn’t like the other rooms, it was more like an exercise area that had giant balls and weights and a treadmill and strengthening and resistance stuff in there.
When we got into the room Sam said something like “how are you today, how have you been feeling?” I said something like “I have my ladies days and my back is quite sore and usually hurts more on my back at this time”. I call my period my “ladies days”. I don’t recall the rest of the conversation it was just routine.
On that day I was again wearing tights with shorts and I think I had a boob tube singlet on that comes down to my hip area and a jacket over the top of it that comes down and covers my bum. The buttons on the jacket start from just above the belly button.
There is a bench in the room that is not like a treatment bed, it’s more like a low bench for stretching on and it’s made of wood covered in vinyl with cushioning under vinyl. The bench was near the wall at the far end of the room to the right or where we walked into the room. Sam now moved the bench into the centre of the room fairly close to the curtain at the area where we had walked in. I assumed this was so he could treat me from both sides without being blocked by the wall.
As per usual procedure Sam said something like “lay down on the bench on your stomach” or “lay face down” which I did. I was fully clothed. I found this bench uncomfortable, because it clearly isn’t a bed or massage table. I had to have my head hanging off the right hand side because my neck was hurting by laying on it. Sam again manipulated my back and did a little bit of work around my neck and shoulder and also on the side of my hips.
Sam was standing on my left hand side of me. He then reached into my pants again from the waist area with both hands palm down against my buttocks and in a scooping type motion he has directed his fingers down towards the inside of my thighs below my buttocks cheeks rather than massaging the top part of my cheeks first. I could feel he was making a cup shape with his hands, in that the base of his palms and finger tips were touching me but not the middle of his palm. I remember this because I was wearing a sanitary pad and because I get heavy period flow I had a piece of tissue between my cheeks to stop any leakage. I was uncomfortable with him doing this because I specifically told him that I had my period and he still put his hands down there and I think that’s sick. I haven’t told anyone about that because I’m quite embarrassed about it.
I remember that when Sam was massaging this area he was extremely close to my pad and may have touched it but I’m not sure. Even though I didn’t feel comfortable, the motion he was making with his hands on this occasion still felt like a legitimate treatment so I let him continue, however I felt it was inappropriate because I had my period and didn’t like him touching there because I was wearing a pad. He then used his hands to work on the higher part of my buttocks and then moved them back down to under my buttocks again. This treatment to this area went on for around 10 minutes but I’m not sure. I remember at the end of the session Sam said something like “next week we’ll work on doing some weight and resistance stuff”.

As with the second consultation, the patient gave evidence that the shorts which she wore on this occasion were secured at the front with a zip and button and were not so loose as to be falling off. Again, she was not asked to remove any items of clothing by Mr Lazarus. The shorts remained secured throughout the consultation. It was again suggested to her that it would be impossible to access her inner thighs in the manner suggested given the clothing which she was wearing.
When cross examined about her allegation that Mr Lazarus placed his hands, without her consent, under her shorts, tights and underpants, at a time at which she was experiencing a heavy menstrual flow, in a manner in which his hands may have come close to, or even touched, her sanitary pad and perhaps even menstrual fluid, she said she did not, at the time, consider it completely humiliating or extremely embarrassing. Indeed, she says that, at the time, she thought that it was ‘fine’, even given what she alleges was his conduct on the previous occasion.
This evidence seems quite inconsistent with her statement to police that she was uncomfortable with Mr Lazarus doing what she alleges ‘because I specifically told him that I had my period and that he still put his hands down there and I think that’s sick’. A view that such behaviour is sick does not seem to be one which would be formed only upon reflection upon the conduct, at a later time, having initially thought that it was fine.
Mr Lazarus denies the conduct. He also denies having been told by the patient that she was experiencing her period, whether by the description of “ladies days” or otherwise. He says that had he been told that he would have rescheduled the appointment because of the experience by women of associated referred back pain during their period, and that any exercises requiring movement of the lumbar pelvic area, or the hips or lower limbs, will lead to an excess of bleeding and potential embarrassment to the patient.
He says that part of the treatment did require the patient to lie face down. He says he informed the patient that he would lower her clothing a few inches so that he could massage her lumbar sacral region; however massaging stopped at the sacral region which was above the band of the patient’s underwear.
Mr Lazarus’s notes of the consultation are as follows:
OPD r/v :- S₊ Patient States doing Ex’s @ home ↓↓ in pain, improving back.
O :- better gait pattern.
Ax :- SLR    R = 60 – 70^o
L = 80^o
Slight pain L₅ S₁ region
Upper back T₆ – T₁₁ T.O.P
Paraspinal (M) spasm.
Plan     –     Core strengthening program
-McKenzie back program
-(M) strengthening ?? knee
Rx        –    Manual Mobs Lx
-Stretching Back
-Cores Stability Ex’s
-Pelvic Stability Ex’s on ball
r/v in 1/52
[Signature] (Sam Lazarus)
16/06/09

The Fourth Consultation

In the notes taken by the Board of the complaint made by the patient on 26 June 2009, the allegations concerning the conduct of Mr Lazarus on the fourth, and last, occasion on which the patient received treatment from him were recorded as follows:
At her last appointment, yesterday (25/06/09), R moved underneath her underwear and worked on the inner thigh and rubbed his hands on her lavia. [The patient] told R that it was uncomfortable. R replied “does it hurt?” [The patient] stated “no it’s uncomfortable”. R kept going and touched her vulva. [The patient] said “I’m uncomfortable” 3 times before he stopped…. At yesterday’s appointment, after she said she was uncomfortable and he stopped his treatment, he went and got a diagram of the muscles and explained that he was working on the muscle between the knee and her thigh which was tight. [The patient] asked him if that’s the muscle that you work on for incontinence, and he said yes. She has since asked other PTs who are friends of hers if it’s necessary to touch under the underwear area for this and they said “no”. She had told him that she had attended another PT for incontinence prior. There was no one else in the treatment room, but there was a secretary in the office and a lot of other people in the clinic. [The patient] did not mention her experience to anyone else at the clinic, she left quite distressed. She only talked to people external to the clinic.
In her written version of 26 June 2009 she said:
On 25th June 2009 my most recent visit, I saw the receptionist and she remembered who I was and said Sam was running late and to take a seat. In the waiting room a young boy came in and spoke to me about his comic book and his mother came in shortly after. About 10 minutes later I was seen by (sic).
Sam asked how I was, I said that my knees were ok and I was only getting pain in my back and shoulders. Sam was treating muscles around my lower back when another physiotherapist can (sic) entered the back room to ask a question about how to explain a stretch. She has blonde hair and is taller than me I don’t know her name. When she left Sam massaged his way under my tights and skirt and touched my buttocks beneath my underwear, moving his hand into the inner thigh and rubbing the back of his fingers onto my labia. Whilst still under my underwear and clothing.
I said to him “that’s uncomfortable” and his reply was “does it hurt?” I answered “no it’s uncomfortable!” he kept going while not trying to avoid the genital area. When he touched my outer vagina (flap) on the right side with his fingers. I said, “I’m very uncomfortable!”.
He then removed his hand and was quite flustered and proceeded to explain to me that it was muscle he was working on. He went and got a diagram of the muscular anatomy of the human body – I’m sure it was a diagram of a male. I asked him if the muscle in my inner thigh near my genitals was a muscle that controls inconstancies (sic), Sam said yes and pointed it out on the diagram. And then showed me a method to stretch the muscle by placing a tennis ball at the area and moving side to side. Someone did come back near the end of the consult to say that he was running late with another person. When I walked out of reception Sam showed me another stretch to do. In front of the receptionist, I saw a friend, Jen, who works at the hospital and another person in the waiting room. After this Sam went to the sink close by and washed his hands I could see him doing this. Then came out to book me in for next week.
I was too embarrassed to say anything about the touching incident at the time. But did say it was uncomfortable. And I was now in pain in that region. He said yes it is uncomfortable. I left feeling sick and confused about the situation.
In total, he touched the 10-15 times and sometimes as long as about 10 seconds. He never entered inside the vagina, but touched and rubbed against the outside regions. He never once wore any gloves during any visit.
The patient’s account of this in the police statement was in these terms:
My next and most recent appointment with Sam was on the 25th June 2009 at 3pm. On this occasion I was wearing tights with a knee length denim coloured skirt over the top which was fairly thin fabric with an elastic waist. The skirt is quite flowy and not tight on my body. I was also wearing 2 singlets and a bra and had a cardigan with me which I took off before the consult because it is knitted and quite heavy and hot.
I remembered that Sam was running late and the receptionist advised me of this. At 3:10pm Sam called me in for my treatment. I remembered the time because I looked at the clock in the waiting room. Again Sam took me to the back exercise room and said “how are you?” I said “actually I’m doing ok because I have got a new bed and I haven’t been as sore”. He said something like “what about your knees?” and I said “they’re ok, they’re good”. I then said “my back and my shoulders still hurt though”.
Sam then told me to take a seat on the bench, the same bench that I had been on the previous visit that was uncomfortable and that again was in the middle of the room near the curtain. I sat down while he went and got a pillow that he gave me when he returned. He said “lay face down” so I just put my forehead on the pillow and lay face down on the bench.
Sam was massaging my lower back around my waistline and at that time another physiotherapist came in and asked Sam a question about how to explain a stretch to a patient. She had blonde hair and is taller than me and was quite pretty. Sam stopped massaging me and demonstrated the stretch by pulling his right leg up by the foot I remember cause she called him Sam as well.
When she left Sam stood on my right side and massaged his way down from my waist to under my skirt, tights and underwear with both hands open and in quick circular motions and then used a single scooping motion again to push his hands down in one movement towards my inner thighs while lifting his wrists and forearm away from my body in order to pull my pants down as his hands went in. His palms were facing down, and I felt that his hands were so far down towards the crease below my bum cheeks that his forearm would have been used to assist him pulling my pants down. My pants were so far down that my whole bum was exposed to an extent where he would possibly be able to see right into my inner thighs.
This time it was different to the previous times because he had never pulled my pants down before. He then moved one of his hands out and left the other one in there but I can’t remember which hand he moved out. At this time I could feel that Sam was holding the tips of all his fingers together against his thumb in a similar way to how you hold your hand when you are imitating a puppet with your hand. The tips of his fingers were against my inner right thigh area so close to my genital area that they were on the outer part of my external labia, or the outside of my vagina. They were closer to that area than where the leg of my panty line usually sits. Sam was moving his hand from side to side and pushing with the tips of his fingers still against my skin of my inner thigh. Although the tip of his fingers never moved from the inside of my thigh, I then felt him start brushing the back of his fingers against the middle of my vagina area. It felt as though he had leant his hand towards that area so that the back of his knuckles were brushing against my genitals. He was moving his hand in a rocking motion, rocking it from side to side while always maintaining pressure where his fingertips were. Each time he brushed against my vagina was longer and longer until each stroke became around 5 to 7 seconds long. He brushed his hand across that area about 10-15 times. I know that he was not wearing gloves at all during my treatment.
The first couple of times it felt like maybe it could have been an accident, however as the contact with that area became longer I became very uncomfortable and piped up and said “I’m uncomfortable” and he replied “does it hurt?” I said “no, it’s uncomfortable”. He stopped rocking his hand but continued the pressure with his fingertips.
He then rocked his hand again back and forward about another 5 times, each time with his fingertips moving in close away from my thigh and towards the middle of my vagina until they were in the same position just outside my outer flap, but not inside of the entrance hole to my vagina. His fingers were on the inside crease of my outer flap at this time.
I immediately said “I’m very uncomfortable” and I said it with a lot more emphasis and authority and I think I said it loud enough that people may have heard me if there had been anyone nearby. He then removed his hand and got all flustered to the point where it was difficult to understand what he was saying as he was muddling his words. He said something like “yes it is a very uncomfortable spot to work in” and “I’m working on a muscle”. I said “is it for incontinence, is that what you were treating me for?” and he said “yes”. I asked this because although this wasn’t a complaint that I was being treated for by Sam, I wanted an explanation as to why he had to touch me there.
She then referred to Mr Lazarus leaving the room and returning with two diagrams of human muscular anatomy viewed from the front and the rear. He pointed to a muscle close to the genital region. Mr Lazarus said that the muscles in her knee were connected to those in the inner thigh, but the patient did not feel that this explained his actions. She didn’t believe what he was telling her. Notwithstanding her apparent disbelief, she asked Mr Lazarus if there was a stretch which could be performed for the particular muscle. He then demonstrated a technique for stretching the muscle sitting on a dumbbell. He also indicated that a tennis ball could be used. The patient asked if a golf ball could be used as she had one of those at home, but not a tennis ball. Mr Lazarus confirmed that a golf ball would be fine.
The patient also referred to another female staff member, other than the physiotherapist who had earlier interrupted the treatment, coming into the treatment area to inform Mr Lazarus that he was running late for his next appointment.
The consultation ended, on the patient’s account, with Mr Lazarus directing her to perform a stretch on all fours. She says that whilst performing that stretch Mr Lazarus reached one of his arms under her and across her diaphragm just under her breasts, with his hand holding her left ribcage. He did not caress her in any way. Whilst doing this he pushed her back downwards a few times which he said was to stretch her back. The patient said that she would not ordinarily have felt uncomfortable with that process but did so on this occasion because of ‘the previous fondling incident’.
After the treatment she returned to the reception area where she made a further appointment for 2 July 2009 because it had been suggested. However, she says that even at that time she had no intention of attending the appointment given what had just occurred.
The patient was cross-examined about the precision of her estimate of five to seven seconds being the duration of contact with her vagina which the strokes ultimately reached. She says that she was at the time of making the statement and of giving evidence quite certain that this was the precise duration.
When asked to explain why it was that on the day prior to giving her police statement her specific, precise recollection had been that the duration of contact had been as long as 10 seconds, her explanation was that “the police were very good at being able to allow me to answer the questions and have the questions done in a way that I could recall things at a lot better at the time”.
However, she also agreed that in preparing the document for the Board the previous day she described events entirely in her own words and entirely from her own recollections.
The patient was also cross-examined about why it was that she waited until the physiotherapist had made contact with her vulva on 10-15 occasions for between five to seven seconds, or perhaps 10 seconds, before she told him that she felt uncomfortable. Her initial response was that 10-15 was the total number of occasions on which there had been contact, but that she had in fact said that she was uncomfortable after the first time he had brushed her vagina.
When it was put to her that this was inconsistent with her statement to police, she said that she must have been mistaken in saying that she had expressed her discomfort after the first occasion. Then, contrary to there having been an immediate expression of discomfort, she went on to explain why there had been a delay. That explanation was that she had initially thought that it had occurred accidentally. In her statement to police she had said that she had felt that the first couple of times may have been an accident.
In her evidence to the Tribunal, she went on to explain as to why she thought it may have been an accident saying: ‘Well it wasn’t intrusive at that time’. She said that it was only ‘in retrospect’ that she considered that it was intrusive.
The patient accepted that there were differences between the document which she wrote on 26 June 2009 and the statement which she made on 27 June 2009 as to Mr Lazarus’s further conduct after she first told him that she felt uncomfortable, and as to whether he continued to make contact with her genital area.
She also accepted that there was a difference in the versions as to whether Mr Lazarus’s fingertips entered the inside of the outer labia of her vagina.
In respect of those differences she said that her recollection changed between 26 and 27 June 2009. She did not explain what brought about that change. She was not re-examined on the issue.
The patient demonstrated the process by which she says her skirt and underpants had been lowered by Mr Lazarus during the course of the inappropriate massaging of her buttocks and inner thighs which she had described. The skirt, which she had described as having an elastic waist and being of a fairly thin fabric and quite flowy and not tight on her body, was, with the underwear, moved down with a levering motion of Mr Lazarus’s forearms, eventually exposing her buttocks.
It was put to her that the involvement of the arms which she had described and demonstrated was that which had been previously suggested to her as being necessary if the misconduct alleged on the two previous occasions had occurred as she had described. Her response was that she had not seen that conduct.
Mr Lazarus again denies the allegations concerning his conduct during that consultation. The clinical notes for that consultation record:
OPD r/v :- S :- pain still present in the lower back – centralised, hasn’t fallen LL are coming good! Shoulders & Upper back painful, spasm, tightness.
AX: –    Glutes – 3/5 – tight, weak
-     Abductor ® tightness ++
_-L₈ L₄, S, S₂
Neck Pain – going into Both Shoulders
R>L
-Neck ROM ↓↓ - pain & stiffness
-Upper back T₆ – T₁₁ mid back
-Spasm ++  tightness
Plan   –     STM over Gluts
-Stretching Glut’s, adductors
-Pelvic stability Ex’s
-Continue Core Stability Ex’s
-Quad, Ham Strengthening
-Proprioception Ex’s
Rx –    STM over L₅, S₁
-     Stretching
-     Gluts – STM, Isometric Ex’s
-     Adductor stretch, trigger point
-     Pelvic stability Ex’s
-     Home Ex’s
r/v in 1/52
[Signature] (Sam Lazarus)
16/06/09
Additional – Tight adductors ® & Hamstrings
Trigger Points & Sustained release to adductor & hamstrings
Patient said she was uncomfortable PT stopped, discussed ways to release tightness @ home with tennis ball.
Patient was happy, r/v in 2/52
[Signature]
25/06/09
He says that he did inform the patient that he would need to move her clothing down a little way so that he could perform soft tissue massage on the upper section of her buttocks. He wished to massage the trigger points for her gluteus medius muscle which was tight. He explained that those trigger points are located approximately five centimetres below the outer hip area. He says that at no stage did he massage lower than that. At no time did his forearms come into contact with the patient. The only contact was made with his fingers. At no stage was the patient’s buttocks exposed.
Mr Lazarus says that the patient did at one stage say that she felt uncomfortable, but that this was after he had finished the soft tissue massage of her lower back and applying trigger point pressure to her gluteus medius. It occurred when he was stretching her hamstrings. Because she was wearing tights which extended below her knee he had moved her tights to just above the knee to expose the point where the hamstring attached to the femur. This enabled him to work on the patient’s trigger points for her hamstring and also her adductors, located on the inner side of her hamstring.
He says that the patient said she felt uncomfortable which he assumed was either discomfort caused by the pressure being exerted or because of her positioning. He stopped massaging behind her knee and asked whether it was pain or the position. The patient responded that she was just uncomfortable.

After the patient’s complaint of discomfort he did leave the treatment area and returned with a diagrammatic muscle chart which he used to show the patient the muscles which he had been working upon. He did tell her about using a tennis ball, and did say that a golf ball would suffice for home exercising to apply pressure to her hamstrings and abductor muscles. He denies, however, getting a dumbbell.
He agrees that he then had the patient perform what he describes as a cat/camel exercise whilst on all fours which required her to arch her back and then to relax and allow it to return to its natural position. He denies touching her at all during that exercise.
The clinical notes for this consultation include ‘additional’ notes. The additional notes, like the primary notes of the consultation, have been signed and dated by Mr Lazarus. This accords with his usual practice. He says that, ordinarily, he signs his clinical notes in the presence of the relevant patient at the conclusion of the consultation. When cross-examined, Mr Lazarus’s evidence suggested that the recording of such an additional note by him is not unusual. He says that he writes down the treatment which he intends to provide to the patient and then performs that treatment. Having performed the treatment, if the patient says that everything is fine he doesn’t record any further notes. However, if the patient says that some part of the treatment did not feel right, or complains of pain post treatment, he will make an additional note of that.
It was suggested to Mr Lazarus that the additional notes were written by him at some time after 25 June 2009, and in the knowledge that there had been a complaint. It was suggested that he had written them whilst panicking, and that this would explain why the further review was stated as being in two weeks in the additional notes, but one week in the earlier notes. Mr Lazarus had put the difference down to a simple error at the time of making the additional notes.
Mr Lazarus refuted that suggestion saying that after the notes are completed they are placed on a trolley and returned for filing. This was what occurred on 25 June 2009. Thereafter, the notes have to be signed out. He said it was easy to track the notes. By this I understood him to mean that had he sought the return of the notes at a later time, there would be a record of that.

Events following the Final Treatment

On 28 June 2009 the patient telephoned the physiotherapy department of the hospital and cancelled her upcoming appointment. She did this by leaving a message on the department’s voicemail service. She asked not to be contacted. Notwithstanding that request, she was contacted by Mr Lazarus on 1 July 2009. Mr Lazarus asked where a letter which she had requested for Centrelink was to be sent. The patient says that she responded stating that he had her address which would be on the medical records, and that the letter should be sent there.
The patient says that Mr Lazarus then raised the last consultation with her and said words to the effect that he knew it was uncomfortable. She says that she told him that she did not want to hear anything more that he had to say and did not want to hear him justify it any further. She asked him not to contact her again.
She says she later received a call from the receptionist at the physiotherapy department asking her about the Centrelink forms. She informed that person that she had already discussed it with Mr Lazarus, about a week earlier, and had told him that she wanted the letter posted to her. She says that she informed the receptionist that she did not want to be contacted again.
Mr Lazarus says that he drafted the letter on 29 June 2009, although I note that it is dated 26 June 2009. He says that on 29 June the patient phoned the Department and left a message saying that she would not be back and that she did not want anyone to call her. He says that he called her on 30 June to see why she was not returning, and to confirm where the letter was to be sent. His note of the events of 30 June 2009, which was made on 7 July 2009, records that he called the patient to ask if the letter was to be picked up or posted. When cross-examined he said that the understanding reached when the patient had requested the letter was that she would collect it from the administration officer at the physiotherapy department.
On 1 July 2009 Mr Lazarus contacted the Director of Allied Health at the hospital to advise her that the patient was clearly unhappy with the treatment which he had provided, although he did not know why. He says that he wanted to pre-warn the director that a complaint may follow. When asked about this, he said that as the head of the physiotherapy department it was his duty to inform his superiors if there was any discontent or anything that may impact upon the hospital or the service. He rejected the suggestion that the statements made by the patient were innocuous. He says it was the manner of the phone call and the message left that had concerned the administration officer, which had led to his concern and his bringing it to the attention of his manager.
Mr Lazarus also rejected the suggestion by counsel for the Board that his taking the matter to the manager was simply a ploy to pre-emptively discredit the patient.
On 7 July 2009 Mr Lazarus received a letter from the former Board informing him of the patient’s complaint. The letter, dated 30 June 2009, informed him of the fact of a complaint having been made and it having been decided to conduct an investigation under the, then, Professional Standards Act. It informed him that the issues to be considered in the investigation were whether between 1 May 2009 and 25 June 2009 he inappropriately touched the patient, who was identified, whilst providing her physiotherapy treatment. It stated that a copy of the complaint was enclosed. However Mr Lazarus says that there was no document which accompanied the letter. The Board did not contend otherwise.
Having been informed of these matters, Mr Lazarus says in his affidavit that the manager suggested to him that he revisit the documentation and elaborate on each entry as much as possible so that the Board would have a clear guideline as to his actions. He says that, accordingly, he drafted the handwritten notes which are exhibit SL-03 to his affidavit.
His evidence at the hearing was to a different effect. He said then the Director of Allied Health had asked him to go back and write his own recollection of the events without consulting his notes. He said that she had told him that he needed to put down what he was doing and how he was doing it because if someone was to look at his notes they may not be able to pick up what he was trying to do, or he may not be able to recall accurately. That differs from his affidavit both as to the method and purpose of the preparation of the further notes.
He said that he prepared what he referred to as his ‘recollections’ without access to the clinical, or any other, notes.

Consideration of Sexual Misconduct

Clearly, if established, the allegations of sexual misconduct would constitute unsatisfactory professional conduct in each of the ways alleged. I am not, however, satisfied that the allegations have been established.
The onus on proof in disciplinary proceedings is upon the Board. The standard of proof is the civil standard; but applying the sliding scale of satisfaction explained in Briginshaw v Briginshaw,[3] where Dixon J observed:
Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. In such matters “reasonable satisfaction” should not be produced by an inexact proofs, indefinite testimony, or indirect inferences.
[3](1938) 60 CLR 336 at 362.
Here, although brought in a disciplinary context alleging unsatisfactory professional conduct, the allegations are of conduct amounting to crimes. They are very serious. If established they would have a significant effect upon his professional future. There is also, in my view, an inherent unlikelihood in much of the conduct.
There is also a lack of satisfactory explanation of the inconsistencies in the patient’s account of the allegations, which inconsistencies emerged over only two days. Over that short time, the patient’s account changed as to the number of occasions on which she consulted Mr Lazarus; the number of occasions on which she was assaulted; on which occasion she was experiencing her period; the duration of the brushing of her vagina at the final consultation; whether the assault included entry to any aspect of her vagina; and how Mr Lazarus further conducted himself after she complained of feeling uncomfortable.
When the patient first contacted the then Physiotherapy Board of Queensland she did so only for the purpose of making a complaint of misconduct against Mr Lazarus, which misconduct was constituted by sexual assaults, and to obtain advice as to what steps she could take concerning that misconduct. She did so after having the previous day, being the day of the final alleged assault, written down everything so that ‘she wouldn’t get it all muddled’. Yet, having done so, she complained of having been assaulted on only two occasions. It is difficult to accept that all of the assaults would not be referred to in making that initial complaint.
In making that complaint she identified that she had seen Mr Lazarus on four occasions, and identified the second and fourth occasions as being those during which she was assaulted. She identified the second consultation as that on which she was experiencing her period which she referred to as her “ladies days” when informing the physiotherapist.
In the version which she prepared on 26 June 2009 at the request of the Board she referred to four consultations, and to having been assaulted on three of them. The occasion on which she was experiencing her period was the third, not second.
The only specific description which she gave in the version documented on 26 June 2009 of clothing which she was wearing on any of the occasions was of having worn jeans and a belt on one occasion; which she thought was 10 June 2009. If that date was accurate, then that would have been the second session. Yet in this document she referred to it as being ‘another occasion’ in contra distinction to the second occasion.
In describing the final assault in that document she referred specifically to the contact being made with outside regions only of her vagina and that Mr Lazarus never entered inside the vagina. She estimated the longest duration of the 10-15 instances when he touched her vagina to have been 10 seconds. She said that Mr Lazarus ‘kept going’ after her first complaint that what he was doing was uncomfortable.
In the statement to police, made only the following day, she referred to there having been four or five consultations. She identified the second occasion as, she thought, 10 June 2009, whereas the previous day she had identified 10 June as being another occasion and not the second consultation. Of course, the medical records established 10 June 2009 to have been the date of the second consultation. She identified the clothing which she was wearing on this occasion as including a pair of tights with denim shorts over the top. She could not recall the top she was wearing. This, therefore, excluded 10 June 2009 as the occasion on which she wore jeans and a belt. In her police statement the patient identified that she again wore tights and shorts on the third occasion; thus excluding this occasion also as that on which she wore jeans and a belt. So too, it could not have been the final consultation because she identified in her statement to police that on that occasion she wore tights and a flowy skirt with an elastic waist.
Notwithstanding the elimination of each of the three occasions on which she claims to have been assaulted as those on which she wore jeans, she nonetheless told police that she could definitely remember that there was one occasion on which she wore jeans. She says that she can recall that because it was the day she picked up her scooter. She says that on that occasion Mr Lazarus managed to squeeze his hands underneath the belt, which she described as being on quite tight, to massage her buttocks. Having eliminated the other three occasions, it leaves only the first consultation on which this could have occurred; but there has never been any suggestion by her that she was inappropriately touched during that first consultation.
When these matters were put to the patient during cross-examination she could provide no satisfactory explanation. It cannot be explained, in my view, by simply putting it down to her being an unsophisticated witness. I do not find her evidence in respect of these matters reliable.
I also consider the evidence concerning the conduct alleged in respect of the second and third consultations to lack credibility. It is, in my view, inherently unlikely that Mr Lazarus, standing beside the patient who was lying face down, could place his upper limbs under the shorts, tights and underpants being worn by the patient on those occasions to the extent necessary to facilitate the massaging of her buttocks and the touching of her inner thighs which she describes. She accepted that the shorts were snug on her. If it was at all possible, which I doubt, it could only be achieved with a tightening of the front of the shorts around the stomach region which, one would readily infer, would be the source of some discomfort. The patient describes no such discomfort.
Her own account of the final consultation when Mr Lazarus is said to have lowered down her skirt and underpants so as to fully expose her buttocks, has his upper limbs within her garments to the extent of his forearms. That would seem necessarily to be the case. Whilst she declined to express a view as to whether his arms would have needed to be within her garments to the same extent on the second and third consultations, because she did not see him, it would seem that this would necessarily be so.
This inherent unlikelihood of Mr Lazarus being able to manoeuvre his hands and forearms under the shorts, tights and underwear of the patient as alleged by her at the second and third consultations is not answered or explained, as counsel for the Board submits, by simply accepting that if someone wants to do something inappropriate, then he or she will find a way.
Counsel for the Board also submitted that ‘where there is a will there is a way’ to explain why Mr Lazarus would place his hands and forearms under the clothing of the patient in the way described on the second and third occasions in circumstances in which there was a chance that he would be interrupted and observed by other staff. Such a chance of interruption and observation was real and apparent. The area in which the third consultation took place was not a treatment room with a closed, let alone locked, door. Rather, it was an area toward the back of the facility which was enclosed only by a curtain. The potential for interruption was realized on the fourth consultation which was conducted in the same area. The patient says that twice during that consultation a third person came into the treatment area through the curtains to where she and Mr Lazarus were. She recalls the first of the interruptions to have been by another physiotherapist who came in to seek advice from Mr Lazarus. The physiotherapist was female.
In my view, if Mr Lazarus had been interrupted and observed by another physiotherapist to have his hands and forearms positioned under the shorts, tights and underwear of a female patient, and with his hands or fingers in the region of the patient’s inner thighs, it would be immediately apparent to the other practitioner that this was inappropriate; and inexplicable as treatment. He would, quite literally, be caught with his hands down a patient’s pants. Also, any complaint made by the patient, or objection taken by her, would likely to be heard by others in the vicinity.
This would be equally so, in my view, in respect of the fourth consultation. Had the other physiotherapist entered the room to seek his advice at a slightly later moment she would, on the patient’s account, have found Mr Lazarus performing a massage of the patient’s inner thigh in such a way as to be repeatedly brushing against, or even entering, the outer part of the patient’s genitals, with the patient’s buttocks, and perhaps genitals, fully exposed. All of this would have been observed by the second person who came into the treatment area had he or she arrived only slightly earlier.
It was submitted for the Board that the method by which Mr Lazarus misconducted himself on these occasions was such that he could provide an explanation which in the mind of the patient would appear reasonable. Accepting for the moment that the patient might accept such an explanation as reasonable, it is extremely improbable that any other staff member, and particularly another physiotherapist, would accept as reasonable any such excuse.
The Board contends that the concentration, or focus, by Mr Lazarus of his treatment upon the lower back of the patient was inappropriate given the matters for which she was referred for treatment. It contends that this inappropriate focus was to facilitate his being able to have his hands in that region of her body so as to misconduct himself in the manner alleged. I do not accept those contentions.
Mr Lazarus says that he was trained to treat the patient not the referral letter. That seems not only credible, but entirely appropriate. A patient may disclose information on presentation which could render inappropriate the treatment which might otherwise have been given on the information contained in the referral. From the outset, the patient gave a history of back problems. Back problems were evident from the first consultation. Between the first and second consultations the patient had suffered a further fall on a hard surface and landed on her back.
The patient has at no time suggested that the treatment was directed to areas of her body with which she had no trouble, even though she says that she never sought treatment other than to the areas in respect of which she was referred. To the contrary, she reported improvement from the treatment. On the third and fourth occasions she says she complained of back pain. She says that on the fourth occasion she said that her knees were OK. It is to be observed that her knees were not totally ignored during the treatments.
In my view, other matters also evidence an inherent unlikelihood in the events of which the patient complains occurring.
I find it difficult to accept the patient’s evidence that she was neither embarrassed nor humiliated by Mr Lazarus’s behaviour, as she alleges it to have been, on the second and third occasions, and that she only found it to be so in retrospect. It is particularly difficult to accept that in respect of an occasion during which his un-gloved hands were placed in the region of her genitals, perhaps touching her sanitary pad, during a time at which she was experiencing heavy menstrual flow. That she would think, at the time, that this was ‘fine’, seems implausible. Her description of such conduct as being ‘sick’ in her police statement is not inapt, but it is a view one would expect would be immediately held; not one which would be reached upon retrospective reflection.
The Board submitted that there was no evidence that the patient had any motive for making a false allegation against Mr Lazarus and that her complaint has in fact caused her much inconvenience and embarrassment. It is said to have been inconvenient because she effectively disqualified herself from being able to access physiotherapy treatment in Mount Isa, and embarrassing because it had put her through the rigours of investigations, police interviews and giving evidence in these proceedings. It was submitted that, in those circumstances, the Tribunal can reasonably infer that the prospect of her making a deliberate false complaint, without the existence of any apparent reason or motive, is effectively non-existent. It is said that it must be a deliberately false complaint because there is no chance that she was simply mistaken about Mr Lazarus’s conduct.

I accept that part of the submission that, if her version is false, then it must deliberately be so. Mr Lazarus’s version of the respective consultations does not leave open mere misinterpretation of his actions by the patient.
I do not, however, accept that part of the submission that I should reason, inferentially, from the absence of evidence of motive to lie and the circumstances of inconvenience and embarrassment identified, that the prospects of the complaint being false are effectively non-existent.
First, the patient’s feeling that she no longer was able to attend the physiotherapy department at the hospital is at least as consistent with her having made a false complaint about someone in the department as a true complaint. A person having made a false complaint about a physiotherapist in the department may have a reluctance to return to the department. She deposes to having been referred for physiotherapy through the hospital during her pregnancy. She requested that the treatment be provided by a female and not in the department. That request was refused. There is no evidence as to what the reason for that refusal was. It may be that her request for a female physiotherapist could be accommodated, but that her request for treatment outside the department could not. Whatever the basis for the refusal, it is certainly not established that it was because she had made a complaint against Mr Lazarus.
So too, investigation of the complaint, the provision of statements at interview, and the giving of evidence are the ordinary consequences of having made a complaint; whether true or false. The fact that these events occurred do not make it inherently any more likely that the complaint is true or false.
In my view, in a case such as this, the absence of proof of a motive to lie on the part of the complainant patient should be viewed neutrally. That is particularly so if the Board’s submission is based upon Mr Lazarus not having provided any evidence of a motive for the patient to lie.
In the context of considering whether a jury may be asked, rhetorically, ‘why would the complainant lie?’ in a criminal trial, the High Court of Australia has observed that:
… a complainant’s account gains no legitimate credibility from the absence of evidence of motive. If credibility which the jury would otherwise attribute to the complainant’s account is strengthened by an accused’s inability to furnish evidence of a motive for a complainant to lie, the standard of proof is to that extent diminished. That is the converse of the proposition stated by Cresswell J in a case cited by Wills (on circumstantial evidence) where his Lordship acknowledged that proof of a motive to lie weakened a complainant’s credibility. The correct view is that absence of proof of motive is entirely neutral.[4]
[4]Palmer v R (1998) 193 CLR 1 at [9] per Brennan CJ, Gaudron and Gummow JJ.
In J McPhee and Son (Aust) Pty Ltd v Australian Competition and Consumer Commission[5] a full Court of the Federal Court of Australia observed that authorities which stood for the proposition that it was impermissible for a trial Judge to give a jury direction along the lines of ‘why should the complainant lie?’ were not relevant to a trade practices penalty proceeding tried by a Judge alone. That is no doubt because the vice in such a direction is that it invites the jury to speculate, impermissibly, to the conclusion ‘that unless they are satisfied by the accused that the witness has a motive to lie, they should accept the evidence of that witness and convict’.[6] The cases concerning the directions to juries on the topic are irrelevant not because that process of reasoning is permissible in a civil trial before a Judge alone, but because the Judge will be aware of, and avoid, the vice of reasoning in that way. In J McPhee and Son, the finding that there was no reason for certain witnesses to go to the lengths of giving false evidence was made further to an earlier finding that certain particular matters, taken either individually or collectively, did not provide a sufficient motive for those witnesses to give deliberately false evidence.[7] It was not a finding made in the abstract from which credibility of a witness was being reasoned simply because of the absence of any evidence of motive to lie. The High Court’s observation as to the neutrality of the absence of proof of motive remains, in my view, applicable.
[5](2000) 172 ALR 532 at [87].
[6]R v Uhrig (Unreported, Court of Criminal Appeal (NSW); 24 October 1996) at 15-16 per Hunt CJ at CL, as cited in Palmer v R (1998) 193 CLR 1 op cit at [8].
[7]Supra at [84] – [86].
It remains for the Board to prove, to the requisite standard of satisfaction, that the version of events given by the patient is truthful. It would be an error, in my view, for the Tribunal to reason to the conclusion that that version must be true because there is no evidence of a motive to lie on the patient’s part.
In assessing the credibility of Mr Lazarus, a matter of concern was his evidence about the straight leg raises which he performed on the patient on 16 June 2009 as recorded in his notes. The clinical note which Mr Lazarus made on the day of the consultation does not record whether the leg raises were performed with the patient lying supine (on her back) or prone (on her stomach). The notes record a range of movement of 60 to 70 degrees for the right leg, and 80 degrees for the left. The further notes, or recollections, which he made on 7 July 2009 record the same range of movement for each leg as was recorded in the primary notes. However, there was a further note that the raises were performed with the patient in the supine position.
Notwithstanding that note, when giving evidence in the hearing Mr Lazarus said that those straight leg raises were performed in the prone position. It was not, in my view, a mere slip or confusion on his part because he went on to detail that this test was known as a reverse straight leg raise. He also gave a detailed description of what the test was used to measure: the amount of lumbar pelvic movement or hip and lumbar extension. He explained that it was not a true indication of hip extension because there will sometimes be some lumbar movement unless the lower part of the spine is stabilised. He further explained that it was performed in the context of back rehabilitation, especially on patients with prolapsed discs or bulging degenerative discs to try to get spinal extension to relocate the discs in their proper place.
He confirmed that the 60 to 70 degree, and 80 degree, ranges of movement were measurements of reverse straight leg raises in the same position. In confirming this he expressly stated that this was a different straight leg raise to that performed at the initial consultation which resulted in a recorded range of movement of 95 degrees in the right leg and 100 degrees in the left.
Mr Brettnall, the physiotherapist called by Mr Lazarus to provide expert evidence, said that he could not conceive of the possibility of a person having a range of movement of between 70 and 80 degrees in performing a straight leg raise in the prone position. He said that there were about 10 degrees of hip extension and, broadly, 30 degrees of lumbar extension.
After the evidence of Mr Brettnall had been given, counsel for Mr Lazarus said at the commencement of his address that Mr Lazarus had instructed him to admit that he accepted, in retrospect, that the notes must have been in respect of a conventional straight leg raise performed in the supine position. Counsel noted that this was consistent with the further notes made by Mr Lazarus on 7 July 2009. It was said that his contrary evidence had been honestly and genuinely given but he accepted that it was wrong.
In light of the expert evidence of Mr Brettnall it is difficult to accept that Mr Lazarus could give honest and genuine evidence about the performance of a reverse straight leg raise on a patient in the prone position which would achieve movement in the range of 60 to 80 degrees. It is not, and on Mr Brettnall’s evidence cannot, be simply a matter of being confused as to whether the patient was face down on the particular occasion. On Mr Brettnall’s evidence there would be no occasion on which Mr Lazarus could do that which he described in so much detail in his evidence.
I also have some reservations about Mr Lazarus’s explanation of the additional note made on the chart for 25 June 2009. It seemed inconsistent with evidence which he gave earlier that suggested that the second of the notes headed ‘plan’ set out the treatment which he intended to give in the consultation and those under ‘Rx’ recorded the treatment given in accordance with the plan. He had recorded the stretching of the adductor in the earlier part of the notes under ‘treatment’, as he also did in respect of trigger points. If the patient had complained of discomfort in the course of treatment, then the opportunity would have been there to record that in the earlier treatment section of the notes.
Notwithstanding the reservations I have about Mr Lazarus’s evidence concerning these additional notes, I am not satisfied that the note was made at a time subsequent to 25 June 2009 as suggested to Mr Lazarus in cross-examination. Counsel for the Board has not expressly invited me to make such a finding. Counsel for Mr Lazarus contends that if the Board make such an allegation it should have been charged. There is some merit in that contention. The ex post facto fabrication of a clinical note would certainly support a charge of unsatisfactory professional conduct. Had it been charged, then it would have been for the Board to have adduced evidence to prove the allegation. On Mr Lazarus’s evidence the Board would have been able to obtain evidence of the movement of the file after 25 June 2009 if that assisted its case in proving that allegation. As it is, counsel for the Board asked Mr Lazarus if there was any evidence to which he could refer the Tribunal which corroborated his own evidence that the additional notes were made on 25 June. With respect, that rather reverses the onus on the issue. Had the Board actually charged that allegation, as the respondent says it ought, it could not have been proven in that manner.
I do not accept the Board’s contention that Mr Lazarus used the Centrelink form as an excuse to call the patient on 1 July 2009 knowing that she was upset with him for doing that which she alleged. The letter itself, being addressed “To Whom it May Concern” did not bear the patient’s address. It was dated 26 June 2009 (although Mr Lazarus says he drafted it on 29 June 2009) and had, quite apparently, been prepared in the expectation that the patient would be returning for another appointment on 2 July 2009, and prior to the cancellation of that appointment. Mr Lazarus said that the arrangement which had been made was that the patient would collect the letter. Even on the patient’s version of events, a receptionist from the hospital called her a further week after Mr Lazarus had called also asking what she wanted done with the letter. There was no reason for the receptionist (as opposed to Mr Lazarus) to invent an excuse to call the patient. There was no other reason for her doing so. The suggestion made to Mr Lazarus that he could have established the patient’s address from the file is equally applicable to the receptionist. Indeed, one would infer that the patient’s telephone number was ascertained from those same records. Therefore, the only reason for the receptionist later calling would be to determine what was to be done with the letter. This is consistent with Mr Lazarus’s evidence, although he says he was also calling to follow up on the patient.
I accept Mr Lazarus’s evidence concerning his reasons for calling the patient and for reporting the matter to his manager. In my view, a patient cancelling future treatment and saying that she does not want to be contacted is not innocuous as suggested by counsel for the Board. To the contrary, it is a matter of potential significance. Mr Lazarus’s reasons seem logical enough.
I also accept his rejection of the suggestion that his telling his manager was simply a ploy to discredit the patient. There is nothing recorded in the notes which suggest a discrediting of the patient. The notes are not critical of her in any way. One might have thought they would be if the ploy suggested by the Board was correct. They do not, as one might also have suspected, contain any self serving statement providing some exculpatory reason for the patient ceasing treatment. The notes are very matter of fact.
I do not, however, accept Mr Lazarus’s evidence that he prepared the further notes on 7 July 2009 without reference to the earlier clinical notes. First, preparation of the notes in that way would have been entirely inconsistent with what he says he was directed to do by his manager. That is, to revisit the documentation and elaborate upon each of the entries as much as possible. Secondly, I find it inconceivable that he would have been able to recall the events of four consultations with the level of precise detail recorded in the further notes if writing them unaided by the earlier clinical notes.
Notwithstanding those reservations which I have about certain aspects of Mr Lazarus’s evidence, for the reasons set out above, I am not satisfied that Mr Lazarus misconducted himself at the second, third and fourth consultation as alleged by the patient.
The grounds of the referral relating to the sexual misconduct should be dismissed.

Clinical Conduct

In its submissions the Board contended, without suggesting that one was dependant upon the other, that if the Tribunal was to accept the patient’s evidence on the sexual misconduct issues, then that would have a significant influence on the Tribunal’s reasoning in respect of the clinical conduct issues, such that the Tribunal may conclude more easily that Mr Lazarus’s treatment and clinical reasoning fell well below the standard required of him. It was said that if the Tribunal accepted that there had been an unlawful focus in his behaviour towards the patient, then it was clearly open to be found that this operated in such a way as to influence the treatment that he offered to the patient. That is, that it contributed to the treatment being inadequate, incorrect or ill advised.
It was further submitted that such a focus would be likely to have influenced Mr Lazarus’s reasoning and/or assessment in that it would result in him not focusing on appropriate clinical issues resulting in the treatment being performed to a lesser standard than that required of a registered physiotherapist.
It was further submitted that what was said to be the substandard quality of the clinical notes may be linked to the substandard quality of the treatment which, in turn, was the potential consequence of what was said to be Mr Lazarus’s illegitimate focus.
Having concluded that Mr Lazarus did not engage in the sexual misconduct alleged, it cannot be accepted that he had an inappropriate focus upon treating areas of the patient’s body which would, in effect, facilitate that alleged misconduct. Accordingly, the contention that such an inappropriate focus lead to substandard assessment, reasoning, treatment and documentation must be rejected.
Nonetheless, it remains to be considered whether the clinical conduct issues are otherwise established.
In a report dated 12 March 2012, Mr Quentin Scott, a physiotherapist in private practice, expressed the opinion that Mr Lazarus’s clinical notes and documentation were of a poor standard, and not at a level that would be widely accepted as competent professional practice. He was of the view that the notes did not adequately cover the subjective or physical assessment findings; did not adequately describe the specific treatment performed; and did not record any reassessment outcomes subsequent to application of treatment techniques. He provided some examples.
He also criticised the lack of any record of informed consent having been obtained from the patient to the treatment undertaken. He dealt with that issue under the heading of ‘the Registrant’s communication with the complainant’. He observed that the patient had
clearly stated throughout the documentation provided that the Registrant did not explain the treatment to her that would be utilised during the treatment session, did not describe the specific application of the techniques and did not ask for consent to apply those techniques.
From this it is evident, in my view, that in assessing the communication between Mr Lazarus and the patient, Mr Scott has accepted the patient’s account of events, or assumed that account to be correct. Proceeding to express his opinion based upon the assumption of the correctness of that account is entirely appropriate. However, if the facts assumed are not otherwise established on the evidence, then the value of any opinion expressed upon them is greatly diminished.[8]
[8]Ramsay v Watson (1961) 108 CLR 642 at 649 per Dixon CJ, McTiernan, Kitto, Taylor and Windeyer JJ.
It can be accepted that the clinical notes do not record the consent which Mr Lazarus says the patient gave after he explained each treatment to her. To the extent that Mr Scott identifies that as a deficiency his opinion may be accepted. However, Mr Scott’s opinion seems to extend further to there being a lack of communication, rather than just the lack of a recording of that communication. That further opinion seems based upon the patient’s account and the absence of notes. Of course, it is also based upon the patient’s account of what physical contact was involved which ought to have been communicated to her by Mr Lazarus.
Mr Scott was asked to express his opinion on the clinical indication for the treatment that was provided by Mr Lazarus to the patient in light of her history and presenting condition. He commences his opinion in that regard by observing that, based upon the clinical notes, it could be argued that there was evidence that the treatment was indicated. He then observed that the notes illustrated that the diagnosis does not encompass all the described symptoms as recorded in the initial examination or referral letter. Thus, he opines, it could be argued that the treatment provided did not cover all aspects of the clinical presentation. He identifies a number of unanswered questions in that regard. He identifies a lack of postural modification through exercise despite posture being stated as one of the main contributing factors to the complainant’s lower back pain.
In considering Mr Scott’s criticisms in respect of these matters it should be remembered that the patient was, until she withdrew, receiving ongoing treatment. Each physiotherapy session was limited to approximately 20 minutes. It is not unexpected, in my view, that in those circumstances not all of the patient’s presenting problems would, or could, be dealt with in each session. It is to be expected, in my view, that treatment will be directed to those matters considered by the clinician to be requiring the most immediate attention. These are matters requiring the exercise of judgment at the time of providing the treatment.
In considering this question, Mr Scott also considered the application of treatment by massaging with hands under a patient’s underwear, or in contact with the perineum or genitalia as being inappropriate. However, those matters again proceed on an assumption of the events having occurred as alleged by the patient.
Mr Scott then separately addressed: the appropriateness of Mr Lazarus’s treatment techniques, including placing his hands under the patient’s underwear to massage her gluteals; applying massage and/or trigger point therapy to the patient’s adductors while she was lying in the prone position; and coming into contact with the outside of the patient’s genitalia. These matters are also based upon an assumption of the events having occurred as alleged by the patient.

On the findings which I have made concerning the sexual misconduct issues, the opinions expressed by Mr Scott in relation to the clinical practices associated with those issues can be put to the side.
Mr Scott provided a further report dated 28 May 2012. In that report he provided lengthy extracts from the clinical notes of Mr Lazarus to illustrate the opinions expressed in his earlier report as to Mr Lazarus’s documentation and record keeping practices. He also identified a number of matters referred to by Mr Lazarus in his affidavit for which there were no supporting notes. Mr Scott also identified many matters for which there were no notes which he opined demonstrated that Mr Lazarus had not undertaken investigations or provided treatments which were otherwise indicated from the history or presenting symptoms of the patient.
Mr Scott expressed the opinion that the lack of continuity and depth of both subjective and physical assessment throughout the four physiotherapy sessions illustrated poor reasoning in the approach of Mr Lazarus to assessment, diagnosis formation and targeted management for the clinical presentation.
Mr Lazarus called expert evidence from Mr David Brentnall. Mr Brentnall is also a physiotherapist in private practice. He too carried out an analysis of Mr Lazarus’s clinical notes. He also considered those notes in the context of the evidence set out in the affidavit of Mr Lazarus.
As to the standard of treatment provided by Mr Lazarus, Mr Brentnall was of the view that the treatment notes indicated an assessment and treatment that did not appear to be unsafe or reckless. It included management techniques that would be considered to be part of normal physiotherapy practice. He considered that the notes demonstrated that Mr Lazarus employed a range of modalities which was an approach supported by the literature. The inclusion of a home exercise program was consistent with a good standard of treatment.
He did, however, observe that the assessment and treatment of the patient lacked the specificity and tailored care that would be expected as ideal physiotherapy practice. Mr Lazarus’s subjective questioning included only basic information regarding history. The treatment notes indicated an absence of deep understanding of the behaviour of symptoms or a baseline level of function, or even when the apparent dislocation of the patella had occurred. He considered that those elements would be required for good or ideal practice. He considered the subjective questioning outlined in Mr Lazarus’s notes indicated an average or low standard of that expected of a registered physiotherapist.
Based upon the treatment notes Mr Brentnall considered that the physical examination conducted included only a basic assessment such as posture, palpation, muscle strength and length and limited information regarding active motion of the neck and back. The physical examination also lacked functional assessment and movement tests that would be considered ideal practice. He again thought that the notes indicated an average to low standard of that expected of a registered physiotherapist in respect of the physical assessment of the patient.
Again based upon the treatment notes, Mr Brentnall considered they indicated clinical reasoning of an average or low standard of that expected of a registered physiotherapist. He considered it to be basic and that it could result in errors of associating potentially inaccurate clinical findings as being relevant to the patient’s condition.
Mr Brentnall was of the opinion that, rather than identifying specific movement deficits, treatment of them and reassessment, Mr Lazarus’s treatment, as indicated by his notes, appeared to be non-specific and scripted. He considered physiotherapy practice using a generic approach such as that is of an average or low standard of that expected of a registered physiotherapist.
Mr Brentnall also considered Mr Lazarus’s standard of documentation itself to be of an average or low level of that expected of a registered physiotherapist. He considered that the documentation did not effectively describe certain elements of the treatment, and did not adequately indicate the side of the body or location on which the treatment was being performed. He also thought the notes to be lacking because they did not include many treatment elements that were described in Mr Lazarus’s affidavit.
Counsel for the Board submitted that the references made by Mr Brentnall in his report to those aspects of Mr Lazarus’s practice being low to average must mean that it was at a low level and, therefore, below the level which should reasonably be expected of Mr Lazarus by his peers and members of the public. I do not accept that submission. It is contrary to the clear words used by Mr Brentnall on each occasion, that the performance of Mr Lazarus in those areas was at a low level ‘of that expected of a registered physiotherapist’. That is, even when low rather than average, it was within the range of standards one may expect of registered physiotherapists. It cannot, in my view, be construed as meaning below that range of standards. Of course, the fact that Mr Brentnall identifies that there will be a range is of itself a measured approach. It recognises, appropriately in my view, that there is no singular standard. When the Act speaks of “professional conduct that is of a lesser standard than that which might reasonably be expected of the registrant”, it contemplates that there will be a range of standards of practice demonstrated by those within the profession. It is only when a practitioner falls below the lower end of that range that it can be said that he or she has engaged in unsatisfactory professional conduct. Clearly, Mr Brentnall considers that Mr Lazarus was within, not below, that range.
It was also submitted that in expressing his opinion in this regard Mr Brentnall has applied an ‘extraordinary generous standard’. In my view he has not.
Counsel for the Board also submitted that the real issue was whether the Board’s expert had applied an ‘impossibly high standard’. I do not accept that this submission properly describes the real issue. If the case were to be approached in that way, then a finding that the standard applied by Mr Scott was not ‘impossibly high’, because it was achievable, may lead to a conclusion that conduct which fell below that standard constituted unsatisfactory professional conduct. That, in my view, would be an erroneous conclusion. The Act does not require registrants to conduct themselves at the highest achievable standard. It requires registrant’s to conduct themselves at a standard that might reasonably be expected of the registrant by the public or his or her professional peers. Neither the public nor a registrant’s professional peers can reasonably expect all registrants to conduct themselves at the top of the range of achievable standards.
In Vissenga v Medical Practitioner’s Board of Victoria[9] the President of VCAT, Morris J, said of the definition of ‘unprofessional conduct’ as contained in the Medical Practice Act 1994 (Vic), upon which paragraph (a) of the definition of unsatisfactory professional conduct as contained in the Health Practitioner (Disciplinary Proceedings) Act 1999 (Qld) was based, said:
I wish to revisit the words of paragraphs (a) and (b) of the definition of unprofessional conduct. In both of these paragraphs attention is directed at professional conduct which is of a lesser standard than that which might “reasonably” be expected of a registered medical practitioner by the public or by the peers of the practitioner. In my opinion, neither the public nor the peers of a medical practitioner expect perfection at all times. Human frailty visits every person, including those who are medical practitioners. Reasonable members of the public, and the reasonable peers of medical practitioners, understand this. Reasonable people are tolerant of occasional lapses, particularly if these lapses do not form a consistent course of conduct or, if taken separately, are insufficiently serious to warrant intervention by those charged with acting on behalf of the state.
[9][2004] VCAT 1044 at [33].
To this I should add that in saying that neither the public nor professional peers expect “perfection at all times” his Honour was not suggesting that it was reasonable for the public and peers to expect perfection most or even some of the time, but allowing for occasional lapses. To construe his Honour’s words in that way would be to substitute for the standard prescribed by the National Law one of qualified perfection. Rather, I understand his Honour to be emphasizing that the standard required is not one of perfection or, as I have put it, the highest achievable.
In cross-examination Mr Scott accepted the suggestion that he had marked Mr Lazarus against the standard of what would be all the things that could be done for a patient if there were no constraints in terms of time or the demands of other work upon the physiotherapist. Mr Scott had earlier accepted that there were differences between practising as a private physiotherapist and practising in the public hospital sector. Mr Scott agreed that in private practice a physiotherapist has the flexibility to have longer sessions, particularly if it is considered that the extra time is required to do the things which the physiotherapist wants to do.
In re-examination, Mr Scott gave evidence that physiotherapists are taught in an undergraduate setting to assess movement impairments in relationship to functional aspects and to restore those for every individual patient. This was in response to his being asked by counsel for the Board to confirm that what he had earlier described in his immediately preceding evidence was not a ‘gold standard’ of physiotherapy but was ‘physiotherapy 101’. Counsel for the Board referred to that evidence to support the submission that Mr Scott’s evidence was directed to, effectively, a basic level of what would be expected. However, the immediately preceding evidence had concerned what were, in Mr Scott’s opinion and expressed in broad terms, the goals of treatment of physiotherapy. Mr Scott, in that earlier passage of his evidence in re-examination, had described ‘what physiotherapy is all about’. It was this that he then referred to as that which people were taught in the undergraduate setting. I do not consider that Mr Scott was then referring to the standard of conduct which he had applied in his assessment of whether Mr Lazarus had performed to a standard reasonably expected by the public or his professional peers.
Mr Brentnall, on the other hand, had opined that the inclusion of all the elements described in Mr Scott’s report as being significant absences and deficiencies in the subjective assessment, physical examination, clinical reasoning, treatment and reassessment of the patient, would constitute the ideal.
He said that in his experience of reviewing treatment notes of general physiotherapists, he had never seen notes containing the level of detail set out in Mr Scott’s report. Nor had he seen notes of that standard in reviewing the treatment notes of his colleagues at his private clinic. He had seen notes of that standard by physiotherapists who were preparing for their physiotherapy specialisation examinations.
Mr Scott did not consider the lack of documentation of informed consent to soft tissue massage having been obtained from the patient to be a departure from normal, good professional practice. In his experience verbal consent is obtained as part of good practice and he had rarely seen documentation seeking consent within the treatment notes themselves.
I prefer Mr Brentnall’s assessment of the standard of Mr Lazarus’s practice. It is, in my view, more measured and more reflective of the circumstances in which Mr Lazarus was treating the patient, rather than circumstances unlimited by time. I do not consider that the Board has established that Mr Lazarus has engaged in conduct that is of a lesser standard than that which might be reasonably be expected of him by his professional peers or the public. I also do not consider that the Board has established that Mr Lazarus has engaged in conduct that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of his profession.
I do not consider that the Board has established a ground for disciplinary action against Mr Lazarus in respect of the clinical issues.
The referral is dismissed.