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Medical Board of Australia v Gomez[2015] QCAT 121

Medical Board of Australia v Gomez[2015] QCAT 121

CITATION:

Medical Board of Australia v Gomez [2015] QCAT 121

PARTIES:

Medical Board of Australia

(Applicant/Appellant)

 

v

 

Dr Rene Gomez

(Respondent)

APPLICATION NUMBER:

OCR105-14

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

28 March 2015

HEARD AT:

Brisbane

DECISION OF:

Judge Alexander Horneman-Wren SC, Deputy President

DELIVERED ON:

22 April 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The evidence of the witness KC and MK is admissible in the hearing of the referral in respect of those parts of complaints against Dr Gomez concerning the patient XY.

CATCHWORDS:

PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – MEDICAL PRACTITIONERS – DISCIPLINARY PROCEEDINGS – whether medical practitioner abused position of influence and trust by failing to maintain appropriate professional boundaries

EVIDENCE – ADMISSIBILITY AND  RELEVANCY – SIMILAR FACTS – IN GENERAL – RELEVANT PRINCIPLES – PARTICULAR CASES – whether similar fact evidence admissible in disciplinary proceedings before the Tribunal – where Tribunal not bound by rules of evidence – where an explanation consistent with innocence – where similar fact evidence of no probative value – where striking similarity with similar fact evidence – where similar fact evidence admitted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2), s 28(3)

Briginshaw v Briginshaw (1938) 60 CLR 336.

Nursing & Midwifery Board of Australia v Singh [2014] VCAT 1171.

Purnell v Medical Board of Queensland [1999] 1 QdR 362.

R v War Pensions and Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228.

Zaidi v Health Care Complaints Commission & Arnor (1998) 44 NSW LR 82.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Ms K McMillan QC instructed by Rodgers Barnes & Green

RESPONDENT:

Ms K A Mellifont QC instructed by Ashurst

REASONS FOR DECISION

  1. [1]
    Dr Gomez is alleged to have behaved in a way that constitutes professional misconduct.[1]  The conduct concerns two of the doctor’s female patients.  In respect of each, it is alleged that he abused the position of influence and trust inherent in the doctor/patient relationship by failing to maintain appropriate professional boundaries.[2]
  2. [2]
    In respect of one of the patients, AB, the particulars of the conduct alleged are that:
    1. On either 29 November 2005 or 13 December 2005, the respondent asked the patient if she was interested in being his mistress.
    2. On either 13 December 2005 or 20 December 2005, at a subsequent consultation to the consultation in (a), the respondent told the patient that he still wanted the patient to be his mistress and would set her up in a condo, buy her a car and take her to dinner and balls.
    3. On 2 April 2007 during the course of a full body examination for skin cancer, the respondent:
    1. massaged the breasts of the patient;
    2. massaged the buttocks of the patient;

without the patient’s consent and when such massaging was not necessary for the purpose of undertaking a skin examination.

  1. [3]
    In respect of the other patient, XY, the particulars of the conduct alleged are that:
    1. The respondent asked the patient, whilst the patient was dressed only in her undergarments, to bend over a chair and/or a table when such a request:
    1. was not necessary for the purposes of the conducting the examination;
    2. failed to pay any regard to the dignity of the patient;
    3. was demeaning of the patient.
    1. The respondent asked the patient on more than 1 occasion to conduct an internal examination to check the patient’s cervix and vagina when:
    1. it was unnecessary to conduct an internal examination for the purpose of undertaking a routine skin cancer examination;
    2. after the patient had declined the first request of the patient to conduct an internal examination, the subsequent request was unnecessary, harassing and failed to respect the dignity of the patient.
  2. [4]
    In addition to the evidence of AB and XY the Board also wishes to rely upon evidence of three further former patients on the basis that it is admissible similar fact or propensity evidence.  Dr Gomez opposes its admissibility.  He says that the evidence of those other patients lacks the requisite high level of probative value in proof of the allegations of AB and XY necessary for its admission.
  3. [5]
    A further issue as to whether the evidence of each of AB and XY is cross-admissible in proof of the alleged misconduct concerning the other will also arise on the hearing.

Similar fact/propensity evidence in disciplinary proceedings

  1. [6]
    Section 28(3)(b) and (c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provide that in conducting a proceeding the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.
  2. [7]
    Section 28(2) provides that the Tribunal must act fairly and according to the substantial merits of the case.
  3. [8]
    Of provisions such as these, it was said as early as 1933 by Evatt J in the High Court of Australia:

The second and third provisions are obviously of the greatest importance, but they need not be discussed upon this application because in my opinion, the Tribunal did not act “according to substantial justice”.  This is the overriding statutory command, and it is almost a paraphrase of the general principle enunciated by Viscount Haldane in Arlidge’s Case.  Some stress has been laid by the present respondents upon the provision that the Tribunal is not in the hearing of appeals, “bound by any rules of evidence.” Neither it is.  But this does not mean that all rules of evidence may be ignored as of no account.  After all, they represent the attempt made, through many generations, to evolve a method of enquiry best calculated to prevent error and illicit truth.  No Tribunal can, without grave danger of injustice, set them to one side and resort to methods of enquiry which necessarily advantage one party and necessarily disadvantage the opposing party.  In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer “substantial justice”.[3] 

  1. [9]
    In Purnell v Medical Board of Queensland,[4] Fitzgerald P observed:

At its broadest, the appellant’s argument proceeded on the misconception that the law with respect to the admissibility of similar fact evidence in criminal trials, as stated by the High Court in Pfennig v R, can and should be directly transposed to proceedings (which are not criminal proceedings) in a court or tribunal in which a judge is the trier of issues of fact. There are significant differences between a criminal trial and a proceeding of the Tribunal. For example, in a proceeding before the Tribunal, the standard of proof of allegations of misconduct in a professional respect is the civil standard, varying according to the gravity of the fact to be proved, not the criminal standard. It is only because proof beyond reasonable doubt is required in a criminal trial that similar fact evidence must be excluded if there is a reasonable view of the evidence, taken in the context of the prosecution case, which is consistent with the innocence of the accused.

  1. [10]
    In my view, his Honour was not, in that passage, discounting a Tribunal taking guidance from how the criminal courts approach the admissibility of similar fact evidence in considering whether such evidence ought be admitted in proof of disciplinary charges. Rather, his Honour was demonstrating why it was that the mandatory exclusion of such evidence, required in criminal proceedings where there is a reasonable view of the evidence inconsistent with guilt, is not to be “directly transposed” to disciplinary proceedings.
  2. [11]
    In Purnell, McKenzie J said of the admission and use of similar fact evidence:

This is a case where identification of the person who allegedly did an act is not in dispute.  The issue is whether the act complained of was done. Where this is the issue proof of the commission of an act on a particular person may become more certain if other witnesses testify that a similar act has been committed on them. Provided the complaints of the similar acts are made by witnesses who are truly independent of the complainant whose testimony is in issue, in the sense that collaboration between the complainant and the other witnesses and the possibility that the other witnesses' complaints are the product of suggestibility following the witnesses becoming aware of the complainant's complaint can be ruled out, it is unlikely that the various independent accounts are a coincidence. There may be some cases where other possible explanations consistent with innocence may need consideration, as in the present case where the effects of medication upon perception is an issue. If it can be excluded, the basic proposition stated above operates. The strength of the inference will depend on the facts of the particular case. The number of complaints is not of itself critical. One similar allegation containing the same peculiar feature or features may have considerable weight in supporting a complainant's evidence. On the other hand where acts alleged do not contain any particularly unusual features but are similar, the fact that there are a number of allegations from different persons may assist in drawing an inference that the act with which the court or tribunal is concerned occurred to the required standard of proof. There is no doubt a spectrum of circumstances which require consideration on a case by case basis between those two positions.

Ultimately the question is whether the inference that the act complained of was committed upon the complainant can be properly drawn having due regard to the standard of proof applicable to the kind of case before the court or tribunal. Where credibility of a complainant's evidence is in issue the fact that complaints of similar acts have been made by other persons can provide strong support of the complainant's evidence in the absence of any factors diminishing the strength of the inference logically available from the fact that they were made independently of and unaffected by the complainant's own account.

  1. [12]
    This passage from the judgment of McKenzie J in Purnell was adopted by the President of the Court of Appeal of the Supreme Court of New South Wales in Zaidi v Health Care Complaints Commission & Anor.[5] In so doing, Mason P observed that Purnell was decided in proceedings in which the rules of admissibility of evidence in civil proceedings appeared to apply whereas in the proceedings in Zaidi the Tribunal was governed by a provision analogous to that in section 28(3)(c) of the QCAT Act.  His Honour considered that such a provision reinforced the view which he took as to why the law of admissibility of similar fact evidence in criminal proceedings is not to be directly transposed into disciplinary proceedings such that the Medical Tribunal’s failure to apply them was not an error of law.
  2. [13]
    More recently, the Victorian Civil and Administrative Tribunal in Nursing & Midwifery Board of Australia v Singh[6] adopted the general approach taken in Purnell and Zaidi.
  3. [14]
    The Tribunal went on to observe of the regard that might be had to the rules for evidence concerning similar fact or tendency evidence notwithstanding that the Tribunal was not bound by them:[7]

In the Tribunal’s view in considering the evidence in this case, in which serious allegations are made against a nurse, it should have regard to the principles underlying the rules relating to tendency and coincidence evidence, even though it is not required to apply those rules.  In particular, the Tribunal is conscious of the strong prejudicial effect, when considering whether the respondent is guilty of a particular disciplinary charge, of evidence by other complainants about other alleged acts.  We proceed on the basis that there must be a high level of probative value in such evidence, before it should be taken into account in determining whether the respondent is guilty of the first allegation.

  1. [15]
    In my view, this approach is consistent with the observations of Evatt J in Bott’s case referred to above.  It is an approach which is consistent with the degree of satisfaction demanded in disciplinary matters before the Tribunal given the seriousness of the allegations made and the gravity of the potential finding.[8]

The evidence of AB

  1. [16]
    AB deposes to having consulted Dr Gomez for treatment for skin cancer on her face.  She was 60 years of age when she last consulted him in 2007.  She had originally consulted him at his Gold Coast surgery over about a 2 year period and then later at his Parkwood surgery when he relocated his practice.
  2. [17]
    She recalls that during one consultation at the Gold Coast surgery he asked her if she would be interested in being his mistress.  She says that she fobbed him off.
  3. [18]
    Later, when consulting him at the Parkwood surgery, she says that Dr Gomez was overly familiar in conversations with her.  On one occasion he said that he still wanted her to be his mistress and that he would set her up in a condo, buy her a car and take her to dinner.  Again, she tried to fob him off.
  4. [19]
    On the last occasion on which she consulted Dr Gomez he suggested that she have a full body check for skin cancer.  Previously, he had only checked for facial cancers.  Having dressed in a surgical gown she lay on her back at the request of Dr Gomez.  The examination commenced by Dr Gomez undoing the strap on the surgical gown around her neck and pulling down her underpants.  He then placed his hands on her breasts and moved his hands, she says, as if to caress them.  She did not consider that he was performing an examination: she considered it foreplay.
  5. [20]
    She says that she said to him that this was not right to which he responded that he had to check her breasts because she had had a breast reduction.  She told him that his conduct was not normal and to leave her breasts alone.
  6. [21]
    Dr Gomez asked her to roll over onto her stomach so that he could check her back; which she did.  He rubbed her back, pulled down the gown to expose her backside and rubbed both buttocks with his hands.  She described this touching as a caress.  She heard him breathing heavily as if he was getting excited which prompted her to turn around suddenly at which point she observed him to have an erection. 
  7. [22]
    She called him a “dirty fucking bastard” and struck him with a clenched fist.  She promptly got dressed and left the surgery.

The evidence of XY

  1. [23]
    XY was 39 years old when she consulted Dr Gomez in December 2007 at the Parkwood surgery.
  2. [24]
    The consultation commenced with Dr Gomez asking her to remove her clothes down to her underpants and bra.  Dr Gomez remained in the room whilst she did this in the middle of the consulting room as there was nowhere private to disrobe.
  3. [25]
    Dr Gomez examined her head and face then the front of her body including her legs.  She recalls that she was either lying down or sitting on the examination table during this part of the examination.
  4. [26]
    She felt uncomfortable about the closeness of Dr Gomez’s body to hers and recalls feeling him breathing very close to her.
  5. [27]
    Dr Gomez then directed XY to bend over a chair; which she did.  Dr Gomez took up a position behind her.  She could feel his hands touching her as he examined all over her body.  Dr Gomez asked her to adopt various positions whilst she was leaning over the back of the chair, including getting up on her tiptoes.  She described adopting these various positions as making her feel uncomfortable, stupid and embarrassed, particularly because she was only wearing underwear.
  6. [28]
    She was asked to hold positions which she considered too long for any examination.
  7. [29]
    He then directed her to again sit on the examination table and said that he wanted “to do an internal now.” XY responded to the effect that she did not want an internal examination as she had a gynaecologist who did that, and it was not what she had come for.
  8. [30]
    Dr Gomez said that it would not take long and spoke of the risks of skin cancer in the vagina and that women had died from internal vaginal skin cancer.  XY says that Dr Gomez kept saying how important it was to have an internal examination and that he kept trying to justify it.  She says that she felt that he was trying to make her feel bad or worried about not having an internal examination.  She states that she felt that Dr Gomez was desperate to perform an internal examination of her vagina and that he showed an abnormal interest in her vaginal area.
  9. [31]
    This discussion of an internal vaginal examination lasted about 5 minutes during which XY continued to refuse.  She describes herself as eventually becoming angry and forceful in her refusals.

The evidence of KC

  1. [32]
    KC made an appointment at the Mole Skin Clinic in Browns Plains in 2002 when she was 31 years old.  A suspicious mark had been found on her foot by her GP.  She does not recall whether there was an examination table in the surgery where she consulted Dr Gomez and she was only required to sit or stand throughout the consultation.
  2. [33]
    Shortly after arrival Dr Gomez asked her to strip down to her underwear; which she did.  Dr Gomez remained in the room as she did so.  There was nowhere private for her to disrobe.
  3. [34]
    Dr Gomez at some point asked her to stand bent over a chair.  Dr Gomez stood behind her and examined the skin on her back.  Whilst in that position Dr Gomez asked her to lift her legs into various positions which she felt were strange.  She describes feeling stupid, uncomfortable and undignified.
  4. [35]
    Dr Gomez then stood in front of her and examined her breasts.  She was, at that time, standing with her breasts exposed.  She does not specifically recall his asking her to remove her bra; but she would not have done so unless asked.
  5. [36]
    After the breast examination Dr Gomez said that he wanted to inspect her vaginal and anal areas.  She declined.  She says that there was then what she would describe as an argument in which Dr Gomez was very insistent on conducting the examinations, at one stage laughing and saying words to the effect “you could have been outside doing handstands in the nude”.  At some stage Dr Gomez retrieved some documentation and said that he had evidence and could demonstrate that people could get skin cancer in those areas.  KC glimpsed at the documentation and observed that it included a very graphic photograph of a vagina.
  6. [37]
    She says that during the argument Dr Gomez was trying to force her to show him her genitals.  She did not do so.

Evidence of TP

  1. [38]
    TP consulted Dr Gomez at the Mole Scan Clinic in Springwood in 2004 when she was then 40 years old.  She recalls the consultation room as having an examination table, a chair, a sink and a desk.
  2. [39]
    After briefly examining her right arm, which was the area of her main concern, although she had gone for a general skin check, Dr Gomez directed her to remove her clothes down to her underwear, which she did in the middle of the consultation room in Dr Gomez’s presence, there being nowhere private to disrobe.
  3. [40]
    She describes Dr Gomez commencing by examining her scalp and then shoulders and back.  She was standing and could feel his hands moving down her body as he examined those areas.  She felt uncomfortable as she was standing in only her underwear.
  4. [41]
    When examining her shoulders Dr Gomez, without having first sought her consent, moved her bra straps so that he could see beneath them.  At some stage he told her that she would have to take her bra off.  He went to lift her bra cups but struggled to maintain the cups in a raised position off her breasts.  He ran the back of his hand over the bottom of both her breasts.  At some point the bra, which she was holding, came completely off her breasts.  Dr Gomez ran the back of his hand from the top of her breasts down over her nipples.  She described the manner in which he touched her breasts as caressing.  She felt it was unnecessary for the purpose of conducting the examination.  It made her feel extremely uncomfortable.
  5. [42]
    Dr Gomez then ran the back of his hands over her stomach.  At no time were her underpants removed although she cannot recall if he looked under them.

Evidence of MK

  1. [43]
    MK consulted Dr Gomez in February 2008 when she was then 45 years old.  The consultation took place at a Skin Alert Clinic in Noosaville.
  2. [44]
    MK had previously had many skin checks with other doctors during which she had disrobed to her underwear, so she did this on this occasion in anticipation of the examination.  Before commencing any examination Dr Gomez said words to the effect of “what about examining your breasts, bottom and genitals?”  MK declined.
  3. [45]
    Dr Gomez then said that she had not given him a straight answer which, from his tone, she inferred that her answer of “no” was not the answer he was wanting.  She felt that he was pushing her to change her decision.
  4. [46]
    She felt that Dr Gomez tried to convince her to agree to the examination of her genitals by saying that he had a long career in dealing with skin cancer in which he had found melanoma inside a woman’s vagina.  MK felt uncomfortable and that she needed to comply.  She finally consented to an examination of her breasts and bottom, but not her vagina.
  5. [47]
    She states that she felt as though Dr Gomez’s demeanour changed as a result of her refusal to allow him to examine her genitals and that as he was irritated that she had not agreed to the examination which he wished to perform he had no interest in conducting a thorough examination.  She describes the check which he performed as “cursory”.

Is the evidence admissible?

  1. [48]
    In my view, none of the evidence of any of the 3 patients is sufficiently probative to be admissible as similar fact or propensity evidence in proof of the alleged conduct of Dr Gomez towards AB.
  2. [49]
    None of the patients give evidence of having been propositioned as was AB.  There is no suggestion by any of them that Dr Gomez invited them to form a relationship with him.
  3. [50]
    Whilst TP states that Dr Gomez’s hands came into contact with her breasts during the examination, the circumstances and detail of that contact is quite different to that which AB describes.  AB has Dr Gomez placing each of his hands on alternate breasts.  TP has Dr Gomez running the back of his hand over her breasts.  I would not consider that the mere fact of an examination of TP’s breasts and the lifting of the breasts during the examination is, of itself, probative of the misconduct alleged in the handling of AB’s breasts.  Lifting a breast to examine underneath it and within the fold seems entirely consistent with an examination for skin cancers or lesions.  That is, there is an explanation consistent with innocence of the misconduct charges.
  4. [51]
    I also consider that the fact that both AB and TP in referring to Dr Gomez’s touching of their breasts used the expression “caress” is of no probative value.  It would, in my opinion, be an erroneous approach to view the subjective description of the touching, or the subjective feelings of the patients as a result, rather than the objective nature and circumstances of the touching, as providing the similarity of fact.
  5. [52]
    TP’s evidence is not probative of any facts relating to the conduct of Dr Gomez towards XY.  I would exclude all of the evidence of TP.
  6. [53]
    In Pfennig v The Queen[9] the majority[10] referred to “the necessity to find something in the evidence or in its connexion with the events giving rise to the offences charged which endows it with a  high level or degree of cogency” before propensity evidence will be admissible.  Their Honours said:

Often that high level or degree of cogency is found in the striking similarity, underlying unity or “signature” pattern common to the incidents disclosed by the totality of the evidence.

  1. [54]
    The evidence of KC, in so far as it relates to the conduct of Dr Gomez towards XY, does have striking similarity with the evidence of XY.  That striking similarity is to be found in the conducting of the examination from behind with the patient disrobed to her underwear and leaning over a chair.  It is also found in the request for the patient to adopt various positions whilst leaning over the chair.  It is also found in Dr Gomez’s desire to perform an examination of each patient’s vagina, and his persistence when consent for such an examination was not forthcoming.
  2. [55]
    So too, there is a striking similarity between the evidence of MK and XY in relation to Dr Gomez’s desire to perform an examination of the vagina and bottom, and in his persistence in the face of an initial refusal of consent.
  3. [56]
    It may well be that the credibility of XY in respect of her allegations concerning the conduct of Dr Gomez will be an issue.  As was observed by MacKenzie J in Purnell, the fact that KC and MK complain of similar conduct may provide strong support for XY’s evidence.
  4. [57]
    Dr Gomez says that the prospect of contamination or suggestibility has not been excluded.  In my view it has been.
  5. [58]
    KC deposes to not being aware of the details of any complaints made by others.  She made a complaint to the Health Rights Commission one week after the consultation in which details of Dr Gomez’s conduct were provided and recorded.[11]
  6. [59]
    So too, MK complained the Health Quality and Complaints Commission on 22 August 2008 in respect of conduct alleged to have occurred on 7 February 2008[12] she too deposes to not being aware of the details of any complaints made by others.
  7. [60]
    I would allow the evidence of both KC and MK in proof of the allegations concerning conduct toward XY.

Footnotes

[1] In the alternative, it is alleged that his conduct constitutes unprofessional conduct.

[2] The professional misconduct or unprofessional conduct is also said to be constituted by Dr Gomez having failed to comply with undertakings requiring him to conduct intimate examinations of female patients only in the presence of a female chaperone, and to maintain and provide to the Board a chaperone register.

[3] R v War Pensions Entitlement Appeal Tribunal; ex parte Bott (1933) 50 CLR 228 at 256.

[4] [1999] 1 QdR 362 at 368.

[5] (1998) 44 NSWLR 82 at 92-93.

[6] [2014] VCAT 1171 at [1219].

[7] Ibid at [151].

[8] Briginshaw v Briginshaw (1938) 60 CLR 336, per Dixon J at 361-362.

[9] (1995) 182 CLR 461.

[10] Mason CJ, Deane and Dawson JJ at 488.

[11] Affidavit of Mathew Hardy; exhibit MH-1.

[12] Affidavit of Mathew Hardy: exhibit MH-3.

Close

Editorial Notes

  • Published Case Name:

    Medical Board of Australia v Rene Gomez

  • Shortened Case Name:

    Medical Board of Australia v Gomez

  • MNC:

    [2015] QCAT 121

  • Court:

    QCAT

  • Judge(s):

    Horneman-Wren DP

  • Date:

    22 Apr 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Nursing and Midwifery Board of Australia v Singh [2014] VCAT 1171
3 citations
Jump To
Cite 1 - [2014] VCAT 1171
Cite 2 - [2014] VCAT 1171
Cite 3 - [2014] VCAT 1171
Pfennig v The Queen (1995) 182 C.L.R 461
2 citations
Jump To
Cite 1 - (1995) 182 C.L.R 461
Cite 2 - (1995) 182 C.L.R 461
Purnell v Medical Board of Queensland[1999] 1 Qd R 362; [1997] QCA 253
2 citations
Jump To
Cite 1 - [1999] 1 Qd R 362
Cite 2 - [1999] 1 Qd R 362
R v War Pensions Entitlement Appeal Tribunal and Anor; Ex Parte Bott (1933) 50 CLR 228
2 citations
Jump To
Cite 1 - (1933) 50 CLR 228
Cite 2 - (1933) 50 CLR 228
Zaidi v Health Care Complaints Commission (1998) 44 NSW LR 82
2 citations
Jump To
Cite 1 - (1998) 44 NSW LR 82
Cite 2 - (1998) 44 NSW LR 82

Cases Citing

Case NameFull CitationFrequency
HTI v Carless [2025] QCAT 202 citations
Macann v State of Queensland (Queensland Ambulance Service) [2024] QIRC 1462 citations
Medical Board of Australia v Azam [2017] QCAT 1562 citations
1

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