Health Ombudsman v Kumanan[2023] QCAT 476

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   Dr Thurairajah Kumanan (the respondent) was at all material times a “registered health practitioner” as defined by the Health Practitioner Regulation National Law (Queensland) (National Law) and the Health Ombudsman Act 2013 (Qld) (HO Act), registered under the National Law as a medical practitioner holding general registration with the Medical Board of Australia.
2. [2]
   The Director of Proceedings on behalf of the Health Ombudsman (the applicant) has referred a health service complaint against the respondent to the Tribunal pursuant to s 103(1)(a) and s 104 of the HO Act. It is alleged that the respondent engaged in “professional misconduct” or, alternatively, “unprofessional conduct”, within the meaning of those terms as defined in s 5 of the National Law.
3. [3]
   The one charge alleges that on 21 July 2017 the respondent sexually assaulted a registered nurse (the complainant) at the general medical practice where they were both employed (the practice). The respondent denies the alleged conduct and resists a finding that he has behaved in a way that constitutes professional misconduct or unprofessional conduct.

General matters

4. [4]
   The Tribunal must determine whether the respondent has engaged in the conduct alleged and whether such conduct as the Tribunal finds established by the evidence should be characterised as professional misconduct or unprofessional conduct. Because of the potential consequences to the respondent of adverse findings on such matters, the Tribunal can only find that the respondent engaged in the alleged conduct and that such conduct should be characterised as professional misconduct or unprofessional conduct if satisfied of such matters to the standard enunciated by the High Court in Brigginshaw v Brigginshaw.^[1]

5. [5]
   The applicant relies upon affidavit and viva voce evidence of the complainant. Proof of the charge depends upon acceptance of the complainant as truthful and reliable in her evidence that the alleged conduct occurred. My assessment of the credibility of the complainant is crucial.
6. [6]
   The applicant also relies on evidence of witnesses to whom the complainant made verbal statements as to the conduct of the respondent soon after the alleged conduct. I have approached this evidence in the same way a criminal court would consider evidence of preliminary complaint. That is, any consistency or inconsistency between the terms of such complaints and the evidence of the complainant is relevant to the credibility of the complainant but the hearsay evidence of statements by the complainant are not truth of their contents.
7. [7]
   The respondent gave evidence denying the conduct. The onus of proof remains upon the applicant. The respondent did not undertake any burden of proof in electing to give and call evidence. His evidence is to be assessed in the same ways as the evidence of any other witness. Although this case could be described as a case of “word against word”, in that the complainant gave evidence that the conduct occurred and the respondent has given evidence denying that any such conduct occurred, the Tribunal’s task is not simply one of forming a preference for one of the two primary witnesses over the other. It is only if, after a consideration of all the evidence, the Tribunal finds those matters alleged by the applicant to be established to its satisfaction on the Brigginshaw standard that the charge can be proven and any finding of professional misconduct or unprofessional conduct made.

Referral charge and particulars

8. [8]
   The charge alleges that on 21 July 2017, the respondent sexually assaulted the complainant. The particulars are summarised in a redacted form as follows:

   1.1 The complainant was a registered nurse.

   1.2 The complainant began work at the practice on 5 July 2017.

   1.3 The complainant met the respondent at the practice on 17 July 2017.

   1.4 During the first few days working together, the respondent touched and acted in a physically inappropriate manner towards the complainant, namely:

   1.4.1 On 17 July 2017, the respondent held her cheeks in his hands;

   1.4.2 On 20 July 2017,

   1.4.2.1 the respondent hugged her on two separate occasions;

   1.4.2.2 the respondent approached her from behind and covered her eyes with his hands;

   1.4.2.3 the respondent approached her and pressed his thumbs into her face;

   1.4.3 On 21 July 2017, the respondent pressed his fingers into her lower back.

   1.5 On 21 July 2017, the respondent met the complainant in the treatment room of the practice where she showed him the results of an electrocardiography test she had performed on a patient.

   1.6 The respondent purported to explain the workings of the electrocardiograph in relation to the heart.

   1.7 The respondent repeatedly ran his finger across the complainant’s left breast and nipple, first from the top of the breast to the bottom, and then from the right side of the breast to the left.

   1.8 The complainant did not consent to the respondent touching her breast.

   1.9 Later that day, the respondent entered the treatment room of the practice and spoke to the complainant, then hugged her, attempted to kiss her, and asked her to kiss him on his cheek.

   1.10 At no time did the complainant consent to being touched by the respondent.

Evidence of the complainant

9. [9]
   The complainant worked as a registered nurse in Brisbane public hospitals from January 2016 until March 2017 when a knee injury requiring surgery led her to seek less physically demanding duties. She commenced working at the practice on 5 July 2017. Her duties included conducting electrocardiograms, assisting doctors with procedures, immunisations and injections. The complainant worked shifts on 12, 13 and 14 July 2017.
10. [10]
    In her affidavit, the complainant states:

    12. On Monday, 17 July 2017, I stated [sic] work at 9:00 am. Around lunchtime I walked into the team room and I saw a male standing at the table in the middle of the room. I approached him and introduced myself. I knew there was a doctor who worked there that I hadn’t met yet, so I assumed it was him.
    13. I said, “Hi, my name is [redacted].” I went to shake his hand.
    14. He shook my hand and said, “Hi, I’m TK. What do you do here?”
    15. I said, “I’m the new Registered Nurse.”
    16. I noticed his demeanour changed. It seemed like he didn’t really care, but after I told him I was the new nurse he seemed more interested in me.

…

18. Our conversation ended soon after that and I went back to the treatment room. I work out of the treatment room and the doctors have their own offices.
19. Throughout the day TK came into the treatment room maybe three times. Normally the doctors wouldn’t come into the treatment room when a patient wasn’t there. The doctors would only come into the room to get something or ask me to do something.TK came in three times with no real reason.
20. When he came into the room TK often said, “If you ever need help with anything, or ever want to know anything, come and ask me.” TK said this a lot throughout the day.

21. On one of the occasions when TK came into the treatment room, I was standing near the syringes and sterilized equipment. We were talking about something but I can’t remember what. TK was standing in front of me and we were talking face to face, During the conversation TK randomly reached out with both hands and touched my face. The action was gentle and he was just holding my cheeks with both hands. It felt like his whole hands took up my cheeks and jaw. There was full contact with both palms of his hands. He didn’t apply any pressure. I could still talk.
22. I didn’t really know what to do. I didn’t swipe him away. I was thinking to myself, what’s going on, this is really weird.

…

24. TK was holding my face for about five seconds. I remember TK was smiling at me. He didn’t really change in the way he was talking.
25. I felt really uncomfortable at this time. He was in my personal space and I didn’t know what to do. I can’t really stand up for myself very well.
26. All I remember is thinking it was weird. I can’t remember what we were talking about.
27. On Tuesday, 18 July 2017, I started work at 9:00 am. … Jacquie and I were working in between the treatment room and the doctor’s offices depending on patients.
28. Throughout this day TK wasn’t coming into the treatment room as much. He would only come in to get something, and he didn’t really talk to Jacquie and me.
29. I thought this was really weird because he completely changed around Jacquie.
30. On Thursday, 20 July 2017, I started work at 9:00 am. Throughout this day I was working in the treatment room, I wasn’t working with Jacqui on this date.
31. Throughout the day I noticed TK was very touchy. I can’t remember specifics because it was happening all day but I remember in the morning TK came into the treatment room. It was only TK and I in the room. During general conversation with TK he leaned into me and gave me a hug. He was standing next to me, and he hugged me from the side. He really pulled me in towards him. He didn’t squeeze really tight but it was like a buddy hug. I remember his face was close to my head. I felt his cheek pressing against the top of my head and it felt plump. I didn’t wrap my arms around him, he just pulled me towards him.
32. It felt like a buddy hug, something my friends would do and I remember thinking in my head, we aren’t friends. He hugged me for about ten seconds.
33. Later in the day I was working at the computer in the treatment room. The computer is on the opposite wall from the entrance and my back was to the door. I heard someone right behind me and I began to turn around over my left shoulder. As I was turning I felt two hands touch my face and cover my eyes. It took me by surprise. I thought, “Oh my god this TK. Not again.” I knew it was him.
34. He said, “How did you know I was coming?”
35. I said words to the effect of, “I heard the footsteps”.
36. I can’t remember exactly why he came into the treatment room. He was coming in and out of the room all day. He just kept asking me if I needed help with anything or had any questions. I assume this time was the same, but I can’t remember specifically.
37. Later on the same day TK came into the treatment room again. I was standing next to the sterilising machine near the sink. He came straight up to me and started pressing his thumbs into my face, on either side of my nose. He was pressing into my face and kept moving his thumbs around the side of my nose.

38. I assume that we had a conversation at this time but I do not recall it.
39. On Friday, 21 July 2017, I started work at 9:00am. Again I was working in the treatment room. About half an hour after I started work TK came into the treatment room. He came up to me and hugged me again. It was the first time I saw TK that day. I think he was saying hello. Again I felt obligated to hug him. I felt it was inappropriate but didn’t want to cause issues.
40. Later in the day I was with a female patient who had attended the clinic complaining of chest pain. This patient was a walk-in and wasn’t a regular patient of TK or the other doctors. I conducted an ECG on the patient. I am trained to conduct these tests I am not trained to interpret the results, however I have conducted these tests before and I noticed the results looked funny. I showed the results to TK and asked if the reading was ok.
41. He told me that it was fine. TK then saw the patient in his office for a while.
42. After that TK then came into the treatment room and said, “You don’t know how to read ECGs?”
43. I said “No.”
44. He said, “Come with me.”
45. TK took me into his office and started explaining the ECG results. TK and I sat down at his desk and he noticed the door was still open. TK asked me to shut the door and I did. TK and I were sitting at his desk side by side. I was leaning forward over the table as he was writing on a piece of paper.
46. TK wrote down on a piece of paper the different segments of the reading and was explaining them to me. TK was explaining that the different segments can identify heart failure. TK also said there are other signs of identifying heart failure. He said you can listen to the chest and check for pitting oedema in the legs. TK didn’t show me either of these checks, he just mentioned them to me.
47. Pitting oedema is a check which can be conducted on a patient’s legs. If you press your finger into the patient’s leg and hold for a few seconds, if the tissue doesn’t bounce back and leaves an indent in the skin, this can be a sign of heart failure.
48. TK then said, “I also check here.”
49. I was still leaning forward over the desk. My back wasn’t pressed against the back of the chair. As TK was talking, he reached around with his left arm and moved his hand up under the back of my shirt.
50. I felt very uncomfortable at this time. I didn’t know what he was doing. I hadn’t heard of this in relation to checking for heart failure. I didn’t know what to do.
51. TK then began pressing his fingers into my lower back. He was touching me just above the top of my bottom. He was pressing in a pulsing way, he would press and release and would repeat that action. He did this for about three seconds. I can’t remember exactly what TK was saying, but I know he was saying something. I was in shock.
52. I wanted to get out of the room but I didn’t want to be rude and just leave. I don’t know why I didn’t leave.

53. TK kept talking about the heart failure checks but I was trying to wrap it up and leave. I left maybe a minute later. As I was walking out I was thinking to myself that I shouldn’t have even gone into the room.
54. Later in the day I completed another ECG test for a patient of TK in the treatment room. I was using a different ECG machine from the first time. I was using the spare machine because the normal machine was playing up. TK was taking his lunch break as I was conducting the test. TK instructed me to show him the results when he returned from his break. I conducted the test and the patient left.
55. TK returned from his break and met me in the treatment room where I showed him the results. I saw the results and thought that the ECG machine was also broken as the results didn’t appear readable in parts.
56. TK and I started talking about the ECG results. He began explaining the different areas of the heart and how the machine reads the different areas. TK and I were standing face to face and about an arm’s length apart.
57. TK said, “It reads around the heart.”
58. As he was talking, TK began running his finger under my left breast. It started in the centre of my chest and he ran his finger under my breast and up the side towards my armpit. TK did this movement twice.
59. I was wearing a light polo shirt, with thin soft material. I was also wearing a sports bra. You could easily feel my nipple through the bra and the shirt.
60. Immediately I felt extremely uncomfortable. I felt violated by TK’s actions. I thought this has gone too far now. I don’t know why I didn’t just leave.
61. TK continued talking about the heart. He started talking about sagittal and median planes of the heart, which is a parallel plane which divides the body into left and right. The planes intersect across the heart.
62. As he was talking about this, TK ran his finger from the top of my left breast to the bottom. His finger ran across my nipple. TK repeated this action a couple times. Then TK ran his finger from the right side of my breast to the left, also touching my nipple. TK repeated this action a few times also. TK was applying pressure as he was moving his finger over my breast. It wasn’t hard, but it was a push.
63. As TK was doing this I still felt violated. I didn’t know what to do about it. I was thinking it was completely unnecessary for what he was talking about. I thought there are so many other ways to explain it, he didn’t have to touch my breast.
64. I kept listening to him talking about the heart. I don’t know why I didn’t just leave. I still felt like I was in shock about what happened. I didn’t know what to do.
65. TK kept talking for a few more minutes and then he walked out. I sat down and was just thinking to myself, what the fuck. I felt uncomfortable about being there because it kept getting worse.
66. I continued with my work until about 3:30pm when TK came back into the treatment room. TK and I were standing near the entrance talking about something. I can’t remember exactly what we were talking about.
67. During the conversation TK pulled me towards his body and gave me a hug. He really pressed his body against mine, and pressed his face and cheek into my head. It felt like an intimate hug that my partner would give me. He hugged me for a really long time. It felt like forever. I tried to push myself away from TK and lean away, but he would readjust his body and pull me back towards him. He moved his head from either side of mine and wouldn’t let me move away.

68. I said, “This is a really long hug.” It felt like the hug was going forever and it made me very uncomfortable. I was thinking how I could get away from him.
69. TK still had his arms around my body but he leaned backwards so his face was in front of mine. He said, “Can I?” as he leaned his face in towards mine.
70. The way TK moved in towards me, it looked like he was about to kiss me. I said, “No” and moved my heads backwards. TK’s hands were still on my body, I remember feeling his hands touching my body, but we weren’t hugging any more. His grip was loose so it was easier to move away.
71. TK said, “Not even?” whilst pointing to his cheek. I took this to mean that he wanted to kiss me on the cheek.
72. I said “No.”
73. TK took a step backwards and so did I. I remember his head dropped a bit and he said, “OK”. TK left the room after that. I sat back down and thought this is too much for me. I started getting a bit paranoid and felt like I needed to watch my back. I was counting down until I finished work. I didn’t see TK again on that date.
74. At no time did I give TK permission to touch me in any way.

1. [11]
   The complainant’s evidence as to those events was unshaken by cross-examination.
2. [12]
   She did not accept propositions that the respondent asked for permission to give her a comforting hug and later to check her sinuses.
3. [13]
   Despite extensive cross-examination as to the events leading up to the touching of her breast on 21 July 2017, including by reference to progress notes, the complainant maintained her version of events.
4. [14]
   The complainant spoke to Jacqui about the respondent by phone whilst driving home from work on 21 July 2017 and in person on 24 July 2017. The complainant spoke to her mother about the respondent on 24 July 2017 and her partner later that evening. On 25 July 2017 the complainant met with Jacqui and Dr Sivagurunathan, the owner and manager of the practice and complained about the respondent. She made a statement to police later that evening.
5. [15]
   The complainant was cross-examined about asserted inconsistencies between her evidence and the evidence of the complaint witnesses. She conceded a limited recollection as to the details of those conversations but denied any contended inconsistencies were because she was lying in her evidence.
6. [16]
   The complainant never returned to work at the practice.

Evidence of other witnesses for the applicant

7. [17]
   Affidavits of Jacqui McLeod, Dr Sivagurunathan, and the complainant’s mother are in evidence. Jacqui McLeod and the complainant’s mother were cross-examined.
8. [18]
   Ms McLeod’s affidavit evidence that the respondent was invasive of her personal space and her description of the respondent touching her on the hand or arm or shoulder was not challenged in cross-examination.

Evidence of the respondent

11. [19]
    In his affidavit, the respondent deposed to his education, qualifications and practice in Sri Lanka before emigrating to Australia in 2014 and his subsequent practice as a general practitioner in Australia. He commenced employment at the practice in March 2017. He describes his usual working hours, the layout of the practice, his use of the treatment room and states:

35. My recollection of the first occasion on which I met [the complainant] is as follows. On Monday 17 July 2017 I saw a patient in My Room who told me that their ears were blocked with wax. This was the patient who I saw at 12:05pm and whose progress notes are at page 8 of the Selliah Exhibit. My usual procedure was to check the patient’s ears using an auroscope in My Room, and then decide whether to take the patient to the Treatment Room to use an ear syringe to flush was out of the ear canal. However, because of some things the patient told me, I anticipated that I would need to use an ear syringe to flush wax out of the patient’s ear canal, and I took the patient to the Treatment Room prior to checking the ears using an auroscope.
36. When the patient and I arrived at the Treatment Room, I met a new nurse who I now know to be [the complainant]. I asked [the complainant] to collect the ear syringe equipment. in the meantime, I collected the auroscope. As I was about to use the auroscope to check the patient’s ears, [the complainant] said words to me to the effect in the presence of the patient:

Can I do it?

I was upset with [the complainant] for asking me in the presence of the patient whether she could check the patient’s ears. Also, based on my observations, it appears to me that [the complainant] did not know where the ear syringe equipment was.

37. When I checked the patient’s ears with the auroscope, I observed there was only a small amount of wax in the ears. I decided it was not necessary to use an ear syringe to flush wax out of the patient’s ear canal. I told the patient that there was only a small amount of wax in the patient’s ears, it was not necessary to flush wax out of the ears and the patient could go to the reception desk to check out. Once the patient left the Treatment Room, I said to [the complainant] words to the effect:

“When I do a procedure, don’t interrupt. That will upset the patient”

38. I think I asked [the complainant] to document the consultation on the FGFP’s medical practice system.
39. On Monday afternoon I saw three patients from the same family at the same time – a mother with a teenage son and daughter. These were the patients whose progress notes are at pages 13-15 of the Selliah Exhibit.
40. The patients each wanted a flu vaccine. I went to the Treatment Room while the patients remained in My Room. I saw [the complainant] in the Treatment Room. I asked her if we had flu vaccine in stock. While I collected gauzes, alcohol strips and other equipment for the vaccinations, [the complainant] checked in the fridge for the vaccine. [the complainant] then told me we had flu vaccine in stock, but she gave me the wrong vaccine. I told her that she had given me the wrong vaccine. I then located the vaccine myself.
41. Now that I was satisfied that the flu vaccine was in stock. I returned to My Room and collected the patients and brought them to the Treatment Room. I then vaccinated the patients in the Treatment Room, took the patients back to My Room, and then wrote progress notes for each patient, which are the notes at pages 13-15 of the Selliah Exhibit.
42. During the consultation with the patients, the mother expressed concern to me about the pneumococcal vaccine. I think she expressed concern on behalf of another person, such as her husband or a friend. I recall that I needed to check if FGFP had the pneumococcal vaccine in stock. She also asked another question about the vaccine which I could not answer immediately, although I no longer recall the precise question. I walked to the Treatment Room. I observed that FGFP had the pneumococcal vaccine in stock in a fridge. [Tthe complainant] was in the Treatment Room. I had a discussion with [the complainant] about the pneumococcal vaccine with the intention of educating [the complainant]. I wrote on a piece of paper live vaccine details as a pneumonic – “MMR V BOYS” and explained the meaning of the pneumonic to her.

43. [The complainant], in paragraphs 12 to 16 of her affidavit, sets out her recollection of the first occasion on which she and I met. The “team room” to which [the complainant] refers appears to be what I describe above as the Staff Room. I do not recall the event [the complainant] describes. It is possible that we first met in the Staff Room. If we first met on this occasion, I deny that my “demeanour changed” or that I was “interested in” [the complainant].
44. [The complainant], in paragraph 19 of her affidavit, states that throughout the day I “came into the treatment room maybe three times” and I “came in three times with no real reason”. In paragraph 26 above I set out my recollection of the number of times each day, and reasons, I entered the Treatment Room.
45. [The complainant], in paragraph 19 of her affidavit, adds that “normally the doctors wouldn’t come into the treatment room when a patient wasn’t there”. In the period I worked at FGFP, I observed other doctors at FGFP in the Treatment Room to get medicine, medical equipment or supplies.
46. [The complainant], in paragraphs 21 and 24 of her affidavit, states that [the complainant] and I had a conversation during which I touched her face, “was…holding [her] cheeks with both hands”, and “was holding [her] face for about five seconds”. I did not touch or hold [the complainant]’s face or cheeks during a conversation between us or at any other time.
47. My recollection is that on Tuesdays CJ started work after 2pm. No other doctor usually used the room I have marked Dr 1 until then.
48. In the period I worked at FGFP, I think baby vaccinations were arranged to take place on Tuesdays. Jacqui usually did the baby vaccinations. For vaccinations before 2pm, Jacqui usually did the vaccinations in the room Dr 1.
49. On the morning of Tuesday 18 July I entered the room Dr 1 to borrow an auroscope. While I usually walked to the Treatment Room if I needed an auroscope to examine a patient’s ears, I knew there was an auroscope in CJ’s room and that CJ was not at work on Tuesday mornings. Since CJ’s room was closer to My Room than the Treatment Room, it was faster for me to use the auroscope in CJ’s room – that is room Dr 1. At the time I entered room Dr 1, I observed that Jacqui was giving a vaccination to a baby in the room, and [the complainant] was watching Jacqui.
50. [The complainant], in paragraph 27 of her affidavit, states:

“I was learning how to give injections to babies and toddlers. I was buddied up with Jacquie for the day and she was teaching me.”

This statement is consistent with what I observed when I entered CJ’s room.

51. [The complainant], in paragraph 28 of her affidavit, states that I “wasn’t coming into the treatment room as much” on Tuesday 18 July. However, as stated in the above paragraph, on one occasion during the day I observed that [the complainant] was working in room Dr 1 and not in the Treatment Room.

52. [The complainant], in paragraph 29 of her affidavit, states that I “completely changed around Jacquie”. I deny that I “changed around Jacquie”. I behaved towards Jacqui in the same way that I behaved towards [the complainant].
53. On Thursday morning I saw a patient. I think it was a female patient. This was the patient whose progress notes are at page 22 of the Selliah Exhibit with the time 9:30am at which I opened the patient’s file. The progress notes indicate that I reviewed an ECG (electrocardiogram) print-out for a patient. At page 19 of the Selliah Exhibit is a progress note by [the complainant] at 9:06am concerning an ECG. Based on my familiarity with the system at FGFP at the time, the patient the subject of [the complainant]’s entry at 9:06am was the patient whose file I opened at 9:39am.
54. On Thursday morning I first met the patient in the Treatment Room. I expect I met the patient in the Treatment Room after I opened the patient’s file at 9:39am. [the complainant] had done an ECG before I met the patient. At the time I saw the patient, I think she was still connected to the ECG equipment. I no longer recall if [the complainant] gave me the ECG print-out or if I looked at the ECG on the computer screen. The quality of the ECG reading was not good. There was an abnormality or overlapping of lines, although I no longer recall the precise problem. I was unable to read the ECG reading. I asked another female doctor to help me do a second ECG. I could not do the ECG myself. One reason was that the patient was female. Another reason was that I was not familiar with the computer system attached to the ECG machine. I did not ask [the complainant] to do the second ECG because I did not trust her to do it properly. I must have received the second ECG print-out before 9:52am, since I opened a file for the next patient at 9:52am. The quality of the second ECG print-out was fine. After reviewing the second ECG print-out, I spoke with the patient about the results of the ECG (based on the second ECG print-out) and then typed the progress notes at page 22 of the Selliah Exhibit.
55. Because of the abnormality or overlapping of lines on the first ECG print-out, I believed that [the complainant] had placed some ECG connector’s on the patient’s body in the wrong place. Before I took my lunch break, I went to the Treatment Room to speak with [the complainant] about the first ECG print-out which I found difficult to read. I said to [the complainant] words to the effect:

“You gave me an ECG print-out today which was difficult to read. You may not know how to place the ECG leads properly. I will show you.”

I then described to [the complainant] where to place the ECG leads using my body as an example. For example, in relation to the first six leads which are placed on the chest, I pointed to places on my chest to show where to place the leads. I then returned to My Room.

56. At page 24 of the Selliah Exhibit is a record of an entry by [the complainant] in the progress notes at 9:56am. Based on my familiarity with the system at FGFP at the time, at this time [the complainant] was documenting the steps she took before undertaking the first ECG the subject of her progress note at 9:06am.
57. After I returned to My Room, I was concerned that I had criticised [the complainant] in the conversation in paragraph 55 above and thereby upset her. I needed to return to the Treatment Room for a separate reason in connection with a vitamin 12 injection. When I returned to the Treatment Room, I saw [the complainant]. She looked upset. We had a conversation which included words to the following effect:

TK: Are you OK? I am sorry if I upset you earlier. Is it OK if I give you a hug?

[The complainant] nodded. I then have [the complainant] a light hug from the side for one or two seconds.

58. [The complainant], in paragraph 31 of her affidavit, refers to an occasion when I gave her a hug. I accept that I hugged [the complainant] on one occasion on Thursday. My recollection of the event, and explanation for hugging [the complainant], is set out in the above paragraph. To the extent that [the complainant]’s description of the incident is different to mine, her recollection is wrong.
59. [The complainant], in paragraph 33 of her affidavit, refers to an occasion when I touched [the complainant]’s face and covered her eyes. In reply:
    1. a.
       I do not recall an occasion on Thursday when I entered the Treatment Room and [the complainant] was at the computer in the Treatment Room.
    2. b.
       I deny that I touched [the complainant]’s face and covered [the complainant]’s eyes as described by [the complainant].
60. [The complainant], in paragraph 37 of her affidavit, refers to an occasion when I pressed my thumbs into her face on either side of her nose. On Thursday I observed that [the complainant] had a runny nose, congested eyes, and wetness and crusting on the tip of her nose. I believed that [the complainant] had an upper respiratory tract infection or sinusitis or mild conjunctivitis. I was worried that [the complainant] may spread her infection to others. I was also worried whether she could continue working. We had a conversation which included words to the following effect:

TK: Are you OK? Do you have a sinus problem? C: I have a cold.

TK: Is it OK for you to continue to work? I can tell the practice manager so that you can go home.

C: I can still work.

TK: Is it OK to check your sinuses?

[The complainant] nodded and stepped towards me. I checked for sinus problems. I checked the frontal, ethmoidal and maxillary sinuses for tenderness. This involved lightly and briefly pressing with my thumbs on either side of [the complainant]’s nose, as well as just below the eyes. When I pressed at these spots, [the complainant] said she felt slight pain. This examination confirmed my opinion that [the complainant] had URTI.

61. [The complainant] and I then had a conversation which included words to the following effect:

TK: You have URTI. It is better that you go home and rest. If you wish, I can inform the practice manager. You can go home and rest over the weekend.

C: It is OK. I will continue working.

62. [The complainant], in paragraph 39 of her affidavit, states that at around 9:30am I came into the Treatment Room and hugged [the complainant]. In reply:
    1. a.
       I deny that this event occurred.
    2. b.
       According to the progress notes in the Selliah Exhibit, on Friday morning I opened a file for one patient at 9:09am, the next patient at 9:25am, the next patient at 9:47am and the next patient at 9:58am – see pages 51-54 of the Selliah Exhibit. Based on my review of the progress notes for each patient. I did not need to go to the Treatment Room in this period.

63. [The complainant], in paragraphs 40 and 41 of her affidavit, states that “later in the day” [the complainant] conducted an ECG on a female patient who was walk-in and wasn’t a regular patient, [the complainant] was concerned that the results of the ECG looked funny. [The complainant] showed the results to me, and I then saw the patient in my office. In reply:
    1. a.
       The progress notes indicate that, in relation to patients I saw involving ECGs, I opened a file for one patient at 10:19am (page 55 of the Selliah Exhibit) and a second patient at 12:51pm (page 61 of the Selliah Exhibit). At 12:36pm I opened a file for a patient in which I referred to an old ECG in setting out the patient’s history (page 60 of the Selliah Exhibit)
    2. b.
       I expect that the patient to whom [the complainant] refers is the patient for whom I opened a file at 10:19am. Among other reasons, according to my notes, this patient was “visitor temporarily from NZ”.
    3. c.
       At 10:49am [the complainant] imported data from an ECG onto the FGFP computer system. Based on my familiarity with the system, I believed this was in respect of the patient whose file I opened at 10:19am.
    4. d.
       Sometimes I see a patient in My Room, arrange an ECG when I see the patient, the patient has the ECG, and I then see the patient again after reviewing the ECG print-out. On other occasions, the patient has an ECG before I see the patient and I then see the patient for the first time after reviewing the ECG print-out. For the patient the subject of the progress notes by me at 10:19am and [the complainant] at 10:49am, aided by the content of my progress note, I believe that I firstly saw the patient in My Room and then ordered and ECG when I saw the patient. One reason for this conclusion is that I describe the result of the ECG at the end of the progress note. Assuming that I firstly saw the patient in My Room and then ordered and ECG for the patient, I would have taken the patient to the Treatment Room for [the complainant] to do the ECG. My usual practice was to remain in the Treatment Room while the ECG was done by the nurse and then, after the ECG, walk with the patient back to My Room where I would discuss the results of the ECG with the patient.
64. [The complainant], in paragraphs 42 to 53 of her affidavit, states that, after seeing the female patient, I came to the Treatment Room, invited [the complainant] into My Room, and then, among other things, moved my hand under the back of her shirt and pressed my fingers into her lower back. In reply:
    1. a.
       After I finished seeing the patient, [the complainant] came to My Room. I think she came to my Room to give me a copy of the ECG print-out.
    2. b.
       I had a conversation with [the complainant] about preliminary examination of patients. I believe the conversation lasted for about three to five minutes. My intention was to educate [the complainant] about ECG print-outs.
    3. c.
       [The complainant] says in paragraph 45 that she sat down at my desk and we were sitting side by side. I disagree. [the complainant] sat down in the chair for patients. We were not sitting side by side.
    4. d.
       [The complainant] says in paragraph 45 that I asked her to shut the door. When I am talking with a patient or other person in My Room, my usual practice is to have the door to My Room shut because the waiting room is next to My Room. I may have asked [the complainant] to shut the door.
    5. e.
       [The complainant] says in paragraph 46 that I explained how “the different segments of the [ECG] reading…can identify heart failure”. I agree that I talked with [the complainant] about the signed of heart failure. However, one cannot identify heart failure using an ECG. I did not tell [the complainant] that the ECG reading can identify heart failure.
    6. f.
       [The complainant] says in paragraphs 45 and 46 that I wrote on a piece of paper. I agree that I wrote information on a piece of paper. I then gave the piece of paper to [the complainant] who was sitting in the chair for patients.
    7. g.
       [The complainant] says in paragraphs 46 and 47 that the discussion included a discussion about pitting oedema. I agree that I explained pitting oedema to [the complainant].
    8. h.
       [The complainant] says in paragraphs 49 to 51 that I moved my hand up under the back of her shirt and began pressing my fingers into her lower back. I deny that this incident occurred. I did not touch [the complainant]in any way.

65. [The complainant], in paragraph 54 of her affidavit, refers to an occasion “later in the day” when she conducted an ECG on one of my patients, she was using the spare machine because the normal machine was playing up. I was taking a lunch break, and I instructed [the complainant] to show me the results when I returned from my lunch break. After 12pm I saw an ECG print-out for the patient for whom I opened a file at 12:51pm (page 61 of the Selliah Exhibit). At 1:35pm [the complainant] typed a progress note for a patient – see page 64 of the Selliah Exhibit. The patient for whom I opened a file at 12:51pm appears to be the same patient the subject of [the complainant]’s progress note at 1:35pm. Both progress notes refer to a patient I saw:
    1. a.
       for whom I removed a suture over the right eyebrow; and
    2. b.
       who wanted or needed an ECG.
66. Based on [the complainant]’s description and progress note she typed at 1:35pm, the patient to whom [the complainant] refers in paragraph 54 of her affidavit appears to be the patient the subject of my progress note at 12:51pm and [the complainant]’s progress note at 1:35pm.
67. In relation to the patient for whom I opened a file at 12:51pm, I firstly saw this patient in My Room. He needed some stitches removed and he wanted an ECG. I walked with him to the Treatment Room. I removed the stitches. I then asked [the complainant] to conduct an ECG and bring the results to me in My Room. I then returned to My Room. Some time later [the complainant] brought the ECG print out to me in My Room. I looked at the ECG print-out while [the complainant] was in My Room. I observed the ECG showed that the patient had a left bundle branch block. I did not touch [the complainant] while she was in My Room.

68. My progress note indicates that I consulted with the patient after reviewing the ECG print-out. [The complainant] says in paragraph 54 of her affidavit that she “conducted the test and the patient left”. This is not correct. My progress notes indicate that I saw and spoke with the patient after I saw the ECG print-out.
69. [The complainant], in paragraphs 55 to 65 of her affidavit, sets out her recollection of an interaction between us when I returned from my lunch break in connection with the ECG print-out for this patient. In reply:
    1. a.
       I deny that the interaction occurred as stated by [the complainant].
    2. b.
       If the patient the subject of the ECG print out is the patient for whom I typed a progress note at 12:51pm, I had a readable ECG print out by 12:51, since my progress note records that the ECG print out showed “normal sinus rhythm” and “complete LBBB”, which is short for left bundle branch block.
    3. c.
       [The complainant] says in paragraph 55 that “the results [of the ECH print out] didn’t appear readable in parts”. She also wrote in her progress note at 1:35pm “Unable to get good reading? machine broken? try again next visit”. Aided by the progress note I wrote at 12:51pm, I was able to read the ECG print out. I recorded that the ECG print out showed “normal sinus rhythm” and “complete LBBB”, which is short for left bundle branch block. I would not have written these words in the progress note unless I could read the ECG print out.

ld. Today I have no actual recollection of the time at which I took a lunch break on Friday 21 July. Aided by the progress notes, I believe that I commenced my lunch break after typing notes for a patient whose files I opened at 12:51pm. According to the progress notes, I opened a file for my next patient at 2:14pm. I expect that I commenced seeing this patient around this time. According to the progress notes, I opened a file for the following patient at 2:25pm. I expect that I commenced seeing this patient immediately after I finished seeing the 2:14pm patient.

70. [The complainant], in paragraphs 66 to 74 of her affidavit, refers to an incident which she says occurred around 3:30pm. I deny that this or any similar incident occurred.

9. [20]
   The respondent denied saying to the complainant words to the effect of “If you ever need help with anything or ever want to know anything, come and ask me” because he would never use “this kind of complex English.”
10. [21]
    The respondent’s evidence during cross-examination as to how a doctor would conduct an examination for pitting oedema was defensive and unconvincing.
11. [22]
    It became clear during cross-examination that the respondent had reconstructed his memory of events based upon his subsequent perusal of progress notes. His evidence when cross-examined about the treatment of the patient recorded in the progress notes at page 211 of the hearing brief was most unsatisfactory, self-serving and suggestive of reconstruction and recent invention.

Consideration

12. [23]
    The complainant was an impressive witness during her viva voce evidence. She was responsive during cross-examination and prepared to make reasonable concessions.

13. [24]
    She was unshaken by cross-examination and forthright in adhering to her evidence on central matters concerning the conduct of the respondent.
14. [25]
    Her account had an internal logical consistency of progressive increasing physical intimacy by the respondent towards her under the guise of workplace interactions and “education”. The detail was inconsistent with fabrication and consistent with an account of lived experience. The complainant on occasion displayed embarrassment and distress in recounting the more egregious behaviour of the respondent.
15. [26]
    No motive to lie was suggested to the complainant and none could be discerned. She ceased employment she had only recently obtained as it suited her physical limitations.
16. [27]
    The asserted inconsistencies between the details of the complainant’s evidence and her complaints to others were not such as to detract from the credibility of the complainant. To a large extent her complaints were consistent and, viewed as a whole, the complaint evidence enhanced the complainant’s credit. Any inconsistencies were readily explicable by reason that the complainant would approach the task of confiding her story in different ways depending on the nature of her relationship with the person to whom she is speaking and the circumstances surrounding that conversation, and the normal frailties of human recollection, including that of the complaint witnesses as well as the complainant.^[2]
17. [28]
    Much was sought to be made as to the inconsistency between the evidence of the complainant as to the circumstances of the patient the subject of the progress notes at page 211 of the hearing brief and the evidence of the respondent on that subject, supported, it was submitted, by the contemporaneous notes. As earlier noted, the complainant was unshaken by cross-examination on such matters, for example, remaining certain that the patient had left the practice after the ECG without any further consultation with the respondent, despite what might have been inferred to the contrary from the notes. On the other hand, as also earlier noted, the respondent’s evidence on the topic was self-serving and suggestive of reconstruction. I place little reliance upon an apparent discrepancy by inference from a note created by the respondent given my overall findings on the credibility of the respondent.
18. [29]
    The complainant impressed as an honest and reliable witness.
19. [30]
    Even after making due allowance for the respondent’s English language handicap, the limitations of audio-visual evidence and the stress associated with giving evidence in defence of serious allegations, the respondent was a most unimpressive witness.
20. [31]
    The respondent was dogmatic and defensive and not prepared to make reasonable concessions. He gave unresponsive and verbose evidence in response to relevant questions. He repeatedly resorted to histrionics.
21. [32]
    As to the crucial matters for determination, I prefer the evidence of the complainant to that of the respondent. After a consideration of the whole of the evidence, I am satisfied to the requisite standard of those matters alleged in the particulars of the charge. I am satisfied that the respondent has engaged in the conduct the subject of the charge.

Characterisation of the conduct

33. [33]
    “Unprofessional conduct” is defined in section 5 of the National Law as “professional conduct that is of a lesser standard than that which might reasonably be expected of a health practitioner by the public or the practitioner’s professional peers”.

33. [34]
    “Professional misconduct” is defined in section 5 of the National Law as including “unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience”.

33. [35]
    The meaning of “substantial” was considered by the Full Court of the Supreme Court of South Australia in Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167 at [110]:

…it is apparent that what is required is more than a mere departure from the standard of conduct required of a practitioner. In the context of this appeal, “substantial” connotes a large or considerable departure from the standard required. This large or considerable departure could be the result of the extent and seriousness of the departure from the requisite standard of conduct, the deliberateness of the conduct, the consequences for the client or other aspects of the conduct.

36. [36]
    The respondent’s conduct was a large and considerable departure from the standard expected of a registered health practitioner of his level of training and experience. The features demonstrating the extent of such departure include:

1. the sexual nature of the assault;
2. the significant power imbalance between the respondent and the complainant, and between their respective roles as medical practitioner and registered nurse new to the practice;
3. the persistent and calculated grooming type behaviour leading up to and following the sexual assault;
4. the significant impact of the assault upon the complainant’s emotions and employment.

37. [37]
    Pursuant to s 107(2)(b)(iii) of the HO Act, the Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

Sanction

38. [38]
    The respondent left Australia in October 2017. His temporary work (skilled) visa was cancelled in November 2017 and he has not returned to Australia. His registration lapsed on 31 October 2020.

39. [39]
    In considering the matter of sanction, the Tribunal must be mindful that the main principle for administrating the HO Act is that the health and the safety of the public are paramount. Purposes of sanction are protective, not punitive. As has been noted in many previous decisions, often citing Craig v Medical Board of South Australia (2001) 79 SASR 545 at 553-555, the imposition of sanction may serve one or all of the following purposes:

1. preventing practitioners who are unfit to practise from practising;
2. securing maintenance of professional standards;
3. assuring members of the public and the profession that appropriate standards are being maintained and that professional misconduct will not be tolerated;
4. bringing home to the practitioner the seriousness of their conduct;
5. deterring the practitioner from any future departures from appropriate standards;
6. deterring other members of the profession that might be minded to act in a similar way; and
7. imposing restrictions on the practitioner’s right to practise so as to ensure that the public is protected.

39. [40]
    The Tribunal considers the conduct of the respondent to be very serious. It was a gross departure from the standards expected of a medical practitioner. It involved a serious invasion of the personal integrity of the complainant and it had serious consequences for her.

39. [41]
    The respondent’s conduct was disgraceful and deserves the denunciation of the Tribunal by way of a reprimand. A reprimand is not a trivial penalty and has the potential for serious adverse implications to a professional person.^[3] A reprimand is a matter of public record, affecting the reputation of a practitioner.^[4]

39. [42]
    In all the circumstances, including the time that has passed since the lapse of the respondent’s registration and the unlikelihood of him seeking reregistration as a medical practitioner in Australia, no further orders are required to meet the purposes of sanction.

39. [43]
    Accordingly, the Tribunal orders:

1. Pursuant to section 107(2)(b)(iii) of the Health Ombudsman Act 2013 (Qld), the Tribunal finds that the respondent has behaved in a way that constitutes professional misconduct;
2. Pursuant to section 107(3)(a) of the Health Ombudsman Act 2013 (Qld), the respondent is reprimanded.