QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Health Ombudsman v Kumar [2024] QCAT 132	
PARTIES:	HEALTH OMBUDSMAN	

(applicant)	

	v	
	PRAVEEN KUMAR	

(respondent)	

APPLICATION NO/S:	No. OCR 226 of 2022	
MATTER TYPE:	Occupational regulation matters	
DELIVERED ON:	8 April 2024
22 May 2024 (ex tempore)	
HEARING DATEs:	16, 18–19, 23–27 October, 27 November, 12 December 2023 & 22 May 2024	
HEARD AT:	Brisbane	
DECISION OF:	Judicial Member Murphy SC
Professor P Baker, Medical Practitioner Panel Member
Dr J S Phipps, Medical Practitioner Panel Member
Ms C Ashcroft, Public Panel Member	
ORDERS:	8 April 2024:
1.	Pursuant to s 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.	As to sanction:
(a)	Oral submissions by the parties or their legal representatives will be heard by the Tribunal at 10:00am on 22 May 2024.
(b)	The parties or their legal representatives shall file by email to Associate.DannJDC@courts.qld.gov.au, and serve by contemporaneous backcopy to the other party and their legal representative, a written outline of submissions and authorities relied upon, according to the following timetable:
(i)	the applicant, no later than 4:00pm on 8 May 2024; and
(ii)	the respondent, no later than 4:00pm on 15 May 2024.
22 May 2024:
1.	Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
(a)	the contents of a document or thing filed in or produced to the Tribunal;
(b)	evidence given before the Tribunal; and
(c)	any order made or reasons given by the Tribunal;
is prohibited to the extent that it could identify or lead to the identification of any patient of the respondent or any family member of those patients, or any family member of the respondent, save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).
2.	Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
(a)	a judicial member;
(b)	a tribunal member;
(c)	an associate appointed under the:
(i)	Supreme Court Act 1991 (Qld);
(ii)	District Court Act 1967 (Qld);
(iii)	Land Court Act 2000 (Qld); or
(iv)	Queensland Civil and Administrative Tribunal Act 2009 (Qld);
(d)	any assessor appointed to assist the Tribunal;
(e)	the staff of the Tribunal registry;
(f)	any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
(g)	the parties to this proceeding.
3.	Pursuant to s 125(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the reasons for decision in respect of sanction delivered ex tempore on 22 May 2024 be consolidated with the reasons for decision as to conduct delivered on 8 April 2024 and thereafter be published in consolidated form.
4.	Pursuant to ss 151(2)(b) and (3)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the relevant day from which the time limit for the filing of an application for leave to appeal or an appeal against this decision is the date of the publication of the consolidated reasons.
5.	Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.
6.	Pursuant to s 104(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner indefinitely.
7.	Pursuant to ss 102(1) and 107(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent shall pay the applicant’s costs of the proceedings, fixed in the amount of $60,000.00.	
CATCHWORDS:	PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCIPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT — GENERALLY — where disciplinary proceedings commenced against general practitioner — where multiple allegations of inappropriate conduct — where the respondent is a wholly deceitful and unreliable witness — professional misconduct established
PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCIPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT — DEPARTURE FROM ACCEPTED STANDARDS — where allegations made that respondent’s care and clinical practice fell substantially below standard of peers — professional misconduct established
PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCIPLINARY PROCEEDINGS — PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT — SANCTION — where the respondent’s registration is cancelled — where the respondent is prohibited from applying for registration indefinitely
ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — disciplinary referral under Health Ombudsman Act 2013 (Qld)
ADMINISTRATIVE LAW — ADMINISTRATIVE TRIBUNALS — QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL — COSTS — where Ombudsman referred complex proceedings to Tribunal — where the practitioner unnecessarily impeded the progress of the proceedings — where the applicant was ultimately found to be deceitful and wilfully obstructive — where the Ombudsman incurred significant expense — approach to costs — whether the interests of justice require an order for costs — whether aspects of practitioner’s resistance unreasonable — order for fixed, limited costs made
Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Queensland)
Human Rights Act 2019 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Australian Securities and Investment Commission v Hellicar [2012] HCA 17; 247 CLR 345
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Brockhurst v Rawlings [2021] QSC 217
Craig v Medical Board of South Australia [2001] SASC 169; 79 SASR 545
Fittock v Legal Profession Conduct Commissioner (No 2) [2015] SASCFC 167; 124 SASR 300
Health Care Complaints Commission v Haasbrook (2018) NSWCATOD 177
Health Care Complaints Commission v FLJ (2023) NSWCATOD 7
Health Ombudsman v ANP [2022] QCAT 6
Health Ombudsman v Antley [2016] QCAT 472
Health Ombudsman v Arora [2019] QCAT 200
Health Ombudsman v Duggirala [2021] QCAT 326
Health Ombudsman v Fletcher (No 2) [2021] QCAT 241
Health Ombudsman v Hoddle [2022] QCAT 142
Health Ombudsman v JTM [2020] QCAT 394 
Health Ombudsman v YPG [2022] QCAT 422 
Health Ombudsman v XPW [2021] QCAT 403
Helton v Allen [1940] HCA 20; 63 CLR 691
Hewett v Medical Board of Western Australia [2004] WASCA 170
Honey v Medical Practitioners Board of Victoria [2007] VCAT 526
Legal Services Commissioner v Madden (No 2) [2008] QCA 301; [2009] 1 Qd R 149
Longman v The Queen [1989] HCA 45; 168 CLR 79
Marzini v Health Ombudsman (No 4) [2020] QCAT 365
Medical Board of Australia v Dolar [2012] QCAT 271
Medical Board of Australia v Duggirala [2015] QCAT 557
Medical Board of Australia v Griffiths [2017] VCAT 822
Medical Board of Australia v Jansz [2011] VCAT 1026
Medical Board of Australia v POS [2019] VCAT 1678
Medical Board of Queensland v Alroe [2005] QHPT 4
Morley v Australian Securities and Investments Commission [2010] NSWCA 331; 247 FLR 140
Parker v QFES Commissioner & Anor [2020] QSC 370; 6 QR 361
Queensland Building and Construction Commission & Benton v Egan (No 2) [2023] QCATA 163
Ratten v The Queen  [1974] HCA 35; 131 CLR 510
Re Day [2017] HCA 2; 340 ALR 368
Refjek v McElroy [1965] HCA 46; 112 CLR 517
Tamawood Ltd v Paans [2005] QCA 111; [2005] 2 Qd R 101
TRG v Board of the Trustees of the Brisbane Grammar School [2019] QSC 157
Trustees of the Property of Cummins v Cummins [2006] HCA 6; 227 CLR 278	
APPEARANCES & REPRESENTATION:	

Applicant:	
C Templeton instructed by Office of the Health Ombudsman	

Respondent:	
G M Elmore instructed by Beavon Lawyers	

Index to Reasons for Decision
Reasons For Decision — 8 April 2024
How Does the Health Ombudsman Frame its Case?
What Legal and Procedural Issues are Raised by Dr Kumar?
Is Dr Kumar Disadvantaged by Delay in the Proceedings?
What Is the Effect of Evidence Not Called?
What is the Role of Published Guidelines and Codes of Conduct?
Is The Right to Privacy Relevant?
Do Allegations of Criminal Conduct Affect the Standard of Proof?
What Conduct Is Alleged and Proved?
A.	Allegations Of Forgery and False Documents
Who Authored and Witnessed Ms JW’s Statutory Declaration?
Who Authored and Signed Ms B’s Statutory Declaration and Letter?
Who Signed and Witnessed Ms W’s Consent Forms?
B.	Ms D’s Allegations of Rape and Sexual Relationship
Was There a Sexual Relationship Between Doctor Kumar and His Patient Ms D?
Are Ms D’s Allegations of Rape Established?
C.	Other Allegations of Sexual Conduct
Was There a Sexual Relationship Between Dr Kumar and His Patient Ms B?
Was Ms JW Dr Kumar’s Patient During Their Sexual Relationship?
Did Dr Kumar Inappropriately Touch Ms V?
D.	Allegations of Coercion and Coercive Behaviour
Did Dr Kumar “Coerce” Ms B into a Sexual Relationship?
Did Dr Kumar “Coerce” Ms JW’s Statutory Declaration?
Did Dr Kumar “Coerce” Ms JW to Remove Her Temporary Protection Order?
Did Dr Kumar Coerce Ms D to Withdraw Complaints?
D.	Assaults, Threats and Abusive Language
Allegations Concerning Ms D
Allegations Concerning Ms B
Allegations Concerning Ms JW
E.	Allegations of Monetary Inducements
Did Dr Kumar Offer Ms D Money to Make a False Complaint?
Did Dr Kumar Offer or Arrange a Monetary Inducement to Ms V’s Father?
F.	Financial Transactions with Patients
Did Dr Kumar Receive Money From His Patient Ms B?
Did Dr Kumar Receive Money and Jewellery From Ms D?
G.	Medical Procedures and Clinical Practice
Was Pre-Procedure Advice and Assessment Appropriate and Adequate?
Was Dr Kumar Qualified to Perform the Procedures Undertaken?
Were Procedures Performed Below the Standard Expected?
Were Clinical Notes and the Post-Procedure Plan and Care Adequate?
Did Dr Kumar Fail to Engage With Ms W’s Post-Procedure Concerns?
Was Dr Kumar’s Clinical Environment Inadequate to Conduct the Procedures?
H.	Other Allegations By the Health Ombudsman
Established Conduct - Summary Of Findings
Forgery and False Documentation
Sexual Conduct
Assaults, Threats and Derogatory and Abusive Language
Monetary Inducements
Financial Transactions with Patients
Medical Procedures and Clinical Practice
False or Misleading Conduct Involving the Health Ombudsman
Is Professional Misconduct Established?
Conduct Other Than Relating to Medical Performance
Conduct Relating to Medical Performance
Is Dr Kumar a Fit and Proper Person to be registered?
Sanction
Orders — 8 April 2024
Reasons For Decision — 22 May 2024 (Ex Tempore)
What issues are to be determined?
What are the applicable principles?
Is cancellation of Dr Kumar’s registration appropriate?
What factors should inform the decision as to the period of prohibition?
The Referral History and General Character
Insight, Remorse and Appreciation of Ethical Standards.
The Seriousness of the Conduct and the Comparative Cases
What is meant by the submission that prohibition should extend indefinitely?
Costs
Orders — 22 May 2024
Schedule To The Written Reasons For Decision Of The Tribunal

Reasons For Decision — 8 April 2024
[1]	In August 2000, Dr Praveen Kumar became registered as a medical practitioner in Australia.  Four years later he commenced practice as a general practitioner in Townsville.  In 2011 he became a Member of the Royal Australian College of General Practitioners and was registered as a specialist general practitioner in August 2012.
[2]	Dr Kumar set up his own practice in 2008 and practised at its clinics in the Townsville area until 30 August 2016.  On that date, Dr Kumar’s registration was suspended.  He remains suspended.
[3]	That suspension was the culmination of a lengthy investigation by Health Ombudsman investigators. Included among the matters investigated are seven allegations of rape by one complainant.  Those allegations were the subject of separate criminal proceedings which were aborted for issues relating to the jury not currently relevant.  Ultimately a nolle prosequi was entered on 24 February 2023.
[4]	These proceedings result from the subsequent Referral by the Health Ombudsman to this Tribunal. 
How Does the Health Ombudsman Frame its Case?
[5]	The Referral, and Dr Kumar’s Response, are each in a form more familiar to a pleading in civil litigation. The Referral enumerates seven “Allegations”.  Almost all “plead” an assertion of alleged conduct followed by what are said to be “particulars”.  While some of the matters so “pleaded” meet that description, most are in fact separate allegations of conduct which themselves might meet the relevant statutory definitions.
[6]	Discussions during the hearing as to the necessity for the Health Ombudsman to identify and prove specific conduct led to its closing submissions articulating 64 separate allegations of conduct now framed as the relevant conduct to which Dr Kumar’s responsive submissions are directed and to which these reasons pertain. The conduct sought to be proved is set out in Grounds in the attached Schedule.  The Schedule forms part of these reasons.
[7]	The conduct alleged by the Health Ombudsman arises from complaints made by five women, anonymised in these reasons as Ms B, Ms JW, Ms D, Ms V and Ms W.  
[8]	It is not suggested by Dr Kumar that the women have colluded in making their respective allegations.  Neither does any evidence before the Tribunal point to that possibility.
[9]	By way of broad overview, the alleged conduct consists of the following:
(a)	Sexual conduct including seven allegations of rape (Ms D) and sexual conduct with a patient (Ms D; Ms B; Ms JW; Ms V); 
(b)	Forging signatures on documents including statutory declarations; a letter to investigating health authorities; and consent forms for procedures. (Ms B; Ms JW; Ms TW);
(c)	Physical assault and the use of derogatory and abusive language towards women (Ms D; Ms B; Ms JW);
(d)	Coercing Ms D to withdraw complaints to the health authorities and the police and coercing Ms JW to withdraw a temporary protection order;  
(e)	Offering a payment to withdraw a complaint (Ms V) and offering a payment to make a false complaint about another doctor at the practice (Ms D);
(f)	Engaging in financial transactions with two women who were patients (Ms D; Ms B) and failing to return all of the money provided; and
(g)	Performing procedures not qualified to perform; performing those procedures to an inadequate standard and other clinical failures (Ms W).
[10]	Some of the conduct grounds alleged by the Health Ombudsman are expressed as criminal offences they might be (for example, “rape” and “forgery”) or as conduct that might amount to criminal offences (for example, coercive threats). Submissions by counsel for Dr Kumar directed to asserted ramifications for the standard of proof are addressed below.  
[11]	A separate point should also be made at the outset.  Dr Kumar has not been convicted of those, or any, criminal offences.  These proceedings are not a de facto criminal trial.  Just as these proceedings are not a competition between truth and lies, nor are they directed to whether the elements of a criminal offence have been proved.  The proceedings are properly directed (in the first instance) to whether identified conduct has been established on the balance of probabilities.
What Legal and Procedural Issues are Raised by Dr Kumar?
[12]	A number of legal and procedural propositions are advanced in final submissions by counsel for Dr Kumar.  They are said to be of general application to all of the allegations made against Dr Kumar and effectively impact upon all of the findings to be made.  Those issues should be dealt with at the outset.
Is Dr Kumar Disadvantaged by Delay in the Proceedings?
[13]	It is submitted that “the Longman direction as it has been applied to civil cases should apply to every aspect of the applicant’s case”, because it:
… calls for circumstantial inferences to be drawn to establish forgeries, falsifications, and deception” and Dr Kumar’s ability to defend these allegations other than baldly denying them is disadvantaged by the passage of time. … [and Dr Kumar has] “lost the usual safeguards in a criminal trial concerning the joinder of criminal complaints”.
[14]	The delay in these proceedings has been caused in large part because of the need to await the outcome of criminal proceedings pertaining to the rapes alleged by Ms D. 
[15]	It is accepted that significant delay can impede recall, in particular the recall of detail.  It should also be accepted that delay is capable of causing prejudice to a respondent to disciplinary proceedings. Whether disadvantage is in fact established is a different question. The claimed disadvantage “must be actual and specific, not theoretical, hypothetical or assumed”. Axiomatically, the disadvantage must be identified and explained.  Neither requirement is satisfied here.
[16]	Dr Kumar’s affidavit of evidence in chief (sworn on 4 October 2023, some 12 days prior to the commencement of the Tribunal hearing) does not refer to, or hint at, any specific disadvantage or issue caused by delay.  The same is true of a second affidavit filed by Dr Kumar on the fourth day of the hearing.
[17]	The submissions on Dr Kumar’s behalf do not assert any specific disadvantage occasioned by delay.  For example, it is not asserted that witnesses were desired to be called but could not be contacted or were otherwise unavailable.  No inability to recall germane events was asserted by reason of the effluxion of time (or at all). Indeed, the opposite is true.  Dr Kumar contends for, and evidenced, a clear recall of detail.  A good example is his evidence as to whether he was the author of specific text messages sent or received some years ago. 
[18]	As to the balance of the submission, the Tribunal does not consider the reference to the protections of criminal procedure against joinder is apt to the instant circumstances.  
[19]	First, there are of course patent differences between the instant proceedings and the strict procedural and evidentiary requirements of a criminal trial.  The instant proceedings are an investigation into conduct in which the rules of evidence do not apply and where the Tribunal “may inform itself in any way it considers appropriate”.
[20]	Secondly and in any event s 5 of the National Law envisages in terms the Tribunal deciding multiple allegations of conduct, including similar conduct, so as to form a conclusion as to whether conduct meets the statutory definitions.
What Is the Effect of Evidence Not Called?
[21]	A number of different but related submissions are made by counsel for Dr Kumar pertaining to evidence not called by the Health Ombudsman.  It is submitted that the Health Ombudsman has “failed to obtain relevant and probative evidence”.  A failure to obtain and tender a “sexual assault assessment” which Ms D admits she underwent when complaining of rape to the police is an example.
[22]	It is contended, apparently similarly, that the Health Ombudsman’s investigators “failed to follow up ensuring the integrity of evidence”, citing a number of examples in respect of allegations made by Ms JW.   Similarly, it is contended there was a failure “to call material witnesses”. Eight specific instances are referred to.  They pertain to allegations emanating from each of the complainants.   In a similar vein, it is said with respect to Ground 26 that “[n]o corroborative witnesses were called about this occurrence despite [Dr Kumar] purportedly being with someone when this happened”.
[23]	Those submissions are rejected. The Health Ombudsman was under no obligation to call the evidence to which Dr Kumar’s submissions refer. Tribunal proceedings are a long way removed from the rules and strictures of a criminal trial, yet:
… even a criminal trial ‘is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing upon the question of guilt or innocence’. Each side in a criminal trial “is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility”.
[24]	Of course, the absence of evidence may, in appropriate circumstances, be taken into account but “the way in which [that may be done is] confined by known and accepted principles”.  Those principles, including, for example, the “rule in Jones v Dunkel”, are not relied upon here.  In any event, the circumstances do not permit the application of any such principle. The submissions on behalf of Dr Kumar do not identify what evidence would have resulted from the mooted sources or what factual issues would have been elucidated.  Conjecture about what may or may not have been the content of the mooted evidence is insufficient.
[25]	The real thrust of the submission is that the absence of the asserted corroboration and other evidence goes to the lack of strength or persuasiveness of the Health Ombudsman’s case.  In oral submissions, it was said the failure to call the evidence should be seen “through the lens of Briginshaw”  — that is, “the evidence adduced … is not sufficiently strong enough, or so unreliable, it cannot sustain any criminal finding”.
[26]	Counsel’s submission should not properly be seen as a submission which sustains the proposition that additional or other evidence should have been called; it is a submission as to the conclusions which should be drawn ultimately from the whole of the evidence called on a particular issue.  Whether the evidence is persuasive to the required standard in the absence of “missing” evidence falls to be considered, not with respect to any asserted missing or “uncorroborated” evidence, but rather by reference to whether the evidence which was in fact called or tendered in respect of each issue reaches the required degree of persuasion.   
[27]	Submissions for the Health Ombudsman contend an adverse inference should be drawn from the failure to adduce evidence from Ms R (called in Dr Kumar’s case) as to an alleged incident of assault for which Ms R was present.  The Tribunal declines to draw any such inference.  The reason lies in findings to be made about Ms R’s evidence more broadly which will be discussed below. 
What is the Role of Published Guidelines and Codes of Conduct?
[28]	Counsel for Dr Kumar submits:
In all practical terms, the applicant’s case is essentially one involving allegations of contraventions of the Medical Codes.  In fact, sections of the Medical Codes are relied upon as having been “breached” …
[29]	It is true that at least some allegations are framed by the Health Ombudsman in a manner that suggests a “breach” of relevant codes or guidelines gives rise to a finding of professional misconduct.  It is contended that the Tribunal would “act in error” if “a breach of the Medical Codes automatically permits a finding that conduct is unprofessional conduct or professional misconduct.”  That submission is accepted.
[30]	A broader submission is:
On one view then, to establish a case by reference to the Medical Codes, the applicant must establish that the respondent’s conduct:
a.	Varied significantly [and was]
b.	Serious and repeated.
[31]	An example is given from “Good Medical Practice: A Code of Conduct for Doctors in Australia – July 2009”:
If your professional conduct varies significantly from this standard, you should be prepared to explain and justify your decisions and actions.  Serious or repeated failure to meet these standards may have consequences for your medical registration. 
[32]	The point is expanded in oral submissions which frame a finding of “significant variance” from the code as being directly relevant when it comes to assessing Briginshaw.  Counsel also submitted:
If it’s asserted that the breach of the code is professional misconduct … if this tribunal then looks to the code to establish professional misconduct and in the entire document of that code, the code says it’s set out significant variation or a serious repeated failure, then plainly, in my submission, it is a relevant factor to whether or not professional misconduct has been established by a particular factual allegation if there’s been significant variation or it’s been serious and repeated failure.
[33]	That submission is rejected as in effect requiring proof of a matter not referred to in the relevant definition of sanctionable conduct contained in s 5 of the National Law.  
[34]	Section 41 of the National Law accords to codes or guidelines the status of evidence in relevant disciplinary proceedings. In doing so, the legislation makes clear what, in the absence of legislative provision, might otherwise be the subject of uncertainty or argument.  The “wide-ranging consultation” required prior to formulation and promulgation of the codes required by s 41 of the National Law suggests the contents of professional codes or guidelines can be a valuable piece of evidence in assessing whether specific conduct falls below the prescribed s 5 standards.
[35]	However, the legislation neither accords that evidence particular weight or importance nor makes any finding of “breach” of a code or guideline a pre-condition for meeting the statutory definitions. The legislation includes eight forms of conduct, including specified transgressions and contraventions, as included within the definition of “unprofessional conduct”.  Contravention or “breach” of the codes or guidelines is not included.  Nor indeed are professional codes or guidelines mentioned at all.  
[36]	Indeed, it is doubtful whether it is correct to refer to the codes being “breached” at all – at least in so far as that word connotes a prescribed standard non-adherence to which is productive of related outcomes. As has been put in Codes or Guidelines themselves:
This code is not a substitute for the provisions of legislation and case law.  If there is any conflict between this code and the law, the law takes precedence.
The Guide sets out general principles in relation to the practice of medicine.  It is not exhaustive and cannot cover all forms of professional practice or conduct which may bring your registration into question … The Guide complements the current legislation regulating medical practice in Queensland and provides a commentary on good medical practice that is consonant with that legislation.

Is The Right to Privacy Relevant?
[37]	Written submissions on behalf of Dr Kumar contend:
… disciplinary tribunals should be reluctant to make findings that private text exchanges between [domestic] partners are capable of amounting to unprofessional conduct or professional misconduct”.  This reluctance is informed by the need to on the one hand enforce the statutory framework of medical practitioner’s regulation, balanced against the right to privacy”.
[38]	The general principle there advanced is accepted.  The Tribunal (and relevant investigatory bodies) should be conscious of, and interpret and exercise their wide powers compatibly with, truly private matters remaining private.  However, there is a line - albeit perhaps imperfectly marked - beyond which matters that some might see as private and distinct from a practitioner’s professional bearing and performance, can and should be intruded upon.  
[39]	Many areas of the law, including the criminal law, properly intrude upon what might be considered “private matters”.  Family violence — once wrongly and egregiously regarded as the private concern of domestic partners — is an example.  So too is the proscription of solitary investigation and possession of particular forms of online material.  Behaviour is sanctioned because the protection of the public, or sections of the public, overrides any claims to privacy.
[40]	Transgressions of laws of that type have been properly held by Tribunals to constitute professional misconduct. The underlying rationale is effectively the same.  The National Law is primarily directed to protection of the public.  That protection extends to the maintenance of the trust and good standing bestowed by the public upon the profession. Actions that jeopardise that trust and good standing can properly be classified as professional misconduct.
[41]	It is the overriding protection of the public that justifies intrusion into a practitioner’s private life and prevents that intrusion being an “unlawful[ ] or arbitrar[y] interfer[ence]” with a right to privacy.
[42]	Counsel’s submissions have force to the extent that questions of degree and the particular circumstances of a case must necessarily remain relevant, particularly where conduct asserted to be a private matter has not been the subject of charge and sanction under the general law. 
Do Allegations of Criminal Conduct Affect the Standard of Proof?
[43]	Many of the allegations against Dr Kumar are framed in language more familiar to the criminal law.  Counsel for Dr Kumar contends, “where a civil tribunal is asked to find as facts things that would amount to criminal conduct, the evidence must be strongest when the consequences are the most severe”.
[44]	While this inquiry is not directed to whether criminal offences are made out, the fact that established conduct might also otherwise meet the description of serious criminal offences is an indicator of the seriousness of the asserted conduct.  It is the seriousness of the conduct (and the seriousness of the ramifications of findings for the practitioner) that have a consequent impact upon the degree of persuasion required for a finding that the conduct occurred.  However, that does not reframe the nature of the inquiry.  
[45]	As the High Court has held:
… in a civil proceeding, facts which amount to the commission of a crime have only to be established to the reasonable satisfaction of the tribunal of fact, a satisfaction which may be attained on a consideration of the probabilities”.
[46]	That is, the standard of proof remains the balance of probabilities but:
The tribunal must feel an actual persuasion of the occurrence or existence of a fact before it can be found. … An inference will be no more than conjecture unless some fact is found which positively suggests or provides a reason in the circumstances particular to the case, that a specific event happened, or a specific state of affairs existed”. [There must be more than] … conflicting inferences of equal degrees of probability so that the choice between them is [a] mere matter of conjecture.

[47]	Some of the instant allegations of misconduct can be seen as markedly less serious than other conduct. (Compare, for example, Ground 2 with Ground 17).  Nevertheless, the Tribunal is conscious of each allegation sitting within the context of a much broader picture, particularly as it may apply to any consideration of whether Dr Kumar is a fit and proper person to be registered as a medical practitioner.  The pause upon making findings on the balance of probabilities by reference to “inexact proofs, indefinite testimony, or indirect inferences” should extend to all of the allegations of conduct in the instant case.
What Conduct Is Alleged and Proved?
[48]	A number of allegations made by all of the complainants will require findings to be made as to which of two competing versions should be accepted without reference to any evidence beyond those competing versions.  The words of Gordon J earlier quoted ring loud.
[49]	In respect of very serious allegations concerning documents provided to the Health Ombudsman as part of its investigation, evidence other than from the immediate protagonists was called by the Health Ombudsman. It is proposed to deal with those allegations at the outset.
[50]	As will be seen, the Tribunal is entirely persuaded that certain conduct is established.  A consequence is that a long and dark shadow is cast over the veracity and reliability of Dr Kumar’s sworn evidence before the Tribunal more generally. 
A.	Allegations Of Forgery and False Documents
[51]	The Health Ombudsman alleges:
(a)	a statutory declaration signed by Ms JW on 2 May 2013 was authored by Dr Kumar; was not witnessed in her presence and that Dr Kumar forged the signature of a Justice of the Peace, Ms A, whose full name appears as the purported witness;
(b)	a letter dated 8 July 2011 sent to the Health Ombudsman purportedly by Ms B was authored by Dr Kumar and contained false information relevant to the Health Ombudsman’s investigation;
(c)	the same letter attached a statutory declaration purportedly signed by Ms B on 8 July 2011.  It is alleged Dr Kumar forged Ms B’s signature on the statutory declaration and it contained false information relevant to the Health Ombudsman’s investigation; and
(d)	two consent forms purportedly dated 17 September 2015 and 9 October 2015 respectively said to relate to two procedures performed by Dr Kumar for Ms W were, contrary to what appeared on the face of each, not signed by Ms W and were not witnessed by his practice nurse, Ms KW. The Health Ombudsman alleges Dr Kumar forged both signatures in about May 2016.  It is said no consent forms were signed ahead of either procedure.
[52]	It is alleged the purpose of each and all of those false documents was to deceive the Health Ombudsman and curtail or impede its proper investigation.
Who Authored and Witnessed Ms JW’s Statutory Declaration?
[53]	When the then 43-year-old Dr Kumar met the then 19-year-old Ms JW, she was working at McDonald's. Dr Kumar struck up conversations with her and later provided his business card to her.  In the second half of 2009, Ms JW became a medical receptionist at Dr Kumar's clinic. 
[54]	The Statement of Agreed Facts filed with the Tribunal admits that a sexual relationship subsisted “from about January 2010 to late 2013”. That accords with Ms JW’s evidence, noting that she says the relationship ended in September 2010 as did her employment.  The relationship was, it seems, “on again, off again” after that, and finally ended late in 2013 when Ms JW’s imposed “deadline about [Dr Kumar] ending his relationship with [Ms R]” was not met.
[55]	On 10 May 2013 Dr Kumar sent an email to the Health Ombudsman which said in part:
[T]o help me in my defence, I was pursuing a stat dec from [Ms JW], which I managed to get from her late last week because she was busy in a friend's wedding and uni work. I am submitting it attached with my previous email.
Who Authored the Statutory Declaration(s)?
[56]	As is self-evident from that email, Dr Kumar represented to the Health Ombudsman that the statutory declaration was authored by Ms JW.
[57]	The statutory declaration purportedly authored and signed by Ms JW and forwarded to the Health Ombudsman declares relevantly:
I have never received text messages from Dr Praveen Kumar threatening to commit suicide.
I attempted to get a domestic violence order against Dr Praveen Kumar after being influenced by [a former partner], but upon realising that I was being misled, I withdrew the application. …
[58]	Ms JW admits signing the statutory declaration but denies being its author.  She also denies it was declared and signed before the Justice of the Peace whose signature, name and details appear on the document or, indeed, declared and signed before any witness.
[59]	Ms JW contends the statutory declaration was authored by Dr Kumar, amended by him at her request, and ultimately signed by her after that amendment.  She says the statutory declaration she signed was preceded by two earlier drafts, each also authored by Dr Kumar, which she refused to sign.  
[60]	The documentary evidence before the Tribunal includes three emails sent to Ms JW by Dr Kumar. The first email was sent on 23 March 2013.  It attaches an “AHPRA notification”.  The email says, “Here’s the paperwork!  I had replied to them [i.e. Ahpra] in Sept, denying everything but now they are back with the DVO issue added to it.  PK”.  (The signature “PK” refers to how Dr Kumar is commonly known to many people and was used during the proceedings to refer to Dr Kumar not only by Ms JW but also, for example, by Ms R and Ms D).  
[61]	The second email was sent by Dr Kumar on 28 March 2013 says, “Hi.  Check this out please.  PK”.  The email attaches a “Commonwealth Statutory declaration form”. The third email sent by Dr Kumar to Ms JW is dated 1 May 2013 and says, “Hope this one sounds better”.  It too attaches a “Commonwealth Statutory declaration form”.
[62]	Ms JW says she refused to sign two earlier versions of the statutory declaration that had been sent to her by Dr Kumar because they contained a false statement that she had not received telephone calls where Dr Kumar had threatened to kill himself. Having raised those differences with Dr Kumar, she says he sent a third statutory declaration on 1 May 2013 which she ultimately signed.   That evidence is accepted.
[63]	There is no evidence which calls into question the provenance of the emails.  The documentary evidence supports an inference consistent with Ms JW’s evidence.  No one other than Dr Kumar had an interest in forwarding that (false) information to investigators.  The language used in Dr Kumar’s emails suggests clearly that he authored the emails and the versions of the statutory declarations they attached. 
[64]	Contrary to Dr Kumar’s sworn evidence, the Tribunal finds that Dr Kumar authored all versions of the statutory declaration, including that which Ms JW signed.
Who Witnessed the Statutory Declaration Signed by Ms JW?
[65]	The statutory declaration signed by Ms JW records on its face that it was witnessed by Ms A as a Justice of the Peace.  Ms A swore an affidavit and gave evidence before the Tribunal. Ms JW agrees with Dr Kumar that the statutory declaration was signed by her at a McDonalds near his practice.  However, Dr Kumar’s account of what there occurred is entirely different to Ms JW’s account and Ms A’s account). 
[66]	Dr Kumar’s account was confusing and contradictory.  For example he said, [Ms A] was seated in a corner and we went to her table and I sat down and – we sat down. She signed the document and she left, only later to say that Ms A remained about three tables away.  That occurred, he said, because Ms JW made it clear she did not want to have contact with Ms A with the result that:
I picked up the document and went to [Ms A] and told her, ‘That was [Ms JW] that just signed. Can you witness this, please’. …
[Ms JW] didn’t want to meet anybody to – who had anything to do with the practice because she knew that [Ms A] and I used to witness our – all the documents at the practice.
[67]	As to the prior arrangements with Ms A, Dr Kumar swore in answer to questions from counsel for the Health Ombudsman:
So is your evidence that you arranged for [Ms A] to attend the McDonald’s?---Yes. 
Did you speak to her about the person who would be signing the statutory declaration -- -Yes. 
You – you’re saying that - - -?---She knew – she knew about [Ms JW] and me. 
Right. Had you told [Ms A] what the purpose of having [Ms JW] sign the statutory declaration was?---No. The – she – it was just a witness situation, and I didn’t have to tell her all that.
[68]	Dr Kumar conceded he was aware it was necessary for a JP witness to a statutory declaration to observe the declarant declare and sign the document. 
[69]	In his earlier sworn affidavit Dr Kumar did not name the Justice of the Peace who he asserted had witnessed Ms JW’s signature.  He deposed that was “because I forgot her name”.  That claim should be seen against the fact that Ms A’s name is readily apparent on the statutory declaration which Dr Kumar himself provided to the Health Ombudsman. That claim by Dr Kumar is succeeded by him deposing that he thought the JP had died.  That led to an exchange where Dr Kumar was asked how he could be aware of the state of existence of someone whose name he had forgotten.  Dr Kumar recognised the incongruity of his position: “Okay.  Fair enough.  Alright”.  
[70]	Ms A is 80 years of age and is a registered nurse. She became a Justice of the Peace in 1996. She had been Dr Kumar’s patient at an earlier time. She had witnessed documents for Dr Kumar in the past, but to the best of her recollection “[i]t was only one or two documents, and it was quite some time ago”. 
[71]	Ms A was particularly careful to avoid self-serving answers, saying for example that the signature on the statutory declaration “looks to be mine" before giving precise evidence as to the differences between that signature and her own.  Her conclusion was carefully considered: “… there are just too many things missing from the document for me to have signed the Statutory Declaration” and “… I have not signed my signature in that way for over nine years and it is unlikely that I would have used it for this document.
[72]	Ms A was a thoroughly impressive witness.  She was careful and considered in her answers.  She made appropriate concessions.  For example, she readily conceded she could not recall every document she had witnessed.  
[73]	When her capacity to recall this particular document was questioned, she gave the following evidence which the Tribunal considers compelling: 
I would remember that context. In all the stat decs and different documents I’ve witnessed, that one stands out well and truly and I do have an excellent memory. 
All right. No one is challenging your memory insofar as that issue might be concerned. But in terms of when you said you have an excellent memory and it stands out, does it stand out because you witnessed it or does it stand out because of its content? --- Because of it’s [sic] context. If someone had come to me with that context in a stat dec I probably would not – I would have been very reluctant to sign it. I would’ve referred them to – go to the police because it – it’s an [sic] matter of assault - - - 
All right?--- - - - or suicide. Something like that is something that needs to be [indistinct] dealt with by police, not by me. 
Okay?---And, then, this person needs guidance and counselling.  …
I have never ever, and I can state that truthfully, had a stat dec that stated somebody was threatening suicide.
[74]	The effect of Ms A’s evidence is she:
(a)	did not know Ms JW and “her name is not familiar to me”;
(b)	had never met Ms JW;
(c)	was not present at a McDonalds restaurant with Dr Kumar and Ms A;
(d)	had not seen the statutory declaration prior to it being shown to her much later by investigators; and
(e)	did not witness the statutory declaration.
[75]	The Tribunal has no hesitation in accepting Ms A’s evidence.  It is in any event corroborated by the evidence of Ms JW whose evidence is also accepted.  
[76]	Ms JW swore she:
(a)	did not know Ms A;
(b)	had never met Ms A;
(c)	did not declare the statutory declaration before Ms A (or anyone else); and
(d)	was not made aware of the presence of anyone at the McDonalds who was to witness her signature.
[77]	It will be seen later in these reasons that the first statement in the extract from the statutory declaration signed by Ms JW is plainly untrue; text messages were received by her in which Dr Kumar had threatened suicide. 
[78]	Ms JW says there was no intention to declare an untrue statement when she signed it.  She deposes that it was only after receiving the printouts of text messages previously provided by her to the Health Ombudsman on a USB disc that she realised that Dr Kumar did in fact send her text messages where he threatened to kill himself and where he claimed he was depressed. 
[79]	The Tribunal accepts her evidence that she had felt pressured and harassed by Dr Kumar over a period of about two years prior to signing the statutory declaration.  
[80]	It might at first blush seem unlikely that Ms JW was, as she deposes, unable to recall “[a]t the time of being asked to sign the statutory declaration … if [Dr Kumar] had made any of these threats [to commit suicide] via text message”, but the large volume of text messages passing between the two, and their content, gives that claim proper context as does her evidence that, initially, she recalled those threats being confined to telephone calls.
[81]	Dr Kumar did not contend for any inability to recall or admit of the prospect of his evidence being mistaken.  
[82]	No account of the signing or witnessing of the document was given in Dr Kumar’s affidavit of evidence nor in a second affidavit filed on the fourth day of the hearing. His evidence emerged only in cross-examination. 
[83]	The Tribunal wholly rejects Dr Kumar’s account of the witnessing of the document. The Tribunal finds his evidence before the Tribunal is an untruthful concoction.
Did Dr Kumar Forge Ms A’s Signature?
[84]	The Health Ombudsman contends that the “overwhelming inference” to be drawn from the facts as found is that Dr Kumar forged Ms A’s signature.
[85]	The Tribunal accepts that Dr Kumar had a motive to forge the signature of the witness to the statutory declaration.  Doing so was an essential part of (falsely) answering the allegations being investigated.  
[86]	There is no evidence that anyone other than Dr Kumar (and Ms JW who signed it) was involved in the production of the false statutory declaration.  However, the absence of that evidence does not lead to an inference that Dr Kumar forged Ms A’s signature.  As will be seen when later discussing allegations involving Ms V, there is evidence accepted by the Tribunal that Dr Kumar has had friends act on his behalf in an attempt to impede a potential complaint. 
[87]	It cannot be said that there was no reasonable opportunity for someone other than Dr Kumar to forge Ms A’s signature.  Ms JW signed the statutory declaration on 2 May but it was forwarded to the Health Ombudsman by Dr Kumar eight days later.
[88]	No expert evidence was called in respect of Ms A’s purported signature with the consequence there is no expert evidence which compares Dr Kumar’s signature or writing with the false signature on the document.
[89]	There is certainly a suspicion that Dr Kumar signed Ms A’s signature.  However, suspicion is merely conjecture.  Forgery of a statutory declaration is a grave allegation (and a serious criminal offence).  Ultimately, the Tribunal is not persuaded that it should be inferred from the established facts that it was Dr Kumar who forged Ms A’s signature. 
[90]	However, an inference can and should be drawn that Dr Kumar was knowingly concerned in, and acquiesced in, the forging of Ms A’s signature on the statutory declaration.  He had motive; he wrote the statutory declaration and letter; he knew Ms A had witnessed documents in the past for him; and he plainly wanted his (false) assertions to be clothed in the solemnity of a statutory declaration. 
Findings
[91]	The Tribunal finds:
(a)	Dr Kumar authored a statutory declaration knowing it contained at least one significant falsehood;
(b)	Dr Kumar authored a letter to investigators that was false in that it asserted Ms JW authored the statutory declaration which he knew to be false;
(c)	Dr Kumar forwarded to investigators a statutory declaration that he knew contained a forged witness attestation and signature;
(d)	Before this Tribunal, Dr Kumar gave an untruthful account of the witnessing of the document;
(e)	Dr Kumar was knowingly concerned in, and acquiesced in, the forging of Ms A’s signature of the statutory declaration; and
(f)	The only purpose Dr Kumar can have had in providing false information to investigators was to mislead them in their investigations and to curtail or impede their investigation into relevant allegations against him.
[92]	Given that the Tribunal will need to decide, among other things, whether Dr Kumar is a fit and proper person to be registered as a medical practitioner, it is important to also record the Tribunal’s finding that Dr Kumar’s false evidence to the Tribunal has indirectly impugned the integrity of a Justice of the Peace whose evidence, the Tribunal considers, plainly reveals an honest person who takes her responsibilities as such earnestly and responsibly.

Who Authored and Signed Ms B’s Statutory Declaration and Letter?
[93]	Ms B was a patient of Dr Kumar at four of his clinics between about 2005 or 2006 and 2012.  She was being treated for depression and diabetes. She consulted Dr Kumar regularly at his various practices. Ms B suffers from a slight cognitive impairment as a result of a childhood medical incident. She says in her affidavit, “I can't read and write very good”.  Ms B’s impediment was plain during her oral evidence. She gave evidence with the assistance of a support person.  
[94]	Dr Kumar’s clinical notes record numerous social and psychological issues confronted by Ms B at the time of her consultations.  For example, it is recorded on 19 and 27 August 2009 respectively: “going through a real tough time”; and “depressed++” / grandmother passed away / her partner is in hospital ”.
[95]	On 8 July 2011, a letter was received by AHPRA purportedly signed by Ms B.  It said “the allegations I made against Dr Praveen Kumar were false and […] I was misled by a [named nurse] who used to work at My Family Doctors”.  
[96]	The letter attached a statutory declaration to similar effect, also purportedly signed by Ms B.  It declares in part:
Dr Kumar did not take any money from me and … I gave the money to [Ms R].
She has given me some money and has entered into an agreement to pay back the rest of the money.
Dr Kumar has never made any sexual advances towards me.  
[97]	Ms B denies signing or sending the letter.  She denies signing the statutory declaration.
[98]	The statutory declaration indicates on its face that it was declared in front of a named female person and gives a specified address and a registration number for her.  No written or oral evidence was called from the alleged witness. 
The Expert Evidence
[99]	The Health Ombudsman called expert opinion evidence from Ms K, a forensic document examiner employed by the Queensland Police Service.  Ms K deposes to 23 years of experience.  Her qualifications, experience and expertise were not challenged. No expert evidence was tendered or called by Dr Kumar.
[100]	Ms K’s ultimate “qualified opinion” was that Ms B “did not write” the signatures on the letter and the statutory declaration.  The “qualified opinion” was given by reference to five standardised “levels of opinion" used by document examiners.  The instant opinion falls into category 2:
The evidence provides qualified support for the proposition that the questioned material was written by the writer of the comparison material. This opinion level is used when there is an identifiable limitation associated with the examination process. 
Ms K explained the “identifiable limitation” in the instant was the “non-original nature of” the letter and statutory declaration – that is, she was provided with a copy of each.
[101]	In cross examination Ms K agreed with counsel for Dr Kumar that she had identified more similarities than differences in the signatures but went on to say, “there's more pictorial overall gross similarity, yes, but there is also the inconspicuous dissimilarities”.  It was put that “the inconspicuous dissimilarities [are] much more difficult to pick up in a copy”, to which Ms K replied, “Yes, they can be, but in this one you can clearly see the differences of the slant, the alignment and the P and the R”.
[102]	In answer to a question from Tribunal Member Professor Baker, Ms K responded: 
That’s where I indicated there is some evidence of attention to the writing process. It doesn't look fluent. It doesn't look – it looks yeah it just lacks fluency… It doesn't look right might be the easier way to say it for a layperson.
[103]	The evidence of Ms K was careful, cogent, and persuasive.  No expert opinion challenged it.  It was not dinted in cross-examination.  The Tribunal has no hesitation in accepting her evidence.  
[104]	The Tribunal also accepts the Health Ombudsman’s submission that there are plainly observable marked differences in language, style, and sophistication employed in a handwritten letter to the Health Ombudsman expressed in Ms B’s own words and that purportedly employed by her in the instant letter and in the statutory declaration.
[105]	The Tribunal also accepts the Health Ombudsman’s submission that, despite her obvious impairment, Ms B was “doing her best to give forthright, honest evidence”.  That accords with the Tribunal’s impression and the observations of her in the witness box.   Ms B’s evidence that she did not write the letter and did not sign either the letter or the statutory declaration is accepted.
[106]	The Tribunal finds that a person other than Ms B authored and signed both documents.
Did Dr Kumar Author the Documents and Forge Ms B’s signature?
[107]	Considerations similar to those already discussed in respect of Ms JW apply to the instant question.  Again, the Health Ombudsman contends in closing submissions that the factual findings just made lead to an “irresistible” inference that Dr Kumar drafted and signed them [i.e. he forged Ms B’s signature].
[108]	At the time the letter and statutory declaration were forwarded to the Health Ombudsman, Dr Kumar was well aware of the complaint made to it by Ms B in 2010; by that time, he had received a copy of the documents relevant to those complaints.  He plainly had a motive to both author and sign each of the letter and the statutory declaration and to forward both to investigators, namely purporting to answer the allegations made against him.
[109]	Dr Kumar was not the only person with knowledge of the allegations of “taking money”; “agreement to pay back the rest of the money”; and “sexual advances” to which the statutory declaration refers.  Ms R – his former de facto and practice manager – also knew of the allegations.  As will be seen, she was integrally involved in Ms B transferring money into a bank account in the joint names of herself and Dr Kumar. 
[110]	The fact that two people are identified by the evidence as having knowledge of the allegations does not eliminate the possibility of others having that knowledge or being involved in production of the documents. In the same vein, it cannot be said on the evidence that Dr Kumar was the only person with the opportunity to author and sign the relevant documents.  
[111]	The observable differences in style, tone and sophistication point only to a person other than Ms B authoring the documents.
[112]	The expert evidence is to the effect that the documents do not contain signatures written by Ms B.  However, the expert did not compare that writing with any writing provided by Dr Kumar.  The Tribunal accepts the submission of Counsel for Dr Kumar that:
There is insufficient evidence to conclude that [Dr Kumar] forged the signatures of [Ms B].  The handwriting expert was not given any handwriting of [Dr Kumar] to compare.  The evidence is a negative conclusion being it wasn’t [Ms B].  The Tribunal is then asked to draw inferences from the comparison.
[113]	Again, a suspicion is raised that Dr Kumar both authored the documents and forged Ms B’s signature, but, again, suspicion is merely conjecture.  
[114]	Forgery is a grave allegation (and a serious criminal offence).  Ultimately, the Tribunal is not persuaded that it should be inferred that it was Dr Kumar who both authored the documents and forged Ms B’s signature. 
[115]	However, it can and should be inferred that the documents would not have been authored without Dr Kumar being knowingly involved in, and acquiescing in, the writing of both.  His motive is obvious; the documents had the sole purpose of seeking to answer complaints made about him; their timing coincided with the Health Ombudsman investigation; and he plainly had an interest in the assertions being clothed in the solemnity of a statutory declaration.  It is inconceivable that another person or persons would have authored the documents, forged Ms B’s signature or forwarded the documents to the Health Ombudsman without Dr Kumar’s knowledge and acquiescence.
[116]	These reasons will later find that, contrary to what is asserted in the statutory declaration, Dr Kumar did make “sexual advances towards” Ms B.  Indeed, a finding will be made that they had a sexual relationship while she was his patient.   To that extent, the letter containing Ms B’s forged signature also contained a false assertion.
[117]	The only purpose of the false letter and statutory declaration can have been to mislead the Health Ombudsman and to impede their investigation.
Findings
[118]	The Tribunal finds Dr Kumar:
(a)	was integrally involved in, and acquiesced in, authoring and forwarding to the Health Ombudsman a false statutory declaration relevant to the investigation into his conduct;
(b)	was integrally involved in, and acquiesced in, the forging of Ms B’s signature on the statutory declaration;
(c)	was integrally involved in, and acquiesced in, authoring, and forwarding a letter to the Health Ombudsman containing a statement he knew to be false relevant to the investigation into his conduct;
(d)	was integrally involved in, and acquiesced in, forwarding to the Health Ombudsman a letter and statutory declaration knowing that each contained a forged signature; and
(e)	sought to mislead Health Ombudsman investigators in their investigations and to curtail or impede their investigation by his involvement in forwarding to them the statutory declaration and letter containing information he knew to be false.  
Who Signed and Witnessed Ms W’s Consent Forms?
[119]	Consequent upon a complaint to AHPRA by Ms W in respect of two procedures carried out by Dr Kumar in 2015, he provided two consent forms to investigators through his then solicitors. 
[120]	The two consent forms were purportedly signed by his patient, Ms W, on 17 September 2015 and 9 October 2015 respectively.  Each was also purportedly witnessed by “Practice Nurse [Ms KW]” on those days.  Dr Kumar is alleged to have forged both signatures on both documents. Dr Kumar denies that and also denies forwarding the consent forms to investigators knowing them to contain forged signatures and false information.
[121]	Ms W was an impressive witness.  She was careful to attend to the facts and not infect her evidence with any feelings of animosity toward Dr Kumar in respect of what she contends were significant adverse effects of his procedures and which she says are, to some extent, ongoing. The events of which Ms W spoke were (and are) significant for her and her recollections were clear. Her evidence was consistent and cogent.  It was not put to her that her recall was impaired by the effluxion of time, and the Tribunal saw no evidence of that being the case.
[122]	Ms W’s evidence is that she did not sign a consent form for either procedure at any time.  That evidence is accepted.  Consequently, the Tribunal finds that someone other than Ms W signed the two documents as patient.
[123]	Ms KW was, at the relevant time, Dr Kumar’s practice nurse.  She swore an affidavit in the Health Ombudsman’s case and was cross-examined.  Ms KW swears:
(a)	the witness signatures on the consent forms “look like my signature, however neither is my actual signature”;
(b)	she “did not witness [Ms W’s] signature on either of those consent forms”;
(c)	Dr Kumar asked her to sign each of those consent forms after the procedures had been concluded, but she refused;
(d)	she “doesn’t recall Ms W’s signature on the consent forms when Dr Kumar first asked me to sign them”;
(e)	when Dr Kumar approached her to sign the consent forms, [Ms MT], was present; and
(f)	when Ms KW refused, Dr Kumar “then took the consent forms back to his room.  When he came back out later, both forms were signed”.
[124]	Ms MT was at the relevant time a receptionist at Dr Kumar’s practice.  She too swore an affidavit in the Health Ombudsman’s case and was cross-examined.  
[125]	Ms MT deposes to Dr Kumar bringing two consent forms into the reception area and saying to Ms KW that the forms “were about [Ms W’s] complaint”.   She says that when Dr Kumar “came to [Ms KW] to have her sign the consent forms, she told [Dr Kumar] that she wouldn’t sign the forms because the procedures had already been done”. She never saw Ms KW sign the forms at any time.  
[126]	Ms MT goes on to depose that a short time later, Dr Kumar came back to the reception area with, she says, the same forms:
I saw the documents and they appeared to have signatures on the forms.  I don’t know whose signatures they were but all of the signature lines were written on with what appeared to be different signatures or writing.
[127]	When the versions deposed to by Ms KA and Ms MT were put to Dr Kumar, he said “nothing like that happened”.  He denied there was any conversation about consent forms with Ms KW for which Ms MT was present.   
[128]	It was not suggested to either Ms KW or Ms MT that they had colluded or were giving false evidence.  Both were cross-examined about the extent and accuracy of their recall.  
[129]	Ms KW readily conceded that, as Dr Kumar’s practice nurse, she had witnessed consent forms for numerous patients and, generally, could not recall the details surrounding specific forms for specific patients.  However, Ms KW remembered the circumstances surrounding Ms W because “Dr Kumar brought me the forms to sign after the complaint [to the Health Ombudsman] had been made.  That’s the only reason I remember what happened”. 
[130]	Ms MT denied having any difficulties with her recall, saying “an event like that stands out quite well”.  The context for that answer appears in the cross-examination which preceded it:
All right. And in this case, you just saw consent forms. You didn’t see what was on them?---That’s right. I just saw the consent forms. 
And so when we’re talking about the incident involving the consent forms, it could be something completely unrelated to or it couldn’t – it could not relate to something involving Dr Kumar entirely and – couldn’t it?---I disagree. Dr Kumar had asked [Ms KW] to sign the paper – the forms and handed it over to her [indistinct] 
All right. But you don’t know whether or not these consent forms related to [Ms W’s] complaint, do you?---I do, because he’s made – he named the patient. 
Well, but didn’t you say a moment ago that you don’t recall what was in them – in the consent forms?---I – they were consent forms. When he came – all the consent forms do look the same. They were not signed. 
[131]	Dr Kumar’s affidavit evidence in respect of this issue was initially confined to:
I did not forge any signatures on any forms whatsoever.  The fact that she [i.e. Ms W] presented herself for the procedure and paid for it, she automatically consented to the procedure.
[132]	In a second affidavit filed on the fourth day of the hearing - after Ms W; Ms KA and Ms MT had given evidence and been cross-examined – Dr Kumar deposes relevantly:
At one point, I refused to conduct the surgery on [Ms W] because I believed she could be a troublesome patient.
I informed [Ms KW] of this and told her to get consent forms from [Ms W] before the surgery …
… [Ms KW] filled out consent forms for [Ms W] after the surgery.
	No reference was made in that affidavit to the evidence of Ms MT.  Dr Kumar confirmed in cross-examination that the evidence just referred to applied to both procedures.  
[133]	Dr Kumar had previously given evidence that his clinic’s records were electronic. Documents such as consent forms are scanned into the records.  Ms W’s alleged consent forms were not.  When asked why the consent forms were not scanned in, he said, “That’s what – I mean, I – I – there was a lot of things that used to happen at the practice so – the practice had become a bit too big - - -”.
[134]	Notwithstanding Dr Kumar’s evidence that he made relevant entries in Ms W’s clinical records - including as to Ms W’s alleged troublesome behaviour - he said in cross-examination that he did not check the records for the consent forms, nor did he notice they were missing.  The first occasion he noticed their absence was when he “went searching” many months later at the time of the complaint and investigation. He says it was only at this time that he raised the issue of consent forms with Ms KW and:
 … she went and looked for it and brought it back to me … I talked to her about it and she said it was done then - - -  
Done when?--- - - - at the procedure – at the time of the procedure and she had put it in the pile [for scanning]. 
[135]	Dr Kumar deposed in his affidavit sworn that very morning (an affidavit which he said he dictated to his solicitors) that Ms KW completed the consent forms prior to the procedures.  It is a discrepancy Dr Kumar realised as it was being put to him:
So it was done – she told you it was done before the procedures were - - -?---Yes.  Around the time of the procedure.  But here it’s written after the surgery.
MR TEMPLETON:   Yes.  Well - - -  
MEMBER:   Yes - - -
MR TEMPLETON:   So - - -?---That’s – that’s a slip up.
[136]	To the extent that the use of the expression “slip up” is intended to convey an oversight or mistake, that explanation is rejected.  A “slip up” is not an adequate explanation for sworn accounts, contradicted within hours of each other, about an important issue of which Dr Kumar had notice. Prior to his cross-examination, Dr Kumar had not provided a discursive account of what he says occurred in respect of the consent forms. There is no suggestion by him that his evidence is affected by an inability to recall as a result of the passage of time. 
[137]	Rather, the “slip up” is consistent with the Tribunal’s general view of Dr Kumar’s evidence on this issue which is that it was untruthful and was being constructed as his cross-examination progressed.  
[138]	The Tribunal accepts the evidence of both Ms KW and Ms MT.  The Tribunal considers each gave truthful and reliable evidence.  Despite the passage of time, their recall was clear.  Their evidence was not dented in cross-examination.  The reason given by each for recalling relevant events that might otherwise have evaded recollection was cogent and plausible: Health Ombudsman complaints and investigations are not an everyday occurrence.  
[139]	The Tribunal finds that the witness signatures on both consent forms forwarded to investigators were not those of Ms KW.  Someone other than Ms KW appended her purported signature to both documents. 
Did Dr Kumar Forge the Signatures of Ms W and Ms KW?
[140]	The question which arises is whether, as the Health Ombudsman alleges, an inference should be drawn from the established facts that it was Dr Kumar who forged both signatures.
[141]	There is no expert evidence before the Tribunal in relation to the signatures that appear on the consent forms.
[142]	Dr Kumar plainly had a motive to present to the Health Ombudsman written consent forms purportedly obtained prior to both procedures being carried out.  He was aware of the complaints made by Ms W and the Health Ombudsman’s investigations.  He had engaged solicitors to respond to that investigation and their response on his behalf specifically referred to consent forms and attached two.
[143]	There is in the Tribunal’s view a major point of difference between the circumstances as found in respect of the consent forms and those pertaining to the relevant documents in the cases of Ms JW and Ms B.  The Tribunal’s findings are that that a request to sign blank consent forms; a refusal to sign the blank forms; and two signed consent forms thereafter appearing all occur on the one occasion for which two witnesses whose evidence is accepted were present. 
[144]	Although there is no estimate of the precise time frame between Dr Kumar presenting the consent forms to Ms KW for signature, in Ms MT’s presence, and his re-emergence with signed forms with both of them present, there was on their respective accounts no reasonable opportunity for anyone other than Dr Kumar to have signed the forms.  On the accepted evidence of both Ms W and Ms MT, the signed forms emerged in direct response to Ms KW’s refusal to sign the documents.  Despite the forms referring to procedures conducted more than three weeks apart, both were presented to Ms JW at the same time, her refusal applied to both and both re-emerged signed.
[145]	It is true that Ms MT did not see the form of the signatures on the two forms with which Dr Kumar re-emerged.  It is also true that Ms KW gave no evidence of the signatures she saw on the documents.   Dr Kumar does not suggest that the events described by Ms KW and Ms MT do not pertain to the consent forms for Ms W’s procedures; he says the events described did not occur at all.   His implausible account of how the relevant purported signatures came to be on the consent forms submitted to the Health Ombudsman has been rejected. 
[146]	The circumstances described by both Ms KW and Ms MT and accepted by the Tribunal do not reasonably admit of the signed forms with which Dr Kumar emerged being other than those pertaining to Ms W’s procedures. 
[147]	Notwithstanding the persuasive burden created by the seriousness of the allegations, the Tribunal is firmly persuaded that it should be inferred that Dr Kumar forged the signatures of both Ms W and Ms KW on the consent forms forwarded by his then solicitors forwarded to Health Ombudsman investigators.
B.	Ms D’s Allegations of Rape and Sexual Relationship
[148]	Seven instances of rape of Ms D by Dr Kumar are alleged as specific instances of professional misconduct. 
[149]	The allegations are, of course, grave.  A finding that each occurred is in large measure dependent upon acceptance of Ms D’s evidence and a rejection of Dr Kumar’s denials.  Dr Kumar denies there was any sexual activity at all between the two of them.  
[150]	Ms D’s evidence of rape emerges from her evidence as to the existence of a sexual relationship with Dr Kumar and its nature.  Her evidence also emerges within a series of statements said to be true at the time which were later disavowed.  Statements which were said to be true and then said to be false are now again said to be true and form the basis of Ms D’s evidence to this Tribunal.  
[151]	Ms D swore an affidavit of evidence for the Tribunal on 31 August 2017.  That affidavit swears to the truth of a statement given to investigators on 30 August 2016.  By agreement between the parties, the transcript of Ms D’s evidence in the criminal prosecution of Dr Kumar for rape was relied upon as her evidence in respect of the rapes.  If that evidence, the 30 August 2016 statement, and her additional evidence before the Tribunal is to be accepted as truthful and reliable, it must be accepted that:
(a)	a statutory declaration declared to be true by Ms D on 30 January 2015 is false;
(b)	two emails of 21 December 2015 sent to the Health Ombudsman declaring her complaint to it to be false, are themselves false;
(c)	her 9 May 2016 email to the Health Ombudsman saying she had made up allegations and they were untrue, is itself untrue;
(d)	her 23 September 2016 email to the Health Ombudsman stating her 30 August 2016 statement was untrue, is itself untrue; and
(e)	she was, by reason of her earlier statements which are now said to be untrue, complicit with Dr Kumar in seeking to mislead Health Ombudsman investigators.
Ms D’s Varying Versions in Context
[152]	The chronology of Ms D’s contradictory claims; her statements to the police that remained unsigned for a considerable period of time; and when specific allegations of rape arose is important.
[153]	On 30 January 2015, Ms D declared a statutory declaration which denied any “affair” with Dr Kumar.  She there declared she was sending messages to him not because of a sexual relationship with him but in order get her job back as a receptionist at his clinic and because Dr Kumar and Ms R were teaming up against her.  She contends in her Tribunal evidence that the document was authored by Dr Kumar and sent to investigators at his behest.
[154]	Later that year, on 14 December 2015, Ms D made a complaint to the Health Ombudsman alleging sexual conduct by Dr Kumar while she was his patient.  
[155]	A week later, on 21 December 2015 Ms D emailed the Health Ombudsman withdrawing the complaint.  She said: “whatever I mentioned was all false.  I made up this story … Dr Kumar has never made any sexual remarks or said such things which I mentioned in my story before”.   Two hours later, Ms D sent a further email to the Health Ombudsman purporting to be from her ex-partner (and father of their child), Mr B to similar effect.  
[156]	Ms D did not initially follow up her December 2015 complaint.  On 9 May 2016, the Health Ombudsman wrote to her. Ms D’s reply email sent the same day said she “still held the same grudge” against Dr Kumar’s clinic as a result of her sacking.   She said: she had “a lot of anger and anxiety issues”; she “made up a lot of allegations that are untrue” and she wished to withdraw her complaint.  
[157]	On 11 July 2016, Ms D did not attend a scheduled appointment with the Health Ombudsman investigators.  She subsequently made a statement on 30 August 2016.  The account given there was declared to be true. It contradicted her earlier emails.  She said Dr Kumar had dictated the May 2016 email.  She complied with sending it to investigators because Dr Kumar said if she didn’t withdraw her complaint, he would kill himself. 
[158]	On 20 August 2016, Ms D gave a statement to the police.  That statement alleges Dr Kumar anally raped her three days previously.  However, that statement was not signed.
[159]	The 30 August 2016 statement to Health Ombudsman investigators gives an account of an anal rape occurring on 17 August.
[160]	On 23 September 2016, Ms D sent a further email to Health Ombudsman investigators.  That email said that what she had declared to be true in her 30 August statement three weeks previously was untrue.  This email purported to give the “real truth” for “all the false allegations and complaints made by me against Dr Kumar”.  That is, Ms D said what she declared to be true in her December 2015 complaint and in her 30 August 2016 statement was each a fabrication: “… at no point has Dr Kumar made any sexual advances and or ever had any sexual relationship with me”.
[161]	On 15 March 2017, Ms D gave a further statement to the police.  That statement alleges, for the first time, further rapes said to have occurred on 11 June 2016 and “between 1 and 16 August 2016”.  That statement, too, was not signed.
[162]	Two years later, on 20 July 2018, a police statement was signed for the first time.  That statement “reviewed”, and declared as true, the earlier police statements. The signed “reviewed” statement formed the basis for the criminal prosecution of Dr Kumar for rape.  Ms D gave evidence at that trial on 6 and 7 February 2023.  A nolle prosequi was entered on 24 February 2023.
Ms D’s Explanation for False Statements - Obsession and Subjugation
[163]	Ms D contends her varying versions emanate from Dr Kumar’s influence over her. In her examination in chief at the criminal trial Ms D said, “… with him it was like when I’m there I cannot stop him … so I will go with whatever he’s doing or saying”.  Statements to similar effect have been made by Ms D to Health Ombudsman investigators.  In many instances she paints herself as bowing to Dr Kumar’s every whim; in effect that his influence saw her as his puppet.
[164]	That influence is said to have had different manifestations in so far as it affected the withdrawal of her complaint and variations in versions given to investigators.  It is said, for example, that by Dr Kumar threatened suicide if the complaint went ahead and that he threatened Ms D with actions affecting her relationship with her child:
He would tell me that it’s all because of me he can’t see kids and if he died it’ll all be on me.  That the first time he told me he’d seen a place where he’s going to drive his car to kill himself and I would regret what I’ve done.
[165]	Ms D alleges Dr Kumar dictated the emails she sent to the Health Ombudsman denying a sexual relationship and seeking to withdraw her complaint.  Her 23 September 2016 email is also said to have been dictated by Dr Kumar.  She said she was complicit in that and in sending it to the Health Ombudsman because Dr Kumar represented that if Ms D withdrew her complaint to the Health Ombudsman, he would not pursue a criminal complaint of wilful damage.  Ms D damaged two of Dr Kumar’s cars on consecutive days.  On the first occasion, having taken a rock to the car, she wrote “I love you” on it.  These actions occurred some six to eight weeks after Ms D dates the end of her sexual relationship with Dr Kumar. 
[166]	On Ms D’s account, other motivations for her false statements were also involved. Her complaint to the Health Ombudsman occurred:
When I found out that [Dr Kumar] was just going to sleep with me for a while and leave me and he can’t have a relationship with me because it’s a doctor-patient relationship that we had.
… once the ex-wife [Ms R] found out that he was have – having a sexual relationship with me, he started – he started abusing me.  So – and Dr Kumar then told me that I was – I wasn’t – I’m not I [sic] a relationship with you, I just wanted to fuck you for a little while and leave you.
[167]	Written submissions on behalf of Dr Kumar suggest Ms D is “motivated by revenge”; “the return of money” and that she is “embittered by the breakup”. (The latter refers, presumably, to the breakup of a relationship which Dr Kumar denies.)
[168]	Counsel for Dr Kumar put to Ms D in cross-examination that the motive for what are said to be false allegations of rape is that Ms D was obsessed with Dr Kumar.  This asserted obsession is central to Dr Kumar’s case in respect of all of Ms D’s allegations.  Ms D was treated by Dr Kumar for, among other things, mental health issues. The damage to Dr Kumar’s cars might be seen to be a manifestation of the obsessive behaviour which Dr Kumar asserts.  It is also evident in text and telephone exchanges between the two. 
[169]	The Tribunal accepts that there were obsessive elements to Ms D’s presentation and actions.  However it rejects the notion that those obsessive traits manifested in the making of statements now said to be false.  Equally, the notion that Ms D was, in effect, Dr Kumar’s puppet or that her actions can be explained predominantly in that way is also rejected.  It is not, in the Tribunal’s view, the sole explanation for Ms D making statements she now alleges are false.
[170]	As will shortly emerge Ms D is a woman who, in recordings made (and selected) by her, reveals herself as able to think for herself and stand up to Dr Kumar (including telling him specifically she was not afraid of him and threatening to report him to the police). The Tribunal accepts Dr Kumar did have considerable influence over Ms D.  However, Ms D’s description of the extent of same smacks of hyperbole.
[171]	The Tribunal considers a much more likely predominant motivation for her varying statements is that, although she plainly felt cheated by Dr Kumar, she continued to desire a relationship with him and was determined to have a relationship with him (in lieu of Ms R or anyone else).  As has been seen, her pursuit of that aim had an obsessive component. That Ms D’s desire to this effect involved her making false solemn statements to the Health Ombudsman did not trouble her – indeed her evidence contains no indication that it ever did or does now. 
[172]	Whatever residual desire Ms D had for a relationship with Dr Kumar it did not subsist sufficiently to preclude her ultimately subjecting herself to cross-examination at a criminal trial or in these proceedings.  The residual desire for a relationship as a motivating factor in earlier statements did not, in the Tribunal’s opinion, impact her evidence in these proceedings or at the criminal trial. 
[173]	However, a ready willingness to make false statements in pursuit of an aim, and to persist with the same over a significant length of time, throws considerable doubt on Ms D’s credibility and the reliability of her evidence. 
Was There a Sexual Relationship Between Doctor Kumar and His Patient Ms D?
[174]	The Tribunal’s conclusion that a sexual relationship existed between Dr Kumar and occurred while Ms D was his patient rests primarily on:
(a)	accepting that a screenshot of text messages is of a “conversation” between Dr Kumar and Ms D; (and not between Dr Kumar and Ms R as Ms R alleges); 
(b)	rejection of Ms R’s contrary evidence as to the screenshot and text messages more generally;
(c)	accepting and giving weight to recordings of telephone conversations made by Ms D; and
(d)	a rejection of Dr Kumar’s implausible evidence.
The Screenshot
[175]	Ms R gave evidence to the Tribunal that entirely contradicts her earlier statement to Health Ombudsman investigators.  
[176]	Her evidence now is that she had possession of Dr Kumar’s phone and she concocted the conversation in the screenshot (and other text conversations in evidence) by pretending to be Dr Kumar and sending messages from his phone to hers and vice versa.  The purpose of the concoction was — she says now — to show it to Dr Kumar’s sexual partners “to break them up so that he comes home … you guys need to go back to your homes and this party is over. He just needs to come home to his kids and his family”.
[177]	In her Tribunal evidence, Ms R initially rejected a separate specific statement attributed to Dr Kumar where he said, “Look, I’m clear, I’m clean, I’m not talking to her [i.e. Ms D]”.  Ms R said “he never said anything like that”.  When the recording of her interview with Health Ombudsman investigators containing that statement was played to her, she agreed she told them that he had used precisely those terms. 
[178]	Ms R’s evidence to the Tribunal as to her now-alleged ruse is implausible and inconsistent with the nature of her relationship with Dr Kumar at the time it was sent.   The evidence is rejected.  As a consequence, her evidence that a screenshot in evidence records a “conversation” between her and Dr Kumar is rejected.  The screenshot records an exchange between Dr Kumar and Ms D.
[179]	The relevant screenshot was handed to Health Ombudsman investigators by Ms R when they interviewed her on 15 July 2016, some three weeks after the conversation it recorded.  It was offered by Ms R in support of her (then) contention to investigators that Dr Kumar had engaged in a sexual relationship with Ms D (and others, including Ms JW). 
[180]	Dr Kumar agreed, as seems obvious from its content and context, that the following extract was a screenshot of a conversation between him and Ms D.  He agreed the “her” in the first line refers to Ms D. He agreed he sent the texts shaded in grey and Ms D those shaded blue.  Ms R told the investigators the same thing.  Ms D agrees.
[181]	The screenshot records:
BLUE:	When did you last sleep with her?
GREY:	Jaanu, I swear by [his child] that I’m not telling her anything on purpose, I tell her things that either she has created or is responsible for !
BLUE:	You need to come clean fully.
BLUE:	If I have to trust you, get over this mess and give you the love and respect.
GREY:	It was a long time ago.  She has since fucked me up !  Again & again about it!!
The Recordings of Telephone Conversations
[182]	Subsequent to the cessation of Ms D’s second period of employment, in about June/July 2015, Ms D began recording telephone conversations with Dr Kumar.  She told Health Ombudsman investigators she was “so angry for the way I was treated … he denied to [Ms R] that he and I had a relationship which made me feel betrayed”. 
[183]	Four of those recordings, made in October/November 2015 and December 2015/January 2016 are relied upon by the Health Ombudsman as evidence of a sexual relationship.  For example:
What we are doing is wrong [   ].
I have been asking you for a long time from the beginning when this thing started that I have been telling you why don’t we run away that it is not (inaudible) not a thing that we can hide forever. That’ why I told you not to get emotionally attached.  If you get emotionally attached then you have nothing in your control.  [Dr Kumar’s assertion that the translation should be “we all run away …” is rejected.  The authorised translation earlier agreed to as forming part of the tendered documents is preferred]. 
That is my conclusion now that we keep this discrete and now this discrete thing is out of the question.  That discrete thing we had to do from time zero.
In the next 10 mins, you can make me crawl to you.  And I am of that leval of a person that I will crawl to you because I am afraid that if this goes to the Medical Board which Gina has said … That she will take me to the Medical Board …
I told at time zero, that this cannot be like, if you get emotionally attached then it won’t be in your control.
[184]	The content is not at all consistent with Dr Kumar’s contention as to the nature of the relationship being confined to one of doctor/patient (and later, additionally, employer/employee).  The context is also not consistent with his claim that he was seeking to stop Ms D’s “harassment” of him resulting from her being a disgruntled dismissed employee or an obsessed woman with an unfulfilled desire to have a relationship with him.  
[185]	Dr Kumar’s challenge during his cross-examination to some of the translations (by a qualified Fijian Hindi translator) is rejected.  He offered no expert evidence of any alternative translation.  Overwhelmingly, his challenges were not directed to the correctness of what was transcribed but, rather, his attempt to convey what was meant by his words. For example, in one instance he accepted, after much prevarication, that the translation was correct but said that is “not what I meant”. 
[186]	Dr Kumar sought to explain his comment “what we are doing is wrong” as a reference to Ms R bringing Ms D and her children to his father’s farm.   He claimed the reference to “keeping this discreet” was not a reference to a relationship but to “her thoughts about me and that she should keep it quiet and not make a big thing about it”.  Those explanations are rejected as implausible and inconsistent with the context of the conversations. 
[187]	While the authenticity of Ms D’s telephone recordings is not contested, caution should attend giving them significant weight. The exhibited recordings are plainly snippets of larger conversations.  They were recorded as and when Ms D chose.  The recordings provided to the Health Ombudsman were selected by her.  As evidence from Ms D, they are quintessentially self-serving.  
[188]	In this instance, weight is attached to them because the totality of the things said by Dr Kumar gives them a discernible context;  the consistency of what was said over the period of the recordings; and Dr Kumar’s implausible and inadequate alternative explanations for the meaning his words conveyed.   
Dr Kumar’s Evidence
[189]	The rejection of Dr Kumar’s denial of a sexual relationship commences with a rejection of his evidence as to what occurred on a visit by him to Ms D’s home on the evening of their third consultation.  He says the visit to her home pertained to a conversation about Hindi music during their consultation and Hindi music was the reason for the visit and a discussion of same is what transpired.  
[190]	Dr Kumar does not explain how he came to have Ms D’s address.  Notwithstanding, the Tribunal is not prepared to infer the improper use of confidential information alleged in Ground 8 – for example Ms D was not asked whether she had independently given him the address and phone number.  
[191]	Dr Kumar does not explain the violation of doctor/patient boundaries constituted by his non-clinical visit to her home.  He says Ms D’s obsession with him was evident from the very first visit to her home.  Despite this, he did not immediately bring it to an end.  He agreed that he did not say anything to Ms D to suggest what the boundaries of a doctor/patient relationship should be.   He did not suggest she see another doctor at the clinic.     
[192]	Dr Kumar’s account is rejected.  In this instance, Ms D’s evidence that sexual intercourse occurred that evening and subsequently is considered the more plausible and is accepted.   So, too, Ms D’s evidence that a consensual sexual relationship continued thereafter is also accepted as is her evidence that the relationship included them having sex at Dr Kumar’s clinic and at their respective homes.  Acceptance of Ms D’s account is supported by the contents of the telephone recordings made by her. 
[193]	The Tribunal is entirely persuaded there was a sexual relationship between Dr Kumar and Ms D.  Her evidence that it commenced on 8 September 2014 is accepted.  
Was Ms D a Patient at the Relevant Time?
[194]	It is uncontroversial that Ms D first consulted Dr Kumar on 12 August 2014 and that she last attended Dr Kumar’s clinic as a patient on 25 June 2015.
[195]	Ms D told the Health Ombudsman in her statement of 30 August 2016 that her relationship with Dr Kumar ended in January 2016.  She told police in March 2017 it ended in June 2016.  Ms D explained in her evidence in the criminal proceedings that although the relationship ceased in January 2016, they had sex on occasions in 2016 after that.  
[196]	Whatever be the final date, no evidence before the Tribunal (apart from the rejected evidence of Dr Kumar) contradicts the sexual relationship being ongoing until June 2015 when she stopped consulting Dr Kumar as a patient.  (Of course, to the extent the relationship subsisted thereafter, Dr Kumar was engaged in a sexual relationship with a person who had previously been his patient.)
[197]	The Tribunal finds Dr Kumar engaged in a sexual relationship with Ms D while she was his patient, and that the relationship continued after she ceased to be a patient.  
[198]	The sexual relationships included non-clinical visits to Ms D’s home and her to his home.  Each visit of itself violates the proper boundaries of a doctor/patient relationship.  
Are Ms D’s Allegations of Rape Established?
Ms D’s Statements as to Anal Rape 
[199]	Ms D makes seven allegations of rape by Dr Kumar that are said to have occurred over four separate occasions: 11 June 2016; between 1 and 16 August 2016; on or about 17 August 2016; and on 4 March 2017. The evidence consists of statements made by Ms D, denials by Dr Kumar and telephone conversations recorded by Ms D.
[200]	The first allegation of rape by Ms D occurs in her statement to police on 20 August 2016, three days after she alleges an anal rape occurred.  What is described to the police is an act of anal rape accompanied by force (“he clenched his teeth” and “pushed [Ms D] on the couch” saying “this is what you deserve bitch”).  Ms D describes Dr Kumar ejaculating in her anus after which he went and washed himself and said, “I’ll talk to you tomorrow”.  Ms D says she was bleeding.
[201]	An incident of anal rape was also described in Ms D’s statement given to Health Ombudsman investigators on 30 August 2016.  She said:
Dr Kumar arrived at my house at around 11.00pm … Instead of giving me the money he owes me, he forced me to have sex with him.  By anal sex, I mean that he forced his penis inside my anus.  This time it was humiliating.  He forced me to have anal sex with him which was not consensual.  I was telling him to stop but he would not listen.  He left my house after using me for sex.
[202]	In an apparent implicit reference to earlier contradictory statements made by her, and her failure to attend a scheduled appointment on 11 July, Ms D said: “The reason why I have provided this information to the Office of the Health Ombudsman is because of the most recent events which caused the most trauma to me”.  She then describes the incident she alleges occurred at 11.00pm on 17 August at her home.
[203]	Prior to 30 August 2016, Ms D’s last contact with the Health Ombudsman in respect of her complaint filed in December 2015 was an email in May 2016 where she continued to disavow the sexual contact of which she had initially complained.  She failed to attend a scheduled appointment on 11 July 2016.
[204]	As has been seen, Ms D emailed the Health Ombudsman about three weeks after giving her statement on 21 September 2016, disavowing that statement. Ms D seeks to explain that action in a “addendum” statement given to the Health Ombudsman on 9 November 2016.  She says her email of 21 September was dictated by Dr Kumar and is incorrect: “Dr Kumar forced me to say those things by the threats and offering me money”, saying “when Dr Kumar contacts me, I just really feel helpless” and:
Due to the overwhelming pressure that Dr Kumar put on me, with the threats of violence, the offer of money back and the previous threats made to me about my child’s custody, as explained in my previous statement, I had no choice other than to withdraw my complaints …
Ms D’s Statements as to Other Rapes
[205]	In her 30 August 2016 statement to Health Ombudsman investigators, Ms D posits the end of her relationship with Dr Kumar as January 2016.   Notwithstanding, Ms D recounts to them a sexual encounter with Dr Kumar on 9 July 2016, two days after she returned from a holiday to Fiji.  She said: “he was drunk … he was emotional … we had sex however it wasn’t something that I wanted to do”.   As has been seen, Ms D then proceeds to give an account in that statement of an alleged anal rape on 17 August. Nothing was said or implied in that statement that any rape had occurred prior to the 9 July event just referred to.  
[206]	In neither Ms D’s police statement made 20 August 2016 nor her statement made 7 March 2017 is reference made to any alleged rapes prior to 17 August.  The latter statement was essentially directed to separate issues of physical assault, although Ms D did say there, “when he did come over he sexually assaulted me”.  The statement refers to only one incident of “sexual assault”.  No date of occurrence is given.   No further details of that alleged sexual assault are given in that statement, although it contains details of verbal abuse by Dr Kumar with sexual overtones: he said she “was a whore” and that he “would just fuck me for a little while and then leave me” and “[h]ave you seen my arse? Your face looks like ten times worse than that”. 
[207]	Ms D also told the police on 7 March 2017 that, after ending the relationship with Dr Kumar in June 2016, “I was still sleeping with him whenever he wanted to.  I didn’t want to but if I didn’t do what he wanted he would blackmail me and emotionally harass me.” Again, that statement is not particularised by reference to any specific events or dates.
[208]	Details of the rapes said to have occurred on 11 June 2016 first emerged on 15 March 2017 in the third statement given to the police by Ms D. 
[209]	That statement gives an account of three events including the non-consensual insertion of an eggplant into Ms D’s vagina and the non-consensual insertion of a bitter melon. The date of the rapes is referenced to Ms D’s birthday, 12 June.  Ms D said no such sexual activity had previously occurred consensually between her and Dr Kumar.
[210]	Ms D told the police that day that she “initially consented to having sex with” Dr Kumar on 11 June, but when the activity with the vegetables started, she “freaked out” and “was trying to stop him”.  After the incidents with the vegetables, they had “normal sex” in respect of which she “didn’t say anything I just closed my eyes I was just lying there” and:
After we had sex I had my shower and I was sitting there and I told him something like ‘I’m sore.  I didn’t expect you were going to do this.  Tomorrow is my birthday day”.
[211]	The 17 March 2017 police statement also gives an account of two further alleged rapes which, it is said, were referenced in Ms D’s earlier 20 August 2016 statement. In that first police statement Ms D said, “after June 2016, I can’t remember if it was the Sunday before Wednesday [a reference to Wednesday 17 August] or the Sunday before that, he came to my house and basically did a similar thing”.  She goes on: 
When it started it was half consensual and at first, I resisted and then let it go” and, later, “I shut up and he pulled his clothes off and he asked me to give him a blow job.  I did that and then we had sex.
He was rough.  I wouldn’t say that I agreed to it, but then I just went with it.  He just pushed his penis into my vagina and penetrated me.  He was holding my boobs from behind and just coming in and out.
[212]	In the 15 March 2017 statement, Ms D says:
I told police in my first [i.e. 20 August] statement that [Dr Kumar] made me perform oral sex on him that Sunday night.  I didn’t want that to happened [sic]. He would have known that I didn’t want to do it because I didn’t hold his penis, I kept my hands down.  I didn’t touch him or anything.  I just did that and it didn’t make any difference to him.
And then:
After I gave him oral sex and then he stood up and then said to lie down and when I did that and we had sex, just in missionary position.  I was just lying there.  I wasn’t doing anything. I was just lying there for him to do whatever he was doing and he knew that …
The Telephone Recordings
[213]	Fifteen snippets of recordings of telephone conversations between Ms D and Dr Kumar made by Ms D are in evidence.  Seven predate any alleged rape.  Six were made on 19 August (two days after the alleged anal rape) and the remaining two “in or about December 2016 or January 2017”.   No reference is made to rape, or to any sexual activity, in those last two recordings.
[214]	The 19 August recordings make no reference to any alleged rape prior to 17 August.  “Rape” is referred to by name in two of the 19 August recordings.  No reference or allusion is made to rape in the other four recordings made that day, although sexual activity is alluded to in one of them.
[215]	The first of the 19 August recorded portion lasts for one minute and 48 seconds. (Bold type is used in the translated transcriptions to indicate words spoken in English and is repeated here):
D:	I was asking for money.  I didn’t expect you would come and fuck me.
K:	Fuck your father! Just know that I fucked you up.
D:	Uh!
K:	Whore! Fucking shit! Bitch!
D:	Ok.
K:	Ok, Fuck your father man!
D:	Um!
K:	Ok.  You’ve been talking this since yesterday that I raped you.  Go and tell that I raped you.
D:	You came here the day before yesterday, raped me and left.
K:	You two-faced woman!  Fucking slut, forty-five fucking … inaudible … Who are you 	out of all these.  Mother fucker!
D:	What you have been saying.  I am giving you answer for that.  You have been threatening me that if they deregister you see what you can do to me.
K:	You double-faced, mannerless! Don’t know what your parents have taught you.  I will fuck them up and … inaudible … 
D:	And you! Who have been telling lies … inaudible.
K:	Mother fucker! bitch! A slut!
D:	Hmmm
[216]	In the fourth piece of recorded conversation on 19 August (42 seconds of conversation), Ms D opens with a demand for money she says she is owed and then:
D:	You told me on Wednesday [that is, the date of the alleged rape] you are going to give me my money back 9.30
K:	You are blackmailing me
D:	You came and you fucked me and you said that you don’t have money [male voice overlapping … inaudible] so you came here and fucked my arse, right! [Italics in original transcription.]
K:	You are talking rubbish! Stop blaming me.
D:	I am not talking rubbish, that is the fact.  I am not blackmailing you.
K:	You said you were blackmailing me.
D:	Oh!  You told me to tell lies in the medical board when you fucked me and left me.
[217]	Content suggestive of non-consensual sexual contact appears again in the sixth recorded piece of conversation.  After passages where Dr Kumar continues to ask Ms D to stop calling him, the following occurs:
D:	I told you that on Sunday. I will make your dad listen to all the recordings.
K:	Listen!  I’ll tear your mouth apart.
D:	I’ll make your dad listen to these recordings on Sunday
K:	What will you make him listen?
D:	All the recordings of your verbal abuse and all other things.  I’ve a lot of these. 
	I’ve fourteen fifteen recordings.
K:	I’ll beat you up in your house … inaudible …
D:	Now, I’m not scared of your threats.
K:	…inaudible…
D:	I’m not like you.  You come here and force yourself on me.
K:	You bloody bitch
D:	Ya, you come and you …
K:	You prostitute … inaudible …
D:	Like you opened up a brothel at your practice and you say to me that I’m a prostitute.
K:	You good for nothing! Have you seen your face?
D:	You won’t be worth even any penny.
K:	Your face looks like my arse.
D:	I’ll email this to [a named Health Ombudsman investigator].  You wanted all that.  Isn’t it.  Good?
K:	What? Your face looks like my arse. You tell that to [the named Health Ombudsman investigator].
D:	No, the way that you treat me and everything else, the way you treat me.
K:	You blackmail me.
D:	I am not blackmailing you.  I was just asking for money which you owe me.
K;	…inaudible… fifty thousand …inaudible… Medical Board …inaudible…
D:	Oh! I’m saved. I’ve these recordings where you talk about it.  Don’t worry.  I don’t need all that.  You may say that I blackmail you But I don’t blackmail. I don’t want your money.  I want the money which you owe me. [Male voice overlapping … inaudible ….  [Italics in original transcription].
K:	…inaudible… You ask fifty thousand dollars from me …inaudible…
D:	What fifty?  I’m not asking.  I don’t want your money.  I’m not asking for your money.  Your saying like that doesn’t happen like that.  I only want thirteen thousand dollar which you owe me.
… 	[Conversation continues relating to money]
Ms D’s Evidence at the Criminal Trial
[218]	The agreed position of counsel to have the transcript of Ms D’s evidence at the criminal trial become her evidence as to the rapes before the Tribunal is entirely understandable. It has the effect, though, of limiting the Tribunal’s opportunity to observe Ms D give evidence about these very serious allegations and to observe her cross-examined about them.  Conclusions must be drawn from the transcript without the opportunity to perceive nuance or see actions and reactions.
[219]	Suffice to say the transcript records Ms D’s evidence in chief according in essence with what she had told the police on 20 August 2016, some six-and-a-half years previously.  Her cross-examination was primarily directed to what Ms D said, and did not say, about the alleged rapes at various times.  
[220]	One passage from the cross-examination should be mentioned. It gives Ms D’s account of why she didn’t mention the alleged rapes occurring in June 2016 to the Health Ombudsman investigators.  
[221]	It was put that Ms D did not give an account of any rape occurring prior to her holiday trip to Fiji (in June/July 2016).  It was pointed out that in her statement to the Health Ombudsman she says that, after the end of her sexual relationship with Dr Kumar in January 2016, there was no sexual contact, consensual or otherwise, until 9 July 2016 — the weekend after her return from Fiji.  The statement’s only reference to lack of consent on that occasion is that sex “wasn’t something that I wanted to do”:
[MR HIBBLE]:  So you didn’t mention in that statement that he raped you before going to Fiji do you? --- That sorry.  That was his way of having sex with me, being rough.
HIS HONOUR:  Sorry - - - ? --- I didn’t get the explanation of what rape is till I started speaking out about it.
HIS HONOUR: Can you just - - - 
MR HIBBLE:  Putting aside - - -
HIS HONOUR:  Sorry. Can you just explain to me that answer?  So are you – the question was that you never said that you were raped prior going to Fiji.  Do you accept that that you didn’t say that in your statement? --- I did not.  It’s – well, your Honour, it’s a culture thing that – it’s hard to explain.  Sexual relationships is not spoken openly.  And I couldn’t explain what happened to me before going to Fiji.
What Factors Inform the Tribunal’s Findings as to the Allegations of Rape?
Dr Kumar’s Denials
[222]	Dr Kumar’s repeated denial of a sexual relationship between Ms D and him has already been rejected.   As the Tribunal’s reasons above seek to demonstrate, Dr Kumar has given untruthful evidence about important issues.   The Tribunal considers him an unreliable witness.  
[223]	Dr Kumar’ evidence specifically denying the alleged non-consensual sexual activity is an entirely unsafe basis upon which to reach any conclusion as to the allegations of rape.
Ms D’s Differing Statements
[224]	The evidence given by Ms D now which she says is truthful and should be accepted sits within a context which, in the Tribunal’s view, cannot simply be ignored.  Her earlier contrary statements, include a false statutory declaration and repeated false statements to a statutory body engaged in an important investigation. 
[225]	Findings made earlier as to Ms D’s assertion that she was under Dr Kumar’s sway pertain.  The Tribunal accepts that Dr Kumar authored false statements made by her and also accepts that his influence played a role in her engaging in that behaviour. However, the Tribunal finds that Ms D was complicit in doing so.
[226]	Ms D’s changing statements and the assertion when made that they were true - which of course includes saying the statement she now asks to be accepted as true was false - provide of themselves a shaky foundation upon which to reach the requisite degree of persuasion that Ms D was raped. 
Ms D’s Failure to Mention Alleged Rapes Prior to 17 August
[227]	The Tribunal regards it as axiomatic that there is no homogeneity in the reactions of victims of sexual assault and that there are a multitude of reasons why sexual assault may not be reported - or may be reported only at a particular time or in a particular way.  
[228]	However, in the particular circumstances of this case the Tribunal is unable to shake a pervading concern that Ms D’s account of a highly unusual, allegedly non-consensual, sexual activity alleged to have occurred on 11 June was not mentioned to the police, the Health Ombudsman investigators, or anyone else, until some six months after other alleged non-consensual sexual activity was referred to by her to both police and investigators. 
[229]	The Tribunal’s concerns about Ms D’s evidence are exacerbated by the fact that the same highly unusual non-consensual conduct, and other alleged non-consensual sex said to have occurred prior to 17 August was not raised at all in any recorded interaction between Dr Kumar and Ms D on 19 August, despite Ms D’s reference to rape having occurred two days prior to the telephone call.  
[230]	She agreed in the criminal trial that she had said there was no sexual contact, consensual or otherwise, between January 2016 and 9 July 2016.  Further, in her 30 August statement Ms D refers to the trauma occasioned her by the anal rape she there describes.  It seems to the Tribunal inconceivable that if the events of 11 June occurred as she describes them, the trauma occasioned can have been anything other than worse. Yet, statements to the Health Ombudsman and the police are initially silent both as to the events themselves and any impact upon Ms D.  Nor, in giving an account of trauma said to be associated with the 17 August rape, are the earlier alleged rapes cross-referenced at all.  
[231]	The Tribunal is not persuaded by Ms D’s evidence in cross-examination at the criminal trial quoted above as to her reason for not earlier speaking of those alleged rapes.  The evidence is that some nine weeks after the alleged June incidents, she knew what rape was sufficiently to give an account of anal rape to both police and investigators and to refer to rape in her telephone conversation with Dr Kumar.  Neither did any cultural prohibitions or considerations preclude those accounts (or other graphic accounts of sexual activity more generally) being given.  On Ms D’s own account, she was still “sleeping with him” despite the non-consensual insertion of vegetables into her vagina.
The Recorded Telephone Conversations
[232]	The recordings constitute the only direct evidence beyond Ms D’s account and Dr Kumar’s denials.  They come with the caution as to the attribution of weight earlier referred to.  In this instance, however, they gain weight because of their timing and because it is the rape complainant who is selecting what to say and not say, and what to record and not record, in conversations with her alleged assailant.  
[233]	Ms D said she had been recording telephone conversations with Dr Kumar since July 2015 – that is, almost 12 months prior to the first alleged rape in June 2016. The totality of what Ms D raised with Dr Kumar as to rape or unwanted sexual activity, and what she recorded of any such topic, is contained in the passages quoted above.  
[234]	No recording offered in evidence refers to any rape or unwanted sexual activity having occurred prior to 17 August.  The alleged 11 June rapes, including being vaginally penetrated by vegetables twice on that date, are not referred to, alluded to, or hinted at in the context of referring to “rape” or sexual activity in the 19 August recordings.  
The Alleged Anal Rape on 17 August
[235]	Ms D told the police on 17 March 2017 that she and Dr Kumar had a telephone conversation on 18 August 2016 – that is, the day after the alleged anal rape.  She says Dr Kumar “started abusing” her and “said things like ‘Oh, why are you calling me.  I was with [Ms R]’”.  I said, “It’s my birthday day today”.  No recording of this telephone call is offered in evidence.  Ms D’s account of it makes no mention of any sexual incident being included within it.  That being so, the 19 August recordings are the only recordings where rape is referred to or alluded to.
[236]	The overwhelming impression of the 19 August recordings — recordings made two days after an alleged anal rape that caused bleeding and trauma — is that their purpose was to elicit and document an admission not of rape, but of a promise by Dr Kumar to return money and to document a promise of repayment.  The second recording – occurring immediately after the recording in which “rape” is mentioned - is a particularly vivid illustration.  Ms D herself makes it clear to Dr Kumar that this is her purpose in recording the conversations.
[237]	The topic of money opens the first recording (in which “rape” is subsequently mentioned).  Money is the topic which concludes the second recording and opens the third recording (which ends with “I’ve recorded it previously as well when you said that you owe me thirteen thousand dollars”).  Again, it opens the fourth 19 August recording.
[238]	Some weight is of course given to the references to “rape” in the 19 August telephone recordings.  However, the nature of the conversation and the manner in which the term is used within the broader context just referred to points against it having the weight that otherwise might attach to it.   While “rape” is referred to, the topic is not otherwise expanded upon or addressed with particularity or in any detail.  
[239]	It will be recalled that Ms D says events “which caused her the most trauma” occurring on 17 August were the catalyst for providing her 30 August statement to investigators.  That statement was said to be untrue a few weeks later.  Her 20 August statement to the police which referred to an anal rape was not signed.  (Nor was her 17 March 2017 referring to earlier alleged rapes).  More than 15 months later, on 20 July 2018, each of those statements were “reviewed” and then stated to be true.
Findings as to Rape
[240]	Considering the whole of the evidence and the matters just described, the Tribunal is not persuaded to the requisite standard that specific findings of rape as alleged in the Health Ombudsman’s seven grounds to that effect should be made.
[241]	Lest that finding be misunderstood by Dr Kumar, or anyone else, that is not a finding that the rapes did not occur.  Rather, the finding recognises the extremely serious nature of such allegations and the possible consequences of findings of rape and finds that the evidence as a whole is not sufficiently persuasive to reach such a finding in each case.   
Inferences and Findings as to Dr Kumar’s Conduct Within the Sexual Relationship  
[242]	The evidence is clear that Ms D was a vulnerable person with mental health issues.  Despite the Tribunal rejecting Ms D’s assertions as to the nature or extent of Dr Kumar’s dominance over her, it is also nevertheless clear that Ms D did exhibit significant obsessive traits.  Dr Kumar plainly took advantage of both in pursuing a sexual relationship with her.  He also took advantage of the power imbalance inherent in a doctor/patient relationship to both begin and maintain a sexual relationship with her and to foster in her a belief that there could be a relationship between the two of them.
[243]	Further, the Tribunal considers it can clearly be inferred from Dr Kumar’s vituperative abuse of her evident in the recordings earlier quoted; text messages between the two; and violent conduct toward her (the subject of findings later in these reasons) that he had an appalling lack of respect for Ms D as a woman and as a sexual partner.    
[244]	While non-consensual conduct as alleged is not established, the Tribunal considers it can be inferred from Dr Kumar’s language and attitude toward, and treatment of, Ms D that their sexual relationship was marked by a complete disregard for her feelings and desires.

C.	Other Allegations of Sexual Conduct
Was There a Sexual Relationship Between Dr Kumar and His Patient Ms B?
[245]	The evidence in relation to an on-going sexual relationship between Ms B and Dr Kumar is largely confined to the account given by her, and Dr Kumar’s denial.  
[246]	Ms B deposes that in or about August or September 2006, Dr Kumar started to “become friendlier” and commenced seeing her for longer consultations.  She says he would talk to her in loving ways and told her he loved her and would look after her.  On Ms B’s account, the relationship escalated into Dr Kumar visiting her at her home where sexual activity, but not then sexual intercourse, commenced.  He told her he “wanted to get me to feel happy because I was always upset or depressed". 
[247]	Ms B contends sexual intercourse first occurred between them on 8 September 2008 in Dr Kumar’s consultation room during an examination ostensibly in relation to thrush. Vaginal and oral sex is said to have occurred and Ms B says she did not consent to either.  However, thereafter, a consensual sexual relationship is said to have continued, including sexual intercourse and other sexual activity during long consultations at his practice; during visits by Dr Kumar to her home; and, on three occasions, at Dr Kumar's then home.
[248]	In her affidavit Ms B posits the end of the relationship as to when “the money went missing” which, by reference to other evidence relating to the deposit of a cheque to an account owned jointly by Dr Kumar and Ms R, suggests sometime late in 2009.
[249]	Submissions for the Health Ombudsman contend “[Ms B’s] evidence is in some important respects corroborated by the contemporaneous documents and records …”.   Examples are given of occasions of sexual activity being linked by Ms B to entries in her clinical records. The Tribunal is not persuaded that the clinical records are “corroborative” of a sexual relationship.  Rather, they have the flavour of memory cues leading to self-corroboration.   
[250]	Extracts from Ms B’s Facebook page over a period from 30 January 2019 to October 2022 (predominantly pleas by Ms B for money made with an escalating desperation) are unguarded and indicative of a relationship much closer than the doctor/patient relationship for which Dr Kumar contends.  A finding has earlier been made accepting the Health Ombudsman’s submission that Ms B’s evidence should be accepted.  A similar finding is made in respect of this issue.  Dr Kumar’s evidence lacks credibility.  His denials as to a sexual relationship are rejected.
[251]	Dr Kumar’s clinical notes make it plain that Ms B was a patient on and after 8 September 2008 and remained so in 2009.
[252]	Those notes also record his knowledge of Ms B’s vulnerabilities.  His use of his position as a doctor to engage in a sexual relationship with Ms B should be seen as exploitative of a very vulnerable patient. 
[253]	Non-clinical visits by Dr Kumar to Ms B’s home, and her visits to his home, of themselves violate the proper boundaries of a doctor/patient relationship.
Was Ms JW Dr Kumar’s Patient During Their Sexual Relationship?
[254]	Not long after their relationship commenced, Ms JW found out she was pregnant to Dr Kumar (their son was born on 17 June 2011).  Ms JW says, and the Tribunal accepts, their sexual relationship “resumed sometime after” advising Dr Kumar of the pregnancy.   
[255]	In his affidavit, sworn seven weeks after the Statement of Agreed Facts was filed, Dr Kumar deposes, “… in 2009 we got into a relationship with each other … [and were] … in a relationship … for close to two years”, separating “in 2012”.   
[256]	He asserts “the nature of the ‘consultations’ he had with Ms JW “were not patient-doctor, but instead in the context of a relationship” … “[s]he was never my patient”.  Later he deposes, “[s]he did not see me as a general practitioner at any time”.
[257]	The Agreed Bundle of Documents for the hearing include medical records for Ms JW at Dr Kumar’s then clinic.  They indicate plainly Ms JW received treatment from Dr Kumar on 20 August 2009, 24 November 2009 and 20 December 2009.  According to the notes, the consultations were for, respectively, a sore throat for which antibiotics were prescribed; pathology regarding hepatitis status; and knee pain. 
[258]	Dr Kumar’s contentions are rejected.  Notwithstanding the minor nature of the consultations and their relative irregularity, there is no doubt on the documentary evidence that Ms JW was under Dr Kumar’s care until 20 December 2009.  
Did Dr Kumar Inappropriately Touch Ms V?
[259]	Ms V first saw Dr Kumar as a doctor in 2010 when she was about 15 years of age and in high school. There was nothing untoward about the doctor-patient relationship.
[260]	The events the subject of the instant allegations occurred on the night of 5 August 2013 in a Bunnings car park. On 1 August Ms V consulted Dr Kumar for a medical complaint.  During the consultation, there was a discussion about Ms V wanting employment. Dr Kumar indicated employment may be available at his clinic and suggested she contact the practice manager, Ms R. 
[261]	Ms V was excited at the prospect of employment and gave him a hug. (Her father was a friend of Dr Kumar and they occasionally socialised as part of the local Fijian Indian community).  Dr Kumar texted her later that evening.  Ms V says Dr Kumar said in the text that he was looking forward to working with her and that he “enjoyed the hug”.
[262]	The following day, 2 August 2013, Dr Kumar texted Ms V asking her to attend the clinic to see Ms R about employment “so that I could get started on my training”.  Ms V attended the clinic about midday. Ms R wasn't there, so she left.  On 5 August 2013, Ms V says Dr Kumar called her at about 8 or 9 o'clock at night.  He asked her to meet him at the clinic “for training with [Ms R]" at 10pm.  She says that Dr Kumar then immediately said he needed something from Bunnings and suggested they meet in the car park there.

[263]	Ms V deposes:
Straight away I thought this was odd and a bit suspicious. I was living in Kirwan at the time which is the same suburb as [Dr Kumar’s clinic]. The Bunnings store was in a completely different suburb. I also hadn't spoken with [Ms R] at all about my training.
[264]	Nevertheless, Ms V agreed to meet Dr Kumar at the Bunnings car park.  Before doing so she expressed her misgivings to her father.  She deposes, “my father didn't like it and didn't want me to go. I told him that I thought I should go because if I didn't go then maybe Dr Kumar wouldn't give me the job".  At her father’s suggestion, Ms V’s then boyfriend, Mr B, accompanied her.
[265]	At the carpark, Ms V located Dr Kumar’s car and sat in it.  Ms V says that Dr Kumar asked if she wanted to get something to eat which she declined and he then commenced talking about things which “didn't relate to the job." He then placed his left hand on her right thigh. She said she felt uncomfortable: “every time I moved my legs and his hand would slide off, he'd place it back on my leg". Dr Kumar “kept talking about the hug and how good it was".   She deposes, “he then grabbed my hand with both his hands. He was rubbing my hand and then began kissing my arm just up to the elbow and then just kept going up and down”. She withdrew her arm, but Dr Kumar grabbed her arm again and kissed it again.  She pulled her arm away and “kind of moved her whole body to the side of the car”.
[266]	Ms V says at this point that Mr B got out of the car carrying a bat. She says Dr Kumar appeared to see Mr B and leaned over, opened her door, told her to get out and he then “sped off in his car”.
[267]	Dr Kumar’s affidavit of evidence for the Tribunal contained no account at all as to what did (or on his version, did not) occur with Ms V at the admitted meeting in the Bunnings car park.  Dr Kumar’s evidence emerged for the first time only in cross-examination at the hearing and after he had heard Ms V and her father give their evidence. 
[268]	Dr Kumar denies originating the meeting: 
I did not call her to come there. It was that she insisted that she wanted to meet me, and I said, “What about?” She said, “I wanted to discuss something about the job.” I said, “Well, I’m going via that way, to Kirwan, to the practice, and I’ll be at Bunnings.” And she said, “I could meet you at the Bunnings car park.” And I said, “Okay. Come over, then.
[269]	He offers no evidence that he tried to dissuade her from meeting there in favour of meeting at his practice situated ten minutes away where the prospective employment was to take place and to where he was in any event heading.  He was not heading there to see patients but to supervise other doctors.
[270]	The Tribunal finds Dr Kumar’s evidence as to the circumstances leading to the admitted meeting with Ms V at a Bunnings car park at night on 5 August 2013 and his evidence as to what occurred at that meeting implausible and logically unsustainable.  
[271]	That impression was particularly vivid during his evidence alleging the meeting and the assertions as to what occurred were “a set-up” — again, evidence heard for the first time only in cross-examination.  His account of a “set up” and his version of what occurred in his car were not put to Ms V when she was cross-examined.  It is not suggested that was an omission by his counsel.  Rather, the Tribunal gained the distinct impression that Dr Kumar was making up his evidence as it went along.
[272]	It is instructive to quote from Dr Kumar’s evidence as to the “set up” at some length.  It is again illustrative of the Tribunal’s findings that he lacks credit, and his evidence is unreliable.  
[273]	Having given evidence that when Ms V was seated in his car, she was “nervous and sweating”, Dr Kumar said:
You agree that you took hold of her hand, though, don’t you?---Yeah.  She put the hand and that’s when I saw it all shaking, so I held her hand and I said, “What’s happening?”  And that’s when I felt that she was sweating profusely, and that’s when it crossed my mind that there’s something more to it, so this happened just about the time that I saw somebody moving in the car.  And by this time, she just opened the door and left.
[274]	When asked how he had gathered that Ms V was nervous when she was in the car with him, he said he:
 … put two and two together that she was – I – this is what I thought much later when I sat down thinking about it, that she was obviously trying to do something that either she was very anxious about … that either she get caught or whatever. And the way she was shaking was literally shaking, and that's why I held the hand that this happened just at the time and I saw the fellow in the car. And I didn't know whether it was a grown-up or a – a child. She said, it's my little brother”.
[275]	Dr Kumar said that as he drove to the practice after the meeting, he was thinking about “what just happened" that, “I thought maybe she was trying to set me up because of the way they… drove off.” When asked to expand upon how he thought a 17-year-old young woman was trying to set him up Dr Kumar said: 
… it looked funny to me that I had talked to her at the practice, given her the details, given her the email address to talk to [Ms R] and whatever, and she then started calling me, and that all this happened, so I thought there is something funny here.
Like what? – – – that somebody was trying to set me up either – – –
In what way? – – –To get me caught with a girl or to get me involved with a girl or to say that, “oh, Dr PK was with my daughter” or whatever because I know the family.
Right, so who did you think was trying to set you up – – – either Mr or Mrs [V]
And why did you think they would try and set you up? – – – Mr [V] – I helped him for a very, very long time, five or six years and he did not have a job he was a lawyer but he didn't have a job. There was an incident prior that where the elder daughter had come to the practice, seen another doctor, and she was pregnant but did not tell the whole family. And on that evening, because this Doctor sent her for an ultrasound – to the hospital to so – go get an ultrasound, and she delivered a baby. This mother called me up saying, “PK, you have a doctor at your practice who did not know that my daught – my daughter was pregnant. I’m going to sue your practice for this much of money.
[276]	Having indicated that the alleged incident just referred to occurred about two years previously Dr Kumar gave the following evidence: 
Two years. I see. And so you thought when [Ms V] met you in the car that this was somehow connected with that earlier incident involving her sister? – – – No. That earl – earlier incident gave me the idea that there was a situation where they could ask for money – from nothing, out of nothing. The doctor made a mistake or whatever, send [sic] her out for an ultrasound to confirm whatever is happening – – –
I see? – – – and the idea is your practice is doing and we’re going to sue you.
[277]	Dr Kumar’s evidence continued: 
I see. So when Ms [V] had this strange conversation with you in the car where her hands were sweating and the like, as you were driving away, you thought this must be Mrs [V] who is behind this, because of her previous attempt to sue you because of the other daughter, is that right – – – Possibly, or – – –
And even though [Ms V] didn't say anything – – –?– – – Nothing. Nothing at all.
– – – about getting any money or anything – – –?– – – No.
– – – like that, you just – – –?– – – Nothing at all.
– – – made the connection that that that's what this is all about? – – – it wasn't about money.  It was about setting me up.  I thought – – –
Right? – – – – – – there was something wrong because of the way she walked out.
What, by the health authorities you mean? – – – Whatever
Yes? – – – Or my missus – my ex-missus.
[278]	Later Dr Kumar was asked: 
But the thoughts you’ve told us about today, how it was a set up and how you were concerned about it being a setup [sic] of some sort, you didn't put that in your affidavit.  Why is that? – – – That is still my speculation.  Even until now, I don't know what the whole idea was.
[279]	The Tribunal accepts Ms V’s account of what occurred on the night of 5 August.  Her evidence was dispassionately delivered, and she plainly endeavoured to be careful in giving her evidence.  For example, she accepted that a note dictated to her father relatively contemporaneous to the events was likely to better record details than her affidavit sworn some ten years later.
[280]	The general proposition advanced by counsel for Dr Kumar as to a lack of corroboration has earlier been referred to. Specifically, questions and later submissions were directed to the absence of Mr B being pursued as a witness by the Health Ombudsman.  The Tribunal’s earlier comments apply.  In any event, Ms V gave unchallenged evidence that the relationship with Mr B had ended six or seven years prior to the hearing and there was no evidence of any contact between Ms V and him in the interim. 
The Note
[281]	Ms V’s father is apparently a qualified lawyer in Fiji.  He prepared what he contends in effect is a contemporaneous note of what Ms V told him of the events in question. 
[282]	Ms V deposes (at [48], [49]) that she went to her parents’ house immediately after the events of that night and, the following day, returned when: “my Dad wrote down my account in my presence, typing it into a Word document.  He finished the document before I left the house”.   Mr V says in his affidavit (at [8]) that when Ms V and her then boyfriend attended his home that night, he “made notes of what [Ms V] told me”.  The typed document, exhibited to Mr V’s affidavit, records him “typing all this stuffs the day after the event … as I listened to what my daughter was telling me”.
[283]	The note’s (hearsay) account of what Ms V told her father of the incident is that Dr Kumar “proceeded to take [Ms V’s] hand and kissed it twice”.  To the extent that might represent a slight discrepancy from Ms V’s account, no questions were directed to Ms V and in the Tribunal’s view nothing turns on it.  The Tribunal considers the lack of precise correlation in the document and the small discrepancies in the evidence of Ms V and Mr V enhances their credibility rather than diminishes it.  It suggests an attempt by each at independent recall and lack of collusion.
[284]	Mr V’s evidence and the note, and the fact that it was taken very close to the events in question lends support to the account of two witnesses whose clear and cogent evidence otherwise impressed the Tribunal. 
[285]	Cross-examination of Mr V suggested that a concerned father would have reported this incident to relevant authorities. In his affidavit, Mr V said he could not recall doing so because he “assumed that [Ms R] complained to the Medical Board about this incident because [Ms R] was so angry about it when I spoke with her and because she told me she was going to make a complaint”.  
[286]	In cross-examination, Mr V said he could not recall whether “[he] made a phone call to report it, because it is more than 10 years now. All I know [is] [Ms R] promised me that she was going to report it”.  When challenged as to whether it was likely Ms R would report it given her relationship with Dr Kumar, he said: “she was at [my] home crying in shame. She was in tears … And I genuinely believed that she was going to do it”.  The Tribunal accepts Mr V’s evidence.
[287]	The Tribunal finds that at a meeting arranged by Dr Kumar occurring at night, he engaged in unwanted sexual touching by placing his hand on Ms V’s thigh; by kissing her hand and by repeatedly kissing her arm.  
[288]	Ms V was vulnerable by reason of her age. She was not yet an adult when this behaviour occurred, turning 18 on 28 August.  The seriousness of the conduct is exacerbated by Ms V’s age.
D.	Allegations of Coercion and Coercive Behaviour	 
Did Dr Kumar “Coerce” Ms B into a Sexual Relationship?
[289]	Despite at least some suggestions to the contrary by Ms B, no allegation before the Tribunal is framed as involving non-consensual sexual activity with her.   It is however alleged that Dr Kumar “coerced” Ms B into engaging in a sexual relationship with him. 
[290]	Ms B’s account of their sexual relationship and its genesis in Dr Kumar becoming friendly with her, saying he loved her, and saying he would look after her before segueing into a sexual relationship, together with Ms B’s vulnerabilities are said to found the coercion.
[291]	The ordinary dictionary meaning of “coercion” (as distinct from what might constitute any relevant offence) is the use of force or threats to have someone do that which they do not want to do.  There is no evidence that force or threats were used by Dr Kumar to have Ms B engage in a sexual relationship or (despite her vulnerability) that he suborned her will.
[292]	Her evidence seen as a whole is that the relationship was voluntarily entered into by her – that is, it was something she wanted to do - on the back of expressed love for her espoused by Dr Kumar and her desire to be cared for.  In the Tribunal’s view, coercion is not established.
[293]	Of course, the findings made as to the existence of a sexual relationship and its inherent exploitation of a particularly vulnerable patient and sexual activity carried out in a clinical setting are likely to be highly relevant to later aspects of the Tribunal’s inquiry.
Did Dr Kumar “Coerce” Ms JW’s Statutory Declaration?
[294]	The Health Ombudsman alleges Dr Kumar “coerced” Ms JW into signing the statutory declaration earlier discussed.   
[295]	On Ms JW’s evidence Dr Kumar did not force her to sign the document — she did so willingly.  The harassment by text message of which she speaks is not directed to the signing of the document nor does other evidence link the two causally.
[296]	At [65] of her affidavit, Ms JW deposes specifically, “I do not believe that Dr Kumar abused me when I met him to sign the statutory declaration”.
[297]	There is no other evidence of conduct of the type required to prove “coercion” that is causally linked to Ms JW signing the statutory declaration.  The allegation is not established.
Did Dr Kumar “Coerce” Ms JW to Remove Her Temporary Protection Order? 
[298]	During an interregnum in her relationship with Dr Kumar, Ms JW was in a six-month relationship with Mr LH commencing early in 2012.  
[299]	In February 2012, Ms JW obtained a Temporary Protection Order against Dr Kumar.  She deposes that the basis for the order was “the constant abuse, harassment, emotional blackmail, manipulation and mind games I used to endure from Dr Kumar”.  Thereafter, a series of temporary protection orders were in place until July 2012. Ms JW deposes that Dr Kumar’s harassment “never stopped … the harassment merely changed to his harassing me to remove the TPO …”.
[300]	Dr Kumar admits sending an email to the Health Ombudsman within which he says: – 
I would like to add that an application for a Domestic Violence Order DVO was made against me by [Ms JW] in February 2012, but she after she realised that she was being misled by her ex-boyfriend, [Mr LH], she went ahead and withdrew the application.
[301]	Ms JW deposes that she “eventually withdrew the TPO” after splitting up with [Mr LH].  Some six to eight months later, in early 2013, her relationship with Dr Kumar resumed. The relationship concluded later that year when her “deadline” for the cessation of Dr Kumar’s relationship with Ms R was not met.  
[302]	Ms JW deposes:
I withdrew my TPO in 2012 because of several factors:
(a)	The relentless harassment from Dr Kumar
(b)	I came to believe that [Mr LH] had convinced me to take out the TPO to annoy Dr Kumar; and 
(c)	my being convinced by Dr Kumar that if we were to go to court in respect of the TPO then I would lose custody – be it full or in part – of my son in any subsequent Family Court proceedings.
She goes on to say that “I believe I had good reason to put the TPO in place to begin with and should never have been convinced to withdraw it”.  
[303]	However, despite the vast volume of text messages and the harassing conduct to which she refers, she recommenced her relationship with Dr Kumar.  Plainly she then desired a full-time relationship with him if he would commit to ending his relationship with Ms R.  Her resumed relationship with Dr Kumar subsisted for another “six or eight months”.
[304]	On Ms JW’s own evidence there were multiple reasons for her removing the TPO.  The circumstances do not persuade the Tribunal of any causative threat or force actuating something which Ms JW did not want to do.  Rather, the removal of the TPO appears to have been prompted by something she wanted to do: to resume her relationship with Dr Kumar.  
[305]	The allegation of coercion is not established to the requisite standard.
Did Dr Kumar Coerce Ms D to Withdraw Complaints?
[306]	The relevant allegations of coercion in so far as they affect Ms D are said to be founded in Dr Kumar coercing Ms D to withdraw her complaints to the police and the Health Ombudsman and an alleged attempt to do so. 
[307]	The allegations lie in the changing statements by Ms D already discussed.  It will be clear from what has already been said, and the findings already made touching on allegations concerning Ms D, that no causative threat or force is established in Ms D withdrawing her complaints.  Rather, doing so was, as the Tribunal finds, predominantly so as to further her establishing or maintaining a relationship with Dr Kumar.
[308]	The allegations are not established.
D.	Assaults, Threats and Abusive Language
Allegations Concerning Ms D
[309]	Ground 23 refers to an incident raised in Ms D’s police statement of 20 August 2016 (at [41]). Ms D says Dr Kumar punched and slapped her. The same event was described to investigators in Ms D’s statement of 30 August 2016 (at [24]) where it is described as a “physical fight” and where Ms D says she “spent some time in hospital” in consequence.
[310]	Grounds 26 to 29 all concern incidents which occurred on 5 March 2017.  The events of that afternoon resulted in charges being brought against Dr Kumar. The QP9 details six charges, including “common assault (x 3); Assault occasioning bodily harm (x2); Choking, suffocation, strangulation domestic relationship; threatening violence — discharge firearms or other act”.
[311]	The Verdict and Judgment Record of the Magistrates Court records Dr Kumar pleading guilty on 2 September 2020 to one count of assault occasioning bodily harm to Ms D and one count of wilful damage to her vehicle.  (The document records “no plea” on the other charges and gives as a “plea date” 2 June 2018.)
[312]	The relevant incidents to which Dr Kumar pleaded guilty involved Dr Kumar emerging from his residence brandishing a pool cue and using the same to smash the windscreen and left-hand passenger windscreen of Ms D’s car. Those actions, the plea of guilty and the conviction speak for themselves.
[313]	What was said by Dr Kumar during the course of recorded telephone conversations on 19 August 2016 has already been quoted and commented upon.  The exhibit also contains recordings made by Ms D in the period December 2016 to January 2017 (Ms D is unable to better particularise the recording dates).  They reveal Dr Kumar saying for example: 
This time when I beat you up it will be worse than last time.  I will smash your car as well.  If you have the guts in your arse then come over …
You will die you bitch. You will die.  You have taken me … this limit in your ass … I can’t handle this anymore …
You are a piece of shit that does not deserve to live …
Fucken oxygen waster, you are a fucken waste of oxygen …
[314]	Self-evidently, the allegation as to the use of derogatory and abusive language is made out. 
[315]	Ground 29 comprises other allegations the subject of charges to which no plea was entered.  It would seem no further action was taken in respect of them.  The earlier findings made as the reliability and veracity of Ms D’s evidence in her various statements pertain.  
[316]	The evidence does not reach the requisite degree of persuasion.  The allegations, save those encompassed by the conduct the subject of guilty pleas and the language evident in recorded telephone conversations, are not established. 
Allegations Concerning Ms B
[317]	The allegation in so far as it affects Ms B is associated with an ongoing allegation as to Dr Kumar receiving money from her and not returning all of it.  Both will be discussed later in these reasons.
[318]	Ms B alleges when she asked for her money back, Dr Kumar became “very abusive” toward her and deposes to ringing her and swearing at her, saying she “would not get my fucking money”.
[319]	The Tribunal declines to make any specific finding based upon this assertion as to a single instance, notwithstanding acceptance of Ms B’s evidence generally.  Even if established, it does not add to sanctions that might flow from other established conduct of a similar type.
Allegations Concerning Ms JW
[320]	In the filed Statement of Agreed Facts Dr Kumar admits he “sent text messages to [Ms JW] stating that he was depressed and threatening suicide”. The Agreed Bundle of Documents contains eight bundles of screenshots on numerous dates in November 2016, and an admitted “extract of text messages exchanged between Dr Kumar and Ms JW”.   
[321]	At [27] of his affidavit, Dr Kumar deposes:
In regards to text messages and calls to [Ms JW] we were in a relationship for close to two years, just like in any relationship there are ups and downs, those messages whilst unsavoury, are an indication of a strained relationship.
[322]	The conduct alleged in Grounds 3 and 4 is established on Dr Kumar’s admissions and the admitted facts and documents.   
[323]	Whether the admitted conduct meets the statutory definition of unprofessional conduct (to which Dr Kumar’s deposition is in effect directed) and the submission by the Health Ombudsman that the sending of the text messages “threatening suicide in this context amounts to acts of domestic violence” will be discussed subsequently when attention turns to whether the established allegations meet the statutory definitions. 
E.	Allegations of Monetary Inducements 
Did Dr Kumar Offer Ms D Money to Make a False Complaint?
[324]	The Health Ombudsman asserts that on or about 17 October 2016, Dr Kumar offered to pay Ms D $10,000 to make a false complaint against Dr S, another doctor in Dr Kumar’s practice.  Dr Kumar denies that allegation.  Dr S is not a witness.
[325]	This allegation depends upon an assertion by Ms D made in her “addendum” statement to the Health Ombudsman on 9 November 2016.   It is said by Ms D that Dr Kumar raised the payment in a telephone conversation with her on 17 October 2016:
In response to that, I told Dr Kumar that I could not do that because [Dr S] and I never had any relationship.  Dr Kumar then started calling me a bitch and a cunt.  I told him I was busy and had to go and then I hung up.
[326]	On her account, Ms D met Dr S (at McDonalds) and told him of Dr Kumar’s request.  Ms D then deposes to showing Dr S her 30 August statement to the Health Ombudsman and the reasons why she did so.
[327]	The topic of the alleged false complaint against Dr S is not further referred to; no response from Dr S of any sort is deposed to and the topic otherwise then falls away in her statement. No other evidence touches on the allegation.  Nothing within the three police statements in evidence suggests it was taken up with the police. 
[328]	The Tribunal is not satisfied of the occurrence of this event based solely on Ms D’s vague and unparticularised evidence.
Did Dr Kumar Offer or Arrange a Monetary Inducement to Ms V’s Father?
[329]	Mr V deposes in his affidavit that “one or two days after” the 5 August 2013 incident involving his daughter Ms V, he received separate phone calls from Dr Kumar and two other people.  He says he does not recall the names of those people because of the effluxion of time.  The expressed purpose of all of the calls was to have Mr V not make a complaint about the 5 August incident.
[330]	Mr V deposes in addition that he was visited by a good friend, Mr K, who was also a friend of Dr Kumar.  He deposes that Mr K told him that Dr Kumar had phoned him and “told him what had happened with [Ms V]”.  “He said Dr PK was willing to pay me $10,000 if I dropped this complaint altogether”.  Mr V says he refused the offer.  Mr K is not a witness in either party’s case.
[331]	Dr Kumar conceded he had a telephone conversation with Mr V on the day after the incident with Ms V and also conceded that during that conversation, Mr V threatened to report him to the Medical Board over the incident.  When asked whether he knew Mr K he replied, “I used to know the gentleman”.  Dr Kumar specifically denied asking Mr K to contact Mr V with an offer of $10,000 if he didn’t pursue his mooted complaint. The Tribunal gives no weight to that denial.
[332]	The absence of evidence from Mr K leaves a finding dependent upon an acceptance of Mr V’s evidence.
[333]	In the Tribunal’s view, Mr V’s credibility is enhanced by an attempt to besmirch it.  That attempt arose in the form of an affidavit by Ms R received only on the fourth day of the Tribunal hearing.  No affidavit by her had earlier been filed.  Among other things, that affidavit alleges Mr V sought a payment from Dr Kumar (through, apparently, the agency of Ms R) of $10,000 to not make a complaint relating to Dr Kumar’s conduct with his daughter Ms V.  Mr V denies any such claim.  
[334]	The evidence of Ms R is rejected. It is unparticularised, vague, inconsistent and, generally, entirely unconvincing.  Neither the motivation for her Tribunal evidence nor its purpose is immediately clear.  It would seem, in essence, to be intended as evidence supportive of Dr Kumar’s credit.  If that be its purpose, it has failed. However, the nature of Ms R’s evidence and its ramifications in respect of the integrity of the Tribunal’s process and those of the statutory body charged with protecting the public should not be allowed to pass without comment.
Ms R’s Affidavit and Evidence
[335]	Ms R’s affidavit deposes to having received a phone call from Mr V “in 2015".  She deposes:
[Ms V’s] father told me that Dr Kumar did a job interview with Nina, he stated that Dr Kumar touched her hand. I asked where the job interview happened, and he said outside of Bunnings".
He said that it wasn't right and then proceeded to ask for money. He asked for around $10,000.00. He said that if we gave him the money he would not take this further. I said no to his offer, I said that I was not getting involved … .
[336]	In a statement to the Health Ombudsman given on 13 July 2016, Ms R makes no mention of Mr V’s alleged request for money.  Indeed, nothing like that is referred to.  Rather, that statement gives an account of what she was told about the 5 August incident entirely consistent with Mr V’s evidence to the Tribunal: “[t]he family members present knew about Dr Kumar’s relationship with [Ms JW] and were not happy that he had approached [their daughter]”.
[337]	During the course of Ms R’s evidence, a number of warnings were given as to self-incrimination and an opportunity afforded to obtain advice. Ms R declined the latter and, on each occasion, chose to give evidence. Ms R’s evidence did not conclude on the day she was called.  Her evidence was due to resume the following day. She did not appear. The Tribunal issued a s 97 notice requiring her attendance.  She appeared on a subsequent day of the hearing pursuant to that notice. 
[338]	Ms R’s sworn evidence to the Tribunal differs dramatically from statements earlier given to investigators and declared to be true at the time.  Her evidence to the Tribunal is that she:
(a)	told lies to police about injuries inflicted by Dr Kumar which in part founded her application for a temporary protection order.  (Her evidence to the Tribunal is that the injuries were self-inflicted);
(b)	made false statements to the police designed to be used in connection with obtaining temporary protection orders against Dr Kumar.  (Documentary evidence from the Queensland Police Service containing those “false” statements used to obtain temporary protection orders against Dr Kumar is in evidence before the Tribunal);
(c)	had no knowledge of Dr Kumar breaching a bail condition that he have no contact with her, nor any knowledge of making a complaint to police about the same.  (Dr Kumar was convicted of the same in November 2015. Exhibit HO 2 contains an unredacted prosecution form which lists Ms R as the complainant and contains a version of her account to police completely inconsistent with her current position);
(d)	told lies to the Health Ombudsman’s investigators in 2016.  (Her statement was audio-recorded and Ms R attested then to its truthfulness);
(e)	did not tell investigators that Dr Kumar had, prior to her giving the statement to investigators, threatened her that he would ensure she was sent to jail and would have the children removed from her care.  (The statement containing her contrary version was audio-recorded, and Ms R attested then to its truthfulness); and
(f)	pretended to be Dr Kumar in a series of text message exchanges which on their face suggest an exchange between Dr Kumar and Ms D.  She said her statement to Health Ombudsman investigators on 21 July 2016 that the messages were between Dr Kumar and Ms D was a lie.
[339]	Ms R’s evidence to the Tribunal did not admit of the potential for errors or inaccuracies of recall in her earlier statements. Her evidence is that she was being deliberately untruthful on those earlier occasions.  Although Ms R swore before the Tribunal that she had told lies in her statements to Health Ombudsman investigators, reliable documentary evidence before the Tribunal plainly indicates to the contrary
[340]	Ms R’s Tribunal evidence is that what she now says are lies were allowed to stand for about three years.  During that time, she told no one of having earlier given an allegedly false account. Similarly, no alternative version was given to anyone during that same period. This changed, she says, when she presented to a police station and there gave an account of earlier falsely declaring a police statement and thereafter using it to falsely obtain a protection order.   On that account she was effectively admitting to perverting the course of justice.  
[341]	On her account the police did nothing despite frank admissions by her of two matters that could form the basis of serious criminal offences. Despite the seriousness of such an event, she says she is unable to recall the date, or approximate date, of her visit to the police station.  She is unable to recall the police station.  She is unable to recall the suburb in which it was situated.  She is unable to recall if any statement was taken by police at that time: “but they were wearing the video cameras, so – yeah”.
[342]	The rejection of that account of her report to the police sees her evidence to the Tribunal as the first account of the alleged falsity of her earlier statements.  It comes seven years after her original statements and emerged not in her affidavit in these proceedings, but during her cross-examination.  No earlier communication had been directed to the Health Ombudsman seeking to retract or change her earlier statement.
[343]	The Tribunal entirely rejects the evidence of Ms R that Mr V offered to accept money in exchange for not making a complaint about Dr Kumar’s behaviour toward his daughter.  The Tribunal accepts the evidence of Mr V that no such event occurred. 
[344]	Dr Kumar’s evidence that he did not seek to dissuade Mr V from making a complaint, or have others on his behalf do similarly, is rejected.  So, too, his denial that he offered, through the agency of Mr K, to pay Mr V $10,000 to not make such a complaint is also rejected.  Notwithstanding the absence of evidence from Mr K, or others who telephoned Mr V on Dr Kumar’s behalf, the Tribunal finds each of those events occurred.  The Tribunal is entirely satisfied of Mr V’s veracity and reliability.  It is in effect enhanced by the attempts of Ms R to falsely besmirch it. 
Was Dr Kumar Violent to Ms R?
[345]	One other aspect of Ms R’s evidence should be mentioned.  Before the Tribunal she disavowed her earlier statement to investigators relating to Dr Kumar’s violence toward her.  Ms R swears before the Tribunal that injuries earlier stated to have been caused by Dr Kumar and which precipitated her police complaint and the temporary protection order, were self-inflicted. 
[346]	The injuries can be seen in photographs tendered by the Health Ombudsman as an Exhibit (Exhibit RR1).  Ms R said she had someone photograph the injuries so as to make the false complaint to the police.  She says she is unable to recall who took the photographs, which were taken on her phone: “It could have been one of my friends … [it] could have been … my mum”.  
[347]	On her current account, this was a calculated and deliberate plan to create false evidence so as to falsely obtain a temporary protection order against Dr Kumar.  The Tribunal finds it extremely unlikely that she would not recall who she had assist her in that plan.
[348]	Significant bruising to the rear of Ms R’s right shoulder is said to have been caused by Ms R beating herself with a pestle – with her non-dominant hand - “over a couple of days”.  She says when the bruising emerged, a photo was taken on 13 October 2015.  The exhibited photo bears that date. 
[349]	When Ms R was questioned about a fourth photograph dated 9 October she said, “it’s the same bruising except that it was taken on different dates”.  She accepted that, if that was so, a consequence is that her alleged self-injury with the pestle must have occurred prior to 9 October and continued over a number of days up to the taking of the photograph on 13 October.
[350]	Ms R’s evidence is rejected. Her account, heard for the first time in oral evidence before the Tribunal is implausible.  The evidence is much more consistent with her having had the photographs taken in order to properly found an application for a temporary protection order in respect of injuries inflicted by Dr Kumar which was the allegation she stated to be true at the time.  That being so, it should be observed that the photographic evidence is of observable injuries inflicted in actions of serious family violence by Dr Kumar.
F.	Financial Transactions with Patients
Did Dr Kumar Receive Money From His Patient Ms B?
[351]	It is alleged Dr Kumar received from Ms B two sums of money, the first $78,508.19 received as an inheritance by Ms B from her aunt and the second $6,000 received by Ms B as a compensation payment for an injured elbow.   It is common ground that $78,508.19 was received into a joint account in the names of Dr Kumar and Ms R by Ms B assigning a cheque in her favour for that amount.  Equally, it is not in issue that Ms R went with Ms B to the bank in order to deposit the assigned cheque.
[352]	The issues which immediately arise are whether Dr Kumar in fact received either or both of the sums of money and, if so, whether all or some has been returned to Ms B. 
[353]	The central factual contest is encapsulated by a submission on behalf of Dr Kumar that, “it is open to the Tribunal to find that the money held on trust between [Ms R] and [Ms B] was nothing more than a commercial arrangement between two independent adults”. The submission reflects Dr Kumar’s position disclaiming any involvement in the receipt or handling of the monies (or any prior knowledge of its potential receipt).  
[354]	The submission on behalf of Dr Kumar can be seen to derive in part from an admitted Deed of Settlement between Ms B and Ms R dated 3 March 2011.  That deed records that Ms B entered judgment against Ms R for $50,335.69 which resulted in a deed of acknowledgment of debt.   The later 3 March 2011deed records that payments were made under the previous deed and goes on to record that $21,450 remains owing.  The Deed then records a payment plan of $3000 payable on signing and 92 monthly payments of $200 commencing thereafter.
[355]	The circumstances giving rise to the recorded judgment debt and the original deed are not in evidence.  However, it seems clear that Ms B, through her lawyers, pursued Ms R as distinct from Dr Kumar or Ms B and Dr Kumar jointly.  Further, Ms B acknowledged a debt owing by Ms R alone and the 3 March Deed of Settlement similarly acknowledges a debt owing by Ms R alone and repayments due by her alone.

The Inheritance
[356]	The effluxion of time prevented documentary evidence such as bank statements and other bank documents being before the Tribunal. 
[357]	Dr Kumar said the joint account was opened in connection with obtaining a visa for Ms R and it was put in joint names for that purpose.   He says he has “never dealt with that account”.  More specifically, he swore “I have had no access to that account, no access whatsoever”.  That evidence is rejected in favour of the contradictory account given by Ms R.
[358]	The Tribunal accepts Ms R’s evidence on this issue, despite the significant concerns as to her veracity and reliability earlier expressed, for a number of reasons.  First, and most importantly, the Deeds earlier referred to are supportive of her account.  Secondly, Ms R was for a considerable period Dr Kumar’s practice manager and she had intimate knowledge of their financial affairs.  Thirdly, her evidence as a whole on this topic (in contrast to other evidence from her) had coherence and cogency; none of it struck the Tribunal as implausible.  Fourthly, specific parts of her evidence – for example that both she and Dr Kumar had access to an account which was in their joint names – accords with common sense and experience.
[359]	In stark contrast to Dr Kumar’s evidence, Ms R says both of them could access the joint account.  Dr Kumar said that despite Ms R putting nearly $80,000 of a patient’s money into a joint account, he never asked Ms R about the circumstances: “The only thing I said was ‘we cannot trust people like this. It can come back and bite us’”.  Ms R says they discussed the deposit and its circumstances either that evening or several evenings later: “because obviously, it was in the joint account, and he saw the transaction”.
[360]	In the Tribunal’s view, little turns on whether, on the day the cheque was deposited, Ms B brought the cheque to Dr Kumar who called Ms R in to deal with it as Ms B alleges or whether, as Ms R’s memory has it, Ms B brought the cheque to her.  Some at least of Ms B’s evidence contemplates both Dr Kumar and Ms R being involved in the process:
I did not give the inheritance money to Dr PK or [Ms. R] as a gift. I did not give Dr Kumar or [Ms. R] permission to use my money for themselves. I gave it to Dr PK because I trusted him and he said he would look after me.
[361]	A more important question is whether Dr Kumar was involved in Ms B vouchsafing the cheque to him at all. Dr Kumar admits there was a conversation during which Ms B referred to her aunt and the prospect of an inheritance.  The Tribunal rejects his evidence denying that he ever said to Ms B that she should bring the money to him so that he could look after it for her. Ms B’s evidence that it was discussed in a number of consultations prior to its acceptance is preferred. 
[362]	While Ms R dealt with the “mechanics” of the transaction – for example taking the cheque to the bank with Ms B – the Tribunal is satisfied that Dr Kumar instigated with Ms B the notion of him receiving the inheritance money and its receipt into a joint account over which he had joint control with Ms R and to which he had access. 
[363]	It seems Ms B alleges her money was dealt with by Dr Kumar and/or Ms R in unspecified ways.  For example, she said in cross-examination:
So when the money went missing, Dr Kumar turned around and said that [Ms. R] had taken it all. I then went and spoke to [Ms. R]. [Ms R.] had then said no, Dr Kumar had taken at all.”
[364]	There is no direct evidence that Dr Kumar (or Ms R or both of them) expended any of the money as if it was his (or her or their) own – hints or suggestions by Ms B to that effect are no more than that and no finding should be based upon them.  There is otherwise no reliable evidence upon which a finding can be made as to the manner in which Ms B’s money was dealt with, if at all, by Dr Kumar or Ms R or whether any money went “missing” as Ms B has contended.
[365]	The evidence suggests that relatively small sums were paid to Ms B from time to time.  However, the admitted judgment debt evidenced by the 3 March Deed reveals that more than two years after Ms B’s money was deposited, $50,335.69 was owing to her and, despite demand, had not been repaid.  Further, more than two years after that, $21,450 remained owing.  
[366]	What is clear is that Dr Kumar, jointly with Ms R, had the benefit of significant portions of Ms B’s money for at least two years and that it earned interest accruing to their account.  Ms R confirmed in her evidence that the money had been deposited by her in “an interest-bearing account”.
[367]	The Health Ombudsman also alleges that “the full amount of the $78,508.19” has not been repaid to Ms B.  
[368]	However, the Deed is reliable documentary evidence. It represents a compromise of the amount said to be owed to Ms B.  No challenge is made to its legitimacy.  On its face (and in accordance with Ms R’s evidence) both Ms B and Ms R were legally represented. If the allegation is to be maintained, it can only be an allegation that there is default in repayment of the amount of $21,450 in accordance with the compromise and payment plan provided for in the Deed.  
[369]	The Health Ombudsman’s submissions contend: “Neither Dr Kumar or [Ms R] produced any documentary evidence indicating that [$21,450] had been repaid” and contends thereafter that Ms B’s evidence should be preferred.  Respectfully, the Health Ombudsman produced no documentary evidence from their witness suggesting it hadn’t been paid.
[370]	Again contrary to the general finding in respect of her evidence, the Tribunal considers Ms R’s evidence that she had repaid the money was truthful.  She appeared to register genuine surprise at the suggestion that she had not repaid the money.  The payment plan in the Deed sees the money being repaid ten years ago (by 7 September 2013). Finally, Ms B’s Facebook extracts suggest (on 30 January 2019) that $40,000 is owed but otherwise begs for a gift or a loan.  There is no evidence that suggests $40,000 or anything like that sum could still be owing at that time.
[371]	The evidence does not satisfy the Tribunal to the requisite standard that the inheritance money received from Ms B in an amount subsequently compromised has not been repaid.  
The Compensation Payment
[372]	Ms B received $6,000.00 as a compensation payout after hurting her elbow in a fall at work.  Dr Kumar “did the medical side of it for me”.. She says she deposited the cheque in her Bank of Queensland account. 
[373]	The only evidence of this payment and what happened to it is in Ms B’s affidavit.  She deposes that Dr Kumar told her someone needed the money to get to Townsville, so she withdrew the money and, at his request, placed it in an envelope, thereafter meeting Michael, (apparently a receptionist at the practice) and one other person at a shopping centre when the money was transferred.
[374]	No dates are given for the receipt of the payment by Ms B or its payment to others: “I can’t remember when this happened, except that it happened after I had received my compensation payout”.  She says she “expected Dr PK to pay repay the money to me”.  No details of any conversation or agreement to that effect are given.  As to what became of the money, Ms B says, “A few weeks after I gave Dr PK my compensation money, he told me that [Ms R] had spent all the money, everything”. 
[375]	Ms B’s evidence is vague and unparticularised in this respect.  No dates are given; she gives no real details of the conversation with Dr Kumar about the compensation money (for example where and when it occurred); and she can’t remember who the other person was who received the money at a shopping centre.  Perhaps most significantly, Ms B does not give any account of how the money moved from being given to two people at a shopping centre to Ms R spending it all. 
[376]	The Tribunal is unable to conclude on the evidence that the sum of $6,000 was paid to one of Dr Kumar’s employees either through Dr Kumar’s intervention or at all.  The Tribunal is not persuaded of the allegation.
Did Dr Kumar Receive Money and Jewellery From Ms D?
[377]	Ms D told Health Ombudsman investigators on 30 August 2016 that there was a discussion between her and Dr Kumar in April 2015 to the effect that she had $15,000 and some (unspecified) jewellery to which Dr Kumar responded that he would look after both for her.  She says she gave both to him.  
[378]	Dr Kumar rejects Ms D’s claim that money or jewellery was given to him for safe keeping as she suggests.  He contends that any references to money in the evidence - for example, money said to be owing in Ms D’s recorded telephone conversations - are references to a claim by her that she was owed wages from her time as a receptionist.  
[379]	In her 30 August 2016 statement Ms D asserts that as at that date Dr Kumar continued to retain $13,000.  In her evidence in the criminal proceedings Ms D swore that Dr Kumar had “returned 14,500 back” although the date of that occurrence is not there nominated and is difficult to discern either from her evidence or her 2017 statement to the police.  
[380]	Findings consistent with Ms D’s allegations must be based almost entirely on her statements.  Earlier findings as to her credibility and the reliability of her evidence pertain.  The Health Ombudsman submits Ms D’s telephone recordings support her case. Certainly, statements made within them suggest some money is owed but, the genesis of its initial receipt is not referred to and the recordings pre-date Ms D’s evidence in the criminal proceedings where she says all but $500 has been paid to her. 
[381]	There is no satisfactory evidentiary basis upon which a finding can be made as to whether and in what circumstances money was received by Dr Kumar from Ms D.  The conduct the subject of Grounds 10 and 12 is not established. 
[382]	Ground 11 alleges $12,500 was returned to Ms D as an inducement to withdraw her complaints to the Health Ombudsman and the police.  The allegation is also based on a statement from Ms D — in this case her 15 March 2017 police statement. Ms D said, at [173]–[174]:
He said [apparently during a phone call] something like, ‘I’ll do everything.  I’ll give you your money back and withdraw my cases against you’.  He’s done that prior to me withdrawing the case.  Emotionally he was saying things like, ‘I’ve got a rope, I’m going to hang myself if I’m not going to get my registration back’ and things like that, so and that’s when I said, ‘Ok, that’s enough’.
He then told me to come into the police station and withdraw the case.  I did this and that is the day when he gave me the money back.  He told me that if I don’t withdraw my complaints with the Ombudsman and the police, he’ll turn the case against me and he knows ways to do that.  I’d never be able to get out of that.
[383]	In Ms D’s “addendum statement” to the Health Ombudsman on 9 November 2016 she links the repayment of all but $500 of an alleged amount of $13,000 to her email of 23 September 2016 in which she declared previous statements to be untrue.  The repayment is asserted to be a quid pro quo for her withdrawing her Health Ombudsman complaint.
[384]	The Tribunal regards Ms D’s statement as an insufficient to persuade it of a conclusion that money was returned to her “in order to induce [her] to withdraw her complaints about him” to the Health Ombudsman.   The conduct the subject of Ground 11 is not established.
G.	Medical Procedures and Clinical Practice
Dr Kumar’s Affidavit
[385]	Dr Kumar admits to carrying out two procedures for Ms W at his clinic.  Evidence relevant to the instant issues contained in his first affidavit evidence is brief and encapsulates the factual issues to be determined:
54.	In relation to the allegations by [Ms W] came to me for facial work.  There was no mention of any saliva dribble or the like.  If it was mentioned to me, I would have documented that information.
55.	The procedure was a mini face lift, there was no qualification needed for that.  I am trained for the eyelid procedure and I am trained for the thread for the facelift.
56.	I informed [Ms W] of what the procedure would contain, she agreed, and she paid the amount that we asked for.
57.	I have done larger procedures at my practice with no complications to date.  This was not a face lift.  I did not expose the muscles from the skin.
58.	I knew my limitations as a surgeon and no surgery can correct a dribble, unfortunately, as it relates to muscles and nerves. under local anaesthetic I cannot get to those muscles.
59.	I charged [Ms W] for the procedure and her procedure was not complete as I had planned to carry out some thread lifting on her face to correct things further.  I am trained and able to competently perform thread lifts. Exhibited to this affidavit and marked PK-5 is a copy of certificates showing my training for the procedures. 
[A third certificate was produced during Dr Kumar’s oral evidence].
[386]	Dr Kumar deposes in that affidavit to being a “fellow of the Royal Australasian College of Surgeons”. That is untrue.  The Tribunal accepts Dr Kumar’s evidence that this is a mistake and should read Royal Australian College of General Practitioners.  
[387]	The statement that Dr Kumar has had “no complications to date” at [57] above, is also untrue.  Dr Kumar was taken to it in evidence and he confirmed he had “never ever” had complications.   That evidence is also untrue.  Dr Kumar was taken to a District Court judgment in which a patient had obtained a District Court judgment for $230,000 in respect of Dr Kumar’s removal of a basal cell carcinoma.  He said he “overlooked that just now” before seeking to explain it by saying “I didn’t have the money to defend myself”.  
[388]	The Tribunal does not accept a professional negligence judgment of significance was overlooked when swearing his affidavit.  As to not having the money to defend it, the judgment speaks for itself.
Was Dribbling/Drooling the Predominant Presenting Complaint?
[389]	A central factual issue is whether Ms W presented with dribbling (sometimes described in the evidence as “drooling”) as a complaint and sought treatment for the same. 
[390]	The issue is centrally important.  If the presenting complaint was dribbling as Ms W contends, and medical intervention was sought by her to cure or alleviate that dribbling as she also contends, the evidence (including, ironically, Dr Kumar’s evidence) is clearly to the effect that the procedures he performed could not have cured or alleviated that presenting complaint.
[391]	Earlier findings as to the credibility and reliability of Ms W’s evidence pertain.  Her evidence is accepted.  
[392]	Ms W deposes to the catalyst for the two procedures performed by Dr Kumar being her consultation with another doctor in the practice. Dr Kumar came in during that consultation and spoke to the other doctor.  Ms W deposes that the conversation at that time “was about [her] dribbling”.  She says two earlier surgical procedures for a large skin cancer had left her with “dribbling from the left-hand side of my mouth”. Dr K indicated to Ms W that he “could fix it” because he did corrective surgery and that he “could make her beautiful at the same time”.  
[393]	The conversation in the presence of the other doctor (who was not called as a witness) resulted in a consultation with Dr Kumar on 19 August 2015 at which Ms W deposes that Dr Kumar “spoke to me about taking the dribbling away”.  That specific evidence is accepted. At that consultation Dr Kumar also said there “were going to be two operations – the first operation was going to be a ‘tuck’ and the second operation was to be an ‘eye lift’”.  
[394]	Dr Kumar gave evidence that neither the procedures he performed, nor indeed any procedure available at that time, could cure dribbling.  He deposes in his second affidavit, filed during the proceedings, that “currently there is no surgery that can correct a dribble”.  In cross-examination Dr Kumar said a “nerve transplant” could correct a dribble, but that was not a procedure he was qualified for, offered Ms W, or would perform.  He was not aware of any non-invasive treatment to correct a dribble.   
[395]	Dr Kumar’s evidence had two major premises. The first is that dribbling was not a presenting complaint by Ms W. The second is that the procedures he performed were in fact cosmetic procedures directed to correcting wrinkles and not connected with dribbling. 
[396]	In oral evidence, Dr Kumar was adamant that “she didn’t come to me for a dribble”; “I’m saying that I didn’t even attempt to correct the dribble”.  Dr Kumar does not anywhere claim there was any doubt, confusion, or miscommunication about Ms W’s presenting complaint.
[397]	Dr Kumar’s clinical notes record relevantly:
… has a lot of wrinkles photos taken saved discussed re botox, fillers and mini face lift … says she has dribble feeling on her left side, explained that the produre [sic] was cosmetic and should not change any of that.
[398]	In cross-examination, Dr Kumar was asked to explain the entry in his notes referring to “dribble feeling on her left side”.  He said “[t]here was no mention of any saliva dribble or the like” and if it had been mentioned he “would have documented that information”.  He said in evidence:
Okay.  So is your [clinical] note incorrect?---No, the note is true and this is true too.   
Okay.  How can you – just explain to me how you reconcile those two things?---I say exactly what I – what I did.  She did mention something about a dribble feeling and I documented it.  And I stand up to the fact that I could not fix it.   
So how do you reconcile that with what you swear at paragraph 54 that there was no mention of any saliva, dribble or the like?  Or is the position that you can’t reconcile those two positions?--- Maybe my – my usage of the – the two terms is wrong.  Dribbling feeling and saliva dribble:  they’re two different entities.
So now you are seeking to draw a distinction between actual dribbling and a feeling of dribbling, are you?--- It is possible. 
[399]	That evidence, and the clinical note, sit in contrast to the Statement of Agreed Facts filed in the proceedings in which it is admitted that Ms W “experienced dribbling from the left side of her mouth”.
[400]	The Tribunal rejects Dr Kumar’s evidence and finds that dribbling was Ms W’s predominant presenting complaint.
Dr Bezic’s Opinion Evidence
[401]	Dr Bezic is a Fellow of the Royal College of Cosmetic Surgeons.  He gave expert opinion evidence in the Health Ombudsman’s case.  His qualifications, experience and expertise were not questioned.  No independent expert evidence was called in Dr Kumar’s case.
Was Pre-Procedure Advice and Assessment Appropriate and Adequate?
[402]	Grounds 39, 40 and 41 all concern omissions in Dr Kumar’s pre-procedure care of Ms W. In answer to Tribunal Member Professor Baker’s questions, Ms W reiterated that Dr Kumar had not asked her how the drooling had occurred and went on to say that Dr Kumar did not:
(a)	ask about any prior medical issues or obtain a past medical history;
(b)	specifically ask about any swallowing issues, indigestion, reflux or heartburn;
(c)	ask about breathing through her mouth;
(d)	examine her mouth, throat, teeth, gums or nasal airway;
(e)	ask about any physical or psychological problems associated with the drooling; and
(f)	give her any diagnosis or state an opinion as to what had caused the drooling other than to suggest it was from earlier skin cancer surgery.
[403]	Dr Kumar agreed with each of those propositions when they were put to him by Professor Baker (albeit disagreeing with the proposition that his examination prior to a “mini face lift” was inadequate).
[404]	Under cross-examination, Ms W was adamant that Dr Kumar had given her no advice about the risks associated with the procedure and nor had he given her any advice about pain relief.  That evidence is accepted.
[405]	Dr Bezic's report comments that there is no evidence in the notes, or in Ms W's account, that Dr Kumar discussed the nature of the scars, the likely result, any complications, the type of anaesthetic that would be used, or post-operative care and recovery time. Nor does either of those evidentiary sources provide any evidence of any physical examination of any type to assess the patient's suitability for cosmetic surgery:
[Dr Kumar] did not undertake an adequate preoperative consultation and sufficient preoperative examination of the patient.  His approach was not appropriate and effective.  His informed consent procedure was also significantly deficient.
[406]	That opinion accords with the views of the expert medical Members of the Tribunal, both of whom directed questions to Dr Kumar.
[407]	Grounds 39, 40 and 41 are established.
Was Dr Kumar Qualified to Perform the Procedures Undertaken?
[408]	Dr Kumar’s affidavit exhibits two certificates said to signify that he “is trained and able to competently perform thread lifts”.  A third certificate was produced during the hearing.  Dr Kumar said in evidence that these certificates also evidenced his qualification for performing blepharoplasty.  All three certificates emanate from the “South Pacific Cosmetic Academy”.
[409]	Whatever else might be said about the provenance of these qualifications, they cannot serve as qualifications for the procedures the subject of the allegations – all certificates post-date the instant procedures. 
[410]	Dr Kumar did not agree that, absent the qualifications referenced in the certificates, he would not have been qualified to perform the procedures because, he said, “I have had quite a bit of plastic training as well – plastic surgery training”.  He was referring to training undertaken in Fiji as part of his initial medical training: “The initial degree that I had, post which I was a surgical registrar and a plastics registrar in Fiji at the main hospital in Suva”. 
[411]	Dr Bezic says Dr Kumar’s “qualifications for this scope of practice was [sic] also significantly below the standard of his peers”.  That statement is not further explained.  It is not referenced to the qualifications that Dr Kumar’s peers would or should possess that he did not possess.  Nor is that opinion referenced to any specific qualifications that would be needed or expected.  
[412]	Dr Bezic says in his report that “there is no evidence that [Dr Kumar] has undertaken any training in invasive cosmetic procedures … he also has no formal surgical fellowships or evidence of other surgical training outside general practice”.  Dr Bezic does not say that either is a prerequisite to a general practitioner undertaking procedures of the type undertaken by Dr Kumar.  
[413]	Dr Kumar’s assertion that his training in Fiji equipped him with relevant qualifications or expertise emerged, once again, only during his cross-examination.  However, no other evidence before the Tribunal contradicts it.  Dr Bezic was not asked for his opinion as to whether the qualifications obtained by Dr Kumar in Suva as part of his medical training were sufficient qualification to carry out the procedures undertaken.
[414]	Although Dr Bezic says Dr Kumar “has only demonstrated qualifications to perform chemical peels, Botox and dermal fillers, not invasive surgical procedures such as blepharoplasty or facelifts”, that opinion is directly related to one (or more) of the certificates obtained after performance of the procedures.   Again, Dr Bezic’s opinion as to Dr Kumar’s asserted Fijian qualifications was not obtained.  No other evidence put those qualifications in context.
[415]	The evidence as a whole does not reveal what qualifications are said to be required in order for Dr Kumar to carry out the procedures he did.  The allegation contained at Ground 38 relates solely to qualifications.  It does not refer to the standard of performance of the procedure (which is the subject of ground 44).  
[416]	The evidence before the Tribunal does not establish Ground 38.
Were Procedures Performed Below the Standard Expected?
[417]	Dr Kumar defended the quality of his work evidenced in the two procedures.   He said the photographs in evidence provided proof of the efficacy and skill involved in the procedures. He disagreed with Dr Bezic’s opinion to the contrary. 
[418]	Dr Bezic was asked specifically whether Dr Kumar's professional performance in carrying out the procedures was below the standard reasonably expected of a health practitioner by the public.  He did not see Ms W. His opinion was based on clinical records, photographs of Ms W and her account. Cross-examination sought to highlight those limitations.  
[419]	The Tribunal accepts that Dr Bezic not himself seeing Ms W operates as a limitation on his opinion.  The Tribunal does not however accept the limitation impacts upon the weight that should ultimately be attached to Dr Bezic’s opinion (unchallenged by any contrary expert opinion).  Dr Bezic opined: 
The patient presented with significant photo ageing, skin laxity in the mid-face, jawline and neck.
The provider performed a simple crescenteric preauricular skin excision which he termed as a “mini facelift". He also later performed an upper blepharoplasty. These procedures would not have significantly improve the patient's appearance or presenting complaint. The positioning of the scars in terms of the facelift were wholly inadequate as the lower portion of the scars extend down the jaw and are not tucked behind the ear, as you would expect in an expertly conducted facelift.
and:
The provider’s surgical judgement and skill are significantly below the standard of his peers. His choice of placement of scars in the facelift was very poor. His judgement in choosing this type of surgery to deal with the patients presenting complaints was also deficient.
[420]	The Tribunal accepts that opinion and finds accordingly.
Were Clinical Notes and the Post-Procedure Plan and Care Adequate?
[421]	Dr Bezic commented that the clinical notes did not provide evidence of “the stages involved in the procedures and costs” and:
[Dr Kumar’s] documented notes are sparse … There is no evidence in the notes … that he discussed the nature of the scars, likely results, complications, type of anaesthetic,post operative care and recovery time”.
[422]	Dr Kumar ultimately accepted his clinical notes of the 17 September procedure were inadequate.  His claim that his notes for the 9 October procedure were adequate is rejected – the Tribunal is unable to discern any qualitative points of difference between the two.
[423]	Dr Bezic opines that Dr Kumar’s follow up evidenced in two appointments after the procedures was “grossly inadequate”, irrespective of whether, as Ms W alleges, she complained about the outcomes.  There is no evidence of any discharge plan by Dr Kumar.  Dr Bezic opined:
In both surgeries, [Ms W] was allowed to make her own way home.  Though the patient didn’t receive any sedation, the patient had a risk of injury.  She had a risk of bleeding, fainting, medication reactions and acute pain.
Unbelievably, the patient was allowed to drive herself home after the upper blepharoplasty.  In that instance, she presented with a risk of visual field loss from post operative swelling and absolutely should not have been allowed to driver herself home.  All patients undergoing invasive cosmetic procedures, such as these, should be accompanied home with a responsible carer.
[424]	Ms W’s evidence, accepted by the Tribunal, is that after the first procedure she was not provided with any pain relief or follow up care. 
[425]	The Tribunal finds that Dr Kumar’s clinical notes are inadequate.  Additionally, the Tribunal finds that Dr Kumar’s post-procedure discharge plan and follow up was inadequate.

Did Dr Kumar Fail to Engage With Ms W’s Post-Procedure Concerns?
[426]	Ms W’s evidence is that she was unhappy with the outcome of the second procedure.  She says she made an appointment for 20 October for further surgery but, after waiting more than an hour and a half, Dr Kumar said the procedure was cancelled but didn’t give a reason.  Thereafter she made numerous attempts to contact Dr Kumar without success.  The Tribunal accepts this evidence.
[427]	Dr Kumar denied that Ms W expressed any concerns about the procedure and denied that she had made attempts to contact him after it.  His evidence is rejected.  It flies in the face of evidence from Ms W as to her level of distress and displeasure with the outcome of the procedure.  That distress and displeasure manifested itself in Ms W later seeking a consultation with a specialist plastic surgeon, to whom she expressed her distress and displeasure and from whom she sought advice about remedial treatment. 
[428]	The Tribunal finds Dr Kumar did not engage adequately with Ms W’s post-procedure concerns.
Was Dr Kumar’s Clinical Environment Inadequate to Conduct the Procedures?
[429]	In his report, Dr Bezic indicated that procedures of the type performed on Ms W would normally occur in a licenced day hospital or a stand-alone clinic that would have the ability to treat emergencies, administer conscious sedation, have adequate staffing levels, correct instrumentation and monitoring equipment. He opined that Dr Kumar’s facility was ‘substantially below the standard of his peers’.  
[430]	The Health Ombudsman submits that “Dr Kumar provided no evidence … that his practice had the relevant facilities” referred to by Dr Bezic. Respectfully, the Health Ombudsman produced no evidence that it did not either to the Tribunal or to Dr Bezic.  As emerged in Dr Bezic’s cross-examination, he had neither seen the facilities where the procedures were conducted nor was he provided with any photographs or other information relating to the facilities.  The factual foundation for Dr Bezic’s opinion is not at all clear.
[431]	There is an insufficient evidentiary foundation for concluding that the clinical environment in which the procedures were performed was inadequate.
H.	Other Allegations By the Health Ombudsman
[432]	Dr Kumar admits he attended Ms R’s residence in breach of a bail condition attaching to pending criminal charges.  Ground 55 is established on his own admission.
[433]	Grounds 56 to 60 are all allegations of providing false information to the Health Ombudsman.  Each is established by reference to the findings earlier made in respect of the conduct to which they refer. 
[434]	Similarly, Grounds 61 to 64 are framed as separate allegations by the Health Ombudsman resulting from false or misleading information being provided to it by reason of the false documents the subject of earlier findings.  Again, each is established by reference to the findings earlier made in respect of the conduct to which they refer.
Established Conduct - Summary Of Findings
[435]	For the reasons given above, the Tribunal is not satisfied that the conduct the subject of the following grounds has been proved:
Grounds 5 - 8; 10 -11; 15 - 25; 23-24; 26; 29; 30; 33 – 38; 43
[436]	As to the conduct alleged in the balance of the Grounds, the Tribunal is satisfied that the following conduct by Dr Kumar has been proved.
Forgery and False Documentation 
[437]	Dr Kumar engaged in the following conduct involving Ms JW:
(a)	Authored a statutory declaration on behalf of Ms JW knowing it contained at least one significant falsehood;
(b)	Authored a letter to Health Ombudsman investigators that was false in that it attached a statutory declaration declared by Ms JW containing information which he knew to be false;
(c)	Forwarded to investigators a statutory declaration that he knew contained a forged witness attestation and signature; and
(d)	In doing so, Dr Kumar sought to mislead investigators and to curtail or impede investigations into his conduct with respect to Ms JW
[438]	Dr Kumar engaged in the following conduct involving Ms B:
(a)	Knew of, and acquiesced in, a person other than Ms B signing a statutory declaration and letter to investigators that he knew to be false; and
(b)	Knew of, and acquiesced in, the forwarding of a false and improperly signed statutory declaration and letter to investigators for the purpose of curtailing or impeding investigations into conduct concerning Ms B.
[439]	Dr Kumar engaged in the following conduct involving Ms W:
(a)	Forged the signature of Ms W on two consent forms relating to procedures previously performed by him;
(b)	Forged the signature of his practice nurse, Ms KW as witness on those two consent forms;
(c)	Forwarded to investigators through his solicitors two consent forms which he knew were not signed by his patient Ms W or his practice nurse Ms KW but rather contained the forged signatures of both; and
(d)	Forwarded to investigators through his solicitors two false consent forms for the purpose of curtailing or impeding investigations into conduct concerning Ms W.
Sexual Conduct 
[440]	Dr Kumar engaged in the following conduct concerning Ms D:
(a)	Initiated, and maintained for approximately 21 months, a sexual relationship with his patient, Ms D;
(b)	Engaged in a sexual relationship with a patient who had mental health frailties of which he was well aware, having treated her for the same;
(c)	Engaged in sexual intercourse with Ms D at her home and at his home; and accordingly, violated appropriate doctor/patient boundaries. and
(d)	Engaged in a sexual relationship marked by gross disrespect for Ms D as a woman and as a sexual partner and which exhibited a flagrant disregard for her feelings and desires.
[441]	Dr Kumar engaged in the following conduct concerning Ms B:
(a)	Engaged in a sexual relationship with his patient Ms B;
(b)	Engaged in a sexual relationship with a patient who, as he well knew, was vulnerable because of a slight cognitive impairment and who had other psycho-social issues (as referred to in the patient’s clinical notes);
(c)	Engaged in sexual intercourse with Ms B at his clinic, at her home and at his home; and accordingly, violated appropriate doctor/patient boundaries.
[442]	Dr Kumar engaged in the following conduct with his patient Ms JW:
(a)	Provided minor medical treatment or assistance to Ms JW while engaged in a consensual sexual relationship.
[443]	Dr Kumar engaged in the following conduct with Ms V:
(a)	Engaged in uninvited and unwanted sexual touching, namely putting his hand on her thigh, kissing her hand and kissing up and down her arm; and
(b)	Engaged in that behaviour with a young woman not yet an adult.
Assaults, Threats and Derogatory and Abusive Language
[444]	Dr Kumar engaged in the following conduct with Ms D:
(a)	Assaulted Ms D causing her bodily harm;
(b)	Wilfully damaged her vehicle; and
(c)	Engaged in abusive, derogatory and demeaning language and made threats to her including threats to “beat her up” and that he would kill her. 
[445]	Dr Kumar engaged in the following conduct with Ms JW:
(a)	used derogatory and abusive language to her when communicating with her; and
(b)	sent text messages to her stating he was depressed and threatening suicide.
Monetary Inducements
[446]	Dr Kumar engaged in the following conduct with respect to Ms V’s allegations:
(a)	Requested Ms V’s father to not pursue a complaint to the Medical Board in respect of Dr Kumar’s conduct toward Ms V;
(b)	Requested through the agency of others Ms V’s father to not pursue a complaint in respect of Dr Kumar’s conduct toward Ms V;
(c)	Offered Mr V, through the agency of Mr K, $10,000 to not pursue any complaint to the Medical Board about Dr Kumar’s actions to his daughter; and
Financial Transactions with Patients
[447]	Dr Kumar engaged in the following conduct with respect to Ms B
(a)	Instigated with his vulnerable patient Ms B the plan that she should deposit a prospective cash inheritance with him;
(b)	Was a party to the receipt of $78,508.19 into a joint account with Ms R to which he had access; and
(c)	Had the benefit of some or all of that sum for about two years, and (jointly with Ms R) earned interest on the sum deposited.
Medical Procedures and Clinical Practice
[448]	Dr Kumar engaged in the following conduct with respect to Ms W:
(a)	Performed two procedures to his patient Ms W’s face, neither of which would alleviate, or assist in alleviating, Ms W’s presenting complaint;
(b)	Performed those procedures to a standard significantly below the standard of his peers;
(c)	Performed the two procedures without any adequate, pre-procedure assessment of Ms W’s suitability for the procedures;
(d)	Failed to provide Ms W with any pre-procedure information about risk and benefit so as to permit of an informed decision about the procedures;
(e)	Failed to obtain formal written consent for the procedures;
(f)	Failed to maintain adequate clinical notes in respect of the procedure and associated treatment and advice;
(g)	Failed to formulate a discharge plan and provide adequate post-procedure care; and
(h)	Failed to engage post-procedure with Ms W as to her concerns about the outcome of the procedures. 
False or Misleading Conduct Involving the Health Ombudsman
[449]	Dr Kumar engaged in the following conduct:
(a)	provided information to the Health Ombudsman that he knew to be false; and
(b)	provided documents to the Health Ombudsman that he knew to be false or to contain forged signatures.
[450]	Dr Kumar attended the residence of Ms R in breach of a condition of bail pertaining to pending criminal charges involving Ms R as the complainant.

Is Professional Misconduct Established?
[451]	The Health Ombudsman seeks ultimate findings of “professional misconduct” which engage all three sub-paragraphs of the definition of that term in section 5 the National Law:
 “professional misconduct” of a registered health practitioner, includes:
(a)	unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b)	more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and 
(c)	conduct of the practitioner, whether occurring in connection with the practice of the health practitioner’s profession or not, that is inconsistent with the practitioner being a fit and proper person to hold registration in the profession.
[452]	Reliance upon either of sub-paragraphs (a) or (b) of the definition requires proof that proven conduct is “unprofessional conduct”.  That term is also defined as conduct “…of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers”.
[453]	For “professional misconduct” to be established, it must be proved that there is “substantial” departure from the expected standard. That in turn requires proof of a “large or considerable departure”, “more than a mere departure” which “could be the result of the extent and seriousness of the departure … the deliberateness of the conduct, the consequences for the client or other aspects of the conduct”.
[454]	Sub-paragraph (c) of the definition does not require a conclusion that identified and proven conduct is either unprofessional conduct or professional misconduct.  A different question must be answered: is the proven conduct inconsistent with the practitioner being a fit and proper person to hold registration in the profession?
Conduct Other Than Relating to Medical Performance
[455]	Each of the public and a medical practitioner’s professional peers repose trust in the integrity of medical practitioners.   Each of those groups has the reasonable expectation that a medical practitioner will act with honesty and integrity.  
[456]	Further, and more specifically, each of those groups would have the reasonable expectation that no medical practitioner would be other than open, honest and frank with the statutory body who monitors professional standards and whose ultimate responsibility is the protection of the public.
[457]	The Tribunal regards it as beyond argument that the conduct as found with respect to documents falls below the required standard. Dr Kumar’s proven conduct is dishonest and deceptive.  The same is equally true of Dr Kumar offering a financial inducement to Mr V to not make a complaint in respect of Dr Kumar’s behaviour toward his daughter.  Each of those instances of conduct by Dr Kumar is a direct attempt to subvert the very processes designed to monitor and regulate the profession of which he is a member and to whose ethical Codes and Guidelines he axiomatically commits.
[458]	Those conclusions can be reached without specific reference to the evidence constituted by relevant Codes and Guidelines.  However, reference to those Codes and Guidelines provides ample evidence that conduct of the type described is contrary to the most basic tenets of behaviour expected of a medical practitioner.  For example:
Doctors … must be honest, ethical and trustworthy. Patients trust their doctors because they believe that, as well as being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion.
[459]	That Code’s reference to “not taking advantage” of a patient has broad application.  There is a power dynamic inherent in the doctor/patient relationship that makes it particularly vulnerable to exploitation by medical practitioners.  That is particularly so where individual frailties such as mental health issues or issues of intellectual impairment pertain.  
[460]	The sexual conduct found against Dr Kumar involves the exploitation of women by reason of their mental health, their intellectual impairment and age.  There can be no doubt it falls below the relevant standard.  Dr Kumar’s conduct evidences a lack of respect for those women patients with whom he has had a sexual relationship and a disrespect for their feelings and desires.
[461]	The Codes and Guidelines provide evidence that good medical practice - that is, medical practice that should reasonably be expected by the public and a medical practitioner’s peers - involves “not encouraging patients to give, lend or bequeath money … that will benefit [a doctor] directly or indirectly”.  So, too, “avoiding financial involvement such as loans …” with patients.
[462]	The assaults perpetrated by Dr Kumar on Ms D involved injuring a woman using his physical force. Having committed that assault, he emerged from his home brandishing a pool cue and damaged her car with it.  The Tribunal does not regard that as private conduct outside the realms of the statutory definitions of unprofessional conduct. First, convictions for criminal offences can constitute unprofessional conduct; sub-paragraph (c) of the s 5 definition provides that unprofessional conduct can include “the conviction of the practitioner for an offence under another Act, the nature of which may affect the practitioner’s suitability to continue to practise the profession”.  Secondly, the assault was perpetrated on a woman, a patient and a patient with whom he was having a sexual relationship.
[463]	The Tribunal considers the use of foul, demeaning and derogatory language and threatening suicide potentially falls to be considered differently.  Views differ about whether and to what extent language is appropriate or permissible in different situations.  There may be unanimity, or near unanimity, that some at least of the particular language used by Dr Kumar was morally reprehensible and contravened social behaviour that might be expected of a doctor.  
[464]	Yet, the use of the language was, overwhelmingly, within the confines of private conversations in domestic relationships.  Of itself, it is not the subject of sanction under any other legislative provision.  There is no evidence that it was intended to be made public.  The language was not used to patients in a clinical setting.  Ms D was a patient of course but the appalling language used toward her is embraced more broadly within findings as to Dr Kumar’s sexual and broader relationship with her.  The Tribunal is not persuaded that the use of abusive language in the instant circumstances is of itself unprofessional conduct or, thus, professional misconduct.  
[465]	That is not true of threats of suicide in the context in which they occurred.  The Health Ombudsman submits that the sending of the text messages “threatening suicide in this context amounts to acts of domestic violence”.  As referred to early in these reasons, it is not the Tribunal’s task to decide if conduct constitutes – or might constitute - an offence.  The Tribunal’s concern arises because there is here a clear association with those threats being used manipulatively by Dr Kumar in connection with the ongoing investigation by the Health Ombudsman.  That conduct is within the Tribunal’s purview.
[466]	Unsurprisingly given the overriding public interest, the Codes and Guidelines provide specifically that co-operation with investigating bodies is inherent in proper and ethical practice as a medical practitioner. Dr Kumar’s dishonest and deceitful conduct, directed to those engaged in a proper inquiry into his conduct, strikes at the very heart of public confidence in the profession and is rightly condemned by a practitioner’s peers.
Findings
[467]	Given the minor nature of the medical treatment provided, the Health Ombudsman contends that the conduct summarised at [442] of these reasons is unprofessional conduct rather than professional misconduct.  The Tribunal agrees.
[468]	Notwithstanding its moral repugnance, the Tribunal does not consider the conduct referred to at [440](d) should be seen as unprofessional conduct and, thus, neither professional misconduct. Rather that conduct, together with the conduct specified in [444](c) and [445](a), should be seen as better directed to the question of whether Dr Kumar is a fit and proper person to be registered as a medical practitioner.  
[469]	So, too, while the breach of a bail condition should be seen as serious, it is not in the circumstances of this case “professional conduct” as that expression is used within the definition of “unprofessional conduct” in s 5 of the National Law.  Again, however, it is relevant to the question of whether Dr Kumar is a fit and proper person.
[470]	The Health Ombudsman submits that Dr Kumar’s attempts to have Mr V not make a complaint to relevant authorities (above [446]; Grounds 52 – 54) should be seen as pertaining to the question of whether Dr Kumar is a fit an proper person.  The Tribunal considers, however, that each and all are directly connected with Dr Kumar’s practice as a medical practitioner.  Medical practice consistent with the proper expectations of peers and the public includes co-operation with those charged with maintaining proper professional standards. Attempting to impede or subvert investigations falls substantially below those expectations.
[471]	Save for the matters referred to at [467] and [468] above, the Tribunal finds that each and all of the instances of conduct summarised at paragraphs [437] – [447] and [449] of these reasons is conduct of a lesser standard than that which might reasonably be expected of the health practitioner by the public or Dr Kumar’s professional.  Each and all of those instances of conduct constitute unprofessional conduct.
[472]	Further, in each and all instances, the conduct falls substantially below that expected by the public and Dr Kumar’s professional peers.  Each and all of those instances of conduct constitute professional misconduct.
Conduct Relating to Medical Performance
[473]	Each of the Tribunal’s findings at [448] of these reasons relating to Ms W’s care, and the procedures performed upon her, strike at fundamental aspects of procedures that are invasive, painful and have the potential to cause marked aesthetic differences.  The broad reach of the standards of care expected of medical practitioners — and Dr Kumar’s failings — can be seen exemplified in the Code of conduct.
[474]	Separately and together, the findings constitute conduct of a lesser standard than that which might reasonably be expected of Dr Kumar by the public or Dr Kumar’s professional peers.  Each and all of those instances of conduct constitute unprofessional conduct.
[475]	Further, in each and all instances, the conduct falls substantially below that expected by the public and Dr Kumar’s professional peers.  Each and all of those instances of conduct constitute professional misconduct.
Is Dr Kumar a Fit and Proper Person to be registered?
[476]	The proven professional misconduct to which reference has been made, together with other proven conduct forms the foundation for a finding that Dr Kumar is not a fit and proper person to be registered as a medical practitioner.
[477]	Dr Kumar’s proven non-medical conduct involves four different women unknown to each other.  There are troubling similarities in the sexual and other conduct, particularly in so far as it involves the exploitation of vulnerable women.  In addition, his contemptuous language and violent conduct towards his long-term partner and mother of his children, Ms R, fits the same pattern.
[478]	While the use of language may not of itself be unprofessional conduct in this case, it is illustrative of a seriously demeaning and disrespectful attitude toward women with whom Dr Kumar has had a sexual relationship.  The similarities in the conduct described by women unknown to each other is of itself both disturbing and telling.  So, too, is his disregard of a court-imposed condition relating to non-contact with the victim of family violence to whose complaint he pleaded guilty.  
[479]	Attempts by Dr Kumar to subvert the proper process of investigation involves very serious similar conduct, involving false documents and forged signatures and the repetition of lies.  Again, that conduct is repeated in respect of different complaints and different complainants. 
[480]	Dr Kumar’s concocted evidence as to the witnessing of Ms JW’s statutory declaration impugns the integrity of a Justice of the Peace whose evidence, the Tribunal considers, plainly reveals an honest person who takes her responsibilities as such earnestly and responsibly.  
[481]	So, too, Dr Kumar’s attempts to falsely attribute the failure to obtain written consent for Ms W’s procedures to his then practice nurse Ms KW is disreputable and impugns her integrity and professionalism without cause.  
[482]	His evidence to this Tribunal reveals a disregard for the truth and for processes which exist for the benefit of the public and upholding the standards of reputable medical practitioners.
[483]	The Tribunal finds Dr Kumar is not a fit and proper person to be registered as a medical practitioner.
Sanction
[484]	At the conclusion of the lengthy Tribunal hearing, it was agreed that submissions on sanction should await these reasons and the findings contained within them.
[485]	Directions will be made accordingly.
Orders — 8 April 2024
1.	Pursuant to s 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.	As to sanction:
(a)	Oral submissions by the parties or their legal representatives will be heard by the Tribunal at 10.00am on 22 May 2024.
(b)	The parties or their legal representatives shall file by email to Associate.DannJDC@courts.qld.gov.au, and serve by contemporaneous backcopy to the other party and their legal representative, a written outline of submissions and authorities relied upon, according to the following timetable:
(i)	the applicant, no later than 4:00pm on 8 May 2024; and
(ii)	the respondent, no later than 4:00pm on 15 May 2024.

Reasons For Decision — 22 May 2024 (Ex Tempore)
[486]	In the above reasons published on 8 April 2024, findings were made in respect of 64 separate allegations in this referral by the Health Ombudsman.  The orders made that day contemplated future written and oral submissions addressing the question of sanction.  Written submissions were filed in accordance with that order and oral submissions made by counsel appearing for both parties when the sanction proceedings were heard on 22 May 2024.  At that hearing, the Tribunal indicated to the parties that for ease of reference, the earlier reasons published on 8 April 2024 should be consolidated with these reasons pertaining to sanction which are being given orally on 22 May 2024.  
[487]	The effect is that one set of published reasons contain both the numerous findings and the sanctions ultimately imposed.  The consolidation of the reasons will be  made by reference to s 125 of the QCAT Act.  Although only procedural orders were made on the publication of the 8 April reasons, to avoid doubt, an order will be made that the time for the appeal will run from the date of publication of the consolidated reasons.
What issues are to be determined?  
[488]	The written submissions on behalf of Dr Kumar concede that his registration should be cancelled.  
[489]	The issue is whether, as Dr Kumar contends, he should be prohibited from reapplying for registration as a health practitioner for two years, or as the Health Ombudsman contends, he should be prohibited “indefinitely”.  Should that contention be rejected, the Health Ombudsman submits alternatively that Dr Kumar should be reprimanded and prohibited from applying for re-registration for a period of six years.  
[490]	The Health Ombudsman seeks an order for costs in a fixed sum, essentially disbursements, including counsel’s fees and witnesses’ fees.  The amount claimed  represents approximately 80 per cent of the amounts actually spent in respect of those items.  Dr Kumar contends that no order for costs should be made.  
What are the applicable principles?  
[491]	The concession on behalf of Dr Kumar recognises, in effect, the application of the principles governing the imposition of sanction consequent upon the Tribunal’s findings of professional misconduct and unfitness to practice.  Those principles are not in doubt, but these reasons should briefly reflect the Tribunal’s cognisance of them and of decisions in which they can be seen formulated or applied.  
[492]	The purpose of sanctions is protective and not punitive.  Punishment is not the aim of sanctions imposed by the Tribunal, although it may be an effect of them.
[493]	The health and safety of the public is the paramount consideration in imposing sanctions.  Protecting the health and safety of the public includes addressing the risk of the same or similar conduct being perpetrated by the particular practitioner in the future.  A number of factors can be seen as relevant to that consideration.  They include:
(a)	the past referral history and general character of the doctor; 
(b)	whether there is genuine insight into the inappropriateness of the conduct and an appreciation of the importance of relevance ethical standards; 
(c)	whether there is genuine remorse, evidenced, for example, by acceptance of the conduct and cooperation with the inquiry; and 
(d)	personal circumstances including health or psychological issues.
[494]	Sanctions directed to protecting the health and safety of the public have a broader purpose.  The Act’s primary consideration also embraces upholding public confidence in the standards of the profession and maintaining that confidence can include, for example, making it clear that certain conduct is not acceptable.
[495]	Denouncing misconduct:
operates both as a deterrent to the individual concerned, as well as the general body of practitioners.  It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practice.
[496]	The stature and integrity of the profession, built in turn on compliance with, and the enforcing of, the highest ethical and professional standards is integral to maintaining the public’s confidence in the profession.
[497]	As then-Deputy President of this Tribunal, Horneman-Wren SC DCJ said in Medical Board of Australia v Duggirala at [6]:
The ability to practice as a health profession is a privilege which is conferred upon persons qualified to do so but who also exhibit the requisite professional and personal standards which are necessarily demanded of persons who are afforded the privilege of conducting medical practice.  Ultimately, it is the protection of the public as well as the reputation of the profession which is to be achieved through regulation of health practices or health practitioners.
[498]	Within those broad principles, each case falls to be considered by reference to its own facts and circumstances.  Regard can be had to comparable cases with a view to ensuring that the sanction imposed on a particular individual is not out of step with protective sanctions imposed in cases with comparable circumstances, and as an attempt to maintain a measure of consistency in the role of sanctions in maintaining proper professional standards.  
[499]	While some decisions will shortly be referred to, the parties agree that no earlier decision can be seen as directly comparable to the instant case, particularly in light of the number findings made as to Dr Kumar’s conduct and the breadth of the different types of conduct that they embrace.
Is cancellation of Dr Kumar’s registration appropriate? 
[500]	Despite cancellation being conceded, it is for the Tribunal to independently assess whether that sanction is appropriate.  
[501]	It is not in doubt that the effect of cancellation of Dr Kumar’s registration for a specified time frame will necessarily entail him needing to satisfy the board at the expiration of the prohibition period that he is a fit and proper person to again be registered.  By contrast, suspension permits practise to commence immediately upon the end of the suspension period.
[502]	It is submitted on behalf of the Health Ombudsman that:
Suspension may be thought to indicate confidence in the practitioner’s ability to practice once the period of suspension has been served.
[503]	On the other hand, cancellation signals the absence of any such confidence and reflects deeper concerns about the practitioner’s fitness to practice.  Highly relevant to that question, both individually and when taken together, are: 
(a)	the nature of the relevant conduct, as found; 
(b)	the different types of conduct; 
(c)	the findings as to the absence of insight into the inappropriateness of the conduct; and 
(d)	the conduct directly challenging the integrity of the investigative process.  
[504]	The Tribunal considers the concession that Dr Kumar’s registration should be cancelled is, with respect, properly made.
What factors should inform the decision as to the period of prohibition?
The Referral History and General Character
[505]	Dr Kumar has no relevant referral history. The reasons earlier given refer to his conviction of offences pertaining to conduct towards Ms D, which ultimately resulted in no convictions being recorded.  
[506]	A number of matters relevant to Dr Kumar’s general character are referred to in the written submissions on his behalf.  A number of exhibits have been tendered to the Tribunal this morning.  Each and all of those exhibits refer to significant community involvement on the part of Dr Kumar.  It is contended that a, “striking feature” of Dr Kumar’s practice as a medical practitioner is:

The extent to which he has contributed to his local community generally and with particular focus on challenges faced by that community.
[507]	That community involvement has been set out in a number of specific respects in the written submissions on behalf of Dr Kumar at paragraph 14.  Those submissions also refer to character references and a petition and those documents were tendered as exhibits at the hearing on 22 May 2024.  As might be expected, each speak highly of Dr Kumar and his practice as a doctor.  The petition apparently signed by over 280 people pertains to a desire to have him resume practice immediately after his suspension in 2017.  
[508]	It should be noted that the six character references tendered on his behalf are provided from local Members of Parliament, a former mayor of Townsville, and four respected local medical practitioners.  In addition, a recent article published in Brisbane’s Courier Mail refers to Dr Kumar and the findings made as to his conduct by this Tribunal.  A particularly unflattering photograph of Dr Kumar attends that story.  Mr Elmore submits on behalf of Dr Kumar that this article is indicative of the fall in the standing of Dr Kumar that was previously enjoyed by him, and cites it as an example of the sort of publicity that may attend these reasons when they are ultimately published.  It is submitted that Dr Kumar has suffered shame and indignity as a result of that.  
[509]	It also should be noted, however, that neither the character references nor the petition itself make any reference to the nature of the allegations made against Dr Kumar and, more particularly, the findings of this Tribunal in respect of those allegations.  That is also true of the character references tendered on his behalf, none of which make any reference to those matters.  The Tribunal accepts, nevertheless, that Dr Kumar’s community involvement — including, most relevantly, the outreach of his medical practice, particularly to First Nations people — is to erstwhile good character, and speak of an aspect of his character in stark contrast to that illustrated by the findings made against him in these proceedings.  The Tribunal takes account of those matters.
Insight, Remorse and Appreciation of Ethical Standards.  
[510]	Insofar as events in the almost eight years subsequent to Dr Kumar’s suspension are concerned, the Tribunal has seen no evidence that Dr Kumar has any insight at all into the inappropriateness of his conduct the subject of the findings, or an appreciation of the relevant ethical standards, or any contrition or remorse in respect of his conduct.  Indeed, in the Tribunal’s opinion, the opposite is true.  
[511]	The findings in respect of documents pertaining to the investigation and his impugning of the integrity of those who sought to do the right thing speak for themselves.  
[512]	It is particularly significant that more than one instance of that behaviour and the impugning of the integrity of unconnected individuals is involved.  His dishonest attempts to impede or curtail the investigative process are indicative of significant character flaws and fly in the face not only of the behavioural and ethical standards of medical practitioners, but of those reasonably expected of ordinary members of the community.  
[513]	No evidence before the Tribunal seeks to explain Dr Kumar’s conduct by reference to any physic or psychological conditions suffered by him.  
The Seriousness of the Conduct and the Comparative Cases
[514]	The nature and scope of the conduct as found covering, it might be noted, a period of some years speaks for itself as to its seriousness and the degree of departure from the standards reasonably expected of a medical practitioner.
[515]	It is, we think, sufficient to note the following matters in addition to the matters already referred to in the reasons earlier published as to conduct.  
•	Taken together, the conduct cannot be described as a fleeting error of judgment or conduct coinciding with particular identified personal difficulties or issues of physical or mental health.  
•	The boundary violations with women who were patients were repeated and marked with an enduring disrespect for the women concerned who, additionally, can properly be described as vulnerable.  
•	That enduring disrespect is evident in Dr Kumar’s relationships with women the subject of evidence before the Tribunal who are not his patients.
•	Dr Kumar’s lack of candour and cooperation with investigations extended to active and repeated dishonesty of a very serious kind, including involvement in the promulgation of false solemn documents and the giving of false evidence to this Tribunal.  
[516]	The lengthy period of suspension already served caused, it should be said, by a number of factors many of which were entirely outside of Dr Kumar’s control, is a very important consideration.  Given the aim of sanction is protective and punitive, it serves as a lengthy period during which the Act’s protective purposes were met.  Also, however, that lengthy period serves as a context in which Dr Kumar’s insight and contrition can be judged.  Dr Kumar exhibits no evidence at all of either.  
[517]	Dr Kumar’s conduct does not come at the commencement of his career.  In contrast to Dr Kumar’s circumstances, youth and inexperience might, together with other relevant matters, offer hope that maturity will bring with it insight and behavioural change.  Dr Kumar is 58 years of age and an experienced practitioner who exhibits no insight or contrition.  
[518]	Both parties accept, as does the Tribunal, that cancellation of Dr Kumar’s registration will have catastrophic effects for him, including the shame and indignity already referred to submitted by his counsel, and including the inability to practice the profession he has trained for and to earn income accordingly.  Again, it is significant that he has been unable to earn income as a medical practitioner for a period of almost eight years because of his suspension.  These are all very important considerations.  
Comparative cases
[519]	The point is again made that because of the nature and breadth of the allegations and findings in this case, finding decisions comparable to it is difficult.  The Applicant’s Sanction Submissions refer to Medical Board of Queensland v Alroe and Medical Board of Australia v Love.  Those cases are essentially boundary violation cases, and the submission is made that a review of those cases suggests a serious example of the exploitation of a single vulnerable patient for sexual gratification may result in a preclusion period of between four and six years.  
[520]	Those cases form the foundation of the alternative submission by the Health Ombudsman that if the Tribunal is not prepared to make an order prohibiting Dr Kumar from applying for registration indefinitely, a preclusion period “in the range of six years” should be ordered.  
[521]	The Respondent’s Sanction Submissions make reference to Health Ombudsman v Duggirala, and Health Ombudsman v Hoddle.  
[522]	In the former case, the respondent medical practitioner’s registration was cancelled and he was prohibited from applying for registration indefinitely.  A significant feature of that case involved the breach of earlier conditions that had been imposed by a Tribunal and a significant prior disciplinary history.  
[523]	Dr Kumar’s submissions contend that Hoddle would be of assistance.  That case involved serious sexual misconduct for which the respondent was convicted of criminal offences and sentenced to and served a period of imprisonment.  In the Tribunal, he accepted he had been convicted, but continued to deny the substance of the offences.  In that case, the Tribunal imposed a finite period of preclusion and said:
It is apparent from a review of the authorities that orders for lengthy periods of definition suspension have been made in cases involving serious sexual misconduct, leading to criminal convictions on some occasions.
[524]	The submissions record that the Tribunal made an order that the respondent be disqualified for a further period of eight years consequent upon the two years and two months he had been suspended.  That decision is used in the submissions as a basis for Dr Kumar to contend that the finite period of exclusion here should be about two years, taking the total to about 10 years.  
[525]	Reference is also made in those submissions to the case of Health Ombudsman v Arora.  In that case, the practitioner was disqualified from registration for a period of six years following suspension for five years.  Again, the matter involved serious sexual misconduct including digital penetration of patients by a nurse.  Three patients were involved.
[526]	It can be seen by reference to all of those decisions, however, that while they all involve serious conduct, it is serious conduct of a particular type.  Again, the Tribunal considers that, particularly relevant in the instant case, is other conduct including dishonest conduct relating to solemn documents that adds a different and more serious complexion to the examples cited.  The Tribunal agrees with the submission that the particular circumstance of this case do not lend ready comparison with previous decisions of this or other tribunals.  

What is meant by the submission that prohibition should extend indefinitely?  
[527]	Section 107(4) of the HO Act empowers the Tribunal to make orders consequent upon an order cancelling the practitioner’s registration.  Subsection (4) provides:
If QCAT decides to cancel the practitioner’s registration or the practitioner does not hold registration, QCAT may also decide to—
(a)	disqualify the practitioner from applying for registration as a registered health practitioner indefinitely or for a specified period; or
(b)	prohibit the practitioner, either permanently or for a stated period, from—
		(i)	providing any health service or a specified health service; or
		(ii)	using any title or a specified title.
[528]	The order sought by the Health Ombudsman is an order that Dr Kumar be prohibited from re-registering indefinitely.  The submissions make it clear, however, that the intention of that order is for Dr Kumar to be permanently prohibited from applying for registration or re-registration as a medical practitioner.  
[529]	In Duggirala (No. 2), then-Deputy President Allen KC DCJ, made an order prohibiting a practitioner from applying for registration indefinitely.  In the course of those reasons, the his Honour said: 
Bearing in mind all the evidence before the Tribunal and after considering the advice of the assessors, I have concluded that the conduct of the respondent, viewed in the context of his prior disciplinary history, so indelibly marks the respondent’s character as to compel the conclusion that he cannot properly be regarded, now or in the future, as a fit and proper person to hold registration as a medical practitioner.
The respondent’s professional misconduct is of such a nature that it is incompatible with the personal qualities essential to practise a caring profession.  By his repeated engaging in such conduct, the respondent has, effectively, forfeited the privilege of ongoing membership of an honourable profession.  Given the nature of the respondent’s professional misconduct in the context of his prior disciplinary history, affording the respondent the opportunity of re-registration would be likely to erode professional standards and diminish public confidence in the profession.

[530]	The orders sought by the Health Ombudsman can be seen to relevantly follow the wording of s 107(4)(a) of the HO Act.  It should be observed that the separate power given to the Tribunal in s 107(4)(b) refers separately to a specified prohibition being made “permanently”.  
[531]	At least some decisions of the Tribunal, of which Duggirala (No. 2) is one, appear to assume that the word “indefinitely” as used in section 107(4)(a) is synonymous with the word “permanently.”  In my view, it is not. Rather, the natural and ordinary meaning of the word “indefinitely” is intended — that is, as exemplified in the Collins Oxford Dictionary definition, “to continue forever or until someone change it or end it”.
[532]	That meaning accords with the power and responsibilities of the Board set out in the National Law, that is, to make a decision about a particular application for registration based on a number of criteria, including taking into account specified matters concerning unsuitability.  An order for indefinite prohibition contemplates the Board potentially taking account of circumstances that actually exist at an unspecified future time as opposed to any predictive exercise about those circumstances undertaken by the Tribunal today.  
[533]	Those things said, the evidence before the Tribunal and the findings emerging from it lead to the Tribunal’s view that it is difficult to see what future changes might occur that would render Dr Kumar a fit and proper person to ever be a member of the medical profession.  
[534]	It is proposed to order that Dr Kumar be prohibited indefinitely from applying for registration as a medical practitioner, such an order following the wording of the subsection referred to which delineates the Tribunal’s relevant power.  
Costs
[535]	In  Queensland Building and Construction Commission & Benton v Egan (No 2), I referred to differences in opinion among judicial members of the Tribunal as to the interpretation of ss 100 and 102 of the QCAT Act.
[536]	Ultimately, I came to the conclusion that I preferred the view expressed by Judicial Member D J McGill SC in the decision of Marzini v Health Ombudsman (No 4).  That decision in turn referred to a number of earlier decisions, including a decision by reference to legislation different to the instant context, referred to by Keane JA (as his Honour then was) in the decision in Tamawood Ltd v Paans.
[537]	In Health Ombudsman v Antley, Judicial Member the Hon J B Thomas AM KC set out a number of considerations relevant to the ordered costs specific to disciplinary proceedings.  In Health Ombudsman v Fletcher (No 2), Judicial Member McGill SC expressed agreement with what was said there.  I respectfully agree with what was said by both of those judicial members.  
[538]	In essence, as expressed by Judicial Member McGill SC, the default position in s 100 of no order for costs “should not be too readily departed from and will be the usual order”.  However, departure from that position is justified when, as section 102 provides, the “interests of justice” require it.  
[539]	Judicial Member Thomas AM KC refers at length to the “crippling burden” a costs order may create for a litigant in circumstances where the sanction itself brings with it financial ramifications.  The difference between disciplinary proceedings at the suit of a public organisation and commercial matters is also referred to.  The Judicial Member also said this:
Factors favouring a costs order may well exist when a respondent protracts litigation by mounting an unmeritorious defence or by needlessly complicating the litigation, but the present case is not of that kind. 
There will also be cases where it will be desirable to place some limitation or cap upon an award of costs, or to expressly limit costs to a particular aspect or issue in the litigation.  QCAT’s discretion to award costs is a wide one, and the QCAT Act encourages the Tribunal to fix the costs itself.
[540]	Again, I respectfully agree.  The circumstances in the instant case point to justice requiring an order for costs.  Here:
(a)	the dishonest obfuscation of the investigative process by Dr Kumar is an important consideration;
(b)	details of Dr Kumar’s response were not discursively set out in affidavits filed by him but emerged only during the course of a lengthy hearing under cross-examination;
(c)	witnesses, including an expert witness, were effectively required to be called by the Health Ombudsman to prove the falsity of Dr Kumar’s assertions.  Those assertions related to important matters involving dishonest solemn documents; and
(d)	Dr Kumar’s witness, Ms R, failed to appear to continue her evidence, necessitating the issue and service of a notice to attend.  
[541]	This is a case where it is desirable in the interest of justice that an award of costs be made.  
[542]	In making an award of costs, it is also important to take into consideration that the Health Ombudsman framed its case in such a way that 64 separate allegations were mounted and 29 of those allegations failed.  Additionally, this case was prepared, as it were, in-house by the Health Ombudsman with relevant referrals made to counsel at the private bar.  The submissions of the Health Ombudsman reflect these matters by seeking an order for costs that is fixed in a sum that effectively refers only to disbursements.  
[543]	Counsel for the Health Ombudsman indicates that even within that restriction, disbursements to a counsel who was initially briefed but unable to continue in the matter are not included, and as ultimately proposed, the amount sought represents approximately 80 per cent of the actual disbursements incurred by the Health Ombudsman.  It seems to the Tribunal that this is a significant consideration.  
[544]	However an exhibit tendered this morning on behalf of Dr Kumar indicates that he is currently in receipt of a Commonwealth benefit and reference has already been made to the fact that there has been a period of almost eight years during which he has been unable to earn an income as a medical practitioner.  Furthermore, the orders that will be made by the Tribunal today will preclude him from earning income as a medical practitioner into the indefinite future.  
[545]	Taking all of those matters into account, the Tribunal accepts the alternative submission made on behalf of the Health Ombudsman that in the event that the Tribunal was not persuaded to order fixed costs in the amount initially sought, then an amount equivalent to $60,000.00 or approximately 75 per cent of those disbursements should be ordered, and an order will be made to that effect. 
[546]	An order will be made that the non-publication order made by Deputy President, Dann DCJ on 5 September 2022 be varied relevantly.
Orders — 22 May 2024
1.	Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of:
(a)	the contents of a document or thing filed in or produced to the Tribunal;
(b)	evidence given before the Tribunal; and
(c)	any order made or reasons given by the Tribunal;
is prohibited to the extent that it could identify or lead to the identification of any patient of the respondent or any family member of those patients, or any family member of the respondent, save as is necessary for the parties to engage in and progress these proceedings, or any appeal or review arising from these proceedings, and for the Office of the Health Ombudsman to provide information to the Australian Health Practitioner Regulation Agency in the exercise of the Health Ombudsman’s functions under the Health Ombudsman Act 2013 (Qld).
2.	Any material affected by the non-publication order shall not be copied or inspected without an order of the Tribunal, except by:
(a)	a judicial member;
(b)	a tribunal member;
(c)	an associate appointed under the:
(i)	Supreme Court Act 1991 (Qld);
(ii)	District Court Act 1967 (Qld);
(iii)	Land Court Act 2000 (Qld); or
(iv)	Queensland Civil and Administrative Tribunal Act 2009 (Qld);
(d)	any assessor appointed to assist the Tribunal;
(e)	the staff of the Tribunal registry;
(f)	any judicial officer, court staff or associate dealing with any appeal or review arising from these proceedings; or
(g)	the parties to this proceeding.
3.	Pursuant to s 125(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the reasons for decision in respect of sanction delivered ex tempore on 22 May 2024 be consolidated with the reasons for decision as to conduct delivered on 8 April 2024 and thereafter be published in consolidated form.
4.	Pursuant to ss 151(2)(b) and (3)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the relevant day from which the time limit for the filing of an application for leave to appeal or an appeal against this decision is the date of the publication of the consolidated reasons.
5.	Pursuant to s 107(3)(e) of the Health Ombudsman Act 2013 (Qld), the respondent’s registration is cancelled.
6.	Pursuant to s 104(a) of the Health Ombudsman Act 2013 (Qld), the respondent is disqualified from applying for registration as a registered health practitioner indefinitely.
7.	Pursuant to ss 102(1) and 107(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the respondent shall pay the applicant’s costs of the proceedings, fixed in the amount of $60,000.00.

DIRECTOR OF PROCEEDINGS ON BEHALF OF THE HEALTH OMBUDSMAN

Applicant
AND

PRAVEEN KUMAR
Respondent

Schedule To The Written Reasons For Decision Of The Tribunal

Allegations of Forgery and False Documents
Complainant	Grounds	
Ms JW	Ground 6
Dr Kumar forged the signature of Ms A as purported witness of the statutory declaration made by Ms JW dated 2 May 2013
	
Ms B	Ground 36
Dr Kumar forged Ms B’s signature on a letter dated 8 July 2011, which letter falsely stated that the allegations she had made against Dr Kumar were false.
	
	Ground 37
Dr Kumar forged Ms B’s signature on a statutory declaration dated 8 July 2011, which statutory declaration falsely stated that Dr Kumar did not take any money from Ms B and Dr Kumar never made any sexual advances towards Ms B.
	
Ms W	Ground 49
In or about May 2016, Dr Kumar forged [his patient] Ms TW’s signature and [his practice nurse] Ms KW’s signature on a consent form purportedly dated 17 September 2015, which consent form falsely represented that Ms TW had provided written consent to the procedure “Mini Face Lift” and that such written consent had been witnessed by Ms KW.
	
	Ground 50
In or about May 2016, Dr Kumar forged [his patient] Ms TW’s signature and [his practice nurse] Ms KW’s on a consent form purportedly dated 9 October 2015, which consent falsely represented that Ms TW had provided written consent to the procedure “Eye Lift” ant that such written consent had been witnessed by Ms KW.	

Allegations of Rape and Sexual Conduct

Complainant	Grounds	
Ms D	Ground 8
On or about 8 September 2014, Dr Kumar used the confidential information on Ms D’s medical records to obtain her address and attend there uninvited in order to engage in sexual intercourse with her.
	
	Ground 9
Dr Kumar engaged in a sexual relationship with Ms D, a person whom he had treated as a patient, from in or about 8 September 2014 until in or about June 2016.
	
	Ground 17
On or about 11 June 2016, Dr Kumar raped Ms D by penetrating her vagina with an eggplant without her consent
	
	Ground 18
On or about 11 June 2016, Dr Kumar raped Ms D by penetrating her vagina with a bitter melon without her consent.
	
	Ground 19
On or about 11 June 2016, Dr Kumar raped Ms D by penetrating her vagina with his penis without her consent.
	
	Ground 20
On a date unknown between 1 August 2016 and 16 August 2016, Dr Kumar raped Ms D by penetrating her mouth with his penis without her consent.
	
	Ground 21
On a date unknown between 1 August 2016 and 16 August 2016, Dr Kumar raped Ms D by penetrating her vagina with his penis without her consent.
	
	Ground 22
On or about 17 August 2016, Dr Kumar raped Ms D by engaging in anal intercourse with her without her consent.
	
	Ground 25
On or about 4 March 2017, Dr Kumar raped Ms D by penetrating her vagina with his penis without her consent.
	
Ms B	Ground 31
Dr Kumar engaged in a sexual relationship with Ms B, a person whom he had treated as a patient, from in or about 2006 to in or about 2010. 
	
Ms JW	Ground 1
Dr Kumar engaged in a sexual relationship with Ms JW, a person whom he had treated as a patient, from in or about January 2010 until late January 2013.
	
	Ground 2
Dr Kumar provided medical treatment to Ms JW, a person with whom he was in a close personal relationship, on dates unknown.

(Said to constitute unprofessional conduct and not professional misconduct)
	
Ms V	Ground 51
On or about 5 August 2013, Dr Kumar met with Ms V, a patient, in his car at Bunnings car park for the purported purposed of discussing Ms V’s employment at his practice and kissed her on the arm or hand several times. 

Allegations of Coercion and Coercive Behaviour

Complainant	Grounds	
Ms B	Ground 30
Dr Kumar coerced Ms B into engaging in a sexual relationship with him.
	
Ms JW	Ground 5
Dr Kumar coerced Ms JW into signing a statutory declaration dated 2 May 2013, which statutory declaration contained a statement Dr Kumar knew to be false namely, “I have never received text messages from Dr Praveen Kumar threatening to commit suicide”
 	
	Ground 7
Dr Kumar coerced Ms JW into removing a Temporary Protection Order (TPO) which she had obtained against Dr Kumar, and which was in force (through a series of TPOs) until 20 Jully 2012.
	
Ms D	Ground 15
Dr Kumar coerced Ms D into withdrawing her complaints to te Office of the Health Ombudsman and to the police.
	
	Ground 16
Dr Kumar attempted to coerce Ms D into withdrawing her complaints to the Office of the Health Ombudsman and to the police.

Assaults, Threats and Derogatory and Abusive Language

Complainant	Grounds	
Ms D	Ground 23
On or about 19 August 2016, Dr Kumar assaulted Ms D by striking her four times around the head and neck.
	
	Ground 26
On or about 5 March 2017, Dr K threatened Ms D by holding a knife in front of her face and saying to her “Fuck off from here otherwise I will stab you”.
	
	Ground 27
On or about 5 March 2017, Dr Kumar assaulted Ms D, occasioning her bodily harm, by pushing her into a pool table, causing her to hit her head on the corner of the pool table (for which assault Dr Kumar was convicted on his own plea of guilty on 2 September 2020 in the Magistrates Court at Townsville).
 	
	Ground 28
On or about 5 March 2017, Dr Kumar did wilful damage by using a pool cue to smash the front windscreen and left hand passenger window of Ms D’s vehicle (for which wilful damage Dr Kumar was convicted on his own plea of guilty on 2 September 2020 in the Magistrates Court at Townsville).
	
	Ground 29
On or about 5 March 2017, Dr Kumar engaged in threatening and violent conduct towards Ms D by yelling at her and threatening to strike her; swearing at Ms D and calling her a “whore”, “a fucking prostitute”, and a “cunt”; pushing Ms D in the face; holding a knife toto Ms D’s face; striking Ms D with a leather belt; threatened to strike Ms D with a pool cue; and/or grabbing Ms D around the neck with force and hitting her head repeatedly on the door grille.
	
	Ground 13
Dr Kumar used derogatory and abusive language towards Ms D when communicating with her in person, by telephone and in text messages.
	
Ms B	Ground 34
Dr Kumar used derogatory and abusive language towards Ms B when she asked him to return the balance of the $78,508.19 held in trust for her. 
	
Ms JW	Ground 3
Dr Kumar used derogatory and abusive language towards Ms JW when communicating with her in person, by telephone and in text messages.
	
	Ground 4
Dr Kumar sent text messages to Ms JW stating that he was depressed and threatening suicide.

Allegations of Monetary Inducements

Complainant	Grounds	
Ms D	Ground 24
On or about 17 October 2016, Dr Kumar offered to pay Ms D the sum of $10,000 if she would make a false complaint to the Health Ombudsman against Dr DS alleging that Dr DS had had a sexual relationship with her.
	
Ms V	Ground 52

On or about 6 or 7 August 2013, Dr Kumar spoke by telephone to Ms V’s father RV and requested that he not report the incident with Ms V [see Ground 51] to the Medical Board.
	
	Ground 53
On or about 6 or 7 August 2013, Dr Kumar caused two individuals to speak by telephone to Mr V and request that he not report the incident with Ms V to the Medical Board
	
	Ground 54
On or about 6 or 7 August 2013, Dr Kumar caused to be made an offer, through a mutual friend [K], to pay Mr V $10,000 to drop any complaint about the incident with Ms V. [the subject of Ground 51]

Financial Transactions with Patients

Complainant	Grounds	
Ms B	Ground 32
On or about 15 July 2009, Dr Kumar received (into an account held jointly with his de facto partner) from Ms B, a person whom he had treated as a patient, the sum of $78,508.19 to be held on trust for her.
	
	Ground 33
Dr Kumar caused Ms B, a person whom he had treated as a patient, to pay the sum of $6,000 to one of his employees, Michael H, after having led Ms B to believe that the money would be repaid to her.
	
	Ground 35
Dr Kumar failed (sic, to) return, or cause to be returned, to Ms B, the full amount of the $78,508.19 which he had received from her.
 	
Ms D	Ground 10
In or about April 2015, Dr Kumar received from Ms D, a person he had treated as a patient, the sum of $15,000 and jewellery to be held on trust for Ms D and failed to return the money and jewellery when requested to do so.
	
	Ground 11
In or about September 2016, Dr Kumar returned $12,500 of the $15,000 in order to induce Ms D to withdraw her complaints about him to the Office of the Health Ombudsman and the Police 
	
	Ground 12

Dr Kumar did not return $500 of the $15,000 or the jewellery to Ms D

Allegations Concerning Medical Procedures and Clinical Practice

Complainant	Grounds	
Ms W	Ground 38
Dr Kumar performed surgical procedures on Ms W on 17 September 2015 (a ‘mini face lift’ / simple crescenteric preauricular skin excision) and 9 October 2015 (a bilateral upper blepharoplasty) which he was not qualified, or adequately qualified, to perform 
	
	Ground 39

Dr Kumar failed to perform any or any adequate preoperative examination or assessment with Ms W. 
	
	Ground 40

Dr Kumar failed to perform any or any adequate assessment of whether Ms W was a suitable candidate for cosmetic or other surgery to the face
 	
	Ground 41
Dr Kumar failed to provide Ms W with any or any adequate information about the surgical procedures, their risks and benefits so as to enable her to make an informed decision about whether to undergo the surgical procedures.
	
	Ground 42
Dr Kumar failed to obtain Ms W’s formal written consent for the surgical procedures. 
	
	Ground 43
Dr Kumar performed the surgical procedures at the clinic which was an inadequate clinical environment. 
	
	Ground 44
Dr Kumar’s performance of the surgical procedures was below the standard that was reasonably to be expected in that: the surgical procedures were not appropriate to treat the clinical condition for which Ms W sought advice and treatment; the choice of placement for incisions was poor; the surgical procedures did not resolve Ms W’s dribbling; and the surgical procedures resulted in excessive scarring and facial asymmetry. 
	
	Ground 45
Dr Kumar failed to formulate and implement any or any adequate discharge plan for Ms W.
	
	Ground 46
Dr Kumar failed to provide adequate post-operative follow-up care to Ms W. 
	
	Ground 47
Dr Kumar failed to maintain adequate clinical records of his consultations with Ms W and of the surgical procedures he performed on 17 September 2015 and on 9 October 2015. 
	
	Ground 48
Dr Kumar failed to respond to or engage with Ms W following the surgical procedures when she attempted to express her concerns about the outcomes of the surgical procedures. 

Allegations Raised by the Health Ombudsman

Complainant	Grounds	
	Ground 55
On or about 14 November 2015, Dr Kumar attended at the residence of Ms [R], and sent a text message to [Ms R], in breach of a bail condition that he not have contact with [Ms R].
	
	Ground 56
On or about 10 August 2020, Dr Kumar sent a letter to AHPRA which was false in the respects that it stated he had refused to keep money for Ms B (where, in fact, he had not so refused) and he had not had a sexual relationship with Ms Barr (where, in fact, he had) 
	
	Ground 57
On or about 3 September 2012 sent an email to an officer of AHPRA denying that he had sent text messages to Ms JW which included threats of suicide or statements that he was depressed, which email was false because Dr Kumar had sent text messages to Ms JW which included threats of suicide. 
	
	Ground 58
On or about 1 September 2016, Dr Kumar made a false statement to investigating officers of the Office of the Health Ombudsman, namely that he had commenced a sexual relationship with Ms JW vprior to treating her as a patient 
	
	Ground 59
On or about 1 September 2016, Dr Kumar made a false statement to investigating officers of the Office of the Health Ombudsman, namely that Ms JW only became a patient after she became pregnant. 
	
	Ground 60
On or about 1 September 2016, Dr Kumar made a false statement to investigating officers of the Office of the Health Ombudsman, namely that he had not had a sexual relationship with Ms D.
	
	Ground 61

On or about 10 May 2013, Dr Kumar provided to an officer of AHPRA the statutory declaration made by Ms JW which statutory declaration contained a statement Dr Kumar knew to be false, namely, “I have never received text messages from Dr Praveen Kumar threatening to commit suicide” and which Dr Kumar knew not to have been witnessed by Ms KA.
	
	Ground 62

On or about 8 July 2011, Dr Kumar sent (or caused to be sent) a letter dated 8 July 2011 to AHPRA on which letter Dr Kumar had forged Ms B’s signature and which falsely stated that the allegations she had made against Dr Kumar were false.
	
	Ground 63

On or about 8 July 2011, Dr Kumar sent (or caused to be sent) a statutory declaration dated 8 July 2011 to AHPRA on which statutory declarartion Dr Kumar had forged Ms B’s signature and which falsely stated that Dr Kumar did not take any money from Ms B and Dr Kumar never made any sexual advances towards Ms B.
	
	Ground 64

On or about 2 June 2016, Dr Kumar caused his then solicitors (White & Mason Lawyers) to provide to an officer of AHPRA consent forms which falsely represented that Ms TW had provided written consent to procedures referred to therein and that such written consent had been witnessed by Ms KW.