CITATION:	Medical Board of Australia v Pearse [2015] QCAT 442
	
PARTIES:	Medical Board of Australia
(Applicant)	
	v	
	Dr Glen Nicholas Pearse
(Respondent)	

APPLICATION NUMBER:	OCR210-13	

MATTER TYPE:	Occupational regulation matters	

HEARING DATE:	29 January 2014 & 14 March 2014	

HEARD AT:	Brisbane	

DECISION OF:	Judge Alexander Horneman-Wren SC, Deputy President
Assisted by:
Dr Stephen Pozzi
Dr Harprit Moudghil
Mr Paul Murdoch	

DELIVERED ON:	4 November 2015	

DELIVERED AT:	Brisbane	

ORDERS MADE:	1.	The referral is dismissed.
2.	The parties are to make any submission they wish to make on costs in writing within 14 days. 	

CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH PRACTITIONERS – DISCIPLIANRY PROCEEDINGS – PROFESSIONAL MISCONDUCT AND UNPROFESSIONAL CONDUCT – whether registrant had inappropriately dealt with a female patient during an examination – where allegation did not meet the standard of proof required to satisfy a finding of professional misconduct –where no professional misconduct found 	

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Ms K McMillan QC instructed by Rodgers Barnes & Green Lawyers	

RESPONDENT:	Ms K Mellifont QC instructed by Avant Law	

REASONS FOR DECISION 
[1]	Dr Glen Pearse is a registered medical practitioner in private general practice.  The Medical Board of Australia has referred disciplinary proceedings against him to the Tribunal pursuant to s 193 of the Health Practitioner Regulation National Law.  The Board alleges that Dr Pearse has engaged in conduct that constitutes professional misconduct.
[2]	Dr Pearse’s alleged misconduct is said to have occurred during a consultation with a female patient on 16 April 2013.  It is alleged that Dr Pearse attempted to kiss the nipple of the patient’s exposed left breast, and that he, while examining her groin at a time at which her genitals and breasts were exposed, said to the patient words to the effect of “I could do this all day”.
[3]	Dr Pearse denies the alleged misconduct.
The patient
[4]	At the time of the alleged events, the patient was a married woman of 48 years of age.  She was a long standing patient of Dr Pearse having consulted with him over a period of about 10 years.  Dr Pearse was also the general practitioner for the patient’s entire immediate family, including her husband and son, both of whom gave evidence in the proceedings.
[5]	Over the years Dr Pearse had performed numerous intimate physical examinations of the patient’s breasts and genitals.
[6]	She was, at the relevant time, also receiving treatment from a psychiatrist, Dr Yasin, to whom Dr Pearse had referred her in late February 2013 with symptoms suggestive of a diagnosis of bipolar affective disorder illness type 2.  She had a six year history of frequent fluctuation between depressive symptoms and elevated mood suggestive of hypermania.
The patient’s allegations
[7]	In an affidavit sworn on 12 August 2013, the patient gives the following account of the consultation with Dr Pearse on 16 April 2013:
“I’ve been attending Dr Pearse for an annual general check-up just after Easter for a number of years.  
On 16 April 2013, I attended a consultation with Dr Pearse at the One Life Medical Centre in Alexandra Hills at midday.  When I sat down in Dr Pearse’s consultation room, I said hello and told him that I had made an appointment so I could undergo a general check-up.  I also asked Dr Pearse if he could conduct an examination of my groin to check for a lump I had felt there, a pap smear and an examination of my breasts for any lumps.
Dr Pearse first performed the general check up by taking my blood pressure, pulse, listening to my heart and measuring my height and weight.  He then said he would examine my groin.
To prepare for the examination of my groin, I stood up from the chair I was sitting on and pulled my denim shorts and my underpants down to about my knees.  As I knew Dr Pearse was going to examine my breasts, I also took my singlet top off and my bra and placed them on the floor next to me.  I had no concern with taking my clothes off in front of Dr Pearse as he had been my doctor for about 10 years.
I felt very comfortable in front of him even when naked.  I trusted him.
Dr Pearse remained seated in his chair to conduct the examination of my groin, while I remained standing.  He commenced the examination on the left hand side of my groin, which was where I had concerns about a lump.  He then examined the right side of my groin which he said was to conduct a comparison.
At the time Dr Pearse was examining my groin – I cannot recall whether it was the left or right side – Dr Pearse said words to the effect of “I could do this all day”.  I said nothing to Dr Pearse at this time.  I was shocked.
When Dr Pearse had finished the examination of my groin, he quickly pulled my shorts and underwear down from my knees to my ankles.  Dr Pearse did not say anything before he did this.  He did it with such speed that I thought he must have been in a hurry.
Just after Dr Pearse pulled my pants and underpants from my knees down to my ankles, he moved his head toward my left nipple.  Dr Pearse’s lips appeared to pucker as his head moved towards my left nipple.  He did not make contact with my left nipple, but I would estimate that his lips came within 1cm to 1 inch of my nipple.  Dr Pearse’s lips moved in a kissing action, although I did not hear a sound one would commonly associate with kissing.  As Dr Pearse appeared to attempt to kiss my left nipple, I was shocked.  I did not take a step backwards, but pulled my body backwards from Dr Pearse.  I did not see any reaction from Dr Pearse.  Neither of us said anything.
I was hesitant to go on with the consultation, but I removed my shorts and underwear from around my ankles and moved over to the bed to undergo a pap smear.  I felt I needed to have the pap smear performed because I had not had one done in about 2 years.  I just thought I would get it over with.  I was shaken and did not have time to think.
Dr Pearse performed a pap smear as I laid on the bed in the consultation room.  I remember Dr Pearse told me to relax.  I thought to myself “it’s a bit damn hard” as I was very tense after what had happened.
During the pap smear, I made up my mind not to have my breasts examined.  When Dr Pearse had finished the pap smear I said: “Don’t worry about my breasts.”
Dr Pearse did not respond.
I got off the bed very quickly and got dressed.  I then sat down again to find out when I should return to see Dr Pearse to receive my results from the pap smear.  Dr Pearse wrote out a referral for me to undergo a blood test at the clinic next door to Dr Pearse’s surgery which he handed to me.  That is when the consultation finished.
When the consultation had concluded, Dr Pearse stood up from his chair and walked to the door.  At about that time, Dr Pearse said words to the effect of “I’m sorry.  It will not happen again, but I couldn’t resist”.  He then opened the door.  I think I muttered something like “ok” and walked out the door.
Dr Pearse followed me out to the reception and said goodbye.  I paid for the consultation at the reception and left feeling violated and upset.  I rang my husband shortly after and told him what happened during the consultation with Dr Pearse.”   
[8]	The patient deposes to returning to see Dr Pearse on 22 April 2013.  She was contacted on that day by the surgery and told the results of her blood test were available.  Her son was on his way to an appointment with Dr Pearse at that time and she arranged for herself to see Dr Pearse immediately following her son’s appointment.  She says that she wanted her son to accompany her to the appointment given what had occurred on the last occasion.  She says that she had told her son what had happened on that earlier occasion on the evening of 16 April 2013.
[9]	She says that her son accompanied her to her appointment and that Dr Pearse agreed to this.  When discussing the results of her blood tests and pap smear she says that she was so uncomfortable that she could not look Dr Pearse in the eye.
[10]	She says that Dr Pearse then asked her son if he would mind leaving the room so that he could speak to the patient in private.  The patient indicated to her son that this was ‘okay’ and the son then left the room.  The patient says in her affidavit that she didn’t say anything when Dr Pearse asked to be alone with her because she suspected he wanted to discuss what had occurred at the previous consultation.
[11]	She says that when alone with Dr Pearse he apologised to her.  She then told Dr Pearse that she would not be returning and would be getting another doctor.  She said that Dr Pearse said that he had not been himself, and disclosed personal medical matters relating to some relatives in explanation of his conduct and state of mind.  She says that Dr Pearse told her he had spoken to a colleague about what had happened.  She says he asked her to return to the practice promising that it would not happen again.
[12]	When cross examined, the patient agreed that until that consultation on 16 April 2013 Dr Pearse had always been very supportive of, and extremely respectful to, her.  The patient’s husband also agreed that he had found Dr Pearse to be a very caring doctor who was very respectful of him.
Dr Pearse’s Version
[13]	In denying these allegations Dr Pearse says that at the consultation on 16 April 2013 the patient asked for a general check-up including a pap smear and a blood test.  The doctor’s clinical notes for that date record that the patient presented with no present concerns and requesting a general check-up and a blood test.  They record the results of a general medical examination.  They also record the results of a gynaecological examination.  It is apparent that the vulva, vagina, cervix and uterus were examined.  Earlier clinical notes for the patient over a number of years indicate that the patient had previously experienced gynaecological and genital symptoms and conditions. In light of the patient’s history, it seems unsurprising that a request for a general check-up of this patient would include a gynaecological examination. The notes record that a pap smear was taken and sent for pathology reporting.
[14]	Dr Pearse says that at no time during the consultation did he examine a lump in the groin of the patient.  His notes contain no record of any such examination.  There are notes of an examination on an earlier occasion which do record an examination of the groin for lumps.  The examination on that occasion was performed by another doctor, a female, within the practice.
[15]	He says that at no time during the consultation did he examine the patient when she was standing up with her shorts and underwear pulled down to her knees and her top removed.  He says that he has never examined any patient in that fashion.  He describes the examination of a lump in the groin as being performed, when required, with a patient lying down with only the clothing on the lower body removed.
[16]	He denies making a comment that he could keep doing the examination all day. When giving evidence before the Tribunal he said that he would sometimes say words to the effect of “well we could keep doing this all day”, in reference to general conversation with the patient at the commencement of a consultation.   
[17]	He denies attempting to kiss the patient’s nipple.  He states that at no point did the patient appear upset or concerned by the examination.
[18]	As to the return visit on 22 April 2013 Dr Pearse says that the patient’s son was present as he had an appointment on that day.  The blood test results were discussed.  He says that he requested to speak to the patient alone because a member of the surgery staff had informed him beforehand that the patient had inquired about having her records transferred to another practice and that she had seemed upset.  He asked the patient if anything was the matter and indicated that if the practice staff or he had done anything to offend her they were sorry.  He says that the patient said that she preferred not to talk about it and he respected her wishes.
Consideration
[19]	In order to find that the referred grounds of misconduct are established, the evidence of the patient as to what occurred in the consultation of 16 April 2013 must be accepted.  Clearly, if that evidence were to be accepted, professional misconduct would be established.  
[20]	I am not, however, satisfied that those events as alleged by the patient occurred.
[21]	The onus of proof in disciplinary proceedings is upon the Board.  The standard of proof is the civil standard; but applying the sliding scale of satisfaction explained in Briginshaw v Briginshaw, where Dixon J observed:
“Reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequences of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.  In such matters, “reasonable satisfaction” should not be produced by in exact proofs, indefinite testimony, or indirect inferences.”
[22]	The inherent unlikelihood of the events having occurred as alleged commences with the patient, on the evidence in her affidavit, spontaneously and without prompting from Dr Pearse, standing in the middle of the consulting room near where she had been seated and where Dr Pearse remained seated at his desk, and pulling her shorts and underpants down to her knees.  The inherent unlikelihood continues in her, again spontaneously and without prompting from Dr Pearse, removing her top and bra, dropping them beside her on the floor of the consulting room, in anticipation of a breast examination.
[23]	This course of events is inherently unlikely because they are so inconsistent, in a number of respects, with the way in which such examinations have been performed by Dr Pearse on the patient routinely over a number of years.  The patient readily conceded that on all previous occasions Dr Pearse had been respectful.  Whenever he examined her breasts or genitals or performed a pap smear it occurred on the bed in the consulting room which is behind a screen.  He would have her disrobe behind the screen, but only to the extent necessary to perform the examination.  Any area of her disrobed body not being immediately examined would be draped.  When one area had been examined it would then be covered.  On occasions on which both a breast examination and a pap smear were performed she would remove only so much of her clothing as was required to allow the breast examination, she would then reclothe her upper body before removing her under garments to allow the pap smear to be performed.  Complete disrobing had never occurred in the past.
[24]	I find her explanation that she disrobed on this occasion because she felt comfortable with Dr Pearse, even when naked, lacks plausibility.  There was no occasion in the past from which she could have developed a sense of comfort in being naked in his presence.  Indeed, any sense of comfort she had arising from past experiences would have been that she was not required to be naked in his presence.
[25]	Even if she was so comfortable with Dr Pearse that she would fully disrobe to be examined by him if he were to have asked her to do so, I find it implausible that she would do so without him asking.  Even the placing of her garments on the floor in such a situation seems implausible.  She would not have to place them on the floor if she disrobed behind the screen in the surgery.  Her past experiences told her that.  So too her past experiences told her that any intimate examination would take place behind the screen with her positioned on the bed.  Her past breast examinations had also occurred there with her in a sitting position.
[26]	That the patient would spontaneously depart from all previous practices relating to intimate examinations, all of which had previously respectfully preserved her modesty, and disrobe in the middle of the surgery, dropping her clothing on the floor, is not believable.
[27]	I also consider that it is inherently unlikely that the patient having heard Dr Pearse say “I could do this all day” when rubbing her groin would not react in any way, either verbally or physically.  She says she said nothing and did not flinch.  This is even though she interpreted what he had said to have had sexual connotations.  On her evidence, the rubbing continued for a period after the statement is said to have been made by Dr Pearse.  For how long it continued is unclear, but she says he rubbed her groin in total for a couple of minutes.
[28]	Nor does the patient’s reaction to Dr Pearse suddenly pulling her shorts and underpants from her knees to her ankles seem plausible.  Simply thinking that he must be in a hurry seems an unlikely thought to have about the motivations which a man, who had just made a sexual remark whilst rubbing your groin as you stood naked in front of him, may have for quickly pulling your shorts and underwear to your ankles.  
[29]	The patient’s evidence of Dr Pearse’s alleged attempt to kiss her left nipple is also unreliable.  When questioned about this she could not recollect where she was looking at the time.
[30]	It also seems quite unlikely that had Dr Pearse conducted himself as alleged to that point, that the patient would then permit him to perform a pap smear, and an intimate examination of her genitalia.  I do not accept the reasons which she offered for allowing Dr Pearse to go ahead with the pap smear.  The first reason, set out in her affidavit, that it had been about 2 years since her previous pap smear, was demonstrably incorrect as a matter of fact.  The medical records establish that she had in fact had a pap smear on 21 September 2012, only 7 months beforehand, and that she had been notified of the results of that test by letter from Dr Pearse’s surgery dated 28 September 2012.  That letter said that she would be due for a repeat pap smear in 2 years’ time and that a reminder letter would be sent to her.
[31]	Despite having given evidence that she was satisfied that the contents of her affidavit were true and correct at both the time at which she swore it and at the time of the hearing, the patient offered a different reason for persisting with the pap smear in her evidence at the hearing.  On that occasion she said that she persisted with it notwithstanding Dr Pearse’s conduct to that point because she regularly had a pap smear as part of her general health check which she has at about that time each year.
[32]	Whilst the medical records do disclose that she did request and have performed a general health check on 1 April 2011 and 19 March 2012, on neither of those occasions was a pap smear performed as part of it.
[33]	The records for the 16 April 2013 consultation also record that she requested a general health check on that occasion.  The fact that a pap smear was also performed on that occasion is more likely, in my view, to have been because she also requested that test, rather than it simply forming part of the general health check.  That is particularly so, in my view, in light of the earlier pap smear performed only 7 months earlier.  
[34]	When confronted with the medical records which appeared to disprove her evidence, the patient said that she was “starting to wonder whether they had been fiddled”, although she ultimately accepted their accuracy.
[35]	In my opinion, neither of the reasons offered by the patient for proceeding with the pap smear notwithstanding the sexual misconduct of Dr Pearse which she alleges preceded it can be accepted.  This leads to the conclusion that the pap smear was performed simply because she requested it and that there had been no misconduct which would make her reluctant to proceed with it.  
[36]	This conclusion is even more open when it is considered that, contrary to what is stated in her affidavit, she did in fact have time to think.  She agreed with Ms Mellifont QC that she had quite a bit of time while lying on the examination couch.  She also agreed that during some of that time Dr Pearse was out of the room as he had, as was his routine on such occasions, gone down the corridor to warm the speculum prior to performing the pap smear.
[37]	I also find it unlikely that the patient would not recall having an intimate, digital physical examination of her genitals performed on this occasion if it had been preceded by a lengthy rubbing of her groin during which the doctor had made sexual offensive remarks.  Yet when asked by Ms Mellifont QC, the patient could not remember if there had been any such examination.
[38]	In her complaint to the Health Quality and Complaints Commission which she made in June 2013, the patient said that after Dr Pearse had attempted to kiss her nipple she was shocked and scared.  She said that when she moved over to the bed she was “praying that he wouldn’t do anything down there”.  In her evidence in the Tribunal hearing she said that, “I was lying there thinking, oh, God, please don’t do anything. Please don’t do anything. Please don’t do anything.”  
[39]	If these were, in fact, her thoughts at the time, as one would readily accept they would be if the events alleged had occurred, I find it most unlikely that the patient would not remember, let alone react to, a digital examination of her vagina.  It would seem the very thing, or one of them, that she was praying and hoping would not occur.
[40]	There is no record of a breast examination having occurred.  The patient explains this on the basis that during the pap smear she decided that she did not want to proceed with a breast examination and told Dr Pearse not to worry about it.  I find the more likely reason is that it had not been intended to perform a breast examination.  The records for the previous consultations when general check-ups were requested and performed do not demonstrate that breast examinations were performed as part of those check-ups.  Of course, if there was not to have been a breast examination, then there was no reason for the patient to have removed her top and bra as she said she did when standing before Dr Pearse.
[41]	My failure to be persuaded by the evidence of the patient as to the events which she alleges occurred, leads me to consider that the conversation between the patient and Dr Pearse on 22 April 2013 occurred in the way, and for the reasons, advanced by Dr Pearse.  I accept that whilst it would be unusual for another person, in this case a son, to attend a consultation with another, I accept Dr Pearse’s evidence that whilst the son was not in the habit of attending appointments with his mother, there was nothing particularly sensitive to be discussed as it was simply informing her of her test results in which there was nothing untoward.
[42]	In my view, this finding is more open because notwithstanding the patient saying in her affidavit that she had told her son what had occurred at the 16 April consultation on that evening, and having said in her oral evidence that on being told her son was cranky and angry at Dr Pearse, the son in his affidavit makes no mention of having been told.  Again, had he been told and had he been angry at Dr Pearse, it seems implausible, as the patient would have it, that the son remained nonetheless perfectly happy to keep seeing Dr Pearse.  The son in fact consulted Dr Pearse 4 days later on 20 April 2013 and then returned to see him on the occasion of 22 April.
[43]	I also consider it unlikely that if the patient had attended on 22 April 2013 with her son for the very reason that she did not want to see Dr Pearse on her own, that she would then immediately agree to doing that very thing when he asked if he could speak to her in the absence of her son.  This, in my view, is particularly so if, as she said in evidence, his request in that regard set off alarm bells.  I find her explanation that she then agreed because she knew that he wouldn’t try anything unconvincing.  It seems to be entirely contrary to her concerns which led her to attend with another person: that is, if she were alone with him he may try something.
[44]	In my view, the evidence of her psychiatrist, Dr Yasin, also assists in concluding that the events as alleged by the patient did not occur.
[45]	The patient said she had been extremely upset by these events for “a good couple of months” after they occurred.  She had only a couple of months earlier been referred to Dr Yasin.  
[46]	On 14 March 2013 Dr Yasin reported to Dr Pearse.  In that report he refers to the patient’s significant family history of mood disorder.  He also refers to a range of traumatic experiences in her childhood.  This demonstrates that the patient had been prepared to share experiences of trauma in providing a history to Dr Yasin.  Dr Yasin’s evidence was that she was open with him.  
[47]	Dr Yasin had seen the patient four days prior to the alleged events on 16 April 2013.  On that occasion he noted a deterioration in the patient from the previous visit, with mood swings, depression and increasing anxiety.  The patient next saw Dr Yasin 1 month following the alleged events.  On that occasion he reported “some improvement, but swings positive in the mild category.”  Then, about 3 weeks later on 4 June 2013, he reports the patient to be “symptom free and stable”.
[48]	The patient at no time told Dr Yasin of these alleged events.  However, she had in the past shared traumatic events with him concerning her past experiences.  These were traumatic events which had occurred during the period she was seeing him for the very reason of her mental health, and at a time during which she says she was extremely upset by them.  
[49]	In evidence she said that she had not mentioned these matters to Dr Yasin because at the time she was more focussed on her daughter.  However, Dr Yasin’s evidence was that at the 4 June consultation the patient had mentioned that her daughter had attempted suicide not long before that assessment.  Therefore, the focus on the daughter does not explain the patient not referring to those events, if they occurred, on the first occasion following them when she consulted with Dr Yasin: 17 May 2013.  Furthermore, Dr Yasin recorded the patient telling him on 4 June 2013 that she had coped very well with the stress of the matters relating to her daughter, and this was the occasion on which he found her to be symptom free and stable.
[50]	In my view, had these events occurred, and had the patient been extremely upset by them, it is unlikely that she would not relate them to the person who she was seeing for her mental health and to whom he had previously disclosed traumatic and upsetting experiences.
[51]	However, Dr Yasin’s evidence supports the conclusion that the patient’s evidence of these events should not be accepted for another, more objective, reason.  
[52]	It is Dr Yasin’s expert opinion that the improvement which he saw in the patient from April to June 2013 was contrary to his normal expectations if someone had experienced the type of even which she alleges, and that he would consider it unusual to improve despite the significant adverse effect alleged by the patient.
[53]	I have not been greatly assisted by the evidence of the patient’s husband.  He was first asked to commit his recollection of events to writing in October 2013.  However, prior to that, he also accompanied his wife in a couple of meetings with the Board’s lawyers during which he heard what his wife had told them of the events. The potential for him to later recall what he had heard on those occasions, rather than what his wife had related about the events at the time at which they are said to have occurred, is great. 
[54]	Also, from neither his affidavit nor his oral evidence is it apparent that the patient told him the detail of the alleged incident.  In his affidavit he refers to her telling him on the telephone that she had to speak to him about what happened with Dr Pearse that day and that she was really upset about it.  He then refers to returning home and his wife beginning to relay to him certain incidents, which he does not describe.  He says that as she began to speak she started crying again.  He says that she was upset for a few days following.
[55]	The husband told Dr Pearse’s lawyer, with whom the Board’s lawyers had informed him it was alright to discuss these matters, that his wife had told him that she had a bad experience with Dr Pearse that made her feel uncomfortable, but that she didn’t go into much detail and that perhaps at some later stage she indicated the concern was about Dr Pearse having his lips close to her nipple.
Conclusion
[56]	The Board has failed to prove the misconduct alleged against Dr Pearse.
[57]	The referral must be dismissed.
[58]	The parties are to make any submissions they wish to make on costs in writing within 14 days.