VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference No. Z831/2018	
CATCHWORDS	
Review and Regulation List – Health Practitioner Regulation National Law Act 2009 s. 196 – conduct of sexualised and/or inappropriate examinations, without clinical justification and/or without obtaining informed consent – engagement in other sexualised and/or inappropriate comments to and conduct toward patients.	

APPLICANT	Medical Board of Australia	
RESPONDENT	Dr Shyamal Datta	
WHERE HELD	Melbourne	
BEFORE	H. Lambrick, Deputy President
Dr P. Molloy, Member
Dr A. Sungaila, Member	
HEARING TYPE	Videoconference Hearing	
DATEs OF HEARING	1 & 2 June 2021	
DATE OF closing submissions	24 June 2021	
DATE OF ORDER and reasons	4 February 2022	
CITATION	Medical Board of Australia v Datta (Review and Regulation) [2022] VCAT 136	

Orders
1	In respect of allegations 1 and 4, we are satisfied that Dr Datta has no further case to answer and no further action is to be taken in relation to either allegation.
2	In respect of allegations 2 and 3, we make the factual findings as set out in our attached reasons. 
3	In relation to allegation 2, we are satisfied that Dr Datta:
(i)	conducted a sexualised and/or inappropriate examination of Ms CR’s chest; and/or 
(ii)	conducted an examination of Ms CR’s chest that was not clinically justified and/or without obtaining informed consent to do so; and/or
(iii)	otherwise engaged in sexualised and/or inappropriate conduct towards Ms CR.
4	In relation to allegation 3, we are satisfied that Dr Datta:
(i)	conducted sexualised and/or inappropriate examinations of Ms KH’s genitals; and/or
(ii)	conducted examinations of Ms KH’s genitals that were not clinically justified and/or without obtaining informed consent to do so; and/or 
(iii)	otherwise engaged in sexualised and/or inappropriate conduct towards Ms KH.
5	The application is listed for an administrative mention on 28 February 2022 by which time the parties may jointly request the Tribunal to make orders to list the proceeding for further hearing to be conducted by videoconference in relation to:
(a)	whether the conduct the subject of our findings constitutes unprofessional conduct or professional misconduct; and 
(b)	the appropriate determinations to be made.
6	In order for the Tribunal to determine whether the matter can proceed, the parties must also jointly:
(a)	specify the likely duration of the hearing; 
(b)	specify whether witnesses are required to give evidence and, if so, how many; 
(c)	provide at least 3 dates over the following 3 month period when all necessary participants in the proceeding (ie relevant parties/counsel/witnesses) will be available to attend the hearing particularly noting any (un)available dates of any witnesses or lawyers; and
(d)	advise the Tribunal of any other matters that may impact on the hearing process, such as the need for an interpreter or another form of assistance.
7	The parties are directed to respond promptly to all registry requests for information (including about their access to technology) and to cooperate with the Tribunal’s requirements for the conduct of the hearing.
8	All contact with the Tribunal must include the VCAT case number, and the date of the administrative mention.

H. Lambrick
Deputy President and Presiding Member	Dr P. Molloy
Health Practitioner Member	Dr A. Sungaila
Health Practitioner Member	
APPEARANCES:		
For Applicant 	Ms Holmes of counsel	
For Respondent	Mr Teng of counsel	

Note: Orders under the Open Courts Act 2013 (VIC) are in force
On 11 September 2018, the Tribunal ordered as follows:
1.	Any report of the whole or part of these proceedings or information derived from this proceeding that might enable the patients the subject of these proceedings, the notifiers, the Board’s witnesses or their family members to be identified must not be published or otherwise disclosed.
2.	Any information which might enable the identification of any person to whom an allegation relates, or any witness in this matter (except Dr Datta should he wish to give evidence) must not be published or otherwise disclosed.
3.	This order applies throughout Australia on the basis that the Tribunal’s reasons for decision for final orders are published on AustLII and that website may be accessed throughout Australia.  The privacy of the patients/notifiers/witnesses would be breached if persons living outside Victoria know or come to know their identity or that of members of their families.
4.	This order operates until the death of the last of the relevant patients, notifiers and the witnesses.

Reasons
1	Dr Shyamal Datta was first registered as a medical practitioner in Australia in February 2004 in the category of “limited registration for supervised practice and postgraduate training”. Thereafter, he largely held registration in the category “Limited registration area of need”.
2	On 4 December 2014, the Medical Board of Australia (“the Board”) determined to take immediate action under section 156 of the Health Practitioner Regulation National Law Act 2009 (“the National Law”) and imposed chaperone conditions on Dr Datta’s registration which remained in place until he ceased to hold registration on 1 September 2016. The Board did so having received the following three serious notifications in relation to Dr Datta.
3	On 19 November 2014, Victoria Police notified the Australian Health Practitioner Regulation Agency (“AHPRA”) about alleged sexual misconduct by Dr Datta toward Patient BR said to have occurred 2-3 weeks previously.
4	On 20 November 2014, Victoria Police notified AHPRA of a second allegation of sexual misconduct by Dr Datta toward Patient KH said to have occurred in the context of KH’s pregnancy earlier that year.
5	On 21 November 2014, Victoria Police notified AHPRA of a third allegation of sexual misconduct by Dr Datta toward Patient CR said to have taken place around 19 August 2014 and reported to police on the same day.
6	In due course, on 1 February 2016, AHPRA received notification of a fourth allegation of sexual misconduct by Dr Datta toward Patient AN said to have taken place around September 2013.
7	On 1 September 2016, the Board refused Dr Datta’s application for renewal of registration. It did so because Dr Datta failed to pass the Australian Medical Council Clinical Examination, which was a condition placed on his registration. Accordingly, Dr Datta is not presently on the register of practitioners.
8	Because of poor health, Dr Datta is unlikely to practise medicine again.
9	On 10 September 2018, the Board referred the allegations of sexual misconduct to this Tribunal. Because of ongoing issues in relation to Dr Datta’s health, the matter was unable to proceed to hearing until 2021.
The evidence before us
10	At a hearing which took place before us over two days commencing on 1 June 2021, we heard evidence from three of the complainants, each of whom made a witness statement – namely CR, KH and AN. Each complainant adopted her statement and was cross-examined by counsel for Dr Datta.
11	We were told by the Board that complainant BR has not engaged with the Board since 16 March 2015. She has never signed a draft statement prepared on her behalf by an AHPRA investigator.
12	The Board nevertheless sought to rely on both BR’s unsigned statement and the investigator’s notes in these proceedings. 
13	The Board also led evidence from Associate Professor Odell who gave evidence in relation to whether there was or could be clinical justification for any of the events as described by the various complainants.
14	Mr Teng of counsel, who appeared on behalf of Dr Datta, cautioned us against finding any of the allegations proven. Although Dr Datta did not give evidence before us, it was impressed upon us by Mr Teng that Dr Datta adamantly denies any wrongdoing or any allegation that he acted inappropriately towards his patients. 
15	Mr Teng correctly and appropriately emphasised that Dr Datta is not required to prove anything. Mr Teng stressed, and we accept, that Dr Datta does not need to point, for example, to any motive witnesses may or could have to fabricate their evidence. He stressed, and we agree, that a complainant’s evidence cannot gain credibility from the absence of a motive to lie.
16	Mr Teng stressed that the allegations relate to conduct said to have occurred some years ago. Such allegations, he submitted, are easy to make yet difficult to defend. He emphasised that Dr Datta can do little more than proclaim his innocence and that we, when considering the evidence, must consider Dr Datta’s consistent denials. 
17	Mr Teng emphasised that we must consider all explanations which are consistent with innocence including, for example, the possibility of a misunderstanding by the complainants of what took place during their consultations with Dr Datta, or of Dr Datta’s communication style.
18	Mr Teng further emphasised that we must remain alert to any possibility that contamination of the evidence has or may have occurred.
19	Mr Teng emphasised that if we find the potential for contamination of the evidence exists and/or that there are explanations consistent with Dr Datta’s version and/or key witnesses are not called who should have been called, the Board will not have discharged its obligations and we should find the allegations not proven.
20	Mr Teng emphasised that, if proven, the allegations would amount to findings of serious misconduct which, even though he is no longer practising, would have serious consequences for Dr Datta’s mental health and reputation.
21	We are ever mindful of the scrutiny we must apply to serious allegations of misconduct. We agree with the submissions made by Mr Teng that, before making any finding adverse to Dr Datta, we must assess the evidence before us with great care and caution. We must be satisfied that there is strong, clear, and cogent evidence leading us to make the adverse findings sought by the Board.
22	Before finding any allegation proven, we must be satisfied to the high level of proof enunciated by Sir Owen Dixon in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. … Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
23	In cases such as the present, where the allegations are serious, we accept that the appropriate test to be applied before making any finding adverse to Dr Datta is one of “actual persuasion” of the occurrence of the facts alleged. 
24	The Board contended that we could be satisfied based on the material before us that each of the allegations was proven. The Board also sought to rely on tendency evidence as proof of the alleged conduct.
25	In doing so, the Board pointed to a number of similarities between the allegations of the various complainants about their consultations with Dr Datta. Specifically, the Board identified the gender of the complainants; the location of the consultations; the relevant period/timing; the purpose of the relevant visits; and the similar nature of the sexualised and/or inappropriate conduct and/or communications and/or examinations alleged.
26	It was submitted by the Board that the evidence established a tendency on the part of Dr Datta to:
(a)	conduct sexualised and/or inappropriate examinations, in circumstances which were not clinically justified and/or without obtaining informed consent;
(b)	engage in other sexualised and/or inappropriate conduct toward his patients; and
(c)	make sexualised and/or inappropriate comments to his patients.
27	Whilst being mindful of the fact that this Tribunal is not bound by the rules of evidence, the Board urged us to deal with the admissibility and probative value of the tendency evidence in accordance with section 97(1) of the Evidence Act 2008 (Vic). Section 97 reads as follows:
(1)	Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—
(a)	the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence; and
(b)	the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
28	Dr Datta raised concerns about the possibility in this case of contamination of the evidence and/or collaboration by the complainants.
29	He referred us to the decision of Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 where the Court emphasised the need to take particular care and to consider the evidence on individual charges separately, unless satisfied that there was no collaboration between the patients.
30	The Board acknowledged the strong prejudicial effect that the evidence of other complainants about other alleged acts could have. The Board agreed that we would need to find a high level of probative value in such evidence before we could take it into account. 
31	We will address these considerations as we discuss the various allegations. 
Allegation 1 – BR
The unsigned statement of BR
32	On 19 November 2014, the Lodgement Notifications Department of AHPRA received a telephone notification from the Victoria Police Sexual Offences and Child Abuse Investigation Team in relation to Dr Datta’s alleged conduct with Patient BR in late October 2014.
33	Following the 19 November 2021 notification, on 21 November 2014 an AHPRA investigator had a conversation with BR in order to collect information and prepare a draft statement on BR’s behalf. The investigator made notes of the conversation and in due course a draft statement was prepared by the investigator. The investigator no longer works with AHPRA and did not give evidence at the hearing. Unsurprisingly, given the way in which it came about, BR’s unsigned draft statement essentially contains the same material as is contained in the notes of the investigator.
34	In broad terms, the allegations are that Dr Datta conducted a sexualised and/or inappropriate examination of BR’s chest and/or conducted an examination of BR’s chest which was not clinically justified and/or without obtaining consent to do so and/or otherwise engaged in sexualised and/or inappropriate conduct toward BR.
35	As we have already mentioned, BR did not give evidence before us. She disengaged from all communication with the Board. She apparently indicated to police that she did not wish to proceed with any police investigation.
36	Investigation Officer B, who is an AHPRA investigations officer (but who has never personally met or engaged with BR), gave evidence that on 21 February 2015 AHPRA sent BR the draft witness statement. 
37	Investigation Officer B produced the relevant file note of the AHPRA investigator’s conversation with BR and subsequent correspondence from AHPRA to BR enclosing BR’s draft statement. BR did not sign or return the draft statement.
38	The Board did not compel BR’s attendance at the Tribunal. Investigation Officer B gave evidence that AHPRA does not generally compel complainants to attend to give evidence before this Tribunal if they wish, for whatever reason, to disengage. The Board submitted that there is therefore a reasonable explanation for its failure to call BR. It contends that there is no basis upon which we could draw any adverse inference against the Board for not calling BR. 
39	The Board sought to rely on the unsigned statement of BR and evidence of BR’s telephone report to police and to AHPRA in the following two ways:
(a)	as providing an evidentiary basis for allegation 1 that Dr Datta:
(i)	conducted a sexualised and/or inappropriate examination of BR’s chest; and/or 
(ii)	conducted an examination of BR’s chest that was not clinically justified and/or without obtaining informed consent to do so; and/or 
(iii)	otherwise engaged in sexualised and/or inappropriate conduct toward BR;
and
(b)	in conjunction with the evidence of the other complainants, to establish a tendency on the part of Dr Datta to act in the manner alleged by the Board. In this respect, the Board pointed to the similarities of the allegations of the various complainants about their consultations with Dr Datta. 
40	The Board contends that whilst BR has not engaged with AHPRA or the Board or Victoria Police since March 2016, we could comfortably find, based on the material before us, that the conduct the subject of allegation 1 occurred.
41	The notes and the unsigned draft statement contain several serious allegations concerning Dr Datta’s conduct said to have taken place on or around 29 October 2014 when BR attended the clinic for a three monthly Depo contraceptive injection. Dr Datta, through his lawyers, denied engaging in any inappropriate conduct.
42	The particulars of the allegation were responded to in written communication to AHPRA during the course of an investigation into his conduct from Dr Datta’s then solicitors on 21 October 2015. Mr Rob Perry, solicitor, wrote: 
We are instructed by Dr Datta that he steadfastly denies that he engaged in any inappropriate physical contact with his patient Ms [BR] during a consultation on 29 October 2014.
We are instructed that on this date the patient consulted him for the contraceptive Depo-Provera injection.
It is his standard practice not to prescribe and/or administer this injection without first conducting a pregnancy test.
His examination of the patient consisted of temperature, blood pressure, pulse, respiration and a urine pregnancy test which was negative. The clinic nurse administered the injection and the consultation then concluded.
He denies that he ran his hand down her cheek and denies that he conducted breast examination and/or removed the patients cardigan and/or ran his hand across her cleavage.
He also denies he said the words to the effect “Is there any more?”.
43	In the absence of a sworn statement or sworn evidence from BR, or any explanation for why she has not persisted with her complaint, we have formed the conclusion that it would be very unsafe to rely on either BR’s unsworn unsigned statement or the notes of the investigator, either in order to form the requisite evidentiary basis for allegation 1 or to establish a tendency on the part of Dr Datta to act in the manner alleged by the Board.
44	Because neither BR nor the investigator who prepared the notes gave evidence, Dr Datta was unable to cross-examine either about the content of the notes and/or the draft statement.
45	We further consider that a real and not fanciful possibility of infection, contamination and/or unconscious/deliberate influence exists in relation to BR’s unsigned statement which, given her lack of engagement in this process, there is no means of testing. 
46	In order to explain our concerns, it is necessary to take a somewhat circular route looking at the notification in the context of the known circumstances which preceded it, coupled with the subsequent disengagement of BR after making her complaint.
47	Importantly, and relevantly for the purposes of our determination, some of the thought processes of BR preceding her complaint are set out in the notes and the unsigned draft statement.
48	The notes of the investigator at [34]-[39] (replicated in [15] of the draft statement) describe in the following terms a consultation BR had with a local psychologist, Psychologist A, several days after her consultation with Dr Datta:
34. 	The following Monday, she saw her psychologist, [Psychologist A].
35. 	… [BR] mentioned that [a different named GP] had gone and she needed to find a new general practitioner. She asked [Psychologist A] who she should see.
36. 	[Psychologist A] replied that she should see anyone at [the relevant clinic] except Dr Datta. [BR] had not mentioned Dr Datta’s name to [Psychologist A].
37. 	[Psychologist A] continued to say that Dr Datta is sexually assaulting his clients that [the relevant clinic] know about this and have not done anything about it.
38. 	[BR] then told [Psychologist A] about what had happened during her consultation with Dr Datta.
39. 	[Psychologist A] told her to contact [the relevant clinic]’s head office and make a complaint. She also told [BR] that she used to work at [the relevant clinic] and encountered Dr Datta. She had found him inappropriate in that he asked her questions about whether she was single, where her address was etc.
40. 	This happened at the end of the appointment between [Psychologist A] and [BR].
41. 	She went to work after the appointment and felt sick about what [Psychologist A] had told her. She describes that she was shaken up she had “fobbed this off” when in fact obviously other things were going on.
42. 	When she got to work she sat in her boss’s office until she was available. When her boss came in she burst into tears and told her everything that had happened.
…
44. 	[Her boss] asked her if she would like her to contact the police. 
49	Thereafter, the notes detail the subsequent call to police and referral to AHPRA. 
50	On the face of the notes and draft statement, it is clear that Psychologist A had formed and expressed to BR very strong views about Dr Datta sexually assaulting his clients and that she did so prior to any such issue being raised by BR. 
51	We consider that on any reading of this material the very real possibility is raised that Psychologist A may have influenced the mind of BR about what happened during her consultation with Dr Datta.
52	Psychologist A is a regional psychologist in an area where psychologists are in short supply. She was seemingly not afraid to express strong views to BR about Dr Datta whether those views were sought by BR or not.
53	The words of a consulting psychologist arguably carry more weight than a general member of the community expressing such concerns.
54	To be told by a local psychologist that her general practitioner was sexually assaulting his clients would not only be alarming, but we consider would have the very real potential to flavour an individual’s view of their own consultations as was arguably demonstrated in [41] of the investigator’s notes (set out above and replicated in [16] of the draft statement).
55	To be told by a local psychologist that she should see anyone at the relevant clinic except Dr Datta would have to raise questions about the consultation she had already had in the mind of any patient.
56	To be told by a local psychologist that the medical practice actually knew about inappropriate conduct and had not done anything about it could add a further sense of concern to the mind of the patient.
57	We note that it was only following the consultation with Psychologist A that a report was made to the police by BR. Whilst immediately after her consultation with Dr Datta BR engaged with a nurse who gave BR an injection, there is no evidence that BR had raised any concerns about the consultation with the nurse. 
58	Whilst at [33] of the investigator’s notes reference is made to BR telling a friend “what happened during the consultation with Dr Datta”, the friend did not make a statement, nor did the friend give evidence before us. 
59	Psychologist A also did not give evidence before us. The notes of Psychologist A’s consultation with BR were not before us. Dr Datta reminded us of the well-established rule in Jones v Dunkel [1959] HCA 8; 101 CLR 298 and asked us to draw the inference that the evidence of Psychologist A would not assist the Board’s case. BR ceased consulting with Psychologist A after the consultation described above.
60	BR also promptly disengaged from AHPRA. The 21 November 2014 file note was the last contact that BR had with AHPRA. None of the matters contained in the notes or draft statement could therefore be tested. None of the concerns raised about the influence of Psychologist A could be tested.
61	We consider these factors to be fatal to the Board’s case.
62	We are not satisfied to the requisite standard that allegation 1 is proven.
63	We are further not prepared to rely on the material pertaining to BR, in conjunction with the evidence of other witnesses, to support a finding that Dr Datta has a tendency to conduct himself in the manner alleged by the Board.
64	Tendency evidence should not be used unless its probative value outweighs any prejudicial effect. 
65	We consider that the prejudicial effect for Dr Datta, if we were to rely on the unsworn material without his being given any opportunity to test the material, would be enormous.
66	It is trite to say that the probative value of tendency evidence lies around notions of the improbability of similar acts being alleged against an individual by more than one person unless the events as described occurred.
67	If, however, there is a likelihood of suggestibility, as we have found there to be in relation to BR, the requisite improbability diminishes. We clearly cannot rely on the complaint of one witness to support the complaint of another if we harbour concerns that the complaint of either has come about as a product of suggestibility. The probative value of the tendency evidence is no longer significant. 
68	We do harbour such concerns. It is critical that we satisfy ourselves not only that each complainant was truly independent, but that her complaint has not been the product of suggestibility arising from any source.
69	We finally note, in any event, that the circumstances of the allegations surrounding BR’s consultation differs to that of the other complainants who described Dr Datta’s conduct toward them developing and escalating over time. This was BR’s only consultation with Dr Datta. BR did not have a history of consultations with Dr Datta.
70	We are for these reasons not prepared to rely on the material contained within the Tribunal Book with respect to BR for the purposes of establishing a tendency on the part of Dr Datta to act in the manner alleged by the Board.
Allegation 2 – CR
71	On 21 November 2014, Victoria Police made a notification to AHPRA in relation to Dr Datta’s alleged conduct with Patient CR.
72	The allegations are that in or around August 2014 at his consulting rooms, Dr Datta:
(i)	conducted a sexualised and/or inappropriate examination of Ms CR’s chest; and/or 
(ii)	conducted an examination of Ms CR’s chest that was not clinically justified and/or without obtaining informed consent to do so; and/or
(iii)	otherwise engaged in sexualised and/or inappropriate conduct towards Ms CR.
73	Dr Datta denied any wrongdoing in relation to CR.
74	CR was the first witness to give evidence before us. CR adopted her statement dated 18 September 2018. 
75	The particulars of the allegation were responded to by Mr Perry, solicitor, on 21 October 2015. Mr Perry wrote:
We are instructed by Dr Datta that he steadfastly denies that he engaged in any inappropriate physical contact with his patient, Ms [CR] during a consultation on 19 August 2014 and/or made any inappropriate comments to her during a consultation.
We are instructed that on 19 August 2014 the patient attended Dr Datta with a history of “fever, feeling weak and lethargic for a couple of days”.
76	The particulars to allegation 2 are framed around and essentially mirror the particulars contained within CR’s statement, which we will now address.
(i) 	at all material times, Dr Datta was a registered medical practitioner;
77	Dr Datta agrees that he was.
(ii) 	CR first attended Dr Datta at [the relevant clinic] in approximately 2012;
78	Both Dr Datta and CR agree that this is correct. 
79	CR, in her evidence before us, described her initial consultations with Dr Datta in positive terms.
(iii) 	CR attended Dr Datta regularly for personal health reasons, as well as in relation to her children’s health;
80	This particular is not contentious. In her evidence before us, CR agreed that she had some 11 consultations with Dr Datta. 
81	In her statement, CR described Dr Datta as being “good with kids” and supportive of her as a “good mum”. 
82	Whilst CR described her surprise at receiving a hug from Dr Datta on an occasion during the course of her early consultations, she said that she put this down to cultural differences and, although surprised, was not unduly concerned by this. 
83	In closing submissions for Dr Datta, it was stated that in his culture it is highly inappropriate to hug women and that “he just does not do it”. We note that no evidence was however led to this effect and the evidence of CR was not contradicted during cross-examination. CR gave evidence before us in which she said that although English is not Dr Datta’s first language and he was sometimes difficult to understand, the pair nevertheless communicated quite well. 

(iv) 	During a consultation approximately one week prior to 19 August 2014, Dr Datta advised Ms CR that she “looked sexy”, or said words to this effect;
84	At [6] of her statement, CR said: 
In another consultation Dr Datta told me that I looked “sexy”. Whilst I thought that this was inappropriate, I did not think too much of it, as again, I thought that it may have been a cultural and/or language barrier and that Dr Datta may not fully understand the word “sexy”.
85	In the 21 October 2015 communication, Mr Perry, solicitor, wrote that Dr Datta specifically denied making inappropriate comments to CR.
86	Mr Teng did not however put to CR under cross-examination that the words were not spoken by Dr Datta. CR was not cross-examined at all in relation to this particular. Rather, in final submissions, it was contended that because English is his second language, Dr Datta may have been misunderstood or misinterpreted. This was not, however, at any time suggested to CR during cross-examination.
87	We accept that the conduct as described by CR took place. CR did not seek in any way to embellish her evidence. If anything, she downplayed the effect of Dr Datta’s words on her. We accept the evidence of CR that at the time she did not pay undue attention to the words and brushed them away.
88	There is no reason to reject CR’s evidence on this point. It is of course never appropriate for a medical practitioner to address any patient using such terms. No evidence was lead upon which we could find that Dr Datta did not or does not understand what the expression means. It is of concern to us that Dr Datta ever told CR she looked sexy. We agree with the observations of Associate Professor Odell that such comments are unacceptable sexualised behaviour completely inappropriate for any medical practice. 
(v) 	During a consultation on or about 19 August 2014;
(A) 	Ms CR attended [the relevant clinic] and consulted with Dr Datta presenting with flu like symptoms;
89	This particular is not contentious. 
90	The statement of CR refers to this. CR’s evidence before us was to the same effect.
91	Dr Datta’s clinical notes are also to this effect, describing hoarseness of voice, fever and CR feeling weak and lethargic; and in Mr Perry’s response to the investigator dated 21 October 2015, CR’s presentation was described in the same terms.

(B) 	following Ms CR advising Dr Datta of her symptoms, Dr Datta advised Ms CR that he wanted to “check her heart”, or said words to that effect;
92	In her statement, CR said at [7]:
I explained my symptoms to Dr Datta, and he advised me that he wanted to check my heart.
93	We accept that the exchange took place as described by CR. 
94	Mr Teng did not suggest to CR under cross-examination that such an exchange did not take place.
95	In closing submissions for Dr Datta, the following was submitted at [80]:
[80] 	The Respondent submits that on 19 August 2014:
a. 	He conducted a chest examination of Ms CR – because of her presentation. This presentation included, hoarseness of voice, fever, feeling weak and lethargic and a cough.
b. 	He advised the patient he was going to examine her chest – not her heart. This examination includes listening to Ms CR’s lungs with the stethoscope. This examination involves auscultation of the front and back of CR’s chest to listen to breath sounds.
96	We note that it was never suggested to CR during cross-examination that any such detailed explanation was given to CR at any point.
(C) 	as Ms CR removed her jumper (and had her jumper over head), without any warning and/or request for consent, Dr Datta placed his stethoscope on the left side of Ms CR's chest, inside her bra;
97	In her statement, still at [7], CR said:
I explained my symptoms to Dr Datta, and he advised me that he wanted to check my heart. This seemed logical, so I began to remove the heavy woollen jumper that I was wearing. Whilst the jumper was over my head, Dr Datta quickly placed the stethoscope inside my bra on the left side of my chest. I must have been wearing a low neck top as he got his hand into my bra very easily. It was a really awkward moment and it took me by surprise. However, as consultations at the Clinic are usually very efficient, I thought that perhaps Dr Datta was just being hasty so I did not think too much more of it at this time.
98	In response either to this, and/or particular (E), on 21 October 2015, Mr Perry, solicitor, wrote:
In order to conduct a chest examination we are instructed that he placed his stethoscope on the left side and right side of the patients chest and on her back.
We are instructed that in order to conduct the chest examination the stethoscope may have, of necessity, been placed slightly inside the patients bra line but he cannot specifically recall.

99	The closing submissions for Dr Datta continued at [80] as follows:
c. 	As part of this chest examination – the respondent necessarily required CR to take off her jumper and to lay down [on] the examination bed.
d. 	Whilst on the examination bed the respondent moved his stethoscope along Ms CR’s bra line to breath sounds at the front of her chest – he did not move his hands in her bra. He then listened to the back of CR’s chest.
e. 	After the respondent had listened to breath sounds – CR sat back down on the chair. The respondent spoke to her about self-examination of breasts for lumps – he did not however just reach out and grab her breast.
100	We note that the medical records do not describe any chest examination taking place at all. 
101	In her evidence before us, CR adopted her statement. Under cross-examination, she agreed with the proposition put to her by Mr Teng that to do as she had described, Dr Datta would have had to move himself, put the stethoscope over his ears and move forward.  
102	CR gave evidence that whilst she could not recall the exact top she was wearing under her jumper, she recalled that it was easy for Dr Datta to get the stethoscope down her bra.
103	CR gave evidence that she could not recall whether any words were spoken and, if they were, what the words were. CR gave evidence that Dr Datta’s actions overshadowed any spoken words. 
104	CR gave evidence that she did not challenge Dr Datta. She described herself as feeling very unwell on this occasion.
105	We accept the version given by CR. It was not put to CR that Dr Datta did not place his stethoscope on her chest whilst her jumper was over her head or that it did not happen in the way described by her. 
106	There was nothing inherently implausible or impossible about CR’s evidence on this point. Her evidence flowed on from the preceding non-contentious material in her statement. 
107	Dr Datta concedes that he did require CR to remove her jumper. At no stage did he specifically deny in his written submissions listening to her chest whilst her jumper was over her head. 
108	Nor was it put to CR during cross-examination that this did not happen.
109	CR was definite in her recollection of the event. 
110	There was no reason for us not to accept her evidence. 

(D) 	Dr Datta subsequently directed CR to lay on the examination bed;
111	In her statement at [8], CR said:
Dr Datta then directed me to lay down on the examination bed. The examination bed was situated directly next to the door in his office, so as I lay down, Dr Datta drew the curtain around the bed so that anyone who walked in the door would not have been able to see me. 
112	This did not appear to be contentious. 
113	Under cross-examination, CR agreed that she was told by Dr Datta that this was for the purpose of a chest examination to listen to her breathing. She agreed that she did not protest and that it made sense to her for a chest examination to take place given her symptoms.
114	We accept that Dr Datta did direct CR to lay on the examination bed as described by CR and conceded by Dr Datta in the closing submissions as outlined above.
(E) 	without any warning and/or requesting her consent, Dr Datta placed his hand and stethoscope on the left side of Ms CR's chest, inside her bra;
115	In her statement, CR said at [9]:
When I was laying on the examination bed, Dr Datta put his stethoscope back inside my bra and placed it on the left side of my chest. Dr Datta did not tell me why a further examination of my heart with his stethoscope was required before he did this. He left the stethoscope and his hand on my chest for a few seconds to listen to my heart.
116	Under cross-examination, CR confirmed that this took place as described by her in her statement.
117	She gave evidence that Dr Datta placed the stethoscope inside her bra as described. She said she did not say anything to him about this but was shocked. CR said she was quiet and shy back then and did not tell him his conduct was inappropriate because she was so shocked and surprised by the conduct. She however said that if she had not been feeling so unwell, she would have said something to him. 
118	It was not put to CR during cross-examination that the incident did not take place. It was not put to CR that Dr Datta explained why an examination conducted in this way was necessary. It was not put to CR that Dr Datta warned her what he was about to do or requested her consent.
119	We accepted CR’s candid evidence that, without any warning and/or requesting her consent, Dr Datta placed his hand and stethoscope on the left side of Ms CR’s chest, inside her bra.

(F) 	as Dr Datta removed his hand and stethoscope from Ms CR's chest, he grazed Ms CR's left nipple with his hand;
120	In her statement at [9], CR continued:
As Dr Datta removed his hand and stethoscope from my chest, his hand grazed my nipple. I cannot identify whether he grazed my nipple with his fingers or the side of his hand, however I recall thinking that there was no way that it was an accidental touch. … After Dr Datta touched my nipple, I started to think that this consultation with Dr Datta was weird and began feeling more uncomfortable. 
121	In the 21 October 2015 communication, Mr Perry wrote:
He denies he grazed the patients nipple with his hand.
…
He maintains that the examination of the patients chest was medically necessary and conducted for reasonable clinical purposes.
He maintains that the examination was conducted appropriately.
He denies any allegation of wrongdoing.
122	Whilst we understand that Dr Datta denied the conduct as alleged by CR, it was not put to CR during cross-examination that the incident as described by her did not occur. 
123	Instead, under cross-examination, CR was asked whether what was occurring was logical. 
124	CR gave evidence that she did not consider it logical that the grazing of her nipple took place. She emphasised that it was her strong view that the touching was not accidental. 
125	CR described herself as shocked by the actions of Dr Datta but not in a panic. She adamantly denied any suggestion that what occurred during the chest examination was a misunderstanding.
126	We accept the evidence of CR.
127	We accept that when Dr Datta removed his hand and stethoscope from CR's chest, he grazed CR’s left nipple with his hand.
(G) 	Dr Datta returned to his desk, and Ms CR returned to the patient chair;
128	In her statement, CR said at [10]:
Dr Datta then returned to his desk, and I got up, put my jumper back on, and moved back to the patient chair.
129	There is no reason not to accept the unchallenged version of events as described by CR.
(H) 	without any warning and/or requesting her consent, Dr Datta subsequently put his hand on Ms CR's left breast and squeezed her left breast (whilst she was wearing a top); and 
(I) 	Dr Datta subsequently maintained hold of Ms CR's left breast for a few seconds;
130	In her statement still at [10], CR said:
As I sat back down, Dr Datta leaned forward and quickly reached out and put his hand on my left breast (on the outside of my bra, top and jumper). 
Dr Datta kept his hand on my left breast for a few seconds and he squeezed my breast. 
131	In the 21 October 2015 communication, Mr Perry did not address the full detail of the particular as alleged but said:
He denies that he squeezed the patient’s breast. 
…
He maintains that the examination was conducted appropriately.
He denies any allegation of wrongdoing.
132	CR adopted her statement in her evidence. It was not put to CR during cross-examination that the events as described by her in her statement and the subject of this particular did not occur. 
133	There is no reason not to accept CR’s unchallenged version of these events.
(J) 	Dr Datta commenced advising Ms CR about breast examinations simultaneously as he made physical contact with her breasts, as detailed above, despite Ms CR not raising any issue relating to her breasts with Dr Datta; and
134	In her statement still at [10], CR further said:
As Dr Datta did this, he started talking about breast examinations. I had not reported any concerns with my breasts to him. 
135	Although the clinical notes make no reference to any discussion about breast examinations at all, in final submissions, it was conceded on behalf of Dr Datta that he spoke to CR about self-examination of breasts for lumps. It was submitted that Dr Datta did not, however, reach out and grab her breast.
136	Once again, we observe that Dr Datta’s version as set out in the closing submissions was not, however, put to CR during cross-examination.
137	We accept CR’s sworn version of this event.
(K) 	Dr Datta did not otherwise provide any advice to Ms CR as to why his examination(s) of her and/or conduct towards her were clinically necessary and/or justified.
138	In her statement still at [10], CR further said:
Dr Datta’s conduct felt intentional and completely without context. I remember that I pulled back very quickly so as to get his hand off me and I shut down the conversation very quickly.
139	We accept that no explanation was given to CR as to why his described examination(s) of her and/or conduct towards her were clinically necessary and/or justified.
140	In both her sworn statement and in her evidence before us, CR described leaving the clinic in a state of shock. 
141	We note that the examination was not recorded in Dr Datta’s notes. We agree with the observations of Associate Professor Odell that:
The usual procedure if a patient presents with these symptoms is to examine the throat, nose and ears, and then examine the chest. When listening for signs of a chest infection the stethoscope is usually placed on the back as this allows better access to listen to the lungs without interference from heart sounds and the breasts in a woman. 
None of this is recorded in the notes. If a heart examination was indicated in a patient who felt weak and lethargic this should be explained to the patient before embarking on the examination. The usual procedure for a heart examination begins with the patient lying down and includes palpating (feeling) the chest over the heart for the cardiac impulse and then listening to several areas on the left chest over the heart. In a woman this inevitably involves touching or moving the left breast but should not involve touching the nipple. If such an examination is indicated then the reasons for it and results of it should be recorded in the notes. The procedure recounted to police may have been an attempt at a breast examination however this was not asked for by the patient was not explained by the doctor or consented to by the patient. The description of the left breast being squeezed through her clothing while she was sitting on a chair is completely outside proper practice. 
Dr Datta appears to have diagnosed a viral infection and ‘laryngities’ (sic) and treated the patient appropriately. This condition does not usually require the heart or breasts to be examined. 
142	In his written submissions, Dr Datta maintained that the examination of CR was medically necessary and conducted for reasonable clinical purposes and that the examination was conducted appropriately. He denied any allegation of wrongdoing or that any inappropriate conduct took place. Nevertheless, the key components of the evidence of CR were not challenged at all by him and no explanation for why or how the course adopted by him was clinically necessary has been given. 
143	Instead, much of the cross-examination of CR centred around whether Dr Datta sat or stood whilst taking her blood pressure. CR remained adamant that, on many occasions and particularly those in which objectionable conduct took place, he stood.
144	It is of grave concern to us that Dr Datta gave no advice to CR as to why his examination of her in the circumstances in which it occurred was clinically necessary of justified. 
Factual findings – Allegation 2
145	In closing submissions, it was submitted on behalf of Dr Datta that we could not be satisfied to the requisite standard that the allegation was proven. We were asked to consider the delay in making the complaint and the lack of support for CR’s version contained within the medical records.
146	We consider there was no effective delay by CR in making her complaint.
147	Whilst CR agreed under cross-examination that she did not raise her concern with staff at reception, in both her statement and in her evidence before us CR described immediately going to her (now) husband and telling him about what happened. 
148	She further described how on the same day she spoke with her best friend on the phone about what happened during the consultation. 
149	Following the advice of her friend, she gave evidence that she reported the incident to the police. She gave evidence that this all occurred on the same day.
150	When under cross-examination it was suggested to CR that after speaking with her friend she reacted in hindsight, CR said:
I was shocked so didn’t protest. I trusted him but he touched me without consent and I was processing that this was the same man. My best friend lives in Qld and knew nothing of him.
151	We are satisfied that each of the particulars constituting allegation 2 took place as described by CR.
152	CR was a matter of fact witness whose evidence did not change under cross-examination. She described in positive terms her early engagement with Dr Datta and did not seek to embellish or change her early perception of those initial consultations with him.
153	We accept that CR was concerned enough about what had happened during her final consultation to go straight to her then fiancé (now husband), to speak with her best friend and then contact the police. Her complaint against Dr Datta was a prompt one. There is nothing to suggest her evidence was in any way contaminated during these interactions. 
154	CR remained prepared to give evidence before this Tribunal some years after the events described by her. The force of her conviction with respect to what had happened to her has not diminished with time.
155	There was nothing inherently improbable or unlikely about her version of events.
156	We are satisfied that the events as described by CR occurred and that allegation 2 has been established.
Allegation 3 – KH
157	On 19 November 2014, Victoria Police made a notification to AHPRA in relation to Dr Datta’s alleged conduct with Patient KH through the period April 2014 to June 2014. KH made witness statements dated 27 March 2015 and 8 September 2018. She gave sworn evidence before us in which she adopted her witness statements.
158	The allegations are that, between in or around 2012 and 15 July 2014, at his consulting rooms at the relevant clinic, Dr Datta transgressed the professional boundaries that should, and ordinarily do, delineate the doctor-patient relationship with his patient, KH, in that he: 
(i)	conducted sexualised and/or inappropriate examinations of Ms KH’s genitals; and/or
(ii)	he conducted examinations of Ms KH’s genitals that were not clinically justified and/or without obtaining informed consent to do so; and/or 
(iii)	otherwise engaged in sexualised and/or inappropriate conduct towards Ms KH.
159	The consultations which form the basis of the allegations took place during KH’s pregnancy. 
160	In her statement to AHPRA dated 27 March 2015, KH said at [25]-[26]:
[25] 	I felt quite uncomfortable after my final visit to Dr Datta. I told my housemate … about my experiences. [Housemate] told me about one of her friends who had seen Dr Datta for a pap smear. [Housemate] said her friend told her that Dr Datta had asked if the pap smear made her horny.
[26] 	I gave birth in November 2014 at the [local] Hospital. While I was in labour I told a social worker about the incidents with Dr Datta. The social worker arranged for the police to see me.
161	KH gave evidence that her son was born on 17 November 2014. She gave evidence that police came to the hospital to speak with her after she spoke with a hospital social worker about her consultations with Dr Datta. 
162	KH’s 17 November 2014 complaint to police therefore occurred some months after her final consultation with Dr Datta. Her first statement to AHPRA was signed in 2015, a year after the consultations ended. Mr Teng emphasised the delay.
163	We are mindful of the delay and its potential to have an impact on the recollections of a witness. We are however also mindful that people react differently to sexualised conduct and that, for complex reasons, delay in the reporting of sexualised conduct is not an uncommon occurrence. 
164	Mr Teng further contended that there existed real potential that contamination of the evidence of KH had occurred.
165	In doing so, Mr Teng vaguely alluded to the potential for “talk” in a county town, but did not really take this any further. 
166	Mr Teng further submitted that the Board could not persuade us that a real possibility of contamination of the evidence of KH through her involvement with Psychologist A does not exist.
167	The only evidence of any involvement between KH and Psychologist A was the rather vague questioning of KH by Mr Teng, which received equally vague responses from KH. KH thought there may have been a referral to a psychologist made by Dr Datta to “a lady on [named] Street”. KH was not sure, however, whether the lady was or was not Psychologist A. The notes of Dr Datta do not reveal any such referral to Psychologist A. There is only a brief note on 13 February 2014 discussing the potential need for KH to see a psychologist if medication does not work. The notes one month later, however, record KH feeling better. The notes thereafter largely pertain to KH’s pregnancy.
168	No evidence was placed before us to support any finding that KH’s evidence was infected – either by a knowledge of allegations made by any other complainant or by any interaction with Psychologist A. The extent of any communication KH may have had with Psychologist A is simply unknown.
169	KH was not questioned about, nor did she give any evidence with respect to, the nature of any conversation with any psychologist (be it Psychologist A or otherwise) about Dr Datta.
170	In these circumstances, there was no material before us upon which we could find that the evidence of KH was contaminated through her engagement with a psychologist.
171	Mr Teng once again, in relation to KH, submitted that we should be alert to the possibility of language-based misunderstandings. Mr Teng contended that KH may have, perhaps for cultural reasons, misunderstood Dr Datta’s conduct.
172	KH agreed that English is not Dr Datta’s first language but stated she never had difficulty understanding what he said to her. 
173	We turn then to address the specific allegations which reflect the statement of KH.

174	Once again, the particulars of the allegation were responded to in written communication on 21 October 2015 by Mr Perry, solicitor, who wrote:
We are instructed by Dr Datta that he steadfastly denies that he engaged in any inappropriate physical contact with [KH] and/or any inappropriate communication with [KH].
(i) 	at all material times, Dr Datta was a registered medical practitioner;
175	This is not in dispute.
(ii) 	Ms KH first attended Dr Datta at [the relevant clinic] in approximately 2012;
176	This is also not in dispute. 
177	In his submissions, Mr Teng drew our attention to evidence that KH suffered from anxiety and depression. Whilst he conceded that just because a person is mentally unwell does not mean they cannot be believed, he submitted that great care needed to be taken in the assessment of the evidence, including considerations of consistency of contrary evidence and lack of corroboration.
178	We note in this respect that KH gave frank evidence surrounding her history of mental health issues. She gave evidence that she was pleased that Dr Datta advised her that he had previously worked in a mental health hospital environment. She gave evidence that she felt she could openly discuss other issues about her health that she raised with him. We note that, during the relevant period surrounding KH’s pregnancy, Dr Datta’s notes do not record any ongoing mental health issues.
(iii) 	after Ms KH had attended Dr Datta for a few consultations, Dr Datta started to give Ms KH a hug and kiss at the end of consultations;
179	In the 21 October 2015 letter referenced above, Dr Datta specifically denied that he used to hug and kiss KH at the end of the consultations. Mr Perry wrote:
He denies that he hugged and kissed the patient at any time.
180	In her 27 March 2015 statement, KH said:
5. 	After I had seen Dr Datta a few times he started to give me a hug and kiss at the end of a consultation. He also used to tell me I was very sexy. I found this a little bit creepy but innocent enough and didn’t make a complaint about it.
181	KH gave evidence that Dr Datta would periodically give her a kiss on the cheek and a hug. She said that no doctor had done that before.
182	We are satisfied that Dr Datta did hug and kiss KH as described by her. Under cross-examination, it was not put to KH that this did not take place. KH’s evidence on this was not challenged even though in Dr Datta’s closing submissions pertaining to CR it was stated, without leading any evidence to support the contention, that Dr Datta does not hug women for cultural reasons.
(iv) 	Dr Datta advised Ms KH on a number of occasions that she was 'very sexy', or said words to this effect;
183	In her evidence, KH adopted her statement and confirmed that Dr Datta would say “hello sexy” when she entered his office. In her evidence, she expressed her view regarding the alleged conduct that she “didn’t think it was right”. 
184	Although, in the 21 October 2015 communication referenced above, Mr Perry wrote that Dr Datta specifically denied that he told KH that she was “very sexy”, under cross-examination KH was not challenged on this particular. 
185	We accept that the conduct as described by KH took place.
186	We again agree with the observations of Associate Professor Odell that this is unacceptable sexualised behaviour which is completely inappropriate for any medical practice.
(v) 	at a consultation in or around March 2014:
(A) 	Ms KH attended Dr Datta for the purpose of confirming her pregnancy;
187	This is not contentious. The notes of Dr Datta pinpoint the actual consultation date as 2 April 2014 and the parties addressed this and the following particulars on this basis.
188	KH gave evidence that she recalled Dr Datta confirming her pregnancy after a positive home pregnancy test. KH also gave evidence that the clinical notes taken by Dr Datta on or around 2 April 2014 accurately reflected the general discussion which took place in relation to the pregnancy and the various seemingly appropriate gynaecological questions asked by Dr Datta of KH. 
189	KH further agreed in her evidence that the discussion which took place around her pregnancy was friendly. She gave evidence that she understood that there was a clinical need for multiple appointments to subsequently take place because of risk factors based on her age. KH was satisfied that the external referrals to a obstetrician-gynaecologist written for her by Dr Datta were appropriate.
(B) 	Dr Datta directed Ms KH to take a urine test;
190	KH gave evidence that she recalled being asked to take a urine test at the 2 April 2014 consultation. We accepted her unchallenged evidence which accords with the clinical notes and the closing submissions of Dr Datta in which Dr Datta agrees that such a test did take place.
(C) 	Dr Datta directed Ms KH to remove her shorts and underpants so that he could conduct an examination of her genitals;
191	In her statement dated 27 March 2015, KH said:
7. 	After the urine test Dr Datta asked me to remove my shorts and underpants although he didn’t tell me why this was necessary. It was my first pregnancy and I didn’t think anything was unusual.
8. 	Dr Datta told me to hop up on the table in the consultation room. I was lying on the table on my back with my knees up on my chest. My thighs were slightly apart, however, Dr Datta told me to relax and let my legs fall apart. I was quite tense and Dr Datta pushed my legs apart a little.
9. 	Dr Datta had a rubber glove on his hand and he used this hand to touch my genitals. I let him poke around my genitals, moving the skin around the entrance to my vagina. Dr Datta did not penetrate my vagina, he only touched the outside. Dr Datta wasn’t touching me in a sexual way, it felt like he was checking if things were normal. This didn’t go on for very long and I thought it had hardly been worth taking off my shorts and underpants.
10. 	Dr Datta took the glove off and I put my shorts and underpants back on. Dr Datta congratulated me on my pregnancy. He gave me the usual hug and kiss as I left the consultation room. I didn’t think anything wrong had happened and went home.
192	Once again, the particulars of this allegation were responded to on 21 October 2015 by Mr Perry, solicitor, who wrote that Dr Datta denied he conducted a vaginal examination on this patient.
193	Mr Perry’s communication made the same comment in respect of each particular alleging that Dr Datta had conducted a vaginal examination.
194	In closing submissions, Dr Datta’s defence, after outlining that he had a discussion with KH, said:
88.	…
d. 	Given his findings the respondent had no reason to undertake a vaginal examination of KH at all. The respondent denies that he undertook a vaginal examination on 2 April 2014 or at any other consultation.
89 	The Respondent otherwise refers to the medical records [which] show that:
i. 	On 2 April 2014 KH attended and had her pregnancy confirmed;
ii 	On 7 April 2014 she attended again and was referred to a specialist – there was no record of a vaginal examination having taken place – or any suggestion that one was clinically indicated;
iii	On 2 May 2014 she attended an ante natal review and referred to a gynaecologist;
iv 	On 15 July 2015 she attended a consultation for vomiting and anti-vomiting medications were prescribed.
90. 	The medical record is the only contemporaneous account of the attendances that KH has had with the Respondent. It is important for the Tribunal to have regard to what is not recorded in the medical record and that is of any indication for a vaginal examination.
195	We understand Dr Datta’s position to be that he never conducted a vaginal examination of KH. At no time, however, was it put to KH during cross-examination that the examination(s) as detailed by her did not take place. Rather, during cross-examination, KH was taken through a range of dates according to the records kept by Dr Datta and asked whether a vaginal examination took place on each of the specified dates. Although KH was unsure on a date by date basis whether a vaginal examination took place at each dated appointment, she gave repeated evidence that vaginal examinations did take place and that they took place on more than one occasion. 
196	Although KH was vague as to the precise dates of each such examination, she gave evidence that there always was a physical examination during the course of her pregnancy. 
197	Under cross-examination, KH was asked and answered a series of questions about the discussions that took place during the consultations, and the courteous tone of the consultations. She agreed that the consultations were courteous. It was not, however, at any stage put to KH that no physical examination of her took place.
198	The real challenge to KH’s evidence was left to submissions around the likelihood of such an examination taking place. 
199	Dr Datta urged us to view the contemporaneous medical records which do not record any vaginal examination of KH taking place at all. He emphasised that there was no clinical need for such an examination to take place. 
200	There is no dispute between the parties that there was not any clinical need for a vaginal examination to take place. In circumstances where Dr Datta readily concedes that such an examination would not be clinically justifiable, it is not surprising that there are no notes recording such an examination.
201	We agree there was not any such need. We agree with the observations of Associate Professor Odell that there was no reason for any genital examination of the type described by KH to be performed. Any such examination would most certainly have required an explanation and appropriate consent. 
202	In her statements, KH described the lack of physical examinations when she attended upon her obstetrician-gynaecologist. It was during a discussion with her obstetrician-gynaecologist that she was told that physical examinations are not standard procedure during pregnancy check-ups.
203	We accept the evidence of KH.
204	KH was a calm witness who, although sometimes visibly upset during her evidence, repeatedly stated that the vaginal examinations as described by her took place. Her written statement, which she adopted in her evidence, is very clear on the sequence of events of the first pregnancy consultation including the vaginal examination, for which she gives very specific detail. 
205	We emphasise that it was never put to KH that no vaginal examination of her took place. 
206	Instead, the emphasis during cross-examination was placed on KH not voicing concern about inappropriate behaviour. 
207	KH agreed that she had not. 
208	During cross-examination, KH also agreed that she had not voiced any concern about inappropriate behaviour to Dr Datta. She said:
No I did not. I honestly felt his approach was bizarre because no doctor hugs and kisses goodbye even on the cheek. He was over-familiar but I didn’t feel threatened until I found out he was doing examinations that were not required. This was very unnerving.
209	She gave a very explicable reason. She gave evidence that, although she thought Dr Datta was overly familiar, she did not feel threatened by him until she came to understand that the physical examinations of her were neither necessary nor clinically required. She gave evidence that this was when she became unnerved.
(D) 	Dr Datta did not advise Ms KH why an examination of her genitals was necessary or obtain her informed consent;
210	In [8(a)] of her 8 September 2015 statement, KH said:
I confirm Dr Datta did not advise me as to why an examination of my genitals was necessary …
211	Under cross-examination KH was not challenged at all on this part of her evidence, possibly because Dr Datta denied such an examination took place. Nevertheless, given our acceptance of KH’s evidence with respect to the previous particular, we also accept that KH was not told why the examination was necessary or provided with the opportunity to give informed consent to it.
(E) 	Dr Datta did not offer Ms KH any privacy whilst she removed her shorts or underwear;
212	In [8(b)] of her 8 September 2015 statement, KH said:
I do not recall Dr Datta offering me any privacy when he asked me to remove my shorts and underwear, or being offered a towel or blanket to cover any part of my body when I was laying on the examination bed …
213	Under cross-examination KH was not challenged at all on this part of her evidence, possibly once again because Dr Datta denied such an examination took place. Nevertheless, given our acceptance of KH’s evidence with respect to the previous particulars, we also accept that KH was not offered any privacy covering when she lay on the examination bed.
(F) 	Dr Datta did not offer Ms KH a modesty blanket or the like to cover any part of her body when she lay on the examination bed;
214	We repeat our comments made in relation to particular (E). 
(G) 	Dr Datta told Ms KH to relax and let her legs fall apart, or said words to this effect;
215	This particular reflects [8] of the statement of KH dated 27 March 2015 which she adopted in her evidence before us, and which was not challenged during cross-examination. We accept the unchallenged evidence of KH that this occurred.
(H) 	without any warning and/or requesting her consent, Dr Datta pushed Ms KH's legs apart; and
216	We repeat our comments made in relation to particular (G).
(I) 	without any warning and/or requesting her consent, Dr Datta touched Ms KH's genitals with his gloved hand, including moving the skin around the entrance to her vagina;
217	This particular reflects [9] of the statement of KH dated 27 March 2015 and confirmed in her statement dated 8 September 2018 which she adopted in her evidence before us. We accept the unchallenged evidence of KH that this occurred.
218	Although in the 21 October 2015 communication Mr Perry wrote that Dr Datta specifically denied that Dr Datta touched KH’s genitals during subsequent consultations, this evidence was not challenged by Dr Datta during cross-examination. At no stage was it put to KH that the conduct did not occur. 

(vi) 	Dr Datta advised Ms KH that she should attend him monthly for the purpose of monitoring her pregnancy, due to her age; 
219	In her 8 September 2018 statement, KH said at [9]:
as detailed in paragraph 12 of my March 2015 statement, I initially attended Dr Datta at regular intervals in relation to my pregnancy. The reason for the regular consultations was that Dr Datta advised me that, due to my age, I needed to attend regular consultations with him for the purpose of monitoring my pregnancy.
220	This evidence was not challenged by Dr Datta during cross-examination.
221	Once again, we accept the unchallenged evidence of KH.
(vii) 	during every regular consultation throughout Ms KH's pregnancy (but for that outlined at paragraph (xi) below), and without providing any advice as to why it was clinically necessary or justified to do so, Dr Datta performed an examination of Ms KH's genitals;
222	As we have set out above, Dr Datta through his lawyers specifically denied that he touched KH’s genitals during subsequent consultations.
223	In her 8 September 2018 statement, KH continued at [9]:
At each consultation, Dr Datta performed an examination of my genitals in the same manner as outlined at paragraph 8 above.
224	This accorded with her 27 March 2015 statement where KH said:
[12] 	I saw Dr Datta at regular intervals in relation to my pregnancy. Every time I saw him he asked me to take off my pants and underpants and lie on the bed. Dr Datta would touch my genitals as he had during the consultation when I was six weeks pregnant. I believe this took place about three times and Dr Datta never told me why this was necessary.
225	This evidence was not challenged by Dr Datta during cross-examination. We accept that the conduct took place as described by KH.
(viii) 	on each of these further occasions when Dr Datta examined Ms KH's genitals, he did not offer Ms KH any privacy whilst she undressed or any modesty blanket or the like to cover any part of her body when she lay on the examination bed;
226	This evidence, which we have already discussed, was not challenged by Dr Datta during cross-examination.
227	Once again, we accept the unchallenged evidence of KH.
(ix) 	during a consultation on a date unknown during the period in question, Dr Datta advised Ms KH that she should 'tidy up downstairs';
228	In her 27 March 2015 statement, KH said:
[14] 	During one of my consultations with Dr Datta I remember he had just finished touching my genitals. Dr Datta was standing in front of me and I was putting my clothes back on. He said to me that I should “Tidy up downstairs” Dr Datta was looking towards my pubic hair. I felt Dr Datta was telling me I should remove some of my pubic hair to make that part of my body more attractive.
[15] 	I found Dr Datta’s comment about my pubic hair to be inappropriate. I felt he had crossed the line from overly friendly to inappropriate. I started to think he was a pervert.
229	In her 8 September 2018 statement, KH said at [10]:
In relation to paragraph 14 of my March 2015 statement, I confirm that after Dr Datta performed an examination of my genitals in one of the regular consultations, he told me that I should “tidy up downstairs”. When Dr Datta said this to me, I felt really embarrassed and that this comment was inappropriate.
230	In the 21 October 2015 communication, Mr Perry wrote that Dr Datta specifically denied that Dr Datta made inappropriate comments about KH’s pubic hair. 
231	Once again, this evidence was not, however, challenged by Dr Datta during cross-examination of KH. We accept that Dr Datta made the comment attributed to him by KH.
(x) 	during a consultation on a date unknown during the period in question, Dr Datta gave Ms KH unsolicited advice about sex, advising her that she should not 'pump too hard';
232	In her 27 March 2015 statement, KH said:
[16] 	On another occasion Dr Datta gave me unsolicited advice about sex. He advised that when having intercourse we shouldn’t “… pump too hard” I thought his comment was very unprofessional.
233	In the 21 October 2015 communication, Mr Perry wrote that Dr Datta specifically denied that Dr Datta gave unsolicited advice about sexual practices to KH. 
234	In her 8 September 2018 statement, KH said at [11]:
As detailed in paragraph 16 of my March 2015 statement, on another occasion, Dr Datta gave me unsolicited advice about sex. Specifically Dr Datta advised me that I should not “pump too hard”. I recall these were his exact words, and, as he said them, he made a hand gesture at the same time. He made a fist with one of his hands, held it up and moved it in a pushing motion. Although I considered that Dr Datta’s comment on this occasion was advice, I also considered it was entirely inappropriate, especially as I had not raised any issues regarding sex with him in this consultation.

235	In [16] of KH’s March 2015 statement, she said:
On another occasion Dr Datta gave me unsolicited advice about sex. He advised that when having intercourse we shouldn’t “… pump too hard.” I thought his comment was very unprofessional.
236	Once again, this evidence was not challenged by Dr Datta during cross-examination of KH. It was not put to KH that Dr Datta did not say this. KH was not questioned about this aspect of her evidence at all.
237	It was further not put to KH that she may have misunderstood or misinterpreted Dr Datta. We accept that Dr Datta did give KH the unsolicited advice.
(xi) 	during Ms KH's final consultation with Dr Datta during the period in question:
(A) 	Ms KH advised Dr Datta that an examination of her genitals was not required;
238	In her 27 March 2015 statement, KH said:
[19] 	I had just walked into the consultation room and said to Dr Datta something along the lines of “I’ve just been to see the baby doctor, we don’t need to look downstairs”. I was telling Dr Datta that he didn’t need to touch my genitals this time.
239	This evidence was not challenged by Dr Datta during cross-examination and we accept that KH did advise Dr Datta that the examination was not necessary. 
240	KH was however cross-examined about why she returned to see Dr Datta. She gave evidence that she came back to the clinic because her morning sickness was very bad. She said that she was sick of being sick and it was easy to make an appointment with Dr Datta. She said that she wanted to tell reception that she did not want to see Dr Datta but she was told he was the only one available.
(B) 	Dr Datta asked Ms KH 'how are your boobs?' and, without any warning and/or requesting her consent, grabbed her left breast with his hand;
241	In her 27 March 2015 statement, KH said:
20. 	We were both standing up in the consultation room facing each other. I had just finished telling Dr Datta there was no need to look downstairs when he said “How are your boobs?”
21. 	At the same time Dr Datta reached out with one hand and grabbed my breast. Dr Datta wasn’t rough when he grabbed my breast and he didn’t hurt me. He used an open hand like he was picking up a tennis ball. He put his hand on my breast and squeezed. It was a quick squeeze, like he was honking a clown’s horn.
242	In the 21 October 2015 communication, Mr Perry wrote that Dr Datta specifically denied that he examined KH’s breasts or otherwise inappropriately touched KH’s breasts.
243	In her 8 September 2018 statement, KH said at [14]:
as I walked into the room, I advised Dr Datta that an examination of my genitals was not required as I had recently been to my obstetrician. Upon hearing this, and before I had even sat down, Dr Datta came over to me and asked “how are your boobs” whilst he grabbed my left breast with one hand and squeezed it. I had not made any reference to my breasts, nor reported any symptoms relating to my pregnancy prior to Dr Datta grabbing me.
244	This evidence was again not challenged by Dr Datta during cross-examination. We accept that the conduct took place as described. We agree with the observations of Associate Professor Odell that the description of the touching is not in accordance with the proper procedure for a breast examination.
(C) 	without any warning and/or requesting her consent, Dr Datta squeezed Ms KH's left breast; and
245	In the 21 October 2015 communication, Mr Perry wrote that Dr Datta specifically denied that he inappropriately touched KH’s breasts.
246	This evidence was not, however, challenged by Dr Datta during cross-examination. The evidence of KH was instead bolstered by her oral evidence. We accept that, without any warning and/or requesting her consent, Dr Datta squeezed KH’s left breast.
(D) 	without any warning and/or requesting her consent, Dr Datta pulled the waist band of Ms KH's shorts and underwear away from her body, so that he could see Ms KH's pubic area;
247	In her 27 March 2015 statement, KH said:
[22] 	Dr Datta then said to me “Have you got the line?” He was standing about half a metre in front of me and pulled the waist band of my shorts and underwear away from my body. My clothing was pulled away from my body so that Dr Datta could see my pubic area. 
[23] 	Dr Datta told me that the line could relate to some form of deficiency but I felt he just wanted an excuse to look at my pubic area.
248	In her 8 September 2018 statement, KH said at [14]:
Dr Datta then asked me “have you got the line”, as he pulled the waistband of my shorts and underwear away from my body so that he could see my pubic area. I felt this was all very wrong, and not want to ever attend Dr Datta again after this consultation and, accordingly, did not do so.
249	In the 21 October 2015 communication, Mr Perry wrote that Dr Datta specifically denied that he pulled KH’s shorts and underpants away from her body exposing her pubic area.
250	This evidence was not, however, challenged by Dr Datta during cross-examination. We accept the evidence of KH as to what took place. We agree with the observations of Associate Professor Odell as set out above.
Factual Findings – Allegation 3
251	Mr Teng emphasised the serious nature of the allegations made by KH.
252	KH gave evidence in which she acknowledged that she knew she was reporting a serious matter and said that she told AHPRA of her important recollections. 
253	The allegations are extremely serious.
254	Nevertheless, the particulars of the allegations were largely unchallenged during the course of the cross-examination of KH.
255	We accept that the overfamiliarity described by KH progressed to the inappropriate examinations as described by her to the further conduct which was barely even disguised as having clinical legitimacy.
256	Mr Teng emphasised the delay in the making of any complaint by KH.
257	We are mindful of the delay of some five months before KH reported the matter to social workers at the hospital. We accepted her evidence that she did not initially realise that the examinations of her were not standard practice during pregnancy.
258	We are also mindful and accept that, in her 27 March 2015 statement, KH said:
27. 	[named police officer] made several appointments for me to make a formal statement. I never kept these appointments. I had just had a baby and was struggling to cope. 
259	Her statement, which she repeated in her evidence before us, is consistent with the notes recorded by police when they were trying to make contact with KH for the purposes of making a statement. The notes reflect that KH told police that she was going through an emotional time due to concerns about the wellbeing of her baby upon whom she wanted to give her full focus.
260	We are also mindful of the fact that she was thereafter not co-operative with Victoria Police. KH gave evidence that she did not sign her police statement because she had depression and was not taking visitors and did not want to continue with her complaint at that time. She gave evidence that she was not even seeing her own family.
261	We found KH to be a considered witness who did not seek to embellish her evidence in any way. She readily conceded that she had no other written record and was recalling the events described by her from memory. KH conceded there was a delay in making a formal complaint then following through with it. KH gave evidence that she ultimately decided to proceed with her complaint in order to protect other vulnerable patients. KH gave evidence that she works with people with disabilities and that she felt the need to protect their interests by reporting the conduct when she felt ready to do so. Although there was some delay in the reporting of these matters, we accepted KH’s explanations surrounding the delay. We also accept that KH had a sound recollection of the events as described by her.
262	We accept that KH’s pregnancy took precedence over the complaint but that, ultimately, she determined to speak with AHPRA because she was concerned that other people, particularly those with disabilities, could be disempowered to speak such that she had a duty to do so.
263	We are satisfied that the events as described by KH took place as described by her.
Allegation 4 – AN
264	On 1 February 2016 the Board received a notification from AN in relation to Dr Datta’s alleged conduct with her during 2013. AN’s last consultation with Dr Datta took place on 25 September 2013.
265	It is alleged by the Board that, between in or around 2012 and in or around September 2013, at his consulting rooms at the relevant clinic, Dr Datta:
(i)	asked Ms AN inappropriately personal questions and/or attempted to engage her in conversations about her private life without it being clinically necessary or justified to do so;
(ii)	disclosed details of his private life without it being clinically necessary or justified to do so; and
(iii)	engaged in sexualised and/or inappropriate conduct towards Ms AN.
266	Once again, the particulars were based on the statements of AN dated May 2016 and 18 September 2018 which were adopted by her at the hearing before us.
267	In written communication to the Board from Dr Datta dated 6 September 2016, Dr Datta adamantly denied that he had crossed any professional boundary.
268	He agreed that he checked AN’s temperature, pulse and blood pressure at almost every visit.
269	In his communication, Dr Datta was critical of the delay in AN reporting the alleged conduct.
270	Dr Datta suggested that, because AN did not immediately complain to her treating psychologist and/or the police and/or AHPRA and/or the medical centre, we should be satisfied that the allegations did not happen at all.
271	There was a significant delay before AN made her notification to AHPRA and this delay was the focus of considerable criticism by Mr Teng who stressed the caution with which we should view AN’s evidence.
272	We are mindful of the delay and its potential to have an impact on the recollections of a witness. We repeat our earlier observation that people react differently to sexualised conduct and that, for complex reasons, delay in the reporting of sexualised conduct is not an uncommon occurrence. 
273	The notification notes taken by an officer from AHPRA refer to AN’s explanation for the delay. She is recorded as saying that Dr Datta’s conduct had affected her and that it was only after having received counselling that she had the courage to make the notification.
274	The particulars include, but are not limited to:
(i) 	at all material times, Dr Datta was a registered medical practitioner;
275	This is not contentious.
(ii) 	Ms AN first consulted with Dr Datta at [the relevant clinic] in or around 2012;
276	This is not contentious.
(iii) 	throughout numerous consultations, Ms AN confided in Dr Datta that she was experiencing stress and anxiety;
277	This is not contentious. In her evidence before us, AN readily agreed that she had suffered from struggles in life for which she had sought help since childhood. She gave evidence of the long-standing nature of those struggles (some of which had arisen because of the sexual misconduct of others).
(iv) 	during consultations on various dates during the period in question, Dr Datta asked Ms AN personal questions, namely:
(A) 	where Ms AN lived;
(B) 	whether Ms AN had a partner;
(C) 	what Ms AN did in her spare time; and
(D) 	whether Ms AN had a social life;
278	In her statement dated 18 September 2018, adopted by her in her evidence, AN said at [8]:
As detailed at paragraphs 7 to 10 of my May 2016 statement, after a few consultations, Dr Datta began to ask me questions about my personal life. These questions occurred over a couple of consultations. These questions included where I lived and how far away it was, whether I had a partner, what I did in my spare time and whether I had a social life. I responded to these questions fairly neutrally, in that I was honest and answered them without divulging a great amount of detail about my life.
279	AN gave evidence that Dr Datta asked her about who she lived with and whether she had a partner. 
280	We accept that these interactions occurred. 
281	During the AHPRA investigation, Dr Datta responded to this particular in written communication dated 6 September 2016.
282	Dr Datta said:
As she explained her difficulties of mental instability, I needed to know more about suicidal homicidal tendencies etc. I adamantly believe nothing crossed over the professional boundary.
283	During the hearing, it was not suggested on behalf of Dr Datta that the questions were not asked, or the conversations recalled by AN did not take place. 
284	Rather, in submissions, Mr Teng contextualised the conversations, submitting that conversations about where a person lives, their relationship status and details of such relationships and social activities are reasonably common in the context of mental health assessments conducted by general practitioners. 
285	Dr Datta pointed to the oral evidence given by Associate Professor Odell in this regard, who agreed in his evidence before us that, particularly when mental health assessments are taking place, the tone will often be conversational in order to elicit relevant information. Associate Professor Odell further agreed that questions about social support and friendship groups were relevant to suicide risk and risk of harm and that it would be appropriate to talk with a patient living alone about this as well as their significant relationships.
286	AN agreed whilst giving her evidence that she spoke with Dr Datta about her mental health and that Dr Datta provided her with support. Although she could not recall any specific discussion about suicide, she also agreed Dr Datta may have asked her if she had suicidal thoughts. She agreed that a mental health care plan was prepared for her by Dr Datta and that he referred her to a psychologist because of her various issues.
287	AN agreed she was depressed and that she had been seeing Dr Datta regularly. She readily agreed with the proposition that Dr Datta provided support; listened to her concerns; explained medical concepts and would talk in an understanding manner.
288	She also agreed that Dr Datta provided support in relation to the traumatic incidents occurring in her life at the time.
289	In her evidence, AN agreed that for some time there was nothing notable about the consultations.
290	We observe and agree with the submissions made on behalf of Dr Datta that the line of questioning or engagement in and of itself would not be unusual and/or necessarily inappropriate given AN’s personal circumstances as described by her. 
291	We note, however, that Psychologist A who saw AN as a client during the period 23 August 2013 to 11 October 2013 seemingly held a vastly different view.
292	On 8 September 2021, AHPRA wrote to Psychologist A seeking the client records of AN and asked her to:
Provide in writing any recollection you have of disclosures made by [AN] relating to her concerns about a medical practitioner.
293	Psychologist A replied in a letter dated 20 September 2016.
294	She said:
During this patient’s first session she made very clear disclosures regarding Dr Datta’s harassment of her to reveal exactly where she lived. He claimed that “she needed him to visit her” due to being “alone and lonely”. It was clear that the visit was being proposed for personal reasons and not for any specific medical need. She felt very worried about him being able to use her medical records to find out where she lived, and she felt concern for her safety and security. I strongly encouraged her to notify this concern to [the relevant clinic] and AHPRA as well as the police. I notified [the relevant clinic] of this disclosure however I received no response. I also provided her with the AHPRA paperwork in order to make a complaint. She reassured me that she intended to submit a complaint.
295	In her correspondence, Psychologist A put her own very strong interpretation on the reasons for why Dr Datta may have been asking AN these questions. 
296	There is, however, nothing in Psychologist A’s notes that reveal why she did so.
297	We read the clinical notes of Psychologist A dated 22 August 2013 to 11 October 2013. They are very brief. Dr Datta is only specifically mentioned twice. 
298	In a note dated 22 August 2013, AN discussed the loss of her job with Dr Datta. Reference is also made to the loss of her brother to a heart attack and loss of parents (traumatic death) and there is a note “felt scared” which appears in the general area of the discussion about the loss of her job and her medical condition but arguably also in the vicinity of the notation:
(Dr Datta asked her address and to visit) …

299	A further notation made by Psychologist A dated 16 September 2013 is unclear as to whether it is a “note to self” or clinical note, however, reference is made to AN in the following terms:
Concern re this pt – her GP who is part of her limited social and emotional support is harassing her to visit her “because she was lonely and alone” and not for medical reasons. Abuse of medical relationship?
Notified [the relevant clinic] re this and other pt disclosures regarding inappropriate sexual misconduct by Dr Datta
Decision to cease practising at [relevant clinic] confirmed – but still no response from them?
Suggested she contact AHPRA asap
Alternate GP?
300	AN herself was unable to give anything in the way of detail about this, having very little recollection of any discussion she had with Psychologist A about Dr Datta. 
301	When taken to the clinical notes of Psychologist A dated 22 August 2013, AN agreed under cross-examination that, during a consultation with Psychologist A, she may have said Dr Datta was a bit strange or words to that effect and that, when Psychologist A asked her how she felt about Dr Datta, she may have replied he was a bit quirky because of the questions he asked about her personal life, but she took it no further than that.
302	AN simply could not recall any detail of the discussions she had with Psychologist A.
303	When AN was pressed about this during cross-examination, she said:
[Psychologist A] did not see me much – I moved to other care givers and told them in some detail about what happened to me.
304	We note that none of the other care givers were called to give evidence. 
305	What is clear, however, is that Psychologist A, without seemingly exploring the context in which the discussions may have taken place, encouraged AN to file serious complaints against Dr Datta, even on what appears to be the limited material before her. As we have already noted, we consider AN’s living arrangements would have had clinical relevance. The notations in the clinical notes as to the (traumatic) death of AN’s parents and sudden death of her brother are relevant in this regard. 
306	We are very concerned, given the tone of Psychologist A’s response to AHPRA and the notes, that she may have flavoured AN’s understanding of what was taking place during the consultations with Dr Datta in a negative way. 
307	We make similar observations to those we made in relation to complainant BR. It would have to leave an impression in the mind of a patient about the integrity of their treating doctor when the psychologist to whom they have been referred quickly encourages the patient to report the doctor to authorities.
308	It is clear from the balance of Psychologist A’s 20 September 2016 letter to AHPRA that Psychologist A had spoken with many people about Dr Datta. The letter continues:
At this time 22 August 2013 I had already ceased leasing [a] room at [the relevant clinic] due to Dr Datta’s conduct. Another GP [named] also relocated from the clinic due to his inappropriate conduct. There have been several disclosures from other patients which have included:
FEMALE PATIENTS
1. 	Whilst taking blood pressure strategically placing the equipment so that the patient’s hand is right next to his penis
2. 	Inappropriately touching them
3.	Being asked to undress for a complaint which was not related to that body part
MALE PATIENTS
1.	Being told that their MHCP [Mental Health Care Plan] was too expensive for him to prepare and that he should not have to do it for financial reasons
2.	Being treated with very aggressive behaviour which resulted in intense distress by their attendance with their first visit for treatment where they were noticeably distressed by the conduct.
OTHER PATIENTS
1.	Putting his fingers into their ear without any gloves or instrument
2.	Other unhygienic practices which would cause a risk of cross infection
STAFF
He has actively sexually harassed reception staff, by touching and groping, one of whom now works with me. I am sure she would be prepared to talk with you. His behaviour appears to be predatory in nature. 
CLINIC OBSERVATIONS
I have witnessed Dr Datta putting his fingers in the staff room sugar bowl to put sugar in his coffee just after he has seen a patient, presumably without washing his hands. He also wanted to kn[o]w my marital status and exactly where I lived however I chose not to reveal this information.
I was shocked to learn when I recently visited the other doctors at the clinic, that he still practices at the clinic, and is still seeing female patients, some with a chaperone?
[The relevant clinic] Head Office have been repeatedly notified of the above however I am unsure what they have done to report matters formally. All patients have been empowered to report it to AHPRA with the appropriate paperwork and I also sent in my own concerns with no response to date.
309	We observe that Psychologist A had clearly formed an unfavourable opinion of Dr Datta. She has demonstrably had her own personal issues with Dr Datta. 
310	It is further clear from her letter to AHPRA that Psychologist A has been prepared to share those views with multiple people/organisations on multiple occasions. She expressed strong views to BR, other staff members and various patients. 
311	It is also clear that Psychologist A has actively encouraged other patients and individuals to make reports about Dr Datta. 
312	Psychologist A was not called by the Board to give evidence. No explanation was given for this. Dr Datta reminded us of the well-established rule in Jones v Dunkel [1959] HCA 8; 101 CLR 298 and asked us to draw the inference that the evidence of Psychologist A would not assist the Board. 
313	Whilst of course it would arguably be open for us to find that Psychologist A is an individual who, having heard accounts from multiple people, is very concerned about the conduct of a general practitioner in her local municipality, we remain strongly mindful of the obligation placed upon us to ensure that the evidence of any complainant is truly independent and not the product of suggestibility.
314	We are concerned, and we will continue to flesh out this concern as we address the further particulars in relation to this complainant, that the evidence of AN was or may have been contaminated through her consultations with Psychologist A.
(v) 	In response to Ms AN advising Dr Datta, in response to a question from him, that she lived on a farm, Dr Datta stated that Ms AN could bring him in some lamb if she liked;
315	In both her statement dated 21 May 2016 and at [8] of her 18 September 2018 statement, AN said:
However, Dr Datta then made comments in response, including that I could bring him lamb from my farm …
316	This evidence was not challenged by Dr Datta during cross-examination.
317	We accept the evidence of AN that such a conversation may have taken place. 
318	We also agree with the observations of Associate Professor Odell that a request for farm produce in the context of a doctor-patient relationship is not usually appropriate. Without, however, a greater understanding of the context surrounding this particular, we are not prepared to find that the conduct in and of itself amounts to unprofessional conduct or professional misconduct, for reasons which we will expand on as we discuss the other particulars. 
(vi) Dr Datta disclosed details of his personal life to Ms AN, namely: 
(A) 	that he lived a lonely life; and 
(B) 	his wife lived in Melbourne;
319	In both her statement dated 21 May 2016 and at [8] of her 18 September 2018 statement, AN said Dr Datta said:
that he lived a lonely life (as his wife lived in Melbourne) …
320	AN said Dr Datta mentioned that his wife lived in Melbourne. In her evidence before us, AN said she gave Dr Datta the benefit of the doubt – thinking he was just finding out about her. She said that she therefore continued to consult with him. 
321	If such a conversation did take place, we too are prepared to give Dr Datta the benefit of the doubt.
322	Whilst we make the observation that usually a doctor should be very careful about revealing details of his own personal life during a professional consultation, we have no contextual understanding of how or why Dr Datta is said to have discussed these matters with AN.
323	In his response to the AHPRA investigator dated 6 September 2016, Dr Datta denied any such conversation took place and suggested AN may have become aware of his personal circumstances through Psychologist A or other sources.
324	We consider there is a real possibility that AN became aware of Dr Datta’s personal circumstances innocently through discussions aimed at drawing AN out. We also consider that, after the passage of some years, AN’s memory may have become confused as to the circumstances in which she came to know of Dr Datta’s personal circumstances and the interpretation to be given to having such knowledge.
325	We are not persuaded that this particular did not, or could not have, come about as a result of contamination or suggestibility.

(vii) 	in response to Ms AN advising Dr Datta, in response to a question from him, that she sometimes went out with friends to Hollywood's Pizza on Friday nights, Dr Datta said that he would come with Ms AN, but that Ms AN would have to come to [the relevant clinic] at 6.00pm to get him; and
(viii) 	Dr Datta advised that Ms AN could not tell anyone about going to Hollywood's Pizza together as he would get in trouble;
326	In her statement dated 21 May 2016, AN said at [10]:
On another occasion Dr Datta asked me if I was going to Hollywood’s Pizza on Friday night. Dr Datta said that he would come with me but I have to come to the clinic at 6pm to get him, but I couldn’t tell anyone or he would get in trouble. I did not meet him at the clinic on Friday. When I went to work after this incident I told my work colleague … I asked her if this seemed normal because it didn’t seem normal to me.
327	In both her statement dated 21 May 2016 and at [8] of her 18 September 2018 statement, AN continued:
[He] asked whether we could go to Hollywood’s Pizza together on Friday night.
328	AN gave evidence that it was when Dr Datta suggested he would come to pizza nights that she felt Dr Datta was straying somewhat into personal territory. She gave evidence that, at the time, she was told by Dr Datta that she should not tell anyone. She thought this was a bit strange and mentioned it to a work colleague.
329	We did not hear evidence from the work colleague, nor did we read a statement prepared by or on behalf of the work colleague.
330	Whilst the evidence of AN was not specifically challenged during cross-examination, and we agree with the observations of Associate Professor Odell that such conversations as described by AN would be inappropriate as part of a doctor-patient interaction, we consider the uncorroborated evidence of AN to be an unsafe basis upon which to find Dr Datta has engaged in unprofessional conduct or professional misconduct. We do so being very mindful of our findings in relation to the next two particulars involving AN’s last two consultations with Dr Datta. 
331	We turn then to a discussion of AN’s final two consultations with Dr Datta.
332	Confusion arose at the hearing as to the dates of the last and second last consultations. 
333	In due course it was agreed by the parties that 19 August 2013 was, as suggested by Mr Teng, the date of AN’s second last consultation with Dr Datta and 25 September 2013 was the date of the last consultation. The particulars of the conduct alleged to have taken place on those dates are as follows.
(ix) 	during Ms AN's second last consultation with Dr Datta, Dr Datta:
(A) 	stood over Ms AN to take her blood pressure;
(B) 	wrapped the blood-pressure cuff around Ms AN's outstretched right arm;
(C) 	moved his hip and groin areas to where Ms AN's hand was, causing contact between his groin and Ms AN’s hand;
(D) 	said words to the effect of ‘yep that's okay’; and
(E) 	failed to convey to Ms AN her blood pressure results;
334	In her statement dated 21 May 2016, AN said at [12]-[13]:
12. 	On the second last consultation Dr Datta took my blood pressure. Dr Datta sat behind his desk which is up against a wall. There is a chair at the end of the desk to his right where the patient sits. Dr Datta went to take my blood pressure and my right arm was closest to the desk, mostly leaning on the desk. Dr Datta wrapped the binder around my right arm and stood up in front of me. He bumped into my hand with his groin. I was shocked and quickly moved my hand away. I gave him the benefit of the doubt as I thought he might have positioned himself wrong. Dr Datta said “Yep, that’s okay”, or something similar.
13. 	The consultation moved onto the fact that Dr Datta wanted me to come back again so he could check on me. I said that I would make another appointment. That was the end of the consultation and it ended normally. I did not get a blood pressure reading from Dr Datta.
(x) 	during Ms AN's last consultation with Dr Datta during the period in question, Dr Datta:
(A) 	stood over Ms AN to take her blood pressure;
(B) 	wrapped the blood-pressure cuff around Ms AN's outstretched right arm;
(C) 	moved his hip and groin areas to where Ms AN's hand was, causing contact between his groin and Ms AN’s hand;
(D) 	after Ms AN moved her right hand away to break contact with Dr Datta's groin, took Ms AN's right hand with his spare hand, and brought it back into contact with his groin;
(E) 	said words to the effect of ‘yep, yep that’s okay’; and
(F) 	failed to convey to Ms AN her blood pressure results;
335	In her statement dated 21 May 2016, AN said of this consultation at [14]-[17]:
14. 	The last consultation where I saw Dr Datta was in September 2013. He again took my blood pressure. I was sitting down on the chair and he was standing over me. My right hand was on the desk and he was putting the binder on the top of my arm. My right hand was to the right of his left leg. Dr Datta moved his hip and groin area to where my hand was. I got the fright of my life and moved my hand away. Dr Datta placed his hand on my hand and pulled my hand onto his groin.
15. 	There is no doubt in my mind that this was deliberate. My mind was racing and I felt taken advantage of. Dr Datta took my blood pressure and said ‘yep, yep that's okay’, or something similar.
16.	I left the consultation pretty shocked. I just went home and dealt with it. 
17. 	Following this incident I did not go back and see Dr Datta.
336	This accorded with AN’s statement dated 18 September 2018. 
337	AN gave evidence before us in which she also confirmed this incident. She said that Dr Datta stood in front of her, put on the cuff and took her blood pressure. She said:
He put my hand into his groin. This was the last consultation I had with him. I remember this clearly. I cannot remember if I told my psychologist.
338	Clearly, if such an incident had taken place, it would be completely outside the parameters of what should occur during a medical consultation and would have no possible clinical justification.
339	Ultimately, we are not however satisfied that Dr Datta did behave in the inappropriate manner described by AN, either during his second last or last consultation with her.
340	In relation to each of the consultations, we hold real concerns that the incidents described by AN may not reflect her own actual recollection or memory of what occurred.
341	AN herself made no contemporaneous notes of any concerns at the time of the events described by her. She was, both when making her statements and giving evidence, relying entirely on memory of consultations which took place some years before. 
342	AN gave evidence, however, that she thought she would have described what happened during the final two consultations with Dr Datta to Psychologist A. AN agreed though that if it was not documented in Psychologist A’s notes, she did not tell Psychologist A. 
343	AN clearly did not do so. 
344	There is no record of any such disclosures referable to AN contained in the contemporaneous notes of Psychologist A. 
345	Psychologist A in her letter to AHPRA records no such incidents in relation to AN. 
346	We have no doubt that if such disclosures had been made to Psychologist A at the time, not only would Psychologist A have recorded the fact of their having been made but she would have acted on the disclosures at the time. We have no doubt that Psychologist A would have documented these disclosures in her 20 September 2016 contemporaneous communication to AHPRA.
347	AN had the perfect opportunity to complain to Psychologist A. AN had an appointment with Psychologist A within days of each alleged incident taking place. Psychologist A had already given AN a complaint form to fill out specifically in relation to Dr Datta. AN knew she had, in Psychologist A, an audience who would take her complaint seriously. 
348	AN did not, however, report the very serious allegation to Psychologist A or fill out the complaint form in her possession.
349	Although AN said in her evidence before us that she may have not mentioned the second last incident to Psychologist A, because she had given Dr Datta the benefit of the doubt (i.e. that the contact was accidental), this does not explain her failure to complain to Psychologist A about her last appointment with Dr Datta. 
350	Whilst we will never know the full content or context of the discussions between AN and Psychologist A, it is clear from the material before us that Psychologist A had not only spoken with AN about AN’s own experiences with Dr Datta, but had told AN that allegations had been made by other patients. It is also clear that Psychologist A’s concern that action was not being taking in relation to complaints about Dr Datta had been expressed to AN.
351	In the notification notes taken when AN first made her complaint to AHPRA, it is recorded that:
[Psychologist A] had told AN that there had been previous complaints about Dr Datta. 
352	It is further recorded that AN stated to AHPRA that she did not make a complaint earlier as:
she thought that if other complaints had been made and that he was still allowed to practice, what chance did she have.
353	We have real concerns in this case that AN’s evidence may have arisen through suggestibility or distorted memory arising from her discussions with Psychologist A.
354	In this context, we observe that the events described by AN during her last two consultations with Dr Datta bear a very strong similarity to events described by Psychologist A in her correspondence to AHPRA but attributed to conduct in relation to other patients of Dr Datta at around the same time. 
355	We set those descriptions out above when we quoted from Psychologist A’s September 2016 letter to AHPRA but we replicate them again here. Psychologist A wrote (emphasis added):
There have been several disclosures from other patients which have included:
FEMALE PATIENTS
1. 	Whilst taking blood pressure strategically placing the equipment so that the patient’s hand is right next to his penis
2.	Inappropriately touching them …
356	Whilst we will never know the extent of the conversations which took place between Psychologist A and AN because AN cannot recall anything that was said, we do know, however, that Dr Datta was discussed in greater detail than the detail recalled by AN. 
357	We hold real concerns that the memory of AN may have been influenced or corrupted by what she was told by Psychologist A. 
358	It is important that the notes of Psychologist A insofar as they relate to AN make no specific mention of the very serious allegations that appear in AN’s statement, such as Dr Datta moving AN’s hand near his groin area or placing AN’s hand onto his groin. The statement of Psychologist A does, however, make broad allegations of a very similar nature in relation to other unnamed patients.
359	We have real concerns, given the similarity in Psychologist A’s letter to AHPRA about other patients, that Psychologist A may have recounted similar descriptions of conduct to AN who, 18 months later, may have recalled them as a memory of her own about Dr Datta’s conduct toward her. 
360	Given Psychologist A’s propensity to discuss Dr Datta, we consider there is a real possibility that she may, when empowering AN to complain about Dr Datta, have advised AN of the detail of other complaints in the same way as she did with BR. 
361	We note that AN was, for reasons disclosed in the evidence before us, extremely vulnerable which, whilst arguably making her the potential target of a predatory medical practitioner, could also have made her very open to suggestion and/or mistaken memory.
362	Because AN has no memory of what was discussed with Psychologist A, and Psychologist A did not give evidence, none of this can now be properly tested. 
363	The notes of Psychologist A which arguably provide a contemporaneous record of AN’s concerns about Dr Datta at the time do not record these very serious allegations. 
364	We reiterate that AN was, in her evidence before us, unable to specifically recall any conversation with Psychologist A about Dr Datta, let alone the specifics of such discussions. Whilst given the passage of time this is not altogether surprising, it is nevertheless clear that discussions were had. It is also clear that those discussions were potentially important ones, especially if they were two-way conversations such as the ones earlier described with respect to BR in which Psychologist A discussed her own broadly held concerns about Dr Datta.
365	We are left in the position of being unable to make any findings whatsoever about the content of the discussions between Psychologist A and AN, other than to acknowledge that, based on the clinical notes and the statement made by AN, it is clear that some discussion about Dr Datta took place.
366	As it transpires, AN did not make any complaint in relation to Dr Datta until several years after the conversation with Psychologist A or the events alleged in her notification. She did not complain to police at the time of the incident. AN did not herself make any notes of the incident.
367	When cross-examined about the fact that it was 18 months before she made her statement, she however said:
It did happen. It did happen.
368	Given the potential for corruption of the memory and the stresses AN laboured under at the time, and the lack of contemporaneous notes or complaint, we are not satisfied to the requisite standard that the deliberate and/or inappropriate conduct as described by AN in her last two consultations with Dr Datta took place.
369	We note that there are other potential explanations for why AN stopped consulting with Dr Datta around this time. We note for example that she also stopped consulting with Psychologist A in October 2013.
370	We agree with the submissions of Dr Datta that, because of the involvement of Psychologist A in these matters, we cannot discount the possibility of contamination, unconscious influence, suggestion, or infection in relation to the evidence of AN.
Factual findings – Allegation 4
371	We are not satisfied to the requisite standard that allegation 4 is proven.
372	We are not satisfied that the earlier consultations described by AN were inappropriate in their nature and not part of rapport building during an appropriate physician-client relationship. 
373	We are not satisfied that the incident described by AN in her last consultation with Dr Datta took place as described by her.
374	In closing submissions, it was submitted on behalf of Dr Datta that we should find that AN would not have returned to Dr Datta after the second last visit if the incident described by her had occurred. We note in this respect that AN repeatedly conceded in her evidence that she felt the touching at the time of her second last consultation may have been accidental.
375	For the reasons already given, we are not satisfied to the requisite standard that the incident described by AN in her second last consultation with Dr Datta took place as described by her. If any such incident did occur, we would not have been satisfied that it was intentional or deliberate.
376	We are further not prepared to rely on the material pertaining to AN to support, in conjunction with the evidence of other witnesses, a finding that Dr Datta has a tendency to conduct himself in the manner alleged by the Board.
377	We repeat our comments made in relation to BR that the probative value of tendency evidence lies around notions of the improbability of similar acts being alleged against an individual by more than one person unless the events as described occurred.
378	If, however, there is a likelihood of suggestibility, as we have found there to be in relation to AN, the requisite improbability diminishes. We clearly cannot rely on the complaint of one witness to support the complaint of another if we harbour concerns that the complaint of either has come about as a product of suggestibility.
379	We do harbour such concerns. We are not satisfied on the evidence before us that allegation 4 is proven.
380	We note, in conclusion, the submissions made by Mr Teng as to the unlikelihood of the incidents taking place in the manner described by AN and the improbability of their occurrence based on the layout of Dr Datta’s room. 
381	Much of Mr Teng’s cross-examination of AN focused on the manner in which Dr Datta routinely took blood pressure. We understood that this was because Dr Datta contends that he only ever took AN’s blood pressure when they were both seated. 
382	We were referred by Mr Teng to Dr Datta’s clinical notes. Whilst we agree that the notes routinely record blood pressure and pulse as being taken while “sitting”, they do not of course necessarily corroborate the submissions made on behalf of Dr Datta. The notes could readily be interpreted as “patient sitting”, which AN concedes she always was.
Final conclusions and evidence of tendency with regard to CR and KH
383	We agree with the submissions of the Board that the evidence in relation to CR and KH was largely unchallenged by Dr Datta and should be accepted.
384	Although we were urged by Dr Datta to not consider the evidence together, we consider that, insofar as CR and KH are concerned, we can and should use the evidence of each as demonstrating a tendency on the part of Dr Datta to engage in sexualised and/or inappropriate conduct. We accept that the evidence demonstrates a tendency on the part of Dr Datta to speak to his patients in overly familiar terms such as calling CR sexy and telling KH she was very sexy.
385	We consider that the evidence given by CR about the touching by Dr Datta of her chest and the evidence of KH in relation to the examination and touching of her vagina, demonstrates a tendency on the part of Dr Datta to conduct sexualised and/or inappropriate examinations without clinical justification and/or without obtaining informed consent.
386	We agree with the submissions of the Board that the tendency evidence takes the matter from a strong sense of satisfaction in each individual case to a combined position of absolute satisfaction.
387	We were not persuaded otherwise by the submissions made on Dr Datta’s behalf by Mr Teng that the evidence of either witness was or could have been contaminated. 
388	It was not put during cross-examination to either of these complainants that they knew each other or had spoken with each other. There is no evidence upon which we could find that either of the complainants did know each other or had spoken with each other or that the complainants directly colluded with each other. There is no evidence that either of the complainants knew the detail of the complaint of the other complainant. It was not put directly to either complainant that she did know the detail of the complaint of other complainant. 
389	We agree with the submissions made by the Board that this issue was skirted around at best during cross-examination. 
390	There was further no evidence that either complainant’s evidence had been infected through her engagement with Psychologist A.
391	Dr Datta, whilst emphasising that it is not for him to explain why allegations may have been raised, asked us to be alive to any explanations consistent with innocence. He contended that communications may have been misperceived or incorrectly remembered by the complainants. We were unable to make any such findings in relation to either of these complainants. We had no basis to find, as suggested by Mr Teng, that Dr Datta could not communicate effectively and/or could have been misunderstood because of cultural differences.
392	Each of Dr Datta’s patients spoke of their initial strong sense of Dr Datta’s caring professionalism. Each was prepared to accept a degree of closer than usual familiarity because of possible cultural differences.
393	Each, however, was adamant that there came a time when the line was unmistakably and deliberately crossed by Dr Datta at which time there could be no mistaking Dr Datta’s actions.
394	We do not consider it to be a correct reflection of the evidence as given to suggest that the versions are uncorroborated by their behaviour.
395	CR immediately reported the conduct to her fiancé (now husband), best friend and the police. She remained determined many years after the incident to give evidence in these proceedings.
396	KH reported the matter to a social worker whilst in hospital having her baby.
397	Each complainant had regularly attended upon Dr Datta. Each quickly (one immediately) ceased contact with him once the final and most serious/obvious transgression occurred. 
398	This was despite the relationship built up with Dr Datta and the difficulties described in obtaining medical assistance in the rural area in which they resided. 
399	Each complainant maintained her early resolve to give Dr Datta the benefit of the doubt until such time as she believed a threshold had been crossed by him.
400	Dr Datta reminded us that each of the complainants have either anxiety or depression or a combination of the two conditions. He contended that great care must be taken when considering the evidence of the complainants in relation to consistency, contrary evidence and/or availability of corroborative evidence.
401	There were several things that struck us about each witness.
402	Each woman was measured in her approach to her evidence, readily conceding matters she could not recall. 
403	Each conceded that the passage of time made it difficult to remember all the specifics of the various consultations she had had with Dr Datta.
404	Each, when taken through the notes of Dr Datta, readily agreed that the notes captured the substance of the purpose of the visit and the general discussion which took place with Dr Datta around the medical issues to be addressed. They were variously assisted in their recall of the specific consultations by reference to those notes.
405	Each expressed satisfaction with their initial consultations with Dr Datta. 
406	Each, however, expressed in different ways her shock and disbelief when Dr Datta’s conduct descended into inappropriate conduct.
407	Each was a sensible witness who initially trusted Dr Datta. Each showed great courage in giving her evidence despite the delays in this case.
408	Each, although calm, remembered the events with a telling degree of emotion.
409	It was submitted on behalf of Dr Datta that his clinical records support his version of events. We disagree that the records do any such thing. There was no dispute that the consultations took place and that, through much of the consultation period with each patient, the consultations, whilst very warm in their nature, did not in the opinion of the patients transgress boundaries. 
410	Whilst the contemporaneous notes support his version of the clinical reasons for the women attending consultations, they do not exonerate him in any way from the serious allegations before us.
411	Health professionals typically do not record boundary transgressions in their notes.
412	Finally, Dr Datta emphasised that neither complainant had pursued her complaint through the police. Mr Teng emphasised that the police have not investigated the matter further.
413	Each nevertheless gave an explanation for not doing so. Each understood, that the health profession disciplinary jurisdiction was the appropriate forum in which to complain. 
414	Apparently the police were also of the understanding that matters of this type were appropriately dealt with by AHPRA.
415	In the telephone note dated 19 November 2014 between AHPRA and Victoria Police, the following is recorded:
22.	The police are not planning to interview the practitioner.
23. 	AHPRA can let the practitioner know about this matter, the police are fine with this.
24. 	The patient has been advised by police to talk to the Centre Against Sexual Assault (CASA).
25. 	[A] Detective Senior Constable … also said that on 19 August 2014 another person by the name of [CR] spoke to [another] Detective Senior Constable …
26. 	[CR] came to the police station and spoke to [the] Detective … re concerns about Dr Datta’s inappropriate sexual conduct toward her when she attended the clinic. She was a patient who had just been to see him, she did not proceed with the matter with the police but was advised to ring the AMA.
27. 	I said to [the] Detective Senior Constable … that AHPRA is the place to call in future to lodge a complaint about a registered health practitioner.
…
29. 	[The] Detective … is concerned that [CR] is the second person in three months to come to police about Dr Datta. The police have concerns the practitioner may not be aware of the cultural differences in Australia in relation to boundaries and behaviours when consulting with female patients.
416	Whether or not police determined to conduct their own further investigations cannot form any basis or in any way impact upon the question of whether we are able reach the requisite level of satisfaction based on the evidence before us.
417	We finally note, in closing, that although as part of Dr Datta’s submissions reference was made to Dr Datta now having Parkinson’s disease – a condition he may have had undiagnosed since 2012 – and we were provided with a witness statement of Dr Ravi Subramanya N.K, consultant neurologist at Dandenong Neurology, in relation to Dr Datta’s health, we agree with the submissions of the Board that no evidence was provided as to what influence, if any, the condition would or may have had on Dr Datta. Nor was any view provided as to how long Dr Datta may have been asymptomatic before becoming symptomatic.
418	We have not found and were not ultimately asked to find that Dr Datta’s current heath condition had or may have had any relevant impact on his conduct during the period the subject of the allegations.
419	In relation to allegation 2, we are satisfied that Dr Datta:
(i)	conducted a sexualised and/or inappropriate examination of Ms CR’s chest; and/or 
(ii)	conducted an examination of Ms CR’s chest that was not clinically justified and/or without obtaining informed consent to do so; and/or
(iii)	otherwise engaged in sexualised and/or inappropriate conduct towards Ms CR.

420	In relation to allegation 3, we are satisfied that Dr Datta:
(i)	conducted sexualised and/or inappropriate examinations of Ms KH’s genitals; and/or
(ii)	conducted examinations of Ms KH’s genitals that were not clinically justified and/or without obtaining informed consent to do so; and/or 
(iii)	otherwise engaged in sexualised and/or inappropriate conduct towards Ms KH.
421	We will list an administrative mention on 28 February 2022 by which time the parties may jointly request the Tribunal to make orders to list the proceeding for further hearing to be conducted by videoconference in relation to:
(a)	whether the conduct the subject of our findings constitutes unprofessional conduct or professional misconduct; and 
(b)	the appropriate determinations to be made.

H. Lambrick
Deputy President and Presiding Member	Dr P. Molloy
Health Practitioner Member	Dr A. Sungaila
Health Practitioner Member