MEDICAL BOARD OF AUSTRALIA and SEAL [2026] WASAT 78

[2026] WASAT 78 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : MEDICAL BOARD OF AUSTRALIA and SEAL [2026] WASAT 78 MEMBER : JUSTICE M HOWARD (SUPPLEMENTARY PRESIDENT) MR E CADE, MEMBER DR P WINTERTON, SENIOR SESSIONAL MEMBER HEARD : 16, 17 & 30 APRIL 2026 DELIVERED : 7 JULY 2026 FILE NO/S : VR 120 of 2023 BETWEEN : MEDICAL BOARD OF AUSTRALIA Applicant AND SAUMITRA SEKHAR SEAL Respondent Catchwords: Vocational regulation - Medical practitioner - Disciplinary proceedings - Allegations of misconduct during intimate examinations of four women - Allegations of failure to maintain appropriate professional boundaries during intimate examinations by inappropriate touching - Allegations of failure to comply with adequate infection prevention and control measures by not wearing gloves during intimate examinations - Allegations of failure to obtain informed -- 1 of 73 -- [2026] WASAT 78 Page 2 consent and/or failure to communicate effectively during intimate examinations - Objections to tender of documents under s 35 of the State Administrative Tribunal Act 2004 (WA) - Use of propensity or tendency evidence - Use of coincidence reasoning - Use of recent complaint evidence Application of Briginshaw standard - Findings of professional misconduct Legislation: Health Practitioner Regulation National Law (WA) Act 2010 (WA) s 5, s 193(1)(a)(i), s 196(1)(b)(ii) State Administrative Tribunal Act 2004 (WA) s 32, s 32(1), s 32(2), s 32(2)(a), s 32(2)(b), s 32(6)(c)(ii), s 32(3), s 32(4), s 32(6), s 32(6)(c), s 32(6)(c)(ii), s 62(3), s 61(4)(d), s 61(4)(g) Representation: Counsel: Applicant : Ms J M McKenzie & Mr L Baird Respondent : Mr M L Williams Solicitors: Applicant : Minter Ellison Respondent : Panetta McGrath Lawyers Cases referred to in decision(s): Briginshaw v Briginshaw (1938) 60 CLR 336 Chiropractic Board of Australia and Ebtash [2020] WASAT 86 Chiropractic Board of Australia v Ebtash [2020] WASAT 86 Director of Public Prosecutions v Roder [2024] HCA 15; (2024) 281 CLR 18 Lawrence v Cooperative Bulk Handling Ltd [2017] WASC 24 Legal Profession Complaints Committee and Chang [2019] WASAT 67 LSCC and Kelly [2024] WASAT 125 Medical Board of Australia and Arunkalaivanan [2021] WASAT 127 Medical Board of Australia and Mullaley [2025] WASAT 99 Medical Board of Australia v Adams [2023] WASCA 41 Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203 The King v AR [2026] HCA 10; (2026) 100 ALJR 545 -- 2 of 73 -- [2026] WASAT 78 Page 3 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 The applicant Board has made allegations against the medical practitioner respondent in respect of four women who saw him at a general practice in the western suburbs of Perth (Medical Centre). 2 The allegations concern consultations which occurred with the following women (the identification of whom has been restricted by order1) on the following dates: 1. with FS on 8 February 2014; 2. with CT on 16 June 2017; 3. with CB on 31 January 2019; and 4. with OJ on 4 February 2019. 3 From the materials in the Book of Materials filed on 8 December 2025 (Book) (not all of which were tendered at the hearing), it appears that the Board first had notice of a complaint (by CB) by no later than 12 February 2019.2 4 In response to the complaint of CB, the Board decided to take immediate action under the applicable legislation and imposed conditions on the practitioner's registration.3 The Board accurately described those as 'gender-based conditions'.4 The practitioner was notified of those conditions on 7 March 2019, and they remain on the practitioner's registration. 5 On 21 November 2023, the Board lodged its application in these proceedings. 6 The trial of the Board's application was heard in April 2026. It may well go without saying that such delays (which are even greater if one takes into account the dates on which some of the consultations occurred) are unsatisfactory for the women involved, the practitioner 1 Order 7 of the orders made pursuant to s 62(3) and s 61(4)(d) and (g) of the State Administrative Tribunal Act 2004 (WA) on 30 March 2026. 2 This is the date of a complaint made by another medical practitioner (Dr Hales) in relation to the practitioner's consultation with CB: AHPRA Notification 00408698, Document 23, Book Page 78. CB's witness statement given to AHPRA, Document 31, Book page 115 is dated 23 February 2021. 3 AHPRA's letter to the practitioner's insurer dated 7 March 2019: Document 49, Book page 191. 4 Applicant's outline of opening submissions filed on 13 April 2026 (Applicant's opening submissions) [60]. -- 3 of 73 -- [2026] WASAT 78 Page 4 and the system of regulation which seeks, amongst other things, the proper protection of the public. 7 Further, such delay does not assist, obviously enough, the Tribunal's determination of the serious allegations brought against the practitioner. The application and the statutory regime 8 The Board's application was made pursuant to s 193(1)(a)(i) of the Health Practitioner Regulation National Law (WA) which was in the Schedule to the Health Practitioner Regulation National Law (WA) Act 2010 (WA) (National Law). 9 The application was brought after the Board had formed a belief that the practitioner had behaved in a manner that constituted professional misconduct as defined in s 5 of the National Law.5 10 The particular statutory regime and its current application were traced by the Tribunal in Medical Board of Australia v Mullaley [2025] WASAT 99 (Mullaley) [21], [23] and [26] and we have adopted gratefully that analysis without repeating it here. The burden and standard of proof 11 It was not in dispute: 1. that the Board bore the onus of proof in relation to its allegations;6 and 2. while the standard of proof was on the balance of probabilities, the principles in Briginshaw v Briginshaw7 applied.8 12 We accept that is the burden and standard of proof to be applied. The Briginshaw approach requires clear and cogent evidence to be adduced and for the Tribunal to feel an actual persuasion of the occurrence or existence of the relevant facts.9 5 Applicant's opening submissions [3]. 6 Applicant's opening submissions [13]. 7 Briginshaw v Briginshaw (1938) 60 CLR 336. 8 Applicant's opening submissions [14]. 9 See, for example, Legal Profession Complaints Committee and Chang [2019] WASAT 67 [8]; LSCC and Kelly [2024] WASAT 125 [35]; Medical Board of Australia and Mullaley [2025] WASAT 99 [30]. -- 4 of 73 -- [2026] WASAT 78 Page 5 13 Where we indicate that we have found an allegation to be established, we should be understood as saying that we have found it to be established to this standard. Resolution of the practitioner's objections to documents sought to be tendered 14 At the hearing, certain documents were tendered from the Book and a supplementary bundle dated 17 April 2026 (Supplementary Book). 15 We have attached as a schedule to these reasons the documents which were ultimately in evidence before the Tribunal. 16 At the hearing we resolved the remaining objections which had been made by the practitioner to the tender of certain documents by the Board. 17 Four documents were in dispute in relation to the complainant FS, being Documents 4, 13, 14 and 17;10 and one document was in dispute in relation to the complainant CT, being Document 19. 18 Document 411was an undated letter from FS to the Medical Centre which complained of things that occurred during her consultation with the practitioner on 8 February 2014. 19 Document 1312 was a Western Australian Police (WA Police) Incident Report which, on its face, recorded the contents of a phone call from a friend of FS to police that gave details of the consultation on 8 February 2014. 20 Document 1413 was a WA Police Running Sheet which, amongst other things, recorded FS withdrawing her complaint on 12 and 13 February 2014. 21 Document 1714 was an email of 3 June 2020 sent by FS to an AHPRA investigator which answered questions posed to her by AHPRA in a letter sent to her by email and dated 11 May 2020.15 10 All references to document numbers are to their number in the Book. 11 Book pages 29 - 30. 12 Book pages 49 - 51. 13 Book pages 52 - 53. 14 Book pages 58 - 60. 15 Which was in the Book as Document 16 at pages 55 - 57. -- 5 of 73 -- [2026] WASAT 78 Page 6 22 Document 19 included Document 19.116 which was the objected-to document. It was a handwritten complaint made by CT on a complaint form of the operator of the Medical Centre. 23 As the Tribunal understood it, the Board sought to adduce the objected-to documents for the following purposes, namely as evidence: 1. going directly to the allegations it made against the practitioner in respect of, respectively, FS and CT; 2. of recent complaint made, respectively, by FS and CT; and 3. going to establish a propensity or propensities on the part of the practitioner; which it sought to lead in respect of some allegations made in respect of each of the four complainants. 24 Neither FS, nor CT, were called to give evidence in the Tribunal and so, obviously, were not available for cross-examination. The Board put no evidence before the Tribunal to explain why FS and CT were not available to give evidence, nor what efforts the Board had made to have them give evidence.17 25 The practitioner filed submissions in support of his objections.18 In those submissions, the practitioner accepted that by s 32(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the Tribunal was not bound by the rules of evidence. 26 The practitioner put forward two broad submissions against the admission of the objected-to documents, namely that: 1. the documents should be excluded because of s 32(1) and s 32(6)(c)(ii) of the SAT Act;19 and 2. the objected-to documents were not verified on oath and, given the gravity of the allegations against the practitioner, could not constitute evidence that was probative.20 27 During the course of the hearing, the Tribunal overruled the objections made in relation to those five documents.21 We indicated that 16 Book pages 68 - 70. 17 ts 98. 18 Respondent's outline of submissions in support of objections to tender of documents filed on 13 April 2026 (Respondent's objections submissions). 19 Respondent's objections submissions [14]. 20 Respondent's objections submissions [19] - [22]. 21 ts 113. -- 6 of 73 -- [2026] WASAT 78 Page 7 the reasons for doing so would be incorporated into the reasons for decision. 28 In doing so, the Tribunal was not, at that point, assessing the weight or cogency of the evidence in those documents. We have made that assessment elsewhere in these reasons. Section 32(6)(c)(ii) of the SAT Act 29 The practitioner submitted that s 32(6)(c)(ii) of the SAT Act was an aspect of the obligation on the Tribunal of being bound by the rules of natural justice under s 32(1). The practitioner contended that: … The right to cross-examine is an important feature of procedural fairness. The testing of opposing relevant material by cross-examination is an essential feature of the opportunity to correct or contradict that material.22 30 There was, of course, no challenge to the Tribunal being bound by the rules of natural justice as provided for by s 32(1) of the SAT Act. Nonetheless, it is expressly provided that the rules of evidence do not apply and that the Tribunal: 1. is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms: (s 32(2)(b)); 2. may admit into evidence the content of any document (s 32(3)); and 3. may inform itself on any matter as it sees fit: (s 32(4)). 31 Propositions similar to those advanced here by the practitioner were considered by Corboy J in Lawrence v Cooperative Bulk Handling Ltd [2017] WASC 24 (Lawrence v CBH). There his Honour was considering submissions that the Tribunal should not make an order or judgment against the person 'except on sworn evidence that has been tested by cross-examination'.23 32 After stating the effect of the general provisions of s 32(1) - s 32(4), his Honour noted that the object of the rules of natural justice is to avoid practical injustice and the content of the requirement 22 Respondent's objections submissions [14]. 23 Lawrence v Cooperative Bulk Handling Ltd [2017] WASC 24 (Lawrence v CBH) [78]. -- 7 of 73 -- [2026] WASAT 78 Page 8 depended on the particular circumstances of the case.24 His Honour noted that provisions of the kind found in s 32(2) are 'intended to be facilitative, not restrictive'.25 33 His Honour then said: [85] More particularly, the duty of an administrative tribunal to observe the rules of natural justice 'does not necessarily involve the extension of the opportunity of cross-examination to any party against whom evidence is called': Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 [73] (Jessup J). There is no rule that natural justice 'dictates the rejection or giving of no weight to evidence which cannot be tested by cross-examination': Rawson Finances [137] (Jagot J). That is not to say that the loss of an opportunity to cross-examine is to be disregarded in determining whether proceedings have been conducted fairly. Much will depend on the nature of the issues to be determined and the extent to which a party's case and supporting evidence is challenged: see, for example, the observations of Davies J in Re Barbaro v Minister for Immigration and Ethnic Affairs (1980) 3 ADL 1, 5. [86] Rawson Finances and Re Barbaro are cases that involved proceedings in the Administrative Appeals Tribunal (AAT). The AAT Act contains provisions that are equivalent to s 32(1) and s 32(2). However, the Act does not contain a provision that is equivalent to s 32(6)(c). [87] Section 32(6)(c) must be read in the context of s 32 and the SAT Act as a whole. Read in context, the subsection does not require that the Tribunal conduct hearings as though it was a court of record or that it should require all matters of fact to be strictly proven according to the rules of evidence. Such an approach would be contrary to the express provisions of s 32(2)(a) and is not required by the rules of natural justice. Plainly, the Tribunal can make findings on evidence that would not be admissible according to the rules of evidence. The touchstone for receiving evidence in the Tribunal should be relevance and fairness. Further, the procedure by which evidence is to be received will depend primarily on the nature of the evidence sought to be presented, the issues to be determined and provisions of s 32 of the SAT Act. [88] What s 32(6)(c), in particular, requires is that the parties to proceedings in the Tribunal be given a reasonably practicable opportunity to present evidence that is relevant to the issues to be determined, to have their submissions considered and, where 24 Lawrence v CBH [81]. 25 Lawrence v CBH [83]. -- 8 of 73 -- [2026] WASAT 78 Page 9 witnesses are necessary to present relevant evidence, to call those witnesses for the purpose of having their evidence taken by examination, cross-examination and re-examination. The subsection does not require witnesses to be called where the relevant facts can be proved by documents or other means such as admissions made in statements of issues, facts and contention. Similarly, it is not necessary that a witness be called to give evidence about matters that are not contested between the parties. 34 While the first part of [88] quoted immediately above might be read as supporting the practitioner's objection to some degree, we do not consider that it does so when read in context. That is, we do not consider any blanket rule was being put by his Honour there. The touchstone remained, in the passage quoted, 'relevance and fairness' which we have applied here. 35 As held in Medical Board of Australia v Adams [2023] WASCA 41, s 32(6) of the SAT Act: … does not provide that the Tribunal must permit parties to examine, cross-examine and re-examine witnesses. It requires the Tribunal to take measures that are reasonably practicable toward the ends identified in each of pars (a), (b) and (c). The presently relevant end in sub par (ii) is to ensure that the parties have the opportunity to examine, cross-examine and re-examine witnesses. The choice of the word 'opportunity' is significant. It is the language of procedural fairness. The test of 'reasonably practicable' also echoes the concept of what is procedurally fair. Reading s 32(6)(c) as a whole, its purpose and effect is to articulate specific aspects of what procedural fairness to the parties entails.26 (original emphasis) 36 Those statements by the Court of Appeal were made in its consideration of a submission that s 32(6)(c)(ii) of the SAT Act conferred on a party the right to cross-examine a deponent of an affidavit, so long as the deponent was available to attend for cross-examination.27 37 However, in our view the passage we have quoted in [35] above is, with respect, broadly consistent with the approach taken by Corboy J in Lawrence v CBH. In our view, they answer the practitioner's submissions here, so that the inability of him to cross-examine the makers of the objected-to documents does not have the effect that they are not admissible in the Tribunal. 26 Medical Board of Australia v Adams [2023] WASCA 41 [81]. 27 Medical Board of Australia v Adams [78]. -- 9 of 73 -- [2026] WASAT 78 Page 10 Documents are relevant and probative 38 In our view, each of the five documents was relevant and probative to a fact in issue - namely, in respect of FS, whether: 1. at the least, she had been inappropriately touched by the practitioner during her examination; and 2. whether the examination or procedure conducted by the practitioner was appropriately explained to her; and in respect of CT, whether: 3. she had been inappropriately touched by the practitioner during her consultation; 4. the practitioner had adequately explained the examination or procedure to her; and 5. the practitioner had given her appropriate privacy during the examination or consultation. 39 We accept that the five objected-to documents were relevant and probative to the matters or purposes which we identified in [38] above. 40 We have set out below the principles which have been adopted by this Tribunal on the admission of evidence going to a complainant's recent complaint. We there cited the Tribunal's decisions in Arunkalaivanan28 and Mullaley. 41 We consider that the Tribunal's statement of principles in Arunkalaivanan at [49] and [50] and Mullaley at [50] and [51] are also relevant to the admission of documents which would not otherwise be admissible by the rules of evidence; and we have adopted those principles here. 42 In Arunkalaivanan, the Tribunal after noting that it was not bound by the rules of evidence stated: … It may inform itself of matters as it sees fit: s 32(4) SAT Act. In our view, the guiding principle when dealing with admissibility questions, therefore, must be that in order to be admissible the evidence must be relevant and probative of a fact in issue.29 28 Medical Board of Australia and Arunkalaivanan [2021] WASAT 127. 29 Arunkalaivanan [49]. -- 10 of 73 -- [2026] WASAT 78 Page 11 43 Applying that 'guiding principle' and taking into account the approach to s 32(6)(c)(ii) of the SAT Act we set out above, we considered that the objected-to documents should be admitted, and we did so. 44 The parties agreed the tender of certain further documents after the Tribunal's ruling on the five objected-to documents. 45 As noted, however, the admission to evidence of those five documents does not answer the question of the weight the Tribunal should give to them in its assessment of the allegations made. Propensity or tendency evidence in this case 46 The Board sought to establish a propensity or tendency on the part of the practitioner to: [29] … (a) fail to wear gloves when performing an intimate examination; (b) inappropriately touch the clitoris of his patients when performing an intimate examination; (c) fail to offer a modesty cloth while his patients undress for an intimate examination; (d) fail to offer a chaperone for an intimate examination; and (e) fail to obtain informed consent prior to performing an intimate examination.30 47 It did not appear to be in dispute that a practitioner's propensity or tendency (expressed broadly) may be a piece of circumstantial evidence taken into account when considering whether the allegation against them has been established. And, consequently, evidence going to establish such a propensity or tendency may be admissible in disciplinary proceedings such as this. That is consistent with the approach that the Tribunal has taken previously in cases such as Chiropractic Board of Australia and Ebtash [2020] WASAT 86 [973] and Arunkalaivanan [55] - [56]. We have followed that approach. 30 Applicant's opening submissions [29]. -- 11 of 73 -- [2026] WASAT 78 Page 12 48 Since those two decisions of the Tribunal, such evidence has been the subject of two High Court decisions in Director of Public Prosecutions v Roder [2024] HCA 15; (2024) 281 CLR 18 and The King v AR [2026] HCA 10; (2026) 100 ALJR 545. Obviously enough, both of those cases are criminal cases involving directions to juries and so the propositions to be taken from those cases must be relevantly modified to apply to proceedings in the Tribunal. 49 We understand the relevant applicable principles to be (to be modified to apply to Tribunal proceedings): 1. tendency or propensity evidence is circumstantial evidence; 2. unless it is indispensable to finding 'guilt' a piece of circumstantial evidence (including tendency or propensity evidence) does not need to be found beyond reasonable doubt (in a criminal matter); 3. the evidence said to support the tendency should be identified and considered as to whether the tendency has been established; and 4. if the tendency has been established, then the tendency (but not the underlying evidence which establishes it) may be used in aid of proving the charge. That is, the tendency can be considered as to whether it makes it more likely that the elements of the charge are established. 50 The width of the Board's contended-for tendency as quoted in [46] above was the subject of well-placed criticism in the practitioner's closing.31 51 The Board did not address the criticisms. Some of the practitioner's criticisms would be reduced, in part, if the Tribunal were to narrow the contended for propensity or tendency, at least in respect of the tendency or propensity identified in (a), (c) - (e) (as quoted in [46] above), to intimate examinations conducted by the practitioner on female patients. 52 As will be apparent below, the allegation the practitioner had failed to offer a chaperone was only made in respect of one consultation, so the question of a relevant propensity (as identified by the Board in (d), as quoted in [46] above) does not arise. In any event, 31 ts 270 - 272. -- 12 of 73 -- [2026] WASAT 78 Page 13 as is set out below, the practitioner did not seriously contest the allegation made that he failed to offer OJ a chaperone for the intimate examination. In those circumstances, we have not considered that contended for propensity further. 53 In all of the circumstances, we have not found the propensity contended for in (a) - (c) and (e) (as quoted in [46] above) to have been established. 54 It may also be that the Board sought to establish, perhaps some further, more specific, propensity or tendency to the effect that the practitioner had one or more of the propensity or tendencies identified in (a), (c) - (e) (as quoted in [46] above) 'in respect of consultations with temporary residents'.32 55 The submission was not, with respect, advanced or developed by the Board in a way which assisted the Tribunal to consider it. As will be apparent from below, there was some evidence in relation to CB which suggested that she may have been not 'familiar' with the norms of Australian medical practice.33 However, there was nothing which clearly suggested that in relation to CT. 56 In the circumstances, if we have understood the Board's attempt to establish that further propensity or tendency, we do not find it to be established. 57 Further, if we are wrong about any of the propensities or tendencies having been established then, in our view, any such propensity or tendency would have been, at its highest, only weakly probative. We do not consider that it would make any difference to the conclusions we have reached on the Board's allegations in relation to each of the complainants. In short, we do not consider that any of the contended for propensities or tendencies could have had, here, any material impact on the conclusions we have otherwise reached. 58 So, as may be seen, the Board's attempted reliance on propensity or tendency evidence has not been of assistance and has proved to be something of a distraction from the issues which needed to be determined. 32 ts 101. 33 To quote from the Applicant's opening submissions [30(a)]. -- 13 of 73 -- [2026] WASAT 78 Page 14 The use of coincidence reasoning 59 By its Opening Submissions,34 the Board stated: [30] … the Tribunal can take into account the following similarities in the circumstances of the alleged conduct: (a) both [CT] and [CB] were temporary residents who were unlikely to be familiar with the norms of Australian medical practice; and (b) the consultations complained of by [CB] and [OJ] occurred four days apart. 60 The Tribunal in Ebtash appeared to accept, at least for the purposes of argument, that the Tribunal may employ coincidence reasoning.35 However, in that case, the Tribunal found that it did not need to 'explore the extent to which … coincidence reasoning should be employed'.36 61 We have similarly proceeded on the basis that it may be open to the Tribunal to employ coincidence reasoning, although we have not needed to decide that in this case. 62 The observations we made in [54] above as to the difficulties for the Board in establishing the substance of what it put in its opening submissions at [30(a)] equally apply to any 'coincidence' the Board sought to establish. We do not need to consider that aspect of the 'coincidence' reasoning submitted in [30(a)] further. 63 As we understand it, the whole of the 'coincidence' reasoning put in its opening submissions at [30(b)] is that the consultations with CB and OJ occurred four days apart.37 64 It may be that in closing, the Board sought to broaden its invitation to the Tribunal to adopt coincidence reasoning.38 That is, it was said, for the first time in closing, that the Board: … relies upon coincidence reasoning in relation to the touching of the clitoris allegations. The evidence of the complainants has material similarities which are not readily explained as coincidence, mistake or misunderstanding. Each of the patients who alleges that Dr Seal 34 Applicant's opening submissions. 35 Ebtash [972] - [973]. 36 Ebtash [976]. 37 ts 102. 38 ts 251 and ts 259. -- 14 of 73 -- [2026] WASAT 78 Page 15 touched her clitoris in an inappropriate manner also alleges that he did not wear gloves during the relevant genital examination. That is a significant common feature, not a generic complaint. It's a specific allegation, an unusual allegation, about the conduct of an intimate examination involving the same practitioner, the same broad clinical context, unusual features of the examination, and made by patients who are not known to each other.39 65 Taking the coincidence reasoning the Board articulated in its outline of opening submissions at [30(b)] first: we do not consider that if coincidence reasoning is accepted as being open to the Tribunal, that there is anything so striking in the allegations in relation to CB and OJ occurring four days apart. 66 Further, the Board did not articulate with any precision what aspects of the consultations with CB and OJ (aside from the dates of the consultations) were so strikingly similar as would allow the Tribunal to engage in coincidence reasoning. 67 Further, if the Board wished to propose to the Tribunal that it could engage in coincidence reasoning as to the touching of the clitoris allegations (seemingly with respect to more than CB and OJ) then that needed to be articulated carefully well before the Board's closing. 68 We wish to clearly say that a party seeking to have the Tribunal employ coincidence reasoning needs to articulate the basis for that with some precision at a time in the proceedings very much earlier than its closing. 69 We have not adopted any coincidence reasoning in the reaching any of our conclusions below. Recent complaint evidence and other particular features of evidence concerning sexual assault 70 The question of the admissibility of 'recent complaint' evidence was considered by the Tribunal in Arunkalaivanan. The Tribunal stated the following principles:40 [46] In a criminal context, evidence of what a complainant told someone else about what occurred is generally inadmissible hearsay evidence. In the case of alleged sexual offending however, evidence of prior consistent recent complaint is 39 ts 259 - 260. 40 Arunkalaivanan [46] - [50]. -- 15 of 73 -- [2026] WASAT 78 Page 16 admissible by way of an exception to the hearsay rule. This is because people tend to assume (not necessarily correctly) that the victim of a sexual offence will complain at the first reasonable opportunity and if a complaint is not made at that time, a later made complaint is likely to be false. [47] Recent complaint evidence is admissible not to prove the facts in issue but as evidence which buttresses the credibility of the complainant by demonstrating consistency of conduct. Evidence of the making of a prior consistent complaint is only admissible in a criminal trial if it tends to have the effect of buttressing the credibility of the complainant. When determining whether it meets that test the Court has regard to: a. whether the evidence of a complaint was made proximate to the event about which the complaint is made; b. what happened between the events complained of and the making of the complaint; c. whether there is a question about the statement having been put into the mouth of the complainant; d. whether there is a question of the complaint having been made by a suggestible mind responding to a suggestible question; e. whether the complaint was induced by the relationship between the complainant and the person to whom the complaint was made; and f. all of the circumstances alleged to exist. … [49] … these disciplinary proceedings are not criminal in nature. Further, the Tribunal is not bound by the rules of evidence: s 32(2)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). It may inform itself of matters as it sees fit: s 32(4) SAT Act. In our view, the guiding principle when dealing with admissibility questions, therefore, must be that in order to be admissible the evidence must be relevant and probative of a fact in issue. [50] Applying that test, we have come to the conclusion that all of the documents of complaints having been made to others which the Board sought to tender reveal that each of Patient A and Patient B made complaints to third parties about their examinations and that the content of those complaints is relevant and probative and, therefore, admissible evidence of the issue of -- 16 of 73 -- [2026] WASAT 78 Page 17 whether or not the incidents described by Patient A and Patient B occurred as they claim. Each communication has the potential to buttress its maker's credibility. We therefore admit all of that evidence in these proceedings. (citations omitted) 71 That approach to recent complaint evidence was subsequently approved of by a differently constituted Tribunal in Mullaley at [48] and [51]. 72 The tribunal in Mullaley understood that what was envisaged by the earlier tribunal in Arunkalaivanan was: [57] … critical engagement by the Tribunal with all of the relevant facts and circumstances to determine what weight should be given to each piece of admissible recent complaint evidence in buttressing the Complainant's credibility. 73 We consider, with respect, that the approach taken in those two cases as to the admissibility of recent complaint evidence is correct and we have followed those principles here. 74 Consequently, we consider that each of Documents 4, 13 and 19 is able to be taken into evidence as evidence of the complainant's recent complaint: not to prove the allegation, but to buttress the complainant's credibility. 75 It follows that if Document 13 is admitted for that purpose, then Document 14 must also be taken into evidence in fairness to the practitioner. In any event, it was not contended that Document 13 could be taken into evidence without, also, taking into evidence Document 14. Codes of conduct and Guidelines 76 It was not in dispute that the Board had developed and approved under s 39 of the National Law: 1. a code of conduct entitled Good Medical Practice: A Code of Conduct for Doctors in Australia, effective from 17 March 2014 to 30 September 2020 (Retired Code of Conduct); and 2. a code of conduct entitled Good Medical Practice: A Code of Conduct for Doctors in Australia, effective from 1 October 2020 (Code of Conduct); and -- 17 of 73 -- [2026] WASAT 78 Page 18 3. a guideline entitled Guidelines: Sexual boundaries in the doctor-patient relationship, effective from 12 December 2018 (Guidelines): and which set out the principles that characterised and characterise good medical practice and made explicit the standards of ethical and professional conduct expected for all doctors registered to practise medicine in Australia.41 77 The Board relied on a number of provisions in the above codes and Guidelines. 78 Further, the Board, without objection,42 relied on expert evidence provided by Dr Jillian Gardner in a report dated 19 September 202243 for its contentions as to the proper characterisation of the conduct it alleged against the practitioner. 79 We return, below, to the question of the proper characterisation of the conduct. The patients 80 We have set out below the allegations and evidence led by the Board in relation to each of the patients in the order of their consultations. 81 We have also, by each patient, set out our findings in relation to the allegations concerning each consultation. 82 We have, later in the reasons, then set out the practitioner's evidence and our findings in relation to it. 83 For the avoidance of doubt, in making the findings we have about each of the consultations, we have taken into account the practitioner's evidence and our findings in relation to the same, notwithstanding that they appear later in these reasons. 41 Further Amended Grounds of Application filed on 7 August 2025 (Further amended grounds) [2]; Amended Response to Application filed on 1 September 2025 (Amended response) [2]. 42 ts 157. 43 Document 47; Book pages 180 and following. -- 18 of 73 -- [2026] WASAT 78 Page 19 FS 84 It was not in dispute that FS was born in 1993 and saw the practitioner at the Medical Centre on 8 February 2014, when she was in her early 20's.44 85 The practitioner conducted a pap smear on FS at this consultation and appears, also, to have conducted a bi-manual examination. The Board's allegations against the practitioner in relation to FS 86 The Board made three sets of allegations against the practitioner in relation to FS. 87 Firstly, the practitioner failed to maintain appropriate professional boundaries between himself and FS when she presented enquiring about obtaining a prescription for birth control medication and: [9.4] … (a) asked whether [FS] and [sic] recently undergone a pap smear; (b) performed a pap smear on [FS]; (c) conducted an intimate examination on [FS] without wearing gloves; (d) inserted his fingers into [FS]'s vagina without wearing gloves; and (e) massaged [FS]'s clitoris in a manner that was: (i) without clinical justification; (ii) intentionally and/or recklessly; and/or (iii) in a manner that was sexual and/or inappropriate.45 88 Secondly, the practitioner failed to comply with adequate infection prevention and control measures by failing to wear gloves when conducting an intimate examination on FS.46 44 Further amended grounds [7]; Amended response [7]. 45 Further amended grounds [9.4]. 46 Further amended grounds [10.5]. Notwithstanding the chapeau to [10] the Board did not maintain an allegation that the practitioner had placed his fingers inside of FS's vagina. Further, it was accepted that there -- 19 of 73 -- [2026] WASAT 78 Page 20 89 Thirdly, the practitioner failed to obtain informed consent during the examination and/or failed to communicate effectively with FS in that he: [11.2] … (a) failed to explain the nature of the intimate examination; and (b) failed to provide [FS] with an opportunity to ask questions or refuse the examination.47 90 The core factual matters in the three sets of allegations against the practitioner in relation to FS are that he: 1. massaged her clitoris; 2. did not wear gloves while conducting a pap smear or when inserting his fingers into her vagina; and 3. failed to explain effectively the nature of the examination he was to conduct and so failed to obtain informed consent. Evidence relied on by the Board in relation to FS 91 As noted, FS was not called to give oral evidence at the hearing and there was no evidence from the Board as to why that was the case. 92 The Board tendered the following documents in relation to its allegations concerning FS: 1. an undated letter from FS to the Medical Centre - which appears was sent on 10 February 2014;48 2. an undated letter from FS to the practitioner at the Medical Centre - which appears to have been sent on 12 February 2014;49 3. a letter dated 14 May 2020 from the Medical Centre to AHPRA;50 was a typographical error in [10.5] and it was intended to refer to FS which was accepted without difficulty by the practitioner. 47 Further amended grounds [11.2]. 48 Document 4, Book pages 29 - 30. 49 Document 5, Book page 31. 50 Document 10, Book pages 40 - 41. -- 20 of 73 -- [2026] WASAT 78 Page 21 4. letter dated 4 June 2020 from Dr Katherine Ng to AHPRA;51 5. notes of a consultation between FS and Dr Katherine Ng on 12 February 2014;52 6. a medical record held by the Medical Centre for FS;53 7. a WA Police Incident Report dated 11 February 2014;54 8. a WA Police Running Sheet for the period 11 - 21 February 2014;55 9. a WA Police Withdrawal of Complaint form dated 13 February 2014;56 10. a letter sent by email from AHPRA to FS dated 11 May 2020;57 11. an email sent by FS to AHPRA dated 3 June 2020;58 and 12. a letter dated 8 July 2022 from the practitioner's solicitors to AHPRA regarding the notification sent by them concerning FS.59 93 From the documents tendered, it appears the following events occurred in relation to FS: 1. she attended a consultation with the practitioner at the Medical Centre on 8 February 2014; 2. on 10 February 2014, she wrote to the Medical Centre to complain about certain aspects of the consultation;60 3. by no later than 11 February 2014, FS spoke with a friend of hers who then called WA Police;61 51 Document 11, Book page 42. 52 Document 11.1, Book page 43. 53 Document 12, Book pages 44 - 48. 54 Document 13, Book pages 49 - 51. 55 Document 14, Book pages 52 - 53. 56 Document 15, Book page 54. 57 Document 16, Book pages 55 - 57. 58 Document 17, Book pages 58 - 60. 59 Document 18, Book pages 61 - 66. 60 Document 4, Book pages 29 - 30. We have taken the date of that letter from FS's subsequent letter to the Medical Centre which is Document 5, Book page 31. 61 Document 13, Book pages 49 - 51. -- 21 of 73 -- [2026] WASAT 78 Page 22 4. on 12 February 2014, FS saw Dr Katherine Ng at a different medical centre;62 5. on 12 February 2014, FS wrote a second letter to the Medical Centre marked to the attention of the practitioner;63 and 6. on 12 February 2014, FS indicated to WA Police that she did not wish Police to investigate the matter further and on 13 February 2014 signed a WA Police withdrawal of complaint form.64 94 FS's first letter to the Medical Centre said, in part: I had never had a pap smear before, however I understood vaguely how they were carried out. When I was 18 a female doctor used the silver forceps to do a test so I felt comfortable knowing I had some idea on how the test would be carried out. As I laid on the bench, Dr Seal put lubricant on the end of his fingers and was massaging my clitoris, I thought this was strange, however he was after about 10-15 seconds then trying to find where to put the tool. When he inserted the tool he kept his finger on my clitoris which I thought was strange in my mind at the time, however I had never had one before so I did not really know what to expect. After he had taken the swab and removed the tool, he told me he had to put his fingers inside me to check I was healthy. I felt really uncomfortable when he said this, but he told me it was to check to see if I was healthy and I assumed this is what happened during all pap smears. He was then pushing his fingers without gloves on into me for about 10-15 seconds really deeply and I just laid their uncomfortable thinking this is what has to be done. He then washed his hands and told me to get dressed which I did. I felt uncomfortable afterwards, but in my head I thought that is strange that they are carried out that way.65 95 The call to WA Police by her friend on 11 February 2014,66 may be seen to be, and we take it to be, evidence of recent complaint as to the touching of FS's clitoris and the examination being conducted without the practitioner wearing gloves. That is, it evidenced FS's recent complaint to her friend. 62 Document 11.1, Book page 43. 63 Document 5, Book page 31. We have dated that letter by its reference to 'today I spoke to a female doctor' and the notes taken by Dr Ng on 12 February 2014 in Document 11.1, Book page 43. 64 Document 14, Book page 52. 65 Document 4, Book page 29. 66 Document 13, Book page 49. -- 22 of 73 -- [2026] WASAT 78 Page 23 96 On 12 February 2014, FS stated in her second letter to the Medical Centre that: On Monday the 10th February I sent you a letter regarding my pap smear and how I did not feel comfortable after it was carried out and after speaking with close friends. Today I spoke to a female doctor at … Medical Centre (I did not mention your name) and asked them how they did a regular pap smear. She explained it very slowly to me and she explained it the exact way it was carried out by you. She said some doctors do it differently, but the way she does it was the same way it was carried out by you on Saturday. I thought I would just write to you and let you know that what alarmed me was that none of my friends had, had the same experience as me, but after speaking with the Dr at … Medical Centre I feel comfortable with how it was carried out. In future I would explain it in detail what you are going to do before the actual examination, particularly if the girl has not had one before because I know that's what would have made me more comfortable after it was carried out. I am sorry if my letter offended you, but I thought I would write to you out of courtesy since speaking to the Dr at … Medical Centre.67 97 It is also relevant, here, to record Dr Ng's notes of her consultation with FS on 12 February 2014: had come in for review saw GP in [Medical Centre] (Dr Seal) on Saturday had 1st ever pap smear had pap smear done, and then was uncomfortable when advised that he would be checking to see if she was health [sic], and had gloved lubricated fingers inserted vagina discussed vaginal examination got worried as had talked to girlfriends and their mums who said they have never had internal examinations with pap smears before wrote a letter to [Medical Centre], and got worried when male doctor tried to ring her to discuss it discussed internal examinations states that she would not have been worried had she been properly forewarned about the procedure states that it was done without explanation 67 Document 5, Book page 31. -- 23 of 73 -- [2026] WASAT 78 Page 24 after discussion, feels relieved will write a letter to tell him that she feels better now has discussed with female doctor and leave it at that would prefer not talk to him[.]68 98 As to the complaint in her first letter to the Medical Centre (that her clitoris had been massaged during the examination in an inappropriate way), FS's second letter of 12 February 2014 did not address that directly. But it stated that after, presumably, the consultation with Dr Ng: 'I feel comfortable with how it was carried out'.69 99 From the face of the WA Police Running Sheet, FS told a police officer on 13 February 2014 that 'at some point [the practitioner] touched her clitoris'.70 100 On 13 February 2014, FS signed a WA Police Withdrawal of Complaint form where she stated that she had made a complaint of sexual penetration without consent and: 'I no longer wish for police to investigate this matter and I am happy for police to discontinue this enquiry'.71 101 The notes made by Dr Ng are: 1. consistent with a lack of communication on the part of the practitioner where Dr Ng records FS as stating (after internal examinations had been discussed) that 'she would not have been worried had she been properly forewarned about the procedure' and 'that it was done without explanation';72 and 2. inconsistent with the practitioner not wearing gloves: Dr Ng's notes of the consultation stated: 'had gloved lubricated fingers inserted vagina'.73 102 The Tribunal was told that Dr Ng was not called to give evidence as she had no recollection of the consultation with FS beyond the consultation notes she had made.74 68 Document 11.1, Book page 43. 69 Document 5, Book page 31. 70 Document 14, Book page 52. 71 Document 15, Book page 54. 72 Document 11.1, Book page 43. 73 Document 11.1, Book page 43. 74 ts 236. -- 24 of 73 -- [2026] WASAT 78 Page 25 103 In our view, it is reasonably open to read: 1. FS's second letter to the Medical Centre; 2. the consultation notes with Dr Ng; and 3. the WA Police Running Sheet and Withdrawal of Complaint; as FS no longer considering (as at 13 February 2014) that she had been touched inappropriately (including on her clitoris) during the examination. 104 Of course, we did not have the benefit of hearing from FS as to what was her state of mind at that time. 105 FS in her email to AHPRA (of June 2020) in answer to the question of why she had withdrawn her complaint (which we take to be a reference to her WA Police complaint) said: [9(b)] Because I was satisfied after speaking with the female doctor at … Medical Centre that my main issue with how it went was the same way a female doctor would conduct the exam. The other issues I raised in the letter I put down to a 'bad experience'.75 106 In our view, it is open to read FS's response as meaning: 1. she was no longer concerned she had been inappropriately touched; or 2. that the touching of her clitoris was an 'other issue' which was a 'bad experience'. 107 We are not in a position to reach a view as to what FS meant in that email and, obviously enough, we have not had the benefit of hearing her explain what she meant. It is reasonably open to conclude that the inappropriate touching of her clitoris was part of the 'main issue' about which she subsequently became comfortable. 108 We are not making a finding that FS was subsequently assured that she had not been inappropriately touched. We acknowledge that there may be many reasons why a victim of a sexual assault decides not to pursue a complaint which have nothing to do with the veracity of their claims. Some of those reasons may relate to the way in which complaints by women as to sexual assaults have often been dealt with. 75 Document 17, Book pages 58 - 59. -- 25 of 73 -- [2026] WASAT 78 Page 26 109 At this remove, and with the material put before the Tribunal, we simply do not know why FS wrote and did as she did at that time. 110 In our view, the above documents taken together raise a question as to whether FS had, indeed, come to the view that she had not been inappropriately touched. Those documents cause us, in short, not to be able to reach the required Briginshaw level of satisfaction that there had been such inappropriate touching, including that, as alleged, FS's clitoris had been massaged or touched inappropriately. 111 In FS's first letter to the Medical Centre,76 it may be that her reference to the practitioner not having gloves on was 'limited' to his pushing his fingers into her vagina and that the letter was silent as to whether he was wearing gloves when touching her clitoris. That seems an unlikely reading of the letter, but we do not need to resolve that given the finding we have made as to the touching of FS's clitoris. 112 Dr Ng's consultation notes record a report, as quoted above of, 'gloved lubricated fingers inserted [into FS's] vagina'. 113 As noted, Dr Ng was not called as she reportedly had no recollection of the consultation beyond what was contained in her notes. 114 In our assessment, Dr Ng's consultation notes raise the distinct possibility that FS told her (Dr Ng), at least, that when the practitioner's fingers were inserted into her vagina that he was wearing gloves. 115 If FS had told Dr Ng that the practitioner had not used gloves, it seems questionable that Dr Ng would have documented 'after discussion, feels relieved'.77 It is difficult to imagine that Dr Ng would have said words to FS, if she had been told that ungloved hands had been used, that would have resulted in FS feeling relieved. 116 Having said that, it may be the case that FS's statement in her first letter to the Medical Centre was correct when she said that the practitioner's fingers had been inserted 'without gloves'. 117 Nonetheless, at the least there appears to be an inconsistency between what FS wrote in her first letter to the Medical Centre and what Dr Ng records FS told her in the consultation. 76 Document 4, Book page 29. 77 Document 11.1, Book page 43. -- 26 of 73 -- [2026] WASAT 78 Page 27 118 The Board in closing sought to submit that the Tribunal should take it that the reference to 'gloved' in Dr Ng's consultation notes was a mistake on the part of Dr Ng.78 119 We do not accept that submission. 120 Firstly, the Board tendered the consultation notes as, presumably, being an accurate record. The Board is not able to impugn its own evidence and, in any event, it was unclear on what basis the Board would seek to do so. It appeared to be an entirely speculative submission. 121 Further, the explanation of 'mistake' is somewhat at large. Was the Board submitting that Dr Ng: 1. mis-heard FS and so mis-recorded what she had been told; or 2. made a typographical error and intended to record 'ungloved'. 122 As we have said, the difficulty with the second of those options is that it appears to be inconsistent with the balance of the consultation notes in the way we have set out; namely, that FS felt relieved at the end of the consultation with Dr Ng. 123 In all of the circumstances, we are unable to reach the level of satisfaction required by the Briginshaw standard on the allegations that the practitioner did not use gloves at the consultation with FS. It may be that FS's first letter to the Medical Centre was accurate. However, we cannot be satisfied to the required standard that is the case. 124 The position is, however, different in respect of the complaint that the practitioner had not explained, or sufficiently explained, to FS the nature of the examination he was to conduct and failed to provide FS with an opportunity to ask questions or refuse the examination.79 125 In our view, the documents admitted into evidence establish that the practitioner did not explain the procedure he was about to conduct and, by necessary extension, failed to provide FS with the opportunities as alleged to ask questions or refuse the examination. 126 The question of whether that evidence can be given weight and accepted where FS did not give evidence, remains. 78 ts 249. 79 Further amended grounds [11.2]. -- 27 of 73 -- [2026] WASAT 78 Page 28 127 It is to be assessed, in our view, by the evidence which the practitioner gave in respect of the consultations with OJ and CB. Namely - although these were much later and so closer in time to the hearing in the Tribunal - the practitioner had no, on his evidence, actual recollection of the consultation and gave evidence, rather, of what his general practice was. 128 We have dealt below with the evidence given by the practitioner and our findings in relation to it. The finding in which we have made against the practitioner in relation to FS has been made taking into account all of those matters to do with his evidence. 129 For completeness, we note that even if we had found the first, second and fifth propensities sought to be established by the Board80 we would not have reached any different conclusion in respect of the allegations made against the practitioner concerning FS. Disposition of the Board's allegations in respect of FS 130 We are satisfied that the practitioner failed to obtain informed consent during the examination of FS and failed to communicate effectively with FS in that: 1. he failed to explain the nature of the intimate examination; and 2. he failed to provide FS with an opportunity to ask questions or refuse the examination. 131 For the reasons set out above, we are not otherwise satisfied that the Board has established its allegations against the practitioner in respect of FS. CT 132 It was not in dispute that CT was born in 1993 and was seen by the practitioner at the Medical Centre on 16 June 2017, when she was in her mid-20's.81 133 It may have been the case from the Medical Centre's records that the practitioner had seen CT on one prior occasion on 7 March 2017.82 However, that first consultation was not the subject of any allegation by 80 Applicant's opening submissions [29(a), (b) and (c)]. 81 Further amended grounds [8]; Amended response [8]. 82 Document 21, Book page 73; ts 138. -- 28 of 73 -- [2026] WASAT 78 Page 29 the Board and does not appear to be material to any issue which is to be decided. 134 The practitioner conducted a pap smear on CT during that (second) consultation.83 Board's allegations against the practitioner in relation to CT 135 It appears that CT presented with a wart on her finger for cryotherapy and, at the least, there was a pap smear taken by the practitioner.84 136 The Board alleged that the practitioner failed to obtain informed consent during the examination on 16 June 2017 and/or failed to communicate effectively with CT and conducted an intimate examination where he: [11.4] … (a) failed to provide an adequate explanation for the need to conduct an intimate examination; and (b) failed to explain to [CT] that she could undress and dress in private.85 Evidence relied on by the Board in relation to CT 137 As noted, CT was not called to give oral evidence at the hearing and there was no evidence from the Board as to why that was the case. 138 The Board tendered the following documents in relation to its allegations concerning CT: 1. an email dated 13 May 2019 from the owner and operator of the Medical Centre (via Ms Jones) to AHPRA;86 2. CT's handwritten complaint on a complaint form of the operator of the Medical Centre dated 10 June;87 3. an email sent from the Medical Centre dated 19 June 2017 to CT;88 and 83 Further amended grounds [11.3]; Amended response [12.5]. 84 Further amended grounds [11.3]; Amended response [12.4] - [12.5]; Document 21, Book page 74. 85 Further amended grounds [11.4]. 86 Document 19, Book page 67. 87 Document 19.1, Book pages 68 - 70. 88 Document 20, Book page 71. -- 29 of 73 -- [2026] WASAT 78 Page 30 4. a medical record held by the Medical Centre for CT.89 139 The handwritten complaint of CT in response to the question on the form of 'Description of incident leading to the complaint' said in full (and uncorrected for spelling or grammatical matters):90 I came for a wart in my hand and end it up in a totally different situation with disrespectful 'examination' of my intimate parts. I came for treat a wart on my finger of my hand and ask a dermatologist to burn it with nitrogen. The doctor Saumitra Seal did so but then he said it might be a virus that can affect other parts of my body so recommend to the 'other' exams. He start asking me about my sexual relationship, and as to take my pants to take some 'samples'. He use unusual tools in my intimate parts and after taking the samples for the exams he said he have to do an examination and start touching me a lot with his fingers more inside and moving them around and into my vagina which is not accurate, professional, usual, at lot. He was extremely rude, he make weird noises so of course I ask to stop he didn't leave me alone to put my pants again so I gently ask him to leave at least behind the curtain so I can put my pants and leave. He didn't give any explanation about that final ex. (original emphasis) 140 The Medical Centre's notes of 16 June 2017 corroborate that CT had a wart on her hand and was treated by cryotherapy using liquid nitrogen.91 141 The notes also record 'an STI check & pap smear' with it being recorded that: Cervix looks benign. No cervical ectopy. Pap smear taken.92 142 Further, it appears that the endocervical swab was sent to Clinipath for testing. Disposition of the Board's allegations in respect of CT 143 We wish to make plain that in the following we are not making a finding that the examination did not occur in the way recorded by CT. 144 In addition, whatever reservations we may have about how the presentation with a wart led to an intimate examination, that is not part of the Board's case against the practitioner in respect of CT. 89 Document 21, Book pages 72 - 75. 90 Document 19.1, Book page 68. 91 Document 21, Book page 74. 92 Document 21, Book page 74. -- 30 of 73 -- [2026] WASAT 78 Page 31 145 On the material before the Tribunal, we have not been able to reach the required level of satisfaction that the Board has established either of its two allegations made in respect of CT. 146 We have not been able to find sufficiently clear and cogent evidence to cause us to feel an actual persuasion to the appropriate standard. 147 We note, for completeness, that even if we had found the only relevant propensity to the Board's allegations here (namely a propensity to fail to obtain informed consent prior to performing an intimate examination) that would not have caused us to reach a different conclusion. CB 148 It was not disputed that CB was born in 1988 and saw the practitioner once on 31 January 2019, when she was about 30 years old.93 149 In the course of that consultation, the practitioner administered a vaginal swab on CB. The Board's allegations against the practitioner in relation to CB 150 The Board made three sets of allegations against the practitioner from the consultation on 31 January 2019. 151 Firstly, the Board alleged that the practitioner failed to maintain appropriate professional boundaries and alleged: [9.2] The Respondent saw [CB] at [the Medical Centre] on 31 January 2019, who presented with abdominal pain and vaginal discharge. At the consultation on 31 January 2019, the Respondent: (a) did not offer to leave the room prior to asking [CB] to remove her clothes; (b) kept his hand on [CB]'s mons pubis for the duration of the examination; (c) conducted an intimate examination on [CB] without wearing gloves;94 93 Further amended grounds [5]; Amended response [5]. 94 The Board did not allege that the practitioner had inserted a finger into CB's vagina: ts 57. -- 31 of 73 -- [2026] WASAT 78 Page 32 (d) failed to offer [CB] a modesty cloth; and (e) touched [CB]'s clitoris in a back and forth motion for approximately two seconds in a manner that was: (i) without clinical justification; (ii) intentionally and/or recklessly; and/or (iii) in a manner that was sexual and/or inappropriate.95 152 Secondly, the Board alleged that the practitioner had failed to comply with appropriate infection control procedures for an intimate examination by failing to wear gloves.96 The chapeau to this allegation referred to the practitioner 'placing his fingers inside the vagina' of CB. However, the hearing was conducted on the basis that the allegation being made was that the taking of the swab by the practitioner from CB's vagina was the intimate examination (and it was not alleged the practitioner had placed his fingers inside of CB's vagina).97 153 Thirdly, the Board alleged that the practitioner failed to obtain informed consent from CB during an examination and/or failed to communicate effectively with her and alleged that he: [11.6] … (a) failed to explain the nature of the intimate examination; (b) failed to provide [CB] with an opportunity to ask questions or refuse the examination; and (c) failed to explain to [CB] that she could undress and dress in private.98 154 To be clear, the 'intimate' examination of CB in the allegations made referred to the taking of a vaginal swab. Evidence relied on by the Board in relation to CB 155 CB gave her evidence by a video link from England with the consent of the practitioner. 95 Further amended grounds [9.2]. 96 Further amended grounds [10.5]. 97 ts 57. 98 Further amended grounds [11.6]. -- 32 of 73 -- [2026] WASAT 78 Page 33 156 In the course of CB's oral evidence, the Board tendered her statement made to AHPRA dated 23 February 2021,99 with the exception of [25] to [28];100 and tendered two attachments to that statement, namely: 1. her statement dated 27 February 2019 to WA Police which was Attachment A;101 and 2. a statement that she had received from the owner and operator of the Medical Centre (via Dr Hales) which was Attachment B.102 157 During the course of the hearing, the following documents were also tendered and taken into evidence in relation to CB's consultation: 1. a medical record held by the Medical Centre for CB;103 2. a statement of Dr Anne Hales dated 19 March 2021;104 and 3. a statement of Ms X dated 21 March 2022 [1] - [16].105 158 Neither Dr Hales nor Ms X was called to give oral evidence. CB as a witness 159 The practitioner, in closing, described CB as having given her evidence 'in a thoughtful, considered manner, without any embellishment'.106 160 With respect, we agree. CB impressed us as a candid and forthright witness who was careful in the way she gave her evidence. 161 In a number of places, in her cross-examination, she was unable to recall details or specific matters which was unsurprising given the passage of time. She also accepted in places that although she didn't recall certain things happening, it was possible that they did.107 99 Document 31, Book page 115 and following. 100 Document 31, Book page 118; ts 58. 101 Document 31.1, Book page 121 and following. 102 Document 31.2, Book page 126. 103 Document 24, Book pages 86 - 90. 104 Document 32, Book pages 127 - 130. 105 Document 33, Book pages 131 - 133. The Board did not seek to tender [17] onwards of this statement. 106 ts 286. 107 See, for example, ts 66 and ts 67. -- 33 of 73 -- [2026] WASAT 78 Page 34 162 It did not appear that she sought to 'improve' her evidence or to put her evidence into a more favourable light. 163 She did not appear to have any anger or animus towards the practitioner. CB's evidence 164 The Board principally relied on CB's statements made to WA Police and to AHPRA as her evidence-in-chief and so most of her oral evidence was given in cross-examination, with a little given in re-examination. 165 Unless we indicate otherwise, we have accepted the evidence which we set out in the paragraphs below. 166 CB was born in Spain and her first languages are Spanish and Catalan.108 167 She gave unchallenged evidence of when she left Spain to travel and then of the anglophone countries she had lived in prior to coming to Australia.109 168 She now works as a counsellor and an independent support worker, and gave unchallenged evidence of when she had begun to live in England.110 169 At the time of the consultation, CB was in Australia on a tourist visa and was working.111 170 CB was experiencing vaginal discharge and thought she may have a urinary tract infection.112 171 After contacting her travel insurer, she was booked at the Medical Centre and was seen by the practitioner on 31 January 2019.113 172 Apart from describing a possible urinary tract infection and vaginal discharge, CB also spoke to the practitioner about issues with her contraceptive coil.114 108 ts 64. 109 ts 65. 110 ts 65. 111 Document 31.1 [2], [3], Book page 121. 112 Document 31 [6], Book page 115; Document 31.1 [4], [10], Book page 121; ts 66 - 67. 113 Document 31.1 [5], [6], [8], Book page 121. -- 34 of 73 -- [2026] WASAT 78 Page 35 173 Prior to the examination, the practitioner closed the curtains on the window facing the street. He did not offer her a modesty or privacy cloth.115 174 CB's evidence was that the practitioner asked her to remove her shorts and underwear and lie on a bed in the examination room,116 and that there was no one else present in the room when she did so.117 Her evidence was that the practitioner did not leave the room or provide a privacy screen, although he did move to another part of the room. She felt very uncomfortable undressing in his presence without any privacy.118 175 Her evidence was that there may have been a blue privacy curtain in the room, but she did not remember it being closed during the examination and did not recall the curtain covering anything during the examination.119 176 She did not accept that the practitioner told her to let him know once she had got undressed and was ready.120 177 As she was lying on the bed, she saw the practitioner come towards the bed and she could see that he was not wearing any gloves and did not wash his hands before the examination.121 Her evidence was that at no time throughout her examination did she see the practitioner wearing gloves, which worried her as she was already worried that she had an infection.122 178 Her evidence was that she was instructed by the practitioner to lay on her back with her feet together and legs open.123 Although she did not exactly remember, her evidence was that at some stage she was told to move her knees apart.124 114 Document 31 [6] - [7], Book pages 115 - 116; Document 31.1 [11], Book page 122; ts 66. 115 Document 31 [13] - [14], Book page 117; ts 74. 116 ts 72. 117 Document 31.1 [12], [13], Book page 122. 118 Document 31 [11], Book page 116. 119 ts 75 - 76. 120 ts 76. 121 Document 31 [15] - [17], Book page 117; Document 31.1 [14], [15], Book page 122. 122 Document 31 [15] - [16], Book page 117. 123 Document 31 [18], Book page 117. 124 ts 79. -- 35 of 73 -- [2026] WASAT 78 Page 36 179 In cross-examination, she did not recall whether there was an instrument trolley near the bed or whether there was a pillow on the bed, but she thought there was a roll or sheet of paper on the bed.125 180 She imagined or thought that an instrument tray had been put between her legs but she did not exactly remember how that occurred.126 181 She did not recall whether there was a lamp attached to the wall when she had her examination.127 Her evidence was that she did not recall the lamp was in the room and whether it was turned on by the practitioner.128 182 Her evidence was that she recalled the practitioner visually checking her vulva area.129 183 CB's evidence was that the practitioner touched her around her vulva and she felt him separate her labia with his fingers130 and then take a vaginal swab.131 Her evidence was that he was not touching hard but it was not soft either.132 184 CB's evidence was that when the practitioner inserted the swab into her vagina he touched her clitoris with his other hand and she felt a quick back and forth motion on her clitoris.133 She said the practitioner 'did not rub it but it did not feel like he had just brushed over it either'.134 185 She described that touching of her clitoris as lasting about two seconds although she could not say exactly for how long.135 Her evidence in cross-examination was that she could not say the time exactly but it felt like a back and forth motion and it was not just a tap.136 125 ts 74. 126 ts 80. 127 ts 75 - 76, 79. 128 ts 79. 129 ts 80. 130 ts 80. 131 Document 31 [19] - [20]. Book page 117; Document 31.1 [16], [17], [19], Book page 122. 132 Document 31.1 [18], Book page 122. 133 Document 31 [20] - [21], Book page 117; Document 31.1 [20] - [21], Book page 122. 134 Document 31.1 [22], Book page 122. 135 Document 31 [21], Book page 117. 136 ts 80. -- 36 of 73 -- [2026] WASAT 78 Page 37 186 In re-examination when asked about her evidence in cross-examination that the touching of her clitoris was for two seconds more or less, she said: I - I mean that I cannot say exactly it lasted for two seconds. … I didn't time it, you know? … I know it wasn't short … I feel it was longer than a touch. So for me, it wasn't just a tap with the finger, like, accidentally, you touch that. It was a rub.137 187 She described feeling extremely frightened distressed and very vulnerable.138 Her evidence was that she felt trapped and very vulnerable being partially undressed in the room alone with the practitioner.139 188 Her oral evidence was that she did not react 'externally' to her clitoris being touched and did not say anything. Her evidence was that she froze and was confused.140 189 CB's evidence was that the practitioner did not talk to her through the examination.141 She said that at no point did the practitioner tell her what he planned to do in the examination or why he was doing it.142 190 After removing the swab from her vagina, CB's evidence was that the practitioner told her she could get dressed.143 191 Her evidence was that the practitioner did not leave the room when she was getting re-dressed or provide her any privacy.144 Again, he did move to another point in the room but she still felt very uncomfortable dressing without any privacy.145 After getting dressed, she sat in the chair next to his desk.146 192 Her evidence was that she remembered that the practitioner, after the examination, walked towards the sink and washed his hands.147 193 CB's evidence was that she saw the practitioner wash his hands after the examination, but not before.148 137 ts 87. 138 Document 31 [22], Book pages 117 - 118; ts 80. 139 Document 31 [22], Book pages 117 - 118. 140 ts 81 - 82. 141 Document 31 [23], Book page 118. 142 Document 31 [10], Book page 116. 143 Document 31.1 [23], Book page 122. 144 Document 31 [23], Book page 118. 145 Document 31 [12], Book page 116. 146 Document 31.1 [23], [24], Book pages 122 - 123. 147 ts 82. -- 37 of 73 -- [2026] WASAT 78 Page 38 194 In cross-examination, CB did not accept that the first time she had noticed the practitioner was not wearing gloves was after she was re-dressed and sitting at his desk.149 She maintained her evidence that she had seen that he was not wearing gloves before the examination and was not shaken in cross-examination on that point.150 195 In oral evidence she said she felt distressed and confused.151 Her evidence was that after the examination, all that she could think of was to leave the practitioner's room as quickly as possible.152 196 Although the Board did not lead [27] of CB's statement to AHPRA,153 that was 'led' from her in the course of her cross-examination.154 That evidence was that she considered it unusual that the practitioner took the vaginal swab himself as previously doctors had allowed her to take the swab herself in private. She clarified in cross-examination that if she had previously seen a specialist, then they would take the swab, but if she saw a GP or went to a sexual health clinic, then she would take the swab herself.155 197 Her evidence was that within a week of the examination she talked about what had occurred with her housemate, Ms X.156 In cross-examination, CB did not recall telling Ms X that she had attempted to physically resist the practitioner by closing her legs,157 and denied that she told Ms X that the practitioner had tried to reassure her that what he was doing was normal.158 198 Following her conversation with her housemate, she went back to the Medical Centre for a follow up appointment with a female doctor (Dr Hales) and she told her of her experience at the consultation with the practitioner.159 148 Document 31 [17], Book page 117. 149 ts 83. 150 ts 83. 151 ts 80. 152 Document 31 [24], Book page 118. 153 Document 31. 154 ts 69. 155 ts 69 - 70. 156 Document 31 [29], Book page 118. 157 ts 84. 158 ts 84. 159 Document 31 [30] - [32], Book page 119. -- 38 of 73 -- [2026] WASAT 78 Page 39 199 Following that appointment with Dr Hales, CB went to Fremantle police station and gave the Statement to WA Police which was Attachment A to her statement to AHPRA.160 200 CB's evidence was that in February 2021 she still felt distressed by her experience with the practitioner.161 201 In answer to the question in cross-examination as to whether the practitioner spoke with an accent, CB's evidence was that she did not remember his voice but said that from his appearance he may have had an accent but she did not recall it.162 202 Her evidence in cross-examination was that it is always easier to speak about difficult things in her own language but in early 2019, she was confident speaking in English also.163 203 CB was cross-examined as to whether, prior to 2019, she had any friends from Bangladesh and her answer was that she did not recall having any.164 In re-examination, CB's evidence was that she had friends from many different countries (and languages) before being in Perth in 2019.165 204 When it was suggested to her that she had missed some of what was said by the practitioner because of his accent she disagreed166 and said that she would have asked for clarification if she had missed something.167 Certainly, to our observation, CB had no hesitation in asking for questions to be put again or to be clarified in the course of her evidence. 205 CB's evidence was that she did not recall the practitioner asking her for a urine sample but there might have been such a request although she did not remember it.168 Her evidence was that she did not remember providing a urine sample after leaving the examination room (as was put to her in cross-examination).169 160 Document 31 [35] - [36], Book page 119. 161 Document 31 [37], Book page 119. 162 ts 71. 163 ts 65. 164 ts 71. 165 ts 87. 166 ts 71 - 72. 167 ts 71. 168 ts 73. 169 ts 73. -- 39 of 73 -- [2026] WASAT 78 Page 40 206 She disagreed, in cross-examination, with the propositions that: 1. the practitioner said to her that she needed to undress from the waist down to take the swab;170 (although she did agree that he told her that she would need to go to the bed and remove her shorts and underwear);171 2. the practitioner told her that the purpose was to conduct a vaginal examination rather than just take a swab; 3. there was a privacy cover on the bed;172 and 4. the practitioner said something to her that she understood to mean that he was going to visually examine her vulva.173 207 She accepted that the practitioner had said something to her to the effect that he was going to take a vaginal swab and also that he was going to take the swab for testing.174 208 In that part of Ms X's statement which was tendered, Ms X gave evidence of: 1. her observation of the state CB was in after returning from the Medical Centre;175 2. CB telling her she had just been to a medical appointment and had had a procedure which had left her feeling confused and concerned;176 and 3. CB telling her that during the procedure she had been touched on her vulva and clitoris without gloves on.177 209 Dr Hales' statement recorded that the appointment on 4 February 2019 was the first time she had met or treated CB.178 210 At the end of their consultation, CB told Dr Hales that she (CB) felt uncomfortable in her previous appointment with the practitioner.179 170 ts 85. 171 ts 72 172 ts 85. 173 ts 85. 174 ts 85. 175 Document 33 [9] - [11], Book page 131. 176 Document 33 [11] and [14], Book page 132. 177 Document 33 [15] - [16], Book page 132. 178 Document 32 [4], Book page 127. -- 40 of 73 -- [2026] WASAT 78 Page 41 211 Dr Hales' statement then was: 10. I asked [CB] why she felt uncomfortable. She told me that Dr Seal inspected her 'down there' without gloves and that he touched her in the 'upper part of down there'. [CB] appeared uncomfortable talking about her experience with Dr Seal. 11. [CB] stated words to the effect of 'maybe this is normal in Australia'. It appeared to me that [CB] was trying to minimise and rationalise Dr Seal's conduct. 12. I told [CB] that in Australia it was standard practice to wear gloves whenever a doctor performed a vaginal examination. 13. I then asked [CB] if she could elaborate on how Dr Seal touched her. She told me that the palm of his left hand rested on her pubic bone with his fingers opening her labia whilst he used his right hand to investigate and take vaginal swabs. She said at this point she felt his finger touch her in the 'upper part of down there' for a few seconds. I took this to mean her clitoris, but never clarified this with her.180 212 Dr Hales' statement also gave evidence about what Dr Hales did following that first consultation on 4 February 2019181 and of their second consultation on 6 February 2019.182 We do not need to set out that evidence here. 213 We have already made our observations, above, concerning CB as a witness. We accept her evidence, within the limits of her memory, as being honest, credible and reliable. 214 We consider that the conversation she had with her housemate, Ms X, and then her consultation with Dr Hales, may be seen to be, and we take it to be, evidence of CB's recent complaint as to the touching of her clitoris and the examination being conducted without the practitioner wearing gloves. 215 Because of the view we have taken as to CB's credibility (and the practitioner's submissions as to the same), we do not consider that it required any buttressing. However, we would accept the recent complaint to her housemate and Dr Hales as buttressing her credibility if it were needed. 179 Document 32 [8], Book page 127. 180 Document 32 [10] - [13], Book page 128. 181 Document 32 [17] - [18], Book page 129. 182 Document 32 [19], [22], Book page 129. -- 41 of 73 -- [2026] WASAT 78 Page 42 Disposition of the Board's allegations in respect of CB 216 We are satisfied that the Board has made out the allegations made in its further amended grounds that the practitioner: 1. [9.2(a)]: did not offer to leave the room prior to asking CB to remove her clothes; 2. [9.2(c)], [10.5]: conducted an intimate examination on CB without wearing gloves; 3. [9.2(d)]: failed to offer CB a modesty cloth; 4. [9.2(e)(i) - (iii)]: touched CB's clitoris; and 5. [11.6(a) - (c)]: failed to obtain informed consent and failed to communicate effectively with CB. 217 We have not found that the Board, to the required level of satisfaction, has made out its allegation made in the further amended grounds at [9.2(b)]. 218 We have set out below the practitioner's evidence and our findings in relation to it. 219 The findings we have made above in relation to CB have been made after our findings in relation to the practitioner's evidence and after taking that evidence of the practitioner into account. OJ 220 It was not disputed that OJ was born in 1986 and had seen the practitioner once before on 15 August 2018.183 That first consultation was not material to the allegations made or the evidence given. 221 The Board's allegations concerned OJ's second consultation with the practitioner which it was common ground occurred on 4 February 2019, when OJ was in her early 30's.184 222 The practitioner conducted a vaginal swab on OJ in that consultation.185 183 Further amended grounds [8A]; Amended response [9]. 184 Further amended grounds 8A; Amended response [9]. 185 Amended response [10.17.2]. -- 42 of 73 -- [2026] WASAT 78 Page 43 Board's allegations in respect of OJ 223 Broadly, the Board made four sets of allegations against the practitioner in respect of the consultation with OJ on 4 February 2019. 224 Firstly, the Board alleged that the practitioner failed to maintain appropriate professional boundaries in respect of OJ on 4 February 2019: [9.5] The Respondent saw [OJ] at [the Medical Centre] on 4 February 2019 in relation to an issue with recurrent urinary tract infections (UTI). At the consultation on 4 February 2019, the Respondent: (a) did not offer to leave the room prior to asking [OJ] to remove her pants; (b) failed to offer [OJ] a modesty cloth; (c) conducted an intimate examination on [OJ] without wearing gloves; (d) inserted his fingers into [OJ]'s vagina without wearing gloves; and (e) massaged [OJ]'s clitoris in a manner that was: (i) without clinical justification; (ii) intentionally and/or recklessly; and/or (iii) in a manner that was sexual and/or inappropriate.186 225 The Board accepted in the hearing that there was no evidence to support the allegation made at [9.5(d)],187 and the Tribunal has not considered that allegation further. 226 Secondly, the Board alleged that the practitioner failed to comply with adequate infection prevention and control measures by failing to wear gloves when conducting an intimate examination on OJ.188 227 The Board's allegation of an 'intimate examination' did not include any internal vaginal examination of OJ.189 186 Further amended grounds [9.5]. 187 ts 95. 188 Further amended grounds [10.6] - [10.7]. 189 ts 25. -- 43 of 73 -- [2026] WASAT 78 Page 44 228 Thirdly, the Board alleged that the practitioner failed to obtain informed consent from OJ during the examination and/or failed to communicate effectively with her and alleged that he: … (a) failed to explain the nature of the intimate examination; (b) failed to offer [OJ] a chaperone be present during an intimate examination; (c) failed to provide [OJ] with an opportunity to ask questions or refuse the examination; and (d) failed to explain to [OJ] that she could undress and dress in private.190 Evidence relied on by the Board in respect of OJ 229 In the course of OJ's oral evidence, the Board tendered: 1. the complaint OJ made to AHPRA dated 18 October 2023;191 2. OJ's statement made to AHPRA dated 13 December 2023;192 and 3. medical records held by the Medical Centre for OJ.193 230 Further, in the course of the hearing, the Board tendered in relation to OJ's complaint: 1. the notes made by the practitioner of the consultation with her on 15 August 2018;194 and 2. a letter dated 1 March 2024 from the practitioner's solicitors to AHPRA responding to its notification concerning OJ.195 OJ's evidence 231 OJ's evidence was that her first appointment with the practitioner in August 2018 was without incident and the practitioner had seemed 190 Further amended grounds [11.7]. 191 Document 35, Book pages 136 - 143. 192 Document 38, Book pages 153 - 156. 193 Document 36, Book pages 144 - 150. 194 Document 41.1, Book page 165. 195 Document 41, Book pages 160 - 164. -- 44 of 73 -- [2026] WASAT 78 Page 45 professional throughout.196 In her oral evidence, she did not recall what the first consultation was about.197 232 As to the second consultation, OJ said she had an issue with recurrent urinary tract infections198 and her sister suggested that she go to the doctor to get a specific test199 - the name of which she could not recall in her statement to AHPRA,200 nor in her oral evidence.201 233 OJ's evidence was that she understood at the time of booking and attending the appointment that the test her sister had suggested involved her giving a urine sample.202 234 On the Medical Centre's website she booked the first available appointment which was with the practitioner.203 235 OJ gave evidence about what she recalled of the consultation room.204 236 OJ described the consultation room and the examination bed and identified photos which looked like the consultation room in February 2019.205 237 OJ's evidence was that she sat on the chair next to the practitioner's desk and said that she was getting a lot of UTIs and that she wanted to get a test done for it.206 238 Her evidence was that the practitioner said words to the effect of 'Okay, hop on the bed and take your pants off'.207 Her evidence was that she 'just did exactly that'.208 239 Her evidence was that this was a quick exchange and no explanation was given to her by the practitioner.209 196 Document 38 [3], Book page 153; ts 27. 197 ts 27. 198 Document 38 [4], Book page 153. 199 ts 28. 200 Document 38 [4], Book page 153. 201 ts 28, 39. 202 Document 38 [4] - [5], Book page 153. 203 Document 38 [5], Book page 153; ts 40. 204 Document 38 [8], Book page 153; ts 28 and ts 29. 205 The photographs being documents 42 and 43 at pages 167 and 168 of the Book; ts 29. 206 Document 38 [9], Book page 153; ts 29. 207 Document 38 [9], Book page 153; ts 30. 208 Document 38 [12], Book page 154; ts 30. 209 Document 38 [9], Book page 153; ts 30. -- 45 of 73 -- [2026] WASAT 78 Page 46 240 OJ's evidence was that the practitioner did not say anything to her about another person, such as a chaperone, being present during the examination.210 241 Her evidence was that the examination bed was on the left-hand side of the room and that there was a sink at the foot of the bed so that when she lay down on the bed, her feet were towards the sink.211 242 While she accepted in cross-examination that she knew the taking of a vaginal swab would involve a doctor inserting a swab into her vagina, she said she was not told by the practitioner that he was going to do a vaginal swab and had been given no advice about that.212 243 OJ's evidence was that she thought there was a privacy curtain in the room,213 but she could not remember if the curtain was closed.214 She did not recall whether she undressed in private.215 244 OJ's evidence was that she did not remember where the practitioner was while she was getting onto the bed and could not remember whether he was in the room or outside the room.216 245 Her evidence was that she was lying on the examination bed with her feet facing the sink, naked from her waist down.217 OJ did not recall whether she had any covering on her such as a modesty covering or sheet.218 In cross-examination, she said she was not sure if there was a pillow on the bed.219 246 Her evidence was that the practitioner approached the bed but nothing was said, and she was feeling awkward and looking at the ceiling.220 OJ's evidence was that she could not remember saying to the practitioner, when she was on the bed prior to the examination, that she was ready.221 She did not recall how her legs were arranged.222 She accepted that she was aware of the practitioner putting an 210 Document 38 [11], Book page 154; ts 30. 211 Document 38 [12], Book page 154. 212 ts 43. 213 Document 38 [12], Book page 154; ts 31. 214 ts 32; ts 44. 215 ts 44. 216 ts 30. 217 Document 38 [13], Book page 154. 218 Document 38 [13], Book page 154; ts 31. 219 ts 45. 220 Document 38 [13] - [14], Book page 154; ts 45. 221 ts 45. 222 ts 46. -- 46 of 73 -- [2026] WASAT 78 Page 47 instrument tray between her legs223 and accepted that when she got off the bed after the examination there was no instrument tray on the bed.224 247 OJ's evidence was that at that time she assumed that the practitioner was going to perform a 'pap smear type of examination'.225 248 Consistently with her evidence that nothing was said at that point between her and the practitioner, she did not accept that she had 'agreed' to the doctor taking the vaginal swab226 and said there was no conversation during the process.227 249 In cross-examination, OJ was asked whether she was asked to provide a urine sample, but she did not recall that being requested or her giving such a sample.228 250 It was put to her that she had trouble understanding, at times, what the practitioner had said to her because of his accent.229 251 OJ's evidence was that she did not remember there being any conversation while she was on the bed.230 252 She accepted that the practitioner was on the right-hand side of the bed from her perspective as she was lying there and he was at about her hip/thigh area.231 253 In her initial complaint to AHPRA dated 18 October 2023, OJ stated: He grabbed/pulled my labia and clitoris area while he conducted the test.232 254 In OJ's statement to AHPRA of 13 December 2023, she said: 14. … I felt Dr Seal grab the external area of my vagina above my clitoris with two fingers and pull open the lips of my vagina. When I say grabbed, it wasn't rough and it didn't hurt, it just didn't feel like touching I had experienced in intimate 223 ts 46. 224 ts 47. 225 ts 30. 226 ts 46. 227 ts 46. 228 ts 42 - 43. 229 ts 43. 230 ts 31. 231 ts 45 - 46. See also Document 38 [17], Book page 154. 232 Document 35, Book page 139. -- 47 of 73 -- [2026] WASAT 78 Page 48 examinations like a pap smear. It made me question in my mind what was happening. 15. At the same time, I felt another finger touch my whole clitoris in one sliding motion, from the bottom to the top, as Dr Seal's two other fingers were pulling my vagina open. At this stage, I was wondering if Dr Seal was swabbing, or trying to get the swab into my vagina, but I didn't feel any swabbing. 16. I was still looking up at the ceiling, and then Dr Seal took his fingers off my vagina. During the test, Dr Seal did not talk or explain anything to me, and I did not say anything either. 17. Dr Seal then said 'ok' which I took to mean that the test was done. It felt as though the whole test was over in about five seconds. I was trying to assure myself that everything was fine and normal during this time, because Dr Seal is a doctor.233 255 OJ told the Tribunal that she did not recall an instrument being used in the examination and that: '… in a normal pap smear you can feel it and it's quite uncomfortable the way that the pap smear happens and it wasn't like that at all'.234 256 In cross-examination, she maintained that she did not feel a swab being taken.235 257 It was plain in OJ's evidence that she did not see where the practitioner's hand or fingers were about her labia or clitoris and that she was trying to 'best describe the feeling down there'.236 258 Her oral evidence was that the practitioner grabbed the lips of her labia237 and pulled up towards her belly button.238 She confirmed that evidence in her cross-examination.239 In her oral evidence, as she described this, she held the four fingers of her left hand together facing downwards. She then moved her hand in an upwards direction. Her evidence was that while that was being done, there was a finger or fingers on her clitoris.240 233 Document 38, Book page 154. 234 ts 54. 235 ts 47. 236 ts 55. 237 ts 31. 238 ts 32. 239 ts 46. 240 ts 32; ts 54; ts 56. -- 48 of 73 -- [2026] WASAT 78 Page 49 259 OJ's evidence was that the practitioner touched her clitoris for about five seconds.241 260 In cross-examination, OJ maintained that she had felt a finger or fingers on her clitoris and that 'everything in that touching situation' happened for about five seconds.242 There was no serious challenge to that evidence. 261 OJ's evidence was that when the practitioner finished he said 'okay'; which she took to mean that the test was done.243 262 OJ's evidence was that after the practitioner said 'okay' she sat up straight away on the bed facing the sink and the practitioner was washing his hands.244 263 OJ's evidence was that she did not hear any gloves being taken off and she thought that the practitioner did not have gloves on during the examination.245 Her evidence was that there was 'no way' that the practitioner could have taken gloves off between the test finishing and her sitting up.246 264 She maintained her evidence in cross-examination that she saw the practitioner washing his hands as soon as she sat up from the bed (and not when she had re-taken her chair by the desk).247 265 She accepted that she did not look into any rubbish bins in the consultation room and had not seen any box of gloves on the practitioner's desk.248 266 OJ's evidence was that her mind at the time was 'racing' and that she must have put her clothes back on and she recalled sitting back in the chair by the side of the desk.249 267 OJ's evidence was that when she sat down in the chair next to the desk that the practitioner was very awkward.250 The practitioner did not have his legs under the desk but had his elbows on his legs and so he 241 ts 32 - 33. 242 ts 54. 243 Document 38 [17], Book page 154; ts 33. 244 ts 33; Document 35, Book page 139; Document 38 [18], Book page 154. 245 ts 33; Document 35, Book page 139; Document 38 [18] - [20], Book page 154. 246 Document 38 [18], Book page 154. 247 ts 48. 248 ts 48. 249 ts 33 - 34; Document 35, Book page 139; Document 38 [20], Book page 154. 250 Document 38 [21], Book page 154. -- 49 of 73 -- [2026] WASAT 78 Page 50 was hunched over and, in her mind, she was thinking whether he was hiding an erection.251 268 After the consultation, OJ's evidence was that she felt 'gross'.252 She described feeling at the end of the consultation 'very invaded, embarrassed, awkward, shocked'.253 269 She did not report anything to the Medical Centre because she did not know who she would tell and she was confused because the practitioner had otherwise seemed polite and kind.254 270 Following that consultation, OJ's evidence was that she told her then partner, now husband, what happened at the appointment255 and that the practitioner had touched her clitoris while he was not wearing gloves.256 271 There was no direct challenge in cross-examination as to the matters which OJ said she had told her then partner on the day of the consultation. Rather, there was a 'challenge' in cross-examination that she did not tell him (her partner) that the practitioner may have had an erection.257 272 Consistently with the approach we set out above, we consider that the evidence that OJ gave as to what she told her then partner on the day is evidence of recent complaint which we find does buttress OJ's credibility as a witness. 273 It was apparent that the examination did, and continues to, cause OJ consternation.258 For example, she said: I just went over it in my mind, like, many times to just – yes – in my mind trying to figure out if this was the right procedure.259 274 In her statement to AHPRA, OJ's evidence was that a couple of days after the consultation, the practitioner called her to tell her the results from the test were fine. She said that, with hindsight, she 251 ts 34; Document 35, Book page 139; Document 38 [21], Book page 154. 252 Document 38 [23], Book page 155. 253 Document 35. 254 Document 38 [23], Book page 155. See also Document 35, Book page 139. 255 Document 35, Book page 139. 256 Document 38, Book page 155 [24]. 257 ts 52. 258 ts 33; see also ts 34, ts 53 and ts 55. See also Document 35, Book page 139: 'So much was going through my mind, most of all in the moment …'; and Document 38 [23], Book page 155. 259 ts 33.. -- 50 of 73 -- [2026] WASAT 78 Page 51 thought the call was unusual because doctors did not ordinarily call patients when test results were clear.260 Her oral evidence was that she recalled a subsequent phone conversation with the practitioner to the effect that everything was okay.261 275 In cross-examination, she said that she just could not remember 'today' who called who262 and said that she did not remember that she had called the Medical Centre,263 but accepted that if that was what the Medical Centre's records showed then that was the case.264 276 In her statement to AHPRA in December 2023, she described that 'about a year ago' she was on the Medical Centre's appointment page trying to find an available doctor and saw a message in red to the effect that the practitioner could not see women. Her evidence was that as soon as she saw it she realised that what she had experienced with the practitioner was not normal and she remembered saying to her partner that 'this is the doctor that didn't use gloves'.265 277 Her evidence was that she engaged with AHPRA in 2023 after a family discussion that included her father telling her that there were some male doctors at Fremantle Hospital who could not treat.266 278 OJ's evidence was that her sister told her in that conversation that she needed to report what had occurred at the consultation.267 279 OJ did not accept that she only thought there was 'something wrong with the consultation' after she talked with her sister some time later268 and said that she felt it was not normal when she saw the practitioner washing his hands at the sink.269 OJ as a witness 280 By consent, OJ gave her evidence by video-link from a different room within the Tribunal's building. 260 Document 38 [25], Book page 155. 261 ts 34. 262 ts 50. 263 ts 50 - 51. 264 ts 51. 265 Document 38 [26], Book page 155. 266 Document 38 [27] - [28], Book page 155. 267 Document 38 [29], Book page 155. 268 ts 49. 269 ts 49. -- 51 of 73 -- [2026] WASAT 78 Page 52 281 With respect, OJ's evidence was not seriously challenged in cross-examination. 282 The practitioner, in closing, submitted that the following matters weighed heavily against OJ's credibility,270 namely: 1. she made no formal complaint until October 2023;271 2. her statement to her then partner at the time of her consultation did not mention that the practitioner had been trying to conceal an erection;272 3. her subsequent evidence as to that possibility was 'mere embellishment designed to inject sexual innuendo into the consultation';273 4. her use of the word 'clamped' in her evidence suggested the application of significant force and was a further example of embellishment;274 5. there was an inconsistency between her statement that the practitioner had called her with test results and the record of the Medical Centre which recorded that she had called the practitioner;275 6. her evidence about the practitioner's finger or fingers touching her clitoris was a component of a dramatised account on her part;276 and 7. if there was any touching of her clitoris, then she had exaggerated the touching.277 283 With respect, we do not accept these submissions. 284 It may be accepted that no formal complaint was made for some years, but that submission overlooks the evidence of relevant recent complaint to her then partner which was not challenged. 270 ts 286. 271 ts 286. 272 ts 287. 273 ts 287. 274 ts 287. 275 ts 287. 276 ts 288. 277 ts 289. -- 52 of 73 -- [2026] WASAT 78 Page 53 285 We accept that OJ did not, on her evidence, tell her partner that the practitioner may have had an erection, but that does not, in our view, detract from the recent complaint being made about the central allegation of the practitioner touching her clitoris (and without wearing gloves). Further, we do not accept the submission that this was a mere embellishment designed to inject sexual innuendo into the consultation. 286 The submission made about OJ's use of the word 'clamped' rather ignores that her AHPRA witness statement always made plain that the touching 'wasn't rough and it didn't hurt'.278 287 We do not accept that, if OJ was wrong as to who called who after the consultation, that was a significant matter in the scheme of things. And, in any event, her recollection that there was a conversation was confirmed by the records of the Medical Centre. 288 With respect, submitting that OJ had given a 'dramatised account' of the practitioner's finger or fingers touching her clitoris is to some degree circular. That is, if the practitioner did touch her clitoris in the way described by her, then that might answer an ordinary description of a dramatic event. However, OJ did not give her evidence in some faux, dramatic manner. She was, rather, to our observation, quite matter of fact and careful in the way she described what she recalled. 289 In our assessment, OJ impressed as an honest witness who gave her answers in a careful manner without embellishment. 290 She candidly and without reservation accepted in many answers, with the passage of time, the things that she did not or could not remember. There was no attempt to 'improve' her evidence or to seek to put her recollection in a more favourable light. In assessing her evidence, we have also been careful to understand from context or express questioning that a witness who does not recall something occurring may be saying that the event could have occurred and they do not recall it, or could be saying that from their memory of what occurred, they do not think that the particular event occurred. 291 Further, she gave her evidence without any apparent anger or animus towards the practitioner. 292 We find her evidence was honest and credible. We also accept it to be reliable within the limits of OJ's memory. 278 Document 38 [14], Book page 154. -- 53 of 73 -- [2026] WASAT 78 Page 54 Disposition of the Board's allegations in respect of OJ 293 We are satisfied that the Board has made out its allegations as put in its further amended grounds that the practitioner: 1. [9.5(c)]: conducted an intimate examination on OJ (without wearing gloves); 2. [9.5(e)(i) - (iii)]: massaged, as in touched her clitoris and moved his hand upward with a finger or fingers on her clitoris in a manner that answers the pleaded description as the case was run; 3. [11.7(a)]: failed to explain the nature of the intimate examination; 4. [11.7(b)]: failed to offer OJ a chaperone to be present during the intimate examination; and 5. [11.7(c)]: failed to provide OJ with an opportunity to ask questions or refuse the examination. 294 We have not found to the required level of satisfaction that the Board has made out its allegations put in its further amended grounds [9.5(a), (b)] or [11.7(d)]. 295 We have set out below the practitioner's evidence and our findings in relation to it. 296 The findings we have made above in relation to OJ have been made after our findings in relation to the practitioner's evidence and we have taken that evidence of the practitioner into account before making findings. Dr Seal's evidence 297 Unless otherwise indicated, the following paragraphs are taken from the practitioner's oral evidence before the Tribunal and have been accepted by the Tribunal. 298 The practitioner was born in Bangladesh and, at the time of the hearing, had been married for 29 years and had two sons.279 299 His first language is Bangla or Bengali.280 279 ts 120. -- 54 of 73 -- [2026] WASAT 78 Page 55 300 In 1989, he received Bachelors of Medicine and Surgery from the University of Chittagong in Bangladesh.281 301 After graduating from university, he practised in hospitals in Bangladesh before migrating to Zambia in 1994 where he worked as a medical officer in a university teaching hospital.282 302 While he had learnt written English through school, he learnt spoken English in Zambia in 1994.283 303 He moved to South Africa in 1996 where he worked as a medical officer in a hospital.284 While in South Africa, he completed a Masters of Family Medicine at the University of Orange, Free State in 1998; and a Diploma in Anaesthetics through the College of Medicine in 2002.285 While at the hospital in South Africa, he worked in outpatients and in the Department of Gynaecology and Obstetrics.286 304 In 2002, he immigrated to Australia and became registered as a medical practitioner, effectively, at the beginning of 2003. 305 He then spent about nine years practising in regional Western Australia.287 306 In 2007, he became a Fellow of the Royal Australian College of General Practitioners. 307 In 2012, he moved from regional Western Australia to Perth and started practising at the Medical Centre as a GP.288 His evidence was that between 2012 and 2019, while working at the Medical Centre, he: 1. worked five to six days a week; 2. took about eight weeks of leave in total; 3. saw an estimated 25 to 30 patients a day; 4. saw about half and half male and female patients; 280 ts 120. 281 ts 120. 282 ts 120 - 121. 283 ts 121. 284 ts 121. 285 ts 121. 286 ts 121. 287 ts 122. 288 ts 122. -- 55 of 73 -- [2026] WASAT 78 Page 56 5. performed pap smears as a common part of his day-to-day work as a GP; 6. performed an estimated eight to 12 pap smears per month; and 7. performed vaginal swabs commonly between 10 to 12 times per month.289 308 He ceased working at the Medical Centre in July 2024 and now practises from a different medical centre.290 309 In 2014, he had a dedicated consulting room at the Medical Centre. By 2017, he had a different dedicated consulting room, and he had that same room in 2019.291 By having a 'dedicated consulting room' we understood his evidence to be that the room was used only by him. 310 His evidence was that the consultations with CT in 2017, and then with CB and OJ in 2019 took place in the same (second) consulting room.292 He described in his evidence the lay-out of the room and where certain equipment was kept293 and he identified a sketch he made of that consulting room for the benefit of his lawyers after he was aware of the AHPRA investigation.294 311 By reference to his sketch, the practitioner then described the first consulting room that he had at the Medical Centre by the differences between the two rooms.295 The first was the room in which he had seen FS in February 2014. 312 The practitioner described that from 2014 onwards his practice was to make notes of patient consultations by typing directly into a practice computer program, either during the consultation or soon after the patient left.296 Recollection of consultation with FS 313 The practitioner had no recollection of the consultation with FS on 8 February 2014. His evidence about the consultation was given by his 289 ts 122 - 123. 290 ts 123. 291 ts 123. 292 ts 123 - 124. 293 ts 124 - 129. 294 The sketch became MFI-1. 295 ts 130. 296 ts 131. -- 56 of 73 -- [2026] WASAT 78 Page 57 reading and interpreting the Medical Centre's records which he had relevantly authored.297 314 In cross-examination, the practitioner accepted that he had an actual recollection298 of receiving FS's first letter to the Medical Centre.299 As set out above, we have found that was sent on 10 February 2014 after the 8 February 2014 consultation. He accepted that he had seen that letter within a few days of the consultation with FS.300 315 The practitioner in cross-examination accepted that FS's letter was the first sort of that complaint he had received and the first alleging he had not worn gloves which made him very concerned and upset.301 Recollection of consultation with CT 316 The practitioner had no independent recollection of his consultation with CT and the evidence he gave about that consultation in June 2017 was given by reference to the Medical Centre's notes for her which had been relevantly created by the Practitioner.302 317 In relation to CT, the Medical Centre's notes were to the effect that the practitioner recalled that he was told she was going away and wanted to get things done before she went. So, while he normally would have made another appointment for the pap smear, she was in a hurry and wished to get it all done at once.303 318 The practitioner accepted in cross-examination that he had an actual recollection of receiving a copy of the complaint from CT in June 2017.304 Recollection of consultation with CB 319 In respect of CB and the consultation at the end of January 2019, the practitioner said he vaguely recalled the consultation with CB but that was limited to a vague recollection that she was going on holidays.305 Otherwise he did not have a recollection of that 297 ts 131. 298 ts 169. 299 Document 4, Book page 29. 300 ts 170. 301 ts 178. 302 Document 21, Book page 72 and following. 303 ts 140. 304 ts 182 - 183. 305 ts 139 - 140. -- 57 of 73 -- [2026] WASAT 78 Page 58 consultation other than what he could interpret from the notes and from the fact that she had given evidence in the Tribunal the day before.306 320 The practitioner accepted that it was about four weeks after his consultation with CB when he received AHPRA's letter to him on 28 February 2019 about the complaint.307 He further accepted that it was the first notification he had received from AHPRA and he was profoundly affected by its receipt.308 321 He further accepted that on 1 March 2019 he received a telephone call from WA Police in relation to CB and that was a very shocking event for him and the first time he had been contacted by the police about a patient's complaint.309 322 He accepted that at the time of receiving the AHPRA letter and the contact from WA Police he would still have had an independent memory of the consultation with CB.310 323 He did not accept that his evidence of not having a clear recollection of the details of the consultation with CB was intended by him to avoid the need to answer specific questions about the consultation.311 Recollection of consultation with OJ 324 The practitioner's evidence was that he had no independent recollection of the consultation with OJ on 4 February 2019.312 Usual practice in conducting a pap smear 325 The practitioner gave evidence as to what his usual practice was from 2014 when he was conducting a pap smear.313 His evidence was that he had no reason to think he did not follow his usual practice in conducting pap smears on FS and CB.314 306 ts 141. 307 ts 199. 308 ts 199. 309 ts 200 - 201. 310 ts 201 - 202. 311 ts 202 - 203. 312 ts 152. 313 ts 134 and following. 314 ts 137 and 138. -- 58 of 73 -- [2026] WASAT 78 Page 59 326 He described his usual practice as including the following steps: 1. if the patient was not aware of the reasons to conduct a pap smear, he would explain the reasons for the procedure; 2. he would explain how the procedure was conducted and took extra care if somebody was young and had not had one before; 3. if the patient was agreeable to continue, he would give a short description of how the procedure would take place; 4. if they wished to continue he would take the instrument trolley from near the examination bed to closer to his desk; 5. he would tell the patient that they could go inside the curtain and he would draw the curtain; 6. while the patient was inside the curtained area, he would prepare the instruments and put gloves on; 7. he would ask the patient then whether they were ready and would then enter the curtained area; 8. he would give the patient a chance to ask him questions before starting the procedure; 9. he would start the procedure and do a commentary of the procedure as he went; 10. he would tell them to stop him if they were uncomfortable; 11. as she was lying on the bed he would ask the patient to put her heels together and bend her legs at the knee so that he could see her genitalia; 12. he would put the light lamp on, bring the instrument trolley into the curtained area and tell the patient that he was going to introduce the speculum into her vagina; 13. standing on the side of the bed with the patient's head on his left-hand side, he would then use his left hand's index finger and palm to part her labia and he would then insert the speculum; 14. he would use his right hand to press the switch which opens up the speculum and with his left hand he would then hold the top part of the speculum so that the vaginal canal was opened; -- 59 of 73 -- [2026] WASAT 78 Page 60 15. he would then use his right hand to hold a brush inside the vagina, making circular movements with it, having taken the brush from the kidney tray which he had put between the patient's legs; 16. he would say what he was doing and try to keep an eye on the patient's face for any grimaces or signs of discomfort; 17. once he removed the brush he would release the speculum and he would put the brush on the slide or into a specimen tube; 18. he would then say that he was finished taking the sample but that as part of the examination he had to put his finger into her vagina to feel the cervix; 19. he would then put a lubricated gloved finger from his right hand inside her vagina to feel the cervix; 20. while he was doing that his left hand would be on the patient's stomach below the belly button so as to press the uterus and push the cervix out so he could feel for any lumpiness; 21. he would then tell the patient he had collected the sample and finished the examination and that they could dress and come out from the screen; 22. he would then throw his gloves in the bin which was situated underneath his desk and wash his hands; 23. by then the patient was re-dressed and he would ask her to sit in the chair next to the desk; and 24. would give her a chance to ask any questions and for him to explain the findings and give any prescription that was needed and make a follow up appointment.315 327 He demonstrated to the Tribunal how he held his hand and fingers while he was separating the patient's labia and indicated, with his left hand, that his thumb and index finger were in a sort of donut, or a C, shape with the other three fingers folded or curled under.316 He said that his curled fingers would be close to the clitoris.317 315 ts 134 - 136. 316 ts 136. 317 ts 136. -- 60 of 73 -- [2026] WASAT 78 Page 61 328 The practitioner accepted that in 2014 it was his practice to conduct a bi-manual examination after conducting a pap smear.318 There was no allegation made by the Board that, at that time, such an examination was other than an accepted form of practice. Usual practice when taking a vaginal swab 329 The practitioner gave evidence as to what his usual practice was in early 2019 when taking a vaginal swab. His evidence was that he could think of no reason why he had not followed his usual practice when conducting vaginal swabs on CB and OJ.319 330 He described the following steps: 1. he would explain to the patient why the vaginal swab was required; 2. if he has known the patient for some time he would not go into any details, but generally speaking he would tell the patient he was going to give them privacy to undress from the waist down; 3. he would say to them that there was a covering cloth on the pillow they should use to cover themselves and he would then come and examine them; 4. he would then tell them that he was going to put gloves on and part their labia with his left hand, and show them the swab; 5. he would ask if they had any questions about that and whether they agreed to go through the process; 6. it was not his common practice to offer them a chaperone unless they asked for it; 7. he would pull the screen closed and give the patient room to take her clothes off while he was preparing the kidney tray outside of the screen; 8. he would put gloves on; 9. after he put the gloves on he would go to the bed and tell the patient that he was going to start examining them and that he 318 ts 170 - 171. 319 ts 149 and 153. -- 61 of 73 -- [2026] WASAT 78 Page 62 would like them to bring their heels together and let their knees open; 10. he would put the light on for illumination and take the kidney tray containing the swab stick and place it between the patient's legs; 11. he would constantly watch the patient's face to see if there were any grimaces or any signs of discomfort; 12. he would then tell the patient he was about to start the procedure; 13. he would part their labia using the index finger and thumb of his left hand; 14. he would take a swab stick using his right hand and then he would put it inside of their vagina and take as much sample as he could, moving it around in a clockwise, and then anticlockwise motion for a few seconds; 15. he would then take out the swab stick and use his left hand to hold the tube and he would hold the handle of the swab stick with his right; 16. he would look for any stigma, rash or HSV or herpes and 'things like that' in the labia or around that area; 17. while doing the procedure he would always tell the patient what he was doing and ask them to let him know if they had any uncomfortable feeling; 18. having put the sample inside the tube he would tell the patient that he was finishing his examination; 19. he would then come out of the screen or the curtain and tell the patient that they could get dressed; 20. he would then bring the kidney tray to his desk, take his gloves off and throw them in the bin under his desk and then wash his hands; and -- 62 of 73 -- [2026] WASAT 78 Page 63 21. once the patient was ready, they would come and sit next to his desk so that they could discuss the examination.320 331 The practitioner's usual practice was not to use a speculum when taking a vaginal swab and to use a dry swab.321 332 In cross-examination, the practitioner said that generally when a patient needed a swab they would also require a urine sample.322 His evidence was that he would put gloves on while he was waiting for the patient to return from going outside to provide the urine sample to be taken.323 More general evidence about practice 333 In cross-examination, the practitioner said it was his invariable practice to explain to the patient the procedure involved in an intimate examination.324 We understood that evidence to include each of a pap smear, vaginal swab and bi-manual examination. 334 The practitioner's evidence in cross-examination was that unless there was a specific reason he would not see any reason for him to leave the room while the patient was dressing or undressing325 - that evidence was given in the context of him adhering to his usual practice of the screen being drawn while the patient undressed or dressed. 335 His evidence was that there was a modesty or privacy cloth on the examination bed which was mainly left on top of the pillow by the nurse. And, that he would tell the patient that the cloth was there for them to cover their lower half once they had taken off their clothes there.326 We took this evidence to apply, equally, to his taking of vaginal swabs. Responsive evidence in cross-examination 336 In cross-examination, the practitioner gave evidence in response to FS's first letter to the Medical Centre that it would not have been 320 ts 145 - 147. 321 ts 148. 322 ts 190. 323 ts 190. 324 ts 196. 325 ts 197. 326 ts 137. -- 63 of 73 -- [2026] WASAT 78 Page 64 possible for his one hand to be holding the speculum and touching her clitoris at the same time.327 337 He accepted that there was no clinical reason for him to touch FS's clitoris when preparing to insert a speculum for a pap smear and said that he took good care so that his hand would not touch the clitoris.328 338 The practitioner accepted in cross-examination, again by reference to FS's letter to the Medical Centre, that: 1. it would be highly inappropriate to perform a bi-manual examination without wearing gloves; 2. it would be highly inappropriate to perform a bi-manual examination without first obtaining informed consent; and 3. for there to be such consent there needed to be an explanation of the examination or procedure in a way that the patient can understand.329 339 By reference to the last paragraph of FS's second letter to the Medical Centre, the practitioner agreed in cross-examination he understood it to be saying that he had not explained to FS what he was going to do before the examination.330 He could only say that while he did not have any recollection, his normal practice was to explain the procedure to the patient.331 340 We have not set out each denial made by the practitioner to the evidence given by CB which supported the Board's allegations against him.332 341 By reference to CB's evidence, the practitioner's evidence was: 1. her evidence was wrong that he was not wearing gloves; and 2. while he could not say there was no inadvertent touching, he did not mean to do that, and it was not required for him to touch her clitoris to perform the procedure.333 327 ts 176. 328 ts 172 - 173. 329 ts 177. 330 ts 180. 331 ts 180. 332 ts 196 - 199. 333 ts 150 - 151. -- 64 of 73 -- [2026] WASAT 78 Page 65 342 He said that he did not know what CB was talking about when she had described the back and forth motion on her clitoris.334 343 From the notes, the practitioner said that CB had a high vaginal swab taken for microscopy and culture and also had a swab taken for chlamydia, gonorrhoea and PCR test.335 344 We have not set out the practitioner's denial of the specific parts of OJ's evidence which support the Board's allegations against him.336 345 In response to OJ's evidence that OJ's labia and clitoris were pulled up towards her belly button during her procedure, the practitioner said that evidence did not make any sense to him.337 346 As to OJ's evidence that she wondered whether the practitioner had an erection after the examination he said that there was no way that he would have an erection in that situation.338 He speculated that patients could be judgemental about their doctors and that this was her judgement and how she felt about him as her doctor.339 Previous different statements as to practice 347 In cross-examination, the practitioner was taken to his solicitors' letter of 8 July 2022 to AHPRA in relation to FS's notification.340 That letter stated that the practitioner 'would have offered [FS] a chaperone, as it is his usual and invariable practice to do so'.341 The practitioner said that he would have said that to his solicitor but that was not his usual practice unless the patient asked for a chaperone.342 348 The practitioner was also taken to his solicitors' letter dated 1 March 2024 to AHPRA responding to the notification concerning OJ.343 In that letter, his solicitors stated that it was the practitioner's usual practice to always offer a chaperone for an intimate 334 ts 151. 335 ts 142. 336 ts 207 - 209. 337 ts 154. 338 ts 155. 339 ts 155. 340 Document 18, Book page 61. 341 Document 18 [23], Book page 64. 342 ts 216. 343 Document 41, Book page 160. -- 65 of 73 -- [2026] WASAT 78 Page 66 examination.344 He accepted that he may have told his solicitor that in March 2024 but that was not his usual practice.345 349 He could not explain those two statements as to the offering of a chaperone in his solicitors' letters.346 350 In his solicitors' letter of 1 March 2024,347 his solicitors stated that the practitioner's instructions were that: … his usual practice is to explain the difference between a high vaginal sample (HVS) and a self-obtained low vagina sample, and to give the patient the option of those two swab tests.348 (original emphasis) 351 These statements were not consistent with the practitioner's evidence that he had not offered CB that option, nor OJ.349 He was unable to explain why he had said that to his solicitors.350 352 The practitioner's evidence-in-chief in the Tribunal about his practice for both procedures was that he usually removed his gloves as he walked towards his desk and then threw the gloves in the bin under his desk. That would support the practitioner's propositions to the effect that: 1. he was moving away from the patient which would allow her privacy to re-dress; and 2. the patient would not have seen him remove his gloves - rather than him not having worn any. 353 In cross-examination, the practitioner's evidence was that where he disposed of his gloves was 'random' but he generally used the bin that was closest to his desk.351 354 In cross-examination, the practitioner was also taken to his solicitors' letter dated 1 March 2024 which made statements about the practitioner's practice of removing and disposing of his gloves in the bin at the foot of the bed before washing his hands in the sink at the foot of the bed.352 The practitioner accepted that he had given that 344 Document 41 [13], Book page 162. 345 ts 217. 346 ts 217. 347 Document 41, Book page 160. 348 Document 41 [12], Book page 162. 349 ts 220. 350 ts 220. 351 ts 193. 352 Document 41 [21], Book page 163. -- 66 of 73 -- [2026] WASAT 78 Page 67 information to his solicitors.353 He maintained, however, that he would usually dispose of the gloves into the closest bin to his desk.354 355 The practitioner was unable to explain why there was a difference between what he had told his solicitors and his evidence in the Tribunal about his practice of where he took off his gloves.355 356 He accepted, however, in cross-examination that if he used the bin at the foot of the bed (next to the sink) to dispose of his gloves, then the patient would not have privacy in that both she and the practitioner would be on the same side of the privacy screen or curtain. His evidence then was that he would not be looking at the patient because he would be looking in the sink.356 Obviously enough, while that may have been his perspective, it says nothing of the patient's viewpoint and their level of (dis)comfort following an intimate examination where they had been most vulnerable. Consideration of Dr Seal's evidence 357 The practitioner in his cross-examination of CB and OJ and then in closing submissions sought to make something of language difficulties which might have been present due to the practitioner's accent. 358 Accepting that the practitioner gave evidence some years after the consultations and his accent may have softened somewhat in that period, we record that we did not find any particular difficulty in understanding the practitioner's evidence due to any accent. 359 Understandably, the practitioner's evidence as to his usual practices stretching back to 2014 and 2017, as set out above, involved, and appeared to involve, a degree of reconstruction on his part. We consider that to be inevitable and have not taken that as diminishing, in general, the reliability of his evidence in these respects. 360 However, there did appear to us to be an obvious attempt to significantly emphasise, to the point of exaggeration we thought, his evidence as to the lengths he would go to explain the relevant procedure before it took place and then while it was being conducted. That appeared to us, to a material degree, to be a tailoring of his 353 ts 222. 354 ts 222. 355 ts 224. 356 ts 224 - 225. -- 67 of 73 -- [2026] WASAT 78 Page 68 evidence to meet the allegations made against him to the effect that he did not explain the relevant procedure and so did not obtain fully informed consent to the procedures. 361 We also consider that the statements he made to his solicitors as to his offering of the option between a high vaginal sample and a self-obtained low vagina sample and how he would usually dispose of his gloves, as reflected in their two letters to AHPRA, throw further doubt on the reliability of his evidence of his usual practices. 362 We would put his statements (also made via his solicitors) that he had an invariable practice of offering to female patients a chaperone - when that was not his evidence in the Tribunal - to be in a similar category. That is, he accepted in the Tribunal it was not his practice to offer a chaperone. That he had been prepared to state, through his solicitors, the contrary, does also throw doubt, in our mind, on the reliability of his evidence as to his usual practices. 363 As may be seen, we have reservations that would prevent us from accepting his evidence as to his usual practice/s in respect of: 1. explaining a relevant procedure to a patient before it took place; 2. offering options to a patient on a vaginal swab; 3. the wearing of gloves; and relatedly to this last matter, 4. where he disposed of his gloves following an examination. 364 In the result, we have not found the practitioner's evidence about his practices to put a relevant doubt in our minds as to the evidence of FS, CB and OJ which supports to the Briginshaw standard the allegations which (ultimately) we have found to be established. 365 Nor have we accepted the practitioner's denials made in the evidence in the Tribunal as to the specific allegations made against him. We have not used our rejection of the practitioner's denials to support our findings that the allegations have been established to the requisite standard. We have simply put his denials to one side and considered the Board's evidence and assessed whether it established any of the allegations made. -- 68 of 73 -- [2026] WASAT 78 Page 69 Conclusions on the allegations 366 As found above, we make the following findings in relation to each of the patients. FS 367 We are satisfied that the practitioner failed to obtain informed consent during the examination of FS and failed to communicate effectively with FS in that: 1. he failed to explain the nature of the intimate examination; and 2. he failed to provide FS with an opportunity to ask questions or refuse the examination. CB 368 We are satisfied that the Board has made out the allegations made in its further amended grounds that the practitioner: 1. [9.2(a)]: did not offer to leave the room prior to asking CB to remove her clothes; 2. [9.2(c)], [10.5]: conducted an intimate examination on CB without wearing gloves; 3. [9.2(d)]: failed to offer CB a modesty cloth; 4. [9.2(e)(i) - (iii)]: touched CB's clitoris; and 5. [11.6(a) - (c)]: failed to obtain informed consent and failed to communicate effectively with CB. OJ 369 We are satisfied that the Board has made out its allegations as put in its further amended grounds that the practitioner: 1. [9.5(c)]: conducted an intimate examination on OJ [without wearing gloves]; 2. [9.5(e)(i) - (iii)]: massaged OJ's clitoris, as in by touching her clitoris and moving his hand upward with a finger or fingers on her clitoris in a manner that answers the pleaded description as the case was run; -- 69 of 73 -- [2026] WASAT 78 Page 70 3. [11.7(a)]: failed to explain the nature of the intimate examination; 4. [11.7(b)]: failed to offer OJ a chaperone to be present during an intimate examination; and 5. [11.7(c)]: failed to provide OJ with an opportunity to ask questions or refuse the examination. Characterisation of the practitioner's conduct 370 The parties had initially sought to divide this part of the hearing into two, namely: 1. a hearing and determination of the factual matters; and then 2. a hearing as to the characterisation of the practitioner's conduct, dependent on the findings of fact made by the Tribunal. 371 As we understood it, the parties had proceeded on the basis that there would then be a further (third) hearing as to the penalty to be imposed if any of the allegations had been found to have been established, and once they had been characterised. 372 As we indicated at the hearing, we are very keen to avoid any unnecessary bifurcation (or trifurcation) of the matter with all of the possible delays in the resolution of the matter that may result. As already noted, the matters alleged are not of the near past and any further delay should be avoided if at all possible. 373 To that end, we received submissions from both the Board and the practitioner in closing as to the characterisation of the practitioner's conduct if some or all of the allegations made against him were to be upheld. 374 In light of the findings above and the parties' submissions in the closings, we consider that the practitioner's conduct, as found, constitutes 'unprofessional conduct' relevantly within the meaning of s 196(1)(b)(ii) of the National Law. We indicate that as our preliminary view, albeit one that we have given some consideration to. 375 In our view, the conduct as found would also constitute 'unsatisfactory professional performance' within the meaning of s 196(1)(b)(i) of the National Law. -- 70 of 73 -- [2026] WASAT 78 Page 71 376 With respect, we have been greatly assisted by the analysis of the different characterisations available undertaken by Mitchell J (as he then was) in Solomon v Australian Health Practitioner Regulation Agency [2015] WASC 203 at [120] and following. 377 In the result, and following his Honour's observations in Solomon, we consider that the characterisation of unprofessional conduct with its focus on the conduct of the practitioner and perhaps a greater emphasis on the public's expectations is more apposite. 378 In light of these reasons and the submissions already made, we consider that the parties should be given a further, confined opportunity to address the Tribunal on the appropriate characterisation of the conduct which we have now found to have been established. We consider that such submissions may be confined because of the submissions we have already received and our preliminary view expressed. 379 We will order, consequently, that the Board make any further submissions it wishes to make on characterisation within 10 days from the delivery of these reasons and limited to 10 pages. 380 We will make a corresponding order that the practitioner file any responsive submission within 10 days of receipt of the Board's submissions and equally limited to 10 pages. 381 Once we have had a short opportunity to consider any further submissions filed, we will timetable a further hearing as to the penalty to be imposed as soon as is practicable. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. TM Associate to the Hon Justice Howard (Supplementary President) 7 JULY 2026 -- 71 of 73 -- [2026] WASAT 78 Page 72 SCHEDULE DOCUMENT NUMBER DESCRIPTION BOOK PAGES BOOK 4 Letter, FS to Medical Centre - Undated 29 - 30 5 Letter, FS to Medical Centre (with handwritten annotation dated 13 February 2014) 31 10 Letter, Medical Centre to AHPRA dated 14 May 2020 40 - 41 11 Letter, Dr Katherine Ng to Medical Centre dated 4 June 2020 42 11.1 Dr Katherine Ng's Consultation Notes dated 12 February 2014 43 12 Medical Centre medical record for FS 44 - 48 13 WA Police incident report number 110214 1340 11624 dated 11 February 2014 49 - 51 14 WA Police running sheet for incident report number 110214 1340 11624 covering period 11 February 2014 to 21 February 2014 52 - 53 15 WA Police Withdrawal of Complaint dated 13 February 2014 54 16 Letter, AHPRA to FS with notice of requirement to produce information dated 11 May 2020 55 - 57 17 Email FS to AHPRA dated 3 June 2020 58 - 60 18 Letter, Panetta McGrath Lawyers to AHPRA, response to notification in respect of FS dated 8 July 2022 61 - 66 19 Email, Independent Practitioner Network to AHPRA dated 13 May 2019 67 19.1 IPN Complaints Form CT dated 19 June 2017 68 - 70 20 Letter, Medical Centre to CT, response to complaint dated 19 June 2017 71 21 Medical Centre medical record for CT 72 - 75 24 Medical Centre record for CB 86 - 90 31 AHPRA Witness statement of CB (with paragraphs [25] to [28] struck out) dated 23 February 2019 115 - 120 31.1 WA Police statement of CB dated 27 February 2019 121 - 125 31.2 IPN Medical Centres Pty Ltd response to complaint - Undated 126 32 Statement of Anne Hales dated 19 March 2021 127 - 130 -- 72 of 73 -- [2026] WASAT 78 Page 73 33 Statement of Ms X dated 21 March 2022 (commencing at paragraph 17) 132 - 133 35 Notification 00540126 - Patient OJ dated 18 October 2023 136 - 143 36 Medical Centre medical record for OJ 144 - 150 38 Statement of OJ dated 13 December 2023 153 - 156 41 Letter, Panetta McGrath Lawyers to AHPRA, response to notification in respect of OJ dated 1 March 2024 160 - 164 41.1 Consultation record for OJ dated 15 August 2018 165 42 Photo of consultation room (bed and sink) 167 43 Photo of consultation room (desk and chair) 168 46 Letter, AHPRA to Dr Jillian Gardner requesting report dated 2 September 2022 172 - 179 47 Independent opinion of Dr Jillian Gardner dated 19 September 2022 180 - 185 48 Dr Jillian Gardner's CV - Undated 186 - 190 51 Medical Board of Australia Code of Conduct dated 1 March 2014 208 - 232 52 Medical Board of Australia Guidelines: Sexual Boundaries in the Doctor-Patient Relationship dated 12 December 2018 233 - 240 SUPPLEMENTARY BOOK 1 Good Medical Practice: A Code of Conduct for Doctors in Australia in effect until 16 March 2014 1 - 22 2 Medical Board of Australia Guidelines: Sexual Boundaries in the Doctor-Patient Relationship dated 28 October 2011 23 - 27 -- 73 of 73 --