Bhugun v Health Ombudsman; Health Ombudsman v Bhugun [2021] QCAT 69

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bhugun v Health Ombudsman; Health Ombudsman v Bhugun [2021] QCAT 69 PARTIES: COONJBEEHARRY BHUGUN (applicant in OCR224-19; respondent in OCR384-19) v HEALTH OMBUDSMAN (respondent in OCR224-19; applicant in OCR384-19) APPLICATION NO/S: OCR224-19 and OCR384-19 MATTER TYPE: Occupational regulation matters DELIVERED ON: 22 March 2021 HEARING DATES: 10 & 11 November 2020 HEARD AT: Brisbane DECISION OF: Judge Allen QC, Deputy President ORDERS: Pursuant to section 113(1) of the Health Ombudsman Act 2013 (Qld), the Tribunal decides that the respondent does not pose a serious risk to persons. Pursuant to section 73(2) of the Health Ombudsman Act 2013 (Qld), the Tribunal sets aside the decision of the Health Ombudsman on 13 May 2019 to issue an interim prohibition order. CATCHWORDS: PROFESSION AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – where the practitioner is an unregistered health practitioner providing psychotherapy and counselling services – where the practitioner was the subject of a complaint that he failed to maintain appropriate boundaries with a patient and engaged in sexual misconduct with the patient – where the Health Ombudsman issued an interim prohibition order imposing restrictions on the practitioner’s provision of health services to female patients – where the practitioner denies the alleged conduct – where the practitioner applied to the Tribunal for a review of the decision of the Health Ombudsman to issue an interim prohibition order – where the Health Ombudsman referred the complaint to the Tribunal seeking a decision that the practitioner poses a serious risk to persons and the making of a prohibition order – whether the practitioner poses a serious risk to -- 1 of 24 -- 2 persons – whether the Tribunal should make a prohibition order – whether the decision of the Health Ombudsman to issue an interim prohibition order should be set aside Health Ombudsman Act 2013 (Qld), s 7, s 8, s 68, s 73, s 74, s 103, s 104, s 113, s 320G. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 55, s 100. Briginshaw v Briginshaw (1938) 60 CLR 336. Health Ombudsman v MacBean [2019] QCAT 300. Health Ombudsman v Kirk [2019] QCAT 301. Health Ombudsman v Newman [2019] QCAT 397. APPEARANCES & REPRESENTATION: Applicant: C McGee of Gilshenan & Luton Legal Practice Respondent: Self-represented REASONS FOR DECISION Introduction [1] There are two proceedings for determination by the Tribunal. [2] In OCR224-19, Dr Coonjbeeharry Dharam Bhugun has applied, pursuant to section 74 of the Health Ombudsman Act 2013 (Qld) (HO Act), to review the decision of the Health Ombudsman on 13 May 2019, pursuant to section 68 of the HO Act, to issue an interim prohibition order imposing restrictions on Dr Bhugun’s provision of health services to female patients. [3] In OCR384-19, the Director of Proceedings on behalf of the Health Ombudsman has referred a health service complaint against Dr Bhugun to the Tribunal pursuant to sections 103(1)(a) and 104 of the HO Act. Dr Bhugun is, and was at all relevant times, an unregistered health practitioner and the Health Ombudsman seeks that the Tribunal decide, pursuant to section 113(1) of the HO Act,1 that because of the respondent’s health, conduct or performance, he presents a serious risk to persons and that the Tribunal make a prohibition order pursuant to section 113(4) of the HO Act. [4] Both proceedings relate to the same facts and circumstances and were heard and decided together.2 Because of the nature of the Tribunal’s review jurisdiction3 and the terms of section 73(2) of the HO Act, the decision in the proceeding for the disciplinary referral (OCR384-19) was determinative of the application to review (OCR224-19). Indeed, whatever the outcome of the disciplinary referral, it would have been necessary to set aside the interim prohibition order pursuant to section 73(2) 1 Now repealed, but still applicable to these proceedings because of the transitional provisions in section 320G of the HO Act. 2 Pursuant to section 55(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). 3 See QCAT Act, sections 19 and 20. -- 2 of 24 -- 3 of the HO Act. For these reasons, whilst I have considered their contents, it is not necessary that I refer to the correspondence between the parties concerning the issue of the interim prohibition order (including the reasons of the Health Ombudsman for making and maintaining the order). [5] The questions for determination by the Tribunal were, pursuant to section 113(1) of the HO Act: whether, because of his past conduct, Dr Bhugun presently poses a serious risk to persons; and, if he does, whether the discretion should be exercised pursuant to section 113(4) of the HO Act to make a prohibition order prohibiting Dr Bhugun, either permanently or for a stated period, from providing any or stated health services or opposing restrictions on his provision of health services. [6] Before answering those questions, the Tribunal needed to make findings of fact that were strongly contested by the parties. [7] In resolving the disputed issues of fact and deciding the ultimate questions posed by section 113 of the HO Act, the Tribunal has proceeded on the basis that the onus rests on the Health Ombudsman to satisfy the Tribunal that findings adverse to Dr Bhugun should be made and that the standard of proof is the Briginshaw4 standard with due regard to the consequences to Dr Bhugun of adverse findings. [8] Ultimately, the Tribunal has determined that the truth of the matter lies somewhere between the opposing versions of facts contended for by the parties. The Tribunal has determined that Dr Bhugun, despite his denials, did fail to maintain appropriate boundaries with a patient with whom he engaged in sexual conduct. Notwithstanding that finding, the Tribunal was not satisfied that he now poses a serious risk to persons such that a prohibition order should be made. [9] These are the reasons for the Tribunal’s decision. Background [10] Dr Bhugun is 68 years old. [11] Dr Bhugun has a Diploma of Social Science, Masters Degrees in Public Management and in Social Work, and a Doctorate in Counselling. [12] At the time of the alleged conduct the subject of the referral, Dr Bhugun was working independently as a psychotherapist and counsellor using rooms at two Gold Coast medical centres. [13] The proceedings concern Dr Bhugun’s dealings with a 43 year old female patient (P). [14] P was referred to Dr Bhugun by her general practitioner after P raised concerns about her mental health. [15] P consulted with Dr Bhugun on four occasions: (a) 16 August 2017; (b) 15 September 2017; (c) 22 September 2017; and 4 Briginshaw v Briginshaw (1938) 60 CLR 336. -- 3 of 24 -- 4 (d) 29 November 2017. [16] There is a dispute between the parties as to the events that occurred during such consultations, particularly the consultation of 22 September 2017. There is no doubt that something of a sexual nature occurred during this consultation. It is common ground that Dr Bhugun ejaculated semen during the course of such consultation. The Health Ombudsman contends that, during such consultation, Dr Bhugun sexually assaulted P. On the other hand, Dr Bhugun contends that he was the victim of a sexual assault by P. Resolving such issue of fact required consideration of the evidence of P and Dr Bhugun and other witnesses. [17] Dr Bhugun subsequently telephoned P offering a home visit. P declined. [18] On 10 November 2017, P made disclosures to her general practitioner of inappropriate conduct by Dr Bhugun. [19] P agreed to attend a consultation with Dr Bhugun on 27 November 2017 and Dr Bhugun arranged for this consultation to occur at a different practice location than prior consultations. P covertly recorded her conversations with Dr Bhugun during the consultation. The Health Ombudsman relies upon the contents of such recording as evidence of implied admissions by Dr Bhugun of the alleged sexual misconduct on 22 September 2017. The Health Ombudsman contends that Dr Bhugun’s contact with P leading up to and on 27 November 2017 evidenced a continuing failure to maintain professional boundaries with P. [20] On 22 December 2017, P made a complaint to the Queensland Police Service and provided a witness statement. [21] Also on 22 December 2017, Dr Bhugun spoke to P’s general practitioner and said he had been raped by P who had forced herself on him and performed oral sex on him. [22] On 14 January 2018, Dr Bhugun was charged by police with offences of attempted rape and sexual assault of P. [23] P’s general practitioner reported the matter to the Office of the Health Ombudsman (OHO) on 16 January 2018. [24] On 25 January 2018, the Acting Health Ombudsman issued an interim prohibition order (IPO) against Dr Bhugun, prohibiting him from having contact with female patients. [25] On 6 July 2018, the Health Ombudsman varied the IPO by allowing Dr Bhugun to have contact with accompanied female patients. [26] On 25 November 2018, police obtained a statement from Ms Andrea Howard. She was to be an important witness in the Tribunal proceedings. [27] On 7 December 2018, in light of the contents of the statement obtained from Ms Howard, the prosecution offered no evidence in relation to the charges against Dr Bhugun and the charges were dismissed. [28] On 16 January 2019, the Health Ombudsman revoked the IPO. [29] In February 2019, OHO investigators obtained statements from P and Ms Howard and interviewed Dr Bhugun. [30] On 26 March 2019, the Health Ombudsman gave notice to Dr Bhugun of an intention to issue an IPO, relying, among other things, on the contents of the consultation -- 4 of 24 -- 5 recorded by P on 29 November 2017 and Dr Bhugun’s interview with OHO investigators on 22 February 2019. Dr Bhugun made submissions in response on 6 April 2019. [31] On 13 May 2019, the Health Ombudsman issued an IPO prohibiting Dr Bhugun from having any contact with unaccompanied female patients. This decision, as subsequently (immaterially) amended, is the subject of the application to review (OCR224-19). [32] Dr Bhugun made further submissions to the Health Ombudsman on 10 June 2019 seeking a variation of the IPO and such request was refused on 26 June 2019. [33] Dr Bhugun’s application to review (OCR224-19) was filed on 26 June 2019. [34] The Health Ombudsman’s referral of the disciplinary matter was filed on 29 November 2019. Modes of taking evidence from Health Ombudsman’s witnesses [35] The evidence of P was taken by video-link and P had a support person present. The evidence of Ms Andrea Howard and of P’s general practitioner was taken by telephone. The probative value of the witnesses’ evidence is not affected because such measures were adopted and the evidence is no better and no worse than if the witnesses gave evidence in person in the hearing room. Evidence of P [36] P’s evidence-in-chief was a confirmation of the accuracy of her police statement dated 22 December 2017 and OHO statement dated 20 February 2019. [37] In her police statement, P gave an account of her first consultation with Dr Bhugun. She thought he “appeared to be a nice man and very professional… a lovely man and a good doctor”. [38] P described her second consultation and becoming upset when speaking about her ex- husband, and: I remember (Dr Bhugun) reached down and clasped my right hand in his and bent forward and kissed it. I wasn’t offended at all and I thought to myself that it was initially quite flattering. He only kissed my hand once and I pulled my hand away from him. He didn’t try to grip on to my hand at all. I recall the session was coming to an end. He didn’t say much more but I recall he was paying me a number of complements (sic) saying things like “you’re a strong beautiful women (sic) and you have a lot to live for”. I felt good at what he was saying and it made me feel quite positive about myself. [39] P gave an account of events during the third consultation: 23. I recall he looked over and saw me and reacted by saying “Oh (P), you are so beautiful and you are waiting for me”. I recall I had presented myself a bit better than the previous sessions as I had been working in the garden prior to the appointments. 24. I remember walking in to his office and sat down and started to talk to him as usual, just general small talk about how I had been feeling etc. I recall saying thank you for seeing me during his lunch break and that I was sorry he was going to miss it however he replied that it was okay as he really wanted to see me. -- 5 of 24 -- 6 25. I remember his demeanour was different from previous sessions in that he appeared much more relaxed. He was leaning back in his chair and smiling a lot. We started talking about my friends and how I had stopped socialising with some of them as I thought they were using me at times. We talked about how friends can often be a cause of depression and that I had problems sleeping due to my brain constantly ticking over. I asked Dr BHUGUN what I could do to get better sleep. 26. He asked me something like what do you do to try and relax yourself. I recall telling him that I often listened to an old Indian tune that I used to listen to when I was a child. He was quite surprised that I liked Indian music and he started to ask me a lot of questions about whether I liked Indian movies or not. 27. I told him I do and we discussed a particular movie but I told him that the movie he was talking about didn’t ring a bell with me. He said there is a song in the movie and he asked me if I knew the song. I said that I may know the song and Dr BHUGUN told me he was going to sing the song to me. He started to sing and do actions with his hands which were related to the song. He was looking really deeply into my eyes and I started to feel uncomfortable. 28. I recall saying to him something like “thanks (sic) you so much, you sing really nice” but he kept singing. Shortly after he said to me “I would like to hold you in my arms and sing this song to you”. I didn’t say anything as I shocked (sic) at what was happening and the way he was behaving. 29. Dr BHUGUN asked me to stand up so I did. He stood up as well and came up very close to me and put his right hand around my waist and grabbed my right wrist with his hand. He started to move like he wanted to dance and continued to sing the song to me. I didn’t know what to do as I was really starting to get concerned. He wouldn’t stop singing the song and it felt like he was trying to rub himself up against the front of my body. He reached forward and kissed me on the forehead. I stood really still as the whole thing was happening very fast and I had no idea what to do. 30. I remember he came close to my left cheek as though he was going to kiss me again and I could smell and feel his breath. I reacted by using my hands to push him away as I was really feeling shocked and stunned. For a second I forgot that I was at a doctors’ appointment. I recall saying something like “what are you doing, what if someone came in”. He said “that’s alright” like it was nothing and reached across and locked the door by turning the door latch. 31. I thought by pushing Dr BHUGUN away he would stop what he was doing but he kept trying to get close to me. He was saying “its ok, its ok” (sic) and he grabbed my breasts with his hands. He said “I want to suck your boobs”. 32. He kept saying something like “I need to try you; I need to try you”. I couldn’t believe how he changed from a professional into what seemed like a wild crazy bulldog. I started to get very scared and my head was screaming with all sorts of thoughts. I just wanted to get out of there as I didn’t know how to react. I kept thinking to myself that I needed to get out of there. 33. I remember trying to keep him away from me but all of sudden (sic) he pushed me towards the bed in the office. I recall the bed was quite high and it struck me near my lower back causing me to fall backwards and hit my head on the wall. I didn’t hit the wall that hard and I was trying to get away the bed (sic) as fast as I could. 34. Dr BHUGUN was in front of me and he was trying to pull my trousers down. I was wearing jeans with a belt and felt his hands on my hips. I was holding onto my pants and he was unable to get them down. He let go and grabbed my face with both of his hands, one on my chin and one on my forehead. He pulled my (sic) forward and kissed me really strongly on my mouth. -- 6 of 24 -- 7 35. I can’t recall what happened next but all of a sudden I ended up on the floor. I was still trying to hold my pants. I managed to get to half way up off the floor however as I did I saw that Dr BHUGUN had unzipped his trousers and his penis was out. He had an erection and he reached down, placed one of his hands around the back of my head and pulled my (sic) forward. He had his other hand on his penis and he was trying to put it in my mouth. 36. I recall his penis touched my lips and I pulled back as hard as I could. As this happened Dr BHUGUN was ejaculated (sic) onto my shirt near my left shoulder down towards my left breast. I managed to get to my feet and grabbed my handbag which was on one of the chairs with my left hand and opened the door with my right hand. I recall swearing at Dr BHUGUN about what had happened. 37. I practically ran out the door. As I did I heard Dr BHUGUN saying repeatedly “I’m sorry, I’m sorry”. I heard Dr BHUGUN saying “Go and make another appointment, go and make another appointment”. I thought to myself “what is wrong with this man”. 38. I went straight to the bathroom in the clinic. I felt disgusted and I wanted somewhere to cry and clean myself up. I stayed in the bathroom for about two or three minutes before coming out and heading towards the exit. I did not see Dr BHUGUN on the way out. [40] P went on to recount following events: 39. I ran to my car which was parked in the basement car park and drove and parked in Labrador to collect my thoughts and try and calm myself. I had to pick my son up and I did not want him to see me upset. After picking up my son we went home. I recall throwing my shirt in the garage and leaving it there. I recall about a week later I picked up the shirt and hand washed it as it was really smelly. 40. I have since tried to put the incident out of my mind however about two weeks later I got a call from Dr BHUGUN. I didn’t really know that it was him initially as he said hello in another language. I said ‘who is this” and he said “you should have answered back in Indian language as you understand what that means”. 41. I asked him what he wanted and he told me that he was doing home visits in Nerang and wanted to come to my house to see me. I said “Hell no, what’s the matter with you”. I said some other things as well however I don’t remember exactly what as I was shocked that he had called me after what had happened. 42. I refused to allow him to come to my house and he said that he wanted me to make another appointment. He was very insistent about the appointment and I eventually said “okay” so that I could finish the conversation. He asked me if I wanted an appointment during his lunch break again and I said no and that I would call and make the appointment myself. 43. A week or so later I went and visited (my GP) about a hip problem. During the consultation (my GP) asked me about my mental health problems and I told him what had happened. I became very upset and started to cry and (my GP) appeared quite upset about what had happened as well. 44. (My GP) told me I needed to report what happened to the manager of the clinic and that I may have to report it to the police as well. 45. About two weeks later I made an appointment with Dr BHUGUN at the Southport Clinic as I wanted to speak with him about what had happened. I also wanted to try and record our conversation as proof of what had happened. I was very scared about what may happen when I saw Dr BHUGUN again. 46. About three days before ethe appointment I made at the Southport Clinic I received a call from Dr BHUGUN on his mobile phone. He told me that he wanted me to come to his -- 7 of 24 -- 8 private clinic in Ashmore Plaza. I asked him why and he said that it was because we could be more private during out (sic) appointment. I told him I did not know where his clinic was and he replied that he would send me the address via text message. Shortly after I received the address on my mobile phone. 47. I decided that I would go to the appointment but I was extremely anxious and fearful however I wanted to try and record the appointment and the conversation with Dr BHUGUN. On the 29 th of November 2017 I went to Dr BHUGUNS (sic) private clinic at Ashmore Plaza. I took a friend with me as I wanted some support. 48. When I arrived at the clinic I spoke with the receptionist and filled out an attendance form. I remember activating the record function on my mobile phone and putting it I (sic) my hand bag. Shortly after Dr BHUGUN came out of his office and got me. We went into his office and sat down. Dr BHUGUN started talking to me as if nothing had happened. I found it very strange given the circumstances. 49. I recall having to start the conversation with Dr BHUGUN about what had happened during our third session together at the Southport Clinic. He was trying to defend himself by saying things like “we had a moment” and that his behaviour was okay and that it was just two people where something happened. I recall telling him how he had disrespected me as a women (sic) and a patient and that he was a professional man and that his behaviour was not appropriate. 50. We talked for at least half an hour and the whole time he tried to convince me that the way he behaved was okay. Towards the end of the conversation he started to talk to me about continuing a relationship of some type and that he would look after me. 51. I recall telling Dr BHUGUN that I was thinking of reporting what had happened and he said things like “please don’t, let what happened be lesson (sic) to me, I have people I love and care about”. I felt really angry when he said that and I replied “yeah, me too mate”. I recall asking him about his wife and he replied that he has some problems in that area. 52. We didn’t talk much after that and I wanted to go as I had to pick up my son. I felt that Dr BHUGUN was not at all remorseful for his actions or anything that happened during our appointment. I didn’t want to talk anymore and left without saying goodbye. 53. Since the incident with Dr BHUGUN I have felt increasingly distressed and anxious. I have felt violated as a female and as a mother. I often burst into tears and have felt bitterly disappointed at what happened as I had been hopeful that Dr BHUGUN would be able to help with the issues I had been suffering. Instead his actions have significantly increased my emotional feelings and stability as well as affecting the close relationship I have with my son who is too young to understand what I have been going through. 54. I have struggled with the need to report what happened and have felt that I have not had the courage to approach police previously. I did not know what to do as nothing like this has ever happened to me before. 55. On the 22 nd of December 2017 I attended the Coomera Police Station to report the incident and to provide a formal statement. [41] In her later OHO statement, P confirmed the accuracy of her police statement with respect to the vents of the third consultation with this exception: …except for paragraph 37 which does not mention that I went to Andrea Howard’s house after the incident with the counsellor. [42] P had been made aware of the contents of Ms Howard’s statement during discussions with the prosecution on 7 December 2018. -- 8 of 24 -- 9 [43] P went on to describe her past contact with Ms Howard which included a close friendship and Ms Howard and her daughter residing with P for periods of time. P referred to events and conversations with Ms Howard which could be considered to cast Ms Howard’s character in a bad light. P stated she did not know why her friendship with Ms Howard ended suddenly in late 2017. Further as to the events on the day of her third consultation with Dr Bhugun, P stated: After the incident, I called Andrea, I told her I went to the counsellor, I said we were talking and I was telling him how I can’t sleep at night and things like that and that I told him that I have an indian song that I’ve liked when I was 6 years old. He asked me if I remembered a particular song. He started to sing the indian song to me. He said he wanted to sing the song to me and hold me in his arms. He asked me to stand up. So I stood up. He grabbed me as if he wanted to dance. He was moving with me and starting to kiss me on my forehead, I pushed him back and said what are you doing, someone could walk in. He said that was easy fixed and then he locked the door and that’s when we started to fight and everything happened. (refer to QPS statement) After I told Andrea this on the phone I went to the beach near the grand hotel in labrador (sic) just to think. I didn’t get coffee or anything like that. I then went to Andrea’s house and I told her again, I can’t remember if this was before or after I picked up my son from school. Andrea was happy about this she said ‘good on you babe, good girl’ I couldn’t understand why she did this. I was really upset about what happened. I showed Andrea the cum on my shirt, I washed it under water and took it home with me. Andrea told me I could go in to her cupboard to get a shirt to wear home. My shirt smelt and Andrea also said my shirt smeld (sic). I didn’t speak to Andrea about the incident again after this. [44] P was cross-examined by Dr Bhugun. [45] P denied telling Andrea Howard, prior to 22 September 2017, that P was going to manipulate Dr Bhugun.5 [46] P denied meeting with Ms Howard on 22 September 2017 prior to her third consultation with Dr Bhugun.6 [47] P admitted meeting with Ms Howard on 22 September 2017 after the consultation.7 P denied a conversation with Ms Howard as described by Ms Howard in her police statement.8 [48] P denied making a special effort to dress beautifully and do her nails and makeup for the third consultation9 and denied asking Dr Bhugun if he liked her consequent appearance.10 P denied commenting on the heat and adjusting her top.11 [49] P agreed she and Dr Bhugun discussed Indian movies and songs.12 P denied singing an Indian song to Dr Bhugun, grabbing his hand, standing him up and encouraging 5 T1-14:45. 6 T1-15:1-10. 7 T1-15:10-15. 8 T1-15:15-35. 9 T1-15:35-40. 10 T1-16:5-10. 11 T1-15:45. 12 T1.16 -- 9 of 24 -- 10 him to dance.13 She denied kissing Dr Bhugun on the mouth and rubbing her breasts and lower body against his. She denied that Dr Bhugun immediately pushed her away and told her that was not okay because he was her therapist.14 She denied holding Dr Bhugun tightly, complimenting him, pushing him against a patient bed, strongly rubbing her lower private parts against his, saying, “fuck me, fuck me” several times and Dr Bhugun telling her “no, no, no”, it was inappropriate and he could not engage in such behaviour.15 [50] P denied putting her hand in Dr Bhugun’s pants, kneeling, lowering his pants and masturbating him to ejaculation.16 [51] P maintained a version of events consistent with her police statement. She was cross- examined as to the detail of sexual contact between her and Dr Bhugun with reference to the contents of her police statement and a police forensic report to little forensic effect.17 She denied the version of following events and conversation put to her by Dr Bhugun.18 [52] P admitted seeing Ms Howard later the same day as the third consultation. She was asked what she told Ms Howard and answered as follows: I was very upset. It was very stressful what happened. I was also scared. I wasn’t there for very long. I told her, “You won’t believe what’s happened to me.” And I told her a little bit, but after finding that response from Ms – from Mrs Howard, I just - I just - I then felt it wasn’t appropriate. It wasn’t a friend response for that problem. … I told, “”you wouldn’t believe. But I just went to see a psychologist.” You know, I told you about my depression and that, and he – you know, he’s just – it was just all right. And a lot of the time, it just changed his attitude. He thought” – I told her a little bit of what’s happened, but not everything. Because her response was, “Oh, yeah, good girl.” And I just didn’t think it was appropriate. That was –that upset me a lot more. [53] P was cross-examined about the terms of her complaint to her general practitioner on 10 November 2017 and her failure to complain to another doctor she later saw.19 [54] P was cross-examined about the fourth consultation. She denied giving Dr Bhugun a hug and a kiss on his cheek at the start of the consultation.20 She denied holding Dr Bhugun’s hand, Dr Bhugun admonishing her by finger gesture and P mouthing the words, “what the fuck”.21 She denied rubbing Dr Bhugun’s knees.22 She denied becoming angry at Dr Bhugun moving away from her.23 13 T1-17:1-10. 14 T1-17:10-15. 15 T1-17:15-25. 16 T1-18:35-19:5. 17 T1-20-28. 18 T1-29-31. 19 T1-33-35. 20 T1-37:10. 21 T1-38:30-40. 22 T1-38:45-50. 23 T1-39:1-15. -- 10 of 24 -- 11 [55] P was cross-examined about various matters in an attack upon her character generally and any motive in seeking monetary compensation from Dr Bhugun with little ultimate forensic effect.24 [56] P was cross-examined about her contribution to the prosecution decision to discontinue criminal charges against Dr Bhugun.25 [57] During re-examination, P further described events during her third consultation with Dr Bhugun.26 Evidence of Andrea Howard [58] Ms Andrea Howard is a bus driver aged in her early 50’s. [59] Ms Howard was called by the Health Ombudsman, consistent with the prosecutorial ethical duty to generally place all relevant witness evidence before the Tribunal. [60] Ms Howard’s evidence-in-chief was confirmation of the accuracy of her police statement dated 25 November 2018 and OHO statement dated 22 February 2019. [61] In her police statement, Ms Howard stated she had never met Dr Bhugun. [62] Ms Howard stated that she became friends with P about four years ago. She described instances of dishonest and unethical behaviour by P. These matters were denied by P when she was cross-examined and I have not found it necessary to make findings regarding them. [63] Ms Howard stated as follows: 9. I go to the same doctor’s surgery Primary Medical and Dental Care Nerang Street Southport. That is how she (P) came to go to the doctor’s surgery because of me. My doctor is next door to Dr Bhugun. My doctor’s name is Dr (G). I have seen my doctor for the past two years. I’ve never seen Dr Bhugun I know his picture as she (P) showed me. She saw he had done a paper and that he had money. She said he is married to Barbie that his wife had come in one day and that she was all done up with designer clothes and plastic surgery. 10. Dr Bhugun she met him and went to visit him for depression the second time she saw him she rung me up and said “are you home?”. I said “yes” because I was off work with an injury. She came around and said to me that she was going to manipulate Dr Bhugun. I chatted with her about that. She said “it wouldn’t take me much” and that men are stupid. 11. She came back to my place about a week later and she looked very beautiful she looked spectacular. She said “I’m going to see him today and today’s the day I’m going to fuck him and we will see how it goes from there”. She had told me that she had rung him up and that she had been upset and that he was going to see her in his lunch break he made that appointment specially for her. 12. …. 13. She came back here to my place after she visited the doctor and said to me “Fucking look I had to wash all his cum off my t-shirt”. 24 T1-39-46, 48-49. 25 T1-47. 26 T1-50-51. -- 11 of 24 -- 12 14. I said “give it to me maybe we’ll put it in the freezer like Monika Lewinsky. If we ever need it we have some DNA proof”. 15. She said “Don’t be ridiculous”. She then told me everything that happened. 16. She told me she went there to the doctor’s surgery and they were talking, (P) and Dr Bhugun. She started to cry, and touched his leg and said “You don’t understand me”. She leaned in and said to him “I just want to dance, sometimes I just want to dance”. So she put some music that she had on her phone and said “Come and dance with me”. She got him up and was dancing with him. She said she just touched his scrotum and felt him go hard and his body react. Then she blowed him. 17. She told me “I quickly unzipped him held it in my hand, he said no no no no” and she said she whispered in his ear to be calm, be calm and then she quickly dropped down and put it in her mouth. She said she didn’t suck it more than once or twice and he just exploded all around her face and on her shirt. 18. She then used her shirt to wipe her mouth. She had to quickly sneak off to the toilets. She said she went in one way to the left of the reception desk and the hallway is a loop so she snuck out the other way. [64] Ms Howard alleged that a mutual acquaintance of her and P had told Ms Howard of a plan for P to extort money from Dr Bhugun. P denied this when cross-examined; there was no confirmatory evidence from the alleged mutual acquaintance; there was no actual extortion attempt; and I am not prepared to make an adverse finding against P on this issue on the basis of this hearsay evidence. [65] Ms Howard stated that her friendship with P ended in about November 2017. After learning of police action against Dr Bhugun from her general practitioner (who practised at the same surgery where Dr Bhugun had practised), Ms Howard contacted police to provide a statement. [66] In Ms Howard’s OHO statement, she confirmed the accuracy of her police statement: On 25 November 2017, I attended the Southport police station and provided a statement about a person I know named (P). This statement is a true reflection of a counselling session (P) told me about with Mr Bhugun on 22 September 2017. Except for the last 3 words in paragraph 16 where it says (P) ‘blew’ him, that didn’t happen. I thought she was going to but (P) told me she grabbed his dick and felt it go hard, she held it in her hand and she said he pretty much came straight away. I am aware the Office of the Health Ombudsman has possession of this statement. [67] Ms Howard further stated: 17. Maybe a week later (P) said to me she was going to see the counsellor. (P) came to have coffee with me before the appointment. She looked absolutely beautiful, she was dressed up which is not normal for her. We were having a cigarette and a coffee and (P) said, ‘today is the day’ I can’t remember exactly what she said, but she said something like ‘I’m going to get him, he’s going to be in the palm of my hand’ I remember saying ‘fuck’ and I was thinking, ‘are you serious, oh my god’. 18. (P) came back after the appointment. She looked like she had been through the ringer. She no longer had make up on, her hair was messed up. She said ‘he came all over my fuckin shirt and my face’ and she told me she she (sic) had to go to the bathroom at the doctor surgery and wash her shirt and then she left her surgery by sneaking out the other side. I remember suggesting we put the shirt in the freezer like Monica Lewinsky. So we had another coffee and a cigarette while (P) told me what happened. -- 12 of 24 -- 13 19. (P) said they (sic) she was talking with the counsellor and she said to him that she always feels more relaxed when she has music and she feels more free when she dances. I can’t remember if she put music on or if he did. I think it might have been him. She then said that the doctor said ‘lets (sic) get up and dance then’ she moved in close to him and then she said she breathed in to him. Dancing would have been easy for (P) as she does that gypsy belly dancing type of thing. She said she felt him stiffen up a bit, she moved in and she said she grabbed his crutch (sic), not in a hard way, she just lightly tucked her hand under his crutch (sic) and just held him. She said she pulled her pants down because they were going to fuck. She said she was near the bed and that her pants are (sic) half way down and his pants are down and she had his dick in my (sic) hand. She was leaning against the bed and he was pushing over her and she said she was tugging on it and then he just came all over her. She said there would have been so much banging and wall crashing. She was surprised no one had heard it. When she was telling me this, we were cracking up laughing, it was funny. 20. (P) also told me that she was going to make the counsellor pay for what he did. This was what put up a flag for me. [68] When cross-examined by Dr Bhugun as to an apparent discrepancy between paragraph 16 of her police statement and paragraph 19 of her OHO statement as to whether P described Dr Bhugun or herself suggesting they dance, Ms Howard said her police statement, made closer to the time of the conversation, was correct.27 Cross- examined further as to the terms of the conversation, Ms Howard stated: So in – in your statement to the police, okay, you said that (P) told you, quote, “Blew him”?- --Uh-huh. What – blew him – sorry – I don’t usually use words like that, but for the purpose of the court, I’ve got to. Blew him: what did you really mean by that, Ms Howard?---Well, she grabbed your penis and made you come all over her. … Yeah?---I just remember her saying that she thrust her hands into your pants, grabbed your dick – your penis - - - Yeah?--- - - - and you come so quickly. Okay, so what - - -?---Blew all over her. Okay. So what you are saying is that she told you while she held my penis, I – I came?--- Yes. Yeah. So there was no mention at any point at all that there was any oral sex?---No. Okay?---Just that she blew you. Okay?---So quick. If – if the Office of the Health Ombudsman said that – says that (P) had oral sex on me, would you say that that is - - -?---I can’t remember - - - That is not - - -?--- - - - any - - - That is not - - -?--- - - - conversation - - - So that is not correct, right?---It wasn’t discussed with me. 27 T1-60. -- 13 of 24 -- 14 Yeah. Okay. So – yes, that’s fine. All I wanted to know is that, you know, OHO has said that apparently – I had – she had oral sex on me and that’s why I’m asking you the question that is not correct because you had a different version, right, of what she told you?---I can only tell you what she told me - - - What she told you?--- - - - and she told me [indistinct] to dance - - - Yeah?--- - - - pulled you in close, thrust her hand in your pants and you blew all over her. Okay. Good. All right. Thank you for that. Is it – Ms – Ms Howard, is it correct to say that (P) advised you about her plan to assault me, and then after the incident, she came to you place and told you how she executed her plan?---No, she did not say she was coming to assault you. She told me that she was – that she had you in the palm of her hand, and she was coming to get you. Are you – she never mentioned assault. Okay, so what you are saying is, just in other words, she had a plan in her head, and she was going to come and execute that plan, and then she came back afterwards. After she finished executing her plan, she came home – she came to your place straight after the – after the session and told you what happened – what she has done, right?---Correct. Ms Howard, is it correct to say that (P) told you about her financial intention from me and the false allegations she was making against me?---No. No. It was her friend who told me that. Okay. So her friend’s told you that. Ms Howard, so - - -?---Her [indistinct] sorry. Sorry - - -?---I was of the – I was of the opinion from her discussion with me that she was coming to entrap you. Yeah?---How that – how that was in her mind, she never discussed prior to going there. Ms Howard, at no – at point did (P) – sorry – (P) told you that I assaulted her, but, in fact, you made your statement that she said that she did what she did with me, right?---Yes, and you were upset. Yeah. Yeah. Okay. Ms Howard, you said in your statement that (P) – (P) told you that when she kissed me and asked me to – sorry for the word. I’ll have to use it for the purpose of the court – fuck her, I repeatedly said, “No, no, no. That is not correct.”?---Did I say that in my statement? Yeah. You said she told you when she kissed me and asked me to fuck her, I repeatedly said, “No, no, no.”?---If I’ve written that into the police statement, then that’s what’s happened. Do you remember the words, “No, no, no,” that you said she told you – I said, “No, no, no.”?---I would like to say to you that this police statement is my statement. Yes?---I don’t remember - - - Okay?--- - - - every little nuance that happened now. Okay?---It’s so long ago. Yeah. Okay, so if you – if whatever you said in your statement to the police is correct, right?- --Correct. Okay. At no point – Ms Howard, at no point did (P) tell you that I – that I assaulted her in any way or form?---No. No. She came for you.28 28 T1-61-63. -- 14 of 24 -- 15 [69] When re-examined, Ms Howard was questioned about the details of her contact with Dr Bhugun prior to giving evidence. She stated that she had not sought any benefit from Dr Bhugun for testifying and that Dr Bhugun had not offered her anything in exchange for assisting him: “Not even a cup of coffee.”29 Evidence of Dr Bhugun [70] Dr Bhugun swore two affidavits. His substantive evidence is in his affidavit sworn on 20 February 2020, in which he described his first consultation with P, before stating as follows: 10. At the end of the session, (P) said that I was the only person who understood her and helped her well, and that she likes me. 11. I saw (P) again for a second session on 15 September 2017. The session was entirely dedicated to rebuilding her self-confidence and self-esteem which included exploring her strengths and achievements to help her build a positive perception of herself which she had undermined so far. The session involved several confidence building exercises to help (P) rediscover her strength and attributes. During the session, (P) said that she had put on a lot of weight and nobody would want her. I reassured her that she was a beautiful person and that beauty also comes from within as a good person. However, if she was still concerned with her weight, she can engaged in some physical exercise which will also be part of the therapeutic discussion in her next session. (P) said that she was really enjoying the session and was laughing a lot. She said that she had a male friend who was a black African Doctor who comes to her place, they cook food together and he stays overnight. 12. (P) told me that I was a very nice, intelligent and handsome man and that she liked me. She said that she was looking forward to see me (sic) for the next session. 13. I saw (P) again for the third time on 29 September 2017. When (P) entered the room, she said that she was very glad to see me again, that she felt a bit hot and adjusted her top as she sat down exposing her breast a bit provocatively. When I asked her how she was going since last session, I noticed that she made special attempts to show me her nails and make up and asked me whether I liked it. 14. From a therapist perspective, I perceived her effort to look after herself as a possible strengths (sic) building attribute. 15. The third session was dedicated to stress and anxiety management. Part of the therapeutic management strategy related to distraction activities, involving talking and spending time with friends. (P) said that she had a really good Maori female friend that she spends quite a lot of time with. She also said that her friend loves Doctor (G), who is another GP at the same medical centre, very much and wondered whether the four of us meaning her female friend, Dr (G), herself and me could go out together one day. I declined and told her that I cannot be part of that circle as she was my patient in a therapeutic relationship. 16. Halfway into the session, (P) acted quite strangely towards me, when I was discussing distraction activities strategy with her, particularly talking about listening to music, & watching videos/films for relaxation. She said that she loved Indian movies & music, watched lots of them in Hungary and started to sing an Indian song which she likes to me. I knew the song and joined the chorus. She then came close to me, held my hands & acted the song scene which required me to stand up. At that point, I just thought that she wanted to show me her skills which could be good towards for her relaxation/stress strategies. But to my surprise, she started to kiss me passionately on my mouth. I was surprised, pushed her mouth away, and told her that I was her therapist and that it was 29 T1-64-65. -- 15 of 24 -- 16 not o.k. But she pressed herself against me, with both of her arms fully wrapped around my back, said that she likes me, that I am a very nice & attractive man, pushed me against the patient bed in the room, started to strongly rub her lower private part against mine and uttered the words “fuck me, fuck me” several times. 17. I told her no, no, no several times, that it was inappropriate & I cannot do that. 18. By that time, she had her hand in my pants and was rubbing my penis. She then went down on her knees, lowered my pant (sic) & started to suck me. I was shocked, overwhelmed by the unexpected act & felt motionless. She sucked me so hard that I lost control and ejaculated in her mouth. As I started to ejaculate, I pulled myself out of her mouth. She tried to catch the sperm in her hands and some of it fell on her shirt and on the floor. She then grabbed some tissues from the tissue box on the table and cleaned herself & me, and then pulled up my pants and adjusted my shirt. She then grabbed some paper towel from the sink paper towel box and cleaned her shirt and the floor where the sperm fell. She then sat back on the chair and started to laugh. I was shocked and confused as to what happened and couldn’t think or react properly at the time. She told me its (sic) okay & to relax. She asked me about her next apt to which I said that I will look into it and let her know because I was still confused about what to do & allowing myself time to think about it for future decision-making as I felt violated. I was not sure about reporting the incident. However, I advised her that I may discuss the problem with her referring GP & my association to know where I stand. She didn’t seem to understand my feeling & asked me to let her know of the next appointment. As she was leaving the room, she said the words “don’t be silly”. I imagine that was in response to my advice to her that I may have to discuss the incident with her referring GP. 19. I was going overseas for a month, about 10 days after the incident, to attend to my niece (sic) wedding and combined long planned holiday. I decided not to report the incident in order not to jeopardise my overseas wedding and holiday trip in case I was required to stay back for the reporting purposes. I decided that I will deal with the problem upon my return from overseas. However, before leaving for overseas, I rang (P) to discuss her inappropriate sexual behaviour towards me and the therapeutic boundaries. There was some problem with her phone and I couldn’t continue the conversation. 20. Upon my return from overseas, I rang (P) on 10 November 2017 but could not reach her. I rang the patient again on 24 November 2017 to see if she can come and see me so that I could sort out her sexual behaviour towards me. She said that she was suffering from high blood pressure and a neck injury, was seeking medical attention for same and will call me back when she is free. I sent her a message that I can see her on Wednesday 29 November at 1.00 pm or 2.00 p.m. (P) replied that she can see me a t 2.00 pm on the proposed date. The appointment was confirmed. 21. When (P) entered my practice room, she kissed me on the cheeks and hugged me. I was not comfortable with her greetings. I opened the session by asking her how she was feeling given that she told me on the phone that she had some health problems with blood pressure and a neck injury. … 22. During the session, (P) showed interest in a religious band and bracelet that I was wearing on my right hand and asked me what they were. She then leant forward, felt the religious band and bracelet on my hand, then held my hand with both her hands and leant forward towards me. I took my hand away and moved my chair backwards and signalled to her with my finger that it was not o.k. 23. I noticed that she was shocked when I took my hand away and moved my chair backwards. Her facial expression changed and she mimicked the words: “What the fuck” in an angry manner. It was very clear at this point that she was angry about my rejection. I took the opportunity to discuss the incident by first referring to the first two sessions -- 16 of 24 -- 17 and subtly getting into the third session to make reference to the incident. At this point, she again leaned forward and rubbed my knees. I pushed her hand away and moved my chair backwards again to stop her behaviour. She got very upset about my rejection and manifested non-verbal angry grimaces on her face. She then started to talk about the incident that occurred, said that she was confused & shouldn’t have happened the way it happened. Then she started to use languages to try to blame me instead which shocked me. Given her behaviour, I was concerned that she might create an ugly scene at the practice. So I let her say what she wanted to say and hear what she wanted to hear instead of arguing what she was saying as a strategy to pacify the situation. This is a common strategy that counsellors, negotiators, etc use when dealing with a difficult situation such as hostage and suicide attempts. I still however told her that she started the whole incident by kissing me on my mouth. In another attempt to pacify the situation, I informed her that I will let go of the incident & that I will see her only in a therapeutic relationship capacity. She was not happy about my proposal & then threatened to report me. I told her that it was not ok what she was threatening me with, that I was disappointed at her attitude. She was not happy & said that she will think about it & left. It appears to me that she was very disappointed with my rejection of her advances & intentions of a relationship with me. 24. I discussed & informed the incident to the referring GP and the Practice Manager internally. [71] Dr Bhugun was cross-examined extensively. I will refer to relevant parts of his evidence during cross-examination when considering the witnesses’ evidence for the purpose of making factual findings and then again when making my ultimate determination. Evidence of P’s general practitioner [72] P’s general practitioner confirmed the accuracy of the contents of his written notification to the OHO on 16 January 2018 and police statement dated 27 September 2018. [73] He provided care to P from 18 July 2017 and, on 21 July 2017, referred P to Dr Bhugun for counselling and cognitive behavioural therapy. [74] He consulted with P on 26 September 2017. His notes of that consultation include: MH30 found counselling not helpful does not want to continue counselled [75] He consulted with P regarding other health issues on 6 October 2017. [76] He consulted with P about other health issues on 10 November 2017. He also inquired about her mental health. P became teary and disclosed the following: (a) that she was “touched” by Dr Bhugun during one of her consultation visits; (b) that Dr Bhugun had caressed and held her hand(s) and sang an Indian language song to her; (c) that she was kissed on her lips by Dr Bhugun; and 30 I interpret this as an abbreviation of “mental health”. -- 17 of 24 -- 18 (d) that after this physical contact she had made additional appointments at the psychologist’s rooms. [77] On 22 December 2017, Dr Bhugun came to his office (as a colleague, not patient) and disclosed the following: (a) he had been raped by P; and (b) P had forced herself on him and performed oral sex on him after he had sung an Indian movie song to her in his consulting rooms. Resolving the factual dispute [78] P claims she was the victim of a sexual assault by Dr Bhugun on 22 September 2017; that she did not consent to any sexual activity with him, let alone initiate or encourage it. She claims she was shocked and distressed by the events. [79] Dr Bhugun claims he was the victim of a sexual assault by P on 22 September 2017; that he did not consent to any sexual activity with her, let alone initiate or encourage it. He claims he was shocked and distressed by the events. [80] I am comfortably satisfied that Dr Bhugun’s account of events on 22 September 2017 is not entirely true, for reasons I will detail. [81] It may well be that P’s account of events on 22 September 2017 is a truthful one. There was nothing about the way P gave evidence that cast doubt on her credibility. She was responsive to questions and made appropriate concessions. Her account had a logical internal consistency. She was unshaken by cross-examination. Dr Bhugun’s collateral attacks upon her character were without real substance. Leaving aside the evidence of Ms Howard, P’s earlier accounts were substantially consistent. [82] However, the evidence of Ms Howard is such that I cannot be satisfied to the requisite standard that P’s account is an entirely truthful one. Ms Howard’s evidence has a level of detail inconsistent with fabrication. I can discern no motive for Ms Howard to concoct her account, volunteer it to the police and maintain it in her evidence before the Tribunal. She previously had a strong friendship with P and no relationship with Dr Bhugun. I am unable to dismiss Ms Howard’s account as a fabrication by her. I accept Ms Howard’s evidence that: (a) On 22 September 2017, prior to her consultation with Dr Bhugun, P visited Ms Howard, made up and dressed up, and expressed an intention to seduce Dr Bhugun; and (b) Later the same day, after the consultation, she again visited Ms Howard and gave an account of the events during the consultation in the terms stated by Ms Howard in paragraphs 13 to 17 of her police statement. [83] The fact that P did not mention any visit to Ms Howard on 22 September 2017 in her police statement,31but only referred to it in her OHO statement after becoming aware of Ms Howard’s police statement, is a further reason for preferring Ms Howard’s evidence to that of P where their accounts conflict. 31 See paragraph 39 of P’s police statement. -- 18 of 24 -- 19 [84] I find that it is likely that P did willingly involve herself in sexual activity with Dr Bhugun on 22 September 2017. It is likely that she invited, if not initiated, the physical intimacy. She was not the unwilling victim of a predatory attack by Dr Bhugun. [85] Likewise, Dr Bhugun was not an unwilling victim. He, at the very least, acquiesced in the sexual activity. Dr Bhugun’s account to the contrary cannot be accepted for the following reasons. [86] Dr Bhugun was an unimpressive witness. His testimony was littered with instances of evasive and non-responsive answers. He is obviously an intelligent person and his lack of responsiveness cannot be excused as a lack of understanding of questions asked of him. [87] Dr Bhugun was prepared to change his version of events if he perceived that might advance his case. In his notes purportedly made on 22 September 2017, Dr Bhugun recorded that P “started to suck me”. During his interview by OHO investigators on 22 February 2019, Dr Bhugun stated that P performed oral sex on him. In his affidavit sworn on 20 February 2020 (at paragraph 18), Dr Bhugun described P fellating his penis until he ejaculated in her mouth. However, after he apparently perceived that the evidence of P and Ms Howard raised doubt as to whether his penis had entered P’s mouth and thus, as Dr Bhugun perceived it, doubt as to the accuracy of the reference by the Health Ombudsman in material to an episode of “oral sex”, Dr Bhugun testified that he did not receive oral sex from P and that he must have been mistaken in his earlier statements to the contrary.32 [88] The fact that Dr Bhugun reached sexual climax is telling. Dr Bhugun referred to law journal and magazine articles33 in support of his contention that male erection and ejaculation may occur during sexual assault and is not necessarily indicative of consent. Whilst that contention should be accepted as a general proposition, I do not find that it has any application to this particular case. I find that Dr Bhugun’s initial sexual arousal most likely occurred before any sexual activity with P and that it and his subsequent climax is more consistent with his willing participation in the sexual activity than with him being an unwilling victim. I find that Dr Bhugun permitted P to masturbate and/or fellate his penis until he ejaculated. [89] Whilst P’s account to Ms Howard does feature Dr Bhugun saying “no no no no” during the course of the sexual activity,34 that occurs during an account of a series of events during which Dr Bhugun is not, as he would claim, physically resisting P’s sexual acts. I do not accept Dr Bhugun’s contention that P’s relative stature, physical strength or security training35meant that he was physically overcome by P. [90] Dr Bhugun’s conduct in relation to P after the 22 September 2017 consultation is inconsistent with his account of the events during that day’s consultation: 32 T2-62-63. Dr Bhugun sought to make a point about this during closing submissions (T2-87:25-30) but the significance eluded me. I suspect that the sophistry of the argument sought to be made is reminiscent of President Clinton’s justification for his statement, “I have never had sexual relations with Monica Lewinsky.” 33 Siegmund Fred Fuchs, “Male Sexual Assault: Issues of Arousal and Consent”, (2004) 51 Cleveland State Law Review 93 at 99-102 and 121; Lydia Smith, “The hidden sexual assault reaction that still isn’t being talked about”, Cosmopolitan UK, 9 May 2017. 34 See paragraph 17 of Ms Howard’s police statement. 35 See T1-17-18. -- 19 of 24 -- 20 (a) His notes in the patient’s medical record of the consultation do not refer to any incident. (Dr Bhugun did make very detailed handwritten notes containing a self-serving account of events during the consultation on 22 September 2017. Their contemporaneity is questionable given they are dated 29, not 22, September 2017.36 My concerns as to the reliability of the notes also apply to the self-serving account as to the events during the consultation on 29 November 2017. The notes are of dubious probative value.) (b) Dr Bhugun did not immediately report the incident to the referring general practitioner who practised at the same location. He did not later advise the general practitioner that he would not be further counselling P. He did not speak to P’s general practitioner until 22 December 2017. Dr Bhugun’s reasons for the delay were unconvincing.37 (c) Dr Bhugun did not inform P at any time that he was terminating their therapeutic relationship; (d) Dr Bhugun acted as if prepared to continue his therapeutic relationship with P. He offered to make a home visit to P. He arranged for a fourth consultation to occur at his other practice location because it offered more privacy. Dr Bhugun’s evidence that the purpose of such consultation was to terminate the therapeutic relationship was unconvincing.38During his recorded conversation with P on 29 November 2017, at no time does Dr Bhugun even hint that he wishes to terminate the therapeutic relationship. Indeed, he makes statements quite to the contrary, describing the nature of future therapy he will provide P (e) The contents of Dr Bhugun’s recorded conversation with P during the fourth consultation on 29 November 2017 are inconsistent with his account of the events of 22 September 2017. When P makes reference to their third consultation and events including, “You came on my shirt”, Dr Bhugun does not respond with surprise or denial, but goes on to refer to them sharing a beautiful song together, him comforting P, holding her and having a beautiful dance about the beautiful romantic song and goes on to state: Of course the chemistry in your body works positively right, it works positively and what happened is, when I was holding you and you were holding me and we were dancing we are looking in each other’s eyes and I was kind of showing you love and care right and you responded the same way and you were feeling good about the moment. It’s because you were feeling good about that moment and whilst I was ah kissing you and then it’s normal, you felt very very wanting and … So when we were holding each other and sharing that beautiful song together an we were looking at each other’s eyes there was this drift of emotion that swept in your body and my body right and that’s how it is and then when you are holding in a dance position, you get that feeling. … 36 See evidence of Dr Bhugun at T2-33-35. 37 See affidavit of Dr Bhugun sworn 20 February 2020 at paragraph 19 and evidence of Dr Bhugun at T2-58:25-35; T2-59:25-35 and T2-70:40-71:15. 38 See evidence of Dr Bhugun at T2-51:45-54:20, T2-56-58, T2-66-67 and T2-68-70. -- 20 of 24 -- 21 I was giving you this beautiful kiss right this beautiful kiss about you and this beautiful kiss that we shared. … This is what I’m saying, this is something special that you shared with something that you share that moment with. So what happened then, this is what happened then. I don’t want you to feel bad or nothing its just the impulse that happens because your body. … When you were really so close to me and emotions were running high into each other and when I was giving you that beautiful beautiful kiss and you were so close to me and you started kissing me, that’s what I’m trying to tell you so don’t take any blame for it, don’t feel responsible for it is just a usual reaction. I regard this part and further parts of the conversation as evidence of admissions by Dr Bhugun that during the third consultation on 22 September 2017 he engaged in mutually consensual physical intimacy with P. I regard this and other parts of the conversation as evidence of implied admissions by Dr Bhugun that he ejaculated in the course of continued mutually consensual sexual intimacy with P, including the following part: P: What am I supposed to think, it was very close, okay, I understand the closeness. But when I went down on the floor. I mean you came on my shirt, that’s a disrespect for me. Dr B: No no, that’s that’s probably because of the position, it’s not a game. P: But that was very disrespectful to me. Dr B: Its not a purposeful. [91] I do not accept Dr Bhugun’s evidence that such statements were not true admissions but concocted by him as a method of pacifying P who, by her conduct during the course of the conversation, caused him to fear for his safety. Dr Bhugun lied in his testimony when he denied willingly embracing, dancing with, and kissing P. He lied when he claimed to have been the victim of a sexual assault. [92] I am comfortably satisfied that Dr Bhugun committed gross boundary violations in his treatment of P. He failed to maintain anything close to the proper professional boundary required between counsellor/ therapist and patient. He invited, permitted and encouraged an improper personal relationship with P. He engaged in physical intimacy with P, exploiting their relationship for his own sexual and emotional gratification. He then continued the boundary violation by seeking to continue his relationship with P. His behaviour was particularly disgraceful in deliberately seeking to exploit the knowledge he had gained of P’s particular vulnerabilities during his treatment of her. [93] Dr Bhugun should be thoroughly ashamed of his behaviour. Yet he has given no indication of contrition. He lied during the course of the investigation and in his evidence in the proceedings. He falsely portrayed himself as a victim. His attacks upon the character of P were gratuitous – to the extent of purporting, in his testimony, to -- 21 of 24 -- 22 make an ex post facto diagnosis of borderline personality disorder.39 His conduct reflects poorly on his character generally as well as professionally. Legislation [94] In providing psychotherapy and counselling services, Dr Bhugun provides a “health service” within the meaning of section 7 of the HO Act and is a “health service provider” as defined in section 8(a)(ii) of the HO Act and thus was liable to the making of an interim prohibition order pursuant to section 68 of the HO Act and referral to the Tribunal pursuant to sections 103(1)(a) and 104 of the HO Act. Dr Bhugun is not a registered health practitioner and thus the applicable powers of the Tribunal are to be found in the repealed Part 10, Division 4 of the HO Act, in particular, section 113. [95] Section 113(1) of the HO Act provides as follows: QCAT must decide if, because of the health practitioner’s health, conduct or performance, the practitioner poses a serious risk to persons. [96] Without limiting section 113(1), section 113(2) provides a non-exhaustive list of ways a serious risk might be posed by a practitioner. They include a serious risk of harm caused by the practitioner “engaging in a sexual or improper relationship with the person” (section 113(2)(c)). [97] Section 113(4) provides as follows: If QCAT decides the practitioner poses a serious risk to persons, it may make an order (a prohibition order)− (a) prohibiting the practitioner, either permanently or for a stated period, from providing any health service or a stated health service; or (b) imposing stated restrictions on the provision of any health service, or a stated health service, by the practitioner. [98] The health and safety of the public is the main consideration for the Tribunal in deciding these proceedings.40 A serious risk? [99] The term, “serious risk”, is not statutorily defined. It takes its ordinary meaning in its statutory context. The word, “serious”, is defined in the Macquarie Dictionary as: of grave aspect; weighty or important; giving cause for apprehension; critical; to be considered as an extreme example of its kind. [100] It is helpful to consider the following: (a) the nature of the risk; (b) the likelihood of it eventuating; and (c) the seriousness of the consequences if the risk eventuates. [101] The nature of the risk is that Dr Bhugun, in providing counselling or psychotherapy services to a vulnerable patient, might fail to maintain proper professional boundaries 39 T2-118. 40 HO Act, s 4. -- 22 of 24 -- 23 with the patient. The seriousness of the consequences if the risk eventuates may be great given the vulnerability of the patients Dr Bhugun is likely to treat. [102] In my view, the decisive factor in this matter is the likelihood of the risk eventuating, that is, the likelihood of Dr Bhugun, if permitted unrestricted treatment of female patients, again engaging in boundary violations. [103] The Health Ombudsman points to Dr Bhugun’s willingness to engage in the boundary violation with P. Although involving only one patient and the sexual activity occurring on only one occasion, in its entirety the boundary violation was a protracted one. Dr Bhugun deliberately sought to continue a therapeutic relationship with P after the episode of sexual activity. [104] The Health Ombudsman points to lengthy portions of Dr Bhugun’s evidence under cross-examination where he displayed an apparently profound lack of understanding of the need for the maintenance of proper professional boundaries. The Health Ombudsman submits that his lack of understanding of such fundamental concepts demonstrates a future risk of boundary violations. I suspect that the evidence demonstrated obfuscation on Dr Bhugun’s part when defending the allegations regarding P rather than a true ignorance of the concepts. I think it more likely that Dr Bhugun does have an adequate understanding of concepts of professional boundaries and certainly understands the profound wrongness of his conduct with P. His failure to properly articulate such understanding is explicable by the context of his questioning on the subject. [105] My adverse findings as to the character of Dr Bhugun weigh in support of a finding of serious risk. His moral compass is such that he was prepared to place his own sexual and emotional gratification over and above his professional obligations. This supports a finding that his character failings are such that he might be prepared to do so again. [106] On the other hand, Dr Bhugun is 68 years old and has practised as a psychotherapist and counsellor for most of the past three decades without, as far as the Tribunal is aware, any other similar incident of misconduct. Unlike some other matters where the Tribunal has made permanent prohibition orders regarding unregistered health practitioners,41 Dr Bhugun has not demonstrated a propensity by re-offending against multiple patients. [107] Another important distinction exists between this matter and other matters where the Tribunal has made permanent prohibition orders regarding unregistered health practitioners. The absence of personal deterrence by way of scrutiny by a professional Board and professional peers is a factor particular to most unregistered practitioners that often requires the blunt instrument of a permanent prohibition order to ensure public safety. The circumstances of Dr Bhugun differ in such respect from most unregistered practitioners. Dr Bhugun is a member of the Australian Association of Social Workers. He takes pride in having authored journal articles and authoring and co-authoring texts and being solicited as a media commentator, lecturer and guest speaker.42 He obviously places considerable importance on his professional 41 Health Ombudsman v MacBean [2019] QCAT 300; Health Ombudsman v Kirk [2019] QCAT 301; Health Ombudsman v Newman [2019] QCAT 397. 42 T2-15-16. See, for example, Dharam Bhugun, “Intercultural Parenting in Australia: Managing Cultural Differences” (2007) 25(2) The Family Journal 187 and Dharam Bhugun, Intercultural Parenting and -- 23 of 24 -- 24 reputation. He will not suffer lightly the damage to his professional and personal reputation as a consequence of the findings of this Tribunal. I expect his willingness to expose himself to the scrutiny of the public and his peers will likely be a protective factor against future misconduct. [108] In addition to the personal deterrence likely to be achieved by the process Dr Bhugun has endured of police and OHO investigation, Tribunal proceedings and adverse Tribunal findings likely to attract public opprobrium, he has suffered the practice restrictions of the IPO and consequent financial loss over a total period approaching 3 years. [109] I consider it more likely than not that the events since Dr Bhugun’s misconduct, including the adverse findings of the Tribunal, are such as to deter Dr Bhugun from repeating such conduct. I do not consider that the likelihood of Dr Bhugun repeating such conduct is high enough for the Tribunal to be satisfied that he “pose a serious risk to persons” within the meaning of section 113(1) of the HO Act. [110] The Health Ombudsman did not submit that considerations of general deterrence, that is, the deterrence of other unregistered practitioners, supported the making of a prohibition order and I have not heard submissions whether such considerations are relevant to section 113 of the HO Act.43 In any event, such considerations would not alter my ultimate decision. Decision [111] The Tribunal, pursuant to section 113(1) of the HO Act, decides that Dr Bhugun does not pose a serious risk to persons. The pre-condition for exercising the discretion, pursuant to section 113(4) of the HO Act, to make a prohibition order is not established. [112] It follows that the Tribunal should, pursuant to section 73(2) of the HO Act, set aside the decision of the Health Ombudsman on 13 May 2019 to issue the IPO order. Relationships (Springer Nature Customer Service Center LLC, 1 st ed, 2019). Dr Bhugun expressed particular pride in his writing on intercultural marriage attracting the favourable attention of the Duke and Duchess of Sussex. 43 Contrast Office of the Health Ombudsman v Costello [2016] QCAT 117 at [33]. -- 24 of 24 --