Professional Discipline and Proof in Historic Misconduct Allegations: How does VCAT determine whether uninvited sexual contact is proven against a medical practitioner when the evidence is delayed, contested, and clinically contextualised?

Based on the authentic Australian judicial case Medical Board of Australia v Blandthorn (Review and Regulation) (Corrected) [2025] VCAT 80, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds. :contentReference[oaicite:0]{index=0}

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Victorian Civil and Administrative Tribunal, Administrative Division, Review and Regulation List

Presiding Member: Presiding Member (with two Practitioner Members)

Cause of Action: Disciplinary allegation referral under the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic)

Judgment Date: 3 February 2025 (Corrected 7 February 2025)

Core Keywords:

Keyword 1: Authentic Judgment Case
Keyword 2: Professional boundaries
Keyword 3: Historic allegation
Keyword 4: Briginshaw principle
Keyword 5: Witness inconsistency
Keyword 6: Open justice and de-identification

Background

This was a professional discipline proceeding in which the Applicant regulator brought a serious allegation against the Respondent medical practitioner about an alleged consultation with a minor patient more than two decades earlier. The allegation concerned an alleged breach of professional boundaries involving claimed uninvited sexual contact during a clinical encounter said to have occurred while the patient was alone with the Respondent in an adjacent room during a consultation sequence. The case required the Tribunal to assess contested recollections, the forensic impact of time, and whether the evidence reached the required level of persuasion under the civil standard as refined by the Briginshaw principle. The public importance lay not only in the allegation itself, but in how a tribunal should reason when serious misconduct is alleged long after the event, with incomplete records and partially inconsistent testimony.

Core Disputes and Claims

Core dispute: Whether the Tribunal could be comfortably satisfied, on the balance of probabilities and applying the Briginshaw principle, that the Respondent made uninvited sexual contact with a minor patient during a consultation by restraining her and touching intimate areas.

Applicant’s claim/relief sought: A finding that the Respondent engaged in professional misconduct and or unprofessional conduct within the National Law, based on alleged sexual boundary violations in the clinical setting, and the consequential disciplinary outcome flowing from a proven finding.

Respondent’s position/relief sought: Denial that the alleged conduct occurred, and dismissal of the referral on the basis that the evidence did not meet the standard required for a serious finding.

Collateral procedural dispute: Whether, if the allegation was not proven, the Respondent’s identity should be withheld in the published reasons (a dispute engaging open justice principles and the threshold for suppression or pseudonym orders).

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Chapter 2: Origin of the Case

The relationship began as a treating relationship between a specialist practitioner and a teenage patient presenting with anorexia nervosa. The patient attended multiple consultations over a defined period, generally accompanied by her mother. The treating context matters: anorexia is a condition that often involves close monitoring of physical status, risk assessment, and engagement with a patient who may be reluctant or distressed about treatment. That context became critical because the Applicant asserted that a physical task (taking blood pressure) created an opportunity for boundary transgression, while the Respondent said any physical aspect was clinically explainable and limited.

The conflict emerged gradually rather than explosively. According to the evidence relied upon by the Applicant, there were features of the consultations that the patient experienced as uncomfortable, including repeated hand contact. The alleged pivotal moment occurred during one appointment when the Respondent took the patient into another room to take her blood pressure, while the mother remained behind. That separation from a support person became the focal hinge of the case narrative.

The decisive moment leading to litigation was not an immediate police complaint in 2003. Instead, the matter resurfaced many years later, following a notification that prompted an investigation. That delayed pathway was central to the evidentiary problem: by the time the allegation was adjudicated, the alleged event was more than 20 years old, relevant clinical records were not recovered, and the Tribunal was asked to decide a serious misconduct allegation largely on memory evidence, supported by partial disclosures to family and friends.

Two further background factors framed the deterioration of the relationship and the later regulatory action:

1. The patient’s vulnerability at the relevant time: age, clinical condition, and the inherent power imbalance in a doctor–patient relationship.

2. The procedural reality of historic complaints: when time passes, both the complainant’s recollection and the respondent’s capacity to provide an alternative narrative may be impaired, and the system must decide whether, and how, findings can be safely made.

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Chapter 3: Key Evidence and Core Disputes

Applicant’s Main Evidence and Arguments

1. The patient’s witness statement and oral testimony:

   • Account of being taken to an adjacent room for blood pressure.
   • Account of being instructed to lie on an examination bed.
   • Account of restraint when attempting to rise.
   • Account of touching of breasts under clothing.
   • Account of touching, rubbing, and digital penetration of the vagina.
   • Account of an alleged remark on return to the main consultation room suggesting that persons with anorexia make up outrageous lies and should not be believed.
2. The mother’s witness statement(s) and oral testimony:
   • Confirmation that she attended the consultations.
   • Confirmation that the patient and Respondent went into another room for an examination.
   • Recollection of the Respondent answering a ringing phone during that period.
   • Evidence about the patient’s later disclosure that the Respondent touched her on the chest and tummy.
3. Supporting witness statements from other lay witnesses:
   • A friend’s statement recalling the patient’s distress and report of being touched inappropriately when taken to a separate room.
   • A spouse’s statement recalling disclosure of being touched.
   • A parent’s statement recalling the patient’s report of being uncomfortable and touched.
4. Documentary materials:
   • Limited correspondence relating to treatment (letters) but absence of clinical records for the consultations.

Applicant’s core submission theme:
– The patient’s evidence, supported by surrounding disclosures, established the allegation to the required standard.
– Any inconsistencies were consistent with the known pattern of how disclosures of sexual misconduct may vary, especially from a minor and in circumstances of trauma.

Respondent’s Main Evidence and Arguments

1. Denial of the alleged sexual conduct:
   • Evidence that intimate examination was not clinically indicated in the practitioner’s psychiatric practice.
   • Evidence that physical examinations were not usual practice beyond occasional blood pressure measurement.
2. Limited recall:
   • Evidence that the Respondent did not remember the patient.
   • Reliance on usual practice and what would, and would not, be done in clinical circumstances.
3. Clinical explanation for some physical contact:
   • Acknowledgment that touching hands could occur as a check for cold peripheries in anorexia.
4. Forensic disadvantage:
   • Submission that the passage of time and absence of clinical records impaired the capacity to respond with a detailed alternative factual narrative.

Respondent’s core submission theme:
– The evidence was insufficiently precise and reliable for a serious finding.
– The Tribunal should not reach a state of comfortable satisfaction given inconsistencies and missing contextual proof (including the clinic layout and how the adjacent room was accessed).

Core Dispute Points

1. Whether the key alleged sexual contact occurred at all.
2. Whether the surrounding details were consistent enough to support the core allegation, including:
   • Whether the blood pressure cuff was removed or left on.
   • Whether the patient stood for a standing blood pressure reading.
   • Whether restraint occurred in a way compatible with other evidence.
3. Whether the mother’s evidence corroborated the alleged remark about not believing the patient.
4. Whether the clinic layout, proximity, and audibility made the alleged conduct less likely, and whether the absence of reliable evidence about the layout created doubt.
5. How the Briginshaw principle should shape the Tribunal’s approach to memory evidence in serious allegations.

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Chapter 4: Statements in Affidavits

In professional discipline proceedings, witness statements function like affidavit-style evidence: they are structured narratives offered to establish facts and guide cross-examination. This case demonstrates a central truth about affidavit practice: precision is power, and drift is risk.

The patient’s statement presented a detailed sequential account: the move to the adjacent room, the blood pressure process, the restraint, the intimate touching, and the return to the main room with an alleged discrediting remark. The strength of this style is its clarity. The vulnerability is that a detailed timeline becomes a set of anchor points that can be tested, and if an anchor shifts under cross-examination, the tribunal may question whether it can rely on the remainder.

The mother’s statements show another affidavit dynamic: later supplementation. The mother provided an earlier statement and then later added detail as the hearing approached. Supplementation is common in litigation, but it creates strategic exposure. If the opposing party can characterise later additions as reconstruction rather than recollection, the credibility calculus becomes harder. In this case, the mother’s later statement added detail about hand-touching and a particular phrase said when the patient returned from the adjacent room. That mattered because it intersected with the contested question: what happened in the adjacent room that would explain a remark about anger or moodiness.

The Respondent’s statement style was different: denial combined with reliance on usual practice. That approach is often rational where memory is absent and records are missing. However, it is not a substitute for an alternative factual narrative. Its effectiveness depends on whether the tribunal accepts that usual practice is sufficiently reliable to rebut a specific alleged event, and whether there is any independent evidence supporting the usual-practice account (such as contemporaneous notes, clinic protocols, or corroborative witnesses). Here, the missing clinical records created the classic risk: the tribunal must choose between a specific recollection and an asserted professional habit, without contemporaneous objective documentation.

Strategic Intent Behind Procedural Directions

A tribunal’s management of affidavit-style material often aims to sharpen the real dispute and avoid unfairness. In a case like this, the strategic procedural aim is to ensure:

1. The tribunal book is settled so both sides know the evidentiary universe.
2. Witnesses who are required for testing are available for cross-examination.
3. The tribunal can focus on the determinative conflicts rather than secondary narrative colour.

Notably, certain supporting witnesses were not required for cross-examination, which emphasises a litigation reality: hearsay-style support may provide context, but it rarely resolves the ultimate factual contest, especially under the Briginshaw principle.

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Chapter 5: Court Orders

Before the final hearing, the Tribunal made procedural arrangements and directions typical of sensitive professional discipline matters, including:

1. A direction limiting inspection of the Tribunal file to parties and legal representatives, reflecting privacy and case management concerns.
2. A non-publication order protecting the identification of the patient and lay witnesses, reflecting the protective function in cases involving sensitive allegations and vulnerability.
3. Orders dealing with the timing and filing of any applications relating to publication or identification, including directions about written submissions after a request was made regarding whether the Respondent should be named in published reasons.

These orders reflect the dual obligation in such proceedings: open justice for the community and fairness and protection for vulnerable participants.

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Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

Process Reconstruction: Live Restoration

The hearing dynamic turned on cross-examination because cross-examination is where affidavit-style certainty meets the tribunal’s demand for coherence.

The patient adopted her earlier statement but, under cross-examination, struggled with certain surrounding details. The Tribunal accepted that difficulty recalling events after more than 20 years was unsurprising. The critical forensic issue was not mere imprecision. It was that certain details shifted in a way that touched the core mechanics of the alleged assault sequence.

The most significant live fracture occurred around the blood pressure sequence. In the patient’s statement, the narrative suggested the cuff was removed and restraint occurred when she attempted to stand. In cross-examination, the patient accepted a standing blood pressure was taken and that the cuff was left on, then later said she tried to get up with the cuff still on. This mattered because it created tension between:
1. An assault occurring immediately after a single blood pressure reading with cuff removal; and
2. A clinical sequence involving lying and standing readings, which would plausibly involve movement and a continuing cuff placement.

The Tribunal’s reasoning shows a discipline tribunal’s method: it does not require perfect recollection, but it does require that the core contested account be sufficiently stable to justify a serious finding.

Core Evidence Confrontation: The Decisive Flashpoints

1. The alleged intimate touching itself:
   • The patient asserted it occurred; the Respondent denied it categorically.
2. The alleged remark about not believing the patient:
   • The patient asserted words to that effect; the mother did not confirm that specific phrase; the Respondent denied using those words, offering an alternative clinical-type remark about persons with eating disorders misleading about food and exercise.
   • The Tribunal treated the mother’s inability to corroborate the more extreme phrasing as significant, because it was said to be memorable and made in the mother’s presence.
3. The clinic layout and proximity:
   • The allegation was said to occur in a room adjacent to the mother in a reportedly busy clinic with poor soundproofing.
   • The Tribunal did not treat audibility and busyness as determinative in favour of denial, but the absence of clear evidence about whether the adjacent room was accessed through an adjoining door, and whether the door remained open, became a relevant missing link.
   • This missing environmental fact mattered because it affected the plausibility calculus.
4. The supporting disclosure evidence:
   • The mother recalled a disclosure of touching on chest and tummy; the friend recalled a report of inappropriate touching; the spouse recalled a report of being touched.
   • The Tribunal accepted that disclosure accounts can vary and that variation does not automatically undermine credibility. However, the Tribunal found these disclosures established, at most, that something occurred that caused discomfort, not the specific alleged conduct.

Judicial Reasoning: How Facts Drove Outcome Under Statute and Briginshaw

The Tribunal’s reasoning reflects a disciplined chain:

1. Identify the statutory frame and the standard of proof.
2. Recognise the seriousness of allegation and consequences.
3. Apply Briginshaw to the quality and clarity of proof required for comfortable satisfaction.
4. Evaluate the core witness and the stability of their account.
5. Test consistency with other witnesses on facts that should be confirmable.
6. Determine whether doubt remains such that the required satisfaction is not reached.

“The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.”

This passage mattered because the Tribunal treated the allegation as inherently serious and consequence-heavy. The Tribunal did not raise the standard above the balance of probabilities; instead it required evidence of sufficient clarity and quality to justify a finding that would carry grave professional consequences.

“Having considered all of the evidence and, particularly in light of the difficulties of the patient recalling the events of 2003… the Tribunal is unable to be comfortably satisfied that the events occurred as alleged.”

This statement was determinative because it expresses the Tribunal’s bottom line: unresolved doubt remained. The Tribunal’s function was not to decide what might have occurred, but whether the Applicant proved the allegation to the required civil persuasion in a serious case. The Tribunal held it was not.

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Chapter 7: Final Judgment of the Court

The Tribunal dismissed the application. It determined that it was not comfortably satisfied that the alleged uninvited sexual contact and boundary violation was proven on the balance of probabilities, applying the Briginshaw principle. The proceeding therefore concluded without disciplinary findings on the alleged sexual misconduct.

The Tribunal also refused the Respondent’s request to be de-identified in the written reasons if the allegation was not made out, holding that reputational protection alone was not a sufficient basis to depart from open justice principles in the absence of necessity and proper evidentiary foundation.

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Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

Special Analysis

This case is jurisprudentially valuable because it shows how a professional discipline tribunal handles historic allegations of sexual boundary violations where:

1. The allegation is inherently serious and potentially life-altering for both complainant and practitioner.
2. The evidence is primarily memory-based and delayed.
3. There are missing clinical records.
4. Surrounding details shift under testing.
5. Corroboration is partial and indirect.

The Tribunal’s approach demonstrates a disciplined restraint. It did not equate discomfort with proof of assault. It did not dismiss the patient’s account as fabrication. Instead, it recognised genuine effort to recall, accepted vulnerability, accepted that disclosures vary, but held firm to the requirement that serious adverse findings require sufficiently clear proof.

The decision also shows the forensic double-bind of historic matters: time cuts both ways. A practitioner may suffer forensic disadvantage through lack of memory and records, but the regulator also faces the difficulty of proving a contested allegation when the complainant’s recollection is degraded by time.

Judgment Points

1. Comfortable satisfaction is the functional threshold in serious civil fact-finding.
   • The Tribunal reaffirmed that the civil standard applies, but the Briginshaw principle demands evidence commensurate with the seriousness of the allegation.
   • Practical lesson: in discipline cases alleging sexual misconduct, tribunals will scrutinise the internal coherence of the narrative and the objective circumstances more intensely than in routine disputes.
2. Surrounding inconsistencies can become core inconsistencies when they alter the mechanics of the alleged event.
   • The blood pressure cuff sequence was not a peripheral detail. It intersected directly with whether restraint and assault could have occurred in the described timeline.
   • For practitioners: cross-examination strategy often targets timeline mechanics rather than emotional content, because mechanics can be tested for logical compatibility.
3. Expected corroboration matters when the alleged fact is said to occur in another witness’s presence.
   • The alleged statement about not believing the patient was said to be delivered in the mother’s presence and characterised as memorable. The mother did not confirm the specific phrasing. The Tribunal treated that absence as important.
   • Litigation implication: where a fact is alleged to be observed by a supporting witness, absence of confirmation can undermine confidence, even where the tribunal accepts general vulnerability and discomfort.
4. Environmental plausibility is relevant, but lack of evidence about environment can create doubt.
   • The Tribunal did not accept that a busy clinic necessarily proves nothing occurred. However, unclear evidence about whether an adjoining door existed and whether it remained open was a missing fact that could have affected the plausibility assessment.
   • Practical lesson: in historic cases, parties should seek objective reconstruction evidence: floor plans, photographs, leasing records, or witness evidence about clinic layout and room access.
5. Disclosure evidence supports that something occurred, but may not prove the pleaded allegation.
   • The Tribunal recognised variability in descriptions of sexual offences, especially from minors, but still held that the indirect disclosures were not sufficiently detailed to prove the specific allegation.
   • For general readers: telling someone later can be important, but what can be proven in a tribunal depends on how reliably the tribunal can connect those disclosures to a precise pleaded allegation.
6. Character references have limited weight on ultimate factual questions.
   • The Tribunal treated generalised professional character references as providing little assistance in deciding whether the alleged conduct occurred in a specific incident.
   • Practitioners should treat references as more relevant to sanction and protective orders, not to the primary finding of fact.
7. Open justice requires necessity, not convenience.
   • Even when an allegation is not proven, tribunals may still name the practitioner absent a proper basis to depart from open justice, because reputational concern is not itself necessity.
   • This is a sobering procedural point: participation in disciplinary proceedings may remain publicly searchable even after dismissal.
8. The tribunal’s role is not to determine what might have happened, but what is proven for the purposes of the proceeding.
   • This is a fundamental boundary of adjudication. The Tribunal did not purport to resolve the moral narrative; it resolved the legal proof question.

Legal Basis

Key statutory provisions and principles referred to in resolving evidentiary contradictions included:

1. Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic):
   • The definitional architecture of professional misconduct and unprofessional conduct.
   • The referral framework and the Tribunal’s jurisdiction to determine whether alleged conduct is established.
2. Briginshaw v Briginshaw (1938) 60 CLR 336:
   • The principle guiding the quality and clarity of proof required for serious allegations under the civil standard.
3. Open Courts Act 2013 (Vic) and VCAT Act framework:
   • The necessity threshold for suppression or de-identification, and the primacy of open justice absent necessity.

Comparable authorities referenced or engaged in the reasoning of this type of proceeding included:
– Briginshaw v Briginshaw (1938) 60 CLR 336: Serious allegations in civil proceedings require strong, clear proof to reach reasonable satisfaction.
– Medical Board of Australia v FVE (Review and Regulation) [2018] VCAT 1029: Principles for pseudonym or suppression orders in health disciplinary proceedings, requiring necessity.
– Medical Board of Australia v Handsjuk (Review and Regulation) [2019] VCAT 876: Reputational embarrassment, without concrete necessity, is insufficient to justify de-identification even where allegations are not made out.
– Medical Board of Australia v Lee (Review and Regulation) [2019] VCAT 2036: Generalised character references are limited in deciding ultimate factual questions about specific alleged misconduct.
– Kearney v Nursing and Midwifery Board of Australia (Review and Regulation) [2020] VCAT 1216: Character references have limited utility in balancing public confidence where serious allegations exist, noting context-specific differences between immediate action reviews and final determinations.

Evidence Chain

Five-Link Structure: Conclusion = Evidence + Statutory Provisions

Victory Point 1: The Applicant’s case depended on the stability of the core narrative under testing.
– Evidence link: The patient’s statement was detailed, but key mechanical elements shifted under cross-examination in a way the Tribunal treated as inconsistent about what occurred in the critical minutes in the adjacent room.
– Statutory and principle link: The Tribunal applied the civil standard with Briginshaw, requiring clear and convincing proof proportionate to the seriousness.
– Outcome logic: Where the Tribunal cannot confidently rely on the core sequence, it cannot reach comfortable satisfaction.

Victory Point 2: Lack of corroboration on a fact said to occur in a corroborator’s presence created doubt.
– Evidence link: The alleged extreme remark about not believing the patient was not confirmed by the mother, despite being said to be memorable and in her presence.
– Outcome logic: This undermined the reliability of that asserted contextual feature, and reduced the tribunal’s confidence in the overall narrative scaffolding.

Victory Point 3: The absence of objective clinic-layout evidence left a gap in plausibility assessment.
– Evidence link: There was no clear evidence whether there was an adjoining door, how access occurred, and whether the door remained open.
– Outcome logic: For a serious allegation said to occur near a waiting parent, uncertainty about physical opportunity can materially contribute to residual doubt.

Victory Point 4: Disclosure witnesses established distress and discomfort, but did not support the pleaded specificity.
– Evidence link: Disclosures described inappropriate touching in general terms, but the Tribunal found they did not support the precise pleaded allegation of the specific sexual contact particulars.
– Outcome logic: The tribunal distinguished between corroborating that a person was distressed and corroborating that the pleaded conduct occurred.

Victory Point 5: The Tribunal accepted vulnerability and unease, but separated that from proof of sexual misconduct.
– Evidence link: The Tribunal was comfortably satisfied the patient was vulnerable and uneasy, and that certain non-intimate touching of hands occurred as part of clinical checking.
– Outcome logic: That finding did not logically compel a finding that the alleged intimate touching occurred, and the Tribunal declined to bridge the gap with inference.

Victory Point 6: The Respondent’s evidence of usual practice did not prove innocence, but worked alongside evidentiary uncertainty to prevent comfortable satisfaction.
– Evidence link: The Respondent denied intimate examinations, asserted lack of clinical indication, and accepted limited clinically explicable contact.
– Outcome logic: When combined with instability in the Applicant’s core narrative and missing objective context, the Tribunal could not exclude doubt to the level required.

Victory Point 7: The Tribunal explicitly acknowledged that busyness and poor soundproofing were not determinative, showing careful reasoning rather than assumption.
– Evidence link: The Tribunal did not accept that clinic activity alone disproves the allegation.
– Outcome logic: This strengthens the jurisprudential integrity of the decision: the Tribunal still found doubt, but on specific evidentiary grounds, not stereotypes about how misconduct could or could not occur.

Victory Point 8: The Tribunal’s treatment of character references confirms that discipline matters prioritise incident-specific proof over general reputation at the factual stage.
– Evidence link: References were general, not incident-specific.
– Outcome logic: The Tribunal treated them as low probative value on whether the alleged conduct occurred, consistent with comparable authorities.

Judicial Original Quotation

“The Tribunal is not satisfied that the evidence from these witnesses of their conversations with the patient support the specific allegation made by the Applicant in this matter.”

This is determinative because it captures the Tribunal’s essential separation between general corroboration of discomfort and proof of the pleaded conduct. The Tribunal accepted that something caused unease, but held that this did not prove the pleaded particulars.

“On the evidence before it, the Tribunal is not comfortably satisfied…”

This formulation matters because it signals the Tribunal’s deliberate adoption of Briginshaw-informed persuasion. The phrase is not rhetorical. It is the adjudicative endpoint: without comfortable satisfaction, serious professional misconduct findings cannot be made.

Analysis of the Losing Party’s Failure

1. Proof failure was not framed as disbelief of the complainant. It was framed as an evidentiary insufficiency under a serious-allegation lens.
2. The Applicant’s case was vulnerable to cross-examination because it depended on a precise timeline and physical sequence. Shifts in the blood pressure mechanics became a critical weakness.
3. The Applicant could not fill objective gaps typical of historic cases:
   • no clinical notes;
   • limited objective environmental proof;
   • no independent contemporaneous complaint record from 2003 capable of anchoring the particulars with detail.
4. Indirect corroboration was too general to prove the pleaded specifics. The Tribunal accepted the reality that accounts can vary, but still required linkage to the pleaded allegation.
5. The Tribunal considered that uncertainty about clinic layout and proximity was a missing contextual fact that prevented the Tribunal from excluding doubt.

Implications

1. If you are a patient or family member, discomfort and unease are signals worth taking seriously. Even if a tribunal later cannot make a finding, seeking support early can protect wellbeing and preserve evidence.
2. If you are a practitioner, boundaries must be actively protected, not passively assumed. Chaperoning practices, clear explanations, and documenting clinically indicated physical checks are protective for both patient and practitioner.
3. If you are a regulator or advocate, historic cases require a different evidence-building mindset: objective reconstruction evidence can be the difference between suspicion and proof.
4. If you are a decision-maker, the discipline system must hold two truths at once: harm may be real, and yet proof may be insufficient to justify a grave finding. The legal system’s caution is not indifference; it is a safeguard against irreversible error.
5. For the public, this case teaches a hard lesson about legal proof: a tribunal cannot fill gaps with intuition. Its power comes from disciplined reasoning, and disciplined reasoning requires evidence that is clear enough to carry the weight of the conclusion.

Q&A Session

1. Why did the Tribunal talk so much about the passage of time?
   Because time affects memory, available records, and the capacity of both sides to test and answer factual claims. In serious allegations, the Tribunal must be satisfied that remaining evidence is still strong enough to justify a finding.

2. Does dismissal mean the Tribunal found the allegation was false?
   No. Dismissal means the Applicant did not prove the allegation to the required standard for the purposes of this proceeding. It is a finding about proof, not a definitive historical declaration about what did or did not occur beyond the Tribunal’s evidentiary satisfaction.

3. Why could the Respondent still be named even though the allegation was not proven?
   Because open justice is the default. A tribunal will depart from that default only where necessity is established under relevant legislation and principles, and reputational concern alone is generally insufficient without additional concrete justification.

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Appendix: Reference for Comparable Case Judgments and Practical Guidelines

Chapter 9: Practical Positioning of This Case

1. Practical Positioning of This Case

Case Subtype: Health Practitioner Regulation and Disciplinary Proceeding – Alleged Professional Boundary Violation and Uninvited Sexual Contact in Clinical Context

Judgment Nature Definition: Final Judgment (determination of whether the alleged conduct was proven and the referral outcome)

2. Self-examination of Core Statutory Elements

Execution Instruction: The following test standards are a structured reference framework. Outcomes tend to be determined by the specific pleaded allegations, the statutory definitions, and the tribunal’s assessment of the clarity and quality of proof. They are not absolute rules and should be applied with care to the specific facts and evidence.

Core Test Standard A: Jurisdiction and Power to Determine Disciplinary Allegations
1. Identify the statutory head of power for the referral and the Tribunal’s jurisdiction.
2. Identify the conduct alleged and the relevant statutory definitions engaged.
3. Identify the standard of proof applicable and any principle affecting the degree of persuasion required for serious allegations.
4. Identify whether the Tribunal’s task is protective, disciplinary, or both, and how that affects the analysis of evidence and outcomes.

Core Test Standard B: Definition Mapping to Statutory Categories
1. Map each pleaded act to the statutory definition of professional misconduct and or unprofessional conduct.
2. Determine whether alleged conduct involves a boundary crossing that is sexualised in nature and inconsistent with professional standards.
3. Determine whether the alleged conduct is clinically indicated and consented to; lack of clinical indication and absence of consent tend to weigh heavily.
4. Consider whether the conduct, if proven, is so serious that it would tend to warrant protective orders, noting that sanction is only considered after proof of conduct.

Core Test Standard C: Proof in Serious Allegations Under Civil Standard
1. Confirm the civil standard: balance of probabilities.
2. Apply Briginshaw: the more serious the allegation and consequence, the clearer and more cogent the evidence must be to reach reasonable satisfaction.
3. Evaluate the clarity of direct testimony:
– internal consistency over time,
– stability under cross-examination,
– plausibility within objective context.
4. Evaluate corroboration:
– whether another witness could be expected to confirm key surrounding facts,
– whether disclosure evidence is detailed enough to support pleaded particulars.
5. Evaluate objective anchors:
– contemporaneous records,
– clinical notes,
– letters,
– physical environment reconstruction.
6. Evaluate forensic disadvantage and fairness:
– time delay,
– lost records,
– inability to recall,
– effect on both parties.

Core Test Standard D: Boundary and Consent Analysis in Clinical Encounters
1. Determine whether the conduct involved intimate touching.
2. Determine whether there was clinical indication for the conduct.
3. Determine whether informed consent existed, including whether the patient understood what was proposed and had a meaningful opportunity to decline.
4. Consider safeguards:
– presence of a chaperone,
– explanation of procedure,
– documentation.
5. Determine whether the conduct, if proven, would constitute an exploitation of vulnerability inherent in the therapeutic relationship.

Core Test Standard E: Open Justice and De-identification
1. Start from open justice as the default.
2. Identify whether there is statutory power to suppress or anonymise.
3. Apply necessity as the threshold: the order must be necessary, not merely reasonable or convenient.
4. Identify whose interests are protected:
– patients and vulnerable witnesses commonly justify protection,
– practitioners generally require concrete justification beyond reputational concern.
5. Ensure proportionality:
– narrowest order necessary,
– limited scope and duration where appropriate.

3. Equitable Remedies and Alternative Claims

Execution Instruction: In discipline proceedings, statutory pathways dominate. However, parties often face situations where statutory relief is limited or proof is not achieved. The following are alternative paths that may be relevant depending on facts, jurisdiction, and limitation constraints. These are not guarantees and tend to be determined by specific evidence and legal thresholds.

Procedural Fairness
1. Opportunity to be heard:
– Was each party given a proper opportunity to present evidence and submissions?
– Were adverse credibility points put fairly in cross-examination?
2. Apprehension of bias:
– Is there any realistic basis for apprehended bias in the tribunal’s process?
3. Reasons:
– Were reasons adequate, addressing the central issues and evidentiary conflicts?

Ancillary Claims and Parallel Pathways
1. If a disciplinary allegation is not proven, it does not necessarily resolve whether other legal avenues exist:
– Civil claims in tort may still be pursued where limitation periods and evidence permit.
– Criminal complaints may be considered where jurisdiction and evidence permit, noting different standards of proof.
2. If records are missing, parties can consider objective reconstruction:
– clinic lease documents,
– building plans,
– staff recollections,
– contemporaneous third-party records.

Abuse of Process and Evidence Exclusion Concepts
1. In some contexts, parties may challenge improperly obtained evidence.
2. Where evidence is lawful but weak, the principal issue is weight, not admissibility.

4. Access Thresholds and Exceptional Circumstances

Execution Instruction: Identify hard thresholds that commonly shape outcomes, and the exceptional channels that can alter those thresholds. The below are structured examples relevant to this case type.

Regular Thresholds
1. Standard of proof remains civil balance of probabilities, but serious allegations tend to require cogent evidence to reach comfortable satisfaction.
2. Corroboration is not strictly required, but lack of objective support in historic cases tends to increase the risk that the tribunal cannot reach comfortable satisfaction.
3. Open justice remains the default; suppression requires necessity.

Exceptional Channels
1. Protective non-publication for complainants and lay witnesses:
– Where identification risks harm, stigma, or safety concerns, suppression orders may be made and can operate broadly.
2. Historic delay:
– Delay does not bar proceedings automatically, but it tends to elevate evidentiary difficulty and can create forensic disadvantage impacting the tribunal’s satisfaction.
3. Missing records:
– Lack of records tends to be a significant barrier. Where alternative objective evidence exists, it can partially compensate.

Suggestion
Do not abandon a potential claim or defence simply because the matter is old or records are missing. Outcomes often turn on whether you can find objective anchors that stabilise the narrative: environment evidence, contemporaneous third-party notes, or consistent detail preserved across time.

5. Guidelines for Judicial and Legal Citation

Citation Angle
It is recommended to cite this case in submissions or research involving:
1. Application of Briginshaw in professional discipline fact-finding.
2. Treatment of inconsistency and memory evidence in historic allegations.
3. Limits of disclosure evidence in proving pleaded particulars.
4. Open justice principles in health disciplinary contexts, including de-identification requests by practitioners.

Citation Method
As Positive Support:
– Where your matter involves serious allegations requiring careful Briginshaw reasoning and disciplined explanation of why comfortable satisfaction is or is not reached, citing this authority can strengthen your argument.

As a Distinguishing Reference:
– If the opposing party cites this case to argue that historic allegations cannot be proven, you should emphasise distinguishing features:
– existence of contemporaneous records,
– stronger objective reconstruction evidence,
– stable core narrative under cross-examination,
– corroboration on facts said to be witnessed by others.

Anonymisation Rule
In your own publication or client communication, do not use personal names of vulnerable participants. Use procedural titles such as Applicant and Respondent, and follow any applicable suppression regime.

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Conclusion

This decision is a reminder that in serious professional discipline matters, the Tribunal’s conclusion tends to be determined by a disciplined equation: the pleaded allegation must be matched by evidence that is clear enough to carry the weight of the finding, and the reasoning must transparently show how the Tribunal reached comfortable satisfaction or why it could not.

Golden Sentence:
Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

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Disclaimer

This article is based on the study and analysis of the public judgment of the Federal Circuit and Family Court of Australia ([Insert Case Name]), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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