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10 Jan 2024
A Melbourne doctor has been cleared of allegations of professional misconduct after having sex with a patient whilst intoxicated in the toilets of a Melbourne bar.
The Victorian Civil and Administrative Tribunal (the tribunal) found Dr Rizwan Sami had no case to answer after it was unable to decide between vastly different accounts of the night provided by the Melbourne GP and his female patient.
The Medical Board of Australia (the Board) referred the matter to the tribunal after the 23-year-old woman reported to police and others that Dr Sami had raped her hours after she identified herself as his patient when the two bumped into each other at St Kilda’s Esplanade Hotel in March 2019.
The woman had been Dr Sami’s patient since March 2017, attending 10 consultations with him for complex and highly personal medical issues, including an appointment three and half weeks before their paths crossed on a night out.
Dr Sami told the tribunal he did not recognise the woman as his patient when they met while waiting for drinks. He said the pair later entered a disabled toilet together and began having consensual sex but, when it ‘dawned’ on him she was his patient, he stopped.
After a four-day hearing, a VCAT panel ruled excessive alcohol consumption meant it could not rely on anyone’s recollections of events leading up to and during the bathroom encounter.
In its finding, the VCAT panel stated: ‘we are not entitled to guess which version of events is to be believed’. The panel stated it was up to the Board to prove the patient’s story was accurate, not for Dr Sami to persuade it that his account was truthful.
‘We were not required to decide that the Patient or Sami had lied or manufactured their evidence. Our focus was on whether the evidence persuaded us that the facts alleged by the Board had actually occurred,’ the tribunal stated.
‘We listened to and reflected on the evidence before us and then considered whether the Board had proved to our comfortable satisfaction that Sami had acted in the ways alleged, including having non-consensual violent sex with the Patient when he knew she was his patient.
‘The Board has not persuaded us of those matters.
‘That is not because we consider anyone, least of all the Patient, lied. There was no evidence before us to suggest she had a motive to lie. Even if it could be said that Sami had every reason to lie, there was no moment in the evidence that showed he had definitively done so. Accordingly, we considered each disputed fact and applied the requisite burden and standard of proof.
‘In the end, the role of excessive alcohol in a noisy and largely dimly lit bar meant we could not rely on anyone’s recollections as providing a reliable and coherent picture of all that happened.’
Dr Sami was charged with rape and sexual assault in May 2020 over the incident, but in August 2020 the charges were withdrawn. Immediate action taken by the Board to suspend Dr Sami’s registration, which prevented him practising as well as assessing overseas medical graduates for the Australian Health Practitioner Regulation Agency, was also later overturned by the tribunal.
CCTV footage from the bar presented at VCAT showed the doctor and patient dancing, kissing and touching each other sexually during the night before walking to the bathroom. The footage showed the patient leaving the bathroom about 12 minutes later followed by Dr Sami, with no further interaction.
The patient said the pair entered the toilet for consensual sex but claimed Dr Sami became violent and demeaning before forcing himself on her.
Dr Sami denied forcing himself on the woman, as well as hearing her introduce herself as his patient when they first met in the bar. However, Dr Sami said that while reflecting in the days following the incident he recalled a possibility that she may have introduced herself as his patient.
Dr Sami’s evidence showed he consulted 100-150 patients a week, and that the patient’s clothing and appearance were very different in the bar than during their consultations.
The Board presented the patient’s claims as being ‘detailed, specific and consistent’ evidence about what happened, but submitted Dr Sami’s evidence was ‘far-fetched’ and ‘embellished’, and that he was selective in the matters he did and did not recall by blaming drunkenness ‘when it suited him’.
However, the VCAT panel found the Board had not been able to provide evidence to prove the allegations to its reasonable or comfortable satisfaction.
‘We are also not comfortably satisfied the Board has proven that, prior to the moment when intercourse ceased, Sami recognised the woman he was with in the Toilet as his patient,’ the tribunal found.
The tribunal’s decision can be seen here.