ARUNKALAIVANAN and MEDICAL BOARD OF AUSTRALIA
[2022] WASAT 94
•25 OCTOBER 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010
CITATION: ARUNKALAIVANAN and MEDICAL BOARD OF AUSTRALIA [2022] WASAT 94
MEMBER: JUDGE H JACKSON, DEPUTY PRESIDENT
MR J O'SULLIVAN, SENIOR MEMBER
DR E MARILLIER, MEMBER
HEARD: 24 JUNE 2022
DELIVERED : 25 OCTOBER 2022
FILE NO/S: VR 13 of 2022
ANGAMUTHU ARUNKALAIVANAN
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords:
Vocational regulation Medical practitioner Where Board determined to take immediate action by way of suspension of practitioner's registration Where practitioner sought review of immediate action decision Decision to take immediate action by way of imposition of conditions on registration
Legislation:
Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 4(1)(a), s 11
Health Practitioner Regulation National Law (Western Australia), s 3(2)(a), s 3(3)(c), s 155, s 156(1)(a)(i), s 156(1)(b)(ii), s 159(2)(a), s 199(1)(h), s 202
Health Practitioner Regulation National Law Regulations 2018 (WA), reg 4
State Administrative Tribunal Act 2004 (WA), s 27
Result:
Respondent's decision to suspend applicant's registration set aside.
Conditions imposed on applicant's registration.
Category: B
Representation:
Counsel:
| Applicant | : | Ms L B Black |
| Respondent | : | Mr M D Cuerden SC and Ms J M McKenzie |
Solicitors:
| Applicant | : | Panetta McGrath Lawyers |
| Respondent | : | Minter Ellison |
Case(s) referred to in decision(s):
Arunkalaivanan and Medical Board of Australia [2020] WASAT 118
Bernadt v Medical Board of Australia [2013] WASCA 259
Cheema v Medical Board of Australia [2020] SACAT 40
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656; [2012] VSCA 295
Lee and Medical Board of Australia [2022] WASAT 28
Medical Board of Australia and Arunkalaivanan [2021] WASAT 127
Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701
Rao and Medical Board of Australia [2022] WASAT 55
WD v Medical Board of Australia [2013] QCAT 614
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant is a specialist obstetrician and gynaecologist.
From 9 December 2019 to 30 September 2021 his registration was suspended as a consequence of immediate action by the Medical Board of Australia (respondent) pursuant to s 156 of the Health Practitioner Regulation National Law (Western Australia) (National Law).[1] The suspension was imposed as a consequence of complaints that were the subject of proceedings in the Tribunal in VR 71 of 2020.
[1] The National Law applies as a law of Western Australia pursuant to s 4(1)(a) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA).
The complaints the subject of VR 71 of 2020 alleged that the applicant had, during consultations with Patient A on 1 November 2018 and Patient B on 25 October 2019, engaged in behaviour that was inappropriate in the carrying out of a medical examination.
The most significant allegations in respect of each patient involved conduct capable of constituting an indecent assault and sexual penetration without consent.[2]
[2] Applicant's Submissions dated 6 June 2022 (Applicant's Submissions), para 4.
VR 71 of 2020 proceeded to hearing in February and March 2021. On 23 September 2021, the Tribunal found that the respondent had not established any of the allegations brought against the applicant on the balance of probabilities. It made an order that the applicant 'had no case to answer and no further action is to be taken'.[3]
[3] Medical Board of Australia and Arunkalaivanan [2021] WASAT 127 (Arunkalaivanan) at [197]–[198].
On 28 February 2022, the applicant's registration was suspended again as a consequence of immediate action taken by the respondent based on notifications received in relation to four patients.
The applicant seeks a review of the respondent's decision to take immediate action to suspend his registration.
The applicant contends that the respondent's decision to suspend his registration exceeds the regulatory force that is necessary and appropriate to mitigate the risk that is reasonably open to the respondent to believe exists.[4]
[4] Applicant's Submissions, para 13.
The application for review requires the Tribunal to determine:
a)whether or not it reasonably believes that:
i)because of the applicant's conduct, he poses a serious risk to persons; and
ii)it is necessary to take immediate action to protect public health or safety; and
b)if so, what is the least restrictive form of immediate action sufficient to mitigate the risk to the public.
The statutory framework
The objectives of the national registration and accreditation scheme (scheme) include providing for the protection of the public by ensuring that only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered.[5]
[5] National Law, s 3(2)(a).
Consistent with that objective the guiding principles of the scheme relevantly provide that restrictions on the practice of a health profession are to be imposed only if it is necessary to ensure health services are provided safely, consistent with best practice principles.[6]
[6] National Law, s 3(3)(c).
The respondent[7] may take immediate action in relation to a registered health practitioner registered in a health profession for which the respondent is established if, for present purposes, it reasonably believes that:
(i)because of the registered health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public health or safety[.][8]
[7] The respondent is the relevant National Board (i.e., for the medical profession) pursuant to reg 4 of the Health Practitioner Regulation National Law Regulations 2018 (WA).
[8] National Law, s 156(1)(a)(i) and (ii).
The term 'immediate action' relevantly means:
(a)the suspension, or imposition of a condition on, the health practitioner's … registration; or
(b)accepting an undertaking from the health practitioner …; or
(c)accepting the surrender of the health practitioner's … registration; or
… [9]
[9] National Law, s 155.
A practitioner who has had his or her registration suspended by the respondent has a right of appeal[10] to the Tribunal.[11] In reality the practitioner has a right of review, whereupon the Tribunal conducts a hearing de novo with a view to producing the correct and preferable decision at the time of the decision upon review.[12]
[10] National Law, s 199(1)(h).
[11] By s 11 of the Health Practitioner Regulation National Law (WA) Act 2010 (WA) the State Administrative Tribunal is the 'responsible tribunal' for the purpose of the National Law.
[12] State Administrative Tribunal Act 2004 (WA), s 27.
Upon hearing the matter, the Tribunal may confirm the respondent's decision, amend it or substitute its own decision for that of the respondent. In substituting another decision for the respondent's decision, the Tribunal has the same power as the respondent.[13]
[13] National Law, s 202.
Relevantly, the respondent's decision to take immediate action continues to have effect unless and until the decision is set aside.[14] No application was made to set aside (stay) the respondent's decision.
The legal principles
[14] National Law, s 159(2)(a).
As McLure P observed in Bernadt[15] it is necessary to identify with precision what it is that must be the subject of the respondent's, and on review the Tribunal's, reasonable belief. There are three components in s 156(1)(a)(i) and (ii) of the National Law that must be the subject of a reasonable belief to justify the taking of immediate action:
[15] Bernadt v Medical Board of Australia [2013] WASCA 259 at [65].
(i)(1) because of (that is, by reason of) the practitioner's
conduct, performance or health;
(2) the practitioner poses a serious risk to persons; and
(ii)it is necessary to take immediate action to protect public
health or safety.
The High Court in Rockett[16] considered the meaning of the phrase 'reasonable grounds for believing'. The majority concluded:[17]
… Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
[16] George v Rockett [1990] HCA 26; (1990) 170 CLR 104.
[17] Rockett at 116.
Importantly, the Tribunal is not required to make findings as to whether in fact the applicant poses a serious risk to persons or whether immediate action was in fact necessary to protect public health. The Tribunal is only required to determine whether it holds a reasonable belief as to those matters.[18] However, there must be proven objective circumstances to justify the belief.[19]
[18] Bernadt per Newnes JA at [171].
[19] Bernadt per McLure P at [66].
Although the decision to take immediate action is made in the interests of public safety, that safety should, consistent with the guiding principles of the scheme (above), be secured with as little damage to the practitioner as is consistent with its maintenance.[20]
[20]Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656; [2012] VSCA 295 at [126].See also, Lee and Medical Board of Australia [2022] WASAT 28 at [46].
In WD,[21] HornemanWren J set out the principles applicable to the taking of immediate action:[22]
[21] WD v Medical Board of Australia [2013] QCAT 614 at [8].
[22] See also Cheema v Medical Board of Australia [2020] SACAT 40 and Rao and Medical Board of Australia [2022] WASAT 55 at [42].
1.an immediate action order does not entail a detailed enquiry;
2.it requires action on an urgent basis because of the need to protect public health and safety;
3.the taking of immediate action does not require proof of the conduct, but rather whether there is a reasonable belief that the registrant poses a serious risk;
4.an immediate action order might be based on material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations;
5.the mere fact and seriousness of the charges, supported by the untested statements of witnesses, in a particular case, might well be sufficient to create the necessary reasonable belief as to the existence of risk;
6.the material available should be carefully scrutinised in order to determine the weight to be attached to it;
7.a complaint that is trivial or misconceived on its face will clearly not be given weight;
8.the nature of the allegations will be highly relevant to the issue of whether the order is justified.
Horneman-Wren J in Oglesby[23] made the following observations regarding assessing the likelihood of future conduct posing a risk to persons:
… I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons. In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future. In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.
[23] Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701 at [20].
Both passages have previously been applied by this Tribunal.[24]
The current notifications
Patient LC (notification 00461376)
[24] Rao and Medical Board of Australia [2022] WASAT 55 at [42] and [131].
This notification was made on 18 February 2021.[25] It is alleged that, during a hysterectomy, for which consent was provided, the applicant also carried out a labiaplasty on 9 October 2018 without any clinical indication or consent. It is also alleged that the procedure resulted in labial disfigurement, and very considerable pain to the patient. The applicant is also alleged to have made inappropriate comments to the patient during consultations.[26]
Patient IC (notification 00486025)
[25] Respondent's Book of Documents Volume 1 dated 24 May 2022 (Respondent's Bundle Vol1), pages 1–8.
[26] Respondent's Book of Documents Volume 2 dated 24 May 2022 (Respondent's Bundle Vol 2), pages 366–369, and Respondent's Book of Documents Volume 3 dated 24 May 2022 (Respondent's Bundle Vol 3), page 763.
It is alleged that on 21 October 2021 the applicant conducted an intimate examination by the insertion of his fingers into her vagina without first asking for and obtaining the patient's informed consent to do so. It is also alleged that the applicant inserted a speculum into the patient's vagina without first asking for and obtaining her informed consent and explaining what he was about to do.[27]
Patient AA (notification 00488928)
[27] Respondent's Bundle Vol 2, page 438, and Respondent's Bundle Vol 3, page 763.
It is alleged that on 20 December 2021 the applicant conducted a cystoscopy procedure during which he twice inserted two fingers inside the patient's vagina without her prior informed consent.[28]
Patient SP (notification 00492547 and 00492767)
[28] Respondent's Bundle Vol 2, page 467 and 485, and Respondent's Bundle Vol 3, page 763.
It is alleged that on 8 February 2022:
a)Patient SP attended the relevant clinic for a surgical procedure to be carried out by the applicant's wife, Dr Hervinder Kaur;
b)became distressed upon becoming aware that the applicant (being a male doctor) may assist Dr Kaur;
c)in response to the Patient SP's distress, Dr Kaur insisted that it was necessary for the applicant to assist. Patient SP agreed to this course but only on the basis that the applicant would not touch her in any way;
d)during the procedure, the applicant attempted to wipe the patient's vagina, and was told not to do so by Dr Kaur on more than one occasion; and
e)following the completion of the procedure, at a time when he thought he was not being observed, he inserted his finger into her vagina in a deep wiping motion while his finger was covered with a swab.[29]
Is immediate action necessary?
The parties' submissions
[29] Respondent's Bundle Vol 2, pages 545–546 and 573–576.
The respondent relies on each of the notifications to find a conclusion that the applicant's 'alleged conduct is indicative of a pattern of behaviour so troubling that the public may not be assured that he will behave in a manner that is consistent with the safe and appropriate care of his patients.'[30]
[30] Respondent's Submissions dated 13 June 2022 (Respondent's Submissions), para 5.19.
That is, the respondent submits that the number of similar allegations, and the seriousness of them, gives rise to a risk of future harm to his future patients.
In assessing the potential harm as serious, the respondent points to the fact that patients who attend gynaecologists are arguably amongst the most vulnerable of all patients seeking medical services by reason of the nature of the intimate physical examinations and surgical procedures likely to be performed.
It is also said that it is a patient's trust in a doctor that allows them to consent to touching that would otherwise not be permitted and that, therefore, '[i]mproper or clinically unjustified touching of a patient's body places them at serious risk of … psychological and emotional distress'.[31]
[31] Respondent's Submissions, para 5.16.
In conclusion in this regard the respondent submits that the Tribunal ought to be satisfied that immediate action is required under s 156(1)(a) because the applicant:[32]
… poses a serious risk of inflicting emotional, psychological and/or physical harm on his patients because, 'based upon evidence of past conduct, there is a real possibility that he will engage in conduct which could be harmful' to his patients in the future.
That is so irrespective of whether, as a matter of fact, the genesis of the Practitioner's conduct is performance-related deficiencies, or a deliberately exploitative intent. In either case, the harm caused to the Practitioner's patients is the same.
[32] Respondent's Submissions, paras 5.20 and 5.21.
In support of its submission that immediate action is necessary the respondent also relies on its previous findings in relation to Patient F.[33] Those findings were made on 20 November 2020 and were that in May 2019, the applicant:
a)did not obtain adequate informed consent from Patient F in relation to the procedure involved in inserting a Mirena intrauterine contraceptive device; and
b)did not explain to Patient F the reason for a speculum examination and then digital examination before asking whether she consented, which consent ought to have been ascertained:
i)prior to the speculum examination;
ii)prior to the digital examination; and
iii)in light of the discovery of a menstrual cup in situ.[34]
[33] Respondent's Submissions, para 5.12.
[34] Respondent's Bundle Vol 3, pages 861–872.
In Arunkalaivanan, the Tribunal noted that the applicant did not appeal those findings and accepts that he is therefore bound by them.[35]
[35] Arunkalaivanan at [71].
The conditions imposed on the applicant's registration as a consequence of those findings included that:
1)the applicant undertake:
a)at least 4 hours of one on one education in relation to informed consent and patient communication;
b)one hour of education in relation to patient confidentiality, and
2)he complete a reflective practice report.[36]
[36] Respondent's Bundle Vol 3, pages 861–872.
In his written submissions[37] the applicant took issue with the respondent's approach to immediate action said to be evident from the following passage from the respondent's Notice of Decision to Take Immediate Action of 28 February 2022:
Further, where [the applicant] has been subject to prior notifications of similar concerns and, despite regulatory action (including Tribunal processes), issues with his practice continue to persist and he continues to demonstrate a blatant disregard and/or lack of insight into the detrimental impact and harm on his patients.[38]
[37] Applicant's Submissions, paras 9.10–9.11.
[38] Respondent's Bundle Vol 3, page 766.
The applicant says that this passage demonstrates that the respondent has presupposed the truth and accuracy of what are, at present, merely allegations and ignores the fact that none of the allegations in VR 71 of 2020 were proved.
In his written submissions[39] the applicant relies on the submissions made by him in the letter from his solicitors to AHPRA dated 24 February 2022.[40]
[39] Applicant's Submissions, para 11.
[40] Respondent's Bundle Vol 3, pages 743–751.
The letter acknowledges that the notifications could reasonably give rise to a prima facie concern in relation to the applicant's clinical performance, primarily the standard of his communication with patients, warranting further investigation. However, the applicant submits that the evidence available to the respondent (and by implication the Tribunal) does not support a reasonable belief that the applicant has engaged in conduct of the nature attributed to him by the respondent.[41]
[41] Respondent's Bundle Vol 3, page 743, para 4.
The letter reiterates that the applicant strenuously denies the allegations and calls for the material available to the respondent to be carefully scrutinised in order to determine the weight to be attached to it.[42]
[42] Respondent's Bundle Vol 3, page 743, paras 5 and 14.
According to the applicant, after careful scrutiny, the weight of the available evidence indicates that the applicant has not engaged in conduct of the nature stated by the respondent so as to necessitate immediate suspension of his registration.[43]
[43] Respondent's Bundle Vol 3, page 744, para 14.
The letter of 24 February 2022 sets out in detail a response to each of the notifications on which the respondent relies. Amongst other things, the applicant repeats his denial that certain events, and in particular the allegation that he inserted his fingers into Patient SP's vagina, took place. The applicant points to the conflicts between the applicant's account of events and those of others who were present and the various complainants.
In relation to Patient IC and Patient AA the applicant submits that, at its highest, the relevant evidence does not support an allegation of inappropriate touching and/or examination or of a transgression of professional boundaries but, rather, is capable of supporting an allegation of no more than inadequate communication.[44]
[44] Respondent's Bundle Vol 3, page 747, paras 36, 39 and 42.
Ultimately, the applicant submits that the risk that could reasonably be said to exist, based on the available evidence, can be characterised as one of inadequate communication and explanation prior to conducting intimate examinations.[45]
[45] Respondent's Bundle Vol 3, page 750, para 68.
The letter goes on to observe that the risk could be mitigated/removed by imposing an interim condition on the applicant's registration that prohibits him from undertaking intimate examinations or procedures.[46] That position was repeated by the applicant in his written submissions[47] and at the hearing.
[46] Respondent's Bundle Vol 3, page 750, paras 68–69.
[47] Applicant's Submissions, para 60.
Central to the applicant's case in these proceedings,[48] is the observation that in VR 71 of 2020 he was suspended for a period of 21 months and 3 weeks as a consequence of immediate action by the respondent only to have the Tribunal find he had no case to answer in the substantive proceedings.[49]
[48] Applicant's Submissions, paras 14–18, 57.1–57.2 and 59.
[49] Arunkalaivanan.
The applicant's submissions addressed in some detail the unfairness said to emanate from the respondent's decision to take immediate action by suspending the applicant's registration in VR 71 of 2020, including the submission that it renders him vulnerable to false complaints.[50]
[50] Applicant's Submissions, para 57.5.
We accept that the outcome of VR 71 of 2020 calls into sharp focus the consequences for a practitioner in the event immediate action in the nature of suspension or some other material restrictions on his right to practise is taken, particularly when there is an extensive delay, as there was in that case, before the substantive proceedings are resolved.[51] It also underscores the need to carefully scrutinise the material available to the respondent.
[51] The Applicant's affidavit affirmed on 3 June 2022, paras 6–47 sets out in detail various hardships said to arise from the current suspension. Consistent with the approach agreed to by the parties at the hearing, we do not proceed on the basis that the various figures (expressed in dollar amounts) as set out in the affidavit are accurate but, rather, proceed on the basis that any impact on the applicant of a period of suspension will be material.
However, the fact that the allegations in VR 71 of 2020 were not proved at a substantive hearing does not of itself establish that the respondent erred in finding there was a reasonable belief that immediate action was required. Nor does it establish that the Tribunal (differently constituted) erred in refusing to stay the immediate action decision.[52] As the discussion as to 'reasonable belief' above (at paras 18 and 19) should make clear, the standard applied in cases of immediate action ('reasonable belief') is different to that applied where allegations of professional misconduct are determined ('balance of probabilities'). In Arunkalaivanan the Tribunal did not find that the allegations did not occur, it found that the respondent had not proved its case on the relevant standard.[53]
[52] Arunkalaivanan and Medical Board of Australia [2020] WASAT 118.
[53] As per paragraph 5 above.
In our view, the outcome of VR 71 of 2020 has no bearing on the task we are required to undertake in this proceeding, save for reminding us of the matters outlined above. Ultimately, we are required to determine, on the available material, whether we hold a reasonable belief that because of his conduct,[54] the applicant poses a serious risk to persons and that it is necessary to take immediate action to protect public health or safety.
The basis for immediate action in this case
[54] Which, we remind ourselves is, at this stage, no more than untested allegations of conduct.
As we have just explained, the applicant contends that the only risk to the public arises as a result of inadequate communication and explanation prior to conducting intimate examinations or procedures. That risk, according to the applicant, is sufficiently addressed if the applicant is prohibited from conducting intimate examinations or procedures.
The respondent on the other hand frames the risk more broadly. It contends that the applicant poses a risk of inflicting physical, emotional and/or psychological harm to patients should he be permitted to conduct or assist in any form of clinical examination or procedure. According to the respondent, if the applicant is involved in the treatment of patients, there exists a real possibility that he will engage in '[i]mproper or clinically unjustified touching'.[55] The respondent also points to the risk of incompetent clinical care said to be evident from the notification in relation to Patient LC.
[55] Respondent's Submissions, para 5.16.
We will deal first with the submission that the risk is no more than one that goes to patient communication.
As noted above, as a consequence of the notification concerning Patient F, on 20 November 2020, conditions were placed on the applicant's registration that included at least four hours of oneonone education in relation to informed consent and communication. This included the applicant writing a reflective practice report.
From 9 to 16 March 2021, the applicant undertook such education.
On 23 September 2021, the Tribunal found that in relation to VR 71 of 2020 the applicant had no case to answer and in October 2021 the applicant resumed practice as a gynaecologist after a long period of suspension.
As previously stated, we have not had regard to the allegations the subject of VR 71 of 2020 save for reminding ourselves of the risks to the applicant inherent in our task. But, given the notification concerning Patient F and the conditions imposed in response to that notification, together with the long period of suspension in relation to VR 70 of 2020, in our view the applicant ought to have been acutely aware of his obligations in relation to consent and communication, when he returned to practice.
In any event, given the obvious vulnerability of patients undergoing gynaecological procedures, it is hard to imagine an area of medical practice in which the issues of consent and communication could be more critical.
Despite that background, within three months of the applicant's suspension ending and him resuming practise, it is alleged there were (at least) issues in relation to consent and communication in relation to the applicant's intimate examinations of Patients IC and AA.
In that regard we think it significant that not only are the allegations made by Patient IC and AA consistent with one another, they are also consistent with the allegations made by Patient F. Moreover, the evidence of Johanette Maritz, a nurse who worked with the applicant between 29 September 2021 and 21 December 2021,[56] is corroborative of the accounts provide by Patients IC and AA.
[56] Respondent's Bundle Vol 2, page 458, para 5.
According to Ms Maritz:[57]
[57] Respondent's Bundle Vol 2, page 459, paras 16–22 and 27.
16.… [The applicant] would not provide a lot of information [to the patient] about the examination or what he was going to do.
17.[The applicant] would usually say something similar to, 'Pop up on the bed and I'll do an examination'.
18.[The applicant] would then commence the examination, which was usually an internal examination without saying anything to the patient.
19.[The applicant] would insert his fingers into the patient's vagina without any notice and would not explain what he was doing.
20.This did not just happen on one occasions (sic). There are at least four occasions I can clearly remember where this happened.
21.All four patients were consulting with [the applicant] for the first time. For all of these four patients, the examinations consisted of an internal vaginal examination, with or without a pap smear and swabs.
22.I cannot recall the patients by name, and I can't remember the exact times when the consultations were.
…
27.As soon as [the applicant] began touching these four patients, I could see fear and discomfort in their faces. They looked absolutely terrified.
In our view, the risk associated with the allegations concerning Patient IC and Patient AA cannot, in light of that background, be properly characterised as limited to concerns around inadequate communication.
In our view that characterisation of risk is confirmed when regard is had to the allegations concerning Patient SP, as to which both parties rightly gave considerable attention.
The applicant attacks the veracity of this notification on a number of grounds and says that it is not open to the Tribunal to form a reasonable belief that the applicant wiped, and/or put his fingers in, Patient SP's vagina.
As set out briefly above, Patient SP was booked in for a surgical procedure, and became distressed at the prospect of the applicant (a male doctor), participating in the surgery, and made it known to a number of witnesses that she did not want him to participate.
In seeking to address Patient SP's concerns, Dr Kaur advised her that while she (Dr Kaur) would carry out the procedure she needed the applicant to assist her.[58]
[58] In this regards Patient SP's notification (Respondents Bundle Volume 2, pages 542–549) and the statement of Dr Kaur (Respondents Bundle Volume 3 pages 752–758, paras 19–24) are relevantly consistent.
Patient SP's notification, which is consistent but not identical in this regard with the statements of other witnesses,[59] says that she agreed to that course of action but only if the applicant did not touch her at all. The notification alleges that Patient SP said to Dr Kaur that she did not want the applicant to 'touch me, cut, (sic) me or have … any contact with me down there', while the other statements are to the effect that Patient SP made clear that the applicant was (simply) not to touch her.
[59] Respondent's Bundle Vol 2, pages 555, 574, 581 and 582.
Dr Kaur's evidence differs from the other witnesses in that she maintains that Patient SP 'advised that she did not want [the applicant] to touch her directly but only to do so with surgical instruments'.[60]
[60] Respondent's Bundle Vol 3, page 756, para 25.
Nothing turns on this difference in the account of what Patient SP is alleged to have said, given Dr Kaur says she instructed the applicant not to touch Patient SP with an instrument during the procedure on at least one occasion and possibly two.[61]
[61] Respondent's Bundle Vol 3, page 758, para 36.
There is evidence that during the procedure, notwithstanding the instructions provided by Patient SP and Dr Kaur, the applicant attempted to wipe Patient SP's vagina, but Dr Kaur intervened and told him to stop. This is said by different witnesses to have occurred 'on one occasion, possibly two'[62] or, alternatively, 'on at least six occasions'.[63]
[62] Respondent's Bundle Vol 3, page 758, para 35.
[63] Respondent's Bundle Vol 2, page 569, para 30.
Ms Woodcock (anaesthetic technician), who was present during and after the procedure, says that after the procedure was complete the applicant inserted his finger into Patient SP's vagina by way of a deep wiping motion. No other person present during the procedure says they witnessed this take place. Of those witnesses only Dr Kaur says it could not have happened without her witnessing it.[64]
[64] Respondent's Bundle Vol 3, page 758, para 34.
The relevant paragraphs of Ms Woodcock's account are as follows:[65]
[65] Respondent's Bundle Vol 2, page 575, paras 45–47 and 49–64.
45.I was standing at the surgical end, near the patients' legs for the majority of the surgery.
46.For most of the surgery, I was standing behind the surgeons who were seated just in front of me.
47.I was approximately two metres away from the surgeon's, there were no obstructions in my way, and I could clearly see the surgeons and the surgical field, being the patient's vagina.
…
49.I was aware of the patient's wishes for the male surgeon not to touch her, so I was making a conscious effort to ensure nothing happened. I felt as though I was advocating for the patient whilst she was asleep.
50.After approximately 45 minutes had passed, the surgery was complete. The patient had been closed up and I did not observe any blood on the patient's vagina.
51.The female surgeon stood up from her chair and turned right to face Anne [Bishop]. She placed something on her trolley and was checking things on the trolley.
52.Anne was also turned towards her trolley; I believe she was doing a count of some sorts.
53.The male surgeon was no longer holding the retractor instrument or using an instrument to open the patients vagina.
54.Straight away, he [the applicant] picked up a surgical swab from the table in front of him. He picked up the swab with his right hand and quickly covered most [of] his pointer finger. When I say pointer finger, I mean the first finger next to the thumb.
55.I observed the male surgeon apply a deep, wiping motion with the swab directly into the patients vagina.
56.The male surgeon placed his pointer finger in and out of the patient's vagina on one occasion, in a firm, wiping motion. I could not tell how far the surgeon placed his finger into the patient's vagina. The entire movement occurred for approximately two seconds.
57.At this time, there were no obstructions in my view, the room was well lit, and I could clearly see the male surgeon, his hands and the patient's vagina.
58.There was definitely no blood on, or around the patient's vagina at this time, just prior or after the male surgeon did this.
59.Immediately after the male surgeon removed his finger, he placed the swab on the table and turned around in his seat.
60.As he turned around, I was watching his face and his facial [expression] appeared that he was surprised to see me standing behind him.
61.The male surgeon then stood up, removed his gown and moved away from the surgical field.
62.I approached Tania [Dr Strickland] straight away and advised her of what I had observed …
…
64.When the case finalised, I reported the incident to the theatre manager, Bessie [Leslie].
Ms Woodcock said that later she confronted the applicant about what had occurred and that, he replied, 'I forgot'.[66]
[66] Respondent's Bundle Vol 2, page 576, para 67–72.
As we foreshadowed earlier, the applicant contests Ms Woodcock's version of events. First, the applicant points to the fact that, of the other four witnesses the respondent relies on in relation to this allegation, only Ms Woodcock alleges the applicant wiped and inserted his finger in the patient's vagina.[67]
[67] Respondent's Bundle Vol 3, page 748, para 48.
We note that Ms Woodcock says that both Dr Kaur and Ms Bishop had turned away from the patient when the alleged conduct is said to have occurred.
Ms Bishop's (surgical scrub nurse) evidence is consistent with that of Ms Woodcock in that she confirms she turned away at the end of the surgery:[68]
There were only two occasions where I turned my back during the surgery to complete swab counts … I would have also conducted a second count at the end of the surgery … and the counts would take approximately five minutes.
[68] Respondent's Bundle Vol 2, page 569, paras 38–40.
Dr Strickland's (consultant anaesthetist) evidence acknowledges that her view of the surgical field was obstructed:[69]
I also cannot visually observe what occurs in the surgical field. This is because I had a large drape raised over the patient, that was held up with clamps and poles. This drape acts as a barrier for any contamination entering the surgical field.
The barrier is approximately eye-height when I am standing up, however, I was seated for a large majority of the case.
[69] Respondent's Bundle Vol 2, page 578, paras 34–35.
Ms Leslie (theatre manager) said she:[70]
… stood in the theatre for the first ten minutes or so of the procedure.
[70] Respondent's Bundle Vol 2, page 583, para 36.
Ms Woodcock's allegation that the applicant inserted his finger into the vagina of Patient SP after the surgery was complete, provides an explanation why Ms Leslie was not in a position to confirm one way or another what took place.
Ms Kaur (scouting nurse) said she did not recall seeing anything or hear any conversations between Dr Kaur and the applicant. Ms Kaur said she moves around the theatre taking notes, preparing instruments and providing everything that both the nurses and surgeons require.[71]
[71] Respondent's Bundle Vol 2, page 572, paras 18–19.
The applicant says further that Ms Woodcock was positioned at the head of Patient SP and therefore was not in a position to see anything inserted into the patient's vagina.
We note that this assertion is inconsistent with Ms Woodcock's evidence to which we have already referred. It is also inconsistent with the evidence of Dr Strickland who says:[72]
At the commencement and conclusion of the case, [Ms Woodcock] was at the head of the patient assisting me. However, throughout the surgery she was at the patient's legs and moving from the patient's head to assist me, to back to the surgical field … Towards the end of the case, [Ms Woodcock] approached me from where she was standing at the bottom of the bed. My recollection is that [Ms Woodcock] said words to the effect of, 'I saw him put a swab inside of her and then take it out again'.
[72] Respondent's Bundle Vol 2, page 578, paras 31 and 37–38.
The applicant also asserts that the evidence of all of the other witnesses is consistent with the conclusion that the conduct the subject of the notification did not happen.
As we have already explained only Dr Kaur says the conduct did not happen. All of the other witnesses say they did not see the incident; they do not say it did not happen nor do they say it could not have happened. Considering the evidence as a whole, there are rational explanations as to why those witnesses may not have seen what is alleged by Ms Woodcock.
We have focused in particular on the material concerning the notification in relation to Patient SP because the role occupied by the applicant in treating Patient SP is representative of the role which he advocates the Tribunal should allow him to undertake going forward. This is, as noted previously, reflected in a proposed condition on his registration limiting the applicant from performing intimate examinations and procedures but by implication permitting him to work as a surgical assistant.
So far as the notification concerning Patient SP is concerned, there is evidence supporting a reasonable belief that the applicant, whilst working as a surgical assistant, attempted several times to touch the patient's vagina, and did in fact do so, despite being expressly told not to on more than one occasion.
We note that even if we were to disregard Ms Woodcock's account as to the applicant's behaviour after the procedure was complete, there is evidence from multiple sources, including his wife, which supports a reasonable belief that the applicant attempted to touch Patient SP's vagina on more than one occasion despite being instructed not to do so and, after attempting to do so, to not repeat it. The applicant's case is that those attempts ought to be characterised as a reflexive action. In our view the material as to the circumstances prior to the commencement of the procedure leading to the instructions of Patient SP supports a reasonable belief that that was not the case.
In our view the evidence concerning Patient SP supports a reasonable belief that there is a real possibility that the applicant, if permitted to be involved in any way with the physical treatment of patients, may 'improperly' and (given the gynaecological nature of his practice) intimately touch patients without their consent.
Further, we accept the submissions of the respondent that should such improper, intimate touching occur without consent there is a real risk that patients will suffer emotional and/or psychological harm.
That is, we do not accept the applicant's characterisation of risk as limited to concerns around communication and consent.
As a consequence, we have concluded that the condition advanced by the applicant is not adequate to address the risk as we have characterised it.
Necessarily, therefore, a further question arises as to what is the least restrictive requirement which would sufficiently protect the public.
The correct and preferable decision as to the type of immediate action
The applicant contends that if a condition on his registration which prohibits him from carrying out intimate procedures or examinations is not sufficient, then an additional condition can be added requiring that a chaperone be present, 'who is able to directly observe any contact between the [applicant] and the patient at all times'.[73]
[73] Applicant's Minute of Proposed Orders, 4 July 2022, condition 2(a).
We are not persuaded that the appointment of a chaperone is likely to sufficiently ameliorate the risk to the public given the circumstances of this case. We note that chaperones were present during the procedures the subject of the current notifications in relation to Patients IC and AA.
Importantly, with respect to the notification in relation to Patient SP, Ms Woodcock's evidence is that she informally assumed the role of chaperone in that she 'was making a conscious effort to ensure nothing happened'.[74] Despite that, we have a reasonable belief that the applicant tried, on more than one occasion to improperly and intimately touch Patient SP.
[74] Respondent's Bundle Vol 2, page 575, para 49.
In considering the appropriateness of any immediate action, we are mindful of the consequences, including the financial implications for the applicant,[75] of such a decision. However, ultimately the protection of the public is the paramount consideration to which the interests of the applicant are subordinate,[76] albeit that, as noted above, any restriction on the applicant's practise must be no more than is necessary to serve the protection of the public.
[75] Applicant's affidavit, affirmed 3 June 2022, paras 6–47. See footnote [51].
[76] Kozanoglu v Pharmacy Board of Australia (2012) 36 VR 656; [2012] VSCA 295 at [126].
In our view, the protection of the public does not, however, require the suspension of the applicant's registration.
Rather, we have concluded that the risk as we have identified it can be addressed by appropriate conditions on the applicant's registration.
In our view the risk as identified can be addressed by a condition that precludes the applicant from consulting with patients in person or otherwise being physically present with a patient at all during any consultation, procedure or examination. For the avoidance of any doubt, this would enable the applicant to consult with patients by telephone or video. It would also enable him to operate equipment being used on a patient where he is in a different room to the patient.
Such an approach means that it is not necessary for us to address in any detail the allegations concerning Patient LC. Any risk to the safety of the public arising from the applicant's surgical competence is, in our view, addressed by the proposed condition which will have the practical effect of preventing him from carrying out such procedures. In so saying, we do not say that we are not of the reasonable belief that such a risk exists – it is not necessary for us to do so at this stage.
Accordingly, we set aside the respondent's decision to suspend the applicant's registration and will hear further from the parties as to the wording of the condition's to be imposed on the applicant's registration that would prohibit the applicant from being physically present in a room with a patient at any time.
In addition to such a condition, we will impose ancillary orders in the form set out in the Annexure to these reasons. They are substantially in the form of conditions 2 to 7 of those provided on a without prejudice basis by the respondent. In addition, we propose to clarify that the 'senior person' from whom AHPRA may obtain information may not be the applicant's wife, Dr Kaur. We accept that the prospects of a conflict of interest would be too great if she were to occupy that role.
We will also hear further from the parties as to our proposed ancillary orders and as to any application as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
25 OCTOBER 2022
ANNEXURE A
[TO BE INSERTED - CONDITION THAT PRACTITIONER MUST NOT BE PHYSICALLY PRESENT WITH A PATIENT].
Within 14 days of the notice of imposition of these conditions, the Practitioner must provide to Ahpra, on the approved form (HP7), acknowledgement that Ahpra may:
a.Seek reports from the Director of Medical Services/Director of Nursing/Senior Practice Manger/ Senior Manager/Senior Partner/proprietor/owner/other as appropriate (the senior person) at each place of practice on at least a fortnightly basis or as otherwise required.
b.Request and access from the senior person at each place of practice copies of rosters, pay slips, or the equivalent.
c.Have contact with and access information from the, where relevant, Medicare, private health insurers and/or practice billing area.
Within 14 days of the notice of the imposition of these conditions the practitioner must provide to Ahpra, on the approved form (HPS7), acknowledgement from the senior person at each place of practice that they are aware Ahpra will seek reports from them.
Subject to Condition 1 above, the Practitioner may practise only in place(s) of practice approved by the Board.
For the purposes of this condition, 'practise' is defined as any role, whether remunerated or not, in which the individual uses their skills and knowledge as a medical practitioner in their profession.
For the purposes of this condition, the following practice locations have been approved:
5. Within 14 days of the notice of the imposition of these conditions the Practitioner must provide Aphra, on the approved form (HPC), the contact details of a senior person, such as the Director of Medical Services, Director of Nursing, Senior Practice Manager, Senior Manager, Senior Partner, Proprietor, Owner, or equivalent (the senior person) at each current place of practice. In providing this form, the practitioner acknowledges that Ahpra will contact the senior person and provide them with a copy of the conditions on the practitioner's registration or confirm that the senior person has received a copy of the conditions from the practitioner. The practitioner will be required to provide the same form:
a.within 7 days of the commencement of practice at each subsequent place of practice; and
b.within 7 days of each and every notice of any subsequent alteration of these conditions.
Within 14 days of the notice of the imposition of these conditions the Practitioner must provide to Ahpra, on the approved form (HPS7), acknowledgement from the senior person at each place of practice that they are aware Ahpra will seek reports from them.
In conditions 2, 5 and 6 above the 'senior person' may not be the Practitioners wife, Dr Harvinder Kaur.
All costs associated with compliance with the conditions on their registration are at the Practitioner's own expense.
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