Balasingham v Health Care Complaints Commission

[2024] NSWCA 100

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Balasingham v Health Care Complaints Commission [2024] NSWCA 100

Hearing dates:

7 May 2024

Decision date:

09 May 2024

Before:

Ward P; Leeming JA

Decision:

Summons seeking leave to appeal filed 28 February 2024 dismissed with costs.

Catchwords:

OCCUPATIONS – health practitioners – findings of unsatisfactory professional conduct and professional misconduct against medical practitioner following Stage 1 hearing – application for leave to appeal – whether case established for grant of leave – where application did not challenge most aspects of decision – whether clear case of error as to concession by expert in cross-examination – where any error was not shown to be anything other than a minor contribution to findings – leave refused

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), cl 29 of Sch 5

Uniform Civil Procedure Rules 2005 (NSW), r 51.53

Cases Cited:

Health Care Complaints Commission v Balasingham [2023] NSWCATOD 174

Category:

Principal judgment

Parties:

Mohanadas Balasingham (Applicant)
Health Care Complaints Commission (Respondent)

Representation:

Counsel:
K Smark SC (Applicant)
I Chatterjee (Respondent)

Solicitors:
Makinson d’Apice Lawyers (Applicant)
Health Care Complaints Commission

File Number(s):

2023/461042

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

NSW Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2023] NSWCATOD 174

Date of Decision:

28 November 2023

Before:

Balla ADCJ, Principal Member
Dr J Fogarty, Senior Member
Dr J Aitken, Senior Member
D Telford, General Member

File Number(s):

2023/98844

JUDGMENT

1. THE COURT: Dr Mohanadas Balasingham seeks leave to appeal from the decision of the Occupational Division of the NSW Civil and Administrative Tribunal finding him guilty of unsatisfactory professional conduct in respect of complaints one and two and professional misconduct in respect of complaint three on 28 November 2023, following a four-day “Stage 1” hearing earlier that month: Health Care Complaints Commission v Balasingham [2023] NSWCATOD 174. There has not as yet been a “Stage 2” hearing.

Background

2. The application by the respondent Commission to the Tribunal contained three complaints, based on the applicant’s conduct concerning two patients, “Patient A” and “Patient B”. Nothing more need be said about Patient B because no part of the application for leave challenged any aspect of the findings concerning her.

3. By way of overview, the Commission’s complaints insofar as they were based on Patient A all concerned a single consultation at the applicant’s practice in Western Sydney after 5pm on Saturday 5 September 2020. Patient A had never previously consulted the applicant. She attended his rooms accompanied by her partner, who waited in the waiting room. She had missed a period and had some abdominal cramps, and a pregnancy test administered at home had returned negative. There is no dispute that the applicant asked Patient A numerous inappropriate questions about her sexual history. She supplied a urine test which showed negative to pregnancy. Nonetheless, the applicant conducted a vaginal examination, with his hands, in circumstances where (so the Commission contended) there was no clinical justification, and for which he had not obtained any informed consent from his patient. Patient A also claimed, and the Commission alleged as complaint two, that during that examination, the applicant rubbed her clitoris and the outside of her vagina for five to six seconds. There were other aspects to the Commission’s application, but the foregoing were the most important.

4. The applicant accepts that an appeal lies only with leave. That is at least because this is a “non-lawyer appeal” within the meaning of cl 29(4)(b) of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NSW), and the proposed grounds of appeal are entirely factual. It is unnecessary for present purposes to address whether, if the grounds of appeal were confined to questions of law, nonetheless leave would still be required because the Tribunal’s decision is interlocutory within the meaning of cl 29(6)(a). The parties exchanged written submissions and a relatively brief oral hearing was conducted confined to the question of leave.

5. The applicant’s draft notice of appeal contains five grounds. The third and fourth relate to a finding concerning whether he had discussed the question of a chaperone with Patient A, but it is not necessary for present purposes to address these in any detail. That is because (a) the Commission conceded in its written submissions supplied in advance of the hearing that there was an error of fact in one aspect of the reasons of the Tribunal concerning the chaperone, and (b) the applicant conceded that those grounds by themselves would not warrant a grant of leave. The concession was made with Mr Smark SC’s characteristic candour, and was a proper one to make. In the scheme of the adverse findings made by the Tribunal, the absence of a chaperone and whether or not the applicant had offered one is of relatively minor significance.

6. The fifth proposed ground of appeal is wholly consequential, to the effect that, in relation to Patient A, the Tribunal had erred in making findings that the applicant was guilty of unsatisfactory professional conduct in respect of complaints one and two and professional misconduct in respect of complaint three.

7. Accordingly, the parties’ oral submissions were concentrated on proposed grounds 1 and 2, which were as follows:

1. The Tribunal erred in finding that the appellant’s decision to perform a vaginal examination of Patient A was conduct which was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or expertise (the Standard);

2. The Tribunal ought to have found that the appellant’s decision to perform a vaginal examination of Patient A was not conduct which was significantly below the Standard.

The Commission’s application to the Tribunal

8. The Commission filed an application in the Tribunal on 27 March 2023. The first complaint contained four particulars, three of which relate to Patient A. Those particulars related to the applicant asking her inappropriate questions about her sexual history, performing a vaginal examination without her informed consent, without offering a chaperone and in circumstances where the examination was not clinically indicated, and failing to record in his consultation notes the diagnosis, the clinical reasons for the examination, her consent or whether she was offered a chaperone. The fourth particular concerned Patient B.

9. The second complaint was that the applicant had:

inappropriately performed a vaginal examination on Patient A in circumstances where the practitioner rubbed Patient A’s clitoris and the outside of her vagina for approximately 5-6 seconds.

10. The third complaint was that, considered cumulatively, complaints one and two warranted a finding that the applicant was guilty of professional misconduct.

11. It is not necessary to summarise the entirety of the evidence of Patient A. She made immediate complaint to her partner who had accompanied her to the consultation rooms. A formal statement made by her at Fairfield Police Station on Monday 7 September 2020 included the following:

Dr Mohanadas BALASINGHAM walked over as I was laying on the bed. He had gloves on and with [his] left hand placed it on my lower abdomen. He then placed at least two fingers from his right hand inside my vagina. I was dry and he struggled to get in. He was rough. It felt forceful. I felt his fingers go around in a circular motion toward my clitoris. I think he was feeling inside of me for a minute. While his fingers were still inside me he started pressing with his left hand on my abdomen. He kept asking if I had pain. I kept telling him that I have no pain down there and it was mainly cramping in my stomach.

Dr Mohanadas BALASINGHAM pulled his fingers out of my vagina and then started rubbing my clitoris and all around the outside of my vagina. He did this for about 5 or 6 seconds. He asked if I had pain anywhere, I said no.

12. Both the applicant and Patient A were cross-examined before the Tribunal. Once again, it is not necessary to summarise their evidence in any detail. The applicant said that he was concerned that there might be an ectopic pregnancy, and said that any touching of Patient A’s clitoris was inadvertent. Because the findings of the Tribunal in relation to a majority of the particulars of the complaints were not the subject of challenge, it is unnecessary to summarise the evidence on which they were based.

The limited challenge by the applicant to the Tribunal’s decision

13. There was no challenge to the Tribunal’s finding at [60]-[65] that the applicant was guilty of unsatisfactory professional conduct in relation to the first particular of the first complaint, namely, asking questions of Patient A’s sexual history.

14. Nor was there any challenge to the finding that the applicant did not obtain informed consent before performing a vaginal examination in [66(a)] and [66(c)].

15. Nor was there a challenge to the finding that the applicant’s records relating to the consultation by Patient A on 5 September fell significantly below the relevant standard and thus the Commission had established unsatisfactory professional conduct: at [67]-[70].

16. Rather, attention was focussed upon an aspect of the finding in relation to particular two of the first complaint, concerning the appropriateness of the vaginal examination. The relevant aspect of the reasoning of the Tribunal was within [66(c)]:

Secondly, putting the issue of informed consent to one side, we remain concerned about Dr Balasingham’s decision to perform a vaginal examination.

In effect, Dr Newberry said that once a practitioner suspects an ectopic pregnancy, then it must be investigated immediately because the condition can be life threatening. For this reason she supported Dr Balasingham’s decision to undertake the vaginal examination.

In our view the issue is more complicated. The evidence was to the effect that a negative urine test almost always excludes an ectopic pregnancy and, in this case, there had been two such tests. In addition, Patient A did not have any tenderness when Dr Balasingham examined her through her clothes. Next, the evidence was to the effect that a vaginal examination does not exclude an ectopic pregnancy, but only that tenderness while the examination is being performed would be suggestive of an ectopic pregnancy. Next, Dr Balasingham did not give any evidence of experience or training in undertaking a vaginal examination for the diagnosis of an ectopic pregnancy or even in the assessments of other women’s health issues. Lastly, the experts and Dr Balasingham agree that the appropriate examination to identify an ectopic pregnancy is an ultrasound. While Dr Balasingham did not have access to an immediate ultrasound, his practice is in Sydney, and he could have asked Patient A to attend at the emergency department of a local hospital.

We accept the opinion of Dr Jalota that undertaking the vaginal examination in these circumstances was significantly below the standard and thus unsatisfactory professional conduct.

17. It was said in support of the grant of leave that the Tribunal’s reasoning materially misstated the evidence of Dr Jalota (the expert called by the Commission) following the conclusion of cross-examination.

18. The evidence may be summarised as follows. Dr Jalota maintained that if an ectopic pregnancy was suspected, then a vaginal examination could neither confirm nor exclude the possibility, which could have extremely serious health consequences, and thus the appropriate course was to conduct an ultrasound. There was no such facility in the applicant’s practice and so Patient A should have been sent to the emergency department of a hospital.

19. The passage of cross-examination upon which the applicant focussed was in substance a concession that although a vaginal examination could neither rule in nor rule out an ectopic pregnancy, it might shed light on that possibility which in turn might inform whether the patient should immediately attend at a hospital emergency department, or whether it might nonetheless be safe to delay for a short period. The cross-examiner drew attention to the fact that the consultation was after 5pm on a Saturday and that the emergency department might well be busy on a Saturday night, and elicited the following concession:

MR SMARK: Obviously, if the patient’s health is at risk, that doesn’t matter. So what I suggest to you is that when you reflect upon these matters, you would not regard the decision to have a vaginal examination to shed light on whether the patient needed to go urgently to hospital as falling significantly below the appropriate standard. Do you agree with that?

DR JALOTA: Okay. Yes.

20. On a fair reading of the cross-examination as whole, it seems probable that, in accordance with the submission made by Mr Chatterjee, who appeared both in the Tribunal and in this Court for the Commission, Dr Jalota was conceding that there might be clinical utility in conducting a vaginal examination, but only in circumstances where a medical practitioner also referred the patient to the emergency department or some other place where an ultrasound could be conducted. There was no suggestion that the applicant took that course. It follows that there was no material error in the reasoning of the Tribunal.

21. Against this, Mr Smark pointed to the tenor of the cross-examination, and the indications that Dr Jalota regarded his answer to amount to a departure from the opinions expressed in his reports. Perhaps most importantly, there is the fact that the Tribunal’s reasons do not explain or otherwise address this aspect of Dr Jalota’s evidence.

22. Accordingly, we are prepared to proceed, favourably to the applicant, on the basis that the point may be arguable. But the problem faced by the applicant who seeks a grant of leave is that more is required. And it is quite clear that success on this point does not undermine the findings of unsatisfactory professional conduct made in relation to other particulars within the Commission’s first complaint.

23. The Tribunal also found that the second complaint was established. It was a very serious allegation, and was treated as such by the Tribunal. And in very large measure, this was a question of fact, which turned principally on the conflicting testimonial evidence of a patient who had made immediately detailed complaints and who was cross-examined before the Tribunal, and the applicant. It may be noted that senior counsel for the applicant acknowledged, once again entirely properly and appropriately, that the findings made by the Tribunal were at the very least findings which were likely to have been influenced by demeanour.

24. In light of the submissions advanced in support of the grant of leave, it is appropriate to reproduce the entirety of paragraphs [94]-[97], despite their length, where the Tribunal addressed that issue. In what follows, 12 words in [94(4)] have been emphasised:

94. In deciding whether this Complaint has been proven to the Briginshaw standard we have accepted the following matters as submitted by counsel for the HCCC:

(1) We have already found that we prefer the evidence of Patient A to Dr Balasingham where their evidence conflicts.

(2) The implausibility of the alternate explanation – that it was incidental contact, given that Patient A says it lasted 5 to 6 seconds.

(3) Other evidence which suggests a sexual motive – our finding that Dr Balasingham had asked inappropriate questions during the sexual history taking, the lack of a chaperone, Patient A’s evidence as to Dr Balasingham being slow to pull the curtain closed while she undressed and the lack of a privacy sheet for Patient A to place over her body during the vaginal examination (being the uncontested evidence of Patient A).

(4) Other evidence that Dr Balasingham was not driven by a concern over an ectopic pregnancy but by ulterior motives – he did not ask questions which would have been useful in identifying whether an ectopic pregnancy was a risk, being questions about prior pelvic infections, sexually transmitted infections and the use of condoms and contraception, the general lack of an objective clinical need for the vaginal examination and Dr Balasingham’s failure to notice that Patient A had not turned up for her blood test the next day in circumstances where he said he was concerned about the risks which could flow from an undiagnosed ectopic pregnancy.

95. Counsel for Dr Balasingham submitted that the following issues, cumulatively, meant that we should not be comfortably satisfied that the conduct had taken place:

(1) The seriousness of the finding.

As we have said, we proceed on the basis that the Briginshaw standard applies and a Court (or Tribunal) should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of criminal conduct (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2]).

(2) Dr Balasingham had been working since about 9am, having already seen about 40 patients with more still to see. He saw Patient A at 5 pm. It seems surprising that a doctor would engage in such conduct spontaneously. Why would a woman coming to a new (and fairly elderly) doctor be thought by a doctor to be open to an “advance” consisting of a short and entirely unencouraged touching of her genitalia?

We do not place any weight on this submission. Firstly, as we have already discussed, Dr Balasingham said at the first s 150 hearing that he wasn’t busy at that time. Secondly, we do not think it is necessarily surprising for a person in the position of Dr Balasingham to take advantage of a young female patient – it is well known that there is a power imbalance in the doctor – patient relationship and that, on occasions, doctors exploit their position to take advantage of a patient.

(3) Person 1 was in the waiting room and Dr Balasingham’s wife was on reception. It would be readily foreseeable that such conduct might provoke immediate outcry from Patient A (i.e. while lying there), or just about immediate complaint to Person 1, or the wife/receptionist or both, on leaving the room within a minute or two. This meant the level of risk-taking involved was breath-taking, both professionally and personally.

We have considered this submission but whether someone is deterred from an opportunistic course of conduct because of the risk of discovery obviously varies from person to person.

(4) Patient A did not see the contact and to the extent that it involved a sensation of Dr Balasingham moving his fingers, that was a fleeting perception that might have been mistaken especially in circumstances where she was already anxious because of the sexual history taking and the differences between the vaginal examination and previous vaginal examinations she had experienced.

We have considered this submission but do not place much weight on it. We think it is unlikely that Patient A would confuse a 5 to 6 second rubbing on the outside of her vagina with an internal examination.

(5) Patient A did not hear Dr Balasingham say anything (or even change his tone) in a way that indicated that he was seeking to stimulate her, or otherwise engage with her sexually. His submission went on to say that to the contrary, Patient A said in her initial complaint that:

he took his right hand out of my vagina and started rubbing it around my vagina and clitoris … Throughout this he kept asking if I had pain anywhere. I kept telling him that I didn’t

Counsel for Dr Balasingham submitted that if Dr Balasingham was seeking to make a sexual advance to Patient A, one would have expected him to make some consistent comment during the conduct. The fact that he did not, and that he was still asking her if she was feeling pain, and she was still responding that she did not, was much more consistent with the fact that any contact she felt with her external genitalia occurred while the doctor was still palpating her vagina internally with his fingers, or while withdrawing them, and not afterwards.

We do not place any weight on this submission. We think this evidence is equivocal because Dr Balasingham’s conduct would be equally consistent with an attempt to mask his actual intent.

(6) Dr Balasingham had a plausible basis to conduct a vaginal examination. Accordingly, to make a finding against Dr Balasingham would mean that he had engaged in a vaginal examination out of a concern about ectopic pregnancy, and, independently, was actuated to make a sexual advance or obtain sexual gratification.

We do not accept this submission. We have already made a finding as to the general lack of an objective clinical need for the vaginal examination.

(7) Patient A said she became uncomfortable while she was being asked questions by Dr Balasingham which she felt were intrusive and she was also uncomfortable during the conduct of the vaginal examination. While not suggesting that this would affect her memory of the events which are the subject of Complaint Two, counsel for Dr Balasingham submitted that we should find that this ongoing discomfort would predispose Patient A to interpreting Dr Balasingham’s conduct sexually.

We decline to find that that Patient A was sufficiently uncomfortable so that she was incapable of identifying where on her body she was being touched.

96. We are comfortably satisfied that the conduct in Complaint 2 occurred.

97. Such conduct is both improper and unethical and is, accordingly, unsatisfactory professional conduct.

(Emphasis added.)

25. No challenge was made to the very large majority of the Tribunal’s reasoning. Instead, the point was made that what was said to have been the finding of fact concerning the objective clinical need for the vaginal examination was, explicitly, relied upon in the reasoning process by which the Tribunal found itself comfortably satisfied that the second complaint was established. Thus attention was focussed upon one clause within [94(4)], which has been emphasised above.

26. It is true that one component of the Tribunal’s ultimate conclusion that the second complaint was made out relied on the “general lack of an objective clinical need for the vaginal examination” (the words emphasised in the passage above), and thus it cannot be said that the case outlined above, based on the concession elicited from Dr Jalota, is one which is wholly independent of the reasons leading to the establishment of the second complaint.

27. But the reality of the position is that it has not been shown that that error alone, assuming favourably to the applicant that there was an error in relation to the evidence of Dr Jalota, undermines the finding that this complaint was made out. First and foremost, this was a matter which turned primarily on the evidence of Patient A and the applicant. Moreover, as will be seen from [94] and [95], there was a great deal of other considerations which contributed to the Tribunal’s conclusion, none of which is suggested to be erroneous.

28. Even if an error were established in relation to that aspect of the findings of fact, that would not be sufficient to warrant intervention by this Court. In order to obtain an order allowing the appeal, setting aside the decision of the Tribunal and ordering a rehearing before the Tribunal, it would remain necessary to establish that “some substantial wrong or miscarriage has been thereby occasioned”: Uniform Civil Procedure Rules 2005 (NSW), r 51.53. This Court does not intervene to correct immaterial error. Thus the essential difficulty for the applicant is that, taking his case at its highest, he has established an arguable case of error in respect of a relatively minor error in one aspect of reasoning. That falls well short of establishing a case for some substantial wrong or miscarriage.

Conclusion and orders

29. For those reasons, this is not an appropriate case for the grant of leave. The orders of the Court will be: Summons seeking leave to appeal filed 28 February 2024 dismissed with costs.

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Amendments

09 May 2024 - "Bhalla ADCJ" corrected to "Balla ADCJ" on coversheet

Decision last updated: 09 May 2024