HCCC v King
[2011] NSWMT 5
•05 May 2011
Medical Tribunal
New South Wales
Medium Neutral Citation: Health Care Complaints Commission v Dr Victor King [2011] NSWMT 5 Hearing dates: 14.3.11-15.3.11, 17.3.11-18.3.11, 30.3.11 Decision date: 05 May 2011 Before: Murrell SC DCJ, Dr E. Kertesz, Dr G. Yeo, Dr C. Berglund, PHD Decision: (1)The Tribunal directs that the practitioner be deregistered on the ground that he is guilty of professional misconduct.
(2)The Tribunal orders that an application for review may not be made for a period of 18 months.
(3)The HCCC is to pay the practitioner's costs of 16 March 2011. Otherwise, the practitioner is to pay the HCCC's costs in relation to those aspects of the complaint that concern patients B, C and D.
(4)On Dr Victor King ' s undertaking not to practice medicine, the Tribunal ' s orders are to take effect on 2 June 2011.
Catchwords: Professional misconduct
Unsatisfactory professional conduct
Abuse of trust
Vulnerable patient
Poor communication
Inadequate record-keeping
Sexually inappropriate behaviour
Digital penetration
DeregistrationLegislation Cited: Medical Practice Act 1992
Medical Practice Regulation 2008Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 316 Category: Principal judgment Parties: Health Care Complaints Commission Representation: Ms K. Eastman
Mr M. Ainsworth
Ms T. Davy
Holman Webb Lawyers
File Number(s): 40017/10 Publication restriction: Pursuant to Schedule 2, Clause 6, Medical Practice Act 1992, direct that the names of the patients and the partner of patient D, are not to be published.
Judgment
The respondent is a registered medical practitioner. In the course of his general practice at the Chinatown Medical Centre, in 2007- 2008 he treated patients B, C and D. The Health Care Complaints Commission (HCCC) alleges that he engaged in inappropriate intimate conduct (in relation to patients B, C and D), inappropriate management and treatment of a wrist condition (patient C) and inadequate record -keeping (patients B and C) and that the conduct is unsatisfactory professional conduct and/or professional misconduct.
The evidence of the patients is critical to a determination of the complaint. Each patient presented as a credible and reliable witness. The practitioner strenuously denied most of the allegations. As the allegations and the potential consequences for the practitioner very serious, the Tribunal must carefully consider all the evidence, including the practitioner's evidence, when deciding whether it is comfortably satisfied of the truth of the critical allegations made by the patients to the standard articulated in Briginshaw v Briginshaw (1938) 60 CLR 316.
The Practitioner's Credit
The Tribunal concludes that the practitioner was an unreliable witness who gave the evidence that he thought would best assist his case. An obvious example was his evidence about patient C's wrist injury. The patient gave unchallenged evidence that she had injured her right wrist. In the patient consultation notes for 24 and 28 April 2008, the practitioner referred to a left wrist injury (Exhibit A, tab 19) . Prior to the hearing, the practitioner stated that the reference to a left wrist injury was a mistake: the two April entries should have referred to a right wrist injury . However, in evidence he asserted that there had been, or may have been, an injury to the left wrist as well as the right wrist. The Tribunal considers that this evidence was a belated attempt to minimise the deficiencies in the practitioner's record - keeping .
Another example of the practitioner's tendency to "recall" events about which he had no real memory involved patient B. The Tribunal accepts the patient's evidence that, on 5 October 2007, the practitioner undertook a digital examination before utilising a spec ulum to take a p ap smear. It would have been reasonable to perform such an examination for the purpose of locating the cervix. The practitioner denied that he had done so, presumably in an attempt to minimise the extent to which he had undertaken intimate examinations of patients.
A further example is that, when provid ing a response under section 40 , the practitioner denied that he had told patient D to be aware of her boyfriend's oral hygiene especially when having sex after eating, but after Dr Walsh, (an experienced general practitioner who was called to give peer review evidence on behalf of the practitioner) located an article providing some support for the alleged advice, the practitioner gave evidence that he had provided the advice (T226).
The Tribunal was unimpressed by the practitioner's thinly disguised attempts to taint the character of the patients. At one stage, the practitioner had suggested that patient B's occupation could have exposed her to an "extra risk". He suggested that patient C was a malingerer and that, on 12 May 2008, she had become upset when he declined her unreasonable request for a medical certificate supporting significant sick leave. Yet on that day he noted "tender locally ++" and failed to note any improvement in her condition. The practitioner suggested that patient D had difficulty with the English language and had misconstrued his advice. Patient D was of Chinese ethnic origin, but she was born in Australia and she presented as an intelligent and articulate undergraduate student who would not have misunderstood any reasonable attempt to communicate in the English language.
Patient B
In September 2007, patient B consulted the practitioner with pain on her right side. She was concerned that she may have cancer. A pelvic ultrasound was undertaken. The patient was interested in receiving the cervical cancer vaccine. On 5 October 2007, the practitioner took a p ap smear. The result was CIN 1. On 7 November 2007, the practitioner took a second p ap smear.
The patient alleged that, prior to inserting the speculum to take a p ap smear on 5 October (the patient mistook the date for September) and 7 November, the practitioner asked her to hold the speculum, inserted a finger or fingers of his right hand into her vagina, moved his finger/fingers in and out and around the vagina for several minutes, touched her clitoris with a finger of the left hand and asked personal questions (about her boyfriends and her prior sexual experience) while he was undertaking these activities. He then utilised the speculum to take a p ap smear. The patient said that, as a result of the practitioner's conduct on 5 October, she believed that he "might want to do sex". By 7 November 2007, she was sure that he "wanted to do sex with me".
Prior to 5 October 2007, the patient had never undertaken a p ap smear and did not appreciate what was involved in a normal pap smear procedure. The patient had no reference point from which to judge the propriety of the intimate examinations that the practitioner undertook on 5 October and 7 November 2007.
The patient stated that the practitioner showed her a picture of a vagina but did not clearly explain the procedure itself. She understood him to say that the cervical cancer vaccine could be administered only after she obtained a clear p ap smear result because the vaccine would only provide protection from cancer if there was no pre-existing abnormality. As the result of the first pap smear was abnormal (CIN1), she understood that she had to undertake a further pap smear. Although the pathology report recommended a repeat pap smear in six months, the patient understood the doctor to advise that a second pap smear could be undertaken within one or two weeks of her period.
The patient was adamant that she was not offered a chaperone for either p ap smear.
The patient returned to see the practitioner for an unrelated problem on 11 January 2008. The patient wanted to obtain a medical certificate and the practitioner's surgery was conveniently located. According to the practitioner's notes, the patient declined an abdominal examination. The patient said that she made an excuse for declining the examination, saying that she had her period and was awaiting the results of a p ap smear undertaken in Thailand.
On 19 August 2008, the patient made a statement to the HCCC. In this statement, she did not mention that the practitioner had touched her clitoris. There was a passing reference to clitoral touching in the patient's third statement, which was made on 15 October 2008. The substantial allegation of clitoral stimulation was first provided in a statement made on 14 December 2010. In evidence, the patient stated that clitoral stimulation was a detail that she had overlooked when making the original statement.
The practitioner stated that, on 5 October, he recommended a p ap smear and explained the procedure. He allowed the patient to hold the speculum while it was in a plastic bag because the patient was curious and wanted to hold it. She may have grabbed the plastic bag holding the speculum (T.252 - 253). He did not insert his fingers. When the CIN 1 pathology result was received, the practitioner advised the patient to have a repeat smear in six months. On 7 November 2007, the patient demanded a repeat smear. He acceded to her request, partly in order to allay her anxiety. When taking the p ap smear, he had difficulty locating the cervical opening and had to use his fingers to reposition the uterus so that he could correctly position the speculum. On neither occasion did he touch the patient's clitoris.
Findings in relation to patient B
The practitioner submitted that the Tribunal should be wary of the evidence of patient B because she was friendly with patient C and may have been influenced by her. After patient C revealed her concerns to patient B about the practitioner's impropriety , the friends had discussed their mutual concerns. It was submitted that the discussion could have contaminated the evidence of either or both patients.
The Tribunal rejects this submission. Although the patients discussed their concern that the practitioner's conduct was inappropriately sexual, the detail of their complaints was significantly different. Patient C's evidence was not contaminated by the discussion. She made consistent contemporaneous complaints to persons other than patient B. Patient C gave very credible evidence that she consulted patient B because she considered patient B to be an older, responsible person. Prior to consulting patient B, patient C did not know that patient B was dissatisfied with the practitioner.
The Tribunal found patient B to be an honest and straightforward witness. Generally, she was able to give evidence without the assistance of an interpreter, but her English was not fluent. The Tribunal infers that, at the time of the events in question, the patient was less proficient in the English language. The Tribunal does not doubt that the patient was attempting to tell the truth. The Tribunal is inclined to accept her evidence in all respects. However, the Tribunal is mindful that the allegations made by the patient are very serious. Consequently, where important allegations are missing from the patient's 2008 statement to the HCCC, the Tribunal has some concern about the reliability of the patient's memory and is not comfortably satisfied of the matters asserted.
The Tribunal is comfortably satisfied that, on 5 October and 7 November 2007, the practitioner did insert a finger or fingers into the patient's vagina. It is possible that, on 5 October, he did so for the legitimate reason of locating the cervix. On 7 November 2007 it is possible that he did so for the legitimate reason of rearranging the uterus and repositioning the speculum. However, on 7 November, there could have been no legitimate reason for the practitioner to move his finger "in and out" of the patient's vagina. The movement of a finger or fingers in this fashion over a significant period is a matter about which the patient could not have been mistaken. The patient said that the activity continued for about three minutes. Impressions about the time occupied by a traumatic incident can be incorrect. However, the Tribunal is satisfied that the conduct continued for a significant period.
The Tribunal is satisfied that, while intimately examining the patient on both occasions, the practitioner asked questions about her sexual history. Prior to undertaking the firs t p ap smear, it was appropriate to question the patient about her sexual history because, in the absence of prior sexual ac tivity, there is no point to a p ap smear. However, questions about the patient's sexual history should have preceded the examination. Further, on 7 November there was no reason to question the patient about sexual activity. There is no doubt that, on 7 November 2007, the practitioner did ask the patient about her sexual activity: the patient notes for that date state "no new boyfriend since last smear".
It was improper to ask about the patient's sexual history while the intimate examination was occurring. At the time that the patient was being examined, she was in a vulnerable situation and questions about sexual history would have been particularly embarrassing. The manner in which the practitioner framed the questions (how many boyfriends the patient had had and with how many she had had sex) was unnecessarily personal and confronting. At the least, it demonstrated very poor communication skills.
Dr Jammal (an experienced general practitioner who was called to give peer review evidence on behalf of the HCCC) said that it was medically incorrect to repeat a p ap smear after five weeks. The pathology result would not be reliable and may be worse than the original result, serving to increase patient anxiety. A repeat test should be conducted at six months. A repeat test within three months could not be justified. To repeat the procedure at five weeks was a significant departure from standards. Having spoken to Dr Walsh, Dr Jammal reduced his level of criticism from "strong criticism" to "criticism".
The Tribunal is satisfied that the taking of a repeat p ap smear only five weeks after the first p ap smear was a significant departure from standards. There was no clinical reason for doing so. If the patien t was anxious to have a second p ap smear, it was only because she believed that the practitioner's advice was to undertake a repeat smear within 7 to 14 days of her period. Taking the most favourable view of the practitioner's "advice", there was a gross failure of communication. Although the Tribunal is prepared to give the practitioner the benefit of the doubt on this matter, we note that the patient record for 7 November states " needs repeat smear, last has CIN 1" and there is no reference to a patient demand, implying that it was the practitioner rather than the patient who proposed the repeat smear.
The practitioner agreed that the patient could have held the speculum while it was in a plastic packet. The Tribunal does not accept that the patient asked to do so, let alone grabbed the speculum packet from the practitioner. There was no reason for the patient to request or grab the speculum and the Tribunal does not accept that the patient may have had a morbid fascination with this item. Further, the patient wo uld have been lying on her back, in a position that was physically very difficult for her to grab the speculum. Although the conduct of giving the speculum to the patient was unusual, the Tribunal does not consider that it was improper.
The patient notes for both 5 October and 7 November assert that the patient was offered a chaperone but declined the offer. In these circumstances, the Tribunal cannot dismiss the possibility that an offer was made but was so poorly communicated that the patient did not appreciate the nature of the offer.
Schedule 1 of the Medical Practice Regulation 2008 requires that medical records include information relevant to diagnosis or treatment, particulars of clinical opinion and any plan of treatment, notes of advice given in relation to treatment proposed, and a level of detail appropriate to the patient's case and sufficient information to allow another registered medical practitioner to continue management of the patient's case (Exhibit A, tab 43).
In the opinion of Dr Jammal, the patient records were too brief. Dr Walsh also reported that the notes were brief but appropriate. The medical members of the Tribunal disagree. They consider that the patient records are quite inadequate. For example, they do not contain a proper history, there is no note as to the position and appearance of the cervix and there is no reference to a treatment plan. Based on the notes, another practitioner could not have assumed continuing treatment of the patient.
The Tribunal is comfortably satisfied that the following particulars of complaint are made out:
2.1 On 5 October 2007 the practitioner failed to provide adequate clinical advice and explanation to patient B in relation to his assessment, examination and treatment of the patient.
2.2.4 On 5 October 2007 during the course of performing the p ap smear the practitioner asked personal and intimate questions of patient B. The Tribunal notes that, although the general subject matter of the questions was appropriate, the questions sought inappropriate detail and were asked at an inappropriate time.
3.1 On 7 November 2007, the practitioner performed a further p ap smear contrary to recognized clinical standards.
3.2 The practitioner failed to provide adequate clinical advice and/or explanation in relation to his assessment, examination and treatment on 7 November 2007.
5.1The practitioner failed to keep appropriate records in relation to consultations.
5.2 The records do not satisfy the requirements of the Medical Practice Regulation 2003 and/or the Medical Practice Regulation 2008 .
Patient C
On 26 March 2008, the patient injured her right wrist at work. Between 17 April 2008 and 12 May 2008, she consulted the practitioner in relation to her right wrist.
The patient gave evidence that, on 17 April 2008, she asked the practitioner about the cervical cancer vaccination (T45 .17-22 ) The practitioner enquired whether the patient was sexually active and suggested that he check her vaginal area (T48.10-49) . The practitioner left the patient with the firm understanding that a pap was a pre-requisite to administration of the vaccine. The patient replied that she was not sexually active and did not want a check. On one or two subsequent occasions, the practitioner enquired as to whether the patient wanted a vaginal check. On one such occasion, the practitioner offered to undertake the check "for free" (Exhibit A, tab 6, par 13) .
In the context that the patient had expressed an interest in the cervical cancer vaccine, it was appropriate for the practitioner to enquire whether she was sexually active (T153.11-16) . Dr Jammal gave evidence that it is desirable that sexually active patients have a p ap smear prior to administration of the cervical cancer vaccine in order to identify any pre-existing abnormality. However, if a p ap smear discloses a pre-existing abnormality, this does not render the vaccine useless ( T 148.5-6) . Although the vaccine is most effective with patients who have not been sexually active, where the patient has been sexually active and has been exposed to a human pappiloma virus, the vaccine will protect her against a number of other strains of the same viruses.
The practitioner's consultation notes for 17 April record a patient history of sexual activity ( Exhibit A, tab 18, p 82; Exhibit 1 , tab 1, par 65 ) . The Tribunal is satisfied that the patient did not give a history of sexual activity. At best, the practitioner's note of sexual activity is a reflection of poor communication and/or poor note - taking. T he inaccurate record of sexual activity opened the do or to embarrassing offers of a p ap smear, which were completely unnecessary in the absence of sexual activity.
At most attendances, the practitioner softly stroked the patient's right hand and wrist in an intimate fashion, rather than palpating specific areas of the wrist for diagnostic purposes . While gently stroking the patient's arm, the practitioner asked the patient questions about her sex life (whether she had a boyfriend, the nationality of her boyfriend and whether she was having sex with her boyfriend). In the course of her evidence, the patient demonstrated the nature of the stroking motion (T 60. 36- 61 . 11) . When he gave evidence, the practitioner demonstrated appropriate palpation at specific points on the inside and outside of the wrist. It is not possible that the patient mistook palpation for stroking.
The doctor's conduct caused the patient to feel uncomfortable. Consequently, on one occasion, she asked her boyfriend to accompany her and remain in the waiting room. At this attendance, the practitioner neither stroked the patient's arm nor enquired about her sex life (Exhibit A , tab 6, par 15-17) .
Findings in relation to Patient C
Patient C had a reasonably good command of English.
The practitioner suggested that dissatisfaction could have caused the patient to make a false complaint. The practitioner asserted that the patient had been dissatisfied about his requirement that she pay for work injury consultations at a rate that exceeded the Medicare rate. Further, in a consultation on 12 May 2008, the patient had become upset ("stormed away unhappy") because the practitioner had refused to provide a medical certificate for an extended period off work (Exh i b i t 1 , t a b 1 , p a r 7 8 ) .
The practitioner sought to attack the patient's credit, relying on her evidence that she was "100% sure" that she had not discussed money with the practitioner and had not paid him any money. The practitioner produced a receipt book (Exhibit 2) that indicated that the patient did pay the practitioner in cash up to the point when she received a Workers Compensation claim number.
Unfortunately, the receipt book was produced at a late stage. Patient C was not shown that the receipt book and she had no opportunity to explain whether she had ever received receipts for cash payments made by her. Consequently, the Tribunal places little weight on the receipt book.
The Tribunal found the patient to be a forthright and consistent witness who was prepared to make concessions in favour of the practitioner. Her credibility was reinforced by consistent contemporaneous complaints that she made to her workers compensation manager (Exhibit A, tab 7: that the practitioner had stroked her arm, repeatedly enquired about her sex life, repeatedly enquired whether she wanted a p ap smear and arranged very frequent consultations), a work mate (Exhibit A, tab 7: that the practitioner had stroked her arm, repeatedly asked about her sex life and proposed a vaginal examination) and patient B (Exhibit A, tab 2, par 27: that the practitioner stroked the patient's arm, offered to do a p ap test and questioned her about her boyfriend). The Tribunal accepts the patient's version of events.
Dr Jammal gave evidence that wrist injuries are difficult to diagnose and treat (T 159 .14 -16 ) . Nevertheless, in his opinion, the practitioner did not make an adequate effort to ascertain the reason for the patient's ongoing wrist pain. Although the patient kept presenting with the same symptoms, the practitioner neither came to a definite diagnosis nor referred the patient to a specialist. Dr Jammal said that there was a "significant departure" from the standard expected of a practitioner of similar experience, but the departure was not such as to attract his strong criticism.
In the opinion of the Tribunal, Dr Jammal took a generous view of the practitioner's deficiencies in relation to treatment of the patient's right wrist. Despite frequent attendances on the practitioner, the patient does not appear to have been adequately monitored for her symptoms and work capacity. The Tribunal remains uninformed about the practitioner's diagnosis or management plan. The practitioner gave no explanation for his stated preference of closing the patient's file on 12 May, despite the fact that the patient notes for that day record "tender locally ++".
Dr Walsh considered that the practitioner's record - keeping was adequate. In Dr Jammal's opinion, the practitioner's note - taking was very poor. The Tribunal agrees with Dr Jammal. On two occasions (24 April and 28 April) the patient notes mistakenly record that the injury was an injury to the left wrist rather than the right wrist. The practitioner failed to record the history or cause of the injury. There is no record of a management plan (if indeed one was formulated). There is no explanation of the reasons for determining the periods of unfitness recorded in the medical certificates. There is no record of whether or not the injury was improving.
The Tribunal is comfortably satisfied that the following particulars of complaints are made out:
6.1 The practitioner failed to adequately assess or instigate an appropriate management plan or treatment in relation to the patient's wrist complaint.
6.2 The practitioner asked personal and intimate questions of the patient unrelated to her examination or treatment and rubbed her hand and arm in a personal matter on several occasions. The Tribunal notes that it was appropriate to enquire about the patient's sexual activity when the topic of cervical cancer vaccine was raised on 17 April.
6.3 The practitioner failed to provide adequate clinical advice and explanation to the patient. In particular, the patient was misled in relation to the efficacy of the cervical cancer vaccine and prerequisites to its administration.
6.4, and 6.5 The practitioner proposed an intimate examination on 17 April 2008 and 28 April 2008. The Tribunal notes that, on 17 April 2008, the practitioner made the proposal because he had had taken an incorrect history of sexual activity.
6.6 The practitioner failed to keep appropriate records contrary to Schedule 2 of the Medical Practice Regulation 2003.
Patient D
Patient D consulted the practitioner on four occasions between 11 March 2008 and 8 April 2008. During her second visit on 26 March 2008, the patient complained of genital itchiness. The patient gave evidence that the practitioner said that her symptoms could have been caused by her boyfriend touching her genitals with his fingers. The practitioner stated that such conduct was unhygienic and asserted that her boyfriend should wear gloves. In addition, he advised the patient that oral sex was unhygienic, particularly after eating because food carried bacteria that could be transferred to the genitals. The practitioner showed the patient pictures of diseased male and female genitals. The patient was distressed by these images.
The patient said that the practitioner applied lubricant to the inside of her vagina using his gloved fingers. He then examined her vagina. The patient felt the practitioner's fingers "moving around in (her) vagina, they were moving out and in and around continuously for the whole time they were in there" (Exhibit A, tab 9), which the patient estimated to be about 30 seconds. The practitioner then removed his fingers and inserted a speculum. He took pathology samples and prescribed Ceclor, a broad - spectrum antibiotic for possible bacterial vaginosis and Canesten, an anti-fungal cream, for thrush (a fungal infection).
The practitioner said that he applied lubricant to the patient's labia majora but did not place his fingers inside her vagina. The Tribunal does not accept this assertion. The patient is a reliable witness who could not have been mistaken about the practitioner moving his fingers in and out of her vagina for a significant period (whether or not the period was as long as 30 seconds).
The patient gave evidence that, when she returned for the pathology results, the practitioner told her that there was a heavy growth of candida (thrush). He advised the patient that: "the best way to clear it up is to sweep it out". Simultaneously, he made a sweeping motion with the middle fingers of his hand.
The practitioner's conduct on 26 March 2008 and his suggestion about "sweeping it out" made the patient very uncomfortable.
Findings in relation to Patient D
Patient D was born in Australia. She impressed as intelligent and articulate. She made appropriate concessions. Her credibility is supported by the contemporaneous complaint made to her boyfriend and the associated distress. The patient told her boyfriend that the practitioner had suggested manual extraction (Exhibit A, tab 12). She told him that, according to the practitioner, thrush could be contracted through oral or digital sex. When describing the practitioner's conduct to her boyfriend, the patient became upset. Similarly, when describing the practitioner's conduct to the HCCC in April and May 2009, the patient became "emotional" (Exhibit A, tab 17). The Tribunal finds that patient D's evidence was honest and accurate.
The practitioner's conduct of moving his fingers in and out of the patient's vagina was reprehensible.
The medical members of the Tribunal doubt the proposition that the bacteria in food can be transferred during oral sex, creating an increased risk of vaginosis. However, Dr Walsh managed to locate some medical evidence to support the proposition (Exhibit 1).
The practitioner denied that he told the patient that her boyfriend should use gloves when engaging in digital sex. He stated that he could have made general comments about appropriate hygiene prior to foreplay and sexual intercourse. In evidence, he said that he could have advised that the patient's boyfriend should use a condom on his fingers and may have referred to a vaginal dam in the context of oral sex, pointing to surgical gloves by way of illustrating the material of which a vaginal dam was composed. In this regard, the practitioner's evidence was confused and unconvincing. The Tribunal accepts the patient's evidence that the practitioner told her that her boyfriend should use gloves. There is no medical basis for such advice.
In the Tribunal's opinion, the fungal infection known as thrush can be explained readily without the use of pictures. It is difficult to appreciate how images would assist a patient to understand the condition and its treatment. It is easy to see that a patient may find images to be distressing. The Tribunal accepts the patient's evidence that the practitioner (presumably through inadvertence) also displayed images of diseased male sexual organs. The practitioner's conduct in showing the patient images of diseased male and female genitals was, at best, thoughtless and irresponsible.
The practitioner suggested that the patient could have mistaken his advice about how to use Canesten for advice that thrush should be manually extracted. The Tribunal considers it most unlikely that the patient was mistaken. First, the patient is intelligent and sensible. Second, Canesten pessary would not be applied with a sweeping motion. Third, Canesten was prescribed on 26 March and the contentious statement was made on a later date. Either the practitioner deliberately made a bizarre suggestion to the patient or his level of miscommunication was such that he not only failed to communicate the desired message but also frightened her.
The peer reviewers agreed that the practitioner should not have prescribed Ceclor for the treatment of possible bacterial vaginosis. The prescription of Ceclor was a significant departure from appropriate practice. Far from curing any such condition, Ceclor would have tended to aggravate the condition.
The Tribunal is comfortably satisfied of the following particulars of complaint:
7.1 On 26 and 28 March 2008, the practitioner failed to provide adequate clinical advice and explanation to the patient.
7.2 On 26 March 2008, the practitioner unnecessarily showed photographs of deceased male and female genitals to the patient, gave inappropriate advice about digital sex, caused his gloved finger to move in and out of the patient's vagina for a significant period, and inappropriately prescribed Ceclor, a broad spectrum antibiotic, for the treatment of thrush.
7.3 On 28 March 2008, the practitioner communicated to the patient that thrush should be manually removed. The Tribunal is unable to say whether this communication was deliberate or reflected abysmal communication skills.
Finding of Professional Misconduct
The established particulars of complaint show that, over a period of seven months from October 2007 to April 2008, the practitioner engaged in inappropriate sexual conduct towards three young female patients. The behaviour included inappropriate questioning about the patients' sexual behaviour, stroking the arm of patient C in an intimate way and offering to perform p ap smears. The most serious misconduct involved the practitioner moving his finger in and out of the vaginas of two patients. Apart from sexual impropriety, the practitioner demonstrated a low level of competence in relation to treatment of patient C's right wrist injury, and kept inadequate records in relation to patients B and C.
Each of the particulars of complaint that the Tribunal finds established, it constitutes unsatisfactory professional conduct either because it demonstrates conduct significantly below a reasonable standard (section 36(1)(a)) or, in the case of medical record keeping, it involves a contravention of the Act or regulations (section 36 (1) (b)).
In relation to patients B and D , each of the occasions of clinically unjustified digital penetration amounts to unsatisfactory professional conduct of a sufficiently serious nature to justify suspension: s 37 Medical Practice Act 1992 . Conduct of this nature is a grave departure from proper standards. It involves a serious abuse of trust and breach of practitioner/patient boundaries. In this case, the conduct involved a violation of patients who were particularly vulnerable because of their youth and inexperience.
When all aspects of unsatisfactory professional conduct are considered, they demonstrate professional misconduct that is both serious and multifaceted, extending from sexually inappropriate behaviour to significant shortcomings in the areas of communication and medical record - keeping.
Outcome
Professional misconduct may not warrant deregistration. However, in this case the professional misconduct involved numerous departures from proper standards, some of which were extremely serious.
The practitioner continues to deny the most serious departures (those involving sexual impropriety). He has demonstrated n e ither insight n or remorse, and has advanced no evidence that he has addressed the underlying problems.
As to odd behaviour such as asking patient B to hold the speculum and suggesting that patient D's boyfriend wear gloves for digital sex, the Tribunal is unclear whether the behaviour was motivated by a desire for sexual gratification or was the result of simple ignorance. However, the combination of odd behaviour, inappropriate sexual questioning and the two episodes of digital penetration causes considerable disquiet to the Tribunal.
The Tribunal cannot be satisfied that the practitioner poses no risk to the public. Consequently, in exercising its functions for the purpose of protecting the health and safety of the public, the Tribunal considers that the only available course is to direct that the practitioner be deregistered.
Costs
In submission, the Tribunal was advised that the initial complaint concerned four patients, but that on 2 March 2011 the HCCC abandoned those aspects of the complaint that related to patient A. It was submitted that the practitioner had incurred significant costs in defending "the largest of the four complaints". The Tribunal as constituted for the hearing has no information about the patient A proceedings. Consequently, the Tribunal is not in a position to determine any costs application in relation to patient A.
One day of the scheduled hearing was lost due to the unavailability of a HCCC witness whose return from overseas was delayed because of visa problems. She had not been subpoenaed by the HCCC.
In the Tribunal's view, the HCCC should pay the practitioner's costs in relation to the lost day. Otherwise, the practitioner should pay the costs of the HCCC.
Orders
(1) Th e Tribunal directs that the practitioner be deregistered on the ground that he is guilty of professional misconduct.
(2) The Tribunal orders that an application for review may not be made for a period of 18 months.
(3) The HCCC is to pay the practitioner's costs of 16 March 2011. Otherwise, the practitioner is to pay the HCCC's costs in relation to those aspects of the complaint that concern patients B, C and D.
(4) On Dr Victor King ' s undertaking not to practice medicine, the Tribunal ' s orders are to take effect on 2 June 2011.
Decision last updated: 14 June 2011
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