Liddell v Medical Board of Australia - [2012] WASAT 120

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010

CITATION: LIDDELL and MEDICAL BOARD OF AUSTRALIA [2012] WASAT 120

MEMBER: JUSTICE J A CHANEY (PRESIDENT)
DR H HANKEY (SENIOR SESSIONAL MEMBER)
MR M ANDERSON (SENIOR SESSIONAL MEMBER)

HEARD: 20 DECEMBER 2011 AND 1 MARCH 2012

DELIVERED : 18 JUNE 2012

FILE NO/S: VR 181 of 2011

BETWEEN: ROBERT WILLIAM LIDDELL
Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent

Catchwords:

Medical practitioner - Health Practitioner National Law - Immediate action - Imposition of condition on registration - Nature of review of decision - Whether serious risk to persons - Whether necessary to take immediate action to protect public health and safety

Legislation:

Health Practitioner Regulation National Law (WA) Act 2010 (WA), s 11 s 155, s 156, s 156(1)(a), s 157, s 158, s 158(1)(b), s 158(2), s 159, s 159(2), s 193, s 199, s 199(1)(e), Pt 8, Div 7
Medical Act 1983(UK), s 41A
Medical Practice Act 1992 (NSW), s 66
State Administrative Tribunal Act 2005 (WA), s 27(1), Pt 3, Div 3

Result:

Application for review allowed
Condition set aside

Category: B

Representation:

Counsel:

Applicant: Mr J Ley
Respondent: Ms B Mangan

Solicitors:

Applicant: Panetta McGrath Lawyers
Respondent: Moray and Agnew

Case(s) referred to in decision(s):

General Medical Council v Sheill [2006] EWHC 3025 (Admin)
I v Medical Board of Australia [2011] SAHPT 18
Lindsay v New South Wales Medical Board [2008] NSWSC 40
Pillai v Messiter (No 2) (1989) 16 NSWLR 197
SRNA v The Medical Board of Western Australia [2004] WASCA 198

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Dr Robert Liddell sought a review of a decision by the Medical Board of Australia to impose a condition on his registration requiring the presence of a chaperone when examining a female patient, except when practising in the emergency department of any hospital. The Board had imposed the condition following receipt of a complaint which, in effect, alleged that Dr Liddell had failed to adequately respect the modesty of a patient whilst conducting an employment medical examination. No allegation in the nature of sexual impropriety had been made.
The Tribunal examined whether the taking of immediate action by the Board was justified, having regard to whether Dr Liddell's conduct poses a serious risk to persons such that immediate action is necessary to protect public health or safety. The Tribunal heard the accounts of the examination from both Dr Liddell and from the patient. In some important respects, the Tribunal did not accept the patient's account of the examination. It concluded that Dr Liddell's conduct did not pose a serious risk to persons, and that the taking of immediate action was not necessary. Accordingly, the condition imposed by the Board was set aside.

The application

By letter dated 9 September 2011, the Western Australian Board of the Medical Board of Australia (the Board) as delegate of the Medical Board of Australia advised a medical practitioner, Dr Robert Liddell, that it had decided to take immediate action and impose a condition on his registration pursuant to s 156 of the Health Practitioner Regulation National Law (WA) Act 2010 (National Law). The condition which it imposed was that Dr Liddell 'must have an adult female chaperone in the consultation room at all times when performing an examination on a female patient, except when practising in the emergency department of any hospital'.
By application made on 6 October 2011, Dr Liddell applied to the Tribunal pursuant to s 199(1)(e) of the National Law for a review of the decision to impose the condition.
Section 156(1)(a) of the National Law provides:
A National Board may take immediate action in relation to a registered health practitioner or student registered by the Board if
(a)the National Board 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[.]
The Board's action was taken following receipt of a complaint as to the way in which Dr Liddell performed a medical employment examination on a female patient, whom I will refer to as Patient A. The complaint was not made directly by Patient A, but rather was by way of a notification to the Board by a doctor at the Sexual Assault Resource Centre based on a history provided to another doctor at the Centre by Patient A six days after the examination in question. It also had regard to an earlier complaint of a similar character which had resulted in a finding, by consent, that Dr Liddell had acted carelessly in relation to an employment medical examination.
On review, Dr Liddell argued that nothing in his conduct justified a finding that he posed a serious risk to persons, and that the imposition of the condition is not necessary to protect public health or safety. It is those issues which thus fall for consideration.

The Board's decision

In its notification of immediate action to the practitioner, the Board advised that it had decided to impose the condition on the basis of allegations, during the course of an occupational medical examination of Patient A on 12 August 2011 he:
(a)Removed the patient's bra [himself], the patient having undressed to her bra and underwear in full view.
(b)Lifted the patient's breasts to listen to her heart without warning.
(c)Tested the patient's leg strength, including her abduction, while she was lying on the examination couch bare breasted.
(d)Informed the patient of the need to check for hernias, then lifted up the front of her underwear and placed [his] hand on her mons pubis and labia majora and asked her to cough.
(e)Asked the patient to get up from the examination table, put on her bra and then, while in her bra and underwear, asked her to do situps, press ups and one legged jumps.
In its reasons for decision subsequently provided to the Tribunal, the Board recited the allegations, recited the practitioner's oral response which had been provided to the Board which, in summary, denied any professional misconduct, and then noted a number of factors which influenced its decision. Those factors were:
(a)The conduct giving rise to the charges laid against the Practitioner arose out of the practise [sic] of medicine.
(b)The alleged offence occurred recently.
(c)The Practitioner has previously been the subject of a similar complaint.
(d)The Practitioner appeared to have no insight into the issues that arose in the prior complaint and did not appear to understand common modesty.
(e)While they were not of the view that nurses were scarce in an emergency department of a hospital, they noted that it would not be appropriate for a chaperone requirement to compromise the Practitioner's emergency department work.
It then concluded 'on the evidence available, the State Board reasonably believes that the Practitioner's alleged professional misconduct poses a serious risk to his patients and it is necessary to take immediate action to protect public health or safety'. The Board's reasons do not elucidate the nature of the 'serious risk' which it considered to exist. When pressed on that question at the hearing, counsel for the Board described the risk as a 'nebulous thing' which she found 'very hard to articulate' but described the risk as being that 'the element of trust, which is the lynchpin of the relationship between the patient and practitioner has been taken away, and that is the source of the risk'.
To understand those submissions, it is important to appreciate that, at no time, has the Board alleged that the conduct complained of is in the nature of sexual misconduct or in any way involved sexual gratification. Rather, the Board's concern is that the practitioner performed the examination in a way which did not adequately respect the modesty of Patient A, and that he 'appeared to have no insight into the issues' that had arisen in relation to the earlier complaint.
As noted above, the earlier proceedings to which the Board had regard were resolved following mediation in the Tribunal. In accordance with the Tribunal's usual procedures, the outcome of the agreed resolution, and the facts underlying the matter, were set out in an order made by the Tribunal on 12 January 2010. The terms of that order read as follows:
On the application referred for mediation before Senior Member Murray Allen:
The Tribunal notes:
The Medical Board of Western Australia (the Board) alleged that there is proper cause for disciplinary action to be taken against Robert Liddell (the practitioner) because he, in the course of his practise [sic] as a medical practitioner, acted carelessly within the meaning of s 76(1)(b)(i) of the Medical Practitioners Act 2008 (the Act).
At the mediation conducted on 12 January 2010 the practitioner admitted the allegation and the parties agreed the terms upon which the proceeding could be settled.
The parties have agreed the following relevant facts:
1.The practitioner practises at Health Watch Clinics of Unit 3, 484 Stirling Highway, Cottesloe, Western Australia (the Practice).
2.At a consultation on 7 November 2008 (the consultation) the practitioner conducted a preemployment medical assessment of a female patient (the patient) involving a physical examination of the patient whilst the patient was wearing only underwear.
3.During the consultation the practitioner ought to have:
(a)performed an examination of the patient's eyes and ears prior to asking her to remove her clothing;
(b)provided the patient with:
(i)a sheet, gown, modesty shorts or some other appropriate garment to preserve the patient's modesty;
(ii)a screen for the patient's use whilst undressing and dressing;
(c)turned away whilst the patient was dressing and undressing;
(d)provided the patient with an explanation of the extent to which disrobing was required, and the reason for it, prior to commencing the examination;
(e)requested the patient to undo her bra if that was necessary, rather than undo it himself:
(f)provided the patient with an explanation for the need to remove her bra prior to having her do so;
(g)provided the patient with an explanation of the need for, and the nature of, an examination testing for the existence of hernias prior to conducting that examination; and
(h)instructed the patient that she could dress as soon as he had completed the examination.
4.The practitioner failed to take the steps outlined in paragraph 3 above.
5.Upon the agreement of the parties, the practitioner provided the Board with the following undertakings:
(a)Within three months from 12 January 2010, the practitioner will provide to the Board information to the satisfaction of the Board of the changes that have been made by the practitioner at the Practice to the procedures for patient examinations so as to bring such examinations into compliance with the Australian Medical Association's Patient Examination Guidelines 1996; and
(b)Unless the Board otherwise agrees, the Practice will gain and maintain accreditation by the Royal Australian College of General Practitioners for a period of three years.
The Tribunal orders:
Being satisfied by reason of the practitioner's admission that proper cause exists for disciplinary action against the practitioner because the practitioner has acted carelessly in the course of his practise [sic] as a medical practitioner, and in order to give effect to the agreed terms of settlement of the proceeding, it is on 12 January 2010 ordered pursuant to s 54(8) State Administrative Tribunal Act 2004 that:
1.The practitioner is reprimanded.
2.The practitioner is to pay to the Board the Board's costs of the application in the sum of $6250.00.
I have set the order out in full because it was relied on heavily by counsel for the Board in her submissions as to the characterisation of Dr Liddell's conduct in relation to the complaint relating to Patient A.

Operation of Pt 8, Div 7 of the National Law

The concept of 'immediate action' is dealt with by Pt 8, Div 7 of the National Law. Immediate action means the suspension, or the imposition of a condition on, the health practitioner's or student's registration or accepting an undertaking from a health practitioner or student National Law s 155. The power to take immediate action is found in s 156(1)(a), which is set out above. Section 157 of the National Law outlines a show cause process designed to provide an opportunity to a practitioner, in respect of whom immediate action is contemplated, to be heard.
Section 158 requires the Board to give written notice of its decision to the practitioner concerned, and requires the Board to 'take the further action under this Part the Board considers appropriate, including, for example, investigating the practitioner or student or requiring the practitioner or student to undergo a health or performance assessment'.
Section 158(2) sets out the requirements as to content of the notice which must include:
(a)the immediate action the National Board has decided to take; and
(b)the reasons for the decision to take the immediate action; and
(c)the further action the National Board proposes to take under this Part in relation to the health practitioner or student; and
(d)that the registered health practitioner or student may appeal against the decision to take the immediate action if the action is to suspend, or impose a condition on, the practitioner’s or student’s registration; and
(e)how an application for appeal may be made and the period within which the application must be made.
The Board's notice of 9 September 2011 advised that the further action that it intended to take was to investigate the complaint. There was no information before the Tribunal when it heard this matter as to whether that investigation had progressed.
The requirement to take further action no doubt exists because of the relatively summary nature of the procedure for taking immediate action. The action can be taken where the Board 'reasonably believes' that a serious risk exists by reason of the practitioner's conduct, and immediate action is necessary. Although s 157 prescribes a 'show cause process', the division does not contemplate the Board making factual findings concerning a health practitioner's conduct.
We agree with the observations of the South Australian Health Practitioner's Tribunal in I v Medical Board of Australia [2011] SAHPT 18, which concerned immediate action under s 156 of the National Law in relation to a medical practitioner. In that case, the practitioner had been charged with two separate counts of indecent assault upon female patients. After the first charge was laid, the practitioner gave an undertaking to the Medical Board of Australia that he would not treat or consult female patients over the age of 10 years, and those under 10 years were to be accompanied by a parent or guardian. After the undertaking was given, the second charge was preferred. Upon investigation by the Medical Board, it was found that the practitioner had breached his undertaking on three occasions. The Medical Board then took immediate action to suspend the practitioner. The practitioner sought a review before the Health Practitioner's Tribunal. The Tribunal approached the matter on the basis that an immediate action order does not entail a detailed inquiry by the Board, or in turn by the Tribunal. Rather, it required action on an urgent basis because of the need to protect the public.
The Tribunal adopted the approach of the New South Wales Supreme Court in Lindsay v New South Wales Medical Board [2008] NSWSC 40, a case concerning s 66 of the Medical Practice Act 1992 (NSW). Although not in precisely the same terms as s 156 of the National Law, s 66 of the New South Wales Medical Practice Act required the relevant board to determine two matters. The first was whether the Board was satisfied that action under the section is 'necessary for the purpose of protecting the life or physical or mental health of any person'. The second was whether the necessary protection of life or physical or mental health required an order suspending the practitioner or imposing conditions on registration. At [77], Hall J noted that the process under s 66 'may necessarily not involve the Board or its delegates in a detailed examination of factual matters subjacent to a complaint or complaints'. He contrasted that process to an examination of the kind that might appropriately be undertaken in proceedings before the relevant disciplinary tribunal directed to finding 'the subject matter' of a complaint against a person 'to have been proved'. His Honour said that the material relied upon for the purpose of determining whether action should be undertaken under s 66 may include material that would not conventionally be considered as strictly evidentiary in nature, for example, complaints and allegations.
The practicality of that approach is readily apparent. Where, for example, two allegations of criminal conduct involving serious sexual misconduct by a medical practitioner are made (as in I v Medical Board of Australia) it would be impractical for s 156 to require that the Medical Board make urgent findings of fact as to the practitioner's guilt or innocence. Rather, the mere fact and seriousness of the charges, supported by the untested depositions of witnesses, might well be sufficient to create the reasonable belief as to the existence of a risk because of the alleged conduct of the health practitioner.
That is not, of course, to say that material available to the Board need not be carefully scrutinised in order to determine the weight to be attached to it. The requirement to provide the practitioner with an opportunity to make submissions prior to the Board taking immediate action, and to have regard to those submissions, reinforces that obligation. In Lindsay, Hall J made reference to the English decision of General Medical Council v Sheill[2006] EWHC 3025 (Admin), a case concerning a provision similar to s 156 contained in the Medical Act 1983 (UK). Section 41A of that Act enabled the interim orders panel to make certain orders suspending or imposing conditions upon a practitioner on an interim basis. In that case, Crane J considered the nature of the proceedings before him saying that neither the interim orders panel nor the court was 'embarking on a factfinding exercise'. He said:
… Both IOP and, in turn, the Court must look at the allegations made against the doctor. The Panel and the Court will expect the allegation to have been made or confirmed in writing, whether or not it has yet been reduced to a formal witness statement. The Panel and the Court will need to consider the source and the potential seriousness of the complaint. A complaint that is trivial or clearly misconceived on its face will clearly not be given weight. The nature of the allegations will be highly relevant to the issue whether conditions are sufficient.
In Lindsay, at [79], Hall J said:
An inquiry, hearing or interview process conducted for the purposes of the Board or its delegates determining matters under s.66(1) could be considered to be preliminary or interim in nature or, as it was termed in the present proceedings, 'interlocutory'. Such a process, in the present case, as earlier observed, did not involve the making of findings of fact or the determination of the merits of any complaint. Any observations or conclusions expressed by the Board or its delegates under s.66 following an inquiry, hearing or interview, are, and can only be, strictly for the limited purposes of s.66(1). Such observations or conclusions are not to be equated to findings on material questions of fact as may be made by the Medical Tribunal in proceedings conducted by the Tribunal under Part 11 of the Act.

In our view, the observations by Hall J in relation to s 66 of the New South Wales Medical Practice Act are applicable to the process under s 156.
The proposition that the taking of immediate action is in the nature of an 'interim' procedure is reinforced by the obligation under s 158 to take further action. It is not open to the Board simply to take immediate action by way of imposing conditions or a suspension and then do nothing further in regard to the underlying issues that have provided the basis for the immediate action.
As noted, these proceedings are brought by way of 'appeal' pursuant to s 199 of the National Law. By virtue of s 11 of the Health Practitioner Regulation National Law (WA) Act 2010, a reference in the National Law to an appeal against a decision to the responsible tribunal, is a reference to a review of the decision by the tribunal under the State Administrative Tribunal Act 2004 (WA) Pt 3, Div 3. It is therefore a review by way of a hearing de novo SAT Act s 27(1). The hearing is not confined to matters that were before the original decisionmaker, in this case the Board, but may involve consideration of new material s 27(1) of the SAT Act. The hearing of the review may, therefore, as it has in this case, involve a more thorough consideration of evidence adduced by the parties than occurred before the Board. In this case, the Board adduced evidence from Patient A which was not before it when it made the decision to make immediate action. Likewise, Dr Liddell gave extensive oral evidence, was crossexamined, and called both expert and lay witnesses to support his case. In effect, therefore, although the parties were mindful of the questions to be answered, namely whether the practitioner's conduct gave rise to a serious risk to persons, and whether the proposed condition was necessary to protect public health or safety, the hearing proceeded much as though it was the hearing of an allegation of professional misconduct brought by the Board against Dr Liddell. The Tribunal was thus much better placed than was the Board to examine the alleged conduct for the purpose of assessing whether Dr Liddell's conduct poses a serious risk to persons such as to require the imposition of the condition imposed by the Board.
The approach taken by the parties in this matter throws up some potentially difficult procedural problems. For example, where the basis for the immediate action is an allegation or allegations of some form of serious misconduct, it can be expected that, following the immediate action, that conduct will become the subject of an application by the Board to the Tribunal for the imposition of a disciplinary penalty. If an application for review of the immediate action is made by the practitioner, and a full hearing as to the conduct takes place on that application, and findings in relation to the conduct are made, questions arise as to the effect of those findings of fact on any subsequent hearing of a disciplinary complaint about the same events. It is important therefore that the Board, in its notice of immediate action, identify the further action it proposes to take. That information may well inform decisions as to the nature of the hearing of a review application and the evidence to be heard on that application. In most cases it can be expected that the application for review of the decision to take immediate action will proceed more as an interlocutory or interim matter pending determination of the substantive complaint about the practitioner.

Dr Liddell's practice

Dr Liddell graduated from university in 1972. Following graduation, he practised in various public hospitals and eventually worked in several medical roles at different organisations associated with the aviation industry. He practised in various countries and other states of Australia, returning to Perth in about 2002 where he commenced practising in emergency departments at various public hospitals and in general practice. In 2002, he established a clinic which specialised in carrying out health checks and providing preventative medical advice to corporate executives. He subsequently moved that clinic to Cottesloe, where it became known as Health Watch and Dr Liddell began undertaking industry medical assessments. Up until the Board took the immediate action the subject of these proceedings, industry medical assessments comprised approximately 70% of the work of Health Watch, which undertook assessments for various mining companies, offshore drilling companies and offshore marine companies. Dr Liddell said that, prior to September 2011, he was undertaking approximately six to eight industry medical assessments per day, four days per week. After the Board took the immediate action, Dr Liddell significantly reduced the number of medical assessments he was doing to approximately 10 per week.

Examination of Patient A

Patient A was referred to Health Watch by a company which provides services and personnel to the offshore oil and gas industry. Dr Liddell and others at Health Watch had been carrying out preemployment medicals for that company for approximately six years.
Patient A attended the Health Watch Clinic on Friday 12 August 2011 for the purpose of the medical examination. At reception, she was given four documents. Those were a one page printed information sheet, a one page printed document headed 'Written Patient Consent', a one page printed document headed 'Patient Details Form' and a seven page printed document being the employer's 'Employment Medical Examination' form. She completed her details on those forms, signed them where required, and handed them back to the receptionist.
The information sheet explained the reasons for the medical examination. It outlined some preliminary tests and questionnaires which would be undertaken, and continued:
After the preliminary examination you will see the doctor. For this part of the examination, the doctor is required to complete a form that dictates what is to be examined. On most occasions for the examination you will be required to undress to your underclothes, lie on an examination couch, remove your bra for a moment (for listening to the lungs and heart) and you may be required to demonstrate joint flexibility and muscular strength by bending and stretching and lifting weights. If you would like a chaperone in the consulting room while you are being examined please ask either the reception staff or the doctor at the time of the examination.
If you wish to use a gown please ask prior to undressing for the examination. Sometimes an examination with a female doctor can be arranged if you prefer, you should check with reception. If you would find any of the above too embarrassing or for any reason you do not wish to proceed with the examination, please advise reception prior to the beginning of the examination. Please understand that none of the doctors wish to conduct an examination that makes you feel uncomfortable, however equally most doctors are not prepared to sign the form saying that you are fit if they have not properly assessed you as per the requirements of the examination form.
At the foot of that document, Patient A inserted her name in acknowledgment that she had read the information provided and acknowledged what is involved in the medical examination process. She signed and dated that acknowledgment.
The document entitled Written Patient Consent provided for the patient's consent to certain specified dissemination of personal health information. The Employment Medical Examination form set out 54 questions about medical history which was completed and signed by Patient A. It also enclosed a section for the doctor to complete which set out a very comprehensive list of examinations to be undertaken and reported on.
In crossexamination, Patient A acknowledged that she was given those documents to read and that she took them into the waiting room to complete them, but said that she did 'not necessarily read them'. She sat with her husband whilst she completed the documents.
Ms Rachel Kerr is the practice manager at Health Watch. She said that she saw the Health Watch receptionist hand the various forms to Patient A when she arrived on 12 August 2011 and the receptionist asked Patient A to read the information sheet and consent and, if she agreed with their contents, to sign and date them. She said that when Patient A brought the documents back to the reception desk, she heard the receptionist explain the consent form to her and specifically explained to her that if she felt uncomfortable seeing a male doctor, one of the female staff at Health Watch would be happy to sit with her throughout the examination as a chaperone. She said that Patient A responded with a laugh 'at my age you don't feel uncomfortable about things like that any more', or words to that effect.
Patient A acknowledged that the receptionist told her that she was seeing a male doctor, and asked whether she would like a chaperone. Patient A said that she responded 'no I will be fine, I'm 43 not 17', or words to that effect.
Patient A then underwent some preliminary tests with a nurse.
Ms Kerr said that she felt that 'something wasn't quite right with [Patient A's] behaviour'. When Dr Liddell called Patient A into the consultation room, Ms Kerr said that she spoke to him and advised him to be cautious with this patient. Dr Liddell, in his evidence, confirmed that Ms Kerr whispered to him 'watch this one', or words to similar effect, as she walked past him when he was ushering Patient A into the consulting room.
After they entered the consulting room, Dr Liddell asked Patient A a few questions. According to Patient A, Dr Liddell went through some parts of the examination form with her and asked her questions about certain matters. She said that he then said to her, 'You can take everything off except your bra and knickers', or words to that effect. She said that there was no obvious screen or curtain for her to step behind in order to undress, and Dr Liddell did not offer her a screen or show her where one was.
Dr Liddell's account of what occurred differs. He agreed that he initially perused the medical examination form and asked some questions about information she had written on the document. He says he then told Patient A that he would examine her, and asked her to go behind a portable screen which was at the corner of the consulting room, to remove her outer clothing down to her bra and underwear, and then sit on the examination table next to the screen directly behind where he was sitting. Dr Liddell produced photographs of the consulting room which show a screen located inside the entrance door. From the position where the patient sits in the room, the screen is clearly visible, although it is likely that it was folded in half, so that to fully screen a person from where the medical practitioner sits, it would be necessary to unfold the screen by wheeling the folded half out so as to increase the width of the screen.
In crossexamination, Patient A maintained that the screen was not clearly visible, although she did not suggest that the screen shown in the photograph was not in fact present. She maintained that she undressed next to the chair on which she had been sitting. She said that whilst she was undressing, Dr Liddell sat at his desk 'doing whatever he was doing'. That was consistent with Dr Liddell's account, which was that he continued to sit at his desk completing details on the medical examination form.
Both Dr Liddell and Patient A gave evidence, and we find, that Dr Liddell said to Patient A that she could wear a gown if she wished, but said words to the effect that, during the course of the examination, it would be necessary for the gown to be taken off to enable particular examinations to be undertaken. Dr Liddell's evidence, which we accept, was that a gown hung on the back of the door to the consulting room, adjacent to the screen.
We find that it is likely that Dr Liddell mentioned the possibility of changing behind the screen in the course of telling Patient A of the need for her to undress, and in the context of advising her of the availability of a gown should she wish to wear it. We think it likely that Patient A did not go behind the screen to undress, but, as she said, she undressed next to the chair on which she had been sitting, during which time Dr Liddell was facing the papers on his desk and thus not looking in Patient A's direction.
It is not in dispute that Patient A elected not to wear the gown, and we accept her evidence that that was because she was advised that it would be necessary to remove the gown during the course of the examination. We accept, for reasons which we will discuss later, that there was nothing inappropriate in Dr Liddell requiring the removal of a gown for the purpose of the examination, and his advice that that it would be necessary was also appropriate. Dr Liddell had no independent recollection as to whether or not Patient A wore a gown for part of the examination, and we accept Patient A's evidence that she did not do so. That was a matter of her choice.
Patient A removed her outer clothing down to her bra and underwear, and then sat on the examination table. Dr Liddell then examined her ears, her pupil response, her visual fields, her eyes, her mouth, her teeth and tonsils. He asked her to extend her arms out in front of her and examined her hands and wrists for various purposes required by the examination form. Dr Liddell then carried out further examinations before telling Patient A that he needed to examine her chest and heart function. There is a conflict between the evidence of Dr Liddell and Patient A as to what then occurred.
According to Dr Liddell, his standard approach, which he had modified following the first complaint, was to ask, 'May I undo your bra so I can listen to your chest and examine your heart?' He explained that simply involved undoing the clips so that the bra is loose. That enables him to fully examine the back to check for melanomas. Dr Liddell accepted that he may have brushed Patient A's hair to one side to observe the patient's back, to look at the chest wall and listen to it.
Patient A said that Dr Liddell said to her, 'I am just going to take your bra off so I can listen to your chest', or words to that effect. She said he did not use the expression, 'May I undo your bra?' She said that she felt uncomfortable but could not remember whether she said anything in response. She accepted that he may have examined her back after unclipping the bra.
Dr Liddell said that, after unhooking the bra, he did not again touch Patient A's bra, and that it is his invariable practice not to do so. He said that he offers to unclip the bra because many patients have difficulty in doing so easily themselves.
Patient A maintained that, having unclipped the bra, and examined her back, Dr Liddell moved in front of her and slid the bra down her arms and placed it at the end of the examination couch.
Patient A said that Dr Liddell then had her lie back on the examination couch. He then lifted her left breast and put the stethoscope on the fleshy part of her breast, then lifting it and putting it back on another part of her breast. She said that, whilst on the examination couch, she was chatting to Dr Liddell and making small talk. In crossexamination, she expressed some uncertainty as to whether, during that examination of her breast, she was sitting up or lying down. She maintained that her bra was off during that examination. Patient A said that she did not recall whether Dr Liddell told her, before placing the stethoscope on her breast, that he was going to listen to her heart.
Dr Liddell explained that when he examines the heart he asks a patient to lie down. There are four places where he listens to the heart, two of which would be considered to be underneath the breast on the chest wall, with the other two parts higher up on the chest wall which he said could be conceived as being on the fleshy part of the breast, although not on what Dr Liddell described as the 'bolus' of the breast.
There is no reason to conclude that Dr Liddell's placement of the stethoscope for the purpose of listening to Patient A's heart was other than was reasonably required for that examination. We will return below to the question of the circumstances of the removal of the bra.
Having completed the examination of the heart sounds, Dr Liddell then checked whether Patient A had a palpable liver and spleen, which she did not. He then moved to the examination for inguinal hernias, which counsel for the Board described as the most serious matter of concern in relation to the examination.
Patient A said that Dr Liddell felt her abdomen 'which felt like a normal medical procedure'. She said that he then lifted her underwear up from the top elastic away from her abdomen and moved his head to one side. She said that he put his hand down her underwear without warning or any request if it was okay to do so. She said that he 'cupped the top of my pubis, just above my vagina and told me to cough'. He then removed his hand.
In the notification to the Board provided by the doctor at the Sexual Assault Resource Centre, the doctor related the history provided by Patient A. The history records 'he informed her he needed to check for hernias and lifted up front of underwear'. That statement was inconsistent with Patient A's statement of evidence before the Tribunal, in which she asserted that Dr Liddell acted without warning. She maintained that position when crossexamined in relation to what had been apparently told to the doctor at the Sexual Assault Resource Centre.
When crossexamined about the nature of the hernia examination, Patient A demonstrated confidently where she said Dr Liddell placed his hand, and maintained that his fingers covered the labia majora. She maintained that his fingers were placed inside her underwear.
Dr Liddell maintained that he told Patient A that he needed to examine her for evidence of hernias, that she did not object, and he then placed his middle finger and forefinger on the outside of her underwear in the area of her groin crease before palpating the area and asking her to cough. Having not felt a lump in that area, he repeated the process on the right side.
Dr Liddell acknowledged that, when he was taught how to examine for hernias, the process involved observing the area where the examination was to be made in order to observe whether there was any bulge which might indicate the hernial orifice. He said, however, that he had more recently discussed the examination with colleagues, and was satisfied that if the patient was wearing a thin garment, a bulge, sufficient to diagnose a hernia, could be felt on coughing and that observation was not necessary. He said that he had adopted that practice after the initial finding of carelessness against him, and it was on that basis that he maintained that he did not place his fingers under Patient A's underwear in order to perform the examination, nor observe the skin in order to visually detect any bulge in the vaginal area.
We find that it was more likely than not that Dr Liddell did warn Patient A that he was examining her for a hernia. That is consistent with what Patient A apparently told the doctor at the Sexual Assault Resource Centre shortly after the incident.
Two important factual issues remain for determination. One is whether Dr Liddell removed Patient A's bra, or whether either she removed it, or it remained loosely over her breasts during examination. The second is whether Dr Liddell carried out the hernia examination with his fingers inside or outside of Patient A's clothing.
We are not persuaded that Patient A's account of either of those aspects of the examination should be accepted. There were inconsistencies in her evidence as to whether she was sitting or lying down at the time of the breast examination. There was an inconsistency about what appears to have been reported to the Doctor at the Sexual Assault Resource Centre, and Patient A's evidence to the Tribunal, in relation to any warning as to the hernia examination. The evidence of both Dr Liddell and Patient A as to her demeanour during the examination, namely that she was chatting and making small talk seems inconsistent with her evidence before the Tribunal that she had 'frozen up' so that she was unable to respond or ask Dr Liddell not to continue the examination. The unchallenged evidence of Ms Kerr was that she saw Patient A leave the consultation room after the examination by Dr Liddell, she did not observe her to look unhappy or upset, and as Patient A walked past the reception desk she was smiling, gave a wave and said 'Thank you' and 'Goodbye' to Ms Kerr and the receptionist. Those matters cause us not to prefer the evidence of Patient A over the evidence of Dr Liddell as to those aspects of his examination of Patient A.

We consider that there are aspects of Patient A's evidence which may have coloured her recollection of the detail of Dr Liddell's examination. We accept that Dr Liddell's examination differed, as Patient A said it did, from any medical employment examination Patient A had previously undergone. Counsel for Dr Liddell tendered an affidavit of Dr Joe Kosterich, an experienced general practitioner. Dr Kosterich examined the medical file relating to Patient A, and considered Dr Liddell's and Patient A's account of the examination of Patient A. He noted the extensive questionnaire which was required to be completed. He noted that such examinations may be more thorough than most people have previously been subjected to. He noted that 'It is at the very basis of medical practice that to examine parts of the body, it is necessary to observe them. This will generally require them to be exposed. Whilst day to day this may not always happen, this is more because of the capacity of doctors to take short cuts. … Many people are not used to a full, physical examination where the entire body is being examined and hence the entire body needs to be exposed'.
Dr Kosterich considered, from the materials he had reviewed, Dr Liddell had conducted a normal, full, physical examination 'in what could be described as a textbook manner'.
As noted, we accept that Patient A had not experienced an examination of that thoroughness before. In cross-examination, Patient A said:
I remember walking out of there, and I remember seeing my husband, and I remember saying 'He's very nice. He's very thorough. He put his hands down my knickers'. And my husband nearly crashed the car, and then I went home and I asked all my oil and gas girls at - and they all said, 'He did what?' and then I went and told Dr Gallagher on - I think it was Monday or the Tuesday, and he said 'You have to report it'.
In her evidence-in-chief, Patient A also made reference to asking friends about past experience of pre-employment medicals and said that 'As they gave their responses I became more and more surer that my assessment with Dr Liddell was not a normal experience'.
In assessing the question of whose evidence should be preferred in relation to the circumstances of the removal of the bra and the hernia examination, we are mindful of the risk that Patient A's recollection was coloured by subsequent discussions with other people based upon what might have been both Patient A's, and those other persons' expectations in relation to the nature of employment medical examinations.
For those reasons, we are not prepared to accept Patient A's account of those aspects of the examination.

Serious risk and necessity for immediate action

As noted above, the Board's concern appears to have been that the practitioner lacks insight into the requirements of common modesty, and that that lack of insight created a risk of a break down of the trust which a patient might expect from a medical practitioner. It is worth reiterating that there is no suggestion by either the patient or the Board that Dr Liddell poses any risk of sexual misconduct towards any patient.
At the hearing, the Board relied upon a contention that Dr Liddell had previously acknowledged that he had acted carelessly in the manner recited in para 3 of the orders of the Tribunal of 12 January 2010. It contended that, on his own admission, Dr Liddell had acted in a similar manner in respect to Patient A. In particular, the Board noted that Dr Liddell had performed an examination of Patient A's eyes and ears after asking her to remove her clothing, that he had unclipped the patient's bra himself, rather than requesting her to do so, that he failed to instruct Patient A that she could replace her bra immediately after the examination of her heart was completed and that he failed to provide Patient A with explanations as to the need to remove her bra and as to the nature of an examination testing for the existence of hernias. The Board also maintained that Dr Liddell's offer of a modesty garment was inadequate.
We do not accept that there was an inadequacy of warning as to the nature and extent of examinations. Patient A signed, and acknowledged that she had read, the information sheet which explained the procedure in the way outlined above. Patient A accepted that she was offered a gown, which we find was hanging on the door of the consultation room.
We accept that it would have been preferable for Dr Liddell to have performed the examination of the patient's eyes and ears prior to her undressing, albeit that that may have interfered with the flow of the examination and arguably been slightly less convenient. We also accept that it would have been preferable for Dr Liddell to have invited the patient to unclip her bra herself, rather than offering to do it for her. We do not accept, however, that the possibility of repetition of conduct of that kind can be said to pose a serious risk to Dr Liddell's patients in the sense with calls for immediate action.
In her written witness statement at paragraphs 136 to 151, Patient A spoke of the consequences which the examination had on her confidence, her mental state, and her relationship with her husband. Objection was taken to those paragraphs on the basis of a submission that the consequences of the impugned conduct are irrelevant to a determination as to the characterisation of the conduct as some form of professional misconduct. The applicant relied upon Pillai v Messiter (No 2) (1989) 16 NSWLR 197 (Pillai) at 200 201 and SRNA v The Medical Board of Western Australia [2004] WASCA 198 (SRNA) at [26]. Accordingly, it was submitted, the paragraphs of Patient A's witness statement dealing with the consequences are irrelevant to a determination as to whether immediate action should be taken under s 156 of the National Law, which requires that the immediate action be based upon 'the registered health practitioner's conduct'.
The Board submitted that the paragraphs should be permitted because they go to the question of the nature of the risk which a repetition of the conduct might present. We received the evidence (save for a number of passages which were deleted on the basis of different objections), subject to ruling on the objection after having the benefit of full consideration of the authorities referred to and the submissions of the parties, including the precise manner in which the respective cases were put in closing.
The observations made in both Pillai and SRNA are to the effect that regard should not be had to the consequences of conduct in assessing the character of the conduct, and in particular whether the conduct amounts to professional misconduct. Whilst this case involves an examination of Dr Liddell's conduct, the primary question for the Tribunal is whether the conduct poses a serious risk such as to necessitate immediate action. In that context, it is necessary to consider the nature of the risk said to exist. It seems to us that consequences of conduct may be relevant to that question, and on that basis, we would dismiss the objection to admission of paragraphs 136 to 146 (save for the passages deleted at the hearing on a different basis). Paragraphs 147 to 151 were deleted on a separate basis at the hearing.
Notwithstanding the acceptance of that evidence, we do not consider that it is reasonable to conclude that there is a serious risk of similar consequences of the same kind to other patients, were Doctor Liddell to perform an examination in the manner that we have found he performed the examination on Patient A. One of the consequences which Patient A identified was that, by reason of stress and anxiety, she had been unable to work, save for three days temping, from 3 October 2011 up until she gave evidence in March 2012. It was apparent from her evidence that part of that stress arose because of how her employer viewed the incident and what the employer said to her. It appears therefore that the cause of the consequences may, at least in part if not entirely, be due to supervening events rather than Dr Liddell's examination itself. Even if one accepts Patient A's own account of the examination, we do not accept that, viewing the matter objectively, similar consequences might reasonably be expected if the conduct were to be repeated. We are, of course, in no position to speculate as to the cause of what appears to be quite extreme consequences reported by Patient A. Our task, however, is to objectively consider whether a risk exists. The Board itself did not, in its submissions, identify the risk as being consequences of the type reported by Patient A, but rather a breakdown of trust between doctor and patient.
We accept that Dr Liddell performed his examination on Patient A having regard to what he considered necessary to thoroughly and properly examine the patient in accordance with the requirements of the employer. We are mindful that the allegations in this case are not in the nature of boundary transgressions but go to questions of examination technique and appreciation of preservation of a patient's modesty. We are satisfied that, a complaint having been made for a second time, Dr Liddell is likely to further modify his examination technique so as to avoid any possibility of further complaint. That can be illustrated by the fact that, following the initial complaint and finding of carelessness, medical employment examinations have generally been performed within Dr Liddell's practice by a female practitioner so as to avoid any risk of complaint. A female practitioner was not available at the time Patient A presented for examination. In the circumstances, we are not satisfied that the second requirement of s 156(1)(a) of the National Law, namely that a condition on registration is necessary to protect public health and safety, is made out.

Conclusion

It follows that the application for review of the decision of the Board to take immediate action should be allowed, and the condition on registration imposed by way of immediate action should be removed.

Orders

1.The application for review of the decision of the Western Australian Board of the Medical Board of Australia to take immediate action is allowed.
2.The condition on the applicant's registration that the applicant 'must have an adult female chaperone in the consultation room at all times when performing an examination on a female patient, except when practising in the emergency department of any hospital' is to be removed.

I certify that this and the preceding [77] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J A CHANEY, PRESIDENT