Medical Board of Australia v Kagan
[2024] QCAT 311
•26 August 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Medical Board of Australia v Kagan [2024] QCAT 311
PARTIES:
MEDICAL BOARD OF AUSTRALIA (applicant)
v
BERNARD KAGAN (respondent)
APPLICATION NO/S:
OCR 67 of 2023
MATTER TYPE:
Occupational regulation matters
DELIVERED ON:
26 August 2024
HEARING DATES:
11 & 12 June 2024
HEARD AT:
Brisbane
DECISION OF:
Judicial Member Dick SC
Assisted by:
Dr J Cavanagh, Medical Practitioner Panel Member
Dr K Hames, Medical Practitioner Panel Member
Mr J Walsh, Public Panel MemberORDERS:
1. In respect of grounds 1 and 3 of the referral, pursuant to s 196(1)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent has no case to answer.
2. In respect of grounds 2 and 4 of the referral, pursuant to s 196(1)(b)(ii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes unprofessional conduct.
3. In respect of ground 5 of the referral, pursuant to s 196(1)(b)(i) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes unsatisfactory professional performance.
4. The applicant must file in the Tribunal, by email, with a CC to the associate to the Deputy President at [email protected], its written submissions on sanction, by 4:00pm on 2 September 2024.
5. The respondent must file in the Tribunal, by email, with a CC to the associate to the Deputy President at [email protected], his written submissions on sanction, by 4:00pm on 9 September 2024.
6. The applicant must file in the Tribunal, by email, with a CC to the associate to the Deputy President at [email protected], any written submissions in reply, by 4:00pm on 11 September 2024.
7. The parties must inform the Tribunal, by email to the associate to the Deputy President at [email protected], whether they seek an oral hearing on sanction, and if so:
(a) their estimate for the length of hearing; and
(b) their availability for such hearing in the months of September, October and November 2024;
by 4:00pm on 11 September 2024.
CATCHWORDS:
PROFESSIONS AND TRADES — HEALTH CARE PROFESSIONALS — MEDICAL PRACTITIONERS — DISCIPLINARY PROCEEDINGS — CHARACTERISATION OF CONDUCT — where the respondent was a general practitioner with significant gynaecological experience — where the respondent conducted internal examination of a patient — where the Board alleges, inter alia, that the examination was not clinically necessary — where experts gave conflicting evidence — where the conduct that was established was found to have constituted unprofessional conduct and unsatisfactory professional performance
Health Ombudsman Act 2013 (Qld)
Health Practitioner Regulation National Law (Queensland)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Briginshaw v Briginshaw (1938) 60 CLR 336
Craig v Medical Board of South Australia (2001) 79 SASR 545
Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia, effective from March 2014 to 30 September 2020
Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Guidelines for gynaecological examinations and procedures, effective March 2016
APPEARANCES & REPRESENTATION:
Applicant:
S Hurburgh instructed by MinterEllison
Respondent:
A J Edwards KC instructed by Avant Law
REASONS FOR DECISION
This matter concerns a referral by the Medical Board of Australia (Board) to the Tribunal pursuant to s 193(2)(b) of the Health Practitioner Regulation National Law (Queensland) (National Law).
Section 196 of the National Law sets out the decisions available to the Tribunal. It is open to the Tribunal to make the following findings:
(a)that the respondent has no case to answer and no further action is to be taken in relation to the matter; or
(b)one or more of the following:
(i) the practitioner has behaved in a way that constitutes unsatisfactory professional performance;
(ii) the practitioner has behaved in a way that constitutes unprofessional conduct; or
(iii) the practitioner has behaved in a way that constitutes professional misconduct.
“Unsatisfactory professional performance” is defined in the National Law as:
the knowledge, skill or judgment possessed, or care exercised by, the practitioner in the practice of the health profession in which the practitioner is registered is below the standard reasonably expected of a health practitioner of an equivalent level of training or experience.
The National Law defines “unprofessional conduct” as, relevantly:
professional conduct that is of a lesser standard than that which might reasonably be expected of the health practitioner by the public or the practitioner’s professional peers and includes—
…
(d) providing a person with health services that are excessive, unnecessary or otherwise not reasonably required for the person’s wellbeing.
The National Law defines “professional misconduct” as, relevantly, including:
(a) unprofessional conduct by the practitioner that amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience; and
(b) more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.
Background
All of the allegations relate to the respondent’s consultation with a 19-year-old female patient on 3 September 2019 at a general practice clinic in Cairns.
It is not in dispute that during the consultation, the respondent performed an examination of the patient’s left breast and an internal examination of her vagina, by inserting a speculum and gloved fingers into her vagina and conducting a pap smear.
The patient had presented with a complaint of amenorrhea of three months. She also said she was sexually active. The Board accepts that it was appropriate for the respondent, in those circumstances, to confirm or exclude a diagnosis of pregnancy.
The Board also admits that the patient attended with a female friend of similar age who was present throughout the consultation and examination.
The grounds of the allegations
The Board submits that the respondent departed from proper professional standards in a number of aspects, put succinctly as follows:
(a)the respondent failed to provide adequate clinical care;
(b)the respondent performed inappropriate physical examinations;
(c)the respondent failed to offer an appropriate chaperone;
(d)the respondent failed to obtain informed consent; and
(e)the respondent failed to make adequate records of the presentation and consultation.
Onus and standard of proof
The onus is on the Board to prove its case to the Briginshaw standard.[1]
[1]Briginshaw v Briginshaw (1938) 60 CLR 336.
Nature of hearing
In determining the referral, the Tribunal is to:
(a)make findings of fact;
(b)assess the conduct, as found, against recognised professional standards; and
(c)decide what, if any, disciplinary orders ought to be made.
The purpose of disciplinary proceedings, and the taking of disciplinary action, is not punitive in nature, but it is for the protection of the public.[2]
[2]Craig v Medical Board of South Australia (2001) 79 SASR 545.
The hearing
The respondent gave evidence and was cross-examined. The respondent also called an expert, Dr Dickinson.
The Board also called an expert witness, Dr Downer.
The allegations
Ground 1
As the Board puts it, the essence of this ground is that the respondent was so focussed on the possibility of pregnancy that other possible causes of the amenorrhea were not adequately considered or investigated. No tests were ordered which might identify polycystic ovarian syndrome (PCOS) or a sexually transmitted infection (STI).
The Board submits that a history of STIs and a family history of any significant gynaecology should have been obtained. Even more, after the respondent had excluded a second trimester pregnancy, he took no investigative steps towards confirming or excluding other possible causes of the patient’s amenorrhea.
In response, the respondent gave evidence he was surprised the patient was not pregnant,[3] but there was still the possibility of pregnancy at a stage where he could not define it clinically by examination, so pregnancy had not been excluded.[4]
[3]Transcript, p 1-15, line 42.
[4]Ibid, line 45.
He chose to do a blood test before any other testing to exclude pregnancy before considering alternatives. In addition, he said he had not observed any symptoms of PCOS, such as acne or hirsutism. An STI would not cause amenorrhea and, regardless, can be asymptomatic.[5] In any event, he said there was no urgency in relation to those potential alternatives.[6] The patient was to return after her blood test.
[5]Ibid, p 1-16, lines 28–45.
[6]Ibid, p 1-17, lines 7–11.
The Board is not advancing a case of professional misconduct in respect of this ground. In Dr Downer’s report dated 24 September 2020, he said:
Being overweight (BMI 34.8) and amenorrheic should have flagged consideration of polycystic ovarian syndrome (PCOS). Once pregnancy had been excluded, additional blood tests could have been made…[7]
[7]Report of Dr Downer dated 24 September 2020 (Board’s expert report), p. 2 (emphasis added).
On that basis, the Tribunal is not satisfied this ground is made out.
Ground 2
The Board’s case in respect of this ground is that the breast and vaginal examinations were unnecessary because pregnancy could have been either confirmed or excluded by a urine HCG test at the time of the consultation.
In his affidavit, the respondent explains the examinations on the basis that there was an:
urgent need to confirm pregnancy and to estimate gestation to leave open for the patient the option of termination.[8]
[8]Affidavit of Bernard Kagan filed 4 August 2023 (respondent’s affidavit), Exhibit ‘BK-1’, [29].
He explained the urgency in this way:
The more advanced the pregnancy, the bigger the fetus, the thinner the uterine musculature about the fetus and the greater the hazard or risk of surgical misadventure. This risk increases dramatically as the period of gestation increases. I was concerned for her welfare and endeavouring to not allow a potentially bad situation to get worse.[9]
This explanation had not been challenged by the Board.
[9]Ibid, [24].
The Board seeks to throw doubt on that explanation by reference to the respondent’s letter to the Health Ombudsman (HO) where he did not set out that a “crucial reason” was to estimate gestation.[10] The respondent says that he was asked to detail what transpired during the consultation and not why it transpired.[11]
[10]Transcript, p 1-40, line 12.
[11]Ibid, line 21.
The Board’s case, broadly, is that pregnancy should have been investigated by a urine test first. The respondent says that while usually reliable, urine tests may be falsely negative (though rarely falsely positive) and that even a negative urine test would have resulted in further testing such as a blood test.
As to any possible delay, the urine test could have been conducted at the consultation, the blood test which was ordered was reported by 1:50pm the next day, and Dr Downer’s enquiries revealed that the waiting time for an ultrasound in Edmonton was 2 days, less with a cancellation. Therefore, significantly less delay than suggested by the respondent.
Unfortunately, the respondent appears to have made an assumption that the last occasion of sexual intercourse engaged in by the patient, coincided with her last menstrual period.
He also raised as a reason for not performing a urine test, the issue of cost and doubt about how quickly “the girls” could do the test. The Board points out that he was about to leave the practice in three days.
The fact is that when the clinical examination did not prove pregnancy, the respondent chose to do a blood test. He could have ordered one before the examination.
The respondent also argues that an ultrasound would have involved an invasive test, but an ultrasound would only have been ordered once pregnancy was established and would have been warranted and reasonable in those circumstances.
The Tribunal has had the assistance of two experts called by the parties and the expertise of the assessors appointed to assist the Tribunal.[12]
[12]See Health Ombudsman Act 2013 (Qld) (HO Act) s 126.
There is some strident criticism of Dr Downer, but that is not to say that his evidence should be ignored in its entirety or given no weight.
There is also a submission by the respondent that neither expert called:
are anywhere near as clinically experienced as Dr Kagan [in this area] such that it could be said that they have an equivalent level of training or practice [and their opinions are] … not determinative of what a practitioner of Dr Kagan’s training or experience would be expected to do.[13]
[13]Transcript, p 2-18, lines 29–34.
This is a curious submission, considering:
(a)the respondent called Dr Dickinson as an expert witness; and
(b)the introduction to Ground 2 in Annexure B of the referral alleges that the respondent:
performed examinations … which were not reasonably clinically indicated or were not clinically appropriate, having regard to contemporary evidence-based practice.[14]
[14]Application or referral — disciplinary proceedings filed 10 March 2023 (referral), Annexure B, [2] (emphasis added).
The “gold standard” 40 or 50 years ago, is largely irrelevant today.
The Tribunal is satisfied that the appropriate finding is that the respondent’s conduct is of a lesser standard than that which might reasonably be expected of the practitioner by the public or the practitioner’s professional peers, in that, in conducting the breast and vaginal examinations, he provided the patient with health services of a kind which was unnecessary or otherwise not reasonably required for the person’s wellbeing.
The Tribunal does not find that his conduct in this regard amounts to professional misconduct.
There is no suggestion the examinations were for a sinister or malicious motive, but rather, ill-judged. Nor is it argued that the respondent did not have the skills and/or expertise to do the tests.
Ground 3
The Board’s case on Ground 3 is that the respondent failed to offer and/or facilitate an appropriate chaperone for the purposes of the breast and vaginal examinations. The respondent’s approach to the issue fell below what was reasonably required because he failed to have a discussion with the patient about the presence of a chaperone and the option of having a qualified person, such as a practice nurse, perform the role.
There is no dispute that the patient’s friend of a similar age was present with the patient throughout the examination and consultation. Dr Dickinson apprehended she was acting as a chaperone. It is also passably clear she was present for the discussion about the nature of the examination and the consent given by the patient.
In cross-examination, Dr Downer agreed that a chaperone is not mandated by the Guidelines,[15] but it is “extremely risky [for the doctor] not to have one”.[16]
[15]Royal Australian and New Zealand College of Obstetricians and Gynaecologists, Guidelines for gynaecological examinations and procedures, effective March 2016 (Guidelines).
[16]Transcript, p 1-75, line 31.
In those circumstances and in light of the fact there is no proved breach of the Guidelines, the Tribunal is not satisfied the ground is made out.
Ground 4
The Board’s case is that:
the respondent failed to obtain informed consent for the breast and vaginal examinations.[17]
[17]Referral (n 14), Annexure B, [4] (emphasis added).
It is not in dispute that the patient consented to the examinations.
The Board says that there was not informed consent because other reasonable options to confirm or exclude pregnancy had not been offered or discussed, that is, reliable, efficient and non-invasive options to achieve the same diagnostic results.
The respondent argues that the alternatives were not in the patient’s best interests because of the inherent delay that would ensue.
Dr Dickinson, in his statement, opined that the patient’s consent was informed, but when cross-examined and when it was pointed out that there was no discussion of blood tests or urine tests before the internal examination, conceded that the respondent, in these circumstances, had not provided the patient with alternative management options and was required to do so.
The Board’s Code of Conduct provides that:
an important part of the doctor-patient relationship is effective communication which involves discussing with patients their condition and the available management options.[18]
[18]Medical Board of Australia, Good Medical Practice: A Code of Conduct for Doctors in Australia, effective from March 2014 to 30 September 2020 (Code of Conduct), cl 3.3.4.
The respondent says that Dr Downer and Dr Dickinson gave evidence of what they would have done in the circumstances.
The Tribunal is of the view that the evidence of the experts went further. They said (albeit in different terms) that, if alternate options were not discussed, there was not informed consent. Indeed, it would be inconsistent with the Tribunal’s findings in respect of ground 2, to find otherwise.
In this case, the examination was discussed and consent freely given, and is characterised by the Tribunal as within the definition of “unprofessional conduct”.
Ground 5
There is no dispute that the respondent’s record-keeping was deficient. The Board points to the following areas of deficiency:
(a)the patient’s consent to the breast and vaginal examinations;
(b)any details about the presence of the patient’s friend during the consultation;
(c)any details or observations of the breast examination; and
(d)any details of the patient’s statement that she did not think she was pregnant.
There is an important public interest in medical practitioners maintaining proper clinical records and particularly in the case of sensitive investigations.
However, as the respondent points out, the deficiencies in the record-keeping related largely to his own protection rather than inhibiting another doctor to take over the patient’s case, informed of the current issue under investigation.
The Tribunal accepts this submission and finds the Board has not made out a case of professional misconduct or unprofessional conduct in this regard. The Tribunal does, however, find that the conduct of the practitioner in this ground constitutes unsatisfactory professional performance.
Conclusion
The Tribunal has made the following findings in respect of each ground:
Ground
Finding
Ground 1
No case to answer
Ground 2
Unprofessional conduct
Ground 3
No case to answer
Ground 4
Unprofessional conduct
Ground 5
Unsatisfactory professional performance
As stated earlier, professional misconduct includes, relevantly:
more than one instance of unprofessional conduct that, when considered together, amounts to conduct that is substantially below the standard reasonably expected of a registered health practitioner of an equivalent level of training or experience.[19]
[19]National Law s 5 (definition of ‘professional misconduct’, paragraph (b)).
The Tribunal has found that two grounds of the referral amount to “unprofessional conduct” but is of the view that the two grounds are intertwined. Once the respondent had determined that the best way to proceed was an internal examination, he was unlikely to mention the alternatives so as to obtain informed consent. The Tribunal, when considering the two together, is therefore not satisfied the respondent engaged in professional misconduct.
Orders
In respect of grounds 1 and 3 of the referral, pursuant to s 196(1)(a) of the Health Practitioner Regulation National Law (Queensland), the respondent has no case to answer.
In respect of grounds 2 and 4 of the referral, pursuant to s 196(1)(b)(ii) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes unprofessional conduct.
In respect of ground 5 of the referral, pursuant to s 196(1)(b)(i) of the Health Practitioner Regulation National Law (Queensland), the respondent has behaved in a way that constitutes unsatisfactory professional performance.
The applicant must file in the Tribunal, by email, with a CC to the associate to the Deputy President at [email protected], its written submissions on sanction, by 4:00pm on 2 September 2024.
The respondent must file in the Tribunal, by email, with a CC to the associate to the Deputy President at [email protected], his written submissions on sanction, by 4:00pm on 9 September 2024.
The applicant must file in the Tribunal, by email, with a CC to the associate to the Deputy President at [email protected], any written submissions in reply, by 4:00pm on 11 September 2024.
The parties must inform the Tribunal, by email to the associate to the Deputy President at [email protected], whether they seek an oral hearing on sanction, and if so:
(a)their estimate for the length of hearing; and
(b)their availability for such hearing in the months of September, October and November 2024;
by 4:00pm on 11 September 2024.
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