Medical Board Of Western Australia and Van DORT
[2006] WASAT 214
•11 AUGUST 2006
MEDICAL BOARD OF WESTERN AUSTRALIA and VAN DORT [2006] WASAT 214
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 214 | |
| MEDICAL ACT 1894 (WA) | |||
| Case No: | VR:358/2005 | 5 JULY 2006 | |
| Coram: | HON R VIOL (SUPPLEMENTARY DEPUTY PRESIDENT) MS J STANTON (SENIOR SESSIONAL MEMBER) DR R CLARNETTE (SENIOR SESSIONAL MEMBER) DR P WINTERTON (SENIOR SESSIONAL MEMBER) | 11/08/06 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Complaints dismissed | ||
| A | |||
| PDF Version |
| Parties: | MEDICAL BOARD OF WESTERN AUSTRALIA NORMAN JOSEPH VAN DORT Rick Cullen |
Catchwords: | Vocational regulation Medical practitioner Whether medical practitioner guilty of "infamous conduct in a professional respect" Allegation that on three occasions the practitioner examined a patient in a manner which was contrary to professional methods and standards Lengthy delay in making complaint Standard of proof Whether allegations established to standard applicable |
Legislation: | Medical Act 1894 (WA), s 13, s 13(1)(a), s 13(3) |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Medical Board of Western Australia v Bham [2006] WASAT 90 Allinson v General Council of Medical Education & Registration [1894] 1:QB 750 Jemielita v The Medical Board of Western Australia (Unreported, Supreme Court of Western Australia; No 1106 of 1992; 13 November 1992) Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30 Qidwai v Brown [1984] 1 NSWLR 100 |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : MEDICAL ACT 1894 (WA) CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and VAN DORT [2006] WASAT 214 MEMBER : HON R VIOL (SUPPLEMENTARY DEPUTY PRESIDENT)
- MS J STANTON (SENIOR SESSIONAL MEMBER)
DR R CLARNETTE (SENIOR SESSIONAL MEMBER)
DR P WINTERTON (SENIOR SESSIONAL MEMBER)
- Applicant
AND
NORMAN JOSEPH VAN DORT
Respondent
Catchwords:
Vocational regulation - Medical practitioner - Whether medical practitioner guilty of "infamous conduct in a professional respect" - Allegation that on three occasions the practitioner examined a patient in a manner which was contrary to professional methods and standards - Lengthy delay in making complaint - Standard of proof - Whether allegations established to standard applicable
(Page 2)
Legislation:
Medical Act 1894 (WA), s 13, s 13(1)(a), s 13(3)
Result:
Complaints dismissed
Category: A
Representation:
Counsel:
Applicant : Ms F Vernon
Respondent : Mr RI Viner QC and Ms H Nore
Solicitors:
Applicant : Tottle Partners
Respondent : Cullen Babington Hughes
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Medical Board of Western Australia v Bham [2006] WASAT 90
Case(s) also cited:
Allinson v General Council of Medical Education & Registration [1894] 1:QB 750
Jemielita v The Medical Board of Western Australia (Unreported, Supreme Court of Western Australia; No 1106 of 1992; 13 November 1992)
Ex parte Meehan; Re Medical Practitioners Act [1965] NSWR 30
Qidwai v Brown [1984] 1 NSWLR 100
(Page 3)
Summary of the Tribunal's decision
1 The Tribunal dealt with three allegations against Dr Norman Joseph Van Dort.
2 The allegations involved examinations by the respondent of a patient said to have taken place on three occasions in 1986, 1991 and 1992; the Medical Board alleged that on each occasion the practitioner examined the patient in such a manner that it amounted to "infamous and/or improper conduct in a professional respect" pursuant to s 13 of the Medical Act 1894 (WA).
3 The State Administrative Tribunal dismissed the complaints against the practitioner.
Background
4 At all material times the respondent was a medical practitioner in general practice at 205A Wright Street Belmont. For a number of years, commencing in 1986, a patient (the patient) attended the respondent. The patient was born on 28 November 1968 and is now 37; when she first saw the respondent, she was 18.
5 In approximately 2003 the patient made a complaint to the applicant (the Board) concerning the respondent's conduct towards her during three attendances on the respondent.
6 As a result, the Board filed an application before this Tribunal alleging three incidents of "infamous and/or improper conduct in a professional respect" pursuant to s 13 of the Medical Act 1894 (the Act) in relation to the respondent's treatment of the patient.
7 The respondent has denied the allegations.
The allegations
8 In the application filed with the Tribunal the Board alleged misconduct on the part of the respondent on three occasions all occurring "in or about 1989". At the hearing because of inter alia the time lapse, the respondent's counsel sought more specific details as to the dates of these incidents. There had been available to the Board for some time the respondent's patient notes and these were referred to by counsel for the respondent when the application was made. Upon the Tribunal ordering
(Page 4)
- the Board to reconsider the alleged dates, the Board took instructions from the patient and then sought to amend the particulars to reflect the dates referred to below; it should be noted that the new dates were materially different to those alleged previously.
9 The Tribunal was concerned about the need for an amendment at this point in time when both the respondent's patient notes and the Board's ability to take further instructions from the patient had been available to it for some time prior to the hearing. Notwithstanding some possible prejudice to the respondent, however, the Tribunal allowed the amendment.
10 In the event, the Board alleged that the respondent was guilty of "infamous and/or improper conduct in a professional sense" (in his treatment of the patient) on three occasions, particularised as follows:
Allegation 1
a) The patient was born on 28 November 1968.
b) On 11 January 1986 the patient suspected she had thrush and attended the surgery of the respondent at 205A Wright Street, Belmont, Western Australia. The respondent asked the patient to remove the bottom half of her clothing. The respondent then conducted a vaginal examination confirmed that the patient had thrush and offered to insert anti-fungal cream with an applicator designed for that purpose. The patient consented to this and the respondent applied the anti-fungal cream.
c) Immediately after the insertion of the anti-fungal cream and while the patient was still naked from the waist down the respondent asked her if she had ever had a breast examination. When the patient replied she had not, the respondent asked her to remove the top half of her clothing leaving her completely naked. The respondent offered no sheet or other covering to the patient. The patient covered her lower body as best she could with her removed top and bra.
d) The respondent raised the back of the examination bed and commenced to touch the patient's breasts. He then began to roll the patient's nipples in the end of his fingers, when there was no clinical reason to do so.
(Page 5)
Allegation 2
a) On 21 May 1991, the patient attended the respondent complaining of a cold or chest infection.
b) The respondent stood behind the patient, slid his hand into her bra, cupped her left breast and held it there while he used a stethoscope to listen to her chest.
c) The respondent had no clinical reason for cupping the patient's breast in the manner complained of in (b) above.
d) In the alternative, the respondent failed to inform the patient that he was about to undertake a physical examination and failed to obtain the patient's consent to do so.
Allegation 3
a) In or about 1992 the patient attended the respondent complaining of a burning feeling in her vagina.
b) The respondent asked the patient if she had a boyfriend. The patient replied that she did not and that she was not having a sexual relationship with anybody at that time.
c) The respondent asked the patient to get onto the examination table and to remove the lower half of clothing.
d) Once the patient was on the examination table the respondent separated her labia majora with his fingers and then placed his head approximately 10 centimetres from her genital region. The respondent placed two fingers of his right hand into the patient's vagina and examined the patient.
e) The respondent then stopped the examination. He left his two fingers in the patient's vagina and started asking the patient questions. The respondent placed his left hand on the patient's knee as he spoke. The respondent asked the patient whether she had injured herself and whether or not she masturbated.
f) The respondent then removed his fingers and again separated the patient's labia majora and looked again. The respondent advised the patient that he could not find anything wrong with her.
Issues
11 The Board filed a "statement of issues" with the Tribunal on 25 November 2005. These issues must be revisited in the light of the respondent's denial of any misconduct on his part on any occasion during
(Page 6)
- his treatment of the plaintiff and his denial of many factual assertions by the plaintiff in the course of her evidence.
12 Accordingly, the issues to be determined by the Tribunal are:
Allegation 1
a) Did the respondent examine the patient in the circumstances alleged by the patient on 11 January 1986?
b) Did the respondent examine the patient in the manner alleged on 11 January 1986?
c) If the respondent did examine the patient in the manner alleged by her on that date, was there any clinical reason for the manner in which such examination took place?
d) Depending on the answers to a, b and c, was the respondent's conduct as found by the Tribunal infamous, or in the alternative improper conduct pursuant to s 13(1)(a) of the Act as amended?
e) What sanction, if any, ought to be imposed by the Tribunal pursuant to the provisions of s 13(3) of the Act?
Allegation 2
a) Did the patient attend the respondent on the date, and in the circumstances alleged?
b) Did the respondent examine the patient in the manner alleged?
c) if the respondent did examine the patient on the date and in the manner alleged by the patient, was there any clinical reason for the respondent's failure to obtain the patient's informed consent prior to carrying out a physical examination on the patient;
d) If the respondent did examine the patient on the date and in the manner alleged, was there any clinical reason for the manner of such examination?
e) Depending on the answers to a-d, whether the respondent's conduct as found by the Tribunal is infamous or in the alternative improper conduct pursuant to the Act?
f) What sanction, if any, ought to be imposed by the Tribunal pursuant to the provisions of the Act?
(Page 7)
As to allegation 3
a) Did the patient attend the respondent on the date and in the circumstances alleged?
b) Was there an examination by the respondent of the patient in the manner alleged?
c) If there was such an examination on the date and in the manner alleged by the respondent, was there any clinical reason for the method of such examination?
d) Depending on the answers to a, b and c, whether the respondent's conduct as found by the Tribunal is infamous or in the alternative improper conduct pursuant to the Act?
e) What sanction, if any, ought to be imposed by the Tribunal pursuant to the Act?
The burden of proof and standard of proof
13 It is well accepted that the burden of establishing the allegations and their factual basis is upon the Board.
14 As to the standard of proof the "Briginshaw v Briginshaw approach" was recently followed and applied by Barker J in Medical Board of Western Australia v Bham [2006] WASAT 190 at pages 13-14.
15 In Briginshaw v Briginshaw (1938) 60 CLR 336 at pages 361-362 Dixon J said:
"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfactions if not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an
(Page 8)
- occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency."
- He further stated at page 368:
"…the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose inexact."
Also, at page 350 Rich J said:
"The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion."
The evidence and factual findings thereon
17 Having considered the evidence the Tribunal gave particular consideration to two factual issues – firstly, the lateness of any complaint by the patient, and secondly, the reliability of the respondent's patient notes. These issues were important because both of them affected the reliability of the evidence of the patient and respondent.
18 As to the lateness of any complaint by the patient the following facts were clearly established.
(Page 9)
- 1) The first incident was alleged to having taken place on 11 January 1986. In the time between that and the second incident on 27 May 1991 the patient returned to see the respondent on approximately eight occasions. Almost all of those attendances involved gynaecological problems. No complaint was made to the respondent as to his previous conduct.
2) During the second incident the patient said she "felt instantly uncomfortable". Despite this she returned to see the respondent on approximately nine occasions before late September 1992 when the third incident was alleged to have occurred. Most of these attendances involved gynaecological matters and once again no complaint was made to the respondent or any one else.
3) After the third incident the patient again saw the respondent on eight occasions relating to gynaecological problems without complaint to him.
4) During these various periods the patient saw other medical practitioners including two specialist gynaecologists and no complaint was made to any of them.
5) During this time the patient used the respondent as a general practitioner, seeing him for several non-gynaecological problems, each time voluntarily and without complaint as to the alleged misconduct.
6) During the alleged third incident the patient said she thought that the conduct of the respondent was "inappropriate" – she did not ask him to stop or make any complaint.
7) The time lapse between the first incident (January 1986), the second incident (27 May 1991) and the third incident (late September 1992) and the making of a complaint to the Board was 17 years, 12 and 11 years respectively.
8) In this time there was no complaint to the respondent's mother whom the patient had a close relationship, or, on the evidence, to any other person.
9) At the time of the first alleged incident the plaintiff was 18 years of age and in employment. She was not for example, an immature school girl. She was considerably older and obviously more mature when the other two incidents took place.
10) The patient gave various explanations as to the reason for the delay in complaining. These explanations range from a suggested belief that the complaint might not go in her favour, that she came
- forward in the final place because she had had a daughter by that time, and that she only found out at a very later time when she had children that the method of examination was inappropriate. As to the further 28 or so attendances upon the respondent after 25 July 1990 (when, as the Tribunal found there was a breast examination) the patient said, for example, that she did not know that the respondent had done anything wrong "back in those days" (when she was between 22 and 26 years of age). She agreed that when the alleged incident took place, in September 1992, she knew the respondent had done something wrong because she was uncomfortable. Also, between May 1991 and February 1994 when the patient saw the respondent on many occasions she felt that the cupping of her breast in the manner alleged was wrong, but she did not do anything about it. Finally, she said that many years later when she was lead to believe that the nipple examination in 1986 was inappropriate she sat down and thought about the other things that the respondent did that made her feel uncomfortable, and remembered the three incidents about which she complained.
19 These explanations must be looked at in the light of a number of factors:
• the plaintiff's age at the time of the alleged incidents;
• the fact that she was in employment (save for the time of her pregnancies etc) continuously and had the opportunity to speak to other people at work for example;
• the fact that in 1992 when she was 24 years old and felt "uncomfortable" with the respondent's method of treatment she made no complaint for a further 11 years;
• the availability of a number of other medical practitioners and specialists to complain to; and
• the availability of a mother with whom she said she had a very good relationship to complain to.
20 In the light of these matters, the Tribunal felt that the explanations were inconsistent and unsatisfactory. There was in fact ample opportunity for the plaintiff to complain at a very early stage, and for reasons which the Tribunal does not fully accept this was not done.
(Page 11)
21 The delay in making a complaint to the Board until 2003 by the patient placed her, and the respondent in a difficult position, so far as their memory of events was concerned. The patient, because she was relying upon her memory unassisted by any contemporaneous notes. The respondent, because the nature of his profession involved seeing many patients, many times, over a lengthy period. Even though the respondent had patient notes, the circumstances of the making of them and their contents raised issues which, had the complaints been made much earlier would probably not have arisen and required the respondent to attempt to explain them and to rely upon their credibility.
22 The misgivings felt on the Tribunal's part as to the patient's failure to complain at an earlier stage, caused the Tribunal to have serious concerns as to her reliability as a witness.
23 As to the patient notes kept by the respondent these were the subject of considerable attention, including cross-examination of the respondent. The evidence of the patient, and the submission on her behalf was that the respondent had deliberately left out of the notes details as to the relevant examinations on the dates alleged to cover up his misconduct. The Tribunal found no proper basis for such suggestions. Although the notes were at some times sketchy they were consistent with the examinations as described by the respondent. Further, on some occasions the patient relied upon the accuracy of the patient notes.
24 The Tribunal finds that the notes were a reliable and contemporaneous record of the patient's attendances on the respondent.
25 This finding also, obviously was a factor in the Tribunal's ultimate findings in this matter and supported the Tribunal's general view of the reliability of the respondent as a witness, and the unreliability of the patient's evidence.
Allegation 1
26 The patient's statement was accepted as Exhibit "A" – she confirmed the contents to be true.
27 As to the first incident, the patient could not remember exactly when it was she saw the respondent save that it was her very first appointment with him. Having been shown the respondent's patient notes, she thought that she may have seen him on the date alleged, that is, 11 January 1986. The patient in her statement had said she had seen the respondent for "about a year or a little longer commencing some time in 1989". She in
(Page 12)
- fact saw the respondent for a period of eight years commencing in 1986, these differences were matters of concern to the Tribunal. On 11 January 1986 the patient said she attended the respondent because she thought she had thrush. She was not suffering from any symptoms relating to her breasts she said, nor did she tell the respondent that she had any such symptoms. The respondent instructed her to remove the bottom half of her clothing; he conducted a vaginal examination confirming that she did have thrush, and offered to insert anti-fungal cream with an applicator designed for that purpose.
28 Having obtained her consent the respondent undertook this treatment. The patient said that there was no difficulty with that part of the consultation. Immediately after the insertion of the anti-fungal cream, however, and while she was still naked from the waist down, the patient was asked whether she had ever had a breast examination. She said she had not. The respondent then asked her to remove the top half of her clothing which was comprised of a top and a bra. She was now completely naked and was not offered a sheet to cover herself; she put her shirt and bra over the lower part of her body and the respondent raised the back of the bed and commenced to examine her breasts. He did so by examining each of her breasts separately by moving his hands around the breast whilst pressing gently. He then rolled each of her nipples in the end of his fingers for approximately 20 seconds for each breast. At the time the patient thought the respondent was checking to see whether she had cancer of the nipples and was not concerned about the examination. She had never had a breast examination prior to that time.
29 In cross-examination the plaintiff could not recall any other occasion when the respondent had examined her breasts. Despite this, however, the patient disputed the apparent note of the examination of her breasts recorded on 25 July 1990. She had no recollection of any breast examination on that date, and she confirmed that she made no complaint about the manner of any breast examination on any other occasion by the respondent. Despite these uncertainties, the patient remembered "vividly" what the respondent did on the first occasion, notwithstanding that there was no record of the breast examination on that date in the respondent's notes. She said that the rubbing of her breasts by the respondent was not done by the "flat of fingertips".
30 As to this alleged incident, the respondent said his patient notes were a correct record of his the attendance on the patient on that particular day. Consistent with this, he denied examining the patient's breasts on that date and said that had he done so he would have recorded such an examination
(Page 13)
- – as he had done on 25 July 1990. He said that he only examined the plaintiff's breasts on one occasion that is 25 July 1990, as recorded in his notes. The examination of the patient's breasts was he said, consistent with the other examinations and questions which were noted in the notes for 25 July 1990 including giving the patient a prescription for the contraceptive pill. The respondent said that in relation to this allegation and the others the patient had never complained to him about his method of examination of her breasts or any gynaecological examination. When cross-examined the respondent said he had, with the aid of his notes, some recollection of events 20 years ago although when the complaint was received he did not remember recalling the plaintiff's face. He denied maintaining that he did not remember her because he knew that he had in fact handled her breasts inappropriately and also denied cupping the plaintiff's breasts as alleged to gratify himself. He finally denied that he deliberately left out of his notes any reference to a breast examination in an attempt to cover up what in fact had occurred.
31 The essence of the first allegation is the action of rolling the plaintiff's nipples "for approximately 20 seconds" on each breast, a total time of some 40 seconds. The Tribunal found it difficult to accept that even if misconduct was intended there would be a rolling of nipples for a length of time of 40 seconds and more importantly without some form of enquiry or complaint from the patient. As previously mentioned, at that time she was 18 years of age and in employment – she was not for example a young school girl. As has previously been noted the Tribunal found it difficult to establish any unreliability in the respondent's notes as to that particular event, the notes confirming the respondent's version. The Tribunal, having reviewed the events as to allegation 1 and relying on other conclusions from observations as to the general unreliability of the patient as a witness, is unable to find to the required degree of satisfaction that there was an examination of the plaintiff's breasts on 28 January 1986 or in the manner alleged.
32 At this stage it is important, in the Tribunal's view, to note that the patient was unable to remember how she paid the respondent. This matter was raised in the context of the lack of any corroboration of the patient's evidence in the Tribunal being concerned to ascertain whether the Health Insurance Commission (H.I.C.) records could confirm or otherwise what treatment was given to the patient on a particular occasion. The Board obtained a letter from the H.I.C. (Exhibit "C") which was in the following terms:- "A search of the medical database indicates that (the patient) has had no medical services provided by (the respondent) during the period
(Page 14)
- 1 January 1988 to 3 February 2003 for which a Medicare benefit has been claimed".
33 Bearing in mind the fact that the patient had pathology tests etc and saw other specialists during the relevant period, some further enquiry on the part of the Board may have shed some light on this matter.
34 In any event, the Tribunal found it difficult to accept the patient's uncertainty as to how she paid the respondent's accounts over such a long period of time, particularly when she was working and obviously handling her own financial affairs.
35 In saying this, the Tribunal does not feel "an actual persuasion" that the event occurred as alleged by the plaintiff (See Briginshaw v Briginshaw page 361-362).
36 Even assuming there was some touching of the plaintiff's nipples, Dr William Walker (a general practitioner who is accredited as a general practice obstetrician) (called on behalf of the patient) was of the view that when required, breast examination does involve some touching and feeling of the nipples with some palpitation of the underlying breast tissue with the flat of the fingers. He said, however that "direct nipple stimulation between the fingertips is inappropriate". On the other hand Dr Gary Hastwell (obstetrician gynaecologist) noted that an examination of the nipples for 20 seconds would not be excessive in certain circumstances, for example if there was concern about a possible lump in the plaintiff's chest, one would not necessarily roll nipples between the fingers he said, although he had himself done it that way, he said finally, to examine the plaintiff in the manner alleged without circumstances justifying it would not be appropriate, however. It should be noted that Dr Hastwell has been a specialist in obstetrics and gynaecology since 1975, and is a clinical lecturer at the University of Western Australia.
37 Before making any final determination, however, as to the appropriateness of the method of examination, the Tribunal must be satisfied that the touching occurred on the date, in the circumstances, and in the manner alleged by the patient. In all the circumstances the Tribunal is not so satisfied.
38 Therefore, in relation to the issues as to allegation 1(a) the Tribunal finds that there was an attendance by the patient upon the respondent on 11 January 1986 but, it was related to and involved the matters referred to in the respondent's notes for that date and not in the circumstances alleged by the patient. As to (b) the Tribunal is not prepared to find that the
(Page 15)
- respondent examined the patient in the manner alleged by her on that date. Therefore, it is not necessary for the Tribunal to answer the further three issues (c), (d) and (e).
Allegation 2
39 As to this, the patient said, that on the date alleged she visited the respondent on 21 May 1991 complaining of a cold or chest infection. She was sitting in a chair to the right of the surgery wearing a V neck top when the respondent came from behind her, slid his hand into her bra, cupped her left breast and held it there while he used the stethoscope to listen to her chest. She "felt instantly uncomfortable". The patient's description of the examination in evidence was difficult to follow however it seemed that the respondent was holding the stethoscope in the same hand as that cupping her left breast and it was she said "under her left breast and in the palm of his hand". The patient confirmed in cross-examination that she thought at the time the cupping of the breast was "not right" but decided not to do anything it.
40 The patient was cross-examined as to the date of the allegation and the notes made of attendances in 1991 generally, it being the case that none of these mentioned a breast examination. She thought that the entry on 29 May 1991 referring to "discussed re cholesterol, sore lymph nodes" may in fact be the occasion upon which the breast examination complained of took place. The Tribunal found this difficult to accept and it appeared to the Board to be an attempt by the patient to pick on a date which might assist her case. Further, there was no entry during 1991 for "cold or chest infection". Notwithstanding this the patient insisted that she had seen the respondent for that reason on the day of the alleged incident.
41 As to this allegation, the respondent denied seeing the patient in relation to a cold or chest infection on 27 May 1991 and said that had he done so his notes would have recorded that fact. He denied cupping the plaintiff's breast as alleged, and noted that if there were sore lymph nodes in the plaintiff he would not have necessarily have examined her chest. In particular, when cross-examined the respondent said that if he had examined the patient's chest that day he would have noted whether the chest was "clear" or "not clear" – as was his normal method. He did agree, however, that the medication noted as being prescribed that day (Vibramycin) could have been given for a chest infection, however, it is consistent with an infection that gave rise also to the lymph node problem.
(Page 16)
42 As to this allegation therefore, a careful examination of the evidence as to the incident with the background of an assertion by the patient that the event occurred on the date alleged, and a denial by the respondent consistent with the absence of any relevant notes in his patient notes, and in the light of the circumstances of the late complaint, has led the Tribunal to conclude that it cannot be satisfied that the event took place on the date or in the circumstances alleged.
43 The Tribunal notes that even if it was satisfied that there was some cupping of the plaintiff's breasts by the respondent, Dr Walker noted that if a doctor were to hold the stethoscope in the same hand and touch the breast of a patient in order to dampen the sound of a stethoscope this may appear to the patient to be "cupping" of the breast; touching the breast in these circumstances was not inappropriate conduct he said. Dr Hastwell advised that "cupping" of a breast is sometimes necessary to properly examine a woman's chest; and further that such examination could take place from behind the patient.
44 Turning to the particulars of the allegation, the Tribunal is unable to find that the patient attended the respondent on the date and in the circumstances alleged (Issue (a)). Further the Tribunal is unable to find that the respondent examined the patient in the manner alleged by the patient on that particular day (Issue (b)). Because of these matters it is not necessary for the Tribunal to deal with allegations (c) to (f), although the respondent did say that on any necessary occasion he sought the patient's consent for carrying a physical examination.
Allegation 3
45 This was alleged to have occurred "in late September 1992". The patient said that she again visited the respondent because she had a burning feeling in her vagina, which did not feel like a bladder infection. At the attendance the respondent asked her if she had a boyfriend; she told him she did not have a boyfriend and she was not having sex with anyone at that time – it is obvious that the patient had been sexually active for some time prior to that date. The respondent asked her to get onto the examination table to remove the bottom half of her clothing – she was not offered a sheet to cover herself. Once she was on the examination table, the respondent pried her vagina open with his fingers and had his head very close to her vagina, – she estimated the distance to have been about 10 centimetres – she was concerned about his proximity to her. He seemed "to take an awfully long time" to examine her, but she conceded that she might have come to that conclusion that she was uncomfortable.
(Page 17)
- She was told by the respondent that he could not see anything that might be causing the burning sensation. The respondent then commenced a vaginal examination by inserting two of his fingers of his right hand into her vagina. He then stopped the examination but left his two fingers inside her, and asked her several questions. He had his left hand resting on her knee, and was tapping on that knee as he spoke. She thought that the two fingers of his right hand remained inside of her for a period of some minutes. She thought that it was "really inappropriate" that that took place, and "felt really bad and just wanted him to stop". She made no comment to him as to these matters then, or on any other subsequent examination. He asked her questions such as whether she had injured herself, and she "believed" that he also asked her whether she masturbated a lot. He then removed his fingers, and pried her open again and looked again, saying he could not find anything wrong with her. He told her that if the pain persisted she should come back and she did not receive any cream or prescription on that occasion.
46 She agreed that, notwithstanding her concern about the method of examination on this occasion, she went back to see the respondent again, on this occasion for a referral to a specialist as she needed a laparoscopy which demonstrated in due course that she had endometriosis. As to the last matter, it is clear from the evidence that the patient returned to see the respondent on a number of occasions, for a number of reasons after that, including non-gynaecological matters. The patient asked her mother to attend on the subsequent attendance for the referral, but did not tell her about the three incidents of alleged misconduct. It appears that the main reason for her mother's attendance with her, was the mother's concern about the condition of endometriosis from which apparently the plaintiff had suffered for some years. As to other subsequent attendances, the plaintiff was unable to recall the number of them or the reasons for them.
47 The patient was cross-examined at length relating to the dates of the alleged third incident. She agreed in the end that it was sometime between 29 August 1992 and January 1993. As to 29 August 1992 it is clear, and the plaintiff accepted, that it was in circumstances in which her then boyfriend had alleged that she had given him a sexually transmitted disease, and she wanted a letter from the respondent confirming that she had not in fact done this. She was given a detailed examination by the respondent including a vaginal examination. She had no complaint then, or after, about the respondent's method of examination and agreed that his notes of the examination and attendance were in fact correct.
(Page 18)
48 The patient was unable to be precise as to what date in September 1992 the third incident occurred. She had gone there she said, because the "outside" of her vagina was burning, and although there was no record in late September 1992 of her seeing the respondent in this respect she suggested that the respondent had deliberately left this out to cover up his misconduct – a matter which, as mentioned before the Tribunal, is not prepared to accept. The notes of the respondent are important at this stage, because on 13 August 1992 there was a pap smear taken from the patient by the respondent. On 29 August 1992, there was a full vaginal examination in the circumstances noted above at the request of the patient. On that occasion also tests were ordered in relation to the allegation by the boyfriend relating to the sexually transmitted disease. On 1 September 1992 and 5 September 1992 the patient saw the respondent on each occasion to discuss the results of the tests and to be reassured as to the fact that she did not have a sexually transmitted disease. The Tribunal found it difficult to understand how, in these circumstances, any further vaginal examination would have been given to the patient in about September 1992 as suggested by her.
49 In relation to this allegation, the respondent confirmed his notes of attendances during 1992, and remembered giving the patient a letter regarding the sexually transmitted disease. He denied giving the patient a vaginal examination on any occasion in 1992, other than that on 29 August. He described his method of vaginal examination, including the necessity on some occasions to leave his fingers in the patient's vagina if the patient had a "spasm". He said that on 25 July 1990, he examined the patient's vagina for the first time, and she may then have had such a spasm. This of course, is an occasion on which it is not alleged by the plaintiff that there was any misconduct. In relation to this matter, the respondent was cross-examined as to his statement (Exhibit "F"), as to his lack of mention of the plaintiff in relation to that attendance having a "spasm". It was noted, however, that such a mention was made on the following page by him, although in more general terms. The respondent could not recall the patient having any spasm in the course of an examination after July 1990.
50 On reviewing the evidence in relation to the third allegation, the Tribunal thought that the evidence of the plaintiff was so unsatisfactory, that the Tribunal was unable to accept that any such incident took place in late September as alleged. The plaintiff's evidence, on "careful scrutiny" by the Tribunal was found to be imprecise, loose and inexact – matters which were commented upon by Dixon J in Briginshaw v Briginshawpage 368.
(Page 19)
51 Once again, in relation to the third allegation, the Tribunal notes that even if there was an examination of the plaintiff by the respondent at some time in the manner alleged, the evidence of both Dr Walker and Dr Hastwell, does not necessarily suggest that the mode of examination was not acceptable, and according to clinical standard and methods. Dr Hastwell for example said that:
"The manner of examination of the plaintiff by the respondent did not appear to me to be unusual or abnormal."
52 Bearing in mind the Tribunal's view as to the unreliability of the plaintiff, and the failure of the plaintiff to establish similar unreliability on the part of the respondent, the Tribunal is unable to find that the third examination took place on the date or in the circumstances alleged (Issue (a)). It is also unable to find the examination took place in the manner described by the patient (Issue (b)). It is therefore not necessary for the Tribunal to deal with (Issues (c), (d) and (e)).
53 It is thus the case that the Tribunal dismisses each of the allegations against the respondent, and the complaint generally.
54 The Tribunal will hear the parties (after they have had the opportunity of reading these Reasons) on the question of costs.
I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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HON R VIOL, SENIOR SESSIONAL MEMBER
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