Naim v Medical Board of Australia
[2013] VSCA 205
•29 August 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0077
| DR HAISSAM NAIM | Applicant |
| V | |
| MEDICAL BOARD OF AUSTRALIA | Respondent |
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| JUDGES | HANSEN and TATE JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 9 August 2013 |
| DATE OF JUDGMENT | 29 August 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 205 |
| JUDGMENT APPEALED FROM | Dr Haissam Naim v Medical Board of Australia |
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ADMINISTRATIVE LAW – Victorian Civil & Administrative Tribunal (VCAT) – Appeal – Leave to appeal - Question of law – Whether findings of fact - Victorian Civil and Administrative Tribunal Act 1998, s 148(1)(a).
MEDICAL PRACTITIONERS – Complaint – Medical Board – Matters referred to VCAT under Health Practitioner Regulation National Law (Victoria) Act2009 of professional misconduct and unprofessional conduct – Procedural fairness – Whether findings open.
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| Appearances: | Counsel | Solicitors |
| For the Applicant | Mr M A Tovey QC with Mr C J Winneke | Melasecca Kelly & Zayler |
| For the Respondent | Dr S P Donaghue SC with Ms R Ellyard | Minter Ellison |
HANSEN JA
TATE JA:
Dr Haissam Naim seeks leave to appeal from an order of the Victorian Civil and Administrative Tribunal (VCAT or the Tribunal) made on 5 June 2013,[1] whereby Dr Naim (the applicant) was reprimanded, his registration as a medical practitioner was cancelled with effect from 15 June 2013 and he was disqualified from applying for registration for 12 months from that date. On 12 June 2013, VCAT ordered that the operation of the Tribunal’s determinations be stayed pending the hearing and determination of the application for leave to appeal.
[1]In proceeding Reference No. B198/2012.
The respondent, who was the applicant at VCAT, is the Medical Board of Australia (the Board).
The Tribunal which heard the matter was constituted by a Vice President, his Honour Judge Macnamara (who was then also Acting President of the Tribunal) and two medical members, Mr B Collopy and Dr A Reddy. Pursuant to s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the appeal is to this Court, but by leave and only on a question of law.
With the authority of a determination of the President of the Court of Appeal, pursuant to s 11(1A) of the Supreme Court Act 1986 (Vic), we heard the application on the basis that if appropriate we would determine the appeal.
The proceeding arose out of a complaint made to the Board in relation to occurrences at a consultation had by the complainant with the applicant on 8 September 2010. It is convenient to refer to the complainant as Ms L, as she is referred to in the Tribunal’s reasons. She first complained to the Board by email on 13 September 2010.
In essence the complaint was that the applicant conducted a medical examination in which he inserted his fingers in her vagina in circumstances where such examination was neither clinically indicated nor necessary.
The complaint was investigated by the Australian Health Professions Registration Authority (AHPRA), an officer of which interviewed Ms L and prepared a narrative statement of events.
In the course of the investigation the applicant, by his solicitors, responded to AHPRA by letter dated 7 December 2010. The letter set out the applicant’s narrative which was materially different from that given by Ms L. In particular, it was stated that the applicant ‘denies that he conducted an internal examination on [Ms L] on 8 September 2010 or at all’. The letter provided a detailed description of the applicant’s interactions with Ms L including printouts of clinical records.[2]
[2]These matters are recorded in the Tribunal’s reasons at [20] (‘Reasons’).
Prior to the examination on 8 September, Ms L saw the applicant on the following occasions. She first met him on 28 August 2010 when the applicant was on weekend duty at the Kilmore and District Hospital Emergency Department. Ms L attended, having been advised to do so by the Nurse on Call service when she ‘experienced facial spasms, like I had never experienced before’. Her sister-in-law accompanied her. Ms L was discharged at 5.30pm.
On 30 August 2010 Ms L attended at the Wallan Family Practice where the applicant worked, and she saw him. Ms L was a regular patient of another general practitioner there, Dr Greculescu.
Ms L returned on 31 August 2010 to have a blood sample taken for analysis.
Ms L attended again on 1 September 2010 when, by late afternoon when the consultation with the applicant commenced, most of the blood analysis were available. Earlier that day Ms L had attended her dentist being concerned that her wisdom tooth might be implicated in her facial problems. The dentist referred her for an x-ray which was conducted on 7 September.
On 8 September Ms L saw the applicant again; she wanted him to examine the x-ray of her teeth to determine whether her wisdom tooth could be causing her facial spasms. It was at this consultation that, according to Ms L, the events occurred which gave rise to her complaint.
Pursuant to s 193 of the Health Practitioner Regulation National Law (Victoria) Act 2009 (Vic), (the Health Practitioner Act), the Board referred the following matters concerning the conduct of the applicant to VCAT for determination.
1.On or about 8 September 2010, Dr Naim engaged in professional misconduct as defined in paragraph (a) of the definition of “professional misconduct” in section 5 of the National Law and/or unprofessional conduct as defined in paragraph (d) of the definition of “unprofessional conduct” in section 5 of the National Law, in that during his consultation with his patient, Ms L, Dr Naim conducted an external pelvic/vaginal examination of Ms L in circumstances where the examination was not clinically indicated and/or necessary.
Particulars
The particulars include, but are not limited to:
(a)Ms L consulted with Dr Naim on 8 September 2010 for the purpose of ascertaining whether her wisdom teeth were causing her facial spasms.
2.On or about 8 September 2010, Dr Naim engaged in professional misconduct as defined in paragraph (a) of the definition of “professional misconduct” in section 5 of the National Law and/or unprofessional conduct as defined in section 5 of the National Law, in that during his consultation with Ms L, Dr Naim conducted the consultation in a manner that was inappropriate and/or conducted the consultation in an inappropriately sexual manner.
Particulars
The particulars include, but are not limited to:
(a)Dr Naim did not offer Ms L a privacy gown and/or privacy aid;
(b)Dr Naim did not close the curtain around the examination couch while Ms L was undressing;
(c)Dr Naim stood next to Ms L, who was lying on the examination couch, while she undressed; and/or
(d)Dr Naim assisted Ms L to undress.
3.On or about 8 September 2010, Dr Naim engaged in professional misconduct as defined in paragraph (a) of the definition of “professional misconduct” in section 5 of the National Law and/or unprofessional conduct as defined in paragraph (d) of the definition of “unprofessional conduct” in section 5 of the National Law, in that during the internal pelvic/vaginal examination he conducted of Ms L, Dr Naim digitally examined Ms L in the lateral position, in circumstances where such examination in the lateral position was not clinically indicated and/or necessary.
4.On or about 8 September 2010, Dr Naim engaged in professional misconduct as defined in paragraph (a) of the definition of “professional misconduct” in section 5 of the National Law and/or unprofessional conduct as defined in section 5 of the National Law and/or unsatisfactory professional performance as defined in section 5 of the National Law, in that, during his consultation with Ms L, Dr Naim failed to obtain informed consent from Ms L to perform the internal pelvic/vaginal examination.
Particulars
The particulars include, but are not limited to:
(a)prior to the examination, Dr Naim failed to explain to Ms L the relevance of conducting the internal pelvic/vaginal examination in circumstances where Ms L had told Dr Naim that she had had a recent ultrasound which confirmed that she did not have cysts on her ovaries;
(b)Dr Naim failed to explain to Ms L the nature of the internal pelvic/vaginal examination; and/or
(c)Dr Naim continued to conduct the internal pelvic/vaginal examination in circumstances where Ms L indicated to him that she was in a lot of pain during the examination.
5.On or about 8 September 2010, Dr Naim engaged in unprofessional conduct as defined in section 5 of the National Law and/or unsatisfactory professional performance as defined in section 5 of the National Law, in that, during his consultation with Ms L, Dr Naim failed to communicate or adequately communicate to Ms L the outcome of his examinations.
Particulars
The particulars include, but are not limited to:
(a)Dr Naim failed to discuss or inadequately discussed with Ms L his observations and/or findings of the external examination he performed of Ms L’s stomach and/or pelvic area;
(b)Dr Naim failed to discuss or inadequately discussed with Ms L his observations and/or findings of the internal pelvic/vaginal examination that he conducted of Ms L; and/or
(c)at the end of the consultation, Dr Naim provided Ms L with a referral for a pelvic ultrasound but did not tell Ms L the reason for the referral.
6.On or about 8 September 2010, Dr Naim engaged in unsatisfactory professional performance as defined within section 5 of the National Law, in that he failed to make accurate and contemporaneous notes of his consultation with Ms L.
Particulars
The particulars include, but are not limited to:
(a)having performed an external examination of Ms L’s stomach and/or pelvic area, Dr Naim did not record in Ms L’s clinical notes that he had performed these examinations;
(b)having internally examined Ms L’s pelvic/vaginal area, Dr Naim did not record in Ms L’s clinical notes that he had performed these examinations;
(c)Dr Naim failed to record any findings or observations from his external examination of Ms L’s stomach and/or pelvic area; and/or
(d)Dr Naim failed to record any findings or observations from his internal examination of Ms L’s pelvic/vaginal area.
The hearing of the matters ran over five days. In addition to Ms L and the applicant, evidence was given by the following: Ms L’s sister-in-law; Dr Greculescu; Dr Robert Norman Murdoch, a general practitioner who gave opinion evidence; two doctors, one a psychiatrist and the other a general practitioner, who gave evidence of the applicant’s character; and the practice manager at the Wallan Family Practice.
In the Tribunal’s reasons Ms L’s account of the consultation on 8 September 2010 is set out as follows:
10Ms L says that she offered the x-ray of her teeth to the doctor who inspected it and put it up on a viewer. Next, she said, he asked her if she had ‘pains in my stomach and irregular periods’. She said she thought these were unusual questions in the circumstances. She then said she told the doctor that she had haemorrhaged approximately 10 days after the birth of her middle child C3, now aged three. She told him that she also had an irregular period after the birth of her youngest child C1 now aged two. She added, according to her account, that Dr Greculescu had arranged an ultrasound after this event ‘which showed that everything was fine’.
11According to Ms L, the doctor said he thought she might have a cyst on her ovary. She said she told him that the ultrasound had been done only one month ago and this excluded any cyst. She said she suggested that the doctor call Dr Greculescu to confirm this. Dr Naim according to her, ‘told me that he had to do the test himself’. The doctor then asked Ms L to lie on the examination bed ‘so that he could feel my stomach’. She said that the doctor pulled up her top to the ‘bra line’. She said she did not recall if the doctor had asked her permission. She said he pushed hard on her stomach and she found it very painful and told him that it hurt. The doctor, according to Ms L, said that he thought she had a cyst on her ovary. Again, according to Ms L, she said she did not believe there was a cyst and enquiries should be made of Dr Greculescu.
12Next, according to Ms L, the doctor said that she needed an internal examination. She said she waited to undress but the doctor stood by next to her. She said ‘I remember that a few minutes passed and I started to become very nervous’. She said that the doctor did not pull the curtain shut around the examination bed. Next, she said, she undid her jeans button and zip and was feeling uncomfortable and embarrassed, she carried out this operation slowly. She said the doctor then began to pull the right side of her jeans down to get them off.
13Ms L in her evidence to the Tribunal was uncertain as to exactly where her jeans and presumably her underwear ended up. She thought at one stage that one leg might have been right out of them.
14Then she said the doctor inserted his fingers in her vagina gloved but she said the examination was ‘excruciatingly painful and I was nearly in tears’. She said she told the doctor she was in pain ‘but he continued’. After a few minutes according to Ms L, while he still had his fingers inserted, the doctor asked her ‘to roll on my side’. She rolled on her left side with her back facing him. In her viva voce evidence to the Tribunal she said that when she complained of pain the doctor suggested she roll over, presumably to alleviate the pain.
15According to her witness statement she said ‘after Dr Naim had finished the internal examination’, he showed me his gloved hand and said words to the effect of ‘look at this discharge. The colour looks alright, what soap do you use?’ She said she was taken aback and made no answer.
16The consultation concluded with the doctor giving Ms L a referral for an ultrasound. She said she did not have that ultrasound carried out. She remarked that after the consultation she had ‘blood on [her] underwear’. She said she had a lot of pain for two or three days and it was ‘a burning pain and was more painful than the pain I felt after I gave birth to my children’.
The applicant’s account was stated as follows:
21Dr Naim gave evidence before the Tribunal and adopted as correct the response which his solicitors had made to AHPRA in their letter of 7 December 2010.
22The doctor said he had no independent recollection of any of the consultations.
23He conceded in light of the records from the Kilmore and District Hospital that he had had a consultation with Ms L at that hospital on Saturday 28 August 2010 before any of the consultations at the Wallan Family Practice. He denied that he had suggested in that hospital consultation that Ms L attend him at the Wallan Family Practice. It was his practice, he said, if any follow-ups were required in these circumstances to suggest that the patient attend his or her regular general practitioner.
24The clinical records of Wallan Family Practice showed no record of an internal examination having been conducted on Ms L on 8 September or any other day. According to the doctor, his notes, whilst relatively cryptic, are comprehensive. He was adamant that the absence of any record of an internal examination indicated that none had been conducted. According to the solicitor’s response, the first consultation with Ms L at Wallan Family Practice was on 30 August 2010 ‘when she presented with sinus pain’. The computer record produced by the solicitor shows the following under the heading HS which the doctor said was an abbreviation for ‘history’:
Sore sinus, some headaches, blocked nose, no fever, o/e afberoile [a misprint for afebrile) heard dual hs, chest clear abd soft andot tenderer [which should read abdomen soft and not tender], pain over sinuses.
The record indicated a diagnosis of sinusitis and the following: ‘advised Panadol prn [that is as required] incarese [sic increase] fluids, rest’. The record showed that an antibiotic Moxiclav Duo Forte tablets (875mg/125mg) had been prescribed and a battery of blood tests had been ordered with the comment ‘full blood examination [check up]’. The blood pressure ‘sitting’ was recorded as 120/88. The solicitor’s letter described the doctor as having carried out a general examination and as having ordered ‘some screening tests’. The solicitors commented:
The screening tests, however, were not related to the symptoms with which she presented but as his notes indicate he did those tests by way of general check up. As he is a GP Registrar, Dr Naim is encouraged by his supervisor to be very thorough with examinations that he performs.
This was why, they said, that the presentation by Ms L of painful sinuses the doctor conducted ‘an extensive examination including checking her heart, her chest, her abdomen, her sinuses and taking her temperature’.
25The solicitors refer to Ms L returning for a further consultation with the doctor ‘the next day’. This appears to be an error, the practice’s computer record shows the next attendance on 1 September, that is, two days later, there being 31 days in August. They said that the complaint on this day was toothache with the patient seeking pain relief. They said:
Again, consistent with his training, Dr Naim conducted a general examination, taking her temperature, checking her ear, nose throat, chest, abdomen and her mouth. He observed that there was dental decay in her mouth, and advised her to see a dentist for follow up. Dr Naim also wrote a script for Panadeine Forte for pain relief.
26As to the consultation on 8 September 2010, the history as recorded in the computer record was ‘to renew script, some sinus pain, some lif pain [viz. left iliac fossa area pain]’. The record noted that there was no fever and that Ms L was ‘about to see the dentist for her teeth’. She was found to be afebrile with no abnormality in ear, nose and throat; a clear chest but some tenderness to lif area. The computer records that the doctor advised ‘Panadol prn incarese [sic] fluids, healthy diet’. A nasal spray appropriate for the treatment of sinus pain was prescribed; blood pressure sitting was shown at 120/87 and a pelvic ultrasound was ordered by way of aradiology requisition. The comment on the requisition was ‘LIF pain for couple of weeks; no vomiting or diarrhoea; regular period’.
In concluding on the allegations, the Tribunal commenced by noting that only Ms L and the applicant were present in the room when the alleged inappropriate examination occurred on 8 September 2010. The Tribunal then made observations and findings about them as witnesses. Ms L was accepted as a reliable witness.[3] In contrast, the applicant presented poorly in the witness box. As to that, the Tribunal found that while linguistic difficulty to some degree impaired his presentation as a witness, there were ‘more fundamental matters in play’.[4] The Tribunal continued:
61As will appear below we found his evidence in a number of respects implausible. He was prepared, whilst claiming to have no independent recollection of the relevant events and to be relying entirely on his notes, to make dogmatic assertions as to the occurrence or non-occurrence of events. The notes that he relied on were at best cryptic.
[3]Reasons [59].
[4]Reasons [60].
The Tribunal then referred to the evidence of the two character witnesses ‘who were supportive of his good character and integrity’.[5] However, and for reasons stated, the Tribunal ‘felt unable to place too much reliance on this character evidence because it came from personal friends and in at least one respect was lacking in a proper basis’.[6]
[5]Reasons [62].
[6]Reasons [62].
The Tribunal then considered, and made findings as to, each occasion that Ms L consulted the applicant. In the course of this, some adverse findings were made concerning the applicant in respect of the consultations on 28 August 2010[7] and 30 August 2010.[8]
[7]Reasons [67] – [70].
[8]Reasons [71].
Then, following reference to the consultation on 1 September 2010, the Tribunal proceeded to consider the consultation on 8 September 2010.[9] In doing so the Tribunal considered the matters advanced by the parties as to the version of events to be accepted. The Tribunal said:
[9]Reasons [77]-[85].
77The records of Wallan Family Practice show that the purpose of the 8 September 2010 consultation was threefold, viz:
§To renew script.
§Some sinus pain.
§Some LIF pain.
A script for Nasonex Aqueous Nasal Spray was written. Presumably, this is the script which required renewal. On this occasion the notes record ‘some tenderness to LIF area’. The Medicare record shows this as a long consultation, viz as having occupied 20 to 40 minutes, yet what is recorded in the practice notes indicates no more elaborate an examination than was carried out at the earlier consultations on 30 August 2010 and 1 September 2010 which were billed to Medicare as being for a period not exceeding 20 minutes.
78Dr Naim issued a requisition for a pelvic ultrasound with the notation ‘LIF pain for a couple of weeks; no vomiting or diarrhoea; regular period’. This notation is difficult to fathom given that on 30 August 2010 there is no record of abdominal pain and 1 September 2010 he recorded that there were no complaints other than toothache, and on both dates the recorded findings were of no abdominal tenderness. There was no satisfactory explanation offered by the doctor for this notation on the requisition form in light of the findings which he recorded at two previous consultations. The Board, as we understand its case, invites us to find that the reference by the doctor to ovarian cysts and the suggestion of LIF pain persisting for a fortnight was merely to provide some plausible explanation for the ordering of a pelvic ultrasound. The ultrasound was ordered, as we understand the Board’s case, as a ‘cover’ to provide some apparent justification for the inappropriate internal examination.
79Whilst we have found Dr Naim’s account more reliable than Ms L’s in some minor respects, for instance, as to what occurred on 30 August 2010, we have found it unreliable on a number of other more important aspects such as the circumstances that led to Ms L’s attendance at the Wallan Family Practice in the first place and the matters of which she complained during her attendance at the Kilmore and District Hospital on 28 August 2010. We have found her to be a generally more credible witness with the credibility of her allegation as to the inappropriate internal examination buttressed in accordance with Section 66 of the Evidence Act 2008 by her early complaint as to the inappropriateness of the internal examination. Shortly after the consultation on 8 September 2010 she made complaint as to an inappropriate internal examination to her sister-in-law Ms [N] and then in a detailed statement on 10 September 2010 to Doctors Greculescu and Griffiths. She then made a written complaint to the Board. These complaints are generally consistent with one another and consistent with the evidence which she gave to us. There are certain divergences, for instance, Dr Greculescu records her as describing her back as having been palpated in the course of the consultation and her evidence is that this did not occur. Again, as Mr Cash noted, the circumstances in which she said she came to turn on her left side are described in slightly divergent ways. In some accounts the turn is affected simply at the request of the doctor, in others it is made because of pain with a suggestion from the doctor that the turn to the left would alleviate it.
80In our view, these divergences are not material. In the case of the back palpation it may simply have been a misunderstanding by Dr Greculescu of what she was being told. The distinction between the doctor requesting a turn to the left side or the doctor suggesting a turn to the left side in response to a complaint of pain is a relatively subtle one in any event. Moreover, whilst major divergences in a narrative will tend to discredit allegations, if everything is ‘too pat’ and formulated in exactly the same manner every time it may suggest rehearsal or fabrication. Human experience tells us that it is difficult for even the most clearheaded to have an absolutely exact recall of events.
81We accept the submission made by Ms Ellyard that Ms L’s inability to describe with certainty where her right leg was during the course of the internal examination is indicative, not so much of a faulty recollection or fabrication, as the mere fact that the penetration by the doctor was the matter of which Ms L was overwhelmingly aware and she was simply not considering incidental matters such as her precise posture or the whereabouts of her right leg. Likewise, some uncertainty in Ms L’s account as to the exact series of events leading to the doctor’s drawing down the side of Ms L’s jeans is not so material as to affect her credibility.
82Dr Naim relied on evidence from Ms Holland who was at the material time the practice manager of the Wallan Family Practice. She was amongst those providing reception services at the clinic on 8 September 2010 and the practice’s records show that it was she who processed Ms L’s Medicare slip following her consultation with Dr Naim. Ms Holland said that she believed:
there was nothing unusual or noteworthy about that interaction and there was nothing unusual or noteworthy about (Ms L’s) demeanour at that time. I completed a course in conflict and litigation minimisation which is intended to prevent patient grievances from going undetected and therefore unaddressed.
83She said had there been anything unusual in Ms L’s demeanour she would have noted and remembered it. As against this, Ms L did not in her witness statement or in evidence before us, suggest that she had made any sort of scene at the Wallan Family Practice. She said merely that she refrained from running a number of errands which she had planned to undertake and went straight to her father’s house where she met Ms N and made a complaint to her as to what had happened. In her evidence before the Tribunal Ms L complained of difficulty in walking because of pain following the internal examination. Ms Holland told us that she would have noticed any abnormality in gait of a patient emerging from a consultation. Difficulty in walking may be exhibited by an abnormal gait but it may also arise simply from pain and discomfort felt inwardly but not outwardly demonstrated. Since the allegations against Dr Naim do not include as part of their narrative any sort of ‘scene’ created outside the consulting room at the Wallan Family Practice, the fact that Ms Holland observed no such thing at the time nor anything particular about the demeanour of Ms L is not in our view ultimately significant.
84We are dealing here with direct eyewitness testimony. It is not in our view ‘inexact’ merely because of some debate about detail. It is certainly not an indirect inference. We are conscious of the seriousness of the allegation which is made. What is alleged here would, if true, constitute a criminal offence. Again, we give due weight to the presumption of innocence and the general unlikelihood of a professional man of good character and repute engaging in such outrageous conduct. Once a clinical purpose for an internal examination of this sort is excluded, the only other reason for which it could be carried out would be the sexual gratification of the practitioner.
85Conscious of all these matters we are satisfied as to the correctness in material aspects of Ms L’s account of the consultation on 8 September 2010. It follows that in broad terms we accept the case made against the Doctor by the Board.
Having so found, the Tribunal then concluded upon the ‘charges’.[10]
[10]Strictly speaking, they are matters referred, being allegations concerning specified conduct.
The first charge
After saying that this was the ‘first and major charge’ of professional misconduct,[11] the Tribunal noted that there was no argument ‘as to the application to this matter of the definition’ of unprofessional conduct within the definition of ‘professional misconduct’.[12] That definition, contained in s 5 of the Health Practitioner Act, relevantly provides that:
professional misconduct, of a registered health practitioner, includes –
(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;
[11]Reasons [86].
[12]Reasons [87].
The Tribunal continued:
87… Dr Naim denies that the events alleged against him occurred. We did not understand him to deny that, if proven, the conduct of an internal examination of a female patient for no clinical purpose would not fall within the definition. In the absence of a clinical purpose for the examination, the only available inference is that it was conducted for the sexual gratification of the practitioner. Mr Cash did not challenge the opinion expressed by Dr Murdoch on behalf of the Board that such conduct would be ‘a very wide departure from the standards reasonably expected from a medical practitioner’. We should record that in our view such conduct would merit the sternest condemnation from Dr Naim’s professional colleagues in good standing. The first charge is made out.
The second charge
The Tribunal noted Dr Murdoch’s opinion that the stated circumstances constituted a wide departure from the standards reasonably expected from a medical practitioner. The Tribunal found that while this conduct was less serious than the conduct of the inappropriate examination, it nevertheless fell within paragraph (a) of the definition of professional misconduct.[13]
[13]Reasons [88].
The third, fifth and sixth charges
For reasons stated, the Tribunal made no finding against the applicant on these charges.[14]
[14]Reasons [89]-[90], [94] and [95].
The fourth charge
The Tribunal accepted the opinion of Dr Murdoch that the failure to obtain Ms L’s informed consent was a very wide departure from the standard reasonably expected from a medical practitioner. That, combined with the effect of Ms L’s allegations that her objections to the procedure were effectively brushed aside, constituted an act of professional misconduct.
As mentioned, the applicant is required to pass two hurdles, namely the requirement that there be a question of law and that it is appropriate to grant leave to appeal. Of course the decision in this case was final, and not interlocutory, and thus the considerations on the leave aspect are not the same as those that apply on an application for leave to appeal an interlocutory decision. The approach to be taken on an application for leave under s 148(1) was stated by Phillips JA (Tadgell and Batt JJA agreeing) in Secretary to the Department of Premier and Cabinet v Hulls.[15] Phillips JA summarised the approach as follows:
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset, it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines. When leave is sought to appeal under s.148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.[16]
[15][1999] 3 VR 331, 335-337 [8]-[16].
[16]Ibid [16].
The approach stated by Phillips JA was conveniently summarised by Warren CJ (Chernov JA and Bell AJA agreeing) in Myers v Medical Practitioners’ Board viz:[17]
[17](2007) 18 VR 48, 55-56 [28].
§whether leave is granted or not must always depend upon the justice of the particular case;
§if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal’s succeeding or failing;
§the applicant need not establish an error below — that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
§although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
§once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
§where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings. (Citations omitted.)
The applicant submits that the following questions of law are raised on the appeal, namely:
1.Is the finding of the Tribunal that the vaginal examination was conducted for the sexual gratification of the medical practitioner vitiated by a denial of procedural fairness?
2.Did the Tribunal misconstrue the allegations made by the respondent in the first charge against the applicant?
3.Are the findings of the Tribunal that:
(i)the only available inference is that it (the vaginal examination) was conducted for the sexual gratification of the medical practitioner;
(ii)the vaginal examination was carried out without informed consent;
findings that no reasonable tribunal could have reached?
4.Are the findings of the Tribunal vitiated by a failure to provide an intelligible path of reasoning?
5.Did the Tribunal fail to take into consideration relevant evidence?
The applicant’s amended proposed notice of appeal contained one further question but it was not pressed.
These questions were sought to be established by way of five grounds set out in the amended proposed notice of appeal.
At this point it is convenient to note the following matters:
1.The applicant denied that the alleged internal examination occurred.
2.In cross‑examination the applicant accepted that there was no medical basis for him to have conducted the examination. He said:
And there was absolutely no medical basis for you to have conducted the examination at all? --- Yes. We agree that there’s no indication. That’s why I didn’t do one.[18]
[18]Transcript 296.
3.The applicant advanced no clinical purpose for the examination (his case being that it did not occur).
4.In these circumstances, as stated by counsel for the Board in closing submissions, the dispute was whether the internal examination occurred at all.[19]
[19]Transcript 361.
5.In evidence-in-chief and cross‑examination, the applicant was asked whether he conducted the examination for his own improper purpose, which he denied. In evidence-in-chief:
… the allegations in this case are that you did various things but the main one is that you inserted your fingers into her vagina when you shouldn’t have. We accept that and we understand that but that’s really the substance of Allegation No.1. Allegation No.2 is that you conducted the consultation in an inappropriate manner; an inappropriate sexual manner. Did you intend to derive any sexual gratification, enjoyment out of what you did? --- No, no, not at all.[20]
[20]Transcript 242.
In cross‑examination:
And any such examination conducted by you was really for your own purposes, and not for any medical purpose for the patient? --- Not under any circumstances that I would do an examination on a patient which is not really medically indicated.[21]
[21]Transcript 296.
…
And I suggest that on the one occasion when she was present alone in your consulting room rather than having her children with her, you took advantage of her by conducting an internal examination that had no medical basis and that was conducted for entirely inappropriate purposes? --- That’s not right. I wouldn’t do any examination on a patient if it’s not indicated and before I do I explain to the patient what’s the indication and get consent from them and make sure that everything doing according to our standard of practice as a GP.[22]
[22]Transcript 299.
6.Doctor Murdoch opined, inter alia, that in the circumstances described in Ms L’s statement, ‘there is no good clinical indication for Dr Naim to conduct an internal pelvic examination and/or internal vaginal examination on [Ms L].’ He further opined that such conduct constituted a very wide departure from the standards of a medical practitioner.[23]
7.In the course of the final submissions of the Board’s counsel when dealing with the third charge, the Acting President said (descriptively but without making findings):
We start off with the proposition that there has been an inappropriate internal examination conducted, conducted for no proper clinical purpose and thereby by inference for some nefarious and probably sexual purpose.[24]
8.The applicant’s counsel commenced his final address with a concession that if the Tribunal should ‘make the factual findings that my learned friend invites you to make, there’s no dispute from this side of the Bar table as to the characterisation of the findings…’ as constituting professional misconduct or unprofessional conduct.[25] At one point he referred to the allegation as being ‘that he internally violated her’,[26] at another that the conduct alleged ‘might amount to criminal conduct’,[27] and was ‘abhorrent’.[28]
[23]Affidavit of Zygmunt Zayler, Annexure ZZ.01, P133.
[24]Transcript 360-361.
[25]Transcript 363-364.
[26]Transcript 365.
[27]Transcript 377.
[28]Transcript 383.
The Tribunal’s finding that the internal examination occurred is not challenged. What is particularly challenged is the finding that:
In the absence of a clinical purpose for the examination, the only available inference is that it was conducted for the sexual gratification of the practitioner.[29]
[29]Reasons [87], and see [84].
Grounds of Appeal
As mentioned, the applicant relied on five grounds to establish the questions of law.
The grounds break up into two categories. The first concern the finding on the first charge and in particular the finding of sexual gratification. The second concern the finding on the fourth charge of failing to obtain Ms L’s informed consent. The second charge is not expressly addressed by the grounds, but the applicant seeks to achieve the setting aside of the determination on all three charges on the basis that the erroneous finding or findings vitiate the ultimate order for disqualification.
The first charge – finding that examination for the purpose of sexual gratification
Ground 1 contends that in finding that ‘the only available inference is that [the vaginal examination] was conducted for the sexual gratification of the practitioner’ the Board denied the applicant procedural fairness, in that:
(1)In so finding the Tribunal reformulated, or (as Ground 2 contends) misconstrued, the allegation in the first charge as requiring consideration of whether the applicant had a clinical purpose in conducting a vaginal examination, as distinct from the mere question whether the examination was clinically indicated or necessary.
(2)The dispute being whether the examination occurred at all, the finding of purpose was made without giving the applicant an opportunity to address the question.
These grounds may be considered together and with the following parts of Ground 3.
Ground 3.1(a) contends that, insofar as can be discerned from the Tribunal’s reasons, the finding that the vaginal examination occurred and that the only available inference was that it was conducted for the sexual gratification of the applicant, were based, inter alia, on a conclusion that the reference in the medical notes to abdominal pain and ordering of a pelvic ultrasound at the conclusion of the examination was a sham undertaken so as to provide a false justification for a vaginal examination. That conclusion was not open in that it was contrary to evidence; it was not supported by, or was contrary to, the expert evidence; and the Board had not so submitted.
Ground 3.1(f) contends that the finding of sexual purpose was not a particularised allegation in the matters referred.
In dealing with these, and the other grounds, we have regard to the written and oral submissions of the applicant. To an extent the grounds are self-evident. They were developed along the following lines.
At the outset counsel stated, doubtless because of the narrowness of the issue for determination on the first charge, that it was not argued that the Tribunal should have considered whether the vaginal examination was justifiable.
The issue for determination was whether the alleged vaginal examination occurred. It was submitted that the Tribunal should have confined itself to whether, as alleged, the examination was not clinically indicated and/or necessary. But impermissibly the Board slid from that question to the different issue of the purpose of the examination, and then to sexual purpose. In doing so the Board either reformulated or misconstrued the charge.
As mentioned, the stark issue for determination was whether the alleged vaginal examination was not clinically indicated or necessary. But the effect of the finding of sexual purpose was to place the applicant’s conduct at a higher or graver level than that charged. Indeed, it was submitted, the finding elevated the conduct to criminal conduct amounting to rape as it was, in effect, a finding of an absence of good faith. Such a finding rendered the applicant liable to a more severe penalty. That was not the charge. Further, in final address to the Tribunal, counsel for the Board, in reference to a statement by the applicant’s counsel that what was alleged could be criminal conduct,[30] said that:
…the allegation isn’t that he assaulted her, the allegation is that he performed an internal examination without clinical justification. So there are cases where the allegation is framed as an assault occurred. And in those circumstances, the idea that one should have regard to the fact that it’s criminal conduct, might be a bit more central. Either way, I absolutely accept that the seriousness of these allegations warrants the evidence being subject to careful scrutiny…[31]
[30]Transcript 377.
[31]Transcript 387 – 388.
Further, the Board’s submission was that the applicant’s evidence should not be accepted, not that he conducted the examination for his own sexual gratification. In this respect, we interpolate that while the matter of purpose was put to the applicant in chief and in cross‑examination, the Board’s counsel did not make that submission in her final address.
This brought counsel to Ground 3.1(a) and the contention that the Tribunal wrongly found that the ordering of the ultrasound was a sham. Here counsel addressed submissions as to the matter of abdominal examination on 30 August and 1 September and in particular as to the second sentence of paragraph [78] of the Tribunal’s reasons. More particularly though were the last two sentences in paragraph [78] which refer to the Board having submitted, as the Tribunal understood it, that the ultrasound was ordered as a ‘cover’ to provide some apparent justification for the inappropriate internal examination.
It was submitted that in these sentences the Tribunal was to be seen as having accepted the Board’s invitation and, by inference, to have made the finding of ‘sham’. It was recognised that the finding was not express, but this was the only factor identified which could have led to the conclusion of personal sexual gratification.
Moreover, the Board had not invited the Tribunal to make the alleged finding. It is true that in cross‑examination the Board’s counsel suggested to the applicant that the ultrasound referral was given to create a justification for the examination, but the applicant denied that,[32] and counsel did not return to it in final submissions.
[32]Transcript 296.
This brought the submissions back to the issue of procedural fairness. The effect of considering the charge to include purpose, and to find sexual purpose, was submitted to be both to reformulate the charge and to conclude on it at a more serious level, with a likely concomitant consequence on penalty, and was to deny the applicant a fair hearing. That was because it was done without giving the applicant a reasonable opportunity to deal with the case as found; as to this, counsel relied on the analysis in Fletcher v Commissioner of Taxation.[33] It was submitted that the finding of purpose should not have been made at the stage of the proceeding when it was, and before submissions on whether other inferences were open. The appropriate stage for that was on the consideration of penalty. Further, if the applicant had been given the opportunity, he could have made submissions as to having conducted the examination without a purpose of sexual gratification. He had, after all, raised the matter of an ultrasound. And he might have said that while the examination was bona fide he later realised that it was not justified.
[33](1988) 19 FCR 442, 455-457.
This submission leads on to Ground 3.1(b) which contends that the Tribunal failed to consider whether, if the vaginal examination occurred, any inference other than sexual purpose might have been open despite the applicant’s false denial and his assertion that such an examination would not have been justified. In particular, that the Tribunal failed to consider whether the denial and assertions might have arisen from, inter alia:
(1) an honest but mistaken belief;
(2)the applicant’s intransigent refusal to concede the inadequacy of his notes which did not record the examination;
(3)the applicant’s concern that an assertion that the examination was justifiably performed would not be believed in the absence of a note in the medical records;
(4)a concern on the part of the applicant that it may be found that the vaginal examination was objectively not reasonably necessary in the circumstances.
It was submitted that notwithstanding that the applicant denied the alleged examination occurred, and put no alternative hypothesis on the possibility it was conducted bona fide, there may have been explanations such as suggested above. Here counsel relied on an analogy with the criminal law (Pemble v The Queen)[34] to submit that a rejection of the applicant’s evidence did not necessarily justify a conclusion that the examination was for an improper sexual purpose. The Tribunal made no analysis of the evidence as to the symptoms to ascertain whether a vaginal examination conceivably might have been justified. The Tribunal should have considered alternative explanations for the examination.
[34](1971) 124 CLR 107. This analogy with the criminal law was drawn in the written submissions and is accordingly referred to but it was not pressed in oral submissions.
It was contended, in Ground 3.1(c), that the Tribunal failed adequately to consider the nature and effect of evidence as to matters going to whether, objectively considered, a vaginal examination was justified; it ignored or overlooked evidence from Ms L that strongly suggested a vaginal examination was appropriate. It failed to consider the basis on which Dr Murdoch had stated an opinion adverse to Ms L on this issue; and it made findings that were not supported by or were contrary to the evidence. Indeed, (Ground 3.1(d) contends), the evidence was capable of justifying the conduct of a vaginal examination.
In relation to these grounds, it was submitted that it was incumbent upon the Tribunal to examine the evidence that might have justified both the pelvic and vaginal examination referred to in the first charge. Although the particulars referred only to Ms L’s wisdom teeth, the applicant asked if she was concerned about any other problems. As the applicant’s case did not involve justification of the examination, and because the charge required consideration of the clinical justification for the vaginal examination, the Tribunal should have addressed this issue in their reasons. At the least, these matters were significant on the question whether there was an inference other than that of sexual gratification.
Finally, Ground3.1(e) contends that the reasons for concluding that the applicant had no clinical purpose for the internal examination were inadequate in that they did not disclose an intelligible path of reasoning, which in itself constituted an error of law; see Commissioner of State Revenue v Anderson.[35] Putting aside the matter of the ultrasound being a ‘cover’, the finding at paragraph [84] of the reasons appears to be a conclusive leap not supported by reasoned analysis.
[35][2004] VSC 152, [33]; (2004) 56 ATR 8, 17 [33].
With respect, these submissions lack substance. The question on the first charge was whether the alleged internal examination occurred. That required a finding of fact. That fact underlay the matters alleged in the second and fourth charge. Further, the second charge expressly alleged that the applicant conducted the consultation in an inappropriately sexual manner. The fourth charge alleged that he conducted the internal examination without Ms L’s informed consent, and (by the particulars) that he continued to do so notwithstanding she complained of pain. The question in each case was whether the applicant’s conduct was ‘substantially below the standard reasonably expected of a registered health practitioner’.[36] Whether the applicant’s conduct did fall below that standard was, in relation to each of the first, second and fourth charges, to be determined in the light of the relevant facts and circumstances. Of course, the applicant’s counsel conceded that if it were found that the applicant had carried out the internal examination then professional misconduct was established. That was the first charge. But there was also the second charge with the allegation of an ‘inappropriately sexual manner’, and then the fourth charge with the allegation that the applicant persisted in the digital examination notwithstanding it was causing pain. Regarding the matter overall, the allegations reflect a sexual overtone to the applicant’s conduct.
[36]Health Practitioner Act, s 5, definition of professional misconduct paragraph (a).
It is important to bear in mind that the applicant’s concession of professional misconduct under the first charge was given in the context that the applicant denied that that examination occurred and conceded that there was no clinical reason for it to have occurred. The concession was premised on the alleged examination being found to have occurred. But it said nothing as to why it had occurred. That is, why did the applicant conduct the examination? The answer to this question bore directly on the nature and quality of the applicant’s conduct which, of course, bore on the question of satisfaction whether the conduct fell substantially below the standard reasonably to be expected, and whether it was appropriate to find professional misconduct established. It also bore on the appropriate characterisation of the conduct in relation to any orders to be made.
There was no denial of procedural fairness in this. The case for the applicant was run as best it could be, within the confines of his defence. It is self-evident that the applicant could not have it both ways. Having denied the examination occurred, and stated that there would have been no clinical purpose for it, he ran the risk of a finding that the examination did occur, thus leaving a question as to why it occurred. As the Board submits, procedural fairness did not require the Tribunal to then permit the applicant the option of running an alternative case that the examination had occurred for a proper purpose. The hearing had been had, for better or worse, and the applicant can not complain that, in the advised absence of evidence from him, the Tribunal drew an available inference as to his purpose in conducting the examination.
In these circumstances it was both open and appropriate to the Tribunal to find that ‘[i]n the absence of a clinical purpose for the examination, the only available inference is that it was conducted for the sexual gratification of the practitioner’. In making this finding, the Tribunal did not reformulate or misconstrue the first charge. Nor in its reasoning process did the Tribunal find at paragraph [78] that the ultrasound was ordered to provide a cover as justification for the internal examination. It is true that the Board did not make the submissions which the Tribunal understood to have been made. But equally the Tribunal did not state that those matters were accepted, or that the Tribunal acted upon them.
Moreover, it is apparent from the references at paragraph [32] above, that the parties appreciated that the inference of personal sexual gratification was in the air as one that could be made. Thus, the applicant’s counsel sought to exclude the inference by directly asking the applicant about his purpose in evidence in chief. In other words, the point was appreciated and was dealt with as considered appropriate in the circumstances.
Nor, in the circumstance that the applicant proffered no reason why the examination might have been justifiable was it for the Tribunal to engage in speculation as to whether there might have been a clinical reason apprehended by the applicant. Not only did the applicant state that there was none, but (contrary to Ground 3.1(c) and (d)) there was no evidentiary basis on which to do so. Further, the applicant’s submission in this Court under Ground 3.1(b) as to what the Tribunal should have considered more indicates lines on how the applicant wished he might have run the case but did not do so, and how he would now choose to run the case in the event of a re-hearing (Ground 3.1(b)).
In the circumstances, including the way in which the case was conducted, the justice of the case would not warrant leave being granted to enable the applicant to run a different case.
It remains only to say that it follows from the above considerations that in drawing the inference of sexual gratification there was no inadequacy in the Tribunal’s reasons.
The fourth charge - Informed consent
It was submitted for the applicant that the conclusion that Ms L had not given informed consent was not open to be made. The facts were that Ms L was concerned, her concerns were brushed off by the applicant, but she went on with the examination, aware of what was proposed. In these circumstances the Tribunal’s conclusion could not be justified. Further, Dr Murdoch did not conclude there had been no informed consent. His opinion was that there would be informed consent if the relevance and nature of the examination was explained. It was submitted that Ms L understood that an internal vaginal examination was to take place and that she agreed to it. Finally, it was submitted that the Tribunal’s reasons were inadequate for the conclusion.
The fundamental difficulty with this submission is that it overlooks, if not disregards, the Tribunal’s finding on the first charge of the purpose for which the applicant conducted the vaginal examination. He did not inform her of his purpose, and she did not know. It cannot be suggested that Ms L consented to him engaging in an examination for that undisclosed purpose. If and to the extent that it could otherwise have been said – as the applicant submits – that Ms L consented to the examination, that consent was vitiated by her ignorance of the applicant’s true purpose. In any event, it was open to the Tribunal to find the fourth charge proved for the reasons stated by the Tribunal.
Conclusion
For these reasons, no real or significant argument as to a question of law is demonstrated. The supposed questions of law either challenged findings of fact that were open to be made (in particular the finding of personal sexual gratification and a lack of informed consent), or identified matters that would raise questions of law (such as procedural fairness, finding not open on the evidence or failure to take evidence into account, and failure to provide reasons) that on examination have no substance. In short, there is no question of law as to which doubt is raised that could justify the grant of leave to appeal. This means that the application should be refused. However, leave is necessary in order that allowance be made for the stay on the operation of the Tribunal’s orders. Subject to hearing from the parties it would seem appropriate that the orders of VCAT be varied by providing that the cancellation of the applicant’s registration take effect from 5 September 2013. For clarity, the period of disqualification runs from that date. For this purpose therefore there will be leave to appeal but the appeal will otherwise be dismissed.
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