| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : HEALTH PRACTITIONER REGULATION NATIONAL LAW (WA) ACT 2010 CITATION : R and MEDICAL BOARD OF AUSTRALIA [2013] WASAT 28 MEMBER : JUDGE T SHARP (DEPUTY PRESIDENT) MS S GILLETT (MEMBER)
DR E ISAACHSEN (SENIOR SESSIONAL MEMBER)
HEARD : 1 NOVEMBER 2012 DELIVERED : 27 FEBRUARY 2013 FILE NO/S : VR 144 of 2012 BETWEEN : R Applicant
AND
MEDICAL BOARD OF AUSTRALIA
Respondent
Catchwords: Medical practitioner - Health Practitioner National Law - Serious risk to persons - Whether necessary to take immediate action to protect public health and safety - Supervision of registration - Imposition of a condition on registration Legislation: Evidence Act 1906 (WA), s 36C
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Health Practitioner Regulation National Law (WA) Act 2010 (WA) s 4(1)(a)
Health Practitioner Regulation National Law (Western Australia), s 154, s 155, s 156, s 156(a), s 156(1)(a), s 157, s 158, s 158(1)(b), s 159(2), s 160, s 160(2), s 165, s 193, s 199(1)(h)
Medical Practice Act (NSW), s 66
State Administrative Tribunal Act 2004 (WA), s 17(1), s 25(2), s 27, s 27(1), s 62(3) Result: Application dismissed
Summary of Tribunal's decision: A medical practitioner had a complaint made against him by a female patient. Pending the outcome of a full inquiry into the incident, the Medical Board of Australia imposed a condition on the practitioner's registration that he was only permitted to see female patients with a chaperone present. This condition was imposed as 'immediate action' under the Health Practitioner Regulation National Law (Western Australia).
Subsequently, the Board received other complaints about the practitioner and was also informed by the police that criminal charges had been laid against him. The Board took further immediate action by suspending the practitioner's registration.
The practitioner applied to the Tribunal for a review of the Board's decision to suspend his registration. The practitioner argued that none of the allegations against him had been tested and proved. The Tribunal in its deliberations took into account the information which was before the Board when it took immediate action. The Tribunal also considered a number of other complaints which were made against the practitioner after his suspension but had some concerns about them. It concluded, based on the same information which was before the Board, that it reasonably believed that the practitioner posed a serious risk to persons and that it was necessary to suspend his registration to protect public health or safety.
The Tribunal accordingly dismissed the application.
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Category: B
Representation: Counsel:
Applicant : Ms KA Vernon
Respondent : Mr H Quail
Solicitors:
Applicant : Mr MJ Joubert
Respondent : Australian Health Practitioner Regulation Agency
Case(s) referred to in decision(s):
Bernadt and Medical Board of Australia [2012] WASAT 185
Chief Executive Officer Department for Child Protection v Hardingham [2011] WASCA 262
I v Medical Board of Australia [2011] SAHPT 18
Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295
Liddell and Medical Board of Australia [2012] WASAT 120
Lindsay v New South Wales Medical Board [2008] NSWSC 40
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This matter relates to an application under s 199(1)(h) of the Health Practitioner Regulation National Law (Western Australia) (National Law) which applies as a law of Western Australia under s 4(1)(a) of the Health Practitioner Regulation National Law (WA) Act 2010 (WA). The applicant, a medical practitioner, sought a review of a decision made by the respondent, the Medical Board of Australia (Board), to take 'immediate action' under s 156 of the National Law and suspend the practitioner's registration. 2 The matter was heard on 1 November 2012, at the conclusion of which the Tribunal made an order dismissing the application. At the hearing the Tribunal undertook to provide reasons for its decision and these are the reasons.
Background 3 The practitioner graduated from University in India in 1977 and from 1982 to 1988 he worked in India as a general surgeon and as a consultant cardiothoracic surgeon. He moved to South Australia in 1989 and commenced work at the Royal Adelaide Hospital. From 1999 to 2001, he worked as a senior registrar at Sir Charles Gairdner Hospital and after that at various other hospitals in Australia. In February 2010 he returned to Western Australia and took up a position providing services as a general practitioner at a family medical centre until his engagement there was terminated in September 2012. 4 The Australian Health Practitioner Regulation Agency (AHPRA) is the National Agency under the National Law, and its functions include providing assistance to the Board in exercising its functions. On 25 January 2012, AHPRA advised the practitioner that it had received a complaint that on 19 January 2012 the practitioner had engaged in sexual misconduct and made inappropriate comments during a consultation with a female patient. AHPRA informed the practitioner under s 157 of the National Law that the Board proposed to take immediate action under s 156 of the National Law. The proposed immediate action was described as the imposition of a condition on the practitioner's registration requiring him to have a chaperone present at all times during consultations with female patients. AHPRA invited the practitioner to make a submission to the Board. (Page 5)
5 On 31 January 2012, the then solicitors for the practitioner responded to AHPRA's notice, denying the allegations of inappropriate conduct, but offering, pending the outcome of the Board's investigations, to give a written undertaking not to conduct any internal physical examinations or breast examinations of female patients without a chaperone being present. 6 On 1 February 2012, AHPRA notified the practitioner in writing that, pursuant to s 158 of the National Law, the Board had considered the practitioner's submissions. AHPRA informed the practitioner that the Board's decision was to impose a condition on the practitioner's registration requiring him to have a chaperone in attendance during any physical examination of a female patient. 7 On 10 August 2012, AHPRA wrote to the practitioner advising him that it had received another complaint about his conduct. The complaint was that the practitioner had made inappropriate comments and engaged in inappropriate behaviour during a consultation with a female patient on 7 August 2012 and had breached the chaperone condition during the same patient consultation. AHPRA advised the practitioner that the Board reasonably believed that the practitioner's alleged conduct posed a serious risk to persons and it was necessary to take immediate action to protect public health or safety. The Board was proposing that seven further conditions would be placed on the practitioner's registration, including a complete prohibition on consulting with or treating female patients. 8 Again, AHPRA asked the practitioner whether he wished to make submissions to the Board. 9 In a letter to AHPRA dated 15 August 2012, the practitioner through his then solicitors denied the allegations contained in the notification and opposed the imposition of the further conditions on the practitioner's registration. The practitioner said that the allegations were untested and that the chaperone condition remained sufficient action pending the investigation of the complaints. 10 In the meantime, on 13 August 2012, AHPRA received a further notification from an employee at the practitioner's workplace alleging receipt of complaints against the practitioner by female patients under the age of 21, and breaches of the chaperone condition. Then on 15 August 2012, AHPRA received verbal notice from WA Police that the practitioner had been charged with two counts of indecent assault on female patients. WA Police also informed AHPRA that documents had been seized from the practitioner's workplace which identified other (Page 6)
similar allegations against the practitioner of misconduct which had occurred after the chaperone condition was imposed. 11 By letter dated 17 August 2012 from AHPRA to the practitioner's solicitor, the practitioner was given notice of a proposed suspension of his registration on the grounds that practitioner's alleged conduct posed a serious risk to persons and it was necessary to take further action to protect public health and safety. 12 On 22 August 2012 the practitioner made a submission to the Board denying the further allegations and opposing suspension of his registration. 13 On 24 August 2012 the Board ordered the suspension of the practitioner's registration effective immediately. 14 On 30 August 2012 the practitioner applied to the Tribunal for a review of the decision of the Board to suspend his registration. In his application, the practitioner sought: Non-publication of the applicant's name 15 Section 36C of the EvidenceAct 1906 (WA) makes it an offence to publish any matter likely to lead members of the public to identify a complainant of a sexual offence. We have not included the complainants' names in these reasons. However, we also consider that publishing the applicant's name or place of practice may lead members of the public to identify the complainants in this matter, because of the small size of the community where the applicant's place of practice is located. 16 Accordingly, the Tribunal made an order on 1 November 2012 pursuant to s 62(3) of the SAT Act prohibiting the publication of the identity of the complainants, the identity of the applicant and the whereabouts of the applicant's place of practice. In these reasons the applicant is referred to as the practitioner or R. (Page 7)
Operation of the National Law 17 Immediate action is defined in s 155 of the National Law and includes: the suspension, or imposition of a condition on, the health practitioner's … registration. 18 The power to take immediate action is provided in s 156(1)(a) of the National Law which states that a National Board: 19 If the immediate action proposed consists of suspending or imposing a condition on the practitioner's registration, then immediate action can only be taken after the 'show cause' process under s 157 of the National Law has been taken including sending notice to the practitioner of the proposed immediate action. 20 A decision to take immediate action under s 156 of the National Law carries a concurrent obligation under s 158(1)(b) to take further action which the Board considers appropriate, which may include investigating the practitioner concerned. 21 A decision by the Board to suspend a practitioner's registration gives rise to a right of appeal against the suspension to the Tribunal pursuant to s 199(1)(h) of the National Law.
Review application 22 An application under s 199(1)(h) of the National Law is an application within the Tribunal's review jurisdiction for the purposes of s 17(1) of the SAT Act. Accordingly, the provisions of s 27 of the SAT Act apply. Section 27 provides: (1) The review of a reviewable decision is to be by way of a hearing de novo, and it is not confined to matters that were before the (Page 8)
Immediate action 23 Section 66 of the now repealed Medical Practice Act 1992 (NSW), although not precisely in the same terms as s 156 of the National Law, contained a similar 'immediate action' process. Itrequired the relevant board to determine whether the board was 'satisfied' that action under the section is necessary for the protection of the health or safety of any person or persons. That action included an order suspending the practitioner or imposing conditions on registration. 24 That section was considered by the New South Wales Supreme Court in Lindsay v New South Wales Medical Board [2008] NSWSC 40 (Lindsay). At [77] Hall J noted that the process under s 66 'may necessarily not involve the Board or its delegates in a detailed examination of factual matters subjacent to a complaint or complaints'. He contrasted that to the process that might be undertaken in proceedings where a complaint against a person had to be proved. His Honour said that the material relied upon for the purpose of determining whether action should be undertaken under s 66 'may include material that would not conventionally be considered as strictly evidentiary in nature, eg, complaints and allegations'. 25 The South Australian Health Practitioners Tribunal in I v Medical Board of Australia [2011] SAHPT 18 (I v Medical Board of Australia) adopted that same approach in a case concerning s 156 of the National Law. The South Australian Tribunal considered that an immediate action order does not entail a detailed inquiry by the Board, or in turn by the Tribunal. Rather, it required action on an urgent basis because of the need to protect the public; I v Medical Board of Australia at [26]. 26 In Liddell and Medical Board of Australia [2012] WASAT 120, (Liddell) the Tribunal endorsed the approach taken both by the New South Wales Supreme Court in Lindsay and by the South Australian Health Practitioners Tribunal in I v Medical Board of Australia. The Tribunal in Liddell stated at [21]: (Page 9)
The practicality of [the approach in Lindsay and in I v Medical Board of Australia] is readily apparent. Where, for example, two allegations of criminal conduct involving serious sexual misconduct by a medical practitioner are made … it would be impractical for s 156 to require that the Medical Board make urgent findings of fact as to the practitioner's guilt or innocence. Rather, the mere fact and seriousness of the charges, supported by the untested depositions of witnesses, might well be sufficient to create the reasonable belief as to the existence of a risk because of the alleged conduct of the health practitioner. 27 In Bernadt and Medical Board of Australia[2012] WASAT 185 (Bernadt) the Tribunal followed the approach taken in Liddell. The Tribunal stated at [26] that: … the Tribunal expects that, in the future, these proceedings will generally be conducted by SAT and the parties … as an expeditious, reasonably summary, interim/interlocutory process. These proceedings should not be conducted as though they were a referral of a matter about a health practitioner by the Board under s 193 of the National Law. 28 However, the Tribunal went on to state at [27] that in immediate action review proceedings: … because a practitioner's reputation or their capacity to earn a livelihood in their registered vocation is at stake, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts, under the Briginshaw principle or approach, in order to form a reasonable belief under s 156 of the National Law that because of the health practitioner's conduct, performance or health, the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety. 29 This passage has given rise to submissions by the applicant and we will refer to it again later in these reasons.
The hearing 30 At the hearing of this matter, the respondent filed two separate bundles of documents with the Tribunal: a bundle of documents for hearing dated 27 September 2012 (Respondent's Bundle) and an additional bundle dated 17 October 2012 (Respondent's Additional Documents). 31 The Respondent's Additional Documents include an affidavit of Ms Stacey Britton, (Respondent's Additional Documents pages 27 - 38). Ms Britton is employed by AHPRA as a case manager and investigator, and has been directed by the Board under s 160(2) to investigate the (Page 10)
complaints against R. Previously, the case manager was Mr Benjamin Pruen. 32 The complainants' statements are included in the Respondent's Bundle. Those complaints and AHPRA's investigations are summarised below. The complaints are set out in the order that they were received by the Board and are not chronological in respect of the dates when the alleged events were said to have occurred.
Complainant 1 33 On 20 January 2012, Complainant 1, a 26-year-old female patient of the practitioner, notified AHPRA of alleged inappropriate behaviour of a sexual nature by the practitioner (Respondent's Bundle pages 1 - 9). This is the complaint which led the Board to impose the chaperone condition on the practitioner. 34 Following receipt of the notification, AHPRA, on behalf of the Board on 25 January 2012, sent a notice to the practitioner that it was proposing to take immediate action and seeking the practitioner's submissions. 35 The practitioner's response was considered by the Board and on 1 February 2012 the practitioner was notified of immediate action taken by the Board under s 156 of the National Law, that immediate action being: … to impose a condition on your registration that you must have a chaperone in attendance during any physical examination of a female patient. (Respondent's bundle page 40) 36 In the notification of immediate action the practitioner was also informed of some further action proposed by the respondent namely: Separate to this immediate action process, as a result of the notification having been received by AHPRA the Board has resolved to investigate the allegations contained in the notification by [Complainant 1]. The further action is separate to the interim decision to impose a condition on your registration. (Respondent's Bundle pages 40 - 41) 37 The affidavit of Ms Britton filed by the respondent outlines the further investigative steps taken by the respondent. Ms Britton states that the Board decided to investigate the practitioner pursuant to s 160 of the National Law and directed her predecessor, Mr Pruen, to conduct the investigation. Ms Britton says that on 7 February 2012, Complainant 1 (Page 11)
attended AHPRA's offices and provided a verbal statement to Mr Pruen. Following this meeting, Mr Pruen prepared a draft witness statement (Respondent's Bundle pages 10 21) which was initially sent to Complainant 1 for review on 21 February 2012. On 24 February 2012, Complainant 1 sent a message by email to Mr Pruen advising that she was 'really happy' with the draft statement (Respondent's Additional Documents page 34). Despite a number of further attempts to contact Complainant 1, Ms Britton says that Complainant 1 has still not provided AHPRA with a signed witness statement. 38 The unsigned witness statement of Complainant 1 contains statements about her complaint. It provides that on 19 January 2012 she consulted with the practitioner in order to seek a referral for depression. The practitioner then asked her whether she needed a mole check or a pap smear, and that during the consultation she was asked to undress in front of him. She says he made an inappropriate comment about her underwear. She maintains the practitioner felt her breasts and asked her to remove her underwear before examining her pubic area. He performed an internal examination with his fingers and a pap smear. Subsequently, Complainant 1 claims that the practitioner examined her breasts again in a manner that she describes as 'a grope'. The practitioner allegedly said 'You have very nice breasts, you must do a lot of swimming'. As she left she says the practitioner hugged her and kissed her on her right cheek. 39 The statement concludes by saying that she made an immediate complaint to her mother after the consultation and contacted AHPRA the day after.
Complainant 2 40 The second complaint, concerning Complainant 2, a 20yearold female, was given to AHPRA on 9 August 2012 by Complainant 2's employer, Ms S. It alleged inappropriate sexual conduct by the practitioner towards Complainant 2 (Respondent's Bundle pages 46 53). 41 The allegations the subject of the second complaint are that she consulted with the practitioner on 7 August 2012 to receive the results of an MRI scan, when she was asked by him to remove her jeans. Complainant 2 alleges that she was hugged by R and also that he tried to kiss her, told her how 'lovely she was' and asked what size pants, shirt and bra she wore. Complainant 2 alleges the practitioner said he wanted to buy things for her and that she would have to lie to her parents about who she had received them from. After getting her MRI results, he allegedly tried to kiss her again. (Page 12)
The next immediate action 42 On 10 August 2012 the practitioner was notified of the Board's proposed immediate action based on this complaint. The immediate action being proposed was that the following conditions would be placed on the practitioner's registration: 1. You may only practise at the [family medical centre]. 2. You are not permitted to do afterhours or oncall work. 3. You are not permitted to consult with or treat female patients. 4. You must provide a monthly statutory declaration that you have complied with these conditions on your registration. 5. The Practice Manager of [the family medical centre] will be advised of these conditions on your practice and required to inform the Board if there are any breaches of the conditions. 6. The Board and AHPRA have authority to communicate with staff at the [family medical centre] to review compliance of these conditions. 7. The Board and AHPRA have authority to obtain information from Medicare Australia about your practise [sic] and patients. (Respondents Bundle page 55). 43 On 15 August 2012, the practitioner through his solicitor provided a further response to the Board. 44 On 17 August 2012, AHPRA wrote to the practitioner's solicitor acknowledging receipt of his response to the Board and advising him that in the meantime it had received further information concerning the practitioner. This information comprised, first, an allegation made by an employee of the family medical centre (Witness A). Details of Witness A's allegations are set out later in these reasons. The second piece of information was that AHPRA had received verbal advice from WA Police that the practitioner had been charged with indecent assault in relation to two patients. 45 AHPRA informed the practitioner's solicitor that the Board was now proposing to suspend the practitioner's registration. 46 The letter from AHPRA dated 17 August 2012 set out the following reasons for the Board's intention to take immediate action: (Page 13)
a) [R's] registration is currently subject to a condition that he must have a chaperone in attendance during any physical examination of a female patient. b) This condition was placed on his registration on 31 January 2012 following receipt of a notification alleging that he made inappropriate sexual comments to, and instigated inappropriate physical contact with, a female patient during a consultation. c) Despite this condition on [R's] registration, a second notification was received on 9 August 2012, in which similar allegations of inappropriate sexual comments and inappropriate sexual advances are made on behalf of another female patient (and confirmed by that patient). d) A third notification has now been received from a work colleague indicating that the condition imposed on [R's] registration requiring that a chaperone be present during the physical examination of female patients has not been complied with, and that the [family medical centre] has received a number of complaints from young female patients about his conduct. e) WA Police have now also advised AHPRA (on 15 August 2012) that [R] has been charged with indecent assault in relation to two patients. These patients are not the patients in the notifications previously made to AHPRA. f) WA Police further advised that documents seized from the [family medical centre] have identified approximately eight other complaints about [R] in relation to further incidents which appear to have occurred subsequent to the imposition of the condition on his registration in January 2012. g) On the basis of the information provided, it appears that [R] has breached the condition on his registration requiring a chaperone to be present during any physical examination of female patients. h) It appears that, despite the condition imposed on [R's] registration, he continues to pose a serious risk to persons and it is therefore necessary to take further immediate action to protect public health or safety. 47 Details of one of the allegations of indecent assault referred to at para (e) in the Board's reasons have been provided to the Tribunal. Details of that complaint are set out under 'Complainant 3' below. 48 The Board also advised the practitioner that there was further action which the Board intended to take and that was to 'refer your client for (Page 14)
investigation under s 160 of the National Law and to require [the practitioner] to undergo a health assessment'. 49 The practitioner's solicitor wrote on behalf of the practitioner to AHPRA on 22 August 2012 making submissions on this latest proposed immediate action. On 24 August 2012, the Board wrote to the practitioner's solicitor, acknowledging receipt of the practitioner's submissions and informing the practitioner's solicitor that AHPRA had received another notification regarding the practitioner. The details of this notification are set out under the heading 'Complainant 4' below. AHPRA informed the practitioner's solicitor that the Board had decided to suspend his client's registration. AHPRA also confirmed that the Board had also resolved to refer the practitioner for investigation under s 160 of the National Law and to require the practitioner to undergo a health assessment.
Complainant 3 50 On 15 August 2012, Detective Tweeddale of WA Police, provided AHPRA with a signed witness statement dated 23 July 2012 from Complainant 3, a 24year-old female patient of the practitioner (Respondent's Bundle pages 108 - 128). 51 As has already been mentioned, the practitioner has been charged by WA Police with indecent assault, based upon the allegations made by Complainant 3. 52 In her statement, Complainant 3 complains of two incidents, one at a consultation in March 2012 and the second at a consultation in July 2012. She had previously been diagnosed with bipolar disorder. In the first incident, Complainant 3 alleges that a chest examination was performed by the practitioner, during which he put his hands inside her shirt and bra, cupped her breasts and removed them from her bra. The practitioner allegedly asked Complainant 3 whether she required a pap smear, which she refused. She also alleges that the practitioner hugged her. 53 In the second incident, Complainant 3 says that during a chest examination the practitioner asked her to lift her shirt and that he again removed her breasts from her bra. She claims that he then rubbed his genital area on her right knee with a firm, constant pressure and later held her hand, rubbing it with his thumb. She also says the practitioner said that he wanted to spend time with her, asked her to meet him in the carpark and said that they would go somewhere in his car. She alleges that he hugged her before she left. She says the practitioner used his (Page 15)
mobile phone in two attempts to make contact with her over the next few days. In her statement, Complainant 3 says that she was able to provide WA Police with that telephone number, which corresponds with the practitioner's telephone number.
Complainant 4 54 Complainant 4 is a 17year-old female patient who consulted with the practitioner on 20 July 2012. The Board was notified by Complainant 4's mother on 20 August 2012 of the practitioner's alleged conduct (Respondent's Bundle pages 129 - 138). 55 Complainant 4 alleges that she consulted with the practitioner in the presence of her mother, requesting treatment for eczema. During the consultation it is alleged that the practitioner closed the curtains around her, preventing her mother from observing. Complainant 4 told her mother immediately after the consultation that she had been asked to raise her shirt and that the practitioner had lifted her bra, touched each of her nipples and said 'not bad, not bad'. Following this, Complainant 4 alleges that the practitioner asked her to remove her pants. The practitioner is alleged to have moved her leg to look at the inside of her thighs. 56 According to Ms Britton, this complaint remains under investigation by the Board. Ms Britton deposes that she is currently awaiting the advice of the police as to whether a statement will be taken from Complainant 4. Subject to the advice of the Police, Ms Britton says that she intends to contact Complainant 4 to obtain a signed statement for the purposes of considering whether disciplinary action against the practitioner is necessary. (Respondent's Additional Documents, page 32).
Complainant 5 57 Ms Britton says that Complainant 5 made a telephone call to her on 4 September 2012 (Respondent's Additional Documents page 32). While a statement has not yet been obtained, the Board says in its submissions that it is seeking a statement for the purpose of considering whether disciplinary action is necessary. 58 According to Ms Britton's note made about that telephone call (Respondent's Additional Documents page 36), Complainant 5 alleges that she attended and had a pap smear performed by the practitioner. After the nurse left the room she alleges that the practitioner digitally penetrated her, kissed her neck and touched her breast. The practitioner allegedly said that he was not getting any sex because his wife was (Page 16)
overseas. It is also alleged that the practitioner offered to swap sex for drugs. Complainant 5 stated that she believed the practitioner had made the same offer to other women, although the basis for this belief was not stated. 59 Ms Britton states that, if the Board decides to take this complaint further, she will contact Complainant 5 to obtain a signed statement for the purposes of considering whether disciplinary action against the practitioner is necessary.
Complainant 6 60 Complainant 6 is a 21year-old female patient of the practitioner and has provided a signed statement to WA Police dated 30 July 2012 (Respondent's Additional Documents pages 1 - 9). She also made an immediate complaint to her partner who then complained to the practitioner's practice on 20 July 2012 (Respondent's Additional Documents pages 17 - 18). 61 The practitioner has been charged by WA Police with indecent assault, based upon the allegations made by Complainant 6. Ms Britton deposes that the Board is awaiting the outcome of the criminal proceedings against the practitioner before proceeding with any independent investigation of this allegation. 62 Complainant 6 alleges that on 20 July 2012 she consulted the practitioner for the purposes of getting a pain relieving prescription for a rotten tooth. She also said she had a urinary tract infection and needed antibiotics. She says the practitioner pulled down her pants and knickers and then pressed on the hair over her pubic region, causing her to feel very uncomfortable. Complainant 6 alleges that the practitioner also poked her in the lower belly for no medical reason she could ascertain. The practitioner allegedly asked Complainant 6 how her breasts were feeling and although she resisted an examination, he pressed her breasts through her clothing as she tried to leave. She says that the practitioner told her to consult him in the future for 'all your girly things'.
Complainant 7 63 Complainant 7, a 20year-old female, wrote a letter of complaint to the practitioner's practice concerning an alleged incident on 13 January 2012 involving the practitioner (Respondent's Additional Documents pages 10 13). The incident report was recorded on 24 July 2012. The complaint was received by the Board from WA Police (Page 17)
following the Board's exercise of investigative powers under s 165 of the National Law, requiring WA Police to provide copies of the documents to the Board (Respondent's Additional Documents page 30). 64 In her letter, Complainant 7 alleges that she attended the practitioner for a pregnancy checkup. She maintains that the practitioner put his hands down her pants with no gloves on and touched her vagina. At the time she allegedly thought it was normal to do so as she was having her first child. She says that the practitioner did not wash his hands and started rubbing his nose and sniffing at the same time, which scared and revolted her. 65 After a subsequent check-up on 28 January 2012 by a different doctor, Complainant 7 allegedly realised that there had been no need for R to touch her vagina, prompting her to make a complaint to R's practice. 66 According to Ms Britton's affidavit, the police have requested that AHPRA does not require the production of statements that have been obtained from Complainants 7 - 10. She says that the police state that the production of these statements may jeopardise their investigation of the practitioner.
Complainant 8 67 Through the same investigative process the Board received an incident notification made to the practitioner's practice on 30 January 2012 (Respondent's Additional Bundle pages 14 - 16). 68 Complainant 8 is a 19year-old female patient who made a written complaint in a letter dated 20 January 2012 to the practitioner's practice. Complainant 8 states that on 19 January 2012 she consulted the practitioner to collect blood test results and was asked by the practitioner if she needed a pap smear, which she refused. The practitioner also allegedly said that he was doing skin cancer searches on people. After checking two areas of concern to Complainant 8, the practitioner allegedly stated that he needed to check her whole body. Complainant 8 alleges that the practitioner felt her breasts, making her feel uncomfortable, and then pulled her skirt down and told her to pull her legs apart. Without wearing gloves, he allegedly then pulled apart her labia, leaving the complainant feeling shocked and frightened. She left in a rush and complained immediately to her boyfriend. (Page 18)
Complainant 9 69 Through the same investigative process the Board received an incident application made to AHPRA on 8 August 2012 (Respondent's Additional Documents pages 19 - 21). 70 Complainant 9 is a 20year-old female patient who consulted the practitioner on 2 August 2012 needing a prescription for a urinary tract infection. She alleges that the practitioner wanted to give her a hug after discussion and then proceeded to say how beautiful she was. The practitioner allegedly asked what her bra, bottom and top sizes were and then said that he would buy her clothes and gifts. Complainant 9 says that the practitioner hugged her through the visit and then without warning reached into her top and pulled out her breast, reached in for the other and asked if she had noticed any lumps. Complainant 9 alleges that on 6 and 7 August 2012 the practitioner phoned her mobile phone and on one occasion left a message asking to see her. 71 Again, Ms Britton says that the incident remains under investigation by WA Police.
Witness A 72 Witness A is employed by the practice where the practitioner worked at all relevant times. 73 Witness A alleges in a signed notification to the Board dated 10 August 2012 that there had been complaints made to the practice with regards to the practitioner's conduct. The notification to the Board was received on 13 August 2012 and the practitioner was advised on 17 August 2012 during the show cause process (Respondent's Bundle pages 100 - 107). 74 Witness A alleges that patients have complained of having breast examinations conducted by the practitioner 'when all they came in with was a cold'; of pap smears being done without wearing gloves and of digital penetration for the purposes of examination. Witness A says all of the patients concerned were female under the age of 21, and some as young as 16. Witness A states that all of the complainants seem to be 'foreigners', by which she says that she means persons not based near the practitioner's practice. 75 Witness A further maintains that: (Page 19)
It has come to my attention also that this doctor should have a chaperone when he is seeing a female patient. To my knowledge this does not happen. 76 Witness A maintains that the practitioner makes detailed notes on patient records when he has conducted a pap smear or breast or vaginal examination, but 'never really writes notes on patient records on any other occasion'. 77 Witness A's allegations remain the subject of investigation by the Board as detailed in Ms Britton's affidavit.
The Board's submissions 78 The Board submits that, because of the practitioner's alleged conduct, the Tribunal ought to form a reasonable belief that the practitioner poses a serious risk to persons, and that it is necessary to take immediate action to protect public health or safety. 79 The Board contends that, of the nine young women who allege that the practitioner has acted inappropriately, seven say he indecently assaulted them and two say that he sexually penetrated them. The Board states that all of the complainants, except Complainant 5 whose age is not stated, are between 17 and 26 years old and that the allegations against the practitioner bear striking similarities. Furthermore, the Board suggests that a number of the complainants' allegations indicate a particular pattern, in that the practitioner allegedly targets potentially vulnerable young women who attend on him. The Board states that seven of the nine complainants consulted the practitioner for matters which did not require intimate examination. The Board contends that there is no evidence at this stage to suggest that the complainants may have colluded in any way. It is on this basis that the Board submits that it reasonably believes that the practitioner poses a serious risk to persons. 80 Six of the allegations arose after the first immediate action notice and after the chaperone condition was in place. The Board argues that the Tribunal should form a reasonable belief that attaching any condition to the practitioner's registration would not alleviate the risk to public health or safety. The Board states that it has no confidence that the practitioner would comply with more stringent conditions on his registration. 81 The Board maintains that there is significant cause for concern of possible harm or danger to the health or safety of members of the public who may attend on the practitioner as patients if immediate action by way of suspension of the practitioner's registration had not been taken. (Page 20)
The practitioner's submissions 82 The applicant has filed two sets of submissions with the Tribunal. The first is an initial outline of submissions dated 5 October 2012. The second is a set of submissions dated 29 October 2012 in reply to the respondent's submissions outlining the complaints. 83 Some of these submissions relate to what the practitioner regards as a failure by the Board to take the further action required by s 158(1)(b) of the National Law. However, the matter of whether or not the Board has complied with that obligation is not subject to review by the Tribunal (Bernadt at [127][133]) and the Tribunal does not propose to consider this part of the applicant's submissions.
Practitioner's response to the allegations 84 The applicant's submissions address in turn each of the allegations made against the practitioner. 85 The practitioner submits that the notification to AHPRA by Complainant 1 is open to question because the notification form contains different sets of handwriting. This allegedly suggests that the AHPRA notification was prepared by persons other than Complainant 1, which brings into question the accuracy of the complaint. The practitioner alleges that the draft witness statement prepared by AHPRA remains incomplete and unsigned, and that in nine months little effort was made to obtain a signed statement. Therefore, the practitioner submits, all that was before the Board on 24 August 2012 when it suspended the practitioner's registration was an unverified allegation. On this basis, the practitioner contends that the complaint from Complainant 1 was insufficient to justify the need for urgent immediate action. 86 In relation to Complainant 2, the practitioner says that the AHPRA notification was prepared by another person and that there is therefore no first-hand account of Complainant 2's version of events. 87 The most serious allegations made by Complainant 2 are, according to the practitioner, that the practitioner hugged her and attempted to kiss her. Therefore, the practitioner submits, the Board cannot determine the seriousness of the practitioner's conduct and whether there was some misunderstanding. The submissions also point out that, in contrast to the allegations by Complainant 1, in this case there is no suggestion that the practitioner attempted to touch Complainant 2's breasts. (Page 21)
88 In response to Complainant 3's allegations, the practitioner states that the signed witness statement was not before the Board when it decided to suspend the practitioner. The submissions further note that although Complainant 3's allegations are part of a signed deposition, they remain untested. 89 In relation to Complainant 4, the practitioner points out that the notification to AHPRA was prepared by the complainant's mother, and that there is therefore no first-hand account of the alleged events. Further, the notification was allegedly not before the Board when they proposed suspending the practitioner. This is why the practitioner's response to AHPRA dated 22 August 2012 opposing suspension does not refer to the complaint. The practitioner argues that the allegation of touching Complainant 4's nipples must be seen in the context of the whole examination. The practitioner submits that he carried out an examination and gave medical advice based upon what he observed and the patient's history. The practitioner says that 'reasonable minds may differ as to the efficacy of his approach, but this complaint is not like the other complaints alleged'. 90 The practitioner submits that the allegation of Complainant 5 was only received by telephone and is therefore unsupported by any statement from the complainant. Given that the practitioner does not know the identity of Complainant 5, he is unable to furnish any response about his relationship with her. The practitioner in his submissions also points out that Complainant 5 has taken no further action in the last two months. Although the practitioner's submissions concede that the allegation is potentially very serious, the practitioner points out that this complaint is unsubstantiated, untested and he says it should form no part of the Tribunal's consideration. 91 In relation to Complaint 6, the practitioner again points out that the relevant signed witness statement was not before the Board when it proposed suspending the practitioner. The practitioner's submissions state that all the Board had at the time was verbal advice from WA Police. The practitioner submits that, although the allegations of Complainant 6 form part of a signed deposition, they remain untested. 92 The practitioner's submissions in respect of the complaint by Complainant 7 are that this was not before the Board when it advised the practitioner on 17 August 2012 of its proposal to suspend the practitioner's registration, and therefore the practitioner has made no written response to the Board. The practitioner says that, as he has no (Page 22)
information identifying Complainant 7, he is unable to confirm whether Complainant 7 was his patient. His submissions note that, although Complaint 7 dates back to 13 January 2012, no complaint was made contemporaneously with the alleged incident. Further, the submissions point out at paragraph 7.3.1 that: 'the incident report was only made on 24 July 2012, over six months later, coincidentally at the same time as the Practice Manager … completed two other Incident Reports within days of each other'. The practitioner contends that the handwritten note attached to the practice incident report is undated and unsigned and that there are two different sets of handwriting on the letter. The practitioner says that it is alleged that the practitioner touched the top of Complainant 7's vagina and not the vagina itself. Therefore, in his submission, this complaint is not of a similar nature to the others, because it has not been established that there was no need for the examination the practitioner allegedly performed. The practitioner argues that there is no evidence to suggest that Complainant 7's check up on 28 January 2012 prompted her to make the complaint to the practitioner's practice. The incident report was made six months later. Finally, the practitioner submits that there is still no signed witness statement from Complainant 7 and therefore the complaint is unsubstantiated by statement, untested, and should form no part of the Tribunal's consideration. 93 The practitioner says that the complaint from Complainant 8 also did not form part of the material before the Board when it proposed to suspend the practitioner, and this is why the practitioner has given no written response to the Board. The practitioner also says that he has not been given any information identifying Complainant 8 and is unable to confirm whether Complainant 8 is his patient. He submits that there was a delay of 10 days after the complaint was received in producing the incident report. Further, the incident report did not note any follow up action to be taken in relation to the incident, and the incident was not reported to the Board in the usual way. The submissions in reply note that despite Complainant 8's serious allegations, there is still no signed witness statement and the police have not laid criminal charges against R in respect of this complaint. Therefore the practitioner submits that this complaint is unsubstantiated, untested and should form no part of the Tribunal's reasoning. 94 The practitioner makes the same submission in respect of the complaint from Complainant 9, namely that it was also not part of the material before the Board when it was considering whether to suspend the (Page 23)
practitioner, and the practitioner has not been provided with information identifying Complainant 9. The practitioner questions why the incident report dated 8 August 2012 completed by the practice manager does not note any action taken in relation to the complaint. Further, he points out that the complaint was not notified to the Board in the usual way. He also says that Complainant 9's letter of complaint dated 8 August 2012 is strikingly similar in typed font and style to the complaints appearing at tabs 2b and 2e of the Respondent's Additional Documents. Finally, the practitioner contends that the complaint is unsubstantiated by a signed witness statement, has not been the subject of criminal charges and should not form part of the Tribunal's consideration. 95 In relation to the statement of Witness A, the practitioner says that the complaints referred to in that statement were general, and unparticularised. In particular, the practitioner says that the basis for alleging that he breached the chaperone condition is not stated. The practitioner submits that he in fact complied with the chaperone condition and kept log records of his compliance as required by AHPRA. The practitioner considers that this calls into question the veracity of what Witness A has said. Further, he points out that there is no signed witness statement, and that no criminal charges in respect of this allegation have been laid against him. The practitioner submits that Witness A's allegations should form no part of the Tribunal's consideration. 96 The practitioner submits that, in summary, the material before the Tribunal is insufficient to support immediate action suspension. In relation to the criminal charges against the practitioner, the practitioner points out that he is innocent until proven guilty, and that the Board does not have any details of the allegations which have given rise to the criminal charges against him. The practitioner says that, although there was some consistency between the various complaints, they did not show a pattern. Further, the practitioner submits that the sudden flourish of complaints and the issues surrounding the 'authenticity' of the notifications suggest that the allegations may have been concocted. The practitioner submits that the conduct the subject of at least three of the allegations could be explained on medical grounds, and that only two of the allegations are supported by signed witness statements. The practitioner argues that, on the material before the Tribunal, any risk is confined to young female patients undergoing some type of physical examination where a chaperone is not present. Therefore, the practitioner says that if this is the risk about which the Board has concerns, then the imposition of a chaperone condition on his registration is the appropriate (Page 24)
means of ameliorating the identifiable risk. The practitioner, however, expressly denies that he poses a risk to young female patients.
Applicant's other evidence 97 The practitioner's solicitor filed two books of documents with the Tribunal in support of his application. One book of documents was filed with the original application and is dated 30 August 2012 (Applicant's Documents) and the other book is dated 29 October 2012 (Applicant's Additional Documents). 98 The Applicant's Documents contain two witness statements (Applicant's Documents pages 17 - 23). These statements outline the circumstances of a complaint made to Witness A by a nurse who was assisting the practitioner with a medical procedure. This complaint was not, independently, one of the allegations on which the Board relied in order to justify the immediate action suspension. 99 The Applicant's Documents also include a log book, which the practitioner says shows he was complying with the chaperone condition throughout the period of time when the complaints arose (Applicant's Documents pages 24 - 35). 100 The Applicant's Additional Documents include the practitioner's resume, evidence of his academic qualifications and references from numerous hospitals where he has worked (Applicant's Additional Documents pages 1 - 27). 101 The Applicant's Additional Documents also include two articles from the Medical Observer magazine (Applicant's Additional Documents pages 52 - 53). One article, at page 52, describes a perceived breakdown in doctorpatient relationships. This article suggests that many of the allegations of improper conduct which are now made against medical practitioners arise out of miscommunication between doctor and patient, as opposed to actual predatory behaviour. The second article, at page 53, discusses recent findings from a University of Melbourne study, which suggest that international medical graduates are 24% more likely to have complaints made against them. 102 The Applicant's Additional Documents contain 'Facebook' screen shots which indicate that some of the complainants were friends with one another (Applicant's Additional Documents pages 28 - 51). It is on this basis that the practitioner alleges there may have been some conspiracy between the complainants. (Page 25)
103 Finally, the practitioner also filed nine character references from the practitioner's patients.
Findings 104 Section 156 of the National Law clearly contemplates that, if a complaint is made against a health practitioner, it may be necessary to take protective steps for the safety of the public prior to and during the course of the substantive investigative process that will follow. The Tribunal continues to regard the taking of immediate action as a preliminary matter. 105 Obviously, the taking of immediate action, particularly when it comprises suspension of the practitioner's registration, will have serious consequences for the practitioner's reputation and his capacity to earn a livelihood. He is therefore entitled to know the case sought to be made against him and to be given an opportunity to reply to it; see Chief Executive Officer Department for Child Protection v Hardingham [2011] WASCA 262 (Hardingham) at [62] and the authorities there cited. However, we do not accept the practitioner's submission, relying on Bernadt at [27] (set out earlier in these reasons) that, because of the gravity of those consequences the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts under Briginshaw principle or approach. The Tribunal considers that the statement in Bernadt has been taken out of its context. The matter in Bernadt was heard over five days and, as the Tribunal said at [22], proceeded much as though it was the hearing of an allegation of professional misconduct against the practitioner. It did not proceed as a preliminary matter pending determination of the substantive complaint about the practitioner as contemplated in Lindsay and in Liddell. 106 Under s 156 of the National Law, the Board, and therefore the Tribunal, needs only to form a reasonable belief that the practitioner poses a serious risk to persons and that it is necessary to take immediate action to protect the public health or safety. We do not consider that the Briginshaw approach is appropriate. 107 Of course, because of the consequences to a practitioner, and because of the basis upon which the immediate action may have been taken, it is of the utmost importance that the delay between the time of the decision to take immediate action and the completion of the hearing on the merits is as short as possible. (Page 26)
Hearing de novo 108 The Tribunal considers that, pursuant to s 27(1) of the SAT Act, it is not confined to matters that were before the original decisionmaker but may consider new materials which were not before the Board; see, for example, Hardingham at [69]. This is not contested by either party. 109 However, for completeness, we should mention that, after the Tribunal made its decision in this matter, the Supreme Court of Victoria Court of Appeal held that an appeal to the Victorian Civil and Administrative Tribunal, under the National Law as it applies in Victoria, was not 'a rehearing de novo in the widest sense of that term'; Kozanoglu v The Pharmacy Board of Australia [2012] VSCA 295 at [95]. The Court held in that case at [95][96] that it: … would not have been permissible, for example, for the [Board] to adduce evidence of facts and matters that had occurred after the notification had been provided to the [Board] to justify, retrospectively, the decision to take immediate action. Nonetheless, VCAT was entitled, in our view, to receive any evidence that bore upon the decision that was actually taken by the [Board] at the time that decision was taken. 110 The Court went on to say at [119] that: The appeal to a responsible tribunal under the National Law is neither an appeal in the strict sense, nor a rehearing de novo. It is rather a hybrid, whereby the material to be considered is confined to that placed before the initial decisionmaker, but with the opportunity available to both parties to present additional evidence which bears directly upon that decision as originally taken. It is not "open slather", but nor is it an appeal confined to error. 111 It is unnecessary to consider this decision any further. First, the Tribunal had by the time that decision was handed down already made its orders in this matter. Second, the Tribunal's decision was reached based only on the information which was before the Board at the time when it suspended the practitioner.
The Tribunal's decision 112 The information before the Board was, in essence, the complaints of Complainant 1 and Complainant 2, and information that criminal charges had been laid against the practitioner, including in respect of Complainant 3. (Page 27)
113 The complaints of Complainant 1 and Complainant 2 both involve young female patients consulting the practitioner about, in one case, depression and in the other, the results of a scan. In both cases, the patients allege conduct by the practitioner that could not have arisen from the primary purpose of the consultations. 114 Complainant 3's complaint came to the attention of the Board through WA Police, who informed the Board that charges had been laid against the practitioner in respect of this and another, separate, complaint. 115 In the cases of Complainant 1 and 2, both patients alleged conduct by the practitioner that could not have arisen from the primary purpose of the respective consultations. In the case of the criminal charges, the Board is entitled to conclude that the police believe that there is prima facie evidence in relation to those charges. 116 Taking all these factors into account, the Tribunal is of the opinion that there exists a basis for a belief that because of the practitioner's conduct, the practitioner poses a serious risk to persons. The practitioner's conduct is not proved conduct and it is undoubtedly the case that the complaints could all be entirely concocted or that the actions of the practitioner in each case may have been misconstrued. Nonetheless, the complaints are not on their face trivial or misconceived and the conduct complained about is extremely serious. If proved, that conduct would undoubtedly lead to a finding of professional misconduct. 117 Because of the Tribunal's conclusion that there is a serious risk to persons, it follows that the Tribunal considers that it was and continues to be necessary to take immediate action to protect public health or safety. 118 The Tribunal further considers that suspension is necessary to protect the public. This is because the chaperone condition placed on the practitioner's registration after the Board received the complaint from Complainant 1 was ineffective to prevent further complaints. 119 In reaching this decision, the Tribunal has given little or no weight to the other complaints. 120 Complainant 4 consulted the practitioner with a skin complaint and the Tribunal accepts the possibility that the patient could have misconstrued the practitioner's actions and failed to understand that a thorough skin examination may have been required. (Page 28)
121 Complainants 5, 7, 8 and 9 have not been identified to the practitioner and he has therefore not had an opportunity to make a submission in respect of these complaints other than as a generality. 122 The complaints contained in the statement of Witness A would, in their present form, equally present the practitioner with difficulty in making any meaningful submission in response. 123 The documents provided by the practitioner comprise professional references which attest to the practitioner's reliability and competence as a medical practitioner. However, this is not the issue in dispute and the Tribunal is therefore not assisted by them. The documents also include statements from nine of the practitioner's former patients, all of which speak well of the practitioner as a general practitioner. On the face of these statements, however, none of the witnesses are aware of the complaints made about the practitioner and again the Tribunal does not find these documents to be useful.
Conclusion 124 The Tribunal concluded that the decision of the Board to take immediate action in relation to the practitioner by suspending his registration is the correct decision. The decision was affirmed.
Orders 125 The Tribunal made the following order: 1. The application for review is dismissed. |