Rao v Medical Board of Australia

Pradeep Hanumantha Rao is a registered medical practitioner. The Medical Board of Australia, pursuant to the Health Practitioner Regulation National Law (Queensland) (National Law), decided to impose conditions on the applicant’s registration. The applicant sought a review of that decision. The Queensland Civil and Administrative Tribunal (Tribunal) was required to determine whether the Board had reasonably believed that the applicant, because of his conduct or performance, posed a serious risk to persons. The Tribunal was also required to determine whether the decision of the Board should be set aside. In assessing whether a person poses a serious risk to persons, the Tribunal considered the nature of the risk, the likelihood of its eventuating and the seriousness of the consequences if the risk does eventuate. The evidence before the Tribunal permitted uncontroversial findings as to the circumstances leading up to the applicant’s examination of Patient A. Patient A was transported to St Andrew’s for further investigation with the primary diagnosis being recorded as “pain – muscular/soft tissue”. There was no documentation in the patient’s medical record that a breast examination was completed or that consent for this was obtained. The applicant explained that he was distracted by another patient and simply failed to make any records and frankly acknowledges his unsatisfactory failure to do so. The Board placed particular emphasis upon a risk and quality file note dated 10 September 2020 which appears to have involved conversations between the Director of Medical Services and the risk and quality manager. The Director of Emergency Care was concerned that the applicant had done this to other patients. Most patients may not feel they can speak up. The applicant has sworn two affidavits in the proceedings. He deposes that, since the complaint, he has undertaken further education in relation to effective communication, use of chaperones, and the Medical Board of Australia Code of Conduct. Since being advised of the complaint, he has implemented the use of a practice monitor for all intimate examinations of female patients. The Tribunal has before it an affidavit from Dr Mark Baldwin, the director of the emergency centre at Greenslopes Private Hospital. He has known the applicant since August 2018 and is his direct supervisor at that hospital. He deposes to having found the applicant to be wholly professional in his interactions with patients and staff at Greenslopes Private Hospital. The Tribunal also has before it an affidavit of Dr Dilip Kumar, the Director of Medical Services at Gladstone Hospital. He has known the applicant for four years and is the applicant’s direct supervisor at Gladstone Hospital. Dr Kumar deposes that the applicant is a highly skilled practitioner and good leader whose clinical skills and interpersonal skills have earned him great respect amongst his peers, juniors, nursing and other staff in the emergency department. The real issue in relation to the question of any serious risk presented by the applicant and any need for immediate action is the fact of his breast examination of Patient A and the way it was carried out. The motivation of the applicant in performing the breast examination remains a matter in dispute and does not, given the nature of the Tribunal’s task as explained in the authorities previously referred to in these reasons, require resolution at this time. The breast examination occurred after appropriate clinical examinations in relation to cardiac issues had revealed no cardiac cause for the chest pain. The breast examination was not accompanied by any type of other explicit sexual behaviour or inappropriate comments and is quite capable of being regarded as, albeit unorthodox and ultimately unfortunate, motivated by genuine clinical motives. In all the circumstances, I do not consider that the evidence is such as to base a reasonable belief that the applicant presents a serious risk to persons because of the risk that he might sexually assault a patient or otherwise breach appropriate professional boundaries. If I have not already made it clear, I do not consider that any of the other alleged deficiencies in the applicant’s practice are such, either by themselves or in combination with concerns as to the fact and circumstances of the breast examination, sufficient to base a reasonable belief as to a serious risk. The Tribunal set aside the decision of the Medical Board of Australia of 18 February 2021.