Health Care Complaints Commission v Balasingham

NCAT Occupational|2023-11-09|Before: Dr J

REASONS FOR DECISION

This matter was before the Tribunal for the hearing of an Application by the Health Care Complaints Commission (HCCC) in relation to Dr Balasingham.
The Complaint has three Grounds and relates to two patients. We have ordered that the patients not be identified and they are referred to as Patient A and Patient B in these Reasons. There is another patient and another person who we have referred to and whose identity we have also protected and they have been referred to as Patient C and Person 1.
The parties have agreed that this Tribunal is to make findings as to whether any or all of the particulars of the first two Complaints have been established, and then decide whether Dr Balasingham is guilty of professional misconduct as asserted in Complaint Three (Stage 1).
The decision as to the appropriate Protective Orders, if any, flowing from these findings will be made after a separate, later hearing (Stage 2).

The Practitioner

Dr Balasingham is an overseas trained general practitioner who was first registered as a medical practitioner in India in 1987 and then registered in NSW in 2001.
Between 2001 and 2009, Dr Balasingham worked as a CMO, SRMO and registrar in various hospitals.
Since 2009 Dr Balasingham has been a general practitioner. He started to work at Woodville Road Medical and Dental Centre ('WRMD') on 18 April 2019. His registration was suspended on 12 March 2021, but on 7 April 2022, he was permitted to return to practice with conditions on his registration.

The Oral Evidence given to this Inquiry

Dr Balasingham gave evidence and was cross examined.
Patient A gave evidence and was cross examined.
Two experts, Dr Jalota (retained by the HCCC) and Dr Newberry (retained by Dr Balasingham), prepared reports, gave evidence and were cross examined.

Patient A

The complaint in relation Patient A relates to her consultation with Dr Balasingham after 5 pm on 5 September 2020, which was a Saturday. This was her first, and only, attendance at his practice.
Patient A was accompanied to the consultation by Person 1. He waited in the waiting room.
Two days later, on 7 September 2020, the HCCC received a complaint from Patient A. The following outline of the evidence of Patient A is taken from that complaint.
Patient A had gone to see Dr Balasingham because she had missed a period and had some abdominal cramps. She said he asked her numerous inappropriate questions about her sexual history. This included asking her about the number of partners she had had since becoming sexually active. When she told him she had been sexually active from the age of 15 and before being married, he said to her 'so you used to go to school and do it on the way and your parents didn't know about it'. Dr Balasingham was standing during this questioning and kept smiling while asking the questions. Dr Balasingham asked where her boyfriends were from, how many sexual partners she had since she had come to Australia and other personal questions about her living arrangements in Australia. He also asked whether Person 1 was sitting outside in the waiting room.
After taking a urine test which showed negative to pregnancy, Dr Balasingham said "let's check to see where the pain is coming from". She said she told him that she did not have pain anywhere, she had cramps a few days earlier and her body was sore. She said Dr Balasingham insisted that he should have a look, she replied "I'm not having pain down there but only if you need to".
Dr Balasingham asked her to get on the bed and get ready for the check up. He stood at her side, placed his left hand on her lower abdomen and put fingers of his right hand inside her vagina. He moved his right hand around in a circular motion. Patient A said she wasn't sure up to this point whether this was normal procedure.
Dr Balasingham then took his right hand out of her vagina and started rubbing around her vagina and clitoris in a circular motion while placing his left hand on her stomach. Throughout this, he kept asking whether she had pain anywhere and she kept telling him that she didn't have pain anywhere around her vagina and abdomen. Dr Balasingham did not acknowledge what she was saying.
When Dr Balasingham was touching her outside her vagina, Patient A said it did not feel normal or appropriate. She was shocked by what had happened and wasn't sure what to do.
Dr Balasingham had asked her to book in for an appointment on the following morning. She left the consultation room, went to the reception, and booked an appointment but said she knew she would not go back.
Patient A left the practice with Person 1. They walked around the corner and she couldn't hold it in anymore so she explained what had happened.
They were both very upset but wanted to confirm whether Dr Balasingham's actions were normal procedure. Patient A called the health services line and they told her to contact the HCCC.
Patient A said she had thought about confronting Dr Balasingham, but Person 1 suggested it would be better to lodge a formal complaint as the practice may not take appropriate action.
Patient A then made the complaint received by the HCCC on 7 September 2020.
On 7 September 2020, Patient A made a statement to the police. She repeated the history about the questions asked by Dr Balasingham. She added that she had also told Dr Balasingham that she had spotting on 24-25 August. She also added that, before examining her internally, Dr Balasingham first felt her abdomen while she was lying on the bed fully clothed. She described the internal examination and said that after Dr Balasingham had removed his fingers, he rubbed her clitoris and the outside of her vagina for about 5 or 6 seconds.
Patient A's later statement to the HCCC dated 7 November 2021 and her evidence before us, was essentially consistent with these two earlier statements.

Patient B

Patient B is a female. She first consulted Dr Balasingham at WRMD on 27 April 2019. Patient B had been previously treated by Dr Balasingham at a different practice.
The HCCC says that between 26 April 2019 and 9 April 2021, Dr Balasingham failed to appropriately monitor Patient B's medication regime of mirtazapine, temazepam and diazepam.

Patient A

Dr Balasingham has explained what he says occurred in relation to his treatment of Patient A on a number of occasions - at the s 150 hearing on 1 October 2020 (the first s 150 hearing), in a letter from his solicitor to the HCCC dated 21 April 2021, in his letter dated 7 July 2022 to the HCCC providing particulars under s 40 of the Health Practitioner Regulation National Law (NSW) (the "National Law"), in a statement dated 27 October 2023 and in his evidence before us. We set out below a general summary of the tenor of Dr Balasingham's account of what occurred and will discuss later in these Reasons the principal inconsistencies in his evidence.
Dr Balasingham denies that anything inappropriate occurred during the consultation. He says his questions about Patient A's sexual history were consistent with the training he received at a family planning course and were designed to exclude the possibility of other conditions such as a sexually transmitted disease.
Dr Balasingham said that his main concern was whether Patient A had an ectopic pregnancy. If she did, he needed to act quickly. It was a Saturday evening and he did not have access to an ultrasound facility and the company which collected blood samples from his practice rarely came after 5 pm.
After examining her abdomen through her clothes, he said to Patient A that he could not find any tenderness and a vaginal examination could give more information about the possibility of ectopic pregnancy or an infection. She replied, "It's all up to you."
Dr Balasingham said he explained the procedure to Patient A and she consented to the procedure. He then performed the vaginal examination and did not find any tenderness.
Dr Balasingham denies that he intentionally inappropriately touched Patient A at any time.
Dr Balasingham said he concluded from the absence of pain that there was no need for any urgent action, such as referral to a hospital and he asked Patient A to make an appointment to see him the next day for a blood test.

Patient B

Dr Balasingham denies that he failed to appropriately monitor Patient B's medication regime.

Conflicting evidence

The onus is on the HCCC to establish the various matters raised in the Complaints. To make any such finding we must be "comfortably satisfied" that the matter has been established on the balance of probabilities (Briginshaw v Briginshaw (1938) 60 CLR 336).
It is common ground that there are some irreconcilable differences between the accounts of Patient A and Dr Balasingham.
Counsel for Dr Balasingham submitted that both Dr Balasingham and Patient A appeared to be sincere witnesses. Accordingly, he submitted, the Tribunal would approach the differences between Patient A and Dr Balasingham on a cautious basis, having regard to the onus of proof and the need to be comfortably satisfied of matters, especially in relation to the more serious aspects of the complaints relating to Patient A. That is, the Tribunal would not be left with any overall sense that the account of one of the witnesses should be preferred, but rather would consider what finding was indicated in respect of each significant matter in contest.
We are not persuaded that is the appropriate way to proceed as Patient A describes an escalating course of sexualised conduct.
In relation to Patient A, we find that her accounts of the factual matters underlying the Complaints are essentially consistent through her written statements and oral evidence.
We also take into account that Patient A made an immediate complaint to Person 1. His statements to the HCCC and to the police confirm that: 1. He could tell that something was wrong as Patient A came out of the consulting room. By the time they reached the car, Patient A was crying. 2. Patient A told him that Dr Balasingham had asked her detailed personal questions about her sex life and her sexual history which she felt were inappropriate, such as how many previous sexual partners she had, what nationality they were, whether her parents knew when she became sexually active and whether she used to have sex on the way to school. 3. Patient A told him that she thought Dr Balasingham had performed an examination that she was not sure was necessary, and he had touched her inappropriately. 4. Patient A told him that Dr Balasingham had asked whether she was experiencing any pain in her vaginal area. She told him she wasn't, and he then started pressing down and rubbing around her vaginal area. He then inserted his fingers in her vagina and began moving them around. She told him again that she was not experiencing any pain in that area. Patient A told him that she felt as though Dr Balasingham had been trying to stimulate her and felt that the examination had not been done in a way that these examinations would normally be done.
Person 1 was not required for cross examination.
In addition, as we have already said, Patient A made a complaint to the police two days after the consultation.
Dr Balasingham made a lengthy contemporaneous note at the time of the consultation. He said he had taken a comprehensive history, both of Patient A's general health and her sexual history.
Dr Balasingham said that the program which he used, Best Practice, gave "no" as the default answer, so he would quickly run through all of the questions, and he only needed to make an entry if the answer was "yes". He said he always asked all the questions if it was a new patient, even though the information may not be relevant to the presenting problem.
Dr Balasingham conceded that two of the entries in his contemporaneous notes were incorrect. Firstly, the reason for the visit was incorrectly entered as "Anxiety/ Depression". Secondly, the record initially identified that a speculum examination had been undertaken. Dr Balasingham amended his records on 25 September 2020 in response to the Medical Council of NSW asking for his notes following Patient A's complaint, to say that no such examination had been done.
Dr Balasingham identified the entry which he had manually added on the day of the consultation as being the following: Missing period LMP (last menstrual period) 22/7/20 Period regular - 3-5/28-30 Had a bit of spotting on the 24/8 Had severe cramps - 3-4/7 ago Home Pregnancy test negative VE - No Obvious tenderness - over the Cx or on the fornices
Dr Balasingham said he suspected an ectopic pregnancy because Patient A had complained of abdominal pain. While the notes do refer to Patient A having had cramps three or four days ago, they also say "No abdominal pain". Dr Balasingham told us that this was a question the answer to which had been autofilled as "No abdominal pain" and he had forgotten to delete it as he had intended to fix it after he had seen the next patient.
We are satisfied that the following matters impact on the reliability of the evidence of Dr Balasingham. 1. Dr Balasingham told the first s 150 hearing that he had asked Patient A about her sexual history, and she had disclosed everything to him happily and promptly after he told her it was a common questionnaire. Because of her cultural background he had been a bit surprised when she said she had been sexually active from the age of 15, but he did not remember saying anything and he thought maybe she had picked up his facial expression if he had shown a reaction. He did not remember whether he had asked "So you used to go to school and do it on the way and your parents didn't know about it", but he didn't think he had. In both his letter dated 7 July 2022 and his statement dated 23 October 2023 (which was made shortly before this Inquiry commenced) Dr Balasingham again said when Patient A told him she had been sexually active from the age of 15 he had been a little surprised, in light of her cultural background and it may have been reflected in his facial expression. He did not remember saying "So you used to go to school and do it on the way and your parents didn't know about it". However it was in cross-examination before us that, for the first time, Dr Balasingham said that his surprise at learning that Patient A became sexually active at 15 was out of concern that it might have been non-consensual and possibly criminal, because of her age. He added that her cultural background was one of the reasons he was surprised. Dr Balasingham was unable to explain why he had not said anything about his concerns about non-consensual activity in any of his previous statements. In view of the many earlier opportunities given to Dr Balasingham to explain this issue, we do not accept his oral evidence before us in relation to this issue. 1. There is also conflicting evidence as to whether Dr Balasingham asked Patient A about contraception. It is common ground that this would be relevant to making a diagnosis in the context of the history given by Patient A. Patient A was asked whether Dr Balasingham had asked her about contraception and she replied that maybe he did, she did not remember. There is no reference to the issue of contraception in Dr Balasingham's notes. This was Dr Balasingham's evidence at the first s 150 hearing: DR HAIKAL-MUKHTAR: Did you take a history of contraception? DR BALASINGHAM: I can't remember. I think I asked her but I don't think I put it there. DR HAIKAL-MUKHTAR: Yeah. Is that a very important thing to ask - - - DR BALASINGHAM: Of course. DR HAIKAL-MUKHTAR: - - - and record because - - DR BALASINGHAM: Sure. DR HAIKAL-MUKHTAR: - - if you're worried about ectopic, I would have thought that would be the sort of thing I would do. DR BALASINGHAM: Sure. In his statement dated 27 October 2023 Dr Balasingham said he had asked Patient A whether she had used condoms when she was sexually active. In giving evidence before us, Dr Balasingham said he would have asked about contraception. We find that this inconsistency and uncertainty in the evidence of Dr Balasingham in relation to a significant issue to be considered when arriving at a diagnosis, impacts on the reliability of his evidence. 1. Next there is the issue of whether Dr Balasingham informed Patient A that he suspected an ectopic pregnancy and discussed with her the option of attending at the Emergency Department of a hospital. Patient A said that Dr Balasingham had never said that he was concerned at the possibility of an ectopic pregnancy nor did he say that a vaginal examination may show a clue as to whether she had an ectopic pregnancy. The possibility of an ectopic pregnancy is not mentioned in Dr Balasingham's notes. Nor is there a reference to a discussion with Patient A about the option of attending at a hospital. Dr Balasingham told the first s 150 hearing that, after he had checked her abdomen through her clothes, he had said to Patient A that a vaginal examination may give a clue as to whether there was a possibility of an ectopic pregnancy and it was up to her. There is no mention in his evidence of having discussed with Patient A the option of attending at the Emergency Department of a hospital. In his letter dated 7 July 2022 Dr Balasingham said he had decided to conduct a vaginal examination to determine whether Patient A might have an ectopic pregnancy which is a medical emergency. He said he had considered a referral to the Emergency Department and he discussed this with Patient A and she agreed to proceed to a vaginal examination. In cross examination before us, he denied that he had made this statement because he had read Dr Jalota's report in which Dr Jalota said that if an ectopic pregnancy was a possibility, referral to the nearest Emergency Department would have been the right approach and not a vaginal examination. In his statement dated 27 October 2023 Dr Balasingham said that, in light of patient A's presentation, he considered referral to the Emergency Department, but he felt that it was preferable to proceed to a vaginal examination, as a means of clinical investigation to avoid any unnecessary hospital presentation. He did not say he discussed these issues with Patient A. We prefer the evidence of Patient A because we consider the evidence of Dr Balasingham in relation to this issue to be inconsistent and unreliable. We find Dr Balasingham did not discuss with Patient A either his differential diagnosis of a possible ectopic pregnancy or the option of going to a hospital. 1. Next there is the issue of Dr Balasingham performing a vaginal examination without a chaperone. There is no reference to a chaperone in Dr Balasingham's notes. We accept the submission made by counsel for the HCCC that Dr Balasingham's explanations as to why he did not offer a chaperone were confusing and inconsistent. At the first s 150 hearing, Dr Balasingham said that, as a result of a complaint made years ago by another patient, Patient C, he had learned not to do anything without a chaperone. He said however that when he suggests to a patient that someone could be present, most patients say there is no need for that. Otherwise his nurse would be the chaperone, and if the nurse was not there, he would ask one of the receptionists, or ask the patient whether they were happy for their partner to be present. At that s 150 hearing, Dr Balasingham gave two reasons for not offering Patient A a chaperone. He said that it had "slipped my mind". He also said he had thought about calling the receptionist to stand by his side, but his wife was on reception, and he felt uncomfortable asking her to be the chaperone because of the nature of the examination. In his letter dated 7 July 2022 Dr Balasingham said he did not follow his usual practice of offering a chaperone as the only female present was his wife who was performing the role of receptionist. He said he felt uncomfortable about offering his wife as a chaperone because she was not clinically trained and it was culturally unacceptable to her. In cross examination before us Dr Balasingham said his standard practice was to offer a chaperone. He also said that he understood, at the time, the importance of the rule because there had been a previous complaint made about his conduct when he had seen a patient without a chaperone. Dr Balasingham was asked to explain how the issue of a chaperone could have both slipped his mind and been in his mind to be able to decide that his wife was unsuitable to act as a chaperone. Dr Balasingham said he had initially thought about the issue of having a chaperone and decided it was culturally inappropriate for his wife to witness him performing an intimate examination. He then explained the process of the vaginal examination to Patient A and then forgot about the issue of a chaperone. Dr Balasingham also said that he would have been happy to have Person 1 as the chaperone but he did not know that he was in the waiting room. This conflicts with the evidence of Patient A. In her complaint made on 7 September 2020, she said Dr Balasingham had asked whether she had a companion sitting outside in the waiting room. In her statement dated 23 July 2021, Patient A said she had told Dr Balasingham that Person 1 was outside. The first occasion on which these statements were denied by Dr Balasingham was in his evidence before us. Dr Balasingham also told us that he had discussed the question of a chaperone with Patient A. This conflicts with the evidence of Patient A and it conflicts with Dr Balasingham's evidence at the first s 150 hearing when he said: That's what I told her and she actually - and I told her, "This is the procedure. This is the procedure I'm going to do," and in this case I - on that day I - normally I ask whether they - if she wants a chaperone, but I thought - it slipped my mind on that day. We find that, as at 5 September 2020, Dr Balasingham knew he should have asked Patient A whether she would like a chaperone while he performed the vaginal examination. We do not accept Dr Balasingham's oral evidence as to his reasons for not offering a chaperone to Patient A and find that he was told by Patient A that Person 1, who would have been a suitable chaperone, was in the waiting room. We further find that Dr Balasingham did not offer a chaperone to Patient A. These findings, which significantly impact on the appropriateness of Dr Balasingham's conduct, also affect the reliability of all the evidence of Dr Balasingham. In addition we accept the submission by counsel for the HCCC that Dr Balasingham's decision not to have a chaperone during a vaginal examination is strongly suggestive of an ulterior motive on the part of Dr Balasingham. 1. We also accept that Dr Balasingham gave differing evidence as to how busy he was at the time of the consultation. At the first s 150 hearing he said: DR HAIKAL-MUKHTAR: Could you have been pressured for time, do you think? Like, do you think it could - because sometimes if you're a bit tired and pressured for time - you know, you might be doing all the things properly, you know, technically, but maybe not very attentive to the body language, the reactions - which is human nature. I'm just asking you, could that have been a factor with that (indistinct) DR BALASINGHAM: Not really. I think there was probably one patient waiting outside at that time, when I was - - - He told us that when he saw Patient A he was under pressure as Patient A was his 40th patient that day, and he had seen 54 patients in total that day. This inconsistency in the evidence of Dr Balasingham has not been explained. 1. There is also an inconsistency in the evidence as to the history given to Dr Balasingham in relation to whether Patient A's pain had settled days before the consultation or whether she was feeling pain up to and on the day of the consultation. In her complaint received on 7 September 2020, Patient A said she had told Dr Balasingham that she did not have pain anywhere, she just had cramps a few days earlier and her body was sore. Patient A told us that she had some cramping for one or two days but had not had any cramps in the two or three days before she saw Dr Balasingham. This evidence from Patient A is consistent with the history recorded in Dr Balasingham's notes which says, "Had severe cramps - 3-4/7 ago". This evidence from Patient A is also consistent with the evidence given by Dr Balasingham to the first s 150 hearing when he said that one of Patient A's main complaints was that she had suffered severe cramps three or four days earlier. In his statement dated 27 October 2023 Dr Balasingham said Patient A told him that she had suffered severe abdominal cramps which started three to four days prior to presentation. He did not say that the cramps had stopped three or four days earlier. In his evidence to us, Dr Balasingham again said that Patient A had told him that she had suffered from cramps in the three to four days leading up to the consultation. He clearly recalled that she had come to see him because of abdominal pain, that was why she had asked Person 1 to make an appointment to see him. He did agree that she did not have any cramps at the time of his examination but said that cramping is not continuous. He had relied on the symptom of severe lower abdominal pain to diagnose a possible ectopic pregnancy. Dr Balasingham denied that Patient A had said that she had cramps three to four days ago for one to two days. Dr Balasingham also said Patient A told him that the cramping was in the lower abdomen. He said he had not put into his notes the details of his questions to Patient A regarding her abdominal pain, and her response to those questions because that would mean that the appointment would have taken three or four hours. As we have already said, when Dr Balasingham was asked why his notes say "no abdominal pain", he said the autofill comes with "no", he would have had to change it to yes, he was going to fix it after he had seen the next patient, he had forgotten to do that, he was under pressure and he closed her notes without checking. We find that Dr Balasingham was told by Patient A that the cramping had stopped three to four days before the consultation and that she had no pain at the time of the consultation as this is consistent with the contemporaneous evidence from Patient A, the contemporaneous note made by Dr Balasingham and Dr Balasingham's evidence at the first s 150 hearing. This means we do not accept Dr Balasingham's evidence to us. We are satisfied that this finding impacts on the reliability of the evidence of Dr Balasingham. 1. There is also the issue of informed consent to the vaginal examination. Patient A denied that Dr Balasingham had explained the procedure to her and denied that he had used his hands to show what he was proposing to do. He had said to her, "Let's check down there … let's check where the pain is coming from", and gave no explanation as to why, or what it would involve. There is no reference in Dr Balasingham's notes to any consent process having been undertaken for the vaginal examination. At the first s 150 hearing Dr Balasingham said he had explained the procedure twice to Patient A. As we have already said, Dr Balasingham told the Panel that, after he had checked her abdomen, he had said to Patient A that a vaginal examination may give a clue as to whether there was a possibility of an ectopic pregnancy and it was up to her. He then explained the procedure - he would insert his finger into her vagina to check the cervix and the sides of the cervix for pain. She then agreed. He then washed his hands and put gloves on while she got undressed. He then told her the procedure again. He did not say to the Panel that he had used hand gestures to demonstrate his explanation. In his letter dated 7 July 2022 Dr Balasingham said that not only had he verbally explained the procedure but he had also demonstrated it to Patient A by holding his right index and middle fingers to show they would be inserted internally and with his left hand showed he would be using it to palpate on top of the abdomen. He then asked whether she had any questions, and she did not ask any questions. He then asked her if she wanted to go ahead and she said "I do'' and she voluntarily agreed to proceed. He did not say he had given the explanation twice. In his statement dated 27 October 2023 Dr Balasingham said he gave a verbal explanation and that his recollection was that he showed her what he planned to do by using one hand to represent her vagina and then showing the motion that he would be using with his fingers. He did not say that he used his left hand to demonstrate that he would be using it to palpate on top of the abdomen (as he had in his letter dated 7 July 2022). He then asked if she had any questions and if she wanted to go ahead and she said yes. He said that in hindsight, he did not check with her whether she had understood what he had explained, and he thought he was brief in his explanation. He again did not say he had given the explanation twice. Again, Dr Balasingham has given confusing and inconsistent evidence. We do not accept that Dr Balasingham either verbally explained the procedure to Patient A, demonstrated what he would do during the procedure by using his hands nor asked or obtained Patient A's informed consent. The rejection of this evidence impacts on the reliability of the whole of his evidence. We find that Dr Balasingham did not obtain informed consent before conducting the vaginal examination.

Conflicting evidence - finding

We have made a number of findings which impact on the reliability of the evidence of Dr Balasingham. Several of these findings are directly relevant to his diagnosis and examination of Patient A.
We have made no such finding in relation to Patient A.
We accordingly prefer the evidence of Patient A to Dr Balasingham where they conflict.

Establishing the Complaint - Legal Principles

We have already referred to the onus of proof.
The HCCC asserts in its Application that the conduct described in Complaints One and Two is unsatisfactory professional conduct as defined in s 139B(1) of the National Law. The relevant subsections are the following: (a) Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience (Complaint One). (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession (Complaint Two).
In relation to s 139B(1)(a), determining whether conduct is significantly below a reasonable standard requires the Tribunal to make an objective assessment with reference to the standards of the profession generally (Lucire v Health Care Complaints Commission [2011] NSWCA 99 at [82] per Basten J). Guidance on whether a departure from that standard is significant can be taken from the established principle that the term "may in law be taken to mean not trivial, of importance or substantial" (Re A Medical Practitioner and the Medical Practice Act, (NSWMT, 3 September 2007, unrep) at [12]). The Tribunal may apply the specialist expertise of the Panel in making this determination (Health Care Complaints Commission v Bainbridge [2018] NSWCATOD 169 at [16]).
In relation to s 139B(1)(l) the terms improper conduct and unethical conduct are not defined in the National Law. They should be given their ordinary meaning (Health Care Complaints Commission v Daniel [2022] NSWCATOD 104 (at [16]-[18])).
The relevant ordinary meanings of improper include "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong" (Parker v Comptroller of Customs [2009] HCA 7). If Dr Balasingham's conduct was not in conformity with standards of professional conduct and practice it may be regarded as improper (R v Byrne (1995) 183 CLR 501 at 514-515).
Unethical conduct is arguably a more serious matter than improper conduct. "Unethical" is defined in the Macquarie Dictionary as meaning immoral or contrary to moral precepts and, secondly, as relating to contravention of a professional code of conduct.

The Complaint

There are three Complaints made by the HCCC.

Particular 1 1. On 5 September 2020, during a consultation at WRMD, the practitioner asked Patient A inappropriate questions about her sexual history using words to the effect of: 1. "how long have you been sexually active?" 2. "how many people have you been with?" 3. "how many boyfriends were Nepalese and how many are Australian?" 4. "so your parents allowed you to do whatever you wanted to do?".

Findings - Complaint One Particulars 1 (a) - (d)

Dr Balasingham admitted that he asked each of the matters identified in Particulars 1(a)-1(c) of Complaint One. Counsel for Dr Balasingham concedes it is open to find that the sexual history questioning went further than Dr Balasingham recalls.
Patient A told the police that Dr Balasingham asked her all of these questions.
We accept the evidence of Patient A and find that Dr Balasingham did ask all of the questions set out in Complaint One, Particular 1.
Dr Newberry accepted that it was not appropriate for Dr Balasingham to ask when Patient A first became sexually active, or the number of partners she has had. While it could be relevant to determine whether a patient had sex with a person who came from a region that had a high rate of STIs, this would not necessarily be answered by asking about the nationalities of her partners.
Based on our findings both experts considered that Dr Balasingham's conduct fell significantly below the relevant standard.
We accept and agree with their opinion and find Dr Balasingham guilty of unsatisfactory professional conduct in relation to Complaint One Particular 1.

Particular 2 (2) On 5 September 2020, during a consultation at WRMD, Dr Balasingham performed a vaginal examination on Patient A in circumstances where: 1. he did not obtain informed consent from Patient A prior to conducting the vaginal examination; 2. he did not offer a chaperone to Patient A; 3. the examination was not clinically indicated in circumstances where Patient A: 1. returned a negative pregnancy test; 2. stated she had no abdominal pain. 1. if an ectopic pregnancy was suspected, the appropriate course would have been to refer Patient A to the nearest Emergency Department.

Findings - Complaint One Particular 2

In relation to the factual matters asserted we find: 1. We have found Dr Balasingham did not obtain informed consent. 2. We have found Dr Balasingham did not offer a chaperone to Patient A. 3. In relation to (i), Patient A said Dr Balasingham instructed her to do a urine pregnancy test. This meant she left the consultation room and walked past Person 1. Person 1 recalled seeing Patient A leave the consultation room to get a urine sample. Dr Balasingham said he could not recall asking Patient A to do the test, but did not dispute it could have occurred. We accept that Patient A had done an earlier urine test at home. Dr Balasingham had recorded in his notes "Home pregnancy test negative". We find that Dr Balasingham was aware, before he carried out the vaginal examination, that there had been two negative pregnancy tests. In relation to (ii), we have found that Patient A had stated she did not have abdominal pain. The remaining issue is whether these findings mean that the examination was not clinically indicated. Firstly the experts said, and we agree, that performing a vaginal examination without informed consent was significantly below the relevant standard. Secondly, putting the issue of informed consent to one side, we remain concerned about Dr Balasingham's decision to perform a vaginal examination. In effect, Dr Newberry said that once a practitioner suspects an ectopic pregnancy, then it must be investigated immediately because the condition can be life threatening. For this reason she supported Dr Balasingham's decision to undertake the vaginal examination. In our view the issue is more complicated. The evidence was to the effect that a negative urine test almost always excludes an ectopic pregnancy and, in this case, there had been two such tests. In addition, Patient A did not have any tenderness when Dr Balasingham examined her through her clothes. Next, the evidence was to the effect that a vaginal examination does not exclude an ectopic pregnancy, but only that tenderness while the examination is being performed would be suggestive of an ectopic pregnancy. Next, Dr Balasingham did not give any evidence of experience or training in undertaking a vaginal examination for the diagnosis of an ectopic pregnancy or even in the assessments of other women's health issues. Lastly, the experts and Dr Balasingham agree that the appropriate examination to identify an ectopic pregnancy is an ultrasound. While Dr Balasingham did not have access to an immediate ultrasound, his practice is in Sydney, and he could have asked Patient A to attend at the emergency department of a local hospital. We accept the opinion of Dr Jalota that undertaking the vaginal examination in these circumstances was significantly below the standard and thus unsatisfactory professional conduct.

Particular 3

The HCCC asserts that: (3) Dr Balasingham failed to record in Patient A's consultation notes: 1. the possible or probable diagnosis. We have already mentioned that the diagnosis in the notes is "Anxiety/depression". The diagnosis of ectopic pregnancy is not mentioned. Accordingly, this particular has been established. 2. the clinical reasons for conducting a pelvic examination. The notes do refer to the vaginal examination "VE - No obvious tenderness - over the Cx or the fornices". The clinical reasons for conducting the examination are not mentioned. This particular has been established. 3. Patient A's consent to the vaginal examination. We have already noted that this was not documented. This particular has been established. 4. whether Patient A was offered a chaperone. We have already noted that this was not documented. This particular has been established.
Dr Jalota concluded that Dr Balasingham's failure to record the possible or probable diagnosis, his reasons for conducting a pelvic examination, Patient A's consent to a vaginal examination and the lack of a plan was conduct significantly below the relevant standard.
Dr Newberry agreed. She described the records as poor with contradictory statements about pain, details were missing, there was no safety netting and the reason recorded for the visit was wrong. She agreed that the records were significantly below the relevant standard.
We accept the expert evidence. We find that Dr Balasingham's record of the consultation on 5 September 2020 falls significantly below the relevant standard and thus the HCCC has established unsatisfactory professional conduct in relation to Complaint One Particular 3.

Particular 4

Particular 4 relates to Patient B. Patient B did not give oral evidence. The HCCC relied on the medical records in evidence and the expert evidence to establish Particular 4 of Complaint One.
The HCCC says that between 26 April 2019 and 9 April 2021, Dr Balasingham failed to appropriately monitor Patient B's medication regime of mirtazapine (an anti-depressant), temazepam (a benzodiazepine and Schedule 4 restricted substance) and diazepam (a benzodiazepine and Schedule 4 restricted substance) in circumstances where he: 1. documented limited clinical reasoning regarding the dosages of mirtazapine prescribed; 2. documented limited clinical reasoning regarding titrating the doses of temazepam and/or diazepam; 3. did not document a clear clinical plan regarding Patient B's medication regime.
Dr Balasingham denies that he failed to appropriately monitor the medication regime but otherwise admits the balance of Particular 4.
There is in evidence the complaint made by Patient B to the HCCC on 31 March 2021. She said she had been consulting Dr Balasingham since 2010 and had recently been unable to access the medication which had been prescribed by him for her mental health conditions. She had her file transferred to another medical practice and had been told that none of her medications were on that file. When she took in bottles of her medications to the new practice to prove that she had been taking them, she was told they would not prescribe those medications for her and she should never have been prescribed those medications in the first place.
Dr Balasingham was asked about Patient B at s 150A hearings on 27 July 2021 and 7 April 2022.
Dr Balasingham explained that his reason for his prescribing diazepam and mirtazapine was to control Patient B's panic attacks which stemmed from childhood trauma and that he monitored the dosages and adjusted them when necessary. He said that he would occasionally increase the number of tablets in a prescription to allow her to travel safely.
Dr Balasingham was taken to his notes on 2 and 16 July 2020, 18 September 2020, 24 and 30 November 2020, 5 December 2020 and 20 January 2021. He agreed that the entries had been copied and pasted but he felt they were comprehensive because the patient had given him the same answers. It was pointed out to him that he had not documented the progress of the patient - for example, how had she responded to the medication? Was she sleeping better? Did she talk about whether she was overusing the medication? Did she say she used other techniques to sleep better?
Dr Balasingham conceded that he should have made notes about the explanations he had given her about side effects, the possibility of tolerance and the possibility of dependence.
Dr Jalota, in his first report dated 31 May 2022, commented on, inter alia, Dr Balasingham's notes concerning Patient B.
Dr Jalota: 1. Criticised some of the notes for not mentioning the reasons for the prescribing, the side effects, interactions, suicide risk and dependence on the medication and a failure to mention safety netting such as the effect on driving or drinking alcohol. Mirtazapine was prescribed without a clear indication for the prescribing. Subsequent notes were very similar to previous notes with no regular updates. Dr Jalota considered this to be conduct which fell below the relevant standard but not significantly below the standard. 2. Concluded that most of the clinical notes were very similar without any updates of the patient's response to the medication regime. Mirtazapine had been increased in dose and then reduced without any clinically documented reasoning. The follow up notes lacked continuity of care. Dr Jalota considered that this conduct was significantly below the relevant standard. 3. Most of the records did not document the reasons for titrating the doses of the temazepam or mirtazapine. Dr Jalota considered that this conduct was significantly below the relevant standard. 4. The notes lacked a plan, there was no continuity of care and they were very similar, with a lot of prompts from the available software. The patient's progress and response to treatment were lacking in most of the consultations. Dr Jalota considered that this conduct was significantly below the relevant standard.
Dr Balasingham responded to Dr Jalota's report, in his letter sent providing particulars pursuant to s 40 of the National Law dated 7 July 2022. He said he had continuously monitored Patient B's responses to her medication regime and adjusted it when necessary. He concluded: Although any doctor with a sound mind would have no difficulty in following my notes, I accept that my notes could have been clearer. The changed medications and changed doses are clearly documented for any doctor to follow easily … I deny the allegation that I did not show a plan in my records for titrating up or down or ceasing the medication regime I prescribed for [Patient B]. I reassessed [Patient B] at each visit and documented her history, mental state and plan of action. My actions are documented in the notes clearly and I believe that they are clear enough for any clinician in following my notes, albeit I recognise that my notes at that time may be 100% ideal. If one compares the medical records of other doctors including the peer experts, I am sure my records are kept close to ideal.
Dr Newberry considered that the following conduct was significantly below the relevant standard: 1. The absence of evidence of monitoring of the clinical response of the patient to the medications. 2. The medical notes would not enable another doctor to easily assume the patient's care.

Finding - Particular 4

In his oral evidence Dr Balasingham did explain, to some extent, his reasoning behind his prescribing.
However, this reasoning should have been reflected in his notes. He admits that many of his entries have simply been copied and pasted from the previous consultation. He did add that he would modify them when necessary, but the general effect of the notes is that Patient B's responses to the various dosages of the medications and Dr Balasingham's plans for the future management of the patient are not mentioned in the notes.
We find that the records significantly depart from the principles set out in Good Medical Practice: A Code of Conduct For Doctors In Australia issued by the Medical Board of Australia March 2014, at 8.4. They state that maintaining clear and accurate medical records is essential for the continuing good care of patients. This means keeping accurate, up-to-date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners and ensuring that the records are sufficient to facilitate continuity of patient care.
We find that Dr Balasingham's records relating to his treatment of Patient B fall significantly below the relevant standard and thus the HCCC has established unsatisfactory professional conduct in relation to Complaint one Particular 4.

Complaint Two

The HCCC says that, at the consultation on 5 September 2020, Dr Balasingham inappropriately performed a vaginal examination when he rubbed Patient A's clitoris and the outside of her vagina for approximately 5-6 seconds.
Patient A gave the following description in her statement to the police: "Dr Mohanadas Balasingham walked over as I was laying on the bed. He had gloves on and with left hand placed it on my lower abdomen. He then placed at least two fingers from his right hand inside my vagina. I was dry and he struggled to get in. He was rough. It felt forceful. I felt his fingers go around in a circular motion towards my clitoris. I think he was feeling inside me for a minute. While his fingers were still inside me, he started pressing with his left hand on my abdomen. He kept asking if I had pain. I kept telling him that I have no pain down there and it was mainly cramps in my stomach. Dr Mohanadas Balasingham pulled his fingers out of my vagina and then started rubbing my clitoris and all around the outside of my vagina. He did this for about 5 or 6 seconds. He asked if I had pain anywhere, I said no.
It was suggested to Patient A in cross examination before us that she was mistaken when she said there had been contact to the outside of her vagina and clitoris after Dr Balasingham withdrew his fingers, and any contact she felt was accidental and occurred during the vaginal examination. Patient A denied those propositions.
At the first s 150 hearing Dr Balasingham said that, after he had made sure that there was no cervical tenderness while conducting the vaginal examination, he then took his "hand out. And on that - yeah, on the way (indistinct) checked the vagina on coming backwards." He denied that, after removing his fingers, he had rubbed Patient A's vagina and clitoris in a circular motion.
In his letter dated 7 July 2022, Dr Balasingham categorically denied that he had touched the outside of Patient A's vagina or her clitoris.
In his statement dated 27 October 2023 Dr Balasingham said he did not intentionally touch the outside of Patient A's vagina or her clitoris and did not recall doing so. He thought it was possible that part of his hand had come into contact with those areas briefly as part of the examination and he was not conscious of it because he was concentrating on carrying out the examination.
In cross examination before us he was asked whether he still categorically denied touching the outside of Patient A's vagina or clitoris and he replied that he did not touch those areas purposely. He thought there may have been a misunderstanding while he was turning his hand during the vaginal examination to the left and the right. When he was asked whether he may have incidentally touched those areas he said he was not aware of doing it and had no recollection of doing it.
In deciding whether this Complaint has been proven to the Briginshaw standard we have accepted the following matters as submitted by counsel for the HCCC: 1. We have already found that we prefer the evidence of Patient A to Dr Balasingham where their evidence conflicts. 2. The implausibility of the alternate explanation - that it was incidental contact, given that Patient A says it lasted 5 to 6 seconds. 3. Other evidence which suggests a sexual motive - our finding that Dr Balasingham had asked inappropriate questions during the sexual history taking, the lack of a chaperone, Patient A's evidence as to Dr Balasingham being slow to pull the curtain closed while she undressed and the lack of a privacy sheet for Patient A to place over her body during the vaginal examination (being the uncontested evidence of Patient A). 4. Other evidence that Dr Balasingham was not driven by a concern over an ectopic pregnancy but by ulterior motives - he did not ask questions which would have been useful in identifying whether an ectopic pregnancy was a risk, being questions about prior pelvic infections, sexually transmitted infections and the use of condoms and contraception, the general lack of an objective clinical need for the vaginal examination and Dr Balasingham's failure to notice that Patient A had not turned up for her blood test the next day in circumstances where he said he was concerned about the risks which could flow from an undiagnosed ectopic pregnancy.
Counsel for Dr Balasingham submitted that the following issues, cumulatively, meant that we should not be comfortably satisfied that the conduct had taken place: 1. The seriousness of the finding. As we have said, we proceed on the basis that the Briginshaw standard applies and a Court (or Tribunal) should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of criminal conduct (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 at [2]). 1. Dr Balasingham had been working since about 9am, having already seen about 40 patients with more still to see. He saw Patient A at 5 pm. It seems surprising that a doctor would engage in such conduct spontaneously. Why would a woman coming to a new (and fairly elderly) doctor be thought by a doctor to be open to an "advance" consisting of a short and entirely unencouraged touching of her genitalia? We do not place any weight on this submission. Firstly, as we have already discussed, Dr Balasingham said at the first s 150 hearing that he wasn't busy at that time. Secondly, we do not think it is necessarily surprising for a person in the position of Dr Balasingham to take advantage of a young female patient - it is well known that there is a power imbalance in the doctor - patient relationship and that, on occasions, doctors exploit their position to take advantage of a patient. 1. Person 1 was in the waiting room and Dr Balasingham's wife was on reception. It would be readily foreseeable that such conduct might provoke immediate outcry from Patient A (i.e. while lying there), or just about immediate complaint to Person 1, or the wife/receptionist or both, on leaving the room within a minute or two. This meant the level of risk-taking involved was breath-taking, both professionally and personally. We have considered this submission but whether someone is deterred from an opportunistic course of conduct because of the risk of discovery obviously varies from person to person. 1. Patient A did not see the contact and to the extent that it involved a sensation of Dr Balasingham moving his fingers, that was a fleeting perception that might have been mistaken especially in circumstances where she was already anxious because of the sexual history taking and the differences between the vaginal examination and previous vaginal examinations she had experienced. We have considered this submission but do not place much weight on it. We think it is unlikely that Patient A would confuse a 5 to 6 second rubbing on the outside of her vagina with an internal examination. 1. Patient A did not hear Dr Balasingham say anything (or even change his tone) in a way that indicated that he was seeking to stimulate her, or otherwise engage with her sexually. His submission went on to say that to the contrary, Patient A said in her initial complaint that: he took his right hand out of my vagina and started rubbing it around my vagina and clitoris … Throughout this he kept asking if I had pain anywhere. I kept telling him that I didn't Counsel for Dr Balasingham submitted that if Dr Balasingham was seeking to make a sexual advance to Patient A, one would have expected him to make some consistent comment during the conduct. The fact that he did not, and that he was still asking her if she was feeling pain, and she was still responding that she did not, was much more consistent with the fact that any contact she felt with her external genitalia occurred while the doctor was still palpating her vagina internally with his fingers, or while withdrawing them, and not afterwards. We do not place any weight on this submission. We think this evidence is equivocal because Dr Balasingham's conduct would be equally consistent with an attempt to mask his actual intent. 1. Dr Balasingham had a plausible basis to conduct a vaginal examination. Accordingly, to make a finding against Dr Balasingham would mean that he had engaged in a vaginal examination out of a concern about ectopic pregnancy, and, independently, was actuated to make a sexual advance or obtain sexual gratification. We do not accept this submission. We have already made a finding as to the general lack of an objective clinical need for the vaginal examination. 1. Patient A said she became uncomfortable while she was being asked questions by Dr Balasingham which she felt were intrusive and she was also uncomfortable during the conduct of the vaginal examination. While not suggesting that this would affect her memory of the events which are the subject of Complaint Two, counsel for Dr Balasingham submitted that we should find that this ongoing discomfort would predispose Patient A to interpreting Dr Balasingham's conduct sexually. We decline to find that that Patient A was sufficiently uncomfortable so that she was incapable of identifying where on her body she was being touched.
We are comfortably satisfied that the conduct in Complaint 2 occurred.
Such conduct is both improper and unethical and is, accordingly, unsatisfactory professional conduct.

Complaint Three

Complaint Three asserts that Dr Balasingham is guilty of professional misconduct under section 139E of the National Law. That section provides: For the purposes of this Law, "professional misconduct" of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
In Chen v Health Care Complaints Commission [2017] NSWCA186 at [20], Basten JA explained: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome. Incompetence or inadequate care may in some circumstances be remediable by specific steps; in other circumstances the Tribunal may be concerned that the carelessness, for example, is such as to cast doubt on the suitability of the person to practise medicine. Each of the criteria for cancellation or suspension may be analysed in this way. Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct.
Dr Balasingham's conduct, the subject of Complaint Two, is of a very serious nature and demonstrates a significant departure from accepted standards. It is sufficiently serious to justify suspension or cancellation of his registration. In arriving at this finding we take into account the following matters as indicators of the serious nature of that conduct, as set out in "Guidelines: Sexual Boundaries in the doctor-patient relationship" published by the Medical Board of Australia on 12 December 2018: 1.1 Trust Trust in the relationship between doctors and patients is a cornerstone of good medical practice. Sexual misconduct is a serious abuse of that trust. Patients have a right to feel safe when they are consulting a doctor. Patients need to trust that their doctor will act in their best interests, treat them professionally, not breach their privacy and never take advantage of them. Exploitation of the doctor-patient relationship undermines the trust that patients have in their doctors and the community has in the profession. It can cause profound psychological harm to patients and compromise their medical care. 2. Why breaching boundaries is unethical and harmful Doctors are expected to act in their patient's best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons including: Power imbalance: The doctor-patient relationship is inherently unequal. The patient is often vulnerable and in some clinical situations may depend emotionally on the doctor. To receive healthcare, patients are required to reveal information that they would not reveal to anyone else and may need to allow a doctor to conduct a physical examination. A breach of sexual boundaries in the doctor-patient relationship exploits this power imbalance. Trust: Patients place trust in their doctor. They have a right to expect that examinations and treatment will only be undertaken in their best interests and never for an ulterior, sexual motive. Safety: Patients subjected to sexual behaviour from their doctor may suffer emotional and physical harm. Quality: A doctor who sexualises patients is likely to lose the independence and objectivity needed to provide them with good quality healthcare. Public confidence: Members of the community should never be deterred from seeking medical care, permitting intimate examinations or sharing deeply personal information, because they fear potential abuse.
We find Dr Balasingham is guilty of professional misconduct.

Orders 1. Dr Balasingham is guilty of unsatisfactory professional conduct in respect of Complaints One and Two. 2. Dr Balasingham is guilty of professional misconduct in respect of Complaint Three. 3. The proceedings are listed for directions in respect of the conduct of the Stage 2 hearing at a date to be determined by the Registrar.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2023

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