Health Care Complaints Commission v Benness

Patient A

1. Particular 1 which concerned Patient A relevantly alleged: 1. On 22 March 2016, during a consultation with Patient A, the Practitioner inappropriately squeezed both of Patient A's breasts with both hands when enquiring whether she had undergone a recent breast examination in circumstances where the Practitioner: (a) Failed to obtain adequate informed consent from Patient A prior to touching her breasts. (b) Failed to have a clinical reason for touching her breasts.
2. The Patient's evidence in this regard was that after discussing the procedure to be conducted and other matters in the Practitioner's consultation room, she moved to the examination room where she undressed from the waist down. The Patient said that the Practitioner entered the room and squeezed both of her breasts while enquiring when she had last had a breast examination. When the Complaint was raised with the Practitioner by letter from the Medical Council, he responded: … I may have touched her chest (fully clothed) while enquiring when her last breast assessment may have been performed. The patient indicated that it had been done recently, so breast examination was not performed. …
3. The patient said and it was not disputed that there had been no discussion of clinical breast examination in the consultation before the patient moved into the examination room.
4. The Tribunal found: 20. We are satisfied that the first time that the Practitioner broached the question of a breast examination was while the patient was lying partially undressed on the examination table. 21. The Practitioner agreed that full consent to a breast examination cannot be given while the patient is already on the examination table and further that in touching the patient's upper chest albeit over her clothes was "unnecessary and inappropriate touching". 22. There was significant debate as to whether what the Practitioner did was a "light touch" with his fingers on the patient's breasts or whether he squeezed them as she said. We are inclined to accept his evidence that he would not squeeze a woman's breasts at this juncture although it does not follow that the Patient was embellishing her account or misrepresenting it. She was, as she said, shocked and taken aback at being touched by the Practitioner without her permission. Whether it was or felt like a squeeze is a matter of impression. However, whatever the nature of the contact, we accept that she was touched through her clothes by the Practitioner at the time he was discussing with her when she had last had a breast examination and that it was neither appropriate nor with the patient's consent.
5. The Tribunal accepted that the touching was not inadvertent (Reasons [24])
6. The Tribunal was further satisfied that in the circumstances where there had been no discussion with the patient before her breasts were touched in the course of the Practitioner enquiring whether she had recently had a clinical breast examination, the Practitioner could not have had a clinical reason to examine her breasts and at the time of his touching her breasts, he had no clinical reason to do so.
7. The Tribunal found Particulars 1 (a) and (b) of Complaint 1 established.

Patient C

1. Patient C consulted the Practitioner on 29 March 2018 in relation to urinary incontinence and bladder prolapse.
2. The patient said that during the consultation with the Practitioner before the examination, he asked her whether her mammograms were up to date and she said that they were. She said that when the Practitioner entered the examination room he placed both of his hands on her breasts and squeezed them, first one and then the other. She said that he did not explain what he was doing.
3. The Practitioner's notes record that the Patient declined a clinical breast examination. He denied that he squeezed her breasts but conceded that it was possible that he may have touched her breasts while enquiring whether she wished to have a breast examination.
4. The Complaint in relation to Patient C relevantly alleged: …. (b) Failed to obtain adequate informed consent from Patient C prior to touching her breasts …. (d) Inappropriately touched her upper breast over her clothing when asking whether she had a breast exam (sic) ….
5. The Tribunal concluded: 94. The Patient's evidence in relation to the Practitioner touching her breasts is accepted. We are satisfied that she did indeed feel his hands on her breasts. Again, whether the touch was "squeezing" or "like making rissoles" is not material to the question of whether the Practitioner had the patient's informed consent to touch her breasts and whether there was a clinical reason to do so. 95. The Practitioner agreed that to touch the patient's breasts while she was lying on the examination table would not allow for adequate informed consent and to have touched the patient's breasts when asking about a breast examination amounted to unnecessary and inappropriate touching.
6. The Tribunal had before it evidence from Dr Higgs who spoke to the conduct and its evaluation against the standards of the profession generally.
7. The Tribunal concluded: 138. … there was no argument, nor could there be, in relation to her opinion that to touch a patient's breasts without consent and without a proper clinical reason was conduct which fell significantly below the accepted standard. We accept her opinion in this regard and are comfortably satisfied that the Practitioner's conduct in relation to these established particulars amounts to unsatisfactory professional conduct.
8. The Tribunal concluded: 142. There can be no doubting the seriousness of the conduct established. The Practitioner understood that to touch a woman's breast without consent can amount to criminal conduct. A certificate pursuant to s 128 of the Evidence Act 1995 (NSW) was granted to the Practitioner in relation to his evidence in this regard. 143. In this case, there is no suggestion that the Practitioner touched the patients' breasts for sexual gratification or out of prurience….
9. The Tribunal found that in relation to Patient C particulars 4(b) and (d) were established.
10. The Tribunal did not find that the Practitioner's conduct amounted to improper and unethical conduct and further did not find that the conduct found proved was of a sufficiently serious nature to engage s139E of the National Law so as to amount to professional misconduct.
11. It is against this background that the Tribunal turns to consider what protective orders should flow from those findings.

Protective Orders

1. There is no better starting point for a discussion about what consequences should flow from our finding the complaints proven than s3B of the National Law which says: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration.
2. In Health Care Complaints Commission v Do [2014] NSWCA 307 that which Meagher JA said at [35]: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise.
3. In Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91] Santow JA said that orders not only protect and maintain high standards but: "There is also an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so".
4. We adopt what was said in Prakash v Health Care Complaints Commission [2006] NSWCA 153 that the work of the orders following a finding that a complaint has been made out is to be, "…protective of the interest of the public at large, …. However, the public interests include, indirectly the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners."
5. In Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [83] Basten JA said: As is well-established in the disciplinary jurisdiction generally, including with respect to legal and medical practitioners, the specific purpose for which orders are made is protective in the public interest and is not punitive with respect to the individual: That is not to deny that such orders may be punitive in effect, a matter which may have particular significance in respect of the privilege against self-incrimination: Nor does it necessarily follow that punitive effects may not be relevant in formulating a protective order. For example, the fact that there are such punitive effects may remind the Court that a protective order should be limited to that which is reasonably necessary to provide the required level of public protection (reference to weighing the punitive effects in the balance should be understood in context as limited to the purpose identified here). Further, the punitive effects may be directly relevant to the need for protection. Thus, in a particular case, there may be a factual finding that the harrowing experience of disciplinary proceedings, together with the real threat of loss of a livelihood may have opened the eyes of the individual concerned to the seriousness of his or her conduct, so as to diminish significantly the likelihood of its repetition. Often such a finding will be accompanied by a finding that the person concerned has achieved a level of insight into his or her own character or misconduct, which did not previously exist. (citations omitted)
6. Proportionality between the protective orders and the consequences for the practitioner is a matter to take into account. In Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82 at [88] the Tribunal said quoting NSW Bar Association v Meakes [2006] NSWCA 340 at [114]: …No order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purposes of the legislation.
7. The Commission argued that the Practitioner was slow in coming to the appreciation that his practice which formed the basis of the complaints was flawed. It was argued that he was notified in 2016 of Patient A's complaint which included amongst other things, the allegation that the Practitioner touched her breasts without her consent. The Practitioner wrote in response to the notification of that complaint apologising for the patient's distress and saying that he had reflected carefully on his practice and was mindful of the boundaries between a doctor and patient. He further said that the complaint had reminded him not to assume that patients understand what a proper gynaecological examination entails. However, the Commission argued, the Practitioner clearly had not properly reflected on the complaint of patient A because Patient C made a similar complaint about an examination that took place at the Practitioner's consulting rooms in May 2019.
8. We accept the argument for the Practitioner that while he received and considered the complaint of Patient A, it was not until the convening of the s150 hearing that he became fully aware of how his conduct in touching the patient's breasts while asking about clinical breast examination was conduct that fell below the accepted standard.
9. The s150 hearing took place in September 2020 and while Patient C's complaint concerned a consultation in May 2019, it was not until August 2020 that she formally complained to the Medical Council. The timing of the Practitioner's receipt of the complaint from Patient C is such that it does not persuade us that he failed in fact to reflect on his practice.
10. The Tribunal was taken to the Practitioner's evidence in the s150 hearing in which he said he did not routinely discuss clinical breast examination with patients before they change in the examination room but conceded that it might be something he should discuss before the patient entered the examination room. The reasons of the Panel based on the Practitioner's evidence that he is: … now reflecting on whether he needs to change his practice so that he has a fuller discussion before the examination about what it will entail and also find "something else to do with my hands" while discussing the possibility of a breast examination, rather than placing his hands on or near the patient's breast, even though that area of their body Is clothed. He has already begun to be more careful in his physical actions in the examination room and plans to focus on being more thoughtful in his discussions with his patients prior to conducting a gynaecological examination.
11. In his evidence to the Tribunal at the Stage 1 hearing, the Practitioner was taken to the conclusions of the s150 Panel and he agreed that to touch a patient on the breast or chest area while clothed when discussing the need for breast examination has the potential to distress and confuse some patient and that the appropriate place for the discussion of a breast examination was during the consultation before the examination. He further agreed that it was not his standard practice at the time.
12. The Tribunal is comfortably satisfied that the Practitioner fully appreciates that his procedure in not necessarily discussing clinical breast examination in the consulting room before the patient was partially undressed does not provide an opportunity for informed consent. Further to touch the patient's breasts while enquiring whether she wished to have a clinical breast examination fell below the standard expected of a practitioner of his experience.
13. Not only does the Practitioner's evidence both before the Tribunal and the s150 Panel persuade us of that, but we note that during the Stage 1 hearing before the Tribunal, counsel for the Practitioner sought and obtained a certificate pursuant to s128 of the Evidence Act 1995 (NSW) against self-incrimination in relation to his touching the patients' breasts without consent. We are of the view that the recognised need for a s128 certificate well and truly brought home to the Practitioner the seriousness and importance of obtaining fully informed consent.

Reprimand or caution

1. The Commission sought an order that the Practitioner be subject to a reprimand pursuant to s149A(1) of the National Law. The Practitioner's counsel sought an order that he be cautioned.
2. A reprimand is an official rebuke for past wrongful conduct. It is not trivial and holds the potential for serious consequences for a professional person. If a reprimand is imposed, it will appear on the record of the Practitioner's registration. A caution acts as a reminder to the practitioner to take care in the future to avoid repetition of the censured conduct. (Health Care Complaints Commission v Dowla (No 2) [2019] NSWCATOD 156)
3. The Commission submitted that the Practitioner's conduct while serious fell within the lower end of seriousness of conduct of that kind. We agree.
4. We adopt the expression used by Counsel for the Practitioner that the conduct occurred because of his use of a flawed and inconsistent process of discussion with patients about the advisability of having regular clinical breast examinations which, so far as to the two patients in respect of whom the complaints were established, took place while they were partially undressed and were lying on the examination table.
5. The decision of the Tribunal on the Stage 1 proceedings has resulted in the Practitioner having his privileges as a Visiting Medical Officer at Royal Prince Alfred Hospital suspended pending investigation. It was accepted in the Stage 2 hearing that the decision is widely known in the particular medical community in which the Practitioner works. It is not without significance that the Practitioner has experienced adverse consequences in relation to the Tribunal's finding. To a not insignificant degree these consequences act both as specific deterrence and speaks also to the medical community about the need for scrupulous attention to matters of consent in dealing with patients.
6. While the Tribunal was satisfied that while the Practitioner's conduct fell short of the expected standard, it was not such that there should be a permanent public rebuke in the nature of a reprimand on his Registration. It would in the opinion of the Tribunal be disproportionate to the level of seriousness of the conduct.
7. The Tribunal is of the view that the Practitioner should be cautioned and his registration be subject to conditions aimed at education and prevention against repeated conduct.

Conditions

1. The Commission sought orders be made that the Practitioner complete the "Ethics Counsel" program run by The Ethics Centre for boundary crossing issues.
2. This was opposed by the Practitioner on the basis that the complaint was not one of boundary violation. We agree. While the complaint alleged that the Practitioner's conduct was improper and/or unethical, that was not made out. We do not propose to make that order as we see no need for that training.
3. Next the Commission sought an order that the Practitioner only conduct breast examinations in accordance with the guidelines promulgated by the Royal Australian College of General Practitioners. It was not entirely clear why those guidelines were appropriate to the practice of a specialist urogynaecologist. It was accepted by counsel for the Commission that the guidelines are clearly addressed to general practitioners who see many patients with differing presentations and who may need very different advice as to breast cancer awareness and screening.
4. The Practitioner sought to be bound by the Best Practice Guidelines promulgated by the RANZCOG for dealing with gynaecological examinations and procedures. The Commission argued that there was minimal discussion of breast examination within those guidelines, and thus they were inadequate to the task. It is to be observed that these guidelines were propounded by the speciality in which the Practitioner practises and the Tribunal assumes with knowledge of how those doctors practise. The guidelines refer to the type of examinations which may be required as part of obstetric or gynaecological care and under the heading "Discussion and recommendations" notes that where examination is indicated, doctors should ensure: Verbal consent is obtained, especially for breast and/or pelvic examination and best practice would be to document this where appropriate.
5. This recommendation goes to the heart of the issue before the Tribunal and we are of the view that it is appropriate for the Practitioner to be required to only conduct breast examinations in accordance with it.
6. Both the Commission and the Practitioner proposed that he nominate an approved peer to provide training with emphasis on the necessity of obtaining fully informed consent. The written submissions of the Practitioner suggested a practitioner who might be an appropriate peer, however the Tribunal was of the view that a peer of equivalent seniority and experience, not necessarily in the field of urogynaecology but perhaps in obstetrics and gynaecology, would be more appropriate to the provision of training.

Costs

1. There is no doubt that the usual practice is that costs should "follow the event". Here, the Amended Complaint contained 19 pleaded particulars, of those, 4 were found made out by the Tribunal. The Commission submits that the Practitioner should pay 50% of its costs.
2. The particulars which were not established involved complex issues of the Practitioner's practice in urogynaecology and their consideration in the Tribunal hearing engaged considerable time. Further the Complaint contended improper and unethical conduct. Given the nature of the complaints and the concession that the Commission did not suggest any prurient or sexual interest by the Practitioner in the conduct, it is unsurprising that these allegations were not made out.
3. Counsel for the Practitioner suggested he bear 25% of the Commission's costs and in the circumstances of this case, the Tribunal accepts that this is a reasonable basis on which to make a costs order.

Orders 1. Pursuant to s149A(1)(a) of the National Law the Practitioner is cautioned. 2. The Practitioner is to conduct breast examination only in accordance with the RANZCOG Best Practice Guidelines for gynaecological examinations and procedures. 3. The Practitioner is to provide the name of a peer to be approved by the Medical Council to provide training in line with the RANZCOG Best Practice Guidelines including the importance of obtaining fully informed consent from a patient. 1. The peer is to be a practitioner of equivalent experience and seniority as the Practitioner and need not necessarily be in the specialty of urogynaecology but may be a specialist obstetrician or gynaecologist. 2. The peer must be nominated to the Medical Council within 60 days of these orders. 3. The training is to be provided within 90 days of these orders and the Practitioner is to provide evidence to the Medical Council of the completion of training within 14 days of the completion of the training. 4. Any costs of the training will be borne by the Practitioner. 1. An application to review, alter, vary or remove these conditions will be at the discretion of the Medical Council which is the appropriate review body. 2. The Practitioner will pay 25% of the Commission's costs as agreed or assessed.

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: 29 August 2024