Health Care Complaints Commission v Benness

Complaint 1

1. By this complaint, the Commission alleges that the Practitioner has engaged in conduct amounting to unsatisfactory professional conduct. The particulars of the complaint refer to the 4 patients.

Particular 1 - Patient A

1. The Particulars allege that: 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. On 22 March 2016, during a consultation with Patient A, the Practitioner: (a) Failed to obtain adequate informed consent from Patient A prior to performing a gynaecological examination. (b) Inappropriately squeezed Patient A's thigh near her knee during the examination (c) Inappropriately placed his hand on Patient A's shoulder while he stood in close proximity and directly behind her.
2. Patient A was referred to the Practitioner for further assessment and inquiry into persistent symptoms of lower abdominal discomfort and mild dysuria and frequent urinary tract infections and urinary frequency.
3. The Patient attended on 22 March 2016 and after discussion and questions in consultation said that she was then directed into the examination room and undressed from the waist down. She said: When he came back in, [the Practitioner] moved around to the side of the table, leaned over with both hands and squeezed both my breasts and asked me when I'd last had them examined
4. The Patient said she was shocked as it was unexpected. On telling the Practitioner that she had had a recent breast examination, she said that the Practitioner moved to examine her internally. She said she could not understand why breast examination would have anything to do with bladder issues.
5. The Practitioner responded to the Medical Council in relation to Patient A's complaint. In relation to her complaint about him touching her breasts, the Practitioner said in the letter dated 24.4.2016: Following palpation of the abdomen, 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. Pelvic examination was then performed.
6. The Practitioner said in his evidence before the Tribunal said that when offering to perform a breast examination to Patient A: … it's possible that I may have touched her fully clothed upper body and if that made her uncomfortable, then, yes, I accept that.
7. The Practitioner had no recollection that he touched the patient's breasts. He did however deny that he squeezed them or used the words "when did you last have these checked".
8. The Practitioner further accepted that in the circumstances it was reasonable for the patient to feel uncomfortable. He did not think the circumstances were necessarily such that the patient would have been confused at the prospect of a breast examination being raised in the context of her understanding that the was seeing the Practitioner for urinary symptoms.
9. It is clear from Patient A's evidence that the Practitioner had not discussed breast examination with her during the consultation and before she was on the examination table. Nor was it suggested by the Practitioner that it had been a topic of discussion within the consultation although he said he "may have" discussed it.
10. 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.
11. 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".
12. 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.
13. In the same context, this patient said that the first thing that the Practitioner did on entering the examination room was to touch her breasts. She did not agree that he palpated her abdomen first. The Practitioner said, relying on his usual experience and practice said that he invariably palpated a patient's abdomen first before any question of a breast examination was raised (if it was to be raised). We accept the invariable practice of the Practitioner would suggest that he palpated the patient's abdomen first but as with the issue of the nature of the touching, we incline to the view that the patient's recollection of the order of events may be unclear but it does not cause us to doubt her account of the Practitioner touching her breasts without her consent.
14. In submissions, counsel for the Practitioner argued that the touch was "inadvertent". The Practitioner did not say it was accidental and we do not find that it was. We are fortified in this finding because of the Practitioner's later evidence in which he said touching the patient's breast may have been to indicate for her the kind of breast examination he was offering.
15. Turning then to whether the Practitioner had a clinical reason for touching the patient's breasts, it was suggested to him that at the time of the contact he did not have a clinical reason for touching the patient's breasts. The Practitioner said that it was "debatable". The Practitioner said he had a "potential reason" for touching the patient's breasts and suggested that in touching her breasts he was clarifying for her what type of breast examination he was offering the patient for example, he was not offering her a mammogram.
16. The evidence comfortably satisfies us that at the point that the Practitioner touched the patient's breasts he did not know, nor could he have known given that it was not discussed in the consultation, whether or when she last had a breast examination. We are fortified in coming to that conclusion because when, in the case of Patient A, she indicated that she had been recently examined, the Practitioner took it no further. We do not accept that there may have been a potential reason for offering a breast examination and by touching her breasts the Practitioner was indicating the kind of examination he had in mind. In any event, until the question was answered by the patient, the Practitioner did not know whether a breast examination was needed and thus, at the time of touching there was none.
17. Dr Peta Higgs, a urogynaecologist, provided a peer opinion on the Practitioner's conduct against the standard reasonably expected of a Practitioner of an equivalent level of training and experience. In her opinion, touching the patient's breasts through her clothing or otherwise without consent and without a clinical reason to do so would constitute a breach of professional standards and fell significantly below the expected standard.
18. We thus find Particular 1 (a) and (b) made out.

Particular 2

1. The Commission complains that the Practitioner: (a) failed to obtain adequate informed consent from Patient A prior to performing a gynaecological examination
2. In her statement given to the Commission in November 2021, Patient A said that during the initial consultation, the Practitioner said he would need to examine her but he did not detail how or why he needed to examine her. She could not recall the Practitioner explaining what he was doing or what he was looking for in the examination. In her evidence, Patient A said that the Practitioner said, in relation to the examination, words to the effect that he needed to examine her to get to the bottom of the symptoms. Patient A agreed that she attended the appointment expecting there to be an internal examination.
3. The Practitioner had no immediate recollection of the consultation and said that his usual practice is to explain in the consultation what was going to do in the examination. He said it was very unlikely that he did not explain the need for an internal examination.
4. Dr Higgs said, and the Practitioner agreed, that if he had not provided an explanation as to why or how the examination was to occur that would be inappropriate.
5. Given the Practitioner's evidence of his usual practice of providing an explanation of what he was going to do and why coupled with the patient's acceptance that he said words in the consultation that he would examine her to get to the bottom of her symptoms, we cannot be satisfied that he provided the patient with no explanation that he would conduct an internal examination of the patient and why and that as a result he did not have adequate informed consent. The Patient herself said she expected an internal examination and was not taken aback that it took place.
6. We do not find this particular made out.

Particular 2(b)

1. The Commission alleges that the Practitioner: (b) inappropriately squeezed Patient A's thigh near her knee during the examination
2. In her initial complaint made on 24 March 2016, shortly after the consultation, the patient said that during the initial consultation the Practitioner "reached over and squeezed my thigh at a lower level near my knee". The patient said that at the time the Practitioner was saying words to the effect that he would help her sort things out. She said: "it felt like the gesture was supposed to be seen as reassuring and friendly, but it felt inappropriate and I felt quite uncomfortable".
3. The practitioner admitted that he may have given the patient a "reassuring pat on the leg". He denied he squeezed her leg. In her evidence before the Tribunal, the patient agreed that it was a brief pat.
4. The practitioner was not persuaded that to touch the patient in the way he did was inappropriate and said it was "debatable", however, the Practitioner accepted that for some women that touching may make them feel uncomfortable.
5. Dr Higgs commented that as the Patient said she felt uncomfortable at being touched it indicated to her that the Practitioner had not read the patient's body language appropriately and he had failed to recognise her discomfort. However, she said that he patted her leg by way of reassurance was not conduct which fell below the requisite standard.
6. We do not find this complaint made out.

Particular 2(c) (c) Inappropriately placed his hand on Patient A's shoulder while he stood in close proximity and directly behind her

1. After re-dressing and further discussion in the consultation room, the patient went to the reception desk. While she was talking to the receptionist, the Practitioner came out of his room and reached around her and as he did so he was standing quite close to her and he put his hand on her shoulder. The patient said the Practitioner stood "… uncomfortably close. This made me feel uneasy. It was a physical closeness that you would only have with someone you knew well."
2. The Practitioner said that he reached around the Patient to retrieve something from the receptionist. He observed that the area around the reception desk was somewhat cramped but agreed that he could have waited until the Patient had finished her dealings with the receptionist before reaching around.
3. He did agree that he stood close to her and agreed it was possibly "uncomfortably close" from the Patient's perspective. He did not recall but agreed that it was possible that he touched her shoulder.
4. Dr Higgs said that the Practitioner reaching around the Patient would be a reasonable thing to do in a normal situation and as the Practitioner was unaware of the Patient's discomfort, it was not conduct which fell below the acceptable standard.
5. We do not find this particular made out.

Particular 3 - Patient B

1. Patient B was referred to the Practitioner by her general practitioner in relation to a pelvic floor prolapse.
2. She said that in the consultation on 22 March 2018, the Practitioner asked her about her sexual activity with her husband and asked her how many sexual partners she had had. She cannot remember what explanation or information the Practitioner gave her about the examination he was to perform.
3. Patient B said that she entered the examination room and was in the process of changing to put on a gown when the Practitioner entered the room without knocking. She said that she was not ready and the Practitioner left the room leaving the door ajar which she shut. She said she felt embarrassed and distressed at being half dressed.
4. The Practitioner commenced his examination of her and Patient B said he had his hand on her thigh while she was lying on the table and his had moved up her inner thigh which she felt was inappropriate.
5. The Patient said that the internal examination felt rough and felt as if the Practitioner was using a "thrusting" motion.
6. After the examination and when she and the Practitioner returned to his consulting room, the Patient said she had both hands on the table and he took both of her hands in his hands and held them.
7. The Commission alleges five particulars in relation to this Patient alleging that the Practitioner: (a) Inappropriately questioned Patient B about the number of sexual partners she had and in doing so breached the Medical Board of Australia's "Sexual Boundaries: Guidelines for Doctors (2011)" (b) Inappropriately entered the examination room before Patient B had finished getting changed and without knocking first (c) Inappropriately moved his hand which was resting on Patient B's thigh to her inner thigh during a pelvic examination (d) Performed a pelvic examination in a manner that was inappropriate by being rough and using an in and out thrusting motion (e) Inappropriately took both of Patient B's hands in his hands and held them towards the end of the consultation.

Particular 3 (a)

1. In the first written complaint about the Practitioner made by the Patient, in July 2019, she did not mention that she was asked a question about the number of sexual partners she had had. This is mentioned in a more extensive statement made by her in July 2021. The Patient denied that her recollection of the consultation in this regard was inaccurate.
2. The Practitioner denied he asked the Patient questions about the number of sexual partners and said he had not asked that question for 30 years. He said it is common for gynaecologists to ask patients questions about sexual history, practice and discomfort on intercourse but not about the number of sexual partners. The Practitioner said he quite often asked a patient about whether she experienced discomfort during sexual intercourse. His notes of his consultation with the Patient indicate that he asked that question and the response "slight" was noted.
3. Dr Higgs said that it would be appropriate and relevant to ask questions about sexual activity in this context. She said that questions about sexual partners would not be relevant to the presenting issue and if asked would represent a breach of the Sexual Boundaries Guidelines and would be conduct which fell below the expected standard.
4. There is no doubt that Patient B was very anxious during the consultation and the examination to which we will shortly refer, and she was distressed afterwards. It may be that her recollection of what questions were actually asked is somewhat cloudy. We note too that this question was not referred to by her in the original written complaint which was prepared months after the consultation.
5. Given that there is no note of a response to a question which might be seeking information about sexual partners coupled with the Practitioner's insistence that it was not a question he had asked in years, we cannot find to the requisite standard that the Practitioner asked Patient B this question.

Particular 3(b)

1. The Patient said that while she was changing before the examination, the practitioner entered the examination room without knocking. She denied that he knocked on the door but agreed that he did not come in but opened the door. She said she felt off guard and distressed.
2. The Practitioner has no recollection of this incident although he agreed that if he had left the door slightly ajar the Patient may well have closed the door herself. He said that it was not possible to see into the examination room from the adjoining room. The Practitioner said it was his usual practice to knock and then open the door slightly to see whether the patient is ready for the examination. He conceded that to open the door, even slightly while a patient was changing could be distressing for some patients as would leaving the door ajar while they completed undressing although he qualified that by saying it was possible but very unlikely.
3. However, his usual practice which is to knock, open the door slightly and enquire if the patient was ready was regarded by Dr Higgs as being the standard reasonably expected.
4. While we have no doubt that Patient B was upset that the door was slight ajar when the Practitioner enquired whether she was ready, we do not regard the conduct of the Practitioner to be inappropriate.

Particulars 3(c) and (d)

1. These two particulars concern the Practitioner's conduct while performing a pelvic examination of the Patient.
2. The Patient said that during the examination the Practitioner had his hand on her thigh and he moved his hand to her inner thigh.
3. The Patient said that she usually gets uncomfortable and tense with internal examinations and has experienced in the past, other practitioners put their elbows or hands on her knees to assist her to adjust her legs wider. She did not remember whether the Practitioner moved her knees into a more open position.
4. She said that the contact with her thigh was during the examination although conceded that she could not recall whether the contact with her thigh was before or during the examination. She disputed that what she felt was the Practitioner trying to adjust her leg immediately prior to commencing the examination because she said he would not need to touch her inner thigh. She said it did not feel as if the Practitioner was adjusting her legs for the purpose of the examination.
5. The Practitioner denied he touched the Patient's thigh as she said and said that if her legs were not open widely enough to permit the examination, he would place his hands usually on the inner part of the knee and gently move the knees apart.
6. One examination conducted on the Patient on this day was an assessment of her prolapse in the left lateral position using a Sims speculum. That is, the Patient lies on her left side for the examination. The Practitioner said that on occasion it is necessary to support the patient's leg during that examination and if so, it is done by supporting the lower leg not the thigh. He said that it would be extremely unlikely that in this examination position that he would have his hand on a patient's thigh.
7. He agreed with Dr Higgs that touching a patient's inner thigh during an internal examination would be inappropriate and unnecessary.
8. We find ourselves unable to conclude to the requisite standard that the Practitioner did place his hand on the Patient's inner thigh. The Practitioner relied on his usual practice for positioning a patient's legs for the purpose of the examination and which does not involve touching the patient's inner thigh. The Patient was somewhat vague in her evidence and did not specify when the touching occurred. She could not recall how long the touching took place. Again we note the Patient's evidence of her anxiety and tension during the examination process while perhaps contributed to the vagueness in the detail her account.
9. We note that Dr Higgs said that it is more common to encourage patients verbally to move their legs into an appropriate position. She said that it is unusual to use hands to guide the patient's legs. She said that had the Practitioner done so, it would fall below the standard reasonably expected.
10. While Dr Higgs' evidence is directed to what she understands to be common practice measured against the relevant standard, we note that Senior Member King questioned whether it was never or rarely appropriate to assist a patient to position their legs in the appropriate position. While this, of course is not evidence of the fact, neither are we persuaded that to assist a patient to position her legs with a gentle touch or guidance would fall below the standard reasonably expected and indeed Dr Higgs' own evidence was that she occasionally, albeit rarely, has done the same.
11. We do not find this particular established.

Particular 3(d)

1. In this examination, the Patient complained that the Practitioner's examination seemed rough and involved a thrusting in and out motion.
2. The Patient said that she felt a thrusting movement of the Practitioner's fingers in her vagina which, she said, was different to how she had experienced an internal examination before. It was suggested to her that the Practitioner had one hand on her abdomen and the fingers of the other hand in her vagina and they would have moved during that part of the examination. She could not recall him having his hand on her abdomen. The Practitioner said that in examining the Patient during an internal examination, his fingers do move from side to side and sometimes in and out a bit but not completely out of the vagina. He accepted that a patient could experience that part of the examination as thrusting.
3. The Practitioner denied that he would conduct a rough internal examination.
4. The Patient agreed that while the circumstances of this consultation examination caused her to be tense, she did not agree that this may have caused her to perceive the examination as rough.
5. The evidence of how the examination is performed may well provide the basis for the Patient's sensation that the Practitioner's fingers were moving in and out of her vagina however the Practitioner's account of how he conducted the examination does not support that he withdrew his fingers totally out of the Patient's vagina and reinserted them which is in essence what she said she felt. Equally, he said that he is not rough in conducting examinations and while it may well be that the Patient perceived it as rough and different from the other examinations she had had, we are unable to find that his examination of her was inappropriate.

Particular 3(e)

1. This concerns the Practitioner taking both of the Patient's hands in his during the consultation after the examination.
2. The Practitioner had no recollection of the consultation and said that he could not recall having taken the Patient's hands in his as she said. He said: I haven't to my recollection, done what she described, putting both my hands on both her hands. That's not a practice that I would normally do. So, take the hands, yes. If you're in discussion, it may be more than momentary, but the way she describes it, I don't believe that happened.
3. Given the Practitioner's evidence about his usual practice of giving a patient a reassuring pat and taking a patient's hand, that he does not recall doing exactly what the Patient describes does not persuade us that he did not cover her hands with his at this point in the consultation.
4. Dr Higgs said that the Practitioner was probably unaware that the Patient was feeling uncomfortable and confused by how she perceived the examination to have taken place and in placing his hands on hers in an effort to allay her anxiety instead increased her discomfort. She felt that this conduct fell below the expected standard but not significantly so.
5. We find this conclusion by Dr Higgs somewhat difficult to understand. In relation to Particulars 2(b) and (c) she considered the Practitioner touching the complainants in ways which made them uncomfortable was a failure by the Practitioner to interpret the patients' body language but which accepting that he was unaware of their distress, did not fall below the expected standard. We are unable to discern a material difference between the conduct complained of in Particular 3(e) which causes Dr Higgs to say that this conduct fell below the expected standard. Unfortunately, there was no examination of her directed to this point. We are however unable to agree that the Practitioner's conduct in relation to this particular is any different from the other particulars concerning his touching the patients and we do not conclude that it is conduct that falls below the accepted standard.
6. We do not find this particular made out.

Particular 4 - Patient C

1. The particulars in relation to Patient C are that the practitioner: (a) Inappropriately performed a breast examination of Patient C by squeezing both of Patient C's breasts over her clothing (b) Failed to obtain adequate informed consent from Patient C prior to touching her breasts (c) Failed to provide Patient C with a sheet to cover herself with during the examination (d) Inappropriately touched her upper breast over her clothing when asking whether she had a breast exam (sic) (e) Undertook an unnecessary breast examination of Patient C which was not clinically indicated in light of her clinical history and reported symptoms.
2. Patient C attended a consultation with the Practitioner on 29 March 2018 on referral from her general practitioner in relation to urinary incontinence and bladder prolapse.

Particular 4 (b) and (d)

1. She said that in the consultation with the Practitioner, he asked her if her mammograms were up to date and she told him they were. In the examination room she said the Practitioner "… walked in, placed both hands on my breasts over my clothes and squeezed my breasts". She said the squeezing lasted for between 30 to 60 seconds but "…felt like a lifetime." The Patient said the Practitioner continued to examine her breasts, squeezing one and then the other. She said he did not communicate what he was doing. She said she was shocked. She described the contact as squeezing "like making rissoles" an action she demonstrated by holding her two hands, palms towards each other and not touching.
2. Patient C said that while in the examination room she did not see a sheet to cover herself and did not recall the practitioner telling her there was one available.
3. The Patient denied that the Practitioner asked her when she last had her breasts examined. The Patient agreed that in her statement she referred to the Practitioner "touching" or "placing" his hands on her breasts. She was asked this question: Do you accept that what you felt may have been both sets of fingertips rather than hands? Perhaps but at the end of the examination I remember I felt like it was more like making a rissole like squashing unlike an examination.
4. She agreed that it was possible that the pressure she felt on her breasts came from the pressing of fingertips on her chest. She said it lasted several seconds although conceded it was when she made a second statement, some time after the event, that she was asked to think about how long the touching went on. She said "When you're not enjoying yourself things do seem to take longer. … It was probably less than 30 seconds but it seemed like … a long time."
5. The Practitioner had no recollection of the actual examination of the Patient but was adamant he did not squeeze her breasts. His notes of the examination record that she declined a breast examination. While not admitted, the practitioner conceded that it was possible that he may have touched the Patient's breasts while "gesturing over her chest while enquiring whether she wished to have a breast examination".
6. It was submitted for the Practitioner that the Patient's evidence should be approached with caution first because in her evidence she referred to the touching of her breasts as "squeezing" whereas before she had referred to the Practitioner touching or placing his hands on her breasts and secondly because she misdescribed the room in which the examination took place.
7. As we have earlier indicated, in establishing the complaint that the Practitioner touched the Patient's breasts without consent (and in relation to Patient A without a clinical reason) it matters little how the touch was described. Secondly, it was not suggested to Patient C that her describing the touching as "squeezing" was an invention but rather suggested that that description coming some years after the consultation may be confused in her recollection. That may well be the case and we observe that the Patient was giving evidence of what she perceived the touch felt like.
8. As to her recollection of peripheral details such as the size and layout of the examination room, when shown photographs of the examination room, the Patient observed that it seemed different to her. This does not cause us to doubt her evidence on the important matters, that is whether the practitioner obtained her consent before touching her breasts. Nor, it should be said, that the fact that the Patient disagreed that the Practitioner first palpated her abdomen before touching her breasts, his stated invariable practice which we have accepted, cause us to doubt the accuracy of the event which shocked her and which prompted the complaint.
9. 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.
10. 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.
11. We accept that the Patient said that she did not recall the Practitioner asking whether she had recently had a breast examination and neither can he, but it does not cause us otherwise not to accept her evidence that the Practitioner touched her breasts without her consent because, as we have indicated, to touch her breasts while lying on the examination table does not allow for adequate informed consent.
12. Dr Higg's opinion was that adequate informed consent is not able to be obtained from a partially clad patient lying on the examination table. This falls below the standard reasonably expected but not significantly below that standard.
13. We thus find Particular 4 (b) and (d) made out.

Particulars 4(a) and (e)

1. By these particulars, the Commission contends that the Practitioner inappropriately performed a breast examination on the Patient.
2. The Patient referred to what she felt as the Practitioner squeezing her breasts as a "breast examination" although admitted that she had never undergone a breast examination before. The Practitioner denied he performed a breast examination on Patient C, a fact supported by his notes of the consultation which noted that the Patient declined a breast examination. He added that he would not perform a breast examination without the patient's consent.
3. The assertion that what the Patient felt amounted to a breast examination then rests on her account of the practitioner squeezing one breast and then the other. The Practitioner said that if a patient consents to him conducting a breast examination, he asks the patient to loosen her upper clothing and he examines her breasts while lying on the table.
4. We are not persuaded that the Practitioner did conduct a breast examination and thus do not find these particulars established.

Particular 4(c)

1. It is asserted that the Practitioner failed to provide a sheet with which Patient C could cover herself during the examination.
2. In her examination before the Tribunal, Patient C conceded that there may have been a sheet provided on the examination table and she was lying on it. In relation to this aspect of Patient C's complaint, the Practitioner said that his invariable practice is to ensure patients who are to be examined have a sheet with which to cover themselves and if a sheet is, for some reason, not on the bed, he would ensure one was produced. He said that it was "impossible" that he would examine a patient who was not otherwise covered. He understood that to proceed without a sheet would be considered a breach of good medical practice and would amount to conduct that fell below the standard reasonably expected.
3. We are unable to conclude that a sheet was not available to cover Patient C nor are we able to be satisfied to the required standard that the Practitioner proceeded to examine the Patient without a covering. The practice is an invariable one for him and we do not find that the examination was conducted while the Patient was not appropriately covered.
4. We thus do not find this particular established.

Particular 5 On 24 November 202, during a consultation with Patient D, the Practitioner failed to obtain adequate informed consent from Patient D before performing an internal examination

1. Patient D was referred to the Practitioner by her gynaecologist for investigation of incontinence. The Patient said that in the consultation, the Practitioner asked her questions and gave her an information sheet but which she said had no details of the need for a manual examination. After speaking to the Practitioner's nurse and a urine sample collected, the Practitioner entered the examination room and told her that she was required to have a "manual examination". She said that she was not expecting this because she had had a similar appointment before and a manual examination was not involved.
2. The Patient was questioned about a form provided to her by her gynaecologist which comprised the referral to the Practitioner and some instructions for the Patient including the information that during the consultation, a "gynaecological examination may be performed". The Patient could not remember receiving that document but was prepared to accept that she was given it. It seems too that the Patient had some recollection of the second side of the referral document about a bladder diary and where it also notes that a gynaecological examination may be performed.
3. The Patient agreed that on arrival at the Practitioner's rooms she was given an information sheet. She could not recall if she read the information but agreed that she signed a consent form.
4. The Practitioner said that his usual practice was not to rely only on the consent form given to a patient by his reception staff. He said that he explains the parts of the examination to be conducted by him, the cystoscopic examination and a pelvic examination. His usual practice during the consultation to ask the patient whether she has any questions about the forms or the procedure and then during the examination he explains what the next part of the process is and why it is being done. The Practitioner said that Patient D arrived with a form on which was indicated that an internal examination may be conducted and he hoped that she (and other patients) read the forms.
5. As to the internal examination, it is not part of the Commission's complaint that the Practitioner conducted an internal examination that was not clinically indicated but rather that the Practitioner did not obtain the Patient's adequate consent to that part of the examination.
6. The gravamen of the complaint is that the to rely on a patient reading the information provided before the consultation and while in the examination room to inform the patient that there was to be an internal examination, did not amount to obtaining adequate informed consent.
7. As we have said, the basis for this part of the complaint is the Patient's assertion that she was not expecting an internal examination and it was not explained to her during the examination. As to whether the Patient read the referral form she received, it is clear that she had seen parts of it before.
8. Dr Higgs' evidence was that if, as the Practitioner said, the Patient arrived with a referral form which indicated that an internal examination may be required and as he said, the Practitioner explained to the Patient that an internal examination was necessary, it amounted to adequate informed consent.
9. Although it was submitted for the Commission that it was unsafe to assume that patients read the information material provided to them, the Practitioner's evidence was that he hoped they did and Dr Higgs made no comment in her report as to the wisdom or otherwise in assuming whether a patient had read the information or not.
10. We cannot, on the requisite standard find this particular made out.

Particular 6 6. On 24 November 2020, during a consultation with Patient D, the Practitioner inappropriately performed a cystoscopic examination on Patient D in circumstances where he: (i) Inappropriately held Patient D's hand during the examination (2) Did not use a camera and in doing inappropriately rested his cheek against Patient D's inner thigh

1. The Patient said that during the cystoscopic part of the examination, the Practitioner held her hand "… asking if I was ok and trying to reassure me it wouldn't take too long". She did not like this and felt it was unprofessional.
2. In relation to this aspect of the Patient's complaint, the Practitioner said given the way the cystoscopy was performed, it would have been impossible to hold her hands while both of his were engaged in conducting the examination. The Patient said that while the Practitioner was conducting his examination of her, he moved between the front of the bed and the end of the bed. She was adamant that the Practitioner held her hand after the urodynamic studies were completed.
3. Apparently accepting the Practitioner's evidence that it would be impossible to hold the Patient's hand while conducting a cystoscopy, the Commission submitted that there was an opportunity to hold the Patient's hand while her bladder was being filled as part of the urodynamic study. That is no doubt correct, and indeed, the Practitioner said that he may have held her hand while her bladder was being filled.
4. However, most importantly, the Commission's change of tack away from the particulars relied on to focus on another part of the examination is unacceptable for a number of reasons. First, it directly contradicts the evidence of Patient D, whose account the Tribunal was asked to prefer to that of the Practitioner. Secondly no leave was sought to amend the complaint. We do not propose to regard Particular 6(i) as being a reference to an aspect of the examination other than during the cystoscopy. In any event, we accept the evidence of the Practitioner that it would have been impossible to hold the Patient's hands during that examination.
5. Particular 6(i) is not made out.

Particular 6(ii)

1. The Patient said in her statement supporting the complaint that during this examination the Practitioner rubbed his cheek on her inner thigh for some seconds. She said that she knew it was not accidental and he did not apologise.
2. She agreed that the Practitioner was moving his head from side to side while looking at her bladder. She denied that the part of the Practitioner that touched the inside of her leg was the side of his head and insisted it was his cheek.
3. The Practitioner denied he rested his cheek on the Patient's thigh. He said that if any part of him touches a patient's leg during this procedure it is the side of the head as he moves to better see the bladder and associated structures.
4. The Commission submitted that Patient D's evidence is to be preferred to that of the Practitioner and the Tribunal would find that it was his cheek which was on her leg rather than the side of his head as he said. The basis for preferring the evidence of the Patient was based on what she felt or did not feel at that point in the examination. Regrettably no questions were asked of the Patient in explanation or illustration of what led her to believe it was the Practitioner's cheek not his head on her thigh and we cannot take that submission any further.
5. Dr Higgs' opinion was concerned with the advantages of using a camera for cystoscopic examination which, in her opinion would obviate the need for a practitioner to place his eye against the cystoscope and avoid close contact with a patient's legs and thighs. She agreed that to conduct a cystoscopic examination without a camera is acceptable practice and not inappropriate. She also agreed that where a patient's legs are not fully abducted, it is more likely that there will be contact between the practitioner's head and the patient's inner legs.
6. Thus, the evidence persuades us that it is not inappropriate to conduct a cystoscopy in the way conducted by the Practitioner and some contact may occur if the Patient's legs are not sufficiently abducted, which is of itself not inappropriate.
7. The Patient said that the contact with her legs during the cystoscopy made her feel uncomfortable and, as we have said, she believed it was deliberate.
8. We cannot find that the Practitioner's contact with her inner thigh during this examination was deliberate or inappropriate and we do not find this particular made out.

Particular 7 7. On 24 November 2020, during a consultation with Patient D, the Practitioner performed an internal examination for the assessment of vaginal prolapse which was not clinically indicated.

1. The Patient described the sequence of the examination conducted by the Practitioner and said that after the Practitioner had examined her using the cystoscope he asked her to stand and he inserted a finger into her vagina and asked her to cough.
2. The Patient agreed that with a full bladder and while lying on the examination table she was asked to cough and then asked to cough standing up. After that the tubes were removed and she was asked to return to the examination table and the Practitioner told her that he was going to examine her bladder. She was certain that following the cystoscopic examination she was again asked to cough while the Practitioner had a finger in her vagina.
3. The Practitioner said that this examination did not occur. He said that that vaginal examination of this patient was not clinically indicated. This kind of examination would have only taken place if a patient had a suspected prolapse and would occur during the urodynamic testing when the bladder was full. He said considering his clinical notes, there was nothing in them to suggest this test should be performed. Nor is there anything in the letter to the Patient's referring doctor to indicate that she was checked for prolapse.
4. It is perhaps important to note that the Patient said that at the end of the consultation she was angry and said that on reflection she "couldn't believe" what had happened and that she "froze". She said in her statement which was made some time after the consultation that she was angry with the Practitioner and herself for not saying something which we take to be her lack of complaint or comment about the touching of her thigh by the Practitioner's cheek during the examination.
5. While the Patient denied she was confused about the order of events during the examination by the Practitioner, it may be that her shock and anger have caused some confusion in how things occurred. Whether or not that is so, we are unable to conclude to the necessary level that the Practitioner performed the test recalled by the Patient.
6. Thus Particulars 5, 6 and 7 are not made out.

Conclusion

1. Particulars 1(a) and (b) and 4(b) and (d) are established.

Unsatisfactory professional conduct

1. Unsatisfactory professional conduct is defined by s 139B(1) of the National Law as: (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of that practitioner's profession is significantly below the standard reasonably expected of an equivalent level of training or experience. …. (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
2. Whether conduct established amounts to conduct which falls significantly below the standard reasonably expected of a practitioner of equivalent level of training or experience is an objective evaluation against the standards of the profession generally. There was some criticism that Dr Higgs' evidence had a rather narrow focus which often reflected how she conducts her own practice. However, 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.
3. The Commission further asserted that the conduct was improper and unethical.

Improper and unethical

1. The assessment of whether a practitioner has engaged in improper or unethical conduct must be read in the context of s 139B(1) that is relating to the practice of the practitioner's profession. In Health Care Complaints Commission v Sare [2018] NSWCATOD 190, the Court considered the dictionary meaning of both improper and unethical. The Court accepted (at [31]) "improper" as bearing the meaning "not in accordance with propriety of behaviour…" and "unethical" as "contrary to moral precept, immoral …".
2. In Office of Local Government v Toma [2015] NSWCATOD 21 the Tribunal held: "25. Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both. In Dallas Buyers Club LLC v UNet Limited (No 3) [2015] FCA 422 at [5] Perram J said, aptly for present purposes: The difficulty in locating where a line is to be drawn is a well-known problem in legal discourse. But here, as in other contexts, it is best answered not by seeking to find where the line is but instead by asking which side of the line one happens to be on. 26. In my opinion the conduct I have found and which the Respondent has not contested clearly falls on the wrong side of the line. It reduces public confidence in the institution of local government. It amounts to improper and unethical conduct."
3. 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.
4. In this case, there is no suggestion that the Practitioner touched the Patients' breasts for sexual gratification or out of prurience. When giving evidence to the hearing convened pursuant to s 150 of the National Law, he said that: … I would look at the patient and inquire have they had a recent breast check, do they want a check now? And that 15 seconds or whatever while you're discussing that I think it's a bit strange to leave your hands on their abdomen. I think it's a little bit strange to stick them in your pockets and I would often gesture over the upper abdomen …
5. We do not consider the proved conduct to amount to improper and unethical conduct.

Professional misconduct

1. Section 139E of the National Law defines professional misconduct as unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration or 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 the suspension or cancellation of the practitioner's registration.
2. In Chen v Health Care Complaints Commission (2017) 95 NSWLR 334; [2017] NSWCA 186 at [19]-[20], the Court characterised professional misconduct: "19. … The term 'professional misconduct' does not have a specific meaning; it is merely a category of 'unsatisfactory professional conduct' which is sufficiently serious to justify suspension or cancellation. … 20. 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. … Each case will depend upon an evaluative judgment to be made by the Tribunal as to the nature and seriousness of the conduct. …"
3. A finding of professional misconduct does not necessarily dictate cancellation or suspension of the practitioner's registration, however clearly by its terms it speaks to serious conduct.
4. While we are conscious of the seriousness of the proven conduct, we are not persuaded that the instances established either separately or when considered together amount to conduct which would justify suspension of the Practitioner's registration.
5. Thus, we find the Practitioner guilty of unsatisfactory professional conduct in relation to the proven particulars, but not professional misconduct.
6. The Practitioner elected to conduct the hearing in two stages, that is the first to determine whether and to what extent the complaints are established and the second stage to determine what protective orders should follow.
7. We will then adjourn the hearing of this matter to a date to be agreed.

Orders

1. The Tribunal makes the following orders: 1. Pursuant to s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW), the Practitioner, Dr Christopher Benness, is guilty of unsatisfactory professional conduct. 2. The proceedings are to be listed for hearing to determine the orders which are necessary to protect the health and safety of the public. The parties are to prepare and deliver to the Registrar within 7 days of these orders an agreed minute of proposed directions for the completion of the matter, following which a further date for hearing will be allocated.

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: 15 March 2024