Health Care Complaints Commission v He

Background

1. Dr He graduated with a Bachelor of Medicine from Shanghai Medical University in 1987 and moved to Australia in 1999. He was first registered in Australia on 18 July 2002 and became a Fellow of the Australian College of General Practitioners after 18 months of practice. Dr He was engaged as a general practitioner at the Dural Family Medical Practice (the Dural Practice) from February 2009 until shortly after the consultation with Patient A in May 2017. Since October 2017, Dr He has been employed at the Northmead Medical Centre. He is subject to conditions including that he not treat any female patient except in an emergency and that he practise only in a group practice.
2. In 2017, Patient A was a 47-year-old woman who had been a patient of the Dural Practice since 2005. Her regular treating doctor was Dr A. From time to time, when Dr A was not available, Patient A would consult other doctors at the Dural Practice including Dr He.
3. In 2016 Patient A was diagnosed with lichen sclerosus of the vulva. Lichen sclerosus is a skin condition that makes patches of skin look white, thickened and crinkly. It most often affects the skin around the vulva or anus. It can be itchy, painful and cause permanent scarring.
4. On 8 May 2017, Patient A presented at the Dural Practice. During the previous week, she had been experiencing pain when urinating. She had seen a doctor at another medical practice on 30 April 2017 and 5 May 2017. Suspecting a urinary tract infection, that doctor prescribed the oral antibiotic, Keflex. After feeling further shooting pains in her vagina, Patient A came back to see her regular GP, Dr A. As she was not available, Patient A made an appointment to see Dr He.
5. Dr He took a clinical history which records that Patient A reported a three day history of discomfort and pain while urinating, that she was urinating more frequently and that she had recently noted blood in her urine. She described a very painful shooting sensation inside her vaginal wall and lower back pain in the previous 10 days. She also had not had sexual intercourse for 18 months because it was painful. During the consultation, Dr He obtained the result from the urine sample that the other doctor had taken. The result was negative. Dr He asked Patient A for another urine sample. He sent the sample for testing. He told Patient A that the cause of her symptoms could be a pelvic infection and suggested that he perform abdominal and vaginal examinations. Patient A consented to having those examinations.
6. Following the examinations, Dr He prescribed the antibiotic Keflex and asked her to make another appointment. His plan was to see whether continuing treatment with Keflex eased Patient A's symptoms.

Tests for unsatisfactory professional conduct and professional misconduct

1. We set out the complaint in full at the end of these reasons. In summary, Complaint One is that Dr He is guilty of unsatisfactory professional conduct. Complaint Two is that he is guilty of professional misconduct. "Unsatisfactory professional conduct" is defined in s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) (National Law) as including: 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.
2. The ordinary meaning of the word "significant" is "not trivial, of importance, or substantial": Re A Medical Practitioner and the Medical Practice Act (unreported, NSWMT, 3 September 2007).
3. Under s 139B(1)(l) unsatisfactory professional conduct also includes: (l) Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession ...
4. In our view, the word "other" in s 139B(1)(l) limits the operation of that provision to conduct not falling within s 139B(1)(a) - (l): Attia v Health Care Complaints Commission [2017] NSWSC 1066 at [159]-[160]; Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 at [31]. Unless the alleged conduct does not come within s 139B(1)(a), we do not need to consider whether it comes within s 139B(1)(l).

Summary of Complaint One

1. Below we briefly summarise the main elements of the particulars in Complaint One.
2. Particular one relates to Patient A's privacy - inappropriately locking the door before conducting an internal examination and failing to draw the curtain when Patient A was undressing and during the internal examination (maintaining privacy).
3. Particular two is that Dr He failed to offer Patient A any alternative to an internal examination for pelvic inflammatory disease (PID) in circumstances where she suffered from lichen sclerosus (alternative options).
4. Particular three is that during the consultation, Dr He performed an inappropriate speculum examination on Patient A which was not clinically indicated (speculum examination).
5. Particular four is that Dr He repeatedly inserted the speculum into Patient A's vagina when she had lichen sclerosus and had complained of pain on the initial insertion. This particular also alleges that Dr He continued the examination despite Patient A telling him that it was painful (continuing speculum examination).
6. Particular five is that following the speculum examination Dr He performed a per vaginal internal examination where such an examination was not clinically indicated (per vaginal examination).
7. Particular six is that during the per vaginal examination Dr He continued despite Patient A telling him that the examination was painful (continuing per vaginal examination).
8. Particular seven is that during the consultation Dr He inappropriately asked Patient A to perform Kegel pelvic floor exercises where there was no clinical indication for those exercises to be performed (performance of pelvic floor exercises).
9. Particular eight is that the duration of the speculum examination and the per vaginal examination were excessive and not clinically warranted (duration of examinations excessive).
10. Particular nine is that by his conduct in particulars four and six, Dr He breached the Medical Board of Australia's 'Sexual Boundaries: guidelines for doctors', 28 October 2011 (breach of sexual boundaries).
11. Dr He admitted that some of his conduct amounts to unsatisfactory professional conduct in breach of s 139B(1)(a) and s 139B(1)(l), at least to the extent of a finding that the conduct was improper - not unethical. These admissions relate to Complaint 1, particulars 2, 4(a), (c) and (e), 5(d), 6(a) and 7. He denied that this conduct constituted professional misconduct.

Summary of Complaint Two

1. Complaint Two is that Dr He is guilty of professional misconduct. Dr He submitted that his conduct does not amount to professional misconduct.

Tribunal's role

1. The Tribunal's role is firstly to determine whether the HCCC has proved the subject matter of the particulars set out in Complaint One or Dr He has admitted those particulars: National Law, s 149. Even where Dr He has admitted the subject matter of a particular, we do not have to make findings of fact in accordance with those admissions.
2. If we do find the subject matter of the complaint proved, we must then decide whether that conduct meets the definitions of unsatisfactory professional conduct relied on by the HCCC. Again, we are not bound by an admission by Dr He that his conduct amounts to unsatisfactory professional conduct. If it does, we must then determine whether that conduct amounts to professional misconduct. On the basis of our findings we must then decide what protective orders, if any, should be made. Suspension and cancellation of the practitioner's registration are available if the Tribunal finds professional misconduct.
3. The standard of proof we must apply when making findings of fact is the civil standard - 'on the balance of probabilities'. It was said by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 that: "The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."
4. Section 140 of the Evidence Act 1995 (NSW) provides that matters including the gravity of the matters alleged may be taken into account when making findings of fact.
5. However, the Tribunal is not bound by the rules of evidence and, strictly speaking, "neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT": Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41, Leeming JA with whom Gleeson JA agreed. While we are not bound to adopt the approach set out in Briginshaw or in s 140 of the Evidence Act, that general approach may be justified. When deciding whether the evidence is sufficient to meet the civil standard of proof, we will be informed by matters including the seriousness of an allegation and the gravity of the consequences of making the finding.

Patient A

1. Patient A did not give evidence. The solicitor for the HCCC, Ms Neal, provided an affidavit dated 20 February 2020 setting out details of telephone calls she had had with Patient A about her attendance at the hearing. Despite initially agreeing to give evidence by phone or audio-visual link, Patient A later changed her mind. She said she had decided that she did not wish to give evidence at all. Following that communication, the HCCC served an Amended Complaint deleting three particulars where critical evidence from Patient A was in direct conflict with Dr He's evidence.
2. The first particular which was withdrawn alleged that Dr He continued to conduct a speculum examination despite Patient A asking him to stop the examination. The second particular was that Dr He failed to wear gloves during the per vaginal examination. The third particular was that Dr He inappropriately asked Patient A to perform Kegel pelvic floor exercises in circumstances where she had withdrawn consent by stating words to the effect of "I'm done with this. I am finished. I don't want to do this anymore." In addition the HCCC did not rely on Dr He asking Patient A to perform Kegel pelvic floor exercises as a breach of the Medical Board of Australia's 'Sexual Boundaries: guidelines for doctors' (28 October 2011).
3. As Patient A's evidence is entirely untested, the HCCC conceded that where there is a conflict between her evidence and that of Dr He, the Tribunal should generally prefer Dr He's evidence. That concession was made with the qualification that Dr He's evidence may be affected by the cross-examination.
4. Patient A's clinical records show that she had previously made workplace complaints or brought workers compensation proceedings alleging sexual harassment. Dr He acknowledged that the Tribunal should not make credibility findings against Patient A based on that information. However, Dr He submitted that the material does "permit a finding that Patient A was perhaps particularly sensitive to remarks or conduct which she construed to be of a sexual nature." An assertion that Patient A is "particularly sensitive" is just another way of saying her credibility is in question and we should give her evidence less weight. For that reason, we do not accept the submission.

Dr He's evidence

1. Dr He provided a statement and other relevant evidence including transcripts of proceedings and decisions made about him by the NSW Medical Council and the Professional Standards Committee (PSC). Dr He also provided evidence of courses he had attended either online or in person and references from colleagues. Dr He gave evidence to the best of his recollection, acknowledging on many occasions that he could not remember the sequence of events or exactly what he had said. We are not critical of Dr He's failure to remember many of the details of the consultation. His statement was written well over two years after that consultation.
2. Dr He gave oral evidence which was, at times, inconsistent with admissions made in the Reply document. For example, he insisted that he had not behaved inappropriately while formally acknowledging that certain behaviour constituted unsatisfactory professional conduct. In re-examination, Dr He confirmed that while much of his conduct was not inappropriate, it would have been better if he had done things differently.
3. We note that, although the particulars of the complaint refer to conduct being "inappropriate", we do not need to make findings about the appropriateness or otherwise of the conduct. The issue is whether the conduct occurred and if so, whether it meets the definition of unsatisfactory professional conduct. The fact that Dr He was, in some respects, unfamiliar with the nuances of his legal case is regrettable. But it does not affect our estimation of his credibility or his insight.

Expert evidence

1. Dr Young provided a comprehensive report dated 6 April 2018 and gave oral evidence in person at the hearing. In general, his opinions were well articulated and supported. Where we disagree with an opinion Dr Young expressed, we will explain our reasoning. The professional members of the Tribunal are entitled to apply their own specialist knowledge and expertise to the evidence in forming opinions about whether there has been a departure from the relevant standard of conduct. However, where there is "genuine difference of view within the body of the profession concerned", such a conflict is best resolved by the adducing of expert evidence before the Tribunal: Kalil v Bray [1977] 1 NSWLR 356 at [261]-[262].

Other witnesses

1. Other witnesses provided statements including Patient A's husband, two female doctors from the Dural Practice and the other doctor who Patient A had previously consulted. None of that evidence is directly relevant to any factual issue in dispute.

Allegation - particular 1(a)

1. It is alleged that Dr He engaged in unsatisfactory professional conduct when he locked the consultation room door before conducting an internal examination of Patient A.
2. In her statement to the police, Patient A said that: Once [name of Patient A's child deleted] left the room, Dr He closed and locked the door. I have never had any other Doctor previously lock the door when I have been examined, so I thought that this was weird as there was still a curtain around the room that would close off any view from anyone that walked in the room.
3. Dr He admitted locking the door and said he did so to prevent Patient A's 10-year-old son from coming back into the consultation room. Dr He said that he could recall at least one occasion in 2002 when a child of a similar age came back into the room looking for his mother. He said his motivation was to protect Patient A's privacy and that the door could be unlocked from the inside in an emergency. In hindsight, he acknowledged that he should have told Patient A why he was locking the door. He does not admit that this conduct constitutes unsatisfactory professional conduct.

Standards

1. The Royal Australian College of General Practitioners (RACGP), Standards for general practices (4th ed, 2010) , states under the heading "privacy and patient dignity" at 5.1.1, that: The dignity of the patient should be protected by suitable visual and auditory privacy. Visual privacy can be afforded to patients during the clinical examination by the use of a gown or sheet and an adequate curtain or screen. This requirement includes situations in which there is a door opening to an area to which the public may have access and also when patients are required to undress/dress in the presence of the GP or practice nurse.

Expert evidence

1. Dr Young's view was that, regardless of the circumstances, locking the door during a consultation is "absolutely inappropriate" and constitutes unsatisfactory professional conduct. That view appeared to be based on occupational health and safety considerations.

Consideration

1. The RACGP standards envisage the possibility that a consultation may take place in a room where there is "a door opening to an area to which the public may have access ...". In such cases, visual privacy should be afforded by the use of a gown or sheet and an adequate curtain or screen. There is no suggestion in the standards that visual privacy should be afforded by locking the door. Locking the door is not necessary to protect a patient's visual privacy if a gown, sheet, curtain or screen is used. Locking a door may make patients feel uncomfortable or trapped. While it might be seen as adding extra security for the patient, unimpeded entrance to the room may be necessary in an emergency. We note that Dr He and Patient A would have been able to open the door from the inside in an emergency, but we do not know if she was aware of that possibility.
2. By locking the door, Dr He was attempting to protect Patient A's visual privacy. However, if he was concerned about Patient A's child entering the room, he should have asked her if she wanted him to lock the door to avoid that situation. Locking the door without consulting Patient A demonstrates that Dr He's judgment is below the standard reasonably expected of a practitioner of an equivalent level of training or experience. However, in our view, it is not "significantly" below that standard because he had a genuine, though misguided, motive for doing so. For the same reason, it does not amount to improper or unethical conduct.

Allegation - particular 1(b)

1. It is alleged that Dr He engaged in unsatisfactory professional conduct when he did not draw the curtain around the examination bed when Patient A was disrobing. In the Reply to the complaint, Dr He admitted the factual basis for this particular, but not that it constituted unsatisfactory professional conduct. Although Dr He admitted that he did not draw the curtain, he said in oral evidence that he could not recall whether he did or not. It is his normal practice to draw the curtain when a patient is undressing.
2. There was very little direct evidence about whether or not Dr He drew the curtain. Patient A did not mention it in her police statement three days after the consultation. The only reference to the curtain was at paragraph 10 where Patient A said that she thought it was weird that Dr He locked the door as there was still a curtain around the room.
3. Patient A wrote in a further statement dated 26 October 2018, nearly 18 months after the consultation, at paragraph 10, that: The curtain was not drawn around the bed during the examination and Dr He was visible to me the entire time I was being examined. The only time the curtain was drawn and screening me was briefly at the end of the examination, while I got dressed. Those brief moments were the only time during the consultation that I could not see Dr He.
4. Dr He did not mention the curtain in his statement. Patient A's evidence is the only evidence which indirectly supports the allegation that Dr He did not draw the curtain around the examination bed when Patient A was disrobing at the beginning of the consultation. Patient A did not make herself available for cross-examination so we were unable to clarify that evidence. However, given Dr He's admission, we find that he did not draw the curtain when Patient A was getting undressed.

Standards

1. The RACGP Standards state at 5.1.2, that: Visual privacy can be afforded to patients during the clinical examination by the use of a gown or sheet and an adequate curtain or screen. Members of the clinical team need to be sensitive to patient dignity when patients are required to undress/dress in the presence of the GP or practice nurse.
2. The RACGP Standards at 5.1.1 also apply to this particular (see [47] above).
3. The Medical Board of Australia's 'Sexual Boundaries: guidelines for doctors' (28 October 2011) states under the heading "professional standards in physical examinations", that "good medical practice in conducting physical examinations includes: allowing the patient to undress and dress in private." The Guidelines also mention under the heading "understanding and defining sexual boundaries" that, "in managing sexual boundaries a doctor should be aware that inappropriate disrobing ... may be considered a breach of sexual boundaries." Although Dr Young refers to the sexual boundaries guideline in his report, the HCCC does not allege that this conduct breached those guidelines (see particular 9).

Expert evidence

1. Dr Young did not give an opinion as to whether or not drawing the curtain around the examination bed when Patient A was disrobing constitutes unsatisfactory professional conduct.

Consideration

1. Failure to draw the curtain in the circumstances of this case does not constitute "inappropriate disrobing" so as to breach sexual boundaries. However, it is a breach of the RACGP Standards. Dr He should have drawn the curtain and allowed Patient A to get undressed in private. By failing to do so, he was not sensitive to her dignity and risked making her feel embarrassed and vulnerable. Dr He's judgment in failing to draw the curtain is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Allegation - particular 1(c)

1. In a separate particular, the HCCC alleges that Dr He did not draw the curtain around the examination bed during the internal examination. Dr He admitted this particular, however he said in oral evidence that he could not recall whether he had drawn the curtain or not. His normal practice is to draw the curtain for all intimate examinations. We find that Dr He did not draw the curtain while examining Patient A.

Standards

1. The same parts of the Standards for general practices at 5.1.1 apply to this particular (see [47] above). Although Dr Young refers to the sexual boundaries guideline in his report, the HCCC does not allege that this conduct breached those guidelines (see particular 9).

Expert opinion

1. Dr Young's opinion was that Dr He's conduct in not drawing the curtain around the examination bed during the internal examination constitutes unsatisfactory professional conduct.

Consideration

1. Given that the door was locked during the examination, it was not necessary to draw the curtain to protect Patient A's privacy or her dignity. For that reason, we do not agree with Dr Young's opinion. In the circumstances of this case, Dr He's judgment in failing to draw the curtain around the examination bed during the internal examination, when only Dr He was present and no one else could enter the room, is not significantly below the relevant standard. Nor does it amount to improper or unethical conduct.

Allegation

1. It was alleged that Dr He failed to offer Patient A any alternative to an internal examination for pelvic inflammatory disease in circumstances where she suffered from lichen sclerosus, a known painful condition. Dr He admitted that allegation and agreed that it amounts to unsatisfactory professional conduct.
2. Dr He noted that Patient A had already had an ultra sound and a CT scan in 2016. In his mind, those tests were not a substitute for visualising or manually examining her pelvic organs.
3. At no time did Dr He consider whether he should refer Patient A to one of her regular female GPs or to her treating obstetrics and gynaecology practitioner. He now thinks that it would have been more appropriate, as soon as Patient A reported pain during the examination, to stop the examination and refer her to one of those practitioners.

Expert evidence

1. Dr Young's view was that the alternative Dr He should have offered was not having an internal examination of any sort. Dr Young also suggested that one alternative to an internal examination was a vaginal swab which can be taken without using a speculum. It follows that he considered the failure to do so to constitute unsatisfactory professional conduct.

Consideration

1. In our view, pelvic inflammatory disease (PID) is a clinical diagnosis and internal examination is clinically indicated, where there is a suspicion of PID. An alternative to an internal examination, such as pelvic ultrasound, is more useful in excluding other causes of pelvic pain and may be normal in pelvic inflammatory disease.
2. We have decided, in relation to Complaint One, particular 3 that attempting an internal examination was clinically indicated even though Patient A had lichen sclerosus. It follows that we are not satisfied that Dr He engaged in unsatisfactory professional conduct by not offering Patient A any alternative to an internal examination for pelvic inflammatory disease in circumstances where she had lichen sclerosus.

Allegation - particulars 3(a) - (d)

1. It is alleged that during the consultation Dr He performed an inappropriate speculum examination on Patient A in circumstances where the examination was not clinically indicated for four reasons: Patient A's clinical history, the diagnosis of lichen sclerosus, the symptoms Patient A reported and the availability of other non-invasive procedures to visualise Patient A's pelvis.
2. In the Reply, Dr He does not admit that the speculum examination was not clinically indicated. However, he said that, on reflection, he should either not have performed a speculum examination or have stopped the speculum examination when Patient A first reported pain. When questioned about the statement in the Reply document, Dr He denied that conducting a speculum examination was inappropriate but said that, in retrospect, he should have asked a female doctor to perform the examination.

Clinical history - particular 3(a)

1. Dr He recorded Patient A's clinical history and symptoms as follows (with some minor grammatical corrections): Genito-Urinary: Urinary frequency. Dysuria. Urgency. Some bloods in the urine from last Saturday week, was on Keflex, feeling slightly better after, urine culture was negative. Start pain again 3 days feeling on vaginal area, on clobetasol and vagifem, feeling lower back pain for 10 days. Last period at about 3rd April. States she is not sexually active for 18 months because it is too painful.
2. In his statement, Dr He said that Patient A had reported a 3 day history of discomfort and pain when urinating, that she was urinating more frequently and that she had recently noted there were some blood in her urine. He went on: She described a very painful shooting sensation inside her vagina wall. [Patient A] also reported lower back pain for the previous 10 days, and that she had not been sexually active for 18 months, as it was too painful. I checked [Patient A's] medical history in the notes, which recorded that she had undergone a pelvic ultrasound and CT scan in 2016, the results of which were both negative. [Patient A] told me she had consulted a GP (outside the Practice) approximately one week prior to the consultation, that she had provided a urine sample to the GP and was awaiting the results. [Patient A] noted she had been taking Keflex, which has slightly alleviated symptoms. She said that she was also using Clobetasol cream and Vagifem. I ascertained which pathology provider had been sent her urine sample and rang it to obtain the results of the testing on the urine sample. I advised [Patient A] of the normal results at the consultation. I asked [Patient A] to provide a further urine sample, which she did, I completed a 'dip stick' examination of the urine, which revealed + blood, but was otherwise negative. . . . In light of her symptoms I sent the urine sample for further testing. I told [Patient A] that it was unlikely that her symptoms were due to a urinary tract infection (UTI), and that the cause of her symptoms could be a pelvic infection or other gynaecological issue/cause. My thinking at the time was that possible causes of [Patient A's] symptoms were some form of pelvic infection, which could be in the uterus and surrounding area or cancer of the cervix, though this seemed less likely to me. . . . In [Patient A's] circumstances, while her history of not having any sex for the last 18 months made certain forms of pelvic infection less likely, my thinking at the time was that it did not rule it out. I was aware that, for instance, Chlamydia could be present and dormant for a significant period without symptoms. . . . I was also aware that the presentation of pelvic infection can vary, from few or no symptoms to being very unwell, with fever and abscess formation. In [Patient A's case] my differential diagnoses included appendicitis, cervicitis, urinary tract infection, endometriosis, ovarian torsion, adnexal tumours ectopic pregnancy and diverticulitis.
3. In hindsight, Dr He says that he should have obtained a more detailed history, especially about the nature and degree of Patient A's pain. Instead he focused on investigating pelvic inflammatory disease.

Diagnosis of lichen sclerosus and symptoms - particular 3(b) and 3(c)

1. Dr He was aware that Patient A had been diagnosed with lichen sclerosus. He had seen between three and five other patients with lichen sclerosus in his career. He also said he remembers learning about it in medical school in 1987. It was his understanding that those patients suffered from itchiness and discomfort in the anus and pubic area. He does not recall them ever complaining of pain. At the time, he did not know that lichen sclerosus could be so painful or that it would make an internal examination more painful. However, he says that he now understands that in severe cases the surrounding area can be very painful to touch.
2. Dr He admitted that he was thinking about pelvic inflammatory disease, not lichen sclerosus when he conducted the examination. He had a report from Associate Professor Gayle Fisher, Patient A's specialist dermatologist. That report, written just over 3 weeks before the consultation, focused on the lichen sclerosus and the dermatological treatments for that condition. There was no mention in that report of the level of pain that this condition was causing Patient A.
3. One reason for Dr He giving a differential diagnosis of pelvic inflammatory disease was that the antibiotic (Keflex) was working to some extent, the patient's pain was in at least three different locations including low back pain and the patient was experiencing pain when attempting intercourse. Dr He said that he had in his mind that Patient A may have Fitz-Hugh-Curtis syndrome - a rare complication of pelvic inflammatory disease. Dr He said that by doing the speculum examination, he was attempting to obtain a cervical swab and to check the cervix for redness or inflammation. He said that a cervical swab was more likely to identify the type of bacteria causing the pain than a vaginal swab.

Availability of other ways to see Patient A's pelvis - particular 3(d)

1. This particular was included presumably as a result of an opinion expressed by Dr Young at p 30 of his report that "other modalities to visualise the pelvis are available - ultrasound, CT scan, MRI to name a few."

Expert evidence

1. Dr Young's opinion was that Dr He did not take an adequate history to establish a specific or provisional diagnosis. For that reason alone, he was not convinced that a speculum examination was clinically indicated. As the HCCC has not alleged that Dr He failed to take an adequate clinical history, we do not need to make a finding about that matter.
2. In Dr Young's report, he said he believed "pelvic infection is unsupported by the recorded history and lack of fever findings". In oral evidence, Dr Young explained that he would give it a very low differential diagnosis. Even with a history of lower back pain and uterine tenderness, Dr Young was only prepared to give pelvic inflammatory disease a low probability diagnosis. Much more likely, in his view, was that lichen sclerosus was causing the symptoms. In those circumstances, it was his view that most GPs would look at external genitalia for an explanation of the patient's symptoms.
3. Dr Young expressed the view that lichen sclerosus is "an extremely painful condition" and noted that Patient A had been unable to have sexual intercourse for 18 months. He said, "most GPs would hesitate to do a speculum examination on such a patient. If there was a clear medical imperative to do so, then a discussion of the benefits versus the probability of causing pain during the examination would have to take place."
4. In his report Dr Young did not separately address whether a speculum examination was clinically indicated, but for the diagnosis of lichen sclerosus.

Consideration

1. A speculum examination was clinically indicated in all the circumstances because the medical history and Patient A's description of her symptoms suggested pelvic inflammatory disease as one possible diagnosis. We do not agree with Dr Young that pelvic inflammatory disease had a low level differential diagnosis or that pain due to lichen sclerosus should have been put at the top of that list. Dr Young ultimately conceded that a diagnosis of lichen sclerosus did not explain several of Patient A's symptoms including diffuse abdominal and uterine tenderness and lower back pain.
2. The standard approach of diagnosing an infective cause of pelvic inflammatory disease is to obtain an endo-cervical swab from the lower part of the uterus. By using a speculum, we accept that Dr He was attempting to obtain such a swab. That test is more reliable than a urine test or a vaginal swab in detecting pathogens or other organisms that may be contributing to pelvic inflammatory disease as a possible cause of Patient A's pain.
3. In summary, it was clinically justified on the basis of a possible diagnosis of pelvic inflammatory disease, to initiate a speculum examination. That is the case even though Dr He knew that Patient A had lichen sclerosus, shooting pains in her vagina and that she had not had sexual intercourse for 18 months because of the pain. Lichen sclerosus may produce mild to more severe pain and A/Prof Fisher's report had not recorded that Patient A was experiencing significant pain. Nevertheless, Patient A's history pointed to the strong possibility that she would experience some pain, and perhaps significant pain, during a speculum examination. That possibility does not rule out assessing the feasibility of such an examination.
4. What Dr He should have done was to proceed gently and cautiously with the speculum examination, keeping in mind the risk that he would not be able to obtain an endo-cervical swab because it would be too painful. This is the standard approach to obtaining that information. His deficiencies relate to his poor communication skills and his determination to perform the examination without sufficient regard to the risk that Patient A would experience, or was experiencing, pain.
5. As we have not found the subject matter of this particular proven, we do not need to determine whether it constitutes unsatisfactory professional conduct.

Continuing speculum examination - Complaint 1, particular 4

Allegation - particulars 4(a), (c) and (e)

1. The HCCC alleged that Dr He continued the examination despite Patient A informing him that the examination was painful and that he continued the examination for a period that was not clinically warranted. It was also alleged that Dr He repeatedly inserted the speculum when Patient A had a known painful vulva condition and had complained of pain on initial insertion. Dr He admitted these allegations and agreed that they constitute unsatisfactory professional conduct. We deal first with particular 4(c) and then with particulars 4(a) and (e).

Duration was not clinically warranted - particular 4(c)

1. In her statement to the police three days after the consultation, Patient A wrote that: "He had this instrument inside my vagina for approximately 5 - 7 minutes." On initial insertion of the speculum, Patient A said, "Oh gosh that hurts." Each time he pressed the speculum down, she said to him, "Oh please don't do that. It really hurts." Dr He replied, "Not much longer now. I'm almost there. I can just see your cervix." After 5 - 7 minutes, Patient A said, "How much longer? How much longer? It hurts." Dr He said, "OK, OK" and then withdrew the speculum.
2. In oral evidence, Dr He said that the speculum examination probably took 7 - 10 minutes, but his recollection was that he withdrew and reinserted the speculum several times. In his statement, he wrote that he inserted, then withdrew the speculum when Patient A reported pain. After a short time he tried again, but on Patient A reporting pain, he withdrew the speculum. He then said, he "made a few further attempts to locate her cervix (repeating the above procedure)". He may have used a smaller speculum on the second or subsequent occasions, but he cannot recall. In response to Dr He's assertions, Patient A said that, "Dr He did not reinsert the speculum once he had removed it."

Expert evidence

1. Dr Young's evidence was that a competently performed speculum examination should only take a minute or so. Dr He's inability to find the cervix quickly raises doubt as to his clinical skills. According to Dr Young, an insightful GP knows the limitation of their skills and humbly refers to a more skilled clinician.

Consideration

1. The evidence about the duration of the speculum examination is generally consistent. We are satisfied that the speculum examination took approximately 7 minutes. We also accept Dr He's evidence that he withdrew and reinserted the speculum several times, despite the fact that Patient A does not recall that happening. We find, on the basis of Dr He's and Dr Young's evidence, that a speculum examination normally takes a minute or two.
2. We find that Dr He continued the speculum examination for a period of time that was not clinically warranted. The examination should not have taken so long and should not have been repeated several times when the procedure was obviously causing pain. In those respects, his skills in conducting the examination are significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. Particular 4(c) amounts to unsatisfactory professional conduct.

Continuing despite patient expressing pain - particulars 4(a) and (e)

1. It is alleged that Dr He continued the examination and repeatedly inserted the speculum despite Patient A telling him that the examination was painful on initial insertion and in circumstances where she had lichen sclerosus. Dr He admitted these allegations and agreed that they constitute unsatisfactory professional conduct.
2. Dr He had told Patient A before the examination that the procedure may be painful. He said he did so because Patient A had reported a very painful shooting sensation inside her vaginal wall.
3. When asked why he didn't stop the speculum examination when Patient A indicated that she was in significant pain, Dr He could not explain or justify his behaviour. He said that pain is very subjective. He did not appreciate at the time that Patient A was in significant pain. Based on his understanding of lichen sclerosus at the time, and Patient A's answers when he asked her if she wanted a break, he thought that her pain was mild. He acknowledged that at the beginning she said that it was painful.
4. Dr He was taken to his clinical notes made after the consultation. Those notes record that he was "unable to use the specular because of the vaginal area pain, difficulty digital penetration with obvious spasm and pain, failed to do bi-manual exam". He said that normally if a patient says she is in pain, he will ask how bad it is and whether she wants him to stop or have a break. He also said that since completing a communication course, he now knows that he should tell the patient that they are in charge and they can stop him at any time if they are in pain. It became apparent during cross-examination that Dr He could not recall whether he had expressly asked Patient A whether she wanted a break. However, contrary to the HCCC's submission, we do not accept that this was an example of "recent invention". Rather, it demonstrates that Dr He equated asking Patient A if she wanted to continue, with offering her a break. That is a reasonable interpretation.
5. Similarly, when Dr He said that he chose a smaller speculum after Patient A reported pain, we do not regard that evidence as "recent invention". Dr He could not remember how many times he re-inserted the speculum or what size he had used. He was trying to reconstruct events based on his usual practice. In any case, there is no allegation that Dr He should have selected a smaller speculum but did not do so.
6. In retrospect, Dr He says that he should have stopped the speculum examination after Patient A reported pain.

Expert evidence

1. Dr Young was very critical of this conduct. He said that an empathetic GP would immediately withdraw the speculum if they were causing pain and either discuss the situation with the patient or abandon the examination.
2. During cross-examination, Dr Young was told that the HCCC had withdrawn the evidence that "[E]ach time Dr He pressed the speculum down and it clicked, Patient A told Dr He, Please don't do that. It really hurts." Even without that evidence, Dr Young considered that Dr He should have been able to see that Patient A was in pain whether she said so or not. He was not prepared to revise his opinion even if Dr He thought that Patient A only had mild pain.

Consideration

1. We do not share Dr Young's opinion that Dr He's conduct is just as serious whether Patient A expressly told him not to do it because it really hurt, or whether Dr He just thought she was in mild pain. There is a qualitative difference between those two scenarios. Nevertheless, Patient A did inform Dr He that the examination was painful and he repeatedly inserted the speculum when she complained of pain on initial insertion. In our view, Dr He's communication skills and judgment in continuing the examination in the circumstances set out in these particulars is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Need to visualise the cervix - particular 4(d)

1. This allegation is that Dr He sought "to visualise Patient A's cervix without any clinical indication or risk factors or swab findings to suggest cervicitis or any other urgent diagnosis which would warrant visualising the cervix." Dr He did not admit this allegation.
2. Dr Young's evidence was that he "did not feel that it was imperative to visualise the cervix" as "there was no clinical indication or risk factors or past swab findings to suggest cervicitis or any other urgent diagnosis."
3. This particular overlaps with particular 3 of Complaint One, that a speculum examination was not clinically indicated. We have found that the HCCC has not proved that particular. For the reasons we have given, visualising Patient A's cervix was clinically indicated because of the possibility of pelvic inflammatory disease. We do not find that this particular amounts to unsatisfactory professional conduct.

Per vaginal examination - Complaint 1, particular 5

Allegation - particulars 5(a) - (e)

1. Following the speculum examination, Dr He performed an internal examination on Patient A using his fingers. The HCCC alleges that this examination was not clinically indicated for five reasons. Dr H admits that he engaged in unsatisfactory professional conduct on the basis of one of those reasons - that he should not have performed a per vaginal examination given Patient A's earlier complaints of pain during the speculum examination (Complaint 1, particular 5(d)).
2. Dr He did not admit this particular on the basis of Patient A's clinical history, the diagnosis of lichen sclerosus, the symptoms she reported or the availability of other non-invasive modalities to visualise Patient A's pelvis. However, he said that, in retrospect, he should have asked a female doctor to perform the examination because that was more culturally appropriate.
3. In oral evidence, Dr He said that even though he was unable to perform the speculum examination, he still wanted to see Patient A's cervix to check for swelling or tenderness. Because his fingers are smaller than a speculum, he thought it would be less painful and that, despite the vaginal spasms, Patient A would be able to tolerate that kind of examination.
4. Dr He's notes record that Patient A had 'uterine tenderness'. He could not recall how he came to that conclusion. After questioning, Dr He acknowledged that the tenderness may have been "supra-pubic" tenderness. Nor could Dr He remember whether he performed a bi-manual examination. A bi-manual examination is performed during an internal examination by placing one hand on the patient's lower abdomen and two fingers inside the vagina to feel for uterine and/or cervical tenderness. His clinical notes record that he "... failed to do bi-manual exam". On the basis of all the evidence, we are not satisfied that Dr He successfully conducted a bi-manual examination. He was unable to insert his fingers deeply enough into the vaginal canal to feel the cervix or the uterus.

Expert evidence

1. Dr Young's previous opinions about there not being any clinical indication or provisional diagnosis supporting an internal examination also apply to this particular. It follows that, in his view, a per vaginal examination was not clinically indicated in the context of each of the circumstances listed under this particular.

Consideration

1. The per vaginal examination was performed in an attempt to conduct a bi-manual examination to assess Patient A's pelvic organs for tenderness. If there had been tenderness, that would have been consistent with a diagnosis of pelvic inflammatory disease. For that reason, the per vaginal examination was clinically indicated given Patient A's clinical history and her symptoms. There were no other "non-invasive" ways to assess Patient A for uterine or cervical tenderness. We appreciate that Patient A had reported pain during the speculum examination, but it was reasonable for Dr He to attempt the per vaginal examination because the insertion of his fingers was likely to be much less painful than the insertion of the speculum. Dr He did not lack any skill, knowledge or judgment in attempting a per vaginal examination. We are not satisfied that this conduct constitutes unsatisfactory professional conduct.

Continuing per vaginal examination - Complaint 1, particular 6

Allegation - particular 6(a)

1. The HCCC alleged that Dr He engaged in unsatisfactory professional conduct when he continued the per vaginal examination despite Patient A telling him that the examination was painful. Dr He admits this allegation.
2. Shortly after he inserted his fingers, Patient A said, "Oh it hurts. It hurts. It's really painful." Dr He then withdrew his fingers and applied some lubricant. When Dr He re-inserted his fingers, Patient A said, "This is really uncomfortable". Dr He then told Patient A to relax and to make fists with both her hands and place them underneath her buttocks. Patient A then said, "It really hurts. It's really uncomfortable." She kept wincing. Dr He told her to relax and instructed her to squeeze her muscles to prevent spasms. After about 20 minutes, Patient A said, "I can't do this anymore, I need to get dressed." At that point, Dr He stopped the examination.
3. Dr He was intent on conducting a bi-manual examination despite Patient A's expressions of pain and discomfort. He should have stopped the examination when Patient A first expressed pain rather than applying lubricant and persevering with the examination. In failing to do so, his communication skills and judgment were significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

Allegation - particular 6(b)

1. The HCCC alleged Dr He engaged in unsatisfactory professional conduct when he continued the examination when "consent was uncertain as a result of Patient A saying on multiple occasions that she was experiencing pain." We note that the HCCC no longer alleges that Patient A withdrew consent, just that consent was 'uncertain' in relation to the per vaginal examination.
2. Under the heading "physical examination" the Sexual Boundaries: guideline for doctors states that: When conducting a physical examination, good medical practice involves: • being aware of any verbal or non-verbal sign the patient has withdrawn consent • not continuing with an examination when consent is uncertain, has been refused or has been withdrawn
3. Dr Young's opinion was that this conduct constitutes unsatisfactory professional conduct. When giving this opinion in his report, he did not state whether it was based on an assumption that consent had been withdrawn, or merely that it was uncertain. In cross-examination Dr Young was asked to assume that Patient A did not expressly withdraw consent, but that she continued to complain of pain. If those were the circumstances, Dr Young agreed that it would temper his criticism. He added that a patient may consent to an examination, or the continuation of an examination, even if they are in mild pain.
4. Patient A agrees that she initially consented to the per vaginal examination. She then expressed pain in the way we have described above. As soon as Patient A said, "I can't do this anymore, I need to get dressed," Dr He stopped the examination. While Patient A expressed pain and winced, her consent was not, in our view, uncertain. That finding means that we do not find the subject matter of this particular proved and we do not need to go on to consider whether the conduct amounts to unsatisfactory professional conduct.

Performance of Kegel pelvic floor exercises - Complaint 1, particular 7

Allegation - particulars 7(a), (b) and (c)

1. During the consultation, Patient A experienced vaginismus - painful spasmodic contractions of the vagina. Dr He asked Patient A to perform Kegel pelvic floor exercises, first with his assistance and then by herself.
2. The HCCC alleged that there was no clinical indication for pelvic floor exercises to be performed, in circumstances where Patient A was suffering from lichen sclerosus and where she was under specialist care for that condition. The HCCC alleged that Patient A's specialist was better qualified to manage vaginismus. Dr He admitted this particular.
3. Dr He said that he had never asked a patient to do these kinds of exercises before but he had read on the United Kingdom's NHS (National Health Service) website, that pelvic floor exercises could alleviate vaginal muscle spasms. The content of that website was not in evidence. Dr He's oral evidence was that Kegel pelvic floor exercises are useful to treat vaginismus. However, Dr He said that, in hindsight, he should not have asked Patient A to do those exercises. Instead he should have referred her to a female physiotherapist.

Expert evidence

1. Dr Young expressed the view that Patient A's vaginismus was secondary to the diagnosis of lichen sclerosus. He said treating vaginismus in women with lichen sclerosus requires a multi-disciplinary approach. It was not appropriate for Dr He to ask Patient A to perform those exercises.

Consideration

1. We agree with Dr Young that Dr He should not have attempted to treat Patient A's vaginismus with pelvic floor exercises during a per vaginal examination. Patient A has a long history of lichen sclerosus. Dr He should have immediately stopped attempting any kind of internal examination as soon as Patient A expressed pain and certainly after she began experiencing vaginal spasms. His failure to do so demonstrates that he was so intent on conducting the examination that he did not appreciate Patient A's level of distress. His lack of judgment is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. It amounts to unsatisfactory professional conduct.

Duration of examinations excessive - Complaint One, particular 8

Allegation

1. The HCCC alleged that the duration of the speculum examination and the per vaginal examination, both individually and cumulatively, were excessive and not clinically warranted.
2. We have found that the speculum examination took approximately 7 minutes. Patient A's evidence was that the per vaginal examination took approximately 20 minutes. Dr He's estimate in oral evidence was that the entire physical examination took approximately 20 minutes including the time when he was asking her to squeeze his fingers to relieve the vaginal spasms. We accept Dr He's evidence on this point. He admits that the durations, both individually and cumulatively, were excessive. For the reasons we have already given, we agree.
3. Dr He does not admit that the durations of the examinations were not clinically warranted. We have found that both examinations were clinically warranted but that Dr He should not have continued with either examination after Patient A had reported pain in the way that she did. In relation to the allegation that the duration of the examinations were cumulatively excessive, we agree and find that that part of the allegation constitutes unsatisfactory professional conduct.

Breach of sexual boundaries - Complaint 1, particular 9

Allegation

1. This allegation was that, by his conduct in particulars 4 (continuing speculum examination) and 6 (continuing per vaginal examination), Dr He breached the Medical Board of Australia's 'Sexual Boundaries: guideline for doctors' (28 October 2011). Dr He did not admit this particular.
2. The HCCC did not indicate in the complaint or in written submissions, which part of that guideline had been breached, except to say that they relied on Dr Young's expert evidence. The relevant standards are in the Sexual Boundaries guideline for doctors, extracted above. Again, we note that the HCCC no longer alleges that Patient A withdrew consent, just that consent was 'uncertain' in relation to the per vaginal examination.
3. Dr Young's opinion was based on the withdrawn particular that Dr He continued the speculum examination after Patient A had specifically asked him to stop. He said that was an examination without consent and amounts to sexual assault. Dr Young did not indicate any other basis on which Dr He had breached the Sexual Boundaries guideline.
4. For the reasons we have given, consent was not uncertain, nor has Dr He breached any other aspect of the Sexual Boundaries guideline. We are not satisfied that these particulars come within s 139B(1)(l) of the National Law - "any other improper or unethical conduct ... ".

Miscellaneous allegation

1. When Dr He left the Dural Practice, he did not contact any of his patients apart from the son of an elderly patient whose phone number he had. The HCCC suggested that this was a deficiency in his communication skills. This allegation was not part of the complaint and, in any case, we do not agree with the HCCC's submission. The patients were patients of the Dural Practice, not Dr He's own patients. It would not have been appropriate for him to contact them personally.

Professional misconduct

1. Under s 139E of the National Law a practitioner is guilty of professional misconduct if the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or 2. engaged in 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 summary, we have found that Dr He is guilty of unsatisfactory professional conduct in relation to: not drawing the curtain around the examination bed when Patient A was disrobing; continuing the speculum examination for a period of time that was not clinically warranted; continuing the speculum examination and the per vaginal examination despite Patient A informing him that it was painful; repeatedly inserting the speculum when Patient A had complained of pain; performing the speculum and per vaginal examinations for a period of time that was excessive and asking Patient A to perform pelvic floor exercises.
3. The following points about the nature and scope of professional misconduct are taken from the cases of Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200; Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 at [18]-[24] and Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3: 1. the essential task in determining whether relevant conduct is professional misconduct is a characterisation of it; 2. the characterisation requires a focus on the nature of the conduct in terms of its seriousness and not its consequences; 3. the seriousness of unsatisfactory professional conduct depends on the extent to which it departs from proper standards, though additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public; 4. characterisation of conduct is not to be determined by working backwards from a view that the Tribunal does or does not ultimately wish to suspend or cancel a Respondent's registration. Rather, the characterisation of the conduct must come first; 5. to constitute professional misconduct, the relevant conduct must be found to have the capacity to justify an order for suspension or cancellation of registration though that does not necessarily mean that such an order should be made in a particular case; and 6. "misconduct in a professional respect" (although that language is no longer used under s 139E of the National Law) means conduct that incurs the strong reprobation of colleagues of good repute and competence.
4. In evaluating whether the conduct is of a sufficiently serious nature to justify suspension or cancellation, relevant circumstances include the nature and duration of the conduct, an assessment of where the conduct falls on the spectrum of unsatisfactory professional conduct and any relevant mitigating factors.
5. The nature of the conduct is firstly, that Dr He breached Patient A's privacy by not drawing the curtain when she was undressing. We have not found that Dr He breached the Sexual Boundaries: guideline for doctors' and do not consider this conduct to be unethical. It is not at the most serious end of the spectrum of unsatisfactory professional conduct. We do not consider that it is sufficiently serious to justify suspension or cancellation of Dr He's registration;
6. Secondly, Dr He continued the speculum examination and the per vaginal examination, despite Patient A telling him that it was painful. He repeatedly inserted the speculum into Patient A's vagina when she had a known painful vulva condition and had complained of pain on initial insertion. He asked Patient A to perform pelvic floor exercises as part of the per vaginal examination. The duration of the examinations was excessive. Cumulatively, this conduct is towards the more serious end of the spectrum of unsatisfactory professional conduct.
7. We agree that these particulars do not involve "moral turpitude". Our understanding of that term is that it applies to criminal conduct where there is an intention to harm a person or recklessness that leads to serious harm. Sexual misconduct is another example. Dr He did not intend to harm Patient A nor was he reckless in a way which led to serious harm. He did not engage in any sexual misconduct.
8. While professional misconduct frequently involves "moral turpitude" that is not a necessary ingredient: Qidwai v Brown (1984) 1 NSWLR 100 at 104. For example, conduct that does not amount to moral turpitude but involves indifference and an abuse of the privileges associated with the registration of a medical practitioner may constitute professional misconduct: Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200. We agree that Dr He's conduct can be characterised as being indifferent to Patient A's distress in the sense that he was insufficiently sensitive to her level of pain.
9. We note that the conduct involves a single consultation with one patient and the distress and discomfort to Patient A occurred over a period of approximately 20 minutes. However, in all the circumstances, when viewed cumulatively, Dr He's persistence in conducting a speculum examination, a per vaginal examination and asking Patient A to perform pelvic floor exercises, amounts to conduct of a sufficiently serious nature to justify the suspension or cancellation of his registration.

Orders sought

1. The HCCC is seeking cancellation of Dr He's registration and that he be prevented from re-applying for two years. Dr He submitted that he should be reprimanded and have conditions placed on his registration.
2. Dr He expressed a preference for continuing to practice and seeing female patients as long as he does not perform any gynaecological examination except in urgent circumstances. That condition was said to be practical because he has complied with a similar limitation since June 2017. His current condition also requires him to practise only in a group practice with at least two other medical practitioners and where there is always one other medical practitioner on site. At the Northmead Medical Centre where Dr He is presently practising, there are four practitioners, three male and one female. He wishes to continue to work at that practice.

Legal principles

1. The Tribunal's power to make orders is 'protective' not 'punitive': Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637. In determining the appropriate orders, the paramount consideration is the protection of the health and safety of the public: National Law, s 3A. Many of the relevant principles were summarised by the then NSW Medical Tribunal in Health Care Complaints Commission v King [2012] NSWMT 9 at [27]: The protection of the health and safety of the public encompasses a range of considerations. First, there may be a need to protect the public against further misconduct by a practitioner. Second, there is a need for general deterrence. Third, the high professional standards of the profession must be reinforced and transgressions must be denounced. Fourth, public confidence in the profession must be maintained. Fifth, it may be desirable to make available to the public any special skills possessed by the practitioner.
2. We will address each of these considerations, but not in the order listed above.

Special skills?

1. Dr He does not possess any special skills, although he is valued by his colleagues and many patients.

Attempting to contact Patient A

1. Although not part of the complaint, the HCCC suggested that by attempting to contact Patient A after the consultation, Dr He was demonstrating poor communication skills. That was said to be relevant to any protective orders we should make.
2. Patient A did not indicate, at the time of the consultation, that she was upset about what had happened. Dr He found out from Dr A on the same day. Three days later, Patient A came to the practice to see Dr A. When Dr He found out how upset she was, he attempted to contact her. He said he wanted to apologise for the pain and discomfort he had caused. Patient A's husband told Dr He that Patient A did not want to talk to him.
3. The Medical Board of Australia's Good Medical Practice: A code of conduct for Doctors in Australia (March 2014) states, at 3.10, that when an adverse event occurs: ... you have a responsibility to be open and honest in your communication with your patient, to review what has occurred and to report appropriately. When something goes wrong you should seek advice from your colleagues and from your medical indemnity insurer.
4. The Code of Conduct goes on to say that good medical practice involves "recognising what has happened"; "explaining to the patient as promptly and fully as possible what has happened and the anticipated short-term and long-term consequences"; and "acknowledging any patient distress and providing appropriate support". When his attention was drawn to this part of the Code of Conduct, Dr Young agreed that while the Code allows a practitioner to contact a patient who is upset, that is not, in his view, a wise course. Dr Young considered it completely inappropriate to have contacted Patient A. Rather, Dr He should have sought advice from his insurer and his colleagues about what to do.
5. We do not agree that Dr He's attempt to contact Patient A should count against him when it comes to the making of protective orders. Attempting to contact her was a reasonable reaction to the news that she was upset following the consultation. He did not breach the Code of Conduct in doing so.

Poor communication skills

1. Much more significant to the kind of orders we should make is the fact that patients have complained about Dr He's conduct, and particularly his poor communication skills, in the past. A recurring theme is that when physically examining female patients, Dr He does not adequately explain to them that he is going to touch them in a particular part of their body or the reason for doing so.
2. On 15 October 2009, following an interview about a complaint, the NSW Medical Board concluded that Dr He should have communicated more effectively with his patient. Dr He agreed.
3. During s 150 proceedings before the Medical Council on 24 May 2011, the panel asked Dr He "to reflect on the previous complaints ... noting that there was a common theme to all complaints of poor communication." The panel recorded Dr He's response: Dr He said he had been trying to talk to patients more but he finds it difficult to do this things [sic] and talk at the same time ... Dr He has not attended any specific communication courses, nor has he observed any consultations in the Practice.
4. The Panel recommended that Dr He consider undertaking some formal communication courses and discuss appropriate courses with his medical defence organisation, Avant. Four months later, when the Medical Council was reviewing the conditions on his registration, Dr He advised that he had not undertaken any communications courses, but was thinking about doing so. The Panel repeated their previous recommendation about undertaking formal communications courses.
5. Two years later, in October 2013, a PSC inquired into a further complaint. Dr He had still not completed any communication courses. Among other things, the PSC ordered Dr He to complete the Clinical Communication Program conducted by the Cognitive Institute. He participated in a four month course from 10 February 2014 to 25 July 2014 including a three day residential workshop in Brisbane. He told the Tribunal that he learnt ways of seeking consent to medical treatment. He was taught to say, "Is it OK if I continue?" and "Do you want a break?"
6. During proceedings before the Medical Council on 16 June 2017, in relation to the current complaint, the panel asked about his future plans. Dr He said he still liked doing internal examinations and "the geriatric part". However, he said that he knows he is not very good at the "women's health part". When asked to explain that comment, Dr He said: Men are from Mars, Women are from Venus, and lots of times, obviously the communication part - I'm not sensitive enough to get a woman's real meaning sometimes or lots of time, and I think in this case, I thought she understand, but looking back, she probably did not understand and I didn't understand her words or body language.
7. By way of further explanation to the Tribunal, Dr He said that in 2009 and 2010 he thought that he was not very good at women's health and certainly not as good as a female doctor. However, after the conditions imposed in 2009 expired, he changed his mind. One reason for the change was that his cousin had died from cervical cancer and he wanted to contribute to women's health. However, even when the restrictions on his registration were lifted, he did not see many women in his practice.
8. In 2011, Dr He told Dr A, a doctor in the Dural Practice, that he did not want to see patients with gynaecological issues. Since that time, Dr He has changed his mind about whether he wants to treat female patients with obstetric or gynaecological issues. Dr He said he gradually gained confidence and thought he should practise in women's health for the benefit of the community. The timing of these events was unclear.
9. Dr He said he did not ask Avant for an Education Plan, nor did he complete the online courses that had been recommended, until July 2019. He said that was because he had thought about withdrawing from the practice of obstetrics and gynaecology altogether.
10. More recently, Dr He has completed various online courses including "Women's Sexual and Reproductive Health" on 17 July 2019. He also completed a course entitled "Effective Communication" on 19 February 2019. Because no certificates of completion were provided in the materials, Dr He was asked whether he remembered completing this and other online courses during 2019. He said he had attended a lot of courses and could not remember.
11. Even before doing the online courses, Dr He knew that he had to ask for permission before undertaking any physical examination. He said his language and tone were not as "fine-tuned" as they could be but he has learned more from the online courses. He acknowledged that he had slipped back into his old habits of being "quick, quick, quick". He said that now he proceeds more slowly and waits for the patient to respond to his questions about consent. He acknowledged that he has to learn to be a more effective communicator with female patients.
12. Dr He provided references from one of the general practitioners who had been working with him at the Northmead Medical Centre in the last 18 months. That doctor said that Dr He has "consistently displayed excellent clinical skills and professional knowledge. He is well liked by his patients who regularly request to be seen by him." Another general practitioner, a junior doctor and a nurse at the same practice also provided positive references.
13. Dr He has a history of extremely poor communication with female patients when conducting gynaecological examinations. Despite recommendations to attend communication courses, he failed to do so until a further complaint was made. Having now completed several more communications courses, we are still not satisfied that Dr He is capable of communicating effectively with female patients when conducting gynaecological examinations.
14. We need to protect the public against what we see as a high risk that Dr He will continue to communicate poorly with female patients in those circumstances. We also consider there to be a high risk that Dr He will not communicate effectively with female patients whether he is conducting a gynaecological examination or some other kind of consultation. He should not be permitted to treat any female patient over 12 years of age, except in an emergency.

General deterrence, denunciation and confidence in the profession

1. This is not a case involving sexual misconduct or any intention on the part of Dr He to cause unnecessary pain or distress. A reprimand is sufficient to denounce such conduct and to preserve confidence in the profession. There is no need to make further orders by way of general deterrence, denunciation or to maintain confidence in the profession.

Costs

1. The HCCC seeks an order that Dr He pay its costs as agreed or assessed. The Tribunal has power to order that one party should pay another party's costs: National Law, Sch 5D, cl 13. The general rule is that the unsuccessful party should be ordered to pay the successful party's costs: Health Care Complaints Commission v Philipiah [2013] NSWCA 342 at [42]. Generally, the presumption that the successful party is entitled to their costs will only be displaced if there has been some "disentitling conduct" by the successful party: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [40]. Two relevant factors are a failure to establish all the relevant particulars of alleged misconduct and a failure by the Commission to prove professional misconduct.
2. The HCCC submitted that if the Tribunal finds Dr He guilty of professional misconduct, we should order him to pay their costs in full. If we find unsatisfactory professional conduct only, then that is a basis for discounting costs to some extent. However, the HCCC added that it was not until the last day of the hearing that Dr He finally advised which of the particulars he did not admit. Dr He accepts that these concessions were made on the last day of the hearing in light of Dr Young's evidence.
3. Dr He submitted that if the Tribunal finds professional misconduct, we should order him to pay the HCCC's costs. If we find only unsatisfactory professional conduct, we should discount those costs by 50%. If not all the particulars are proven, there should be a further discount.
4. Although we have not found all the particulars to constitute unsatisfactory professional conduct, we have found several of those particulars to constitute professional misconduct. In those circumstances, the HCCC has been largely successful in these proceedings and there was no disentitling conduct. Dr He should pay their costs.

Orders 1. Dr He is reprimanded. 2. The following conditions are imposed on Dr He's registration: 1. not to consult, examine, treat or perform any procedures on any female patient over the age of 12 years except to render urgent attention as defined in 139C(c) of the Health Practitioner Regulation National Law (NSW); 2. to obtain approval from the Medical Council of NSW before changing the nature or place of his practice; 3. to practise only in a group practice approved by the Medical Council of NSW where there are at least two other medical practitioners and where there is always one other registered medical practitioner onsite when Dr He is working; 4. to authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 1. Pursuant to section 163 of the National Law, the Medical Council of NSW is the appropriate review body for any review of these orders. 2. Dr He is to pay Health Care Complaints Commission's costs as agreed or assessed.

ATTACHMENT A THE COMPLAINT The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law") HEREBY COMPLAINS THAT Dr Wenxiong He ("the practitioner") of XXXXX being a medical practitioner registered under the National Law, COMPLAINT ONE Is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (I) of the National Law in that the practitioner has. i. engaged in conduct that demonstrates the knowledge, judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or ii. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars and each of the sub-particulars therein, of this Complaint in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified. Background for Complaint One The practitioner was first registered in Australia on 18 July 2002. He graduated with a Bachelor of Medicine from Shanhgai Medical University in 1987 and practised medicine in China until moving to Australia in or around 1999. The practitioner became a Fellow of the Australian College of General Practitioners in 2004. Relevant to the Complaints, the practitioner commenced working as an employed General Practitioner at Dural Family Medical Practice ('the Practice') in February 2009. Patient A was a 47 year old female who had been a patient of the Practice since around 2003. Her regular treating was Doctor A. Doctor A was also the treating practitioner of Patient A's husband and two children. From time to time when Doctor A was unavailable, Patient A and her family would consult with other doctors at the Practice, including the practitioner. Patient A suffered from Lichen Sclerosis against a background of ongoing gynaecological health issues. On 8 May 2017 (the "Consultation") Patient A attended the Practice and consulted with the practitioner. At the Consultation, Patient A reported symptoms to the practitioner including a three day history of discomfort and pain whilst urinating, that she was urinating more frequently and that she had recently noted blood in her urine. Particulars of Complaint One 1. During the Consultation, the practitioner engaged in inappropriate conduct when he: (a) locked the consultation room door prior to conducting an internal examination of Patient A; (b) did not draw the curtain around the examination bed when Patient A was disrobing; (c) did not draw the curtain around the examination bed during the internal examination of Patient A. 2. During the Consultation, the practitioner failed to offer Patient A any alternative(s) to an internal examination for pelvic inflammatory disease in circumstances where she suffered from Lichen Sclerosis, a known painful condition. 3. During the Consultation, the practitioner performed an inappropriate speculum examination on Patient A in circumstances where the examination was not clinically indicated given: (a) Patient A's clinical history; (b) Patient A's diagnosis of Lichen Sclerosis; (c) the symptoms reported by Patient A; (d) the availability of other non-invasive modalities to visualise Patient A's pelvis. 4. During the speculum examination of Patient A, the practitioner inappropriately: (a) continued the examination despite Patient A informing the practitioner that the examination was painful; (b) continued the examination despite Patient A asking the practitioner to stop the examination. (c) continued the examination for a period of time that was not clinical warranted; (d) sought to visualise Patient A's cervix absent any clinical indication or risk factors or swab findings to suggest cervicitis or any other urgent diagnosis which would warrant a visualising of the cervix; (e) repeatedly inserted the speculum into Patient A's vagina when she had a known painful vulva condition and had complained of pain on initial insertion. 5. During the Consultation, following the speculum examination, the practitioner performed an inappropriate per vaginal examination on Patient A in circumstances where the examination was not clinically indicated given: (a) Patient A's clinical history; (b) Patient A's diagnosis of Lichen Sclerosis; (c) the symptoms reported by Patient A; (d) the pain reported by Patient A during the speculum examination; (e) the availability of other non-invasive modalities to visualise Patient A's pelvis. 6. During the per vaginal examination the practitioner inappropriately; (a) continued the examination despite Patient A informing the practitioner that the examination was painful; (b) continued the examination when consent was uncertain as a result of Patient A's informing the practitioner on multiple occasions that she was experiencing pain; (c) failed to wear gloves. 7. During the Consultation, the practitioner inappropriately asked Patient A to perform Kegel pelvic floor exercises as part of the per vaginal examination in circumstances where: (a) there was no clinical indication for those exercises to be performed; (b) Patient A suffered from a known painful condition, namely, Lichen Sclerosis; (c) Patient A was under specialist care for Lichen Sclerosis and the specialist was better qualified to manage the Lichen Sclerosis and secondary vaginismus; (d) Patient A had withdrawn consent by stating words to the effect of "I'm done with this. I am finished. I don't want to do this anymore". 8. The duration of the speculum examination and the per vaginal examination performed by the practitioner, both individually and cumulatively, were excessive and not clinically warranted. 9. By his conduct in particulars (4), (6) and (7), the practitioner breached the Medical Board of Australia's 'Sexual Boundaries: Guidelines for doctors', October 2011. COMPLAINT TWO is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: i. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or ii. engaged in 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. BACKGROUND FOR COMPLAINT TWO Background for Complaint One is repeated and relied upon. PARTICULARS OF COMPLAINT TWO 1. Complaint One, particulars 3, 4, 5 and 6 are repeated and relied upon individually. 2. Complaint One and the particulars thereof are repeated and relied upon cumulatively.

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: 07 May 2020