Health Care Complaints Commission v He - [2020] NSWCATOD 50 - NSWCATOD 2020 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v He

[2020] NSWCATOD 50

NCAT Occupational|2020-02-26

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Source facts

Court

NCAT Occupational

Decision date

2020-02-26

Source

Original judgment source is linked above.

Judgment (68 paragraphs)

[1]

Solicitors: Health Care Complaints Commission (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 2019/00268386 Publication restriction: Pursuant to s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW) an order is made prohibiting the publication of the name of the patient set out in the schedule to the complaint and the name of Dr A and any other patient identified in the evidentiary material.

[2]

Overview

Patient A complained to the Health Care Complaints Commission (HCCC) about Dr He's conduct during a consultation on 8 May 2017. After taking a clinical history, Dr He says he suspected pelvic inflammatory disease. He attempted to take a swab of cervical tissue by performing an internal examination using a two-pronged medical tool called a speculum. After several attempts, Dr He could not insert the speculum far enough into Patient A's vagina to take a swab.
Patient A has a long-standing painful dermatological condition of her vulva - lichen sclerosus. Despite reporting pain, Dr He then conducted an examination with his fingers (per vaginal examination) hoping to be able to feel for any abnormalities of Patient A's pelvic organs. At that stage, Patient A experienced vaginal spasms (vaginismus) and Dr He asked her to tighten and release her pelvic floor muscles against his fingers to reduce the spasms (Kegel pelvic floor exercises). Finally, Patient A said, "I can't do this anymore. I need to get dressed." Dr He withdrew his fingers and terminated the physical examination.

[3]

Background

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.
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.
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.
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.
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.
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.

[5]

Summary of Complaint One

Below we briefly summarise the main elements of the particulars in Complaint One.
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).
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).
Particular three is that during the consultation, Dr He performed an inappropriate speculum examination on Patient A which was not clinically indicated (speculum examination).
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).
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).
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).
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).
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).
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).
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.

[7]

Tribunal's role

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.
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.
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."
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.
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.

[8]

Patient A

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.
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).
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.
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.

[28]

Clinical history - particular 3(a)

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.
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.
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.

[32]

Consideration

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.
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.
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.
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.
As we have not found the subject matter of this particular proven, we do not need to determine whether it constitutes unsatisfactory professional conduct.

[38]

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

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.
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.
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.
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.
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.
In retrospect, Dr He says that he should have stopped the speculum examination after Patient A reported pain.

[43]

Allegation - particulars 5(a) - (e)

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)).
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.
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.
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.

[58]

Professional misconduct

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.
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.
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.
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.
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;
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.
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.
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.
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.

[62]

Attempting to contact Patient A

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.
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.
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.
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.
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.

[63]

Poor communication skills

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.
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.
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.
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.
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?"
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.
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.
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.
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.
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.
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.
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.
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.
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.

[67]

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.

Health Care Complaints Commission v He

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