The parties to this proceeding are the Health Care Complaints Commission (the HCCC) and Dr Adam Hill (the Respondent).
On 4 May 2023, the parties jointly applied for an order pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) and s 165H of the Health Practitioner Regulation National Law (NSW) (the National Law) dispensing with the hearing of the Complaint referred to the Tribunal under the National Law. That order was made by the Tribunal on 14 June 2023 and this hearing has proceeded on the evidence contained in the documents filed by the parties in the proceeding (and identified hereafter), together with their written submissions.
The Respondent has already been the subject of two hearings in the Tribunal (on this same matter) when he firstly, in 2019, sought a stay and then appealed against the decision of the Medical Council of NSW (the Medical Council) suspending his registration. He was successful in the stay and the appeal. The decision of the Tribunal in relation to the stay sought by the Respondent is published as Hill v Medical Council of NSW [2019] NSWCATOD 52. The decision of the Tribunal, in the appeal, is published as Hill v Medical Council of New South Wales [2019] NSWCATOD 97. That decision captures (at [6]-[21]) the relevant facts surrounding the Complaint now brought before this Tribunal. We here incorporate those facts as follows:
"Facts
6. The incident which led to these proceedings occurred on 15 November 2018 at a Sydney hospital ('the hospital'). On that day, the applicant was the anaesthetist for a number of patients on the list of a colorectal surgeon ('the surgeon').
7. The patient concerned in the incident was listed to undergo a colonoscopy to investigate his rectal tumour. He was placed under general anaesthetic. He was placed in the appropriate position (lithotomy) on the operating table in the theatre and his feet were placed in stirrups.
8. Present in the theatre at the beginning of the procedure with the patient were the surgeon, the applicant, the anaesthetic nurse, the scrub nurse and the scout nurse.
9. The surgeon attempted to perform a colonoscopy. However, the colonoscope could not be passed beyond the patient's tumour on account of the size and position of the tumour. The applicant could see the progress of the colonoscope on the screen which was showing the footage being recorded by the camera on the colonoscope. The applicant and the surgeon discussed the situation. The surgeon removed the colonoscope.
10. At some point subsequently, the surgeon told the applicant that the tumour was profoundly unusual and that he, the surgeon, had never seen a tumour of that nature before. The surgeon suspected that the tumour was a Gastrointestinal Stromal Tumour. The applicant moved from his position next to the patient's head to observe the tumour over the surgeon's shoulder. The applicant returned to his position at the patient's head.
11. At some point subsequent to that, the surgeon invited the applicant to palpate the tumour, saying some words to the effect that it was a 'once in a lifetime opportunity'. In response to that invitation, the applicant put on gloves, applied KY jelly and, with one gloved finger, palpated the tumour for no more than 3 seconds.
12. As the applicant palpated the tumour, the surgeon picked up his mobile phone and either took a photograph of the applicant or pretended to take a photograph of the applicant. As he stood with his phone raised, the surgeon said something about sending the photograph to the applicant's anaesthetic colleagues. The surgeon may have said other things as well. The evidence as to precisely what the surgeon said differed between the applicant, the scrub nurse and the scout nurse in evidence before us. The witnesses before us all perceived the surgeon's demeanour to be jocular.
13. The evidence before us as to the demeanour of the applicant at the point at which he became aware that the surgeon was either taking a photograph or pretending to take a photograph was inconsistent.
14. At some point after removing the colonoscope, the surgeon put drapes on the patient and performed a biopsy of the tumour by vision. The evidence before us as to when the biopsy was performed relative to the incident with the mobile phone was inconsistent.
15. The evidence before us as to what the applicant, the scrub nurse and the scout nurse said around the time at which the surgeon either took a photograph or pretended to take a photograph is inconsistent.
16. The scout nurse left the theatre shortly after the incident, and was replaced in the theatre. The scout nurse reported the incident within the hospital hierarchy.
17. The applicant was told that there had been a report about the incident shortly after it occurred. However, the applicant did not become aware that his conduct during the incident was the subject of a complaint until 27 November 2018 when he met with a senior executive of the hospital. In that meeting, the applicant became aware for the first time that the future of his accreditation with the hospital was being considered, and he was given a 'show cause' notice in relation to that issue. The applicant's accreditation with the hospital was subsequently revoked.
18. The Council was made aware of the incident. The Council made a complaint to the Health Complaints Commission ('the HCC'). The HCC is conducting an ongoing investigation into the incident.
19. The Council convened a hearing under s 150 of the National Law on 4 March 2019. The applicant gave evidence at the hearing. The Council suspended the applicant's registration under s 150(1) of the National Law.
20. The applicant appealed from the Council's decision, and sought a stay of the suspension of his registration, pending the outcome of the appeals. A stay was granted by the Tribunal on 10 April 2019.
21. The NSW police have indicated that there is no intention to pursue any criminal proceedings."
The parties, for the purpose of this hearing on the papers, provided the Tribunal with a document titled "Statement of Agreed Facts". We here set out the content of that document. We have marked that document as Exhibit A1.
"1. Dr Hill graduated with a Bachelor of Medicine and Bachelor of Surgery from the University of Melbourne in 2004. (Statement of Dr Hill [4], Tab 12, pp 92)
2. Dr Hill obtained fellowship of the Australian and New Zealand College of Anaesthetists in 2015. (Statement of Dr Hill [5], Tab 12, pp 92)
3. On 15 November 2018 Dr Hill was the anaesthetist for the list of Dr Gary McKay, colorectal surgeon at the Mater Hospital. (Hill v Medical Council of New South Wales [2019] NSWCATOD 97; Statement of Dr Hill [9], Tab 12, p 92)
4. The first patient on the list was a male patient with a rectal mass and was booked for a colonoscopy and biopsy of posterior rectal mass. (Statement of Dr Hill [9], Tab 12, p 92)
5. Dr Hill placed the patient under general anaesthetic.
6. During the colonoscopy, Dr McKay observed an unusual and large rectal mass that was not consistent with a typical adenocarcinoma. (Statement of Dr Hill [9], Tab 12, p 92 and Affidavit of Dr Hill [9], Tab 38, p 404)
7. Due to the nature of the mass, Dr McKay was unable to pass the colonoscope past the tumour. (Affidavit of Dr Hill [7], Tab 38 p 404; NCAT Tribunal hearing: T 18.08)
8. Rectal biopsies were taken under direct vision with the anal sphincter being retracted to allow access. Dr McKay was in the sitting position with the patient's legs in the lithotomy position in stirrups. (Affidavit of Dr Hill [8]-[9], Tab 38, p 404)
9. Dr McKay invited Dr Hill to conduct a digital examination of a rectal tumour saying words to the effect: "Put on your gloves and have a feel of the tumour. It's a once in a lifetime opportunity". (Statement of Dr Hill [10] and [12], Tab 12, p 93; NCAT Tribunal hearing: T 22.25-22.43; Hill s 150 hearing: T 11.14; sec 40 submissions [1.1(f)])
10. At the point at which Dr McKay invited Dr Hill to conduct a digital examination of a rectal tumour, Dr Hill was standing at the 'anaesthetic' end of the patient (being at the head of the patient). (Dr Hill Affidavit dated 17 May 2019 at [10]; NCAT Tribunal hearing: T 22.45-23.12)
11. Dr Hill then put on gloves, applied KY jelly and positioned himself between the patient's legs (which were in stirrups). He then conducted a digital examination of a rectal tumour and felt the tumour. (Statement of Dr Hill [12], Tab 12, p 93; sec 40 submissions [4.3(p)]; NCAT Tribunal hearing: T 24.30-24.37, 25.17; 25.44; Hill s 150 hearing: T 16.35, 17.17)
12. The digital examination of a rectal tumour took approximately 3 seconds. (Affidavit of Dr Hill [20] Tab 38, p 407, Statement of Dr Hill [11], Tab 12, p 93; sec 40 submissions [1.1(f)])
13. Whilst Dr Hill was performing the digital examination of a rectal tumour and with his back to Dr McKay, Dr McKay took out his mobile phone and said, in a joking manner, something about sending or showing the photograph to Dr Hill's anaesthetic colleagues. (Statement of Dr Hill [15], Tab 12, p 93; NCAT Tribunal hearing: T 27.39; 28.24, 29.16, 30.33, 31.32, 32.02, 35.25; Hill s 150 hearing: T 30.20-30.35, 31.16; sec 40 submissions [1.1(g)])
14. Dr Hill was not forewarned about the conduct of Dr McKay referred to in [13]. (Affidavit of Dr Hill [16]. Tab 38, p 406)
15. Dr Hill has not seen or been in possession of any such photograph. (Statement of Dr Hill [17], Tab 12 p 93)
16. The scout nurse left the theatre shortly after the incident and was replaced in the theatre. The scout nurse reported the incident within the hospital hierarchy. (sec 40 submissions [1.1(k)]; Hill s 150 hearing: T 13.13)
17. The patient, who was under anaesthesia, had not consented to Dr Hill performing a digital examination of a rectal tumour . (Hill s 150 hearing: T 23.27; Hill Statement (CB (Ct App), Tab 13(u)) at [26]; sec 40 submissions [4.4(a)], [4.6(b)], [4.7(a)], [6.5])
18. There was no valid clinical reason for Dr Hill to conduct the digital examination of a rectal tumour …. (NCAT Tribunal hearing: T 24.07; Hill Statement (CB (Ct App), Tab 13(u)) at [26])
19. Conducting a digital examination of a rectal tumour … was outside Dr Hill's scope of practice as an anaesthetist. (Hill s 150 hearing: T 18.23; Letter from Dr Hill to Mater CEO [Tab 19 dated 14 December 2017)"
The parties jointly rely on a bundle of documents filed in the proceeding on 23 May 2023 and titled amended joint tender bundle. The bundle consists of 47 entries comprising 729 pages. We have marked that bundle as Exhibit A2.
The Respondent filed a Reply document on 12 April 2023 and written submission on 2 June 2023.
The HCCC filed written submissions on 19 May 2023 and 7 June 2023. The Respondent provided a further submission dated 19 June 2023.
Both parties sought leave to file further submission when the Tribunal made the order jointly sought, to dispense with the hearing. That leave was granted and the parties provided further submissions as above set out.
On 6 April 2023, the HCCC filed an Amended Application for Disciplinary Findings and Orders (the Amended Application). That document amended the earlier version which had been filed by removing the request for an order under s 149C of the National Law suspending or cancelling the Respondent's registration, and thereby restricting the orders sought to those permitted by s 149A or s 149B of the National Law. We have marked that document as Exhibit A3.
The Amended Application also deleted Complaint Two.
When the parties made their joint application to the Tribunal to dispense with the hearing in this matter, they set out that the parties were jointly seeking the same protective orders, which were submitted to be appropriate in the circumstances of this case. In the submission which each filed, they have set out the specifics of the orders they are asking the Tribunal to make. Those orders are:
1. Pursuant to s 149(1)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), Dr Adam Hill is reprimanded.
2. Pursuant to cl 13 of Schedule 5D of the National Law, Dr Hill pay the costs of the proceedings in the Tribunal of the HCCC, as agreed or assessed.
3. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), prohibit the disclosure of the name of Patient A.
Each party in their submissions provided extensive information relating to the applicable law and referred us to decisions of the Tribunal and the NSW Court of Appeal, to assist us in this determination.
The determination in this matter now rests upon the Tribunal exercising its' discretion to make the protective orders which each of the parties have agreed to. That discretion is acknowledged by each of the parties.
The decisions which the parties have referred us to set out the matters the Tribunal should consider in determining the appropriate protective order to impose where there has been a finding of unsatisfactory professional conduct and/or professional misconduct. In this matter, the Respondent has agreed he is guilty of the conduct set out in Complaint One of the Amended Application moved upon by the HCCC before us. That is unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law. The wording of that provision is: "[engaged in] improper or unethical conduct relating to the practice or purported practice of medicine."
In the determination of this proceeding, the "protection of the health and safety of the public must be the paramount consideration": National Law, s 3A. Section 4 of the National Law requires the Tribunal to "exercise its functions having regard to the objectives and guiding principles" articulated in sections 3 and 3A of the National Law.
The purpose of the protective orders is not to punish the health professional, rather to protect the public: Lee v Health Care Complaints Commission [2012] NSWCA 80. In Director-General, Dept of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 ("Lambert") at [83], Basten JA recorded that, although the specific purpose for which orders are made in disciplinary proceedings is to protect the public interest, "such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order".
The authorities reveal a number of matters of general relevance: Health Care Complaints Commission v Chahoud [2022] NSWCATOD 36; Health Care Complaints Commission v Do [2014] NSWCA 307; Health Care Complaints Commission v Duggan [2015] NSWCATOD 142. Those matters are:
1. the need to protect the public in the general, and present or future patients of the practitioner in particular, against the risk of further misconduct by the practitioner (the unacceptable risk);
2. deterring the offending practitioner from reoffending (specific deterrence);
3. the need to protect the public through general deterrence of other practitioners from engaging in conduct of the kind of which the practitioner has been found guilty;
4. the need to protect the public by reinforcing high professional standards and denouncing transgressions;
5. the maintenance of public confidence in the profession, by signalling to practitioners and the public that misconduct by medical practitioners is viewed seriously, and has serious consequences for offenders;
6. the desirability of making available to the public any special skills possessed by the practitioner.
In Health Care Complaints Commission v Do at [35], Meagher JA, with whom Basten and Emmett JJA agreed, stated:
"The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
In Health Care Complaints Commission v Jouda [2023] NSWCATOD 83 at [67], the Tribunal stated:
"Any protective orders made by the Tribunal should not result in 'more serious consequences for the practitioner that is reasonably necessary in execution of the protective purpose of the legislation': Health Care Complaints Commission v Schmaman [2019] NSWCATOD 82. In determining appropriate protective orders, the Tribunal was required to consider the whole of the Practitioner's conduct: Gad v Health Care Complaints Commission [2002] NSWCA 111. Whether the degree of seriousness of offending conduct is such that there is no appropriate alternative to cancellation of registration is a matter of degree, involving an evaluative judgement: Sabag v Health Care Complaints Commission [2001] NSWCA 411; Health Care Complaints Commission v Jangodaz [2016] NSWCATOD 71."
In order to apply the considerations set out above, we need to consider the following:
1. The seriousness of the conduct conceded to be unsatisfactory professional conduct.
2. The actions of the Respondent following the making of the Complaint, including his acknowledging his unsatisfactory professional conduct, exhibiting remorse, undertaking activity to support his assertion that there will be no further such conduct by him.
3. Whether the protective order proposed by the parties will serve as an appropriate deterrent to other medical practitioners: Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91].
4. Whether the proposed protective order will ensure the safety of the public so far as the Respondent is concerned.
5. Whether the proposed protective order is sufficient to uphold the public's confidence in the medical profession and the institutions and bodies which oversee the practice of those practitioners.
6. Will the protective order support the maintenance of standards of the medical profession: see Gayed v Walton [1997] NSWCA 121; Health Care Complaints Commission v Gott [2023] NSWCATOD 54.
Before moving to consider the evidence further in this matter, we note the Respondent was referred to in the decision of the Tribunal in Health Care Complaints Commission v McKay [2022] NSWCATOD 95 (26 August 2022). That decision addressed the complaint made by the HCCC against Dr McKay who had been the colorectal surgeon in the procedure which led to the Respondent having his registration suspended by the Medical Council. The decision on 26 August 2022 (above referred to) saw Dr McKay having his registration suspended for three months. That was the outcome sought by the HCCC in that proceeding, however, the HCCC had also sought that conditions be attached to Dr McKay's registration and that request was refused by the Tribunal.
In the determination of this matter, we have read the evidence provided by the parties and have taken particular note of the following documents.
[2]
The Affidavit of the Respondent dated 17 May 2019 (Exhibit A1, p 536)
The affidavit commenced by addressing an affidavit sworn by Ms Kim Louise Peak on 7 May 2019. That affidavit is not included in Exhibit A2. The affidavit then addresses, from par 9, the Respondent's account of the procedure which gave rise to the complaint. It addresses facts which are now superseded by the Statement of Agreed Facts (Exhibit A1).
At par 26 and following, the Respondent spoke of his work following the stay order made by the Tribunal on 10 April 2019. The Respondent states that he has returned to work and has been engaged in anaesthetic procedures at 9 named hospitals and medical facilities. He confirmed that all the hospitals and medical facilities in which he has worked since 10 April 2019 are aware of the incident which took place on 15 November 2018 and gave rise to the suspension order made by the Medical Council of NSW.
Since the swearing of his earlier affidavit on 25 March 2019, the Respondent had attended a course titled "Intimate Examinations: Respect and Responsibility" provided by MDA National on 8 May 2019.
[3]
Respondent's Affidavit sworn 25 March 2019
The affidavit of the Respondent dated 25 March 2019 is set out at Exhibit A2, p 181. That affidavit set out his medical educational history and qualifications. He had obtained Fellowship with the Australian and New Zealand College of Anaesthetists in 2015. In order to obtain that Fellowship, the Respondent had worked as an Anaesthetics Registrar in a public hospital and had been an Anaesthetics Training Scheme member from 2011 to 2015 at a Sydney metropolitan public hospital. Prior to his suspension, the Respondent had been working with 12 surgeons.
The Respondent was about 38 years of age at the time of the incident on 15 November 2018.
The Respondent annexed to the affidavit a bundle of documents which were tendered at the s 150 hearing before the Medical Council which made an order for the suspension of his registration.
Prior to the suspension order, the Respondent had been working in 12 hospitals in which he held clinical appointment as a Visiting Medical Officer (VMO). The subject complaint is the first complaint which the Respondent has received arising from his work as an anaesthetist.
In December 2018, the Respondent received correspondence from the CEO of the Mater Hospital advising that his accreditation to that hospital had been terminated. In that correspondence it was stated: "Your manner during the procedure was to treat this as a joke." The Respondent strenuously denied that assertion. He also rejected the assertion that "one or more members of nursing staff present in the procedure room had requested, more than once, that he stop, however he had ignored that request or did not respond to same." He had not heard any such request and the staff making the allegation were not identified.
As a result of the suspension order, all his clinical privileges at the hospitals in which he held VMO appointments were suspended.
The Respondent set out detail of his reputational loss arising from the suspension order. Further, he stated, that the circumstances of the conduct giving rise to the Medical Council action was "fuelling innuendo" (false gossip) about the procedure which gave rise to the complaint.
At par 24 of the affidavit, the Respondent said:
"Given I am primarily a private practitioner, I have had to explain this suspension and the circumstances surrounding it to all the surgeons I routinely work with. Private anaesthesia has a distinct power imbalance whereby as anaesthetists, we are totally reliant on the surgeons to provide us with work."
It is the mention of the "power imbalance" which we will refer to later in these reasons.
The Respondent went further in par 24 to explain how a suspension would give rise to surgeons having to obtain the services of another anaesthetist, in his absence, thereby giving rise to the possibility he would not be able to recover that work and thereby suffer financially.
The Respondent set out that he was not working in any capacity following his suspension. He stated that the suspension carried with it the "very real possibility of causing financial ruin." He was facing the prospect of having to sell his residence and motor vehicle. There are other significant financial consequences for members of his family if the Respondent is unable to work.
The Respondent is married and his wife is on no-payment maternity leave.
The suspension has had a significant emotional impact upon the Respondent and his wife. He was suspended two days after the birth of their first child. The Respondent is experiencing anxiety and had been unable to sleep effectively. The prospect of having to move to Melbourne, where he could live with his parents, was causing very significant emotional strain on his relationship with his wife who is recovering from a difficult birth and the special needs of their baby.
The Respondent had sought a non-publication order so that his name would not be published with the report of the Tribunal decision in relation to the stay order he sought against the Medical Council suspension order. He set out the impact upon him of reputational damage which would follow any reporting of the conduct the subject of the complaint in the press. The Respondent was also concerned for the well-being of the patient who was the subject of the procedure which gave rise to the complaint. He was concerned any public media coverage of the complaint would necessarily identify the patient to a cohort of the public. The request that he be given a pseudonym for the purpose of publishing the Tribunal decision was not granted.
Annexed to the Affidavit were documents which included a copy of the letter which initiated the complaint process in the HCCC. That letter is dated 7 December 2018, and addressed to the colorectal surgeon who had conducted the procedure at which the Respondent was the anaesthetist. It was a letter advising that his accreditation at the Mater Hospital had been terminated. The letter set out the findings which had been made about the procedure which gave rise to the complaint.
[4]
Expert Report by Dr Jennifer Prowse
This report is set out at Exhibit A2, p 32. We note the following.
Dr Prowse set out all of the documents which she was provided with for the purpose of preparing her report.
The documents in the brief provided to Dr Prowse, included a copy letter the Respondent had written to the CEO of the Mater Hospital, Crows Nest, on 14 December 2018 (see Exhibit A1, p 155). That letter apologised for the Respondent's conduct in the procedure which gave rise to the complaint, now being prosecuted against him, 15 November 2018. The letter appears to us to offer sincere apologies for the Respondent's conduct. We note the following appeared in that letter:
"I would like to sincerely and deeply apologise for my involvement in this regrettable incident:
1. I offer my deepest apology to the patient for my involvement in this matter;
2. I apologise to the nursing staff for placing them in a situation where they had to witness such an unprofessional incident.
3. I apologise to the Mater Hospital for any embarrassment caused and the lack of professionalism demonstrated on my part;
4. I apologise to St Vincent's Health Australia for any reputation risk and potential damage to the organisation created by this incident."
Also included in the brief to Dr Prowse were copies of references tendered by the Respondent in support of his character and professionalism. We particularly noted the following:
1. A reference from Dr David Elliott, Head of Department (Anaesthesia) Bowral and District Hospital. Having been advised of the circumstances giving rise to the complaint made against the Respondent, Dr Elliott nonetheless advised that: "during the many years of close contact outlined above I have always found Dr Hill to be a dedicated, competent and above all a highly professional practitioner."
2. A reference from Dr Anil Nair, Spine Surgeon is also included in the brief to Dr Prowse. Dr Nair operates at the Mater Hospital. He has worked with Dr Hill for three years. He had received detail of the incident of 15 November 2018. He expressed the opinion, based upon his knowledge of Dr Hill, that Dr Hill's conduct in that procedure was "completely out of character and something that Dr Hill will never repeat."
3. The Respondent had also provided a written reference from Rev. John Hannon, St Therese's Parish Essendon, Victoria.
A letter dated 21 January 2019 from Dr Maree Bellamy, Director of Medical Services, Mater Hospital, was also part of the material provided by the Respondent. That letter spoke of a meeting with the Respondent and which referred to meetings which Dr Bellamy had conducted with the Respondent following 15 November 2018. It included the following:
"I have found his demeanour to be appropriately humble and apologetic and he has requested the opportunity to apologise to other members of staff. He has exhibited a willingness to be accountable for his actions. There have been no other complaints or concerns about this clinician during the time he has worked at this hospital. … I [am] supportive of Dr Hill's position and recommend reinstatement as a visiting medical officer, with appropriate monitoring and review."
Included in Exhibit A1 at p 174 is a statement signed by the Respondent on 1 March 2019. That statement set out the circumstances of the procedure on 15 November 2018 and the role played by the Respondent as anaesthetist for that procedure. It also addressed the conduct the subject of the complaint. On p 176 of Exhibit A1, being part of the Statement, the Respondent set out a heading "Reflections". What is set out under that heading clearly demonstrates remorse for his conduct.
Part of Exhibit A1 and the material provided to Dr Prowse, is a statement signed in May 2019 by Patient A, who was undergoing a procedure at the time the Respondent conducted himself as alleged by the HCCC in its' complaint. Relevantly, in that statement we note the following:
1. Patient A had been contacted by Dr McKay on 1 February 2019 and informed of the examination by the Respondent. Patient A said that when he heard that, "I thought that it was pretty bad and I felt violated."
2. At a later time in February, Patient A met with hospital staff who informed him that photographs had been taken of the Respondent digitally examining him and gestures had been made. Since that time, Patient A had started to see a psychologist who had diagnosed him with PTSD.
3. Patient A had only consented to Dr McKay undertaking a procedure with him.
In her report, Dr Prowse opined as follows:
1. Dr Prowse set out the various versions of fact given by those in the operating theatre at the time of the procedure on 15 November 2018. She identified there was Dr McKay, the Respondent, the instrument nurse, and the circulating nurse.
2. Dr Prowse could find no evidence of the Respondent having obtained either written or verbal consent from the patient to physically examine the patient. Dr Prowse said, however, that when she was a student it was accepted practice to examine patients while they were under anaesthetic. She said: "Given the clinical interest in this tumour I feel that my colleagues would also believe that this behaviour did not fall significantly below the standard of obtaining consent prior to an examination."
3. Dr Prowse was asked to provide her opinion in relation to "the appropriateness or otherwise of Dr Hill acquiescing in Dr McKay's request to perform a digital per rectal exam during the procedure". Dr Prowse stated that: "Consent is required to undertake an examination of a patient as documented by the Medical Board of Australia (2014). 'It is necessary to gain informed consent before any examination is undertaken except in an emergency. Failure to gain consent for physical examination can be considered a form of sexual assault.'" Dr Prowse then said: "The comment by Dr Klineberg in the Section 150 review: 'as students we would often perform a PR while a patient was anaesthetised without first obtaining consent' (p-25 lines 8-11) rings true with me. It is possible that when asked to perform the Per Rectal examination Dr Hill did so out of professional curiosity, very much like we would have performed the examination while the patient was anaesthetised when in medical school before it was considered ethically inappropriate in more recent years."
4. In a document published after the event of 15 November 2018, Dr Prowse noted the wording "'[u]nwarranted physical examinations or inappropriate touching during a consultation and examination may constitute sexual assault' (Medical Board of Australia, 2018), 'including when under anaesthesia' (Poliniak, webinar, 2019)."
5. Dr Prowse opined that it was not necessary for the Respondent to have undertaken the PR exam of the patient. She said that it was unnecessary for Dr McKay to ask for any confirmation about the unusual nature of the tumour. A biopsy would provide conclusive evidence of the nature of the tumour. There was no "emergency" which required the Respondent to undertake an examination of the patient, as requested by Dr McKay.
6. Dr Prowse opined that the conduct of the PR examination by the Respondent was below the standard expected of the Respondent given the extent of his experience and training, but was not significantly below the standard given the circumstances of consent given to Dr McKay and professional education opportunity.
7. Dr Prowse opined that there was no clinical reason for the Respondent to conduct a PR examination of the patient. She opined further that: "Dr Hill's behaviour here falls below the standard expected of an anaesthetist, but given his previous experience in performing multiple PR examinations I feel that this departure is not significant."
8. The report by one of the nursing staff that the Respondent was giggling during the time he was performing the PR examination of the patient (a fact disputed by the Respondent) was the subject of further opinion by Dr Prowse in response to a question from the HCCC. Dr Prowse stated that if the Respondent giggled, then his behaviour falls significantly below that which is expected of an anaesthetist. She referred to the Good Medical Practice Code of Conduct which prescribed conduct should always be courteous and respectful of patients.
9. Dr Prowse opined that the Respondent's conduct fell significantly below the standard expected if he had said during the PR examination of Patient A the words reported by nursing staff, namely: "You know I chose anaesthetics so that I would not have to do this."
10. If the Respondent had ignored the request of nursing staff present at the time of the PR examination that he cease the conduct, Dr Prowse opined that would be conduct which fell significantly below the standard expected. Again, we note this request to cease is either denied by the Respondent or stated as having not been heard by him.
11. Dr Prowse concluded her report with the following: "I am not critical of Dr Hill for his performance of the per rectal examination, but of his demeanour in performing the examination, if it was not done with due respect to [Patient A]. All other components of the anaesthetic appear to have been performed with due deference to [Patient A's] dignity."
We note the reference in [48(6)] above to "consent given to Dr McKay". We have not been provided with a copy of that consent (understandably), however, it has not been asserted by either party to this proceeding, that the Respondent was acting pursuant to the consent which Patient A had provided to Dr McKay, when he conducted the rectal examination of Patient A on 15 November 2018.
The statement of Dr Prowse outlined in [48(11)] above is of concern to us, when viewed in the circumstances that Patient A had provided no consent for such an examination to be conducted.
On p 64 of Exhibit A1, there is a copy of the statement made by Patient A on 15 November 2018. The following is set out at par 31:
"When I first received a phone call from Dr McKay on 1st of February and he told me what happened about Dr Hill conducting the examination I thought that it was pretty bad and I felt violated. But what was worse was after I had the meeting with the hospital staff on 15 February where they told me everything that had happened with the photos and the gestures and things I felt disgusted. … Since that time I have started seeing a psychologist who diagnosed me with PTSD. I am still affected by what had happened."
The portion of the statement which appears in the preceding paragraph, reminds us that what is at the heart of this complaint is a disregard for the dignity and rights of the patient. A misstep by both a surgeon and an anaesthetist, which overlooked the setting and circumstances of their now acknowledged misconduct, occurred. A failure to have at the forefront of their minds the requirement for patient consent and knowledge of what will occur to that patient whilst in a vulnerable unconscious state. A failure to recognise that the patient had engaged the services of both the surgeon and the anaesthetist to conduct a procedure trusting in their skill and care to be exercised in a professional and respectful manner.
The description of the procedure, which provoked complaint from the nursing staff present at that time, suggests an element of "sport" had been engaged in, at least on the part of the surgeon, and not protested by the Respondent. Most of that behaviour appears the subject of denial, although it is conceded by Dr McKay that he did take a photograph, or photographs, during the time the Respondent was conducting the PR examination of Patient A. If any such "sport" did take place, then it needs to be condemned in the strongest of terms. The published decision of the Tribunal in relation to Dr McKay reveals that he was suspended for a period of 5 months following the s 150 hearing before the Medical Council and then suspended for a further period of three months following the determination of the Tribunal.
At p 72 of Exhibit A1 is a copy of a statement made by the Respondent on 1 March 2019. That statement contains a heading "Reflections" in which the Respondent accepts responsibility for his conduct. He recognised that Patient A was likely to consider the PR examination he conducted as a breach of clinical trust. He acknowledged his actions in the procedure amounted to a gross error of judgment. He undertook that no similar conduct by him will ever be repeated.
Under the heading of "Conclusion", the Respondent said (at par 34): "I do not believe I should have been asked to perform the examination, however, when asked, I should have had the judgment and insight to decline." The Respondent also set out that since 15 November 2018 he had experienced a similar circumstance where a surgeon had asked him to examine a breast lump on an anaesthetised patient. The Respondent declined and spoke to the surgeon about "patient consent". He also discussed with the surgeon the new guidelines published in December 2018.
At p 83 of Exhibit A1 is another reference for the Respondent provided by Mr Adrian Sage, Profusion/Anaesthetic Technical Officer at Sydney Adventist Hospital. The reference is dated 26 February 2019. The reference is provided without knowledge of the nature of the Complaint. The reference is very supportive of the Respondent's character and skill as a medical practitioner.
We have had the benefit of reading the decision of the Tribunal published 26 June 2019. That decision allowed an appeal against the suspension order made by the Medical Council on 4 March 2019. The Respondent experienced a month of suspension between those two decisions.
[5]
Determination
The first matter to be determined is whether we are satisfied the Respondent is guilty of unsatisfactory professional conduct as alleged in Complaint One. The fact that both parties seek such a finding does not bind the Tribunal, although in practical terms, it would be unusual for the Tribunal not to accept such a circumstance.
In this case, we are satisfied the HCCC has established Complaint One and we find the Respondent guilty of unsatisfactory professional conduct as defined in s 139B(1)(l) of the National Law.
We now turn to consider the matters referred to earlier in these reasons at [20]. We consider those matters in the light of the protective orders which each of the parties seek. Those orders are a reprimand of the Respondent and an order that he pay the costs of the HCCC.
[6]
The seriousness of the conduct conceded to be unsatisfactory professional conduct
We conclude the conduct of the Respondent was serious in the scale of conduct which is seen by this Tribunal. The seriousness is determined by the fact that the Respondent conducted an invasive procedure, upon an unconscious patient, without consent. The conduct was dismissive of the apparent need for the patient to give any consent. The surgeon initially sought to justify the conduct, on his part, of asking the Respondent to carry out the examination, on the basis of seeking a second opinion. That does not appear to have been accepted by those in charge of the hospital. There was evidence provided by the nursing staff in attendance at the time, suggesting some joviality attended the examination by the Respondent. The examination by the Respondent was photographed by the surgeon, not for medical record reasons, rather as an apparent threat to embarrass the Respondent.
The impact upon Patient A of the Respondent's and the surgeon's actions in the procedure is not to be overlooked. He was clearly significantly emotionally impacted when appraised of what had happened when he was anaesthetised and totally trusting his body to the skill and care of those involved in the procedure.
[7]
The actions of the Respondent following the making of the Complaint, including his acknowledging his unsatisfactory professional conduct, exhibiting remorse, undertaking activity to support his assertion that there will be no further such conduct by him
We accept the making of a complaint by the nursing staff present at the procedure has had a profound and far-reaching impact upon the Respondent. He had his accreditation as a VMO to the Mater Hospital revoked. He was the subject of an order suspending his registration. That suspension lasted for a little over one month, before being overturned by the Tribunal. He was required to advise all of the surgeons who had been referring work to him to be the anaesthetist on their operations/procedures, that he was not available to be further engaged by them due to his suspension. All of the hospitals and medical facilities in which the Respondent is now working have been informed of this proceeding. He had his name published by the Tribunal in its' decision which overturned the suspension order of the Medical Council. He was without an income for the time he was unable to work. He had a wife and young family to support. He believes he suffered reputational damage, a belief we consider is justified. He was the subject of broad media reporting, including detail of the complaint. He needed to inform those from whom he sought testimonials for his Tribunal proceeding, of detail of the complaint he faced and possible outcomes.
If the Tribunal makes the protective order which the parties have agreed is appropriate, then that will be noted on the records of the Australian Health Practitioner Regulation Agency (AHPRA) relating to the registration of the Respondent. It will also be available through the publication of this judgment.
It seems likely the Respondent suffered public ridicule and professional gossip due to the nature of the complaint made against him.
The Respondent is, we are satisfied, very remorseful for his conduct. He has promised there will be no repeat of the conduct. He has spent time since November 2018 undertaking further study to entrench in him the ethical conduct the public and the profession expect of him. He has had the occasion in December 2018 to test his resolve and pass on his knowledge to another surgeon who had also asked him to undertake an examination of a patient who was under anaesthetic. He clearly behaved appropriately and had the opportunity to educate the surgeon who had made the request of him.
We are satisfied that it is most unlikely that the Respondent will again come to the notice of the HCCC or any other authority arising from his work as an anaesthetist.
[8]
Whether the protective order proposed by the parties will serve as an appropriate deterrent to other medical practitioners
In this case, the deterrent to the medical profession is apparent from the order proposed by the parties and the history of the consequences which have befallen the Respondent since 15 November 2018.
This decision, and the impact upon the Respondent, should speak significantly to anaesthetists who rely upon referrals from surgeons to obtain employment. Because of that reliance, in private practice, upon referrals to obtain engagement and thereby income, there must be seen a vulnerability to compliance with the inappropriate or unethical requests of a surgeon. In so stating, we are very conscious of the high reputation of surgeons and the respect with which they are held by the public. Our concern would only apply to, we accept, a rare occurrence of inappropriate conduct.
Having read the expert evidence of Dr Prowse in this matter, we are concerned that the conduct of surgeons seeking anaesthetists to undertake examinations of patients during an operation or procedure is more prevalent than the public may know and/or expect. Whilst this type of conduct may be sanctioned and supported in a teaching hospital, where students and inexperienced practitioners are observing and participating in operations and procedures for the purpose of developing skills and qualifications (with patient consent), that must be seen to remain in such institutions and in circumstances where patients are informed of, and consent to, such examinations. In the subject case, both the surgeon and the Respondent were well credentialled and experienced practitioners in private practice.
We accept the orders proposed will serve as a deterrent to other medical practitioners.
[9]
Whether the proposed protective order will ensure the safety of the public so far as the Respondent is concerned
In this case, the evidence does not suggest there was any danger to Patient A by the Respondent conducting the examination as requested by the surgeon.
We are satisfied the Respondent will not repeat any of the conduct which has brought him before the Tribunal.
[10]
Whether the proposed protective order is sufficient to uphold the public's confidence in the medical profession and the institutions and bodies which oversee the practice of those practitioners
We are confident the proposed protective order is sufficient to uphold the public's confidence in the medical profession and the institutions and bodies which oversee the practice of medicine in NSW and Australia.
The public will see, through the publication of the Tribunal's decisions in relation to the Respondent, the actions taken by the hospital authorities in cancelling the Respondent's right to practise medicine in that hospital; the Medical Council suspending the registration of the Respondent arising from his conduct; a period of a month before the Tribunal stayed the suspension order; and, the making of the protective orders as we propose. Those actions, we are satisfied, will support the public's confidence in the medical profession and relevant controlling authorities.
[11]
Will the protective order support the maintenance of standards of the medical profession
As can be seen from our reasons set out above, we are of the view that the protective order proposed by the parties will support the maintenance of standards of the medical profession.
[12]
Conclusion
We are satisfied that the proposed protective orders are appropriate to make in this matter and we propose to exercise our discretion and make those orders.
We are satisfied the orders we will make will signal to practitioners and the public that misconduct by medical practitioners is viewed seriously and has serious consequences for offenders. It will ensure that the skills and experience of the Respondent will continue to be available to the public. It will support the maintenance of standards of the medical profession: see Gayed v Walton [1997] NSWCA 121; Health Care Complaints Commission v Gott [2023] NSWCATOD 54.
Before making the orders we propose to make, we wish to comment on matters which flow from the additional submissions of the parties filed in June this year.
Firstly, we consider some of the submissions miss the basic and important aspect of the conduct of the Respondent, namely, that he conducted an examination of an unconscious patient, without the informed consent of the patient, and where such an examination was not warranted by exceptional circumstances which would have justified the examination on medical grounds. The prior experience of the Respondent in conducting PR examinations was completely irrelevant to the circumstance in which the Respondent found himself on 15 November 2018. This was not a case of the surgeon requiring a second opinion.
We have noted the final paragraph of the HCCC's submission of 7 June 2023. There, the HCCC submitted:
"Finally, with respect to the aspects of the Expert Report set out at DS [29]-[30], as set out at CS [27], the public should be in no doubt that an invasive and intimate examination of a patient while they are under anaesthetic, without their consent, without a valid clinical reason and outside of the practitioner's scope of clinical practice, is fundamentally inconsistent with the proper and ethical practice of medicine. This Tribunal is responsible for 'maintaining standards of the health care system within the State' (Hastwell v Health Care Complaints Commission [2021] NSWCA 22 at [14]) and the Tribunal, a body subject to special constitution requirements under s 165B of the National Law, is entitled to take into account the professional expertise and experience of the medical professionals sitting on the Tribunal (Chatoor v Health Care Complaints Commission [2020] NSWCA 111, [51] and [55])."
(emphasis omitted)
We agree with the HCCC's summary of the nature of the conduct of the Respondent in this matter and would urge those who consider there may be some special license in an anaesthetist or other medical practitioner who might have been permitted to observe an operation or procedure, to participate in such operation or procedure beyond the remit of a specific patient consent, and in the absence of an extraordinary occurrence during the operation or procedure, is not an available view on the current state of the law.
[13]
Orders
The order of the Tribunal will be:
1. Pursuant to s 149(1)(a) of the Health Practitioner Regulation National Law (NSW) (the National Law), Dr Adam Hill is reprimanded.
2. Pursuant to cl 13 of Schedule 5D of the National Law, Dr Hill pay the costs of the proceedings in the Tribunal of the HCCC, as agreed or assessed.
3. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of Patient A listed in the Schedule to the Complaint is prohibited.
[14]
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: 13 July 2023