Health Care Complaints Commission v McNab - [2023] NSWCATOD 41 - NSWCATOD 2022 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v McNab

[2023] NSWCATOD 41

NCAT Occupational|2022-06-29|Before: The Hon J

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Source facts

Court

NCAT Occupational

Decision date

2022-06-29

Before

The Hon J

Source

Original judgment source is linked above.

Judgment (17 paragraphs)

[1]

REASONS FOR DECISION

By an Application dated 2 February 2022 the Applicant, the Health Care Complaints Commission ("the Applicant" or "the HCCC") sought findings in respect of Dr Andrew Graham McNab ("the Respondent" or "the Practitioner") as follows: 1. the Respondent has committed a criminal offence in New South Wales; for the purposes of section 144(a) of the Health Practitioner Regulation National Law (NSW) ("the National Law"). 2. the Respondent is guilty of unsatisfactory professional conduct within the meaning of section 139B(1)(a) of the National Law in that he engaged in conduct which demonstrates that his knowledge, skill or judgment in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. 3. The Respondent is guilty of professional misconduct within the meaning of section 139E of the National Law. The Complaints and Particulars thereof are set out or summarised below in these reasons.
By a Reply dated 20 May 2022, the Practitioner admitted that he has been convicted of a criminal offence in New South Wales. He "[did] not admit" that he is guilty of unsatisfactory professional conduct and/or professional misconduct.
The Complaints of unsatisfactory professional conduct and professional misconduct arise from behaviour allegedly directed by the Practitioner toward Person A during a consultation on 5 December 2019. Person A was employed as a surgical assistant to the Practitioner and also consulted him as a patient on 5 December 2019 in relation to a lesion on her left foot and for back pain. Person A generally consulted the owner of the practice, but she had seen the Practitioner in relation to the lesion and for relief of back pain on prior occasions.
The Particulars of the Complaint of unsatisfactory professional conduct relied upon by the Applicant may be summarised as follows: 1. The Practitioner excised the lesion from the foot of Person A inappropriately, in circumstances where: 1. he failed to document the background and purpose of the biopsy/excision; 2. the lesion was benign; 3. he failed to send the lesion for pathology analysis; and 4. he failed to advise Person A that the lesion was benign and, accordingly, he did not obtain informed consent for the excision. 1. The Practitioner performed a detailed examination of the back of Person A as a result of forming the view that she might be suffering from metastatic osteosarcoma, without any reasonable basis for suspecting that she suffered from that condition. 2. The Practitioner removed the underwear of Person A without clinical justification. 3. The Practitioner removed the underwear of Person A without informed consent, and in so doing, breached clause 4.3.3 of the Good Medical Practice: A Code of Conduct for Doctors in Australia, and clause 7 of the Guidelines: Sexual Boundaries in the Doctor/Patient Relationship. 4. The Practitioner inappropriately and without informed consent exposed the buttocks of Person A by removing both her underwear and a modesty sheet. 5. The Practitioner breached proper professional boundaries by making statements of a personal and sexual nature to Person A during the consultation. 6. The Practitioner failed to make an accurate and contemporaneous clinical record of the consultation of 5 December 2019.

[2]

Background

The Practitioner was born in 1953 and is currently aged 70 years. In 1980, he graduated as a Bachelor of Medicine/Bachelor of Surgery in New Zealand. On 20 December 2014 the Practitioner completed a Masters of Medicine at the University of Queensland. He has worked as a general practitioner with a specialisation in skin cancer since June 2009. The Practitioner worked in this capacity at a hospital in New Zealand between 2009 and 2012. During this period of practice in New Zealand, he undertook training in relation to back manipulation.
On 23 August 2011, the Respondent was first registered as a medical practitioner in Australia. From that date until 3 June 2014, he worked under supervision at the Coffs Coast Skin Cancer Clinic in Coffs Harbour, NSW.
In April 2015, the Respondent began to work as a general practitioner specialising in skin cancer at a medical practice on the NSW North Coast ("the Practice").
In February 2017, Person A suffered a sudden onset of back pain in the course of her employment at an aged care facility. She consulted the owner of the practice, who referred her to Dr McEntee, an orthopaedic surgeon. In a letter dated 20 February 2018, Dr McEntee reported: "No abnormalities are detected", and "clinically, [Person A] has had an episode of right sacroiliac joint pain which is now settling …". Dr McEntee opined that "no particular interventions are required. She can expect improvement in her symptoms in the next few weeks."
In May 2018, Person A began to work in the Practice approximately three days per week. She worked with the Respondent during surgical procedures.
On 22 February 2019, the Practitioner conducted a back manipulation of Person A and recorded: "A History: back pain B mid-upper T-spine jam C Clicks with manipulation D feeling better."
On 4 March 2019, Person A consulted the Practitioner, apparently in relation to a lesion on her left foot. The Practitioner recorded: "A debride lesion L foot B benign C watch and wait".
In late November 2019, the Practitioner and Person A had a conversation in their workplace in relation to genital tattoos of women. This conversation apparently followed a consultation with a heavily tattooed patient. On 29 November 2019, the Practitioner and Person A exchanged a video and photos of women with tattoos in the anus/vaginal areas.
According to Person A, the Practitioner initiated these exchanges by sending her a video entitled "My Husband Tattooed my Butthole Last Night". In cross-examination in these proceedings, the Practitioner said that he forwarded this video to Person A and she then sent photos of tattooed female genitalia to him.
According to Person A, she was with her husband when she received this video and he then located the photos, which she sent to the Practitioner. The Practitioner then sent to Person A a video of a woman's naked buttocks, with the comment "now this is better eh?". These videos and photos, with accompanying messages, were in evidence in these proceedings (Exhibit 1, Volume 1 Tab 9).
Person A booked a 30-minute appointment with the Practitioner on 5 December 2019, during which he removed a lesion on her left foot and examined and/or manipulated her back. There are significant issues of fact as to what transpired during this consultation. There were also areas of agreement between the parties as to events during the consultation.
There appeared to be no dispute that the following events occurred during the consultation: 1. the Practitioner removed a lesion from the left foot of Person A. 2. this lesion was not sent for pathology analysis. 3. Person A took off her shirt and lay on a bed, wearing a bra, underpants and denim shorts. 4. at the request of the Practitioner, Person A rolled down her shorts which he removed entirely with her assistance. 5. a female medical student entered the room and left after a brief conversation. 6. a female receptionist at the practice then entered the room and left after a short conversation. 7. the Practitioner removed the underwear of Person A completely, without first asking her expressly for permission or requesting that she do so herself. 8. Person A called out "no" on at least on one occasion during the removal of her underwear, then stood up quickly and replaced her underpants and shorts. 9. after the consultation, there was a conversation in the reception area which involved Person A, the Practitioner, and other employees of the practice.
The brother of Person A collected her from the practice after the consultation and, at her request, took her to the home of their mother. Person A complained to her mother about the alleged conduct of the Practitioner during the consultation.
The mother informed the husband of Person A of her complaints and he telephoned the Practitioner, the practice manager, and a police station. That same afternoon, a police officer recorded a statement by Person A in his notebook. Person A signed this entry in the officer's notebook.
The Practitioner made notes of the consultation on 6 December 2019. These notes read: "Date: Friday 6/12/2019 10.54am Presenting: Provider: Dr Andrew McNab History: Notes from 5/12/19 C & C? DFR post foot Assess back - scoliosis convex to R Will come in for reassessment."
On 8 December 2019, the Practitioner attended a police station. He said to Senior Constable Daniel McColl: "I explicitly deny the allegations".
On 30 December 2019, Person A consulted the owner of the practice. Inter alia, he noted: "History: concern raised re the possibility of back problems in relation to possible scoliosis…has been reported to have one hip higher than the other by physio. Examination: back lower spine appears relatively straight although some variation in the rib outline noted left slightly higher than the right as seen through clothing Treatment - plan. 1. Discuss back issues and need to investigate possibility of advancing back issues. Happy to be reviewed by Dr McEntee." He referred Person A to Dr McEntee for a further examination and assessment.
On 13 March 2020, the Practitioner was charged with one count of "carry out sexual act with another person without consent". He stood trial in the Local Court in November 2020 and was convicted of this charge. He was sentenced to a 12-month community corrections order.
On 3 April 2020, the Medical Council of New South Wales ("the Council") requested information from the Practitioner and advised that a hearing pursuant to section 150 of the National Law would take place on 16 April 2020. Following that hearing, the Council suspended the registration of the Practitioner, with effect from 22 April 2020.
On 26 June 2020, Dr McEntee consulted with Person A and provided a report for use by the prosecution in the criminal proceedings. Inter alia, Dr McEntee opined as follows: "5 … I am of the opinion that [Person A] has a very mild thoracolumbar scoliosis measuring 14 degrees between T9 and L3. A scoliosis is a lateral curvature of the spine which is assessed with a front-on X-ray of the spine. T9 refers to the ninth thoracic vertebra located in the mid-back and L3 refers to the third lumbar vertebra located in the lower back. I note that the upper limit of normal for a lateral curvature in the human spine is 10 degrees so a 14 degree curve is only just above what would be considered normal alignment of the spine. 6 On physical examination of [Person A] the scoliosis is barely detectable and the physical examination findings would not have changed between the 2 dates that I examined her. [Person A] has not required and will not require any treatment for the scoliosis. No treatment is required for a 14 degree scoliosis. The curve will not increase throughout adult life."
The Practitioner lodged an Appeal against his conviction by the Local Court. On 25 March 2021, this Appeal was dismissed by the District Court. The Practitioner then lodged an Application for Judicial Review, which was dismissed by the Supreme Court on 8 December 2021.

[3]

The Evidence and Witnesses

The Applicant relied on two volumes of written material (Exhibit 1) which included police statements prepared for the criminal proceedings and a transcript of the trial of the Practitioner in the Local Court. This material included also the judgment of the District Court, in dismissing the Appeal by the Respondent.
In these proceedings, Counsel for the Practitioner objected to the admission into evidence of the transcript of the trial in the Local Court. Reliance was placed on clause 5(1)(g) of Schedule 5D of the National Law, which provides as follows: 5 Evidence of other proceedings [NSW] (1) A Committee or the Tribunal may receive and admit on production any of the following, as evidence in any proceedings- … (g) a transcript of the depositions or of shorthand notes, duly certified by the Registrar or clerk of the court or tribunal as correct, of the evidence of witnesses taken in the court or tribunal referred to in paragraphs (a)-(c); where the Committee or the Tribunal is of the opinion that the judgment, findings, verdict, certificate, decision, determination or evidence is relevant to the proceedings.
In his written submissions, Counsel for the Practitioner stated as follows: "31 In these proceedings the HCCC had not complied with subparagraph (g). That is, the transcripts of the proceedings before the Local Court have not been certified by a Registrar of the Court. 32 The Tribunal should use these proceedings as an opportunity to send a clear reminder to parties who commence proceedings that they are expected to comply with the legislation, regulations and rules imposed by the Tribunal. It is not an answer to non-compliance that 'the rules of evidence' do not apply or that the Tribunal has a discretionary power to admit material it considers relevant to the questions to be determined."
Counsel for the Applicant submitted that it is open to the Tribunal to admit the transcript into evidence as a matter of discretion. For reasons which we now set out, we elected to admit the transcript, which accordingly remained part of Exhibit 1.
We have no doubt that the "evidence" given in the Local Court is "relevant" to these proceedings, as required by clause 5(1)(g) of Schedule 5D. We note that Person A was not required for cross-examination in these proceedings. Notably, the Local Court transcript included her evidence-in-chief and in cross-examination. Counsel for the Practitioner made no suggestion that the Local Court transcript contained any inaccuracies. In our view, it is relevant that the Practitioner was present throughout the trial in the Local Court and he has had ample opportunity to identify any inaccuracies in the transcript.
We note that there was no indication on behalf of the Practitioner that the transcript placed before the District Court in his Appeal was a different version or a copy certified by the Registrar of the Local Court. Nothing in the judgment of the District Court suggested that any issue at all was raised in relation to the transcript in the appeal proceedings. We were advised of no potential or actual prejudice to the Respondent of the admission of the transcript into evidence.
Counsel for the Applicant informed us that the Registrar of the Local Court at Lismore was requested, during the hearing, to certify the transcript of the trial. Counsel advised us, further, that the Registrar responded that the Local Court does not certify transcripts. We accept the assurance of counsel for the Applicant that the legal representatives of the Respondent were made aware of these communications.
Having regard to all of these considerations, we elected to admit the transcript into evidence in the exercise of our discretion. Without expressing any concluded view, we note that one interpretation of clause 5(1)(g) of Schedule 5D might be that a transcript does not require certification but that a Registrar or clerk of the court must certify the accuracy of "shorthand notes" of the depositions of witnesses. The clause reads "a transcript of the depositions or of shorthand notes" (emphasis added). The difference, obviously, is that there exists an audio recording of a "transcript", but not of "shorthand notes".
The Applicant relied upon an Expert Report of Dr Michael Golding dated 12 December 2021. On 7 June 2022 the solicitor for the Applicant provided additional documents to Dr Golding, including the Reply of the Practitioner, the statement to AHPRA of Person A, the statement dated 19 May 2022 of the Practitioner and a supplementary report by Associate Professor Vincent Roche. Dr Golding indicated that he saw no need to "modify" his report, having regard to this material. Dr Golding gave oral evidence in these proceedings.
Associate Professor Roche prepared three reports dated 14 April 2020, 15 October 2020, and 22 June 2022 on the instructions of the Practitioner. The first report, dated 14 April 2020, was prepared for use in the section 150 hearing on 16 April 2020 (letter of instruction dated 14 April 2020 Exhibit 1 Volume 1 Tab 49 p 405). The second report was prepared for the purposes of the criminal proceedings (letter of instruction dated 9 October 2020 Exhibit 1 Volume 1 Tab 29). The third report was prepared for use in these proceedings. Associate Professor Roche gave oral evidence in this hearing.

[4]

The Applicable Law

Section 139B(1) of the National Law prescribes, relevantly for present purposes 139B Meaning of "unsatisfactory professional conduct" of registered health practitioner generally [NSW] (1) Unsatisfactory professional conduct of a registered health practitioner includes each of the following - (a) Conduct significantly below reasonable standard Conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of the practitioner's profession is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. … (l) Other improper or unethical conduct Any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession.
Section 139E of the National Law defines professional misconduct as 139E Meaning of "professional misconduct" [NSW] For the purposes of this Law, professional misconduct of a registered health practitioner means- (a) unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration; or (b) more than one instance of professional conduct that, when the incidences are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration.
Section 3 of the National Law sets out its objectives. This section provides relevantly as follows: 3 Objectives (1) The object of this law is to establish a national regulation and accreditation scheme for - (a) the regulation of health practitioners; … (2) The objectives of the national registration and accreditation scheme are (a) to provide for protection of the public by assuring that only health practitioners who are suitably trained and qualified to practice in a confidence and ethical manner are registered; …
Section 3A of the National Law sets out its guiding principles. This section provides relevantly as follows: 3A Guiding principles [NSW] … (2) The guiding principles of the national registration and accreditation scheme are as follows- … (c) restrictions on the practice of a health profession are to be imposed under the scheme only if it is necessary to ensure health services are provided safely and are of an appropriate quality.
Section 3B of the National Law provides: 3B Objective and guiding principle [NSW] In the exercise of functions under a New South Wales provision, the protection of the health and safety of the public must be the paramount consideration.
The Applicant bears the onus of proof of each element of its Complaints on the balance of probabilities. Having regard to the seriousness of the Complaints and the consequences, it is appropriate that the Tribunal apply the well-known standard of proof adopted by the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 ("Briginshaw"). The standard requires that the Tribunal must be "comfortably satisfied" or "must feel an actual persuasion" that the allegations are made out on the balance of probabilities.
There was a clear conflict between the evidence of the Practitioner and Person A as to certain events alleged to have occurred at the consultation on 5 December 2019. These differing accounts cannot be reconciled and, accordingly, there is a need for findings to the requisite standard and with due regard to the onus of proof borne by the Applicant.
Some assistance with this task can be found in reported authorities. In Campbell v Campbell [2015] NSWSC 784, Sackar J said at [74]-[76]: "[Quoting Craig v Silverbrook [2013] NSWSC 1687 at [142]] '… where a trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties' testimony, and the trial judge's assessment of the character of the witnesses and the manner in which the witnesses give evidence, is of primary importance.' … In Camden v McKenzie [2008] 1 Qd R 39 at [34] Keane J (as he then was) made the observation that 'the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.' … [Quoting Evans v Braddock [2015] NSWSC 249 at [74]]] '… in cases involving events which occurred long before litigation, [the Court] usually prefers to rely upon contemporaneous, or near contemporaneous, documents, which will often provide valuable And, usually, more revealing, information than what may be flawed attempts at recollection of those facts by persons with an interest in the outcome of the litigation. … Greater weight is usually accorded to such documents, as they often provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to mistake those facts in the documents and where there is no suggestion that the documents are other than genuine ….'"
In A v N [2012] NSWSC 354, Ward J (as Ward P then was) said at [348]: "As to the lay witnesses generally, I note at the outset that the fallibility of human memory has been explained by McClelland CJ in Equity … in an oft-quoted passage in Watson v Foxman (1995) 49 NSWLR 315 (at 318), as follows: '… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then again often subconsciously constructed. All that is a matter of human experience.'"
Her Honour then cited at [349] the statement of McClelland CJ in Equity in Watson v Foxman (at 318-319) that: "'Each element of the cause of action … must be proved to the reasonable satisfaction of the court, which means that the court 'must feel an actual persuasion of its occurrence of existence'. Such satisfaction is 'not … attained or established independently of the nature and consequence of the fact or facts to be proved' including 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': Helton v Allen (1940) 63 CLR 691 at 712. 'Considerations of the above kind can pose a serious difficulty of proof for a party relying upon spoken words as the foundation of a cause of action …, in the absence of some reliable contemporaneous record or other satisfactory corroboration.'"
Her Honour then said at [350]: "[Where evidence is given long after the occurrence of the events in question] [i]t is by no means unlikely that [the witness] will have put their own gloss or interpretation on events in which they were emotionally involved and that, by now, those perceptions will be reinforced in their minds so that they will be convinced of the truth of those perceptions. Not only … do memories fade with time, so also may particular perceptions or impressions of events may become accepted as fact …."

[7]

Particular One

The Practitioner admitted that he failed "to document the background and purpose of the biopsy/excision" and that the lesion was benign. He admitted that he failed to send the lesion for pathology analysis and maintained that there was no clinical necessity to do so.
The Practitioner denied that excision of the lesion was "inappropriate" and that he failed to obtain informed consent for this procedure. He "did not admit" that he failed to advise Person A, at the time of the excision, that the lesion was benign "having regard to his general practice that he would advise patients of this".
In her first police statement of 6 December 2019, Person A gave no indication as to whether the Practitioner told her that the lesion was benign. She said only that she sought advice from the Practitioner in relation to the lesion and "was told to make an appointment to have it cut off". Accordingly, she made a 30-minute appointment on 5 December 2019. She stated that "during the procedure, we had general conversation about the weekend" and also spoke about her back pain with the Practitioner.
In her second police statement dated 4 March 2020, Person A said at par 16: "I have since found out that [the Practitioner] did not send my biopsy for my foot away for testing, which I know is very odd. This would never happen. Even if [the Practitioner] knows it is something, he always sends it away to make sure it is nothing else."
In her evidence-in-chief at the trial, Person A gave a similar account of the excision and surrounding conversation and she was not challenged in this regard in cross-examination.
In a record of the consultation made on 6 December 2019, the Practitioner noted: "Debride lesion left foot. Benign. Watch and wait".
This record gave no indication whether the Practitioner did or did not tell Person A that he was of the opinion that the lesion was benign.
In his Statement of 19 February 2022, the Practitioner said that Person A informed him that she wanted the lesion on her left foot to be removed for reasons of discomfort. He stated that he identified the lesion as a dermatofibroma. He said that his general advice to patients was to leave such lesions in place. The Practitioner gave no indication in this statement as to whether he told Person A that the lesion was benign at any time.
The medical records of Person A (Tab 49) contained a note dated 31 December 2019, made by a receptionist at the practice. This note read: "Document Created: 31/12/2019 Notes. Phoned patient back as she had left a message for the results of a recent procedure. Phoned twice, left message on second call, patient phoned, advised patient as per doctor am that the lesion was a benign lesion and not one that he would normally sent (sic) away. Her response was 'how does he know this is benign, that's not…don't worry I'll sort it', then hung up before I could reply."
In his Statement of 19 February 2022, the Practitioner said that he placed the lesion in a specimen jar but did not attach a label. He noted that the "pathology paperwork" was not completed and said that a nurse normally attended to this part of an excision procedure. The Practitioner maintained that he searched unsuccessfully for the specimen jar on the following day. In his oral evidence in these proceedings the Practitioner said: "I am pretty sure the gynaecology nurse came in and cleaned up and threw it out".
In submissions prepared on his behalf for the section 150 hearing, the lawyers for the Practitioner wrote inter alia: "The primary reason for the consultation was to obtain a sample for biopsy". In cross-examination in these proceedings, however, the Practitioner said: "It is not correct that the primary reason was to obtain a sample for biopsy. It was rubbing on her shoe, she needed something taken off her foot."
As noted above, in his statement of 19 May 2022, the Practitioner identified the lesion as a dermatofibroma which he described as a "small, firm, benign nodule". He said that, normally, he advises patients against removal, so as to avoid scarring at the site of the lesion.
The Practitioner stated: "I accept that the current practice nationally is to send all biopsies or otherwise excised skin lesions off for histology. In my opinion, this is not medically necessary noting my observations above about DFs [dermatofibromas], but was consistent with expectations regarding excised lesions. However, at that time, I did not have a 'practice' or set procedure requiring that excised DFs be sent off for histology, as this was the only DF I had excised in the last eight years."
In his Report dated 12 December 2021, Dr Golding expressed concerns as to the failure of the Practitioner to send the lesion for analysis. He wrote inter alia: "even if the primary reason for the removal of the lesion was cosmetic it probably should still have been sent for pathology." In his oral evidence in these proceedings, Dr Golding said that he accepted that there was "a legitimate basis" for removal of the lesion. He said that he accepted that it is "reasonable to remove a lesion for cosmetic reasons". Dr Golding said also that he was of the view that "any dermatologist" would send the lesion for analysis.
Associate Professor Roche said that he considered that all lesions should be sent for analysis. He acknowledged that not all lesions are sent for analysis after removal. He said that he teaches his students to adopt a practice of referral to pathology in every case of removal of a lesion. He acknowledged, however, that not all lesions are sent for analysis after removal.
The Practitioner gave several explanations for his failure to send the lesion for analysis. At various points in his written and oral evidence, he asserted as follows: 1. he had no assistance from a nurse at the appointment, thus he was required to package and label the lesion, complete the documentation, and clean up in the surgery himself (statement of 19 February 2022). 2. he was distracted from these tasks by abusive phone calls from the husband of Person A, as a result of which he was fearful for his personal safety (statement of 19 February 2022). 3. he was satisfied that the lesion was benign by a visual inspection using a dermatoscope (oral evidence in these proceedings). 4. pathology analysis is an expensive process and Person A may not be in a financial position to meet this cost (oral evidence in these proceedings). 5. he did not label the specimen jar with the initials of Person A because he was expecting no other patient for a skin procedure on that day (oral evidence in these proceedings).
The Practitioner admitted that he failed to document the background and purpose of the biopsy/excision. Independently of this concession, we are satisfied and find that he failed to do so. His clinical notes were very brief and effectively made no reference to the "background and purpose of the biopsy/excision".
For the purposes of Particular 1(b), we do not consider that the excision was rendered inappropriate per se because of the benign nature of the lesion. Dr Golding opined that "it is reasonable to remove a lesion for cosmetic reasons" and that there was a "legitimate basis" for the procedure with respect to Person A.
For the purposes of Particular 1(c), the Practitioner admitted that he did not send the lesion for pathology analysis. The two experts clearly took the view that the optimal course would be to send all excised lesions for analysis, but they both stopped short of offering an absolute opinion to that effect.
We are mindful of the extensive experience of the Practitioner in the field of skin cancers and of the fact that he used a dermatoscope to examine the lesion. It is conceivable that he made a considered clinical decision that it was not necessary for the lesion to be sent for analysis. On the other hand, the fact that he placed the tissue in a specimen jar suggests that he intended to send the lesion for analysis. It may well be that circumstances intervened and he failed to follow preferred procedure. The Practitioner said that he had difficulty in focussing after his two conversations with the husband of Person A.
Ultimately, the Practitioner gave multiple and varying explanations for his failure to send the lesion for analysis. We are not satisfied that he provided a legitimate reason for his failure to send the lesion for pathology analysis.
As to Particular 1(d), we are of the view that the failure of the Practitioner to advise Person A that the lesion was benign does not necessarily mean that she gave no informed consent to the excision procedure. We have referred above to the expert opinion evidence as to the legitimacy of removal of benign lesions. We are not satisfied that the Practitioner failed to obtain informed consent from Person A prior to the excision.
Overall, we are satisfied and find to the requisite standard that the excision of the lesion was carried out appropriately by the Practitioner. Accordingly, we are satisfied, and we find, that the Applicant failed to establish Particular 1 of Complaint 2.

[8]

Particular Two

By this Particular, the Applicant alleged that the Practitioner performed a detailed examination of the back of Person A as a result of forming a view that she may be suffering from osteosarcoma without any reasonable basis for suspecting that she may be afflicted with that condition.
In his statement on 19 May 2022, the Practitioner gave this account of his examination of the back of Person A on 5 December 2019 at pars 31-34: "31. I then began examining [Person A's] back. Upon doing so, I observed that she appeared to me to be suffering from scoliosis, as her back looked to me to be very bent. I was very concerned about this, as I was aware that she had seen Dr McEntee in early 2018, who determined that she had a normally aligned spine. Accordingly, I was very concerned that a scoliosis was developing in [Person A's] mature spine. Usually, scoliosis develops in the immature soft bones of teenagers. It is more prevalent in females than males. 32. As I was aware that Dr McEntee had opined her back was normal in early 2018, I became concerned that [Person A's] back had become significantly bent since then. I then became concerned about what scoliosis may do to [Person A's] back in the future and what the underlying cause of it may be. 33. I was aware that such a rapid onset of scoliosis was extremely rare, so I immediately started considering what the underlying cause could be. I considered whether an adult version of teenage scoliosis could possibly be the cause (although I was not sure if that was a realistic possibility), and/or whether she perhaps had a benign growth in her spine (although I was also unsure whether this could cause scoliosis). 34. As a result of my observation of [Person A's] back, I was quite shocked. I felt my mouth going dry and I became quiet. I was very concerned about the sequelae with a spine that has bent this much in such a short time. Once scoliosis starts to worsen in an adult's spine, it doesn't usually stop. This can need extensive surgery and this isn't always successful."
The Practitioner stated that he decided that he should finish the back examination and form a conclusion as to the seriousness of the condition which he suspected, before making a referral to a specialist. He maintained that he was concerned that Person A would not be able to afford the cost of imaging.
The Practitioner said that he told Person A that he needed to measure the length of her legs and, when he did so, he informed her "one of your legs is a bit shorter than the other". He maintained that she replied "and I think one of my hips sticks out".
The Practitioner claimed this comment caused him "extreme concern", as swelling with or without tenderness close to the hip could be symptomatic of osteosarcoma. He stated at par 44: "44. [Person A's] comment about her hip caused me extreme concern, as I was aware that swelling with or without tenderness close to the hip could be a symptom of osteosarcoma. More specifically, I considered that she possibly had osteosarcoma in her leg bone, below and adjacent to the hip joint and that may have caused swelling in the region of her hip. Accordingly, I considered it was very important to examine her hip, to determine whether there was any swelling and/or tenderness. Regardless of whether any swelling was in fact attributable to osteosarcoma, I would still need to examine her hips."
In evidence-in-chief in the Local Court, the Practitioner said: "Well I knew I would have to have a look at her hip because I am still wondering what has given her this scoliosis. Something not very nice has done this to a mature spine, this mature spine that's got a bend in two years and osteosarcoma is the one cancer that young people get in the long bones and it's the one, it's the cancer that can go to the back and cause scoliosis. Any cancer in the back can cause scoliosis."
In his report, Dr Golding referred to the review by Dr McEntee of Person A on 20 February 2018 and to his conclusion that she had "a normally aligned spine and a normal neurological examination", with her symptoms being due to sacroiliac joint disease. Dr Golding agreed with Dr McEntee that the clinical features of this "very mild" scoliosis would not have changed between his two examinations.
Dr Golding disagreed in very clear terms that Person A exhibited a serious scoliosis which was suggestive of metastatic osteosarcoma. He opined as follows: "Osteosarcoma is a rare cancer with bimodal distribution. It occurs in early adolescence and in those over 60 years of age. Males are affected more than females. In young adults, 80 per cent of osteosarcomas occur in an extremity, most commonly the distal femur, then proximal tibia, and then proximal humerus. In adults, osteosarcomas occur in areas of bone affected by Paget's disease which [Person A] had not been diagnosed with. Metastasis does occur - however mainly to the lung not the spine or hip. Although it is possible that [Person A] had osteosarcoma in one of her long bones which had metastasised to her spinal column causing scoliosis, this is not 'the one cancer that young people get in the long bones and it's the one, it's the cancer that can go to the back and cause scoliosis'."
Dr Golding opined further: "Dr McNab has used the possibility of a serious cancer as the justification for a detailed examination of Person A's back which has also involved removal of her underwear. I do not accept that there are reasonable grounds for suspecting osteosarcoma in [Person A]. This is made more unlikely by the negative imaging of her back two years earlier. And even if a clinical suspicion had been formed of malignancy in [Person A], the appropriate next step is imaging: there seems to be little value in further clinical examination once severe scoliosis had been detected …"
In his report of 2 June 2022, Associate Professor Roche opined as follows: "Possible new physical findings upon a background of recurrent back pain, regardless of previous reassuring reports from a back specialist, and regardless of the patient's age, would in my opinion justify a doctor performing a further examination of the back. I personally believe that metastatic osteosarcoma would not be foremost in the differential diagnosis of most confident peer GPs, but it is my observation over many years that many otherwise competent GPs will sometimes have a 'ectopic' or unusual diagnosis in their list of differential diagnoses - usually, I suspect as a result of personal anecdotal experience rather than a scientifically determined order of probability. I would be more critical if [the Practitioner] had spotted a possible new physical deformity and chosen to ignore it."
In his oral evidence in these proceedings, Associate Professor Roche said: "Anything more than a minor degree of scoliosis would involve imaging and referral. Bone cancer would be a long way down on my list. If [the Practitioner] had had that experience, I would understand he might have it high on his list."
We are comfortably satisfied and we find that there was no reasonable basis upon which the Practitioner could have suspected that Person A suffered from osteosarcoma. Dr McEntee found no significant variation to the degree of scoliosis in the spine of Person A between his two examinations in February 2018 and June 2020. Dr Golding dismissed the prospect of osteosarcoma and the Practitioner's own expert, Associate Professor Roche, said that "bone cancer would be a long way down my list" of potential diagnoses.
Essentially, therefore, only the Practitioner made a suggestion of osteosarcoma and that possibility cannot be reconciled with the expert evidence of Dr Golding, Associate Professor Roche, and Dr McEntee. We are comfortably satisfied, and we find, that the Practitioner performed an examination of the back of Person A on 5 December 2019 without clinical justification. Accordingly, we find that Particular 2 is established to the requisite standard.

[9]

Particular Three

By this Particular, the Applicant alleged that the Practitioner removed the underwear of Person A without clinical justification during the consultation on 5 December 2019. The Respondent admitted that he removed the underwear but contended that he did so because he could not see the outline of the hips of Person A. He maintained that her frilly underpants impeded his view, thus he had clinical justification for the removal. In his oral evidence in these proceedings, the Practitioner said words to the effect: "The first thing I remember is thinking 'oh no, I can't see her hips.'"
Dr Golding drew attention to an issue as to whether the Practitioner conducted an examination or manipulation of the back of Person A. He referred to the evidence of Person A as to the Practitioner's actions as follows: "So, then I hopped on to the bed, same thing, he was he - at this point he put two fingers on parts of my spine and he would move my hips and all the way up, feeling my spine to see if there were any other problems and sometimes he would push and tell me to breathe out so he could crack. And then he asked me to go on my left side, so I was facing the wall, and then he would grab my left hand with his hand and he would have his right hand on my hip and kind of do a manoeuvre where you pull the arm up and rotate the right hip so it will crack. Then he did that."
Dr Golding considered such a procedure "clearly was a back manipulation, which would not require removal of underwear." Dr Golding accepted that a back examination would be "reasonable", if the Practitioner suspected a new scoliosis but opined that there would be no necessity for the removal of underwear for that purpose.
Dr Golding disagreed that "frilly underpants" could make an effective examination "difficult or impossible", and noted the opinion of Dr McEntee that the scoliosis was "barely detectable". Dr Golding opined as follows: "If the degree of scoliosis is so mild as to require removal of 'frilly underpants' to detect, then it is of such a trivial nature that it will not require any intervention. If the scoliosis is so marked that it poses a significant risk, and does require urgent intervention, then it will be so marked to be obvious even with 'frilly underwear' which may possibly cover the very lowest part of a person's spine above the sacrum. … My view from the photos of the underpants worn by [Person A] is that they are not an excessively 'frilly' undergarment such as to obscure the view of the spinal column to any significant degree. I find the contention by A/P Roche that removal of this underwear by [the Practitioner] was in any way reasonable to be completely unconvincing."
Associate Professor Roche was of the view that there was "a possibility that this kind of underwear may obscure … surface pelvic anatomy". In his oral evidence in these proceedings, Associate Professor Roche said words to the effect that "it would be uncommon for underwear to prevent proper vision but I don't recall seeing anyone with underwear like that." He said also words to the effect "it doesn't strike me as likely that the underwear would be likely to interfere with the inspection".
The stated reason of the Practitioner for the removal was that the underwear impeded his view of the hips of Person A. Dr Golding acknowledged that it may have been necessary for the underpants to be lowered "a little" to enable palpation or observation of the iliac crests. He opined that lowering of the underwear to the top of the intergluteal cleft would have been sufficient for that purpose. Associate Professor Roche acknowledged possible justification for the removal of the underwear but offered these opinions in most qualified terms.
Ultimately, the clinical justification advanced by the Practitioner for the removal of the underwear of Person A received no support from Dr Golding and merely hypothetical and qualified endorsement from Associate Professor Roche. Nothing in the evidence persuaded us that the Practitioner had any clinical justification for the removal of the underwear of Person A on 5 December 2019. We are satisfied, and we find, that Particular 3 is established to the requisite standard. We are comfortably satisfied, and we find, that the Practitioner removed the underwear of Person A without clinical justification on 5 December 2019. Accordingly, we find that Particular 3 is established to the requisite standard.

[10]

Particular Four

By this Particular, the Applicant alleged that the Practitioner removed the underwear of Person A without her informed consent and, in so doing, breached clauses in each of the Medical Board of Australia's ("the Medical Board") "Good Medical Practice - A Code of Conduct for Doctors in Australia" ("the Code of Conduct") and the Medical Board's "Guideline: Sexual Boundaries in the Doctor/Patient Relationship" ("the Sexual Boundaries Guidelines). In his written submissions, Counsel for the Applicant sought leave to amend Particular 4 to specify clause 3.3.3 of the Code of Conduct (in force from 2014) from clause 4.3.3 (in force from October 2020). Counsel for the Applicant indicated that these clauses contain identical wording.
Counsel for the Practitioner made no suggestion of any prejudice which would arise by such a grant of leave. We can identify no disadvantage, given that the clauses are worded in identical terms. Accordingly, we granted leave to the Applicant to amend Particular 4 as proposed in written submissions.
By his Reply, the Practitioner admitted that he removed the underwear of Person A without her informed consent "but does not admit the balance of the Particular". Accordingly, by implication he made no concession that he breached either of the two specified clauses in the Medical Board's Code of Conduct and the Sexual Boundaries Guidelines.
Clause 3.3.3 of the Code of Conduct makes reference to "informing patients of the nature of, and the need for, all aspects of their clinical management, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment".
Clause 7 of the Sexual Boundaries Guidelines provides: "Before conducting a physical examination, good medical practice involves: - explaining to the patient why the examination is necessary, what it involves and providing an opportunity for them to ask questions or to refuse the examination; - obtaining the patient's informed consent; … - allowing the patient to undress and dress in private. A doctor should not assist a patient to undress or dress unless the patient is having difficulty and asks for assistance; …"
In her police statement of 6 December 2019, Person A said at pars 35-38: "35. … [The Practitioner] said, 'You don't mind if I touch you here?' I said, 'no'. His hands were around my hip area now. I felt they were too low. 36. He then started to pull the sheet and my undies down. The sheet must have already been lower down near my thigh. I felt his fingers go under the tops of my undies and began to pull them down. His fingers would have been inside my underwear. He was still pushing with his palms on my bum. It was quick and I felt my undies were now going down past my bum and I've immediately said, 'No'. He kept pulling them further down my legs exposing my body. I kept saying 'No, no, no, no Andrew!' By this point he had pulled the sheet and my undies completely off. 37. I had not given him permission to take the procedure this far. It was extremely uncomfortable for me. I was scared with [sic] what was going to happen. I thought his actions were of a sexual nature in which I had no interest and gave him no right or permission to do. I was in shock from this point. 38. I quickly sat up still saying no …"
In her evidence-in-chief in the Local Court, Person A gave an account of the removal of her underwear which was consistent with that set out in her police statement. She said further: "Q. Could you give the Court an indication of time in seconds in regards to when he's first started pulling your underwear down until they were completely removed from your feet? A. Two, three seconds. Q. And in that time your evidence is that you said no four times? A. Yes." In our view, Person A was largely unshaken in this evidence in cross-examination.
Dr Golding noted that the removal left Person A naked and opined that a lowering of the underwear to the level of the intergluteal cleft would have been sufficient for an examination of the iliac crests. In his oral evidence in these proceedings, Associate Professor Roche said: "There is a significant difference in removing the final piece of clothing. I would not be comfortable without a minimum of 'I am sorry, I need to remove your underpants in order to see your pelvic anatomy clearly'."
In his oral evidence in these proceedings, Associate Professor Roche said: "We have an absolute duty to stop as soon as a patient does not want to be examined." He said also: "In real life, most GPs realise that you remove as little clothing as possible to allow a proper examination, both for embarrassment and time."
In written submissions, counsel for the Practitioner invited the Tribunal "to accept that the examination was a dynamic situation where the Respondent's concerns for what he perceived to be an alarming issue clouded his judgment and thought process and reject any allegation of sexual intent." We do not accept this submission.
In his oral evidence in these proceedings the Practitioner said, "I just said I'm sorry. As soon as she said it, I knew I had gone too far." The notion of a "dynamic situation" which was driven by the alleged concern of the Practitioner as to osteosarcoma sits most uncomfortably with the expert evidence of Dr Golding and Associate Professor Roche.
The Practitioner denied that he had ever harboured any sexual attraction or intent toward Person A. He denied that his removal of her underwear was driven by any kind of sexual motivation. We have no reason to doubt the evidence of Person A, to the effect that she perceived a sexual element to the removal of her underwear by the Practitioner.
In our view, the subjective intent of the Practitioner is irrelevant to the issue as to whether he acted in breach of the specified clauses of the Code of Conduct and the Sexual Boundaries Guidelines identified in this Particular. We consider that it is abundantly clear on all of the evidence, including that of the Practitioner, that he did not inform Person A of his alleged inability to see her hips adequately for the purpose of an examination. It is equally clear that he gave her no opportunity to refuse to allow him to remove her underwear. Similarly, he afforded Person A no opportunity to remove her underwear herself or to undress in private.
Accordingly, we are satisfied, and we find, that the Practitioner breached clause 3.3.3 of the 'Good Medical Practice: A Code of Conduct for Doctors in Australia' and clause 7 of the 'Guidelines: Sexual Boundaries in the Doctor-Patient Relationship' of the Medical Board of Australia. We thus find Particular 4 established to the requisite standard.

[12]

Particular Six

By this Particular, the Applicant contended that the Practitioner made statements of a personal and sexual nature to Person A during the consultation on 5 December 2019 and, in so doing, breached proper professional boundaries. The specific statements which the Practitioner is alleged to have made were set out as follows: 1. "I know, I just wanted to look. I have always looked at you like a daughter. But the last month I have been dreaming about you and how I want to know you inside and out." 2. He wanted to give her '"an orgasm" and "slip it in". 3. "I want you lying by my side" and "I have never felt like this before." 4. "I won't do anything if you don't want me to. But I know you have been dreaming and thinking about me too." 5. "You are lying. I know you have." 6. "We will be fine. I don't want to cause any drama." 7. "Don't tell anybody especially not your mum."
The Practitioner denied this Particular, which must mean that he disputed that he made all or any of these alleged statements. Accordingly, the Tribunal must determine whether he made all or any of these alleged statements to the Briginshaw standard.
In our view, it is useful to consider the accounts of this consultation which Person A gave to various people, including police officers and in her evidence at the Local Court trial. Immediately after the consultation, Person A called her brother and asked that he arrange that their mother collect her from the surgery. There was no evidence from the brother, but the mother provided a statement to police on 14 February 2020 and gave evidence at the trial. The mother stated that her son collected Person A and brought her to her house. The mother said that Person A was crying and told her that the Practitioner had removed her underwear. The mother said that Person A informed her that the Practitioner "was saying all this weird shit about dreaming about her". The mother said that Person A stated that the Practitioner told her, at the end of the consultation, "don't tell anyone, especially your mother".
The husband of Person A said in his police statement at pars 10-11: "10. … [Person A] told me that she has pushed back on the doctor saying, 'No, I have kids, I am married'. She said she was in shock, and didn't know what to do at that time. He was verbalising to her, that he no longer thought of her as a daughter and more as a lover. He said 'I know you feel the same way'. [Person A] said she responded by saying, 'No, you're 65 and I'm 24, it's not like that.'" 11. I continued to ask her questions about what occurred and what he said. She said, he said 'I know you dream about me like how I dream about you.' 'I want to know you inside and out.'"
At the trial, the husband of Person A said: "[Person A] just kept saying, no, no, you know like, I am married I have a kid." The husband of Person A said that he thought that she "might have you know she referenced you know you're 60 something". The husband of Person A said that she stated that the Practitioner said, "I dream about you, I know." The husband of Person A then said that she told him "He said that he dreamed about her and he knew that she dreamed about him and that he is no longer seeing her as a daughter figure but now seeing her, you know, sexually as a partner you know. And he said 'we don't have to do anything. I can just you know look or touch'." The husband of Person A continued that she told him that the Practitioner said, "I can just put it in once' or something like that and that he said something like 'I can just put it in once and that's all'."
In the early afternoon of 5 December 2019, Person A discussed the consultation with Senior Constable McColl, who make a written record of their conversation in his notebook. He wrote: "[Person A] was saying no. No Andrew. It's all right. The curtain is there no-one can see. (referring to what Dc McNab said) No I am married. I am 23 and [you're] 63. We work together. He said, I have been dreaming about you. You lying by my side. He believed I had been dreaming about him as well. I have jumped and started getting changed. He said, I know you feel the same. I know you like it when we're touching."
In her police statement of 6 December 2019, Person A said of the alleged statements by the Practitioner at pars 40-45: "I said - 'You can't do this. We can't do this. I am married. I'm 25. You're 63. No!' He said - 'I know. I just wanted to look. I have always looked at you like a daughter. But the last month I have been dreaming about you. And how I want to know you inside and out.' I said - 'No'. I just put my hands on my hand and kept saying no. He was telling me about his dream, however I was freaked out and wasn't taking it in. I know he said he wanted to give me an orgasm and 'I want to slip it in' … 'I want you lying by my side' and 'I have never felt like this before'. … He said 'I won't do anything if you don't want me to. But I know you have been dreaming and thinking about me too.' I said 'No. No.' He said 'You're lying. I know you have.' … I said 'What have you done? I work with you. How am I meant to work with you now? You have just fucked things up.' … He said 'We will be fine. I don't want to cause any drama.' … He said 'Don't tell anybody. Especially not your mum.' I said 'I'm not stupid I won't.'"
At the trial, Person A said in evidence-in-chief: "Then he said he didn't, he didn't need to look - he didn't need to touch, he could just look … he was talking about how he used to look at me like a daughter … He said 'the last month - I look at you like a daughter but the last month I have looked at you differently' … He said 'I want to make you orgasm'. He said 'I want to slip it in even just once' …. He said 'even if I just lay with you' … I said 'well you have just really fucked things up. We work together.' He said 'it'll be okay. Again, I don't want to cause any drama'. And then he said 'not to - don't tell anyone especially not your mother. I said 'I'm not that stupid.'"
It is important to bear in mind that this Particular does not concern the conduct of the Practitioner in the exchange of a video and photos and messages concerning female genitalia and buttocks with Person A. This Particular of Complaint 2 relates specifically to statements allegedly made by the Practitioner to Person A during the consultation on 5 December 2019. It is important to bear in mind also that this Particular is worded 'by making statements of a personal and sexual nature … including and to the effect of: …'."
Person A made complaints about the conduct of the Practitioner to her family at the earliest opportunity after she left the surgery. Her complaints extended to statements of a sexual and personal nature directed to her by the Practitioner. There is a consistency to the theme of these alleged statements, that being a physical attraction to Person A on the part of the Practitioner and a wish or intention to engage her in sexual relations.
As Person A gave no oral evidence in these proceedings, we had no opportunity to make an assessment of her credibility as a witness. On the other hand, our attention was drawn to nothing which would detract from the reliability and veracity of her written evidence.
We were afforded ample opportunity to form a view as to the credibility of the Respondent. We were unimpressed with the Practitioner as a witness and we agree with the conclusion of the presiding judge at the appeal that "from a reading of the transcript [the Practitioner] appears to have been argumentative, arrogant and belligerent when giving evidence and particularly in cross-examination".
By way only of illustration, we consider that the following matters impacted adversely on the credit of the Respondent: 1. he gave a detailed written statement dated 19 May 2022 in these proceedings but appeared to resile from certain parts of its contents in his oral evidence. For example, he wrote that Person A assisted him in the removal of her shorts but he said in evidence "I do not know whether I removed her shorts or she did it herself - it seems to be identical to how her underwear came down so I thought I must have done it … I did not know what to put but I thought I'd better put something." 2. he claimed to "have no memory" of aspects of the Local Court trial, despite its impact on his personal and professional life. 3. he claimed that he did not read the letter of instruction, dated 14 April 2022, by which his solicitors requested a report by Associate Professor Roche for use in the section 150 hearing. This letter contained statements which are inconsistent with some of the positions advanced by the Practitioner in the current proceedings, for example, "[the Practitioner] proceeded to take down her underpants, however before he could remove them, [Person A] objected and the consultation was terminated". 4. [NOT FOR PUBLICATION]
It is our view that it is probable that the Practitioner did make statements to Person A of the nature of those set out in Particular Six. However, the available evidence does not enable us to find to the requisite standard that he made any or all of the statements recited in Particular 6. As noted above, the Particular itself is worded in general terms of " … statements of a personal and sexual nature …, including to the effect of …". In our view, it would be unsafe that there be a finding that Particular Six is established to the Briginshaw standard.

[13]

Particular Seven

The Applicant sought leave to amend this Particular so as to specify clause 8.4 in the Code of Conduct in force from 2014. The terms of this provision are identical to those contained in clause 10.5 of the Code which came into effect in October 2020. We saw no prejudice to the Respondent in this proposal and granted leave accordingly.
Clause 8.4 of the 2014 Code reads as follows: "8.4 Medical records Maintaining clear and accurate medical records is essential for the continuing good care of patients. Good medical practice involves: 8.4.1 Keeping accurate, up to date and legible records that report relevant details of clinical history, clinical findings, investigations, information given to patients, medication and other management in a form that can be understood by other health practitioners. … 8.4.4 Ensuring that the records are sufficient to facilitate continuity of patient care. 8.4.5 Making records at the time of the events, or as soon as possible afterwards. …"
The Practitioner denied that he failed to make any accurate and contemporaneous clinical record of the consultation. He admitted that the record which he made was inadequate and denied that he breached the Code of Conduct.
The Applicant submitted that the Tribunal may have regard to the relevant provisions of the Health Practitioner Regulation (New South Wales) Regulation 2016 in determining the standard which should apply in the determination of this Particular. The Applicant pointed to Regulations 6(1), 8(1) and Schedule 4, clauses 1(1) to 1(4) and clause 3.
Regulation 6(1) provides inter alia: 6 Records relating to patients (1) A medical practitioner … must, in accordance with this Part and Schedule 4, make and keep a record, or ensure that a record is made and kept, for each patient of the medical practitioner ….
Regulation 8(1) provides that: 8 When records are to be made (1) A record must be made contemporaneously with the provision of the medical treatment or other medical service or as soon as practicable afterwards.
Clauses 1(1) to (4) of Schedule 4 provide as follows: 1 Information to be included in record (1) A record must contain sufficient information to identify the patient to whom it relates. (2) A record must include the following - (a) any information known to the medical practitioner who provides the medical treatment or other medical service to the patient that is relevant to the patient's diagnosis or treatment (for example, information concerning the patient's medical history, the results of any physical examination of the patient, information obtained concerning the patient's mental health state, the results of any test performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), (b) the particulars of any clinical opinion reached by the medical practitioner, (c) any plan of treatment for the patient, (d) particulars of any medication prescribed for the patient. (3) The record must include notes as to information or advice given to the patient in relation to any medical treatment or other medical service proposed by the medical practitioner who is treating the patient. (4) A record must include the following particulars of any medical treatment or other medical service that is given or performed on the patient by the medical practitioner who is treating the patient - (a) the date of the treatment, (b) the nature of the treatment, (c) the name of any person who gave or performed the treatment, (d) the type of anaesthetic, if any, given to the patient, (e) the tissues, if any, sent to pathology, (f) the results or findings made in relation to the treatment.
Clause 3 of Schedule 4 provides as follows: 3 General requirements as to content (1) In general, the level of detail contained in a record must be appropriate to the patient's case and to the medical practice concerned. (2) A record must include sufficient information concerning the patient's case to allow another medical practitioner to continue management of the patient's case. (3) All entries in the record must be accurate statements of fact or statements of clinical judgment.
There is no doubt that a record was not made contemporaneously, as the consultation occurred at 12.30pm on 5 December 2019 and the Practitioner made no notes until approximately 11.00am on the following day. It thus seems to us that he did not make a record as soon as practicable after the consultation. By his own account the Practitioner was motivated by a "desire to rush home and possibly source alternative accommodation" after he received two telephone calls from the husband of Person A during the afternoon of 5 December 2019 (Statement of Practitioner dated 19 May 2022). In response to a question from a member of the Panel, he conceded that he had adequate time to write notes on 5 December 2019, before he commenced his afternoon surgery.
The Practitioner conceded that his "record keeping was not up to the expected standard on this occasion". This concession accords with the expert opinion of Dr Golding, who concluded: "The clinical encounter of the 5th of December 2019 involves surgical removal of a skin lesion using local anaesthetic, examination of [Person A's] back detecting serious scoliosis that made [the Practitioner] suspect the presence of a malignant osteosarcoma cancer, however, there has been no entry made in the notes. In his submission to the Medical Board, 'it is accepted that the clinical notes made by [the Practitioner] are poor'. In my view, the failure of [the Practitioner] to make an entry in the clinical notes is significantly below the standard."
For these reasons we are satisfied, and we find, that the Practitioner failed to make an accurate and contemporaneous record of the consultation on 5 December 2019. The inadequacy of the record is evident on its face, having regard to the undisputed events which occurred during the consultation. We are satisfied, and we find, that the Practitioner breached clause 8.4 of the Code of Conduct. Accordingly, we find that Particular Seven is established to the requisite standard.
We are satisfied, and we find, that the Practitioner is guilty of unsatisfactory professional conduct for the purposes of section 139B(1)(a) of the National Law. We are satisfied, and we find, that the Practitioner engaged in conduct which demonstrates that his knowledge, skill or judgment in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience.

[14]

Complaint Three

By this Complaint, the Applicant contended that the Practitioner is guilty of professional misconduct. It was alleged that he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration. Further or in the alternative, it was alleged that he engaged in more than one instance of unsatisfactory professional conduct, such that these instances when taken together, amount to conduct of a sufficient serious nature to justify suspension or cancellation of registration.
The Particulars upon which the Applicant relied in support of this complaint were identical to those which were said to support the allegation that the Practitioner is guilty of unsatisfactory professional conduct. We have set out above our findings in relation to these particulars.
We have found that the Practitioner removed the underwear of Person A without clinical justification. Person A was placed in a vulnerable and embarrassing position, in which she claimed that she felt distressed and fearful. It seems to us that the Practitioner has at no stage fully accepted responsibility for his actions and the consequences for Person A. He exhausted unsuccessfully all avenues available to him in the criminal process and disputed significant complaints in these proceedings. For example, he denied that he removed the underwear of Person A without clinical justification, in the face of persuasive evidence to the contrary from Dr Golding and his own expert Associate Professor Roche.
We digress to observe that we do not consider that Patient A's apparently calm interactions with other members of the staff, prior to her departure from the surgery, militate against a conclusion that she suffered an embarrassing and humiliating experience during the consultation. She was dealing with work colleagues in her place of employment and succumbed to her distress almost immediately upon her departure from the premises.
We have found that the Practitioner removed the underwear of Person A without her informed consent, as he admitted in his Reply. We note that the evidence of the Respondent's own expert, Associate Professor Roche, of the "absolute duty to stop as soon as a patient does not want to be examined", which was clearly ignored by the Practitioner.
We consider that these instances of unsatisfactory professional conduct, when taken together, are of sufficient seriousness to warrant suspension or cancellation of the registration of the Practitioner. Accordingly, we are satisfied, and we find, that the Respondent is guilty of professional misconduct for the purposes of section 139E of the National Law.

Health Care Complaints Commission v McNab

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (1)

Cases Cited (8)

Cited By (2)