Health Care Complaints Commission v Sinnathurai - [2021] NSWCATOD 102 - NSWCATOD 2021 case summary — Zoe

NSWNSWCATOD

Health Care Complaints Commission v Sinnathurai

[2021] NSWCATOD 102

NCAT Occupational|2021-06-23

View original source

At a glance

Source facts

Court

NCAT Occupational

Decision date

2021-06-23

Source

Original judgment source is linked above.

Judgment (59 paragraphs)

[1]

The complaints

The Health Care Complaints Commission (HCCC) has applied to the Tribunal for disciplinary findings and orders in relation to Dr Sinnathurai. The allegations relate to two consultations in 2019.
Patient A, who was 18 years old at the time, made an appointment to renew a prescription for the pill. She had never consulted Dr Sinnathurai before. He examined her chest and back for acne and conducted a breast examination and an abdominal examination. Dr Sinnathurai denies that there was no clinical need to conduct these examinations, but admits that he did so without adequately explaining to Patient A what he was doing or asking her if she agreed. Dr Sinnathurai made sexual comments and partially undressed and dressed Patient A himself, including unclipping her bra. The most serious allegation, which Dr Sinnathurai denies, is that during the breast examination he pulled on Patient A's nipples and pulled upwards on her nipple while saying words to the effect of "it's like holding a bunch of grapes".
Patient B, a 28-year-old woman who was also seeing Dr Sinnathurai for the first time, wanted to get a blood test to confirm that she was pregnant. Dr Sinnathurai admits that he conducted a breast examination and an abdominal examination without her informed consent, but denies that these examinations were not clinically necessary. Dr Sinnathurai also denies the most serious allegation, that he squeezed and twisted each of Patient B's breasts with his whole hand and twisted each nipple hard.
The third complaint is that Dr Sinnathurai breached the record keeping regulations by failing to write down certain information including that he had conducted an abdominal examination on either Patient A or Patient B.
The HCCC submits that the complaints involving Patient A and Patient B and the record keeping complaint amount to "unsatisfactory professional conduct". Either individually or cumulatively, the complaints are also said to amount to "professional misconduct".

[4]

Factual issues and credibility

The HCCC has the burden of proving the facts to the civil standard of proof which is on "the balance of probabilities". When making findings of fact we should take into account matters including the nature of the cause of action or defence, the subject matter of the proceedings and the gravity or seriousness of the allegations. In these kinds of proceedings, the protection of the health and safety of the public must be our paramount consideration: National Law, s 3A. Only health practitioners who are suitably trained and qualified to practise in a competent and ethical manner should be registered: National Law, s 3(2)(a). The allegations against Dr Sinnathurai, especially about the way he conducted breast examinations on Patients A and B, are very serious.
We should not be reasonably satisfied that something has happened or that Dr Sinnathurai had a particular motivation if the allegation is only supported by "inexact proof, indefinite testimony or indirect inferences". Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; [1938] HCA 34. While we are not bound by the rules of evidence or the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, those principles remain relevant: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 at [127].
Dr Sinnathurai does not have an independent recollection of either consultation and is relying on the information he wrote in the medical records and his standard practice. We accept that he does not remember Patient A or Patient B or the details of those consultations. He admits many of the factual allegations, but denies others including the most serious allegations about the way he conducted the breast examinations. His evidence was that he conducted those examinations in accordance with the relevant guidelines. He now understands that both Patient A and Patient B were very upset. He attributes their distress to his failure to adequately explain what he was doing and his failure to obtain their informed consent.
Patient A and Patient B had a very clear recollection of events and reported them to their family and friends straight away. On 2 March 2019, the same day as the consultation, Patient A contacted her boyfriend. She was upset and crying. She followed his advice and made detailed handwritten notes. On 5 March 2019, she complained to the NSW Police Force and provided a statement. On 14 October 2019, Patient A provided a further statement to the HCCC. She had to re-live the trauma she experienced as a result of the consultation with Dr Sinnathurai when answering questions at the hearing but she did so calmly and thoughtfully. If she could not remember something, she said so. In our view, Patient A was telling the truth to the best of her recollection. That recollection is likely to be accurate because she made contemporaneous notes of what had happened.
After the consultation Patient B messaged two of her friends and spoke to her mother when she got home. She also messaged her husband and told him what had happened. Patient B felt violated and was understandably distressed by these events. When she returned to the Medical Centre for her results, she told the receptionist she never wanted to see that doctor again. She saw another doctor who confirmed the results of the blood test. On 30 May 2019, about a month after the consultation, Patient B complained to the Australian Health Practitioner Regulation Agency (AHPRA). She made two statements, one dated 29 November 2019 and the other 23 January 2020. She also gave her evidence thoughtfully and calmly. We are satisfied that she was telling the truth, to the best of her recollection.

[5]

Unsatisfactory professional conduct

After making factual findings, we must then decide if what has happened amounts to "unsatisfactory professional conduct" as defined in the National Law. For Complaint One relating to Patient A, and Complaint Two relating to Patient B, the HCCC alleges that Dr Sinnathurai is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law. Section 139B(1)(a) defines unsatisfactory professional conduct to include: 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.
When deciding whether Dr Sinnathurai is guilty of unsatisfactory professional conduct under s 139B(1)(a) we must do so against the standard reasonably expected of a practitioner of an equivalent level of training and experience. Throughout these reasons we refer to that standard as the "relevant" standard.
Dr Sinnathurai has a high level of training and experience. He obtained a Bachelor of Medicine/Bachelor of Surgery from the University of Malaya in 1975. He moved to Australia the same year. He was first registered as a Medical Practitioner on 3 September 1976 and worked as an intern at the Mater Hospital in Newcastle, NSW. From 1982 to 2011 Dr Sinnathurai worked on his own as a general practitioner in Sydney. From 2011 to 2019 he was employed as a GP in a medical centre in Merrylands, NSW.
Dr Sinnathurai has undertaken significant Continuing Professional Development (CPD) in women's health and is accredited as an antenatal shared care provider. He is not a Fellow (member) of the Royal Australian College of General Practitioners (RACGP). Fellowship of the RACGP is a specialist general practice qualification accredited by the Australian Medical Council. Doctors without that accreditation have access to the same education and training as doctors who do have that accreditation. Dr Sinnathurai is an extremely experienced and adequately trained doctor. At the time of the hearing he was 71 years old.
As well, or alternatively, the HCCC alleges that Dr Sinnathurai is guilty of unsatisfactory professional conduct under s 139B(1)(l) in that he has engaged in "improper or unethical conduct". The kind of conduct described in s 139B(1)(a) relates to Dr Sinnathurai's "knowledge, skill or judgement" whereas s 139B(1)(l) identifies "any other improper or unethical conduct relating to the practice or purported practice of the practitioner's profession". However, the same conduct can amount to unsatisfactory professional conduct under s 139B(1)(a) or s 139B(1)(l) of the National Law: Health Care Complaints Commission v Grygiel (Stay application) [2019] NSWCATOD 123 at [59]-[66]. As well, an accumulation of particulars in respect of specified conduct can lead to a finding of unsatisfactory professional conduct: Health Care Complaints Commission v Goyer [2019] NSWCATOD 121 at [102].
The words "improper" and "unethical" are not defined in the National Law. They have an ordinary English meaning. Dictionary definitions provide a guide to that meaning. As the Tribunal held in Health Care Complaints Commission v Sare [2018] NSWCATOD 190 at [31]: The Macquarie Dictionary defines "improper" as "not in accordance with propriety of behaviour, manners etc or abnormal or irregular" (see also R v Byrnes and Hopwood [1995] HCA 1; 183 CLR 501 at 514-515). Unethical is defined as "contrary to moral precept; immoral; in contravention of some code of conduct". As in Health Care Complaints Commission v Little [2016] NSWCATOD 146, we consider it appropriate to adopt the dictionary definition in construing these words as they appear in the National Law. We note that the words are to be read in the context of s 139B(1)(l), namely that the offending conduct is conduct relating to "the practice or the purported practice of the practitioner's profession".
For both Patient A and Patient B, the HCCC alleges that Dr Sinnathurai breached the Sexual Boundaries Guidelines. (Sexual Boundaries Guidelines: Medical Board of Australia, Guidelines - Sexual boundaries in the doctor-patient relationship, December 2018.) Those Guidelines, as well as other guidelines such as the Medical Board of Australia's Good medical practice: a code of conduct for doctors in Australia, March 2014 (the Code of Conduct), are admissible as evidence of what constitutes appropriate professional conduct or practice: National Law, s 41.
The Sexual Boundaries Guidelines explain that: Doctors are expected to act in their patient's best interests and not use their position of power and trust to exploit patients physically, sexually, emotionally or psychologically. Breaching sexual boundaries is always unethical and usually harmful for many reasons…
The reasons given for the view that breaching sexual boundaries is always unethical include: the power imbalance between doctors and patients; the trust that patients place in doctors; the physical and emotional harm that may be caused; and the erosion of public confidence in doctors if people are deterred from seeking medical care. The objective seriousness of the conduct will depend on the type of breach. Sexual remarks or suggestive comments are at the lower end of the scale, while beaches involving "sexual exploitation or abuse" or sexual assault are at the higher end. If Dr Sinnathurai has breached the Sexual Boundaries Guidelines and/or the Code of Conduct, we must then determine whether he is guilty of unsatisfactory professional conduct under s 139(1)(a) and/or (l).
Two doctors gave their opinion as to whether the alleged conduct amounts to unsatisfactory professional conduct and professional misconduct.
The HCCC's expert witness, Dr Stephen Howle, is a very experienced general practitioner who has recently retired. He provided a report dated 20 March 2020 and a supplementary report dated 21 February 2021. Dr Howle was asked to express an opinion in terms of the adequacy and appropriateness of Dr Sinnathurai's conduct and whether the conduct was significantly below the relevant standard. Dr Howle's views broadly reflect the current guidelines and literature on conducting breast and abdominal examinations.
Associate Prof Roche provided an expert report dated 11 January 2021 at the request of Dr Sinnathurai. He is a highly experienced GP having practised in regional NSW for 34 years. He is involved in the teaching of medical students and GP registrars. Associate Prof Roche was asked whether Dr Sinnathurai's conduct fell below the relevant standard and, if so, whether it fell significantly below that standard.
The HCCC objected to those parts of Associate Prof Roche's evidence that expressed a view as to the significance of cultural and social factors in Dr Sinnathurai's behaviour. He is not qualified to express an opinion on those issues and Dr Sinnathurai agreed that we should not take those parts of Associate Prof Roche's report into account. In addition, we do not agree with Associate Prof Roche's opinions to the extent that they are based on the considerations we outline below.
Associate Prof Roche's view was that Dr Sinnathurai's behaviour can be explained or excused to some extent because of his overseas training, the fact that he was a sole practitioner for some time and the volume and complexity of guidelines in circulation. Dr Sinnathurai did his university degree in Kuala Lumpur, Malaysia. He came to Australia in 1975 and has trained and worked in Australia ever since. Obtaining a university degree overseas or being isolated as a sole practitioner does not account for Dr Sinnathurai's behaviour. He has had the same access to training as every other medical practitioner.
We do not share Associate Prof Roche's view that because some older practitioners continue with outdated practices, that makes Dr Sinnathurai any less culpable. Nor does the number and complexity of the RACGP guidelines lessen Dr Sinnathurai's responsibility to keep up to date. As he has a particular interest in identifying breast cancer and in antenatal care, he has an obligation to be familiar with the relevant guidelines and to comply with them.
Finally, it appears that Associate Prof Roche has misunderstood the effect of the Tribunal finding that a doctor's conduct is significantly below the relevant standard. For example, he said that he would not condemn Dr Sinnathurai for conducting an abdominal examination on an asymptomatic woman who is four and a half weeks pregnant because such conduct is a matter for education, not punishment. A finding of unsatisfactory professional conduct does not put Dr Sinnathurai's registration in jeopardy. This misapprehension as to the significance of the level of criticism he attributes to Dr Sinnathurai has resulted in Associate Prof Roche being less disapproving of Dr Sinnathurai's behaviour than he might otherwise have been.

[7]

Previous complaints

The HCCC put forward evidence about previous complaints against Dr Sinnathurai and his response to those complaints. We are not ruling on those complaints in these proceedings but they are relevant if they show that Dr Sinnathurai knew, before 2019, that legitimate allegations had been made about deficiencies in his clinical practice or communication and he had done nothing to modify his behaviour. Those issues are more relevant to the orders we should make than the objective seriousness of Dr Sinnathurai's conduct. We will outline that evidence below with the intention of taking it into account at the Stage Two hearing.
The Medical Council put the details of several other complaints to Dr Sinnathurai during the hearing under s 150 of the National Law. In 2011 a patient alleged that Dr Sinnathurai provided a misleading medical certificate and refused to discuss amending it when the patient contacted him. Dr Sinnathurai says that the patient was upset because he would not alter the medical certificate without seeing the patient again. That complaint was discontinued.
In 2014 a male patient alleged that Dr Sinnathurai patted him on the back and told him to go and see another doctor. He described Dr Sinnathurai as being "very, very rude". Dr Sinnathurai told the Medical Council that he did not remember this incident but whenever a patient is upset with him, he tries to reflect on the reason that might be the case.
In 2014 a patient requested a referral to a gynaecologist for the removal of an IUD and a pap smear. Dr Sinnathurai told the patient that he could perform both procedures at the medical centre. When the patient declined that offer, she alleges that Dr Sinnathurai became abrupt and told her not to return to see him. Dr Sinnathurai says he has no recollection of this complaint but that he would have refused to write a referral if he thought there was no medical need to do so. His practice was to remove IUDs himself in the surgery.
In 2016 a female patient consulted Dr Sinnathurai complaining of flu-like symptoms. She alleged that he undid her jacket and put his stethoscope under her shirt without telling her what he was doing. This patient also alleged that on an earlier occasion Dr Sinnathurai undid her pants and performed a painful internal examination without letting her know what he was doing. Dr Sinnathurai cannot recall this complaint but says that he would have explained what he was doing before touching the patient's clothing.
In 2017 a female patient alleged that Dr Sinnathurai had pressed on her vagina through a disposable sheet while he removed a lesion from her upper thigh. The patient stated in the complaint that she initially indicated that she would prefer her regular female GP to perform the procedure. We understand that her usual doctor was not available. Dr Sinnathurai assured her that she would be comfortable with him. Dr Sinnathurai says that this is the only complaint that was brought to his attention at the time. His response was that the allegations were completely false and, as far as he is aware, no further action was taken.
These complaints were all discontinued or resolved. Only the 2017 complaint was brought to his attention. His explanation was accepted and the matter was closed. This complaint did not cause Dr Sinnathurai to reflect on his communication style because he thought he had communicated well with the patient. Because the patient followed him into the treatment room, he assumed she had consented to the examination.
While Dr Sinnathurai was aware of some of the complaints, they did not cause him to reflect on his general communication style, although he did say that he changed his communication style after hearing that a patient perceived him as being rude.

[9]

Outline of complaint

Complaint One alleges that Dr Sinnathurai made inappropriate comments, inappropriately examined Patient A's torso for acne and inappropriately conducted a breast examination and an abdominal examination. In Patient A's words, based on passages from her notes and statements as well as her oral evidence, this is what she says happened at the consultation: About 12.30 pm on Saturday 2nd March 2019, I attended the Pitt Street Medical Centre to get a prescription of the contraceptive pill. This was the second time I had been to the Medical Centre for this prescription. The Centre was busy so I opted to see the first available doctor, but I do not have a regular doctor that I see at this Centre. I was wearing a blue waisted denim skirt, yellow coloured V neck t-shirt with short sleeves and camel coloured sandals. He invited me into his office and I took a seat next to his desk. He sat behind the desk. He said: "What's wrong?" I said: "I'm just here to renew my prescription for the contraceptive pill. It's my second time coming here, and I just need a new script." He said: "What pill are you taking?" I said: "I can't remember." He said: "You should always remember what pill you are taking. I will look it up." He turned to his computer and started typing. He said: "The pill you are on is more suited for people with acne. There is a cheaper option if you don't have acne. Do you have acne?" I said: "No, I don't but my face has gotten clearer after taking the pill." He started to examine my face, then he lifted the sleeve of my right arm and looked at my shoulder. He then grabbed the V of my shirt and looked down my shirt. He lifted my left sleeve and looked at my shoulder. Then he lifted the back of my shirt and looked at my back. He said: "No, your back is nice." I felt very uncomfortable because he was looking down my top. I said: "I don't have acne." He said: "Because you don't have acne, you could have a cheaper pill and use that money to buy a dress or something. Do you have breast cancer in the family?" I said: "My mother's sister had breast cancer and died." He said: "It's not immediate then." He provided some statistics on the death rates of breast cancer patients and recommended that I get checked twice a year. He said: "Jump on the scales please." I stood up and got onto some nearby scales. He checked my weight and blood pressure. He said: "You wouldn't want to get fat. I recommend to all my patients, no sugar, bread or potatoes and you will be slimmer. Your weight will change but expect that you will lose weight when you come for your next visit. Do you drink?" I said: "Once every couple of months with a meal." He said: "Good. Don't get drunk because no man likes a drunk woman. It's not attractive to be drunk." He then took my height and then I sat back down in the seat next to his desk. He also sat behind his desk again. He said: "Have you ever had a breast cancer check before?" I felt very uncomfortable at this stage because of the things he was saying to me and he was being intrusive when he looked down my shirt. I felt that he wanted to do a breast check but I just wanted to leave with my script. I said: "Yeah, work do health checks." He said: "Have you ever missed your period?" I said: "Yes, last month (February) because I was stressed." He said: "Why are you stressed?" I said: "Because I had started Uni and that made me stressed." While I was still seated, Dr Sinnathurai asked me if there were any problems with my periods whilst I was on the pill. I told him that I had experienced some pain and cramps. He said "it might have to do with diet, you could be lactose intolerant. It could be stress or something." He did not say anything about examining my abdomen about this issue. He said: "Lie down on the bed." I was confused but I laid down on the bed. He said: "Can you sit up." I sat up and he lifted my shirt and undid my bra and lifted up so my bra sat below my neck and exposed my breasts. He said: "Can you lay down." I lay down on the bed. He then started to massage my right breast with both his hands. He was rubbing my breast in a circular motion. After a couple of minutes, he then grabbed my right hand and started to massage my right breast again. He said: "How does it feel?" I said: "Round and smooth." He said: "If it was like a rock it could be cancer." I felt very uncomfortable and my eyes started to well up because I was scared because I felt that the doctor was rushing me into the check and I did not have the opportunity to consent to the check. He pulled on my nipple and areola and said: "If a woman is pregnant, the lumps in her breast become the size of grapes." As he was holding my nipple and pulling it upwards, he also said words to the effect of "it's like holding a bunch of grapes". His expression was like he was making a joke and he was smiling as he spoke to me. He made me feel as though I was stupid. The way that he spoke to me was not at all professional. He then examined my left breast in the same way that he just examined my right breast. He then started to undo the buttons on the denim skirt I was wearing from my belly button until it exposed my pubic hair. He started to press down on my stomach. I was very confused because he did not tell me what he was doing. I was very scared and just wanted to leave because he did not ask me if I wanted a check but he did it anyways. He said: "Does this hurt?" He then finished examining my stomach. He buttoned up my skirt. He said: "Sit up and I will do up your bra." I felt gross and helpless because I felt that he didn't want me to dress myself, but he wanted to touch me. I sat back up and he did up my bra as he stood in front of me and then pulled down my top. I then sat back down at his desk.
Firstly we will address the comments Dr Sinnathurai made, then the examination of Patient A's torso for acne. After that we will make findings about the breast examination and the abdominal examination.

[25]

Clinically necessary?

The HCCC alleges that Dr Sinnathurai examined Patient A's breasts when it was not clinically necessary to do so. Dr Sinnathurai denies that particular. His usual practice is to perform a breast examination even when a first time patient seeks a renewal of a prescription for the pill. He repeats that examination every six months for existing patients on the pill. He offers a breast examination to all his patients whether they are old enough to be attending for regular mammograms or not.
In the police interview on 1 July 2019, Dr Sinnathurai said that because the pill is associated with an increased risk of breast cancer and is contraindicated when breast cancer is present, he tells patients that it is a good idea to examine their breasts.
Dr Sinnathurai professes to be interested in breast cancer and is firmly of the view that breast examinations are beneficial. The RACGP "Guidelines for preventive activities in general practice" (9th ed) do not support Dr Sinnathurai's understanding of the benefits of breast examinations. At p 109 (par 9.3) they state that: There is insufficient evidence to recommend that clinical breast examination offers any benefits to women, of any age.
The RACGP Guidelines go on to recommend that all women should be familiar with "how their breasts normally look and feel, and promptly report any new or unusual changes… to their GP". The Guidelines only recommend regular clinical breast examination for high-risk patients and not for average or slightly to moderately increased risk. According to Dr Howle, this is one of the major texts used when teaching GPs how to do a breast examination.
Another reason Dr Sinnathurai says he performs breast examinations is because of his experience of detecting breast cancer in his patients. In 2015 a patient complained because she said he missed a breast cancer lump. Dr Sinnathurai refuted the complaint saying that he had done proper annual checks. He said that this complaint did not affect his practice of conducting breast examinations.
During the s 150 hearing before the Medical Council, Dr Sinnathurai said that in October 2016 he picked up that a 26-year-old woman had breast cancer during a routine examination. Dr Howle agrees that previous experiences may make a GP overzealous in checking for breast cancer. Nevertheless, his view was that most practitioners would not consider a breast examination to be necessary when renewing a pill prescription for an 18-year-old woman.
Dr Sinnathurai agrees that Patient A had minimal risk of breast cancer. Nevertheless, his view is that it was clinically necessary to examine her breasts.
The product information for the Levlen oral contraceptive pill advises that the frequency and nature of physical examinations should be based on "established practice guidelines and be adapted to the individual woman but should generally include special reference to blood pressure, breasts, abdomen and pelvic organs, including cervical cytology, and relevant laboratory tests".
Referring to "tumours", the Levlen product information advises that: A meta-analysis from 54 epidemiological studies reported that there is a slightly increased relative risk (RR = 1.24) of having breast cancer diagnosed in women who are currently taking COCs [combined oral contraceptives]… Because breast cancer is rare in women under 40 years of age, the excess number of breast cancer diagnoses in current and recent COC users is small in relation to the overall risk of breast cancer.
Dr Howle agreed that the slightly higher risk of breast cancer is information that should be given to a patient when first prescribing the pill.
In 2007 Jill Thistlethwaite and Rebecca Stewart wrote an article titled "Clinical breast examination for asymptomatic women: Exploring the evidence" reprinted from Australian Family Physician Vol 36, No 3, March 2007. Dr Sinnathurai's lawyer provided the article to the Tribunal but Dr Sinnathurai had never read it. This article is well out of date and is no longer a reliable source of information about current risks and benefits.
Associate Prof Roche knows some older GPs who still conduct breast and abdominal examinations when prescribing the pill because that was part of a "well women check" 30 or 40 years ago. Dr Howle agreed with Associate Prof Roche's observation that some GPs still consider it worthwhile to do a breast examination, but his view is that a breast examination was not clinically indicated or appropriate for Patient A. Unless a patient has specifically complained of breast symptoms and has asked the doctor to check her breasts, the doctor has to have very good clinical reasons for doing so. He referred to two publications: Family Planning NSW, "Fact Sheet: The combined Pill and cancer" and Oxford Medical Education, "Breast Examination" (26 April 2017). Those publications state that it is not helpful to do breast examinations on asymptomatic women when prescribing the pill.
Performing a breast examination on an asymptomatic woman on the pill is not recommended by the relevant Australian guidelines nor is it supported by Associate Prof Roche or Dr Howle. Dr Sinnathurai did not have regard to established practice guidelines when performing that examination. It was not clinically necessary to conduct a breast examination on Patient A in the circumstances of this case. That conduct, by itself, does not amount to unsatisfactory professional conduct. However, for the reasons we give below, it does amount to improper and unethical conduct when viewed in combination with the lack of informed consent, the preparation for the breast examination and the manner in which it was conducted.

[26]

Failure to obtain informed consent

Patient A sensed that Dr Sinnathurai wanted to do a breast check but she felt very uncomfortable after Dr Sinnathurai had examined her torso. When Dr Sinnathurai asked her if she had ever had a breast check before, she said, "Yeah, work do health checks". That was not true. Patient A said that because she did not want Dr Sinnathurai to examine her breasts and thought that if she said she had already had a health check he would not go ahead with the examination. Dr Sinnathurai agreed that Patient A may have said "work do health checks" and that if she had had a recent breast check at work, he would not have done the examination. We find that Patient A did tell Dr Sinnathurai that "work do health checks" in response to his question. Dr Sinnathurai nevertheless decided to perform a breast examination.
Patient A's evidence was that: By the end of all the questioning and measurements he said he always does two breast checks for his female patients a year. Not once did he ask me if I wanted one, if I was okay with it - in my mind I wasn't.
In the police statement, Patient A wrote that while Dr Sinnathurai was examining her breasts, she felt very uncomfortable. Her eyes started to well up because she felt that Dr Sinnathurai was rushing her to get the breast check and that she did not have the opportunity to consent. Dr Sinnathurai says that he did not notice that Patient A had become upset and would have stopped immediately if he had realised. In our view, Dr Sinnathurai was not attuned to Patient A's non-verbal responses.
If there was a good clinical reason for a breast examination, Dr Howle states that the doctor should explain why it was essential and specifically ask for consent to proceed.
Dr Sinnathurai admits that he did not obtain informed consent from Patient A. On the rare occasion when patients have expressed discomfort or unwillingness to be examined, he asks them to see someone they are more comfortable with next time. He will not continue to prescribe the pill to a patient who does not agree to regular breast checks. He says he now understands that he needs to verify the patient's understanding with a clear verbal consent recorded in the notes.

[27]

Preparation for breast examination

These particulars allege that Dr Sinnathurai did not offer Patient A a chaperone or a sheet to cover herself while he performed the breast examination. He lifted her t-shirt and undid her bra, exposing both her breasts instead of asking her to remove her clothes herself.
Dr Sinnathurai admits that he should have offered a chaperone, especially for a new patient. He now offers his patients a chaperone. The Sexual Boundaries Guidelines make the following statement about "observers" at 7.1: A doctor may choose to have an observer present during an intimate examination of a patient or in any consultation. The observer is essentially a witness to the consultation and may be a registered nurse employed in the practice. An observer can provide an account of the consultation if later there is an allegation of improper behaviour. Their presence may also provide a level of comfort to the patient.
In Associate Prof Roche's experience, very few GPs offer a chaperone. Regardless of what happens in practice, Dr Howle's view was that a doctor should always ask a patient on a first visit whether she wants a chaperone for a breast examination.
The Sexual Boundaries Guidelines provide at p 5 that, when conducting a physical examination, good medical practice involves "providing suitable covering during an examination so that the patient is covered as much as possible, to maintain their dignity". Although there was a sheet available, Dr Sinnathurai did not provide a sheet to Patient A to cover her breasts. He now thinks that it would have been a good idea to offer a sheet.
Associate Prof Roche considered it obligatory to provide a modesty sheet for a breast examination and regarded Dr Sinnathurai's conduct in not doing so as significantly below the relevant standard.
Dr Sinnathurai admits that, while Patient A was sitting on the bed, he lifted her t-shirt and undid her bra, exposing both her breasts. He did not remove her bra completely but acknowledges that he should have asked Patient A to remove her upper garments herself. Patient A described what happened after the initial questioning and measurements: I sat up and he lifted my shirt and undid my bra and lifted up so my bra sat below my neck and exposed my breasts.
In the police interview on 1 July 2019, Dr Sinnathurai described what normally happens with his regular patients: My usual patients know their routine. So they are lying down there. They've undid their bra so I go there and if they haven't exposed their breast then I just lift the blouse up and then put the bra above their breast and then we proceed to an examination.
Dr Sinnathurai then described what happens when a patient does not know his usual routine or has never had their breasts checked: … they will just go there and sit on the couch and wait for me to come. Then I go there and I say, "All right. We will need to undo your bra". And because they're sitting there, I just unclip the bra for them. I say, "Would you mind lying down and lifting your blouse", or I lift it up for them, and very often they do it themselves and they pull the bra as soon as they lie down.
The Sexual Boundaries Guidelines state that good medical practice involves "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." Dr Sinnathurai gave evidence that, at the time, he did not realise that he should not touch any items of clothing. He thought he was assisting the patient.
Associate Prof Roche was critical of Dr Sinnathurai for the way he undressed Patient A. He considered that to be significantly below the relevant standard.
Not offering Patient A a chaperone or a sheet and removing her clothing in the way that he did and undressing Patient A to the extent that he did is in breach of those parts of the Sexual Boundaries Guidelines we have identified. This was an intimate examination conducted without Patient A's consent.

[28]

Massaged each breast with both hands ‑ Complaint One, particular 7(d)

This particular alleges that Dr Sinnathurai inappropriately massaged each breast with both hands and rubbed Patient A's breasts in a circular motion. In Patient A's police statement she stated that: I lay down on the bed. He then started to massage my right breast with both his hands he was rubbing my breast in a circular motion.
In oral evidence Patient A confirmed that Dr Sinnathurai had put pressure on each breast with three fingers in a circle. She said she had learned about breast checks in high school and had done an assignment about it, so she knew what to expect.
Dr Sinnathurai denies that it was inappropriate to massage each breast separately with both hands or to rub Patient A's breasts in a circular motion. According to Dr Sinnathurai, Patient A may have thought his gentle pressing was massaging with both hands. Dr Sinnathurai described his usual practice in the following terms: With the patient lying on her back on the examination couch, I examine the patient's breasts one at a time, usually beginning with the right breast. I use the flat side of the four fingers of my right hand to gently examine the breast while using the flat side of the four fingers of my left hand to gently support the opposite quadrant of the breast. I begin the breast examination with the upper inner quadrant of the breast before moving clockwise to cover all four quadrants.
The Medistudents publication "Breast Examination" describes the manner in which to examine each breast: Systematically examine all areas of the breast with your hand laid flat on the breast. Start from outside and work towards the nipple. Imagine that the breast is a clock face and examine at each 'hour'.
In the Oxford Medical Education publication entitled "Breast Examination" (26 April 2016) it is recommended that the breasts be palpated "using the palmar surface of the middle three fingers". Various techniques are described including concentric circles and spiralling outwards from the nipple.

[30]

Pulling nipple upwards and comment about resembling a bunch of grapes

It is then alleged that Dr Sinnathurai inappropriately pulled Patient A's nipples and areola and pulled her nipples upwards. While doing so, it is alleged that he said words to the effect of "it's like holding a bunch of grapes" to describe breast lumps in pregnant women. At the hearing, Patient A demonstrated by holding the tops of her fingers and the thumb of one hand together in a clasping grip and moving her hand upwards. She said Dr Sinnathurai used all his fingers at once to lift up her breast from the nipple.
Dr Sinnathurai denies pulling upwards on Patient A's nipples and areola. When speaking about his usual practice, he stated that: I conclude the examination by using my thumb and index finger to palpate the areola, avoiding the nipple itself. I then examine the left breast using the same technique.
At the hearing, Dr Sinnathurai gave more detailed evidence. He said that he palpates the area beneath the areola and under the nipple to feel for lumps. He repeated that he only uses his thumb and index finger, not his whole hand. He denies pulling on Patient A's nipple and pulling it upwards, but says he may have lifted the areola area up to show Patient A what to look for when examining her own breasts. He concedes that when checking the area under the areola, the nipple might move. However, his evidence is that any contact with the nipple would have been inadvertent. He says he is sensitive to the fact that many women have tenderness in their breasts and he takes particular care to be gentle during examinations.
Dr Sinnathurai says he uses the analogy of a bunch of grapes to explain breast anatomy to all his patients. He admits saying "it's like holding a bunch of grapes" to describe breast lumps in a pregnant woman but denies that he said those words while holding Patient A's nipple and pulling it upwards. He denies saying that while Patient A was lying on the couch.
We find, consistently with Patient A's evidence, that Dr Sinnathurai made the comment when he was pulling her areola upwards with all his fingers and his thumb. We do not find, as suggested in particular 7(f), that Dr Sinnathurai was holding Patient A's nipple and pulling it upwards when he made the comment. Rather, the nipple was encased in Dr Sinnathurai's grip on the areola. This is not precisely how Patient A described what happened but we make that finding because of the way Patient A demonstrated Dr Sinnathurai's grip and the physical difficulty of holding a woman's nipple with all five fingers including the thumb.
The Medistudents publication "Breast Examination" describes examining the nipple: Palpate the nipple and the tissue deep to it to check for any lumps.
Associate Prof Roche's opinion is that the breast examination was "close enough" to reasonable practice. He would not have pulled up on Patient A's breasts but he understands that squeezing a nipple to check for discharge is part of a breast examination. We have found that Dr Sinnathurai did not squeeze Patient A's nipple and was not checking for discharge.
In his reports, Dr Howle is critical of Dr Sinnathurai's examination for being incomplete in some respects and entirely inappropriate in others. His view is that holding a patient's areola and pulling it upwards is not part of a standard breast examination. Dr Sinnathurai's skill and judgment in performing the examination in that way is significantly below the relevant standard.
Clasping Patient A's areola and pulling her breast upward while her nipple was encased in his grip, is not part of a standard breast examination. There is no clinical reason to manipulate a patient's breast in that way. We are satisfied that Dr Sinnathurai did so while demonstrating his point about the breasts of pregnant women looking like a bunch of grapes. Patient A was not pregnant.

[31]

Finding

In addition to the extracts from the Sexual Boundaries Guidelines and the Code of Conduct that we have already cited, the following passage from the Sexual Boundaries Guidelines is relevant: 3.1 Spectrum of behaviours … • conducting a physical examination which is not clinically indicated or when the patient has not consented to it. An unwarranted physical examination may constitute sexual assault or abuse … • A doctor must only conduct a physical examination of a patient when it is clinically indicated and with the patient's informed consent. … Unwarranted physical examinations or inappropriate touching during a consultation and examination may constitute sexual assault.
Even if there had been a clinical need to examine her breasts, Dr Sinnathurai failed to obtain Patient A's informed consent to do so. That failure is made significantly worse because of the intimacy of the examination and the manner in which it was conducted. Dr Sinnathurai did not offer Patient A a chaperone or a modesty sheet. He unclipped her bra himself and re-arranged her clothing. The first part of the examination was conducted in accordance with what could pass as a standard examination. However, Dr Sinnathurai then took advantage of Patient A's vulnerability while lying on the couch with her breasts exposed, to manipulate her areola and nipples while making an irrelevant comment about grapes.
Given each of these findings, the allegations in Complaint One, particulars 5, 6 and 7(a), (b), (c), (e) and (f) are in breach of those parts of the Code of Conduct and the Sexual Boundaries Guidelines we have identified relating to informed consent, intimate physical examinations and dressing and undressing. That conduct, in combination, is "improper" and "unethical": National Law, s 139B(1)(l). We are also satisfied that Dr Sinnathurai's judgment in engaging in that conduct is significantly below the relevant standard: National Law, s 139B(1)(a).
In accordance with the definition in the Sexual Boundaries Guidelines, this conduct also amounts to "sexual abuse or exploitation" if Dr Sinnathurai had done it for sexual purposes or for sexual gratification. Sexual exploitation or abuse in the doctor-patient relationship means a doctor using the power imbalance, knowledge or influence developed in the doctor-patient relationship to abuse or exploit the patient's trust or vulnerability for sexual purposes or sexual gratification including by conducting unwarranted physical examinations.
There is some evidence supporting an inference that Dr Sinnathurai had engaged in this conduct for sexual purposes or sexual gratification. First, he conducted an intimate examination without informed consent and in the absence of a clinical need to do so. Secondly, he partially dressed and undressed Patient A himself. Thirdly, the manner in which he conducted parts of the examination and the comments he made were highly inappropriate and unnecessary. Fourthly, his decision to do a breast examination was said to be based on the risk of breast cancer but he did not obtain details of risk factors such as blood clotting, headaches or sexual activity which may have indicated other underlying diseases. Finally, Patient A was extremely upset during and after this examination, but Dr Sinnathurai did not detect any hesitancy about having the examination.
The evidence against Dr Sinnathurai's motivation being sexual are his denial that that is the case, his strongly held though misguided view that breast examinations in these circumstances are beneficial to women and the alternative explanation that his conduct could plausibly be characterised as merely arrogant, insensitive and ill-informed.
Although Dr Sinnathurai's judgment is significantly below the relevant standard and he crossed many of the sexual boundaries listed in the Sexual Boundaries Guidelines, we are not reasonably satisfied that he was seeking sexual gratification. There is no direct evidence that that was his motivation and there is a plausible alternative explanation based on his character traits.

[34]

Clinically necessary?

Dr Sinnathurai did not record any history or complaints of abdominal tenderness or pain or the fact that he had conducted an abdominal examination. In oral evidence he said that the pill is associated with liver tumours and conducting an abdominal examination is also an opportunistic attempt to see if there are any other obvious masses in the abdomen.
Associate Prof Roche's view was that "many competent GPs" would not perform an abdominal examination at the time of a consultation for the prescription of the pill. However "a number of experienced and competent GPs" would do so. Performing such an examination was not significantly below the relevant standard in his view.
Dr Howle noted that Patient A had not complained of any symptoms that would justify an abdominal examination. Patient A did not describe the examination in any detail, except that he 'pushed down'. In his view, the major reason for performing such an examination is as a screening tool to exclude liver disease. Liver disease is a rare but potentially serious side effect of the pill. As this was the first time Dr Sinnathurai had seen Patient A, checking that she did not have an enlarged liver was reasonable. In Dr Howle's opinion, Dr Sinnathurai's judgment in performing an abdominal examination was below, but not significantly below, the relevant standard.
It was not clinically necessary to conduct an abdominal examination on Patient A in the circumstances of this case. Contrary to Dr Howle's opinion, in our view, the risk of liver disease in an 18-year-old woman who has been taking the pill for 6 months is negligible. Neither that risk, nor the possibility of other masses in the abdomen, provides a clinical justification for an abdominal examination. However, that conduct, by itself, does not amount to unsatisfactory professional conduct. When combined with the lack of informed consent, and the fact that Dr Sinnathurai partially undressed Patient A, it does come within the definitions of unsatisfactory professional conduct in both s 139(1)(a) and (l) of the National Law.

[41]

Outline of complaint

Patient B was 29 years old when she consulted Dr Sinnathurai on 2 March 2019. She had been an intermittent patient of the medical centre where Dr Sinnathurai worked since 2010 but had never consulted Dr Sinnathurai. She had performed a pregnancy test at home on the weekend and went to the centre the following Monday morning to ask for a blood test to confirm the pregnancy. She opted to see the first available doctor. She was expecting a quick visit.
Dr Sinnathurai recorded her weight and told Patient B that she could expect to gain about 12kg during pregnancy. He also recorded her pulse, blood pressure and the date of her last period ‑ 26 March 2019. Patient B does not recall whether Dr Sinnathurai asked her about any previous pregnancies or breast checks. She had never had a breast examination before but said her mother had shown her how to check her breasts herself. She did not report any pain in her abdomen and did not expect Dr Sinnathurai to perform an abdominal examination or a breast examination.
Patient B provided a urine sample. Dr Sinnathurai tested the sample which showed a positive result. He said something like, "it's very light, you're quite early which is about 4 weeks".
Complaint Two relates to the abdominal and breast examinations. In Patient B's words, based on passages from her complaint dated 30 May 2019 and her statement to the HCCC dated 29 November 2019, this is what she says happened at the consultation: I went to the GP for a blood test to confirm my pregnancy. He asked me to lay down on the table and pulled my pants down quite low and he pushed down on my stomach advising he was checking for an ectopic pregnancy (my understanding is that this cannot be confirmed other than by an ultrasound), I also did not advise the Dr that I was having any pain so I did not understand why he was checking for an ectopic pregnancy. At some point during the consultation, Dr Sinnathurai said to me "Get on the bed for me and I'll check a few things". I had never been in that situation before, I sat up on the bed. He asked me "Pull your pants down", I complied and pulled my pants down a little, just to expose my stomach and then laid down on the bed. Dr Sinnathurai walked over and pulled my pants down further, to the top of my vagina. He pulled my underpants down along with my pants. Dr Sinnathurai then started pushing down on my stomach with both of his hands. It was quite hard and I became concerned that he was hurting the baby. As he was pressing down, he said words to the effect of "I'm just checking for an ectopic pregnancy". I had not reported any pains in my stomach. As Dr Sinnathurai continued pushing down on my stomach, he did not ask me any questions or ask me whether the amount of pressure he was applying was hurting me or not. He pressed down around my stomach and all the way down into my pubic bone. I would estimate that he spent about 20 seconds or so pressing down on my stomach. Then he asked me to sit up, he pulled my shirt up and took off my bra. He then asked me to lay back down and he told me he was checking for cysts on my breasts. I did not ask him to do so, I was really confused and shocked because all I wanted was a blood test. I was extremely uncomfortable. The Dr was rubbing my breasts and pressing hard on my nipples. I did not think this was appropriate and did not think what he was doing was for a legitimate purpose and I was really upset at the end of my visit. … I can't recall whether Dr Sinnathurai unclipped my bra or whether he pulled it down but he did remove it as both my breasts were completely exposed. Dr Sinnathurai put his hand on me and started to squeeze and twist my breast. His whole hand covered my breast. I would describe it as cupping my whole breast and then twisting it. He then moved to my nipple, which he twisted quite hard. I found that to be very painful. As he did this he said, "I'm checking for cysts. Do you have a history of breast cancer in your family?" I said, "Yes, my mum had breast cancer." Dr Sinnathurai then did the same thing to my other breast and also twisted the nipple.
Once he had confirmed the pregnancy with a urine test, Dr Sinnathurai decided to do a breast and abdominal examination because he thought it was convenient to do so. Those examinations are sometimes done at the first antenatal visit when the woman is 6-12 weeks pregnant. However, practice varies and these kinds of examinations may not be done at all. Dr Sinnathurai says he did not assume that he would be Patient B's long-term antenatal care provider.
As with the complaint about Patient A, the HCCC alleges that Dr Sinnathurai is guilty of unsatisfactory professional conduct under s 139B(1)(a) and/or (l) of the National Law.

[43]

Clinically necessary?

Dr Sinnathurai performed an abdominal examination in circumstances where the HCCC alleges that it was not clinically necessary to do so. Patient B had not complained of abdominal symptoms and had not requested an abdominal examination.
Dr Sinnathurai denies that the abdominal examination was not clinically necessary. He says that the purpose behind the examination was to establish if there were any abnormal palpable masses or lower abdominal tenderness that might indicate an ectopic pregnancy or ovarian cysts. He said that he would have said, "Let's do an abdominal exam to see if we can pick up any abnormalities". Then Patient B would have said, "Like?" and he would have said "ectopic pregnancy".
We do not accept Dr Sinnathurai's version of this conversation because Dr Sinnathurai has no independent recollection of what he said and Patient B's version is consistent with the text message she sent to her husband shortly after the consultation: He told me to lay down and he was pressing down on my stomach to check for an ectopic pregnancy (that's when an egg gets stuck in the fallopian tube). It's painful but I didn't say I had any pain and you check through ultrasound. Anyway he pulled my pants down slightly and was pressing down.
Dr Sinnathurai says he now realises that it is not possible to diagnose an ectopic pregnancy by examining a patient's abdomen at four and a half weeks gestation.
Associate Prof Roche's view is that "many competent GPs would have performed an abdominal examination in such circumstances regardless of the absence of complaints of abdominal pain…". He was only mildly disapproving of Dr Sinnathurai's conduct because the risk of ectopic pregnancy was a reasonable clinical justification for performing the examination. When questioned about this opinion Associate Prof Roche agreed that at four and a half weeks pregnancy, with no symptoms, a doctor would have to perform a bi-manual internal examination to have any chance of detecting an ectopic pregnancy.
According to Dr Howle, checking for lower abdominal tenderness in a patient with no pain or bleeding would be unlikely to diagnose an ectopic pregnancy or an ovarian cyst. He said you cannot "feel" an ectopic pregnancy by pressing down with your hands. The harder you press the more difficult it is to feel things like cysts.
An abdominal examination is not clinically indicated at a consultation to confirm pregnancy. An abdominal check may be carried out at the first antenatal visit to see how far along the pregnancy is and to check for an enlarged liver or any other abnormal masses. However, that conduct, by itself, does not amount to unsatisfactory professional conduct. When combined with the lack of informed consent, the failure to adequately explain what he was doing and the manner in which it was conducted, it does come within the definitions of unsatisfactory professional conduct in both s 139(1)(a) and (l) of the National Law.

[44]

Absence of informed consent and inadequate explanation

These particulars are that Dr Sinnathurai did not obtain adequate informed consent or adequately explain to Patient B the clinical reasons for performing an abdominal examination. Dr Sinnathurai admits these particulars.
The Code of Conduct provides that good medical practice includes: 3.3.3 Informing patients of the nature of, and need for, all aspects of their clinical management, including examination and investigations, and giving them adequate opportunity to question or refuse intervention and treatment. … 3.5.2 Obtaining informed consent or other valid authority before you undertake any examination, investigation or provide treatment (except in an emergency), or before involving patients in teaching or research.
The Sexual Boundaries Guidelines define "informed consent" in similar terms: Informed consent means a person's voluntary decision about medical care that is made with knowledge and understanding of the benefits and risks involved. Good medical practice includes: a) providing information to patients in a way that they can understand before asking for their consent; b) obtaining informed consent or other valid authority before you undertake any examination, investigation or provide treatment (except in an emergency) or before involving patients in teaching or research.
Dr Sinnathurai thinks that he would have told Patient B that the guidelines are to do an abdominal check and a breast check. He would have assumed that Patient B knew that he was going to do those examinations. Patient B's version is that Dr Sinnathurai asked her to get on to the examination bed so that he could check a few things. Patient B did not know what he wanted to check and denies that he asked her if he could check her abdomen or her breasts. In circumstances where Patient B definitively denies that Dr Sinnathurai made either of those requests, and Dr Sinnathurai has no independent recollection, we find that he did not do so.
As he was examining her abdomen, Dr Sinnathurai told Patient B that he was checking for an ectopic pregnancy. That is a belated and inadequate explanation of what he was doing.
Associate Prof Roche's view was that Dr Sinnathurai's knowledge or judgment is not significantly below the relevant standard because an abdominal examination when clothed is much less intimate than a breast examination. While the degree of intimacy is a relevant factor, we find that Dr Sinnathurai did not adequately explain to Patient B the clinical reasons for performing an abdominal examination nor did he obtain informed consent. In combination with the other particulars, this conduct amounts to unsatisfactory professional conduct as defined in s 139B(1)(a) and (l) of the National Law.

[45]

Inappropriate abdominal examination

These allegations are that Dr Sinnathurai pulled Patient B's pants and underwear further down to "the top of her vagina" instead of requesting that Patient B adjust her clothing herself. Dr Sinnathurai is alleged to have "pushed quite hard down on Patient B's stomach to her pubic bone with both hands and said words to the effect of 'I'm just checking for an ectopic pregnancy'". That part of the examination lasted about 20 seconds. Patient B said she was worried because of the pressure that he would hurt the baby.
Patient B was sitting on the bed when Dr Sinnathurai asked her to pull her pants down. She pulled them down a little to expose her stomach and then lay down on the bed. She said that Dr Sinnathurai walked over and pulled her pants and her underpants down to the top of her vagina. In cross examination, Patient B agreed with the proposition that he pulled down her pants to the top of her hip bone.
Dr Sinnathurai's evidence is that he would have asked Patient B to lower her clothing to her hips so that the entire abdomen from her ribs margin to her hips was exposed above the pubic area. He does not agree that he pulled Patient B's pants down to the top of her vagina. Given Dr Sinnathurai's evidence and Patient B's clarification, we find that "to the top of her hip bone" is a more accurate description than the top of her vagina.
Dr Sinnathurai admits pushing down quite hard on Patient B's stomach with one hand over the other, but says that he would not have pressed any harder than he needed to. He accepts that Patient B may have perceived that he was pushing quite hard. He says he would have palpated her abdomen with the flat side of the four fingers of his right hand and/or with his left hand cupped over his right hand.
Associate Prof Roche did not consider this form of palpation to be necessary to exclude an ectopic pregnancy, nor did he think it was likely to diagnose most ovarian cysts. He nevertheless expressed the view that there are acceptable indications for a firm examination in early pregnancy.

[49]

Clinically necessary?

Dr Sinnathurai denies that the breast examination was not clinically necessary. Dr Sinnathurai's understanding is that breast cancer in pregnancy has a worse prognosis than in non-pregnant women. The best time to examine for a patient is in the early stages of pregnancy.
Patient B had not complained of breast symptoms and had not requested a breast examination. Dr Sinnathurai gave oral evidence that he would have known that Patient B had a family history of breast cancer because another practitioner had recorded that fact on 30 July 2018. Dr Sinnathurai says that he would have asked Patient B about her family history of breast cancer before examining her. Patient B does not recall Dr Sinnathurai saying that as her mother had breast cancer it was important to exclude it at the beginning of her pregnancy. Nor does she recall him saying that cancer may be harder to detect later in pregnancy. We prefer Patient B's evidence over Dr Sinnathurai's evidence as to what his usual practice would have been. We accept Patient B's evidence that Dr Sinnathurai did not ask her about any history of breast cancer until he was actually examining her breasts. It was at that point that Patient B told him that her mother had breast cancer.
Associate Prof Roche's view is that this breast examination in the context of a pregnancy test was unnecessary and therefore inappropriate. However, because he is dedicated to the early detection of breast cancer, Associate Prof Roche considers Dr Sinnathurai's judgment to be below, but not significantly below, the relevant standard.
Dr Howle's view was that, in the circumstances as we have found them to be, it was not appropriate for Dr Sinnathurai to insist on conducting a breast examination.
We find that it was not clinically necessary to conduct a breast examination in circumstances where Patient B was attending for a pregnancy test, had not complained of any breast symptoms and had not requested a breast examination.
That conduct, by itself, does not amount to unsatisfactory professional conduct. However, for the reasons we give below, it does come within the definitions in both s 139(1)(a) and (l) of the National Law when viewed in combination with the high degree of intimacy of this examination, the lack of informed consent and the manner in which it was conducted.

[52]

Squeezed and twisted breasts and twisted each nipple

These particulars are that Dr Sinnathurai inappropriately squeezed and twisted each breast with his whole hand covering and cupping the breasts; inappropriately twisted each nipple hard; conducted the breast examination for a period of time that was not clinically warranted and did not wear gloves. Dr Sinnathurai denies these particulars. He admits that he was not wearing gloves but denies that that was inappropriate.
We repeat here the description of the breast examination that Patient B gave in her statement of 29 November 2019: Dr Sinnathurai put his hand on me and started to squeeze and twist my breast. His whole hand covered my breast. I would describe it as cupping my whole breast and then twisting it. He then moved to my nipple, which he twisted quite hard. I found that to be very painful. As he did this he said, "I'm checking for cysts. Do you have a history of breast cancer in your family?" I said, "Yes, my mum had breast cancer." Dr Sinnathurai then did the same thing to my other breast and also twisted the nipple. At no point did he ask me to change the positioning of my arms.
Dr Sinnathurai denies twisting Patient B's nipple. He says that that is not part of the examination. There is no reason to touch the nipple, but tumours can develop under the areola. He says he squeezes the areola a little bit to palpate any obvious lumps.
Associate Prof Roche's view was that it is a normal part of such an examination to squeeze the areola to check for any discharge. The Medistudents "Breast Examination" guidelines attached to Dr Howle's statement say that if a patient has reported a discharge the doctor should ask the patient to try to reproduce that discharge. Nowhere in any of the material before us is it suggested that the doctor should squeeze the nipple, or the areola, to check for discharge. Associate Prof Roche acknowledged that he would not squeeze the nipple and that if it was "a firm rotational twist" then that is well outside the relevant standard.
Dr Howle's view is that the "twisting" allegations are quite unusual. He considered this part of the examination to be significantly below the relevant standard.
These are not standard ways to examine a person's breasts. Dr Sinnathurai denies these particulars but has no recollection of this particular consultation. Patient B's evidence was precise, consistent and unshaken. Her evidence is reliable. In accordance with that evidence, we are satisfied that Dr Sinnathurai inappropriately squeezed and twisted each breast with his whole hand, covering and cupping the breasts. He also inappropriately twisted each nipple hard.
There was no evidence about how long this part of the examination took. For that reason, we are not satisfied that even if the examination was clinically necessary, it took more time than it should have taken. Dr Sinnathurai admits not wearing gloves during the examination but says that it was not necessary for him to do so. The HCCC submitted that he should have been wearing gloves because he was twisting Patient B's nipple. There was no evidence given to support that proposition and we find this particular not to have been proven.

[53]

Finding

A breast examination is sometimes undertaken at the first ante-natal visit to check the breasts for things like lumpiness or an inverted nipple, before they start to change size. This was not an antenatal visit and Dr Sinnathurai's dedication to detecting breast cancer is not a mitigating factor.
Even if there had been a clinical need to examine her breasts, Dr Sinnathurai failed to obtain Patient B's informed consent to do so. That failure is made significantly worse because of the intimacy of the examination and the manner in which it was conducted. Dr Sinnathurai did not offer Patient B a chaperone or a modesty sheet. He moved Patient B's bra himself and re-arranged her clothing so that her breasts were exposed. Dr Sinnathurai then took advantage of Patient B's vulnerability while lying on the couch with her breasts exposed, to inappropriately squeeze and twist each breast with his whole hand, covering and cupping the breasts. He also inappropriately twisted each nipple hard. Patient B was really confused and shocked because all she wanted was a blood test.
This conduct is in breach of those parts of the Code of Practice and the Sexual Boundaries Guidelines we have identified relating to informed consent, intimate physical examinations and dressing and undressing. In relation to Complaint Two, particulars 1, 2, 3, 4(a) (except that "vagina" should be "hip bone"), 4(b), 5, 7(a), (b), (c), (d) and (e) in combination, we are satisfied that Dr Sinnathurai's judgment is significantly below the relevant standard and that his behaviour is "improper" and "unethical": National Law, s 139B(1)(a) and (l).
In accordance with the definition in the Sexual Boundaries Guidelines, this conduct also amounts to "sexual abuse or exploitation" if Dr Sinnathurai had done it for sexual purposes or for sexual gratification. For essentially the same reasons we have already given in relation to the breast examination, we are not reasonably satisfied that he was seeking sexual gratification.

[55]

Inadequate medical records for Patient A and Patient B - Complaint Three, particulars 1 and 2

Complaint Three is that Dr Sinnathurai failed to document information known to him relevant to both patients' diagnosis and treatment. The HCCC alleges that Dr Sinnathurai is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law: 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 - … (b) Contravention of this Law or regulations A contravention by the practitioner (whether by act or omission) of a provision of this Law, or the regulations under this Law or under the NSW regulations, whether or not the practitioner has been prosecuted for or convicted of an offence in respect of the contravention.
Under Sch 4, cl 1(2)(a) of the Health Practitioner Regulation (New South Wales) Regulation 2016 (NSW): 1 Information to be included in record … (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 state, the results of any tests performed on the patient and information concerning allergies or other factors that may require special consideration when treating the patient), …
In relation to Patient A it is alleged that Dr Sinnathurai: failed to include sufficient information about her medical history; failed to record that he had conducted an abdominal examination; failed to record the reason for conducting a breast examination and failed to explain his finding of "breasts lumpy".
For Patient A's records, Dr Howle noted that Dr Sinnathurai had not written down a complete medical history such as how long she had been on the pill, which pill she had been taking, any side effects and menstrual history. He had conducted an abdominal examination without making any record of that examination. Dr Sinnathurai did not record a reason for doing the breast examination nor did he record that he had explained to Patient A his finding of "breasts lumpy". Dr Howle's opinion was that overall the clinical notes contravene Sch 4, cl 1(2)(a) of the Health Practitioner Regulation (New South Wales) Regulation.
Dr Sinnathurai admits this particular and we find it to have been proved.
For Patient B the allegations are that Dr Sinnathurai failed to record that he had conducted an abdominal examination or that he had found cysts on her breasts; failed to discuss with Patient B whether she wished to continue the pregnancy; and failed to discuss with Patient B whether she would be happy for him to look after her during the antenatal period.
Dr Howle notes that Dr Sinnathurai did not record a history of any presenting symptoms, current medication, past history, social history or immunisations. The examination gives some physical findings but does not record abdominal examinations. There is no record of any discussion about whether Patient B wished to continue the pregnancy. Dr Howle's opinion was that overall the clinical notes contravene Sch 4, cl 1(2)(a) of the Health Practitioner Regulation (New South Wales) Regulation.
Dr Sinnathurai admits this particular and we find it to have been proved. Dr Sinnathurai is guilty of unsatisfactory professional conduct under s 139B(1)(b) of the National Law.

[56]

Professional misconduct

Complaint Four is that Complaints One, Two and Three, either individually or cumulatively, mean that Dr Sinnathurai is guilty of professional misconduct. Basten JA explained the concept of professional misconduct in Health Care Complaints Commission v Chen [2017] NSWCA 186 at [20]: There is no category of unsatisfactory professional conduct which is not capable, depending on the circumstances, of giving rise to professional misconduct and hence engaging the power of either suspension or cancellation of registration. The only requirement is that it be "sufficiently serious" to justify such an order, a characterisation which must depend upon an evaluative judgment made by the Tribunal. Some, perhaps all, categories include conduct which may reveal a defect of character as to which the Tribunal may conclude that the person should not be allowed to practise his or her profession unless at some future date the practitioner is able to satisfy the Tribunal that the defect has been overcome.
The following points are taken from the cases of Pillai v Messiter (No 2) (1989) 16 NSWLR 197 at 200; Health Care Complaints Commission v Dr Denise Perroux [2011] NSWDC 99 at [18]-[24] and Health Care Complaints Commission v Dr Maendel [2013] NSWMT 3: 1. the essential task in determining whether relevant conduct is professional misconduct is the characterisation of it; 2. the characterisation requires a focus on the nature of the conduct in terms of its seriousness and not its consequences; 3. the seriousness of unsatisfactory professional conduct depends on the extent to which it departs from proper standards, though additional considerations are relevant to determining outcome, principally the need to protect the health and safety of the public; 4. the characterisation of conduct is not to be determined by working backwards from a view that the Tribunal does or does not ultimately wish to suspend or cancel a respondent's registration. Rather, the characterisation of the conduct must come first; 5. to constitute professional misconduct, the relevant conduct must be found to have the capacity to justify an order for suspension or cancellation of registration, though that does not necessarily mean that such an order should be made in a particular case; and 6. "misconduct in a professional respect" (although that language is no longer used under s 139E of the National Law) means conduct that incurs the strong reprobation of colleagues of good repute and competence.
As the Court of Appeal stated in Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264: Female patients entrust themselves to doctors, male and female, for medical examinations and treatment which may require intimate physical contact which they would not otherwise accept from the doctor. The standards of the profession oblige doctors to use the opportunities afforded them for such contact for proper therapeutic purposes and not otherwise. This is the standard that the public in general and female patients in particular expect from their doctors, and which right thinking members of the profession observe, and expect their colleagues to observe.
Complaint Three, which relates to Dr Sinnathurai's record keeping, is not sufficiently serious, either by itself or in combination with Complaints One and Two, to amount to professional misconduct.
Dr Sinnathurai submitted that although the conduct in Complaints One and Two is "below standard", it was motivated by a desire to properly care for patients and does not amount to professional misconduct. It was not a deliberate departure from the relevant standard and does not "portray indifference [or] an abuse of the privileges associated with registration as a medical practitioner": Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Kirby P at 200.
Dr Sinnathurai's motivation is a factor we can take into account in assessing the overall degree of seriousness of his conduct, but it is not decisive. We have found that he was not motivated by sexual gratification. Nevertheless, he has breached sexual boundaries in several respects. That conduct is both improper and unethical. If his motivation was to properly care for his patients, then he should have armed himself with the clinical knowledge and expertise necessary for him to do so. Even if these examinations had been justified, he performed them in an arrogant and insensitive manner.
The inappropriate comments, including the comments that "no man likes a drunk woman" and "it's not attractive to be drunk" are at the lower end of the spectrum of seriousness. On their own, they do not amount to professional misconduct.
The visual examination of Patient A's torso made her very uncomfortable. That examination is more serious than the comments because it involved an intimate examination, but it was still towards the lower end of the spectrum of seriousness. It does not, by itself, amount to professional misconduct.
The abdominal examinations of Patient A and Patient B are more serious because they involved pulling down the patients' clothing, in one case exposing pubic hair, and carrying out an unnecessary physical examination without consent. Because they were intimate examinations, they fall towards the middle of the spectrum of seriousness. By themselves, they do not amount to professional misconduct.
Both breast examinations involved manipulating a patient's nipple for an unknown, but non-clinical purpose without consent. For Patient A, the "bunch of grapes" comment made this manipulation even more demeaning. Dr Sinnathurai denied that he performed these manipulations but we have found that he did so. There are no mitigating factors. Dr Sinnathurai partially undressed and dressed these patients and did not offer a chaperone or even give them a sheet to cover themselves. While not meeting the definition of "sexual abuse or exploitation" or "sexual assault", which are at the highest end of the spectrum, these examinations involved a very significant departure from the standards of ethical practice.
The proven particulars in relation to the breast examinations for Patient A and Patient B, individually or in combination, amount to professional misconduct. For Complaint One, these are particulars 5, 6, 7(a), (b), (c), (e), (f) and 12. For Complaint Two, they are particulars 5, 6, 7(a), (b), (c), (d) (e) and 9.

Health Care Complaints Commission v Sinnathurai

At a glance

Court

Decision date

Source

Judgment (59 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (13)

Cited By (4)