Health Care Complaints Commission v Sinnathurai

NCAT Occupational|2021-10-05

Overview

In an earlier decision we found that Dr Sinnathurai had crossed sexual boundaries and failed to obtain informed consent when conducting breast and abdominal examinations on two female patients. We found that Dr Sinnathurai was not motivated by sexual gratification, but that he was arrogant, insensitive and ill-informed. Having found Dr Sinnathurai guilty of professional misconduct, we have power to suspend or cancel his registration although we are not obliged to do so: Health Practitioner Regulation National Law (NSW) (National Law), s 149C(1)(b). These reasons concern the orders we should make.
Dr Sinnathurai has worked as a general practitioner since 1982. He is currently working at Crane Road Medical Centre in Castle Hill, a suburb of Sydney. He finds the work satisfying and the patient load manageable. He says he gets on well with his colleagues and the atmosphere is supportive. If he is permitted to continue working as a medical practitioner, he hopes to continue working for as long as he remains in good health. At the time of the hearing he was 71 years old.
In these reasons we will summarise the allegations against Dr Sinnathurai, the findings we made in the stage 1 hearing and the legal principles relevant when determining the orders we should make. The degree to which Dr Sinnathurai remains a risk to the health and safety of future patients is something about which we can only speculate. Relevant considerations are the seriousness of the conduct, his self-awareness before receiving the complaints, the degree to which he accepts the Tribunal's findings, his conduct under supervision, the extent to which his practice has changed, the insight he has into his past conduct and his overall character. Protecting the health and safety of the public may also require that we take into account the need to deter others from similar behaviour and uphold confidence in the standards of the medical profession.
Before considering those matters, we outline below the conditions the Medical Council of NSW placed on his registration and the interim condition imposed by the Tribunal.

Current conditions

At a s 150 Inquiry on 4 September 2019, the Medical Council of NSW imposed practice conditions on Dr Sinnathurai's registration. One of those conditions was a Category C supervision condition which requires Dr Sinnathurai to meet with his supervisor once a month. His supervisor is to observe four consultations with patients and discuss Dr Sinnathurai's practice particularly in relation to medical records, communication and obtaining consent. Since the condition was imposed, Dr Sinnathurai has had three supervisors: Dr Harold Pope (until May 2020), Dr Jameel Khan (who supervised him on only one occasion) and his current supervisor, Dr Chaminda DeSilva.
Dr Sinnathurai is also required to practise no more than 45 hours a week and to treat no more than four patients an hour.

Interim condition on registration

After the Tribunal hearing, but before final submissions were made, the Health Care Complaints Commission (the Commission) applied for Dr Sinnathurai's registration to be temporarily suspended or for a condition to be put on his registration that he not see female patients, pursuant to the National Law, s 165L. We decided to make Dr Sinnathurai's registration subject to a narrower condition that he not conduct breast examinations on asymptomatic women, until we make final orders.

Orders sought by the Commission and by Dr Sinnathurai

The Commission seeks cancellation of Dr Sinnathurai's registration and a proviso that an application for review of that order not be made for four years: National Law, s 149C(7). The Commission also seeks an order prohibiting Dr Sinnathurai from providing any kind of health service as defined in s 4 of the Health Care Complaints Act 1993 (NSW), during any period of cancellation.
Dr Sinnathurai submits that his registration should not be cancelled or suspended and that the public interest will be sufficiently protected by making his registration subject to the following conditions: 1. To practise no more than 45 hours per week. 2. To practise under Category C supervision in accordance with the Medical Council of NSW's Compliance Policy, without the need for the supervisor to sit in with Dr Sinnathurai on consultations. 3. To conduct breast examinations in accordance with the RACGP guidelines relating to prevention and early detection of breast cancer. 4. To authorise and consent to any exchange of information between the Medical Council of NSW and Medicare Australia for the purpose of monitoring compliance with these conditions. 5. The Medical Council of NSW to be the appropriate review body with respect to conditions imposed.
Dr Sinnathurai asks that the Tribunal consider removing the current restriction that he see no more than four patients an hour. If that condition is removed, he would be able to participate in the program to vaccinate patients against Covid 19.

The complaints, Dr Sinnathurai's admissions and denials and the Tribunal's findings

The complaints and Dr Sinnathurai's admissions and denials

Dr Sinnathurai does not remember Patient A or Patient B and was relying on his standard practice when he gave evidence at the stage 1 hearing. He admitted many of the factual allegations, but denied others including the most serious allegations about the way he had conducted the breast examinations. His evidence was that he had conducted those examinations in accordance with the relevant guidelines.
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 denied that there was no clinical need to conduct these examinations, but admitted that he did so without adequately explaining to Patient A what he was doing or asking her if she agreed. Dr Sinnathurai made comments and partially undressed and dressed Patient A himself, including unclipping her bra. The most serious allegation, which Dr Sinnathurai denied, was that during the breast examination he pulled on Patient A's nipples and pulled upwards 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 admitted that he conducted a breast examination and an abdominal examination without her informed consent, but denied that these examinations were not clinically necessary. Dr Sinnathurai also denied 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.

Tribunal's findings

We accept the following summary of the Tribunal's findings in Health Care Complaints Commission v Sinnathurai [2021] NSWCATOD 102 (the stage 1 decision), set out by the Commission in their written submissions: "(i) Complaint 4 of professional misconduct: Complaint 1, particulars 5, 6, 7(a), (b), (c), (e), (f) and 12 amount to professional misconduct individually or in combination in relation to the breast examination for Patient A; (ii) Complaint 4 of professional misconduct: Complaint 2, particulars 5, 6, 7(a), (b), (c), (d), (e) and 9 amounted to professional misconduct individually or in combination in relation to the breast examination for Patient B; (iii) Complaint 1, particular 3(b) did not amount to improper or unethical conduct within the meaning of s139B(1)(l) of the National Law but the Tribunal found that the comment 'was not appropriate and could easily have been misinterpreted, we are not satisfied that he was making a suggestive comment or a sexual remark'; (iv) Complaint 1, particular 4(a): 'A remark which suggests that a young female patient may wish to spend money on an item of clothing associated with enhancing her appearance is a sexual remark and breaches the Sexual Boundaries Guidelines'; (v) Complaint 1, particular 4(b) the Tribunal found 'A remark which suggests that a young female patient would not want to get fat or which creates an expectation that she will lose weight before the next visit, is a sexual remark and breaches the Sexual Boundaries Guidelines'; (vi) Complaint 1, particular 4(c) the Tribunal found 'A remark about how unattractive women are to men if they get drunk is a sexual remark and breaches the Sexual Boundaries Guidelines'; (vii) Complaint 1, particular 4(a), (b) and (c) the Tribunal found 'Making three sexual remarks to Patient A during the consultation constitutes a pattern of behaviour. That behaviour exploited the power and balance [sic - imbalance] between Dr Sinnathurai and Patient A. It undermined her trust, and the public's confidence, in the medical profession. While making these remarks is at the lower end of the spectrum of breaches of sexual boundaries, it nevertheless amounts to "improper" and "unethical" conduct. By definition, that conduct is unsatisfactory professional conduct'; (viii) Complaint 1, particular 3(a) the Tribunal found 'Dr Sinnathurai's decision to examine Patient A's torso when it was not clinically indicated in combination with the fact that he did not obtain Patient A's informed consent and did not conduct the examination in an appropriate manner, is a breach of these Guidelines [Sexual Boundaries Guidelines]'. The Tribunal found that this amounted to improper and unethical behaviour pursuant to s139B(1)(l); (ix) Complaint 1, particular 7(d) the Tribunal found that this conduct did not amount to unsatisfactory professional conduct under s139B(1)(a) or (l) of the National Law; (x) Complaint 1, particular 12 the Tribunal found that Complaint 1, particulars 5, 6 and 7(a), (b), (c), (e) and (f) were in breach of the Code of Conduct and the Sexual Boundaries Guidelines in relation to informed consent, intimate physical examinations and dressing and undressing and this amounts to unsatisfactory professional conduct pursuant to both s139B(1)(a) and (l); (xi) in relation to whether the Respondent's conduct was sexually motivated for Patient A the Tribunal found at [126] and[127] as follows: '[126] 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. [127] Although Dr Sinnathurai's judgement 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.' (xii) Complaint 1, particulars 8, 9, 10 and 11 the Tribunal found in relation to the abdominal examination conducted on Patient A that the lack of informed consent and the fact that the Respondent partially undressed Patient A amounted to unsatisfactory professional conduct pursuant to both s139B(1)(a) and (l) of the National Law; (xiii) Complaint 2, particulars 1 to 4 the Tribunal found that the lack of informed consent, the failure to adequately explain what he was doing and the manner in which the abdominal examination for Patient B was conducted by the Respondent amounted to unsatisfactory professional conduct pursuant to s139B(1)(a) and (l) of the National Law; (xiv) Complaint 2, particulars 1, 2, 3 and 4 were found proven, other than the reference to 'vagina' should be a reference to 'hipbone'. The conduct was found to be unsatisfactory professional conduct pursuant to s139B(1)(a) and (l) of the National Law; (xv) Complaint 2, particulars 5, 6, and 7 other than (g) when viewed in combination with the high degree of intimacy of the examination, the lack of informed consent and the manner in which it was conducted amounted to unsatisfactory professional conduct pursuant to s139B(1)(a) and (l); (xvi) Complaint 2, particular 9 the Tribunal found that Complaint 2, particulars 1, 2, 3, 4(a) (except that 'vagina' should be 'hipbone'), 4(b), 5, 7(a), (b), (c), (d) and (e) breached the Code of Practice and Sexual Boundaries Guidelines relating to informed consent, intimate physical examinations and dressing and undressing and in combination amounted to unsatisfactory professional conduct pursuant to s139B(1)(a) and (l); (xvii) in relation to whether the Respondent's conduct was sexually motivated for Patient B the Tribunal found at [170] and [194] for similar reasons to Patient A, the conduct was not sexually motivated; (xviii) Complaint 3 in relation to the Respondent's medical notes was found proven and amounts to unsatisfactory professional conduct under s139B(1)(b) of the National Law."

Legal principles when determining the orders the Tribunal should make

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 legislation also provides that "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": National Law, s 3(3)(c).
However, protecting the health and safety of the public is not confined to protecting future patients from the risk of harm. The Tribunal can also take into account matters such as the maintenance of standards and the general standing of the profession. In Health Care Complaints Commission v Do [2014] NSWCA 307 at [35] Meagher JA (Basten JA and Emmett JA agreeing) held that: "The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise."
The Commission also sought a prohibition order: National Law, s 149C(5). If we decide to suspend or cancel Dr Sinnathurai's registration, we can also make a prohibition order if we are satisfied that Dr Sinnathurai "poses a substantial risk to the health of members of the public". Section 149C(5)(a) provides that: (5) If the Tribunal suspends or cancels a registered health practitioner's or student's registration and it is satisfied the person poses a substantial risk to the health of members of the public, it may by order (a "prohibition order" ) do any one or more of the following-- (a) prohibit the person from providing health services or specified health services for the period specified in the order or permanently; . . .
A "health service" is defined in s 5 of the National Law to include the following services, whether provided as public or private services: (a) services provided by registered health practitioners; (b) hospital services; (c) mental health services; (d) pharmaceutical services; (e) ambulance services; (f) community health services; (g) health education services; (h) welfare services necessary to implement any services referred to in paragraphs (a) to (g); (i) services provided by dietitians, masseurs, naturopaths, social workers, speech pathologists, audiologists or audiometrists; (j) pathology services.
The Commission submits that Dr Sinnathurai poses a substantial risk to the health of members of the public if he were to provide health services. The Commission submits that it would be appropriate for the Tribunal to make a prohibition order for any period during which Dr Sinnathurai's registration is suspended or cancelled.
The Tribunal discussed the meaning of "substantial risk" in Health Care Complaints Commission v Menz (No 2) [2017] NSWCATOD 172. We adopt the Tribunal's interpretation of this phrase at [19]: "Given the context in which it is used, the word "substantial" in our view should be interpreted to mean a risk that is real and material. It is implicit from the terms of s 149C(5) that the question of whether a person poses a substantial risk to the health of the public must be assessed by evaluating the risk posed to the public if the person were to be involved in the provision of health services."

Extent to which there is a risk of harm to the health and safety of future patients

Seriousness of conduct

The Commission submits that the Tribunal should find that Dr Sinnathurai's conduct was of an objectively serious nature, particularly in relation to the breast examinations that he performed on Patients A and B.
Dr Sinnathurai conducted breast examinations on Patient A and Patient B without obtaining informed consent and then manipulated both patients' nipples in a non-clinical manner. He crossed sexual boundaries in the remarks he made to Patient A and partially undressed and dressed Patient A himself. His motivation was not sexual gratification. We accept that his decisions to examine Patient A's and Patient B's breasts were motivated by a misguided desire to screen for breast cancers. He gave evidence, which was corroborated by three patients, that he had experience of patients with asymptomatic breast cancer and he was concerned not to miss a diagnosis.
As we found in the stage 1 decision, 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.

Self-awareness before receiving complaints

Before receiving the initial complaint, Dr Sinnathurai thought he had provided Patients A and B with an appropriate level of medical care. He says he was not fully aware of the standards expected of him when performing intimate examinations and obtaining appropriate consent. Dr Sinnathurai acknowledges that after a long time in practice with a very loyal and consistent patient base, he had become complacent in his interactions with patients.
In the stage 1 decision we outlined the history of previous complaints against Dr Sinnathurai and his response to those complaints. The complaints were all discontinued or resolved. Only one complaint made in 2017 was brought to his attention at the time. Dr Sinnathurai says that his explanation of what happened was accepted and the matter was closed. That complaint did not cause Dr Sinnathurai to reflect on his communication style because he thought he had communicated well with the patient. When Dr Sinnathurai found out about a complaint where a patient perceived him as being rude, he says he changed his communication style. Dr Sinnathurai's responses to previous complaints do not assist us in determining the likelihood that he will modify his behaviour in the future.

Acceptance of Tribunal's findings and insight into his past conduct

Dr Sinnathurai says he now understands that both Patient A and Patient B were very upset during and after the consultations. He says he was horrified to realise the errors he had made. He has reflected deeply on the conduct that led to these complaints and accepts that he needs to change his practice. Both his Category C supervisor Dr Chaminda DeSilva, and his friend and fellow GP Dr Patrick Tan, gave evidence that Dr Sinnathurai had expressed his remorse to them.
Dr Sinnathurai says that he has read the Tribunal's stage 1 decision and accepts the findings. However, on closer questioning, it became apparent that he did not agree with some of the Tribunal's findings. At [213] of the stage 1 decision, the Tribunal found that: "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."
Dr Sinnathurai continues to maintain that it is not his normal practice to manipulate a patient's nipple, although he appreciates that the patients may have perceived that he did so. His understanding is that Patient A did not know what to expect from a breast examination because she had not had one before. He did not understand either Patient A or Patient B to have been complaining that he did not conduct the examination properly. That is not quite right. The complaint did allege 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. Despite Dr Sinnathurai saying that he avoided the nipple when conducting these kinds of examination, the Tribunal made the following finding at [116]: "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."
Dr Sinnathurai considers that his practice has greatly improved as a result of his interactions with his supervisors, the courses he has undertaken and the many hours he has spent thinking about these two complaints. He says he cares deeply about providing a very high standard of care to his patients. He is now more aware of the need to step back and let the patient make their own decision based on the information he provides to them. He says he is much more aware of the need to take extra care when seeing new patients, particularly female patients who require intimate examinations.

Dr Sinnathurai's conduct under supervision and extent to which his practice has changed

Dr Sinnathurai has completed an education plan prepared by the insurer, Avant. He has completed courses on: effective communication, chaperones: intimate examinations and cultural sensitivities, consent: the key issues, ethics obligations knowledge and skills: professionalism in medicine, on the record: medical records and documentation.
Dr Sinnathurai has participated in courses on informed consent. He says he used to think that implied consent was sufficient but now understands that he must explain the proposed treatment and ensure that the patient understands and agrees with the proposed treatment. Dr Sinnathurai's reliance on implied consent was a significant departure from the current standards.
Dr De Silva is the principal and part owner of the Crane Road Medical Centre where Dr Sinnathurai is currently working. In accordance with the supervision condition on Dr Sinnathurai's registration, Dr De Silva observes Dr Sinnathurai during consultations once a month. He then discusses issues that have arisen. Dr De Silva provided a report stating that Dr Sinnathurai had benefitted from the supervision and that he now understands professional boundaries and the difference between implied consent and informed consent.
Dr Sinnathurai has not been fully compliant with his Category C supervision condition. His first meeting with Dr Pope was not until two months after the condition was imposed and there was no meeting in February 2020. These are minor and explicable breaches. We have not drawn any adverse conclusion as to Dr Sinnathurai's willingness to comply with the conditions.
Dr De Silva has worked directly with Dr Sinnathurai since June 2020. He has not received any complaints about Dr Sinnathurai in that time. Several former patients of Dr Sinnathurai have travelled long distances to consult with Dr Sinnathurai at Crane Road Medical Centre and Dr De Silva saw that as an expression of their confidence in him.
Dr De Silva has assumed that Dr Sinnathurai's clinical skills in conducting breast examinations are sound. He has not observed Dr Sinnathurai conduct such an examination. He is also prepared to allow Dr Sinnathurai to exercise his own discretion as to the application of the guidelines, apart from not offering breast examinations to asymptomatic women. We would have had more confidence in Dr De Silva's opinion of Dr Sinnathurai's competence in the conduct of breast examinations if Dr De Silva had critically observed him conducting such an examination, and he had sought out resources to inform his knowledge of current techniques and guidelines.

Following guidelines - conducting breast examinations

The Royal Australian College of General Practitioners' 'Guidelines for preventive activities in general practice' (9th ed, 2016) at p 109, par 9.3 state that: "There is insufficient evidence to recommend that clinical breast examination offers any benefits to women, of any age."
Those 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 examinations for high-risk patients and not where there is only an average or slightly to moderately increased risk. Before the hearing, Dr Sinnathurai was not following these guidelines. He was routinely conducting breast examinations. During the stage 1 proceedings Dr Sinnathurai gave evidence that he conducts breast examinations every six months for patients on the pill and breast examinations to all female patients whether or not they are old enough to be attending for regular mammograms every twelve months.
At the time of the stage 1 hearing, Dr Sinnathurai was conducting 20 to 30 breast examinations per month. He thought that the risks of breast cancer justified his practice. He now accepts that those examinations do not accord with relevant guidelines. Since the Tribunal imposed the condition that he not conduct breast examinations on asymptomatic women, Dr Sinnathurai says he has only conducted breast checks where the patient complained of pain or had detected a lump. He estimates that he has conducted examinations in fewer than 10 patients in the four months since the stage 1 hearing.
Dr Sinnathurai says he has again reviewed the RACGP Guidelines particularly in relation to performing breast examinations on asymptomatic female patients. He says he will follow these guidelines and any other relevant guidelines when deciding whether a breast examination is clinically indicated. Furthermore, rather than performing screening breast examinations, he will advise his patients to check their own breasts and monitor any changes they may detect.

Following guidelines - conducting pap smears, breast examinations and abdominal examinations in pregnant women

Dr Sinnathurai gave evidence that he does not conduct pap smears in pregnant women who see him for a pregnancy test at around 6 weeks gestation. He says there is a risk of bleeding. If that happens, the patient may perceive that he has done something wrong. He considers that risk to be greater than the risk that the patient has cervical cancer. Hypothetically, if a patient is not up to date with her pap smears and presents for a pregnancy test, Dr Sinnathurai says he would advise the patient to come back after she has had the baby.
Our understanding of current guidelines and practice is that it is safe and recommended to conduct a pap smear on pregnant women at any stage during pregnancy as long as the right equipment is used. Not doing so is an example of Dr Sinnathurai not conforming with recommended practice without a compelling reason.
For patients where pregnancy is confirmed by a positive urine test, Dr Sinnathurai explains that some baseline antenatal blood and urine tests and examinations are recommended including a breast examination and an abdominal examination. Dr Sinnathurai explains that even if he performs those tests and conducts those examinations, that does not mean that the patient must see him for her antenatal care.
We found at [156] of the stage 1 decision that an abdominal examination is not clinically indicated at a consultation to confirm pregnancy. However, that conduct, by itself did not amount to unsatisfactory professional conduct. It appears that Dr Sinnathurai is continuing to conduct abdominal examinations despite the fact that they are not clinically indicated. That demonstrates a degree of rigidity in his thinking.
At the stage 1 hearing Dr Sinnathurai defended his breast examination of Patient B as being in accordance with guidelines published by the Royal Hospital for Women. Those guidelines do not apply in the health district where Dr Sinnathurai practices. He said at the stage 2 hearing that he would still do a breast examination on an asymptomatic antenatal patient even though he was precluded from performing breast checks on asymptomatic women after the stage 1 hearing . The guidelines from various hospitals differ on the issue of conducting a breast check on an antenatal patient. In our view, Dr Sinnathurai's insistence on following a guideline which accords with his preference, despite the condition on his registration, shows some rigidity in his thinking.

Examination of torso for acne

At the consultation with Patient A, Dr Sinnathurai told her that the brand of pill she had been prescribed was more suited to people who have acne. He asked her if she had acne and Patient A said, "No, I don't but my face has gotten clearer after taking the pill." Dr Sinnathurai then examined Patient A's face, lifted the sleeve of her right arm and looked at her torso. He then grabbed the front of her shirt and looked down her chest, then lifted up the back of her shirt and looked at her back. At [68] of the stage 1 decision, we found that: "Dr Sinnathurai's decision to examine Patient A's torso when it was not clinically indicated in combination with the fact that he did not obtain Patient A's informed consent and did not conduct the examination in an appropriate manner, is a breach of these Guidelines."
At the stage 2 hearing, Dr Sinnathurai said if he was faced with the same situation today, he would still examine Patient A's torso, but only after obtaining informed consent. That does not seem to us to be appropriate in circumstances where the patient has told the doctor that she does not have acne. We are concerned that Dr Sinnathurai continues to lack sensitivity in the way he communicates with patients. He is yet to develop more complete insight into the effect on patients of conducting physical examinations which are not clinically indicated.

Clinical skills

The Tribunal found that the breast examinations for both Patient A and Patient B, individually or in combination, amounted to professional misconduct. We came to the following conclusion at [213] of the stage 1 decision: "Both breast examinations involved manipulating a patient's nipple for an unknown, 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 given 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 Tribunal has some evidence from Dr De Silva that Dr Sinnathurai's clinical skills are sound. Dr De Silva has not seen Dr Sinnathurai conduct a breast examination but assumes that his clinical skills are sound because he is fully qualified and has conducted breast surgery. He has apparently performed some breast cancer surgery but did not provide any details. In his affidavit, Dr Sinnathurai describes how he would now perform and record various intimate examinations and the referrals he would make. His description accords with the relevant guidelines and accepted practice. Dr Sinnathurai denies that his knowledge and skills in conducting breast examinations are or were deficient. He emphasises that he has been in practice for many years and, under the tutorship of others, he has developed the necessary skills.
However, Dr Sinnathurai acknowledged that he has not updated himself on how to conduct breast examinations since the early 1980s, despite his strong interest in the early detection of breast cancers. Since the stage 1 hearing, Dr Sinnathurai says he has read articles about conducting breast examinations but has not conducted a breast examination with a supervisor present, watched another practitioner conduct such an examination or seen a video of a breast examination being performed. That is despite our finding at [120] of the stage 1 decision that: "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 note that Dr Sinnathurai does not agree that that is what he did.
Dr Sinnathurai acknowledges that he was insensitive but does not accept that he came across as being arrogant. He thought he was doing the right thing. In his view, the patients' adverse perceptions came about because they did not understand what he was doing. They expected the consultation to be quick. Dr Sinnathurai is still attributing the patients' distress to their expectations of what would happen during the consultation and his failure to obtain informed consent. Dr Sinnathurai still does not appear to fully appreciate that his sexist remarks, the perfunctory way in which the examinations were conducted and the way he manipulated the patients' breasts were all highly inappropriate.

Keeping medical records

Dr Sinnathurai says he has reviewed Schedule 4 of the Health Practitioner Regulations (New South Wales) Regulation 2016 (NSW), in relation to the information that must be included in medical records. He has also completed a course run by Avant about medical record keeping. He says he now records all relevant details regarding the patient's medical history and relevant discussions with the patient. We are satisfied that Dr Sinnathurai will attempt to comply with his medical record keeping obligations in the future.

Overall character

Dr Sinnathurai provided character references from three female patients who he had diagnosed with breast cancer. One of these patients said that: "Dr Sinnathurai's concern has always been for my health and wellbeing and he has always acted in a courteous and professional manner."
The other two patients also praised Dr Sinnathurai's professionalism and diligence.
Dr A Shah, Head of the Breast Endocrine, Head and Neck Unit at Liverpool Hospital, wrote that Dr Sinnathurai has referred many women to him with both benign and malignant conditions of the breast. His impression from comments made by patients is that Dr Sinnathurai is generally well regarded. Dr Shah cannot recall any concerns having been raised about Dr Sinnathurai's manner with patients.
Dr Patrick Tan, a fellow general practitioner and friend of Dr Sinnathurai, regards him as honest and conscientious. He does acknowledge, however, that Dr Sinnathurai can tend to be paternalistic. Dr Tan's view is that, having reflected on his behaviour and completed various courses, it is highly unlikely that Dr Sinnathurai will make the same mistakes again.
Dr WK Chung, a retired orthopaedic surgeon who has known Dr Sinnathurai personally and professionally for 20 years, attested to his good character. In his experience, Dr Sinnathurai is honest, caring and generous. A positive character reference was also given by a general practitioner, Dr Ella Farshad, who has worked with Dr Sinnathurai since 2019 at Crane Road Medical Centre. These references attest to Dr Sinnathurai's overall good character.

Summary of findings

Dr Sinnathurai has learnt some important lessons and gained some insight into the effect of his communication style on patients, especially young woman who have not consulted him before. But we still have some lingering concerns about his communication style, his competence in conducting breast examinations and his selective approach to following guidelines.
As to his communication style, he was not aware that his practices may be out of date or that his manner was paternalistic and insensitive. Even after the stage 1 hearing he would still examine a patient's torso for acne even if she told him she didn't have acne. That is not the way to build trust with a patient.
Dr Sinnathurai has not updated himself on how to conduct a breast examination since the early 1980s. We are not satisfied that his technique, especially in relation to any examination or manipulation of the nipple or areola, is up to date.
For some procedures he either does not follow guidelines (e.g. safe to perform cervical screening on pregnant women) or selectively applies guidelines which do not apply in his geographical area.

Protecting the public from similar misconduct or incompetence and upholding confidence in the standards of the profession

On the question of denouncement and deterrence, the main considerations are the seriousness of Dr Sinnathurai's conduct and his competence and fitness to practise. As we have said, Dr Sinnathurai's conduct, while not meeting the definition of "sexual abuse or exploitation" or "sexual assault", which are at the highest end of the spectrum, involved a very significant departure from the standards of ethical practice. The fact that Dr Sinnathurai wishes to engage more fully in vaccinating patients against Covid 19 is admirable but does not weigh heavily in favour of the public interest.

Conclusion

Taking into account all the matters we have mentioned, the appropriate orders are to suspend Dr Sinnathurai from practice for a period of six months.
We are not satisfied that Dr Sinnathurai poses a substantial risk to the health of members of the public. The Commission has not discharged its onus of proving that a prohibition order should be made during the time of Dr Sinnathurai's suspension from practice.
However, for the reasons we have given, we are not persuaded that Dr Sinnathurai is up to date in the way he conducts breast examinations. In our view, he should undergo some training in the conduct of breast examinations. At the same time, Dr Sinnathurai should practise his communication skills including the obtaining of informed consent, proper draping procedures and overall communication techniques. We invite submissions from the parties within 21 days on the following proposed condition: 1.Within three months from the cessation of his suspension the practitioner is to undertake the following training: (a) to undertake three periods of observations of the conduct of a breast examination conducted by [insert name of appropriate practitioner or clinic] including the obtaining of informed consent, appropriate draping and examination technique; (b) to personally carry out three breast examinations under direct supervisor of a registered practitioner; (c) prior to commencing the observations and examinations set out in (a) and (b) to obtain from the Medical Council of New South Wales approval of the proposed practitioner or clinic and supervisor; and (d) provide to the Council written evidence of the clinic and supervisor's consent to the observation and supervision and agreement to provide a report to the Council.

Orders 1. Dr Sinnathurai's registration as a medical practitioner is suspended for six months from the date of this decision. 2. On returning to practice, Dr Sinnathurai is to be subject to such conditions as are determined by the Tribunal after considering submissions from each party filed within 21 days of the date of this decision. 3. Dr Sinnathurai is to pay the costs of the Health Care Complaints Commission as agreed or as assessed under the Legal Profession Uniform Law Application Act 2014 (NSW): National Law, clause 13 of Schedule 5D.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2021

Health Practitioner Regulation (New South Wales) Regulation 2016(NSW)

Health Practitioner Regulations (New South Wales) Regulation 2016(NSW)

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Judgment (24 paragraphs)

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Legislation Cited (5)

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Cited By (2)