Health Care Complaints Commission v Sinnathurai

Solicitors: Health Care Complaints Commission (Applicant) Avant Law Pty Ltd (Respondent) File Number(s): 2020/00253258 Publication restriction: The publication of the names of Patient A and Patient B, their family members and friends and each other patient who complained about Dr Sinnathurai referred to in the material filed by the parties is prohibited under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW).

Overview

1. This decision is about the conditions we should impose on Dr Sinnathurai's registration as a medical practitioner. In the Stage 1 hearing (Health Care Complaints Commission v Sinnathurai [2021] NSWCATOD 102) 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 in their twenties. 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 had power to suspend or cancel his registration although we were not obliged to do so: Health Practitioner Regulation National Law (NSW) (National Law), s 149C(1)(b).
2. In the Stage 2 hearing (Health Care Complaints Commission v Sinnathurai (No 2) [2021] NSWCATOD 177) we suspended Dr Sinnathurai's registration as a medical practitioner for 6 months from 5 November 2021. We also made the following order: "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. We summarised our findings at [59]-[62] of the Stage 2 decision: "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 As to his communication style, he was not aware that his practices may be out of date or that his manner was paternalistic and insensitive.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."
4. At [66] we stated that: ". . . 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."

Relevant principles with respect to the imposition of conditions

1. Under section 149A of the National Law: (1) The Tribunal may do any one or more of the following in relation to the registered health practitioner - (a) caution or reprimand the practitioner; (b) impose the conditions it considers appropriate on the practitioner's registration; (c) order the practitioner to seek and undergo medical or psychiatric treatment or counselling (including, but not limited to, psychological counselling); (d) order the practitioner to complete an educational course specified by the Tribunal; (e) order the practitioner to report on the practitioner's practice at the times, in the way and to the persons specified by the Tribunal; (f) order the practitioner to seek and take advice, in relation to the management of the practitioner's practice, from persons specified by the Tribunal.
2. The "objectives and guiding principles" under the National Law are relevant when the Tribunal is considering the appropriate orders to make under s 149A. In exercising that function the protection of the health and safety of the public must be the Tribunal's paramount consideration: National Law, s 3A. The guiding principles of the national registration and accreditation scheme include 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).
3. In Health Care Complaints Commission v Aref [2018] NSWCATOD 133 at [25], the Tribunal summarised the law: "As the paramount consideration is the protection of the health and safety of the public, imposition of restrictions on the practice of a health professional are only to be done in pursuit of this higher objective. Such a determination of necessity and appropriateness are made by considering what measures are needed to ensure future behaviour of the practitioner, and others, is shaped in such a way that is consistent with these protective goals: Lee v HCCC [2012] NSWCA 80 at [34]."

Health Care Complaints Commission's proposed conditions

1. Following that Stage 2 hearing, the Health Care Complaints Commission (HCCC) proposed the following conditions: "Under section 149A(1)(b) and (d) of the Health Practitioner Regulation National Law, the Tribunal directs that the following Conditions be imposed on the respondent's registration: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners (excluding the subject practitioner): (a) Where the patients and patient records are shared between the medical practitioners. (b) Where there is always one other registered medical practitioner on site. (c) Which is an accredited practice. 3. The practitioner is not to perform any breast examinations on asymptomatic female patients. 4. The practitioner is not to undertake any breast examination on any female patient unless a practice monitor who is approved by the Medical Council of NSW and is acceptable to the patient is continuously present throughout the examination and has direct sight of any physical contact the practitioner has with the patient. (a) The practice monitor is to be subject to approval in accordance with the Council's Practice Monitor Approval Position Statement. The practice monitor: • must not perform any other duties for the practitioner or the patient during the practitioner's contact with the patient • is to be provided with a copy of the decision which imposed this condition and any other decision or report as determined by the Council (b) Prior to performing the examination, the practitioner must inform each female patient of the necessity for a practice monitor to be present at all times and observe any contact between the practitioner and the patient. The practitioner must ensure that the patient or if applicable, their guardian or carer consents to the presence of the practice monitor on the approved form and: • gives the patient sufficient notice to allow them to decide whether to consent to the presence and observation by a practice monitor • establish that the practice monitor is a person acceptable to the patient, including ensuring that the gender of the practice monitor is acceptable to the patient. If the patient does not consent to the presence of a practice monitor or does not find the practice monitor acceptable, the patient must be offered the opportunity to communicate their lack of consent to a person other than the practitioner and the practitioner must not proceed with the examination. The patient should not be charged in these circumstances and must be offered a referral to another medical practitioner, where possible. (c) Within 7 days from the end of each calendar month, the practitioner is to provide the Council with a log listing all female patients upon whom the practitioner has performed a breast examination. The log is to be in a Council approved format and include: • The date and time of the examination • The full name and date of birth of each female patient and the practice monitor who was present during the contact with the patient • The clinical indication/s for the breast examination in accordance with condition 3 • Each consent form which has the contemporaneous signature of the patient (or the guardian/carer, if applicable) and the practice monitor. The practitioner must keep a copy of the consent form in the patient's medical record. (d) To meet all costs associated with this condition 5. On request from the Medical Council of NSW, the practitioner is to provide: (a) the contact details of any person at any time to confirm the practitioner's compliance with any of the conditions imposed on the practitioner's registration, and co-operation with random practice audits or inspections by the Council including access to and obtaining copies of appointment diaries, patient booking schedules and the like in order to monitor the practitioner's compliance with conditions on his registration. 6. To submit to a random audit or inspection of the practitioner's medical practice by a person or persons nominated by the Medical Council of NSW. (a) The audit/inspection is to be held as required by the Council to assess his compliance with conditions imposed on his registration. The auditor(s) may: i. Inspect medical records ii. Access, copy or retrieve appointment diaries, patient booking schedules and contact details iii. Consult with all practice monitors and any female patients who has contact with the practitioner during the audit/inspection iv. Observe the practitioner's contact with female patients undergoing breast examinations (b) To authorise the auditor(s)/inspector(s) to provide the Council with a report on their findings. (c) To meet all costs associated with the audit(s)/inspector(s) and any subsequent reports. 7. To practise no more than 40 hours per week. 8. To treat no more than 4 patients in any one hour and no more than 32 patients in any one day. (a) The practitioner is to provide the Medical Council of NSW with copies of records confirming the number of patients treated, their consultation times and hours worked on any dates as specified by the Council. 9. To practise under category B supervision, with a supervisor approved by the Medical Council of New South Wales, in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. (a) Prior to each supervision meeting, the practitioner must forward to the Council-approved supervisor a copy of the log of all patients he has performed a breast examination on in the preceding fortnight. (b) At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: • Medical records • Communication • Obtaining informed consent • Appropriate modesty sheet and breast examination techniques • The clinical indications for performing breast examinations • Compliance with conditions (c) To authorise the Medical Council of NSW to provide the proposed and approved supervisors with a copy of the decision which imposed this condition. (d) Not to practise until a supervisor has been approved by the Medical Council of NSW 10. Within six months of recommencing practice to complete a suitable course or training on conducting breast examinations approved by the Medical Council of New South Wales. (a) Within 1 month of recommencing practice to nominate a suitable course or training with a Council approved peer on conducting breast examinations for approval by the Council. (b) Within 1 month of completing the abovementioned course or training with a Council approved peer, the practitioner is to provide documentary evidence to the Council that he has satisfactorily completed the course. (c) To bear responsibility for any costs incurred in meeting this condition. 11. Within 12 months of recommencing practice the practitioner is to complete the Clinical Communication Programme organised by the Cognitive Institute. (a) Within 1 month of recommencing practice, he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course or training with a Council approved peer. (b) Within 1 month of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course or training with a Council approved peer. (c) To bear responsibility for any costs incurred in meeting this condition. (d) In the event that the course or training with a Council approved peer is unavailable, he must propose to the Council for approval a similar course or training with a Council approved peer to be undertaken in accordance with the requirements of this condition no later than 1 months of re-commencing practice. 12. 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. 13. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 14. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia."

Dr Sinnathurai's submissions

1. Dr Sinnathurai submits that the conditions proposed by the HCCC fail to take into account: 1. the evidence of his good character and the fact that his motivation was to conduct thorough breast checks so as not to miss a diagnosis of breast cancer; 2. the considerable education he has undertaken since the events with respect to communication and effective consent; 3. the fact that he has been under category C supervision for a period of over two years, following s 150 proceedings (conditions had been imposed as of 9 September 2019); 4. the supportive reports from his supervisor; and 5. the fact that he has been performing at a high level since the imposition of those conditions, while subject to restrictions of 45 hours per week, and there is no evidence that any greater restriction is required.
2. Dr Sinnathurai has worked under conditions imposed by the Medical Council of NSW since September 2019. He has expressed remorse for his conduct being the subject of these proceedings and says he has learnt from his mistakes. According to Dr Sinnathurai, the imposition of further conditions as proposed by the HCCC would be punitive and unnecessary in the circumstances.
3. Dr Sinnathurai submits that the following conditions are appropriate, taking into consideration the findings of the Tribunal at Stage One and Two. "I. to obtain the Medical Council's approval prior to changing the nature or place of his practice; II. to practice in a group practice approved by the Medical Council where there are at least two registered medical practitioners, excluding the Respondent, and where patient records are shared, and it is an accredited practice; III. to conduct breast examinations only in accordance with the RACGP guidelines related to prevention and early detection of breast cancer. IV. to practise no more than 45 hours per week. V. to practise under category C supervision in accordance with the Medical Council of NSW's Compliance Policy for a period of six months following Dr Sinnathurai's return to practise. VI. within 3 months, the supervisor to observe three breast examinations performed by Dr Sinnathurai, and to address the standard of examination in his reports. VII. within six months of recommencing practice to complete a suitable course or training on conducting breast examinations approved by the Medical Council VIII. within twelve months of recommencing practice to complete the Clinical Communication Programme organised by the Cognitive Institute IX. to authorise and consent to the exchange of information between the Medical Council and Medicare for monitoring of the compliance with his conditions X. the Medical Council is the appropriate review body; and XI. sections 125 to 127 of the National Law apply if the Respondent relocates his practice from New South Wales."

Further education and level of supervision

1. To address the Tribunal's concerns about the manner in which Dr Sinnathurai has conducted breast examinations, the HCCC proposes that within one month of recommencing practice, Dr Sinnathurai nominate a suitable course or training with a Council approved peer on conducting breast examinations. Dr Sinnathurai proposes that within six months of recommencing practice, that he complete a suitable course or training on conducting breast examinations approved by the Medical Council. Dr Sinnathurai does not consider it necessary that the training be with "a Council approved peer". In addition, Dr Sinnathurai proposes that within three months of resuming practice, his supervisor observe three breast examinations performed by him. The supervisor would then address the standard of the examinations in his reports.
2. At [36] of the Stage Two decision we noted that Dr Sinnathurai's current supervisor, Dr De Silva, has assumed that Dr Sinnathurai's clinical skills in conducting breast examinations are sound but has not observed Dr Sinnathurai conducting any breast examinations. We went on to note that: "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."
3. It may well be the case that Dr De Silva is up to date and competent in the conduct of breast examinations. However, we consider it appropriate for Dr Sinnathurai to nominate a person who is not his supervisor, who has extensive experience with women's health and is an acknowledged expert in conducting breast examinations, to provide him with training. That training should include observing the nominated practitioner conducting breast examinations and, with the consent of the patient, conducting breast examinations himself while being observed by the nominated practitioner. We consider this to be such a critical condition that it should be satisfactorily completed before Dr Sinnathurai conducts any breast examinations.
4. Dr Sinnathurai agrees to proposed condition 11 that within 12 months of recommencing practice he is to complete the Clinical Communication Programme organised by the Cognitive Institute. Given our concerns as to Dr Sinnathurai's communication style, this condition is appropriate.

Level of supervision

1. Dr Sinnathurai rejects the suggestion in proposed condition 9 that there is a need to change the level of supervision from category C to category B and points to the lack of any evidence that this is necessary. Dr Sinnathurai proposes that he work under category C supervision in accordance with the Medical Council of NSW's Compliance Policy for a period of six months following his return to practice.
2. For category B supervision, the supervisor is to monitor and provide indirect supervision and be readily available to provide advice, assistance or direct supervision as required. The supervisor is to practise at the same location and only be off-site in exceptional circumstances. For category C supervision, indirect supervision is required but the supervisor is not required to practise at the same location as long as he or she is contactable by phone for emergencies.
3. We agree that it is not appropriate to impose a more onerous level of supervision on Dr Sinnathurai's practice than the one to which he was subject. Prior to being suspended, he had practised without incident or complaint under category C supervision for over two years. We agree with the proposed condition that at each supervision meeting (which would occur monthly), Dr Sinnathurai must forward to the supervisor a copy of the log of all patients he has performed a breast examination on in the preceding month. At each supervision meeting Dr Sinnathurai is to review and discuss his practice with his supervisor.
4. However, rather than making the supervision condition for a definite period, we consider it more appropriate to leave it to the Medical Council to review any condition following an application by Dr Sinnathurai.

Circumstances in which Dr Sinnathurai can conduct breast examinations

1. The HCCC proposes that the existing condition that Dr Sinnathurai is not to perform any breast examinations on asymptomatic female patients should remain. Dr Sinnathurai proposes that there be a condition that he conduct breast examinations only in accordance with the RACGP guidelines related to prevention and early detection of breast cancer. Dr Sinnathurai made the following submission: "The HCCC proposes restrictions which would limit the ability of Dr Sinnathurai to properly care for his patients. Evidence before the Tribunal revealed that Dr Sinnathurai has a number of patients who want to have their asymptomatic breast checks performed by him, as a doctor they know and trust. That is understandable in circumstances where some patients will be less confident of their own ability to detect an abnormality. Denying patients their right to choose that option is antithetical to good medicine. The appropriate restriction is that Dr Sinnathurai practice in accordance with the RACGP guidelines related to prevention and early detection of breast cancer, which may change in line with updated research."
2. We agree that Dr Sinnathurai should have to practise within any current RACGP guidelines relating to prevention and early detection of breast cancer. Once Dr Sinnathurai has completed an appropriate course of training in the conduct of breast examinations, it will no longer be appropriate for him to be subject to a blanket ban on conducting breast examinations on asymptomatic women.

Practice monitor for breast examinations?

1. Proposed condition 4 relates to the presence of a "practice monitor" when Dr Sinnathurai is conducting breast examinations. Again, we are of the view that once Dr Sinnathurai has completed an appropriate course of training in the conduct of breast examinations, it will not be necessary for those examinations to be monitored. Each examination will be reviewed by Dr Sinnathurai's supervisor at his monthly meetings.

Random audits or inspections

1. Proposed conditions 5 and 6 relate to co-operation with and submission to random audits.
2. Dr Sinnathurai does not agree with the audit conditions proposed in condition 6. Dr Sinnathurai submitted that: "With respect to the suggested audit by the HCCC, this is entirely unnecessary in the circumstances and imposes an expensive and onerous obligation on the respondent. First, there is no evidence of any widespread concern with respect to Dr Sinnathurai's record keeping. Complaint three concerned an allegation that Dr Sinnathurai breached the record keeping regulations by failing to write down certain information, including that he had performed an abdominal examination. Although it was acknowledged that the records were lacking in some details, they nevertheless recorded important information and were not of a standard to raise concern about a widespread problem. Second, since the complaint, Dr Sinnathurai has completed an education plan prepared by the insurer, Avant including "on the record: medical records and documentation". Third, the conditions that he was subject to for two years before the hearing required that his supervisor was to observe four consultations with patients and discuss Dr Sinnathurai's practice particularly in relation to matters which included medical records, communication and obtaining consent."
3. We agree that, for the reasons Dr Sinnathurai gives, the audit conditions are not appropriate. Dr Sinnathurai's supervisor will review cases where he has conducted a breast examination.

Hours of work

1. Proposed conditions 7 and 8 relate to the hours Dr Sinnathurai may work and the number of patients he may see in a day. Dr Sinnathurai rejects the suggestion that there is a need to reduce his hours from 45 to 40, or restrict the number of patients he sees in a day, and points to the lack of any evidence that this is necessary.
2. We agree that none of the Tribunal's findings support a change in the number of hours Dr Sinnathurai may work in a week or the imposition of a new condition as to the number of patients he may see each hour or each day. There was no suggestion that Dr Sinnathurai was rushing through patients too quickly or was treating patients when fatigued.

Agreed conditions

1. Dr Sinnathurai agrees with the HCCC's proposed condition 1, that he obtain the Medical Council's approval prior to changing the nature or place of his practice. Dr Sinnathurai also agrees to proposed condition 2 - that he practise in a group practice with certain requirements. These conditions are appropriate. Conditions 12, 13 and 14 are administrative or machinery provisions. It is appropriate that we impose each of these conditions.

Orders

1. Under section 149A(1)(b) and (d) of the Health Practitioner Regulation National Law (NSW), the Tribunal directs that the following Conditions be imposed on the respondent's registration: 1. To obtain Medical Council of NSW approval prior to changing the nature or place of his practice. 2. To practise only in a group practice approved by the Medical Council of NSW where there are at least two registered medical practitioners (excluding the subject practitioner): 1. where the patients and patient records are shared between the medical practitioners; 2. where there is always one other registered medical practitioner on site; and 3. which is an accredited practice. 1. The practitioner is to conduct breast examinations only in accordance with the RACGP guidelines related to prevention and early detection of breast cancer. 2. To practise no more than 45 hours per week. 3. To practise under category C supervision, with a supervisor approved by the Medical Council of NSW, in accordance with the Medical Council of NSW's Compliance Policy - Supervision (as varied from time to time) and as subsequently determined by the appropriate review body. 1. Prior to each supervision meeting, the practitioner must forward to the Council-approved supervisor a copy of the log of all patients he has performed a breast examination on in the preceding fortnight. 2. At each supervision meeting the practitioner is to review and discuss his practice with his approved supervisor with particular focus on: 1. Medical records 2. Communication 3. Obtaining informed consent 4. Appropriate modesty sheet and breast examination techniques 5. The clinical indications for performing breast examinations 6. Compliance with conditions 1. To authorise the Medical Council of NSW to provide the proposed and approved supervisors with a copy of the decision which imposed this condition. 2. Not to practise until a supervisor has been approved by the Medical Council of NSW. 1. Within 6 months of recommencing practice, to complete a suitable course or training on conducting breast examinations approved by the Medical Council of NSW. 1. Within 1 month of recommencing practice to nominate a suitable course or training with a Council approved peer on conducting breast examinations for approval by the Council. 2. Within 1 month of completing the abovementioned course or training with a Council approved peer, the practitioner is to provide documentary evidence to the Council that he has satisfactorily completed the course or training. 3. To bear responsibility for any costs incurred in meeting this condition. 4. Not to conduct any breast examination on any patient until he has satisfactorily completed this course or training. 1. Within 12 months of recommencing practice the practitioner is to complete the Clinical Communication Programme organised by the Cognitive Institute. 1. Within 1 month of recommencing practice, he must provide evidence to the Medical Council of NSW of his enrolment in the abovementioned course or training with a Council approved peer. 2. Within 1 month of completing the abovementioned course, he is to provide documentary evidence to the Council that he has satisfactorily completed the course or training with a Council approved peer. 3. To bear responsibility for any costs incurred in meeting this condition. 4. In the event that the course or training with a Council approved peer is unavailable, he must propose to the Council for approval a similar course or training with a Council approved peer to be undertaken in accordance with the requirements of this condition no later than 1 month after re-commencing practice. 1. 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. 2. The Medical Council is the appropriate review body for the purposes of Part 8, Division 8 of the Health Practitioner Regulation National Law (NSW). 3. Sections 125 to 127 of the Health Practitioner Regulation National Law are to apply whilst the practitioner's principal place of practice is anywhere in Australia other than in New South Wales, so that a review of these conditions can be conducted by the Medical Board of Australia. 4. 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): Health Practitioner Regulation National Law, clause 13(1) 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: 28 January 2022