Health Care Complaints Commission v Sultan

NCAT Occupational|2016-09-26|Before: Acting Judge J

INTRODUCTION

In these proceedings the Health Care Complaints Commission (the applicant) seeks findings of unsatisfactory professional conduct and professional misconduct against Dr Ammer Sultan (the respondent) pursuant to ss 139B(1) and 139E of the Health Practitioner Regulation National Law (NSW) 2009 (No. 86a) (the National Law). After findings are made by the Tribunal, the proceedings will be adjourned to determine what orders should be made.

THE RESPONDENT

The respondent was born on 9 July 1969 in Iraq. Following completion of his high school education he enrolled in the Faculty of Medicine at the University of Bagdad, from which he graduated in 1992. After completing a two year hospital internship, he served as a senior house officer in public hospitals in Iraq, except between December 1996 and December 1997 when he worked as a general practitioner subject to the compulsory rule of medical service in rural areas of Iraq.
He arrived in Australia as an asylum seeker in May 1999 and was detained in the Villawood Detention Centre from then until June 2002, when he was released on a Temporary Protection Visa. In October 2006 he was granted a Permanent Protection Visa. It is of interest to note that while in detention he had two journal articles published and received two awards, the nature of which has not been disclosed.

PATIENT A

Patient A is an aboriginal Australian who, at the time of the events giving rise to the complaints, was 20 years old. She had a number of prior admissions to Shoalhaven Hospital and for a variety of conditions, including bipolar disorder. She did not give evidence before the Tribunal.

CIRCUMSTANCES GIVING RISE TO THE COMPLAINTS

Though the background to the complaints is set out in the Complaint, for ease of understanding these circumstances are recited.
In 2013 Patient A was a regular attendee at Shoalhaven Hospital. Relevantly, she first came under the care of the respondent on 4 October 2013. He treated her for hidradenitis suppurativa 1, a disease that causes lymph nodes to become inflamed and infected with cysts. Thereafter, she attended the Emergency Department at the hospital on 4 October, 5 October, 6 October, 8 October, and 10 October 2013 to have wounds on her underarms cleaned and dressed. She was seen and treated by the respondent on each occasion. On 4 October 2013 she had reported "abdo aches" and earlier, in April 2012, she was admitted to the hospital with abdominal pain and vomiting.
On 5 October 2013 the respondent prescribed Tramadol for Patient A, and, having ascertained that she lacked sufficient funds to have the prescription filled, in the presence of a nurse, gave her $10 from his own wallet to enable her to do so. He indicated to Patient A that repayment was not expected. This was not the first time the respondent had given money to a patient to pay for filling prescriptions.
On 10 October 2013 Patient A was seen by the respondent in the Emergency Department and was subsequently admitted as an inpatient for surgery. The respondent was not a member of the surgical team charged with the treatment of Patient A after her admission on 10 October 2013. When he saw her in the Emergency Department, she reported an improvement in her abdominal pain.
In the period between 10 October and 17 October 2013 the patient had complained among other things of a cough and a dry mouth whilst an inpatient. At about 10.30 on the evening of 10 October 2013 the respondent paid a social visit to Patient A in the surgical ward following the conclusion of his shift in the Emergency Department. She was discharged from the hospital on 18 October 2013.
On 21 October 2013, however, she was readmitted for wound care and for further surgery. Following surgery on 24 October 2013 Patient A was allocated to a bed in the surgical ward and was under the care of a surgical team. The respondent was not a member of the surgical team. After she had been returned to the ward following surgery, Patient A took herself to the Emergency Department with the intention of thanking the respondent for his earlier assistance and care. At the time, because he was busily occupied, she was unable to see the respondent, and having waited something in the order of an hour without having seen him and being unable to thank him, she returned to the ward. Before returning to the ward, she asked the receptionist in the Emergency Department to let the respondent know that she had called to thank him.
Having received that message, the respondent decided to pay a social visit to the patient upon completion of his shift. He arrived at the ward some time after 10.30pm at which time his shift finished. The ward in which Patient A was accommodated is a two bed room and another patient was present at the same time.
The patient was asleep when he arrived at the ward and soon woke or was woken by him. A conversation ensued following which the respondent conducted chest and abdominal examinations and later removed a cannula from the patient's arm. In the course of examining her chest his hand came into contact with her bare breast under her gown and he developed an erection, he moved away from the patient and motioned towards his erect penis. She took herself to the bathroom and upon her return the respondent was still present. Further elucidation of what occurred appears in the background to Complaint One and in the Statement of Agreed Facts (AX 3) which is set out in full beginning on page 10.
Much of what occurred in the ward is not the subject of dispute and those matters that are not admitted, or admitted with qualification, will be considered shortly.
Following a complaint by the patient, the respondent was charged under s 61L of the Crimes Act (NSW) 1900 with committing an act of indecency. He pleaded not guilty to the charge and was acquitted by a Magistrate in the Local Court at Nowra.

THE COMPLAINT

The applicant proceeds on a complaint which was further amended on 27 February 2017. It is appropriate to set that complaint out in full. Those particulars which are not admitted, or admitted with qualification, will be recited again.

FURTHER AMENDED COMPLAINT The Health Care Complaints Commission of Level 13, 323 Castlereagh Street, Sydney NSW, having consulted with the Medical Council of New South Wales in accordance with sections 39(2) and 90B(3) of the Health Care Complaints Act 1993 and section 145A of the Health Practitioner Regulation National Law (NSW) ("the National Law")

HEREBY COMPLAINS THAT Dr Aamer Sultan ("the practitioner") of 246 Forest Road BEXLEY NSW 2207 being a medical practitioner registered under the National Law,

COMPLAINT ONE Is guilty of unsatisfactory professional conduct under section 139B(1)(a) and/or (l) of the National Law in that the practitioner has: 1. engaged in conduct that demonstrates the knowledge, skill or judgment possessed, or care exercised, by the practitioner in the practice of medicine is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience; and/or 2. engaged in improper or unethical conduct relating to the practice or purported practice of medicine. Each of the particulars of this Complaint in itself justifies a finding of unsatisfactory professional conduct. In the alternative, when two or more of the particulars are taken together, a finding of unsatisfactory professional conduct is justified.

BACKGROUND TO COMPLAINT ONE The practitioner graduated with a Bachelor Degree in Medicine and Surgery from Baghdad University in 1992. The practitioner moved to Australia in May 1999. He was first registered as a medical practitioner in Australia in June 2005. He has since worked in hospital emergency and surgical wards in Queensland, the Australian Capital Territory and New South Wales. In June 2013 the practitioner commenced working as a locum at Shoalhaven District Memorial Hospital (the Hospital) in the Emergency Department. At all times relevant to the particulars of this Complaint, the practitioner was working as a locum in the Emergency Department at the Hospital. Patient A attended the Emergency Department at the Hospital on a routine basis between August and October 2013 for medical treatment related to her diagnosis of Hidradenitis Suppurativa1 (HS), a disease that causes the lymph nodes to become inflamed and infected with cysts. The purpose of Patient A's visits to the Emergency Department was to have the wounds on her underarms cleaned and dressed. The practitioner first treated Patient A on 4 October 2013 during one of these visits to the Emergency Department. He also treated her during subsequent visits on 5, 6 and 10 October 2013. On 21 October 2013 Patient A was admitted to the Hospital under the care of the Surgical Team. On 24 October 2013 Patient A underwent surgery and was subsequently discharged on 25 October 2013. Patient A was allocated to Bed 6 in the Surgical Ward and was under the care of the Surgical Team for the duration of her admission.

PARTICULARS OF COMPLAINT ONE 1. Sometime between 10:30pm and midnight on 24 October 2013 the practitioner failed to maintain appropriate professional boundaries by visiting Patient A on the Surgical Ward in circumstances where: 1. he had completed his shift in the Emergency Department; 2. he was not part of Patient A's treating team; 3. the purpose of his visit was a social call; 4. it was late at night; 5. he did not ensure a nurse or chaperone was present. 1. Sometime between 10:30pm and midnight on 24 October 2013, in circumstances where he was not part of Patient A's treating team, the practitioner woke Patient A and: 1. Informed her he wanted to check her "breathing and stomach", 2. proceeded to conduct a chest examination of Patient A; 3. . . . 4. engaged in the conduct referred to at (a) and (b) above when there was no clinical basis or need to conduct such an examination at the time it was carried out. 1. During the course of the chest examination conducted on 24 October 2013, the practitioner failed to maintain appropriate professional boundaries in that he sat on Patient A's hospital bed, positioning himself very close behind Patient A, and: 1. used his right hand to position a stethoscope under Patient A's hospital gown beneath her bare right breast; 2. brushed his hand across Patient A's bare right breast on more than one occasion and up to five times, in circumstances where it was not necessary for him to have contact with Patient A's breast to conduct the examination; 3. became sexually aroused; 4. engaged in inappropriate behaviour of a sexual nature towards Patient A, by reason of his actions at (a) and/or (c) above alone or in any combination. 1. On 24 October 2013, immediately following the chest examination and after having become sexually aroused, the practitioner failed to maintain appropriate professional boundaries in that he: 1. stood up and remained in close proximity to Patient A; 2. . . . . 3. made a movement with his hand in the area of his penis; 4. engaged in inappropriate behaviour of a sexual nature towards Patient A, by reason of his actions at (a) and (c) above alone or in any combination. 1. On 24 October 2013, after examining Patient A, the practitioner proceeded to review Patient A's medical notes and removed a cannula from her hand, the removal of which cannula was inappropriate in circumstances where: 1. the cannula had been inserted by the Surgical Team; 2. the practitioner was not part of Patient A's treating team; 3. he did not notify Patient A's treating team of his actions, including by making a record in her medical records or otherwise.

COMPLAINT TWO is guilty of unsatisfactory professional conduct under section 139B(1)(b) of the National Law in that the practitioner has contravened a provision of the Health Practitioner Regulation (New South Wales) Regulation 2010 (Repealed) (the Regulation).

PARTICULARS OF COMPLAINT TWO 1. The practitioner breached Clause 7 and Schedule 2, Clauses 1 and 2, of the Regulation by failing to make a record of his clinical interaction with Patient A including: 1. the date and time of his visit to Patient A; 2. the details of his physical examination of Patient A; 3. any examination findings; 4. his reasons for removing Patient A's cannula; 5. the fact of his removal of Patient A's cannula.

COMPLAINT THREE is guilty of professional misconduct under section 139E of the National Law in that the practitioner has: 1. engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of the practitioner's registration, or 2. engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify the suspension or cancellation of the practitioner's registration.

BACKGROUND TO COMPLAINT THREE As for Complaint One.

PARTICULARS OF COMPLAINT THREE

Complaints One and Two and the particulars thereof are repeated and relied upon both individually and cumulatively.

MATTERS IN ISSUE

In respect of Complaint One all particulars, with the exception of particulars 2(d), 3(d), 4(d) and 5, are admitted without qualification, particular 3(b) is admitted with qualification.
Complaint Two and its particulars are admitted, save for those above.
Complaint Three is not admitted.
Thus, the respondent admits he is guilty of unsatisfactory professional conduct but does not admit he is guilty of professional misconduct.

AGREED FACTS

AX 3 is a statement of agreed facts as at 25.01.2017. As earlier noted, it is now set out in full: 1. Dr Sultan commenced working as a locum in the Emergency Department at Shoalhaven District Memorial Hospital in June 2013. 2. Patient A had multiple attendances at SDMH Emergency Department and 3 admissions at SDMH prior to October 2013 related to her principal diagnosis of Hidradenitis Suppurativa1 (HS), a disease that causes the lymph nodes to become inflamed and infected with cysts. 3. Patient A attended the ED at SDMH to have wounds on her underarms cleaned and dressed on the following dates in October 2013: 4 October 2013 5 October 2013 6 October 2013 8 October 2013 10 October 201 [sic] 1. Patient A was treated by Dr Sultan in the ED at SDMH on 4, 5, 6 and 10 October 2013. 2. During treatment on 4, 5, 6 and/or 10 October 2013 Patient A on at least one occasion complained of pains in her stomach. 3. During treatment on 4, 5, 6 and/or 10 October 2013 there were occasions when Dr Sultan was alone with Patient A. 4. On 5 October 2013 Dr Sultan: 1. prescribed Tramadol for Patient A 2. gave $10.00 to Patient A out of his own wallet, in the presence of a nurse, to pay for the Tramadol 3. When asked about repayment of the $10.00 by Patient A, Dr Sultan said words to the effect "don't worry about it". 1. Patient A was admitted as an inpatient on 10 October 2013 and was discharged on 18 October 2013. 2. Dr Sultan was not a member of the surgical team treating Patient A after her admission 10 October 2013. 3. Dr Sultan made a social visit to Patient A in the surgical ward after his shift in ED finished at around 2230 on 10 October 2013. 4. Patient A was readmitted as an inpatient on 21 October 2013 and was discharged on 25 October 2013. 5. Dr Sultan was not a member of the surgical team treating Patient A during her admission from 21 to 25 October 2013. 6. Patient A had the following operations: 1. 11 October 2013 - Incision and drainage of bilateral axilla abscess and vac dressing change in theatre under general anaesthesia 2. 22 October 2013 - Change of vac dressing (left axilla) and closure of wound (right axilla) in theatre under general anaesthesia 3. 24 October 2013 - Cleaning of left axilla wound and vac change and excision of facial lesions x 3 in theatre under general anaesthesia. 1. During the week commencing 21 October 2013, Dr Sultan was rostered as RMO in the ED as follows: 1. Wednesday 23 October 0800 - 1630 2. Thursday 24 October 1200 - 2230 3. Friday 25 October 1200 - 2230

24 October 2013 1. Patient A's return to the surgical ward from recovery was entered in the nursing progress notes at 1910hrs. 2. Patient A was located in Bed 2 Room 6 in the surgical ward. 3. As a patient in the surgical ward, Patient A was under the care of a surgical team, including a consultant and junior medical staff. 4. Following her return to the ward after surgery, Patient A attended at the ED to thank Dr Sultan for his assistance in having the surgical team inspect her wounds leading to her admission on 10 October 2013 and subsequent surgeries. 5. Patient A waited for approximately one hour in the ED waiting room but Dr Sultan was too busy to speak to her at that time. 6. Patient A left a message with the receptionist at ED to let Dr Sultan know that she wanted to thank him and she returned to the surgical ward. 7. In addition to nursing staff on the ward, a medical registrar was rostered overnight at SDMH to cover all calls for ward patients. 8. Dr Sultan's shift in the ED ended at 2230 on 24 October 2013. 9. At approximately 2245pm Dr Sultan arrived at the nurses' station in the surgical ward and looked up details of another patient who had been operated on for an appendectomy that day. 10. At some time after looking up the details of the appendectomy patient, Dr Sultan attended in Room 6 where Patient A was asleep. 11. Shortly after Dr Sultan arrived and stood next to Patient A's bed, Patient A awoke. 12. At the time Patient A had: a vac dressing under her left armpit with a tube attached to drain fluid from the wound a small dressing under her right armpit two small dressings on facial wounds. 1. Dr Sultan spoke to Patient A during which he said words to the effect; "I want to check your tummy and your breathing." 2. Patient A said: "OK". 3. At Dr Sultan's request Patient A sat up on the bed with her back facing the head of the bed with her legs on the bed. 4. Dr Sultan sat directly behind Patient A at a 45 degree angle with his feet touching the floor and placed his stethoscope under the hospital gown and placed the stethoscope on patient A's back. 5. Dr Sultan then used his right hand to move the stethoscope under Patient A's right arm to the area at the top of Patient A's breastbone, and moved the stethoscope to two or three other places down the breastbone and under Patient A's breast. 6. Dr Sultan then noticed that he became sexually aroused. He stood up and moved away from the bed. He then moved his hand in the direction of his penis. 7. Patient A absented herself from the room and went to the toilet, which was located within the room, and stayed there for approximately 10 minutes. 8. When Patient A re‑entered the ward Dr Sultan was standing at the end of her bed reading her medical notes. 9. This was the first time that Dr Sultan had read Patient A's notes. 10. Patient A had a cannula in her right hand. 11. Dr Sultan spoke to Patient A during which he said words to the effect; "I need to remove your cannula". 12. Dr Sultan proceeded to remove the cannula, which took about five minutes, and then left. 13. Dr Sultan did not make any record of his attendance or his treatment of Patient A in her records. 14. Dr Sultan now accepts that he should not have examined or treated Patient A without first obtaining approval from the surgical team.

Post 24 October 2013 1. During the morning of 25 October 2013 Patient A reported to the Hospital what had occurred the night before, including making a written complaint about Dr Sultan's conduct. 2. On Monday 28 October 2013 the Director of Emergency, Dr Jacqueline Irvine, directed Dr Sultan to attend at a meeting with her and the Acting Director of Clinical Services, Dr Bernard Street on Tuesday 29 October 2013. 3. Dr Sultan attended at the meeting with Dr Irvine and Dr Street and made the following statements: 1. he went to the surgical ward to visit Patient A which was inappropriate 2. in retrospect he should not have gone to the ward 3. he shouldn't have been there at night 4. he should have had a chaperone with him 5. during the examination of Patient A on 24 October he experienced sexual feelings towards Patient A and thoughts of sexual gratification 6. he knew that such feelings towards a patient were inappropriate 7. he had attempted to contact Patient A the next day, 25 October to discuss the examination with her but had been unable to do so as she had left the ward 8. it was crucial the he tell the truth to avoid further harm to Patient A. 1. After the meeting on 29 October 1. the matter was referred to the Hospital Professional Practice Unit for investigation. 2. Dr Street conducted a risk assessment and determined that Dr Sultan would not be offered any further shifts at the Hospital pending the investigation. 3. On 30 October Dr Street advised Dr Sultan that he would not be offered further shifts at the Hospital

Criminal Proceedings 1. Some time between 25 October 2013 and 7 January 2014 Patient A reported the matter to the NSW police,. 2. On 7 January 2014 Dr Sultan was charged with assault with an act of indecency under s.61L of the Crimes Act 1900 (NSW). 3. Dr Sultan pleaded not guilty to the charge. 4. The matter was prosecuted in the Nowra Local Court on 14 and 28 October 2014. Dr Sultan was acquitted of the criminal charge on 28 October 2014.

HCCC Investigation 1. On 14 January 2014 the Australian Health Practitioner Regulation Agency (AHPRA) received a mandatory notification from Dr Bernard Street advising that SDMH had been notified by police that Dr Sultan had been charged with the offence of indecent assault on 7 January 2014. 2. The mandatory notification by Dr Street was referred to the HCCC by AHPRA on 16 January 2014. 3. Following consultation with the Medical Council of NSW, Dr Sultan was advised by the HCCC by letter dated 4 February 2014 that it would be investigating the matter. 4. On 11 December 2015 Dr Sultan was advised by letter that the HCCC had finalised its investigation and the matter was being referred to the Director of Proceedings (DoP) to make a determination as to whether a complaint should be prosecuted before a disciplinary body. 5. On 9 March 2016 the DoP determined to prosecute a complaint before the NSW Civil and Administrative Tribunal (NCAT). An Application for disciplinary findings and orders attaching the Complaint was signed by the DoP and filed with NCAT the same date.

Medical Council Proceedings 1. On 6 and 11 February 2014 the Medical Council of NSW conducted s.150 proceedings in relation to the charge of indecent assault and underlying alleged misconduct. 2. On 11 February 2014 conditions were imposed on Dr Sultan registration as a practitioner. 3. On 20 February 2014 the Medical Council of NSW referred the matter to the HCCC for investigation in accordance with s.150D of the Health Practitioner Regulation National Law (NSW). 4. On 7 July 2015 Dr Sultan sought a review of the conditions under s.150A of the National Law. 5. On 30 July 2015 the Medical Council determined to lift the conditions on Dr Sultan's registration.

A great deal of written material was admitted into evidence, though little of it was referred to in submissions. Counsel were informed that we would have regard only to that part of the written material to which our attention was specifically directed by its being read aloud to us. Written outlines of submissions did contain reference to evidence and some of the written material.
At this stage, it should be noted that Patient A was not called to give evidence, nor was any explanation for the failure to call her given to us. On 27 September 2016 an order was made listing the proceedings for directions on 1 November 2016, on which date the Tribunal was to be informed whether Patient A had been served with a summons to attend the further hearing or whether good reason would prevent her attendance. No such information was provided either on 1 November 2016 or later.
Relying on the decision of the High Court of Australia in Jones v Dunkel (1959) 101 CLR 298, the respondent submits that Patient A's evidence would not have assisted the applicant's case.
It was, however, submitted by the applicant that the absence of Patient A was of no consequence by reason of the admissions that have been made by the respondent. With respect to the argument of Counsel for the applicant, we do not agree, for in relation to the those matters that are not admitted in particular 3, the evidence of Patient A could have assisted us in determining whether the applicant's version has been established.
At a later stage, we will express our view on the inappropriateness of the course of conduct which the respondent followed in his dealings and treatment with Patient A. At this stage, however, we shall confine our remarks to the particulars which have not been admitted or admitted with qualification. We repeat those particulars.
Relevantly, particular 2 of Complaint One is as follows:
1. Some time between 10.30 and midnight on 24 October 2013, in circumstances where he was not part of Patient A's treating team, the practitioner woke Patient A and: (a) informed her he wanted to check her "breathing and stomach", (b) proceeded to conduct a chest examination of Patient A; . . . (d) engaged in the conduct referred to in (a) and (b) above when there was no clinical basis or need to conduct an examination at the time it was carried out.
Counsel for the respondent submits there was a clinical basis for this examination, relying upon the evidence that Patient A mentioned that she was still experiencing chest symptoms, stomach pain and still had a mass in her stomach. We are invited to find that though the respondent was not a member of the surgical team and conducted the examinations in the absence of a chaperone, there was a clinical basis for the examination.
Dr Michael Golding is an expert retained by the applicant for his opinion. In a report of 6 February 2017 Dr Golding wrote that he could not find any cause for an examination of Patient A for "breathing and stomach" on 24 October. He said it appeared to him that the basis for the examination was the symptoms that had been described to the respondent on her visits to the Emergency Department between 4 and 10 October 2013. It was his view there was no reasonable professional reason for this examination to have been conducted after the elapse of time following the Emergency Department consultations, considering especially that Dr Sultan was not part of the responsible treating team.
Dr Golding also observed that the NSW Health Code of Conduct (AX 9) requires staff not to exploit any relationship with patients in any way. It was his view that there should not have been any clinical interaction by the respondent on a social visit.
We, also, question the need for this examination. At the time it was carried out, the condition of the patient's breathing and stomach was not an issue, certainly not an acute or emergency issue. It is profoundly significant that the respondent was not a member of the treating team. It was not for him to conduct a clinical examination, whether or not the patient had made complaints about her breathing and stomach. There were other more effective and appropriate courses available to him. They were to advise her to tell her treating doctors about her symptoms the following morning, speak to her treating doctors himself or provide the information by writing in the records. He did none of these. The fact is that there was no need for the examination at that time nor for the respondent to conduct it.
We find particular 2(d) established.
Particular 3 alleges: 3. 3. During the course of the chest examination conducted on 24 October 2013, the practitioner failed to maintain appropriate professional boundaries in that he sat on Patient A's hospital bed positioning himself very close behind Patient A, and: (a) used his right hand to position a stethoscope under Patient A's hospital gown beneath her bare right breast; (b) brushed his hand across Patient A's bare right breast on more than one occasion and up to five times, in circumstances where it was not necessary for him to have contact with Patient A's breast to conduct the examination; (c) became sexually aroused; (d) engaged in inappropriate behaviour of a sexual nature towards Patient A by reason of his actions at (a) and/or (c) above alone or in any combination.
Particular 3(b) it is admitted, but not in its entirety. It is admitted that the respondent became sexually aroused. The respondent said that he believed at the time the method he adopted for the examination was an acceptable manner of performing a respiratory examination. The respondent described sitting on the middle of the bed, behind and at a 45 degree angle to the patient. Having listened to the patient's posterior chest, he reached over the patient's shoulder to examine the right upper anterior chest and then reached around with his right hand, under the patient's gown to examine the right lower anterior chest, under the patient's breast. He said this was consistent with text book method for such an examination.
His statement (RX 1) annexed a copy of an extract from Mosby's Guide to Physical Examination by Seidel (7th edition) and Talley and O'Connor, Clinical Examination (4th Edition) 2001. He said, however, that in view of the report of Dr Golding of 29 August 2016 he now accepts that the manner of examination was not appropriate in the circumstances and was a failure to maintain appropriate professional boundaries. He has altered the method adopted for chest examination to conform to the opinion of Dr Golding and the medical members of the Tribunal.
In respect of particular 3(d) the respondent says that there was no intent on his part to sexualise the visit or the medical examination he conducted. He was embarrassed that he became sexually aroused and regrets it and asserts that it was not his intention to engage in any sexual behaviour. When he became erect he immediately ceased the examination and stepped away from the patient. We accept his evidence that he was very uncomfortable and embarrassed.
In his report of 6 February 2017, Dr Golding commented upon the absence of a chaperone during the course of the examination, an examination which was taking place outside business hours, on a patient who had been woken from sleep and having been returned to the ward following surgery. It is significant, once again, to note that the respondent was not part of the treating surgical team.
In respect of particulars 3(b) and (d), the Tribunal is of the view that it would have been assisted by the evidence of Patient A, having in mind the standard to which we are required to be satisfied by the judgment in Briginshaw v Briginshaw (1938) 60 CLR 336. The members of the Tribunal are of the view that it has not been established that the manner in which the respondent's hand came into contact with the breast of Patient A was sexual in nature, but occurred in an ineptly conducted and very ill advised examination. The examination was unnecessary and was conducted inappropriately and in the absence of a chaperone.
We are not comfortably satisfied that there was any sexual motivation in this examination. Otherwise, we find the particulars established.
Particular 4 is as follows: 4. On 24 October 2013, immediately following the chest examination and after having become sexually aroused, the practitioner failed to maintain appropriate professional boundaries in that he: (a) stood up and remained in close proximity to Patient A; . . . . (c) made a movement with his hand in the area of his penis; (d) engaged in inappropriate behaviour of a sexual nature towards Patient A, by reason of his actions at (a) and (c) above alone or in any combination.
The respondent does not admit particular 4(d).
Counsel for the respondent submits that because the credit of the respondent as a truthful witness was not challenged during his cross-examination, he should be accepted as a witness of truth. Counsel for the applicant, on the other hand, submits that we should reject much of his evidence and submitted, though later withdrew, the respondent, in respect of a number of matters, had recently invented his evidence. We find no basis for such a submission and when it was pointed out, it was properly withdrawn.
Nevertheless, it is trite to say, as Dr Golding said in his report of 6 February 2017 that a medical professional should not allow a situation to develop which results in sexual arousal while clinically interacting with a patient. Implicit in that observation is that there is an intention or a purpose in a medical practitioner to produce a sexual arousal. Having heard the respondent and given his evidence the most careful scrutiny, we accept the evidence that his erection was involuntary and spontaneous. When it occurred, he stepped back and did not remain with the patient. Also, we are troubled by the absence of evidence from which "close proximity" referred to in particular 4(a) may be determined.

OBSERVATIONS ON PROFESSIONAL BOUNDARIES AND OTHER MATTERS

It should not be necessary to say that if a practitioner decides to pay a social visit to a former patient, the visit should be brief, conducted during ordinary business hours and with the knowledge of ward staff. In the event that a clinical issue is raised by the patient it should be referred to the treating practitioner or team, ideally by the patient.
Examinations or treatment should never be carried out on a social visit. The consent of the patient does not justify such action and it cannot be considered to be "informed" where the relevant professional mores of medical practice are unlikely to be fully appreciated by the patient. Professional boundaries must always be considered in relation to a practitioner's interaction with a patient.
Professional boundaries should also be considered in relation to contact between medical professionals. In a hospital setting, when the care of a patient is transferred from one practitioner to another or to a team, the first practitioner must ensure that any subsequent interaction with a patient occurs with the full knowledge and consent of the treating practitioner. Only in a case of medical emergency is it appropriate for a practitioner to resume treating a patient without the knowledge and consent of the treating practitioner. At best it is disrespectful and a professional discourtesy; at worst it may have serious consequences for the patient.

FINDINGS

In respect of the particulars which were not admitted we make the following findings: 1. On Complaint One, particulars 2(d) and 3(b) are established. Particulars 3(d) and 4(d) have not been established. 2. On Complaint Two we make the same findings. 3. Complaint Three has not been established.
In our view, it is significant that from the very outset the respondent admitted the objective nature of his conduct, that is to say, he admitted what had occurred, but did not agree that his motives or intention, where they are relevant, were those which form the basis of the complaints against him. In this respect, we accept his evidence and are of the view that while he is guilty of unsatisfactory professional conduct we are not satisfied that professional misconduct has been established. 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: 30 March 2017

86a) Health Care Complaints Act 1993(NSW)

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