Health Care Complaints Commission v Wilcox

Facts

1. In 2006, Patient A was working at an aged care facility in a suburb of Sydney.
2. On 20 December 2006, Patient A apparently suffered a work injury. Patient A's account of this incident was that she was required to carry 20 litre oil tins up four rungs of a ladder to place them on a shelf as part of stock rotation, and that this caused pain in the right side of her neck, lower back and shoulders, together with cramps in her fingers.
3. On 23 December 2006, Patient A left work on account of her injury, and then returned to work on 13 January 2007. She then performed her normal duties until 31 July 2007.
4. In July or August 2007 an elderly lady resident at the facility grabbed Patient A's left index finger and clenched it. Patient A's finger swelled.
5. Patient A continued to work, but went to see Dr Khan on about 10 August 2007. He x-rayed her finger.
6. Patient A continued at work for a few days, on light duties, but left work a few days later, and did not return.
7. Patient A went to New Zealand at the end of August 2007.
8. At some time shortly prior to June 2016, Patient A contacted the insurer ('the insurer') of her employer in 2006/2007 ('the employer') seeking workers compensation in respect of the injuries she said that she had suffered whilst working for the employer.
9. The insurer made an appointment for Patient A to be assessed by Dr Wilcox on 29 June 2016. However, Dr Wilcox then became unavailable on that day, so the appointment was rescheduled for 6 July 2016.
10. Dr Wilcox obtained his medical degree from the University of Manchester, UK, in 1966. He became a Fellow of the Royal College of Surgeons, Edinburgh, in 1972. He was first registered as a medical practitioner in New South Wales on 6 January 1974.
11. Dr Wilcox practised as a surgeon until the mid-1980s, when his health deteriorated.
12. Dr Wilcox currently holds general registration.
13. Dr Wilcox's practice, at the time of his consultation with Patient A, was as an independent medico-legal assessor.
14. The consultation between Dr Wilcox and Patient A ('the consultation'), for the purposes of the medico-legal assessment of Patient A, in the context of her application for workers compensation, proceeded on 6 July 2016. We will deal with the relevant allegations regarding that consultation below.
15. At the time of the consultation, Dr Wilcox was recovering from a hemicolectomy he underwent on 18 April 2016. The consultation was his first medico-legal appointment after his surgery.
16. Dr Wilcox prepared a report for the insurer, dated 11 July 2016, in relation to Patient A, based upon the information he collected during the consultation. Dr Wilcox sent the report to the insurer on or about 11 July 2016, and the insurer received it a day or two later.
17. Patient A telephoned Dr Wilcox's room at least once subsequent to 6 July 2016, seeking to know what Dr Wilcox was saying in his report.
18. Patient A received a copy of Dr Wilcox's report in the post on 2 August 2016 and we are satisfied that she read it on that day. In evidence she denied reading the report on 2 August 2016 and at one point denied reading it at all.
19. On 3 August 2016, Patient A telephoned her lawyer, Mr Ohm. Later that day, she received a letter from Mr Ohm by email and entered into an email exchange with him. It is evident from that correspondence that, on 3 August 2016, in the course of their telephone call, Patient A had complained to Mr Ohm about Dr Wilcox's conduct towards her at the consultation on 6 July 2016. In one of her emails to Mr Ohm on 3 August 2016, Patient A was recounting her visit to Dr Singh that day, and wrote: "The doctor [i.e. Dr Singh] said the examining doctor's report [i.e. Dr Wilcox's report] won't hold much as I have got a lot of evidence from various doctors, also scans, cortisone and injections, carpal tunnel syndrome and he said we will wait for the report from CCJ.". We draw the inference from those words that Patient A was aware, on 3 August 2016, of the content of Dr Wilcox's report about her.
20. As we have said, Patient A also went to see her general practitioner, Dr Singh, on 3 August 2016, in the morning. She saw him again on 5 August 2016.
21. Patient A made a complaint to the HCCC with respect to Dr Wilcox on 4 August 2016.
22. Patient A made her first statement to the police with respect to her allegations against Dr Wilcox on 5 August 2016. She submitted amendments to that report to the police on 18 August 2016. She made a further statement to the police on 18 March 2017.
23. Patient A gave a statement in relation to her complaint to the HCCC on 31 August 2017.

Patient A's accounts of the consultation

1. The consultation on 6 July 2016 between Dr Wilcox and Patient A took about two hours.
2. On the evidence before us, Patient A gave the following accounts of the consultation on 6 July 2016 prior to the hearing: 1. On 3 August 2016, a verbal account to her lawyer in the workers compensation matter, Mr Ohm. 2. On 3 August 2016, a verbal account to her general practitioner, Dr Paul Singh. 3. On 4 August 2016, a 4 page written account by email to the Medical Council. 4. On 5 August 2016, a 3 page written account dated 3 August 2016 was received by the HCCC, together with a letter dated 4 August 2016 from Patient A. 5. On 5 August 2016, a 5 page statement to the NSW police. Patient A subsequently submitted amendments to this statement, probably on 18 August 2016. 6. On 18 March 2017, a 4 page statement to the NSW police. 7. On 31 August 2017, a statement to the HCCC.
3. In the course of the hearing before us, Patient A gave a further account of parts of the consultation.
4. Patient A claimed, in the course of her evidence, that she had, on 30 July 2016, received a telephone call from a case manager at the insurer, whose name was Melissa. Patient A said that she complained about Dr Wilcox's conduct to Melissa in that telephone call. The 30 July 2016 was a Saturday. Further, an email was adduced in the respondent's case from Melissa to Patient A, dated 8 August 2016, from which we infer that the first notice the insurer (and Melissa) had of Patient A's complaint about Dr Wilcox was the written account provided 2016 to the insurer with Patient A's letter of 4 August 2016. Melissa died some time prior to the hearing in this matter. We reject Patient A's evidence that she complained of Dr Wilcox's conduct to Melissa in a telephone call on 30 July 2016.
5. Patient A and her husband both gave evidence that Patient A complained to her husband of Dr Wilcox's conduct in the evening of 6 July 2016. Their accounts were significantly different from each other. In addition, Patient A's husband, in evidence, gave further conflicting accounts.
6. Patient A's husband provided a statement to the HCCC, dated 14 July 2018, which was slightly more than two years after the consultation between Patient A and Dr Wilcox.
7. In evidence, Patient A's husband agreed that he did not make any notes of his conversation with Patient A in the evening of 6 July 2016. In evidence, he denied reading any of Patient A's statements to assist in the writing of his own statement in 2018. We are satisfied, however, that the content of his statement was taken from one of Patient A's statements, either directly, or with Patient A's assistance. This is suggested by the language of his statement, the events highlighted and the level of detail, including dates, that it contains despite having been prepared more than two years after the event.
8. Patient A's husband gave some of his evidence with his statement in front of him and some of his evidence without the use of his statement. When he stopped looking at his statement, his evidence about the period of time around 6 July 2016 was limited to what he could remember of his statement. Perhaps unsurprisingly, he seemed to have little to no independent recollection.
9. Patient A's husband said that he was unaware that Patient A had made a complaint to the police. He also said that he was unaware that Patient A had been paid compensation in the sum of $37,000 by the insurer in the month before the hearing.
10. We do not accept the account of Patient A, or the account of Patient A's husband, as to the conversation between them in the evening of 6 July 2016. When giving evidence, Patient A exhibited a marked tendency to launch into stories about events in the past at a level of detail which was unlikely to have been retained by her memory. She was evasive and discursive. She frequently sought to steer her evidence to matters she deemed important and favourable to her. In an email of 8 August 2016 to Melissa at the insurer, Patient A wrote, in relation to the events that she was alleging occurred at the consultation on 6 July 2016: "I didn't even tell my husband as I was ashamed and he would have got very angry …"
11. We find that Patient A first complained of Dr Wilcox's behaviour on 3 August 2016 after she read his report on 2 August 2016.
12. The five written statements produced by Patient A are all different. In each of them, a different story about the consultation is told in which Dr Wilcox behaved in an inappropriate manner, ranging from touching Patient A without any clinical reason to do so, to attempted and actual sexual assault.
13. Some of the differences in Patient A's five written statements are minor, and could, perhaps, be explained by the passage of time between the giving of the statements. However, a significant number of the differences are major, and many of these major differences relate to Patient A's allegations as to what Dr Wilcox did in the course of examining her. For example, there are a number of allegations of inappropriate sexualised behaviour levelled against Dr Wilcox in Patient A's statement of 31 August 2017 which do not appear in any of the previous statements. There are a number of inconsistencies in Patient A's accounts; for example, in her statement to the police on 5 August 2016, Patient A states specifically that Dr Wilcox never put his hand inside her bra. Patient A then contradicts this in the subsequent statement to the police of 18 March 2017 and her statement to the HCCC dated 31 August 2017.
14. In evidence, Patient A said that she believed that the statement of 31 August 2017 was the most accurate statement, because it was made after she had a course of therapy from a psychologist. Patient A mentioned having been 'blocked'. There was no medical or psychological evidence to support Patient A's belief in this regard. Her statement of 31 August 2017 was the furthest away, in time, from the consultation and, as we have said, contained some new allegations against Dr Wilcox.
15. In evidence, Patient A indicated that, when she was giving her statement of 31 August 2017, she felt 'rushed', but her account of how long the giving of that statement took, and the circumstances of the giving of it, changed during her evidence.
16. In evidence, Patient A said that she did not read her statement of 5 August 2016 properly before signing it on every page because she felt embarrassed giving her statement to a man she did not know and she felt traumatised. She indicated that this was the reason for all the discrepancies.
17. Patient A's first written statement in relation to the consultation was made the day after she received a copy of Dr Wilcox's 15 page report, dated 11 July 2016, which was unfavourable to her claim for workers compensation. We do not consider that any of Patient A's accounts of the consultation of 6 July 2016 is reliable and where her account is contradicted by other evidence, including the evidence of Dr Wilcox, we prefer that evidence.

Dr Wilcox's accounts of the consultation

1. Dr Wilcox responded to Patient A's allegations in a letter of 31 August 2016 and in a further letter of 28 May 2018. Dr Wilcox denied that anything improper had occurred in the course of the consultation.
2. In cross-examination, Dr Wilcox indicated that he had very little independent recollection of the consultation when he addressed specific allegations of Patient A in his letter of 28 May 2018. He indicated that his responses were an attempt to explain some of the things that Patient A said had happened, rather than constituting admissions. This is clearly an unsatisfactory way of dealing with allegations.
3. In evidence before us, Dr Wilcox said that he had almost no recollection of the consultation, and could only rely on his handwritten notes to respond to questions.
4. In evidence before us, Dr Wilcox speculated about what might have happened in the consultation, and seemed to resile from some of the admissions he made in his Reply. Given that Dr Wilcox admitted that he had almost no recollection of the events of the consultation, we will rely on his Reply and will not take his speculation into account, as it did not purport to constitute evidence of fact.

Proof

1. In medical disciplinary matters, the factual content of an allegation must be established on the balance of probabilities, and the question as to whether that level of proof has been reached is to be assessed having regard to all of the relevant evidence before the Tribunal (see Health Care Complaints Commission v Young [2019] NSWCATOD 191 at [17]-[18]).
2. Although the evidentiary burden referred to in Briginshaw v Briginshaw [1938] HCA 34: (1938) 60 CLR 336 at 362 is not applicable in these proceedings by force of law, we consider that it is appropriate, on account of the nature of the allegations made by Patient A against Dr Wilcox, that we be mindful, in reaching conclusions about the facts alleged in Particulars 3 and 5 of the amended complaint, of the gravity of the allegations and the seriousness of the consequences which may flow in the event that positive findings are made. (See Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 and Health Care Complaints Commission v Von Marburg [2019] NSWCATOD 85 at [10]-[12]). We note, however, that our conclusions would be the same whether or not we were mindful of Briginshaw considerations.

The allegations in the amended complaint

1. In Particular 2 of the amended complaint (which is the first particular in the amended complaint), it is alleged that Dr Wilcox failed to observe appropriate professional boundaries in that he made inappropriate disclosures to Patient A about himself and his family. We will deal with the alleged disclosures in turn: 1. That he had cancer. Dr Wilcox admitted, in his Reply, that he mentioned to Patient A that he had recently had surgery for cancer and that he had a large scar. This allegation is proven. 1. That he did not want to die. Dr Wilcox denied saying this. We are not satisfied that he said it. 1. That his wife was old. Dr Wilcox denied saying this. We are not satisfied that he said it. 1. That his son was a veterinary physician. Dr Wilcox, in his Reply, admitted that he had told Patient A that his son was becoming a veterinary surgeon. This allegation is proven. 1. That he was not happy with his son becoming a veterinary physician. Dr Wilcox denied saying this. In evidence, he indicated that it was far from being the truth. We are not satisfied that Dr Wilcox said this. 1. That he had recently undergone abdominal surgery to treat cancer. Dr Wilcox, in his Reply, admitted saying this. This allegation is proven. 1. That he had a large scar from recent surgery that went from part way up his torso down to near his groin. Dr Wilcox, in his Reply, admitted telling Patient A that he had a large scar. We are satisfied that he told Patient A that his scar went from part way up his torso down to near his groin.
2. In Particular 3 of the amended complaint, it is alleged that, whilst undertaking an examination of Patient A's arms and shoulder during which Patient A was standing and positioned near a wall, the practitioner: 1. Inadvertently brushed his stomach against Patient A's back in circumstances where there was no clinical indication to do so. Dr Wilcox has a protruding abdomen. We accept his evidence that the reason for that is that he has a large number of cysts in his liver, and that the protuberance is, in fact, his grossly enlarged liver, which is just under his skin. We accept his evidence that brushing his abdomen against anything is very painful to him. We are not satisfied that Dr Wilcox brushed his stomach (which we take to mean his abdomen) against Patient A, inadvertently or in any other way. 1. deleted 2. deleted 3. Inadvertently brushed Patient A's breasts with his arm on a number of occasions whilst undertaking measurements of her arms and shoulder in circumstances where there was no clinical indication to do so. Dr Wilcox denied this allegation in his Reply. Patient A, in her accounts of the consultation, made allegations that Dr Wilcox made contact with her breasts deliberately. Her accounts vary widely as to the nature of the contact, both as to whether it was Dr Wilcox's hand or arm or elbow, which part of her breast was touched, in what circumstances, and for what duration. None of Patient A's accounts can readily be interpreted as a misinterpretation by her of the inadvertent touching of her breast. Dr Wilcox has very little memory of the consultation. He concedes that it is possible that part of his arm inadvertently touched Patient A's breast. We do not consider that, on the evidence before us, we can be satisfied that there was any inadvertent brushing of Patient A's breasts by Dr Wilcox's arm.
3. In Particular 5 of the amended complaint, it is alleged that the practitioner failed to provide adequate privacy to Patient A in that: 1. he did not offer to leave the room and/or leave the room when Patient A was disrobing; Dr Wilcox, in his Reply, admitted that he did not offer to leave the room nor leave the room whilst Patient A was disrobing as observation during this process is part of the medico-legal assessment. We are satisfied that this allegation has been proven. 1. he did not provide a gown to Patient A to maintain her dignity and modesty. Dr Wilcox, in his Reply, admitted that he did not offer Patient A a gown. We are satisfied that he did not provide a gown, either.
4. It is alleged in the amended complaint that each of these particulars constitutes unsatisfactory professional conduct under s 139B(1)(a) and/or (l).
5. We were provided with a report of Dr Kertesz, dated 21 March 2018. Dr Kertesz was asked by the HCCC to provide his opinion as to whether various of Patient A's allegations against Dr Wilcox in her statement to the HCCC dated 8 August 2017 amounted to conduct calling for a disciplinary response by the HCCC. We will consider only Dr Kertesz's opinion with respect to the allegations we have found to have been established on the balance of probabilities.
6. In relation to Dr Wilcox mentioning to Patient A that he had cancer, that he had recently undergone major abdominal surgery and that he had a large scar from part way up his torso to near his groin, Dr Kertesz expressed the view that, although understandable as a method of establishing rapport, Dr Wilcox's discussion of his own surgical management was below the standard expected of a practitioner of an equivalent level of training or experience.
7. Dr Kertesz said that Dr Wilcox discussing his family with Patient A, in the context of a medico-legal consultation, was inappropriate and significantly below the standard expected of a practitioner of an equivalent level of training and experience. Dr Kertesz was discussing, together, all of the allegations with respect to Dr Wilcox discussing his family. We are concerned only with the statement that his son was becoming a veterinary surgeon. In all of the circumstances, we consider that this comment, by itself, was unobjectionable.
8. Sub-particulars 2(b), (c) and (e) have not been established. Sub-particular 2(d) has been established but is not, in our opinion, objectionable. Sub-particulars 2(a), (f) and (g) have been established. We consider that Sub-particulars 2(a), (f) and (g) together constitute unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law in that they demonstrate that the care exercised by Dr Wilcox was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience. This is because Dr Wilcox failed to maintain appropriate professional boundaries between himself and Patient A in the context of a medico-legal consultation.
9. As to Particular 5, Dr Kertesz's opinion was that Dr Wilcox's behaviour in failing to either offer to leave the room, or to leave the room, whilst Patient A was disrobing, and his failure to provide a gown, each fell significantly below the standard expected of a practitioner of an equivalent level of training or experience. We agree. We reject Dr Wilcox's argument that it was appropriate for him to watch a patient disrobe as part of the assessment of whether their mobility was impeded. It is not appropriate for a medical practitioner to use the disrobing by the patient in that way. We also reject the explanation that, had Patient A wished to have a gown, Dr Wilcox would have provided her with a gown at her request. A patient cannot be expected to initiate such a request. A gown should be offered, and readily available. Dr Wilcox's failure to offer to leave the room or to leave the room whilst Patient A was disrobing constituted unsatisfactory professional conduct within the meaning of s 139B(1)(a) of the National Law. The failure to offer a gown also constituted unsatisfactory professional conduct under the same provision.

Orders

1. The Tribunal's powers to make orders in disciplinary matters are set out in Part 8, Division 3, Subdivision 6 of the National Law.
2. In Health Care Complaints Commission v Della Bruna [2014] NSWCATOD 31 at [88], the Tribunal said: 88 In determining the appropriate protective orders that it should make in this matter, the Tribunal is guided by the following considerations: (1)In the exercise of its functions under Subdivision 6 of Division 3 of Part 8 of the National Law, the protection of the health and safety of the public must be the Tribunal's paramount consideration - s 3A of the National Law. (2)Disciplinary proceedings against members of a profession are intended to maintain proper ethical and professional standards, primarily for the protection of the public but also for the protection of the profession - Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637, (3)The public interests served by protective orders include, indirectly, the standing of the medical profession and the maintenance of public confidence in the high standards of medical practitioners - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (4)Protective orders also involve an element of deterrence or, to put it more positively, encouragement to other practitioners to recognise the importance of complying with professional standards and the risks of failing to do so - Prakash v Health Care Complaints Commission [2006] NSWCA 153 at [91]. (5)Although the specific purpose for which the Tribunal makes orders is protective of the public interest and not punitive with respect to the practitioner, that is not to deny that such orders may be punitive in effect and that punitive effect may be relevant in formulating a protective order - Lee v Health Care Complaints Commission [2012] NSWCA 80 at [20] citing Director General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523 at [83].
3. We bear those matters in mind. It is relevant to consider Dr Wilcox's conduct in context. Dr Wilcox is an elderly man, who was, at all material times, in very poor health. He has, for a considerable number of years, confined his practice to medico-legal assessments. Five favourable character references for Dr Wilcox were provided, to which we have had regard. Dr Wilcox acknowledged that it was good practice to provide a robe to a patient who is required to disrobe. We think that it is unlikely that Dr Wilcox will make the errors he made in this case in any future consultation.
4. In all of the circumstances, we make the following orders: 1. Dr Wilcox is cautioned in relation to unsatisfactory professional conduct in that he made inappropriate personal disclosures to a patient. 2. Dr Wilcox is reprimanded for unsatisfactory professional conduct in that he failed to provide adequate privacy to a patient when that patient was disrobing, by omitting to offer to leave the room or by omitting to leave the room. 3. Dr Wilcox is reprimanded for unsatisfactory professional conduct in that he did not provide a gown to a patient for her use when she was partially disrobed. 4. The parties may make any applications and submissions in writing in relation to costs, including submissions as to whether the question of costs may be decided on the papers, within 21 days of the publication of this decision. In the event that a party makes an application for costs, the other party has 14 days from the date of that application to respond in writing to the Tribunal. 5. Under clause 7 of Schedule 5D of the Health Practitioner Regulation National Law (NSW), the publication of the name of the patient set out in the schedule to the complaint, and the name of the spouse of that patient, is prohibited. 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: 13 February 2020