• The respondent's conduct was extremely serious and represented a substantial departure from appropriate standards.
• The respondent's conduct infringed fundamental rights of the patient and invaded the patient's body, privacy and dignity without informed consent.
• Comment concerning the exercise of privilege against incrimination in relation to disciplinary proceedings.

Health practitioners - Complaint by the Medical Board of Australia - Professional misconduct - Intimate physical examination without the patient's informed consent - Registration cancelled, practitioner permanently prohibited from providing any health service, reprimand

Health Practitioner Regulation National Law (South Australia) ss 193, 196

Ms M Barnes, Australian Government Solicitors, appeared for the complainant

Mr M Dadds and Mr M Jandy, Dadds Jandy Lawyers, for the respondent

Under s 60 of the South Australian Civil and Administrative Tribunal Act 2013 the Tribunal has prohibited publication of the name of, or any material tending to identify, the patient referred to in the complaint.

1. This is a disciplinary proceeding in respect of a medical practitioner.
2. The matter has been referred to the Tribunal by the Medical Board of Australia (the Board) under s 193 of the Health Practitioner Regulation National Law (South Australia) (the National Law).[1]
3. A notification was first made to the Board in May 2019, but the conduct in question occurred in May 1988.[2]
4. The parties have provided to the Tribunal a Statement of Agreed Facts.[3] It incorporates a joint submission as to the disciplinary action the Tribunal might impose. The Tribunal also has before it a Book of Documents.[4] This provides a background against which the Agreed Facts are to be understood.
5. We reproduce the Statement of Agreed Facts in full:

STATEMENT OF AGREED FACTS

Background

1. At all material times, the Respondent held general registration as a medical practitioner and specialist registration in the area of general practice.
2. At all material times, the Board's Professional Conduct and Discipline 1985 ("Code of Conduct") applied to the Respondent and his provision of medical care to the Notifier ("AB").
3. At all material times, the Respondent practised in several medical practices, including a medical practice located at 107 Goodwood Road, Goodwood ("the practice").
4. AB first became a patient of the Respondent in or about 1985.
5. Thereafter, AB consulted with and received medical treatment from the Respondent as a patient in connection with medical conditions, including for the purpose of obtaining medical certificates.

1. On 31 May 1988, AB attended an appointment with the Respondent at the practice ("the consultation").

7. The Respondent says the notes of the consultation are no longer in existence.

8. The Respondent states that he has no specific memory of the consultation.

1. AB states that she attended the consultation with the Respondent as she had done on other occasions in order to obtain a medical certificate as required by her university in order to sit a supplementary exam.
2. AB alleges, and the Respondent accepts, that AB attended the consultation in relation to a complaint of feeling unwell and to obtain a medical certificate. AB believes that the Respondent asked her where she felt unwell and she replied by either placing the palm of her right hand on her stomach below the chest area or by responding that it was her stomach. The Respondent told her he had to conduct a physical examination and asked her to lie on her back on the examination bed in the consulting room. The Respondent placed both of his hands on AB's exposed stomach, pressing firmly on her mid-torso area. Without explaining adequately to AB the proposed manner and/or purpose of the examination and/or the finding of the examination, the Respondent then conducted an internal examination ("the examination") of AB's vagina with his right hand while continuing to press down with his left hand around her lower abdomen. The Respondent then went back to his desk and completed a medical certificate.

11. AB experienced considerable pain and distress as a result of the examination.

Accepted practice

1. The accepted practice or procedure for a patient with AB's presentation was, as at 31 May 1988:

12.1 first, by making a general assessment of the patient

12.2 making a request for permission to both alter clothing covering the abdomen before placing hands on the abdomen assessing any generalised or local tenderness including any indicated in the upper abdomen. This is preceded by an explanation of the medical need for the examination to be performed coupled with a formal request for the patient to consent to such an examination

12.3 before considering an internal examination making a careful assessment as to the need to perform the examination and to fully explain to the patient the medical reasoning supporting the need for an internal examination

12.4 an internal examination is indicated where the doctor has reason to suspect that significant pelvic pathology is present related directly to the symptoms presented, which could include ovarian cysts, torsion, pelvic inflammatory disease, early pregnancy problems including ectopic pregnancy for example.

Informed Consent

1. AB alleges, and the Respondent accepts he did not adequately explain to AB the proposed manner and/or purpose of the examination and accordingly, did not obtain adequate informed consent before conducting the examination.
2. It was inappropriate for the Respondent to proceed with the examination in the absence of adequate informed consent.
3. The inadequacy of the explanation and the deficit of informed consent when the examination was performed are together described as "the conduct".

16. The Respondent acknowledges:

16.1 He did not treat AB with respect. He was insensitive to AB's needs

16.2 He did not provide information about the examination in a way that would have enabled AB to understand what was to follow

16.3 He did not encourage AB to ask questions about the examination, or allow AB a proper opportunity to object to the examination.

1. The Respondent acknowledges and apologises for AB's distress arising from his conduct.
2. The Respondent accepts that he engaged in professional misconduct, in that the conduct was substantially below the standard reasonably expected of a registered medical practitioner of the Respondent's level of training or experience.

1. The Parties invite the Tribunal to make the following orders pursuant to s.196 of Schedule 2 (National Law) to the Health Practitioner Regulations National Law (South Australia) Act 2010 (SA):

19.1 An order pursuant to s.196(1)(b)(iii) that the conduct constitutes professional misconduct;

19.2 An order pursuant to s.196(2)(a) reprimanding the Respondent;

19.3 An order pursuant to s.196(4)(b)(i) permanently prohibiting the Respondent from providing any health service (as defined by s 5 of the National Law);

19.4 An order pursuant to s. 196(2)(e) cancelling the Respondent's registration; and

19.5 An order pursuant to s.195 that the Respondent pay the Board's costs of and incidental to the proceedings, to be adjudicated by the Tribunal unless agreed.

1. The Parties also acknowledge and agree that AB has been informed of the proposed terms of this agreement.
2. The Tribunal is prepared to deal with the matter in the manner suggested by the parties.
3. In 1988 the respondent held general registration pursuant to the Medical Practitioners Act 1983 (SA). Since the commencement of the National Law, he has held general registration and registration as a general practitioner. With this slight modification, we make findings in accordance with the Agreed Facts and as indicated in these Reasons.
4. The respondent's conduct was extremely serious. The patient (AB) was 21 years old at the time. To carry out an internal vaginal examination without first providing "information about the examination in a way that would have enabled AB to understand what was to follow",[5] and without obtaining informed consent, was a substantial departure from appropriate standards. Dr Moschou infringed fundamental rights of the patient. He invaded the patient's body, privacy and dignity without informed consent. He embarked on an intimate examination without adequate warning or explanation. He treated the patient in a way that lacked sensitivity, consideration and respect.
5. The internal vaginal examination was painful and unexpected. It is not at all surprising that it shocked the patient and caused her to perceive what had occurred as a sexual assault.
6. We have no doubt that the respondent's conduct constituted professional misconduct. He has admitted that this is so. Professional misconduct is the most serious category of misconduct by a registered health practitioner.
7. The patient read a "victim impact statement" to the Tribunal and to Dr Moschou. She described the profound effect the respondent's conduct has had on her life. This has included fundamental difficulties in being able to trust other persons, particularly males. Her difficulties with trust have affected her intimate and family relationships, her ability to access medical care, and her relationships within the social and working environments. She described the effect on her physical and mental health. The patient's emotional pain was evident on the reading of her statement.
8. After hearing the victim impact statement, the respondent through his counsel acknowledged the patient's evident pain and distress. Counsel indicated that Dr Moschou was shaken by the fact that his conduct had caused such pain and distress and that he was mortified and deeply remorseful.
9. Counsel for the Board acknowledged that there had been other events during the intervening years that had contributed to the difficulties experienced by the patient. That does not diminish the fact that the respondent's conduct has continued to have a profound impact to the present time.
10. The purpose of disciplinary action is entirely protective and does not involve any element of punishment. We are satisfied that the protection of the public is appropriately secured by the sanctions which are jointly proposed by the parties.
11. Accordingly, our orders shall be as follows:

(a) The Tribunal decides that the respondent has behaved in a way that constitutes professional misconduct.

(c) The registration of the respondent is cancelled.

(d) The respondent is permanently prohibited from providing any health service ("Health service" has the meaning that it has in the National Law).

(e) The respondent must pay the complainant's costs of and incidental to these proceedings to be agreed or fixed by the Tribunal.

1. We add a general comment that is unrelated to our findings or orders in this matter.
2. When interviewed by AHPRA concerning these allegations, the respondent declined to answer questions concerning his treatment of the patient on the basis of privilege against incrimination. There can be no criticism of the respondent for this. It is his right to do so under the National Law.[6] No adverse inference can or should be drawn from the exercise of that right.
3. More generally, however, a member of the public might think it strange that a registered health practitioner is able to decline to give an account to the professional regulator with respect to conduct occurring in the course of professional practice. The National Law allows a practitioner to so decline (in a case such as the present). There are other disciplinary regimes which deal with this issue differently. Some disciplinary regimes, for example, require that a registered person answer allegations and questions put by the regulator, but provide that the answers cannot be used in any subsequent criminal proceedings. It is not appropriate for this Tribunal to advocate for a particular policy position. However, this is an area of policy that might merit re-consideration in the light of current community expectations. That consideration, of course, is a matter for the various authorities which have responsibility for the legislation underpinning the national scheme.

Order under s 60 SACAT Act

1. The Tribunal has prohibited publication of the name of, or any material tending to identify, the patient referred to in the complaint.

1. [1] The National Law is found in schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (the Act).
2. [2] The disciplinary provisions of the National Law apply to the subject conduct as a result of the operation of clause 40 of schedule 1 to the Act.

[6] National Law Schedule 5 clause 2 (3).