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[2007] WASAT 52
State Administrative Tribunal (WA)
2007-02-23
Original judgment source is linked above.
ACT : MEDICAL ACT 1894 (WA)
CITATION : MEDICAL BOARD OF WESTERN AUSTRALIA and ALIZADEH [2007] WASAT 52
MEMBER : HON R VIOL (SUPPLEMENTARY DEPUTY PRESIDENT)
Vocational regulation - Medical practitioner - Single attendance on patient - Whether conduct and/or mode of examination constituted infamous or improper conduct or gross carelessness or incompetence
Medical Act 1894 (WA), s 13, s 13(1)(a), s 13(1)(c)
1 On 21 February 2005 a young woman (the patient) attended the respondent (a medical practitioner) in his rooms at the Central City Medical Centre, Wellington Street, Perth.
2 It was the patient's first and only attendance on the respondent.
3 In May 2005 the patient made a complaint to the Medical Board of Western Australia (the applicant) complaining of the conduct of the respondent at the attendance and in particular the method by which the respondent examined her.
4 After obtaining the respondent's response to the complainant, on 31 January 2006, the applicant applied to the State Administrative Tribunal pursuant to the provisions of the State Administrative Tribunal Act 2004 (WA) alleging two matters of complaint against the respondent and seeking a hearing and determination of the matter by the Tribunal.
5 The Tribunal, having heard and considered the evidence, determined that the respondent was guilty of improper conduct in a professional respect and gave the parties leave to make oral submissions as to penalty and costs.
6 On 21 February 2005, a young woman (the patient) attended Dr Behzad Alizadeh (the respondent) in his rooms at the Central City Medical Centre, Wellington Street, Perth.
7 At the time of the attendance (the attendance) the patient was visiting Australia from England and after leaving Western Australia went to the Eastern States.
8 In May 2005 the patient made a complaint to the Medical Board of Western Australia (the applicant or the Medical Board) complaining of the conduct of the respondent at the attendance and in particular the method by which the respondent examined her.
9 The applicant wrote to the respondent setting out, inter alia, the patient's complaints concerning the respondent. The respondent replied by letter to the applicant dated 30 September 2005 (Exhibit 1, page 7)
10 On 31 January 2006, the applicant applied to the State Administrative Tribunal pursuant to the provisions of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) alleging two matters of complaint against the respondent and seeking a hearing and determination of the matter by the Tribunal.
Allegations, the respondent's response and other matters
11 In its application, the applicant sought the following orders from the Tribunal:
(ii) have his registration suspended for a period not exceeding 12 months; or
12 The amended grounds (allegations) on which the applicant sought the orders were:
"(1) Dr Behzad Alizadeh (the respondent) may be guilty of infamous or improper conduct in a professional respect contrary to section 13(1)(a) of the Medical Act 1894 (as amended) (the Act) in that during the course of a consultation with the Patient which took place at the Central City Medical Centre in Wellington Street, Perth on about 21 February 2005 and during which the Patient complained only of pain in her left rib cage (the consultation) he:
(c) exposed and examined both of the Patient's breasts with his hands;
(d) asked the Patient to lie on her front, held both her breasts with his hands, manoeuvred the Patient's thoracic spine and leaned into her so that he was almost lying on top of her;
(e) performed the examined [sic] described in paragraph 1(d) without first inviting the Patient to replace her bra;
(i) there was no clinical or other justification for examining the Patient's right breast, performing the examination described in paragraph 1(d) or performing any examination of the sort described in paragraph 1(d) without first inviting the Patient to replace her bra;
(ii) in carrying out the Consultation in this manner the Respondent disregarded the Patient's feelings of embarrassment;
(iii) the Respondent knew or ought to have known the Patient would be humiliated by the manner in which he conducted the Consultation;
(iv) the Respondent evinced a gross disregard for the Patient's dignity by the manner in which he conducted the Consultation;
(v) in so conducting the Consultation, the Respondent exploited the Patient's vulnerability and abused the trust she was entitled to repose in him.
(2) The Respondent may be guilty of gross carelessness or incompetence contrary to section 13(1)(c) of the Act, or alternatively infamous or improper conduct contrary to section 13(1)(a) of the Act, in that during the course of the consultation he performed the following acts, namely:
(ii) informing the Patient of his intention to perform the Acts;
(iii) obtaining the Patient's consent to perform the Acts."
13 As to (iii), the applicant, at the hearing, proceeded on the basis that the consent was to be either "express" or "reasonable", the latter depending on the circumstances and what the patient was advised by the respondent prior to the examination.
14 As to ground (1), the respondent agreed that the patient complained of pain to her lower left rib cage, which he described in his patient notes as "chest pain".
15 As to allegation (1)(a), the respondent admitted that he asked the patient to remove her clothing and said that he asked the patient to change into an examination gown.
16 As to allegation (1)(b), the respondent admitted that he undid the patient's bra.
17 As to allegation (1)(c), the respondent admitted that he exposed and examined both the plaintiff's breasts with his hands.
18 As to allegation (1)(d), the respondent said that he asked the patient to lie on her side rather than her "front" as alleged but denied that he held both of the patient's breasts in his hands. He admitted that he manoeuvred the patient's thoracic spine but denied that he "leaned into her so that he was almost lying on top of her". He admitted that he examined the patient as she lay on her side, and without first inviting the patient to replace her bra.
19 As to the circumstances alleged in subparagraphs (i) - (v), the practitioner said that there was a clinical justification to examine the patient's right breast in order to rule out breast cancer, breast lumps or any bony involvement including the possibility of secondary bone metastases. The respondent said that it was necessary that the patient's bra be undone to carry out this examination.
20 Further, the respondent denied the allegations in subparagraphs (i) - (v) and said that his examination was conducted in such a way as to exclude possible medical problems, especially cancer. The respondent also said that he had a proper clinical basis to examine the patient's thoracic spine and that the method he adopted was clinically proper and acceptable.
21 The respondent denied that his conduct was in any way infamous or improper.
22 As to allegation 2, the respondent admitted that he performed the acts in (a), (b) and (c) and said that he performed a non-invasive examination of the plaintiff's breasts after advising her of his intention to do so and the nature of the examination and thereupon proceeded to examine her. The respondent said that the patient acquiesced in his examination and the respondent concluded that the patient had impliedly consented to the examination. Thus there was no necessity for him to advise the patient of the purpose of the examination.
23 The respondent denied that in the circumstances he was guilty of gross carelessness or incompetence, or alternatively, infamous or improper conduct, as alleged.
24 The Tribunal has determined that the following issues are to be considered by it:
Issue (1) Did the respondent generally conduct himself as the patient alleged?
Issue (2) Did the respondent carry out the examination in the manner alleged by the patient?
Issue (3) If so, was there any clinical or other justification for so examining the patient?
Issue (4) Prior to the examination, did the respondent:
Issue (5) In carrying out the examination, did the respondent:
Issue (6) If the relevant facts are found in favour of the applicant, does the conduct of the respondent:
(a) in relation to allegation (1) amount to infamous or improper conduct in a professional respect as alleged;
(b) in relation to allegation (3) involve the respondent being guilty of gross carelessness or incompetence or alternatively amount to infamous or improper conduct in a professional respect?
Issue (7) If one or both of the allegations encapsulated by grounds (1) and (2) are established, what penalty should be imposed on the respondent?
25 Much of the evidence and many of the facts in the matter are not in issue.
26 On behalf of the applicant, the evidence consisted of a statement from the patient (Exhibit 1 pages 8-10) and her oral testimony, together with a number of documents. There was a statement from the respondent (Exhibit 1, pages 11-34), his oral evidence and a number of documents; additionally, there were statements from several witnesses as to the respondent's character.
27 It is convenient and appropriate to traverse the history of the matter, at the same time commenting on some relevant aspects.
28 The patient, at the relevant time, was 29 years of age, having been born on 30 August 1975.
29 At the time, as previously noted, she was on a holiday in Australia from England and was at the time in Western Australia. In her statement, she says that her bra size at the time was 38D and her body shape could be described as "curvaceous". Without wishing to sound flippant, the Tribunal accepts the evidence of several people that the patient could be described at the time as "big breasted"; the relevance of this will be seen later.
30 On 19 February 2005, the patient was "smashed" by a wave while swimming in the ocean. The pain (in her left side) which she later complained of to the respondent began when she had that accident in the surf. The pain was mild at the beginning and then began to get worse. She ultimately had pain in her ribs on the left side and she found it hurt to stand, sit, lie and turn.
31 On 21 February 2005, in the morning, she went to the Central City Medical Centre and was "allotted" the respondent. As he was walking her into his office, he asked her "are you in pain?" to which she replied, "I am in a great deal of pain". She was shown into his office and offered a seat. Before the attendance, she had never had a consultation with the respondent. He asked her what she had done and whether she had been doing anything strenuous. She advised him that she had "a pain in her ribs" and had not been doing any lifting or strenuous activity. She was then asked whether she had been doing any exercises; she said that she had only been walking but went to the beach two days before and was knocked by a wave. The respondent replied that that was probably "what hurt your back". She was asked by the respondent to step behind the curtain, take her top off and put a gown on, leaving it open at the back. She took her top off but kept her bra on.
32 The respondent began the examination. When she was asked where the pain was, the patient pointed to her lower left side with her hand. In her Evidence in Chief (by video from England), she pointed to an area from below the bottom of her left breast to the top of her left hip, that is, her lower left rib cage. She did not complain to the respondent of having pain anywhere else and said that the pain was "not moving".
33 According to the patient's statement, the respondent then came behind the curtain and asked her to stand facing away from him. He then pressed down the length of her spine. Without asking the patient, the respondent undid her bra and again pressed down her spine - having done that he then asked the patient if it was "okay" to undo her bra.
34 The respondent then asked the patient to lie on her back on the bed. Although it was painful to get on the bed, she eventually did as asked. She was asked by the respondent whether she had ever had trouble with her back and she advised him that she fell down the stairs once and hurt her coccyx. The practitioner began pressing the patient's rib cage on her left side where it was hurting and he asked her, "have you had any problems with your breasts?" The patient replied that she had not.
35 The respondent then pulled up the patient's gown to expose her breasts and began to examine them without saying what he was doing or why he was doing it.
36 She was then asked to roll onto her left side, facing away from him, and the respondent "cupped" her right breast with one hand and pressed on her right side. The respondent then asked the patient to lie on her front which she did. He then leaned into her to such that it felt as though he was almost lying on top of her. He then "cupped" both of her breasts with his hands. His actions left her, in effect, lying on his hands.
37 The respondent did not at any time indicate that it was his intention to examine her in this way or why he needed to do it. He did not request a female nurse to be present.
38 The patient felt very uncomfortable but did not know what to say or how to say it.
39 The respondent then told the patient to get dressed. He did not ask her to replace her bra and she put it on when she was getting dressed.
40 The respondent told her she should take some painkillers and gave her some anti-inflammatory drugs. She said she was allergic to Ibuprofen so he gave her Mobic (15 milligrams). The respondent told her that if the pain had not lessened within a week she should return and he would order x-rays.
41 The patient said that during the procedure by the respondent, she felt embarrassed, uncomfortable and physically sick.
42 In her cross-examination, the patient confirmed that she had returned to England and was working as a regional scheme supervisor for the Housing Association. She confirmed that she had forwarded a written statement to the Medical Board in May of 2005 but made no note of the matter between 22 February and 6 May. She did, however, speak to various people about the matter. She denied that her recollection was not accurate.
43 She confirmed that after the incident of the beach, her left side hurt to sit down, stand, lie down and turn around and she was walking gingerly. She could not recall if she could lean forward or backwards.
44 She was very firm when she advised the Tribunal that she did not tell the practitioner that she had pain on both sides of her chest extending to the back.
45 She felt that the beach accident was probably what had hurt her but was surprised that the respondent had mentioned any back injury because she had not mentioned that to him. She denied that the respondent told her that he needed to examine her chest and spine to see what caused the pain. She did not ask him why the examination took place behind the curtains because he was a doctor and she understood he was going to examine the site of the pain. She denied that he told her that he wanted to examine her chest and that he gave reasons for the proposed examination. She confirmed that before he removed her bra he did not ask whether he could do it. When the respondent asked her to lie on her back on the bed, she did not ask him why, and did not object because to that time he had been courteous and professional and she had no problems with the examination to that point. Additionally, she thought he was going to examine her ribs, not her chest or breast area.
46 She said she was surprised when she was asked whether she had any problems with her breasts. She insisted, as the breast examination began, that she had not been told by the respondent that he intended to examine her breasts, that is, to expose and palpate them. It was a very short examination but as a result of it she felt uncomfortable because she could not understand why he was doing it.
47 She said she had had breast examinations before and that the mode of breast examination was similar to those she had had in the past.
48 When she was asked to roll onto her left side, facing away from him, her bra and gown were still up above her breasts; the respondent had his whole hand across her right breast as though holding it. She did not object to him holding her breast but did not know that he was going to do it and what in fact he was doing. She said that she wished now she had objected to the conduct.
49 She denied that the respondent put his hands on each side of her chest wall and tilted her body back gently. After the practitioner had taken both her breasts in his hands when she was lying on her front, she said she felt uncomfortable but did not say anything or object; she did not know why, but reiterated that he was a doctor although she did not understand why he was carrying out the examination in that manner. She once again was emphatic that he did not lift her gently from behind or ask her whether this caused her any pain. She neither knew nor understood the reason for the back examination and was embarrassed. She confirmed that she did, in fact, advise him that she was allergic to Ibuprofen. She said that throughout the examination the respondent was courteous but her concern was that she did not know what he was going to do or why he was doing it.
50 She did not know what to say or how to say it when she became concerned. She left the examination feeling "uncomfortable".
51 The patient was referred to her complaint to the applicant dated 6 May 2005. This complaint was in very similar terms to her evidence save that she used the expression that the respondent had been "cupping" her breasts rather than holding them while he conducted the examination while she was lying down. She said that she took about two months to make the complaint because she did not know the procedure until she asked a nurse friend in Sydney about the matter in March 2005. She made the complaint several months after speaking to the nurse. She confirmed (as she had said in the complaint) that as she walked out of the surgery she said "I believe I have made an old man very happy" - this was to a male friend who had accompanied her to the attendance.
52 In re-examination the patient confirmed that she had consulted her nurse friend in Sydney about the end of March 2005 and ultimately contacted the respondent in early May 2005, having obtained the relevant form on the internet. During April 2005 she had been up and down the New South Wales coast, and spent some time in Brisbane.
53 To a question from one of the Tribunal members, the patient confirmed that when she was hit by the wave, she was knocked onto the side and "as it hit me" she twisted. In the two days between the incident and the attendance she took Paracetamol.
54 The Tribunal found the patient to be articulate and have a very good recall of the incident. Largely her evidence was consistent with her complaint to the applicant and at times during the giving of her evidence by video, appeared somewhat distressed. She appeared very clear on what she recalled, answered questions (particularly in cross-examination) firmly, and was not dissuaded from her original complaint and statement. After hearing her evidence, the Tribunal did not find any basis upon which the patient could be said to be either not to be believed or unreliable - she was a witness upon whose testimony the Tribunal felt that it could rely. As will be seen, later evidence did not change the Tribunal's views.
55 The applicant called expert evidence from Dr Bernard Pearn-Rowe, who has worked continuously in general practice for 35 years. At present Dr Pearn-Rowe works approximately 45% of his time in general practice and the same amount as the Foundation Professor of Medicine at the School of Medicine at the University of Notre Dame (Fremantle), this work includes designing the curriculum which governs the content, ethics and professionalism of the medical course. He is also involved in medico-political activities. He was the Foundation Chairman of the Western Australian GP Education and Training Scheme.
56 Relevantly, the curriculum defines the appropriate way to approach patients and the manner in which to treat patients.
57 Dr Pearn-Rowe prepared the report dated 21 August 2006, in which he answered a series of questions put to him by the solicitors for the applicant. Dr Pearn-Rowe opined that:
"In circumstances where a female patient attends a male general practitioner, a competent general practitioner would ask the patient to remove her shirt and it would be reasonable to undo the patient's bra if that garment was covering the area where the patient complained of symptoms. It would be reasonable to ask a patient to lie on a bed. Although a little unusual, asking a patient whether she had had any problems with her breasts is not by itself particularly noteworthy. It may well be a clinician vocalising their own thought processes as they look at symptoms complained of by the patient."
58 In the context of the present case, Dr Pearn-Rowe could not find any justification for performing a bilateral breast examination. He accepted that, on the basis of what he learned at the time of writing the report of the site of the pain, it was reasonable for the respondent to have examined the lateral aspect of the left breast close to the area where the patient complained of her symptoms. Dr Pearn-Rowe could see no justification at all for a full examination of either breast.
59 Although a little unusual, he accepted that it was within reasonable limits to ask the patient to lie on her left to palpate the chest wall.
60 There would be no justification for a doctor to "cup" a patient's breasts in the normally accepted understanding of that term.
61 In relation to the respondent's method of examining the patient's spine by hyper-extending the thoracic spine, Dr Pearn-Rowe said:
"I have never encountered such a technique for examining hyperextension of the thoracic spine before. I have difficulty in imagining any useful clinical information that could be gained from such an examination. If hyperextension of the spine had produced pain, I am uncertain as to how this would have furthered an understanding of this case."
62 As to the respondent's suggested reason for the breast examination, Dr Pearn-Rowe said that there was absolutely nothing in the presentation of the case to support the possibility of the patient suffering a myocardial infarction or a pulmonary embolism, "and indeed none of the examination undertaken by (the respondent) was directed at these possibilities". He said the probability of the occurrence of pain arising from metastatic breast disease and possibly primarily breast cancer in a woman attending for the first time, with symptoms of short duration "is so utterly remote as to make this possibility, in my view, unsustainable".
63 As to whether a general practitioner should, before conducting a breast examination, inform the patient prior to examining her that he intended to examine her breasts, Dr Pearn-Rowe said that to seek such informed consent would be the optimal situation. However, he said, the majority of clinicians rely upon the principle of implied consent. However, in failing to seek such informed consent for removing the patient's bra, Dr Pearn-Rowe said the respondent's management was sub-optimal but not in his view, grossly unprofessional. He could not say the same about the decision to examine the patient's right breast. Very few practitioners would ask the question "do I have permission to examine your breasts".
64 On the basis that the patient had presented to the respondent with symptoms on her left chest wall, and with no breast symptoms, it would have been incumbent on the respondent, Dr Pearn-Rowe said, to have explained to the patient why he felt a breast examination was justified. This was even more necessary when there was a gender difference between the patient and the respondent. Not to have offered an explanation as to why a breast examination was warranted prior to conducting the breast examination in this matter, would, in Dr Pearn-Rowe's words, "make the suspicion of inappropriate conduct almost inevitable".
65 On the basis of complaints as to pain, Dr Pearn-Rowe was asked "how would a competent general practitioner have dealt with the symptoms with which the patient presented". He replied in par 7 of his letter as follows:
"The papers before me indicate that the patient attended Dr Alizadeh complaining of pains on the left side of her chest that made it painful for her to stand, sit, lie or turn. It is stated by the patient that she was moving very gingerly and that when offered a seat she sat down very gingerly. A competent practitioner would have taken a history to establish how long this situation existed, and of the site and radiation of the pain. The patient would have been asked what activities make the pain worse, and what appear to ease it. The patient should have been asked to at least partially disrobe in the privacy of an examination area and a physical examination would have been conducted. If the patient's bra obscured the area of her complaint, her bra would have been removed, ideally after having obtained her specific permission to do so. The chest would have been examined by palpation and it is reasonable that the spine and other structures a little distant from the site of tenderness were also examined. It is possible that a cautious practitioner could have been led to conclude that the lateral left breast might be involved in the process and an appropriate examination of the breast may have occurred after this had been explained to the patient and at least implied consent obtained. Visual inspection of the affected area would be important to exclude signs of trauma, bruising, possible shingles and the not uncommon problem caused by a poorly fitting underwire bra. A competent practitioner may have decided to 'spring' the chest wall to investigate the possibility of fracture or costo-chondral strain.
If all these findings indicated a relatively minor musculo-skeletal problem, the patient would have been managed with reassurance and the provision of either analgesics or anti-inflammatory drugs or both. Specifically, I do not believe that a competent practitioner would have undertaken a detailed examination of both breasts, and neither can I justify the unusual hyper-extension examination described by Dr Alizadeh in the respondent's statement."
66 He said there was nothing in the documents that remotely supported a diagnosis of myocardial infarction or pulmonary embolism and if the respondent was considering the possibility of myocardial infarction, at the very least he should have undertaken an urgent ECG examination, combined with the need for the assessment of the cardiac enzymes by way of a blood test. As to the possibility of a pulmonary embolism, the very least he should have done to investigate this would have been to arrange an urgent chest x-ray. But he confirmed that, in his opinion, nothing in the history made those conditions remotely likely in the first place.
67 He confirmed that the patient's pain in the left side of her chest was so remote that he did not believe a breast examination could be justified.
68 On the information he was given, Dr Pearn-Rowe observed that this indicated that a number of musculo-skeletal examinations were undertaken by the respondent with the patient's bra at least undone if not entirely removed. He believed that this was a situation likely to cause humiliation and embarrassment, and indicated a disregard for the patient's dignity. He did not believe that it was incumbent on the patient to ask if she might replace her bra although an experienced clinician should have anticipated the patient's likely discomfort and asked her to replace her bra as soon as the need for its removal had passed.
69 Having been asked some further questions by the applicant's solicitor, Dr Pearn-Rowe replied in the letter of 15 September 2006.
70 He said that the fact that there was no previous relationship between the patient and the respondent increased the obligation upon the respondent to be sensitive about the patient's feelings and sense of modesty.
71 During his examination in chief, having been advised that the complainant had been described as "curvaceous" and having a 38D bra, Dr Pearn-Rowe noted that this indicated that she is a large-busted woman. This being so, examining the area of concern on the patient's left chest may well have led the respondent to move the left breast out of the way in order to conduct a thorough examination of the affected area. He said with a large-busted woman, such an action could create the impression that the breast was being "cupped". In the context of examining the patient's left breast, and in that context alone, he thought that the action of drawing a large breast to one side for the purpose of examination might be construed as "cupping". But, as he previously mentioned, there remained many areas of concern, so far as he was concerned, at the manner in which the complainant was treated that were unrelated to her bust size and the alleged action of cupping.
72 Dr Pearn-Rowe said that because breast examination was a very personal examination it was even more important that the justification, reason or the logic behind the examination should be explained to the patient and said that there is no doubt that consent should be obtained before proceeding; simply starting the procedure is not adequate or appropriate.
73 Further, he said, where there is a very short relationship between the patient and doctor, he did not think one could rely upon implied consent to an examination such as a breast examination; with a "first time" patient it was absolutely critical that consent be sought and received before proceeding.
74 Dr Pearn-Rowe was then advised of the patient's confirmation in her evidence in chief of the site at which the pain was said by the patient to have existed, that is, between her ribs and her left hip; in other words, her left lower rib cage. He said that that did change his opinion because his previous opinions were based on the fact that the pain was more lateral and higher in the ribcage. He said that the pain site which had been indicated by the patient in her evidence pointed to a very common condition that was seen in general practice almost every day, that is, a costo-chondral strain. This occurs when the cartilage of the ribs join the sternum. At this particular point they are very vulnerable to injury. Such an indication of pain would certainly not, in Dr Pearn-Rowe's opinion, justify the removal of a patient's bra. As he had been shown, the site of the complaint by the patient was nowhere near her bra.
75 Dr Pearn-Rowe said that whereas before he might possibly have imagined a situation where a careful and cautious doctor might want to examine the left side of the breast to exclude that as a contribution to a problem (whatever it was), the actual situation of the pain as demonstrated by the plaintiff on the video, led him to the conclusion that he had great trouble justifying a breast examination at all, and great trouble justifying the removal of a bra in that situation.
76 As to the respondent's clinical notes, Dr Pearn-Rowe said that they should have contained an outline of the patient's complaint, raised the various issues considered by the doctor (maybe in dot form) and should include his differential diagnosis. They should include also details of any significant examination that was undertaken and details of the treatment. Although, he said, general practitioners were notorious for writing brief notes, what he had described were the absolute minimum which he thought would be adequate in contemporary standards. In his view, the passive spinal manipulation that had been carried out by the respondent should have been recorded and even more so, the breast examination. If a medical practitioner has certain queries as to possible breast problems that should have been recorded also.
77 In his cross-examination Dr Pearn-Rowe confirmed that the chances of there being the patient suffering from the result of metastases from primary cancer in the breast was so remote as to be unrealistic. He said that "if one was to pursue that line of thought, you could almost justify a breast examination on any patient, any female patient, presenting with pains anywhere". It was his opinion that it was "extraordinarily unlikely" that the pain demonstrated by the patient in her evidence could be the result of secondaries from primary breast cancer.
78 He was asked to comment on the hyperextension examination conducted by the respondent to assess her possible thoracic condition. His evidence was to this effect:
"I have trouble understanding why you would pursue such a difficult passive examination when you have, I believe, an articulate and fully-conscious patient quite capable of saying where the pain is; and if you wish to provoke the pain and move the spine in certain positions, why was it necessary to do that in a passive way? Why not simply say: 'Turn to the left. Is that worse?'? Or if you want to hyper-extend the spine, 'Put your shoulders back. Does that make the pain any worse?' Or if you have the patient lying face-down on the couch, say 'Arch your back and lift your shoulders off the couch. Is that more sore?' These are all conclusions that could be very easily reached by asking the patient to undertake simple movements. I don't understand why this had to be done with the doctor actually creating the movement passively upon the patient, and some of the techniques are not techniques that I've ever encountered before."
79 He thought, however, that it was reasonable for the respondent to explore the possibility of the pain being referred from the thoracic spine area; the issue he took was the way the respondent had gone about to explore that possibility. Such examination simply could be done by palpation.
80 It was Dr Pearn-Rowe's view that after the initial examination, it was completely inappropriate for the respondent to have continued to examine the patient, twisting and turning and moving on a couch etc, when she was large-breasted, without her bra being back on. He did not accept that the patient's sensitivity and modesty could have been adequately dealt with by the examination gown being pulled back down over the patient's breasts.
81 As to the commencement of the breast examination, it would have been inappropriate, in Dr Pearn-Rowe's opinion, for the respondent to have advised the patient what he intended to do so far as the examination was concerned and then not to obtain clear acknowledgment whether it be verbal or non-verbal, particularly in a situation where the patient was there for the first time. In his view, the absence of any indication in the circumstances did not imply consent. It was Dr Pearn-Rowe's view that all competent and experienced general practitioners would seek some form of consent, verbal or non-verbal, before continuing with an intimate examination on the first meeting of a patient. By "non-verbal" he meant there should be some sort of smile or nod or some bodily action to indicate consent.
82 The Tribunal was of the view that Dr Pearn-Rowe's evidence was very valuable to it, based as it was, upon Dr Pearn-Rowe's long and relevant clinical experience, involvement in the preparation of curriculae as to the correct and proper means of conducting examinations and his careful assessment of the circumstances in this matter, including the information given to him as to the position of the pain complained of by the patient. Dr Pearn-Rowe's opinions, after he had been advised that the site of the pain was lower on the patient's left chest than he previously thought and relied upon, were more strongly in favour of the position of the applicant in this matter.
83 The respondent confirmed his statement of evidence of some nineteen pages.
84 He was born in Iran on 5 June 1951 and graduated from the University of Teheran as a medical doctor in 1974. He became a specialist paediatrician in 1982 and worked in a private hospital in Teheran. He ultimately left Iran in 1988.
85 Having spent three years in Pakistan, he arrived in Australia in 1991 and sat the AMC Examination for overseas medical graduates. He ultimately passed the exam on his second attempt in 1994. He worked at Royal Perth Hospital and after he obtained his provider-number began work as a general practitioner at the City Medical Centre in 1995, becoming a partner in about 1999 or 2000. He became a Fellow of the Royal Australian College of General Practitioners in about 2001.
86 As to this matter and the attendance he referred to his clinical notes which are at page (1) of the bundle of documents Exhibit 1. These take the form of notes created by and on a computer program. After the examination, the practitioner used a format to note his "assessment" as "chest pain". Having examined the patient, under "comments", the practitioner wrote "bilateral lower thoracic pain, travelling to back, musculo-skeletal pain, worse with thoracic spine movements, muscular stiffness, mid-thoracics". He confirmed that this was his conclusion as a result of the total examination, not what the patient had complained of.
87 In his statement, the respondent confirmed that he could not "remember (the patient) or anything about my consultation with her". Thereafter, his comments in the statement as to what occurred, and the patient's complaints, are based on the notes and also on his normal practice rather than any independent memory of the event. This, in the view of the Tribunal, is significant, particularly as the respondent later, on occasions, testified to matters as though from his independent memory.
88 The respondent did not dispute that the patient was suffering from pain in her left rib cage, however he suggested that the "assessment" in his notes could suggest that she had pain other than in her chest area. The Tribunal found it difficult to accept this. He could not remember the patient telling him about the incident at the beach but did not dispute that in fact she did.
89 The respondent said that when a patient reported the type of pain that the patient did, in this case, that is, lower left chest pain, it was necessary for him to ascertain the precise site of the pain and to rule out "any sinister causes for the pain" by conducting a thorough physical examination. He said that he "would have asked the patient to remove her top and leave the back of her gown open because it was his intention to carry out a physical examination of the thoracic spine". He had "no doubt" that in accordance with his normal practice, he would have explained to the patient that he needed to examine her chest and spine in order to identify the cause of her chest and back pain - therefore he did not accept her allegation that he did not inform her that he intended to examine her. He did not accept that he did not obtain the patient's consent to be examined. He said that if she had given any indication of being embarrassed or uncomfortable, he would not have proceeded with the examination and believed that she had consented to be examined by going into the examination area in response to her request and after he had told her of his intention to examine her. He was thus replying on an implied, rather than express, consent.
90 It should be noted at this point that the respondent's position was that he could not remember the patient or what had occurred and, in the course of his statement, was therefore suggesting that in fact he had told her of his intention to examine her. This is clearly, in the Tribunal's view, inconsistent.
91 He said that he would have examined the patient's spine by palpating it in order to exclude any significant pathology of the spine or nerve involvement. He accepted that he undid the patient's bra but did not accept that he would not have advised her of his intention to do so as this was something he would never do; he would have told the patient that he needed to examine the area of her chest pain, that the area was covered by her bra and he therefore needed to unfasten her bra in order to continue with the examination. He said "I know that the patient did not indicate verbally or otherwise that she objected to me undoing her bra". Once again, it should be noted that the respondent was making a positive denial when he had apparently no knowledge of the attendance or the patient.
92 He agreed that he would have asked the patient to lie on the examination bed and that therefore she was lying on her back. The respondent did not recall any conversation with the patient as to her previous history of falling down the stairs, however he did not dispute that such conversation took place. He agreed that he pressed the patient's ribcage in the course of examination. He agreed that he did expose the patient's breasts and examine them with his hands and said that this was something that he did as part of his routine examination procedure in the case of a female patient complaining of "bilateral thoracic pain travelling to the back". It should be noted that the patient denied making any such complaint and that no such complaint was noted by the respondent in his notes under "assessment".
93 He conducted this examination to rule out any serious causes of the pain such as breast lumps, breast cancer or secondary bone metastases resulting from breast cancer. He could not recall how he exposed that patient's breasts and felt that after he completed the examination he would have pulled the gown back over her breasts. He did not accept the patient's allegation that he did not warn her of his intention to expose and examine her breasts because that was something that he would never do. He accepted that apart from telling the patient that he needed to examine her chest because this was the site of her pain, he did not provide any further explanation to her of his reasons for needing to examine her breasts because he did not want to alarm her unnecessarily by providing her with details of his reasoning process, that is, that he was looking for some more sinister cause of the pain. Significantly in the Tribunal's view, he felt that "with the benefit of hindsight" that "he should have provided her with a more detailed explanation of his reasons for examining her breasts".
94 He accepted that at no time did he obtain from the patient any specific written or verbal consent to examine her breasts, however he said that at no time did she give any indication by words or otherwise that she objected to such examination or that she was uncomfortable or embarrassed. He understood from her lack of objection to his stated intention (as he maintained) to examine her breasts and her demeanour at that time and during the examination that she was content for him to carry out the examination.
95 The respondent accepted that he did ask the patient to lie on her side and he did this so he could further examine her thoracic spine. He described the method of this examination, that is, while she was on her side, holding each side of her chest and "passively moving" (that is, twisting) her upper body first one way and then the next. He said this is part of his normal routine when examining a person complaining of thoracic and back pain. He rejected the patient's allegations that when she lay on her side he "cupped her breasts". He said his hands would at all times have been on the side of her thorax and that her allegations were "completely untrue".
96 He accepted that he asked her to lie on her front, but rejected her allegations that he cupped her breasts and leant on her so he was almost lying on top of her. He said he would have asked her to lie on her front so he could examine her thoracic spine, his method being described as "holding the thorax from the sides with both hands (with my hands on each side of her thorax) and lifting her gently upwards by no more than a few degrees so as to hyperextend her thoracic spine". This, he said, was his routine method for examining patients with the type of complaint that the patient made.
97 He did not obtain her specific or verbal consent to this procedure, however he would have stopped if by words or conduct, the patient had objected. He thus believed that he had her consent on the basis of her conduct. He agreed that he did not explain to the patient his purpose in his passive examination of her thoracic spine while she was lying on her side on the front and accepted "with the benefit of hindsight" that "he should have done so". He said, however, that before he performed any physical examination he would have explained to the patient that he needed to examine her chest and spine to identify the cause of her pain. The Tribunal felt that there was some inconsistency in the respondent's evidence in this area.
98 In par 67 of his statement he said, "I believe that my failure to give a full explanation to the patient ought to be seen in the context of the busy nature of my practice, the pressure for time and the constant fear of missing a diagnosis". (He noted that in 2005, he was allocated 12 minutes for each of his consultations but after this complaint, he changed the allocated time reviews to 15 minutes.)
99 As will be seen later, the Tribunal considers that none of these reasons as to time could justify inappropriate conduct on the part of the respondent, or any medical practitioner. The respondent did not believe that he was told of the patient's allergy to Ibuprofen because he had made no note of any such advice, contrary to his normal practice. He did not see any feelings of embarrassment, humiliation or discomfort or hear that expressed by the applicant.
100 He referred to his letter to the Medical Board of 30 September 2005 when he spoke of establishing the correct diagnosis of the cause of chest pain. He said he was not meaning to suggest by the comments that in examining the plaintiff he considered it was possible the pain was caused by myocardial infarction or pulmonary embolism. The only reason he referred to those conditions was to make the point that the potential causes of chest pain can be numerous, with some being more serious than others. He said that his intention in carrying out the physical examination was not to rule out myocardial infarction or pulmonary embolism but these were just the first differential diagnoses to cross his mind.
101 These comments should be viewed in the light of the letter itself, that is:
I am writing in reference to your letter of 13th September 2005 regarding the complaint lodged by Miss Catherine McCann against me.
I would like to thank the board for providing the opportunity to clarify the issue.
Understandably, establishing the correct diagnosis of the cause of the chest pain is extremely crucial.
As the cause can range from fatal and life threatening diseases such as Myocardial infarction, pulmonary embolism or even bone metastases of a breast cancer - to very simple and negligible causes like muscular pain. Therefore, the key to correct diagnosis is a thorough physical examination, without resorting to unnecessary and very often invasive and harmful investigations such as radiography and other pathology tests and assessments.
Regrettably, due to time limitations I failed to communicate and explain the methodology, sequence and reasoning of the examination to Miss McCann; an action which would have prevented this misunderstanding. For this, I sincerely apologise and must assure her that there was never any intention of indecency or carelessness in my conduct. I accept that I did not, but should have, explained:
I assure the Medical Board that I will implement the outcome and lesson that I have learnt from this experience into my practice in order to prevent similar incidents in the future.
102 The inconsistencies between the letter and the respondent's evidence are significant, in the Tribunal's view.
103 The respondent did not agree with Dr Pearn-Rowe's opinion that it was unnecessary to examine the patient's breasts to exclude the possibility of breast and/or bone cancer.
104 Also, he also disagreed with Dr Pearn-Rowe's criticism of his method of examination of the patient's spine.
105 He agreed with Dr Pearn-Rowe's view that there was nothing in the patient's presentation to support the possibility that she was suffering from a myocardial infarction or pulmonary embolism. Notwithstanding this, he disagreed with Dr Pearn-Rowe's view that an urgent chest x-ray should be ordered.
106 In his examination in chief, the respondent confirmed that the note of "chest pain" was put into the computer early in the consultation and was a record of the complaint by the patient - this accords with the patient's evidence. He was unsure as to when the balance of the information was typed in and felt it could have been during or at the end of his examination, but it was in fact his impression of the matter having examined the patient. After some assistance from his counsel, he confirmed that the patient's complaint was "left sided chest pain" which is contrary to his statement in par 25 to the effect that he did not accept that the patient's reported pain was limited to her left rib cage area. As to his statement in par 27 that he could not remember the patient advising him that she had been knocked down by a wave but did not dispute that she had been, in his oral evidence he disputed that he had been told that she had been knocked down by a wave. The reason for this, he said, was that had he been told that, he would have made a note of it because it would be related to trauma. He explained the difference in his evidence on the basis that he probably did not read the statement carefully before signing it.
107 He confirmed that the complaint by the patient was of pain in the left ribcage area but that he had proceeded thereafter to examine her spine. He said that the reason for proceeding to examine the patient's spine, notwithstanding her complaint of pain in the left ribcage area, was because he decided that was a referred pain from the thoracic spine.
108 He said he noticed a bilateral muscular spasm around the thoracic spine which are the group of muscles surrounding the centre of the thorax. He said this was something he noticed when he actually performed the palpation of the patient's spine.
109 He said that the reason why he went to the patient's spine in the first place was that he observed the patient's movement and the way he held her thoracic region.
110 As to the method of examination of the thoracic spine using the extension method he adopted, he demonstrated that he had his hands under the patient's armpits, rather than on her breasts as she alleged.
111 He was referred to comments made by Dr Pearn-Rowe to the effect that he could have examined the extension and flexion of the patient's spine by simply asking her to move forward and backwards rather than by the passive movement he adopted.
"I would say this is a case where the patient was in pain, was obviously in gross discomfort. I could have told that she was in pain; I could have told that this is referred pain from the back, just from the posture and the movement; and she wouldn't find it very comfortable to be standing and doing the active movements. That's why we do the passive movement, and unfortunately it doesn't make sense to decide the way of examination by the size of the breasts, as Professor ... with all due respect, that is in theory right, but in practice we don't decide the way of examination by the size of the plaintiff's breasts."
113 The respondent was then cross-examined by counsel for the applicant. He could not remember that she described the pain of being two days' duration. He was then cross-examined as to what the patient had originally told him about the site of the pain and said that his note to the effect that it was left-sided chest pain, was not correct. He said that this was an inaccurate description by him of the complaint of pain. This evidence is inconsistent with the previous evidence of the respondent. He said that the mention of left-sided chest pain was there as a result of a computer generated program which had certain limited descriptions. The Tribunal cannot accept that the respondent was unable to properly record the patient's complaints by typing it into the computer. This is particularly so in the light of the respondent's concession that his computer allowed free-text typing. The respondent agreed that his notes did not set out the fact that the chest pain was left-sided, the genesis of the patient's pain, the duration or any history explored with the patient.
114 It is clear that the notes of the respondent are very limited and do not, save for the mention of the possible pain in the back, support his contentions as to the reasons for his breast examination.
115 Notwithstanding this, he said, after some hesitation, that it was a reliable "record" of his consultation. The Tribunal is unable to accept this evidence.
116 He said that he definitely explained to the patient that he was going to examine her breast but did not have any independent recollection of that and said that he did ask her permission when he undid her bra. He said it was not true that he did not tell the patient that he was intending to examine her breasts before doing so. Notwithstanding his statement, he said that it was not a rushed consultation. He was cross-examined as to his letter to the Medical Board of 30 September 2005 and his explanation as to what he included in the letter and the reasons for it were unacceptable in the view of the Tribunal.
117 He did not accept that the possibility of metastases from breast cancer was as unlikely as being a preliminary embolism or myocardial infarction. Although he did accept that, generally speaking, breast cancer in a young lady was not as unlikely as myocardial infarction.
118 He advised the Tribunal that his use of the words "failing to explain the 'methodology, sequence and reasoning'" as to the examination, meant that he failed to communicate and explain how he was going to carry out the examination, the sequence in which he was going to carry it out and why the examination was being carried out.
119 He further said that when he told the applicant in the letter that he advised the complainant that he needed to examine her "chest" he intended at that time to examine her breasts, but in fact was not specific in that regard.
120 He gave a description as to the position of the pain that the plaintiff had complained of in relation to his decision to examine her breasts. Having seen that description, the Tribunal was not satisfied with the explanation given by the respondent. He persisted with his belief that it was necessary to conduct a breast examination on the patient and mentioned the fact that he had lost a very young patient to breast cancer earlier that year, but that he knew of her diagnosis at the time of the examination of the patient. He persisted with his evidence that he informed the patient of his intention to examine her breasts but agreed he had no independent recollection of doing that.
121 He appeared to place the reason for relying upon the patient's non-verbal consent on the fact that it was a physical examination with a short time of three to four minutes. He was unable to remember the exact words he said to the plaintiff prior to his examination of her breasts. He said that he did not often rely upon a patient's lack of objection as an indicator of consent, and that he usually attempted to get an express consent from the patient. He confirmed his evidence as to the examination of the patient on the couch. He denied that she was lying with her breasts on top of his hands, saying that it was not the normal way he examined a patient.
122 As to the passive spinal manipulation examination, he said it was something he did not very often undertake.
123 He demonstrated to the Tribunal how he conducted his examination and the level of the couch - it appeared to the Tribunal that if he was required to lean over the patient as he described, the result would be that he would almost be lying on top or over her as complained of by the patient.
124 He persisted that the examination of both sides of the breast was clinically justified, and in that, disagreed with Dr Pearn-Rowe's opinion. He further disagreed with Dr Pearn-Rowe's opinion that it was inappropriate not to have provided an explanation to the patient as to why a breast examination was warranted.
125 He said that the use by him of the word "inappropriate" in his letter to the Medical Board was a result of him being a "non-legal person". He disagreed with Dr Pearn-Rowe's opinion as to the method of conducting the examination of the patient's thoracic spine. He agreed that the fact the patient was attending for the first time meant that it was not appropriate for him to rely on the patient's implied consent.
126 He denied that he had any motivation for sexual gratification in his examination of the patient. As to the patient's complaints, he said "I am honestly not sure about the motivations behind this, whether it was a relationship problem or she is lying".
127 He agreed that he was careless in the keeping of his records, and with the benefit of hindsight, the failure to take adequate care in relation to the issue of consent. He felt that he did try to inform her of what was intended. He was not prepared to admit that it would have been better to exclude musculo-skeletal causes before undertaking a breast examination because the latter was more intimate.
128 He persisted with his evidence that he kept information from the patient about the breast examination because the mentioning of the very unlikely pathology was a matter of concern for the patient, which he thought was not necessary.
129 In re-examination he was asked when he palpated the patient's spine, when he examined her breasts, when he moved her thoracic spine, was any part of that examination directed at excluding myocardial infarction or pulmonary embolism. He said "definitely no".
130 He was then asked, "Why then, have you mentioned those conditions in your letter?" His answer was, "that's the initial approach to the complaining symptom of the chest pain. That is a general differential diagnosis, but by observing the patient stepping into your rooms you can rule out those initial mentioned things that just cross your mind when you're hearing about the chest pain; not after you're, like, halfway through the physical examination and you have found some signs which direct you to a specific course of examination".
131 The Tribunal found that answer difficult to understand and inconsistent with his previous evidence. He was re-examined as to the use of his words relating to "methodology, sequence and reasoning". The Tribunal found his explanation inconsistent and unacceptable.
132 He also said that when he was examining the patient after she was complaining of pain on the left side of her chest, that it was "bi-lateral" which led him to conduct the breast examination to exclude a sinister pathology.
133 The respondent also relied upon character evidence from patients. (Exhibit 1, pages 35-46). Generally, these patients confirmed that they had been made aware of the allegations against the respondent and that in the light of new contact with the respondent, he had always acted in a professional, trustworthy and friendly manner towards them and their families. In particular, one patient who described herself as a "nurse/homemaker" concluded by saying:
"The respondent has been more than one could expect. He has always behaved with circumspection. I admire his sense of duty in the way that he has treated me in regard to my illness in double-checking his diagnoses and his kindness and encouragement when I needed it most.
In a world where trust is difficult, in most cases almost impossible, he has gained mine. He will be my doctor for a long time to come."
134 It was the contention of the applicant that this character evidence should be given little weight for two reasons: (firstly) they were from a small sample of selected patients and (secondly) they did not give or rely on evidence in relation to the respondent's handling of similar situations with them.
135 The respondent relied upon such evidence, his counsel submitting that it demonstrated that not only is he a person of credit whose evidence can be relied on, but that he is not the sort of practitioner who would cup or hold the patient's breasts in the way alleged either for sexual gratification or inadvertently, citing Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 (at 14-15, 39-40 and 46-47) and Wedd v The Queen [2000] WASCA 273.
136 Whilst the Tribunal has no reason to doubt the sincerity of the character witnesses, there are a number of reasons why it cannot give this evidence more than little weight, namely:
137 The Tribunal, having canvassed the evidence including other documentation not previously referred to, is able to arrive at the factual findings referred to below. In doing so, the Tribunal has borne in mind the standard of proof as determined by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. At pages 361-362, Dixon J said:
"The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfactions if not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency."
"...the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose inexact."
"The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion."
140 In a case such as this, involving allegations of such a serious nature with possible serious consequences resulting from a finding that the allegations have been proved, these tests should and will be applied.
141 This approach was followed and applied by Barker J in Medical Board of Western Australia and Bham [2006] WASAT 190 at pages 13-14. Further, where the conduct complained of is sexual in nature, the Tribunal may find a practitioner guilty of the conduct complained of on the uncorroborated evidence of a complainant if the Tribunal has scrutinised the evidence with great care (see Kelleher v The Queen [1974] HCA 48; (1974) 131 CLR 534 at 553).
142 The Tribunal makes the following findings of fact:
143 The Tribunal refers to the findings above and in relation to ground (1) finds allegations (a) - (e) made out by the applicant. The Tribunal also finds allegations (i), (ii) and (iii) made out by the applicant.
144 As to allegation (iv) there was a failure on the part of the respondent to appreciate that the patient's dignity was affected by the manner in which he carried out the examination, however the Tribunal is unable to find that there was a "gross" disregard for the patient's dignity.
145 As to (v), the Tribunal is unable to be satisfied that the respondent exploited the patient's vulnerability and abused the trust she was entitled to repose in him as alleged, on the basis that this allegation suggests a sexual motive so far as the respondent is concerned and having regard to the standard of proof already referred to, is unable to find that this was the respondent's motive.
146 As to allegation (2), the Tribunal finds the factual bases, namely (a), (b) and (c), and (i), (ii) and (iii) made out by the applicant, and finds that there was no express consent by the patient to the examination as alleged, and no basis upon which the respondent could have concluded that the consent was "reasonable" in the sense of it being able to be inferred from the words and acts of the patient.
147 Issues (1) - (5) posed by the Tribunal above can thus be answered as follows:
Issue (1) Did the respondent generally conduct himself as the patient alleged? - Yes.
Issue (2) Did the respondent carry out the examination in the manner alleged by the patient? - Yes.
Issue (3) If so, was there any clinical or other justification for so examining the patient? - No.
Issue (4) Prior to the examination, did the respondent:
Issue (5) In carrying out the examination, did the respondent:
148 Turning to the specific allegations (and in so doing dealing with Issue 6) allegation (1) is that the respondent "may be guilty of infamous or improper conduct" based on the facts alleged.
149 The test generally accepted for "disgraceful or dishonourable" and thus "infamous" conduct was set out in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750. At page 763, Lopes LJ, provided the well-known definition of infamous conduct, that is:
"if it is shewn that a medical man, in pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open ... to say that he has been guilty of 'infamous' conduct in a professional respect."
150 This test has been applied, and in particular in Medical Board of Western Australia and Bham.
151 In that case, Barker J said that "the primary inquiry is to be directed as to how particular conduct is regarded by professional colleagues of a medical practitioner, not by the community more generally, and that the conduct complained of must be in pursuit of the practitioner's profession."
152 In Felix v General Dental Council [1960] AC 704 at 720-721, Lord Jenkins noted that to make good a charge of infamous or disgraceful conduct in a professional respect, it is not enough to show
"that some mistake has been made through carelessness or inadvertence"
"some element of moral turpitude or fraud or dishonesty in the conduct complained of, or such persistent and reckless disregard of [in that case] the dentist's duty in regard to records as can be said to be amount to dishonesty for this purpose."
153 In Bham's case, Barker J confirmed that in all cases the observations of Sugarman J in Ex parte; Re Medical Practitioners Act [1965] NSWR 30 at 36 in relation to the test should be borne in mind, that is,
"In short, whether moral turpitude is a necessary ingredient of 'infamous conduct in any professional respect' is a matter on which no general rule can be laid down, the answer being dependent upon the nature of the conduct which is in question in each instance."
154 In the present case, the Tribunal has determined that it is not able to conclude that in conducting the examination in the circumstances and in the manner he did, the respondent was seeking sexual gratification or had some sexual motive in mind. In the Tribunal's view, bearing in mind the tests already referred to, the Tribunal is unable to find that the respondent has been guilty of "infamous conduct".
155 In Allinson's case it was determined that improper conduct was misconduct which falls short of infamous conduct in a professional sense, and is constituted by something less than serious misconduct but is, nevertheless, conduct which could be reasonably regarded as improper by professional colleagues of good repute and competency.
156 In determining whether or not the conduct of the respondent was improper in this case, the opinions of Dr Pearn-Rowe are, in the Tribunal's view, very important. It was the general effect of Dr Pearn-Rowe's evidence that there was no proper base upon which the respondent should have examined the patient's breasts, that he should have obtained her express consent before doing so in the light of their lack of any previous relationship and the patient's age, and that generally the way in which he conducted the breast examination was at the least, inappropriate. In addition, the Tribunal is able to act upon some knowledge of its own in relation to these matters. (see s 32(4) of the SAT Act.)
157 It is the view of the Tribunal that, in all the circumstances, the conduct of the respondent in relation to ground (1) was improper in the sense that the vast majority of medical practitioners would take exception to the manner and circumstances in which the examination had taken place.
158 As to allegation (2), the respondent is charged with "gross carelessness or incompetence" or alternatively "infamous or improper conduct" on the basis of the facts alleged. Having already dealt with the tests required in relation to infamous or improper conduct, the Tribunal is unable to find that the conduct was infamous but once again, in the light of the circumstances and in particular Dr Pearn-Rowe's evidence, the conduct was improper so far as the Tribunal is concerned. As to the question of whether or not the conduct was gross carelessness or incompetence, in Jemielita v The Medical Board of Western Australia (Unreported, Supreme Court of Western Australia, Full Court, Lib No 920584, 13 November 1992) it was held that in the context of s 13 of the Act it is necessary that the carelessness or incompetence should assume a scale of gravity which is sufficiently serious to warrant denunciation by professional colleagues of good repute and competence and have reached the scale that such other practitioners regard as intolerable and deserving of punishment and disciplinary action, has fallen so far short of an acceptable standard of clinical care that disciplinary care is warranted for the protection of the public.
159 In the same case, Owen J determined that the concept of gross carelessness involves unacceptable conduct without any intentional wrong-doing on the part of the practitioner.
160 As to the allegation of "incompetence" in Jemielita it was opined that this involved an unfitness to practice in the particular field of medicine being considered or an ability to perform the techniques and reach the judgments needed for proper practice of medicine in that field. In other words, a generalised deficiency in the way in which a practitioner handles his or her affairs rather than individual sporadic shortcomings.
161 In Medical Board of Western Australia and Roberman [2005] WASAT 81 per Chaney J at [41] and [43] the decision in Jemielita was followed in this regard.
162 In relation to allegation (2) the Tribunal is limited to the particular facts alleged in that allegation. It does not appear to necessarily involve the manoeuvring of the patient's thoracic spine etc as alleged in relation to ground (1). This being so, the Tribunal is unable to find that there was gross carelessness or incompetence involved in the respondent's acts, however, once again the Tribunal is of the view that the conduct was "improper" on the basis of the matters already previously dealt with by the Tribunal.
163 In the circumstances, it is appropriate for the Tribunal to hear submissions in relation to an appropriate penalty and the matter will be re-listed to deal with that matter and also to deal with the question of costs.
(1) The respondent is guilty of improper conduct in a professional respect.
(2) The parties have leave to make oral submissions as to penalty and costs and that the matter be re-listed for those purposes.
I certify that this and the preceding [164] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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(1938) 60 CLR 336
(1974) 131 CLR 534