Court of Appeal (Vic)|2013-08-29|Before: Hansen JA, Tate JA

The applicant's amended proposed notice of appeal contained one further question but it was not pressed.

31 These questions were sought to be established by way of five grounds set out in the amended proposed notice of appeal.

32 At this point it is convenient to note the following matters:

And there was absolutely no medical basis for you to have conducted the examination at all? --- Yes. We agree that there's no indication. That's why I didn't do one.[18]

The applicant advanced no clinical purpose for the examination (his case being that it did not occur).
In these circumstances, as stated by counsel for the Board in closing submissions, the dispute was whether the internal examination occurred at all.[19]
In evidence-in-chief and crossexamination, the applicant was asked whether he conducted the examination for his own improper purpose, which he denied. In evidence-in-chief:

... the allegations in this case are that you did various things but the main one is that you inserted your fingers into her vagina when you shouldn't have. We accept that and we understand that but that's really the substance of Allegation No.1. Allegation No.2 is that you conducted the consultation in an inappropriate manner; an inappropriate sexual manner. Did you intend to derive any sexual gratification, enjoyment out of what you did? --- No, no, not at all.[20]

And any such examination conducted by you was really for your own purposes, and not for any medical purpose for the patient? --- Not under any circumstances that I would do an examination on a patient which is not really medically indicated.[21]

...

And I suggest that on the one occasion when she was present alone in your consulting room rather than having her children with her, you took advantage of her by conducting an internal examination that had no medical basis and that was conducted for entirely inappropriate purposes? --- That's not right. I wouldn't do any examination on a patient if it's not indicated and before I do I explain to the patient what's the indication and get consent from them and make sure that everything doing according to our standard of practice as a GP.[22]

Doctor Murdoch opined, inter alia, that in the circumstances described in Ms L's statement, 'there is no good clinical indication for Dr Naim to conduct an internal pelvic examination and/or internal vaginal examination on [Ms L].' He further opined that such conduct constituted a very wide departure from the standards of a medical practitioner.[23]
In the course of the final submissions of the Board's counsel when dealing with the third charge, the Acting President said (descriptively but without making findings):

We start off with the proposition that there has been an inappropriate internal examination conducted, conducted for no proper clinical purpose and thereby by inference for some nefarious and probably sexual purpose.[24]

The applicant's counsel commenced his final address with a concession that if the Tribunal should 'make the factual findings that my learned friend invites you to make, there's no dispute from this side of the Bar table as to the characterisation of the findings...' as constituting professional misconduct or unprofessional conduct.[25] At one point he referred to the allegation as being 'that he internally violated her',[26] at another that the conduct alleged 'might amount to criminal conduct',[27] and was 'abhorrent'.[28]

33 The Tribunal's finding that the internal examination occurred is not challenged. What is particularly challenged is the finding that:

In the absence of a clinical purpose for the examination, the only available inference is that it was conducted for the sexual gratification of the practitioner.[29]

34 As mentioned, the applicant relied on five grounds to establish the questions of law.

35 The grounds break up into two categories. The first concern the finding on the first charge and in particular the finding of sexual gratification. The second concern the finding on the fourth charge of failing to obtain Ms L's informed consent. The second charge is not expressly addressed by the grounds, but the applicant seeks to achieve the setting aside of the determination on all three charges on the basis that the erroneous finding or findings vitiate the ultimate order for disqualification.

The first charge - finding that examination for the purpose of sexual gratification

36 Ground 1 contends that in finding that 'the only available inference is that [the vaginal examination] was conducted for the sexual gratification of the practitioner' the Board denied the applicant procedural fairness, in that:

(1) In so finding the Tribunal reformulated, or (as Ground 2 contends) misconstrued, the allegation in the first charge as requiring consideration of whether the applicant had a clinical purpose in conducting a vaginal examination, as distinct from the mere question whether the examination was clinically indicated or necessary.

(2) The dispute being whether the examination occurred at all, the finding of purpose was made without giving the applicant an opportunity to address the question.

37 These grounds may be considered together and with the following parts of Ground 3.

38 Ground 3.1(a) contends that, insofar as can be discerned from the Tribunal's reasons, the finding that the vaginal examination occurred and that the only available inference was that it was conducted for the sexual gratification of the applicant, were based, inter alia, on a conclusion that the reference in the medical notes to abdominal pain and ordering of a pelvic ultrasound at the conclusion of the examination was a sham undertaken so as to provide a false justification for a vaginal examination. That conclusion was not open in that it was contrary to evidence; it was not supported by, or was contrary to, the expert evidence; and the Board had not so submitted.

39 Ground 3.1(f) contends that the finding of sexual purpose was not a particularised allegation in the matters referred.

40 In dealing with these, and the other grounds, we have regard to the written and oral submissions of the applicant. To an extent the grounds are self-evident. They were developed along the following lines.

41 At the outset counsel stated, doubtless because of the narrowness of the issue for determination on the first charge, that it was not argued that the Tribunal should have considered whether the vaginal examination was justifiable.

42 The issue for determination was whether the alleged vaginal examination occurred. It was submitted that the Tribunal should have confined itself to whether, as alleged, the examination was not clinically indicated and/or necessary. But impermissibly the Board slid from that question to the different issue of the purpose of the examination, and then to sexual purpose. In doing so the Board either reformulated or misconstrued the charge.

43 As mentioned, the stark issue for determination was whether the alleged vaginal examination was not clinically indicated or necessary. But the effect of the finding of sexual purpose was to place the applicant's conduct at a higher or graver level than that charged. Indeed, it was submitted, the finding elevated the conduct to criminal conduct amounting to rape as it was, in effect, a finding of an absence of good faith. Such a finding rendered the applicant liable to a more severe penalty. That was not the charge. Further, in final address to the Tribunal, counsel for the Board, in reference to a statement by the applicant's counsel that what was alleged could be criminal conduct,[30] said that:

...the allegation isn't that he assaulted her, the allegation is that he performed an internal examination without clinical justification. So there are cases where the allegation is framed as an assault occurred. And in those circumstances, the idea that one should have regard to the fact that it's criminal conduct, might be a bit more central. Either way, I absolutely accept that the seriousness of these allegations warrants the evidence being subject to careful scrutiny...[31]

44 Further, the Board's submission was that the applicant's evidence should not be accepted, not that he conducted the examination for his own sexual gratification. In this respect, we interpolate that while the matter of purpose was put to the applicant in chief and in crossexamination, the Board's counsel did not make that submission in her final address.

45 This brought counsel to Ground 3.1(a) and the contention that the Tribunal wrongly found that the ordering of the ultrasound was a sham. Here counsel addressed submissions as to the matter of abdominal examination on 30 August and 1 September and in particular as to the second sentence of paragraph [78] of the Tribunal's reasons. More particularly though were the last two sentences in paragraph [78] which refer to the Board having submitted, as the Tribunal understood it, that the ultrasound was ordered as a 'cover' to provide some apparent justification for the inappropriate internal examination.

46 It was submitted that in these sentences the Tribunal was to be seen as having accepted the Board's invitation and, by inference, to have made the finding of 'sham'. It was recognised that the finding was not express, but this was the only factor identified which could have led to the conclusion of personal sexual gratification.

47 Moreover, the Board had not invited the Tribunal to make the alleged finding. It is true that in crossexamination the Board's counsel suggested to the applicant that the ultrasound referral was given to create a justification for the examination, but the applicant denied that,[32] and counsel did not return to it in final submissions.

48 This brought the submissions back to the issue of procedural fairness. The effect of considering the charge to include purpose, and to find sexual purpose, was submitted to be both to reformulate the charge and to conclude on it at a more serious level, with a likely concomitant consequence on penalty, and was to deny the applicant a fair hearing. That was because it was done without giving the applicant a reasonable opportunity to deal with the case as found; as to this, counsel relied on the analysis in Fletcher v Commissioner of Taxation.[33] It was submitted that the finding of purpose should not have been made at the stage of the proceeding when it was, and before submissions on whether other inferences were open. The appropriate stage for that was on the consideration of penalty. Further, if the applicant had been given the opportunity, he could have made submissions as to having conducted the examination without a purpose of sexual gratification. He had, after all, raised the matter of an ultrasound. And he might have said that while the examination was bona fide he later realised that it was not justified.

49 This submission leads on to Ground 3.1(b) which contends that the Tribunal failed to consider whether, if the vaginal examination occurred, any inference other than sexual purpose might have been open despite the applicant's false denial and his assertion that such an examination would not have been justified. In particular, that the Tribunal failed to consider whether the denial and assertions might have arisen from, inter alia:

(2) the applicant's intransigent refusal to concede the inadequacy of his notes which did not record the examination;

(3) the applicant's concern that an assertion that the examination was justifiably performed would not be believed in the absence of a note in the medical records;

(4) a concern on the part of the applicant that it may be found that the vaginal examination was objectively not reasonably necessary in the circumstances.

50 It was submitted that notwithstanding that the applicant denied the alleged examination occurred, and put no alternative hypothesis on the possibility it was conducted bona fide, there may have been explanations such as suggested above. Here counsel relied on an analogy with the criminal law (Pemble v The Queen)[34] to submit that a rejection of the applicant's evidence did not necessarily justify a conclusion that the examination was for an improper sexual purpose. The Tribunal made no analysis of the evidence as to the symptoms to ascertain whether a vaginal examination conceivably might have been justified. The Tribunal should have considered alternative explanations for the examination.

51 It was contended, in Ground 3.1(c), that the Tribunal failed adequately to consider the nature and effect of evidence as to matters going to whether, objectively considered, a vaginal examination was justified; it ignored or overlooked evidence from Ms L that strongly suggested a vaginal examination was appropriate. It failed to consider the basis on which Dr Murdoch had stated an opinion adverse to Ms L on this issue; and it made findings that were not supported by or were contrary to the evidence. Indeed, (Ground 3.1(d) contends), the evidence was capable of justifying the conduct of a vaginal examination.

52 In relation to these grounds, it was submitted that it was incumbent upon the Tribunal to examine the evidence that might have justified both the pelvic and vaginal examination referred to in the first charge. Although the particulars referred only to Ms L's wisdom teeth, the applicant asked if she was concerned about any other problems. As the applicant's case did not involve justification of the examination, and because the charge required consideration of the clinical justification for the vaginal examination, the Tribunal should have addressed this issue in their reasons. At the least, these matters were significant on the question whether there was an inference other than that of sexual gratification.

53 Finally, Ground3.1(e) contends that the reasons for concluding that the applicant had no clinical purpose for the internal examination were inadequate in that they did not disclose an intelligible path of reasoning, which in itself constituted an error of law; see Commissioner of State Revenue v Anderson.[35] Putting aside the matter of the ultrasound being a 'cover', the finding at paragraph [84] of the reasons appears to be a conclusive leap not supported by reasoned analysis.

54 With respect, these submissions lack substance. The question on the first charge was whether the alleged internal examination occurred. That required a finding of fact. That fact underlay the matters alleged in the second and fourth charge. Further, the second charge expressly alleged that the applicant conducted the consultation in an inappropriately sexual manner. The fourth charge alleged that he conducted the internal examination without Ms L's informed consent, and (by the particulars) that he continued to do so notwithstanding she complained of pain. The question in each case was whether the applicant's conduct was 'substantially below the standard reasonably expected of a registered health practitioner'.[36] Whether the applicant's conduct did fall below that standard was, in relation to each of the first, second and fourth charges, to be determined in the light of the relevant facts and circumstances. Of course, the applicant's counsel conceded that if it were found that the applicant had carried out the internal examination then professional misconduct was established. That was the first charge. But there was also the second charge with the allegation of an 'inappropriately sexual manner', and then the fourth charge with the allegation that the applicant persisted in the digital examination notwithstanding it was causing pain. Regarding the matter overall, the allegations reflect a sexual overtone to the applicant's conduct.

55 It is important to bear in mind that the applicant's concession of professional misconduct under the first charge was given in the context that the applicant denied that that examination occurred and conceded that there was no clinical reason for it to have occurred. The concession was premised on the alleged examination being found to have occurred. But it said nothing as to why it had occurred. That is, why did the applicant conduct the examination? The answer to this question bore directly on the nature and quality of the applicant's conduct which, of course, bore on the question of satisfaction whether the conduct fell substantially below the standard reasonably to be expected, and whether it was appropriate to find professional misconduct established. It also bore on the appropriate characterisation of the conduct in relation to any orders to be made.

56 There was no denial of procedural fairness in this. The case for the applicant was run as best it could be, within the confines of his defence. It is self-evident that the applicant could not have it both ways. Having denied the examination occurred, and stated that there would have been no clinical purpose for it, he ran the risk of a finding that the examination did occur, thus leaving a question as to why it occurred. As the Board submits, procedural fairness did not require the Tribunal to then permit the applicant the option of running an alternative case that the examination had occurred for a proper purpose. The hearing had been had, for better or worse, and the applicant can not complain that, in the advised absence of evidence from him, the Tribunal drew an available inference as to his purpose in conducting the examination.

57 In these circumstances it was both open and appropriate to the Tribunal to find that '[i]n the absence of a clinical purpose for the examination, the only available inference is that it was conducted for the sexual gratification of the practitioner'. In making this finding, the Tribunal did not reformulate or misconstrue the first charge. Nor in its reasoning process did the Tribunal find at paragraph [78] that the ultrasound was ordered to provide a cover as justification for the internal examination. It is true that the Board did not make the submissions which the Tribunal understood to have been made. But equally the Tribunal did not state that those matters were accepted, or that the Tribunal acted upon them.

58 Moreover, it is apparent from the references at paragraph [32] above, that the parties appreciated that the inference of personal sexual gratification was in the air as one that could be made. Thus, the applicant's counsel sought to exclude the inference by directly asking the applicant about his purpose in evidence in chief. In other words, the point was appreciated and was dealt with as considered appropriate in the circumstances.

59 Nor, in the circumstance that the applicant proffered no reason why the examination might have been justifiable was it for the Tribunal to engage in speculation as to whether there might have been a clinical reason apprehended by the applicant. Not only did the applicant state that there was none, but (contrary to Ground 3.1(c) and (d)) there was no evidentiary basis on which to do so. Further, the applicant's submission in this Court under Ground 3.1(b) as to what the Tribunal should have considered more indicates lines on how the applicant wished he might have run the case but did not do so, and how he would now choose to run the case in the event of a re-hearing (Ground 3.1(b)).

60 In the circumstances, including the way in which the case was conducted, the justice of the case would not warrant leave being granted to enable the applicant to run a different case.

61 It remains only to say that it follows from the above considerations that in drawing the inference of sexual gratification there was no inadequacy in the Tribunal's reasons.

62 It was submitted for the applicant that the conclusion that Ms L had not given informed consent was not open to be made. The facts were that Ms L was concerned, her concerns were brushed off by the applicant, but she went on with the examination, aware of what was proposed. In these circumstances the Tribunal's conclusion could not be justified. Further, Dr Murdoch did not conclude there had been no informed consent. His opinion was that there would be informed consent if the relevance and nature of the examination was explained. It was submitted that Ms L understood that an internal vaginal examination was to take place and that she agreed to it. Finally, it was submitted that the Tribunal's reasons were inadequate for the conclusion.

63 The fundamental difficulty with this submission is that it overlooks, if not disregards, the Tribunal's finding on the first charge of the purpose for which the applicant conducted the vaginal examination. He did not inform her of his purpose, and she did not know. It cannot be suggested that Ms L consented to him engaging in an examination for that undisclosed purpose. If and to the extent that it could otherwise have been said - as the applicant submits - that Ms L consented to the examination, that consent was vitiated by her ignorance of the applicant's true purpose. In any event, it was open to the Tribunal to find the fourth charge proved for the reasons stated by the Tribunal.

64 For these reasons, no real or significant argument as to a question of law is demonstrated. The supposed questions of law either challenged findings of fact that were open to be made (in particular the finding of personal sexual gratification and a lack of informed consent), or identified matters that would raise questions of law (such as procedural fairness, finding not open on the evidence or failure to take evidence into account, and failure to provide reasons) that on examination have no substance. In short, there is no question of law as to which doubt is raised that could justify the grant of leave to appeal. This means that the application should be refused. However, leave is necessary in order that allowance be made for the stay on the operation of the Tribunal's orders. Subject to hearing from the parties it would seem appropriate that the orders of VCAT be varied by providing that the cancellation of the applicant's registration take effect from 5 September 2013. For clarity, the period of disqualification runs from that date. For this purpose therefore there will be leave to appeal but the appeal will otherwise be dismissed.

[1] In proceeding Reference No. B198/2012.

[2] These matters are recorded in the Tribunal's reasons at [20] ('Reasons').

[10] Strictly speaking, they are matters referred, being allegations concerning specified conduct.

[14] Reasons [89]-[90], [94] and [95].

[23] Affidavit of Zygmunt Zayler, Annexure ZZ.01, P133.

[34] [1971] HCA 20; (1971) 124 CLR 107. This analogy with the criminal law was drawn in the written submissions and is accordingly referred to but it was not pressed in oral submissions.

[36] Health Practitioner Act, s 5, definition of professional misconduct paragraph (a).

Health Practitioner Regulation National Law (Victoria) Act 2009(Vic)

Civil and Administrative Tribunal Act 1998

Naim v Medical Board of Australia [2013] VSCA 205 (29 August 2013)

Naim v Medical Board of Australia [2013] VSCA 205

At a glance

Court

Decision date

Before

Source

Judgment (62 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (4)

Naim v Medical Board of Australia [2013] VSCA 205 (29 August 2013)