The key issue
The treatment of sexual misconduct allegations by way of immediate action.
The background
The patient presented to her GP on 27 August 2020 with ongoing chest pain, reporting that she was stressed and had done some physical work with horses the previous evening. An ambulance transported the patient to St Andrew’s War Memorial Hospital (Hospital) for further investigation with the primary diagnosis being recorded as “pain – muscular/soft tissue”.
After reviewing an ECG and sending the patient for an x-ray, the patient alleged that the practitioner, among other things:
- entered the cubicle and closed the curtains, saying the x-rays and bloods were fine and he would do a breast check;
- did not ask for her consent to touch or examine her breasts;
- from her right side while she was lying down, reached through her gown and proceeded to squeeze and massage her breasts without gloves;
- asked the patient to sit upright, following which he leaned over her shoulder and placed his right and left hand on her right and left breast respectively;
- squeezed both breasts at the same time and appeared to play with her breasts. He held her nipples between his thumb and fingers and tilted them up and down several times; and
- upon leaving, touched her leg and said “there’s no problems there”.
In September 2020, the patient made a complaint to the Hospital and, on 5 January 2021, the Board took immediate action by suspending the practitioner’s registration.
After being invited to reconsider its decision on appeal, on 18 February 2021, the Board set aside its decision to suspend and imposed conditions, in summary, requiring the practitioner not to have contact with female patients, only work in places approved by the Board and to be supervised.
In reviewing the incident, subject matter experts opined that ‘although the examination of the breasts was not keeping with standard clinical practice it can be explained by the configuration of the room and the patient being in a cardiac bed which is why it may not have been feasible to have her sitting on the side of the bed.’
The reviewers (from the Hospital) found that there was inadequate informed consent and it was inappropriate to fail to document the rationale for a breast examination and the results of that examination. The reviewers also considered it would have been preferable for the patient to be provided with the option of a chaperone.
After being advised of the complaint, the practitioner implemented the use of a practice monitor for all intimate examinations of female patients.
The practitioner accepted that his communication with the patient in all the circumstances was inadequate.
The tribunal noted that it was clear from the ‘tenor of the Board’s reasons that it has proceeded on the basis that the actions of the [practitioner] in examining the breasts of the patient were not truly motivated by any clinical concern but by some type of sexual motivation’. However, the tribunal suggested that ‘the breast examination was not accompanied by any type of other explicit sexual behaviour or inappropriate comments and is quite capable of being regarded as, albeit unorthodox and ultimately unfortunate, motivated by genuine clinical motives’.
In deciding that the practitioner did not pose a serious risk, the tribunal noted the significant adverse consequences already suffered by the practitioner and that any subsequent failure to adhere to proper professional standards would likely have significant ramifications for him. Further, his employers were aware of the allegations and were prepared to facilitate practice monitor arrangements.
The outcome
The tribunal set aside the decision of the Board.
The implications
The case highlights that suspension of a practitioner’s registration (or even the imposition of conditions), when allegations of a sexual nature are made, are not necessarily a proportionate response to the alleged conduct, particularly in circumstances where action has been taken by the employer to mitigate any risk posed by the practitioner.
The decision Rao v Medical Board of Australia [2021] QCAT 145 can be read here.
