Background
The practitioner is a gastroenterologist and hepatologist who regularly performs colonoscopies and rectal examinations on sedated female patients. Allegations were made against the practitioner regarding two incidents of digital vaginal penetration of two patients while they were under sedation, and without consent. These incidents were said to have occurred between August 2018 to January 2019. The practitioner denied both allegations.
The first allegation was made by a nurse (Nurse A) who was assisting on the practitioner’s colonoscopy list. Nurse A said the first incident occurred on either 22 August or 5 September 2018. Over the course of her five accounts of the events, the Tribunal found that her evidence was unsatisfactory including that she gave differing accounts across her statements about material issues such as the nursing role she had been assigned on that list and where she was standing at the time the alleged incident occurred. Apart from being unable to identify the date of the incident with certainty, by her fifth account of events, the tribunal considered that Nurse A had added to her recounting of events and drawn inferences and assumptions of what must have happened. Nurse A failed to report what she thought she had witnessed, preferring instead to confide in her nursing colleagues who also worked to assist with the practitioner’s list. Nurse A then asked her colleagues to be on the “look out” for anything untoward. Nurse A was unable to identify the patient who was the alleged victim of the first incident. Instead, the police provided Nurse A with the medical records of several patients from the two dates in question, from which Nurse A identified three likely patients, who were named in these proceedings.
As to the second allegation, the colleagues of Nurse A (Nurse B and Nurse C), came forward as witnesses to the second incident. The tribunal found that their accounts of the second incident were inconsistent. Under cross-examination, Nurse C conceded that he did not actually witness the alleged digital penetration, but rather only the positioning of the fingers closer to the front of the patient than the back. The evidence Nurse B gave in the hearing differed from that given in her statement. When making her statement, Nurse B was unable to identify which hand the practitioner had allegedly used but, on cross-examination (which took place two years later), she became certain it was the right.
The tribunal attributed more weight to the expert report of Dr Vickers, who explained that, due to the female anatomy, when a female patient is placed in the position most conducive to a rectal examination and considering the doctor’s position in readiness to perform it and a colonoscopy, the doctor would face substantial difficultly in trying to perform a vaginal examination. The tribunal found it was unlikely that the alleged conduct occurred with the patient in that position without someone else in the procedure room having not noticed the departure from usual procedure.
The Outcome
In respect of both the first and second alleged incidents, the Tribunal found that they were unproven by the HCCC on the balance of probabilities.
Implications
The case is a reminder about the importance of accurate and detailed witness statements being taken contemporaneously. The provision of multiple statements which are inconsistent will invariably lead to conclusions being drawn about the reliability of that evidence. Further, statements which go further than providing factual accounts, such as assumptions or inferences, is likely to taint that evidence.
Even in conduct matters under the National Law (as opposed to performance matters), expert evidence may be obtained as to the usual practice with respect to a procedure, which may be used to cast doubt on whether a certain event could have occurred.
To read the full decision in Health Care Complaints Commission v FHB [2022] NSWCATOD 19 click here
