The Background
The Health Care Complaints Commission (HCCC) brought disciplinary proceedings against Dr Gao based on complaints made by Patient A.
Patient A alleged that between 2 October 2018 and 29 April 2019 Dr Gao:
- conducted a breast examination without informed consent, and whilst conducting the examination, inappropriately touched her breasts and made comments about the look of her breasts if she underwent breast reduction surgery;
- undertook a visual examination of an area below Patient A’s underwear line and inappropriately lifted her underwear in circumstances where the examination was not clinically indicated and was performed without informed consent or a chaperone present; and
- failed to maintain appropriate professional boundaries with Patient A, including instances of inappropriate touching of her waist and kissing her neck.
The HCCC also alleged that Dr Gao failed to adequately record in his medical records information relevant to Patient A’s diagnosis or treatment.
Dr Gao did not admit many of the allegations and specifically denied several other allegations made by Patient A. He denied his conduct amounted to unsatisfactory professional conduct or professional misconduct.
Outcome
At the outset, the Tribunal acknowledged that the case was a stark choice between irreconcilable accounts of the events. Patient A’s version of events was not implausible or impossible, nor were Dr Gao’s denials.
The evidence indicated that Patient A at least implicitly consented to a breast examination, or Dr Gao not unreasonably believed that she did so. Therefore, the Tribunal was not satisfied the examination occurred without informed consent.
However, the Tribunal did find, based on expert evidence, that Dr Gao inappropriately manipulated Patient A’s breasts to indicate how they would look after breast reduction surgery and made inappropriate comments on her looks post-surgery. It was found that this conduct fell significantly below the standard and constituted unsatisfactory professional conduct.
Given the conflicting expert evidence, the Tribunal could not be satisfied that the visual examination of Patient A’s genital area was not clinically indicated but was satisfied that Dr Gao failed to provide an explanation of the nature and purpose of the examination in order to obtain informed consent. This conduct fell significantly below the standard reasonably expected, thereby constituting unsatisfactory professional conduct.
In relation to the breach of doctor-patient boundary complaints, the Tribunal stated there needed to be caution when evaluating the reliability of the evidence of Dr Gao. There were no similar concerns about the evidence of Patient A, and whilst there were inconsistencies and omissions in her evidence, the substance of her allegations was unwavering. Further, there was no reason for Patient A to misspeak the truth nor any evidence to explain why Patient A ceased consulting Dr Gao. These matters cumulatively meant the Tribunal was satisfied that the breach of doctor-patient boundaries was established.
Additionally, it was found that Dr Gao did not meet the mandatory requirements of the RACGP Standard in relation to his clinical records, and as such was guilty of unsatisfactory professional conduct.
The Tribunal considered that Dr Gao’s various instances of unsatisfactory professional conduct were cumulatively serious enough to constituted professional misconduct.
Implications
The case emphasises that where the accounts of a complainant and a practitioner are irreconcilable (a “he said, she said” situation), a Tribunal may be unable to be satisfied that the alleged conduct has occurred. However, in those circumstances, the reliability and credibility of each party becomes important, and may lead a Tribunal to prefer one version of events over the other.
The decision also highlights the need for practitioners to obtain properly informed consent, especially in the context of intimate examinations, as well as keeping accurate clinical records. Practitioners should review the Medical Board’s guidance on performing physical examinations and Core Standards 1 and 7 of the Standards published by the RACGP concerning informed patient decisions and the required content of medical records.
To read the full decision in HCCC v Gao [2022] NSWCATOD 73, click here.
