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| Decision No: | 99/44D | |
|---|---|---|
| Practitioner: | Name suppressed | |
| Charge Characteristics: | Inadequate
informed consent Inadequate physical examination Inappropriate touching |
|
| Additional Orders: | Doctor granted interim name
suppression: 9944dhearpriminlaw Doctor granted permanent name suppression: 9944dfindingssuplaw Complainant granted permanent name suppression: 9944dhearpriminlaw |
|
| Decision: | 9944dfindingslaw | |
| Reasoned Decision: | 9944dfindings2law | |
| Penalty Decision: | 9944dfindingssuplaw |
Charge:
The Director of Proceedings charged that the Doctor was guilty of disgraceful conduct in a professional respect in that on or about 23 August 1997 he provided services of an inadequate and inappropriate professional standard to a female patient.
In particular he:
Background:
The patient saw the Doctor at a consultation on the 23rd of August. She had bronchitis and her lower chest and back were sore. The Doctor asked if her breasts were sore and when her last period was. The patient said she did not have sore breasts.
The patient was not wearing a bra, as she had taken it off earlier that day due to the soreness of her chest and back. The Doctor listened to her chest and felt with both hands around her lower ribs and then slightly higher up. The patient alleged the Doctor then cupped her breasts and held them. The Doctor had not told her he was going to examine her breasts.
Finding:
The Tribunal found the Doctor guilty of conduct unbecoming a medical practitioner and that conduct reflects adversely on the practitioner's fitness to practise medicine.
The Tribunal considered particulars 1 and 2 together and found the Doctor, while not formally admitting particulars 1 and 2, acknowledged that he failed to tell the patient he intended to examine her breasts, and failed to get her consent before doing so. Therefore the Tribunal found particulars 1 and 2 were established.
There were a number of disputed questions of fact that related to particular 3 which the Tribunal were unable to resolve. Despite the conflicts in the evidence the Tribunal found that the Doctor did touch his patient's breasts in an inappropriate manner. The Tribunal found particular 3 was established.
The Tribunal found particular 4 was not established. The Tribunal considered the Doctor's explanation in response to this particular "passably credible". The Doctor said he was not engaged in conducting a breast examination as such, he was just checking for tenderness.
The Tribunal considered a statement published by the Medical Council in June 1994 called "Sexual Abuse In the Doctor/Patient Relationship". In that publication the Medical Council defined sexual abuse under three categories:
The Tribunal found that for either disgraceful conduct in a professional respect or professional misconduct to be established in this case, the Doctor's conduct would need to be categorised as a sexual transgression. Sexual violation (which is defined as doctor/patient sexual activity) was irrelevant to the focus of the charge and did not need to be examined. Sexual transgression is defined as inappropriate touching of a patient that is of a sexual nature, but short of sexual violation. The Tribunal held that the Doctor's touching of his patient's breasts was not with wilful and deliberate intent for the purposes of sexual gratification.
The Tribunal considered the Doctor's action did meet the test of sexual impropriety. It found the Doctor's action should attract disciplinary sanction and he was found guilty of conduct unbecoming a medical practitioner and that conduct reflects adversely on the practitioner's fitness to practise medicine.
Penalty:
The Tribunal ordered that the Doctor be censured, pay a fine of $2,000.00 and contribute 30% of the costs and expenses of and incidental to the investigation.