Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Health Care Complaints Commission v Gautam [2020] NSWCATOD 146 Hearing dates: 30 November, 1 and 2 December 2020 Date of orders: 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Occupational Division Before: A Balla ADCJ, Principal Member Dr J Gillis, Senior Member Dr H Haikal-Mukhtar, Senior Member J Houen, General Member Decision: (1) Dr Gautam is reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law; (2) Pursuant to s 149C(1) (b) of the Health Practitioner Regulation National Law (NSW) the registration of Dr Gautam is suspended for three months, commencing 30 days from the date of this Order. (3) Dr Gautam to pay the costs of the Health Care Complaints Commission. Catchwords: PROFESSION AND TRADES – medical practitioner – reprimand – suspension Legislation Cited: Health Practitioner Regulation National Law (NSW), ss 3A, 139B, 139E, 149A(1)(a), 149C(1)(b) Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Clyne v NSW Bar Association (1960) 104 CLR 186 Health Care Complaints Commission v Do [2014] NSWCA 307 HCCC v Litchfield (1997) 41 NSWLR 630 Qidwai v Brown [1984] 1 NSWLR 100 Texts Cited: Medical Board of Australia 'Sexual Boundaries: Guidelines for Doctors' Category: Principal judgment Parties: Health Care Complaints Commission (Applicant) Dr Bijender Kumar Gautam (Respondent) Representation: Counsel: I Chatterjee (Applicant) M Hutchings (Respondent) Solicitors: Health Care Complaints Commission (Applicant) Meridian Lawyers (Respondent) File Number(s): 2019/00265620 Publication restriction: Pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 the disclosure and/or publication of the name of Patient A. REASONS FOR DECISION 1. This is an application for a disciplinary finding and Order under the Health Practitioner Regulation National Law (NSW) ("the National Law") by the Health Care Complaints Commission (HCCC) against Dr Bijender Kumar Gautam. History 1. Dr Gautam is a paediatrician. He obtained his medical degree in Russia in 1999 and was first registered as a medical practitioner in Australia in 2007. In 2012 he became a fellow of the Royal Australasian College of Physicians (Paediatric and Child Health Division). 2. From 2016 Dr Gautam worked as a paediatrician out of rooms at Campbelltown. 3. Patient A was four years old when he was first seen by Dr Gautam on 16 November 2016. He had been diagnosed as having various medical issues and was displaying extreme hyperactivity and difficulty in regulating his emotions. Dr Gautam reviewed Patient A another five times, the last appointment being on 21 December 2017. 4. On 27 September 2019 an Order was made prohibiting publication of the name of Patient A pursuant to s 64(1)(a) of the National Law. The Complaint 1. The complainant in these proceedings is Patient A's mother. We have referred to her as "the mother". The first Complaint 1. The HCCC says that at Patient A's sixth consultation with Dr Gautam on 21 December 2017, Dr Gautam: 1. Sat down next to the mother on the patient side of the consultation desk and inappropriately: 1. rubbed her shoulder with his right hand; 2. kissed her above her forehead. 1. During the consultation sat on a chair next to the mother and: 1. while Patient A was in the consultation room being disruptive, said to her "You need to come back without [patient A] and after hours when the ladies are gone, to discuss strategies and I won't bill you"; 2. after sending Patient A out of the consultation room said to her "We need to be careful because people will think something is going on"; 3. while Patient A was out of the consultation room he put his right hand around her left upper arm, and led her towards another part of the consultation room; 4. then said to her "Come over here, come this way, no-one can see us." 1. During the consultation (and separately to the incident in particular (1), Dr Gautam led the mother towards an area of the consultation room not visible from the waiting room and: 1. leaned his head forward to kiss her on or near her lips; 2. kissed her near her lips. 1. By these actions, the respondent breached professional boundaries with the mother contrary to the Medical Board of Australia 'Sexual Boundaries: Guidelines for Doctors'. 1. Dr Gautam denies that the matters set out in the Complaint occurred. The second Complaint 1. The Health Care Complaints Commission says that the conduct in the first Complaint is sufficiently serious to amount to professional misconduct. The evidence before the Tribunal 1. Both the mother and Dr Gautam gave evidence as to what they said occurred in Dr Gautam's rooms on 21 December 2017. 2. The mother's mother (whom we have referred to as 'the grandmother') and the mother's sister also gave evidence of having spoken to the mother on the day of the appointment with Dr Gautam about what had occurred during the consultation. 3. Dr Gautam's practice manager also gave evidence. 4. There was also documentary evidence before the Tribunal including statements from all of the witnesses who gave oral evidence, diagrams and photographs of Dr Gautam's rooms and a number of character references relied on by Dr Gautam. Facts 1. The mother described an incident in October 2017 when she noticed that Dr Gautam was looking at her cleavage. She also said that at a consultation in November 2017, Dr Gautam had hugged her. These events are not the subject of the Complaint and Dr Gautam denied that these incidents occurred. 2. The mother says that during the entire consultation on 21 December 2017, Patient A was disruptive. He ran around the room and took toys out from under shelves. He climbed up on the examination table and jumped off. He went in and out of the consulting room several times. Dr Gautam gave a similar account. He recalled that Patient A had been very hyperactive, disruptive and defiant, repeatedly leaving and re-entering the consulting room to wander around the reception area and repeatedly and frequently interrupted his conversation with the mother. He had only been able to undertake a superficial systemic examination due to Patient A's lack of cooperation. 3. The mother says that after giving her a cup of coffee, Dr Gautam asked her how things were going at home. At the time she had issues with her partner and had recently given birth to a second child who had medical issues and she became emotional. She said that about 10 minutes after the appointment had started, Dr Gautam opened the door which led to the reception area, and told Patient A to go out to the play area near the reception desk. He then shut the door, walked over to her, sat on the chair next to her, turned so that they were facing each other, lifted his right arm and put one hand on her left shoulder. He rubbed the tip of her shoulder, leaned forward and kissed her on the top of her head just above her forehead. 4. Shortly afterwards, the mother says that Dr Gautam leaned over and said to her "You need to come back without [patient A] and after hours when the ladies are gone, to discuss strategies and I won't bill you." 5. After Patient A had entered and left the room again, the mother says that Dr Gautam stood up and closed and locked the door. He sat down next to her again and said "We need to be careful because people will think something's going on." 6. The mother said that Patient A then started rattling the door so she went over and unlocked and opened the door. She decided not to sit down again and shut the door to keep Patient A in the room. Dr Gautam walked over to her near the door, stood in front of her, put his right hand around her left upper arm and led her towards an area next to the door. It is common ground that that area is not visible from the reception area when the door is open. The mother says when they were standing in that part of the consulting room, Dr Gautam raised his right arm and put it behind her back and put his left hand around her right side. On cross examination she was less certain about where on her body Dr Gautam had placed each of his hands. He tilted his head to the left and leaned forward to kiss her on the lips. She turned her head to the left and his lips touched her face, to the right of her mouth. 7. The mother said that, after a short conversation, she left the consulting room and made another appointment. 8. The mother then drove to the grandmother's home and spoke to her sister and the grandmother. They advised her to go to the police, so she went with her sister to Campbelltown police station. She spoke to two police officers and they created a COPS event. The COPS event discloses that they printed out and gave her a form to use to make a complaint to the HCCC. 9. Later that day the mother rang and complained to Dr Gautam's practice manager. She told Dr Gautam, who then telephoned the mother. 10. Dr Gautam denies that he let Patient A leave the consulting room to play near the reception, sat down next to the mother, rubbed her shoulder or kissed her above her forehead. He denies that he invited the mother to come back after hours when the staff had left but he did say to her that she could come to the clinic to discuss Patient A without Patient A being present within clinic hours so they could discuss matters without being interrupted. He denied that he said that they needed to be careful because people will think something is going on. 11. Dr Gautam also denied locking the door from the reception area to the consulting room. There was a second means of access to the consulting room – a sliding door which is not fitted with a lock and which Dr Gautam said is completely open most of the time. On the other side of that sliding door is the kitchen and the administration area which, he said, is constantly frequented by staff. Staff often walked into the consulting room through the open sliding door. However later evidence established that the staff would knock before entering the consulting room through either door. 12. Dr Gautam denies that he put his hand around the mother's arm or led her towards the area she had described. He had not said "Come over here, come this way, no one can see us." He had not put his arms around her or leaned his head forward to kiss her on or near the lips. He says that at the end of the appointment, Patient A had been opening and closing the door and going in and out of consulting room. He asked the mother to move slightly away from the door so she would not be injured. He steadied the door open with his hand and was standing just inside the doorway while they continued their conversation. He shook her hand whilst simultaneously patting her on the upper back/right shoulder in an attempt to reassure her that she was doing a good job. He wished her a Happy Christmas and she left. Resolving the conflict in the evidence 1. The Tribunal is satisfied that the evidence of the mother and Dr Gautam as to what happened on 21 December 2017 cannot be reconciled. 2. Accordingly, the issue is whether the HCCC has established that one or more of the events pleaded in the Complaint occurred. To make any such finding we must be "comfortably satisfied" that the matter has been established on the balance of probabilities: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. 3. The Tribunal considered that the mother attempted to honestly answer the questions put to her which did mean that she resiled from some aspects of the accounts which she had set out in her statements and the original complaint. 4. Counsel for Dr Gautam submitted her evidence ought to be rejected because of these inconsistencies in the mother's own evidence, inconsistencies between her evidence and the COPS event, and inconsistencies with the evidence of her sister and the grandmother, together with her "glib" assurance to the Tribunal that her most recent version was "right" as if "the earlier confused and contradictory versions could be excised and disregarded". 5. The Tribunal accepts that there are inconsistencies in the mother's own evidence and that it is likely that her best recollection of what occurred would have been in early 2018 and not in 2020. Nevertheless when we considered these inconsistencies closely, we did not find that they impacted on the reliability of her account of the issues which caused her concern at the time and led to the Complaint. 6. Firstly, the mother's statements as to whether Dr Gautam, at any time, locked the door leading to the reception area are inconsistent. The locking of the door is not mentioned in the COPS event. However the mother did say to her sister, on the same day, that the last time Patient A had tried to get into the consultation room Dr Gautam had sent him out and locked the door. 7. Neither the grandmother nor the practice manager reported that the mother had told them that Dr Gautam had locked the door. 8. The mother filed a handwritten complaint form with the HCCC on 11 January 2018. On that form, she said the door had been locked three times – once just before Dr Gautam told her they had to be careful as people would think things, then later when Dr Gautam sent Patient A out of the room to play and lastly just before he tried to kiss her on the mouth. 9. The mother then prepared a statement dated 7 June 2018. In that statement she said that Dr Gautam first locked the door after he sent Patient A out of the consulting room into the play area and just before he walked over and sat on the chair next to her on the patient side of the desk and kissed her on the head. Then, later in the consultation, he locked the door after Patient A left the room again and just before he said they needed to be careful because people will think something is going on. 10. In March 2020 the mother re-read her June 2018 statement and found some mistakes. She withdrew the assertion in her June statement about the first time the door had been locked – on reflection she believed that the door had been closed but not locked because she remembered that Patient A had been able to come straight in to the consulting room. She was sure Dr Gautam had locked the door just before he sat down next to her and said they had to be careful (para 47 of her June 2018 statement). She confirmed these amendments in an undated statement prepared in around March 2020. 11. In cross examination she ultimately said that she did not remember how many times Dr Gautam had locked the door. The time she clearly recalled that the door had been locked was set out in para 47 of her statement. 12. The Tribunal does not consider that this failure to adhere to her early statements reflects on the credibility of the mother but rather illustrates her attempts to clarify the order in which a series of events occurred in a chaotic environment. The Tribunal also does not consider that the omission of this element from the statements of others reflects on the credibility of the mother in circumstances where other more significant events were remembered by those witnesses as having been mentioned by the mother, as discussed further later in these Reasons. 13. The Tribunal has formed the same view about the mother's evidence in relation to other relatively minor matters – whether Dr Gautam was sitting or standing when he kissed her the first time and whether Patient A was in or out of the consulting room at a time identified by an event in the consulting room, for example when Dr Gautam kissed her on the top of her head. 14. Counsel for Dr Gautam also relied on what he said was the mother's failure to report to others that Dr Gautam had kissed her. We accept that there is no reference by any other person or in any other document to the kiss on the top of the head. In relation to the incident at the end of the consultation, in three of the reports made by the mother on the same day (set out below) the mother said that Dr Gautam had "tried to kiss her". In cross examination the mother said she had meant that the doctor had tried to kiss her on the lips and she had avoided this happening by moving her head so that his lips touched her on the face, next to her mouth. 15. The COPS report says that Dr Gautam "has apparently made advances towards the P/R such as leaning in for a kiss … The P/N has leant in for a kiss, with the P/R pulling away and leaving the clinic." 16. The sister said that the mother had told her "Dr Gautam had tried to kiss her … Dr Gautam had hugged her, moved her near the book shelf and tried to lean in and kiss her … she was upset (by) the fact that Dr Gautam had tried to kiss her." 17. The grandmother had been told by the mother "You're not going to believe this, but Dr Gautam tried to kiss me. … She said she just wanted to get out and so she got up and he tried to kiss her. [The mother] told me she pulled away and said words to the effect of 'I'm going'." 18. The practice manager said that the mother had said on the telephone that Dr Gautam was 'touchy' with her, she felt that the doctor was forcing her into the corner of the room, she thought that the doctor was going to kiss her and that he was over friendly. On cross examination she agreed that the mother may have said that he had tried to kiss her. 19. In her handwritten statement received by the HCCC on 11 January 2018 (which is three weeks after the appointment) the mother said: "He was trying to move me to the corner of the room that is not in sight if the door is open by having his hand on my arm and heading that way, he touched my face with his hand, tilted his head and went in to kiss me on the mouth. I moved my head and he got me on the cheek near my lips. 1. The Tribunal accepts the mother's explanation for saying that Dr Gautam tried to kiss her rather than saying he did kiss her. We are satisfied that these are contemporaneous complaints about the incident which the mother said occurred at the end of the appointment. 2. As we have said Dr Gautam denies that he said anything inappropriate or kissed the mother. The only time he touched her, he said, was at the end of the consultation when he shook her hand whilst patting her on the upper back/right shoulder. He maintained this denial in cross examination and there was nothing in the way he gave evidence which significantly impacted on his credibility. 3. However, the mother gave an essentially consistent account of what she said occurred during the appointment and was a forthright and thoughtful witness. As we have said, she made immediate complaints to her sister, the grandmother, the police and the practice manager. These reports were generally consistent about the matters underlying the Complaint. According to the grandmother, the mother was significantly emotionally affected for some time from the trauma caused by Dr Gautam's conduct. 4. The Tribunal accepts the evidence of the mother and finds all of the grounds of the first Complaint proven. Unsatisfactory professional conduct 1. In the first Complaint, the HCCC says Dr Gautam is guilty of unsatisfactory professional conduct because he engaged in: (a) conduct that demonstrates his knowledge, skill or judgment, or the care he exercised is significantly below the standard reasonably expected of a practitioner of an equivalent level of training or experience and/or (l) improper or unethical conduct relating to the practice or purported practice of his profession. (s 139B of the National Law). 1. Dr Gautam conceded that if the Tribunal found he had engaged in the conduct alleged it would have been inappropriate and the conclusions of the expert retained in these proceedings, Dr Pearson, were warranted. Dr Pearson describes the words spoken by Dr Gautam which are set out in the Complaint and the unwanted physical touching as "not of a professional standard" and in a series of respects "significantly below what is reasonably expected of a practitioner of an equivalent level of training and experience". 2. The Tribunal takes into account the concession made by Dr Gautam and the opinion of Dr Pearson and is satisfied that the conduct of Dr Gautam amounts to unsatisfactory professional conduct. 3. The Tribunal is satisfied that the first Complaint has been established. Professional misconduct 1. In the second Complaint, the HCCC says that Dr Gautam is guilty of professional misconduct because he engaged in unsatisfactory professional conduct of a sufficiently serious nature to justify suspension or cancellation of his registration or engaged in more than one instance of unsatisfactory professional conduct that, when the instances are considered together, amount to conduct of a sufficiently serious nature to justify suspension or cancellation of his registration (s139E of the National Law). 2. Dr Gautam did not concede that, if the facts in the first Complaint were established, they amounted to professional misconduct. 3. To constitute professional misconduct, it has been held that the conduct the subject of the complaint must be of such a departure from the accepted standards of the profession as would reasonably incur the strong reprobation of professional colleagues of good repute and competence: Qidwai v Brown [1984] 1 NSWLR 100 at 105 (Priestley JA). 4. The Tribunal accepts the submission made by the HCCC that Dr Gautam's conduct is of a very serious nature and demonstrates a departure from accepted standards. The Tribunal takes into account the following matters as indicators of the serious nature of the conduct underlying Complaint One. As set out "Sexual Boundaries: Guidelines for doctors" published by the Medical Board of Australia: * A breach of sexual boundaries between a doctor and a person who is closely related to a person under the doctor's care is unethical and unprofessional because it exploits the doctor-patient relationship, undermines the trust that patients and the community have in their doctors and may cause profound psychological harm to patients and compromise their medical care. * The relationship is inherently unequal. It is an abuse of this power imbalance for a doctor to enter into a sexual relationship with a person who is closely related to a patient. * Trust is the foundation of a good doctor-patient relationship. The mother needed to trust that Dr Gautam would act in the best interests of herself and Patient A. It was a breach of trust for Dr Gautam to engage in the conduct which is the subject of the first Complaint. * A sexual relationship may impair the doctor's judgement and compromise the patient's care. 1. In addition, Dr Gautam was aware that the mother was vulnerable and depended emotionally on him to assist Patient A in becoming fit to attend kindergarten which was to start on 2 February 2018. 2. The Tribunal finds that, when considered as a whole, Dr Gautam's conduct constitutes professional misconduct. The Tribunal is satisfied that the second Complaint has been established. Decision – Protective Orders 1. An Order has previously been made for the Tribunal to make findings in relation to the Complaint and then move on to determine the appropriate protective Orders after a single hearing. 2. Section 3A of the National Law provides: In the exercise of functions under a NSW provision, the protection of the health and safety of the public must be the paramount consideration. 1. A finding of professional misconduct means that Dr Gautam engaged in sufficiently serious conduct which could justify suspension or cancellation of his registration. It does not mean his registration must be suspended or cancelled. 2. The legislation provides that, on a finding of professional misconduct, the Tribunal may suspend or cancel Dr Gautam's registration, impose a fine, caution or reprimand him, impose conditions, order him to undergo treatment or counselling, order him to complete an educational course, order him to report on his practice and/or order him to seek and take advice in relation to the management of his practice. 3. The Orders are not intended to punish the practitioner, but to protect the public (Clyne v NSW Bar Association (1960) 104 CLR 186; HCCC v Litchfield (1997) 41 NSWLR 630). 4. The underlying principles are discussed by Meagher JA in Health Care Complaints Commission v Do [2014] NSWCA 307: The objective of protecting the health and safety of the public is not confined to protecting the patients or potential patients of a particular practitioner from the continuing risk of his or her malpractice or incompetence. It includes protecting the public from the similar misconduct or incompetence of other practitioners and upholding public confidence in the standards of the profession. That objective is achieved by setting and maintaining those standards and, where appropriate, by cancelling the registration of practitioners who are not competent or otherwise not fit to practise, including those who have been guilty of serious misconduct. Denouncing such misconduct operates both as a deterrent to the individual concerned, as well as to the general body of practitioners. It also maintains public confidence by signalling that those whose conduct does not meet the required standards will not be permitted to practise. 1. The Tribunal relies on the findings made above as to the nature of the conduct. 2. In addition the Tribunal takes into account that: * The conduct occurred on a single day and there is no evidence of any other improper conduct on the part of Dr Gautam. * Dr Gautam has reviewed the manner in which he communicates and interacts with patients. In June 2019 his solicitor advised he no longer initiates handshakes with patients or intentionally touches them other than in the course a physical examination and with informed consent. He does not disclose any personal details to patients. He has undertaken a MIPS course "Common Practice Scenarios - What would you do?" and read the United Medical Protection handbook "Medico-legal handbook: A Guide to Legal Issues in Medical Practice". He has had the mechanism of the door to the consulting room changed so that it cannot be locked. He has installed CCTV in his practices, which he uses with the consent of patients. * Dr Gautam relies on a number of character references which we accept. * Dr Gautam bought the Campbelltown practice from Dr Freelander in 2016. Dr Freelander has known Dr Gautam since 2008. He regards him as a person of the highest integrity who has always acted in the best interest of his patients. He has found Dr Gautam's standards of paediatric practice to be exemplary. * Associate Professor McDonald, a paediatrician, has known Dr Gautam since March 2015. He described Dr Gautam as a valued colleague and teacher who is respected by his colleagues, an astute diagnostician and an extremely hardworking professional who practises in an empathetic and diligent manner with clinical skills of a high standard. * His accountant, Mr Kaur, has found him to be very hardworking and extremely passionate about the work he does with children. * The mother of another patient has found him to be kind and professional, caring and dedicated, extremely hard working and professional in an empathetic and diligent manner. * The mother of yet another patient has been consulting Dr Gautam since 2016. She described his genuine concern for her child and his dedication to that child's treatment. * His wife considers the conduct to be completely out of character. 1. Taking these matters into account the Tribunal is satisfied that the appropriate disciplinary orders are a reprimand and suspension from practice for three months. Costs 1. The parties agree that costs should follow the event. Orders 1. Dr Gautam is reprimanded under s 149A(1)(a) of the Health Practitioner Regulation National Law. 2. Pursuant to s 149C(1) (b) of the Health Practitioner Regulation National Law (NSW) the registration of Dr Gautam is suspended for three months, commencing 30 days from the date of this Order. 3. Dr Gautam to pay the costs of the Health Care Complaints Commission. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 22 December 2020 - Counsel name on coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 December 2020